Cases and authorities

COMMON LAW - negligence - negligent misstatement by solicitor - misleading and deceptive conduct - breach of s 42 of the Fair Trading Act 1987 (NSW) - representations made concerning operation of an investment scheme and alleged safeguards in place for investors' funds - representations made by proponents of the investment scheme and their solicitor - absence of a disclaimer - defendant solicitor in making representations was not a mere conduit - continuing duty to inform the plaintiff prior to investment of funds in the scheme - failure to exercise reasonable care - failure by defendant solicitor to verify the accuracy of the representations - representations induced the plaintiff to make the investments - plaintiff's reliance on representations was reasonable - defendant solicitor owed a duty of care to the plaintiff - defendant solicitor drafted the investment contracts on behalf of both parties, provided services and, in securing investors' funds used for bridging finance to third parties, drafted and completed mortgages and caveats - defendant solicitor was available to answer plaintiff's questions in relation to the investments - professional negligence - implied retainer existed between the plaintiff and the defendant solicitor - breach of fiduciary duty - defence of contributory negligence not established - proportionate liability in accordance with Part 4 of the Civil Liability Act 2002 (NSW) - principles and approach in application of the statutory proportionate liability regime - causes of action in negligence, breach of s 42 of the Fair Trading Act 1987 (NSW) and breach of fiduciary duty predicated on and arising from failure of solicitor to take reasonable care - claim based thereon apportionable claim - assessment of respective degrees of responsibility of concurrent wrongdoers - apportionment of liability between concurrent wrongdoers - damages pursuant to s 1324(10) of the Corporations Act 2001 (Cth) only available where an injunction is actually sought

LIMITATION OF ACTIONS - Workers Compensation Act 1987, s 151D - Extension of period by leave of court - Exercise of discretion - justice of the case - lack of prejudice to defendant or effect on fair trial - plaintiff's solicitor's professional and personal circumstances causes delay, together with necessity to brief alternate counsel - stabilisation of injury or symptoms

PRACTICE AND PROCEDURE - terms of stay of execution pending appeal - application to vary charge over appellant's property - application dismissed

PRACTICE AND PROCEDURE - costs - costs following the event - no order for interest on costs

CRIMINAL LAW - EVIDENCE - admissibility - proposed evidence received on voir dire by way of statement - whether evidence relevant - whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused

CONTRACT - vendor and purchaser - construction of agreement - whether interest accrues to the vendor during the period from the revised completion date set under the contract of 24 December 2013 and its actual completion date - contractual entitlement to interest depends on whether vendor 'ready, willing and able' to complete and whether vendor in default - COSTS - general rule that costs follow the event - whether the general rule is displaced because the issues on the Interest Motion are analogous with the determination of a dispute concerning a trust fund - whether each party should bear his own costs after the settlement of the Citibank Motion.

COSTS - application to have costs payable forthwith - no warrant for departure from usual position that costs are assessable after the conclusion of proceedings

MORTGAGOR and MORTGAGEE - forged signatures - allegedly witnessed by solicitor - settlement as against mortgagors LEGAL PRACTITIONERS - breach of warrant of authority in disbursement of loan funds - solicitor warranting that he acted for persons one of whom he did not so act CONSUMER PROTECTION - misleading or deceptive conduct - solicitor's warranty of authority - instructions not received from one mortgagor

PRACTICE and PROCEDURE - Vexatious Proceedings Act 2008 - re-litigation of issues already determined - abuse of process - no reasonable prospects of success - legally embarrassing - proceedings taken have effect of harassing or annoying - taken repetitively and frequently

PROCEDURE - appeal - interlocutory application - summary dismissal for incompetence - non-compliance with the Uniform Civil Procedure Rules 2005 (NSW)

DAMAGES - general principles - difficulty of assessing damages where future or hypothetical events- whether total absence of reliable evidence of company's financial affairs - whether methodology for quantifying losses was sound DAMAGES - where successful claims by both parties - application of Civil Procedure Act 2005 (NSW) s 90(2)(a)

MURDER - application for directed verdict - intention - no question of principle.

EQUITY - trusts - breach of trust - whether trustee should be removed due to breach of trust - whether breach of trust through misapplication of funds - whether breach of trust by causing the trust to provide guarantee - whether breach of trust by causing trust to borrow at higher interest rates - winding up of trust- whether minority unit holder had standing to call for winding up of trust - construction of trust deed - whether trustee had power to make amendments - whether amendments were breach of trust

EVIDENCE - lies - consciousness of guilt - "Edwards" direction - approach of trial judge in considering application for direction.

CRIMINAL LAW - appeal against conviction - sexual assault - Crown case turned on testimonial evidence of complainant of three assaults - inconsistent verdicts - jury convicted on second count and acquitted on first and third counts - second and third counts alleged to have occurred on same occasion - nothing in circumstances to conclude that complainant's evidence on second count more reliable than on other counts - relevance of lengthy jury deliberations and reactions of trial judge and counsel to jury's verdicts - conviction quashed and verdict of acquittal entered

CRIMINAL LAW - appeal against exclusion of prosecution evidence during trial - Criminal Appeal Act 1912, s 5F(3A) - expert evidence relating to likelihood of obtaining intact spermatozoa more than 72 hours after ejaculation erroneously excluded - trial judge failed to take into account evidence at its highest and upon the assumption that the jury would act upon it - exclusion substantially weakened prosecution case - ruling vacated

CRIMINAL - appeal against sentence - referral pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) - alleged "Muldrock error" - applicant sentenced after a plea of guilty - whether "Muldrock error" established

CRIMINAL LAW - appeal against conviction - application for extension of time years after conviction entered - applicable principles - Criminal Appeal Act 1912 (NSW) s 6 - consideration of the prospects of success of the grounds of appeal - whether directions of the trial judge in relation to complaint violated the principle in Palmer v The Queen - whether evidence of flight should have been admitted at first instance - whether trial judge erred in his directions regarding evidence of flight - application of considerations analogous to the proviso

CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - tendency and co-incidence evidence under uniform evidence law - evidence admitted of prior guilty plea and admissions of aggravated indecent assault in trial of other indecent assault charges where accused pleading not guilty CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - tendency and co-incidence evidence under uniform evidence law -whether risk of contamination or concoction of evidence between complainants CRIMINAL LAW - appeal and new trial - whether verdict unreasonable or insupportable having regard to evidence

CRIMINAL LAW - conviction appeal - two counts of aggravated sexual assault and two counts of indecent assault of a child under 16 years - whether summing up by trial judge was deficient - whether trial judge misdirected the jury

EQUITY - unconscionable conduct - bank granted dual currency loan facility to appellant and husband - bank exercised right to convert loan currency after deterioration in value of Australian Dollar against the Hong Kong Dollar - whether bank failed to take reasonable steps to ensure appellant aware of risk of loss in event of adverse currency movements - whether appellant aware of bank's unilateral right of conversion - relevance of evidence of usual practice of bank officer - whether bank's alleged failure to recommend that the appellant seek independent legal advice was unconscionable - whether bank agreed with appellant that loan would remain in Hong Kong Dollars - no basis for a finding of unconscionable conduct

FREEZING ORDERS - whether freezing orders should be granted over assets of a family trust - whether prima facie case of plaintiff established - whether danger and threat that any judgement obtained will be wholly or partly unsatisfied due to removal of assets.

PROCEDURE - civil - whether proceedings should be dismissed under r 13.4 UCPR on the basis that no reasonable cause of action is disclosed - whether proceedings should be dismissed under r 12.7 UCPR on the basis that the plaintiff has failed to prosecute her claim with due dispatch

CORPORATIONS - reconstructions and schemes - proposal revised after order for meeting made. CORPORATIONS - managed investments - responsible entity - trust scheme of arrangement - application for judicial advice - where proposal revised after original orders for convening meeting and approving explanatory statement.

APPEAL - civil - appeal from decision of Local Court pursuant to s 39 of the Local Court Act 2007 (NSW) - whether Magistrate erred in law by giving inadequate reasons

PROCEDURE - adoption of report of referee - allegation of breach of procedural fairness - allegation of apprehended or actual bias - where allegation founded on communications between referee and one party - nature of those communications - whether breach occurred in circumstances where complaining party instrumental in determining regime of reference and engaged in similar communications - whether any breach waived - whether any errors sufficient to prevent adoption of report - whether reconciliation of certain account occurred and effect of any such reconciliation.

PROCEDURE - civil - judgments and orders - consent orders - permanent injunctions preventing conduct with respect to residential building work - Home Building Act 1989, s 138 - Australian Consumer Law 2010, s 233 PROCEDURE - civil - judgments and orders - contempt - consent orders - breach of - whether breach was accidental or unintentional

COSTS - Where Offer of Compromise made - Uniform Civil Procedure Rules r 20.26 - Offer of Compromise stated to be "plus costs" - Impact of decision in Whitney v Dream Developments Pty Ltd - Offer of Compromise not valid under the rules COSTS - General Rule - Costs follow the Event - Uniform Civil Procedure Rules r 42.1 - Determining the "event" or an "admission" - Principles considered in Ziliotto v Hakim DAMAGES - General Principles - Past and Future Economic Loss - Assessment of reasonable prospects of employment at date of notional trial - Assessment of residual earning capacity - Relevance of evidence relating to subsequent events PROFESSIONAL NEGLIGENCE - Proceedings against two solicitors - Dismissal of District Court proceedings for personal injury - One solicitor found liable Professional Negligence - Whether Court erred in finding the other solicitor not liable

ADMINISTRATIVE LAW - Workers Compensation Commission Medical Appeal Panel - judicial review - jurisdictional error - error on the face of the record - whether medical appeal panel made jurisdictional error by limiting the scope of their powers through a misapprehension of a question referred - whether by limiting their power to hear questions of medical causation medical appeal panel made jurisdictional error

PRACTICE AND PROCEDURE - strike-out application - COSTS - security for costs sought - CASE MANAGEMENT - whether proceedings should be consolidated with concurrent proceedings in the Supreme Court of NSW.

PROCEDURE - criminal - redirection - whether redirection required EVIDENCE - proof - circumstantial evidence - presumption of continuance - whether presumption operates in respect to criminal matters in which the civil standard of proof applies

PROCEDURE - civil - leave to reopen case; application for - to be permitted to tender additional evidence - four months after conclusion of evidence - course of final submissions - considerations of justice - whether adducing additional evidence would cause prejudice, cost and expense to the other party - whether in accordance with the overriding purpose of the Civil Procedure Act 2005

PROCEDURE - civil - order for separate questions - separation of liability from balance of proceedings - meaning of "liability" for purpose of order

TORTS - negligence - professional negligence - solicitor - transactional work - whether failure to advise on obvious financial implications - purchase of franchise

SUCCESSION - Plaintiff makes a claim for a family provision order - No dispute as to the Plaintiff's eligibility as a person with whom the deceased was living in a de facto relationship at the date of his death - Defendant, the adopted child of the deceased and the sole residuary beneficiary named in the Will of the deceased - Representative order made - No provision made in the Will of the deceased for the Plaintiff - Whether family provision order should be made, and if so, the nature and quantum of the further provision to be made

CONTRACT - rescission of contract for sale of business - whether contractual right of rescission lost - whether termination of lease effective where consent of lender to termination required. PROCEDURE - amendment - whether amendment should be permitted on first day of hearing

SUCCESSION - family provision - two grandchildren, Selena and Justyn Ng, claim against the estate of their maternal grandmother under Succession Act, Part 3.2 - plaintiffs are eligible persons under Succession Act, s 57(e) - whether plaintiffs were at any time wholly or partly dependent on the deceased, and if so for what period - whether adequate provision made for proper maintenance, education and advancement in life of the plaintiffs under the will of the deceased - whether Succession Act, s 60 factors warranting the making of an order for provision are established - what order for provision should be made - whether the plaintiffs should have an order for provision in the form of an interest in the property in which they are now living, or a legacy, or both. MORTGAGE - one of three parcels of the deceased's real estate mortgaged to the Commonwealth Bank -estate defaults to the bank - the bank obtains an order for possession - interim stay granted against bank executing order for possession pending the outcome of the Succession Act proceedings - whether the stay should be continued.

MISLEADING OR DECEPTIVE CONDUCT - loan applications - misrepresentations by borrowers as to 'gross income available' CONTRACT - construction - meaning of 'gross income available' - nature and scope of recurrent income as opposed to one-off receipts of capital or other payments CASE MANAGEMENT - separate determination of issues EVIDENCE - hypothetical evidence - admissibility and reliability COSTS - unless circumstances exceptional, applications to vary or qualify the normal order should be discouraged

GUARANTEE AND INDEMNITY - the contract of guarantee - construction and effect - whether there is an intention to be legally bound - objective intention - signature mistakenly affixed - whether to apply the parole evidence rule

CRIMINAL LAW - appeal and new trial - appeal against sentence - offences of robbery whilst armed - trial judge erroneously apprehended features of typical case in R v Henry [1999] NSWCCA 111 in some respects - judge invited submissions as to whether proposed sentence was "too much or too little" - applicant declined to be heard - no lesser sentence warranted - leave to appeal refused

CRIMINAL LAW - appeal - sentence - manslaughter - plea of guilty - substantial impairment by abnormality of mind - s 23A Crimes Act 1900 - whether sentence manifestly excessive - error found - whether error in failure to find special circumstances or in failure to vary statutory ratio to reflect special circumstances - error found - leave to appeal granted - appeal allowed - sentence quashed - applicant re-sentenced

CRIMINAL - appeal against sentence - offence of firing a firearm at a dwelling house with reckless disregard for the safety of any person pursuant to s 93GA(1) of the Crimes Act 1900 (NSW) - whether sentence manifestly excessive in light of objective seriousness

TORT - negligence - contributory negligence -- general principles - duties of an occupier to ensure safety of premises for an entrant - whether culpability greater when controlling potentially dangerous vehicle - standard of care under the Civil Liability Act - apportionment under Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1)(b); Motor Accidents Compensation Act 1999 (NSW), s 138; Civil Liability Act 2002 (NSW), ss 5B, 5R. TORT - negligence - contributory negligence - pedestrian injured in motor vehicle accident - apportionment of liability - respondent injured by a forklift on appellant's premises - failure by respondent to keep a proper lookout - relative culpability of the parties WORDS and PHRASES - "common law"

PROCEDURE - application to have proceedings dismissed for breach of directions or for failure to prosecute claim with due despatch - where barrister accepting full responsibility for recent breaches against lengthy history of delay

REAL PROPERTY - caveats - whether caveat lodged without reasonable cause - whether s 74P(1) extends to any person involved in the lodgment of a caveat and not only to the caveator - held, s 74P is intended to capture only the caveator who lodged a caveat - held, caveats lodged without proper cause - compensation - calculated and awarded

REAL PROPERTY - possession of land - alleged securitisation of debt by Plaintiff defence does not disclose any defence to claim - summary judgment entered

EQUITY - equitable remedies - injunctions - interlocutory injunctions - application for continuation of orders restraining directors and chief executive officer from dealing with assets, altering or removing books or records, convening or holding meetings, or holding themselves out as directors - efficacy of directorships impugned - where expedited final hearing only three weeks away - whether sufficiently seriously arguable case for final relief that, having regard to the balance of convenience, injunctive relief more appropriate than not - relief continued on certain undertakings. CORPORATIONS - membership, rights and remedies - members' remedies and internal disputes - proceedings on behalf of company by member - statutory derivative action - rebuttable presumption that grant of leave not in best interests of the company does not arise - leave to sue in the name of the company granted. PROCEDURE - subpoena - leave to issue - documents sought not relevant - leave refused. PROCEDURE - miscellaneous procedural matters - referral to registrar for pro bono assistance. PROCEDURE - miscellaneous procedural matters - referral for mediation - mediator to be agreed by parties - in default joint protocol to apply.

COSTS - Calderbank offer - whether unreasonable of plaintiff not to accept - whether costs should be assessed on an indemnity basis

CIVIL LAW - application for interim supervision order pursuant to s 10A of Crimes (High Risk Offenders) Act 2006 - test similar to whether there is prima facie case in a criminal prosecution - whether a prima facie case is established that the defendant a "high risk sex offender"

TORTS - negligence claims by employee of independent sub-contractor against his employer and principal sub-contractor - employee injured whilst dismantling birdcage scaffolding - scope of duty of care of principal sub-contractor where had assumed responsibility to devise and supervise safe system of work for employees of independent sub-contractor - whether evidence to support finding of breach of duty - TORTS - causation - no question of principle - TORTS - contributory negligence - whether employee's inadvertence and inattention compatible with conduct of a reasonable and prudent worker - relevance of repetitive and tedious nature of the work - DAMAGES - apportionment - no question of principle.