Cases and authorities

APPEAL - appeal from Local Court decision - costs - costs order - applicable principle - indemnity costs - applicable principle - Section 190 of the Evidence Act 1995 - no error established - orders

TRUSTS - Settlement made in Port Moresby - All beneficiaries in NSW - What is proper law of trust - If PNG what jurisdiction has NSW Supreme Court to make orders affecting the trust TRUSTS - Advantageous dealings - Whether and if so to what extent can order under s 81 of Trustee Act 1925 alter beneficial interests TRUSTS - Deed - Amendment - Where power to vary trust in trust deed - Whether power exercisable to alter beneficiaries' entitlements - Whether court has power to amend deed - Trustee Act 1925, s 81 PRIVATE INTERNATIONAL LAW - Jurisdiction - Jurisdiction of NSW Supreme Court where proper law of trust is that of Papua New Guinea

CONTRACTS - building contracts - where contractor retained to provide design and construction management services - whether contractor charged for design work performed by another contractor - no question of principle CONTRACTS - building contracts - where contractor retained to provide design and construction management services - where design defective - no question of principle CONTRACTS - building contracts - where contract required contractor to call for tenders for certain works - whether requirement met - falls for decision on particular facts BUILDING & CONSTRUCTION - progress claims - whether contractor used an inappropriate conversion rate to convert cubic metres to tonnes - whether contractor certified for a greater volume of fill than was delivered - whether the plaintiff was charged for fill that was offered free of charge and not delivered CONTRACTS - building contracts - where contractor was required to manage and supervise other contractor's works - whether steps taken to supervise works appropriate in the circumstances DAMAGES - rectification - costs of rectification - insufficient evidence to determine the extent and cost of rectification - whether those questions should be referred out DAMAGES - building contracts - defective works - damages not limited to diminution of value in property - damages ordinarily calculated as a cost of making work conform to specifications - limitation that remedial work must be necessary to produce conformity with the specifications and reasonable in the circumstances

TORTS - assessment of damages -repeated and prolonged sexual interference with child by biological father - psychiatric and psychological harm.

EQUITY - claim for damages for breach of fiduciary duty and obligation of confidence - solicitor and former client - fiduciary duty - scope and duration - before and after termination of retainer - obligation of confidence - whether there was a breach of confidence - whether solicitor misused confidential information of former client - circumstances in which information was imparted - limited retainer from former client - accepted that solicitor also retained by a different client with a potentially competing claim - information received to advance common objective of both clients to maximise recovery - information derived not exclusive to former client - whether allegations went outside the pleaded case. ESTOPPEL - res judicata - judgments by consent - interlocutory orders - whether cause of action sued on in these proceedings merged into a judgment already entered - issue estoppel - whether orders necessarily decided the defendant breached his fiduciary duty or obligation of confidence. TORT - duty of care - conspiracy by lawful and unlawful means. COSTS - solicitor/client costs of previous proceedings - whether recoverable - whether estoppel arises - whether the issue of costs of previous proceedings was determined by costs orders made in those proceedings.

TORTS - negligence - police - police highway patrol - motorcade - Eastern Distributor - boomgate - how did the boomgate come to be lowered - were instructions given to lower the boomgate - was the plaintiff's speed excessive - duty of care - breach of duty - causation - contributory negligence - apportionment - Motor Accidents Compensation Act 1999 - damages - plaintiff's injuries - vocational reports - occupational therapists - non-economic loss - past and future economic loss - superannuation - out of pocket expenses - future medical expenses - domestic assistance - past care - future care future therapy, driving aids and equipment - orders TORTS - defences - unpleaded defence

PRACTICE AND PROCEDURE - Strike-out application - Statement of claim includes definitions section with pleadings of fact - Embarrassment. RES JUDICATA - Want of prosecution - second suit for same claim - Where first suit brought by plaintiff dismissed for want of prosecution - Whether res judicata where no hearing on the merits - Whether abuse of process.

PRACTICE AND PROCEDURE - Pleadings - Strike-out application - Barnes v Addy claim - Pleading of allegation of "dishonest and fraudulent design"

SPECIFIC PERFORMANCE - intention to create legal relations - existence of contractual consideration - effect and legal consequences of failure to enter into lease as required by purported contract - misleading and deceptive representations - minority oppression claim - refusal of leave to amend application made during trial - VALIDITY OF LEASE - claim for reasonable compensation for use and occupation of property.

DEFAMATION - trial by judge alone - publication by email - limited number of recipients - imputations pleaded related to plaintiff's suitability to be a member of the Police and Community Youth Clubs NSW Ltd - imputations conveyed - imputations defamatory - qualified privilege at common law - established - no malice - statutory qualified privilege - established - substantial truth - partially successful - triviality - rejected - republication in good faith - statement of claim dismissed - plaintiff to pay defendant's costs

EQUITY - trusts and trustees - application to the court for advice and authority - unclaimed monies - Registrar seeks direction from the Court under Uniform Civil Procedure Rules 2005 (NSW) r 41.10 in respect of unclaimed monies held in trust account of the Supreme Court of New South Wales - application of the Unclaimed Money Act 1995 (NSW) to unclaimed bail monies.

PRACTICE AND PROCEDURE - email communications with Judge's chambers - need for consent of all parties

CRIMINAL LAW - serious sex offender - application for interim orders - test to be applied - whether appropriate to make detention order or supervision order

CORPORATIONS - Winding up - Insolvency - Proceeds of contract of reinsurance - Application for orders under Corporations Act 2001 (Cth) s 562A(4) - Whether "just and equitable" to make orders sought.

CORPORATIONS - Winding up - Insolvency - Proceeds of contract of reinsurance - Application for orders under Corporations Act 2001 (Cth) s 562A(4) - Whether "just and equitable" to make orders sought.

CORPORATIONS - winding up - liquidators - orders sought for appointment of liquidators and receivers upon the resignation of an appointed liquidator and receiver - whether Court has jurisdiction to make an order to fill the vacancies arising upon the resignation of a liquidator or receiver - whether where two or more persons appointed as liquidator, the functions or powers of the liquidators may be exercised by one alone - whether the period of lodgement of the liquidator's accounts and statements should be extended.

INJUNCTIONS - assessment of costs under Legal Professional Act - party resident overseas, no substantial assets - settlement moneys available - Mareva injunction issued

CONTRACTS - Construction - Clause reversing onus of proof - Whether clause valid - Whether clause an ouster of court's jurisdiction. EMPLOYMENT - Restraint of trade - Confidential Information - Where plaintiff's evidence lacks specificity - Where confidential information not identified

CRIMINAL LAW - appeal against conviction - supply of commercial quantity of methylamphetamine - fresh evidence as to credibility of a witness - whether identification evidence intentionally influenced - expert evidence

CRIMINAL LAW - sentence appeal - supply indictable quantity of prohibited drug - concurrence of this sentence with balance of parole being served for earlier offence - error in maximum penalty available for offence - whether lesser sentence warranted in law - application for leave to appeal against sentence dismissed.

APPEAL - CRIMINAL LAW - sentence appeal - directions and findings as to provocation - whether error in finding the provocative conduct did not constitute a high degree of provocation - whether error in finding no casual nexus between crime and mental illness - whether error in finding custodial sentence would not be more onerous by reason of mental illness.

CRIMINAL LAW - appeal - offender on trial for murder and affray - acquittal on murder charge - guilty of alternative count of manslaughter - application for leave to appeal against sentence - severity - whether sentencing judge erred in determining facts - no error found - leave to appeal granted - appeal dismissed CRIMINAL LAW - Crown appeal - s 5D Criminal Appeal Act 1912 - whether sentencing judge erred by failing to accumulate the sentences sufficiently - accumulation failed adequately to reflect criminality - whether sentencing judge erred by finding specific deterrence had limited significance - error found - whether sentences manifestly inadequate - error found - appeal allowed - each sentence set aside - offender re-sentenced

CRIMINAL LAW - solicit to murder EVIDENCE - Crown appeal - Criminal Appeal Act 1912, 5F(3A) - controlled operation - Law Enforcement (Controlled Operations) Act 1997 - Authority to conduct controlled operation - nature of controlled activity - undercover police operative - communications with accused recorded pursuant to Authority - whether evidence unlawfully obtained - Evidence Act 1995, s 138 - whether Authority validly granted - whether activity within term of Authority - Code of conduct - evidence not unlawfully obtained - ruling excluding evidence vacated

CRIMINAL LAW - sentence appeal - four counts of obtain financial advantage by false and misleading statement pursuant to s 178BB(1) of the Crimes Act 1900 - one count of giving false evidence to the Police Integrity Commission pursuant to s 107(1) of the Police Integrity Commission Act 1996 - aggregate sentence of 2 years with non-parole period of 1 year imposed - alleged failure by sentencing judge to consider whether sentence other than full-time custody would be appropriate - full-time custody was only sentencing option open to sentencing judge in relation to s 107(1) offence given its seriousness - no requirement for sentencing judge to have expressly addressed the issue of alternatives to a full-time custodial sentence in sentencing for s 107(1) offence together with other offences - alleged error by sentencing judge in finding objective criminality of s 178BB(1) offences was aggravated by the applicant's position as an officer of the Supreme Court as a liquidator - alleged that indicative sentences in respect of the s 178BB(1) offences were manifestly excessive thereby infecting the aggregate sentence imposed with error - objective seriousness and applicant's favourable subjective circumstances in relation to first s 178BB(1) offence committed could not justify the full-time custodial sentence of 9 months indicated - indicative sentence of 9 months' imprisonment for each s 178BB(1) offence manifestly excessive given circumstances of offending and applicant's subjective circumstances - although error established by reason of sentencing judge's findings, no lesser sentence for s 107(1) offence is warranted than that indicated - sentencing judge in error in finding there was a greater obligation on the applicant to not give false sworn evidence than on another offender in a related case (the latter being a police officer) sentenced by another judge for a s 107 offence - despite error, no lesser sentence for s 107(1) offence is warranted than that indicated - applicant re-sentenced

CRIMINAL LAW - Crown appeal - Criminal Appeal Act 1912, s 5F(3A) - accused charged with sexual intercourse without consent - Crimes Act 1900, s 61I - pre-trial evidentiary rulings - Criminal Procedure Act 1986, s 293(4)(a) - evidence of complainant's sexual interest in a man other than accused - evidence irrelevant - whether tendency evidence - whether evidence of sexual experience or sexual activity - whether at or about time of commission of offence charged - evidence inadmissible EVIDENCE - evidence of telephone conversation recorded pursuant to warrant - admissions - Evidence Act, s 90 - whether unfair to admit evidence - whether complainant acting as "agent of the State" - whether unfair derogation of accused's right to exercise free choice to speak or be silent - whether conversation "functional equivalent of an interrogation" - "eliciting behaviour" - whether admissions made voluntarily EVIDENCE - Evidence Act, s 137 - probative value of evidence - whether existence of alternative explanation relevant to assessment of probative value - facts in issue - Evidence Act s 137 contrasted with Evidence Act s 98 - whether credibility, reliability or weight of evidence relevant to assessment of probative value - Crown appeal allowed

CRIMINAL LAW - appeal - sentence - severity - pleas of guilty - supply prohibited drugs - cannabis and methylamphetamine - possession of a prohibited weapon - whether sentencing judge erred when determining objective seriousness of offending - whether sentencing judge erred in failing to take into account quantity of drugs involved in supply - whether sentencing judge failed to take into account remorse shown by applicant - whether sentence manifestly inadequate - no error found - leave to appeal each sentence granted - appeal dismissed

CRIMINAL LAW - Bail - Where applicant charged with murder and refused bail - Where application made for review of bail determination - Whether exceptional circumstances justified grant of bail - Where Crown relied upon circumstantial case along with confessions made by applicant to an undercover operative - Where Crown case not properly described as weak - Exceptional circumstances not made out

CRIMINAL LAW - appeal against conviction - sexual assault - application for extension of time - substantial delay without satisfactory explanation - assessment of strength of proposed appeal grounds - incompetence of counsel - failure to call evidence of good character - conflicting evidence as to reason for failure - other complaints about conduct of defence - miscarriage of justice insufficiently arguable - extension of time refused

CRIMINAL LAW - conviction appeal - sexual assault and other offences - applicant followed complainant from Darlinghurst to Hurlstone Park, broke into her home unit and sexually assaulted her over a number of hours - applicant claimed intercourse was consensual - Notice of Intention to Appeal and Notice of Appeal filed long out of time - s 10(1)(a) Criminal Appeal Act 1912, r 3A Criminal Appeal Rules - whether sufficient prospects of success to warrant an extension of time - extension refused CRIMINAL LAW - sentence appeal - sexual assault and other offences - applicant followed complainant from Darlinghurst to Hurlstone Park, broke into her home unit and sexually assaulted her over a number of hours - sentencing judge determined that offences fell "well above the mid-range and up towards the high range of objective seriousness" - applicant sentenced to total term of imprisonment of 22 years with 17 years 6 months aggregate non-parole period - whether sentencing judge erred in determination of objective seriousness - whether sentencing judge erred in assessing totality and in accumulating sentences by failing to find sexual assaults formed one episode of criminality - whether sentencing judge should have found special circumstances by reason of the effect of accumulation of sentences - whether sentence manifestly excessive - aggregate non-parole period reduced by 12 months - sentence otherwise confirmed

CRIMINAL LAW - sentencing - Crown appeal - Respondent pleaded guilty to five counts of defrauding a body corporate as a director contrary to s.176A Crimes Act 1900 with seven similar offences on a Form 1 - offences committed over 12-month period - Respondent obtained more than $1.5 million - Respondent sentenced to two years' imprisonment to be served by way of intensive correction order - whether factual error in characterisation of offences - whether error in assessment of objective gravity - whether error in approach to Form 1 offences - whether undue weight given to Respondent's subjective circumstances - heavy reliance upon psychiatric evidence where Respondent did not give evidence - whether erroneous to sentence by way of intensive correction order - whether sentences manifestly inadequate - errors established - sentences manifestly inadequate - whether residual discretion should be exercised to dismiss Crown appeal - Crown representative had contributed to factual error - held discretion ought not be exercised - interests of justice required resentencing - objective gravity of offences - importance of general deterrence for offences of fraud committed by company directors - Respondent resentenced to terms of full-time imprisonment

CRIMINAL LAW - applications for leave to appeal against sentence - supply of large commercial quantity of ecstasy, selling firearms on ongoing basis - Form 1 matters - requirement to set non-parole period for offence carrying a standard non-parole period - parity - whether sentences manifestly excessive

CRIMINAL LAW - application seeking leave to appeal sentence - plea of guilty - aggregate sentence - manufacture commercial quantity of prohibited drug (methylamphetamine) and knowingly take part in supply of not less than commercial quantity of prohibited drug - further offences of possess drug manufacturing apparatus, possess unregistered firearm, not keep firearm safely - whether proper discount for pleas of guilty - whether sentence for possess unregistered firearm manifestly excessive - utilitarian value of plea should be separately considered for each offence - sentence not plainly unjust - leave to appeal granted - appeal allowed in part - sentences quashed and sentences imposed in lieu

CRIMINAL LAW - application seeking leave to appeal sentence - plea of guilty - aggravated break, enter and detain for advantage - applicant secured box allegedly containing explosives around neck of school student in her home in extortion attempt - whether trial judge erred in approach to applicant's mental illness - whether applicant's psychiatric condition causally related to offending conduct - whether House v The King error - whether Muldrock error - whether trial judge failed to make a finding regarding prospects of rehabilitation - whether trial judge erred in failing to make a finding of special circumstances - whether sentence manifestly excessive - sentence not plainly unjust - leave to appeal granted - appeal dismissed

CRIMINAL LAW - appeal against sentence - insider trading - tipping - whether sentence manifestly excessive - whether sentencing judge failed to take proper account of individual factors

CRIMINAL LAW - appeal against conviction - whether trial judge's failure to leave self-defence to the jury occasioned a miscarriage of justice - whether leave should be granted under the Criminal Appeal Rules, r 4. CRIMINAL LAW - appeal against conviction - whether trial judge's failure to explain the legal consequences of an accidental wounding occasioned a miscarriage of justice - whether leave should be granted under the Criminal Appeal Rules, r 4. CRIMINAL LAW - appeal against conviction - whether trial judge's summing up occasioned a miscarriage of justice - whether leave should be granted under the Criminal Appeal Rules, r 4. CRIMINAL LAW - appeal - conviction - whether jury verdict is unreasonable or cannot be supported having regard to the evidence.

CRIMINAL LAW - application for leave to appeal against sentence - three offences of aggravated robbery with a dangerous weapon - whether sentencing judge erred in treating the fact that the offences were committed in company as an aggravating factor - whether double counting of this factor had occurred - alleged error not made out - alternatively, no lesser sentence is warranted in law.

DISCIPLINARY PROCEEDINGS - barrister - professional misconduct - allegation that barrister knowingly gave false evidence in proceedings in which she was a party - whether Tribunal failed to consider relevant evidence

ENERGY AND RESOURCES - mining - interpretation of Mine Subsidence Compensation Act 1961, ss 12A(1)(b), 15(5)(b) - respondents claim compensation from Mine Subsidence Compensation Fund under s 12A(1)(b) for expense incurred to prevent or mitigate damage to pipeline from subsidence - pipeline erected in "mine subsidence district" without approval in contravention of Act - s 15(5)(b) provides that "no claim shall be entertained or payment made" by the Board "in respect of damage caused by subsidence" to unapproved improvements unless certificate issued by Board - whether claim under s 12A(1)(b) a claim "in respect of damage caused by subsidence"

TORTS - contributory negligence - where appellant injured when his truck collided with respondents' illegally parked truck - where primary judge found respondents negligent but reduced damages for appellant's contributory negligence - whether error in fact-finding process underpinned finding of contributory negligence - whether primary judge erred in apportionment of liability by failing to compare relative culpability of parties

NEGLIGENCE - personal injury - scaffolding rendered unsafe by act of third party - whether scaffolder breached its duty of care in constructing scaffolding - whether principal contractor failed to conduct adequate inspections - whether plaintiff's employer negligent in failing to warn of risk - whether primary Judge's assessment of economic loss excessive

COSTS - where both appeal and cross-appeal partially successful - whether costs orders of first instance proceedings should be altered

DIRECTORS' DUTIES - whether directors breached their duties under Corporations Act 2001 (Cth) and at equity in causing their company to transfer shares it owned in two other companies to an individual who was the wife of one director and the daughter of the other - whether shares transferred at undervalue - whether breach of directors' duties under the Corporations Act and at equity regardless of whether shares transferred at undervalue due to improper purpose breach and conflict breach - whether directors should be excused under s 1318 of the Corporations Act EQUITY - knowing receipt - where statement of claim did not seek relief from knowing recipient - where primary judge awarded relief against knowing recipient as well as directors in breach from whom the statement of claim had sought relief - where knowing receipt complained at first instance that relief not pleaded against her - where primary judge did not give leave to plaintiffs to amend statement of claim and did not advert to the issue in awarding relief against knowing recipient EQUITY - knowing receipt - whether individual was a knowing recipient - where individual who was both wife and daughter respectively of the two directors in breach of their directors' duties received shares transferred in breach of the two directors' duties to the company - whether individual had knowledge - whether individual knew of circumstances that reasonably indicated the fact of the breaches - whether individual, if liable for knowing receipt, could be excused under s 85 of the Trustee Act 1925 REMEDIES - at equity and under Corporations Act for breach of directors' duties - where primary judge ordered enquiry as to damages or compensation to be awarded to company in relation to transfer of shares at undervalue - whether primary judge erred in not immediately assessing the equitable compensation to be paid by reference to the difference between the amount the company received as consideration for the shares and the findings made by her Honour as to the value of the shares as at the time of transfer - whether in calculating statutory compensation under s 1317H of the Corporations Act the shares were to be valued as at the time of transfer or as at time of assessment of compensation

LIMITATION OF ACTIONS - plaintiff injured in car accident whilst at work - application to commence proceedings out of time

CIVIL LIABILITY - helicopter undertaking aerial power line inspection at St Albans for Endeavour Energy - helicopter owned and operated by Precision Helicopters - wire strike with disused Telstra catenary wire - helicopter lands but rolls over - Endeavour Energy observer suffers head injury and brain damage - observer not wearing helmet - whether observer a "passenger" for purposes of Civil Aviation (Carriers' Liability) Act 1967 (NSW) - held he was not a "passenger" - liability of Endeavour Energy as employer - whether Telstra and Precision Helicopters liable to injured man - s.151Z Workers Compensation Act 1987 - claim by Precision Helicopters against Endeavour Energy for breach of contract - cross-claim by Endeavour Energy claiming indemnity under contract - s.151Z apportionment of responsibility as between Endeavour Energy (90%) and Precision Helicopters (10%) - Precision Helicopters successful in contract claim - claim in contract by Endeavour Energy rejected

PROCEDURE - two motions to amend statement of claim - application of ss 56 and 57 of Civil Procedure Act 2005 -amendments appropriate where additional evidence can be obtained without any real delay and without any undue expense - amendment of pleadings to reflect evidence is permissible - amendment is not appropriate in the interests of justice, where a new claim is pleaded and evidence is not readily available - No point of general principle

SUCCESSION - FAMILY PROVISION -One Plaintiff, a widow of the deceased, and the other Plaintiff a child of the deceased by a prior relationship - Each applies for a family provision order under Chapter 3 of the Succession Act 2006 - Whether adequate and proper provision not made in Will of the deceased for either Plaintiff and if so the nature and quantum of the provision to be made for her

STRATA TITLES - appeal from Local Court - order made for unpaid levies "special levies" pursuant to s 76(4) of the Strata Schemes Management Act 1996 (SSM Act) - order made by Local Court for expenses incurred in recovering unpaid levies pursuant to s 80(1) of the SSM Act based on estimate of costs provided by owners corporation's solicitors GROUND 1 - the Local Court erred in upholding the levy under s 76(4) - special levy validly raised by owners corporation by reason that it was faced with other expenses it could not at once meet from its administrative or sinking fund - evidence before Local Court that owners corporation had been issued with Fire Safety Order by the council - evidence that estimate provided to owners corporation by a consultancy as to cost of complying with the Order - evidence available that the financial position of owners corporation before special levy raised would not be sufficient to meet the cost of the estimate - s 76(4) must be considered in context of the SSM Act including ss 75, 75A and the other subsections of 76 - s 76(4) must be construed in terms of an "estimate" rather than a particular total cost - ground not made out GROUND 2 - the Local Court erred in awarding expenses under s 80 of the SSM Act - owners corporation was entitled pursuant to s 80 to recover expenses incurred in recovering unpaid levies - evidence before Local Court insufficient to establish the proper quantum of expenses in relation to legal costs - appropriate course is for legal costs to be assessed - parties permitted to file affidavit evidence and submissions as to the quantum of s 80 expenses claimed in the Local Court

JUDICIAL REVIEW - Local Court appeal - action to enforce statutory indemnity concerning workers compensation benefits pursuant to s 151Z of Workers Compensation Act 1987 - whether trial judge failed to apply or address the Civil Liability Act 2002 in determining liability - jurisdictional limit of Local Court - costs.