Cases and authorities

PROCEDURE - civil - when a court should grant leave to access judgment material the subject of a suppression order - whether a party has sufficient interest in the question whether a suppression order should have been made - whether public interest in open justice outweighs public interest in the due and efficient administration of insolvent companies - whether confidential material should be redacted

CRIMINAL LAW - appeal against sentence - assistance given to authorities taken into account on sentencing

COSTS - trial costs - discretion of trial judge COSTS - appeal costs - general rule that costs follow event - multiple issues - partial success - apportionment

TORTS - negligence - occupier's liability - respondent slipped on appellant's driveway - whether appellant was negligent in resealing driveway - whether slip was reasonably foreseeable in circumstances where no prior accident - whether accident was caused by a positive act - whether reasonable care extended to erecting a handrail - whether trial judge failed to have regard to authorities - application of s 5B of the Civil Liability Act 2005 (NSW) to positive acts

ADMINISTRATIVE LAW - judicial review - jurisdictional error - court acting without power APPEAL- Jurisdiction of Industrial Court to hear appeal - Superannuation Administration Act 1996 (NSW), s 67(5) STATUTORY INTERPRETATION - principles - purposive approach - use of regulations when interpreting primary act WORDS AND PHRASES - "injury" - "notified" - Police Regulation (Superannuation) Act 1906 (NSW), s 10B

PRACTICE AND PROCEDURE - amendment of orders in principal judgment Grealish v R [2013] NSWCCA 336

REAL PROPERTY - Torrens title - caveats against dealings - whether rights to proceeds of sale under Family Court order creates caveatable interest - held it does not

PROCEDURE - transferring proceedings to a court in another State - whether in the interests of justice to transfer proceedings - whether transferee court is the more appropriate forum PROCEDURE - costs - interlocutory proceedings

EVIDENCE - General matters - Notice to admit facts - Set aside as prolix and oppressive

COSTS - indemnity costs - where late formulation of pleadings - where withdrawal of Barnes v Addy claim - no question of principle

PROCEDURE - discovery and interrogatories - discovery and inspection of documents - Practice Note SC Eq 11 - disclosure after evidence filed by plaintiffs - whether relevant categories of documents ought to be disclosed - whether disclosure of relevant categories of documents is necessary for resolution of real issues in dispute in proceedings. PROCEDURE - subpoenas - application for subpoena to be set aside - where subpoena is for reports prepared by expert in interstate proceedings involving relevant defendants - whether production of reports is sufficiently relevant to matters in issue in proceedings. EVIDENCE - legal professional privilege - where present plaintiffs seeking access to third party reports under subpoena to produce - where reports were filed and served on opposing parties in interstate proceedings under court order - whether question of access to be determined by statute or common law - whether service of reports in accordance with court order amounted to waiver of legal professional privilege - whether plaintiffs in interstate proceedings had an express or implied obligation to preserve confidentiality of relevant reports. PROCEDURE - application for Registrar to request production of court files in interstate courts under Uniform Civil Procedure Rules 2005 (NSW) r 33.13 - whether direction for request should be made subject to relevant defendants having right of first access to make any potential claim for confidentiality or privilege.

LEGAL AID - pro bono schemes - application for assistance - claim for debt under loan agreements - co-guarantors - creditor deals with one guarantor - recommendation for pro bono assistance limited to advice about defence

CRIMINAL - procedure - application for separate trial - s 21 Criminal Procedure Act 1986 - whether evidence of co-accused destroys prospect of a fair trial

COSTS - future care calculations - form of orders

POSSESSION - leave to issue writ for possession - cross-claim - whether plaintiff caused delay in insurance payment - whether plaintiff responsible for property being underinsured - whether loan agreement and mortgage unconscionable - whether contacts unfair - orders made - leave to issue writ for possession granted - cross-claim dismissed

ADMINISTRATIVE LAW - judicial review - construction of Home Building Act 1989, s 48K - jurisdiction of Consumer, Trader and Tenancy Tribunal - whether plaintiff was denied procedural fairness - whether Tribunal had jurisdiction to deal with claim for an amount exceeding $500,000 - whether Tribunal fell into jurisdictional error in dismissing proceedings without considering challenge to its jurisdiction or the plaintiff's application for transfer of proceedings to Supreme Court - jurisdictional error established - whether discretion to refuse relied should be exercised

TORTS - malicious prosecution - misfeasance in public office - elements of tort - revocation of security dealer's licence - whether plaintiff pleaded case it pressed - can tort of misfeasance in public office be established by aggregating the conduct of various ASIC officers as plaintiff sought to do - statutory framework - the elements of tort of misfeasance in public office - plaintiff's approach to the tort not available - whether factual findings sought can be made - credit issues - Jones v Dunkel inferences - expert evidence - ASIC's practises in 1999 - expert's views - Regulation 7.3.02 of Corporations Law - compliance system - whether decision to commence second surveillance motivated as alleged - whether conduct of ASIC officers in second surveillance was conducted and motivated as alleged - whether decision to use results of second surveillance for revocation of or imposition of conditions upon plaintiff's licence motivated as alleged - whether decision of the delegate to revoke licence motivated as alleged - damages - causation - expert evidence as to valuation - orders

PROCEDURE - civil - summary disposal - dismissal - vexatious claim - orders sought with no legal basis - abuse of process - no point of principle

PROCEDURE - civil - medical examination - order for plaintiff to have blood drawn for purpose of undertaking Array Comparative Genomic Hybridisation testing; application for - Uniform Civil Procedure Rules 2005; r 23.4 - exercise of discretion - whether testing relevant to an issue of substance in the main proceedings - relevance of plaintiff's medical phobias and anxieties

COSTS and final order - no issue of principle

PROCEDURE - Preliminary discovery - whether plaintiffs had sufficient information to enable them to decide whether or not to commence proceedings - whether court should order preliminary discovery where parties already in dispute and are able to bring a cross-claim - whether application for preliminary discovery an attempt to circumvent the operation of Practice Note SC Eq 11 - whether documents could instead be sought by way of subpoena - whether preliminary discovery can be sought to assess viability of a cause of action - Uniform Civil Procedure Rules 2005 (NSW), r 5.3.

CORPORATIONS - external administration - winding up - termination of winding up - factors informing court's discretion - held, court must be satisfied that state of affairs that required company to be wound up no longer exists, and that it is reasonable in the interest of potential future creditors and the public to return its control to the directors - while strictures applicable to rebuttal of presumption of insolvency do not apply, more than "bare solvency" is required.

RECEIVERS - remuneration - court appointed receiver - approval of remuneration - whether remuneration to be paid out of fund paid into court - declaration as to account holders' entitlement to the fund; PRACTICE AND PROCEDURE - subpoena - use of subpoenaed documents - release from implied undertaking

CRIMINAL LAW - accused charged with one count of murder - whether accused unfit to be tried - where accused continues to suffer from symptoms of chronic schizophrenic illness - substantial expert medical evidence suggesting that accused is unfit to stand trial - whether accused's illness would enable a fair trial - referred to Mental Health Review Tribunal - no issue of principle.

CORPORATIONS - winding up - statutory demand - application to set aside creditors' statutory demands under Corporations Act 2001 (Cth) ss 459H and 459J - where originating process initially included claims for relief involving determination of dispute on substantive basis - whether such claims may be advanced in proceedings in which orders setting statutory demands are sought - whether a genuine dispute has been established - whether offsetting claims have been established - whether some other reason for statutory demand to be set aside.

SUPERANNUATION - insurance - claims for benefit - total and permanent disablement - challenge to opinions of insurer and trustee on TPD - duty of trustee and insurer in determining a claim - whether decisions to refuse the claim were invalid

CONTRACT - deed - sham - whether requisite intention shown - shamming intent not established CONTRACT - contract of loan - loan repayable upon demand provided not less than six months notice of requirement for repayment given - notice not given in accordance with contract - notice ineffective

CRIMINAL LAW - sentencing - appeal against sentence - challenge to discount for plea and assistance - no question of principle - appeal dismissed.

PRACTICE - stay pending appeal - whether arguable basis for appeal - where no evidence appeal abortive if stay not granted - where no evidence judgment sum irrecoverable if paid - where offer to secure undisputed amount of debt but no evidence as to ability to obtain that security - whether in interests of justice to grant stay - stay refused

PROCEDURE - costs - security for costs - reason to believe that plaintiff will be unable to pay the costs of the defendant - Uniform Civil Procedure Rules, r 42.21 - agreement with third party to subordinate debt PROCEDURE - costs - security for costs - reason to believe that plaintiff will be unable to pay the costs of the defendant - Uniform Civil Procedure Rules, r 42.21 - cash security deposit PROCEDURE - costs - security for costs - Uniform Civil Procedure Rules, r 42.21 - form of order - whether security required to be in form least disruptive or disadvantageous form PROCEDURE - costs - security for costs - Corporations Act 2001 (Cth), s 1335 - form of order - whether security required to be in least disruptive or disadvantageous form APPEAL AND NEW TRIAL - appeal - general principles - points and objections not taken below - party bound by conduct of case - exceptions

TORTS - Civil Liability Act 2002 - personal injury - occupier's liability - risk of movement under foot of mat placed on polished floor - whether a reasonable person in the circumstances of the appellant would have taken precautions - whether the primary judge failed to consider evidence

CRIMINAL - evidence - jury trial - cross-examination - application to change the order in which parties may question a witness - s 26(c) Evidence Act 1995

CRIMINAL LAW - conviction appeal - appellant unfit to be tried - special hearing before judge alone - offence of murder - whether appellant suffering from substantial impairment by abnormality of mind arising from an underlying condition - reports from two psychiatrists - diagnosis of acquired brain injury and alcohol intoxication at time of offence - psychiatrists not shown ERISPs and statements from lay witnesses - 5 hours of ERISPs taken within 2 days of offence - whether analysis of psychiatric evidence by trial judge accurate - whether opinion of psychiatrists displaced by ERISPs and evidence of lay witnesses - opinion of psychiatrists seriously undermined by ERISPs not being made available to them - trial judge's verdict not unreasonable and supported by the evidence - appropriate directions given by trial judge - no denial of procedural fairness - trial judge gave adequate opportunity to parties to address as to issues - SENTENCE APPEAL - whether limiting term manifestly excessive - trial judge appropriately applied sentencing principles while having regard to mental state of appellant - appeal dismissed.

REAL PROPERTY – Torrens title – caveats – application to extend operation – whether seriously arguable case for caveatable interest – balance of convenience

WILLS, PROBATE AND ADMINISTRATION - whether the executors and trustees are justified in selling a property and applying the net proceeds of sale to residuary beneficiaries under the will - whether occupation of the property was a right to a life estate or a personal right of residence - whether the current occupant could satisfy payment of rates and land tax liabilities - plaintiffs justified in selling the relevant property - Trustee Act 1925 (NSW) s 63

SUCCESSION - Family Provision - Application by former wife of deceased - Factors Warranting - Applicant has legitimate need for assistance - Deceased ought to have made provision for Applicant, and could have done so without injustice to Defendant - Relief granted.

CORPORATIONS - voluntary administration - application by administrators for directions under Corporations Act 2001 (Cth) s 447D -- whether an equitable lien entitles administrators to impose a levy upon retention of title holders to whom relevant stock is made available in respect of costs incurred to identify and maintain that stock.

CORPORATIONS - winding up - statutory demand - application to set aside creditor's statutory demand under Corporations Act 2001 (Cth) - whether a genuine dispute has been established- claim that statutory demand fails to comply with legislative requirements - description of debt - supporting affidavit does not state belief as to the existence of genuine dispute - whether statutory demand should be set aside

PROCEDURE - Vexatious Proceedings Act 1988 - whether proceedings brought by defendant are vexatious - whether Court should exercise its discretion in favour of orders prohibiting the defendant from instituting proceedings without leave of the Court, and staying such proceedings as have already been instituted

CONTRACT - whether contract between Plaintiff and first Defendant - Contract established between Plaintiff and first Defendant as to money paid and the terms upon which it was paid to trust account EQUITY - TRUSTS - whether money paid into firm of solicitors' trust account was held on trust for Plaintiff as it was only to be used for prescribed purposes - whether trust was breached by payment out for purposes other than prescribed purposes - whether Plaintiff entitled to equitable compensation - whether second Defendant liable as an accessory to breach of express trust or breach of Quistclose trust under the second limb of Barnes v Addy - consideration of Quistclose trust - Express trust in favour of Plaintiff - breach of trust established - Whether Plaintiff entitled to "equitable damages" - Second Defendant is not liable for knowing assistance in breach of trust COSTS - Whether to cap costs in view of amount of the claim - Plaintiff to recover 65% of its costs, such costs to be calculated on the ordinary basis - Second Defendant to pay his own costs of proceedings

CORPORATIONS - management and administration - duties and liabilities of officers of corporation - restrictions on termination payments - "golden handshake" to director upon termination - whether payment in contravention of Corporations Act s 200B - whether member approval required - whether "in consideration of past services" - application of Corporations Act Part 2D.2 to contracts made before 24 November 2009 - transitional provisions - whether payment in contravention of directors' duties - where company's business at an end and no ongoing interest in reputation for generosity - held, payment could not be justified in interests of company CORPORATIONS - management and administration - duties and liabilities of officers of corporation - relief from liability - whether directors acted honestly - whether directors ought to be relieved DEEDS - what amounts to a deed - whether document expressed as agreement but sealed operates as a deed EMPLOYMENT LAW - the contract of service and rights, duties and liabilities as between employer and employee - termination - notice - pay in lieu of notice - whether managing director entitled to pay in lieu of notice where he had practical control of sale and closure of business and could have given requisite notice - held, not entitled EMPLOYMENT LAW - the contract of service and rights, duties and liabilities as between employer and employee - termination entitlements - annual leave and long service leave LIMITATION OF ACTIONS - contracts, torts and personal actions - the period of limitation - employee's cross-claim for underpaid remuneration - when time stops running - held, upon institution of principal action

APPEAL AND NEW TRIAL - appeal - general principles - interference with discretion of the court PROCEDURE - Court of Appeal procedure - stays PROCEDURE - Court of Appeal procedure - interlocutory injunctions PROCEDURE - courts and judges generally - judges - allegations of bias PROCEDURE - courts and judges generally - judges - natural justice or procedural fairness in ex parte hearing

PROCEDURE - judgments and orders - amending, varying and setting aside - re-opening to reconsider a point - whether the Court proceeded on a misapprehension as to the facts or the law - whether the absence of reference to a party's submission demonstrates a lack of consideration of that submission

PRACTICE AND PROCEDURE - consequential orders - entitlement of financier to have enforcement expenses payable under mortgage included in judgment amount

CONTRACT - terms and conditions - limiting liability clause - interpretation of clause excluding or limiting liability for consequential loss - whether contract should be construed so as not to deprive one party of its benefit PROCEDURE - summary dismissal - general principles - summary dismissal of part of claim PROCEDURE - Application for order that question of construction to be dealt with as a separate question - whether court should proceed on hypothetical basis - Uniform Civil Procedure Rules 2005 (NSW), r 28.2

PRACTICE AND PROCEDURE - Practice Note SC Eq 11 - disclosure of documents - interrogatories - whether discovery categories too broad

CORPORATIONS - voluntary administration - application by administrators for directions under Corporations Act 2001 (Cth) s 447D - whether matter attracts Court's jurisdiction to give directions - where three categories of company stock items are sought to be distributed or disposed - where there existed a retention of title clause in relevant terms of sale agreement - whether title in relevant categories of stocks had passed to purchaser upon allocation of stock - whether a relevant category of goods should be sold and distributed pari passu - whether purchasers can take relevant stock free of security interests registered by suppliers - whether administrators are entitled to exercise a equitable lien in respect of identification, allocation and distribution of relevant stock to purchasers - whether an equitable lien entitles the administrators to impose a levy upon purchasers to whom title in relevant stock is made available - whether administrators are justified in providing notification to affected parties - whether administrators justified in disposing of any abandoned stock. SALE OF GOODS - passing of property - where purchasers entered into terms of sale agreements with company - where company initially allocated groups of stock by description to group of purchasers and not by individual contracts - whether relevant goods can be properly characterised as 'unascertained' or 'future' goods - whether relevant goods were in a 'deliverable state' - whether there had been an unconditional appropriation of relevant goods.

PROCEDURE - setting aside consent orders by consent - inspection of books by way of interim preservation