Cases and authorities

CORPORATIONS - voluntary administration - deeds of company arrangement - application under s 600A to review resolution - whether proxy vote was effectively cast - whether resolution prejudicial to interests of opposing shareholders

CRIMINAL LAW - application for inquiry into sentence following conviction - Pt 7, Crimes (Appeal and Review) Act 2001 - whether asserted erroneous disparity between applicant's sentence and sentence subsequently imposed on co-offender can found 'a doubt or question' pursuant to s 79(2)

EVIDENCE - tendency evidence - whether evidence relied upon as tendency evidence had significant probative value - whether other inferences relied upon by the Crown reasonably open

COSTS - Security for costs - Summary dismissal of motion where applicant became unrepresented

COSTS - judgment previously given for the plaintiffs - plaintiffs ordered to provide to the Court a calculation of interests and costs - plaintiffs no longer wish to seek orders for interests and costs - judgment entered.

TORTS - professional negligence - causation - where appellant retained respondent solicitor on purchase of commercial property - where appellant paid deposit on property to vendor - where appellant was subsequently advised that proposed redevelopment of property could not proceed without further council approval and increased building costs - where appellant unsuccessfully sought to postpone settlement and negotiate reduced price or compensation with vendor - where appellant failed to complete contract following service of a notice to complete and vendor terminated contract - where respondent negligently failed to prove timely advice to the appellant following service of the notice to complete that completion of the contract was the "safest option" - whether respondent's negligence caused the appellant's loss - whether appellant would have completed the contract even if the respondent had provided him timely advice

SUCCESSION - family provision and maintenance - whether the allocation of the residue of the estate to the applicant was a failure by testator to make sufficient provision - diminishment of the residue by decisions benefiting the respondents. SUCCESSION - family provision and maintenance - distribution of estate - whether an order for property to be designated as notional estate can be made regardless of whether that property is property into which the distributed asset can be traced - whether a notional estate order ought not be made on discretionary grounds - relevance of the executors distributing the estate, including to themselves, within the time in which an application may be made for an order for family provision to matters the Court is required to consider pursuant to the Succession Act 2006, s 87.

JUDGMENTS - foreign judgment - High Court of Solomon Islands judgment registered pursuant to Foreign Judgments Act 1991 (Cth) - application to set aside registration - whether judgment was a "money judgment" within the meaning of the Act. JUDGMENTS - foreign judgment - application to set aside registration - whether the foreign court had jurisdiction. JUDGMENTS - foreign judgment - application to set aside registration - whether there was a prior final and conclusive judgment. JUDGMENTS - foreign judgment - application to set aside registration - setting aside foreign judgment for fraud - relevant principles - whether the foreign judgment had been obtained as a result of fraud.

EVIDENCE - damages claim for personal injury - reports of expert witnesses on liability - opinions expressed on a variety of issues including the respective responsibilities of each of the Defendants - whether reports admissible - reports rejected

ADMINISTRATIVE LAW - judicial review; application for - NSW Civil and Administrative Tribunal decision - whether court should exercise its discretion under Supreme Court Act; s 69 COSTS - whether each party pay own costs

CORPORATIONS - scheme of arrangement - judicial advice - transaction effecting internalisation of management of two listed managed investment schemes - whether scheme adequately explained to those who have a financial interest in it -whether any obvious flaw in the scheme - both requirements satisfied

PROCEDURE - costs - recovery of costs - whether tutor may be a "party" for the purposes of making costs orders - whether costs orders may be made between tutor and person under legal incapacity PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - whether order for indemnity costs appropriate where proceedings drawn out unnecessarily PROCEDURE - costs - set-off - whether costs order against tutor can be set off against costs order in favour of tutor made when tutor was conducting litigation on person under legal incapacity's behalf

PROPERTY - Theft - Stolen money - Remedies at law and in equity - Action for damages in conversion and for moneys had and received - Suit for Constructive Trust in Equity - Need for consistency - Interests of Justice REMEDY - Remedies based on compensation for Plaintiff's loss or accounting for wrongdoer's gain - Consistency of remedy required - Interests of Justice EQUITY - Trusts and trustees - Constructive trust TORTS - Trover and Detinue - Action for conversion - Remedies - Waiver of Tort - Damages - Money had and received

EVIDENCE - photograph - depiction of the body of the deceased in situ following death caused by fire - Crown application to tender photograph - evidentiary value - whether inflammatory or prejudicial - whether fact in issue capable of proof by other means - tender rejected

CRIMINAL LAW - CONVICTION APPEAL - doing an act intending to pervert the course of justice contrary to s319 Crimes Act 1900 - law clerk advising witness to lie to police - whether verdict was unreasonable - detailed analysis of evidence necessary - conceded inconsistencies in Crown case - whether necessary intent established by evidence - whether open to jury to be satisfied of guilt beyond reasonable doubt - not sufficient to identify material tending against guilt of accused - inconsistencies in evidence did not undermine Crown case - advantage of jury in assessing witnesses - conviction appeal dismissed - SENTENCE APPEAL - incorrect factual finding by sentencing judge - whether any potential effect on sentence - whether extra curial punishment taken into account - assessment of objective seriousness - whether sentence of fulltime imprisonment the only appropriate sentence - whether sentence manifestly excessive - appeal dismissed.

PROCEDURE - civil - stay writ of possession; application to - previous application to set aside default judgment unsuccessful - whether any proper basis to order a stay on the execution of a writ of possession

EVIDENCE - damages claim for personal injury - claim for client legal privilege concerning earlier statements of witness - whether privilege waived - claim for privilege upheld

PROCEDURE - civil - interlocutory issues - vacate hearing; application to - defer delivery of judgment on application to vacate hearing; application to - whether in the interests of justice

PROCEDURE - civil - summary disposal - summary judgment; application for - whether summary judgment be entered - Uniform Civil Procedure Rules 2005; r 13.1 COSTS - general rule that costs follow event

CIVIL - Late adjournment - Fault not determined - Interests of justice require adjournment - no point of principle

PROCEDURE - judgments and orders - amending, varying and setting aside order appointing tutor - whether person in relation to whom a tutor has been appointed may apply themselves to have the tutor removed - whether person is under legal incapacity - meaning of "person under legal incapacity" - whether person is capable of understanding proceedings PROCEDURE - judgments and orders - amending, varying and setting aside order - whether stay of order to allow for mediation

CRIMINAL - evidence - ss 135, 137 Evidence Act 1995 - discretion to admit or exclude evidence - whether evidence unfairly prejudicial - whether prejudicial nature of evidence outweighed by probative value

LANDLORD AND TENANT - notice to vacate - landlord seeks possession - tenant files proceedings in the Civil and Administrative Tribunal under Retail Leases Act 1994 - whether Court satisfied that mediation under Part 8 of the Retail Leases Act would be unlikely to be successful - whether proceedings should be transferred to the Civil and Administrative Tribunal - whether agreement to extend notice period - claim that notice period was unconscionable - Retail Leases Act, section 44 - whether statutory extension of lease - whether s 129 of the Conveyancing Act 1919 operates upon landlord's claim - relief - costs.

DEFAMATION - form of imputations - whether capable of being conveyed - no question of principle.

FREEZING ORDER - deliberate non-compliance - arrest warrant issued - defendant arrested and detained in custody - whether detention in custody should continue until examination commencing on 6/2/2014 - no point of principle

PRACTICE AND PROCEDURE - costs - general rule costs follow the event - whether costs should be apportioned when plaintiff and defendant each successful on some issues - whether costs should be assessed on indemnity basis - whether costs order affected by untruthful acts by party - each party to bear their own costs PRACTICE AND PROCEDURE - separate hearing - damages - whether assessment of damages requires a separate hearing - whether there is insufficient evidence to determine market price of shares - whether the Court should assess damages on the available evidence - whether the costs of adducing further evidence outweighs the amount of damages sought

COSTS - discontinuance - whether to "otherwise order" - where proceedings were necessitated by the conduct of the defendants, but further prosecution rendered inutile by subsequent work.

DEFAMATION - limitation period - power of amendment - whether new cause of action arises out of the same or substantially the same facts as existing cause of action - s 65(2)(c) Civil Procedure Act.

DEFAMATIONS - imputations - whether capable of being conveyed - whether capable of being defamatory - no question of principle.

CORPORATIONS - supervision - courts - application for an order under s 1322(4)(d) of the Corporations Act 2001 (Cth) extending the time for a company to give notice of special resolution in accordance with s 461(2). CORPORATIONS - winding up - applications for winding up by court under s 461(1)(a) of Corporations Act 2001 (Cth) - whether requirements for order are satisfied. CORPORATIONS - winding up - application for appointment of liquidator - whether conflict of interest may have arisen if receivers of holding company were appointed as liquidators of subsidiary.

STATUTORY INTERPRETATION - the plaintiffs hold water access licences under Water Management Act 2000 - the plaintiffs allege that their water entitlements under licences were incorrectly calculated pursuant to a formula in a Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003 - whether properties to which licences relate "amalgamated" - whether correction of the calculation is possible if the volume of each entitlement is listed in a schedule to Water Management (General) Regulation 2004 - whether list of entitlements in that schedule is a rebuttable presumption subject to correct application of calculation formula prescribed by Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003, clause 25C.

COSTS - discontinuance of proceedings - discontinuing party to pay costs unless court orders otherwise - UCPR, r 42.19

DEFAMATION - transfer to District Court - no question of principle.

PRACTICE AND PROCEDURE - claim for damages for personal injury - application by Plaintiff to reopen case to call further witness - discretionary considerations - application allowed

PROCEDURE - civil - judgments and orders - reopening hearing; application for - set aside orders; application to - whether basis for setting aside judgment under r 36.15(1) or r 36.16 Uniform Civil Procedure Rules 2005 - whether in the interests of justice - whether uphold principle of finality of litigation PROCEDURE - civil - judgments and orders - set aside costs orders; application to - whether stay should be ordered where Notice of Intention to Appeal has been made - matter of discretion - whether in the interests of justice

CORPORATIONS - external administration - where administrator inadvertently failed to be present at time appointed for second creditors' meeting - where purported delegate adjourned the meeting so as to secure the administrator's presence - where meeting then resolved that the company be wound up - where order sought validating the appointment of a delegate to chair the meeting, its adjournment, and the subsequent resolution of the second meeting of the creditors - where no prejudice occasioned to the plaintiff or the supporting creditor if the order were made - order made

ADMINISTRATIVE LAW - Housing Act - decision to cancel rental rebate - whether power to make decision lawfully exercised - jurisdictional requirement to conduct an investigation under section 58 - whether satisfied

INDUSTRIAL ACCIDENT - negligence - personal injuries - where system of work required plaintiff to manoeuvre heavy jacks in confined spaces - repetitive heavy lifting - back injury - pre-existing degenerative spinal condition - whether breach of duty - CROSS-CLAIMS - concurrent wrongdoers - contribution between employer and co-contractor - CONTRIBUTORY NEGLIGENCE - whether plaintiff guilty of contributory negligence - LIMITATION OF ACTIONS - whether amended statement of claim filed in excess of three years of the date upon which plaintiff's cause of action against co-contractor discoverable

COSTS - whether Allied entitled to interest on the full amount of the statutory indemnity in light of a finding of 50 percent liability to Mr Grima for the purposes of s 151Z(2)(a) of the Workers Compensation Act - whether Allied entitled to costs on its cross-claim for the statutory indemnity beyond nominal costs such as filing fees - whether or not RFI should be limited to the payment of only 50 percent of the costs payable by it to Mr Grima - whether Allied is entitled to an order for costs on an indemnity basis thrown away or occasioned by reason of non-attendance of RFI's witness

SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is a close friend of the deceased - Deceased left Will - No provision for the Plaintiff - Explanation given - Small estate and notional estate - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made - Property to be designated as notional estate - Order for lump sum

APPEAL - practice and procedure - no issue of principle

COSTS - where order sought that costs be payable on an indemnity basis - where all costs in the nature of disbursements - unnecessary to resolve question. COSTS - where order sought that plaintiff's director be personally liable for costs - no sufficient basis for such order.

CRIMINAL LAW - Crimes (High Risk Offenders) Act 2006 - high risk sex offender extended supervision order - not repeat offender - dependence on deviant pornography - persistent rape fantasies - diagnoses of various psychotic disorders - unacceptable risk to the community - supervision order for a period of 2 years 6 months

PROCEDURE - Interlocutory orders -Injunctions - whether to grant interlocutory injunctive relief to restrain alleged misuse of confidential information - whether information confidential EMPLOYMENT LAW - the relationship of employer and employee - whether employee after termination of employment may solicit customers of former employer PROCEDURE - costs - interlocutory proceedings - indemnity costs

PROCEDURE - Interlocutory orders - Injunctions - whether to grant interlocutory injunctive relief to restrain enforcement of adjudication determination BUILDING AND CONSTRUCTION - building contracts - remuneration - statutory regulation of entitlement to and recovery of progress payments - requirements of the Building and Construction Industry Security of Payment Act 1999 (NSW), s 13. BUILDING AND CONSTRUCTION - building contracts - remuneration - whether ground for restraint of adjudication determination based upon risk of insolvency

PROCEDURE - Interlocutory orders - Injunctions - whether grounds to grant interlocutory injunctive relief freezing amount of proceeds of sale

PROCEDURE - Interlocutory orders - Injunctions - whether to grant interlocutory injunctive relief to restrain enforcement of adjudication determination BUILDING AND CONSTRUCTION - building contracts - remuneration - statutory regulation of entitlement to and recovery of progress payments - requirements of the Building and Construction Industry Security of Payment Act 1999 (NSW), s 13. BUILDING AND CONSTRUCTION - building contracts - remuneration - whether ground for restraint of adjudication determination based upon risk of insolvency

CORPORATIONS - Management and administration of registered foreign company - meetings - interlocutory relief - balance of convenience - issues of comity.

PROCEDURE - Interlocutory orders -Caveats and injunctions - whether grounds to grant injunctive relief freezing amount of proceeds of sale REAL PROPERTY - caveats - extension -whether appropriate to extend caveat where defendant entered into sale with third party PROCEDURE - Application of Civil Procedure Act 2005 (NSW), s 56