Cases and authorities

CRIMINAL LAW – Sentence – Appeal – Accumulation of sentences – Where applicant appeared for sentence in respect of separate counts of manufacturing a prohibited drug and supplying a prohibited drug – Where the sentencing judge ordered partial accumulation – Where applicant argued that sentences ought to have been wholly concurrent because one offence comprehended the other – Separate and distinct offending – Partial accumulation within the proper exercise of sentencing discretion – No error established CRIMINAL LAW – Sentence – Appeal – Parity – Whether applicant had a justifiable sense of grievance in light of sentence imposed on a co-offender – Where the findings of the sentencing judge as to the greater role played by the applicant in comparison with that co-offender were warranted on the evidence – No error established CRIMINAL LAW – Sentence – Appeal – Parity – Whether applicant had a justifiable sense of grievance in light of sentence imposed upon a co-offender – Where that co-offender had asked the sentencing judge to take into account an additional offence – Where the submissions made on behalf of the applicant attempted to estimate the percentage of the sentence imposed which was referable to the additional offence – Such approach contrary to principle and authority – No error established

CRIMINAL LAW – Appeal – Sentence – where applicant appeared for sentence in respect of separate counts of supplying a prohibited drug – Where sentencing judge omitted to impose a non-parole period in respect of one count – Error established – Applicant re-sentenced

ENVIRONMENT AND PLANNING – Consent – Conditions – Construction – condition required development to be carried out substantially in accordance with a statement of environmental effects – whether statement imposed a limit on the maximum daily production of a plant ENVIRONMENT AND PLANNING – Offences – Prosecutions – Practice and procedure – charges laid for breach of conditions imposing maximum daily limits on plant operations without specifying particular day – whether charges bad for duplicity

CONTRACT – oral joint venture to develop a retirement village - nature of plaintiff’s funding obligations - whether plaintiff only obliged to provide funding if he and defendant agreed funds were reasonably necessary for the project – whether plaintiff or defendant repudiated his obligations under the joint venture

PRACTICE – notice to produce – application to set aside – failure to “specify” documents – Uniform Civil Procedure Rules 2005 (NSW), r 34.1

BUILDING AND CONSTRUCTION – residential property contained substantial defects – where purchaser induced to complete purchase through the provision of fraudulently obtained home warranty insurance certificates – whether third defendant (vendor) vicariously liable for the deceit of the second defendant (son-in-law). BUILDING AND CONSTRUCTION – damages for defects – where first defendant (builder) named on the insurance certificates did not carry out the building works – whether first defendant estopped from denying the applicability of statutory warranties – assessment of rectification damages. CONTRACT – interpretation of Deed which purports to deal with any claims relating the building words – whether Deed requires the second defendant to indemnify the third defendant for his deceitful conduct. COSTS – usual order for hearing not complied with – produced court book was productive of excessive inefficiencies – solicitors not to charge clients for costs in creating and remedying the court book.

FAMILY LAW AND CHILD WELFARE — child welfare under State legislation — adoption — child living with proposed adoptive parents continuously since infancy — Adoption Act 2000 (NSW), ss 8, 67

Evidence — Expert Evidence — whether the Court should excuse non-compliance by the plaintiff with Part 31 Div 2 of the UCPR and Practice Note No. SC EQ 5 — whether the plaintiff should have leave to rely upon a particular expert report

CIVIL PROCEDURE – Cross-claims – defendant’s application to further amend cross-claim – limits on power to amend – delay by cross-claimant – prejudice to cross-defendant – whether prima facie case established – leave to amend refused. SUCCESSION – wills, probate and administration – probate and letters of administration – revocation of grant in common form – limits on revocation of grant – delay by party seeking revocation – acquiescence to earlier grant – discretion of the Court.

NEGLIGENCE – plaintiff employee of labour hire company – claim against employer and occupier – plaintiff alleged back injury – findings of failures to undertake risk assessment and failures to rotate, supervise and train workers – findings made without attending to relevant evidence – no findings of causation – no findings of primary fact as to events giving rise to litigation – consideration of whether litigation could be determined without retrial – appeal allowed and retrial ordered

CORPORATIONS – service of originating process – service effected almost 6 months after filing – Uniform Civil Procedure Rules r 6.2 provided for service within 6 months – Supreme Court (Corporations) Rules r 2.7 provided for service as soon as practicable after filing and, in any case, at least 5 days before date fixed for hearing – construction of r 2.7 – whether r 2.7 inconsistent with r 6.2 – whether r 2.7 breached – consequences of breach of r 2.7 – power to set aside service of originating process where irregularity PRACTICE – service – application to set aside service of originating process – contravention of obligation to serve as soon as practicable after filing and in any case at least 5 days before date fixed for hearing – liquidators delayed service until litigation funding agreement in place – relevance of compliance with rule requiring service within 6 months – relevance of explanation for delay – relevance of actual and presumptive prejudice – leave to appeal not warranted STATUTORY CONSTRUCTION – interaction between Supreme Court (Corporations) Rules and Uniform Civil Procedure Rules – significance of rules governing application and inconsistency – consideration of Supreme Court (Corporations) Rules rr 1.3, 2.7 – consideration of Uniform Civil Procedure Rules rr 1.7 and 6.2 – consideration of Civil Procedure Act 2005 (NSW) ss 11 and 63

EVIDENCE — opinion evidence — exceptions — expert opinion — reports of forensic biologist — opinions on DNA recovered from two items at crime scene EVIDENCE — documentary evidence — proof of contents of documents — copies of reports EVIDENCE — discretions — limitation of use of evidence

CIVIL PROCEDURE – Jurisdiction – Transfer to and from other courts – Whether certain proceedings of a commercial nature commenced in the District Court should be transferred to this Court for want of jurisdiction

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act – application to quash adjudicator’s determination – where payment schedule provided after the statutory time limit – where claimant subsequently gave notice of its intention to apply for adjudication – where no payment schedule provided after that notice was given – whether the earlier payment schedule was a valid payment schedule – whether the adjudicator fulfilled his statutory functions – summons dismissed.

CONTRACTS – clause granting “either party” a right to rescind contract in the event of death or mental incapacity – construction CONTRACTS – right of party to rescind contract on party’s death – whether right may be exercised by executor named in party’s will before grant of probate – implication CONTRACTS – termination and rescission – rescission – limitations on rescission – party relying on own breach to rescind contract – whether reliance on delayed completion of contract disentitles vendor from exercising contractual right to rescind EQUITY – equitable remedies – rectification – alleged mistake in including clause permitting rescission in the event of a party’s death EQUITY – equitable remedies – relief against forfeiture – whether unconscientious to exercise right of rescission in the event of the vendor’s death ESTOPPEL – contract for sale of land – lease to related party of purchaser – conventional basis of dealing – detriment LAND LAW – conveyancing – contract for sale of land – obligations of vendor and purchaser – purchaser’s obligation to initiate settlement – vendor’s obligation to co-operate LAND LAW – conveyancing – contract for sale of land – rescission – notice of rescission – notice issued by executrix of the deceased vendor – entitlement of executrix of deceased vendor to issue notice under the contract WILLS PROBATE AND ADMINISTRATION – testate estates – executors and executrices – status of executor or executrix prior to grant of probate – Probate and Administration Act 1898 (NSW), ss 44 and 61 – validity of notice to rescind contract given by putative executor or executrix before grant of probate – relation back doctrine

PROCEDURE – application for security for costs – no point of principle

APPEALS – summons seeking leave to appeal dismissed – no issue of principle

CRIMINAL LAW – Appeal – Application for leave to appeal against sentence – robbery in company – whether sentencing judge failed to apply the principles of Bugmy v The Queen – whether primary judge ought to have found special circumstances – whether sentence was manifestly excessive – where applicant was serving two suspended sentences at the time of the offence and committed further offences whilst on bail – leave granted – appeal dismissed

CRIMINAL LAW – conviction appeal – assault – sexual intercourse without consent – where jury was misdirected as to onus of proof in relation to consent – where applicant’s counsel failed to object to misdirection – leave given under rule 4 of Criminal Appeal Rules as applicant was deprived of a real chance of acquittal – unnecessary to decide question of the validity of rule 4 – appeal allowed – conviction and sentence quashed

REAL PROPERTY – caveats – application to extend operation of caveat under s 74K of the Real Property Act 1900 (NSW) – where lessee lodged a caveat claiming equitable interest in land arising from lease – where liquidator of lessor disclaimed lease – where no application for leave to set aside the disclaimer had to date been made – whether seriously arguable case for proprietary interest arising from the lease. REAL PROPERTY – caveats – application to lodge further caveat under s 74O of the Real Property Act 1900 (NSW) – where lease granted lessee contractual rights – whether unconscionable that lessee will be left to prove for debt in the lessor’s liquidation – whether seriously arguable case that lessee has a proprietary interest in the land.

TORTS – conversion – remedies – damages – whether trial judge erred in rejecting claims for certain heads of damage COSTS – remitter for rehearing on limited basis – whether trial judge on rehearing could award costs of earlier hearing – appeal costs – successful respondents derelict in compliance with interlocutory directions – whether reduction in allowed costs CIVIL PROCEDURE – Uniform Civil Procedure Rules (UCPR) r 51.53 – scope of directions in ordering a new trial – valuation evidence – whether judge on rehearing erred in rejecting evidence if expert not called

CORPORATIONS – retirement of Official Receiver and short reasons for appointment and liquidation – orders issued – reasons now issued.

EVIDENCE – relevance

CRIME – SENTENCE – appeal against sentence – offences of aggravated break enter steal and others – further offences taken into account – question of the relevance of mental illness to sentencing exercise – applicant from a deprived background – significance of childhood deprivation to sentence imposed – adequacy of reasons provided by sentencing judge – appeal from the Local Court included in aggregate sentence imposed for offences on indictment – aggregate sentence exceeded jurisdictional limit for Local Court – manifest excess

CRIMINAL LAW – sentence – murder – a single stab wound to the back– intent to cause grievous bodily harm – mitigating factors – no pre-planning and spontaneous – offender’s mental illness contributes to offending conduct – reduced moral culpability – low range of objective seriousness – subjective features – criminal history – remorse – low risk of re-offending – reduced weight for general deterrence and specific deterrence – special circumstances – comparable cases – statutory guideposts – imposition of sentence

CORPORATIONS – managed investments – judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – where responsible entity sought judicial advice that it would be justified in adjourning meeting of unitholders – whether advice sought should be given.

EVIDENCE – documentary evidence - business record – no question of principle

ORDERS – directions for the filing and service of expert and lay evidence.

CORPORATIONS – duties and liabilities of director – claim for breach of Corporations Act 2001 (Cth) ss 180, 181, 182 and corresponding general law duties – duty of care and diligence – duty to act in good faith in the company's best interests – duty to not improperly use position to gain advantage or cause detriment to company – where director of company caused its customers to make payments into bank account which was not in name of or controlled by the company - whether conduct of director amounted to breach of statutory and general law duties. CORPORATIONS – duties and liabilities of employee – claim for breach of Corporations Act 2001 (Cth) s 182 and corresponding general law duty – duty to not improperly use position to gain advantage or cause detriment to company – implied duty of good faith and fidelity not to engage in conduct which impedes faithful performance of obligations – where employee diverted amounts due to company to an account under her control – whether conduct of employee amounted to breach of statutory and general law duties. CORPORATIONS – duties and liabilities of director – claim for breach of Corporations Act 2001 (Cth) ss 180, 181, 182 and corresponding general law duties – duty of care and diligence – duty to act in good faith in the company's best interests – duty to not improperly use position to gain advantage or cause detriment to company – where director of company caused its customers to make payments into bank account which was not in name of or controlled by the company - whether conduct of director amounted to breach of statutory and general law duties. CORPORATIONS – duties and liabilities of employee – claim for breach of Corporations Act 2001 (Cth) s 182 and corresponding general law duty – duty to not improperly use position to gain advantage or cause detriment to company – implied duty of good faith and fidelity not to engage in conduct which impedes faithful performance of obligations – where employee diverted amounts due to company to an account under her control – whether conduct of employee amounted to breach of statutory and general law duties. CORPORATIONS – oppression – where director owed positive duties to promote the interests of company and potentially conflicting duties in respect of another company – where no evidence of conflict giving rise to loss to company – whether basis for relief in oppression is established. CONTRACTS – consideration – past consideration – whether subsequent agreement as to salary for services provided to company at its request fails for lack of consideration.

OCCUPATIONS – legal practitioners – discipline – suspension of practising certificate – appointment of external intervener – Legal Profession Uniform Law (NSW) ss 77, 82 and 327 – solicitor with mental health issues disseminated unfounded accusations about public officeholders, illegally recorded court proceedings and obstructed subsequent investigation and external intervention – appeal against suspension – hearing de novo – whether immediate suspension necessary in the public interest – whether solicitor unable to fulfil inherent requirements of a legal practitioner – whether solicitor could contend that her mental health prohibited her from assisting an investigation into her legal practice but not from practising law STATUTORY INTERPRETATION – whether construction of Legal Profession Act 2004 (NSW) s 548 is relevant to construction of Legal Profession Uniform Law (NSW) ss 77 and 82 WORDS AND PHRASES – “warranted” , “inherent requirements” – Legal Profession Uniform Law (NSW) ss 82 and 278

BAIL – release application – show cause offence – where previous application refused by the Court – where all relevant material presented in the first application – where no change in circumstances

INSURANCE – accident and sickness insurance – where policy taken out by trustee of superannuation fund with insurer for benefit of its members – claim for “total and permanent disablement” (TPD) benefit – benefit for TPD payable if claimant provided proof to satisfaction of insurer that he or she was so incapacitated as to be “unlikely ever” to return to employment for which he or she was reasonably qualified by education, training or experience – onus on claimant to provide proof to satisfaction of insurer INSURANCE – duty to act reasonably – content of duty – reasonableness in assessing evidence – conflicting expert reports – onus on claimant to demonstrate that particular evidence should be preferred to other evidence when there is a conflict INSURANCE – duty to act reasonably – content of duty – where insurer makes a mistake or accidentally overlooks material during assessment process – no breach of duty in circumstances where there is an opportunity for the claimant to bring the mistake to the attention of the insurer INSURANCE – duty of utmost good faith – content of duty – obligation for insurer to give reasons for their decision – no general obligation INSURANCE – duty of utmost good faith – content of duty – reasonable and fair process for assessment of claim – where claimant represented by solicitors PRACTICE AND PROCEDURE – separate questions – insurance – claim for TPD benefit – entitlement to benefit subject on proof to insurer’s satisfaction – “two stage” approach – discussion of the court’s enquiry in the second stage – discussion of whether the “two stage” approach is necessary in all cases

CRIMINAL LAW – high risk offender – serious sex offender – preliminary hearing – whether high risk sex offender interim supervision order should be made – where extensive criminal history – where defendant does not oppose the making of an interim supervision order – where defendant objects to electronic monitoring as a condition of the order – where agreement as to psychiatrist and psychologist to be appointed

CRIMINAL LAW – Sentence – Appeal – Assault with an act of indecency – Where applicant entered the victim’s premises uninvited and commenced to masturbate in front of her when she was asleep – Where applicant then tried to grab the victim and kiss her – Where victim repeatedly demanded that the applicant leave – Where offending occurred shortly after an earlier visit to the premises by the applicant – Degree of premeditation – Serious offending – Sentence of 1 year and 9 months imprisonment comprising a non-parole period of 12 months with a balance of term of 9 months imprisonment not manifestly excessive – Appeal dismissed

CIVIL PROCEDURE – security for costs – appeal against decision of registrar – unrepresented plaintiff – where plaintiff repeatedly failed to comply with directions – consideration of meaning of special circumstances under r 50.8 of the UCPR

SUCCESSION – family provision and maintenance – principles upon which relief granted – claim by adult children against large estate – application by beneficiaries not separately represented at earlier hearing to vary orders as to how additional provision should be borne among beneficiaries – application for stays pending appeal

BUILDING AND CONSTRUCTION – application to quash adjudicator’s determination under Security of Payment Act – whether first and second payment claims issued were invalid because supporting statement was not included – weight of first-instance authority indicates invalidity. BUILDING AND CONSTRUCTION – where three payment claims issued in the same terms – whether third payment claim supported by a separate reference date – prohibition on serving multiple payment claims referable to same reference date – existence of reference dates to be determined in accordance with the Security of Payment Act – third payment claim validly supported by reference date. BUILDING AND CONSTRUCTION – whether adjudicator failed to discharge his statutory functions in good faith – where alleged that adjudicator failed to value the construction work – no requirement for adjudicator to value work as the contract determined the progress payment amounts for each milestone. COSTS – where successful defendant caused the present litigation – where defendant proceeded with disregard for the requirements of the Security of Payment Act to harass the plaintiff – only reason for not awarding costs against defendant is the compensatory and not punitive function of costs – each party to bear its own costs.

CONTRACTS – agreement to transfer respondent’s property to appellant subject to life estate in favour of respondent – whether respondent had capacity to enter into agreement – whether agreement was unconscionable – whether agreement was unjust

CRIMINAL PROCEDURE – application for retrial after acquittal under Crimes (Appeal and Review) Act 2001 (NSW) s 100(1) – three children disappeared over five month period – respondent acquitted of murders of two of the children at separate trials – evidence relating to disappearance of third child available but not admitted at either trial – whether evidence relating to disappearance of third child was “fresh and compelling” evidence in relation to the murders of the first two children CRIMINAL PROCEDURE – application for retrial after acquittal under Crimes (Appeal and Review) Act 2001 (NSW) s 100(1) – applicant ran case on basis that it was necessary to obtain an order for a retrial of the respondent for murders of both of the first two children – applicant submitted at conclusion of hearing that an order for a retrial of respondent for only one of the murders was sought in the alternative – whether applicant permitted to change the case run on the application

CRIMINAL ASSETS – restraining order – ancillary orders for examination etc. – reasonable suspicion – orders granted

CRIMINAL ASSETS – restraining orders – ancillary orders for examination – reasonable suspicion – orders appropriate – orders granted

CRIMINAL ASSETS – restraining orders sought and ancillary orders for examination – reasonable suspicion – orders granted

CRIMINAL ASSETS – reasonable suspicion – reliance of facts sheet – orders made

CORPORATIONS – external administration – application under s 439A(6) of the Corporations Act 2001 (Cth) for order extending the convening period for the second meeting of creditors of company – where significant risk that value of company's assets will be lost if company passes into voluntary liquidation – where extension of convening period allows prospect of a return to creditors – whether convening period for the second meeting of creditors of company should be extended.

CIVIL PROCEDURE – appeal – jurisdiction – Local Court – Local Court Act 2007 (NSW) 34(1)(c) – whether material part of cause of action arose in New South Wales – where debt arose in Western Australia but debt assigned in New South Wales – whether assignment of debt a material part of cause of action conferring jurisdiction – assignment not an act giving rise to plaintiff’s complaint – assignment not a material part of cause of action – leave to appeal refused COSTS – party/party — exceptions to general rule that costs follow the event – where plaintiff contended magistrate’s order that costs follow event unreasonable or plainly unjust – where some delay in defendant challenging jurisdiction – no evidence of magistrate’s reasons or that order unreasonable or plainly unjust – costs would not have been incurred if plaintiff instituted proceedings in correct jurisdiction – leave to appeal refused

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trust LAND LAW — Torrens title — Exceptions to indefeasibility — Whether Fraud — Witness to Transferor’s signature not present when Transfer signed SUCCESSION — FAMILY PROVISION — No estate or notional estate out of which an order can be made

HIGH RISK OFFENDER – serious sex offender – application for interim supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – no controversy about making of order – dispute limited to conditions imposed – interim supervision order imposed – discussion of appropriate orders imposed

CORPORATIONS – voluntary administration – administrator – whether order validating appointment of administrator should be made under s 447A of the Corporations Act 2001 (Cth). CORPORATIONS – voluntary administration – administrator – meeting of creditors – whether order to extend convening period for second meeting of creditors should be made under s 439A of Corporations Act 2001 (Cth).

PRACTICE – amendment – late application to amend defence – applicant gave unchallenged explanation for delay while respondent pointed to no evidence of prejudice – application granted

HIGH RISK OFFENDERS – preliminary hearing – where application made less than three months before defendant’s release date – significance of delay –importance that the Court not suffer itself to become an instrument of injustice by condoning the administration of the Act in such a manner as to impose constructive detention – consideration of factors relevant to interim relief sought – where defendant plainly poses a significant risk to the safety of women if released – history of failure to comply with supervision – interim detention order warranted