Cases and authorities

PROPERTY - application to stay writ of possession

PROCEDURE - civil - interlocutory issues - directions - direction that parties exchange statements of their respective cases

CASE MANAGEMENT - the importance of directions regarding expert reports and joint conclave - report served outside these directions admitted but use limited to single issue

PROPERTY LAW - application to stay writ of possession

Adjournment due to non-appearance

CONTRACTS - Construction and interpretation - What land subject to Extraction Agreement - No issue of principle ESTOPPEL - Estoppel by convention - Whether defendant estopped from denying certain land subject to Extraction Agreement - No issue of principle

CONTRACTS - existence of contract - where relevant premises leased to plaintiff by relevant defendant - where current lease has expired - whether relevant correspondence between parties purporting gave rise to binding contract to grant a new lease - whether relevant correspondence had sufficient certainty to give rise to an enforceable contract - whether lease on "commercial terms" is sufficiently certain - whether conditions of contract needed to be satisfied by relevant date - whether ministerial consent was provided for entry into contract under Sydney Harbour Foreshore Authority Act 1998 (NSW) s 19 - whether entry into contract was valid absent ministerial consent - whether relevant defendant is bound by implied term to seek ministerial consent. EQUITY - equitable remedies - specific performance - where plaintiff seeks order for specific performance of contract under subsequent and not original terms - where contract is too uncertain to have contractual effect - defence of delay - whether specific performance should be granted. TRADE PRACTICES - misleading or deceptive conduct - whether alleged representations were made by relevant defendant - whether relevant representations were misleading or deceptive or likely to mislead or deceive - whether plaintiff had relied on alleged representations - whether it can be established that loss and damage suffered by plaintiff was caused by alleged representations - application of Australian Consumer Law s 18 and Retail Leases Act 1994 (NSW) s 62D. TRADE PRACTICES - unconscionable conduct - whether relevant defendant engaged in unconscionable conduct under Australian Consumer Law ss 20 and 22 and Retail Leases Act s 62B. ESTOPPEL - representational - whether relevant defendant has departed from relevant representation - whether relevant defendant should be estopped from denying existence of contract or granting lease. ADMINISTRATIVE LAW - prerogative writs and orders - application for orders in the nature of certiorari, mandamus and declaration in respect of "decision" by relevant defendant - where no decision was made by relevant defendant - whether orders for relief should be granted under Supreme Court Act 1970 (NSW) s 69. WORDS AND PHRASES - "commercial terms"

CRIMINAL LAW - direction to jury - multiple break and enters in company - co-offender received reduced sentence on undertaking to provide evidence against applicant - neither prosecution or defence proffered information as to effect of percentage of discount received by co-offender - co-offender not cross-examined as to whether motivated by possible resentencing for failure to fulfil undertaking - no warning sought that evidence of co-offender may be unreliable - judge warned about unreliability of co-offender's evidence with reference to percentage of discount afforded - whether warning on unreliability by the trial judge sufficient - whether the trial judge should have referred to the reduction of time the discount reflected - whether the trial judge should have warned the jury that co-offender would lose benefit of reduced sentence if he failed to fulfil undertaking - Criminal Appeal Rules (NSW), r 4 - Evidence Act 1995 (NSW), s 165 EVIDENCE - warning as to unreliability - witness gave statement to police - discount on sentence for assistance to law enforcement authorities - witness faced resentencing if he departed from undertaking to give evidence implicating his father - whether warning need to quantify effect of discount at risk - whether warning needed to explain liability to be resentenced if he departed from undertaking - Evidence Act 1995 (NSW), s 165

APPEAL - stay pending appeal - no risk of appellant being unable to recover amount paid pending appeal - whether possible prejudice to respondent relevant - variation of stay refused

APPEALS - competency - appeal brought purportedly as of right from summary dismissal - sequestration order made prior to bringing of proceedings - adjournment refused - appeal dismissed as incompetent

PRACTICE - payment out of monies paid into Court

PRACTICE AND PROCEDURE - costs - no issue of principle

PRACTICE AND PROCEDURE - order amended under slip rule - no issue of principle

PRACTICE AND PROCEDURE - costs - appellants ordered to pay appeal costs of respondent - respondent sought and obtained specified gross sum for costs - order made for payment to respondent of amount lodged as security for costs PRACTICE AND PROCEDURE - Corporations Act s 500(2) - first appellant in liquidation - whether interests of justice favour grant of leave to respondent to continue proceedings - appeal proceedings near completion - leave granted

INSURANCE - Life insurance - interpretation of insurance policy - where group policy included benefit for total and permanent disablement - for the purpose of calculating the "Sum Insured" what is meant by "the time of the Insured Event giving rise to the claim" APPEAL AND NEW TRIAL - appeal - leave to appeal - whether leave to appeal should be granted where sum in dispute is less than $100,000 but decision has potential to affect numerous other claims already determined and pending determination

CORPORATIONS – winding up – appointment of liquidators – where sole director and shareholder become bankrupt on own petition shortly before adoption of resolution that company be wound up – whether defect in appointment procedural – extension of time to convene creditors’ meeting

PROCEDURE - civil - garnishee orders

PROCEDURE - civil - jurisdiction - transfer of proceedings to Family Court PROPERTY LAW - caveats - application for the extension of the operation of a caveat

PROCEDURE - judgments and orders - disputed issues remaining before orders can be made to give effect to interlocutory judgment in proceedings - dismissal of relevant paragraphs of notices of motion - striking out of paragraphs of cross-claim - setting aside of notices to produce - leave to act on behalf of company - payment of company debts - indemnity of costs. PROCEDURE - costs - general rule that costs follow the event - whether reason shown to depart from general rule.

PROCEDURE - costs - family provision claim - where plaintiffs have not succeeded in family provision claims - whether family provision claims warrant special principles as to costs - general rule that costs follow the event - whether reason shown to depart from general rule.

PROCEDURE - costs - general rule costs follow the event - where there has been a mixed outcome in proceedings - whether reason shown to depart from general rule.

PROCEDURE - judgments and orders - disputed issues remaining before orders can be made to give effect to primary judgment in proceedings - declarations -relevant defendant's obligation to comply with relevant directions - entitlement to vote at creditors' meeting - failure to appoint controller during decision period - dismissal of relevant defendant's cross-claim - whether construction of limitation on liability clause is an issue relating to quantum of damages. PROCEDURE - application for leave to re-open - issues relating to application of limitation on liability clause and causation - whether leave should be granted. PROCEDURE - costs - general rule that costs follow the event - where there has been a mixed outcome in proceedings - costs of issues - whether reason shown to depart from general rule.

EQUITY - validity of transfer of money effected under a power of attorney that excluded authority to make gifts to the attorney - undue influence - whether relationship of influence existed - whether de facto relationship of influence - unconscionable conduct - significant cognitive impairment - no independent legal advice - issue estoppel - whether bound by decision of tribunal

CRIMINAL LAW - Crown appeal against an order of the District Court permanently staying the trial of the respondent - compulsory examination of the respondent by the Australian Crime Commission about the subject matter of the charges against him - whether the fact of the examination itself sufficient to warrant a stay - necessity to examine the circumstances of the particular case

CRIMINAL - appeal - conviction - misdirection in presentation of crown case to jury - whether miscarriage of justice CRIMINAL - appeal - conviction - misdirection of elements of offence on subsection of s 249B not charged - whether miscarriage of justice - whether proviso in s 6(1) Criminal Appeal Act 1912 (NSW) should apply - whether leave should be granted despite issue not raised at trial - whether new trial or acquittal would remedy miscarriage of justice CRIMINAL - appeal - conviction - whether verdict for offence charged should be substituted with verdict for offence not charged but which the jury were directed on - different elements of offences - no alternate charge on indictment - s 7(2) Criminal Appeal Act 1912 (NSW) CRIMINAL - appeal - conviction - whether misdirection by judge in stating it was immaterial that the appellant might have had no intent to deprive corruptly the National Australia Bank of property - not raised at trial - no miscarriage of justice - leave refused CRIMINAL - appeal - conviction - whether misdirection by judge in failure to direct jury to continue to strive for a unanimous verdict - whether pressure to reach verdict placed on jury - requirements of a Black direction - no miscarriage of justice - no danger of a hasty or unjust verdict CRIMINAL - appeal - sentence - whether manifestly excessive - sentence not unreasonable or plainly unjust WORDS AND PHRASES -"corruptly" - "would in any way tend to influence the agent" - s 249B Crimes Act 1900 (NSW)

APPEAL - leave - interlocutory appeal - matter resolved by final orders - application based on bias and failure to grant oral hearing - application lacking utility - grounds, if relevant, available in challenge to final orders

PROCEDURE – costs – Calderbank offer – where more favourable to plaintiff than outcome - where offer not made in accordance with the Rules - whether costs should be paid on indemnity basis PROCEDURE – costs – deferral of costs - order – where issues may be litigated in foreign proceedings – whether to defer making costs order

CORPORATIONS - types of companies - foreign corporations - whether a registered foreign company is a company "registered under this Act" - held, it is not CORPORATIONS - membership, rights and remedies - members' remedies and internal disputes - derivative actions - whether statutory derivative action available in respect of registered foreign company - held, not available CORPORATIONS - winding up - liquidators - supervisory jurisdiction - jurisdiction to permit creditor or contributory to bring proceedings in name of company in liquidation - whether available in respect of company subject to foreign administration - held, not available CORPORATIONS - winding up - generally - stay of proceedings - whether application for leave to bring derivative action is a proceeding against the company or in respect of its property - held, it is not PRIVATE INTERNATIONAL LAW - stay of proceedings - generally - forum non conveniens - application under (CTH) Trans-Tasman Proceedings Act 2010

EVIDENCE - tendency evidence - Evidence Act 1995 s 97 - significant probative value - whether evidence unfairly prejudicial

PRACTICE AND PROCEDURE - review of Registrar's decision to dismiss proceedings - whether proposed pleading contains a valid cause of action -Trade Practices Act s 82 - consideration of requirement that complainant suffer loss "by an act of another person"

EQUITY - undue influence - where plaintiff executed a deed not to revoke her will - whether presumption of undue influence arises - whether presumption rebutted - whether improvident transaction - whether plaintiff received independent advice - whether unjust under Contracts Review Act - whether doctrine of suspicious circumstances applies

CRIMINAL LAW - judicial review - application to cross-examine a witness at committal refused - whether error on the face of the record established - whether decision inherently wrong - whether the Magistrate was improperly influenced by irrelevant matters

MENTAL HEALTH - Mental Health Review Tribunal determined that offender suffering from mental illness - whether possible to order detention other than in a defined mental health facility

PROCEDURE - application to institute proceedings under s 14 of the Vexatious Proceedings Act 2008 - affidavit does not comply with s 14(3)(a) - proceedings would be an abuse of process of the Court

ADMINISTRATIVE LAW - judicial review - jurisdictional error - judicial review of a claims assessor's assessment under the Motor Accidents Compensation Act 1999 - whether the claims assessor misconstrued the evidence - whether error of law - whether adequate reasons given - whether award of damages manifestly unreasonable

ADMINISTRATIVE LAW - administrative tribunals - NSW Civil and Administrative Tribunal - joinder of parties - Civil and Administrative Tribunal Act 2013, s 44 - necessary or proper parties - interests of a statutory applicant - functions and interests of the NSW Commissioner of Police under the Liquor Act 2007, s 116AE ADMINISTRATIVE LAW - administrative tribunals - NSW Civil and Administrative Tribunal - joinder of parties - whether decision-maker ought to be an active party to review - whether discretion to join parties to be determined by reference to whether decision-maker will be an active party to review

CONTRACT - construction - definition of "Current Market Value" - relevance of labels chosen by parties - relevance of worked example attached "for information purposes only" - commercial operation to be given - commercial absurdity to be avoided - significance of expressio unius arguments

PROCEDURE - appeal from decision of primary judge refusing plaintiffs leave to rely on further affidavit on first day of hearing - where matter was dismissed for want of evidence - where plaintiffs had been represented but were self-represented for the hearing - whether primary judge should have adjourned hearing and referred the plaintiffs to pro bono assistance - whether the primary judge considered injustice which would be suffered by the plaintiffs in refusing the additional evidence

INSURANCE - s18(1) of the Insurance Act 1902 (NSW) - whether primary judge erred in finding no prejudice for the purposes of s18(1) of the Insurance Act 1902 (NSW) - whether loss of chance to cross-examine plaintiff amounted to prejudice from late notification of the claim - whether refusal to take over conduct of proceedings and/or to indemnify dispensed insured from obligation not to make settlement without prior consultation - whether loss of opportunity to seek contribution from co-defendant to moneys paid to plaintiff to settle claim amounted to prejudice for the purposes of s18(1) of the Insurance Act 1902 (NSW) arising from failure to consult before settlement CONTRACTS - general contractual principles - construction and interpretation of contracts - whether insurer breached contract in declining to take over conduct of proceedings - whether refusal to indemnify by insurer amounted to breach of the policy allowing the insured to claim damages for settlement moneys paid without consent of the insurer APPEAL - whether trial judge misconstrued test required for s 18(1) of the Insurance Act 1902 (NSW) by taking the term "prejudice" to require "irretrievable prejudice" APPEAL - whether trial judge erred in failing to find or giving reasons for not finding that failure to seek contribution from co-defendant to settlement sum paid to plaintiff was a breach of the obligation of good faith owed by the insured to the insurer APPEAL - s 32 Dust Diseases Tribunal Act 1989 (NSW) - appeal limited to points of law - where there are not the requisite factual findings to enable determination of a question of law remittal to enable requisite findings of fact to be made

TORTS - negligence - proof of negligence - causation - where plaintiff driving behind a truck on "the beaten track" of a country road and defendant driving in opposite direction on far left of road and pulls back towards centre of road colliding with plaintiff's car - whether defendant's actions were a necessary condition of the harm TORTS - negligence - contributory negligence - whether trial judge erred in finding plaintiff and defendant equally negligent - whether appellate court should intervene in the primary judge's assessment of apportionment of contributory negligence TORTS - negligence - discussion of operation of s 5D Civil Liability Act where more than one sufficient condition of plaintiff's injury

TRUSTS - express trust - whether balance of moneys held on trust for purposes set out in a deed should be repaid where deed terminated - whether entitled to terminate deed where breaches of trust - whether breaches constituted repudiation of agreement - whether payments were made in breach of trust - whether payments made contrary to terms permitted in deed - whether party who directed payment from trust in breach of deed also liable - whether trustee entitled to contribution or indemnity by party who procured breaches of trust CONTRACTS - whether amounts paid for purposes which have failed - whether there is a resulting trust where purposes have failed - whether total failure of consideration - whether entitled to have account of profits where no evidence that money applied towards the purposes for which it was paid - whether this should be at plaintiffs' risk as to costs PRACTICE AND PROCEDURE - application to amend pleadings - whether to grant leave to amend pleadings after hearing already commenced - where amendment would have required recasting of the evidence - where new pleadings inconsistent with admissions made in existing pleadings DEEDS - parties to deeds - whether a person who signed a deed as a director of another party, is also a party to that deed and bound by that deed - where person named as a party to the deed but did not execute deed in own right as a party

TRUSTS - express trust - whether balance of moneys held on trust for purposes set out in a deed should be repaid where deed terminated - whether entitled to terminate deed where breaches of trust - whether breaches constituted repudiation of agreement - whether payments were made in breach of trust - whether payments made contrary to terms permitted in deed - whether party who directed payment from trust in breach of deed also liable - whether trustee entitled to contribution or indemnity by party who procured breaches of trust CONTRACTS - whether amounts paid for purposes which have failed - whether there is a resulting trust where purposes have failed - whether total failure of consideration - whether entitled to have account of profits where no evidence that money applied towards the purposes for which it was paid - whether this should be at plaintiffs' risk as to costs PRACTICE AND PROCEDURE - application to amend pleadings - whether to grant leave to amend pleadings after hearing already commenced - where amendment would have required recasting of the evidence - where new pleadings inconsistent with admissions made in existing pleadings DEEDS - parties to deeds - whether a person who signed a deed as a director of another party, is also a party to that deed and bound by that deed - where person named as a party to the deed but did not execute deed in own right as a party

EQUITY - trusts and trustees - application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) - judicial advice given to trustee concerning proposed compromise of proceedings

CONTRACT - proper law of the contract - whether the proper law of the contract is New South Wales or Western Australia; SALE OF GOODS - contract for sale of unascertained goods - whether goods ascertained - whether title to property had passed from defendant to plaintiff - whether commingling affects ascertainment - whether property acquired through share in bulk pursuant to s 25A Sale of Goods Act 1923 (NSW); SECURITIES - personal property securities - Personal Property Securities Act 2009 (Cth) - whether property a "security interest" pursuant to s 12; CORPORATIONS - Corporations Act 2001 (Cth) ss 442C, 447E and 1324(10) - whether administrators' disposition of property was in contravention of s 442C - whether private law claim for damages available for contravention of s 442C - whether plaintiff has right to damages under s 1324(10) for contravention of s 442C - whether plaintiff should be permitted to rely on remedy under s 447E sought only in final submissions; EQUITY - fiduciary duties - whether vendor bailee owed a fiduciary duty to purchaser bailor - whether administrators knowingly assisted company in breach of fiduciary duty

SUCCESSION - Wills probate and administration - Revocation of grant of Probate in common form - Whether Will executed in accordance with Part 2.1 of the Succession Act 2006 - Not so executed - Whether court satisfied that Will forms the deceased's Will and that she intended it to form her Will - Gift to solicitor in Will - Another solicitor, a friend and colleague of solicitor/beneficiary, takes instructions from deceased - Suspicious circumstances - Whether deceased knew and approved of the terms of the Will

CRIMINAL APPEAL - leave to appeal against sentence - aggravated indecent assault - alleged failure to give appropriate weight to subjective features of applicant - whether undue weight given to the finding of applicant's future dangerousness - whether sentence was manifestly excessive -

CRIMINAL LAW - sentence appeal - attempt to possess prohibited import - applicant also involved in importation - relevance - whether principal or courier - parity with co-offender responsible for distribution in Australia

CRIMINAL LAW - sentence appeal - whether manifestly excessive - whether primary judge erred in failing to apply a discount pursuant to s 23(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)