Cases and authorities

TORTS conversion - landlord's agent/defendant evicts tenant from Sydney city apartment - tenant alleges valuable items of property left behind in apartment at eviction - landlord's agent removes contents of apartment into storage - tenants/plaintiffs allege items missing or damaged - whether all or any of the goods were in the apartment at the time of eviction - whether the plaintiffs/tenants owned the goods alleged - whether the landlord's agent converted the goods.

CORPORATIONS - membership, rights and remedies - membership of company - where company's original register of members could not be located and no evidence of a valid transfer of share - whether plaintiff is a shareholder of the company - whether defendants are estopped from asserting that plaintiff is not a shareholder of the company - whether plaintiff had been validly appointed director of the company - whether company's current register of members should be corrected under Corporations Act 2001 (Cth) s 175. CORPORATIONS - management and administration - application for inspection of or access to financial records, registers, documents and other information of company under Corporations Act 2001 (Cth) s 198F - whether requirements for order are satisfied.

ADMINISTRATIVE LAW - judicial review - review certificate issued by a Review Panel pursuant to the Motor Accidents Compensation Act 1999 - degree of permanent impairment of right shoulder and low back - whether causation established - whether proper test for causation applied - whether adequate reasons provided by Review Panel - whether certificate void for legal unreasonableness - whether Review Panel determined the "medical dispute" before it - whether the Review Panel took into account all relevant considerations - whether Review Panel denied the plaintiff procedural fairness - certificate quashed - matter remitted to a Medical Assessor Review Panel for determination according to law.

PRACTICE AND PROCEDURE - service of statement of claim - where statement of claim served after time for service expired - application made for extension of time for service - whether good reasons had been advanced for an extension - whether explanation advanced for the failure to make the application prior to the expiry of the statement of claim PRACTICE AND PROCEDURE - service of statement of claim - where statement of claim served after time for service expired - application made for extension of time for service - where defendant filed a notice of appearance following service out of time - whether filing of notice of appearance constituted a waiver of objection to service - whether service deemed to have been effected

MENTAL HEALTH - person charged unfit to stand trial - person found guilty of charges on limited evidence in special hearing - trial judge nominated limiting term - Mental Health Review Tribunal determined offender suffering from mental illness - discretion whether to order detention in mental health facility or other place - whether discretion extends to power to make no order -whether legislative scheme consistent with power of court to release person - Mental Health (Forensic Provisions) Act 1990 (NSW), s 27 MENTAL HEALTH - person charged unfit to stand trial - person found guilty of charges on limited evidence - trial judge nominated limiting term - person referred to Mental Health Review Tribunal to determine whether suffering from mental illness - whether court can permit conditional release pending determination - person released on bail - whether question appropriate for determination - bail order expired - inutility in deciding question - Mental Health (Forensic Provisions) Act 1990 (NSW), s 24 WORDS AND PHRASES - "may" - whether requires choice between two options or permits non-exercise of power - Mental Health (Forensic Provisions) Act 1990 (NSW), s 27

CORPORATIONS - winding up - winding up in insolvency - setting aside statutory demand - whether there is a bona fide dispute as to debt claimed - whether demand is defective or misleading AGENCY - subagency - liability of subagent is to agent, not principal

PRACTICE AND PROCEDURE - claim for damages, indemnity and contribution arising from helicopter accident - three sets of proceedings heard together - consequential orders after principal judgment - contest as to costs as between two parties in proceedings - whether single costs order should be made - just apportionment of costs - stay pending appeal

TORTS - Negligence - Causation - Pre-existing injuries EVIDENCE - Credibility - Video Surveillance - disclosure to plaintiff

ADMINISTRATIVE LAW - judicial review- where plaintiff injured in a motor vehicle accident - where her injuries assessed by medical assessor - where assessor issued certificate containing error - where application made to for referral of assessment to review panel on the basis of the assessment having been incorrect in a material respect - where simultaneous application to correct the error in the certificate - whether approach adopted by decision maker in respect of either application was erroneous in law

ESTOPPEL - Equitable estoppel - Proprietary estoppel - not established

CRIMINAL LAW - sentencing -appeal against sentence -sentence was manifestly excessive - appeal allowed

CONTRACTS - general contractual principles - construction and interpretation of contracts - Indemnity clause - Obligation to indemnify - Obligation on Contractor to indemnify Principal - Insurance clause - Contractor's obligation to insure Principal and the Contractor's Subcontractors against the respective liabilities of each of those parties to each other and to third parties; GUARANTEE AND INDEMNITY - indemnities - construction of contract - Obligation to indemnify - Obligation on Contractor to indemnify Principal for failure to insure the Principal - Obligation imposed in respect of all liabilities of the Contractor and Principal and Contractor's Subcontractors to each other and to third parties; INSURANCE - Third-party liability insurance - In general

APPEAL - defamation proceedings before judge alone - challenge to fact-finding - finding as to state of mind of publisher - advantage of trial judge hearing evidence - objective factors tending both ways - no basis for interference DEFAMATION - defences - qualified privilege - whether moral or legal duty to publish - whether recipients had an interest in receiving communications - whether publication motivated by malice - honest opinion - whether conduct reasonable - whether opinion based on facts DAMAGES - general and special damages - whether general damages manifestly excessive - whether special damages proved - whether aggravated damages appropriate

CORPORATIONS - winding up - orders sought for voluntary winding up to be terminated - where judgment had been made for winding up to be stayed - where separate proceedings had been commenced for equitable contribution - whether stay of winding up should be continued pending determination of separate proceedings - whether winding up should be terminated. PROCEDURE - costs - application for costs order against non-parties - where non-parties funded the conduct of proceedings and had direct interest in outcome of proceedings - where there existed an indemnity clause under the funding agreement - whether it is just for non-parties to pay the liquidator costs ordered against liquidator in proceedings by way of indemnity - whether further costs should be payable by liquidator or non-parties.

APPEAL - civil - local court decision - whether Magistrate erred in adjourning proceedings - whether erroneous interpretation of s 31.19 Uniform Civil Procedure Rules 2005 - whether costs order ought not have been made - whether Magistrate discharged obligation to give reasons

PROCEDURE - costs - general rule - whether costs should follow the event - whether plaintiffs should be ordered to pay more than one set of costs for defendants with the same interests - whether defendants had the same interests - part of the costs to be paid on the ordinary basis - plaintiff not required to pay part of costs

CORPORATIONS - provisional liquidation - derivative action - application for grant of leave under Court's inherent jurisdiction to continue and prosecute existing proceedings in the name of company in provisional liquidation - whether liquidator and company in provisional liquidation are financially protected by adequate means of indemnity.

PROCEDURE - judgment and orders - whether separate judgments on claim and cross claim or single judgment for the balance COSTS - who achieved substantial success - whether contractual obligation to pay indemnity costs enlivened COSTS - exceptions to the general rule that costs follow the event - multiple parties - Bullock orders - Sanderson orders COSTS - assessment - gross sum costs order

FAMILY LAW AND CHILD WELFARE - Children - Guardianship - Financial management - Protective jurisdiction - Private Manager

PROCEDURE - requirement of pleadings - whether amended statement of claim should be struck out - whether amended statement of claim discloses reasonable cause of action - whether amended statement of claim is an abuse of process

ADMINISTRATIVE LAW - judicial review - stay - review of decision of industrial tribunal - whether decision should be stayed pending review for alleged jurisdictional error PRACTICE AND PROCEDURE - interlocutory application for stay - relevant considerations - nature of dispute in industrial matter - potential prejudice to parties and employees entitled to benefits of award - difficulty in recovering payments once made - conduct of applicant in delaying making review application

CRIME - sentence - murder - intention to kill formed quickly and in a state of rage - no planning or premeditation - no remorse - impossibility of assessing likelihood of re-offending or prospects of rehabilitation in light of offender's refusal to accept responsibility for his offending - evidence of good character - whether of any weight where referees blind to or ignorant of any wrongdoing by offender - whether high level of media attention a relevant mitigating factor

CORPORATIONS - examinations relating to insolvency - procedural matters - application to discharge examination summonses – whether abuse of process – meaning of “forensic advantage not otherwise available” in this context

PROCEDURE - civil - interlocutory issues - application for restraining order and ancillary orders - brought ex parte - appropriateness of proceeding ex parte - no danger of dispersal of funds sought to be restrained - giving of notice to possible interested persons as an alternative to proceeding ex parte

AMENDMENT - INSURANCE - indemnity - Insurance Act 1973 (Cth) - insurance business - insurance arrangements - Solicitors Mutual Indemnity Fund - delay in seeking amendment - amendment refused.

PROCEDURE - motion filed by defendants for contempt of court - whether the motion complies with the Supreme Court Rules, Part 55, Rule 7 - directions given - no question of principle.

PROCEDURE - application for vexatious proceedings order pursuant to s 8 of the Vexatious Proceedings Act 2008 - whether proceedings are vexatious - whether proceedings were instituted or conducted frequently - repeated re-litigation of issues determined against the defendant

PRACTICE AND PROCEDURE - interlocutory application - stay of judgment pending application for special leave to appeal to the High Court - need for exceptional circumstances - offer to pay judgment debt into court or a jointly managed account - financial capacity of respondent to repay if appeal successful - merit of application to High Court - element of public importance

PRACTICE AND PROCEDURE - interlocutory application - application for a stay of execution of writ of possession pending appeal - prejudice to applicant if writ executed and appeal succeeds - prospects of success on appeal - prejudice to respondent if appeal fails - co-owner and co-debtor not party to application

PROCEDURE - application for security for costs of appeal - whether appellants had shown security would stultify appeal - whether respondents had shown appeal had no real prospects of success - no security ordered PROCEDURE - application for stay of execution - common ground appellants unable to satisfy judgment debt - no relevant prejudice - stay of execution ordered

APPEAL AND NEW TRIAL - refusal of defendant's amendment application at beginning of trial - judgment for plaintiff - appeal on ground that amendment wrongly disallowed - PROCEDURE - application for leave to amend defence - application made at a very late stage - grounds relied on known to defendant for a long time - no satisfactory explanation of delay - whether leave to amend rightly refused CONTRACTS - contract between individuals concerning business conducted through entities controlled by them - whether promises by the individuals as distinct from their entities affected by want of consideration or lack of privity - where part of document expressed to be "non-binding" - whether that part had contractual force

CORPORATIONS - external administration - winding up - liquidators' applications - application for directions - where company is trustee of trading trust and has no other function - whether liquidators remuneration recoverable from trust property

CRIMINAL - jury trial - relationship between anticipated witness and juror - application to discharge jury - whether possible to discharge juror without the balance of the jurors remaining with knowledge of the relationship

CORPORATIONS - external administration - winding up - winding up in insolvency - order sought for winding up of defendant - where creditor's statutory demand served in Victoria but specified address for service in New South Wales - whether statutory demand so defective as to be a nullity - whether requirements for winding up in insolvency satisfied

CORPORATIONS - application for fixing of remuneration for acting as administrators - an administrator may apply to the court for remuneration under s 449E(1)(c) notwithstanding that the administration has come to an end when the application is made

CRIMINAL LAW - Evidence of sexual reputation and experience - whether evidence admissible

JURY - Application by juror to be discharged following empanelment - first day of trial estimated to be of 4 weeks duration - whether jury should be discharged in its entirety

PROCEDURE - order of Registrar - review by the Court pursuant to UCPR r 49.19 - principles - stay of proceedings on substantially the same cause of action as earlier proceedings that have been dismissed with an order that the plaintiff pay the costs of those proceedings until those costs have been paid - whether in the Court's discretion a stay should not be ordered notwithstanding that costs not paid

PROCEDURE - costs - application for preliminary discovery under UCPR rule 5.4 - whether defendant conducted defence in an adversarial manner - defendant's costs of complying with order

EQUITY - trusts and trustees - plaintiff responsible entity of registered scheme - purpose of scheme cannot be accomplished - notice given to unit holders under s 601NC Corporations Act - unit holders resolve that registered scheme be wound up - doubt about validity of proxy - unit holder declines to execute release under constitution - complaint to ASIC - application for judicial advice that plaintiff may wind up registered scheme and distribute assets

INSURANCE - Insurance Policy - Non-disclosure and misrepresentation - Whether insurer entitled to reduce liability to nil on basis of non-fraudulent misrepresentation - whether proved on balance of probabilities that insurer would not have issued a policy - Application of Insurance Contracts Act 1984 (Cth), s 28(3)

MENTAL HEALTH - Forensic Patient - Mental Health Review Tribunal - Review of the case of a forensic patient - Application for leave to appeal from Tribunal determination - Application limited to question of law - Detention, care and treatment of forensic patient in mental health facility - Forced medication by depot injection.

CORPORATIONS - winding up - winding up in insolvency - uncommercial transactions - Corporations Act 2001 (Cth) s 588FB - whether transfer of shares was an uncommercial transaction - Corporations Act 2001 (Cth) ss 588FC and 588FE.

CRIMINAL LAW - Crown appeal - sentence imposed contrary to law - non-parole period - released to parole without serving minimum period in custody - appeal allowed - matter referred to District Court for re-sentence

PRACTICE AND PROCEDURE - interlocutory application - review of direction under Supreme Court Act 1970, s 46(4) - whether hearing dates for appeal should be vacated - alleged non-compliance by Registry with UCPR, r 51.24 dismissed - inadequacy of material available for hearing dates

COSTS - costs of the appeal - whether the costs order should overall reflect the respective successes of the parties

TAXES AND DUTIES - stamp duties - assessment and amount payable including fines - whether a deed of variation extending the time for payment of principal and capitalised interest was an advance under s 206(a)(iii) of the Duties Act

PROCEDURE - civil - interlocutory issues - directions - application for adjournment

PROCEDURE - civil - pleadings - summons - dismissal COSTS - general rule that costs follow event

PROCEDURE - civil - jurisdiction - Federal - order proceedings brought be determined by Supreme Court of NSW; application for - Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth); s 6(3) - vested in State court