Cases and authorities

REAL PROPERTY - strata schemes - whether orders of NSW Civil and Administrative Tribunal appointing strata managing agents displaced power of executive committee to appoint solicitor to act for Owners Corporation; PRACTICE AND PROCEDURE - setting aside of orders - whether serious question to be tried that orders obtained against good faith or in absence of party

PROCEDURE - costs - orders made

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

COSTS - successful plaintiffs seeking costs against a submitting defendant - whether conduct of submitting defendant made it necessary for plaintiffs to seek relief and incur costs

CORPORATIONS - voluntary administration - validity of appointment of administrator - where meeting of relevant directors purportedly resolved that company enter into voluntary administration and administrators be appointed - where plaintiff director was absent from such a meeting - whether appointment of administrators was invalid - whether reasonable notice was provided to plaintiff of meeting - notice by facsimile - period and form of notice - whether administrators entitled to rely on statutory assumptions under Corporations Act 2001 (Cth) ss 128-129 - whether appointment of administrators was inappropriate - whether third defendant's conduct in calling a meeting for appointment of administrators breached duty to act in good faith in company's best interests under Corporations Act s 181 - whether appointment should otherwise be validated under Corporations Act ss 447A, 447C and 1322. EQUITY - fiduciary obligations - where third defendant was engaged as accountant to company - where third defendant's engagement was limited to compliance and accounting work - whether third defendant owed fiduciary duty to plaintiff to provide advice in respect of appointment of administrators to company. PROCEDURE - costs - general rule that costs follow the event - whether reason shown to depart from general rule - orders sought by first and second defendants against plaintiff for further costs on indemnity basis - whether circumstances justify order for costs against plaintiff on indemnity basis.

CORPORATIONS - voluntary administration - deeds of company arrangement - remuneration of administrators and deed administrators - application for review of remuneration under Corporations Act 2001 (Cth) s 449E(2) - whether it is just for review of remuneration to proceed - discretionary considerations - delay and acquiescence - informed consent of creditors to relevant resolutions approving remuneration.

CRIMINAL LAW - appeal against conviction - charges of sexual assault upon child - Crimes Act 1900, s 66C(2), s 61M(1), s 61O(2) - directions to jury and summing up - whether misdirection on use of photographs as corroboration, failure to cross-examine complainant on inconsistent statement or limitations upon use of context evidence - whether trial judge adequately put defence case to jury - whether erroneous failure to permit accused to raise prior good character - whether verdicts unreasonable or unsupportable

TORTS - negligence - where respondent injured when fell while walking down stairs to ice skating rink in ice skating boots - whether risk of slipping was obvious - whether instruction to avoid or minimise a risk is a warning of that risk - whether reasonable occupier would have provided a warning of that risk - whether the activity of descending the stairs part of the "dangerous recreational activity" of ice skating - whether notice sign contained warning of relevant risk - whether contributory negligence - Civil Liability Act 2002 (NSW), ss 5F, 5H, 5M

SUCCESSION - family provision - application for family provision order under Part 3 Succession Act 2006 (NSW) - application by adult grandson - deceased left whole estate to his only child (applicant's mother) - estate consisting principally of the deceased's interest in a grazing enterprise part owned by the sole beneficiary - primary judge ordered payments totalling $387,000 to applicant grandson - failure to articulate any cogent basis for departing from the testator's scheme of benefaction in favour of his only child - no such basis available on the evidence - evaluative judgment miscarried - principles relevant to family provision claims by grandchildren discussed - PROCEDURE - costs - costs in family provision cases - principle that costs follow the event generally applicable - unsuccessful applicants should not expect that, as a general rule, the costs discretion will be applied so as to exempt them from liability for costs.

CRIMINAL LAW – procedure – jury – member of jury had knowledge of witness – juror did not recognise name of witness when read out – whether juror should be discharged – s 53B(b) Jury Act 1977 – juror discharged – whether balance of jury should be discharged – s 53C Jury Act 1977 - early stage of trial – balance of jury discharged

PROCEDURE - Application for a stay of a writ of execution - cross-claim only as to interest - sale necessary to enable payment of capital debt

EVIDENCE - course of evidence and addresses - course of evidence - where proceedings continue on pleadings - prima facie position is evidence must be given orally - where parties have proceeded on basis that evidence would be given by affidavit - where disputed conversations - where defendant seeks that evidence of conversations be given orally PROCEDURE - Supreme Court procedure - New South Wales - proceedings on or continued on pleadings - evidence in chief of witnesses at trial must be given orally unless the Court otherwise orders

EVIDENCE - malicious prosecution - whether evidence of witness relevant to an absence of reasonable and probable cause - whether evidence impermissibly concerned only with plaintiff's guilt - where witness possibly unreliable - whether probative value of evidence outweighed by danger of unfair prejudice pursuant to s 135 Evidence Act 1995

CIVIL LAW - application for preparation of psychiatric and psychological reports pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 - application for interim supervision order pursuant to s 10A of the Act - test relevantly identical - whether test made out - whether ISO should be granted - whether conditions of ISO should include electronic monitoring

PROCEDURE - costs - security for costs -whether special circumstances established pursuant to r 51.50 UCPR

CONTRACTS - loan contracts entered into with the Respondent - mortgage originator engaged in fraudulent activity resulting in the misappropriation of funds advanced by the Respondent - whether the loan contracts were unjust in the circumstances in which they were entered into - whether the system of arranging mortgages established by the Respondent failed to adequately monitor the mortgage originators to detect fraudulent activity - Contracts Review Act 1980 (NSW), ss 7, 9 PROCEDURE - judgments and orders - adequacy of reasons - whether the trial judge referred to matters listed in s 9 of the Contracts Review Act

CORPORATIONS – winding up – orders sought for termination of voluntary winding up of company – whether solvency established – interests of creditors, liquidator and contributories – notice of application – whether winding up should be terminated.

COSTS - indemnity costs - gross sum costs orders - costs orders against non-parties - application for gross sum costs order against non-party director of defendant company now in liquidation - where director responsible for defendant company's raising defence and cross-claim based on matters he knew were untrue - application granted subject to reduction to reflect contingency of reduction of costs on assessment

TORTS - NEGLIGENCE - workplace injury - liability of principal as occupier to take reasonable steps to prevent employee of subcontractor being subject to risk of foreseeable harm from occupier's work practices - proportionate liability with employer

DEFAMATION - Damages - Jury verdict - Two imputations proved true and five further imputations not proved true - Publication defamatory overall - assessment of damage

CRIMINAL LAW - Appeal - Appeal against sentence - Whether sentence imposed was manifestly excessive - Whether sentencing judge failed to have sufficient regard to the objective seriousness of the offending and the offender's subjective circumstances

CRIMINAL LAW - sell firearms to unauthorised person - supply drugs - sentencing - crown appeal - whether sentence manifestly inadequate - whether due regard given to maximum sentence and standard non-parole period for firearm offences

REAL PROPERTY - Torrens title - caveats - extension of caveat - evidence not sufficient to establish caveatable interest claimed

CRIMINAL LAW - sentence - manslaughter - armed assault with intent to rob - joint criminal enterprise to rob with foresight of harm - mid-range objective seriousness but lesser role than co-offenders - prior knowledge of weapon - multiple assailants - lack of criminal history attracts leniency - home environment marked by social deprivation - remorseful - good prospects of rehabilitation - additional anxiety and stress in custody - parity - totality - accumulation - special circumstances CRIMINAL LAW - sentence - manslaughter - joint criminal enterprise to assault with foresight of harm - multiple assailants - criminal history - subject to bond at time of offence - home environment marked by social deprivation - remorseful - reasonable prospects of rehabilitation - additional anxiety and stress in custody - parity - special circumstances

COSTS - offer of compromise -- whether invalidated by reason of non-compliance with UCPR 20.26(2) - where offer proposing "no order as to costs" - where time offer open for acceptance not set out in offer COSTS - "walk away" offer - whether genuine offer of compromise - whether reasonable for appellant not to accept - circumstances in which "walk away" offer engages UCPR 42.15A(2) STATUTORY INTERPRETATION - costs - whether purpose of UCPR(20.26(2) that act done in breach of that provision should be invalid

MOTOR ACCIDENTS - application of s 3A of the Motor Accidents Compensation Act -primary judge erred in finding injuries suffered by respondent were a result of and caused during the driving of the vehicle - finding of liability not supported by evidence

ADMINISTRATIVE LAW - judicial review - appeal from decision of proper officer - dismissal of application for review of medical assessor - proper officer not satisfied there was reasonable cause to suspect medical assessment was incorrect in a material respect - whether proper officer misapprehended nature of limits of functions and powers under Motor Accidents Compensation Act 1999 - whether proper officer should have been satisfied that there was reasonable cause to suspect medical assessment was incorrect in a material respect - whether decision of proper officer was infected with jurisdictional error or error of law on the face of the record of the decision - definition of impairment - assessor obliged to take shoulder impairment into account in assessing whole person impairment - assessor obliged to reach a conclusion notwithstanding inconsistency in range of motion - proper officer ought to have had a suspicion that medical assessment was incorrect in a material respect - proper officer misapplied Guidelines - error demonstrated - remitted for fresh determination

DEFAMATION – interlocutory steps – defendant seeking order that plaintiff answer interrogatories – whether necessary – where defendant seeking to prove truth of imputation that plaintiff murdered a person – where plaintiff had never previously given a sworn account as to his movements on the night of that person’s death

APPEAL – appeal against Local Court decision – ss 39 and 40 Local Court Act 2007 – cross-appeal by defendant – appellant’s lounges given to the defendant for restoration – lounges destroyed in fire at defendant’s business premises – claim for damages for breach of bailment – claim for loss of use of lounges – whether error of law in assessing damages – error of law found – also error of law in failing to award damages for loss of use of a personal item – s 41 Local Court Act 2007 appeal determined by varying terms of judgment

PROCEDURE – miscellaneous procedural matters – transfer of proceedings under Jurisdiction of Courts (Cross-Vesting Act) – to Family Court – where resolution of proceedings in which party to Family Court proceedings has no standing may affect outcome of Family Court proceedings – where issue in proceedings is clearcut and transfer would increase costs – where undertaking given not to raise estoppel in Family Law proceedings – transfer refused and order made.

CORPORATIONS – external administration – winding up – insolvent trading – proof of amount of loss or damages suffered by creditor

PROCEDURE – compromise and settlement – incapable person – relevance of familial relationship between parties

EVIDENCE – witnesses – privilege against self-incrimination – where first and second defendants seek to rely on affidavit evidence of witness in chief – whether certificate can be granted to witness giving evidence in chief under Evidence Act 1995 (NSW) s 128 – whether witness was compellable by first and third defendants to give evidence in proceedings.

CORPORATIONS - constitution and replaceable rules - memorandum and articles of association - construction CORPORATIONS - winding up - other grounds for winding up - just and equitable ground - alleged failure to comply with constitutional and statutory obligations - alleged failure of substratum - where plaintiffs comprise special majority of those entitled to vote on resolution to wind up - whether internal process of special resolution should be bypassed

CIVIL LAW - dispute with Australian Tax Office - default judgment entered - whether default judgment is inconsistent with a previous decision of the Court - consideration of Anshun estoppel - whether the default judgment should be reopened because there is a real issued to be litigated

CIVIL LAW - PRACTICE AND PROCEDURE - negligence - where tutor appointed unable and unwilling to continue as tutor - no replacement tutor proposed - whether tutor should be removed

PROCEEDS OF CRIME - where restraining order made - extension order sought extending the period before property is irrevocably forfeited- whether applications for extension made without undue delay and diligently followed up on

EQUITY – trusts and trustees – constitution of trust – capacity to constitute trust PROCEDURE – miscellaneous procedural matters – cross-claim – cross-claim by defendant against third party – sufficiency of connection to original proceedings – where leave sought to join parties to proceedings for the purpose of precluding them from raising like issues in subsequent proceedings – leave refused

SUCCESSION – executors and administrators – application for Benjamin order – whether further enquiries regarding next of kin of deceased must be made before concluding the estate belongs to the Crown as bona vacantia – where evidence reveals reference to a “nephew” without further explanation – further enquires to be made

COSTS - Indemnity costs - Plaintiffs amend so as to delete claim against one defendant - No issue of principle

SUCCESSION - Family provision - De facto relationship - Widow's claim - Other family relationships in competition - Relief granted

LANDLORD AND TENANT - termination of the tenancy - provisions giving right to terminate in named circumstances - service of section 129 notice in relation to breaches of lease - alleged breaches of the lease - where alleged breaches in relation to car parking spaces - where clause in lease that lessee must comply with any conditions of consent - where car parking does not comply with conditions of development consent - where council has taken no action in relation to breach of conditions and has issued occupation certificate irrespective of development consent - where alleged breach in relation to insurance - where occupant of the premises had insurance of the kind required in place in relation to the premises for duration of occupancy - where insurance amended to name lessor as an insured - where alleged breach in relation to parting with possession or assignment of lease - where consent to sublease sought and given by lessor - where sublease effective only in equity and not at law - where sublease not formalised - whether continued breaches of the lease - whether lessor entitled to terminate lease on basis of breaches LANDLORD AND TENANT - termination of the tenancy - application for relief against forfeiture - general principles in relation to relief against forfeiture - exercise of discretion - where breach incapable of causing loss to lessor - where breach trivial - balancing exercise - where lessor seeking to take advantage of the benefits which would accrue by forfeiture - whether to grant relief against forfeiture LANDLORD AND TENANT - renewals and options - relief against loss of option for renewal - where notice served under section 133E - whether breaches of lease were "de minimis" - whether breaches of lease subsisting at time of service of notice - where breaches caused no loss to the lessor - whether to grant relief under s 133F - discretionary considerations - where breaches not current or continuing at the time the lessee sought to exercise the option - no evidence that the lessor suffered any loss or damage due to breaches of lease - whether lessor had commercial interest in property and therefore whether lessor would suffer loss by forfeiture

LIMITATION OF ACTIONS - extension of limitation period - where not reasonable to have commenced proceedings within one year from publication - mandatory extension to a period of up to 3 years - proper approach to determining length of extension to be granted.

SUCCESSION - Approval of inter vivos release - No affidavit by the releasor - No appearance by releasor at the hearing of the application for approval - Release part of settlement of common law proceedings which were referred to court-annexed mediation - Whether to approve the release

DEFAMATION - pleadings - plaintiff's application to amend - whether plaintiff entitled to adopt defendant's contextual imputations - pleading alternatives as contextual imputations - whether amendment would cause prejudice to defendant - whether refusal to allow amendment would cause injustice to plaintiff

DEFAMATION - defences - defence of contextual truth under s 26 of the Defamation Act 2005 - content of requirement that a defendant's contextual imputation be an "other" imputation arising "in addition to" the imputations of which the plaintiff complains - whether statute imposes any further requirement beyond the requirement that the imputation differ in substance from the plaintiff's imputations

ADMINISTRATIVE LAW - judicial review - Medical Assessment Service - review panel - certificate of reasons - psychiatric injury whole person impairment of ten per cent - ADMINISTRATIVE LAW - judicial review - statutory function - review panel failed to discharge its statutory function because it failed to assess all matters afresh in assessing whole person impairment, whether - Motor Accidents Compensation Act 1999, s 36 - review to be conducted by way of a new assessment of all the matters with which the medical assessment is concerned - medical assessment guidelines - guidelines for the assessment of the degree of permanent impairment - review panel did not make any fresh assessment, whether - review panel relied on original assessor, whether - obligation of review panel - jurisdictional error - error on the face of the record - ADMINISTRATIVE LAW - judicial review - procedural fairness - failure to accord procedural fairness, whether - review panel to determine afresh the medical assessment - content of procedural fairness - confront applicant with inconsistencies - opportunity to respond

CRIMINAL LAW - costs - trial vacated at late stage on application of Crown - arising from stay based on Lee v The Queen principles - whether costs order can be made - what must be shown - whether fault on the part of the Crown

CIVIL LAW - strata plan - dispute between owner of penthouse and owners corporation - construction of by-law under strata plan - whether by-law provided for exclusive use and enjoyment of elevator - whether elevator exclusively serviced a particular unit - whether tribunal erred in using extrinsic material to construe the by-law - whether tribunal erred in its use of technical specifications as to the programming of lift - relevance of the history of use of lift by occupants of building - whether history of use of lift established that lift exclusively serviced particular unit - leave to appeal - where elevator the only lift capable of carrying a stretcher and large furniture - whether appeal raised a question of law or fact

PROCEDURE - civil - interlocutory issues - discovery - oppression - further discovery would place onerous and oppressive burden on defendants, whether - further discovery would be an abuse of process, whether - Uniform Civil Procedure Rules 2005 - balancing exercise - right to discovery - need to identify class of documents relevant to a fact in issue - not relevant to chain of inquiry or credit - personal injury claim - threshold requirement - special reasons- plaintiffs were children at time of events - existence of special reasons - considerations against discovery - other avenues for obtaining documents - inquiry - many documents produced there provided to parties - previous orders for discovery - production of documents - difficulties in obtaining documents - considerations for discovery - nature of proceedings - requires plaintiff to expose relevant knowledge and negligent inaction on part of defendants - need for documents in possession of defendants - aids to clarify the real issues in proceedings - early resolution PROCEDURE - civil - interlocutory issues - discovery - relevance - categorised discovery - categories irrelevant, whether - overriding purposes of Civil Procedure Act 2005 - just quick and cheap resolution of the issues in the proceedings - discovery would enable plaintiffs to obtain relevant categories of documents - issue of whether the documents exist - forensic advantage - availability of tenderable documents assisting case - availability of inference adverse to defendants case - prejudice, whether - abuse of process, whether - costs to be incurred, whether excessive - result in extensive delay, whether PROCEDURE - civil - interlocutory issues - discovery - relevance - categorised discovery - categories irrelevant, whether - categories identical to previous discovery, whether - continuing obligation to give discovery PROCEDURE - civil - interlocutory issues - discovery - method of discovery - an order for verified list; application for - onerous - modified form of discovery COSTS - costs in the cause