Cases and authorities

FAMILY LAW AND CHILD WELFARE - adoption - whether adoption by step father of adult child is in the best interests of child - adoption order made - declaration that order does not have effect that child's mother ceases to be so regarded in law

PROCEDURE - civil - interlocutory issues - preliminary discovery - UCPR r 5.3 - discovery of documents from prospective defendant - UCPR r 5.2 - discovery to ascertain new trustee's identity - TRUSTS - trustee's right of indemnity out of trust's assets - whether trust creditors subrogated to old trustee's right of indemnity against trust assets

PROCEDURE - civil - disclosure - Practice Note SC Eq 11 - where party seeks an order for disclosure before service of evidence - whether "exceptional circumstances" necessitating disclosure - whether disclosure necessary for the resolution of the real issues in dispute

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether adoption order clearly preferable to any other order that could be made with respect to care of child - where no realistic prospect of restoration - where preserving possibility of restoration would contravene spirit of adoption principle (e1) - where due to history of prior placement instability child has accentuated needs of security and permanency - where adoption would serve child's identity needs better than any potential alternative as it would confirm child's identity with psychological family while preserving opportunity to know birth parents and to understand why does not live with them - where adoption plans make inadequate provision for birth parent contact - held, that making of an adoption order, in conjunction with orders securing birth parent contact, is clearly preferable to any other order that could be made with respect to care of child FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether consent of birth parents should be dispensed with - as making adoption order would promote child's welfare, necessarily also in child's best interests to make consent dispense order so as to allow the adoption order to be made

CRIMINAL LAW – bail – application for bail – bail granted with conditions

CRIMINAL LAW – bail – application for bail – bail granted with conditions

EQUITY - TRUSTS AND TRUSTEES - s 63 of the Trustee Act 1925 (NSW) - application for judicial advice - no issue of principle

Criminal law - jury trial - charge of murder - whether provocation to be left to the jury - where accused asks that provocation not be left - tactical reasons.

PROCEDURE - conduct of the parties - defendant alleges misconduct of opposing legal representatives and the existence of a conspiracy against him - allegations are unsupported by any evidence or objective basis. COSTS - defendant seeks access to the legal fee and costs information of the plaintiff in the 2011 proceedings - whether the plaintiff should reimburse the trust for certain costs of the trustee for sale of a trust property in defending the issue of the quantum of his fees, after the settlement of that issue.

COSTS - pre-judgment interest

SUCCESSION - the plaintiffs, Justyn and Selena Ng, successful in claim's for family provision out of their grandmother's estate - plaintiffs granted possession of property in which they currently live - whether provision for the plaintiffs of the property should be free of all encumbrances - whether Justyn should be reimbursed for funds lent to the estate to meet the estate's mortgage liabilities. MORTGAGE - property mortgaged to the Commonwealth Bank - whether stay of execution of the bank's writ of possession over the property should be extended from 60 to 90 days. COSTS - whether Selena should pay 15 per cent of the estate's costs of the whole proceedings, or 15 per cent of the costs of her family provision proceedings or 15 per cent of the costs of both family provision proceedings - whether the plaintiffs should bear their own costs of the possession proceedings - quick assessment of the estate's costs in respect of the forgery issue, under Succession Act, ss 66 and 99.

EQUITY - trusts and trustees - appointment and dismissal of trustees - discretionary family trust - extensive litigation - small trust estate - new trustee to be appointed - objects of discretionary trust disagree about identity of new trustee - whether independent professional trustee should be appointed - who is the least inappropriate person to be appointed trustee. Trustee for sale - trustee seeks approval for trustee's professional and legal costs - beneficiary objects - issues resolved by consent. COSTS - indemnity costs - offer of compromise served in the 2008 proceedings in May 2011 - whether indemnity costs should be awarded on the basis of the offer of compromise - whether offer of compromise related to the subject-matter of the hearing.

PRACTICE AND PROCEDURE - application for approval of settlement of personal injury proceedings - whether proposed settlement is in the interests of the plaintiff

CONTRACT - payments allegedly made under mistake - whether mistaken in fact - breach of employment contract - bonuses - collateral agreement as to management fee - no question of law

CHARITIES - Charitable purposes - Advancement of religion - Religious buildings Church CHURCHES AND RELIGIOUS ASSOCIATIONS - Church property and trusts - Trustees and Management Dispositions of, and dealings with, church property - Congregational form of church government EQUITY - Trusts and trustees - Charitable trust - Advancement of religion - Church building

CRIMINAL LAW - appeal against sentence - referral pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - sentence "towards the upper end of the range" - new affidavit material does not alter subjective case - lesser sentence warranted if standard non-parole period not given determinative significance - appeal allowed and new sentence imposed

CRIMINAL LAW - application for extension of time to appeal against sentence - Muldrock error conceded - no error in finding that offence was in mid-range of objective seriousness - relevance of aggravating factors of organised criminal activity and harm to the community - no justifiable sense of grievance in sentence disparity - no lesser sentence warranted - extension of time to appeal refused

CRIMINAL LAW - Crown appeal against sentence - general deterrence not considered in setting non-parole period - non-parole period was manifestly inadequate - disproportionate weight given to subjective circumstances - exceptional personal circumstances justify discretion not to intervene - appeal dismissed

CRIMINAL APPEAL - sentence appeal -where pleas of guilty entered at earliest opportunity - sentencing judge's remarks on sentence silent as to plea or discount - length of head sentence revealing discount must have been miscalculated, not allowed or overlooked - Crown conceding appeal should be allowed

CRIMINAL LAW - appeal against sentence - application to extend time - unsatisfactory explanation for substantial delay - failure to demonstrate appellable error - extension of time refused

PRACTICE AND PROCEDURE - slip rule - variation of orders and reasons in principal judgment

CRIMINAL LAW - appeal - Crown appeal against asserted manifest inadequacy of sentences imposed following pleas of guilty to offences of attempting to possess a commercial quantity of cocaine - where Crown did not assert error of principle - where Crown did not assert error in findings of the sentencing judge - where Crown relied upon maximum penalty, weight of drug, role of the offenders and sentences imposed in other cases in support of asserted manifest inadequacy - manifest inadequacy not made out - appeal dismissed in each case CRIMINAL LAW - appeal - Crown appeal against asserted manifest inadequacy of sentences imposed following pleas of guilty of offences of attempting to possess a commercial quantity of cocaine - where Crown asserted that discount for assistance was manifestly excessive - where amount of discount generally consistent with the finding of the sentencing judge as to the value of assistance - manifestly excessive discount not established

DEFAMATION - costs - special costs provisions in defamation proceedings - whether defendants unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff -entitlement to indemnity costs COSTS - where plaintiff a solicitor representing himself as an employee of a solicitor corporation - where evidence inconclusive as to whether there exists a liability between plaintiff and solicitor corporation in respect of costs - whether plaintiff to be regarded as a solicitor litigant in person - application of the Chorley rule

NEGLIGENCE - professional negligence - breach of retainer - plaintiffs were borrowers under a loan/mortgage transaction - plaintiffs mistakenly believed they were guarantors to the mortgage and not the borrowers under the loan - plaintiffs would not have entered into the transaction had they known they were the borrowers - plaintiffs had limited understanding of English - failure by defendant solicitor to advise plaintiffs as to the legal effect and risks of the mortgage transaction - solicitors required to give such advice as called for in the circumstances of each case - harsh and oppressive terms of the loan/mortgage required the defendant solicitor to give specific and strong advice to the plaintiffs not to accept the loan offer and warn of the risks in doing so - solicitor breached duty to exercise reasonable care, skill - consequential loss incurred by plaintiffs refinancing mortgages - defence of contributory negligence not established - apportionable claim in accordance with Part 4 of the Civil Liability Act 2002 (NSW) - apportionment of liability between concurrent wrongdoers

PROCEDURE - civil - parties - joinder - whether leave should be granted to join insurer under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - discretion of court - whether satisfaction of 3 conditions in Bede Polding College v Limit (No 3) Limited [2008] NSWSC 887 sufficient for grant of leave PROCEDURE - civil - jurisdiction - transfer of proceedings - whether in the interests of justice that proceedings be determined by Supreme Court of Victoria - whether procedural or substantive advantages to one party relevant to the interests of justice in application to transfer

Superannuation - Insurance - Claim for benefits - Superannuation trustee holding insurance policy covering total and permanent disablement of scheme members including Plaintiff - Whether Plaintiff totally and permanently disabled within the meaning of the relevant superannuation trust deed and insurance policy - Duty on an insurer in determining a claim for a benefit - Duty on a trustee of a superannuation fund in determining a claim for a benefit - Whether Plaintiff unlikely ever to engage in or work for reward in any occupation or work which he is reasonably capable of performing by reason of education, training or experience - Review of decision made by each of Trustee and Insurer necessary - Same decision reached

PROCEDURE - application for stay - application made on the basis of hardship - no proper basis for stay demonstrated - no question of principle

COSTS - trial - motor vehicle accident - breach of duty admitted on first day of trial - contributory negligence and damages in issue at trial - judgment varied on appeal - whether costs ordered against defendant to be assessed partly on indemnity basis - whether claim could have been processed through Claims Assessment and Resolution Service (CARS) had liability been admitted earlier - claim exempted from CARS process due to insurer's denial of fault on part of defendant - costs of motion for costs of trial

EQUITY - proprietary estoppel - defendant invited daughter and son-in-law to live in a homestead on one of his properties - they undertook improvements to property with defendant's consent - whether estoppel by encouragement arose - whether defendant's conduct justified expectation that the plaintiffs would inherit property or receive transfer during defendant's lifetime - whether plaintiffs have obtained the full benefit of their improvements such that they have effectively been amortised - held that defendant's conduct gave rise to a reasonable expectation that plaintiffs entitled to occupy relevant parts of property during defendant's lifetime

TORTS - negligence - slip and fall at retail premises - floor recently mopped - mopping not conducted so as to leave dry passageway - no findings by primary judge concerning duty of care and standard of care - such findings essential - appeal court able to make the findings - whether breach of duty of care - if breach, whether it was causative of the damage suffered - contributory negligence - assessment of damages - respective responsibilities of occupier, cleaning contractor and the contractor's insurer - construction of cleaning contract and insurance contract

SUCCESSION - Wills, probate and administration - Probate and letters of administration - Administration with will annexed - To whom granted - Breakdown in relationships of beneficiaries named as executors - Need of independent Administrator

PROCEDURE - civil - application for leave to re-open hearing - applicable principles - factors relevant to exercise of discretion - reason why evidence not available to be called at hearing - importance of evidence sought to be adduced - inconvenience and additional costs - prejudice to defendants - motion dismissed with costs

CONTRACT - construction of contract - defendant to repay $1,266,000 in vendor finance to the plaintiff to finalise a share sale agreement - certain defined expenses could be set off against vendor finance liability - whether identified expenses qualified under the relevant contractual definition as expenses that could be set off against vendor finance repayment obligation - principle that the Court should take a businesslike approach to the construction of commercial contractual language - whether the Court may consider surrounding circumstances to cure ambiguity of language - application of principle that post-contractual conduct cannot inform construction.

EQUITY - contribution between co-sureties - co-surety discharged less of borrower's indebtedness than another and obtained covenant not to sue from Bank - whether liability no longer "co-ordinate" with other co-surety - whether other co-surety's payment conferred benefit on first surety - whether dismissal of Bank's proceedings meant no longer co-ordinate liabilities - whether Carr v Thomas [2009] NSWCA 208 clearly wrong - whether disentitling conduct

CRIMINAL LAW - crown appeal against sentence - s 5DA Criminal Appeal Act - respondent gave statement against co-offender and undertook to provide assistance by giving evidence against co-offender - at trial of co-offender respondent asserts falsity of his statement and declines to give evidence - whether residual discretion should be exercised - whether sentence can be increased by whole of discount for assistance or whether confined to discount for future assistance

APPEAL - error of law - challenge to fact-finding exercise - whether there was a failure to exercise jurisdiction - alleged failure by trial judge to provide reasons for preferring evidence - misconception of facts by the trial judge - failure to identify the points of difference between evidence - Land and Environment Court Act 1979 (NSW), s 57. ENVIRONMENT AND PLANNING - acquisition of land - compensation - increase in value of remaining land after acquisition - compensation awarded only for disturbance caused by acquisition - role of improved value of retained land in determining compensation - whether improved value of the retained land should not be considered when assessing market value of the land - whether claim for disturbance should be off-set against improved value - Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55. ENVIRONMENT AND PLANNING - acquisition of land - compensation - acquired land subject to unregistered leases - whether trial judge erred in failing to disregard leases when determining market value - Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55. ENVIRONMENT AND PLANNING - acquisition of land - compensation - alleged failure to assess claim for special value - Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55. ENVIRONMENT AND PLANNING - acquisition of land - compensation - whether a residual discretion exists to ensure just compensation - Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 54.

STATUTORY CONSTRUCTION - Adoption Act - Section 67(1)(a) - whether parent 'cannot, after reasonable enquiry, be found'

PROCEDURE - civil - UCPR r 12.6 - whether consent or leave required to withdraw admission - whether subsequently filed list response impliedly withdraws admission made in original list response - where plaintiff "on notice"

Criminal law - Application to exclude evidence - Substantial impairment - Undiagnosed mental illness - Research

STAY OF PROCEEDINGS - Whether Plaintiffs' application for stay of proceedings should be granted and hearing dates vacated pending appeal to the Court of Appeal regarding earlier decision of Ball J to strike out plaintiffs' replies to defences of the third and fourth defendants, reserved judgement of the High Court of Australia in Williams Case No 2, and resolution of alleged insufficient discovery by defendants. FORM OF REPLY - Whether a reply must be responsive to pleadings. DISCOVERY - Whether affidavit of discovery is to be accepted as conclusive proof of full compliance with discovery orders.

CRIMINAL LAW - application for inquiry into conviction pursuant to s 78 Crimes (Appeal and Review) Act 2001 - allegation that trial judge slept through portions of trial - not relevant to grounds that have already been dealt with on appeal - does not lead to a sense of unease or disquiet in allowing the conviction to stand - nothing to suggest that trial judge failed to adequately supervise and control trial or that jury was significantly distracted - no departure from proper conduct of trial - application refused

PROCEDURE - notice of motion - order seeking payment of sum paid into court to defendant - steps to be taken before orders are finalised for payment - orders made

PROCEDURE - notice of motion - orders sought under s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) - leave granted - costs

CRIMINAL LAW - new Bail Act - unacceptable risk - mitigation of unacceptable risks - onus of proof

PROCEDURE - Discovery - further and better discovery - additional discovery EVIDENCE - Subpoenas - setting aside - abuse of process - relevance

CLASS ACTIONS - whether Court can and should exclude specific person from description of class.

PROCEDURE - notice of motion - order sought under s 82(1) of the Civil Procedure Act 2005 (NSW) against the first and second defendants for interim payment of part of the damages and to which plaintiff claims to be entitled - whether such an order should be entertained - medical causation in issue - no expert advice obtained by first and second defendants as yet - whether judgment for substantial damages would be obtained if proceedings go to trial - orders made

HABEAS CORPUS - remand pending determination of jurisdiction so to do - breach of bond in court with which bond was entered - warrant to appear in District Court was without jurisdiction - imprisonment unlawful - order issued

CORPORATIONS - voluntary administration - application by administrators for directions under Corporations Act 2001 (Cth) s 447D - where company holds surplus in deed funds from negligence proceedings after claims of creditors had been discharged - where deeds of release had been executed by most but not all creditors - whether administrators would be justified in paying interest on deed participants' claims under Corporations Act s 563B - construction of deed of company arrangement.

PROCEDURE - costs - departing from the general rule - general discretion as to costs - whether the court should "order otherwise" as to costs where plaintiff unsuccessful on several claims - application of Uniform Civil Procedure Rules 2005 (NSW) r 42.14 PROCEDURE - costs - costs of mediation - where mediation undertaken at consent direction of the Court - whether costs of mediation are costs in the proceedings PROCEDURE - costs - departing from the general rule - offers of compromise and Calderbank offers - Whether unreasonable for defendants to reject offers of compromise and Calderbank offers where minimal evidence served at the time of the offer - whether unreasonable for defendants to reject offers of compromise and Calderbank offers where no indication of costs incurred PROCEDURE - costs - departing from the general rule - whether costs should be apportioned in cases where there are numerous claims - whether costs should be apportioned where parties have entire or substantial success on some claims but not others - whether costs should be apportioned in relation to discrete claims - how costs can reflect in a practical way the extent to which each of the parties were successful on different claims PROCEDURE - costs - Interest on costs - whether interest on costs should be granted where no explanation before the court for delay in proceedings - whether there is a need for explanation before an interest on costs order in relation to unexplained and extreme delay can be made - application of s 101 Civil Procedure Act 2005 (NSW)