Cases and authorities

MORTGAGES - Mortgages and charges generally - remedies of the mortgagee - events of default EQUITY - Equitable remedies - injunctions - interlocutory injunctions

EVIDENCE - admissibility and relevancy - hearsay - whether relevant documents are admissible as business records under Evidence Act 1995 (NSW) s 69 - where identity of author of relevant documents is unknown - whether relevant documents contained previous representations made or recorded in the course of, or for the purposes of, relevant business - whether relevant representations were made by a person who had or might reasonably be supposed to have had knowledge of the asserted facts, or on the basis of information directly or indirectly supplied by such a person. EVIDENCE - admissibility and relevancy - whether relevant documents should be excluded under s 135 on the basis that documents are unfairly prejudicial or misleading. EVIDENCE - admissibility and relevancy - application to seek direction that relevant evidence is not to be admitted under Evidence Act 1995 (NSW) s 169 - where party had failed to comply with request to call witness - whether plaintiff's refusal to comply with request made without reasonable cause.

COSTS - Costs follow the event in first proceeding - Order each party to pay own costs in second proceeding - Plaintiff failed on case originally pleaded - Original case based upon false claim of execution of lease

CRIMINAL LAW - application under s.78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether sentence infected by Muldrock error - supplying a large commercial quantity of prohibited drug (ecstasy) - guilty plea - doubt or question not demonstrated - application refused

SUCCESSION - wills, probate and administration - construction and effect of will - whether the court is entitled to rectify a will under s29A Wills, Probate and Administration Act 1898 (NSW) - CONTRACT- breach of agreement - whether an agreement was varied or terminated

COSTS - plaintiff successful in judicial review proceedings - of eight issues raised plaintiff successful in one - whether costs should follow the event - majority of time and preparation spent on those parts of the plaintiff's summons which were unsuccessful - departure from ordinary costs rule justified.

PRACTICE AND PROCEDURE - application for summary dismissal - whether statement of claim should be summarily dismissed or proceed to trial - arguable case demonstrated; TORTS - false imprisonment/unlawful detention - whether it is arguable that detention of persons under the Crimes Act 1914 (Cth) in an adult correctional facility constitutes false imprisonment/unlawful detention where the minor persons are also detained as unlawful non-citizens under the Migration Act 1958 (Cth) - whether it is arguable that being held under a different form of custody rather than another form of custody can constitute false imprisonment/unlawful detention

CRIMINAL - application for leave to appeal sentence - whether there was an absence of sufficient information with respect to mental health/special circumstance, family support and remorse - whether criminality was not on par with co-accused - additional evidence - leave to appeal refused

CRIMINAL LAW - conviction appeal - historical sexual offences - aggravated indecent assault and aggravated sexual intercourse without consent - admissibility of other uncharged sexual acts as context evidence - whether such evidence "tendency evidence" - whether probative value of evidence outweighed by its unfair prejudice - need for evidence to explain background to what otherwise would appear to be two isolated and unconnected offences - evidence necessary to explain failure of victim to complain at the time of the offending - reasonable assumption that jury would follow judicial directions - evidence of uncharged acts admissible as context evidence.

ABORIGINAL LAND RIGHTS - claim to Crown land reserved for future public requirements - whether land lawfully used or occupied - whether Licence and Permissive Occupancy for grazing valid - whether Ministers exercised powers to grant Permissive Occupancy and Licence for reserved purpose of future public requirements or purposes incidental or ancillary thereto - ascertainment of Ministers' subjective purpose through inference from objective circumstances - relevance of statement in Permissive Occupancy and Licence of intended use of claimed lands for grazing - Aboriginal Land Rights Act 1983 (NSW), s 36; Crown Lands Act 1989 (NSW), ss 6, 34

MORTGAGES - mortgages and charges generally - form, validity and effect - whether breach of the Powers of Attorney Act PROCEDURE - judgments and orders - effect of judgments - whether res judicata, issue estoppel or Anshun estoppel made out

TORTS - negligence - road accident cases - liability of drivers of vehicles - failure to look-out - pedestrian accidents - whether defendant should have had headlights on high beam - whether breach of duty - whether causation established

TORTS - negligence

PROCEDURE - assistance to foreign courts - proceeds of crime - registration of foreign judgment

CRIMINAL LAW - sentence - contempt in the face of the court - plea of guilty - wilful refusal to answer questions

CRIMINAL LAW - sentence - contempt in the face of the court - plea of guilty - wilful refusal to answer questions

REAL PROPERTY - sale of land - contract - informal agreement - whether binding agreement formed by exchange of email and letters and without exchange of contracts COSTS - indemnity costs -Calderbank letter - reasonableness of non-acceptance - non-acceptance by plaintiffs not unreasonable

PROCEDURE - Supreme Court procedure - New South Wales - Procedure under UCPR - payment into and out of court - application for payment out MORTGAGES - Mortgages and charges generally - priority of estates, debts and amendments REAL PROPERTY - Torrens title - caveats against dealings - whether agreement to lodgement of caveat credits a security interest

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 - consent orders

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 - consent orders

REAL PROPERTY - mortgages - writ of possession - stay sought to set aside default judgment - no arguable defence - inaction by Defendant since served with process in July 2012 - earlier stay granted - no action by Defendant - no offer to pay any part of debt - stay refused

CRIMINAL LAW - application under s.78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to mitigating circumstance - whether Muldrock error - doubt or question not demonstrated - application refused

CRIMINAL LAW - application for inquiry into sentence under s.78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to mitigating circumstance - whether sentence infected by Muldrock error - sentence after trial - open to conclude that two-stage process applied - doubt or question demonstrated - matter referred to Court of Criminal Appeal

PROCEDURE - vexatious litigant - application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008 - application dismissed

PROCEDURE - notice of motion - order seeking adjournment of hearing - order seeking cross-claim to be determined prior hearing of claim - order opposed - motion dismissed

PROCEDURE - notice of motion - order seeking transfer of District Court proceedings to Supreme Court - s 140(1) of the Civil Procedure Act 2005 - order seeking the New South Wales Supreme Court proceedings be transferred to Supreme Court of Queensland - s 5(2) Jurisdiction of Courts Cross-Vesting Act 1987 and s 5(2) Jurisdiction of Courts Cross-Vesting Act 1987 (QLD) - alleged tort and governing law of Queensland - orders sought granted

CORPORATIONS - membership, rights and remedies - derivative action - application for grant of leave by shareholder to bring proceedings in name of relevant companies against former director under Corporations Act 2001 (Cth) s 237 - whether applicant was acting in good faith in bringing proceedings - whether in the best interests of companies that applicant be granted leave - whether proposed proceedings involved serious questions to be tried - whether leave should be on terms that companies be indemnified from costs.

CRIMINAL LAW - sentence - murder - serious offence - objective seriousness - high moral culpability - planning -aggravating factors - use of weapon - offence committed in company - mitigating factors - no record of prior convictions - prior good character remorse and prospects of rehabilitation and not re-offending not established - deterrence - personal circumstances - no special circumstances - victim impact statement - custodial sentence imposed

CORPORATIONS - external administration - voluntary administration - orders modifying application of Part 5.3A under s 447A - where administrators propose to enter into transaction with commercial lender to raise funds to pay out secured creditor and retire receivers - whether order required to make administrators personally liable and have indemnity and lien in respect of repayment of money borrowed - held, not necessary in light of s 447A(1)(d) - whether judicial advice should be given where no question of law procedure or propriety - held, advice given.

APPEAL - Leave to appeal from non-publication and suppression orders made under the Court Suppression and Non-Publication Orders Act 2010 (NSW) and pseudonym orders SUPPRESSION ORDERS - whether suppression and non-publication orders were necessary to prevent prejudice to the proper administration of justice - public interest in preserving confidentiality of informers - suppression orders that replicate statutory provision - public interest in open justice - need for sufficient particularity - orders not "necessary" - set aside

PRACTICE AND PROCEDURE - costs - security for costs - appeal against decision refusing to order security for costs under Uniform Civil Procedure Rules 2005 (NSW) r 42.21(1)(d) or Corporations Act 2001 (Cth) s 1335(1) - whether reason to believe plaintiff company will be unable to meet adverse costs order - not a test of whether risk that that will be the case - burden of proof in applications for security for costs - principles governing appellate review of determination of threshold question of whether power to order security

PROCEDURE - Court of Appeal procedure - stays

CONTRACTS - construction - deed concerning real estate development project - whether deed prohibits sale of land in absence of financier's consent - whether serious question to be tried as to such construction - EQUITABLE REMEDIES - injunctions - interlocutory injunctions - balance of convenience - relevance of rights and interests of strangers to the contract and the suit - where alleged breach of contract competes with equitable interest in land - where some but not all parties to the contract are parties to the suit - utility of interlocutory restraint - adequacy of damages as a remedy - delay in seeking equitable relief

PRACTICE AND PROCEDURE - application for leave to appeal - leave refused

CONTRACTS - general contractual principles - construction and interpretation of contracts

PROCEDURE - determination as to whether interests of justice require Court to determine the matter

[APPEAL] - Where failure by solicitors to comply with directions - where appellant personally blameless for delay - where no actual prejudice - whether dismissal where proceedings statute barred unreasonable and plainly unjust. [CASE MANAGEMENT] - Range of orders and directions to be deployed in case management - need for proportionate response to breaches - dismissal as last resort.

EVIDENCE - whether primary judge should have drawn Jones v Dunkel inferences - whether other inferences should have been drawn in absence of oral evidence TORTS - negligence - whether duty of care to monitor area outside leased premises for persons carrying beverages

RESTITUTION - restitution resulting from unenforceable incomplete, illegal or void contracts - where money paid by purchaser to vendor in anticipation of contract - contract never made - claim for recovery by purchaser - principles upon which money recoverable when contract fails to materialise - LIMITATION OF ACTIONS - limitation period for claim in quasi contract - when time begins to run - EVIDENCE - burden of proof - sufficiency of evidence - whether documentary evidence sufficient to prove making of payments pursuant to a particular arrangement

WILLS, PROBATE and ADMINISTRATION - Executors - Claim for commission - Assessment of quantum - Principles applicable - Guideline rates - Standard of reasonableness - Interplay between lump sum and percentage rate assessments - Application to large estate PROCEDURE - Review of registrar's decision - Assessment of executor's commission - Nature of review - status of registrar's decision - Specialist jurisdiction involving expertise acquired from experience of estate administration - Probate & Administration Act 1898 NSW s 86(1) - Summary procedure

EQUITY - equitable remedies - injunctions - application for interlocutory injunction - where principal issue is whether injunctive relief would be declined on discretionary or non-discretionary grounds at a final hearing - where granting an injunction against the second defendant would effectively reduce him to the alternative of working for the plaintiff or being idle - where the practical effect of granting an injunction against the first defendant (or any alternative employer with whom the second defendant might seek to take up employment) would be the same as granting an injunction against second defendant directly and thus amount to specific enforcement of contract of personal service - where neither side will suffer significant prejudice whether injunction is or is not granted - where the application thus largely hinges on the strength of the case for final relief -interlocutory relief refused

PROCEDURE - costs - departing from the general rule - orders sought for further costs on indemnity basis - where relevant defendants' subpoena to produce was set aside - whether circumstances justify order for costs on indemnity basis.

DAMAGES - assessment of damages for defective building work - no question of principle.

REAL PROPERTY - indefeasibility - allegation of fraud in the registration of the plaintiff as registered proprietor - defendants claim prior interest pursuant to contract of sale - no evidence of fraud - adjournment for additional evidence

APPLICATION - application for inquiry into sentence pursuant to s78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether sentencing infected by Muldrock error - offence of supplying a large commercial quantity of a prohibited drug and possessing a prohibited firearm - guilty plea - Court of Criminal Appeal did not engage in two stage process in sentence nor did it give the standard non-parole periods determinative significance - application refused.

EVIDENCE - whether evidence of searches of financial records probative - whether probative value substantially outweighed by danger of unfair prejudice to the accused - whether misleading or confusing - whether likely to cause or result in undue waste of time

GUARDIANSHIP - Protected person - Financial management - Appointment of manager - Private manager - Terms of appointment - Remuneration - Regulatory regime - Financial services licence, issued by Australian Securities and Investment Commission, required - Subject to regulation by public authorities (by ASIC as licence holder, by NSW Trustee as financial manager) and supervision by Court (in exercise of Protective jurisdiction) - Public interest considerations MENTAL HEALTH - Protected person - Appointment of manager of estate - Private manager - Remuneration - Regulatory regime - Public interest considerations PRACTICE - NSW Trustee & Guardian Act - Protected person - Appointment of manager of estate - Private manager - Terms of appointment - Remuneration - Regulatory regime - Public interest considerations

COSTS - gross fixed sum costs order

ADMINISTRATIVE LAW - where plaintiff a member of the Board of unincorporated association - where motion before the Board for expulsion of the plaintiff from his position as a Director - whether power vested in the Board to expel the plaintiff ADMINISTRATIVE LAW - where interim injunction granted preventing the Board from considering the motion for expulsion - where no decision yet made - whether appropriate for the court to intervene in such circumstances and grant declaratory relief - where intervention of the court would amount to a determination of the merits - intervention not appropriate in the absence of a decision having been made by the primary decision maker

APPEAL - criminal - interlocutory appeal - joint trial - prejudice to applicant from inadmissible evidence tendered against co-accused - refusal by trial judge to order separate trial - trial judge held appropriate directions on evidence would suffice - whether there was a material error of fact in refusing a separate trial - errors alleged regarding the intended use of evidence by the Crown - Criminal Appeal Act 1912 (NSW), s 5F