Cases and authorities

CORPORATIONS - winding up - statutory demand - whether a genuine dispute as to indebtedness - held, none - whether evidence sufficient to establish offsetting claim - held, none

PROCEDURE - various orders sought consequential upon the Court's principal judgment: Ashrafinia v Ashrafinia [2013] NSWSC 1442 - consideration of mechanism for the payment of the professional fees of the Court appointed expert - whether the judgment should be amended under the slip rule at the request of a non-party - whether the NSW Trustee and Guardian should be appointed trustee of the trust - issues of document production, preparation of evidence for claims for just allowances and costs considered.

APPEAL FROM LOCAL COURT - whether Magistrate erred in finding a franchise agreement had come to an end - whether the franchisor breached the restrictive covenant not to compete with the franchisee in the exclusive territory - whether competing "within" the territory of the franchise is the physical territory or includes products purchased over the internet - whether the franchisor had an obligation to act in good faith to the franchisee - whether the conduct of the franchisor was unconscionable within the meaning of the Trade Practices Act 1975 (Cth) and the Competition and Consumer Act 2010 (Cth) - whether related entities of the franchisor were liable as accessories to the unconscionable conduct of the franchisor; EVIDENCE - admissibility of evidence on the ground that the evidence was opinion - evidence properly admitted

SUCCESSION - family provision - whether beneficial interest in property forms part of deceased's estate - whether beneficial interest in property forms part of the notional estate; EQUITY - real property - beneficial interest - whether defendant, sister of the deceased, acquired a beneficial interest in the property - whether deceased estopped from denying that defendant acquired such interest; ESTOPPEL - equitable estoppel - estoppel by representation

COSTS - offer of compromise - time of offer - whether information available at time of offer made it unreasonable for the plaintiff to refuse offer - plaintiff's ignorance of existence of video surveillance filmed of his activities before offer - whether service of medical report sufficient to disclose basis of defendants' case at trial - where adverse view of plaintiff's credibility is formed after offer is rejected - where defendants rely on uncontentious and well known legal principles at trial after offer is rejected - whether appropriate that matter be heard in Supreme Court

PROCEDURE - civil - when a court should exercise power to strike out a claim in a List Statement - when there is no reasonable cause of action - NEGLIGENCE - whether a contractor owes a non-delegable duty of care in respect of activities of a subcontractor - no duty owed where contractor engages a subcontractor to carry out a non-hazardous part of construction project

PRACTICE AND PROCEDURE - claim in tort arising from death of patient in a hospital - claims in negligence and for intentional torts against medical practitioners and hospital staff - application to strike out intentional tort claims - whether s3B(1)(a) of the Civil Liability Act 2002 applied to intentional tort claims - strike out application refused - costs.

CONTRACTS - Contracts Review Act - purpose, scope and applicability - sale of land between two couples - no bank or financial institution involved - vendors setting an exorbitant price which bore no relation to value on terms of vendor finance that concealed from the purchasers the improvidence of the transaction - exploitation of trust and friendship MORTGAGES - inevitability of default at conclusion of period for vendor finance - setting of contract price grossly outside the fair or market value range of property

CRIMINAL LAW - sentence appeal - knowingly take part in the supply of a prohibited drug MDP2P - whether sentencing judge determined applicant's role in syndicate - parity of sentencing - whether applicant had justifiable sense of grievance - whether sentencing judge erred in applying parity principle - whether sentencing judge erred in applying totality principle.

CRMINAL LAW - appeal against conviction - murder - whether misdirection as to liability of primary and secondary participants when only participation in issue at trial - verdict not unreasonable or unsupported by evidence

CRIMINAL LAW - appeal against conviction and sentence - supply of drugs - whether error in failing to put the defence case in summing up to Jury - whether error in giving the standard non-parole period determinative significance - appeal dismissed - leave to appeal sentence refused

ADMINISTRATIVE LAW - judicial review - jurisdictional error - power of magistrate to award costs for time spent by litigant in person in prosecuting proceedings for apprehended violence order - power to award costs against defendants jointly and severally COSTS - criminal - power to award - whether power to order costs for time of litigant in person - definition of "professional costs" in Criminal Procedure Act 1986 (NSW) - legal practitioner appearing for himself - application of Chorley - relevance of Chorley in applying Criminal Procedure Act 1986 (NSW) PROCEDURE - criminal - costs - whether power to make defendants jointly and severally liable for costs of proceedings WORDS AND PHRASES - "professional costs" - Criminal Procedure Act 1986 (NSW), s 211

ADMINISTRATIVE LAW - judicial review - challenge to District Court judgment that Consumer, Trader and Tenancy Tribunal had no discretion to refuse order sought by landlord - whether error of law on face of record - error revealed in reasons of District Court - Supreme Court Act (NSW), s 69 LANDLORD AND TENANT - residential tenancies agreement - termination sought because residential premises used to supply prohibited drugs - whether Consumer, Trader and Tenancy Tribunal had discretion not to order termination - Residential Tenancies Act 2010 (NSW), s 91 WORDS AND PHRASES - "may" - whether discretion or duty to make order - Residential Tenancies Act 2010 (NSW), s 91

PROCEDURE - subpoena for production of documents - notice of motion seeking to set aside subpoena - bail application - alleged breach of legal professional privilege - legitimate forensic purpose - whether subpoena is oppressive - whether prior leave to issue any further subpoena should be ordered - order for subpoena to be set aside granted - order made that no further subpoena to be issued without leave

CORPORATIONS - winding up - remuneration of provisional liquidator - where provisional liquidator made inconsistent claims for amount of remuneration - whether provisional liquidator has established entitlement to remuneration.

PROCEDURE - civil - summary disposal - dismissal - Statement of Claim bad in form - filed outside limitation period - frivolous or vexatious; whether - reasonable cause of action; whether - cause of action untenable; whether - Civil Procedure Act 2005; s 56 - dismissal would be consistent with the just, quick and cheap determination of the real issues in dispute; whether

PROCEDURE - civil - interlocutory relief; application for - relief sought for council to remove barricade erected around a caravan and for access to be provided to plaintiff to effect repair and maintenance work on caravan - no prima facie basis disclosed by plaintiff for relief - no arguable case based on purported oral agreement for plaintiff to have access to park to undertake repairs and removal of caravan during specified period - balance of convenience does not favour grant of relief.

EVIDENCE - admissibility - judicial discretion to exclude or limit the use of evidence - where evidence sought to be lead seeks to contradict expert evidence

CAVEATS - caveat invalid - consent order to withdraw caveat - CONTRACTS - proper construction of deed - meaning of "Lender Consent Matter" - was lender's consent required before purchaser contracted to sell part of project? - consent not required - wrongful failure to object consent would be breach of Deed - balance of convenience does not favour grant of interlocutory injunction

CORPORATIONS - winding up - winding up in insolvency - where order sought extending time for compliance with statutory demand for a period of 21 days - where order purportedly sought to enable company to pay the debt claimed - where no evidence of that contention - extension refused

PROCEDURE - civil - extension of stay on the execution of a writ of possession; application for -extension of the validity of the writ; application for - whether in the interests of justice

APPEAL - Appeal from decision of Magistrate in Local Court - Judgment given when party does not appear when matter called on for hearing - Whether any appeal grounds involved a question of law - Whether to extent that they do not, leave should be granted - Where grounds asserted include inadequacy of reasons - Where no reasons given - clearly inadequate - error of law established PRACTICE AND PROCEDURE - No reasons for decision - Necessity to determine identified issues - Appellate court not to be left to speculate whether an issue has been determined and reasons why judgment entered

STATUTORY INTERPRETATION - Meaning of staying overnight - Whether void for uncertainty - Question of law alone - Construction of penal provisions. LOCAL GOVERNMENT - Power to erect notices prohibiting conduct in public places

CORPORATIONS - winding up - winding up in insolvency - application to set aside two statutory demands - where the judgment debt on which each demand was founded was the subject of a pending appeal - the Court will at least ordinarily require either that a stay have been granted, or that the moneys be paid into Court pending the outcome of the appeal - originating process dismissed

PROCEDURE - application for vexatious proceedings order under s 8 Vexatious Proceedings Act - 31 proceedings relied upon by Attorney General - whether all vexatious - whether defendant has frequently instituted or conducted vexatious proceedings - whether Vexatious Proceedings Act applies to a person governed by the Felons (Civil Proceedings) Act - discretion to make orders sought - where defendant has appeal against conviction for serious indictable offence pending in the Court of Criminal Appeal - whether appropriate to make an order prohibiting the institution of interlocutory applications in that appeal.

CORPORATIONS - external administration - winding up - winding up in insolvency - application to set aside creditor's statutory demand - offsetting claim.

PROCEDURE - costs - general rule costs follow the event - exception to general rule that costs orders will not be made where no hearing on merits of case - where parties have consented that statutory demand should be set aside - where defendant accepts that costs should be paid on ordinary basis - where related proceedings had been commenced - whether order for costs should be stayed. PROCEDURE - costs - departing from the general rule - orders sought for further costs on indemnity basis - where defendant acted unreasonably in serving statutory demand in circumstances where there was a genuine dispute - where demand was withdrawn immediately before hearing - whether order for indemnity costs should be made.

COSTS - indemnity costs - wasted costs - award of lump sum costs

CRIMINAL - jury trial - evidence - prejudicial evidence inadvertently led - application to discharge jury - whether prejudice capable of being cured by an appropriate jury direction

COSTS - general rule that costs follow the event - whether uncertainty from the making of the legislative scheme in question in the proceedings may be misconduct relating to the litigation or the circumstances leading up to the litigation sufficient to deprive the successful defendants of their costs - whether defendants' Defence lacked sufficient completeness to deprive the defendants the benefit of an award of costs.

EVIDENCE - client legal privilege - loss of privilege - whether for purposes of s121(1) Evidence Act 1995 deceased person is "a client or party who has died" EVIDENCE - client legal privilege - loss of privilege - whether for purposes of s122(2) Evidence Act 1995 client or party acted inconsistently with objecting to disclosure of draft legal advice - advice referred to in evidence - whether for the purposes of s122(3) Evidence Act 1995 client or party knowingly and voluntarily disclosed the substance of draft legal advice - content of advice not referred to

PRACTICE AND PROCEDURE - Motion to set aside default judgment - Whether satisfactory explanation for delay - Whether arguable defence on merits - Applicable principles considered - Uniform Civil Procedure Rules 2005, r 36.16.

GUARDIANSHIP - Guardianship Tribunal - Orders for revocation of appointment of enduring guardian and for appointment of a guardian - Appeal to court, limited to questions of law - Appeal dismissed

CRIMINAL LAW - sentence appeal - two counts of misconduct in public office - two counts of giving false evidence to Police Integrity Commission pursuant to s 107(1) of the Police Integrity Commission Act 1996 - applicant's offending related to her employment as a police officer - applicant accessed police database on numerous occasions without authority - accesses related to associates of the applicant - applicant advised associates of the results of her accesses - applicant created false intelligence reports in order to mask her unauthorised accesses - applicant failed to advise police of admissions made to her by her associates in respect of their involvement in stealing a vehicle - at sentence hearing applicant gave evidence in relation to the order of search terms used by her in unauthorised accesses which was contradicted by other independent evidence - sentencing judge satisfied beyond reasonable doubt applicant deliberately lied - at sentence hearing Crown did not oppose imposition of an Intensive Correction Order - sentencing judge not bound by any Crown concessions and retains overriding obligation to impose sentence that reflects overall criminality of the offending - sentencing judge gave careful consideration to the relevant objective and subjective circumstances of the offending in respect of each count - alleged failure by sentencing judge to take into account likelihood applicant would serve sentence in protective custody - conditions of custody not considered at sentence hearing with no evidence led by applicant in that respect - no basis for granting of leave to adduce fresh evidence as to applicant's condition of custody - alleged failure to properly take into account applicant's mental health issues - sentencing judge noted applicant's mental health issues contributed to commission of the offences - applicant had full appreciation of the seriousness of her conduct thereby reducing weight given to her mental health issues - appeal dismissed

CRIMINAL LAW - sentencing - appeal against sentence - possession of unauthorised firearm - no question of principle - appeal dismissed.

PRACTICE AND PROCEDURE - interlocutory application - vacation of hearing date - whether need to amend notice of appeal - unavailability of applicants' support person - whether need to take further steps to establish the competency of the appeal - consequence of late application PRACTICE AND PROCEDURE - interlocutory application - application for referral for pro bono legal assistance - applicants lacking means to obtain legal assistance - attempts to obtain legal aid - proceedings largely turning on factual issues - consequence of late application - Uniform Civil Procedure Rules 2005 (NSW), r 7.36

PRACTICE - default judgment - setting aside default judgment - where appellant member of respondent bank - where respondent had policy which permitted cheques to be cashed on members' accounts without clearance or enquiry - where appellant allegedly coerced by threats from bikie gang to withdraw money from his account using worthless cheque and give money to gang - where cheque dishonoured and appellant's account overdrawn - where respondent filed statement of claim claiming money due to it from appellant on accounts stated and obtained default judgment to recover amount of cheque from appellant - where appellant sought order setting aside default judgment - where primary judge refused to set aside default judgment - whether primary judge should have exercised discretion to set aside default judgment - whether appellant has arguable defence to respondent's claim CONTRACT - account stated - nature of account stated - whether can found a cause of action where underlying transaction void CONTRACT - avoidance of contract for duress and fraud - whether duress of third party or fraud effected by third party can be relied on by victim to avoid a contract as against party with no actual or constructive knowledge of duress or fraud CONTRACT - unjust contract - whether respondent's policy permitting cheques to be cashed on members' accounts without clearance or enquiry arguably an "unjust contract" - s 7 Contracts Review Act 1980 (NSW) PRACTICE AND PROCEDURE - default judgment - setting aside default judgment - where appellant did not challenge default judgment for almost three years - whether delay in making application to set aside default judgment warrants refusing leave to appeal

WILLS, PROBATE AND ADMINISTRATION - Whether Summons for taking accounts and for commission should be dealt with by Registrar before other issues in proceedings

CONTEMPT OF COURT - alleged contempt before the Local Court proceedings - vexatious litigant - application to revoke an adjournment decision - application refused

CRIMINAL LAW - special hearing - counts of aggravated robbery and murder - reasons for verdict

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - adjudication determination - whether plaintiff denied natural justice - whether denial of natural justice material to determination of adjudicator

SUCCESSION - costs and ancillary relief -- cross-claimant found to be de facto wife of the deceased in excess of two years before his death - Succession Act, s 59 relief granted apportioning estate - intestacy -Frisoli v Kourea [2013] NSWSC 1166 - modest estate - substantial funds in a family trust and superannuation fund - argument about the form of consequential relief - whether cross-claimant should be replaced as trustee of the family trust - whether orders should be made for the sale of the principal item of notional estate, a residential property - whether costs of other contested proceedings in relation to the family trust and a contest about a grant of administration of the estate should be recognised as expenses in the administration of the estate or the related family trust before the apportionment of estate - whether special orders should be made for the costs of the family provision proceedings - whether the superannuation funds should be paid to the family trust or direct to the estate - whether certain expenses and outgoings in relation to the residential property may be deducted from its sale proceeds before apportioning the estate - whether the value of certain chattels should be credited against the aliquot share of the estate awarded to one beneficiary.

TAXES AND DUTIES - land tax - exemptions

GUARANTEE AND INDEMNITY - enforcement of guarantees - whether bank entitled to judgment in accordance with guarantees - whether bank induced party to enter guarantee by misleading or deceptive conduct - whether bank's conduct was unconscionable - interpreting statutory unconscionability - Sections 12CB and 12CC of the Australian Securities and Investment Commission Act 2001 (Cth)

ARBITRATION - conduct of the arbitration proceedings - stay of arbitration proceedings - application for stay of proceedings pending appointment of trustee where trust is alleged to be interested in arbitration - held, trust not interested in arbitration - application dismissed PROCEDURE - Supreme Court procedure - interlocutory application - whether application for stay of arbitration may be brought by motion in proceedings

JUDGMENTS & ORDERS - Judgments - Summary judgment - Requirements for summary judgment - Whether applicant demonstrated the proceedings had requisite high degree of certainty of outcome PROCEDURE - costs - general rule that costs follow the event

PRACTICE AND PROCEDURE - Registrar - Review of Registrar's decision - Court's reluctance to interfere with case management timetabling orders - Uniform Civil Procedure Rules 2005, r. 49.19

CONTEMPT OF COURT - alleged contempt before the Local Court proceedings - vexatious litigant - application for further adjournment - no proper basis for adjournment - adjournment refused

CONTEMPT OF COURT - alleged contempt before the Local Court proceedings - vexatious litigant - application for further adjournment - adjournment refused

PROCEDURE - medical negligence -representation by tutor of legally incapacitated person - application for stay pending removal of tutor - Uniform Civil Procedure Rules 2005 7.18 - impecunious tutor - whether tutor's financial status a prerequisite for office - distinction between responsibility for costs and financial capacity to meet adverse costs order