Cases and authorities

CRIMINAL LAW - Crown appeal against sentence - s 11 Crimes (Sentencing Procedure) Act 1999 (NSW) adjournment amenable to appeal under s 5D Criminal Appeal Act 1912 (NSW) - failing to impose a sentence where one is demonstrably called for is a manifestly inadequate exercise of sentencing discretion -error in concluding need for surgery supported disposition under s 11 - no benefit in deferring sentencing to enable offender to undertake supervised rehabilitation - sentencing direction miscarried - residual discretion - no practical benefit in allowing appeal - appeal dismissed

CRIMINAL LAW - appeal against sentence - murder - primary participant in killing - determination of worst category case - future dangerousness - early plea of guilty but discount withheld - use of axe as an aggravating feature -sentence not manifestly excessive CRIMINAL LAW - appeal against sentence - murder - secondary participant in killing - erosion of utilitarian value of plea by disputing facts on sentence - insufficient disparity with sentence imposed upon primary participant - sentence not manifestly excessive

EVIDENCE - admissibility - Surveillance Devices Act 2007 - whether recording of a conversation was reasonably necessary for the protection of the lawful interests of the complainant - whether, if within exception to prohibition in s 7 of the Act, trial judge erred in concluding that it would be admissible under s 138 of the Evidence Act 1995 as probative value of recorded conversation outweighed prejudice to accused CRIMINAL LAW - appeal and new trial - objections or points not raised in court below - misdirection and non-direction CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - directions to jury

CRIMINAL LAW - appeal - Crown appeal against sentence - offence of using position as executive and managing director of company dishonestly, with intention of directly or indirectly gaining an advantage contrary to s184(2) Corporations Act 2001 (Cth) - two offences of making false and misleading statement in a document filed with the Australian Securities Investment Commission contrary to s 1308(2) Corporations Act 2001 (Cth) - guilty plea - total sentence of two years imprisonment to be served by way of intensive correction in the community - whether sentencing judge erred in assessing the objective seriousness of the offences by failing to adequately take into account material considerations - whether sentence manifestly inadequate - importance of general deterrence

CRIMINAL LAW - attempt to import marketable quantity of heroin, dealing with money the proceeds of crime (C'th) - supply large commercial quantities of heroin, methylamphetamine (NSW) - appeal against conviction - joint trial of counts - whether evidence cross-admissible - whether defences prejudiced

PROCEDURE - notice of motion - ex parte application - order restraining the Council from entering premises - order made in Land and Environment Court stayed until further order of the Court

CORPORATIONS - winding up - insolvent transactions - recovery of preferences - claim by liquidator against Commissioner of Taxation pursuant to s 588FF, Corporations Act 2001 (Cth) - Commissioner joins company's director to seek indemnity pursuant to s 588FGA - Commissioner withdrew defence to liquidator's claim - director raises issue of insolvency but subsequently withdraws defence - primary judge enters judgment in liquidator's favour against Commissioner and in Commissioner's favour against director - whether primary judge erred in ordering Commissioner to pay liquidator's costs after Commissioner's defence withdrawn

SUCCESSION - Family provision - Where one of two daughters benefited almost to the exclusion of the other - Where accepted that order should be made - Succession Act 2006 ss 59, 60 - No question of principle

EQUITY - trusts and trustees - express trust - resulting trust - whether trust arises on basis of custom and practice within family business - whether clear expression of intention EQUITY - assignment - where insufficient evidence relating to purported assignment - whether statutory provision prevents assignment of equitable interest - whether writing requirements satisfied - whether clear intention to make an immediate disposition PERSONAL PROPERTY - ownership and possession - nature and meaning of ownership of and property in personalty - acquisition of ownership of chose in action - evidence of ownership - where lack of records - where physical property remains property of the State

FAMILY LAW - child welfare under state legislation - adoption trans-cultural adoption - desirability of culturally appropriate placement

CORPORATIONS - associations - right of members to requisition special general meeting - whether special general meeting convened in accordance with rules of association REMEDIES - injunction - interlocutory injunction - serious questions to be tried as to whether special general meeting validly convened - whether executive council elected at meeting should be replaced by former executive council - balance of convenience

REMEDIES - injunction - interlocutory injunction - serious question to be tried - balance of convenience - injunction granted upon conditions REAL PROPERTY - strata schemes - alleged invalidity of resolutions to amend by-laws

PROCEDURE - notice of motion - order seeking the amended second cross-claim be dismissed - granted - Rule 12.7 of the Uniform Civil Procedure Rules - cross-claimant has not prosecuted amended second cross-claim with due despatch - order seeking cross-claimant to pay cross-defendant's costs on an ordinary basis - granted

REAL PROPERTY - mortgages - default - entitlement to possession - defendants purport to draw bill of exchange for the sum of one dollar in favour of the mortgagee - claim debt has been satisfied - no other defence to claim - defence struck out

CONTRACT - general principles - lessor (the defendant) takes over the leased premises from a tenant (the first plaintiff) - whether as the price of acquiring the business the landlord has agreed to acquire the tenant's business conducted on the leased premises - whether the landlord has agreed to indemnify the directors of the tenant company (the second and third plaintiffs) in respect of the whole of the debt obligations of the tenant, or merely in respect of the external (non related-party) debt obligations of the tenant - whether declaratory relief appropriate - inquiry as to the extent of the debt obligations of the first plaintiff.

CRIMINAL LAW - Crimes (High Risk Offenders) Act 2006 - serious sex offender - sexual offending commenced when offender was 17 - multiple offences - offending when under the influence of drugs and alcohol - application for extended supervision order - whether offender an unacceptable risk of commission of further serious sex offences - conditions of supervision order - whether offender should be barred from viewing R18+ material - whether offender should be prevented from access to offender's young sons - whether s 11(g) of the Act inconsistent with Family Law Act - requirement to take prescribed medication - length of order

TORTS - negligence - negligent driving - appellant passenger in car driven by respondent - where respondent driving within speed limit in semi-rural area at night - where respondent took eyes off road "momentarily" - where car collided with cow which ran onto road - where no evidence animals likely to stray onto road in area - whether respondent failed to keep proper lookout PRACTICE - where appellant sought leave to raise argument not pleaded at trial - where appellant eschewed argument on point at trial - whether exceptional circumstances allowing new point to be raised on appeal - whether respondent prejudiced by amendments - whether respondent could have conducted case differently if point raised at trial MOTOR ACCIDENTS COMPENSATION ACT - Part 1.2 Division 1 - construction of blameless motor accident provisions - whether confined to motor accidents as defined in Motor Accidents Compensation Act EVIDENCE - where respondent not called to give evidence - where statement of respondent tendered by appellant - where appellant's evidence did not contradict respondent's statement - whether Jones v Dunkel inference available - whether Jones v Dunkel inference would have assisted appellant's case

LAND AND ENVIRONMENT COURT - enforcement of planning laws - injunction to demolish unauthorised works and reinstate property - whether necessary to join new registered owner - whether order conditional upon new owner's consent - whether new owner should be joined so as to be bound by order - whether sufficient to notify new owner - new owner directly affected and should have been joined - Environmental Planning and Assessment Act 1979 (NSW) s 76A PRACTICE - parties - obligation to join all parties directly affected by orders sought - whether a person not in breach or threatening to breach a necessary party - circumstances when joinder not necessary considered - effect of Civil Procedure Act 2005 (NSW) ss 56-59 - effect of liberty to apply - orders made in absence of necessary party set aside PRACTICE - injunctions - need for clarity - construction of order - whether implied condition to obtain owner's consent - whether non party could ignore order

APPEAL AND NEW TRIAL - findings of fabrication of evidence by police officer - fabrication of key findings not put in cross-examination - submission of fabrication not made - agreement not to take Browne v Dunn points did not prevent substantial miscarriage of justice - retrial ordered APPEAL AND NEW TRIAL - failure to address substantial component of defence case - failure to grapple with competing testimonial evidence in light of independent evidence - failure to address separate heads of damages POLICE - rights, powers and duties - actions for malicious arrest, assault and battery and misfeasance in public office - whether lawful arrest - nature of tort of "malicious arrest" considered

PROCEDURE - notice of motion - order seeking further stay of writ of possession - stay granted

PROCEDURE - Strike-out application - Practice Note SC Eq 3 - whether appropriate to entertain application to strike out part of proceedings - whether appropriate to strike out part of proceedings where issues arise from same factual matrix - whether to strike out would substantially reduce the burden of preparing for trial or trial itself

CONTRACT- General principles - Whether contract terminated for breach, abandoned or terminated by agreement - What constitutes repudiatory conduct -What is required for acceptance of repudiation ESTOPPEL - Estoppel by convention or representation - Detrimental reliance PRACTICE - Pleadings - Need to plead and prove readiness and willingness to complete contract - UCPR Part 14 r 14.11 - UCPR Part 14 r 14.14(2) PRACTICE - Amendment of Statement of Claim - Application during final submissions

PRACTICE - Pleadings - Strike out - Whether statutory defence adequately pleaded - Whether "apportionable claim" where negligence not part of plaintiffs' case - Cheques Act 1986 (Cth), s 95(1) - Civil Liability Act 2002 (NSW), s 34(1)

ASSET PRESERVATION ORDER - disclosure of information - no question of principle.

EVIDENCE - admissibility - credibility or reliability - whether photographic evidence of tattoos admissible for the purposes of bolstering witness's credibility in terms of what may be observed from certain vantage points; JUDICIAL DISCRETION TO EXCLUDE EVIDENCE - prejudicial nature of evidence - whether probative value outweighs unfair prejudice to the accused

CRIMINAL LAW - sentence - murder of offender's 2 year old daughter, wounding of his wife with intent to cause her grievous bodily harm - spontaneous attacks - background of exposure to war in Afghanistan, capture and torture by Taliban - PTSD and other psychological defects

DEFAMATION - defences - contextual truth - whether defence liable to be struck out where no additional particulars of truth relied upon beyond the repetition of those provided in support of defence of truth - whether open to plead alternative contextual imputations - capacity of matter complained of to convey "suspicion" imputation - requirement that the existence of a suspicion objectively held by some person or authority be capable of being conveyed even though there is no requirement to identify that person or authority in the imputation DEFAMATION - defences - defence of truth at common law - whether open to plead contextual imputations alternatively as Hore-Lacy meanings

EVIDENCE - expert and opinion evidence - specialised knowledge - opinions based on training, study or experience - s 79(1) Evidence Act 1995 - whether opinions wholly or substantially based on knowledge

CASE MANAGEMENT - re-opening - after hearing - after reasons published - discretionary considerations CASE MANAGEMENT - finality of litigation - importance of - public interest REAL PROPERTY - strata titles - section 80D of the Strata Schemes Management Act 1996 (NSW) - purported ratification of legal proceedings commenced by owners corporation - principles - ratification after hearing

CRIMINAL LAW - appeal against conviction - three counts of aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900 - one count of aggravated sexual assault pursuant to s 61J(1) of the Crimes Act 1900 - convicted of four counts of aggravated indecent assault - alleged that the jury verdicts are unreasonable and could not be supported by the evidence - all relevant matters were left open to the jury - upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged - alleged failure by the trial judge to adequately warn the jury that the prosecution case relied wholly on the evidence of the complainant - failure by trial counsel to seek directions - application of Rule 4 of the Criminal Appeal Rules - trial judge gave strong and clear directions as to the importance of not returning a guilty verdict unless the jury was satisfied beyond reasonable doubt of the evidence given by the complainant - jury accepted the complainant as a truthful and reliable witness - benefit of the jury seeing the complainant give evidence - no miscarriage of justice arising from the absence of good character evidence and directions on good character - failure by trial counsel to seek directions on good character - application of Rule 4 of the Criminal Appeal Rules - proper consideration was given by trial counsel to the question of calling good character evidence and a tactical decision was made - appeal dismissed

TORT - negligence - claim for economic loss by owner of helicopter against bailee of helicopter arising from conduct of pilot - helicopter coming into contact with overhead powerline - challenge to factual findings of trial judge - whether evidence before trial judge capable of proving substantial deterioration in weather conditions - whether due weight given to opinion of experts - whether negligent of pilot to continue flying in deteriorating weather conditions - assessment of alternatives open to pilot - need to assess actions of pilot prospectively not in hindsight - use of Civil Aviation Regulations as particulars of negligence - application of ss 5B and 5C Civil Liability Act 2002 - CAUSATION - negligence not established - CONTRACT - what terms should be implied - extent to which Civil Aviation Regulations were to be implied in contract - PROPORTIONATE LIABILITY - whether owner of powerline liable in tort - class of pilot to whom duty owed - foreseeability of relevant "risk of harm" - powerline owner liable in negligence - DAMAGES - loss of profits and diminution in value of repaired helicopter - failure of trial judge to have regard to agreement between parties - factual error of trial judge requiring appeal court to re-assess damages.

CRIMINAL LAW - application by accused for trial by judge alone - effect of accused's illness on the progress of the trial

CRIMINAL LAW - Crimes (High Risk Offenders) Act 2006 - serious sex offender - unacceptable risk of committing a serious sex offence if not supervised - interim supervision order

PROCEDURE - costs - general rule costs follow the event - whether costs order ought to be paid as a specified gross sum under s 98 Civil Procedure Act 2005 - where no evidence before Court to suggest substantive dispute of specified gross sum - whether consistent with overriding purpose of s 56 Civil Procedure Act 2005

CONTRACTS - failure to complete - lack of termination - specific performance

SUCCESSION - construction of a will - subjective intention of testator - recourse to extrinsic evidence SUCCESSION - difficulty in implementing intention - ancillary steps necessary to give effect to intention

FAMILY LAW AND CHILD WELFARE - adoption - whether applicable requirements satisfied - whether adoption is in best interests of the child - adoption order made - application for approval of change in child's surname - whether change of name is in best interests of the child - approval for change of name given

CAVEAT - Application for lapsing of current caveat - Current caveat invalid - Application for leave to lodge a new caveat - Mortgage duty under Duties Act, 1997 (NSW) not paid on agreement giving rise to option in plaintiff to create a mortgage and lodge a caveat - Mortgage duty not paid on current caveat - Construction of agreement - Whether mortgage duty payable on current caveat or new caveat - Whether leave should be given under s 74O Real Property Act, 1900 (NSW).

PROCEDURE - settlement approval - notice of motion - order seeking settlement approval as against second and third defendants - settlement approved

PROCEDURE - settlement approval - order for settlement approval - order made

PROCEDURE - Subpoenas - Application to set aside - Waiver of legal professional privilege - Was privilege waived by failure of counsel to object to questions in cross-examination?

PROCEDURE - interlocutory issues - disclosure of documents - Practice Note SC Eq 11 - parties have not yet served all evidence - whether documents necessary to enable expert to conclude report - applicant has exercised contractual entitlement to documents from one cross defendant - whether exceptional circumstances established in relation to other cross defendant

PROCEDURE - judgments and orders - application to vary orders - whether court should vary orders to enable trustee defendants to pay costs of proposed application for judicial advice EQUITY - trusts - trustee - judicial advice -whether court should vary orders to enable defendants to pay costs of proposed application for judicial advice

CONTRACTS - Contracts Review Act 1980 (NSW) - refinance of existing mortgage - whether undue pressure exerted by husband on wife - public interest considerations and community standards of business morality - where there was no evidence that the transaction entered into by wife was improper, improvident or unreasonable - where wife is aware of sound financial position of relevant companies - where wife appreciates the benefit to her, understands the transaction and is willing to enter into it

PRACTICE AND PROCEDURE - application for leave to appeal - no error of principle demonstrated APPEAL - whether appeal from interlocutory decisions - leave to appeal from refusal of leave to amend statement of claim and dismissal of proceedings for want of dispatch - appeal incompetent

SUCCESSION - FAMILY PROVISION - appeal from determination of applications under ss 58(2) and 59(1) of Succession Act 2006 - contest between respondent, deceased's second wife, and appellant, deceased's adult son - child of deceased and second wife dependent on second wife - whether primary judge erred in extending time for making of respondent's application for family provision order - whether primary judge erred in being satisfied that adequate provision not made for respondent - application of s 99 of Succession Act 2006 - whether primary judge erred in ordering that appellant's and respondent's costs be borne by appellant and paid out of his interest in the deceased's estate

PLEADINGS - amendment of pleadings - late amendment JURISDICTION - Land and Environment Court - s 79 Land and Environment Court Act 1979 (NSW)

PROCEDURE - notice of motion - adjournment application granted - costs

PROCEDURE - order that first plaintiff be excused from cross examination sought - order refused

LEGAL PRACTITIONERS - solicitor - application by plaintiff for appointment of receiver - receiver appointed - orders made by consent