Cases and authorities

Building and Construction Industry Security of Payment Act 1999 - Application for summary judgment - Failure of respondent to serve payment schedule within time delimited by s14 - Applicant given election to proceed to obtain judgment or to proceed to adjudication - Having elected to proceed to adjudication, claimant has waived anterior right to obtain judgment - Practice and Procedure - Application to reopen - Principles

Picture identification evidence - Com-Fit images

[COMMERCIAL CONTRACTS] - Application for specific performance of "Support Agreement" between plaintiff and defendant - whether plaintiff's entry into an exclusive agency agreement with a competitor of the defendant amounted to repudiatory conduct in respect of "Support Agreement" between plaintiff and defendant - duty of co-operation conceded - whether implied obligation of good faith - whether defendant entitled to terminate "Support Agreement".

Criminal law - Guilty plea - Deemed supply of drugs - Custodial sentence - Alleged exceptional circumstances - Deterrence - Sentence not manifestly excessive.

Criminal law - Sentence - Failure to take into account discount for plea of guilty.

Assassination of head of criminal organisation by members of that organisation — joint criminal enterprise — Crown case relied principally on evidence of former member of organisation who might reasonably be supposed to have been criminally concerned in that enterprise — witness given undertaking by Attorney General that, provided the evidence he gave was the truth, his evidence would not be used against him. - Bases on which “accomplice” evidence may be unreliable — extent to which judge required to warn jury about matters not within their general experience and understanding — except in relation to identification evidence, judge required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury. - Direction that dangerous to convict on uncorroborated evidence of “accomplice” unnecessary but not prohibited — whether independent support for evidence of “accomplice” may be found in evidence of another “accomplice”. - Evidence of negative identification by Crown witness — no application by Crown prosecutor to cross-examine witness — Crown prosecutor asks jury to disbelieve her evidence — whether leave to cross-examine would have been given — whether accused lost opportunity to call evidence supporting negative identification made — nature of directions concerning negative identification.

STATUTORY INTERPRETATION – Retrospectivity – Statute establishing criminal offence – Whether retrospective changes to offence provision apply to criminal proceedings already commenced – Clear statement principle – Acts Interpretation Act 1901, s8 - CRIMINAL PROCEDURE – Indictments – Duplicity – Anti-Terrorist Legislation – Preparatory acts – Whether necessary to specify “terrorist act” – Whether necessary to specify the harm contemplated – Criminal Code, ss 101.4, 101.5, 101.6 - CRIMINAL PROCEDURE – Indictments – Anti-Terrorist Legislation – Preparatory acts – Failure to identify “essential element” of the offence – Whether indictment cured by statute – Criminal Code, ss 101.4, 101.5, 101.6 – Criminal Procedure Act 1986, s11

CRIMINAL LAW - SENTENCING - Demand money with menaces - special circumstances - manifest excess - lower sentence not warranted

appeal against conviction - whether summing up to the jury was lacking balance and unfair - function of trial judge in directing a jury - permissible limits of the judge's comment on facts - undermining of defence case in summing up - substantial miscarriage of justice - inappropriate to apply proviso - new trial

Criminal Law - sentence - Crown appeal - aggravated dangerous driving occasioning grievous bodily harm - aggravation high range PCA - relevance of depression or reason for consumption of alcohol - custodial sentence required

CONTRACT – Breach of contract – In an arrangement to prop up a company in serious financial difficulties, oral promises were made by two minority shareholders (respondents) to pay $70,000 each to a third shareholder (appellant) who in return would acquire the respondents’ shares without payment, accept their resignation as directors (which he did) and ‘give releases’ to each respondent. Whether agreement was to pay the contribution to the company and not the appellant such that no damage had been established – Whether consideration given by appellant who had discharged company’s debts thereby providing substantial equivalent to a release from guarantees of those debts to bank though only bank could give actual release from guarantee – difference between consideration bargained for and consideration by way of practical benefit or accepting detriment.

BREACH OF CONTRACT – refusal to consent to assignment of lease – remoteness of damage – Hadley v Baxendale – whether remoteness a question of fact or law – s113(2) Administrative Decisions Tribunal Act 1997 - COSTS – “special circumstances” – s88(1) Administrative Decisions Tribunal Act 1997

CORPORATIONS - winding up in insolvency - voluntary administration - liquidator appoints himself, with leave, as administrator - deed of company arrangement executed - whether court should order termination of winding up on liquidator's application - interests of creditors, liquidator, contributories and the public - purported deferral of directors' claims as creditors, by deed and undertakings to court - relevance of objects of Part 5.3A

PROCEDURE - Supreme Court procedure - leave to bring cross-claim out of time - nature of relationship required between cross-claim and subject of the first proceedings - construction of section 22 Civil Procedure Act 2005 - CORPORATIONS - practice and procedure - statutory derivative action under section 237 Corporations Act 2001 - no question of principle - PROCEDURE - Supreme Court procedure - pleading - claim for account of profits - need to plead basis of claim

Decision as to a matter of law arising in proceedings to determine an application for assessment - error of law - alleged failure to deal with submissions - denial of natural justice.

CONTRACTS – where shareholders’ agreement governs retirement of a participant from practice – where supervening oral agreement for retirement – interrelationship of agreements – uncertainty and incompleteness – construction – specific performance.

CORPORATIONS - deregistration and reinstatement - standing of applicant as "person aggrieved" - ASIC's requirement that the company be wound up upon reinstatement - requirement satisfied by shareholders' deed undertaking to resolve to place the company in a members' voluntary winding up.

CORPORATIONS - application under Part 2F.1A for leave to sue on behalf of the company - proposed derivative proceeding against co-shareholder/director and recipient of company property - co-shareholder/director and recipient appear as "interested parties" - whether interested parties should be joined as defendants when only remaining issue is costs - whether plaintiff should have order for costs before resolution of derivative proceeding and before a forthcoming application for the appointment of a provisional liquidator

EQUITY - equitable remedies - specific performance - contract of employment - interlocutory injunction - whether serious question to be tried as to employer's right to specific performance against employee in respect of employment contract

CRIMINAL LAW – Crown Appeal – Exclusion of Evidence – Jurisdiction to hear appeal – Whether exclusion “substantially weakened” Crown case – Exclusion of evidence of cogency or force will “substantially weaken” Crown case – Evidence to be considered on the assumption that it is accepted by the jury – Criminal Appeal Act 1912, s5F(3A) - EVIDENCE – Probative value – Whether reliability or weight relevant to determination of probative value – Rarely relevant – Evidence Act 1995, s 137 - CRIMINAL LAW – Crown Appeal – Whether trial judge erred in excluding evidence on the basis that its probative value outweighed by danger of unfair prejudice – Where trial judge took into account credibility when assessing probative value – Where trial judge failed to identify manner in which prejudice unfair – Evidence Act 1995, s 137

Adjustment of property interests - Costs.

CRIMINAL LAW – Appeal – Against Conviction – Particular offences – Dishonestly obtaining a benefit by deception, s134.2 Criminal Code Act 1995 (Cth). - CRIMINAL LAW – Elements of statutory scheme – Whether question of entitlement one of law or fact – Meaning of “with respect to”. - CRIMINAL LAW – Practice and Procedure – Whether trial judge made a ruling or gave a direction to jury on question of entitlement. - CRIMINAL LAW – Practice and Procedure – Whether directions on dishonesty constituted a miscarriage of justice, s134.1 Criminal Code Act 1995 (Cth). - CRIMINAL LAW – Practice and Procedure – Whether a new trial should be ordered.

COSTS - circumstances justifying an order for indemnity costs - circumstances justifying an order for interest on costs - terms of appropriate order for interest on costs.

CORPORATIONS - winding up - application for order setting aside statutory demand - whether grounds for arguing genuine dispute and offsetting claim sufficiently delineated by supporting affidavit - whether genuine dispute shown - whether offsetting claim shown - relevance of context to requirement as to quantification of offsetting claim

EASEMENTS – creation – by court order under Conveyancing Act 1919 – Section 88K – dead end laneways in middle of city block – no known owner – council and other frontages do not oppose – one easement required for satisfaction of condition of development consent for applicant’s building – no competing interest or activity – order made without provision for compensation

Corporations Act. Application to set aside statutory demand under 459G of Corporations Act. No matter of principle.

Practice and procedure - Interlocutory injunctive relief - Contract - Construction - Suite of claims for relief including claims pursuant to s106 of Industrial Relations Act 1996 (NSW) - Serious case - Balance of convenience - Specific performance - There is no absolute rule that in no circumstances will an equity court refused to grant specific performance or injunctive relief when there is an element of personal service in a contract

CORPORATIONS - winding up - application by liquidator for order under s.486A prohibiting director from leaving Australia - whether such order available in creditors voluntary winding up - whether liquidator has shown "at least a prima facie case" of liability of director - whether liquidator has shown "substantial evidence" of director's intention to leave Australia

Criminal Law - Practice and Procedure - Prosecution appeal from orders of magistrate dismissing information - error of law in taking into account irrelevant matters - error in finding no prima facie case - matter remitted.

Contract - Certainty - Incompleteness - Exclusive Distributorship Agreement - Failure to agree upon product price - Necessary content of exclusive distributorship agreement

Professional Indemnity insurance - Construction of contracts of insurance - Conditions - Exclusionary provisions - Deeming provisions - Multi-layered scheme of insurance put in place by Baulderstone Hornibrook ["BHE"] as Head Contractor for the design and construction of third runway extending into Botany Bay at Kingsford Smith Airport - Reinforced Earth construction - Sand loss from reinforced earth walls resulting in voids and settlement - Costs of carrying out design and construction work to rectify subject walls likely to exceed $60 million - Initial proceedings brought by Sydney Airports Corporation ["SACL"] against BHE - Initial proceedings settled in the absence of acceptance [by upper lay insurers] that policies responded - Reasonableness of settlement of initial proceedings - Identification of the substance of claim made by SACL - Present proceedings commenced by BHE against insurers [including upper layer insurers] seeking declarations of entitlement to indemnity and associated relief - Exclusion providing that policy would not indemnify in respect of claims made against insured arising out of construction work performed involving the means, methods, techniques, sequences, procedures and use of equipment - Primary questions of fact as to whether excessive sand loss caused by reason of design defects or construction work - Principles of construction - Sundry questions of proper construction and nature of policy provisions - Construction issues including meaning of phrase "arising out of" - Identification of which are "insuring clauses" - Rectification of contracts of insurance - Claims to rectify policies including to change retroactive date - Issues concerning pre-conditions - Notification issues - Consideration of what circumstances notified - Consideration of sundry exclusion clauses - Proper construction of word "claim" when used in an insurance policy - Whether one claim or two claims - Whether any breach of professional duty by BHE giving rise to SACL's claim committed in the course of BHE itself conducting one of defined professional activities - Consideration of deeming provisions - Implied terms - Exclusion in respect of claims for any legal liability imposed upon insured pursuant to law of contract but only when such legal liability would not have been imposed upon pursuant to law of tort - Exclusion providing that policy would not indemnify in respect of claims made which relate to any contractual or other duty or obligation assumed by insured not assumed in the normal conduct of the insurer's profession as defined - Whether insurers breached obligations of utmost good faith inter alia by failing to investigate promptly - Consideration of source and content of duty of good faith in context of exercise of discretion under an insurance policy - Consideration of delay generally - Consideration of delay by insurer in the context of a proposed settlement - Whether BHE breached its obligations of good faith owed to insurers - Rectification works - Quantum - Waiver of legal professional privilege

Role of costs assessor - matters such as validity of the costs order and a breach of a Bar regulation do not fall within his or her task - no matter of law.

ADMINISTRATIVE LAW [22]- Jurisdictional error- Statutory adjudicator- Error in wrongly determining contracting parties does not vitiate decision. EQUITY [20]- Equitable assignment- Necessity for plain words eliciting clear intention- Equitable assignment of development property does not alter the parties to the contract concerning that property- Statutory adjudicator cannot consider questions of equity.

CRIMINAL LAW - Crown appeal against sentence - supply of a prohibited drug - heroin - plea of guilty - whether an ongoing supply or trafficking of drugs - application of principles regarding exceptional cases and a non-custodial sentence - whether appropriate to ameliorate sentence due to impact of full-time sentence on children - whether sentence manifestly inadequate having regard to criminality - delay in lodging of Crown appeal

CRIMINAL LAW AND PROCEDURE - sentence - drug trafficking - parity principle - severity of sentence compared with sentences imposed on co-offenders - whether lesser criminality in importing lesser amount of narcotics - sentencing judge erred in failing to differentiate between offenders on quantity. CRIMINAL LAW - appeal - severity of sentence - drug trafficking - justifiable sense of grievance.

CRIMINAL LAW - conspiracy to import a commercial quantity of cocaine - s 128 certificate - admissions - failure to adequately sum up defence case - unreasonable verdict - proviso - application of the "this jury" test - whether miscarriage of justice

CONTRACT – interpretation of contract for sale of land – contract permitted certain variations envisaging council imposing conditions on subdivision – vendor sought to make variations to contract – purchaser resisted variations – whether variations permitted by contract – whether either party unable or unwilling to perform contract – whether either party liable for interest for period during planned completion and actual completion

NEGLIGENCE – Employer’s duty of care – Duty to provide safe system of work – Extends to duty to establish, maintain and enforce safe system - NEGLIGENCE – Employer’s duty of care – Duty to provide safe system of work – Duty to provide adequate instructions – Lifting work – Where employees expected to maintain “pick rate” – Whether encouraged unsafe lifting techniques – Whether ongoing instruction necessary - NEGLIGENCE – Employer’s duty of care – Duty to provide safe system of work – Duty to provide adequate instructions – Lifting work – Where storage warehouse configuration rendered instructed safe lifting techniques impracticable – Not safe system - NEGLIGENCE – Employer’s duty of care – Duty to provide safe system of work – Duty to provide adequate instructions – Use of instructional video – Where employee from non-English-speaking background (ND)

STATUTORY INTERPRETATION – Criminal Assets Recovery Act 1990 (NSW) – consideration of statutory scheme – restraining order made under s10 – power to make ancillary orders under s12 – whether power under s12 extends to reconsideration of the basis of the restraining order – consideration of the ability to apply for exclusion order under s25

Family Provision. Claim by adult daughters who were left the residue of the estate equally. No matter of principle. Order for adjustment of shares taken by beneficiaries and reduction of the amount of pecuniary legacies to other relatives.

INTELLECTUAL PROPERTY [113]- Confidential information- Gaming machine tester- Using information to obtain payouts from machine- Employer entitled to injunctions and restitution of payouts.

REAL PROPERTY – strata and related titles and occupancy – charge given by individual lot holders over their lots – nature of interest of lot holder in common property – whether charge extends to lot holders interest in common property – CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – caveats against dealings – application for extension of caveat – whether to be considered as analogous to application for interlocutory injunction, or as analogous to application for final injunction – appropriate form of order for extension of caveat

Criminal law - Murder - Standard non-parole period - Intent

Succession. Family Provision. Claim by widower aged 84. Financial and material circumstances of Plaintiff. No other eligible persons. Competing claim of First Defendant. Will gave to Plaintiff life estate in matrimonial home. Inevitable that that residence must be sold, if only to meet costs of the present proceedings. Essential need of Plaintiff is for security and flexibility in accommodation.

CONTRACT OF LOAN - no written loan agreement - contracting parties - mistake as to identity - whether monies paid to a company or its owners personally - intention of parties - whether mistake fundamental - whether negligent misrepresentation - whether breach of warranty - claim for monies had and received - appeal dismissed

Costs - practice - stay - shared costs - success of one of two jointly represented co-defendants - leave to file Further Amended Statement of Claim - partial success on appeal and costs - stay of proceedings pending further appeal refused

Tenancy at will arising out of ineffective oral agreement for lease for three years plus option of three years - effect of nil payment of rent - evidence showing occupation - effect of option under s 23D of the Conveyancing Act - construction of provision of oral agreement relating to cost of fit out and furnishing - whether suitable as a term of lease at will created by law.

Unrepresented litigant - assessor receives statements served out of time and allows amendment of process - role of the court where a party is unrepresented - challenges to exercises of discretion - no denial of natural justice.