Cases and authorities

CONTRACTS - specific performance - whether time of the essence - contract for sale of shares where time originally of the essence - when party not at fault can lose right to terminate for breach of an essential term - election to continue - appropriate remedy when some of property the subject of suit for specific performance already sold to a third party without notice - plaintiff seeking specific performance late in payment of part of purchase price - specific performance conditional on plaintiff doing equity by paying interest on purchase price outstanding CORPORATIONS - directors - removal of director by shareholders - whether exercise of power to remove director was fraud on the power

PRACTICE AND PROCEDURE - application for adoption of report by referee in respect of costs claimed by a solicitor - where part of the costs claimed were incurred by the solicitor in circumstances where he had been found to be negligent - where referee allowed such costs - whether referee erred in doing so - whether report should be adopted COSTS - where costs incurred in proceedings where solicitor found to have been negligent - whether such costs recoverable

CRIMINAL LAW - serious sex offender - application for interim supervision order - test for interim order - evidence if proven justifies making of extended supervision order

LEGAL PRACTITIONERS - professional misconduct - application to have legal practitioner struck off the Roll of legal practitioners - dealing with trust moneys received in advance on account of legal costs - where contravention of s 252 of the Legal Profession Act 2004 - practicing without holding a practicing certificate - show cause events - whether fit and proper person to remain on the Roll

PRACTICE AND PROCEDURE - costs - application to reopen case as to costs - no new material - matters already determined - application refused

DEFAMATION - imputations - form and capacity - no issue of principle

DEFAMATION - pleadings - amended pleading objected to as inconsistent with replaced pleading - plaintiff ordered to verify amended pleading DEFAMATION - pleadings - whether 'sense and substance' of matter complained of republished - where republication did not identify plaintiff - plaintiff ordered to provide particulars of persons to whom matter republished who knew particulars of identification DEFAMATION - imputations - ambiguity - imputation struck out with leave to re-plead

PRACTICE AND PROCEDURE - application for leave to file further amended statement of particulars in court

PROCEDURE - application to strike out part of defence - whether there was a valid transfer under s 22(1) of Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) - whether pleadings disclose a reasonable cause of action

PROCEDURE - application to set aside consent orders - UCPR 36.15(1) - whether judgment entered irregularly, illegally or against good faith COSTS - offers of compromise - UCPR 20.26 and 20.27 - payment of interest - entitlement to interest - Civil Procedure Act 2005 s 101 - effect upon calculation of interest of delay between date of acceptance of offer of compromise and date of entry of judgment

MORTGAGES - whether void for uncertainty - calculation of variable interest - whether severable - whether principal due - whether borrowers in default CONTRACTS REVIEW ACT - lack of independent advice - no allegation of actual ignorance of material terms - inequality of bargaining power - conventional terms - only pressure arising from borrowers' personal affairs - default notices not required - whether unjust - whether principal must be repaid SUMMARY JUDGMENT - only defence under Contracts Review Act 1980 - whether discretionary character of consideration prevents summary judgment - no prospect of avoiding repayment of principal - summary judgment appropriate

CRIMINAL LAW - APPEAL AGAINST CONVICTION - nine counts of aggravated sexual intercourse without consent and two counts of aggravated indecent assault - offences occurring over 3½ years when complainant aged between 13 and 16 - applicant self-represented - alleged failure by Crown to place all relevant evidence before jury - relevance of toxicology report on complainant's hair - challenge to summing up by trial judge - alleged failure by trial judge to emphasise contradictions in complainant's evidence - alleged failure by trial judge to give a warning as to the unreliable nature of complainant's evidence - alleged failure by trial judge to adequately sum up as to corroboration of complainant's evidence - alleged miscarriage of justice due to incompetence of counsel - application of rule 4 of Criminal Appeal Rules - whether post-conviction admissions by applicant can be taken into account in a conviction appeal and if so in what way - conviction appeal dismissed - CROWN APPEAL AGAINST SENTENCE - failure by sentencing judge to impose non-parole periods, contrary to s 45(1) of Crimes (Sentencing Procedure) Act 1999 - whether applicant's mental health properly taken into account - whether sentences properly accumulated - whether sentences manifestly inadequate - Crown appeal against sentence substantially dismissed.

CRIMINAL LAW - appeal against conviction - offence of causing grievous bodily harm with intent to cause grievous bodily harm - appellant threw methylated spirits onto bed where victim lay and ignited bedclothes - victim retracted earlier statement to police - whether trial judge erred in admitting into evidence complainant's statement to police - whether use of victim's statement to police resulted in miscarriage of justice - whether use of evidence disclosing consciousness of guilt resulted in miscarriage of justice - whether Zoneff direction was required - whether verdict is unreasonable or cannot be supported having regard to evidence - appeal dismissed

CRIMINAL LAW - sentence appeal - guilty plea to one count of misconduct in public office - further offences on Form 1 - related offences on s166 Certificate - whether applicant has a justifiable sense of grievance as a result of disparity between his sentence and sentence imposed upon co-offender - whether sentencing judge erred in failing to consider maximum penalties for relevant statutory offences as a reference point or guide to the imposition of sentence - whether sentence manifestly excessive

ADMINISTRATIVE LAW - prerogative writs and orders - where jury separated without an order under s 54(1)(b) of the Jury Act 1977 - consequences of procedural irregularity - where trial judge refused an application to discharge the jury - where jury subsequently entered a guilty verdict - whether the direction of the trial judge that the jury continue their deliberations was affected by jurisdictional error - whether the jury verdict was affected by jurisdictional error - whether there is basis for an order in the nature of certiorari to be made ADMINISTRATIVE LAW - prerogative writs and orders - merger principle - where no challenge to conviction - where the appropriate procedure to set aside the conviction arises under the Criminal Appeal Act 1912

PROCEDURE - Discovery - Notices to produce - Subpoenas - consideration of relevance.

CORPORATIONS - scheme of arrangement - application for orders approving entry into scheme of arrangement - where correspondence to be sent to members between the first and second Court hearing was approved by the Court and subsequently amended.

PRACTICE AND PROCEDURE -application for stay of writ of possession -hardship -no basis for stay -practical exigencies preventing execution of writ in any event

EVIDENCE - admissibility - probative valued against prejudicial effect - trial for murder - partial defence of substantial impairment - evidence of hatred of paedophiles and belief that deceased was a paedophile -previous assault of person accused believed to be a paedophile reported by accused to psychiatrist preparing report for Crown - previous assault relevant to view of psychiatrist that accused not operating under an abnormality of mind - Crown not relying on evidence for tendency purpose - no objection to evidence to the general effect that accused did possess hatred of paedophiles - directions not capable of excluding danger of tendency reasoning if evidence of previous assault led - evidence excluded

DEFAMATION - proceedings in defamation list - application by plaintiffs for List Judge recuse herself - where defendant unrepresented - whether reasonable bystander would apprehend bias

CONTRACT - whether the Breakout Locks and the Sanctum Locks are products which fall within the products as defined in the Patent License Agreement ("PLA") or within the definition of licensee's improvements CONTRACT - whether the Breakout Locks and the Sanctum Locks are of the same description, perform the same function or are of a similar description to the Barrier Release Lock CONTRACT - whether the PLA was subject to a condition precedent, namely the grant of the Standard Patent, and whether any obligations imposed on the first defendant by the PLA were suspended pending the grant of the Standard Patent. EQUITY - whether Mr Watmough owed fiduciary duties to the plaintiff or whether any such duties were nullified or erased by the PLA and whether fiduciary duties were breached.

TORRENS SYSTEM - General matters - Application to Registrar-General to correct error in register - Review of Registrar-General's decision - Real Property Act 1900 (NSW), ss 12(1)(d), 122 WORDS AND PHRASES - "errors" - "in relation to"

REAL PROPERTY - possession of land - mortgages - judgment for possession - stay of execution sought - application brought one hour before execution due - no explanation for delay in making application - Defendant contracts to sell after orders for possession made - no consent to sale by mortgagee - settlement of contract will not repay the whole debt - stay refused

COSTS - special order for costs against non-parties - whether non-parties are the "real litigants" PRACTICE AND PROCEDURE - civil - jurisdiction to make order - whether Court is functus officio

REAL PROPERTY - voidable dispositions - whether transfers of certain shares and units were an alienation of property made with intent to defraud creditors - whether property transferred was property to which creditors would "otherwise have been entitled" - Conveyancing Act 1919, s 37A

PROCEDURE - DEFAULT JUDGMENT - Part 16 of the UCPR - plaintiffs loaned money to first defendant under a loan facility with debt owed guaranteed by second, third, fourth and fifth defendants - second defendant sole director of the third, fourth and fifth defendant companies - terms of loan facility and guarantees varied by two deeds of forbearance entered into by the parties and executed by second defendant - under the deeds of forbearance parties acknowledged their respective rights and obligations under the loan facility and guarantees - parties agreed to extend time for payment of all monies due pursuant to the terms of the deeds of forbearance - first defendant defaulted - guarantor demands were made to the second, third, fourth and fifth defendants - application by plaintiffs pursuant to rule 16.3 of the UCPR seeking default judgment against first defendant for debt owing under the loan facility - first defendant served - no defence filed by first defendant - plaintiff entitled to judgment against first defendant for debt owed under loan facility PROCEDURE - SUMMARY DISMISSAL - Part 13 of the UCPR - application by plaintiffs pursuant to rule 13.1 of the UCPR seeking summary judgment against second, third, fourth and fifth defendants for debt guaranteed - whether no real question to be tried - third, fourth, fifth defendants submit guarantees and deeds of forbearance not duly executed pursuant to sections 127 and 129 of the Corporations Act 2001 (Cth) as documents do not state that the party executing the document is relying upon provisions of s 127 - third, fourth, fifth defendants submit that where documents do make such a reference, no evidence of declaration in terms of s 238B(2) of the Corporations Act 2001 (Cth) provided - documents complied with s 127 of the Corporations Act 2001 (Cth) - pleaded defence on basis of s 127 does not raise any viable defence of fact or law - fifth defendant pleads plaintiffs accessories to breaches of trustee fiduciary obligations - leave granted to fifth defendant to amend pleadings on foot in order to plead matters to support allegations that there was a breach of fiduciary duties and plaintiffs had knowledge of any breach - fifth defendant chose not to amend pleadings - applying principle in General Steel Industries; pleadings do not raise any arguable defence - summary judgment entered in favour of plaintiff

CRIMINAL LAW - evidence - discretion to exclude for unfairness - covertly recorded admission pursuant to lawful warrant while accused in custody - failure by police to tell accused that a barrister wished to speak with him - admission obtained shortly thereafter - application to exclude under ss 84, 90 and 138 - application determined solely pursuant to s 90 - Evidence Act 1995 (NSW), ss 84, 90 and 138 EVIDENCE - discretions to exclude under ss 84, 90 and 138 of Evidence Act 1995 (NSW) - application of unfairness test in s 90 and failure to apply balancing test in s 138 when basis for rejection was that the evidence was obtained in consequence of a contravention of an Australian law - error in excluding evidence by failing to address s 138

INDUSTRIAL LAW - criminal procedure - prosecution under the Occupational Health and Safety Act 2000 - requirement that proceedings be instituted by persons including inspector - whether inspector in fact instituted prosecutions. INDUSTRIAL LAW - criminal procedure -Criminal Procedure Act 1986 s 246 - District Court Rules 1973 Pt 53 r 26 - whether application and statement of facts are required to be signed by the inspector. INDUSTRIAL LAW - criminal procedure - failure to correctly institute proceedings - whether Criminal Procedure Act s 16(2) can operate to validate proceedings. INDUSTRIAL LAW - criminal procedure - Occupational Health and Safety Act 2000 - failure to particularise - whether charges disclose offence known to law - whether charges can be saved or amended. JURISIDICTION - appeal - Criminal Appeal Act 1912 s 5C - notice of contention - whether Court of Criminal Appeal has power to consider issues in notice of contention.

INDUSTRIAL LAW - criminal procedure - prosecution under the Occupational Health and Safety Act 2000 - requirement that proceedings be instituted by persons including inspector - whether inspector in fact instituted prosecutions. INDUSTRIAL LAW - criminal procedure -Criminal Procedure Act 1986 s 246 - District Court Rules 1973 Pt 53 r 26 - whether application and statement of facts are required to be signed by the inspector. INDUSTRIAL LAW - criminal procedure - failure to correctly institute proceedings - whether Criminal Procedure Act s 16(2) operates to validate proceedings. INDUSTRIAL LAW - criminal procedure - Occupational Health and Safety Act 2000 - failure to particularise - whether charges disclose offence known to law - whether charges can be saved or amended. JURISIDICTION - appeal - Criminal Appeal Act 1912 s 5C - notice of contention - whether Court of Criminal Appeal able to deal with issues within notice of contention.

DAMAGES - award - measure of damages - personal injuries - negligence causing incapacity to manage own affairs - cost of fund management - whether certain amounts should be taken into account for the calculation of fund management costs. DAMAGES - cost of fund management - principles in Todorovic v Waller (1981) 150 CLR 402 - whether an allowance should also be made in respect of managing the sum awarded for fund management costs. DAMAGES - cost of fund management - whether an allowance should also be made in respect of managing income earned by the fund during the existence of the fund. DAMAGES - cost of fund management - whether fund management fees should be allowed at rates charged by a private trustee or at the rates of the relevant public trustee.

WORKERS' COMPENSATION - proceedings to obtain compensation - determination of claims - seeking order for reinstatement under s 601AH Corporations Act - application for joinder of two insurers under s 601AG Corporations Act - damages for personal injury - no admission of indemnity - question of employment status - liability of insurer - cause of action against deregistered company which was covered by an insurance policy immediately prior to deregistration

REAL PROPERTY - possession of land - second defence repeating allegations in earlier struck-out defence - abuse of process

PROCEDURE - plaintiff called upon to show cause why proceedings should not be dismissed for repeated failure to comply with orders for discovery - where most recent default explained by failure of solicitor accurately to diarise date for compliance

DEFAMATION - where plaintiff defending criminal proceedings raising common issues of fact - whether criminal proceedings impeding interlocutory processes in the defamation action - whether defamation action should be stayed

COSTS - plaintiff seeks costs order against three defendants - plaintiff as a mortgagee brought proceedings for possession against the defendants, tenants of the mortgaged property - parties entered into an agreement allowing the tenants to stay in the property until a specified date - defendants did not vacate as agreed - orders to vacate were made based on their agreement to vacate - orders not complied with - plaintiff brought motion for contempt and costs - defendants had by then vacated the property and contempt motion no longer pressed - second and third defendants not before the Court, not represented in the proceedings after the orders to vacate were made and not served with the contempt application - whether a cost order should be made - whether any order against the second and third defendants should include the costs of the contempt application - whether any costs order should be stayed pending the first defendant bringing proceedings against the plaintiff or against the landlord of the property. PROCEDURE - representation of parties - first defendant appearing trough a next friend.

PROCEDURE - Interlocutory orders - Caveats and injunctions - Undertaking as to damages - Absence of effective undertaking - Absence of security for undertaking - Balance of convenience

COSTS - Solicitor and former client - Lien claimed by solicitor for unpaid costs - Order for return of papers to counsel retained by solicitor - Counsel to prepare final submissions - Case Management - Third Party interests taken into account

SUCCESSION - wills, probate and administration - construction of will - whether will should be construed to qualify type of "foundation or trust" to be established - rectification of will - whether will reflects intentions of testator - difficulty formulating with precision testator's instructions to solicitor drafting will PROCEDURE - costs - costs of parties to be paid out of estate - where litigation is with respect to a particular gift in the will - whether burden of costs should be born by that gift

PRACTICE AND PROCEDURE - notice of motion seeking an order that the applicant be joined as a defendant - where proceedings for possession of property brought by the plaintiff against trustee of bankrupt estate - where applicant the former wife of the bankrupt - where the bankrupt was the sole registered proprietor of the property over which mortgages were held - where applicant not a registered proprietor of the property - where applicant not a party to the relevant mortgages over the property - where no orders sought by the plaintiff against the applicant - where interest of the applicant in the property an equitable interest only - whether applicant able to establish an arguable defence to the claim for possession

SECURITY FOR COSTS - security sought from appellant corporations pursuant to Corporations Act 2001, s 1335(1) - security sought from individual pursuant to r 51.50 - no issue of principle - application granted

CONTRACT - construction and interpretation - loan to employee to take up parcel of shares - loan not repayable for three years and interest capitalised so long as no "early termination" of employment - shares not to be assigned or transferred - whether transfer of legal title of shares to obtain uncertificated holding an event of default - construction of terms - role of internal coherence in construction - meaning of "assign, transfer or take any economically similar action" - whether borrower ought reasonably to have become aware that transfer of legal title was event of default - whether implied term to act reasonably or in good faith - whether consensual termination of employment contract amounted to "early termination" for the purposes of loan agreement

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - where offer of compromise made - where offer failed to make provision for the disposal of the appeal - r 42.14 Uniform Civil Procedure Rules 2005 - whether respondent defended the appeal on a substantially different basis to that which the Court ultimately decided on appeal

COSTS - appeal costs - costs of further hearing

STATUTORY CONSTRUCTION - Section 80D of the Strata Schemes Management Act 1996 (NSW) - meaning and effect - where proceedings commenced prior to resolution of the general meeting of owners corporation in contravention of s 80D(1) - whether statutory inhibition imposed by s 80D can be lifted by ex post facto resolution of the owners corporation at general meeting - whether resolution was passed within a reasonable time - HELD proceedings commenced without compliance with s 80D(1) are not a nullity and ex post facto resolution of a general meeting of owners corporation can remove statutory inhibition - HELD resolution passed within a reasonable time

FINANCIAL SERVICES - ss 12CA and 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) - whether bank misleadingly or deceptively represented that it would not regard appointment of voluntary administrators as an Event of Default under a loan facility - whether bank unconscionably procured and relies on releases and bars in a Deed of Forbearance - whether loss suffered by appointment of receivers to properties which were security under the facility and guarantees - whether quantum is established - CONTRACTS - s 7(1) of the Contracts Review Act 1980 (NSW) - whether personal guarantees were unjust in the circumstances relating to them at the time they were made - whether it is unconscionable under the general law to enforce them

INTEREST - whether the post judgment rate should be used when calculating interest owing on the judgment sum

PRACTICE AND PROCEDURE - Practice Note SC Eq 11 - Disclosure before evidence - Whether exceptional circumstances exist to warrant disclosure before evidence is served in proceedings - No issue of principle

GUARDIANSHIP - Guardianship Tribunal - urgent, ex-parte application to Tribunal - Guardianship and Financial Management Orders made - Foundation for Orders controversial - appeal to Court - Considerations on review of Tribunal Orders

high Risk SEX Offender - interim detention order sought - interim detention order opposed - alternative interim supervision order sought - interim supervision order not opposed - long history of child sex offending - victims known to offender - opportunistic offender - mild intellectual disability - interim supervision order granted - conditions imposed - community offender support program - electronic monitoring - travel restrictions - approved accommodation - accommodation restrictions - curfew

COSTS - no reason to depart from the usual rule that costs should follow the event