Cases and authorities

CORPORATIONS - Application for order requiring respondent to make affidavit deposing to certain matters and requiring respondent to deliver up passports and restraining him from leaving Australia - where respondent is a former director of corporation.

CRIMINAL LAW - trial - where juror identified as a previous member of Court Reporting Branch - where application made to discharge the jury - application based upon juror having particular knowledge of Court processes - application to discharge the jury refused

PROCEDURE - costs - application for indemnity costs - whether defendants should pay costs of their application for stay of possession - where mortgagee relying upon contractual entitlement to costs - interaction between court's discretion in relation to costs and terms of the mortgage - general rule costs follow the event.

PRACTICE AND PROCEDURE -

POSSESSION - application to set aside default judgment - whether there is an arguable defence - delay - whether statement of claim served

CRIMINAL LAW - appeal - where medical evidence on sentence did not establish causal link between applicant's mental state and offending - where submission made to sentencing judge as to the applicant's mental state was confined to its effect upon general deterrence - where it was sought to be argued on appeal that applicant's mental state was relevant to an assessment of moral culpability - whether judge erred in failing to take into account the applicant's mental state CRIMINAL LAW - sentence - parity - where applicant committed offence in the course of joint criminal enterprise with his father - where term of imprisonment imposed upon the applicant was more than that imposed on his father - whether applicant had a justifiable sense of grievance CRIMINAL LAW - sentence - applicant sentenced to a minimum term of 18 years imprisonment with an additional term of 7 years imprisonment - where no challenge to findings of the sentencing judge that the murder was pre-meditated, involved the use of weapons and was carried out with an intention to kill - whether sentence manifestly excessive CRIMINAL LAW - sentence - where applicant taken into custody overseas pending his extradition to Australia to be charged with the deceased's murder - where sentence imposed was backdated to his arrival in Australia rather that to the date on which he was taken into custody - error corrected

CORPORATIONS - winding up - statutory demand - application to set aside - Corporations Act 2001, ss 459G, 459H - whether evidence sufficient to establish offsetting claim - whether evidence sufficient to establish quantum of offsetting claim

PROCEDURE - application to vary or set aside orders of the court - no question of principle

COSTS - ENVIRONMENT AND PLANNING - land valuation appeal in Land and Environment Court - rule precluding award of costs unless "fair and reasonable in the circumstances" - r 3.7 Land and Environment Court Rules - general principles applicable to the exercise of a discretion to award costs referred to - whether success on previous land valuation appeals and non-acceptance of Calderbank offer relevant to discretion to award costs - whether Valuer-General in different position to other litigants in relation to Calderbank offer - whether costs should have been awarded from date of Calderbank offer rather than for whole proceedings

CRIMINAL LAW - procedure - application to vacate trial date - where Legal Aid grant has not been secured - where convenient for commencement date to be deferred.

DEFAMATION- plaintiff's entitlement to "nail the lie"- use of evidence depends on admissibility- relevant to damages- giving of evidence itself a remedy EVIDENCE- construction of s 76, s 78 and s 79 Evidence Act 1995- whether unqualified plaintiff's evidence of falsity of matter of expert opinion is admissible to prove its falsity or is limited to the plaintiff's belief

EVIDENCE- whether plaintiffs identified in evidence of persons who made adverse comments about the plaintiffs' product- whether inference could be drawn that such persons viewed the broadcast that constituted the matter complained of

CRIMINAL LAW - conviction appeal - convictions for aggravated sexual intercourse without consent under s.61J Crimes Act 1900 (five counts) and indecent assault under s.61L Crimes Act 1900 (two counts) - s.61J counts contained incomplete statement of circumstances of aggravation - counts alleged threats "to inflict actual bodily harm" upon complainant - counts omitted to allege "by means of an offensive instrument" - omission detected after verdicts - unsuccessful Crown application to amend indictment after verdicts - appeal against conviction - appeal heard prior to sentence - claim that indictment a nullity - held indictment not a nullity - claim of misdirection on s.61J counts - ground established given absence of legal and factual directions concerning "offensive instrument" component - claim of erroneous Markuleski direction and good character direction - grounds rejected - claim that verdicts unreasonable - held that s.61L verdicts reasonable - s.61J verdicts cannot stand given established misdirection - whether substitute verdicts of guilty of having sexual intercourse without consent under s.61I Crimes Act 1900 should be returned on s.61J counts - application of s.7(2) Criminal Appeal Act 1912 - verdicts of guilty of s.61I offences returned on s.61J counts - proceedings remitted to District Court for sentence for s.61I and s.61L offences

CRIMINAL LAW - Crown appeal against ruling excluding coincidence evidence - Crown appeal against interlocutory judgment severing counts on indictment - whether ruling eliminated or substantially weakened the prosecution case - Criminal Appeal Act 1912, 2 5F. EVIDENCE - admissibility - coincidence evidence - test - relevance - significant probative value - Evidence Act 1995, ss 55 and 98.

CRIMINAL LAW- sentencing- relevance of motive- vigilantism- whether sentencing De Simoni principle infringed by taking into account injuries to victim- whether quasi-custody considered- no submission made at hearing or sufficient evidence adduced- parity- no justifiable sense of grievance- whether sentence manifestly excessive- accumulation required to comprehend criminality- proposed additional ground- fresh evidence

CRIMINAL LAW- sentence- Crown appeal- manifest inadequacy- substantial concurrence of sentence with sentence already imposed- effect of delay- provided opportunity for respondent to re-offend- exercise of residual discretion- physical and mental deterioration of respondent since sentence imposed

CRIMINAL LAW - APPEAL - application for extension of time - where delay of more than six years - approach to be taken in determining application for extension of time - necessity for the applicant to adduce evidence which fully explains the delay CRIMINAL LAW - APPEAL - incompetence of counsel - principles to be applied CRIMINAL LAW - SENTENCE - where some offences for which appellant convicted had been repealed - approach to be taken in sentencing for such offences - whether sentence manifestly excessive

MEDICAL PROFESSION - unsatisfactory professional conduct - professional misconduct - where Medical Tribunal suspended doctor's registration indefinitely when it had power to suspend it "for a specified period" - where Medical Tribunal authorised Medical Council to lift suspension if certain conditions imposed by Tribunal satisfied - where Tribunal ordered certain conditions be placed on doctor's practising certificate by Council - where Tribunal ordered that Council fulfil its obligations under the National Law if doctor were to resume practice in New South Wales - whether any or all orders beyond power of Tribunal COSTS - where Tribunal did not order costs to follow the event despite doctor unsuccessfully contesting the proceedings - whether impecuniosity or hardship sufficient justification to depart from rule that costs follow event - costs as compensation to successful litigant not penalty to unsuccessful litigant

PROCEDURE - application for summary disposal under UCPR 13.4 - whether proceedings clearly untenable or groundless - where plaintiff and husband joint owners of units in trust - jurisdiction of the Supreme Court of New South Wales - whether proceedings constitute matrimonial cause - some dividends on units paid into joint account - where husband alleged to have received entire benefit of dividends to exclusion of plaintiff - determination of rights requires inquiry into facts and circumstances surrounding the establishment and maintenance of joint account - whether claims are defeated by releases given by plaintiff - whether claims are defeated by agreement to transfer units - arguable that releases do not prevent claims - potential for plaintiff to argue agreements not binding - causes of action not shown to be clearly untenable or groundless

PRACTICE & PROCEDURE - disclosure - application for disclosure - where owners strata plan was not in existence at time building contract was entered and relevant works completed - where owners strata plan was unable to identify relevant parties of the building contract and their roles - Practice Note Eq 11 - exceptional circumstances - meaning of exceptional circumstances - principles to be applied PRACTICE & PROCEDURE - application for leave to amend list statement - where application to amend made concurrently with application for disclosure - appropriate to determine application for disclosure prior to application to amend - s 56 Civil Procedure Act 2005 (NSW)

[PRACTICE AND PROCEDURE] - summary dismissal - breach of contract - misleading or deceptive conduct - where oral contract only recently pleaded - where written contracts exist - whether no reasonable cause of action - whether test for summary dismissal changed upon enactment of Civil Procedure Act 2005, s 56 - Civil Procedure Act, s 56 - Supreme Court Rules 1970, Pt 1, r 3 - Uniform Civil Procedure Rules 2005, r 13.4.

PRACTICE AND PROCEDURE - application for a stay of a writ of possession - no question of principle

PRACTICE AND PROCEDURE - application for leave to file a motion extending time to file a notice of appeal from a decision of the Local Court of New South Wales

PRACTICE AND PROCEDURE - application for summary judgment under r13.1 Uniform Civil Procedure Rules 2005 (NSW) in respect of claim for possession of real property following mortgage default

PRACTICE AND PROCEDURE - judgments and orders - correction of order under the slip rule - Uniform Civil Procedure Rules 2005 r 36.17 - common ground there was a slip - discretion to correct the slip - delay in bringing application - whether plaintiff prejudiced by delay

EQUITY - application for an injunction to prevent the third defendant exercising its rights to sell the properties as mortgagee in possession on the basis that the second plaintiff's equitable interest, arising out of a call option entered into with the first and second defendants, will not be adequately protected if the properties are sold - offer by the purchaser to the caveator of call option in almost identical terms

COMPETITION LAW - comments made by a politician to a journalist - whether capable of amounting to conduct in trade or commerce - whether plaintiff should have leave to amend to plead a cause of action under the Australian Consumer Law (NSW) DEFAMATION - imputations - objections as to form - rhetorical

FAMILY LAW AND CHILD WELFARE - adoption - inter-country adoption - child from country not party to Hague Convention - application for orders dispensing with consent and notice requirements - whether birth parents of child cannot, after reasonable inquiry, be found or identified - application for approval for change of name - whether change of name is in child's best interests

EQUITY - trusts and trustees - applications to court for advice - private trust - whether trustee justified in continuing to prosecute proceedings and defend a cross-claim in proceedings - whether trustee entitled to be indemnified out of trust assets for costs of proceedings - where allegations made of breach of trust - where removal of trustee sought - whether court should provide advice - judicial advice given

DEFAMATION - form of pleading - where statement of claim includes extensive material extraneous to cause of action - whether liable to cause prejudice embarrassment or delay

PROCEDURE - referral to referee - where matters in respect of transactions, assets and liabilities of five trusts were referred to a referee pursuant to r 20.14 Uniform Civil Procedure Rules 2005 (NSW) - whether referee's report giving an account of transactions, assets and liabilities of relevant trusts should be adopted. PROCEDURE - application for leave to file further amended cross-claim - strike-out application in respect of amended cross-claim - whether pleadings state with sufficient clarity the case that must be met - whether pleadings have a tendency to cause embarrassment in the proceedings. PROCEDURE - judgments and orders - application to stay other proceedings.

APPEAL - appeal on a question of law from Appeal Panel of Administrative Decisions Tribunal - whether Tribunal mistaken in treating the present case as analogous to another case - whether error of law in construing 'residence' - whether error by Panel in misstating finding of fact by Tribunal STATUTORY INTERPRETATION - precedent - cases authority for principles, not application to particular facts - whether error to proceed by reference to 'analogous' case STATUTORY INTERPRETATION - extraction of word from statutory context - meaning of 'residence' in clause 'used and occupied by the person as the person's principal place of residence' TAXES AND DUTIES - land tax - Land Tax Management Act 1956 (NSW), Schedule 1A, Pt 2, cl 2 - exception from land tax where person owns land 'used and occupied by the person as the person's principal place of residence' -applicant living at competing residence - land not used and occupied by the person where, with his or her consent, another person occupies premises - legal possession not necessary indicator of 'use and occupation' WORDS AND PHRASES - "used and occupied" - Land Tax Management Act 1956 (NSW), Sch 1A, Pt 2, cl 2(2)(b)

REAL PROPERTY - possession of land - proper construction of mortgage - whether property a secured debt under the mortgage - whether a tenancy order ought to be made under s 125(4) of the Residential Tenancies Act 2010 - whether "special circumstances" exist

CONTRACTS - formation - acceptance - acceptance by conductCONTRACTS - breach of contract - where consultant engaged to obtain and review tenders to supply an electric generator to work in synchronisation with two existing generators - where generator supplied incompatible with existing generators - where consultant required tenderers to comply with performance specifications - whether consultant required to verify or audit compliance with performance specificationsCONTRACTS - breach of contract - where tenderer supplied an electric generator to work in synchronisation with two existing generators - where generator supplied incompatible with existing generators - whether compliance with tender performance specifications a term of the contractCONTRACTS - interpretation - meaning of phrase "performance specification"MISLEADING OR DECEPTIVE CONDUCT - misrepresentations - where successful tenderer retained to supply an electric generator to work in synchronisation with two existing generators - where successful tenderer asked manufacturer to identify the winding pitch of the existing generators - where manufacturer supplied incorrect winding pitch - where generator subsequently supplied incompatible with existing generators due to inconsistent winding pitches DAMAGES - action for damages - misleading or deceptive conduct - reliance - requirement of causation - requirement to consider the policy or rationale of the relevant legal normDAMAGES - assessment - apportionment

SUCCESSION - FAMILY PROVISION - The Plaintiff, the stepdaughter of the deceased, seeks a family provision order out of the estate of the deceased under the Succession Act 2006 - The Defendant is the executrix to whom Probate granted - Dispute as to Plaintiff's eligibility - Dispute as to factors warranting the making of the application - If both eligibility and factors warranting the making of the application established, whether to make a family provision order - If order for provision made, nature of order - Relationship of Plaintiff and the deceased

COSTS - notice of motion filed by first defendant seeking bullock order against plaintiff - whether circumstances exist justifying departure from the ordinary rule that costs follow the event

PRACTICE AND PROCEDURE - application for a stay of a writ of execution - no question of principle

ADMINISTRATIVE LAW - judicial review - certiorari - error of law on the face of the record - jurisdictional error - plaintiff insurer challenges certificate issued by claims assessor under s.94 Motor Accidents Compensation Act 1999 (NSW) - application for relief in the nature of certiorari in respect of assessment made for future domestic care on a commercial basis - whether failure to apply general law principles - whether reasons inadequate - whether failure to give proper, realistic and genuine consideration to the merits of the case concerning future care

SUBPOENAS - no question of principle

PROBATE - intestacy - deceased dies intestate in March 2011 - one plaintiff says she was the deceased's de facto spouse for at least 2 years before his death and entitled under Succession Act 2006 s 113 to the statutory legacy for spouses - another plaintiff, the deceased's daughter denies the first plaintiff was the de facto spouse of the deceased and claims that the daughter is entitled to the estate under Succession Act, s 127 - whether the first plaintiff was the deceased's de facto spouse and entitled under Succession Act, s 113 - HELD: - first plaintiff was the deceased's de facto spouse for at least 2 years before his death and entitled under Succession Act 2006 s 113 SUCCESSION - family provision - two competing claims for family provision, the first from the spouse/plaintiff and the second from the daughter/plaintiff - as the spouse/plaintiff has established her entitlement to the statutory legacy under Succession Act 2006 s 113, she does not further pursue an order for provision under Succession Act 2006 s 59 - but the statutory legacy to the spouse under Succession Act 2006 s 113 accounts for the whole of the estate - so the daughter/plaintiff seeks an order for provision under Succession Act 2006 s 59 - daughter is an eligible person under Succession Act 2006 s 57 - daughter profoundly disabled - whether adequate provision has been made for daughter - what provision should be made for the proper maintenance, education and advancement in life of the daughter - HELD: - daughter entitled to 65% of the estate and spouse to 35% of estate - orders for provision out of the estate made on an inclusive-of-costs basis. ADMINISTRATION - competing claims for administration of the deceased's estate - where small estate does not wholly go to one individual beneficiary - where acrimony between beneficiaries - HELD:- Public Trustee proposed to be appointed as administrator of the estate, subject to the parties being able to find another appointee to act at a lower cost.

ADMINISTRATIVE LAW - judicial review - certiorari - jurisdictional error - plaintiff insurer challenges validity of two decisions of claims assessor of Motor Accidents Claims Assessment and Resolution Service - whether claims assessor identified a wrong issue or asked herself a wrong question in refusing discretionary exemption of the claim from the provisions of Part 4.4 Motor Accidents Compensation Act 1999 (NSW) - whether refusal of claims assessor to disqualify herself on the basis of reasonable apprehension of bias constituted jurisdictional error

CRIMINAL LAW - practice and procedure - application for trial by judge alone - where medical evidence supported the raising of the defence of substantial impairment by the accused - where principal issue whether impairment was so substantial as to warrant liability for murder being reduced to manslaughter - where assessment of that issue would require application of community standards - application refused

PROCEDURE - settlement of proceedings and entry of judgment - where judgment conclusively determines plaintiffs' liability to bank as guarantors - where plaintiffs' liability as guarantors not accurately reflected in the judgment - where plaintiffs allege solicitors advice to settle was negligent - advocate's immunity - whether controversy concerning indebtedness as guarantors quelled by judgment in previous proceedings - whether plaintiffs' liability can be revisited - whether solicitors' advice regarding consent orders "intimately connected" with conduct of plaintiffs' case below - whether advocate's immunity extends to compromise made after court is informed proceedings have settled where terms of settlement relate to matters not disputed in court - whether matters not in dispute collateral to previous proceedings not offending principle of finality - whether question of advocate's immunity can be considered separately from principal allegations of negligence

COSTS ORDER - costs order where application for summary judgment in Commercial List dismissed - circumstances surrounding application for summary judgment - discretion of court to award costs - effect of defendants' conduct in relation to the application.

CONTRACTS - interpretation - where coal supply agreement provides for apportionment of charges attributable to coal sold - where government levies charges on carbon emissions associated with coal production - whether charges levied for carbon emissions attributable to coal sold - meaning of words "attributable to"; "attributibility"; "attribute" - whether causal connection between charges levied for carbon emissions during coal production and the subsequent sale of coal.

ADMINISTRATIVE LAW - judicial review - relief - whether quashing order available unless rights directly affected or decision a step in a process with legal consequences - whether jurisdictional or legal error - whether order available against judge of Supreme Court APPEAL - refusal to grant an inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Part 7 - decision by judge of a superior court - whether exercise of judicial function - whether appeal available under Supreme Court Act 1970 (NSW), s 101 CRIMINAL LAW - appeal and review - unsuccessful appeal - application for inquiry - whether doubt or question as to guilt - whether refusal to direct an inquiry reviewable WORDS & PHRASES - "proceedings" - Crimes (Appeal and Review) Act 2001 (NSW), s 79 - "judgment or order" - Supreme Court Act 1970 (NSW), s 101

DEFAMATION - objections to imputations - imputations struck out in current form with leave to replead

CORPORATIONS - scheme of arrangement - application under s 411 Corporations Act 2001 (Cth) for orders convening a meeting of members to consider a proposed scheme of arrangement and for approval of the proposed scheme of arrangement - whether the proposed scheme is within the scope of s 411 Corporations Act.

CONTRACTS - interpretation - calculation of incentive fee - where incentive fee calculated with reference to "trades on ASX" - meaning of "trades on ASX" within context of particular contract - whether term excluded sales resulting from acceptances of off-market takeover offer.

Contracts - Deed of settlement - Release - Release of one party but not another - Where plaintiff director of other party - Where deed contained non-disparagement clause - Whether continuation of other suit constituted disparagement.