Cases and authorities

Criminal law - Application for judge alone trial - Community standards

CORPORATIONS - insolvency and winding up - application to set aside a creditor's statutory demand - whether genuine dispute as to debt - held, genuine dispute established - statutory demand set aside

EVIDENCE - TENDENCY - tendency evidence adduced by accused - tendency of deceased to engage in "violent/aggressive behaviour" - tendency of deceased towards self-harm - COPS entries - medical records - whether evidence has significant probative value.

CRIMINAL LAW - application for inquiry into sentence under s 78 of the Crimes (Appeal and Review) Act - whether sentence infected by Muldrock error - application granted - matter referred to the Court of Criminal Appeal

CORPORATIONS - winding up - winding up in insolvency - proceeds of contract of reinsurance - application for orders under Corporations Act 2001 (Cth) s 562A(4) -whether claims made under scheme of arrangement affect the characterisation of such claims as being claims to amounts payable under relevant contracts of insurance - whether "just and equitable" to make orders sought by plaintiffs.

PROCEDURE - courts and judges generally - courts - application for consolidation of two proceedings - where issues in the second proceeding are a subset of the larger dispute encompassed by the first proceeding - whether the benefits of early determination of the issues raised in the second proceeding are such as to outweigh the detriment of two final hearings in respect of closely related disputes - where not apparent that there is any need to determine the claims for relief in the second proceeding before the first proceeding, nor utility in doing so - proceedings consolidated

CORPORATIONS - external administration - voluntary administration - liquidator's application for judicial advice - whether judicial advice should be given where it will affect substantive rights - where parties potentially affected are notified and representative order made - held, advice should be given - whether liquidator justified in treating certain property purportedly held on trust by company as beneficial property of company - whether trust arrangement a sham - held, not a sham. TRUSTS AND TRUSTEES - Creation of trust - purpose to reduce taxation - where discretion had invariably been exercised to distribute income to those beneficiaries whose work had generated it - whether true intention that there be no discretion - whether true intention that relationship was employment not trust - held, not a sham

WILLS, PROBATE AND ADMINISTRATION - whether the executors are justified in distributing the assets of the deceased's estate to the defendant despite the uncertainty of whether another beneficiary is alive - whether a beneficiary under the will can be identified and located - whether reasonable attempts have been made to locate beneficiary - whether a Benjamin Order is appropriate - plaintiffs justified in distributing the estate to defendant

PROCEDURE - appeal - interlocutory application - stay of sale of property sought pending reserved judgment - stay refused on prior occasions - no change in circumstances - no application made to court hearing appeal - application refused

INJUNCTIONS – interlocutory injunction – injunction granted to prevent parties continuing with proceedings and consequential orders

EVIDENCE - CCTV footage - relevance - whether probative value of footage outweighs danger of unfair prejudice - s 142 of the Evidence Act 1995

EVIDENCE - statements made by deceased about previous assaults upon her - relationship evidence - hearsay - s 65(2)(b) of the Evidence Act - whether representations made "shortly after" asserted fact occurred. EVIDENCE - photographs and observations of deceased's injuries - whether probative value outweighed by prejudicial effect - Evidence Act s 137.

EQUITY - trusts and trustees - assets of trust - whether trustee contravened duties - whether to preserve funds paid out of trust account pending determination of dispute - JOINDER OF PARTIES - whether the party would suffer procedural unfairness - whether there is substantial claim against the party

APPLICATION - application for leave to amend and adjourn - where failure to include Contracts Review Act relief due to oversight of legal representative - inadequate or false explanation for delay - whether interests of justice require matter to be litigated - relevance of making personal costs order to discretion to allow amendment

COSTS - Offer of Compromise to one Defendant - Whether Offer was one compliant with UCPR rule 20.26 - Whether a compromise - If so, whether court should otherwise order

SUCCESSION - administration of estates - application for judicial advice - application for indemnity for executors' legal costs from the estate - deceased's daughter and son-in-law sub-divide and renovate her property before her death - deceased gives estate to her seven children in equal shares and appoints two of her children as her executors and trustees - proceedings brought in 2004 by one of the deceased's children against the executors/trustees for wilful default in their duties - executors/trustees fail substantially at first instance in 2005 and 2008 - executors/trustees successful on appeal in 2010 - disputes about the burden of the legal, administration and financial costs of the 2004 litigation.

CRIMINAL LAW - particular offences - property offences - wilful or reckless damage to or destruction of property by fire or explosives (Crimes Act 1900, s 195(1)(b)) - mens rea - where accused applied flame to threads on the cover of a couch in an unoccupied house and the house was destroyed by fire - conviction on charge of recklessly destroying the house by fire - content of the mental element of recklessness - whether the required foresight was of destruction of the house or of damage to or destruction of any property

PROCEDURE - refusal to allow amendment to statement of claim - proceedings separated into a hearing as to the terms of the parties' contract and a damages hearing - after findings made in the contract hearing plaintiffs sought to amend statement of claim to include a claim for consequential loss - no indication of proposed claim for consequential loss given to the Court prior to the making of orders for the two separate hearings - an amendment of the statement of claim would probably require the recall of the plaintiffs for further cross-examination - prior to separation of the hearings the plaintiffs made representations to the Court that the debts the subject of contest in the damages hearing would be similar to those pleaded - proposed claim for consequential loss raises new and different issues of causation of loss.

APPEAL - civil - local court - professional negligence - whether failure to join further potential defendants negligent - whether evidence to support such a finding

REAL PROPERTY - contract for sale of land - whether contract validly terminated - whether subsequent conduct amounted to revival of contract - whether notice to complete valid; EQUITY - equitable interests - whether second defendant had an equitable interest in property prior to exchange of contracts - whether plaintiff on notice as to any such interest - whether any equitable interest of the second defendant postponed to that of the plaintiff; REMEDIES - specific performance - whether plaintiff entitled to specific performance - whether plaintiff ready willing and able to complete - whether specific performance should be denied on basis of impossibility or hardship - whether damages are an adequate remedy

SUCCESSION - Wills, Probate and Administration - Statutory Will - Where an order authorising a will to be made on behalf of a person lacking testamentary capacity made by the Court, but the will was not signed or sealed by the Registrar - Court has power to give any necessary related orders and directions - order that the will be admitted to probate.

COSTS - UCPR 42.34 - where plaintiff recovers less than $500,000 - whether continuation of proceedings in this Court warranted - whether plaintiff entitled to costs or any proportion of costs by reference to respective liability of defendants for loss and damage

INJUNCTION - defamation - interlocutory relief - whether threatened publication abuse of process or obstruction of the due administration of justice - whether threat of publication should be restrained as contempt of court

CRIMINAL LAW - sentence appeal - sexual intercourse without consent - young woman passed out after consuming an excess of alcohol - offender committed offence while victim unconscious - whether sentence imposed manifestly excessive.

CRIMINAL LAW - conviction appeal - appellant operated business selling prohibited weapons and firearms which became subject of controlled operation by police - appellant convicted of a number of possession and sale offences including selling prohibited weapons on three separate occasions during 12-month period contrary to Weapons Prohibition Act 1998, s.23B - appellant alleged to have sold two crossbows and one slingshot to undercover police officer - one crossbow unassembled at time of sale - whether unassembled parts capable of constituting crossbow for purposes of definition of crossbow in Weapons Prohibition Act 1998, Schedule 1 - appeal against conviction allowed - in its place appellant convicted of two offences of selling prohibited weapon contrary to Weapons Prohibition Act 1998, s.23A CRIMINAL LAW - conviction appeal - appellant also convicted of three counts of possessing prohibited weapons (three crossbows) - whether metallic items in question consisted of a "bow fitted transversely on a stock" so as to fall within definition of crossbow in Weapons Prohibition Act 1998, Schedule 1 - appeal allowed and convictions quashed CRIMINAL LAW - sentence appeal - appellant sentenced in District Court to concurrent fixed terms of 18 months' imprisonment in relation to offences of possessing and selling a rifle contrary to Firearms Act 1996, s.36 and two and a half years' for possessing slingshot - whether those sentences manifestly excessive - offender re-sentenced to total effective sentence of three-and-a-half years with a two year non-parole period

EVIDENCE - CCTV footage - relevance - whether probative value of footage outweighs danger of unfair prejudice - s 137 of the Evidence Act 1995

SUCCESSION - Failure by Plaintiff to comply with family provision order which order was made by consent of the parties - Whether additional orders may be made following the orders being entered by recording them in the court's computerised court record system - Orders may be made for the for the purpose of giving effect to the family provision order and which do not involve a variation to the substantive orders made by agreement of the parties. PROCEDURE - Non-appearance by the Plaintiff at the hearing - UCPR rule 29.7

REAL PROPERTY - strata titles - by-laws - unauthorised works - whether owners corporation or lot owner should remove unauthorised works

PROCEDURE - civil - interlocutory injunction - whether to enforce restraint of trade clause in terminated employment contract

TORT - intentional infliction of emotion distress - liability and quantum against first and second defendant - application of principles to facts found in earlier judgment COSTS - Offer of Compromise - insufficient actual compromise - later Calderbank letter - indemnity costs on basis of Calderbank letter

CRIMINAL LAW - appeal - procedure - whether accused was required to be physically present in Local Court proceedings even though legally represented - whether magistrate was entitled to deal with accused's matter where accused was not present but appeared by her legal representative - procedure to be followed where accused is not present - effect of s 36 and 37 of the Criminal Procedure Act 1986 (NSW)

APPEAL - whether applicant identified ground of appeal involving a question of law - s 52 Crimes (Appeal and Review) Act 2001 (NSW) CRIMINAL LAW - substantial risk breach of mass requirement - reasonable steps defence - where loading of vehicle by third party not done in accordance with instructions - where driver failed to inspect after loading - where overloading of axles - - s 56, s 87 Road Transport (General) Act 2005 PROCEDURE - criminal law - whether prosecution obliged to particularise reasonable steps defendant should have taken - applicability of Kirk v Industrial Court (NSW)

PRACTICE AND PROCEDURE - Application for recusal of presiding Judge on the grounds of apprehended bias

PROCEDURE - civil - subpoena - set aside; application to - abuse of process - oppressive - no legitimate forensic process

CORPORATIONS - external administration - winding up - administration under Corporations Act Pt 5.3A - voluntary administration imposed by director in his own interests - where proposed DOCA offers no benefit for creditors who support it, and the only credit or who might benefit opposes it - whether administration involves an abuse of the provisions of Pt 5.3A - held, it does.

CRIMINAL LAW - Application for inquiry into sentence under s 78 Crimes (Appeal and Review) Act 2001 - not necessary for Crown to establish the applicant's precise role in the murders and in particular whether he committed them alone or as part of a joint criminal enterprise - no deprivation of benefit of exculpatory value of DNA evidence in relation to the hairs found in deceased's hand in context of adequate summing up by trial judge - no unease or sense of disquiet with allowing sentence or conviction to stand - no special facts or special circumstances - Application substantially similar to those made before - Application dismissed

CRIMINAL LAW - appeal against sentence - applicant not at fault for delay in bringing application for leave to appeal - application for extension of time granted - finding that objective seriousness was in the "lower end of the range" warranted a lesser sentence - applicant's sentence should be higher than co-offenders in proportion to greater moral culpability and less favourable subjective features - leave to appeal granted - appeal allowed

CRIMINAL LAW - appeal and new trial - appeal against conviction - extension of time in which to seek leave to appeal - delay largely unexplained - proposed appeal based upon point conceded to be "technical" and found to be devoid of merit - extension of time refused

CRIMINAL LAW - sentence - objective seriousness of offence - moral culpability - mentally ill offender - where defence of mental illness not relied upon CRIMINAL LAW - sentence - purpose of sentence - proportionality - mentally ill offender CRIMINAL LAW - sentence - purpose of sentence - protection of community - mentally ill offender

CRIMINAL LAW - appeal - conviction - reckless wounding - s 35(4) Crimes Act 1900 (NSW) - whether verdict unreasonable and cannot be supported by evidence - M v The Queen [1994] HCA 63 - MFA v The Queen [2002] HCA 53 - SKA v The Queen [2011] HCA 13 - question of fact - leave required under s 5(1)(b) Criminal Appeal Act 1912 (NSW) - leave granted due to uncertainty created by police officer's notes - amply open to jury to be satisfied beyond reasonable doubt of applicant's guilt - appeal dismissed

CRIMINAL LAW - Appeal - Where Crown alleged joint criminal enterprise - Whether verdicts of guilty were supported by the evidence CRIMINAL LAW - Sentence - Where Crown alleged joint criminal enterprise - Necessity to impose sentences reflective of the culpability of each offender in the enterprise - Distinction between criminal responsibility and criminal culpability

CRIMINAL LAW - appeal from conviction - sexual assault - Crown case turned on testimonial evidence of complainant, which was denied by accused - jury convicted on 2 of 3 counts - whether verdicts inconsistent CRIMINAL LAW - appeal against sentence - whether error in not taking into account assistance to authorities - no error where no evidence as to value of assistance - whether error in finding of "breach of trust" as aggravating factor - consideration of Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k) - whether error in assessing objective seriousness - whether sentence manifestly excessive - where sentencing judge had regard to Local Court sentencing statistics and said custodial sentence imposed was consistent within range - consideration of use of sentencing statistics

CRIMINAL LAW - offence of using listening device to record private conversation - whether parties to conversation in doctor's surgery ought reasonably to have expected that it might be overheard - Surveillance Devices Act 2007 (NSW), s 7(1) PROCEDURE - judicial review - criminal appeal in District Court - challenge to finding of guilt - application for extension of time - applicant commenced proceedings more than a year after judgment of District Court - no explanation provided for delay - limited utility of proceedings commenced shortly before expiration of bond - merit of proceedings considered - Uniform Civil Procedure Rules 2005 (NSW), r 59.10 WORDS AND PHRASES - "private conversation" - Surveillance Devices Act 2007 (NSW), s 4(1)

PROCEDURE - application for leave to re-open after judgment - whether court proceeded on the basis of substantive misapprehension - no different result warranted - application dismissed

APPEAL - torts - a balustrade gave way causing injury to a plaintiff - proceedings in negligence brought against the builder and two subcontractors - content of duty owed by a builder to owner - whether content included obligation to inspect work of subcontractors - whether builders should have been aware of various building standards - breach by a builder in failing to inspect - content of duty owed by subcontractor to whom installation of balustrade entrusted - that subcontractor subcontracted installation to another subcontractor - whether content of duty required first subcontractor to inspect work of second subcontractor - whether first subcontractor in breach of duty for failing to retain competent subcontractor - apportionment of liability between tortfeasors - DAMAGES - whether non-economic loss assessment excessive - past and future economic loss - requirement to comply with s13 Civil Liability Act 2002 - past and future domestic assistance - need to comply with s15 Civil Liability Act 2002 - appeal allowed as to apportionment but otherwise dismissed.

PRACTICE AND PROCEDURE - amendment to pleadings - withdrawal of admission - clarity of issue between parties

CORPORATIONS - External administration - liquidation - liquidator's applications - creditors voluntary winding up - special purpose liquidator - application for directions under Corporations Act s 511 - principles and practice applicable - whether court should retrospectively declare past conduct to have been proper - held, it should not - whether inclusion of release for personal benefit of special purpose liquidator inappropriate - held, not so where no apparent viable claim against SPL - applications for approvals under s 477(2A) and (2B) - principles applicable.

CRIMINAL LAW -high risk sex offender - whether continuing detention order required - extended supervision orders - high risk of re-offending - where offender intellectually disabled - paedophilic - multiple failures to comply with supervision and conditions imposed - prospect that anti-libidinal medication will ameliorate risk- untrialled at date of hearing- adequacy of supervision

CRIMINAL LAW - special hearing - counts of aggravated robbery and murder - offender schizophrenic - imposition of limiting terms

PROCEDURE - defamation - application to strike out or dismiss proceedings for want of due despatch - UCPR 12.7, 14.28, 42.20