Cases and authorities

PROCEDURE - whether to allow amendments to commercial list response - whether prejudice to the plaintiff where effect of amendments is to include non-fraudulent non-disclosure as well as fraudulent non-disclosure PROCEDURE - whether to grant leave to administer interrogatories - whether interrogatories must be "necessary" for leave to be granted - whether interrogatories would bring about the just, quick and cheap resolution of the real issues in dispute - whether leave to administer interrogatories in relation to information given in an Independent Commission Against Corruption inquiry ought be granted - Independent Commission Against Corruption Act 1988 (NSW) s 37(3) PROCEDURE - Application for order that defendant produce a narrative statement of facts showing how facts would be proved by documents in the court book - where such order is not a direction usually given - whether alternative course of annotating the commercial list response to refer to relevant documents ought be granted - where difficult for plaintiff to give proper consideration of whether to put on evidence in reply

CORPORATIONS – winding up – insolvency – statutory demand – setting aside statutory demand – whether demand defective for misnomer of company in affidavit verifying – where most of debt claimed paid after issue of demand - where defendant does not appear to contest genuine dispute in respect of balance

CORPORATIONS – external administration – winding up – annual general meetings of creditors – extending time for convening annual general meeting

[CORPORATIONS] - where ASIC carrying out investigation under the ASIC Act - where proceedings brought for orders pursuant to s 1323 of the Corporations Act 2001 (Cth) and s 66 and s 67 of the Supreme Court Act 1970 - nature of the proceedings - where ex parte freezing orders and travel restraint orders made against relevant defendants - where orders continued for six months - where ASIC moved for discharge of orders by consent - obligations of ASIC when orders are continued. [COSTS] - application by defendants, the subject of the freezing orders and travel restraint orders, for costs of the proceedings - matters to be considered on such an application.

CRIMINAL LAW - appeal against conviction - text message used to re-establish credit was a prior consistent statement - judge did not err in not specifically adverting to s 192 Evidence Act 1995 (NSW) - unmeritorious "armchair" appeal

STATUTORY INTERPRETATION - principles - effect of non-compliance with regulation on validity of notice - legislative intention - Project Blue Sky Inc v Australian Broadcasting Authority - Environment Planning and Assessment Act 1979 (NSW), ss 81 and 83 ENVIRONMENT AND PLANNING - development control - consent - development that needs consent - notification of consent - inconsistency between consent and notification of consent - whether inconsistency results in invalid notification - whether consent is in force - Environmental Planning and Assessment Act 1979 (NSW), ss 81 and 83 CRIMINAL - procedural fairness - prosecution - departure from particulars in summons at conclusion of trial - judicial discretion - additional evidence required to address amendment ENVIRONMENT AND PLANNING - Fisheries Management Act 1994 (NSW), s 220ZD(b) - whether provision only operates when development consent is in force

CRIMINAL LAW - Sentence - Where applicant sentenced for offences of robbery in company and steal from person - Where applicant had spent a period of 2 months in custody bail refused in respect of offences for which he was discharged at committal - Where such period unrelated to offending for which he was to be sentenced - Relevance of that issue on sentence - Whether previous line of authority wrong and should not be followed CRIMINAL LAW - Sentence - Offences of robbery in company and steal from person - victims followed by applicant on a bus then assaulted and robbed - Need for general deterrence - Sentence not manifestly excessive

CRIME - sentencing - aggregate sentence imposed for 21 sexual offences committed against the applicant's daughter with seven further offences taken into account on a Form 1 - whether sentencing judge erred in failing to have regard to alleged assistance to authorities - whether judge erred in his approach to evidence that the applicant had been sexually abused as a child - whether sentence manifestly excessive

CRIMINAL - Subramaniam direction -whether obligation to give direction - Mental Health (Forensic Provisions) Act, s 21 CRIMINAL - Longman warning - judge alone trial - whether obligation to give warning - Evidence Act, s 165B CRIMINAL - Murray direction - whether direction given was followed - judge alone trial - judgment must adequately expose reasoning process - justice to be seen to be done - mere incantation of warning and directions insufficient CRIMINAL - conviction - whether verdict unsafe and unsatisfactory - whether open to judge to be satisfied beyond reasonable doubt as to the appellant's guilt on the evidence - advantage of hearing and seeing evidence at trial CRIMINAL - sentencing - failure to take into account mental state at time of offences -expressly eschewed by counsel at trial - lack of evidence as to mental state CRIMINAL - sentencing - whether manifestly excessive

COSTS - three appellants appealed findings as to liability, apportionment and damages in District Court - two appellants successful on apportionment but otherwise appeals dismissed - dispute between appellants as to costs consequences - costs in District Court and of appeal to reflect apportionment findings made on appeal.

DEFAMATION - pleading imputations - where respondents published Book purporting to tell "Untold story behind Schapelle Corby's ill-fated drug run" - whether Book capable of conveying defamatory meaning PROCEDURE - application to strike out defamatory imputations - approach to capacity determination DEFAMATION - republication of defamatory hearsay - principles applicable when person publishes defamatory statement of third party - whether publisher "adopts" such statements DEFAMATION - bane and antidote principle - where respondents contend defamatory effect of certain imputations neutralised by tenor of Book and specific sections of Book - application of bane and antidote principle at capacity stage DEFAMATION - whether imputation capable of being defamatory - standards by which defamatory imputation determined - relevance of moral standards

REAL PROPERTY - possession of land - stay of writ of possession - to enable negotiations for defendant to purchase property or apply to Family Court - further stay sought - defendant failed to act with expedition - further stay refused

EQUITY – equitable remedies – freezing orders – whether freezing order should be dissolved – whether strength of plaintiff’s claim against third defendant of itself sufficient to warrant continuation of order where no evidence of risk of dissipation

TAXATION AND REVENUE - assessment for payroll tax - where plaintiff is admittedly a group member with another company pursuant to s 72(2)(e) of the Payroll Tax Act 2007 and jointly and severally liable for payroll tax pursuant to s 81- whether the plaintiff should be excluded from group pursuant to s 79

[CORPORATIONS] - Statutory demand - where genuine dispute - whether the Court has jurisdiction to entertain an application to set aside statutory demand if Originating Process does not identify section under which it is sought to set aside the statutory demand - where Originating Process includes express reference to section 459G of the Corporations Act 2001 (Cth).

PROCEDURE - Application for freezing order in relation to judgment debt - whether to make freezing order where judgment debtor failed to provide financial information or to give undertaking not to dissipate assets - whether to make freezing order where balance of convenience considerations

PRACTICE AND PROCEDURE - Application for adjournment of hearing after solicitor's retainer peremptorily terminated

CORPORATIONS – winding up – liquidators – distribution of assets amongst creditors – where creditors are companies in the same corporate group as the insolvent entity – where creditor company is also debtor to the insolvent entity

PROCEDURE - Summary disposal - Contracts Review Act defence - whether defence so clearly untenable that it could not possibly succeed

EQUITY - equitable interests in real property - equitable charge - created by words of present grant - no separate requirement of consideration for grant of charge EQUITY - equitable interests in real property - unregistered mortgages - whether grant of mortgage supported by consideration - whether mortgage does not secure any obligations EQUITY - equitable interests in real property - purchaser under contract for sale - whether no interest because specific performance would not be ordered EQUITY - equitable interests - priorities - whether holders of earlier interests guilty of postponing conduct by remaining silent or engaging in sharp practice - failure to caveat not postponing conduct where holders of later interests fail to search register - whether holders of later interests took with notice of earlier interest REAL PROPERTY - Torrens system - caveats - validity - failure to provide prescribed particulars of claimed interest - amount of debt charged on land - whether failure is to be disregarded pursuant to Real Property Act 1900 (NSW) s 74L

CIVIL PROCEDURE - application for summary judgment of a claim for possession and summary dismissal of cross-claim - summary judgment and dismissal granted - no triable issue and no viable cause of action or defence - abuse of process and vexatious proceedings - embarrassing statement of claim and draft pleading - respondent's history of manipulating court processes by obtaining adjournments and deferrals through engaging legal practitioners and dispensing with their services - delay of court proceedings to the detriment of the applicant

PROCEDURE - civil - judgments and orders - effect of appellate judgments - whether court should determine scope of remitter as separate question in advance of further hearing - amendments - whether in the interests of justice that leave be granted to further amend particulars of defence

PRACTICE AND PROCEDURE - Application for a stay of proceedings pending appeal - Whether there are arguable grounds of appeal - Whether there is a risk that the judgment will not be repaid if not stayed - Where there is a risk that the appellant's financial position might deteriorate pending appeal - Balance of convenience or Balance of hardship between the parties - Terms on which stay should be granted - Amount of security required

MOTOR ACCIDENT COMPENSATION - whether primary judge erred in not being satisfied that plaintiff/appellant had provided a "full and satisfactory explanation" within s 66(2) of Motor Accidents Compensation Act 1999 (NSW) for delay in making a motor accident claim - explanation for delay given by hearsay evidence which was not objected to - principles relevant to admissibility of and weight to be given to that evidence

INTEREST - recoverability of interest - pre-judgment interest - calculation of interest - date from which interest ran - date when cause of action arose - Civil Procedure Act 2005 (NSW), s 100(1)(b) PRACTICE AND PROCEDURE - variation of orders - judgment sum failed to include judgment interest - variation to judgment sum to account for interest on money recovered by appellant

ADMINISTRATIVE LAW - judicial review - power to grant costs certificate may be granted after commencement of trial - refusal to consider application for costs certificate on the basis that no trial had commenced - whether failure to exercise jurisdiction - Costs in Criminal Cases Act 1967 (NSW), s 2 CRIMINAL LAW - procedure - application for costs certificate - power to grant costs certificate after commencement of trial - multiple accused arraigned before judge and entered pleas of not guilty - indictment withdrawn before jury empanelled - whether trial had commenced - whether "trial" limited to hearing before a jury - whether trial commences when accused arraigned and enters plea - Costs in Criminal Cases Act 1967 (NSW), s 2 STATUTORY INTERPRETATION - principles - reading provision in context - meaning of "trial" in one Act - reference to another Act regarding the conduct of trials - relationship between Acts for the purposes of interpretation - Criminal Procedure Act 1987 (NSW), s 130 - Costs in Criminal Cases Act 1967 (NSW), s 2 WORDS AND PHRASES - "trial" - ordinary meaning of "trial" - whether meaning of "trial" includes when accused arraigned and enters plea - Costs in Criminal Cases Act 1967 (NSW), s 2

APPEAL - whether magistrate erred in admitting evidence of intercepted telephone calls - whether magistrate found incorrectly that the Evidence Act 1995 (NSW) did not apply EVIDENCE - Evidence Act 1995 (NSW) applies to applications for a forensic procedure - Evidence Act 1995 (NSW) must be read together with Crimes (Forensic Procedure) Act 2000 (NSW) along with any other applicable Act - laws of evidence as they apply to applications for forensic procedures are affected by matters of which the magistrate is required to be satisfied of - meaning of reasonable grounds for suspicion or belief

PROCEDURE - Application to take evidence by audiovisual link - whether to allow evidence to be taken by audiovisual link where credit of witness a key issue, case not substantially documentary, insufficient explanation for inability to attend, cross examination expected to be extensive and cross examination will require numerous documents

EQUITY - Leases - Assignment - Construction of a lease - Consent to assignment - Refusing consent to assignment - Preconditions to assignment

CONTRACTS - construction and interpretation - commercial contract - giving proper and plain meaning to words used in the contract - whether transition from one contract to another involved imposition of a new and different contractual regime or a supplementation of the existing regime - whether adjustments made to prices in the interim term cease to have effect when the interim term ended and the agreement term commenced. PRACTICE AND PROCEDURE - Judgments and orders - Application for Suppression Order - whether suppression order should be granted in relation to confidential information - where significant risk of public detriment if information were not suppressed - whether suppression orders should be made on balance

CRIMINAL LAW - sentencing - obtain financial advantage by deception - multiple counts - two Ponzi schemes at different times in different locations - second scheme operated while applicant on bail from charges relating to first scheme - amounts involved exceeding $13 million - losses exceeding $1 million - delay in charging for second scheme - whether taken into account on sentence - totality principle - sentencing by different judges for each scheme - whether second judge had regard to totality of offending and sentence imposed by first judge - accumulation and effect on statutory ratio - variation to non-parole period

TORTS - negligence - duty of care - whether an operator of a supermarket in a shopping centre owes a duty of care to users of a common area near the entrance of its premises in circumstances where a hazard is created by use of a product purchased from the vendor - whether the primary judge's finding that an admission was made by an employee of the occupier was supported by evidence - whether, assuming a duty of care to exist, the supermarket operator breached its duty

REAL PROPERTY - possession of land - plaintiff under the management of the NSW Trustee and Guardian - son in occupation of Plaintiff's house - Trustee takes decision to sell in order to meet nursing home expenses of Plaintiff - decision affirmed by Administrative Decisions Tribunal - son joined as a party to proceedings in ADT on his application - no defence to claim for possession

CRIMINAL LAW - EVIDENCE - witness - examination in chief - application by witness for an adjournment

CRIMINAL LAW - EVIDENCE - witness - examination in chief - whether leave should be granted for a witness to revive his memory by reference to a document - evidence highly probative

CRIMINAL LAW - EVIDENCE - witness - examination in chief - witness protected by certificate pursuant to Evidence Act s 128 - witness gave evidence that evidence he had previously given while on oath in these proceedings is false - whether the certificate protects the witness in respect of this falsity - whether issue should be raised with witness

SUCCESSION - Family Provision and Maintenance - Failure by Testator to Make Sufficient Provision - Adult Children - provision made for 1st and 2nd plaintiffs

TORT - Bailment - property destroyed whilst in police custody - damages - whether general damages payable for sentimental value.

ADMINISTRATIVE LAW - judicial review - decision of Independent Liquor and Gaming Authority - application to increase gaming machine threshold at venue - whether Authority had a fixed rule for the local government area - whether prejudgment - speech by Chairman immediately following determination discussing the application - Chairman expresses personal views about gambling and gaming machines - whether apprehended bias - reasons for determination - not statutorily mandated - reasons prepared later by consultant to the Authority - reasons going beyond discussions at meeting where application determined - whether top down ex post facto reasoning - reasons approved by four of five members of Authority - one member had retired - whether her absence invalidated reasons - effect of invalidating reasons on determination made

SUCCESSION - Wills, Probate and Administration -Probate and Letters of Administration - Alteration and Revocation of Grants - Application to revoke grant of administration in common form - Plaintiff acquiesced in grant of administration in favour of defendant - Whether in the interests of the due administration of justice and of the estate to revoke grant - Court's power to revoke grant is discretionary - Revocation proceedings an abuse of process - Application summarily dismissed SUCCESSION -Wills, Probate and Administration - Probate and Letters of Administration - Practice - New South Wales -Form of probate and letters of administration - Distinction between grant in common form and grant in solemn form - Principles governing revocation of grants

ADMINISTRATIVE LAW - judicial review - appeal from Children's Court to the District Court - no appeal against judgment on statutory appeal to the District Court - whether error of law on the face of the record or jurisdictional error established ADMINISTRATIVE LAW - procedural fairness - apprehended bias - allegation of failure by judge to consider applicant's submissions - direction by judge that litigant in person would be assisted by opposing counsel ESTOPPEL - res judicata - issue estoppel - findings made about child when determining care order - application to rescind or vary care order - whether earlier findings can be re-examined - whether issue estoppel can arise when there is express jurisdiction to address changed circumstances -- Children and Young (Care and Protection) Act 1998 (NSW), s 90 FAMILY LAW AND CHILD WELFARE - rescission and variation of care orders - care order allocated responsibility for contacting child to Department - order expired when child reached a specific age - application by Department to extend period of responsibility - whether Director-General of department had standing to seek variation - leave to apply for rescission or variation granted where there has been a "significant change in any relevant circumstances" - whether circumstances establish a significant change - whether circumstances limited to those that were the basis for initial care order - Children and Young (Care and Protection) Act 1998 (NSW), s 90 JUDGMENTS - application to review decision of Children's Court after merit appeal to District Court - judgment of lower court superseded by judgment of appeal court - Wishart v Fraser [1941] HCA 8; 64 CLR 470 applied

CONTRACTS - Variation of contractual relations - whether variation partly written and partly oral - whether variation written only - whether terms agreed CONTRACTS - Variation of contractual relations - Agreements contemplating execution of formal document - Masters v Cameron APPEAL - Interference with judge's findings of fact - where findings based on credibility of witness

PROCEDURE - security for costs - application by the first respondent for advance payment of compensation pursuant to the Land Acquisition (Just Terms Compensation) Act 1991, s 68 - the appellant claims a relevant interest in the acquired land - the primary judge found that the appellant did not have a compensable interest in the land PROCEDURE - security for costs - whether the appeal is bona fide and has a reasonable prospect of success - whether the appellant's impecuniosity arises out of the first respondent's conduct relating to the subject of the appeal - whether an order for security for costs would stifle or stultify the appeal - whether there are persons standing behind the appellant who are reasonably in a financial position to support the appeal PROCEDURE - security for costs - application refused

EQUITY - Remedies - declarations - whether proceedings should be stayed pending determination by expert - whether the plaintiff is bound to accept the terms of the retainer provided by the expert - whether terms of release and indemnity provided by expert are reasonable - whether dispute resolution process under the terms of the lease should be followed by both parties - whether term of the lease provides an independent contractual entitlement to initiate court proceedings - whether viticulture expert can express an opinion on the issues in dispute

CRIMINAL LAW - application to extend interim supervision order - pending hearing for high risk sex offender extended supervision order - Crimes (High Risk Offenders) Act 2006 (NSW) - no question of principle.

SUCCESSION - Plaintiff, a child of the deceased, makes a claim for a family provision order - No dispute as to the Plaintiff's eligibility - Deceased died intestate - Deceased married at the date of his death but cohabitation as husband and wife no longer than a few days - The widow of the deceased unable to be located despite efforts on part of the deceased and subsequently the Plaintiff - Widow and deceased separated for over 12 years at date of his death - Widow, if alive, entitled on intestacy - Independent solicitor appointed to represent the estate - Section 91 grant applied for to enable the Plaintiff's application to be dealt with - Whether family provision order should be made for Plaintiff, and if so, the nature and quantum of the further provision to be made - Order for provision for the Plaintiff made

CRIMINAL LAW - sentencing - existing sentence - delay in charging - whether error in accumulation - whether sentence manifestly excessive

CRIMINAL LAW - appeal against sentence - specially aggravated break and enter and commit serious indictable offence - applicant subject to parole for armed robbery at time of offending - whether retribution relevant as motive for offending - whether psychologist's report admissible as fresh or new evidence

BUILDING AND CONSTRUCTION - adjudication applications - where adjudicator makes an error within jurisdiction - whether error as to the terms, construction or application of the construction contract is an error within jurisdiction - whether adjudicator erred in any event

CRIMINAL LAW - juror unavailable because of unexpected commitment - juror discharged - whether to discharge whole jury