Cases and authorities

COSTS — Application for alternative costs order — Rule 42.19(2) Uniform Civil Procedure Rules 2005 — Plaintiff acted reasonably in commencing proceedings — Defendant acted reasonably in defending proceedings — Plaintiff discontinued proceedings on the basis of an undertaking given by the defendant to the Court — Significant compromise by both parties — Plaintiff achieved practical success — No order as to costs — Parties to pay their own costs

PROCEEDINGS FOR POSSESSION OF LAND – 99 year lease of cottage on land owned by Local Aboriginal Land Council – validity of lease – whether conditions of s 40, Aboriginal Land Rights Act complied with.

TRUSTS – Judicial advice under Trustee Act 1925 (NSW), s 63(1) – whether trustee is justified in entering into settlement deed – no issue of principle

COSTS –– claim for possession and debt against borrower and two guarantors – one guarantor pays out creditor and takes transfer of mortgage – cross-claim against principal debtor and co-guarantor – claim also for loan made by guarantor to principal debtor and co-guarantor - cross-claim settled except in relation to costs – assessment of claims made –multiple issues with differing costs results - Notice to Admit Facts – facts disputed later admitted – whether Court should otherwise order under rule 42 – effect on costs of late amendment

BUILDING AND CONSTRUCTION – adjudication determination – whether adjudicator committed jurisdictional error – whether amounts owing by a subcontractor under a construction contract can be setoff against a payment claim – whether contractual provisions imposing conditions on payment of a payment claim are void - Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 9, 10 and 34 EQUITY – fraud – setting aside adjudication determination obtained by fraud EVIDENCE – application of the principle in Jones v Dunkel PRACTICE AND PROCEDURE – whether party bound by way case conducted before an adjudicator

CRIMINAL LAW – appeal against sentence – market misconduct offences – whether sentencing judge erred in rejecting applicant’s evidence as to lack of knowledge of criminality – where applicant’s evidence unchallenged – impact on judge’s assessment of objective seriousness – whether applicant was denied procedural fairness CRIMINAL LAW – appeal against sentence – market misconduct offences – whether sentencing judge misapprehended seriousness of offending – where applicant’s unchallenged evidence addressed extent of impact of his offending on the market CRIMINAL LAW – appeal against sentence – proper approach where both error and denial of procedural fairness established – where remittal of proceedings would defeat the object of the appeal – consideration of appropriateness of appellate court re-exercising the sentencing discretion

CRIMINAL LAW – evidence suggesting accused involved in three unrelated killings – accused boasted of killings to instil fear in other members of criminal gang – evidence relevant to explain conduct of witnesses in obeying orders – body of other evidence of violence and intimidation – impact on assessment of probative value – danger of unfair prejudice – whether capable of cure by direction

CRIMINAL LAW – admissibility of evidence – assessment of probative value – whether evidence capable of constituting admissions – danger of unfair prejudice – evidence excluded – no question of principle

CORPORATIONS — Winding up — Application to set aside creditor’s statutory demand under s 459H(1)(a) of the Corporations Act 2001 (Cth) – where plaintiff contended that monies were received from defendant under an agreement for purchase of the plaintiff’s shares and not by way of loan – whether genuine dispute as to existence of debt.

PROCEDURE – preliminary discovery – leave for felon to make application

PRODEDURE – Interlocutory proceedings – interim payments – agreed between the parties TRUSTEE AND GUARDIANSHIP – conditions necessary to be satisfied before payment out of interim order – where conditions attach to NCAT order under Guardianship Act

JURY TRIAL – discharge application – Crown witness reveals existence of potentially corroborative material not revealed previously – no proper opportunity for Accused or Crown to examine and consider material – application for discharge granted.

SUCCESSION – Administration of estates - ongoing disputes between two executors – Competing claims brought following settlement of Probate proceedings – Payment of interest on money payable to the estate by one executor

Proceeds of Crime Act 2002 (Cth) – s 29 hearing – application for vacation of hearing date

CRIMINAL LAW – evidence – admission by silence – probative value – where different inferences arise – whether probative value outweighed by the danger of unfair prejudice

CRIMINAL LAW – admissibility of evidence – assessment of probative value – whether evidence capable of constituting admissions – danger of unfair prejudice – evidence excluded – no question of principle

CRIMINAL LAW – evidence suggesting accused involved in three unrelated killings – accused boasted of killings to instil fear in other members of criminal gang – evidence relevant to explain conduct of witnesses in obeying orders – body of other evidence of violence and intimidation – impact on assessment of probative value – danger of unfair prejudice – whether capable of cure by direction

ADMINISTRATIVE LAW – judicial review – jurisdictional error – decision of an Appeal Panel – wrongly made a finding that AMS had treated the claimant – determined re-examination necessary

PROCEDURE – Judgments and orders – Execution against property – Modes of execution – Charging order – Plaintiff obtained charging order under Civil Procedure Act 2005, s 106, against first Defendant’s shares in public companies – Plaintiff commences separate proceedings seeking relief under s 126 Civil Procedure Act for orders to take the benefit of the charge arising under a charging order, including an order for sale of the shares and appointment of registered liquidator to sell the shares – Entitlement of the Plaintiff as judgment creditor, in relation to the security interests charged by the order, to any relief to which the judgment creditor would have been entitled had the charge been made in the judgment creditor’s favour by the judgment debtor COSTS – Whether the Plaintiff should obtain an order for all of its costs as against the first Defendant

EQUITY - general principles – assignments in equity – substitution motions - Bankruptcy Act – whether bankrupt has power to appoint receiver – whether assignment beyond Power – whether causes of action were assignable

APPEAL – interference with Judge's findings of fact – whether otherwise unchallenged witness evidence unsupported by primary documents could be accepted by primary Judge – points and objections not taken below – whether submissions not raised below or in written submissions could be made

CRIMINAL LAW – Mutual Assistance in Criminal Matters Act 1987 (Cth) – part heard appeal against conviction – application for certificate for request for evidence to be taken in a foreign country

CRIMINAL LAW – appeal against sentence – drug offences – possession of prohibited weapons – co-offenders – principle of parity – whether the sentence imposed on the applicant demonstrates erroneous disparity when compared with the sentence imposed upon his co-offender

PROCEDURE – referral to pro bono panel for legal assistance – financial hardship – English as second language

PRACTICE AND PROCEDURE — applications for interlocutory injunction and transfer of proceedings — restraint of trade — parties contracted to submit to the exclusive jurisdiction of the courts of Victoria — proceedings could have been commenced in Victoria — in the interests of justice to transfer proceedings to the Supreme Court of Victoria pursuant to s 5(2) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) — claim for interlocutory injunction not heard or determined

DEFAMATION - injunctions - interlocutory injunctions PRODEDURE - Costs - Interlocutory proceedings

PROCEDURE – stay of judgment – no issue of principle

CIVIL – Mental Health (Forensic Provisions) Act 1990 (NSW) – application for extension order – whether final order should be made to extend status as a forensic patient - whether poses an "unacceptable risk" of causing serious harm to others - whether less restrictive means available – whether involuntary patient status under Mental Health Act 2007 (NSW) would adequately manage risk – extension order made – differences between statutory regimes

CORPORATIONS – external administration – winding up – distribution of property – statutory order of priority – superannuation guarantee charge liability – where liability is in respect of “employees” within extended definition in (CTH) Superannuation Guarantee (Administration) Act 1992 but not within (CTH) Corporations Act 2001 definition – held, not entitled to priority CORPORATIONS – liquidators – remuneration – small liquidation with some complexities – ad valorem preferred to time-based remuneration TRUSTS AND TRUSTEES – rights of trustee – rights of trust creditors – trading trust – where corporate trustee insolvent and in liquidation – distribution of trust assets - where trust liabilities exceed trust assets – whether statutory order of priority on winding up applies – held, it does not – trust creditors rank pari passu in respect of trust assets

CORPORATIONS – application to set aside winding up in insolvency – where interlocutory process is defective

CORPORATIONS – winding up – application for special leave to distribute surplus CORPORATIONS – winding up – liquidators – remuneration – where creditors paid so not possible for convening creditors’ meeting to approve further remuneration – (CTH) Corporations Act 2001, s 473(1) factors – small family company – where notice of application was given to contributories – where additional work not anticipated at time of creditors’ approval – ad valorem remuneration

PROBATE – deceased died suddenly in motorcycle accident – two alleged wills of the deceased propounded – deceased has small estate but entitled to a substantial superannuation death benefit – the third defendant/cross claimant alleges she was in a de facto relationship with the deceased at the time of his death – the plaintiffs/the father and sister of the deceased, claim administration of the estate on the basis of intestacy – the first and second defendants allege the deceased made two wills – the plaintiffs allege the two wills are forgeries – evidence that deceased did not sign either of the two wills -proceedings settled – whether an administrator should be appointed to the deceased’s estate – who should be appointed administrator. SUCCESSION – proceedings settled – third defendant/cross claimant brings claim for orders for family provision under Succession Act, Chapter 3 – whether the third defendant/cross claimants release of her claims for family provision should be approved under Succession Act, s 95.

PRACTICE AND PROCEDURE - Withdrawal of instructions - Ceasing to act - Leave to file a notice of ceasing to act - No notice of intention to do so served - Application shortly before hearing date – Solicitor for Plaintiff granted leave to file notice of ceasing to act PRACTICE AND PROCEDURE - Non-appearance by the Plaintiff at the hearing - UCPR rule 29.7 -Application by Defendant for dismissal of proceedings - No explanation for Plaintiff's absence – Evidence that Plaintiff aware of the hearing - Proceedings dismissed

PRACTICE AND PROCEDURE – application for declaration pursuant to s 73 Civil Procedure Act 2005 (NSW) that a binding settlement agreement entered into – no intention to be bound – agreed terms incomplete and unable to give rise to a binding agreement

PROCEDURE – application to issue subpoena – request of assistance from foreign jurisdiction – abridgment of time for service and return date

CRIMINAL LAW – Evidence – Leading questions – Where counsel for accused sought to put a leading question in cross-examination – Objection to the form of the question – Whether the witness had an interest consistent with interests of the cross-examiner – Whether the witness was sympathetic to the cross-examiner – Question rejected

CRIMINAL LAW – Evidence – Application for leave to allow witness to revive memory in court – Where Crown led evidence to rebut anticipated evidence of good character – Where Crown sought leave for witness to refresh memory from statement provided to police – Whether the statement was made when events were fresh in the memory – Gap of 1 year between events and the making of the statement by the witness - Leave refused WORDS AND PHRASES – “Fresh in the memory”

CRIMINAL LAW – Evidence – Evidence of gunshot residue on clothes worn by accused on the day of the murder of deceased – Whether evidence relevant – Whether evidence unfairly prejudicial

CONTRACT – Agreement – Subject to contract – Whether parties intended to be immediately bound - No written agreement signed as contemplated – Held, no contract RESTITUTION – Moneys had and received – Failure of consideration – Change of position defence – Whether inequitable to require recipient to pay

CRIMINAL – conviction – armed assault with intent to rob on basis of joint criminal enterprise – whether verdict unreasonable or not supported by evidence – whether open to jury to be satisfied beyond reasonable doubt as to appellant’s participation in agreement to rob and knowledge of offensive weapon – whether jury’s verdict finding appellant guilty could logically and reasonably stand with verdict of not guilty in relation to co-accused – whether different verdicts so inconsistent necessary to intervene to prevent injustice occasioned by guilty verdict – where rational bases may account for different verdicts – where verdict of guilty was open on the evidence – no miscarriage of justice

PROCEDURE – case management – valuation of shares – no question of principle

FAMILY LAW AND CHILD WELFARE – adoption – whether making an adoption order clearly preferable to any other order that could be made with respect to the care of the child – consent dispense order – whether child’s surname should be changed

SENTENCING – excessive self-defence manslaughter – evaluation of the degree to which the offender’s response exceeded that of what would be a reasonable response in the circumstances – offender armed himself with a knife believing the victim may have been a member of an outlaw motorcycle gang – victim was not armed – offender was the aggressor who stabbed the unarmed victim three times with a knife – response not a reasonable one as the offender perceived them – the response was an extreme one – intention to inflict grievous bodily harm – objective gravity of the offence of manslaughter by excessive self-defence was of a high order – offender had previous record of convictions for serious personal violence offences

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) ss 18B, 18E(1)(a) – claim for damages for breach of statutory warranty by builder in respect of work not performed in a proper and workmanlike manner – where particulars of defective work were pleaded by reference to an expert report and then amended to refer to another report whether the change constitutes commencing proceedings for the purpose of s 18E(1)(a) – mitigation of damages – whether plaintiff failed to mitigate damages by not giving the defendant builder an opportunity to rectify defective work – HELD – change in particulars was not the commencement of new proceedings – no failure to mitigate because the plaintiff did not act unreasonably in not giving the defendant the opportunity to remedy the defective work

PROCEDURE – notice of motion – leave granted to amend commercial list response – leave to rely on expert evidence denied – motion dismissed – costs

PRACTICE AND PROCEDURE – application for interlocutory injunction – restraining broadcast of allegedly defamatory material

CRIMINAL LAW – offences against the person – murder – trial by judge alone – defence of mental illness – accused suffering from severe case of paranoid schizophrenia – accused did not understand wrongfulness of his act – finding of not guilty by reason of mental illness

TRUSTS and SUCCESSION – co-executors of estate – disagreement by co-executors – application under Probate and Administration Act for the removal of one executor by the other – proceedings substantially settled subject to argument about costs – whether plaintiff would have succeeded in any event – whether either party’s conduct in the proceedings was unreasonable.

PRODEDURE – Court of appeal – interlocutory – Protective list – protected estate manager appointed tutor - application for leave to appeal without tutor – whether to grant a stay pending appeal – whether serious issues for determination by appeal – whether real risk of prejudice or damage – whether appeal would be rendered abortive or nugatory – balance of convenience – leave to issue subpoenas to attend to give evidence and to produce – whether special grounds for further evidence