Cases and authorities

CORPORATIONS - winding up - application to wind up company on just and equitable ground - where there exists breakdown in relations between directors of company - whether company should be wound up - solvency - whether company should otherwise be wound up on basis of insolvency. PROCEDURE - costs - where director and contributory granted leave to be heard without being joined as parties to proceedings - whether costs order should be awarded against relevant non-parties.

SUCCESSION - family provision - family provision order and notional estate orders proposed to be made - whether appropriate to make orders substituting property for property affected by the proposed orders - Succession Act 2006 (NSW) ss 92(1), 92(2)

COSTS - Indemnity costs - Offers of compromise very early and then later in proceedings - Offers of compromise where limitation defence - Whether offers applicable where final orders made by consent - Conflict of first instance authorities - UCPR Pt 20 r 20.25; Pt 42 r 42.15A

PROCEDURE - trustees for sale seek orders that the defendant vacate the property - ordered to be sold - defendant provided medical certificate to excuse non-attendance at hearing - medical certificate insufficient to grant lengthy adjournment - trustees' amended motion adjourned until 27 October 2014.

CRIMINAL - procedure - evidence - unfavourable witness - where Crown obliged to call son of the accused - whether witness unfavourable - procedure to be adopted in eliciting witness' evidence

EVIDENCE – no question of principle.

CRIMINAL LAW - appeal under s 107 Crimes (Appeal and Review) Act 2001 (NSW) against directed acquittal - respondent found in possession of cardboard containing unascertained quantity of prohibited drug (lysergide) - charged with supply of not less than large commercial quantity of prohibited drug - weight of cardboard containing lysergide exceeded that required for large commercial quantity - whether evidence capable of establishing elements of offence when weight of lysergide not established - whether cardboard an "admixture" within s 4 of Drug Misuse and Trafficking Act 1985 (NSW) - "question of law alone" - question posed by ground of appeal does not arise - appeal dismissed CRIMINAL LAW - appeal under s 107 Crimes (Appeal and Review) Act 2001 (NSW) against directed acquittal - application by Crown during respondent's address for leave to amend ground of appeal - application refused - relevant considerations identified

CRIMINAL LAW - conviction appeal - robbery in company - whether verdict is unreasonable having regard to the nature and quality of the evidence

WORKERS' COMPENSATION - appeal from Deputy President of the Workers Compensation Commission - respondent suffered injuries that were said to be causally connected to an earlier work injury - whether the Deputy President erred in law by failing to identify an error of fact, law or discretion in the earlier decision of an arbitrator and thereby exceeded his statutory authority - Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353

COSTS - indemnity costs - Calderbank offer not accepted by unsuccessful plaintiff - whether unreasonable of plaintiff to not accept offer

CONTRACT - unjust contracts - proceedings on remitter from Wardle v Agricultural & Rural Finance [2012] NSWCA 107 - Contracts Review Act 1980 (NSW) - whether indemnity unjust in circumstances relating to agreements at time they were made - whether failure to disclose round robin funding arrangements unjust or misleading - whether loss of indemnity for late payment reasonably necessary for protection of plaintiff's interest - whether loss of indemnity grossly disproportionate to detriment suffered by plaintiff in accepting late payment ESTOPPEL - whether plaintiff estopped from asserting that indemnity not valid and enforceable - where defendant did not make payments on time purportedly in reliance on a representation made to defendant that strict compliance with time stipulations not essential to obtain benefit of indemnity - where representation made by person with no actual or ostensible authority to make representation on plaintiff's behalf - whether defendant acted to his detriment in reliance on representation

SUCCESSION - JUDICIAL ADVICE - WILL CONSTRUCTION - Clause determining the manner in which residue of the deceased's estate would be dealt with - Whether Clause operated to cause residue to vest in interest in named beneficiaries from the date of deceased's death or whether a gift subject to a contingency - Rule in Saunders v Vautier - Whether a "class gift"

EVIDENCE – accused indicted for conspiracy to murder – evidence of accused’s DNA found on cigarette butt in vehicle allegedly used by him in the course of the conspiracy – cigarette butt destroyed following scientific analysis – accused deprived of the opportunity to independently test the item – where other items located in the vicinity of the cigarette butt not seized and tested - whether evidence of DNA analysis should be excluded on the basis of unfair prejudice – whether, in the event of the evidence being admitted, the jury should be directed about the disadvantage to the accused as a consequence of the destruction of evidence

GAMING AND RACING - multiple challenges to new anti-doping rule making cobalt a prohibited substance for harness racing horses ADMINISTRATIVE LAW - rule neither disproportionate nor irrational - requisite connection between Harness Racing NSW's functions and rule - procedural fairness does not require hearing before interim suspension pending imminent inquiry having regard to whole process which includes right of appeal on the merits to Racing Appeals Tribunal STATUTORY CONSTRUCTION - Anthony Hordern principle - s 21 of the Act not restricted by the terms of s 18 of the Act -collective decision-making of stewards not necessary - single steward empowered to suspend

ARBITRATION - international commercial arbitration - enforcement of foreign award - public policy - breach of rules of natural justice - severance - partial enforcement of award - International Arbitration Act 1974 (Cth) s 8

PRIVATE INTERNATIONAL LAW - Stay of proceedings - Lis alibi pendens PROCEDURE - Proceedings commenced by summons - Continuation on pleadings PROCEDURE - Costs - Security for costs

PROCEDURE - cross-vesting - three sets of proceedings, one in the Federal Court, two in the District Court - all proceedings involving similar claims regarding injury from hip replacement - commonality of treating doctors and medico-legal experts - commonality of lawyers acting for claimants and defendants - commonality of issues - interests of justice

LANDLORD AND TENANT - NSW Civil and Administrative Tribunal terminates residential tenancy agreement - application to stay writ of execution in Supreme Court - no substantive relief sought - no appeal taken to Appeal Panel of Tribunal - plaintiff fails to appear - summons dismissed

PRACTICE - application for stay pending payment of costs in previous proceedings - "outstanding costs rule" - application for stay pending provision of security for costs - application for stay refused

TORTS - damages - motor vehicle accident - plaintiff injured when stationary motor vehicle he was driving struck from behind by respondent's vehicle - liability admitted - no contributory negligence - extent of appellant's physical and psychiatric injuries in dispute - conflicting medical reports - primary judge rejected plaintiff's contentions as to extent of physical injuries and existence of causal connection between any psychiatric condition and - whether primary judge's reasons engaged with plaintiff's medical case - whether process of fact finding miscarried APPEAL - new trial - whether substantial miscarriage of justice LEGAL PRACTITIONERS - conflicting medical reports - obligation of counsel to address trial judge as to how conflicts should be resolved

CONTRACT - construction - commercial contract - absurdity - adherence to actual language and syntax utilised

CIVIL LAW - Crimes (High Risk Offenders) Act 2007 - application for an extended supervision order - application for a continuing detention order - fresh charges - duration of extended supervision order - interpretation of s 18(2) of the Act

CRIMINAL LAW - appeal from Local Court to Supreme Court - whether failure to commence a new sentence before the expiry of a pre-existing non-parole period gives rise to a question of law alone - whether a failure to find special circumstances gives rise to a question of law alone - whether error of law with regard to either question has been established

PROCEDURE - transfer of proceedings - application for District Court proceedings to be transferred to and joined to existing proceedings in the Supreme Court of New South Wales - whether any basis for transfer established under Civil Procedure Act 2005 (NSW) s 140 - whether any overlap of issues between respective proceedings - whether any substantial prejudice caused to applicant.

CORPORATIONS – external administration – trustee company – receiver – approval for distribution of assets reduced – liquidators expenses – remuneration

CRIMINAL LAW - murder; one count - trial by judge alone - Criminal Procedure Act 1986; s 132, s 133 - CRIMINAL LAW - murder; one count - defence of mental illness - Mental Health (Forensic Provisions) Act 1900; s 38 - whether accused mentally ill at time of offences under M'Naughten Rules - facts agreed by Crown and Accused - expert opinion evidence - psychiatric diagnosis of paranoid schizophrenia - whether accused knew what he was doing was wrong - defence established - no point of general principle

CRIMINAL LAW - admissions - admissions influenced by oppressive conduct - unlawful detention - requirement to take suspect before authorised officer "as soon as is reasonably practicable" - improper questioning in earlier interview - improper pressure to change version of events - failure to comply with LEPRA - whether unlawful conduct is also relevant to "oppressive conduct" under s 84 - meaning of oppressive conduct - delay in taking accused before authorised officer.

APPEAL - appeal from decision of Magistrate in Local Court - proceedings brought for damages arising from motor vehicle accident - competing accounts of circumstances of the accident given by the only witnesses called - where Magistrate's conclusion on the issue of liability involved acceptance of one account over the other - where reasons expressed inconsistent findings - whether reasons adequate

CRIMINAL LAW - appeal - sentence - one offence - recklessly causing grievous bodily harm contrary to Crimes Act 1900, s 35(2) - guilty plea - head sentence of 4 years and 10 months - non-parole period of 3 years and 4 months - CRIMINAL LAW - appeal - sentence -whether trial Judge erred in the way he used the appellant's prior criminal record - antecedent criminal history - factor which may be taken into account in determining sentence to be imposed - Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 - CRIMINAL LAW - appeal - sentence - whether trial Judge erred in characterising the level of objective seriousness as being within the mid-range for offences of this type - objective serious not ordinarily susceptible of interference on appeal - no discrete error - objective circumstances taken into account - characterisation of facts challenged - CRIMINAL LAW - appeal - sentence - whether sentence manifestly excessive - whether the sentence was unreasonable or plainly unjust

PRACTICE AND PROCEDURE - application for freezing order pending resolution of appeal - no issue of principle

TORTS - negligence - workplace injury - worker employed by second respondent injured when unloading pantechnicon after arrival at place of employment - vehicle packed by first respondent before departure - two of three bars used to restrain load were not installed before departure - finding of negligence by first respondent not challenged on appeal - worker challenges finding of negligence by second respondent employer - CONTRIBUTION BETWEEN TORTFEASORS - where primary judge held respondents equally responsible - failure to recognise that predominant responsibility rested with the first respondent - CONTRIBUTION BETWEEN TORTFEASORS - whether burden of costs ordered against first respondent in favour of worker should have been regarded as subject to contribution to be made by second respondent employer - relevance of legislative provisions precluding costs orders as between employer and employee - whether first respondent should be affected indirectly by such provisions

PROCEDURE - notice of motion - orders seeking further opportunity to apply for assessment of costs - section 350 of the Legal Profession Act 2004 - motion dismissed

EQUITY - where supply agreement between parties - proper construction of terms of contract - where contract provides definition of rubbish - where party refused to accept supply and contended it contained asbestos contaminated material - whether definition includes asbestos contaminated material - application of ejusdem generis principle - whether contract void for illegality

CTTT - application for prerogative relief in respect of decision in a dispute about construction of a swimming pool - whether denial of procedural fairness - whether plaintiff refrained from leading evidence because of an assurance by a Tribunal member - effect of the member allowing representation of the opposing party without considering statutory requirements

PROCEDURE - costs - interlocutory application - whether costs should be payable forthwith - relevant considerations - whether any unreasonable conduct on behalf of plaintiff in resisting interlocutory application.

Application for temporary stay of proceedings - conspiracy to commit insider trading offence - access to transcript of applicant's compulsory examination under s 19(2) of the ASIC Act

CORPORATIONS - members rights and remedies - oppression - exclusion of director/member from management - retention of the whole of the company profits without declaring a dividend is oppressive - whether interlocutory relief should be granted

PROCEDURE - civil - interlocutory issues - notices to produce for inspection - challenges to claims for privilege - consent orders - no point of general principle

PRACTICE AND PROCEDURE – application for adjournment – orders of the Criminal Court of Appeal with regard to interlocutory appeals expected the working day before trial date

WORKERS' COMPENSATION - employer's non-delegable duty of care to employee - where employer an independent contractor and employee injured by negligence of another independent contractor - whether employer failed to provide a safe system of work - whether employer liable for independent contractor's negligence WORKERS' COMPENSATION - calculation of degree of permanent impairment - expert evidence - whether assessment made in accordance with WorkCover Guides - Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 322 - Workers Compensation Act 1987 (NSW) ss 151Z(1)(d), (2)(c), (d), (e)(i) COSTS - whether leave required to appeal against costs order related to substantive grounds - Supreme Court Act 1970 (NSW) s 101(2)(c) - exercise of discretion - indemnity costs - whether correspondence constituted Calderbank offer - unreasonable conduct leading to joinder of successful defendant - unreasonable conduct leading to other defendant's unsuccessful cross-claim

PROCEDURE - costs - s 98 of the Civil Procedure Act 2005 (NSW) - order sought made

PROCEDURE - appeal from Associate Justice - whether amended statement was properly pleaded - whether a reasonable cause of action was disclosed - whether Health Care Complaints Act and Guardianship Act created a private right of action - whether proceedings an attempt to re-litigate previously determined issues - whether leave to amend to a claim under the Compensation to Relatives Act should be granted.

PRACTICE AND PROCEDURE - application to have defamation proceedings transferred to the District Court - factors relevant to the Court's discretion

CIVIL LAW - damages - substantial damages to be made - defendants not in any financial position to pay any order - orders made

PROCEDURE - orders seeking transfer of two sets of proceedings from District Court to Supreme Court - not opposed - two matters to be heard together - orders made - separate question - question of liability to be heard separately from and prior to hearing damages

ADMINISTRATIVE LAW - application to set aside orders of Local Court - whether self-represented plaintiff can appear on behalf of corporation - summons dismissed

PROCEDURE - case management orders - application to vacate Registrar's orders - orders vacated - new orders made PROCEDURE - costs - security for costs - no order made PROCEDURE - orders sought against a party not party to proceedings - no order made PROCEDURE - adjournment application sought - refused PROCEDURE - courts and judges generally - disqualification - apprehended bias - actual bias - application refused - reasons

TORTS - trespass - private nuisance - settlement of matter on day of hearing COSTS - indemnity costs - where offer of compromise made by the plaintiff prior to hearing - no dispute that offer of compromise was genuine - whether it was unreasonable for the defendant to reject the offer of compromise

CRIMINAL LAW - application for orders under s 10B of the Criminal Assets Recovery Act 1990 (NSW) - orders made

CRIMINAL LAW - sentence - murder - early plea of guilty - no genuine remorse - middle range of objective seriousness - reasonable prospects of rehabilitation