Cases and authorities

Appeal decision of Local Court Magistrate - s 9 Contracts Review Act, Cross Claim, sufficiency of reasons

CORPORATIONS – voluntary administration – Deed of Company Arrangement – termination of – construction of section 445D(1) Corporations Act 2001 – circumstances of application of section 445D(1)(a) and (b) – interrelationship of section 445D(1)(a) and (b) – meaning of “false or misleading” – meaning of “material” – role of informal seeking of views of creditors in deciding materiality – whether failure to call meeting of creditors in circumstances when Deed required it to be called is a material contravention of the Deed – whether winding up proceedings being on foot prevents Deed Administrator from calling meeting of creditors to consider placing company into liquidation – whether a Deed can provide for the de facto winding up of the company – in what circumstances payment of different amounts to creditors bound by a Deed is permissible – role of good faith between creditors in operation of Deed - section 445D(1)(e) does not apply to action contrary to the Deed – relevance of a Deed allowing an insolvent company to continue to trade – relevance of substantial departure in practice from proposal put to creditors at time Deed was adopted – operation of discretion to set aside Deed – relevance of interests of creditors – relevance of public interest – public interest factors which can be taken into account – significance of provision of false or misleading information – whether termination to be affected on application by person said to be a disputed creditor – procedure to achieve winding up by the Court when Deed terminated – BANKRUPTCY – arrangements with creditors without sequestration – composition under the general law – whether, and in what circumstances, special benefits can be provided to one creditor bound by a composition – juristic basis of prohibition on one creditor bound by a composition receiving a special benefit – role of consideration in compositions – CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – consideration – role of consideration in composition between debtor and creditors – juristic basis on which Court prevents one creditor bound by a composition from receiving a special benefit – PROCEDURE – contempt, attachment and sequestration – action out of Court frustrating litigation in Court – when a contempt

Costs - whether orders in final judgment should be varied under the slip rule - whether court failed to 'invite' the parties to make a submission on costs - effect of failure by counsel to address on costs at the hearing

Legal profession - cap on costs recoverable "in connection with" personal injury damages claims - whether cap in Legal Profession Act 1987, s198D extends to appeal costs. (D)

BUILDING CONTRACTS – unlicensed builder – contract and restitution alternative and inconsistent remedies – judgment for proprietor in contract – cause of action estoppel against builder’s claim in restitution - RES JUDICATA – cause of action estoppel – contract and restitution alternative and inconsistent remedies – judgment for defendant in contract – cause of action estoppel against claim in restitution - RES JUDICATA – Anshun estoppel – later proceedings based on same matrix of fact barred - RESTITUTION – building work – claims in contract and restitution – alternative and inconsistent remedies - D

Motor Accidents Compensation Act - injury must occur at a particular time as distinct from arise out of nature and conditions of work - whether in finding adversely to plaintiff judge failed to appreciate case of aggravation of pre-existing degenerative condition - whether finding erroneous. D

PROCEDURE - contempt - adjournment of contempt proceedings - whether appropriate to impose terms - held inappropriate.

claim in defamation - Defamation Act 1974 - fifteen defendants - three publications - defamatory imputations found by jury to have been conveyed - plaintiff absented himself from hearing - defences - justification - imputations substantially true - imputations relate to matters of public interest - contextual justification - mitigation of damages - no evidence on quantification of damages - abandonment of proceedings - publication on internet of related material - relevance of proceedings against other defendants - common publication - verdict for the defendants - statement of claim dismissed - alternatively, nominal damages only

Defendant seeks gross sum costs orders in the sum of $62,639,101.17-Plaintiffs motion to have determined separate question as to whether the costs of the defendant ordered to be paid by the plaintiff should be paid as a gross sum instead of being otherwise regularly assessed-Principles applicable to whether the court should make separate question orders-Principles concerning the making of gross sum costs orders-Overriding purpose rule

CONTEMPT - BREACH OF INTERLOCUTORY RESTRAINING ORDER - LARGE MEDIA ORGANIZATION - PUBLICATION IN BREACH OF ORDER BY FUNCTIONARIES UNAWARE OF IT - PROMPT ACTION TO REMEDY PROCEDURAL GUIDELINES TO AVOID REPETITION - IMMEDIATE APOLOGY AND ACKNOWLEDGEMENT OF BREACH - ACCEPTANCE OF APOLOGY AND PAYMENT OF COSTS ADEQUATE SANCTION

Succession. - Family Provision. - Claims by two adult daughters. - Financial and material circumstances of Plaintiffs. - Asserted needs of Plaintiffs. - Whether each Plaintiff has been left without adequate provision for her maintenance. - Competing claim of Defendant. - Defendant was chief chosen object of testamentary beneficence of Deceased. - Statements by Deceased in her will concerning benefits given to Defendant. - Plaintiffs must establish their claims upon their own merits. - Claims of Plaintiffs cannot be established, or enhanced, by proving that Defendant, had he been an applicant for provision, might have been defeated on account of conduct disentitling.

PROCEDURE - Discovery and interrogatories - subpoenas and notices to produce - setting aside - relevance.

FAMILY LAW & CHILD WELFARE [8]- Validity of marriage- Jurisdiction- Wife deceased- Proceedings not between parties to marriage- Effect of Proclamation limiting State jurisdiction in matrimonial causes- Whether State court has jurisdiction to declare marriage invalid- Where a party to a marriage is deceased State court has jurisdiction to declare marriage invalid. FAMILY LAW & CHILD WELFARE [84]- Marriage- Capacity to give consent- Wife suffered stroke prior to ceremony- Cognitive function substantially diminished- Whether wife capable of appreciating responsibilities of marriage contract.

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Whether land purchased in the name of one party was the subject of his individual investment or the subject of a joint venture between him and two other parties - No principles involved

Sentence - Murder - Joint criminal enterprise - Resentencing after successful appeal and retrial

CONTRACTS [45]- Deed- Promise by father to mother that he would name unborn child in will- Will not made- Whether deed sham- Whether requisite common intention between father and mother that deed does not confer benefits it appeared to. CONTRACTS [45]- Deed- Testamentary contract between mother and father- Promise to name daughter as beneficiary in father's will- Daughter not party to deed and en ventre sa mere at time delivered- Whether daughter able to sue on deed- Discussion on application of Conveyancing Act, s 36C. FAMILY LAW & CHILD WELFARE [132]- Paternity- Mother in relationship with man for three years prior to child's birth- Mother and child assert man is father- Mother married to another man at time of child's birth- Supposed father had close relationship with child for some time after birth- Supposed father acknowledged child as such in statutory declaration and deed- Child and other man have incompatible blood types- Whether child is supposed father's daughter. SUCCESSION [301]- Testatmentary contract- Promise to name daughter as beneficiary in father's will- Will not made- Daughter has claim for breach- Whether contract void as against Family Provision Act- Whether claim subject to operation of Family Provison Act- Discussion of nature of testamentary contracts. SUCCESSION [315]- Family provision- Claim by surviving long-term de facto spouse- Limited funds in estate- Competing claims- Deceased has primary duty to long-term surviving spouse- Spouse's claim has priority in circumstances. TRUSTS [115]- Third party beneficiary rule- Deed contained promise that third party be named in promisor's will- Whether sufficient intent by promisee that she be trustee of promise for third party's benefit.

Conviction and sentence appeals - child sexual assault - adequacy of Murray direction - direction on contextual or relationship evidence inadvertently raising tendency - no real risk of misuse of that evidence by jury - dates not of the essence of the offence - conduct of trial by counsel

Criminal law - failure to give notice of alibi in prescribed period - leave to introduce alibi evidence refused - whether trial miscarried - whether verdict of jury reasonable - whether trial miscarried through intervention of trial judge and restriction of cross examination.

NEGLIGENCE - Road authority's duty of care to pedestrians - Whether such duty is non-delegable when road authority undertakes work involving risk to road users - DAMAGES - Award of buffer - Whether available under s.13 of the Civil Liability Act - Whether primary judge's reasons adequate.

CORPORATIONS – DIRECTORS – ACCESS TO RECORDS – Terms upon which a director is to be given access to company records for inspection.

PROCEDURE - joinder of parties - amendment - addition of new defendants - where proceedings to be dismissed against original defendant after final hearing - where relitigation of all issues would be required - joinder refused.

CORPORATIONS - civil penalty proceedings - declarations of contravention made - appeal initiated - whether hearing on penalty should be stayed pending determination of appeal - PROCEDURE - proceedings incomplete - declarations of contravention but no final orders based thereon - application for stay - analogy with criminal proceeding where conviction but no sentence

Administrative law - Workplace Injury Management and Workers Compensation Act 1998 s 329 - Review of Registrar's decision to refer matter for further assessment.

Administrative law - Workplace Injury Management and Workers Compensation Act 1998 - Review of decision of Appeal Panel

DEFAMATION – Action for – Pleading – Statement of Claim – Multiple publications – Defendant's strike in application – Separate and related television programs – whether pleading separate causes of action unreasonable – whether plaintiff should plead the broadcasts as one publication - UCPR r 14.28

CHARITIES - Charitable Gifts and Trusts - Gift of residue by will to a charitable institution and two non-existent institutions, the Cancer Hospital in Sydney and the Tuberculosis Hospital in Sydney - Whether leave to bring the proceedings should be granted under the Charitable Trusts Act 1993, s 6(2A) - Whether the first gift a misdescription of the New South Wales State Cancer Council benefited by a legacy in an earlier will - Whether the will displayed a particular charitable intentions and the gifts lapsed or a general charitable intention to be administered by scheme cy-pres - Whether the Charitable Trust Act 1993, s 9(1) applies to gifts to non-existent institutions - Whether schemes cy-pres should be settled

CONVEYANCING - whether alienation of property with intent to defraud creditors - appropriate form of orders

PROCEDURE – Supreme Court procedure – proceedings where deceased person’s estate has an interest, but is not represented – circumstances when appropriate to proceed in absence of any legal personal representative – EQUITY – equitable charges and liens – purchaser’s lien for amounts paid towards purchase price of land – when available – EQUITY – general principles and maxims of equity – equity regards as done that which ought to be done – terms contract for sale of land not completed in vendor’s lifetime – no legal personal representative of vendor appointed – beneficiaries uncontactable – strenuous efforts by purchaser to identify legal personal representative and contact beneficiaries unsuccessful – land sold for payment of rates – entitlement of purchaser to interest in proceeds of sale of land – SUCCESSION – EXECUTORS AND ADMINISTRATORS – proceedings concerning property in which deceased estate has an interest – no legal personal representative appointed – when such proceedings may be heard notwithstanding absence of legal personal representative – enforcement of contract for sale of land entered by deceased against estate assets – operation of doctrine of conversion in deceased estates

CIVIL LAW – restaurant review – claim in defamation failed – application by defendants to strike out or dismiss claims in – negligence – contract – injurious falsehood – particulars of falsity – particulars of malice

Melbourne/Voyager collision - personal injuries - post traumatic stress disorder

CORPORATIONS - Winding-up - Proceedings brought and defended by company in liquidation - Application by successful litigants that costs order be made against liquidator personally - No allegation that liquidators acted improperly - Application motivated by apprehension that applicants will rank with unsecured creditors in respect of the costs order - Discussion of court's jurisdiction to make a personal costs order against liquidator absent any misconduct and where liquidator was not a party to the proceedings - Held that no jurisdiction to make orders against liquidators personally - Costs awarded against company in liquidation where proceedings are properly brought or defended by liquidators are expenses of the winding-up and rank ahead of other claims - Application dismissed.

PROCEDURE [657] - Costs - Taxation - Assessment in lieu of taxation - Power to order gross sum - Circumstances in which order for gross sum made.

CRIMINAL LAW AND PROCEDURE - SENTENCE - MULTIPLE OFFENCES OF ARMED ROBBERY - STRUCTURE OF SENTENCE CRITICISED BY APPELLANT BUT EFFECTIVE TERM WELL WITHIN DISCRETIONARY RANGE - NO INTERVENTION CALLED FOR

CRIMINAL LAW AND PROCEDURE - SENTENCE - MULTIPLE OFFENCES - ERRONEOUS DATE IN DOCUMENTATION SUPPLIED TO JUDGE - CONSEQUENT REDUCED PROPORTION OF PAROLE TO CUSTODIAL PERIOD - ADJUSTMENT APPROPRIATE - OTHERWISE NO SPECIAL MATTER OF PRINCIPLE

REAL PROPERTY - Co-ownership - Presumption of resulting trust - Whether presumption rebutted - Equitable accounting - Whether arguable errors justifying grant of leave to appeal

Legal practitioners – discipline – professional misconduct - Deliberate conduct involving the proffering of false documents to Family Court – deliberate attempt to mislead Law Society – Appeal Panel also found that appellant had deliberately attempted to mislead Tribunal at first instance by giving false evidence - impact of appellant’s subjective circumstances in contributing to her poor performance as a witness - Principle in Briginshaw v Briginshaw not applicable to decision whether striking-off was an appropriate response to the findings of misconduct - Procedural fairness - conduct of case before Appeal Panel -Grounds of Information not amended to raise question that appellant deliberately gave false evidence before Tribunal at first instance - matter not raised before Appeal Panel (ND)

PROCEDURE – costs – of interlocutory motion when proceedings for purpose of which motion was brought are not decided, but motion has been decided – costs of proceedings when merits of case not decided – form of costs order when there is a high likelihood, but not a certainty, that proceedings will not need to be decided

CONSTRUCTIONS - general contractual principles - construction and interpretation of contracts - contract provided a minimum amount of scrap but not maximum - intention of parties - HELD - defendant intended to accept as much scrap as given - DAMAGES not adequate - specific performance granted

Strike out application - Pt 15 r 26 Supreme Court Rules - duty of care owed by casino to patron - known weaknesses of patron - whether deliberate conduct constitutes negligence - need for internal consistency within statement of claim - vicarious liability.

CORPORATIONS [96]- Administrator's remuneration- Application for increase above that approved by creditors- Discussion of appropriate method used to calculate remuneration. CORPORATIONS [319]- Appointment of administrator- Leave of court required- Not sought- Defect in procedure- General and specific provisions of Corporations Act provide cure- Whether provision should be applied- Whether curing order can be made nunc pro tunc.

PROCEDURE [567] - Costs - Departing from the general rule - Conduct of parties - Demand, offer and consent - Failure to ask for consent before process issued.

Hotel restaurant available for lease - plaintiff began conducting restaurant - whether concluded agreement for twelve months lease - claim of agreement to be inferred from conduct - not to be inferred - nor estoppel against denying agreement - whether loss suffered by misleading or deceptive or unconscionable conduct in relation to entry into a twelve months lease - no reliance proved - decion turns on the facts. ND

TORT - negligence - duty of care – experienced worker contracted to third party by labour hire firm – whether breach of duty – Contributory negligence – whether worker’s conduct amounted to a departure from the standard of care of a reasonable man. - CONTRIBUTION - joint or several tortfeasors - third party and employer of injured worker - amendments to Workers Compensation Act 1987 limiting damages recoverable from employer - injury before amendments – worker’s proceedings brought against third party after amendments – third party cross-claims against employer of injured worker seeking to recover contribution – injured worker unable to recover damages against employer - whether contribution pursuant to s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 available - whether s 151Z(2) of Workers Compensation Act precludes contribution (D)

NEGLIGENCE – Council's non-delegable duty to take reasonable care that the exercise of its powers to carry out road works did not create a foreseeable risk of harm to a class of persons which included the plaintiff - reconstruction works commissioned by Council created an uneven section of footpath upon which a pedestrian tripped and fell - whether Council in breach of duty of care – COURTS AND JUDGES – statement of reasons for decisions – obligation to expose reasons for resolving a point critical to the contest between the parties - CONTRIBUTORY NEGLIGENCE – whether primary judge erred in finding pedestrian guilty of contributory negligence – inadvertence – DAMAGES – whether primary judge's reasons for assessing damages inadequate (D)

APPEAL – leave to appeal – NEGLIGENCE - Pedestrian injured when she tripped and fell on an uneven section of footpath in shopping mall – whether primary judge placed excessive emphasis on the issue of obviousness of risk in finding Council had not breached its duty of care – relevance of earlier falls in the mall – leave to appeal refused (ND)

Privilege - public interest immunity - ss 129, 130 Evidence Act 1995 (NSW) - certificates and report of Medical Assessor under Motor Accidents Compensation Act 1999.

NEGLIGENCE - LIABILITY - Respondent suffered injuries rendering him quadriplegic when thrown from his motor bike, striking his helmet against kerb – whether sufficient consideration given to evidence, both lay and expert, that there was in fact no other vehicle – whether respondent’s multiple version evidence should be accepted - CONTRIBUTORY NEGLIGENCE - whether accident the result of excessive alcohol intake and/or excessive speed. - DAMAGES - - whether amount awarded for future paid care and computer needs excessive – relevance that would or might have acquired a computer even without injury suffered – relevance of need. - EVIDENCE – prior statements said to be self-serving and/or inconsistent – admissibility in evidence following s60 of Evidence Act.