Cases and authorities

PROCEDURE – civil – setting aside default judgment – UCPR 36.15 – no irregularity or illegality by failing to comply with National Credit Code – no oral hardship application made – failure to comply does not amount to irregularity PROCEDURE – civil – setting aside default judgment – UCPR 35.16 – no arguable defence – no explanation for delay – not in interests of justice

APPEAL – Local Court – motor vehicle accident – no issue of principle – whether Magistrate failed to give reasons – Magistrate grappled with issues raised by both parties – contributory negligence not put in issue at the hearing – no error of law APPEAL – Local Court – motor vehicle accident – whether to grant leave on question of mixed law and fact – no issues of public importance – modest amounts in dispute – leave refused

CRIMINAL LAW – appeal against sentence – bonds and suspended sentences – sexual intercourse with females under 16 years – manifest inadequacy – whether sentencing judge erred in assessment of objective seriousness – young offender – whether judge erred in failing to accumulate sentences for offences with respect to separate complainants

CRIMINAL LAW – evidence – leave to cross-examine unfavourable witness – where not opposed – where would not add unduly to length of trial

CONTEMPT – plea of guilty – in the face of the Court – swearing, intimidating and abusing by open allegations of bias – in course of criminal proceedings – re-trial – guilty verdict – term of imprisonment – abject and complete apology – rehabilitation – bond imposed.

CRIMINAL LAW – Crimes (High Risk Offenders) Act 2006 – extended supervision orders – high risk sex offender – whether Court satisfied “to a high degree of probability” that the offender poses an unacceptable risk of committing a serious sex offence – where experts determined that offender was in the moderate to high risk category of re-offending compared to other sex offenders – where connection made between drug and alcohol use and the risk of reoffending – where offender had committed a number of breaches of a previous extended supervision order and spent significant periods in custody as a result – where offender had not committed a serious sex offence for a significant period of time

Bail - serious reoffending – cause not shown -electronic monitoring

APPEAL – application to dismiss for want of prosecution – failure to settle grounds of appeal – failure to file written submissions – times required by rules not complied with – directions of court not complied with – no real prospect of compliance in the foreseeable future – prejudice to respondent – lack of substantial prejudice to appellants PRACTICE AND PROCEDURE – security for costs – appellants impecunious – likely effect delay of final disposal of proceedings – whether dismissal of proceedings preferable course

CONSTITUTIONAL LAW – Commonwealth grants of financial assistance to the States – Commonwealth of Australia Constitution, s 96 – whether impermissible for Commonwealth to provide funding in respect of objects outside areas of legislative competence – Commonwealth may provide funding outside areas of federal legislative competence subject to any relevant constitutional provision to the contrary CONSTITUTIONAL LAW – Commonwealth funding of non-government schools, including religious schools – Commonwealth of Australia Constitution, s 116 – whether legislation establishing funding regime, or funding itself, impermissible as contrary to s 116 – whether funding Acts laws for establishing religion, imposing religious observance or prohibiting the free exercise of religion – importance of legislative purpose STANDING – challenge to Commonwealth grants of financial assistance pursuant to Commonwealth of Australia Constitution, s 96 – whether plaintiffs have standing to challenge validity of Commonwealth laws and executive acts relating to funding of non-government school – whether standing limited to existing funding arrangements

ADMINISTRATIVE LAW – judicial review – motor vehicle accident – brain injury – Lifetime Care and Support Scheme – claimant found ineligible for inclusion in Scheme – Review Panel decision refusing insurer’s application for claimant to join Scheme – scope of Review Panel’s obligation to give reasons – whether credibility of claimant’s account of own functioning addressed in reasons ADMINISTRATIVE LAW – judicial review – mandatory considerations – identification by reference to statutory functions of Review Panel – extent to which applicant’s submissions affect scope of functions – whether constructive failure to exercise functions MOTOR ACCIDENT – Lifetime Care and Support Scheme – assessment of eligibility for participation – review of decision of Assessment Panel – whether review limited to grounds specified in the application which satisfy LTCS Guidelines PRACTICE AND PROCEDURE – appeal books – no reference to large volume of material submitted on appeal – whether party should be exempt from costs of appeal books – whether solicitor should bear costs

PRACTICE AND PROCEDURE - suppression and non-publication orders

HIGH RISK SEX OFFENDER – Continuing Detention Order sought – no therapeutic value – granted for one month only to allow accommodation and other ancillary issues to be resolved – Extended Supervision Order granted – discussion of conditions.

HIGH RISK VIOLENT OFFENDER – Continuing Detention Order sought and granted – violent offences and extraordinary psychiatric reports – 5 years’ duration because no likely change in that period and court proceedings exacerbate defendant’s issues.

PRACTICE AND PROCEDURE – Adoptions – Application for removal of proceeding to Court of Appeal – order made for separate determination of question of Court’s jurisdiction to make orders for adoption of a child habitually resident in a Convention country where Convention procedures not followed – issue of national significance - desirability of appellate decision – proceeding removed to Court of Appeal

COSTS – application for costs of proceedings on an indemnity basis – whether Court should exercise discretion in Civil Procedure Act 2005 (NSW), s 98 – whether contractual right to have costs assessed and paid on particular basis

PRACTICE AND PROCEDURE – Preliminary discovery – whether requirements of r 5.3(1)(a) of Uniform Civil Procedure Rules are satisfied – whether plaintiff may be entitled to make a claim for relief that defendant has breached terms of commercial lease – whether plaintiff has been unable to obtain sufficient information to decide whether or not to commence proceedings – preliminary discovery ordered with respect to some categories of documents sought

CONTRACTS – formation of contract – tender offer in respect of the operation and management of car parks – whether appellant varied tender offer to give bank guarantee for requested amount of guaranteed income – whether acceptance matched tender offer, or tender offer as varied – whether lack of consensus as to date for commencement of management – whether intention to be bound immediately and to make further contract containing additional terms – whether primary judge erred in finding binding contract between parties CONTRACTS – termination of contract – whether respondent entitled to terminate – whether respondent ready and willing to perform agreement in its terms at time of termination – whether respondent insisted appellant execute and perform a form of agreement different from contract between parties TRADE AND COMMERCE – misleading and deceptive conduct – whether appellant represented by submission of tender that it intended to enter into agreement and do what it had promised to do on proper, objective construction of tender conditions –whether respondent engaged in misleading and deceptive conduct by not disclosing information as to number of parking bays in redeveloped car park – whether reasonable expectation that information would be disclosed

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – decision of a proper officer – referral for further medical assessment – whether proper officer misconstrued s 62(1A) precondition to referral for further assessment on basis of “additional relevant information” – whether jurisdictional error – whether constructive failure of the proper officer to exercise jurisdiction under s 62(1) – meaning of “additional relevant information” – whether s 62(1)(a) includes information relating to issues considered in earlier assessment – distinction between satisfaction of precondition to referral for further assessment in s 62(1A) and exercise of discretion by proper officer under s 62(1) ADMINISTRATIVE LAW – judicial review – jurisdictional error – whether failure to take mandatory consideration into account – whether consideration mandatory

TORTS - Negligence - Road accident cases – personal injury – damages governed by Motor Accidents Compensation Act 1999 – where appellant had extensive pre-existing and post-accident medical history – where employment terminated over three years after accident – where liability admitted and first appeal remitted the issue of damages – appeal from second trial – reassessment of damages – where doctors not provided with appellant’s full medical history – conflicting medical opinions – whether incomplete history materially impacted upon expert opinions – whether incomplete history justified rejection of expert opinion – whether aggravation of appellant’s pre-existing injuries continued after termination of appellant’s employment – whether trial judge in error in finding that any diminished capacity was not attributable to the injury – past economic loss – where residual earning capacity conceded by appellant in respect of claim for future economic loss – whether medical evidence demonstrated diminished earning incapacity independently of accident due to pre-existing symptoms and condition – attendant care services claim subject to s 141B MACA – whether temporal thresholds met – whether evidence established domestic assistance was required – interest on damages –– submissions not made – whether criteria of s 137(4) MACA satisfied

CRIMINAL LAW – APPEAL – sentence – manifest excess – youth of 18 – insufficient regard to effect on general deterrence – appeal granted.

CRIMINAL LAW – application for leave to appeal against sentence – manifest excess – whether sentencing judge erred in assessment of objective seriousness of each offence – use of comparative cases – whether sentencing judge erred in not accounting for summary disposition of offences – distinction between sentencing for uncharged acts and taking account of surrounding circumstances – effect of capacity to prosecute offence summarily – appeal dismissed.

CRIMINAL LAW – appeal against conviction – referral of the whole case – Crimes (Appeal and Review) Act 2001 (NSW), s 79(1)(b) – witness recanted evidence – whether recantations admissible EVIDENCE – hearsay – recanted evidence – witness not available – admissibility – whether previous representations likely to be reliable – circumstances of representations – Evidence Act 1995 (NSW), s 65 CRIMINAL LAW – appeal against conviction – evidence exculpating appellant – whether evidence credible CRIMINAL LAW – appeal against conviction – Crown failure to call witness – police informant – prosecutor’s duty to call material witness – public interest immunity – forensic advantage to accused – whether miscarriage of justice – whether denial of fair chance of acquittal – whether jury verdict unreasonable or unsupported CRIMINAL LAW – appeal against conviction – fresh evidence and new evidence – whether verdict unreasonable or unsupported

PROCEDURE– appeal from interlocutory decision of local court– where order does not constitute an interlocutory order – application withdrawn – leave sought to proceed by way of summons– leave and adjournment granted

ADMINISTRATIVE LAW – judicial review – jurisdictional error - Workplace Injury Management and Workers Compensation Act 1998 – injured worker – assessment of whole person impairment – Registrar refers medical dispute to appeal panel - whether demonstrable error in the medical assessment certificate – error asserted to be the percentage whole person impairment assessed by medical assessor – no demonstrable error established - appeal panel identifies other errors in certificate of assessor – whether jurisdictional error in so doing - decisions of Registrar and appeal panel quashed

DEFAMATION – where defendants contend proceedings commenced contrary to settlement agreement with plaintiff – whether binding agreement reached – whether solicitor had ostensible authority to bind plaintiff to an agreement – consideration of the provisions under part 3 of the Defamation Act for resolution of civil disputes without litigation PROCEDURE – application for stay of proceedings allegedly commenced in breach of settlement agreement – power to stay proceedings

CORPORATIONS — Deed of company arrangement — Application by deed administrator for orders under s 447D of the Corporations Act 2001 (Cth) and certain declarations – Application by deed administrator for correction of register of members of incorporated club under s 175 of the Corporations Act 2001 (Cth) – where club was shortly to hold an annual general meeting to elect its directors – where club’s articles of association required the board of directors to be constituted in a particular manner – where deed administrator sought declaration as to persons entitled to be elected as director – where deed administrator sought declaration as to persons entitled to vote at club’s annual general meetings or general meetings – where deed administrator sought declaration as to persons entitled to vote on resolutions to alter or amend the club’s memorandum of association or articles of association – whether construction of articles of association advanced by deed administrator is correct – whether declarations and orders sought should be made.

CIVIL LAW – proceeds of crime – where restraining orders granted – application for forfeiture pending – where applications for exclusion from forfeiture and compensation orders are made – whether these applications should be heard prior to or concurrently with forfeiture hearing

INSURANCE - where qualified admission of liability by insurer - whether facts and circumstances have changed since admission of liability - whether insurer should be permitted to rely upon exclusion clause in light of changed circumstance PRACTICE & PROCEDURE - whether the defendant insurer should be granted leave to amend Commercial List Response to rely upon exclusion clause

PRACTICE – reference out by court of entire proceedings to referee – whether report should be adopted – earlier finding that referee correctly construed contract – consideration of remaining objections to adoption of report

SUCCESSION – format of estate accounts for the purpose of passing by a registrar – consideration of usual format – suitability of accounts prepared in accordance with modern accounting standards – consideration of difficulties involved in registrar being required to pass estate accounts prepared in a modern format – no decision in principle PRACTICE AND PROCEDURE – review of registrar’s decision pursuant to UCPR r 49.19 – passing of estate accounts – defendants challenged registrar’s decision to reject their accounts on the ground that that they are not in the usual format, as the format required has not been prescribed as being mandatory – whether the registrar gave adequate reasons for his decision – defendants did not attempt to challenge the plaintiffs’ expert evidence – registrar adopted plaintiff’s expert evidence – held registrar’s reasoning was sufficient in the circumstances – whether the court should permit accounts to be prepared in modern accounting formats for the purpose of the passing of estate accounts, in lieu of the well-established format for estate accounts –no evidence offered by the defendants to demonstrate that the passing of accounts could have been done as conveniently as if the accounts had been prepared in the usual format – held consequences of changing the format not sufficiently clear – held uncertainties relating to the passing of accounts in the present form outweigh the actual costs of reformatting the accounts into the usual format – in all circumstances, registrar’s decision not disturbed – further directions for future conduct of proceedings required

PROCEDURE – costs – settled proceedings -administrative review – decision of Parole Authority to refuse parole -– proceedings settled shortly prior to hearing date – late amendment to grounds of appeal – defendant concedes relief by reason of new ground of appeal – relief as claimed ordered by consent – claim by plaintiff for costs – whether plaintiff entitled to costs since amendment – whether plaintiff entitled to costs preceding amendment – lump sum costs order – proportionality – time and cost in assessment – lump sum ordered relating to amended ground

APPEAL – appeal from Local Court – claim on insurance policy for a lost gold Rolex watch – insurer rejected claim – magistrate finds no proof of loss – verdict for insurer – plaintiff’s case largely dependent on evidence of plaintiff – reasons of magistrate – inadequacy of reasons – no assessment of plaintiff’s evidence – supporting witness not cross-examined – no consideration or assessment of witness’s evidence – whether magistrate asked the correct question relating to claim on the policy – error of law established – reasons inadequate –judgment set aside – remitted for further trial

PRCOCEEDS OF CRIME – pecuniary penalty order – conspiracy to defraud the Commonwealth –proper approach to calculation of the benefit derived from the offences – assessment is not confined to the net benefit derived by the defendant personally – proper statutory approach includes all property under the defendant’s effective control

PRACTICE AND PROCEDURE – appeal – interlocutory orders refusing belated amendment of pleading – applicant said to be unwell at time of hearing – no application to trial court to reopen – no draft pleading available – evidence inadequate to warrant appellate intervention

APPEAL AND NEW TRIAL – review of single judge of appeal – order for referral for pro bono legal assistance limited to advice on prospects of success – applicant sought a referral extending to preparation and appearing on appeal – whether decision amenable to review under Supreme Court Act 1970 (NSW), s 46(4) – decision appropriate in any event given history and nature of the litigation – motion dismissed

CRIMINAL LAW – appeal against conviction under Criminal Code (Cth), s 307.2(1) – appeal against conviction on the basis of fresh evidence – whether miscarriage of justice such that conviction should be quashed and new trial ordered – whether “fresh” evidence available – whether evidence credible – whether the evidence would have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused

CRIMINAL LAW – appeal against sentence – child pornography offences – manifest excess – totality – interaction of Commonwealth and State sentencing regimes – no error identifiable or manifest – appeal dismissed.

CRIMINAL LAW – application to separate one of five co-accused – where application made in thirteenth week of trial – retrospective and prospective evaluation of fairness of the proceedings – where co-accused asserts duress – where co-accused relying on evidence of violence and threats of violence by three accused – evidence admissible in Crown case – analogy to cut-throat defence – whether order of cross-examination creates unfairness – threat to withdraw instructions of lawyers – not a relevant consideration – genuine belief in three accused that process unfair – no unfairness when viewed objectively – remedies for forensic disadvantage – whether cross-examination undermining effectiveness of attacks on credibility – resurrecting Lazarus – neutral position of fifth co-accused – “when elephants fight ants stay out of the way” – application refused

CRIMINAL LAW – jury trial – charge of murder – whether provocation in its repealed form to be left to the jury – no evidence that raises provocation

CORPORATIONS — unregistered managed investment schemes — where liquidators of several unregistered managed investment schemes applied for various directions under s 601EE(2) of the Corporations Act 2001 (Cth) – where the managed investment schemes accepted investments from international business companies – where direction sought whether liquidators were justified in treating as the true investors the individuals who established the international business companies rather than the companies themselves – where directions sought whether liquidators were justified in proceeding on the basis of a pari passu distribution among investors in the relevant schemes in proportion to their unit holdings subject to investors first bringing into hotchpot any “returns” received – where liquidators also sought various other directions – whether the administrators of the schemes held investor funds on express or resulting trust for the scheme investors – whether the directions sought should be made.

COSTS – against non-party – whether solicitor sole director and shareholder of incorporated legal practice should pay costs of unsuccessful application to remove to this Court proceedings pending against that company in District Court including proceedings already listed for hearing – whether solicitor funded litigation – whether conduct of litigation was unreasonable – whether solicitor had an interest in the proceedings – whether company was insolvent or a “person of straw”; PROCEDURE – interlocutory orders – whether freezing order made on an ex parte basis should be dissolved on basis of non-disclosure by moving party – whether freezing order should be extended against solicitor who has given an undertaking to the Court not to dispose of assets

REAL PROPERTY — Loss of interest in land — Claim for compensation out of Torrens Assurance Fund — Real Property Act s 129 — Plaintiffs transferred ownership of real property to second defendant — Second defendant mortgaged properties to secure loan — Proceeds of loan disbursed largely to the benefit of third, fourth and fifth cross-defendants to third cross-claim — Plaintiffs claim to have been deceived into signing transfer documents — Whether plaintiffs deprived of their interest in land by fraud — Plaintiffs intended second defendant to raise finance by becoming the registered proprietor of the properties and borrowing moneys on security of them — Signatures on transfer documents not procured by fraud — Claim against second defendant dismissed — Claim against Registrar General dismissed TORTS — Negligence — Whether fourth defendant breached duty of care by failing to take reasonable care to ensure certificate of title used only as instructed — Solicitor not retained to advise on wisdom of proposed transaction — Certificate of title used only as instructed by plaintiffs — Whether fourth defendant had duty to disclose known facts concerning third cross-defendant to third cross-claim’s discredit — Plaintiffs had prior experience of third cross-defendant to third cross-claim’s business practices — No duty of care — No breach of duty in any event EQUITY — Breach of fiduciary duty — Deceit — Whether third, fourth and fifth cross-defendants to third cross-claim owed a fiduciary duty to cross-claimants to third cross-claim — Whether third cross-defendant to third cross-claim deceived first cross-claimant to third cross-claim — Whether excess borrowed moneys disbursed without authority — Excess of moneys borrowed to purchase plaintiff’s property intended to be used to discharge debts of plaintiffs and first cross-claimant to third cross-claim — Excess moneys disbursed by third cross-defendant to their own benefit without knowledge or authority of cross-claimants — Third, fourth and fifth cross-defendants to third cross-claim breached fiduciary duty owed to cross-claimants to third cross-claim — Third cross-defendants to third cross-claim deceived first cross-claimant to third cross-claim — Judgment in favour of cross-claimants to third cross-claim

COSTS – appeal allowed from District Court judgment – rule that no costs will ordinarily be allowed if plaintiff obtains judgment less than $40,000 – appellant entitled to judgment in the amount of $38,070 plus pre-judgment interest – whether pre-judgment interest included in calculation – whether appellant entitled to special costs orders as a result of offers of compromise

PRACTICE AND PROCEDURE – subpoena – documents redacted incorrectly – general access sought – no general confidentiality – limited use available – access granted.

CRIMINAL LAW – three of five accused dismiss legal representatives – dismissal conditional on application for separate trial of co-accused – thirteenth week of trial – whether jury trial should be adjourned pending resolution of issues

PROCEDURE — Costs — where in the substantive proceedings the plaintiff incurred significant costs in seeking to establish the value of trust assets in circumstances where the defendant initially contended the value of the trust assets was nil – where plaintiff sought costs orders for the specified period prior to which the defendant served evidence establishing the value of the trust assets – where the plaintiff also sought costs relating to the return dates of subpoenas – where the defendant contended it should be awarded the costs of the hearing of the substantive proceedings given its success in the proceedings as to the issue of the interpretation of the limitation of liability clause – whether cost orders sought by the parties should be made.

CORPORATIONS – dissolution – reinstatement – where company dissolved, following liquidation, in 1983 under Companies (South Australia) Code – whether jurisdiction to declare dissolution void remains available

PROCEDURE – miscellaneous procedural matters – orders for determination of separate questions – orders made that all questions of liability be determined before questions relating to relief – evolution of proceedings during the hearing whereby plaintiff sought an order for a partnership accounting by the first defendant – parties withheld from tendering expert accounting evidence originally intended to be tendered – parties made limited submissions on primary issue concerning the construction of relevant deeds – some matters not determined by these reasons – need for reconsideration of orders for determination of separate questions – directions required for future conduct of proceedings PARTNERSHIP – rights and duties of partners inter se – transfer of, and dealings with, shares – plaintiff executor of the estate of deceased mother – first defendant son of deceased – deceased and first defendant in equal partnership in the ownership of hotel assets and business – family arrangement whereby first defendant would immediately purchase half of deceased’s half share in goodwill of hotel business, but no part of deceased’s half share in hotel freehold – mutual intention to avoid incurring capital gains tax liability and to minimise stamp duty – deceased covenants to leave remaining interest in hotel assets and business to first defendant in her will – various instruments, deeds and agreements entered into to give effect to family arrangement – identification of instruments giving rise to binding agreements PARTNERSHIP – rights and duties of partners inter se – transfer of, and dealings with, shares – deeds and agreement gave first defendant unilateral right to manage the hotel assets and business, to sell the hotel, and to invest the proceeds of sale in a replacement investment – deeds and agreement to apply to replacement investment mutatis mutandis – hotel sold and proceeds of sale applied by first defendant for his own purposes and not for the benefit of the deceased – whether application of the proceeds of sale authorised – whether first defendant breached his fiduciary duty as a partner of the deceased – question not decided DEEDS – form and execution – parties execute and exchange different and inconsistent versions of deeds – whether deeds invalid – held contract created in the terms of the deeds executed by parties other than the first defendant – alternatively, held first defendant induced other parties to deeds to act on the basis that the deeds executed by those other parties contained the terms binding the parties – first defendant estopped from denying deeds containing the terms in the instruments executed by the other parties are binding on him – further, first defendant estopped from denying a composite deed of assignment created by his solicitor combining pages from different deeds executed by various parties binding on him CONTRACTS – general contractual principles – construction and interpretation of contracts – general principles considered – whether operative deeds and agreement had the effect when properly construed that deceased held her remaining interest in hotel assets and business on trust for first defendant; alternatively, whether deceased had agreed to relinquish her entitlement to receive any of the benefits of her continuing beneficial ownership of her remaining interest in the hotel assets and business – held deceased had not agreed to hold her remaining interest on trust for first defendant or to relinquish her entitlement to receive any benefits from her continuing beneficial ownership CONTRACTS – general contractual principles – construction and interpretation of contracts – meaning and effect of terms “investment” and “mutatis mutandis” considered CONTRACTS – general contractual principles – construction and interpretation of contracts – implication of terms – principles applicable to the implication of terms in contracts considered – held contracts did not include alleged implied term – term not necessary to give business efficacy to the contracts, term not so obvious that it goes without saying, and term likely to be inconsistent with the express terms of the contracts ESTOPPEL – by deed or convention – estoppel by convention – principles considered where a party asserts that another party to a set of deeds and agreements is bound by a conventional estoppel based upon an alleged common understanding as to the legal effect of the deeds and agreements allegedly formed during the course of the negotiations before the deeds and agreements were made – question of principle whether a conventional estoppel can be based on pre-contractual negotiations not decided – in any event, absence of clear and convincing proof of alleged common understanding – held claim of conventional estoppel rejected ESTOPPEL – by deed or convention – estoppel by deed – final deeds executed estopped parties from claiming that agreement between the parties contained terms in earlier alleged agreements that were inconsistent with the recitals and terms contained in the deeds PARTNERSHIP – partnership property – dealings with partnership property – whether relevant deeds and agreements authorised first defendant to dispose of the proceeds of sale of the hotel assets and business in the way that he did – deceased authorised first defendant’s conduct in a way that gave rise to the defence of settled accounts – principles applicable to defence of settled accounts considered – held on facts that deceased was not bound by accounts signed by her EQUITY – general principles – fiduciary obligations – receipt of partnership property with notice that property transferred in breach of fiduciary duty – claim by plaintiff that second defendant, former wife of first defendant, received part of proceeds from the sale of partnership interest in hotel assets and business as a result of breach of fiduciary duty by first defendant – insufficient evidence of nature of and circumstances in which second defendant received part of proceeds of sale to make final findings concerning the state of her knowledge EQUITY – equitable remedies – accounts and enquiries – plaintiff seeks an order for an accounting by first defendant as accounting party in a partnership – also seeks correction of past annual financial statements of partnership on the basis that errors made in calculation of partners’ funds – held plaintiff entitled to an order for an account – appropriate basis for the conduct of the accounting not yet established SUCCESSION – wills, probate and administration – construction and effect of testamentary dispositions – effect of gift in will of deceased leaving all sums of money owing to her from the sale of the hotel to plaintiff and the first defendant – principles on the proper construction of wills considered – held gift intended to apply to deceased’s entitlement to an account by, or to equitable compensation from, the first defendant if guilty of breach of fiduciary duty as deceased’s partner INTEREST – where equitable relief in the form of equitable compensation may be given for breach of fiduciary duty – rate of interest and whether simple or compound interest – principles for awarding simple or compound interest considered – final determination of proper basis for payment of interest not made – insufficient evidence of consequences of breach of fiduciary duty

PRACTICE AND PROCEDURE – where plaintiffs amend pleadings twice between 2008 and 2010 – where proceedings stayed by reason of plaintiffs’ non- compliance with Order for provision of particulars in respect of second amended pleadings – plaintiffs relist matter in 2016 to seek lifting of stay – defendants bring application for dismissal of proceedings for want of prosecution

TORTS – negligence – slip and fall – plaintiff falls on wet tiles at shopping centre – tiles exposed to rain – breach of duty – whether insignificant risk – risk of persons slipping – reasonable response to risk -whether tiles should have been coated in non-slip surface – whether tiles should have been replaced – whether obvious risk – contributory negligence – whether plaintiff adjusted speed of travel when stepping onto tiles – causation – plaintiff suffering from Scheuermann’s disease – damage caused by fall limited in time – development of pain syndrome – psychological issues – absence of medical evidence to establish causation of pain syndrome and psychological issues TORTS – damages – plaintiff’s immigration status – whether prohibited from working – error by Department of Immigration