Cases and authorities

CIVIL DAMAGES - gratuitous bailment - breach of contract - obligations of a bailee - whether took care of goods to relevant standard of care - whether there was a failure to return the goods - art collection - partial sale of art collection at auction - sale at below reserve prices

Appeal brought out of time - from decision on misconceived application - no evidence to explain delay.

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – extension of time – designation of notional estate – failure by deceased to sever joint tenancy – whether valuable consideration given for failure to sever the joint tenancy – whether section 28(5)(c) satisfied when proceeds of sale of property which had been held as joint tenants is held by solicitors on trust to abide the result of proceedings – “other special circumstances” within section 28(5)(d) – TRUSTS – resulting trusts arising from contribution to purchase price – constructive trust arising from joint enterprise which terminates prematurely without fault on anyone’s part – CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – caveats against dealings – caveat claiming an interest under the Family Provision Act

APPLICATION REFERRED FOR DETERMINATION - application for admission made to the Legal Practitioner's Admission Board - disbarment in a foreign jurisdiction - disciplinary history in foreign jurisdiction - recent conduct - candour - disclosure - not a "fit and proper person" to be admitted as a legal practitioner

Joint venture arrangement - plaintiff as project manager/builder - property purchased and registered only in defendant's name - plaintiff to provide skill and supervision - defendant to finance development - alleged agreement - no profit margin on costs but agreement to equally share profits on sale - circumstances of relationship consistent with joint venture partnership - suggestive of a relationship other than that of mere owner/builder - plaintiff possessed of a sufficient interest in the developed property with a right to have it sold and the proceeds divided.

Contract for development of property - declaratory relief - onus - construction - "all reasonable endeavours" - express obligation of "good faith" - material breach - notice provisions - whether validly exercised - whether breaches curable - whether "but for" test applicable - reliance on inability caused by party's own breach - whether notice that Conditions Subsequent could not be satisfied should have been sent - materiality of breaches

CORPORATIONS – Winding up – Special purpose liquidator appointed to investigate cancellation of renounceable rights issue – Application to vary terms of special purpose liquidator’s appointment - Whether special purpose liquidator should enquire into matters expected to be determined in other proceedings – Where delay in other proceedings raises the prospect that proceedings which may emanate from special purpose liquidator’s investigation may be statute-barred – Where other proceedings may not in fact determine all relevant issues – Costs likely to attend variation of terms of special purpose liquidator’s appointment – Application granted.

NEGLIGENCE - DAMAGES - hang gliding accident - collision with pedestrian - whether club or association liable - whether council liable because of responsibility to minimise risk - past economic loss - future economic loss - subsequent injury - non-economic loss - deduction for degenerative change - loss of business - adjustments to be made for industry upturn - indemnity costs - arbitrator's award - costs - Sanderson orders

Freedom of information - exempt documents - Legal professional privilege - advice given in governmental context - advice including extraneous matter - must be given in relevant legal context to attract privilege - importance of retainer - Internal working documents - whether disclosure in the public interest - balancing exercise - disclosure of draft reports - operation of s59A of the Freedom of Information Act 1989 - Confidential material exemption - whether error of law when Appeal Panel found no express or implied obligation of confidentiality - Secrecy provisions exemption - whether available where disclosure of documents falls within qualification, exception or excuse in relevant secrecy provision.

COSTS - TRIAL - Calderbank offer more favourable for appellant than ultimate outcome - Offer submitted on morning of first day of trial and open for acceptance for 2-3 hours - Whether appellant acted unreasonably in rejecting offer - HELD - No

LEGAL PRACTITIONERS - costs - application for costs order against solicitor - s 198M(1) of the Legal Profession Act 1987 (NSW) - the effect of a solicitor signing a certificate under s 198L(2) of the Legal Profession Act - discussion of whether proceedings had "reasonable prospects of success" - Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 applied. ND

CRIMINAL LAW – CROWN APPEAL – guilty plea – offence of knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants – whether sentence manifestly inadequate

CORPORATIONS - creditors' voluntary winding up - application for leave to continue proceeding against company in liquidation - plaintiff seeks delivery up of its electrical goods by company - company claims entitlement to charges and asserts lien over goods - plaintiff pays money into trust, pursuant to interlocutory orders, to obtain delivery of some goods - parties in dispute over amount of plaintiff's indebtedness and existence of lien, and ownership of trust fund - leave granted

Criminal Law - fresh indictment - duplicity

Leave to appeal - inadvertent error - matter remitted back to panel for the issue of a replacement certificate - non-compliance with disclosure provisions - costs of the costs assessment.

PROCEDURE - Supreme Court Procedure - Registrar reviews - Principles for review - Admissibility of evidence on review - Security for costs - Principles - Whether Registrar correct in concluding that jurisidictional issues of reason to believe plaintiff corporation would be unable to pay defendant's costs if ordered to do so, met - Whether unaudited financial statements should be given little weight

Evidence Act (NSW) - s 128(5) - interests of justice: do they require witness to give evidence? Ant-Terrorism Act 1997 (Pakistan) - unfairness to person accused of terrorism offence in pending trial

Sentence appeal - manifestly excessive - parity of sentence - no legitimate sense of grievance.

Application to quash indictment - no jurisdiction in State court to review committal proceedings brought by Commonwealth - source of Commonwealth Director of Public Prosecution's power to prosecute federal offences in State courts.

CRIMINAL LAW – SENTENCE – guilty pleas - supplying a prohibited drug on an ongoing basis - supplying a prohibited drug - goods in custody (for applicant Brown only) – both applicants assessed as suitable for Magistrates Early Referral Into Treatment (MERIT) programme - common ground of appeal that sentencing judge erred in not giving consideration to whether the execution of any sentences of imprisonment should be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act

PRACTICE – Unrepresented litigants – Procedural fairness – Duties of trial judges – Judges to ensure litigant understands what is happening at the trial – No duty to advise litigant how to conduct case. - PRACTICE – Directions – Pre-trial directions as to filing of process and affidavits – Mandatory nature of. - EVIDENCE – Experts – Reports – Must be inherently explicable. - APPEAL AND NEW TRIAL – Whether fresh evidence on appeal justifying new trial – Supreme Court Act 1970, s 75A. - LEGAL PRACTITIONERS – “Unbundling” of legal services – Partition of advocacy between lawyer and client – Whether represented litigant may appear as advocate. (D)

NEGLIGENCE – Motor vehicle accidents – Damages – Economic and non-economic loss – Medical assessor’s certificates under motor accidents compensation legislation – Conclusivity and evidentiary effect of – Conclusivity extends only to matters certified – Non-certified matters have evidentiary value of a non-conclusive nature – No guide to assessment of quantum of damages – Motor Accidents Compensation Act 1999, ss 57-65, 131-135. (D)

COSTS - self-represented litigant - professional costs - Chorley exception - recovery by solicitor litigant - solicitor unemployed when litigation takes place. (ND)

NEGLIGENCE – Principal’s duty of care to independent contractor – Corporate Principal – Principal liable through its servants and agents – Where servant not in the employ of principal at time of negligent act – No liability in principal. (ND)

APPEAL FROM DECISION OF COSTS ASSESSOR - legal costs - Local Court proceedings - small amount claimed - agreement to pay costs thrown away - whether insurance policy can respond to claim - whether unbilled costs should be deducted from the claim - agreement as to sum redetermined - costs

COSTS - Security for costs - impecunious corporate plaintiff - relevant discretionary considerations - where principal of corporation does not offer to make own assets amenable to order and does not prove personal inability to do so – security in stages

Practice and Procedure - Building and Construction Industry Security of Payment Act 1999 (NSW) - Moneys paid into Court as security - Interlocutory position pending appeal

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - registered proprietor lodges caveat against his own land - person with judgment against registered proprietor seeks to have Sheriff sell land pursuant to exection writ - whether caveat to be removed - caveator has disappeared - whether appropriate to dispense with service - orders also sought by judgment creditor, about manner of dealing with any damages and interest recovered pursuant to execution against the land - whether any need for notification to registered proprietor of those orders

ADMINISTRATIVE LAW - Parole - Orders in the nature of prerogative relief granted - public interest - intersts of community - benefit from further programs - all available programs completed - public interest in respect of jury verdict - adapt to community life not same as most optimum basis - finding in absence of evidence - error of law

INJUNCTIONS - Interlocutory injunctions - Mareva injunction - reconsideration and variation - where variation sought to provide for legal costs of defence – where order binds only part of defendant’s assets – whether defendant bears onus of showing that proposed expenditure is reasonable and that there are no other available resources – where other resources have been expended by defendant for the benefit of its associates – where application made soon after an earlier unsuccessful application.

CRIMINAL ASSETS RECOVERY - Immunity of witness to criminal charges - Immunity not to run to proceedings for recovery - Principles of construction - Perjury and Perverting Course of Justice - Fraud - Immunity from charge not affect existence of serious crime related criminal activity

Leave to appeal from decisions on practice and procedure in the Local Court - misconception by litigants in person as to the role of further and better particulars, on the entitlement to bring cross-claims and the amendment of pleadings - correct decisions reached by Magistrate - no entitlement to relief.

TORT - Economic Torts - interference with contractual rights - unlawful interference with economic interests - unconscionability under s.51AA of Trade Practices Act - necessity to show breach of contract - necessity to prove damage - existence of tort unlawful interference with economic interests - justification - no special disadvantage.

CORPORATIONS – liquidation - approval of liquidator's contracts - litigation funding agreement - litigation funder's liability capped at stated amounts - appropriate evidence

APPLICATION FOR AN ADJOURNMENT - appeal from decision of costs assessor - small sum in issue - admission of fresh evidence on redetermination - adjournment sought to obtain correspondence

REAL PROPERTY – Caveats – Plaintiff exercised option for renewal of lease and lodged caveat to protect its rights and interests under the lease – Second defendant, as mortgagee in possession, exercised power of sale over subject land – Second defendant entered into contract with third party for sale of subject land – Application by plaintiff for order to extend operation of caveat – Section 74K(2) of the Real Property Act 1900 (NSW) – Application granted.

Special levy under s76(4) of Strata Schemes Management Act - Service of notice of imposition of levy under s78 Strata Schemes Management Act - Indemnity costs

Succession. Family Provision. Claim by adult son. Financial and material circumstances of Plaintiff. Absence of contact between Plaintiff and Deceased for most of Plaintiff's life. Deceased abdicated all responsibilities for Plaintiff from time when Plaintiff was aged about 8. Whether Plaintiff has been left without adequate provision for his proper maintenance. Competing claims of other beneficiaries.

Progress payment claim for variations - no express provision with respect to reference date - no payment schedule - dispute as to month in which the construction work was first carried out - no error in point of law.

Contract - Construction - Provision that terms of one agreement to be deemed to be incorporated into another agreement - Court looks to objectively ascertain from the words of the document being construed, what were clearly appropriate changes to be made to designated clauses to the extent necessary to ensure the necessary incorporation - Uncertainty - Severance

PRACTICE AND PROCEDURE – Defendant lessors restrained from interfering with plaintiffs’ possession of leased premises – Application by existing undertaking and interlocutory consent order by defendants to be released from undertaking and for consent orders to be discharged –Whether material change of circumstances had rendered continuance of undertaking or orders unjust – Whether serious question to be tried that plaintiffs entitled to keep possession of leased premises until final hearing - LANDLORD & TENANT – Options for renewal of leases – Construction of rental clause - Plaintiffs in arrears in paying rent – Whether serious question to be tried that failure to pay rent rendered exercise of option invalid – Section 133E of Conveyancing Act 1919 (NSW) - LANDLORD & TENANT – Options for renewal of leases – Time for proper exercise of options for renewal of leases – Lease stipulated that option be exercised by a Saturday – Whether serious question to be tried that plaintiffs could exercise option on following Monday – Section 170 of Conveyancing Act 1919 (NSW) – Sections 3 and 36 of Interpretation Act 1987 (NSW) – Whether lease an “instrument made under an Act” - ESTOPPEL – Estoppel by representation – Defendants failed to expressly reject plaintiffs’ purported exercise of option to renew lease – Defendants continued to collect rent – Whether serious question to be tried that defendants estopped from denying validity of exercise of option - LANDLORD & TENANT – Surrender – Plaintiffs vacated lease premises – Whether serious question to be tried that plaintiffs had not surrendered lease - LANDLORD & TENANT – Options for renewal of leases – Plaintiffs breached renewed lease (if it was renewed) – Relief against forfeiture – Whether serious question to be tried that plaintiffs would be entitled to relief against forfeiture – Whether plaintiffs could retain interlocutory injunctive relief without undertaking to pay outstanding rent - LANDLORD & TENANT – Election between re-entry and curial claim for possession – Whether defendants precluded from obtaining possession of leased premises by re-entry, by having earlier filed cross-claim for possession – Argyle Art Centre Pty Ltd v Argyle Bond and Free Stores Pty Ltd [1976] 1 NSWLR 377 considered.

Criminal Law - Sentencing - Applicants convicted after trial of two offences of defrauding the tax revenue of the Commonwealth under provisions of the Crimes Act (Cth) - provisions repealed and new offences created under the Criminal Code (Cth) with reduced maximum penalties - Leave to appeal - whether the maximum penalty for the Crimes Act offences reduced - relevance of payment of penalty tax prior to sentencing - whether partially cumulative sentences appropriate where one conspiracy alleged - whether sentences manifestly excessive - Crown Appeal - whether the creation of new offences with reduced penalties relevant - whether sentences manifestly inadequate for offence within worst category.

CRIMINAL LAW – SENTENCE – guilty plea – firing a firearm in a manner likely to endanger the safety of a specified person – using a firearm with intent to commit an indictable offence – maliciously damaging a motor vehicle – possessing a firearm without being authorised to do so – air rifle – whether the sentencing judge failed to give effect to the finding of special circumstances – whether sentencing judge failed to take into account totality – whether sentence manifestly excessive

Application for evidence to be taken by audiovisual link - criminal trial

Criminal law - application for discharge of a jury - pre-trial publicity - broadcast prejudicial to the accused