Cases and authorities

ADMINISTRATIVE LAW - Tribunals and committees - Whether inflexible policy applied - Whether committee delegated its power to make a determination under s 10 of the Poultry Meat Industry Act 1986 (NSW) - Whether mandatory to take into account individual costs under s 10(4)(b) of that Act - Whether determination made unfairly discriminates. ND

Damages - assessment - three year old infant now 21 - loss of earning capacity - whether relatives earnings are comparable - prospects in life speculative - appropriate basis for assessment when injuries of very high order - no residual earning capacity - blindness - brain damage - extensive further physical disabilities - a degree of insight - need for future attendant care, home alterations and pool, gym, physiotherapy and occupational therapy and other treatments, together with computer, Braille and travel assistance.

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - claim for adjustment of interests under Property (Relationships) Act 1984 - whether pre-judgment interest to be awarded under Section 94 Supreme Court Act 1970 on amount of property adjustment ordered - appropriate costs order where plaintiff's costs significantly greater than amount recovered - PROCEDURE - pre-judgment interest under Section 94 Supreme Court Act 1970 - whether appropriate on amount of adjustment of property interests awarded under Property (Relationships) Act 1984 - COSTS - appropriate costs order where plaintiff's costs significantly greater than amount recovered

MENTAL HEALTH - protected persons - managers - appointment of management of estate to trustee company - matters for consideration - concern about level of fees charged against estate

EVIDENCE - expert opinion evidence - forensic accountant's report on financial position and board reporting in complex corporate group - whether report, as a whole, admissible under s 79 as opinion evidence wholly or substantially based on specialised knowledge - whether report should be excluded on discretionary grounds under s 135 - applicability of Makita principles to an accountant's report - whether expert's prior relationship with litigant, involving access to additional information and formation of opinions for another purpose, rendered expert's evidence tendered by that litigant inadmissible under s 79 or open to exclusion under s 135 - whether lack of independence rendered expert opinion evidence inadmissible or open to exclusion

WILL PROBATE AND ADMINISTRATION - rectification of will - effect of presumed intention to avoid intestacy on claim for rectification - whether additional evidence adduced sufficient to require rectification

Costs - costs on indemnity basis - costs of successful Plaintiff's interlocutory application for injunctive relief - order dissolved by consent prior to final hearing - whether Plaintiff entitled to recover indemnity costs pursuant to contractual indemnity provision - whether costs should be assessed and payable forthwith - general principles

Transfer of proceedings to Supreme Court from District Court

COURTS - Discretion to allow a new argument to be raised after judgment is delivered but before formal orders have been entered - Policy involving finality of litigation precludes raising the argument. D

WORKERS COMPENSATION - employment - substantial contributing factor - recess claim - test to be applied - JUDICIAL OFFICERS - obligation to give adequate reasons - EXPERT EVIDENCE. (D)

PROCEDURE - Supreme Court Procedure - Whether a settlement after trial but before judgment should be accepted or judgment entered - Reasons for judgment already prepared - No issue of principle of general importance in reasons

Sentencing - Contempt

EQUITY - Equitable Charges and Liens - Creditor pays company debt to enable work to be performed that returns a relatively larger sum to the liquidator - Whether creditor entitled to a lien for incontrovertible benefit to company - Whether payment a liquidator's priority expense under agency of necessity - Whether the rule in Ex parte James - In re Condon (1874) LR 9 Ch App 609 applies - CORPORATIONS - Winding Up - Secured creditor without valuing security votes on adjournment motion by poll - Whether voted her whole debt - Whether failure to value through inadvertence - Whether taken to have surrendered security - Corporations Regulation 2001 (Cth) 5.6.24(3)

PROCEDURE - miscellaneous procedural matters - transfer of proceedings under cross-vesting legislation - whether in interests of justice for proceedings to be transferred to Supreme Court of another State

EQUITY - injunctions - interlocutory injunctions - interlocutory injunctions which will be in practice final - interlocutory injunctions requiring constant supervision - interlocutory orders in circumstances where parties are in a relationship of personal trust and confidence - balance of convenience - whether interests of non-parties can be taken into account - undertaking as to damages - need to be from person or entity financially capable of performing it - interlocutory injunction sought where dispute about validity of termination of contract - appropriate form of order

PRACTICE - Mareva orders - how to take account of privilege against self-incrimination in asset disclosure orders - asset disclosure orders against a respondent who has been served but not appeared - purpose of Mareva orders - application of freezing Mareva orders to refinancing of existing liabilities - application of freezing Mareva orders to borrowings for legal purposes

CRIMINAL LAW AND PROCEDURE - KNOWINGLY CONCERNED IN NON-PAYMENT OF PENALTY SURCHARGE APPLICABLE WHERE "MARKED FUEL" USED FOR UNAUTHORIZED PURPOSE - EXPERT EVIDENCE REJECTED ON GROUNDS OF IRRELEVANCE AND FOCUS ON CREDIBILITY OF OTHER WITNESS - SPECULATIVE OPINION - RULING TO REJECT NOT ERRONEOUS - CROWN WITNESSES CAUTIONED AND GIVEN CERTIFICATES UNDER s128 EVIDENCE ACT - WITNESSES NOT THEREBY INDEMNIFIED AGAINST PROSECUTION - DIRECTION TO JURY THAT WITNESSES WERE "PROTECTED" CORRECTLY REFUSED - NOR WAS DIRECTION THAT TESTIMONY "TAINTED" APPROPRIATE - CHALLENGES TO SUMMING UP NOT MADE OUT - AMPLE EVIDENCE TO SUPPORT JURY FINDING OF KNOWLEDGE ADVERSE TO APPELLANT

CRIMINAL LAW AND PROCEDURE - SENTENCE FOLLOWING TRIAL - MURDER OF THREE INFANT CHILDREN BY FATHER - MENTAL STATE FOUND BY JURY NOT TO REDUCE CULPABILITY TO MANSLAUGHTER - POTENTIAL FOR MAXIMUM SENTENCE BUT REDUCED CULPABILITY FOR MURDER BY REASON OF MENTAL STATE - HEAVY SENTENCE NOT EXCESSIVE - NO ERROR OF SENTENCING JUDGE DEMONSTRATED - NOT APPROPRIATE TO INTERVENE WITH DISCRETIONARY ASSESSMENT

CRIMINAL LAW - sentencing - charges under s184(2) of the Corporations Act 2001 (Commonwealth) - that the applicant had used his position as an employee dishonestly with the intention of gaining an advantage - whether the sentencing judge erred in his assessment of the objective criminality of the applicant - whether insufficient weight given to the applicant's pleas of guilty - whether sentencing judge failed to adequately consider the reparation paid by the applicant - whether sentencing judge failed to adequately take into account subjective findings favourable to the applicant

BUILDING AND ENGINEERING CONTRACTS - effect of statutory remedies under Building and Construction Industry Security of Payment Act 1999 - BUILDING AND CONSTRUCTION INDUSTRY - Statutory remedies of builder - whether concurrent pursuit of statutory and common law remedies permissible - INJUNCTIONS - anti-suit - whether concurrent pursuit of statutory and common law remedies permissible under statute - whether vexatious or oppressive - D

CONTRACT - Construction - Whether provision for automatic rescission on non-satisfaction of conditions self-executing or required the giving of notice - Election - Need for awareness of circumstances entitling party to terminate contract - Need for action adverse to the other party - Sufficiency of terms of notice that contract terminated - ESTOPPEL - Conventional estoppel - Whether distinct from equitable estoppel - Need for reliance by and detriment to party seeking to raise estoppel - Requirement that party against whom estoppel asserted play such a part in adoption of the assumption that it would be unjust if it were left free to ignore it.

Defence of illegality - tenancy agreement for car parking purposes - such purpose not permitted by development provisions - erroneous belief that there were existing user rights - not a contract to do an illegal act - what is the subject of the proscription.

Appeal decision of Local Court Magistrate - amend plaintiff's name after default judgment

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - caveats against dealings - caveat lodged for registration but not yet registered - whether capable of providing a practical obstacle to completion of a sale of the land caveated - caveats against dealings - form of caveat - TORTS - TROVER AND DETINUE- what constitutes conversion - affixing chattel to realty - PROCEDURE - costs - costs application when relief originally claimed no longer needed because of defendant's action or concession

Criminal Law - Practice and Procedure - Applications to withdraw a plea of guilty in Local Court - First application determined without evidence - Second application refused without hearing merits - Failure by second magistrate to exercise jurisdiction an error of law.

Causation - whether injury to wrist caused by explosion. Remoteness of damage - recoverability of legal costs incurred as a result of representation before Coroner.

Criminal Law - Sentencing for Hinder investigation and Possess prohibited firearm

CONVEYANCING - vendor and purchaser - agreement to enter into contract for sale ofland - whether document binding - intention of the parties to be bound

Criminal law - application for leave to appeal against order refusing leave to withdraw plea of guilty - whether evidence capable of proving offence - whether Court erred in refusing leave.

NEGLIGENCE - house with substantial building defects - site not level - foundations of structure - design of concrete slab approved by Council - Council officer inspected site - Council officer required the concrete slab to be raised - Council code in relation to slab reinforcement - whether Council and/or builder owed the purchasers a duty of care - whether the trial judge erred in finding that there was no fill present under the house slab - whether the Council's inspections were negligently performed - whether trial judge erred in making certain other factual findings - EVIDENCE - whether trial judge erred in excluding certain evidence at trial - DAMAGES - whether trial judge erred in finding there was no evidence quantifying the amount of any damages

Costs - Calderbank letter - whether warrants order for indemnity costs - no question of principle. ND

Contract - whether void for illegality - Strata Schemes Management Act 1996 - "initial period" when developer controls owners corporation prior to lot owners having control - s 113(1)(b) prohibits owners corporation from incurring a debt for an amount exceeding the amount then available for repayment of the debt from administrative fund or sinking fund - owners corporation entered into caretaker agreement under which fee was payable - incurred a debt - nothing in funds - whether prohibition on entering into contract meant it was void for illegality - question of construction of s 113 - gave claim over against original which presupposed owners corporation was liable for the debt - qualified sanction for contravention - unlikely invalidity intended - invalidity could operate harshly on innocent persons - on proper construction, not void. D

APPEAL - security for costs - special circumstances - appellant's financial position not fully disclosed - security ordered - one set of costs between respondents

DEFAMATION - issues for jury - cross-claim for contribution under s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 - whether cross-claim should be tried by jury - whether s 7A Defamation Act 1974 applies to trial of cross-claim - whether cross-claim for contribution a common law claim within s 19(1) Supreme Court Act 1970 - whether cross-claim for contribution proceedings to which s 86 Supreme Court Act 1970 applies

EVIDENCE - Client Legal Privilege - Express waiver - Evidence Act 1995, s 122(2) - Failure to claim privilege for documents produced under order of the court - Time pressures preventing all but skimming of documents - Whether documents knowingly and voluntarily disclosed - Whether documents subject to implied waiver

CORPORATIONS - Voluntary administration - Plaintiff seeks winding up of defendant - Administrators appointed - Solvency assessment shows defendant insolvent but likely to return to liquidity in the short term - Criticisms of figures - Whether court should be satisfied that in interests of company's creditors for defendant to continue under administration - No principles involved - Costs order in favour of plaintiff not provable in subsequent creditors' voluntary winding up - Whether orders should be made under the Corporations Act 2001 (Cth), s 447A specifying priority of payment of costs under deed of company arrangement and notice of intention to enter creditors' voluntary winding up

Appeal decision of Review Panel - costs when solicitor acts for self

CONVEYANCING - TORRENS SYSTEM - caveats against dealings - application for caveat to be withdrawn - whether serious question to be tried that there was agreement to give equitable charge over properties caveated - effect of lack of writing - whether estoppel can outflank section 54A Conveyancing Act 1919

Criminal Practice & Procedure - application to withdraw plea of guilty to charge under s1307 Corporations Act 2001 (falsifying company books) - whether a real question to be tried.

Succession. Family Provision. Claim by adult daughter. Financial and material circumstances of Plaintiff. Competing claim of Defendant (who is principal beneficiary). Whether Plaintiff has been left without adequate provision for her proper maintenance. Distribution of assets by Defendant as executor to herself as beneficiary. Whether assets held by Defendant should be designated notional estate of Deceased.

CRIMINAL LAW - sentencing - sexual intercourse without consent Crimes Act s. 61 I - within marriage relationship - breach of AVO - consideration of forgiving and optimistic attitude of complainant - sentence imprisonment 5y non-parole 2y 6m not manifestly excessive - appeal dismissed.

CRIMINAL LAW - s154AA(1) Crimes Act - steal motor vehicle - objective seriousness - use of subjective features - concurrency and accumulation.

CRIMINAL LAW AND PROCEDURE - SENTENCE - PARITY CO-OFFENDER INVOLVED IN ONE ONLY OF TWO MAJOR CRIMINAL ACTIONS BUT FOR ADDITIONAL OFFENCE RELATIVE TO IT - GUIDELINE IN R v HENRY APPROPRIATELY USED FOR OFFENCE OF ROBBERY IN COMPANY - SEPARATE CHARGE CONCERNING PARTICULAR VICTIM - OFFENDER NOT DOUBLY SENTENCED - TEST OF EXCEPTIONAL CIRCUMSTANCES NOT APPROPRIATE FOR DEPARTURE FROM GUIDELINE - IN OVERALL CIRCUMSTANCES LESSER SENTENCE NOT WARRANTED

CRIMINAL LAW - SENTENCING - supplying prohibited drugs on an ongoing basis - heroin and methylamphetamine - pleas of guilty had not been entered at the earliest opportunity - whether sentence manifestly excessive - whether sentencing judge erred in failing to make allowance for the applicant's medical condition - whether sentencing judge erred in failing to make a finding that the applicant had favourable prospects of rehabilitation - principle of totality - whether sentencing judge had sufficient regard to the punishment the applicant had already received from a penalty imposed under the Criminal Assets Recovery Act

Criminal law - circumstantial case - whether verdicts unreasonable or unable to be supported having regard to the evidence. Criminal law - whether appellant received a fair trial.