Cases and authorities

EQUITY - trusts and trustees - applications to court for advice - charitable trusts - proceedings against trustees for breach of trust - trustees not alleged to be personally liable - proceedings raise issues as to the terms of the trusts - whether trustees justified in defending proceedings in whole or in part - whether trustees justified in obtaining opinion of counsel as to whether breach of trust allegations should be defended - whether trustees justified in having recourse to trust funds to pay various costs

TORTS - negligence - duty of care - whether primary judge erred in finding that flying instructor breached duty of care to trainee pilot by not causing aircraft to be diverted immediately upon the occurrence of a second set of faint vibrations, after a first set of vibrations had been corrected five minutes earlier, or by relying on an innate sense of luck - whether appellant had established that any breach of the duty of care was a cause of the harm suffered TORTS - negligence - defences - whether flying in a light aircraft under supervision of experienced flying instructor was a dangerous recreational activity TORTS - negligence - defences - whether harm that occurred was the materialisation of an obvious risk of a dangerous recreational activity

COSTS - whether respondent should pay costs of first instance where appellant succeeds on appeal on a point not argued at first instance and respondent succeeded at first instance

TRUST AND TRUSTEES - Application for advice - Solicitor holding settlement proceeds under litigation funding agreement - no issue of principle

PRACTICE AND PROCEDURE – concurrent civil and criminal proceedings – whether civil proceedings should be expedited and heard before criminal proceedings

TORTS - negligence - motorcyclist injured after driving over loose material on newly resurfaced road - whether parties responsible for conducting roadworks negligent - application of Part 5 of the Civil Liability Act 2002 - cross-claim between defendants - interpretation of contract - contributory negligence - contribution between defendants pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946.

CRIMINAL LAW - sentence - murder - jury verdict - stabbing with intention to kill - fact finding after trial - no premeditation but not impulsive or spontaneous - above mid range of objective seriousness - no remorse - guarded prospects of rehabilitation - no special circumstances

CONTRACT - construction - whether subcontract incorporated terms of head contract - uncertainty

CRIMINAL LAW - conviction appeal - assault with an act of indecency upon a person under the age of 10 - whether tendency evidence properly admitted at trial - evidence relevant and capable of proving a tendency - the tendency specified was at a high level of generality - purpose of evidence to rebut likely challenge to Crown case - tendency evidence lacked "significant probative value" - probative value of tendency evidence did not substantially outweigh its prejudicial effect - tendency evidence should have been rejected - conviction quashed.

CRIMINAL LAW - supply commercial quantity of prohibited drug - appeal against sentence - history of drug and alcohol abuse - history of mental illness - remorse - good prospects of rehabilitation - whether trial judge erred in the assessment of the objective seriousness of the offending - whether trial judge erred in attributing less significance to medical evidence.

CRIMINAL LAW - sentence - Crown appeal - aggravated sexual intercourse under s.66A(2) Crimes Act 1900 (three counts) - aggravated indecent assault under s.61M(2) Crimes Act 1900 - possess child abuse material under s.91H(2) Crimes Act 1900 - offender 33-year old friend of family of eight-year old victim - offender showed pornographic videos on laptop to victim before commission of offences - digital intercourse and cunnilingus - offences committed over four-month period while offender minding victim and residing in victim's home - substantial quantity of child pornography on offender's laptop and hard drives - no prior criminal history - pleas of guilty - aggregate sentence imposed - head sentence of eight years with non-parole period of five years and four months - Crown asserts sentence manifestly inadequate - significance of increased maximum penalty for s.66A(2) offences - planning and organisation by offender - offender groomed victim in preparation for sexual activity by displaying pornographic videos - exploitation of vulnerable victim by person in authority - importance of harm to child victim - sentence manifestly inadequate - offender resentenced - aggregate sentence comprising head sentence of 14 years with non-parole period of nine years and six months

CRIMINAL LAW - sentence appeal - application for leave - one count of aggravated break and enter and commit serious indictable offence contrary to s 112(2) of the Crimes Act 1900 - one count of common assault contrary to s 61 of the Crimes Act 1900 - whether trial judge failed to have regard to or any proper regard to the applicant's ameliorative conduct - consideration of Thewlis v The Queen [2008] NSWCCA 176 - the sentencing judge had specific regard to the post-offence conduct of the applicant and made appropriate allowance for it, along with other subjective factors - sentence imposed by the sentencing judge was well within the range - no lesser sentence is warranted - leave granted - appeal dismissed

CRIMINAL LAW - sentence - Crown appeal - manifest inadequacy - where sentencing judge placed unwarranted emphasis on rehabilitation and treatment of offender after offender was assaulted - relevance and proof of extra-curial punishment - ensuring maintenance of community expectations and public confidence in the administration of justice

PROCEDURE - orders sought for separate determination of issues - whether separate hearing would be in accordance with the just, quick and cheap resolution of the issues in proceedings - whether separate hearing would result in overlap of issues and witnesses - whether resolution of relevant issues would substantially narrow the field of litigious controversy.

EQUITY - interests - priorities - whether the purchase price of property was for value - whether the second defendant had constructive notice of the plaintiffs' interest in the property - whether second defendant was required to investigate removal of caveats - plaintiffs engaged in postponing conduct - plaintiffs ordered to remove caveats - default judgment against first defendant - Real Property Act 1900 (NSW), ss 43A, 74A, 74MA

PROCEDURE - professional negligence - futile application for expression by court of an opinion upon the meaning of "dismiss" - application dismissed

MISLEADING OR DECEPTIVE CONDUCT - where numerous representations relied upon in respect of a margin lending facility - whether a particular statement was a representation as to a future matter - whether reliance upon representations ESTOPPEL - whether bank is estopped from relying upon its legal rights under the margin lending facility - whether reliance on representations CONTRACT - whether implied term of reasonableness and good faith - whether breach of implied term UNCONSCIONABLE CONDUCT - whether conduct of bank in selling the appellant's portfolio of shares unconscionable

PRACTICE AND PROCEDURE - application to vary or set aside judgment - application out of time - application only available where challenge is to orders made by a single Judge of Appeal - whether Court should make a vexatious proceedings order of its own motion

[CONTRACT] - where deed provided for payment of a success fee in certain circumstances - whether "success" had been achieved - whether success fee payable - interpretation of Deed - principles applicable in construing commercial contracts [RECTIFICATION] - whether clear and convincing proof that the Deed did not reflect the true agreement of the parties

ADMINISTRATIVE LAW - judicial review - trial judge refuses application for costs certificate under Costs in Criminal Cases Act 1967 (NSW) - whether decision affected by error of law on the face of the record - whether decision affected by jurisdictional error

PRACTICE AND PROCEDURE - Summary disposal - Facts could not give rise to any cause of action - No issue of principle

SUCCESSION - family provision and maintenance - failure by deceased to make sufficient provision for the plaintiff - whether the other beneficiaries circumstances and needs reduce the plaintiff's claim

CRIMINAL LAW - sentencing - robbery in company - discount for guilty plea - plea entered on morning of trial - discount of 5% given - whether such a discount was an error - co-offender accorded 10% for plea 10 days earlier - no error demonstrated

PROCEDURE - judgments and orders - amending, varying and setting aside PROCEDURE - costs - order for costs on indemnity basis - offers of compromise - whether it was unreasonable not to accept offers

PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - Whether proceedings to be instituted vexatious or lack prima facie ground - Proceedings vexatious - No matter of general principle

DEFAMATION - costs - claim by property developer against local counsellor - limited circulation publication - plaintiff successful in obtaining small award of damages - whether acceptance of defendant's offer to publish an apology would have achieved a better result - whether plaintiff entitled to his costs after choosing not to give evidence and therefore failing to obtain any award for hurt feelings - whether claim cynically motivated

COSTS - civil - substantive proceedings settled - costs to be paid by defendant - plaintiff a minor - judgment sum monies paid into and held in Court - application for order pursuant to Civil Procedure Act 2005, s 77(4) that the difference between the amount for costs paid and the total legal fees and disbursements to be paid out of the sum held in Court - application for order that the balance of monies in Court be paid to the NSW Trustee & Guardian - whether Court comfortably satisfied that costs reasonably incurred - whether for benefit of infant party - whether tutor akin to trustee conducting litigation in respect of, or for the benefit of, an infant beneficiary - whether in the interests of justice and the infant plaintiff to make orders

CRIMINAL LAW - non-publication orders - s 8 of the Court Suppression and Non-Publication Orders Act 2010 - non-publication order made

EQUITY - specific performance - construction of contract - whether sale price of property was inclusive of GST - whether a binding contract existed -whether the contract can be vitiated for unilateral mistake as to the purchase price of the property - whether the plaintiff ought to be denied specific performance on discretionary grounds - whether the defendant is entitled to rescind the contract - defendant bound by contractual terms - specific performance ordered

REAL PROPERTY - Torrens title - caveats against dealings - claims of equitable interest as purchaser pursuant to assignment of contract for sale - whether deed of assignment forged - no question of principle.

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - adjudication determination - whether denial of natural justice - jurisdiction of adjudicator - whether adjudicator took into account all relevant factual matters

COSTS - Whether to be paid on ordinary or indemnity basis - Whether to be assessed and payable forthwith - No issues of principle PRACTICE AND PROCEDURE - Obligation of legal practitioners to attempt to resolve interlocutory matters before invoking Court's processes - Civil Procedure Act 2005 (NSW), s 56

COURTS PRACTICE - proceedings involving constitutional matter and also a matter of planning law - application to transfer to land and environment court refused

COSTS - whether joinder of additional defendant was reasonable - where the question of whether plaintiff's alternate claim against party joined would have been successful becomes hypothetical due to plaintiff's success against the first defendant - where plaintiff's alternate claim against joinder party is at least arguable - relevance of first defendant's insolvency

CONTRACT LAW - alleged breach of contract - alleged misleading and deceptive conduct pursuant to s 52 of the Trade Practices Act 1974 (Cth) - whether the defendant promised to appoint the plaintiff's company to its panel of quantity surveyors in exchange for the plaintiff remaining a customer of the defendant and taking loans from the defendant - whether this promise constituted a contract between the plaintiff and the defendant - neither the defendant nor its representatives made the alleged promise - no contract to the effect pleaded in the Statement of Claim - the defendant did not engage in conduct that was misleading or deceptive or likely to mislead or deceive - evidence fabricated by the plaintiff - cross-claim by the defendant in respect of monies owed in respect of the loans to be heard and determined

LOCAL COURT - appeal - principle of res ipsa loquitur - whether Magistrate erred in concluding that the principle did not apply

CONTRACT - construction - lease - whether defendant obliged to remove "hardstand" - whether hardstand a "trade fixture

CONTRACT - implied terms - terms implied in fact - whether term is necessary for reasonable or effective operation of the contract ESTOPPEL - Equitable estoppel - whether representations relied upon were made and contained implied term - whether relying party suffered detriment - Conventional estoppel - whether parties adopted a mutual assumption as basis of their conduct UNCONSCIONABLE CONDUCT - Australian Consumer Law - requirements for conduct to be unconscionable

MENTAL HEALTH - malingering - difficulties of determining - fragility of clinical judgment INSURANCE - disability policy - claim for partial disability due to illness - mental illness - depression and anxiety

CORPORATIONS - reconstructions and schemes of arrangement - application to convene meeting of shareholders CORPORATIONS - managed investments - responsible entity - trust scheme of arrangement - application for judicial advice

CRIMINAL - sentencing - commencement date - consideration of time already spent in custody

PRACTICE AND PROCEDURE - interlocutory application - review under Supreme Court Act 1970, s 46(4) of refusal to grant stay of execution pending appeal - no reviewable error of the kind to which s 46(4) is directed - application dismissed

STATUTORY INTERPRETATION - principles - validity; interpretation to ensure - in order that the thing may have effect rather than be destroyed - Interpretation Act 1987 (NSW), s 32 - contrary intention - construction of validity contrary to legislative intention WORDS AND PHRASES - "Policies regarding the management of excess public sector employees" - Industrial Relations (Public Sector Conditions of Employment) Regulations 2011 (NSW), s 6(1)(f) STATUTORY INTERPRETATION - regulation - within power of enabling act - inconsistent with obligations of enabling act - Henry VIII clauses - regulatory not prohibitory - regulation removing jurisdiction to deal with matter not a policy on the matter WORDS AND PHRASES - "policy on conditions of employment" - Industrial Relations Act 1996 (NSW), s 146C APPEAL - Jurisdiction of Industrial Court to hear appeal - regulation removing jurisdiction of Industrial Court invalid ADMINISTRATIVE LAW - jurisdictional error - mistaken denial of existence of jurisdiction

CRIMINAL LAW - sentence - murder - guilty plea - domestic violence

[PRACTICE & PROCEDURE] - application to amend pleading as remitted by Court of Appeal - where issue whether parties proceeded at first instance on basis of a claim for equitable compensation although not in pleading [ORDERS] - where the successful party in the Court of Appeal claims orders including for remitter of application to amend pleading after trial and appeal do not reflect Court of Appeal intention - appropriate procedure in the circumstances.

DEFAMATION - pleadings - imputations - objections as to form and capacity

COSTS - Costs as between successful and unsuccessful defendants - "Bullock" or "Sanderson" orders - No issues of principle

CONTRACTS - contract for lease - special conditions not fulfilled - rescinded by purchaser - terminated by vendor - can party rely on their own wrong when rescinding