Cases and authorities

PRACTICE & PROCEDURE - cross-vesting - transfer of proceedings to another state - whether to transfer proceedings to Victoria - whether balance of justice favours transfer - whether sufficient connection with Victoria - whether to transfer to Victoria where pending disciplinary action in relation to contempt of New South Wales court pending - where witnesses resident in Victoria - where dishonesty occurred in Victoria - where only real connection to New South Wales is the headquarters of the plaintiff

PROCEDURE - costs - security for costs - application by plaintiff for security for costs of defending cross claim - cross claim extending beyond defence - whether defendant effectively becomes a plaintiff to the extent of the damages claimed by it - alternative application for dismissal under UCPR r 13.4 - exercise of discretion

CRIMINAL LAW - Crimes (High Risk Offenders) Act 2007 - application for an extended supervision order - order not opposed by defendant except with regard to duration - independent judgment with regard to appropriateness of making the order - determination of dispute about the length of any such order

CIVIL LAW - variation of extended supervision order - history of non-compliance - no evidence of criminal offences apart from breaches of order - defendant repeatedly incarcerated for breaches - electronic monitoring - protection of the community - intellectually disabled offender - simplification of conditions - flexibility in approach - ESO varied

CRIMINAL LAW - ex parte application - orders sought under s 19 of the Proceeds of Crime Act 2002 (Cth) - examination orders - orders sought made - reasons

CRIMINAL LAW - ex parte application - orders sought under ss 19 and 83 of the Proceeds of Crime Act 2002 (Cth) - orders granted

CORPORATIONS - winding up - winding up in insolvency - insolvent trading - claim by creditor for compensation from directors under Corporations Act 2001 (Cth) s 588M -loan agreement with plaintiff executed by person who was not company officer - where plaintiff paid funds in two tranches to another company or person - whether relevant company incurred a debt to plaintiff - whether person had actual authority to execute agreement on behalf of company - whether company was insolvent or became insolvent by incurring such debt - presumptions of insolvency - whether reasonable grounds for suspecting company was insolvent or would so become insolvent - whether defendants failed to prevent company from incurring such debt - knowledge of grounds for insolvency - defences - whether defences under Corporations Act s 588H established.

TORTS - Right of Support - whether there is a duty of care to provide support to neighbouring land - whether right of support extends to improvements to land - meaning of "supported land" - whether excavation work actually caused loss of support - whether loss of support caused damage to adjoining property - where better, but possibly still inadequate support, was constructed to replace existing inadequate support to neighbouring land - whether appropriate to grant damages - application of s 117 of the Conveyancing Act 1919 (NSW) TORTS - negligence - contributory negligence and proportionate liability - whether builder liable for contributory negligence or proportionately liable with owner of property as the person who caused the alleged loss of support - whether duty not to deprive one's neighbour's land of support is a non-delegable duty REAL PROPERTY - encroachments to land - whether retaining wall is an encroachment onto adjoining property - meaning of "the subject land" - what is the appropriate remedy for a minor encroachment - whether encroachment can be ignored where trivial- whether appropriate to order conveyance, easement or licence over encroaching portion of land - whether appropriate to award compensation, licence fee, nominal compensation, or negotiated damages - whether effect on later sales of subject property is a relevant factor in determining the appropriate remedy - where easement would have no market value and no unimproved capital value - whether minimum award for encroachment under the Act is appropriate - whether retaining wall and fence on top are a "dividing fence" under the Dividing Fences Act 1951 NSW - calculating appropriate amount of compensation - application of s 4 of the Encroachment of Buildings Act 1922 (NSW)

PROCEDURE - civil - summary disposal - application to strike out defence and refuse leave to file amended defence and cross-claim - whether pleadings so obviously untenable could not possibly succeed - whether arguable that issue and Anshun estoppel and abuse of process principles do not arise PROCEDURE - civil - leave to file cross-claim by guarantor - whether joinder of debtor necessary to plead equitable set-off also available to debtor - exceptional circumstances - summary judgment - debtor in liquidation - creditor's rights over debtor merged with judgment EQUITY - estoppel - whether issue estoppel existed - matter had been listed for hearing - company unable to pay security for costs - proceedings dismissed by consent - whether effective abandonment of claims in proceedings EQUITY - estoppel - issue estoppel - whether guarantor privy to principal debtor - whether inaction in earlier proceedings raises issue estoppel - whether corporate embodiment of a party in earlier proceedings is privy to earlier proceedings EQUITY - Anshun estoppel and abuse of process - reasonableness of failure to join party in earlier proceedings - earlier proceedings dismissed by consent - prospect of inconsistent judgments bringing administration of justice into disrepute - whether any oppression or unfairness DAMAGES - reflective loss - whether loss separate and distinct from company's loss PROCEDURE - civil - leave to file cross- claim - exercise of discretion - flagrant disregard of court's directions - consideration of Civil Procedure Act 2005 (NSW), s 56-58 - relative prejudice to parties

CRIMINAL LAW – application for permanent stay of proceedings - applicant charged with murder – where applicant appeared before NSW Crime Commission for compulsory examination prior to being charged – whether police presence at compulsory examination and associated events warranted a permanent stay

EVIDENCE – unfavourable witness – no question of principle.

PROCEDURE - civil - adjournment; application for - where plaintiff served evidence in breach of court imposed timetable - whether any prejudice or practical injustice to defendant warranting a vacation of hearing date

COSTS - exceptions to the general rule that costs follow event - partial success - apportionment - costs of two notices of motion that related to previous costs orders - no leave granted to re-open issues dealt with in previous judgments

CRIMINAL LAW - appeal against sentence - dangerous driving occasioning death - length of journey not improperly calculated - alleged miscalculation had little bearing on sentence - sentence not unreasonable or plainly unjust

CRIMINAL LAW - Crown appeal against sentence - respondent convicted of one count of break and enter a dwelling house and commit a serious indictable offence in circumstances of aggravation - the sentencing judge erred in failing to find that the injury, emotional harm, loss or damage caused by the offence was substantial leading to the imposition of a sentence that was manifestly inadequate - the sentencing judge erred in failing to find as an aggravating factor that the offence was committed in the home of the victim - the sentencing judge erred in his classification of the objective seriousness of the offence - the sentencing judge erred in his approach to a finding of special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act - the sentence imposed by the sentencing judge was manifestly inadequate - Crown appeal allowed - sentence quashed and respondent re-sentenced

CRIMINAL LAW - appeal against aggregate sentence - corrupt conduct by serving police officer - Detective Sergeant - weight to be accorded to relevant factors a matter for the sentencing judge - applicant bound by his counsel's consent to tender agreed facts at sentence hearing - no disparity between co-offenders as different charges were laid - fact that applicant's offending conduct was intercepted by diligent policing before it could run its intended course did not ameliorate the applicant's criminality - sentence not manifestly excessive

CRIMINAL LAW - Crown appeal against sentence - sentence manifestly inadequate - aggregate sentence imposed - implicit concurrence between indicative sentences for multiple sex offences against four children - abuse of trust, power and familial ties - residual sentence not exercised

CRIMINAL LAW - sentence appeal - dangerous driving causing grievous bodily harm - Crown appeal - failure by a sentencing judge to properly determine a level of moral culpability of respondent - failure by sentencing judge to properly assess the objective seriousness of offending - sentence imposed manifestly inadequate - need for Court to exercise residual discretion - extraordinary delay in sentence proceedings not the fault of respondent - substantial level of rehabilitation achieved - strong likelihood of interference with rehabilitation if custodial penalty imposed - inadequacy of period of disqualification - automatic periods of disqualification should apply - otherwise Crown appeal dismissed.

CRIMINAL LAW - appeal against sentence - delay - assistance provided to authorities - submissions that should have been made before the sentencing judge - grounds of appeal contain no principle of law

COSTS - usual order as to costs

COSTS - usual order as to costs

CORPORATIONS – winding up – liquidators – order sought for release of special purpose liquidator – where liquidator gives evidence that all relevant assets of company have been realised and belief that there does not exist any outstanding liabilities or obligations to persons or entities – whether special purpose liquidator should be released – whether court should dispense with requirements to file and serve relevant documents under Supreme Court (Corporations) Rules 1999 (NSW) rr 7.5(5) and 7.5(6).

PROCEDURE - civil - referral out - building dispute - whether in the interests of justice for a dispute to be referred out to a referee

COMMON LAW - apprehended bias - relationship with barrister alleged to have behaved dishonestly and with malice

PRACTICE AND PROCEDURE - application for summary dismissal and/or strike out of applicant's summons - summons failed to disclose any reasonable cause of action - summons was manifestly groundless

COURTS - jurisdiction - prohibition on instituting and determining appeal other than in Full Court of Family Court - Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 7(5) - where de facto financial cause proceedings instituted in Family Court - whether proceedings were a matter arising under the Family Law Act 1975 (Cth) - meaning of "a matter" COURTS - jurisdiction - Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 7(7) - whether court had commenced to hear a proceeding by way of an appeal - where court had heard notice of motion brought prior to the hearing of the summons for leave to appeal

TRUSTS AND TRUSTEES - Constructive trusts - Domestic relationships - No issue of principle

REAL PROPERTY - Possession - Trustees for sale - Where former co-owner refuses to vacate premises - No issue of principle

COSTS - where applicant's conduct requires leave to be sought from the Court - general rule that applicant for leave pays the associated costs

VEXATIOUS PROCEEDINGS - motion to set aside vexatious proceedings order - no question of principle

CRIMINAL LAW - Criminal Assets Recovery Act 1990 - restraining orders sought - granted

CRIMINAL LAW - restraining orders - variation sought by consent - orders made

ADMINISTRATIVE LAW - judicial review - workers compensation - decision of the Medical Appeal Panel - whether infected by jurisdictional error - failure to take into account relevant consideration - whether Medical Appeal Panel failed to take into account a medical report - whether error of law - whether failure to provide adequate reasons

COSTS - indemnity costs ordered - where Calderbank offer made - where statement of claim and defence to cross claim had no honest basis

PROCEDURE - discovery and interrogatories - discovery and inspection of documents - Practice Note Supreme Court Equity 11 - status of practice note - practice note guides but does not govern - where both parties have served evidence but some is otustanding - exceptional ciurcumstances not required but if required established - necessity - requirement to frame classes by reference to a fact in issue PROCEDURE - discovery and interrogatories - notice to produce documents - whether constrained by Practice Note SC Eq 11 - requirement of specificity - enforcemenr PROCEDURE - pleadings - documents - requirement to plead effect of terms and not merely incorporate same by reference

COSTS - usual order as to costs

LANDLORD AND TENANT - rent - recoupment from rent - whether right of recoupment is analogous to payment of rent in advance - whether right of recoupment exists beyond the next rent day after the expense was paid by the tenant - whether tenant has election of deducting payment from the next rent or suing the landlord for recovery of payment - where claim for recoupment not made against the following rent - where claim for recoupment made against rent due under a subsequent lease LANDLORD AND TENANT - rights and liabilities - tenant's chattels following termination - whether tenant is entitled to damages for confiscation of its chattels following termination - where landlord took possession prematurely - where tenancy at will - where time allowed for removal of chattels was unreasonable -whether contruction of contract should allow landlord to take advantage of his own wrong - whether tenant abandonned goods or consented to property in goods passing to landlord BILLS OF EXCHANGE AND OTHER NEGOTIABLE INSTRUMENTS - dishonoured cheques - where cheque cashed on behalf of another party and cheque not met on presentation - whether sufficient evidence

DEFAMATION - assessment of damages after entry of default judgment - application for permanent injunctions restraining further publication - persistent publication of serious defamatory imputations

MENTAL HEALTH – confinement and restraint of mentally ill persons and similar orders – detention by police under s 22 of the Mental Health Act 2007 (NSW) – whether the prerequisites of that section were satisfied – construction of the undefined phrase “mentally disturbed” – whether a subjective test applies to the first prerequisite of s 22(1) PROCEDURE – procedural fairness – whether the police officers were given an opportunity of dealing with potentially adverse findings by the trial judge in respect of their sworn evidence TORTS – trespass to land – whether the occupier’s licence to enter extended to a search of the premises DAMAGES – exemplary damages – whether the award of exemplary damages was justified on the facts, in that compensatory damages were an insufficient expression of disapproval

CRIMINAL LAW - appeal against sentence - knowingly take part in supply of commercial quantity of prohibited drug - no error in characterising offender as above "mere" courier - focus should be on actual activity - sentence not unreasonable or plainly unjust - sentence does not offend parity principle

CRIMINAL LAW - Appeal - Appeal against sentence - Whether trial judge failed to take into account applicant's limited intellectual capacity and vulnerability to manipulation - Whether some other sentence warranted at law - Consideration of sentence imposed on co-offender - Whether sentence imposed adequately reflected different roles, moral culpability, and subjective circumstances

CRIMINAL LAW - appeal - sentence for manslaughter, assault occasioning actual bodily harm and possession of firearm - trial judge's assessment of the objective seriousness of manslaughter by unlawful and dangerous act not erroneous - applicant deliberately brandished a gun intending to threaten harm in close range of others - no error in sentencing judge's discretion to accumulate sentences - counts one and two involved different victims - sentence imposed by trial judge not manifestly excessive - wide variety of circumstances in which manslaughter can be committed makes identification of "comparables" particularly unhelpful

APPEAL - application for leave - whether leave should be granted to appeal dismissal of separate proceedings commenced by applicant - whether leave should be granted to appeal costs order - whether notations in orders can be appealed SUCCESSION - executors and administrators - primary judge ordered distribution of estate - separate proceedings by the defendant seeking same order dismissed - costs ordered against the defendant - notations made in orders about outstanding issues with the estate

PRACTICE AND PROCEDURE - application for adjournment by unrepresented litigants - application made via e-mail to Registry a day before hearing - response to email communication at short notice - whether adjournment to be refused when hearing listed and applicants' defence lacks merit - need to protect respondent from wasted costs - opportunity for absent party to apply to set aside or vary orders PRACTICE AND PROCEDURE - extension of time to seek leave to appeal - whether extension of time should be granted - whether appeal had reasonable prospects of success REAL PROPERTY - mortgage - default - plaintiff granted leave to apply for default judgment - defence that the plaintiff had accepted a bill of exchange for the sum of one dollar discharging the mortgage - whether defence without substance - whether defence struck out properly

TORTS - negligence - claim against Nominal Defendant - whether the appellant was injured in a motor vehicle accident - whether, if so, the appellant's injuries were the result of the driver's negligence - whether the appellant had undertaken "due inquiry and search" for the purposes of s 34 of the Motor Accidents Compensation Act 1999 (NSW) in order to ascertain the identity of the motor vehicle

PROCEDURE - proceedings - transfer of proceedings from District Court to Supreme Court - order made

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

CORPORATIONS - voluntary administration – meeting of creditors – extension of convening period to permit sale of assets as going concern – whether notice should be given to creditors – leave reserved to creditors to apply

COSTS - Offer of compromise - Whether special considerations in family provision cases - Unsuccessful plaintiff must establish a proper basis for the Court to order otherwise - Civil Procedure Act 2005, s 56, UCPR Pt 20, r 20.26; Pt 42, r 42.15A

PROCEDURE - notice of motion - ex parte application - Contractors Debts Act 1997 - attachment order - orders sought granted