Cases and authorities

SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants also children of the deceased - Deceased left Will in which no provision made for the Plaintiff - Explanation given - 20 years of no contact between Plaintiff and the deceased - Small estate - Estate distributed - Proceedings not commenced within time - Whether sufficient cause shown - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made - Whether property to be designated as notional estate - Whether "special circumstances"

PROCEDURE - application by plaintiff to re-open case after judgment pronounced but before final orders entered - material relied on in support of application available but not tendered at the hearing - whether material is of probative value - whether material contradictory of evidence already given by the plaintiff - whether delay in the application prejudicial to the defendants

CIVIL LAW - distribution of funds deposited in court - application to strike out subpoena - no question of principle

PRACTICE AND PROCEDURE - pleadings - amendment of statement of claim - leave granted subject to condition - stay of proceedings until costs of earlier proceedings paid ESTOPPEL - issue estoppel - scope of estoppel created by judgment

EQUITY - rectification - Put and Call Option Agreement - alleged common intention that stipulated deposit be treated as already paid - common intention not established

CRIMINAL LAW - imposition of limiting term - found guilty on the limited available evidence - effect of mental condition - refer to Mental Health Tribunal

CRIMINAL LAW - Crown appeal against sentence - offences of conspiring with intention of dishonestly causing a loss to Commonwealth contrary to s135.4(3) Criminal Code (Cth) - clients of an accounting firm known as Owen T Daniel & Co - participation in illegal scheme organised by accountants to avoid payments of tax - tax shortfall approximately $1 million - whether sentence of imprisonment for 4 years with a non-parole period of 2 years manifestly inadequate - sentence not "unreasonable or plainly unjust" - exercise of residual discretion in Crown appeal - appeal dismissed.

TORTS - motor vehicle accidents - where appellant passenger in Mitsubishi car - where Commodore car collided with Mitsubishi - where rear of Mitsubishi moved slightly to left - where appellant injured by gunshots then fired from Commodore into Mitsubishi - whether appellant's injuries caused by fault of driver of Commodore in the use or operation of that vehicle either during its driving or during a collision - s 3A Motor Accidents Compensation Act 1999 (NSW)

MOTOR ACCIDENT - claim against Nominal Defendant - whether due inquiry and search - injured respondent failed to obtain details of driver and vehicle at scene - finding that respondent disabled from making inquiries at scene due to injuries, shock and pain - no error in finding - appeal dismissed.

CORPORATIONS – agreements made by liquidators on behalf of company – (Cth) Corporations Act, s 477(2B) – principles informing court’s decision to approve agreement – where agreement has already been made – where agreement subject to conditions precedent – whether approval can be given retrosprectively

PROCEDURE – subpoena for production of documents – claim of legal professional privilege by Director of Public Prosecutions and Australian Crime Commission – dominant purpose test – whether the Director of Public Prosecutions was providing advice to the Australian Crime Commission – whether conferences with third parties were in preparation for anticipated legislation – whether the maintenance of criminal proceedings against the accused is inconsistent with the claim of privilege

CRIMINAL LAW - special hearing - imposition of limiting term - manslaughter - substantial impairment by way of abnormality of the mind - where offender beat deceased with a bat - where offender suffered from intellectual disability

CRIMINAL LAW – tendered of document – no question of principle.

ADMINISTRATIVE LAW - judicial review - decision of the Local Court refusing adjournment of criminal proceedings after late service of expert accountant report by prosecution - where adjournment application determined in chambers without oral hearing - prosecutor conceding decision entailed denial of procedural fairness - appropriate orders

COSTS - where dispute settled at hearing - where plaintiff seeks indemnity costs - where defendant seeks no order as to costs - whether either party was almost certain to succeed or acted unreasonably - whether earlier costs order should be vacated - no question of principle

WILLS, PROBATE AND ADMINISTRATION - Construction - Gift conditional on beneficiaries converting to Roman Catholicism within three months of testator's death - Whether condition precedent or subsequent - Whether uncertain, impossible or against public policy PRECEDENTS - Binding effect of - Lower court bound even if considers underlying public policy has changed WORDS AND PHRASES - "baptised", "convert"

PRACTICE AND PROCEDURE - costs - security for costs - common ground respondent could not meet adverse costs order - burden of proof and evidentiary onus - discretionary factors - whether claim is made bona fide and arguable - whether there is delay in applying for security - whether respondent's impecuniosity attributable to the applicant's conduct - whether order would stultify proceedings

CRIMINAL LAW - special hearing - murder - manslaughter - substantial impairment - whether accused would have been guilty of murder or manslaughter in a normal criminal trial

SUCCESSION - Family Provision - claims by estranged husband and by child of deceased - availability of real estate in China to satisfy order where deceased dies domiciled in NSW - eligibility of spouse where deceased dies before decree nisi becomes absolute

APPEAL - final orders postponed pending non-parties advising whether they wished to be joined or heard - non-parties not seeking to be joined or heard - final orders made

TORTS - negligence - causation - client claimed damages for losses attributable to allegedly negligent drafting of a deed - negligence said to consist of a failure to draft key provisions so as to create a clear and unambiguous entitlement to receive payment of $9.5 million - the damages said to be the difference between $9.5 million and a lesser sum received by the client forced to compromise its claim by reason of the ambiguity in the deed - whether the alleged breach of duty caused the claimed loss - significance of the client failing to utilise other provisions in the deed to protect its interests - whether appropriate that the scope of the solicitors' liability should extend to the claimed loss TORTS - negligence - whether drafting of ambiguous provisions in a deed breached the solicitors' duty of care - whether it is necessary to take account of the drafting of the entire document

COSTS - s 86(1) Service and Execution of Process Act 1992 (Cth) - review of decision of magistrate that warrant issued pursuant to s 189 Corrective Services Act 1988 (Qld) was valid - warrant directed the apprehension of the applicant and conveyance to Queensland prison - warrant valid - respondent sought costs - whether review ought to be categorised as criminal or civil (administrative) - s 98 Civil Procedure Act 2005 (NSW) - the whole of the proceedings relating to execution of the extradition warrant can properly be characterised as a "criminal proceeding" as defined in s 3(c) of the Service and Execution of Process Act 1992 - no presumption that costs follow the event - no statutory authority for award of costs in a criminal related proceeding - discretion conferred in relation to award of costs in civil proceedings to be exercised in favour of applicant - each party to pay own costs - application dismissed

CRIMINAL LAW - murder trial - Crown opening address - defence objection to aspects of Crown opening - permissible scope and content of Crown opening in a complex and multi-faceted trial

SUCCESSION - orders - legacies of $450,000 each awarded in the Court's principal judgment to the plaintiffs out of the estate of the deceased - whether interest should be awarded on those legacies - whether interest should be awarded on costs paid by the plaintiffs to their attorneys before the conclusion of the proceedings - defendant has appealed against the Court's principal judgment awarding the legacies to the plaintiffs - whether a restraining order should be made pending appeal limiting the defendant's dealings with the principal asset of the estate, certain residential real estate,.

COSTS - defamation - Defamation Act 2005 (NSW), s 40 - verdict for defendant - plaintiff to pay defendant's costs - order sought that costs be paid on an indemnity basis - whether plaintiff unreasonably failed to accept settlement offer made by the defendant - whether interests of justice require otherwise than an order that costs be paid on an indemnity basis - defendant showed more than the plaintiff merely failing in proceedings - Haddon v Forsyth (No 2) [2011] NSWSC 693 - plaintiff's failure to accept first and second offers was unreasonable - interests of justice require that defendant be fully indemnified - plaintiff to pay defendant's costs on an indemnity basis

CRIMINAL LAW - appeal against sentence - aggravated break enter and steal - failure to advert to finding of remorse in remarks on sentence did not mean it had been overlooked - objective seriousness of offence enhanced by fact of elderly and vulnerable victims - statistics and schedule of cases of limited utility - leave to appeal refused

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - where appellant successful in reducing assessment of his contributory negligence - where respondent made offer of compromise prior to District Court proceedings that was not accepted and judgment on appeal no more favourable to the appellant than the offer - where appeal was limited to question of liability and damages not yet determined by the District Court - whether appellant should pay respondent's costs of the appeal and/or District Court proceedings on an indemnity basis from the day following the day of making of the offer of compromise

CRIMINAL LAW - application for criminal assets restraining order - reasonable grounds for suspicion that the defendant has been engaged in serious crime-related activity or crime-related activities

PROCEDURE - application to join former solicitor of defendant - where order for reference contained explicit provision for joint and several liability on the part of both parties - where no contractual or other basis for liability of solicitor - whether Birkai Pty Ltd v Permanent Custodians Limited correctly decided - whether tenable claim for joinder of solicitor as a necessary party

EQUITY - trusts - constructive trust - common intention trust - promise to leave house in will - s 20 Property (Relationships) Act 1984 - adjustment of interests in property

REAL PROPERTY - Torrens title - certificates of title, folios and Crown grants generally - whether appropriate to order the Registrar-General to issue a new certificate of title - whether it is necessary to make an order under s 138(2) so that an order under s 138(3) of the Real Property Act 1900 (NSW) can be made or whether the only order that need be made is one under s 138(3) - whether an order under s 138(2) of the Real Property Act 1900 (NSW) would lack utility

GUARANTEE AND INDEMNITY - loan agreement contained guarantee by first defendant - principal not repaid according to loan terms - variation of loan agreement executed to provide extension of time in which to pay - variation agreement contained guarantee by co-guarantor - lender and co-guarantor agreed to cap liability of co-guarantor - first defendant not aware of capping arrangement - whether first defendant bound by variation of loan agreement

PRACTICE AND PROCEDURE - costs - offer of compromise - appellant ordered to pay respondent's costs on the ordinary basis - application to vary order - rules required costs to be assessed on indemnity basis from the date of rejected offer of compromise - whether valid offer of compromise - whether any reason rule should not apply - Uniform Civil Procedure Rules 2005 (NSW), rr 42.14, 51.47

PRACTICE AND PROCEDURE - final orders following joinder of the administrator of the estate

PRACTICE AND PROCEDURE - joinder of the administrator of the estate to an appeal against costs orders COSTS - no basis for indemnifying the appellant from the assets of the estate - appeal against costs order to be allowed without prejudice to costs orders made in interlocutory proceedings below

DAMAGES - Dust Diseases Tribunal Act 1989 (NSW) s 15B - compensation for gratuitous care for dependents - whether trial judge erred calculating damages at hourly statutory rate provided by plaintiff as opposed to commercial value of those services DAMAGES - Dust Diseases Tribunal Act 1989 (NSW) s 15B - compensation for gratuitous care for dependents - whether trial judge erred in determining the life expectancy of plaintiff's wife or number of hours gratuitous care which should be compensated - whether there this was a decision in point of law allowing intervention

CRIMINAL LAW - Sentencing - manslaughter by substantial impairment - alcohol fuelled violence in public place - interplay of Loveridge and Muldrock principles in case of mental illness

Appeal from Local Court - leave to appeal - natural justice - procedural fairness - refusal to allow cross-examination - restriction on cross-examination - unrepresented litigant - pleadings - multiple applications to amend grounds of appeal

CRIMINAL LAW – evidence – tender of documentary evidence – accurate copy not provided to other party – accurate working copy not available – whether tender should be accepted

PROCEDURE - judgments and orders - amending, varying and setting aside - interlocutory injunctions - where condition upon which injunction granted subsequently fails - whether injunction to be set aside ex debito justitiae - where change of circumstances sufficient to warrant setting aside injunction - balance of convenience.

PROCEDURE - civil - judgments and orders - orders made staying execution of Writ of Possession - orders conditional upon due and prompt payment of rental and other outgoings - rental not paid - explanations proffered - interests of justice

CONTEMPT OF COURT - publication contrary to suppression order - penalty proceedings in absence of contemnor - considerations relevant to punishment

TORTS - malicious prosecution - wrongful arrest and false imprisonment - claim wholly unsupported by evidence adduced by plaintiff - dismissal appropriate

REAL PROPERTY - possession of land - early judicial directions - defence admits principal elements of claim - defence struck out

COSTS - general rule that costs follow the event - exception to the general rule - plaintiff partially successful in the proceedings - order that the plaintiff pay the defendant's costs of the Saree proceedings on the ordinary basis - order that the defendant pay the plaintiff's costs in respect of those issues on which the plaintiff was successful.

PROCEDURE - subpoenas - issued by self-represented litigants without leave - no discovery in proceedings - whether subpoenas should be set aside - documents sought unrelated to pleadings or evidence - unsubstantiated suspicions of issuing parties - subpoenas set aside

SUCCESSION - family provision - provision sought by de facto spouse under Family Provision Act 1982 - application out of time - whether "sufficient cause" shown for delay in application - de facto spouse received no provision in will - whether inadequate provision made for de facto spouse and, if so, what provision ought to be made

SUCCESSION - Family Provision and Maintenance - Failure by Testator to Make Sufficient Provision - Former de facto partner - provision made

PRACTICE AND PROCEDURE - costs - discontinuance of proceedings - whether plaintiff should pay costs on the ordinary basis

APPEAL - civil - appeal from decision of Local Court pursuant to s 39 or s 40 of the Local Court Act 2007 (NSW) - whether extension of time to appeal should be granted - whether Magistrate should have recused himself - whether appellant afforded procedural fairness at hearing - whether appellant should be permitted to re-agitate findings of fact APPEAL - EVIDENCE - civil - whether evidence improperly admitted APPEAL - CONTRACT - whether contractual relationship exists between University and student - what constitutes consideration