Cases and authorities

CRIME - sentence - murder - offender found guilty after a trial - no intention to kill - no remorse - attack on vulnerable woman in her own home - extra-curial punishment

SUCCESSION - FAMILY PROVISION - Two Plaintiffs, each an adult child of the deceased, apply for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) - The first Defendant's husband, the brother of the deceased's second wife - Their children are sole beneficiaries - Deceased left Will in which no provision made for either Plaintiff - No explanation given in the Will - Lack of contact between each Plaintiff and the deceased for a number of years before his death - Small estate - Estate distributed to second and third Defendant - Defendants all agree that fund held by solicitors will meet any provision made for each Plaintiff - No dispute that property to be designated as notional estate if necessary - Agreement of parties to treat property as actual estate for the purposes of the hearing - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and, if so, the nature and quantum of the provision to be made

CRIMINAL LAW - appeal - sentencing - totality - adequacy of reasons

PROCEDURE – amendment of orders – whether amendment would involve jeopardy to the purchaser or receiver.

CORPORATIONS - Winding up - Insolvency - Proceeds of contract of reinsurance - Application for orders under Corporations Act 2001 (Cth) s 562A(4) - Whether "just and equitable" to make orders sought.

PROCEDURE – adjournment – where plaintiff applies to vacate imminent hearing – whether sufficient explanation for state of preparedness – where adjournment will ocassion prejudice to defendant – application refused

CRIMINAL LAW - application under Part 7 Crimes (Appeal and Review) Act 2001 for inquiry into conviction for sexual intercourse without consent - no doubt or question as to the applicant's guilt

See Headnote

PROCEDURE - notice of motion - orders sought setting aside consent orders - irregularity established - orders made - leave to amend summons granted - costs

CONTRACTS- Building, engineering and related contracts- payment schedules under s 14 of the Building and Construction Industry Security of Payment Act 1999 (NSW) - whether payment schedule was provided within time prescribed by respondent - whether payment schedule was provided by agent of the respondent - turns on facts- no question of general principle.

ESTOPPEL - equitable estoppel - proprietary estoppel - estoppel by encouragement - when available - director of plaintiff company entered into discussions with defendants regarding acquisition of land by defendants and lease of portion of acquired land to plaintiff company - where defendants allowed director of plaintiff company to oversee design and construction of premises on land and were aware plaintiff intended to install expensive adhesives manufacturing equipment for its business which equipment would be costly to dismantle and remove - where director of plaintiff had familial and domestic connection to three of four owners of land - where defendants had practice of not documenting leases relating to their properties - where plaintiff's lease with defendants not documented - effect on reasonableness of reliance - whether essential for plaintiff's assumption to be as to legal relationship or legal rights - relevance of familial and domestic context - whether parties having not reached consensus on important terms of lease precluded estoppel arising - whether defendants estopped from relying on rights at law to determine tenancy at will ESTOPPEL - estoppel by convention - where plaintiff adopted assumption that it would have exclusive occupation of certain area on defendants' premises for five-year term with further five-year option - where individual defendants made no assumption as to the period of plaintiff's exclusive occupation - parties' different assumptions fatal to conventional estoppel claim CONTRACTS - general contractual principles - where one defendant co-owner of property given authority to negotiate terms of occupancy by plaintiff but no authority to enter into agreement on other defendant co-owners' behalf - agreement as to some essential terms reached but parties lacked intention to enter into binding legal relations - no binding contract formed REMEDIES - equitable proprietary estoppel - power to order defendant to execute lease on certain terms - illegality - where defendants claimed grant of lease as sought by plaintiff would result in illegal use of property - relief conditional upon plaintiff obtaining regulatory approval from council

CRIMINAL LAW - conviction appeal - attempting to indecently assault adult female - finding of guilt after jury trial but acquitted of two other counts - whether verdict of guilty unreasonable or unable to be supported by the evidence - whether jury verdicts were inconsistent - issue of consent - adequate evidence to support jury verdict - corroboration for victim's complaint - appeal dismissed.

CRIMINAL LAW - sentence appeal - two counts of conspiracy to defraud Commonwealth and two counts of conspiring to dishonestly cause a loss to the Commonwealth - a further conspiracy dealt with by way of a schedule - accountant engaged in a tax avoidance scheme - offending objectively serious - offender aged 65 and suffering from significant physical disabilities - whether offences on schedule properly taken into account - whether adequate regard had to the principle of equal justice - need to re-sentence - whether offender's medical conditions adequately treated in gaol - re-exercise of sentencing discretion - need to take into account offender's present medical condition - sentence reduced.

CRIMINAL LAW - supply prohibited drugs - knowingly deal with proceeds of crime - sentence - aggregate sentence imposed - whether applicant suffered from Attention Deficit Hyperactivity Disorder - whether he would receive medication for ADHD in custody - whether sentencing judge's conclusion open on the evidence - whether standard non-parole period given determinative significance - whether assessment of objective seriousness made - whether sentence manifestly excessive

BAIL – detention application – bail granted by District Court after trial vacated to await determination of 5F appeal - jurisdiction of District Court to hear bail application once bail had been refused by Supreme Court – special or exceptional circumstances limited to circumstances of present case BAIL – detention application – unacceptable risk

BANKING AND FINANCE - instruments - cheques - whether cheque was filled up with authority -where inchoate instrument handed over to real estate agent - where real estate agent filled up cheque - where cheque then delivered for payment of deposit on purchase of real property- BANKING AND FINANCE - instruments - cheques - whether cheque was delivered conditionally - where conditions communicated to real estate agent not payee - whether payee was informed of conditions - whether conditions required to be satisfied if payee not aware of conditions - whether communicated conditions were satisfied before cheque was presented PROCEDURE - costs - departing from the general rule - whether to make order for costs on indemnity basis - where offer of compromise made close to hearing date - where offer only compromised claim as to interest amount - whether reasonable not to accept offer - whether court should otherwise order

FAMILY LAW AND CHILD WELFARE - Appeals - Procedure - Extension of time - Appeal from Children's Court orders relating to parental responsibility of young person - No adequate explanation for delay - Safety, welfare and wellbeing of young person paramount - Not in interests of young person to grant extension of time - Proceedings dismissed.

CRIMINAL LAW - adjournment - discharge of jury - application for adjournment after ruling that no evidence support some counts on the indictment - application requiring discharge of jury - application to enable appeal against acquittal in circumstances where no interlocutory appeal available - decision said to be relevant to "other cases in the pipeline" - no details of other cases provided or known - delays in trial - expense - accused entitled to verdicts on other counts on indictment - accused on stringent bail condition for two years - suggestion that accused not prejudiced rejected - no prejudice to prosecution in remaining charges going to verdict

CORPORATIONS – application to amend to plead new claims based on breach of director’s duties owed to companies – whether amendment should be allowed in part-heard proceedings – terms upon which amendment should be allowed - whether Court should give leave to a contributory to prosecute claims for breach of director’s duties on behalf of company – companies in administration – leave unable to be given under ss 236 and 237 Corporations Act 2001 (Cth) - inherent jurisdiction of Court – whether the plaintiffs’ should provide security for indemnities given to companies in relation to costs

TORTS - professional negligence - cross-claim against solicitor - cross-claimant husband and wife received legal advice from cross-defendant in relation to signing a loan agreement and mortgage - solicitor was not obliged to advise husband to obtain independent advice - mere fact that the solicitor had been told two years previously that parties were separated did not give rise to a duty to interrogate clients about the state of their marriage - parties living separately for benefit of son - joint loan secured over joint property for apparently mutual benefit LIMITATION OF ACTIONS -causes of action statute-barred DAMAGES - no proper evidence to make findings on the calculation of damages - loan increased by unrelated refinance - quantum of benefit retained by cross-claimant from loan unclear - costs of retaining a handwriting claimed by cross-claimant were incurred as a result of the cross-claimant's false instructions to solicitor

PROCEDURE - pleadings - notice of motion - leave sought to amend statement of claim - granted - costs PROCEDURE - admissions - application for leave to withdraw admisssion - refused PROCEDURE - separate trial - notice of motion - severing quantum and liability - application for separate trial refused - costs

PRACTICE AND PROCEDURE - appeal - leave - error on part of trial judge - limited prospects of success - small amount in issue - no issue of principle CONTRACT - written document with no operative provisions - attempt to infer condition for repayment of money from recital - terms unclear

APPEAL - Whether primary judge erred in considering delay and prejudice - Whether primary judge erred in refusing to permit cross-examination during interlocutory proceedings - Courts must have regard to the overriding purpose of facilitating the just, quick, and cheap resolution of the real issues in proceedings APPEAL - Summary dismissal - Whether the primary judge erred in summarily dismissing the application to amend - Whether the claims were so obviously untenable or groundless that there was 'a high degree of certainty' that they would fail if allowed to go to trial - Assessment must be made taking the plaintiff's case at its highest PRACTICE AND PROCEDURE - Pleadings - Leave to amend statement of claim refused by primary judge - Whether primary judge erred in concluding that the proposed amendments were inadequate - Whether proposed amendments sufficiently pleaded fraud or a personal equity against the second and third defendants - Claim of knowing receipt or knowing assistance under first and second limb Barnes v Addy - Claim that second and third defendants were "primary wrongdoers" - Allegations must be expressly pleaded and sufficiently particularised PRACTICE AND PROCEDURE - Pleadings - Fraud exception to a claim of indefeasibility - Fraud must be specifically and clearly pleaded - Particulars of fraud must be given under UCPR r15.3 - Whether proposed amendments sufficiently pleaded fraud - Personal equities arising under Barnes v Addy cannot prevail against indefeasibility under s 42 Real Property Act - Personal equity requires there to be some form of acknowledgment, agreement, or undertaking in regards to the unregistered interest from which the registered proprietor later resiles

CORPORATIONS - membership, rights and remedies - derivative action - application for grant of leave by shareholder to bring proceedings in name of company in liquidation under inherent jurisdiction - whether the proposed cross-claim has some solid foundation - whether proceedings present reasonable prospects of success - attitude of liquidator - practical considerations - whether leave should be granted on terms that company be indemnified against costs - case management - whether leave should be granted to applicants to conduct proceedings without assistance of a solicitor.

PROCEDURE - inferior courts - New South Wales - District Court - transfer of proceedings - equitable jurisdiction of District Court - whether claim for equitable compensation for breach of trust within s 134(1)(e) and thus excluded from s 134(1)(h) - held, it is REAL PROPERTY - strata title - management and control - duty of owners corporation to maintain common property - trustee obligations of owners corporation - whether claim for equitable compensation for failure to maintain common property maintainable - held, it is not

DEFAMATION – pleadings – determination of defendant’s objections to plaintiffs’ imputations

DEBT - loan agreements - parties agree on judgment for principal sum and interest for the period of loan agreements - whether interest thereafter payable at contract rates or pursuant to s 100 Civil Procedure Act - construction of loan agreements

SUCCESSION – executors and administrators – management of estate of missing person by NSW Trustee – whether order should be made to commit the estate to management – whether defendant ‘missing’ – whether alternatives to management preferable – whether mortgagee has standing to seek order – held, order made for management

TORTS - negligence - workplace injury - occupiers liability - where employee slipped and fell at worksite - whether occupier owed duty of care - whether employer owed duty of care

CRIMINAL LAW - application for directed verdict of not guilty - constructive murder - murder felony rule - joint criminal enterprise - interaction of principles - fire in clandestine methylamphetamine laboratory - co-offender killed in fire - no evidence of who committed act causing death - no evidence to exclude possibility that deceased committed the act causing death - whether joint criminal enterprise catches every act committed by co-offender - principal in the second degree - derivative liability - deceased could not be guilty of his own homicide - manslaughter by unlawful and dangerous act - causation - whether chain of causation broken by act of deceased

SUCCESSION - FAMILY PROVISION - The Plaintiff, an adult child of the deceased, applies for family provision order under Chapter 3 Succession Act 2006 (NSW) - The Defendant, also an adult child of the deceased, the executor named in the Will but not a beneficiary - Whether adequate and proper provision not made in the Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made for him - Order for provision made

CRIMINAL LAW – evidence – tendency evidence - applicant indicted on multiple counts of sexual assault involving three complainants – Crown relied upon tendency evidence and opposed separation of counts – suggestion of concoction or contamination – where primary judge found that there was no evidence of concoction or contamination – whether such finding open on the evidence CRIMINAL LAW – evidence – tendency evidence - applicant indicted on multiple counts of sexual assault involving three complainants – Crown relied upon tendency evidence and opposed separation of counts – suggestion of concoction or contamination - relevance of the application of common law principles in determining the admissibility of tendency evidence CRIMINAL LAW – evidence – tendency evidence - applicant indicted on multiple counts of sexual assault involving three complainants – Crown relied upon tendency evidence and opposed separation of counts – suggestion of concoction or contamination – whether concoction or contamination were matters going to reliability and credibility – whether they were matters which were relevant to a determination of the probative value of the evidence

CRIMINAL LAW - Crown appeal against sentence - sexual intercourse with child between 14 and 16 - breach of suspended sentence good behaviour bonds - incorrect approach adopted in dealing with breach of bonds - sentencing judge entitled to have regard to earlier offences in order to assess totality - multiple errors made by sentencing judge - sentences not manifestly inadequate

EVIDENCE - application by Crown to cross-examine unfavourable witnesses - advance ruling - Evidence Act 1995 (NSW), ss 38 and 192A - witnesses included persons named on indictment but not charged - whether appellable error in grant of leave to cross-examine - whether appellable error in judge inquiring, in presence of jury, whether witness aware of right to object to giving self-incriminating evidence

SENTENCE - Crown appeal against sentence - Criminal Appeal Act 1912, s 5D - accessing, possessing, making available and producing child pornography - whether sentence manifestly inadequate - whether residual discretion to dismiss appeal should be exercised - relevant factors SENTENCE - Crown appeal against sentence - possession of child pornography - aggravating factors - sorting, storing and replicating material - destroying material with knowledge of police warrant SENTENCE - Crown appeal against sentence - totality - accessing, possessing, making available and producing child pornography - whether sentences should be served concurrently - where offences of significantly different nature - need for partial accumulation to reflect totality of offending conduct

CRIMINAL LAW - appeal - appeal against sentence - whether sentence affected by Muldrock error - whether any lesser sentence is warranted - appeal following increase of sentence - nature of appeal

APPEAL - leave to appeal - applicant insurer held liable to pay claim in respect of motor vehicle written off after collision with tree - whether trial judge reversed the onus of proof - where expert evidence that accident could not have occurred as respondent contended - where trial judge misstated one aspect of expert's evidence - where applicant sought to avoid policy in reliance on claim respondent failed to be truthful and frank in relation to claim - whether applicant had established arguable error requiring correction to avoid injustice warranting appellate intervention - leave refused

PROCEDURE - subpoenas - application for subpoena to be set aside - where subpoena issued seeking production of documents to impugn credit of witness - whether subpoena issued for legitimate forensic purpose - whether subpoena should be set aside.

[PRACTICE & PROCEDURE] - where lengthy and complex trial - where judgment reserved - where after some months parties make application for delivery of judgment to be delayed - where application for leave to re-open granted - further evidence - after judgment further reserved and listed for delivery, further request for delay so parties can pursue settlement discussions. [LEGAL PROFESSION] - expectation of practitioners - need for promptitude - consideration of other litigants awaiting judgments - delay occasioned to others while preparation of ultimately unnecessary judgment

PROCEDURE – judgment and orders – undertaking to court – default – alleged but not proven due to impecuniosity – proceedings stayed.

REAL PROPERTY - possession of land - claim for possession by NSW Trustee and Guardian as manager of registered proprietor - Defence filed disclosing no defence to claim - Defence struck out with leave to re-plead

PROCEDURE - judgments and orders - disputed issues remaining before orders can be made to give effect to primary judgment in proceedings - declaratory relief - whether declaration sought by plaintiff should be granted - accounting - disbursements - form and function of schedule to be provided by first and second defendants for justification of professional fees incurred by their former solicitors - whether balance of proceedings should be referred to a referee. CORPORATIONS - voluntary administration - deeds of company arrangement - right of indemnity - order sought by plaintiff under Corporations Act 2001 (Cth) s 447E - whether first and second defendants are entitled to indemnity from company's assets for costs incurred and remuneration in defending proceedings. PROCEDURE - costs - general rule that costs follow the event - where there has been a mixed outcome in proceedings - whether reason shown to depart from general rule - apportionment of costs - whether costs should be payable forthwith.

PROCEDURE - costs - general rule that costs follow the event - whether reason shown to depart from general rule - whether plaintiff is entitled to Bullock order against first defendant in respect of its costs liability to second defendant.

PROCEDURE - judgments and orders - disputed issues remaining before orders can be made to give effect to primary judgment in proceedings - declaratory and injunctive relief - discretionary considerations - whether declarations sought have sufficient practical utility - whether declarations would quell present controversy despite potentially leaving some further issues unresolved - whether declarations sought are merely prefatory to order for damages - whether court should grant injunctive relief sought by cross-claimants - orders for disclosure - whether court should grant disclosure of relevant information to cross-claimants to facilitate election between alternative remedies - whether disclosure of third party information should be granted on Norwich Pharmacal basis - whether inquiry into damages should be made - whether third cross-defendant should be ordered to deliver up embodiment of relevant software in its possession.

PROFESSIONS AND TRADES - lawyers - other matters - barristers - senior counsel - application for appointment ASSOCIATIONS AND CLUBS - jurisdiction of the courts - interference in internal management - bases for intervention - contract - restraint of trade - oppression CORPORATIONS - membership, rights and remedies - members' remedies and internal disputes - oppression - whether deadline of general application oppressive to member who fails to meet it - whether decision not to extend time oppressive TRADE AND COMMERCE - other regulation of trade or commerce - restraints of trade - whether protocol of association for selection and appointment of senior counsel a restraint of trade - whether deadline for applications a restraint of trade

CRIMINAL LAW - appeal against sentence - drug and firearm offences - quantity of drug for supply just within indictable range - offence of supply prohibited drug not above mid-range objective seriousness - sentence for supply manifestly excessive - finding that offence of possess prohibited unauthorised firearm was in mid-range objective seriousness was open - weapon was altered to conceal and found to be possessed by "criminally minded" offender - found in context of drug manufacture and supply activity and with ammunition - despite manifest excess for supply offence, no lesser overall sentence required in law

CRIMINAL LAW - appeal against sentence - intentionally destroying property by fire - no failure to take subjective case into account - no error in finding that applicant had been subject to lengthy supervision in the community - sentence reflected worst or close to worst category of offence - to be expected that sentencing judge would have expressed finding of worst category if found - offence fell above mid-range but not at or near top of range - sentence manifestly excessive

CRIMINAL LAW - appeal - appeal against sentence - possession of prohibited drug for supply - whether sentencing judge erred in determining that the applicant was substantially involved in supply - whether sentencing judge erred in failing to make a finding that the applicant was unlikely to reoffend - whether sentencing judge failed to give sufficient weight to the applicant's subjective features - whether the sentence imposed was unduly harsh and severe - discretion of the Court of Criminal Appeal - principles stated in Kentwell v R

CRIMINAL LAW - appeal - leave to appeal sentence - whether sentencing judge failed to give proper consideration to the principle of parity - whether sentencing judge erred in finding that the offence was well and truly above the middle range of objective seriousness - applicants offence more serious than that of co-offenders - leave to appeal granted but the appeal be dismissed