Cases and authorities

REAL PROPERTY - Torrens system - caveats - caveatable interest - where wife claims equitable interest in land held by husband - where no remedial constructive trust over land ordered - whether defect in caveat could be cured - whether caveatable interest disclosed - Real Property Act 1900, ss 74K, 74L, 74O - Real Property Regulation 2008, Sch 3

TRUSTS AND TRUSTEES - Application for advice as to proper construction of will - Whether direction should be given to permit expert evidence of taxation consequences of different constructions EVIDENCE - Expert opinion - Application for direction to allow plaintiffs to adduce expert evidence of Australian taxation law

REAL PROPERTY - Tenancy in common - Proceedings for sale - Whether agreement prevented exercise of discretion in favour of plaintiff - Conveyancing Act 1919 (NSW), s 66G

PROCEDURE - costs - security for costs - discretion whether to make an order for security for costs - impecuniosity of plaintiff allegedly a result of defendants' actions the subject of litigation - recoverability of receivables shown on plaintiff's balance sheet - lack of evidence by which to assess the strength of the plaintiff's case - costs of security for costs application - no evidence that ordering security would frustrate litigation - security ordered

EQUITY - whether orders previously made can be varied so that the defendants are required to pay the judgment sum directly to the receiver.

PROCEDURE AND EVIDENCE - claim inadequately pleaded - reasonable request to inspect documents - failure to comply with request - application for requested documents not to be admitted into evidence - right to test authenticity of evidence - failure to comply with court order - overseas travel no excuse for failure to comply - plaintiff claim dismissed - costs awarded

PRACTICE AND PROCEDURE - list statement and list response serving functions of pleadings - application to strike out - requirements of "pleading" - apportionable claim under Pt 4 of the Civil Liability Act 2002 (NSW) - principles to be applied

EVIDENCE - admissibility

PRACTICE AND PROCEDURE - civil - documents - affidavits - outline of proposed witness testimony - served after date in guillotine order - whether serving party should be granted leave to rely on evidence

PRACTICE & PROCEDURE - Practice Note SC Eq 11 - discovery - where discovery ordered prior to commencement of Practice Note SC Eq 11 - where numerous additional potentially relevant documents located after commencement of Practice Note - whether party obliged to provide discoverable documents

PRACTICE AND PROCEDURE - application to strike out part of first defendants further amended defence relying on s18A Limitation Act 1969 (NSW) - r14.28 Uniform Civil Procedure Rules - r 2.1 UCPR - whether first defendant abandoned defence prior to trial - whether conduct amounted to abuse of process

Wills, probate and administration - Construction of Will - Ademption of a gift by sale under an enduring power of attorney - Intended beneficiary predeceased deceased - Succession Act 2006 NSW, s 41 conferred standing on issue of intended beneficiary to contend that the Powers of Attorney Act 2003 NSW, s 22 applied to save gift from complete failure - Section 22 not applicable on proper construction of the Powers of Attorney Act 2003, s 6 - Ademption under general law.

PRACTICE AND PROCEDURE - Leave to amend - requirements for pleading fraud - whether plaintiff should be granted leave to amend his Statement of Claim to plead fraud - where there has been insufficiently explained delay and defendants will suffer prejudice if leave granted - leave to amend refused

EQUITY - Baumgartner constructive trust - whether parties pooled resources - whether parties were engaged in a joint endeavour - whether parties acted in the course of, and for the purposes of, a joint relationship or endeavour - relevance of parties' intention to create a joint endeavour. ESTOPPEL - estoppel by convention - whether parties had adopted a common assumption as to the existence of a trust arrangement. EVIDENCE - burden of proof - whether defendants bear an onus to displace plaintiffs' allegations - difficulty of proof with sufficient precision of words allegedly spoken several years ago absent contemporaneous record - rejection of a witness' evidence does not necessarily prove or require acceptance of the opposite of what was asserted - relevance of failure to raise a matter in correspondence where the relationship between the parties is such that a particular reply might be expected.

CRIMINAL LAW - murder and other offences - special hearing - imposition of limiting term under Mental Health (Forensic Provisions) Act - whether mental condition relevant to length of limiting term - whether defence of mental illness otherwise available in respect of additional charges

NEGLIGENCE - cyclist fell from timber bridge and was injured when wheel of bicycle became stuck in gap between planks - duty of care - relevance of funding constraints - Civil Liability Act 2002, s 42 - whether duty to warn owed - whether risk obvious - Civil Liability Act, ss 5F, G & H NEGLIGENCE - liability - whether organised long distance charity ride a dangerous recreational activity - Civil Liability Act, s 5L - immunity of roads authorities under Civil Liability Act, s 45 - whether installation of sign constitutes "road work" - whether roads authority had actual knowledge of particular risk - exercise of special statutory power - Civil Liability Act, s 43A NEGLIGENCE - breach of duty - resurfacing bridge - replacing bridge deck - replacing individual planks - guardrails or fencing - erecting warning sign - negligent inspection - whether exercise of reasonable care would have required defect to have been acted upon - funding constraints - Civil Liability Act, ss 5B, 5C & 42.

NEGLIGENCE - plaintiff injured after being trapped by train door and falling from moving carriage - part of the body of the plaintiff protruding from door when train left station - duty owed - being trapped in door a danger likely to arise from the ordinary use of the train and which might reasonably be expected - risk of harm - breach of duty - failure of customer service attendant to observe plaintiff trapped by door before signalling to guard that train could leave - causation - contributory negligence - standard of care - position of unsupervised child with little experience of train doors or riding on trains - whether cognitive impairment of plaintiff before accident relevant - assessment of damages - eggshell skull rule - relevance of pre-accident developmental delays.

CRIMINAL LAW - sentence appeal - application for extension of time to appeal - Applicant sentenced in February 2010 - Applicant convicted after trial of solicit to murder (s.26 Crimes Act 1900) - offence subject to standard non-parole period - Applicant (42 years old) solicits another person to murder Applicant's partner (19 years old) - motive to obtain custody of two-year old child of relationship - offence committed in breach of conditional liberty - significant criminal history - importance of specific and general deterrence - sole ground of appeal asserted Muldrock error - Muldrock error conceded by Crown - whether some lesser sentence is warranted in law - held no lesser sentence is warranted - insufficient prospects of success - application for extension of time to appeal refused

CRIMINAL LAW - Crown appeal - directed acquittal - failure by trial judge to apply correct principles - failure to take Crown case at its highest - direction made before conclusion of Crown case - appropriate case for exercise of residual discretion to quash verdict and order new trial

EVIDENCE - offence of aggravated people smuggling - evidence of admission made to officer of Royal Australian Navy boarding party - use of translation cards - objection taken at trial on ss 85, 90, and 139 - evidence admitted - asserted unfairness, unreliability and failure to adequately caution - findings of fact open with regard to s 85 that circumstances did not adversely affect truth of admissions - no House v The King error regarding reliance upon caution administered with translation cards as bearing against rejection of the admission for the purposes of ss 90 and 139 - decisions below not erroneous CRIMINAL LAW - offences - people smuggling - s 233C Migration Act - appellant crew on boat found near Christmas Island with fifty-seven passengers - made admissions in response to translation card that indicated awareness of being in Australian waters - conversations with passengers on voyage to similar effect - trial judge directed that the necessary intention was awareness of passengers intended destination of Australia - proper directions about unreliability of conversations and admission - Crown case not reliant on proving that appellant aware Christmas Island was part of Australia - defence case simply that appellant going to entirely different destination in Indonesia - no misdirection on elements established CRIMINAL LAW - appeals generally - practice and procedure - objection to admissions taken below on specific grounds - objection not upheld - further grounds raised in support of objection in appeal against ruling - application of Rule 4 where objection taken below but new grounds raised on appeal - consideration of general requirement that counsel make clear at trial the grounds on which particular rulings are sought - Rule 4 applies - common law practice generally contrary to reliance upon new grounds, subject to question of miscarriage of justice

CRIMINAL LAW - sentence appeal - supplying a commercial quantity of a prohibited drug - applicant sentenced in June 2009 - whether decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled applicant to an extension of time for leave to appeal against sentence - importance of principle of finality - "Muldrock error" established - whether substantial injustice would result if an extension of time were refused - application of s6(3) Criminal Appeal Act 1912 - re-exercise of sentencing discretion by Court of Criminal Appeal - no lesser sentence warranted in law - application for extension of time dismissed.

CRIMINAL LAW - sentence appeal - application for extension of time to appeal - Applicant sentenced in June 2009 - Applicant convicted after trial of malicious wounding with intent to cause grievous bodily harm (s.33(1) Crimes Act 1900) - offence subject to a standard non-parole period - Applicant arranges for sex worker to attend unoccupied premises - Applicant attacks victim from behind with weapon inflicting grievous bodily harm - Applicant flees premises leaving victim behind - sole ground of appeal asserted Muldrock error - Muldrock error conceded by Crown - whether some lesser sentence warranted in law - held no lesser sentence warranted - insufficient prospects of success - application for extension of time to appeal refused

CRIMINAL LAW - sentence appeal - application for extension of time to appeal - Applicant sentenced in November 2009 -Applicant pleaded guilty to offences of knowingly taking part in the manufacture of a prohibited drug (s.24(1) Drug Misuse and Trafficking Act 1985), possession of a precursor (s.24A(1)) and manufacturing a large commercial quantity of a prohibited drug (s.24(2)) - s.24(2) offence committed whilst Applicant on bail for s.24(1) and s.24A(1) offences - only s.24(2) offence subject to standard non-parole period - claim of Muldrock error in relation to s.24(2) offence - no challenge made to sentences for s.24(1) and s.24(2) offences - held no Muldrock error demonstrated - claim of disparity between the sentences of the Applicant and his co-offender for the s.24(2) offence - held no legitimate sense of grievance in relation to the sentence imposed on co-offender - no lesser sentence warranted in any event - insufficient prospects of success - application for extension of time to appeal refused

CRIMINAL LAW - sentence appeal - asserted Muldrock error - application for extension of time in which to appeal - Applicant sentenced in December 2010 - Applicant pleaded guilty to one count of causing grievous bodily harm contrary to s.33(1)(b) Crimes Act 1900 - offence subject to a standard non-parole period - offence of affray taken into account on Form 1 - sole ground of appeal asserted Muldrock error - held that sentencing Judge applied two-stage approach - whether lesser sentence warranted - nature of offence under s.33 - wide gap between maximum penalty of 25 years and standard non-parole period of seven years - attack with sledgehammer to head of victim - offence committed in breach of conditional liberty - limited intellectual capacity of Applicant - held no lesser sentence warranted - insufficient prospects of success - application for extension of time in which to appeal refused

CRIMINAL LAW - appeal - application to extend time in which to seek leave to appeal against sentence - asserted Muldrock error - principles to be applied in determining whether extension of time should be granted - where Muldrock error established - whether extension of time should be granted CRIMINAL LAW - sentence - where applicant convicted of multiple counts of having sexual intercourse without the consent of the victim - where sentencing judge erred in extending additional term of imprisonment to reflect a finding of special circumstances rather than reducing the non-parole period - where sentencing judge erred in assessment of psychiatric evidence - where sentencing judge erred in imposing a fixed term of imprisonment for an offence for which a standard non-parole period was prescribed - whether offending mitigated by the fact that the applicant and victim were in a relationship - where offending took place in context of domestic violence - where no other sentence warranted in law and no miscarriage of justice - application for extension of time dismissed

CRIMINAL LAW - appeal - application for extension of time - so called Muldrock error - where sentencing judge made reference to the standard non-parole period being highly relevant - where necessity to read the reasons for sentence as a whole - error not established CRIMINAL LAW - appeal - application for extension of time - where sentencing judge imposed fixed terms of imprisonment for offences for which a standard non-parole period was prescribed - error made out - no other sentence warranted in law - application for extension of time dismissed

CRIMINAL LAW - appeal - application for extension of time - so called Muldrock error - no error made out CRIMINAL LAW - appeal - application for extension of time - where applicant pleaded guilty to sexual offending committed on daughters - where applicant mentally retarded - where error on the part of the sentencing judge in application of principles pertaining to mentally ill offenders, both in terms of reduction in moral culpability and lessened significance of general deterrence - where delay in bringing appeal explained partly on the basis of erroneous advice having been given to the applicant following sentence - extension of time granted - leave to appeal granted - appeal allowed - sentences quashed - applicant re-sentenced

CRIMINAL LAW - appeal against conviction - historical child sexual assault - verdict not unreasonable - errors in trial transcript - corrected by substantial agreement - appellate court not required to listen to transcript EVIDENCE - tendency and coincidence evidence - confusing directions - coincidental "events" - appropriate coincidental reasoning CRIMINAL LAW - appeal against sentence - manifestly excessive - whether sentence practices at the time of the offences should be applied

TORTS - negligence - motor vehicle accident - collision between motor vehicle and cyclist - whether primary judge erred in concluding that there was insufficient evidence to find driver negligent - no question of principle

CRIMINAL LAW - sentencing - murder - robbery - home invasion - offensive weapon - delayed guilty plea - discounted sentence - offences committed on parole - offences committed in company - aggravated by fact that victims were vulnerable and offences occurred in victims home - mitigating factors - remorse - low intelligence - drug addiction - Aboriginal - victims impact statement

PRACTICE AND PROCEDURE - Contradictor - Hearing reopened on Court's own motion before judgment to require contradictor

SUCCESSION - wills, probate and administration - where deceased died intestate - "Benjamin order" sought by trustee.

EQUITY - trusts and trustees - applications to the court for advice - large superannuation fund - trustee and directors of trustee acting gratuitously - burdensome obligations of management - whether trustee justified in effecting amendment to trust deed to facilitate payment of remuneration - advice given that trustee would be so justified.

PRACTICE AND PROCEDURE - civil - interlocutory issues - determination of separate questions BUILDING AND CONSTRUCTION -Building and Construction Industry Security of Payment Act 1999 -- determination of reference date - whether two identical payment claims were in respect of the same reference date - whether the Act precludes service of second payment claim

[JUDGMENTS AND ORDERS] - Enforcement of orders - Where defendant judgment debtor to third party - Where plaintiff not judgment creditor - Whether plaintiff can enforce judgment debt - Garnishee order - Writ of execution - Charging order. [JUDGMENTS AND ORDERS] - Variation of orders - Whether orders should be varied to allow plaintiff to become a judgment creditor - Whether prayer for relief for damages not dealt with - Whether order should be corrected under slip rule - Whether abuse of process of seek variation while cross-appeal on foot - Uniform Civil Procedure Rules 2005, rr 36.16 and 36.17. [JUDGMENTS AND ORDERS] - Enforcement orders - Inherent jurisdiction to vary orders - Whether jurisdiction should be exercised.

COSTS - general rule that costs follow the event - exceptions to - partial success on some issues COSTS - interest to judgment - whether should be awarded where plaintiff not successful on all issues

CORPORATIONS - oppression - seriously arguable case that removal of director was in breach of shareholders agreement - whether balance of convenience favours interlocutory order for reappointment of director - where applicant had not been a director for several months before interlocutory relief seeking his reappointment was sought - availability of other orders to protect applicant's interests.

EVIDENCE - expert evidence - admissibility of evidence - whether plaintiff should be permitted to rely on evidence after non-compliance with a court order - interests of justice require balance between any real or substantial prejudice and the determination of all issues at trial - no general point of principle

APPEAL - appellant convicted of contempt - application to withdraw appeal granted - commencement of term of imprisonment.

COSTS - successful respondents sought indemnity costs - UCPR r 20.26 offer of compromise and Calderbank offer to settle appeal on a "walk away basis" - inference that respondents had undertaken little work on the appeal when offers made - no genuine compromise offered - application refused

EVIDENCE - expert evidence - opinion based upon assumptions and documents - documents not in evidence - assumptions not otherwise proved - report rejected

CORPORATIONS - management and administration - meetings - application for extension of convening period for second meeting of creditors - whether extension in best interest of companies' creditors - whether prejudice to any party.

CRIMINAL TRIAL - murder - application to vacate trial date - very late defence application - defence seeks to explore possible partial defence of substantial mental impairment - applicable principles - importance of compliance with statutory notice obligations - order made vacating trial in this case - rigorous approach to be expected where proceedings subject to 2013 mandatory pre-trial defence disclosure provisions

EVIDENCE - expert evidence - report on costs to manufacture products - no basis shown for costings calculated - no other expert uses conclusions on costings - no evidence of sale price of items - no evidence of likely volumes of sales - report rejected

CRIMINAL LAW - murder - accused unfit to plead - special hearing - chronic treatment resistant schizophrenia - whether defence of mental illness established - special verdict.

CRIME - evidence - where accused served notice of intention to call evidence that deceased had a tendency to act in a particular way - call by Crown for production of any statements taken by solicitor for accused from persons identified in notice - whether client legal privilege lost upon service of notice - whether client legal privilege lost upon calling witnesses to give evidence in the case for the accused

COSTS - application for certificate under s6 Suitors' Fund Act 1951 (NSW) STATUTORY CONSTRUCTION - s6 Suitors Fund Act 1951 (NSW) - whether the Claims Assessment and Resolution Service is "a court" for the purposes of the Act - whether a successful claim for judicial review of an assessment made under that regime is "an appeal" for the purpose of the Act

CORPORATIONS - winding up - liquidators - order sought for release of liquidator and deregistration of company - where liquidator gives evidence that all known assets of the company have been realised - where statement required by r 7.5(4) Supreme Court (Corporations) Rules 1999 (NSW) has been provided by the liquidator.

CORPORATIONS - managed investments - meetings - orders sought under s 63 Trustee Act 1925 (NSW) in respect of a proposed trust scheme - where there is a mechanism for scheme members to enforce the right to entitlements that are to be received under the proposed scheme.

Common law - insurance - costs - interest