Cases and authorities

DISMISSAL OF SUMMONS FOR LEAVE TO APPEAL - dismissal of proceedings by Judicial Registrar for failure to comply with court orders - whether dismissal unjust - Civil Procedure Act 2005, ss 56-58 - relevance of applicant's ability to commence proceedings in the Local Court. PRACTICE AND PROCEDURE - Leave to appeal - matter of practice and procedure - discretionary decision - small sum of money involved.

APPEAL - application to review judgment of single judge refusing stay - application abandoned - proposal to amend grounds of appeal and rely on further evidence to be dealt with in the ordinary way

TORT - malicious prosecution - charge of offensive conduct - charge not prosecuted - whether there was reasonable and probable cause to commence or maintain the prosecution EVIDENCE - where defence unsuccessfully brought a "no case" application - whether Jones v Dunkel inference could be drawn as to fabrication of evidence - whether Briginshaw standard applied by trial judge on findings of criminal conduct - whether findings as to fabrication should be set aside DAMAGES - whether exemplary damages manifestly excessive ADMINISTRATIVE LAW - whether administrative decision to reduce rank of police officer was manifestly unreasonable CRIME - Summary Offences Act - whether trial judge applied correct test in relation to offensive conduct charge

TORTS - professional negligence - where appellant retained respondent solicitor on purchase of townhouse - where appellant paid 80 per cent of purchase price as deposit - where vendor went into receivership before completion - where directors of vendor agreed to guarantee deposit - where directors did not execute contract containing guarantee - where appellant lost her deposit - whether respondent breached duty of care to appellant - whether respondent failed to warn appellant of risks - whether respondent breached duty in failing to procure guarantees from vendor's directors and investigate their financial position - whether any act or omission of respondent caused appellant's loss

ADMINISTRATIVE LAW - natural justice -bias - membership of committee - whether knowledge of complaints a basis for disqualification - complainant declined to answer charge ASSOCIATIONS AND CLUBS - discipline - rules of association - whether model rules incorporated into constitution containing express rules on discipline - inconsistency with statute

COSTS - exception to the general rule that costs follow the event - challenge to assessment of damages - multiple issues - partial success - apportionment - question of degree of success of each party

CONSENT ORDERS - nature and effect CONSENT ORDERS - construction and implication CONTRACT - implied term requiring reasonable co-operation CONTRACT - party cannot take advantage of own wrong to enliven contractual entitlement STATUTORY CONSTRUCTION - Section 37A Conveyancing Act - application to matrimonial dispute - meaning of 'creditor' COSTS - appropriate circumstances justifying fixed lump sum costs order

PROCEDURE - where proceedings remitted after an appeal for determination of specific questions - scope of further evidence that should be admitted

CRIMINAL LAW - forensic patient - serious sexual offences found proven at a special hearing - limiting term about to expire - regime under Schedule 1 to Mental Health (Forensic Provisions) Act similar to Crimes (High Risk Offenders) Act - similar principles to be applied - moderately high risk offender - extension order made

PROCEDURE - proceedings for contempt - failure of respondent to comply with further orders - directions made

EVIDENCE - admissibility of medical reports - objection under s136 Evidence Act 1995 (NSW) - objection under r 31.26(5) Uniform Civil Procedure Rules 2005 (NSW - objection under s63 - whether witness unavailable to give evidence

DAMAGES - the amount to be paid for damages in relation to the Breakout Locks sold before and after termination of the Patent Licensing Agreement ("the PLA") COSTS - whether a Calderbank offer was made by the plaintiff to the defendants - whether the plaintiff has done better in these proceedings than it would have if its Calderbank offer was accepted by the defendants COSTS - whether it was unreasonable for the plaintiffs to refuse the defendants' Calderbank offer COSTS - whether the plaintiff is entitled to an order for the costs thrown away by reason of the defendants' aborted motion COSTS - whether the plaintiff is entitled to a costs order in respect of the defendants' application, by notice of motion, for the defendant to pay the $40K of costs, awarded against them by reason of their abandoned assertion that the matter had been settled, in instalments COSTS - whether the Court should exercise its general discretion not to allow all of the costs of the hearing to be awarded in favour of the plaintiff COSTS - whether the security paid by the plaintiff into court should be released as it has succeeded against the defendants in the principal proceedings

COSTS - where plaintiff abandoned several issues - where not shown that abandoned issues improperly raised COSTS - expert report - where expert report not admitted into evidence

JUDGMENTS - power to vary - slip rule - where judgment debtor changed his name

CRIMINAL LAW - proceeds of crime - proceeds assessment order - application for adjournment by defendant - no defence to order

CRIMINAL LAW - pretrial hearing - client legal privilege - waiver - where Accused and Accused’s wife previously represented by the same solicitor - solicitor called by Crown on Basha inquiry - whether Accused waived client legal privilege in circumstances where his counsel cross-examined the Accused’s wife at committal proceedings concerning discussions in conference between the Accused, the Accused’s wife and the former solicitor - discussions subject to client legal privilege - held that privilege waived by Accused as a result of cross-examination by his counsel at committal proceedings

CONTRACT - Construction - Dispute resolution clauses - Expert Valuation - Dispute about terms of instructions to Valuers - Declarations sought as to proper construction of contract - Declaratory relief available REMEDIES - Declarations - Declarations without consequential relief - Construction of contract - Commercial contract - Dispute resolution clauses - Declarations granted in aid of contractual dispute resolution procedure

TAXES AND DUTIES - collection and recovery - corporate employer withheld PAYG deductions - amounts required to be remitted to ATO by due date - failure to remit - director penalty notices issued under s 269-25 of Taxation Administration Act 1953 (Cth) - whether notices complied with requirement of s 269-25(2)(b) to state director liable for penalty because of obligation under Div 269 - where notices referred to s 269-25 of Taxation Administration Act 1953 (Cth) - whether notices valid

CRIMINAL LAW - sentence appeal - parity - supply large commercial quantity of heroin - co-offender received substantially lesser sentence - similar subjective circumstances - applicant had greater level of involvement in offence - no justifiable sense of grievance

CRIMINAL LAW - sentence - appeal - manifest excess - aggravated break enter with intent to steal - low range of seriousness - young adult offenders - first time in custody - three year starting point - manifest excess established

PRACTICE AND PROCEDURE - stay pending appeal - interpretation of effect of interlocutory orders

COURTS - practice - non-publication order - no question of principle

ADMINISTRATIVE LAW - judicial review at common law - decision under Housing Act 2001 to cancel rental rebate retrospectively - whether investigation under s 58 conducted - nature of "investigation" required by Housing Act - whether necessary to have regard to weekly income - whether error in relying on ownership of other residential property - construction of Ministerial policy - Housing Act 2001 (NSW), s 57, 58 ADMINISTRATIVE LAW - delegation and agency - Carltona principle - Housing Act authorises delegation and authorisation of agent - investigation and decision authorised - Housing Act 2001 (NSW), ss 6, 15

EQUITY - contribution - whether the NSW Self Insurance Corporation had a common monetary obligation with the plaintiff insurer to indemnify the Police Force in respect of liability for an injury caused to a police officer travelling in a vehicle driven by another police officer whose negligence caused the injury and which vehicle was insured by the plaintiff - consideration of the NSW Government's Treasury Managed Fund

CRIMINAL LAW - sentence appeal - robbery in company - alleged misapplication of Henry guideline - alleged manifest excess - appeal dismissed

APPEAL - application for leave to appeal -order dismissing application for specific performance of alleged settlement agreement and order that security for costs be provided - no seriously arguable error demonstrated in relation to conclusion that no binding settlement agreement - no substantial injustice shown in relation to order for security

COSTS - application for leave to appeal from order as to costs - no error of principle - no question of general importance or clear injustice - leave refused

PRACTICE AND PROCEDURE - stay pending appeal - whether appeal bound to fail - balance of convenience - where limited information about appellant's liabilities - offer to charge appellant's home to secure judgment debts - offer to attempt to sell specified real property and pay proceeds into Court - undertaking not to dissipate assets and prosecute appeal expeditiously - stay granted on terms.

WORKERS COMPENSATION - coal miners - interpretation of Workers Compensation Act 1987, Sch 6 Pt 18 Cl 3(4) - respondent, who was employed by a supplier of mining equipment, injured in motor vehicle accident while travelling to coal mine to instruct miners in use of equipment - whether, at time of injury, respondent a worker employed "in or about a mine"

CONTEMPT OF COURT - first respondent restrained by freezing order from using his assets other than for permitted purposes - first respondent's assets defined to include assets of third respondent - separate order made restraining third respondent from disposing of its assets - first respondent applied moneys of third respondent for permitted purposes - whether orders unclear or ambiguous - whether first respondent knowingly interfered with administration of justice by assisting in breach of orders by third respondent

LEGAL PRACTITIONERS - discipline - interpretation of Legal Profession Act 2004, s 497(1)(a) - respondent solicitor negligently failed to seek confirmatory instructions from clients in ten transactions in which same agent defrauding clients - Administrative Decisions Tribunal found respondent's conduct constituted unsatisfactory professional conduct - whether Tribunal erred in not characterising respondent's conduct as professional misconduct on the basis that it involved a "consistent failure to reach or maintain a reasonable standard of competence and diligence" - no error on part of Tribunal

EQUITY - trusts and trustees - where retention moneys under a building and construction contract were to be held on trust - where retention moneys not separately retained - whether financier is constructive trustee of retention moneys - whether financier is trustee de son tort - whether failure to set aside retention moneys meant that no relevant trust assets or equitable obligations existed EQUITY - trust and trustees - maxims - equity regards as done that which ought be done

CONTRACTS - general contractual principles - construction and interpretation of contracts - whether amounts were owing 'under' the contract for the sale of a business or 'in connection with' contract for sale of business so as to fall within a charge at time insured released the charge INSURANCE - other indemnity insurances - trade credit insurance - where insured released a charge over the assets of another company that was indebted to it - whether insured acted as a prudent uninsured - whether release of the charge prejudiced the appellant's interests

ADMINISTRATIVE LAW - judicial review - determination of Appeal Panel of Workers Compensation Commission - appeal from Medical Assessor - grounds of appeal - powers of Appeal Panel - whether appeal confined to grounds specified - whether Appeal Panel could refer applicant for further assessment prior to finding error - whether Appeal Panel could have regard to further assessor's report - errors demonstrated - determination quashed - matter remitted to fresh appeal panel

TORTS - damages - accident resulting in brain injury - plaintiff under legal disability - approval of settlement

ADOPTIONS - Entitlement of adoptee to receive prescribed information relating to birth parents held by an "information source" - where birth father not shown on original birth certificate, an "unacknowledged birth father" - unacknowledged birth fathers should not be revealed without their consent - information source precluded from supplying information identifying full name of birth father - request for provision of information regarding reasons adoptee was put up for adoption able to be answered without disclosing information that identifies unacknowledged birth father.

CONTRACT - whether the defendant's failure to obtain 15 new customers per month over a six month period ("minimum customer requirement") and the failure to pay an instalment amount were breaches of the Distribution Agreement ("the Agreement") entitling the plaintiff to terminate; whether clause 2(c) of the Agreement required payment by a Saturday and whether, if it did, time for payment was essential permitting termination for non-payment without notice TRADE AND COMMERCE - whether the Agreement was a franchise agreement subject to the Franchising Code of Conduct ("FCC") and hence whether the defendants contravened s 51AD of the Competition and Consumer Act 2010 (Cth) and the FCC ESTOPPEL - whether the defendant was estopped from relying on the FCC and breaches by the plaintiff ESTOPPEL - whether the plaintiff was estopped from relying on the breach of the minimum customer requirement

LANDLORD AND TENANT - plaintiff's residential tenancy in defendant's premises terminated by order of Consumer, Trader and Tenancy Tribunal (CTTT) - application for mandatory injunction to permit plaintiff to remain in defendant's premises for two weeks - limitation on jurisdiction of court pursuant to s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 - meaning of "in respect of" a matter determined by the CTTT

PROCEDURE - order for determination of liability as a separate question before quantum - whether appropriate.

CRIMINAL LAW - confiscation of the proceeds of crime - restraining orders

CRIMINAL LAW - confiscation of proceeds of crime - restraining orders

CRIMINAL LAW - confiscation of criminal proceeds - variation of orders

FAMILY PROVISION AND MAINTENANCE - Principles upon which relief granted - Adult brother and sister - Succession Act 2006, ss 59, 60

PROCEDURE - pleadings - medical negligence - strike out - whether statement of claim discloses reasonable cause of action - where statement of claim not accompanied by an expert opinion - whether proceedings should be dismissed -application for referral for pro bono legal assistance - whether such referral in the interests of the administration justice

SUCCESSION - family provision - no provision made by testator for only child - reconciliation between testator and plaintiff following period of estrangement - evidence of financial circumstances incomplete - inferences to be drawn from available evidence - failure by plaintiff to comply with taxation obligations - small estate - order for payment of lump sum

TRUSTS - resulting trust - by provision of purchase money - no direct evidence of source of funds - assertions as to source of funds not contradicted - evidence sufficient to establish resulting trust CONTRACT - negotiations between husband and wife in context of matrimonial dispute - whether concluded agreement reached - intention to create legal relations - binding agreement established CONTRACT - promise made by A to B to ensure that interest in land becomes property of B or C - B predeceases A - whether agreement lapses - promise remains able to be performed - specific performance of promise ESTOPPEL - promise made by A to B to ensure that upon death interest in land becomes property of B or C - A makes will inconsistent with promise - whether failure of C to complain about will gives rise to estoppel precluding enforcement of promise - no estoppel found

PROCEDURE - pleadings - medical negligence - strike out - whether statement of claim discloses a reasonable cause of action - where statement of claim not accompanied by an expert opinion - whether proceedings should be dismissed

CRIMINAL LAW – application for bail – where applicant in custody on remand bail refused – s 22A (1A)(c) Bail Act – whether “circumstances relevant to the grant of bail have changed since the previous application was made” – where applicant incarcerated for prolonged period without concluded trial – s 22A threshold satisfied – where onus on applicant to show bail should not be refused – bail refused

CORPORATIONS - management and administration - access to documents of company - by director - where documents held by solicitors - inspection of documents produced to Court - documents comprise email correspondence between third and fourth defendants pertaining to arrangements between them in their capacity as "consultants" on the one hand and the first defendant company on the other - documents brought into existence primarily, if not exclusively, for purpose of the fourth defendant solicitor and on that basis they are the property of the solicitor - although the documents in question are the property of the fourth defendant, they are documents which the first defendant was entitled to have disclosed to it and to inspect - plaintiff has authority of the first defendant to inspect documents on its behalf - held, plaintiff is entitled to inspect documents. PROCEDURE - Costs - departing from the general rule - on discontinuance by plaintiff - whether to "otherwise order" - where plaintiff had obtained substantive relief sought - where proceedings commenced without prior notice and third defendant promptly submitted - where instituting of proceedings against fourth defendant reasonable.

CRIMINAL LAW - appeal against conviction - application for extension of time - unsatisfactory explanation for delay - prejudice occasioned by bifurcation of appellate process in respect of appeal against conviction by co-accused and risk of inconsistent decisions CRIMINAL LAW - appeal against conviction - whether guilty verdict open to jury - whether trial judge's summing up unfair and unbalanced - refusal of application to recall complainant late in the trial