Cases and authorities

VENDOR AND PURCHASER - contract for sale of land - amended by solicitor prior to exchange - no evidence of amendment being authorised by purchaser - contract did not come into existence - purchaser entitled to return of deposit

PROCEDURE - Discovery and interrogatories - Whether defendant should be ordered to answer interrogatories on the origin of documents where no guarantee he would call witnesses to be cross examined and plaintiff's case limited to documents

Criminal Law: Committal proceedings - direction under s 91 of Criminal Procedure Act 1986 that witnesses attend - substantial reasons - whether constructive failure to exercise jurisdiction - when order in nature of Mandamus should issue - adequacy of reaons for failure to give direction

CRIMINAL APPEAL – sentencing – Crown appeal – wholesale drug dealer – rehabilitation – full-time custody on remand – sentence of periodic detention – appeal allowed

Litigants in person: bypass rehearing procedure - the procedure established by the legislature to review findings of fact - jurisdictional limitations of this Court to deal with challenges to Tribunal decisions - no duty to explain or discuss decision - decision finalises the hearing of the applications - misconceived serious allegation of bias - no entitlement to relief.

CORPORATIONS - winding up - members' voluntary winding up - surplus after debts, claims and expenses - "A" class shares only on issue - such shares expressed to have limited rights on winding up - whether holders of "A" class shares in any event entitled to whole surplus rateably

Offences - time of the essence - amendment of indictment - powers to amend - injustice an unfair trial

PRACTICE - asset preservation order - balance of convenience - COSTS - whether costs to be payable forthwith - costs of interlocutory application

Corporations Law. Application to set aside statutory demand under s 459G of the Corporations Act. Whether the circumstances giving rise to an estoppel make the alleged dispute not a genuine dispute.

Criminal law - counsels' addresses - defence counsel addressing first - separation of jury during retirement - no miscarriage of justice

Appellant charged with wounding with intent to murder or alternatively to do grievous bodily harm - found guilty of the statutory alternative of malicious wounding - principal issue at trial was identification - whether verdict unreasonable - whether directions given on issue of identification adequate - trial judge's obligation under s 116 of the Evidence Act 1995, to inform the jury of special need for caution both generally and in the circumstances of the particular case, arises whatever defence is raised and however the case is conducted - that obligation relates to the reliability of the identification evidence, not to its honesty - bias does not fall within s 116, and obligation to give directions relating to bias depends on how the case was conducted - need for identification parade, s 114 of the Evidence Act - negative identification evidence - compromise verdict - whether miscarriage of justice based on accumulation of conduct by appellant's counsel at trial.

BUILDING AND CONSTRUCTION - whether adjudicator addressed wrong question, failed to consider relevant material or considered irrelevant material - whether adjudication application made outside time limit prescribed by s 17(3) Building and Construction Industry Security of Payment Act 1999 - whether time limit is "basic and essential" requirement - whether failure to comply with limit vitiates determination - application of Brodyn v Davenport [2004] NSWCA 394 - COSTS - whether costs follow event - no question of principle

CORPORATIONS - winding up - examinations by liquidators - orders for production of documents - orders sought in respect of solicitors - need for mechanism for determination of claims for privilege before order for production made

VENDOR AND PURCHASER - whether part of deposit not paid was a penalty

EQUITY – equitable estates and interests – easement – implied easement created by Wheeldon v Burrows extended by Aldridge v Wright – effect of transfer of title under the Real Property Act 1900 – simultaneous transfers of title from a single vendor to separate purchasers – whether easement enforceable against successors in title – whether personal equity or right enforceable in personam exists between purchasers – REAL PROPERTY – easements – Torrens Title land – equitable easement – simultaneous transfer of tenements to different parties – whether equitable Wheeldon v Burrows easement can survive transfer to vendor’s successor in title – effect of registration under Real Property Act 1900

ESTOPPEL – reliance – change of position – representation only contributory cause – estoppel established - CONVEYANCING – contract for the sale or other disposition of land – s 54A Conveyancing Act – requirement for writing – written offer signed by party to be charged – oral acceptance – written offer sufficient memorandum - D

CORPORATIONS - reinstatement of registration - application by workers compensation insurer - special considerations - status of matters occurring between deregistration and reinstatement of registration - where statutory demand supposedly served and not complied with during that period - whether presumption of insolvency will arise if registration reinstated - whether court should make order having that effect

Appeal from decision of Local Court - judgment for unpaid School fees in a modest sum - unmeritorious defence and appeal - unjustified allegations of bias - unrealistic allegations of denial of procedural fairness - no error in point of law - need for the limiting of appeals brought to this Court.

SECURITY FOR COSTS - where plaintiff is impecunious and its directors offer to accept personal liability for defendants' costs - whether defendants' conduct is cause of plaintiff's impecuniosity - whether security will stultify litigation - whether directors' offer means that plaintiff should not be ordered to provide security

Application for extension of the limitation period - psychiatric injury arising out of the Melbourne/Voyager collision

FAMILY PROVISION – estate distributed – late application by eligible person – extension of time required – notional estate – special circumstances – lack of prejudice insufficient - D

CRIMINAL LAW AND PROCEDURE - INTERLOCUTORY APPEAL BY CROWN - OFFENDER INDICATES INTENTION TO TRAVERSE PLEA OF GUILTY TO SENTENCING JUDGE - LEAVE TO WITHDRAW PLEA OF GUILTY - ORDER MADE IN ABSENCE OF EVIDENCE - CROWN ENTITLEMENT TO PROCEDURAL REGULARITY

Contract for sale of motor vehicle - alleged misrepresenations - case propounded before Tribunal failed by reason of findings of fact - Plaintiff cannot run a new and different case on appeal.

TORT - liability of manufacturer and retailer of contaminated horse feed - factual issue as to whether feed purchased from retailer - TRADE PRACTICES ACT - whether conduct of retailer constituted misleading or deceptive conduct contrary to s52 - application of sections 74B, 75AD and 75AF to conduct of manufacturer. DAMAGES - method of valuing dead horse - method of valuing damaged horses - mitigation of damage - agistment costs for surviving horses - loss of profits from breeding program - claims for personal injury for nervous shock - aggravated and exemplary damages.

Claim from Voyager collision - Melbourne crewmember - limitation defence - significance of failures by defendant to keep records and make enquiries - evidentiary onus of proof - whether actual prejudice

Family Provision. Application under Family Provision Act by alleged de facto partner. Proceeding dismissed.

Application for extension of the limitation period - psychiatric injury arising out of the Melbourne/Voyager collision

CRIMINAL LAW – appeal – limitation period – whether proceedings statute barred – whether offences proven beyond reasonable doubt – whether offence validly created – CRIMINAL LAW – offence under s 125(1) of the Environmental Planning and Assessment Act 1979 – source of prohibition – construction of s 125(1) – whether proceedings statute barred under s 127 – whether offence was created “by or under” the Act – whether offence was created by a council under the authority of the Act – LOCAL GOVERNMENT LAW – development consent – environmental planning instrument – offence created by Clause 44 of Gosford Planning Scheme Ordinance – tree preservation order

EVIDENCE – witnesses – reliability – appeal against adverse credit finding – role of appellate court – considerations – demeanour – time elapsed between hearing and delivery of judgment - TORTS – negligence – wrongful death – death of spouse – damages – assessment – principles – Compensation to Relatives Act 1897 – domestic, farming and professional services provided by deceased – estimate of time devoted to activities – estimate of services that would have been provided in future - APPEALS – reviewable error – principles – natural justice – whether miscarriage of justice – whether new trial should be ordered – whether new trial would result in different outcome for successful party on appeal

PROPERTY – land – compulsory acquisition – compensation – Land Acquisition (Just Terms Compensation) Act 1991 – part of land retained – determination at first instance by the Land and Environment Court – valuation – valuation principles – relevance of planning controls – determination of compensation on the basis of a planning assumption – other factors affecting valuation – “before” and “after” approach – underlying zoning – access road - PROCEDURE – appeals – error of law – power to order new trial – discretion to remit matter for further determination – principles

Plaintiff’s judgment for personal injury less than $100,000 — defendant unsuccessful in appeal against judgment — offer of compromise by plaintiff — Legal Profession Act 1987, s 198F, limits party’s right to seek indemnity costs order pursuant to rules of court — it does not itself authorise an indemnity costs order — “reasonable” offer defined — general approach by courts to offers of compromise pursuant to the SCR applicable to offers pursuant to UCPR — amount of interest lost on judgment if offer of compromise accepted relevant to whether offer should properly be regarded as a compromise — s 198D(4)(b) prevents order for costs exceeding maximum permitted, but it applies to certificate of assessment of costs filed in court, not to general order made by court that one party pay the other party’s costs but does not specify amount.

Negligence - motor vehicle accident - driver without licence or permit - whether breach of duty - defences of volenti non fit injuria and illegal enterprise raised - contributory negligence and apportionment. Damages - accident in Northern Territory - action in New South Wales - application of Northern Territory statutory scheme for damages. Tetraplegic plaintiff - numerous heads of damages claimed and considered.

Alleged error in point of law - Magistrate finds that Plaintiff was a party to alleged contract - challenge to interlocutory decisions - no application for or grounds for granting leave - no error in point of law.

PRIVATE INTERNATIONAL LAW – Choice of law – Tort – Place of the Tort – Negligence – Where asbestos manufactured in New South Wales by Defendant – Where Plaintiff exposed to asbestos in New Zealand – Tort occurred in New Zealand - PRIVATE INTERNATIONAL LAW – Choice of law – Where law of New Zealand applies – Where Plaintiff prevented from commencing proceedings “in any court in New Zealand” – Plaintiff prevented from commencing proceedings in Australia

COSTS - DE FACTO RELATIONSHIP - Order for costs of first-instance proceedings where result achieved by appellant substantially more favourable than respondent's offer.

Ambit of statutory appeal - reopening of contract for sale of land - order for repayment of moneys - no error

CONTRACTS - offer and acceptance - informal offer of compromise made in writing sought response "as soon as possible in writing by return" - whether offer specified time limit for acceptance - whether acceptance made within time limited by offer - EVIDENCE - admissibility - communications between parties in dispute in connection with attempt to negotiate settlement of dispute - proceeding in which question of making agreement to settle the dispute is in issue - whether exception in such proceedings to rule that evidence not be adduced of such communications applies only to immediate offer to settle and events following it - WORDS AND PHRASES - "by return" - "as soon as possible"

CORPORATIONS - winding up - alleged insolvent transactions - recovery proceedings - pleading in response to defence of lack of reasonable grounds to suspect insolvency - whether knowledge of circumstances of associated company may be pleaded - whether estoppel may arise in relation to result of proceedings involving associated company

CORPORATIONS - winding up - creditor giving assistance, indemnification or protection by which recoveries made by liquidators - whether it should be ordered that such creditor be afforded advantage over others - whether such order may also require application of proceeds of recovery in ways not entailing advantage to such creditor

Application to adduce further evidence in appeal - distinction between fresh evidence and further evidence - special grounds - witness said to be in ill health at time of trial becomes available after bringing of appeal.

CORPORATIONS - external administration - Part 5.3A administrators and liquidators - sale of company's business - alleged duty to "obtain the best possible price" - such duty allegedly owed to company, to creditors and to shareholders - alleged breach of such duty - whether serious question to be tried - balance of convenience considered

BUILDING AND CONSTRUCTION INDUSTRY — Building and Construction Industry Security of Payment Act 1999 — Adjudication — Submissions made for first time in Adjudication Response rejected pursuant to s 22(2)(d) — Whether that failure to consider Adjudicator rendered decision void — Whether submissions as to jurisdiction of Adjudicator under the Act must be considered pursuant to s 22(2)(a) and (b) — Whether failure to consider submission vitiating error in sense explained in Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421. - BUILDING AND CONSTRUCTION INDUSTRY — Building and Construction Industry Security of Payment Act 1999 — Adjudication — Submission that Adjudicator had no jurisdiction under Act to hear payment claim for extension of time — Submission that Adjudicator not entitled to stand in shoes of superintendent under contract — Whether relief should be refused on discretionary grounds — Relevant considerations as to discretion.

Service of summons by post - summons to be served not less than 28 days before return date - whether the time prescribed is a mandatory requirement - whether the requirements may be waived - waiver of procedural requirements - validity of service of summonses - appellants lodged written notices of pleading - effect of non-compliance with a statutory requirement

CRIMINAL LAW - APPEAL AGAINST CONVICTION - murder - joint criminal enterprise - circumstantial case - directions on inferences - directions given by way of example - exact words ‘hypothesis consistent with innocence’ not used - exact words ‘only rational inference’ not used - whether miscarriage of justice resulted from Crown comments on offender’s good character - comments indicating that the jury could place less weight on offender’s good character - CRIMINAL LAW - APPEAL AGAINST SENTENCE - whether error in assessment of culpability - whether offence correctly assessed as being above the mid-range of seriousness - level of involvement in the joint criminal enterprise - whether planning and offence committed in company were aggravating factors

NEGLIGENCE - respondent injured in a motor vehicle accident while riding his bicycle at night - respondent's bicycle did not have lights as required by Australian Road Rule 259 - driver of motor vehicle was attempting a right turn at the time of impact - failure by driver of motor vehicle to take reasonable care - contributory negligence. ND

Police Integrity Commission - investigation of police misconduct - police blood sample ended up in respondent's possession - conduct of public hearing - reporting to Parliament in relation to matters as to which public hearing conducted - proceedings for declaratory relief - whether Commission had eliminated police misconduct - whether could report that respondent had engaged in misconduct - construction of Police Integrity Commission Act 1996 - consideration (by Basten JA) of proper parties to proceedings - and of nature of jurisdictional error and availability of relief.

NEGLIGENCE – duty of care owed by head contractor to subcontractor – employee of subcontractor injured by falling in a penetration in concrete floor – whether the contractor owed a duty to the subcontractor to ensure that its employee was not exposed to unreasonable risk – duty owed by labour hire firm to employee - EVIDENCE – onus of proof – which party had the onus of proving liability of employer for purpose of s151Z(2) of the Workers Compensation Act 1987 (NSW)