Cases and authorities

CRIMINAL - procedure - jury trial - application for separate trial - s 21 Criminal Procedure Act 1986 - whether defence of accused embarrassed by unexpected evidence - application dismissed

PROCEDURE - application to determine questions in dispute between parties in respect of terms of settlement under Civil Procedure Act 2005 (NSW) s 73 - whether conditions of terms of settlement have been satisfied - whether obligations owed by company to third parties have been discharged - whether relevant defendants are 'third parties' - where terms of settlement contained a release clause - construction - whether release clause extinguished relevant claims to unpaid remuneration and leave entitlements - whether release clause invalidated by leave entitlement legislation - whether proper superannuation entitlements had been paid to trustee of relevant defendants - whether affairs of companies have been finalised. PROCEDURE - judgments and orders - effect of judgments - where previous interlocutory judgment addressed several issues - where no orders had been made following interlocutory judgment - whether parties can lead evidence and advance submissions in respect of matters considered in interlocutory judgment - whether this course is consistent with the facilitating of just, quick and cheap resolution of real issues in dispute.

REAL PROPERTY - Torrens System - vendor and purchaser - doctrine of merger - whether price adjustment clause merged on completion EQUITY - estoppel - whether purchaser estopped from relying on price adjustment clause CONTRACT - proper construction of price adjustment clause

EQUITY - fiduciary duties - senior employee of advertising agency - diversion of business - obtaining of personal benefit EQUITY - breach of fiduciary duties - accessorial liability - "second limb" of Barnes v Addy - knowing assistance - whether assistant had requisite knowledge REMEDIES - account of profits - benefits received by defaulting fiduciary and by knowing assistant CONTRACT - contracts of employment - restraint of trade clause - restraint preventing involvement in other advertising agency business - breach of restraint - whether restraint enforceable - s4 Restraints of Trade Act (NSW) CORPORATIONS - s183 Corporations Act - employee - improper use of information - wrongful use of information not established

SUCCESSION - costs and ancillary relief - Succession Act, s 59 - cross-claimant found after a contest to be de facto wife of the deceased for in excess of two years before his death - family provision claims brought by the deceased's de facto wife and deceased's two children - question who should bear the costs of the contest of whether the cross-claimant was the de facto wife of the deceased.

CRIMINAL LAW - orders relating to high risk sex offenders - continuing detention orders - extended supervision orders - high risk of re-offending - offender has low intellect, suffers from chronic schizophrenia and lengthy history of failing to comply with medication - offender lacks ability to exercise self-control and demonstrates desire to perform violent and non-consensual sexual acts once out of gaol

CRIMINAL LAW - appeal - sentencing - Crown appeal against sentence - whether manifestly inadequate -whether R v Henry guideline judgment applies - whether the sentences were adequately accumulated - whether the sentencing judge erred in reducing the non-parole period due to special circumstances - whether both the individual sentences and overall sentence were manifestly inadequate

COSTS - whether costs orders made by the Land and Environment Court attended by error - whether the Court proceeded on an incorrect factual basis

PRACTICE - setting aside notice to produce - whether notice to produce seeks documents relevant to fact in issue on appeal - notice to produce set aside

CONTRACTS - construction - contract for the provision of professional services in relation to planning application - provision that part of remuneration be payable "within 8 weeks after EA approval" - meaning of "EA approval" in the context of the applicable planning laws - CONTRACTS - termination pursuant to provision allowing termination by notice - where an amount of remuneration had been earned at the time of termination but was not then payable - whether termination caused the amount to be payable - PROFESSIONS AND TRADES - architects - alleged breach of contractual or tortious duty as to quality of services - no breach shown

PROCEDURE - pleading - prior adjudication in proceedings in which the present defendant was sued by different plaintiff - application for order striking out parts of the defence said to reflect findings in the earlier proceedings - whether abuse of process to put the plaintiff to proof of such matters - PROCEDURE - admissions - power of court to compel admissions - findings in the earlier proceedings against the defendant said to require admissions by the defendant in present proceedings

CRIMINAL LAW - appeal against conviction - failure to give propensity direction contrary to ruling when evidence admitted - whether deliberate forensic decision not to seek direction - whether guilty verdict inevitable and no substantial miscarriage of justice - proviso applied to dismiss appeal

BUILDING AND CONSTRUCTION - Referees' Reports - adoption - whether referee took correct approach in reaching his determination - whether to adopt referee's report with variations PROCEDURE - Interest - Prejudgment interest - whether delay warrants a reduction in the rate of interest under Civil Procedure Act 2005 or in the time for which interest is to be allowed

ADMINISTRATIVE LAW - STATUTORY CONSTRUCTION - "another person associated with racing" - licensing power - abrogation of rights - alleged inconsistency in regimes under Thoroughbred Racing Act 1996 and Veterinary Practice Act 2003

COSTS - no order as to costs of first hearing - exercise of discretion - each party partly responsible for the making of the application - plaintiffs failed to accept defendant's offer that each party pay their own costs - plaintiffs to pay defendant's costs of second hearing on the ordinary basis

EQUITY - trusts and trustees - applications to the court for advice and authority - advice sought as to whether trustees justified in defending proceedings which impugn their appointment and resorting to trust assets to fund defence - whether impugned trustees have standing to seek advice - held, they do - where there appear to be reasonable prospects of defence succeeding - where dispute is in substance dispute between beneficiaries - whether advice should be given - held, unfair and unjust to permit trustees to have recourse to trust fund - held, advice declined.

FINANCIAL SERVICES - ss 12CA(1) and 12CB(1)(a) and 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) - EQUITY - CONTRACTS - s 7(1) of the Contracts Review Act 1980 (NSW) - CODE OF BANKING PRACTICE - whether bank misleadingly or deceptively represented that it would lend forever - whether bank misleadingly, deceptively or unconscionably procured its customers to hedge interest obligations under a loan - whether bank misleadingly, deceptively or unconscionably procured its customers to agree to facility terms including interest at Overdue Rates - whether bank acted contrary to Code of Banking Practice - whether provisions of facility agreements were unjust in the circumstances relating to them at the time they were made or are unenforceable penalties

PROCEDURE - costs - recovery of costs - determining the costs of an original hearing where original decision set aside on appeal - distinction between costs of successful defendant and successful plaintiff - costs consequence for defendant of raising reasonable but unsuccessful defence

CRIMINAL LAW - conviction appeal - Appellant convicted in 2009 after trial by judge alone - Crown alleged Appellant falsely represented himself to be a solicitor - Appellant deceived a vulnerable victim - convicted of obtain benefit by deception (one count), obtain benefit by making false statement (three counts) and use false instrument (one count) - Appellant acquitted of further count of obtain benefit by deception - whether inconsistent verdicts in relation to obtain benefit by deception counts - whether counts alleging obtain benefit by making false statement charged offences not known to law or were bad for duplicity - whether defect in terms of use false instrument count - ground based upon suggested fresh or new evidence - all conviction grounds rejected - conviction appeal dismissed CRIMINAL LAW - sentence appeal - whether error in use of evidence of adverse impact of offences upon victim - whether error in use made of Appellant's pretence to be solicitor - whether error in approach to theoretical prospect of summary disposal - whether error in approach to delay between arrest and sentence - whether error in approach to Appellant's claimed assistance to authorities - claim of manifest excess - objective gravity of offences - no sentence ground established - sentence appeal dismissed CRIMINAL LAW - conviction appeal - Appellant convicted in 2007 after jury trial - one count of obtain benefit by deception and four counts of use false instrument - Crown alleged elaborate deception by Appellant pretending to be a solicitor - use of false documents to dishonestly obtain loan advance secured by mortgage over property of innocent victim - claim that Crown case based upon fabricated evidence and incompetent police investigation - whether trial Judge erred in failing to direct acquittal - claim of error in admission of identification evidence - claim that trial defence counsel failed to advance arguments and adduce evidence exculpatory of Appellant - ground based upon suggested fresh or new evidence - claim that verdicts unreasonable - all conviction grounds rejected - conviction appeal dismissed CRIMINAL LAW - sentence appeal - concurrency and accumulation - special circumstances - claim of manifest excess - objective gravity of offences - substantial moral culpability of Appellant - sentence appeal dismissed

ESTOPPEL - issue estoppel - plaintiff claimed personal injury damages in the District Court after previously defending a claim for property damage arising from the same motor vehicle accident in the Small Claims Division of the Local Court - whether the Court has a discretion not to apply an issue estoppel where there are 'special circumstances' - correctness of Arnold v National Westminster Bank [1991] 2 AC 93

PROCEDURE - payment of funds out of Court - whether plaintiff entitled to funds under UCPR, r 55.11 - whether plaintiff is entitled to funds paid into Court - whether notice has been given to other persons potentially entitled to funds paid into Court.

PROCEDURE - application for dismissal of proceedings under UCPR, r 42.21(3) for failure to comply with an order for the payment of security as to costs - application to vary security for costs order - whether plaintiff can apply to pay security in instalments - whether sufficient evidence of intent to pay presented - whether sufficient evidence of ability to pay security presented - whether significant change of financial circumstances justifies plaintiff's application to vary orders

CRIMINAL LAW - proceeds of crime - restraining orders - serious crime derived property - proceeds of serious crime-related activity

PROCEDURE - amendment - possession proceedings - application to amend to include subrogation claim by payment out of prior mortgagee - late application - no new disputed facts - question of law - principle in Collier v Morlend Finance - amendment allowed

REAL PROPERTY - order for possession in favour of trustee in bankruptcy - defendant bankrupted for failure to pay strata levies - stay on execution sought - attempt by some creditors to remove trustee - stay sought in the hope trustee will be removed and Scheme of Arrangement made - stay refused

REAL PROPERTY - possession of land - dispute only as to amounts owing - no defence to claim - defence struck out

PRACTICE AND PROCEDURE - Expert evidence - Joint reports of experts - Admissibility of joint reports - Whether reasons are required for agreement between experts - Whether conclave failed to identify the material it relied upon - Whether consideration of extraneous material by the conclave constituted an irrelevant consideration - Whether experts are required to be provided with a joint statement of assumptions - Whether the questions asked of the conclave were drafted in terms that addressed relevant issues and matters appropriate for consideration by experts - Whether the joint reports are inconsistent with the common law "statement of reasoning" rule - Whether the joint reports are inconsistent with the Makita principle - Application of s 79 of the Evidence Act to joint reports of experts - Whether Court should exercise discretion to exclude the joint reports under s 135 of the Evidence Act

CONVERSION OF PROPERTY - whether the property was retained by the defendant - whether there was evidence of the value of the property - Burden of proof not satisfied

PLEADINGS - strike out application - previous defects not cured - document generally defective ABUSE OF PROCESS - threshold for abuse of process

CRIMINAL LAW - murder; three counts - act of cruelty to animal; two counts - trial by judge alone - Criminal Procedure Act 1986; s 132, s 133 CRIMINAL LAW - act of cruelty to animal; two counts - Crimes Act 1900; s 530 - physical act established - mental illness - whether the accused could have formed the requisite specific intention of inflicting severe pain on the animal CRIMINAL LAW - murder; three counts - defence of ental illness - s 38 Mental Health (Forensic Provisions) Act 1900 - whether accused mentally ill at time of offences under M'Naughten Rules - facts agreed by Crown and Accused - expert opinion evidence - psychiatric diagnosis of paranoid Schizophrenia - whether accused knew what he was doing was wrong

SERIOUS SEX OFFENDER - application for continuing detention order or extended supervision order - sex offences in 1991 and 2007 - offender with intellectual disability - assessment required concerning suitability for anti-libidinal medication - five-year order appropriate - extended supervision order made

CRIMINAL - defendant charged with multiple sexual offences - found unfit to plead - forensic patient - limiting term of five years - whether after expiry of limiting term extension order as a forensic patient should be made CIVIL - Mental Health (Forensic Provisions) Act 1900 (NSW) - forensic patient - limiting term expired - multiple interim extension orders made - final hearing - whether final order should be made to extend status as a forensic patient - whether poses an "unacceptable risk" of causing serious harm to others - balancing exercise - deprivation of liberty - protection of community - other less restrictive means - period necessary to enable assessment of progress STATUTORY INTERPRETATION - Mental Health (Forensic Provisions) Act 1900 (NSW) - Schedule 1 - "unacceptable risk of causing serious harm" - "other less restrictive means"

TRUSTS - Trustees - Duty to beneficiary - Discretionary trust - Whether trustee had a duty to inform beneficiary of entitlement once determined - Whether trustee had a duty to ensure beneficiary received the benefit of any distribution

CRIMINAL LAW - sentencing - manslaughter - provocation - whether degree of provocation was at the lower end of the scale - offer to plead guilty to manslaughter - sentence reduction - consideration of aggravating and mitigating factors - no prior criminal convictions - reasonable prospects of rehabilitation - minimal likelihood of re-offending - lack of remorse - assessment of objective criminality - domestic violence - physical vulnerability of victim - excessive violence - whether finding of special circumstances should be made - importance of general deterrence

APPEAL - Appeal from decision of Magistrate - where cross claims brought by the defendants following proceedings instituted by the plaintiffs - where judgment entered in favour of the defendants - whether reasons adequate STATUTORY CONSTRUCTION - where plaintiff entered into management agreements with defendants to manage units in a strata scheme - where plaintiff brought proceedings for breach of agreement - where defendants brought cross claims asserting that the plaintiff was not entitled to remuneration paid to him pursuant to the agreement - where statutory provisions ousted an entitlement to remuneration - where judgment entered in favour of the defendants on the cross claims on the basis of lack of entitlement WORDS AND PHRASES - "not entitled"

COSTS - cost assessment scheme - enforcement of cost certificates - recovery of costs of the cost assessment process PROCEDURE - judgments and orders - whether judgment obtained irregularly pursuant to the Uniform Civil Procedure Rules 2005 - whether judgment should be set aside on a discretionary basis PROCEDURE - judgments and orders - in general - failure to be notified of judgment - whether prejudice thereby caused CORPORATIONS - winding up - statutory demand under s 459E, Corporations Act 2001 (Cth) - failure to comply with statutory demand - application for order setting aside statutory demand

PROCEDURE - civil - interlocutory order -referral of questions of law to member of New York Panel of Referees - operation and effect of Uniform Civil Procedure Rules 2005 (NSW), rr 6.43, 6.44 and 20.14 and Memorandum of Understanding between Chief Justice of New South Wales and Chief Judge of the State of New York

ADMINSTRATIVE LAW - proceedings before the Local Court for Apprehended Domestic Violence Order - application withdrawn by police officer making application - whether Magistrate had the power to order costs - whether s 99 (4) Crimes (Domestic and Personal Violence) Act 2007 applies to the institution of proceedings by a police officer

CORPORATIONS - winding up - liquidators - liquidators' application - special leave for distribution of a surplus

CORPORATIONS - winding up - orders sought for stay or termination of winding up where company subject to a deed of company arrangement - whether solvency established - whether there has been serious impropriety in conduct of company's affairs - whether winding up should be terminated.

COSTS - Security for costs - Test to be applied - Corporate and several natural plaintiffs - Defendant applicant must prove amount of costs likely to be subject of order for costs solely referable to corporate plaintiff's claim

DEFAMATION - damages - publication to one person - considerable hurt to feelings

CAVEATS - improper caveats -statutory right to damages - extent of liability for improper lodgement WORDS & PHRASES - "lodges a caveat" - "any person" - Real Property Act 1900 NSW, s 74P

CRIMINAL LAW - child sexual assault offences - aggravated indecent assault - aggravated sexual assault - offences disclosed while in rehabilitative program under the Pre-Trial Diversion of Offenders Act 1985 - sentence - inadequacy of sentence - appeal against sentence - whether non-custodial sentence was appropriate - residual discretion to dismiss a Crown appeal

DEFAMATION - defences - common law qualified privilege - whether primary judge erred in not making a finding of malice - knowledge of falsity of imputations where the defendant does not intend the convey the imputations DEFAMATION - defences - statutory qualified privilege - application of s 30(3)(h) of Defamation Act 2005 - whether reasonable in the circumstances not to have sought a response from the plaintiff - whether it may be reasonable to seek a response after publication of defamatory matter DEFAMATION - defences - defence of triviality - whether the primary judge applied the wrong test - whether "any harm" includes hurt feelings

CORPORATIONS - winding up - application to appoint provisional liquidator - where company currently has no directors in office and no likelihood of any director being appointed - where company's assets are at risk - whether reasonable prospect that winding up order would be made on just and equitable ground - whether a provisional liquidator should be appointed.

CONTRACTS - commercial arrangements among adjoining landholders - some contracts rescinded after deposits paid - whether deposits to be refunded or to be considered in final accounting

ADJOURNMENT - separate question - no question of principle.

COSTS - no question of principle.