Cases and authorities

EQUITY - specific performance - effect of honestly held but mistaken belief as to proper construction of arrangements.

CORPORATIONS - owners corporation of strata scheme - lot owner seeks to bring derivative action - rule in Foss v Harbottle - exceptions - whether in interests of justice to permit lot owner to sue PROCEDURE - civil - parties - standing to sue - owners corporation of strata scheme - lot owner seeks to bring derivative action - rule in Foss v Harbottle - whether in the interests of justice to permit lot owner to sue REAL PROPERTY - strata title - owners corporation - executive committee of owners corporation - duties of members of executive committee

CRIMINAL LAW - sentencing after trial - murder - specially aggravated break, enter and steal (with wounding) - armed robbery - conspiracy to murder - recruit person to criminal group - possession of prohibited firearm - home invasions committed over three-day period - invaders armed with machete and shortened firearm (29 June 2010 offences) and meat cleavers (1 July 2010 offences) - occupant at one home seriously injured - occupant of another home killed whilst resisting invaders - offenders members of criminal group - leader of group (Khoury) and his senior assistant (Karimi) - Mir an armed invader in two home invasions on same night (the second involving murder) - objective gravity of offences - importance of specific and general deterrence - accumulation, concurrency and totality

BANKING AND FINANCE - banker and customer - dual currency loan facility - whether Bank unlawfully converted facility currency REAL PROPERTY - claim for possession - default judgment for possession already entered against one joint tenant EQUITY - whether loan facility invalid due to unconscionable conduct - documents signed at "urging and direction" - risks inherent not adequately explained - lack of independent financial or legal advice - misrepresentations EQUITY - whether Bank estopped from relying on facility currency conversion

EQUITY - trusts and trustees - charitable trust - variation of trust terms - application to expand permitted geographical scope of helicopter services - application in anticipation of Government intention to allow only tenders from entities serving larger area - difference between cy-près and administrative schemes - whether s 9 of the Charitable Trusts Act 1993 extends to application for scheme in anticipation of original purposes ceasing to provide a suitable and effective method of using trust property

CRIMINAL LAW - sentencing - Drug Misuse and Trafficking Act 1985 - failure to specify discount for plea of guilty

CRIMINAL LAW - sentence - aggregate sentence - young offender - allegation that deterrence was given too much weight as a factor in sentencing - allegations that insufficient weight given to subjective circumstances - manifest excess - discretionary exercise involving intuitive synthesis - retribution may be of less significance for young offender and considerations of rehabilitation of more significance - deterrence may still be a factor - subjective factors taken into account - no error - sentence not manifestly excessive

CRIMINAL LAW - appeal - practice and procedure - where substantial delay in filing notice of intention to appeal - where extension of time required - where delay not adequately explained - principles to be applied in determining an application for an extension of time CRIMINAL LAW - appeal - where asserted disparity in sentence imposed upon the applicant when compared with sentences imposed on co-offenders - where applicant and co-offenders were part of a conspiracy to import a substantial quantity of MDMA -where applicant's role found by the sentencing judge to be greater than that of co-conspirators - where finding not challenged - principles to be applied in assessing the role of conspirators - necessity to go beyond isolated overt acts in which a conspirator may have engaged - where sentencing judge adopted a starting point in sentencing the applicant which was 9 years higher than that adopted in the case of co-offenders - no justifiable sense of grievance - no substantial injustice arising from the sentence imposed - application for extension of time dismissed

PROCEDURE - application for referral to legal practitioner on Pro Bono Panel - assistance provided pursuant to previous referral - whether special reasons demonstrated pursuant to UCPR, r 7.36(2A) - application refused

COSTS - order made for production of documents - where plaintiff substantially succeeded against the first defendant but failed against the second through eighth defendants - rather than complication of an order against the first defendant and then for the second through eighth defendants, practical justice is done by making no order as to the costs of the substantive proceedings - appropriate to order defendants to pay plaintiff's costs of and incidental to relisting of matter due to non-production of documents.

PRACTICE AND PROCEDURE - whether Lindsay J's determination that these proceedings were determined by the outcome in proceedings 2013/179362 could be circumvented by a notice of motion seeking substantive relief inconsistent with the dismissal of those other proceedings

PROCEDURE - vexatious litigant - Vexatious Proceedings Act 2008 s 14 - application for leave to proceed - proceedings vexatious - no prima facie ground for proceedings - application dismissed

PROCEDURE - Preliminary discovery application - Costs of preparation of affidavit and of production - Costs of application

PRACTICE AND PROCEDURE - business insurance - brothel - motorcycle club - membership - duty to disclose material facts to insurer - non-disclosure of material facts - refusal to honour insurance policy - interrogatories - request for disclosure of information about association with motorcycle club - interrogatories opposed - scope of relevance - consideration of necessity and purpose of interrogatories - costs - orders made

CROSS VESTING - application to transfer proceedings to Victoria - cross vesting principles - balance of convenience - prejudice to parties - place of alleged tort - whether it is in the interests of justice that the proceedings be transferred to Victoria

PROCEDURE - application to set aside default judgment - defence previously not raised - whether application is an abuse of process - whether there is an arguable defence under the Australian Securities and Investments Commission Act 2001 (Cth) and Competition and Consumer Act 2010 (Cth)

TORTS - negligence - motor vehicle accident - car being driven with headlights on low beam in dark conditions collided with pedestrian walking on roadway with back towards oncoming traffic - whether primary judge erred in finding accident avoidable with headlights on low beam if driver keeping proper lookout - whether primary judge erred in finding driver negligent in not activating high beam - whether primary judge erred in assessment of contributory negligence of pedestrian

STATUTORY INTERPRETATION - Pt 2 of Sch 18B to the Work Health and Safety Regulation 2011 - validity - savings and transitional provisions - whether regulation making power or transitional regulation making power in the Work Health and Safety Act 2011 enabled the making of regulations that conferred jurisdiction to determine prosecutions under the repealed Occupational Health and Safety Act 2000.

STATUTORY INTERPRETATION - Pt 2 of Sch 18B to the Work Health and Safety Regulation 2011 - validity - savings and transitional provisions - whether regulation making power or transitional regulation making power in the Work Health and Safety Act 2011 enabled the making of regulations that conferred jurisdiction to determine prosecutions under the repealed Occupational Health and Safety Act 2000. PROCEDURE - application to commence proceedings and statement of facts - District Court Rules 1973, r 26 - whether statement of facts was contrary to r 26 and also s 246 of the Criminal Procedure Act 1986.

CRIMINAL PROCEDURE - joint criminal enterprise - application for direction that liability of co-accused depends on other co-accused - actor principal relies on self-defence - whether non-actor principal can be guilty if actor principal not guilty - liability not derivative - application rejected

PROCEDURE - costs - general rule costs follow the event - costs of issues - where results of different motions mixed.

TRUSTS AND TRUSTEES - Charitable Trusts - Creation of - Change in trustee of - Whether charitable trust continued in existence. TRUSTS AND TRUSTEES - Change in trustees - Where trust property purportedly resettled on charitable trust - Lacked consent of one beneficiary - Whether charitable trust deed valid. DEEDS - Effect of - Purported disposition of property on charitable trust - Whether valid. CONTRACTS - Construction - Extrinsic evidence - Post-contractual conduct - Inadmissibility of - Whether such conduct admissible for another purpose.

CRIME - murder - trial by judge alone - whether accused guilty or not guilty - defences - provocation - where not raised on case for accused

COSTS - offer of compromise - Uniform Civil Procedure Rules 2005 (UCPR) r 20.26 - compliance with UCPR - UCPR r 42.15A - whether Court should order otherwise - whether plaintiff succeeded on relevantly different case to that under UCPR 42.1 - whether Court should make some other order - costs incurred by late amendment of statement of claim - delay and inefficiency of plaintiff in prosecuting claim.

COSTS - offer of compromise - Uniform Civil Procedure Rules 2005 (UCPR) r 20.26 - compliance with UCPR - whether offer exclusive of costs - UCPR r 42.15A - whether Court should order otherwise.

CRIMINAL LAW - appeal - application for extension of time in which to seek leave to appeal based upon Muldrock error - principles to be applied in determining application for extension of time - error established - applicant re-sentenced CRIMINAL LAW - appeal - where sentencing judge cited incorrect standard non-parole period - error established - applicant re-sentenced CRIMINAL LAW - appeal - where starting point of the sentence imposed exceeded maximum penalty - error established - applicant re-sentenced

CRIMINAL LAW - inferior courts - District Court - jurisdiction - costs - power to award - criminal proceedings - subpoena issued by accused in criminal proceedings - failure of accused to attend hearing of motion to set aside subpoena - award of costs to respondent because preparation thrown away - nature of implied jurisdiction - power only where expressly conferred or necessarily implied - no express conferral of power to make costs in circumstances - consideration of common law prohibition against costs in criminal cases - no necessary conferral - order in excess of jurisdiction - order quashed

CRIMINAL LAW - sentence appeal - aggravated impersonation of a police officer - indecent assault - offender coerced sex worker into his vehicle under pretence of being undercover officer - indecent assault committed in vehicle in isolated location - asserted failure by sentencing judge to adequately characterise the seriousness of the offences -seriousness dealt with succinctly after submissions on sentence and discussion - real question whether offences so serious as to impose full time custody - error not made out - asserted manifest excess - new aggravated impersonation of a police officer offence not assisted by statistical comparison - indecent assault serious - substantial concurrency of sentences - sentences not manifestly excessive

CRIMINAL LAW - conviction appeal - convictions for armed robbery - unreasonable verdict - admission of resemblance evidence - s 137 Evidence Act 1995 - circumstantial evidence - DNA evidence - fresh evidence

MORTGAGES - mortgages and charges generally - particular mortgages and encumbrances - subrogation - where joint venture agreement - where third party has paid off a mortgage - whether the presumption that the third party intends to keep the mortgage alive for its own benefit was rebutted - whether primary judge erred in rejecting the subrogation claim EQUITY - general principles - priorities between competing interests

PROCEDURE - courts - concurrent jurisdiction of different courts - transfer of proceedings under cross-vesting legislation STATUTES - whether jurisdiction exercised by primary judge was with respect to a matter arising under the Patents Act in respect of which proceedings may under that Act be started in a prescribed court - whether Court of Appeal has jurisdiction to hear application for leave to appeal/appeal in present proceedings - operation of cross-vesting legislation

CRIMINAL LAW - murder - manslaughter - special hearing - killing of deceased uncontested - provocation, s 23 of the Crimes Act 1900 - substantial impairment, s 23A of the Crimes Act 1900

EVIDENCE - accused was playing violent computer game before confrontation leading to death of deceased - whether evidence of nature of the computer game admissible - whether probative of state of mind of accused - whether probative value outweighed by prejudicial effect.

CORPORATIONS - arrangements and reconstructions -- orders sought advising in respect of entry into trust scheme - where majority of securityholders voted in favour of the trust scheme and no party appeared to oppose the trust scheme - whether opinion, advice and directions in respect of trust scheme should be given.

EVIDENCE LAW - application to cross-examine witness pursuant to s 38 Evidence Act 1995 - witness made prior inconsistent statement - whether probative value of evidence outweighs danger of unfair prejudice - whether recounting of conversation exact - credibility finding of witness on voir dire - Crown Prosecutor permitted to cross-examine - evidence not excluded

CORPORATIONS - winding up - winding up voluntarily - where parties consent to appointment of a liquidator - whether just and equitable that winding up order be made.

PROCEDURE - application for stay of proceedings - balance of convenience - whether a grant of stay will be in the interests of justice

Real Property - Torrens system - Caveat - Interest claimed therein - Equitable charge - Pursuant to solicitor's costs agreement - Whether sufficient description of interest in caveat - Real Property Regulation 2008, sch 3. Real Property - Contracts in relation to land - Equitable charge - Part performance - Lack of writing - Whether provision of legal services referrable to granting of a charge to secure fees - Whether composite or severable agreement - Conveyancing Act 1919, ss 23C and 54A. Equity - Fiduciary duties - Conflict - Solicitors - Where client granted charge over all property to solicitor without explanation thereof by solicitor - Whether charge enforceable - Whether conflict of interest - Desirability of explaining charging clause to client - Legal Profession Act 2004, s 320.

CRIMINAL LAW - Commonwealth Code - attempt - necessity for conduct that is a step towards the commission of an offence and is beyond that which is merely preparatory together with a state of mind or intention to commit the crime - conduct must be such as cannot reasonably be regarded as having any other purpose than the commission of the offence charged - necessity to direct on the two separate aspects of the crime, conduct and intent - error in insufficiently separating the two aspects - not an unreasonable verdict - no substantial miscarriage of justice has occurred - appeal dismissed.

CRIMINAL LAW - practice and procedure - judgments and orders - slip rule - amendment of error in term of sentence.

CRIMINAL LAW - appeal - conviction - break, enter and steal - whether trial judge erred in law in failing to leave to the jury an alternative offence of receiving stolen property. CRIMINAL LAW - appeal - conviction - whether jury verdict is unreasonable or cannot be supported having regard to the evidence.

CRIMINAL LAW - appeal - sentence - application for extension of time to appeal - Applicant sentenced in June 2011 - alleged Muldrock error - knowingly taking part in supply of large commercial quantity of prohibited drug - 2,272.612 kilograms of 100% pure MDP2P - more than 4,000 times large commercial quantity - capable of providing 2,454 kilograms of pure MDMA - total street value about $500 million - Applicant travels to Australia to perform range of activities related to offence - Muldrock error not demonstrated - no error in assessment of objective seriousness - sentence not manifestly excessive - lesser sentence not warranted in any event - no merit in proposed grounds of appeal - extension of time to appeal refused

CRIMINAL LAW - leave to appeal against sentence - supply large commercial quantity of methylamphetamine - applicant with mental health issues - whether Muldrock error - whether sentencing judge took mental health issues into account in assessing objective seriousness - whether error in assessing objective seriousness - whether sentence manifestly excessive - low purity of drug.

LEAVE TO APPEAL - three proceedings in Local Court - appeal to Supreme Court dismissed - where appeal to Supreme Court dealt with all three proceedings as a single proceeding - whether leave to appeal to Court of Appeal required under s 101(2)(r) of Supreme Court Act 1970 in relation to any one or more of the three Local Court proceedings - where only one of the Local Court proceedings was worth over $100,000 - where common material in all three Local Court proceedings

CRIMINAL LAW - appeals from convictions in Local Court to District Court of traffic offences - judicial review of dismissal of appeals - judicial review of refusal to submit question of law to Court of Criminal Appeal - no judicially reviewable error - summons dismissed TRAFFIC LAW - suspension of driver's licence following laying of charge - charge subsequently withdrawn - withdrawal of charge no defence to further charge of driving while licence suspended

TORTS - damages - workplace injury - whether primary judge erred in evaluation of medical evidence - whether assessment of damages for future medical expenses and domestic assistance excessive - whether damages ought to have been reduced pursuant to Workers Compensation Act 1987, s 151Z

PROCEDURE - amendment of pleadings - whether proposed amendments disclose an arguable cause of action.

BUILDING & CONSTRUCTION - building contracts - whether guarantee should be released to a contractor - whether principal estopped from disputing contractor's entitlement to have its guarantee returned - no question of principle

EVIDENCE - whether the third defendant signed the guarantee EQUITY - whether the third defendant authorised her husband, the second defendant, to sign the guarantee in the third defendant's name under a general power of attorney - whether the power of attorney enabled the second defendant to execute documents on behalf of the third defendant where those documents confer a benefit on the second defendant and no benefit on the third defendant - whether the guarantee did confer a benefit on the third defendant EQUITY - whether the third defendant ratified the guarantee by taking no action after learning about its execution in her name and by her claims in a defence and cross claim EQUITY - whether the third defendant's actions after learning about the guarantee being signed in her name gives rise to estoppel

PROCEDURE - notice of motion - legal professional privilege - documents - s 118, s 119 Evidence Act - whether documents disclosed - some documents not confidential - whether solicitor' and counsel independent - dominant purpose - waiver - waiver established - s 122 Evidence Act does not apply - orders EVIDENCE - privilege - legal professional privilege - privileged claimed under s 118 and s 119 of Evidence Act