Cases and authorities

FAMILY LAW AND CHILD WELFARE - Adoption - non-citizen child - child born in Taiwan - not a party to Inter-Country Adoption Convention - not a prescribed overseas jurisdiction - adopting parents not resident or domiciled in Taiwan - adoption application must proceed under (NSW) Adoption Act - birth mother gave consent to adoption in Taiwanese court - birth mother has not given consent for purposes of Adoption Act - consent dispense order applied for - whether evidence establishes birth mother cannot after reasonable enquiry be found - legal paternity not established - approval of a change to add a second given name and surname applied for - adoption order applied for.

INSURANCE - professional indemnity insurance - claim against a solicitor - whether LawCover policy in existence at time of event giving rise to the claim - where two separate events in contest - Law Reform (Miscellaneous Provisions) Act 1946 s 6 - whether the happening of the event giving rise to a claim against a solicitor is the result of a fraudulent, wilful or negligent act or omission by him - claim upon the Torrens Assurance Fund - where Registrar-General subrogated to the claimant in respect of the claimant's rights and remedies against the solicitor in relation to loss caused by solicitor's default - whether Registrar-General able to show existence of a charge upon a LawCover policy of insurance indemnifying defaulting solicitor - whether loss caused by solicitor "compensable loss" for purposes of Real Property Act - whether loss or damage suffered "compensable under an indemnity given by a professional indemnity insurer" - whether indemnity otherwise potentially excluded by dishonesty clause - whether question of dishonesty already determined in earlier proceedings

PROCEDURE Res judicata - issue estoppel - Anshun estoppel - whether defendants are estopped from filing proposed amended defence and proposed further amended cross claim - whether defendants' pleading should be struck out - whether summary judgment should be entered

LEGAL PRACTITIONERS - suspension of practising certificate - whether suspension should be stayed pending appeal.

PRACTICE & PROCEDURE - Injunctions - interlocutory injunctions - application for interlocutory injunctive relief - whether serious question to be tried - balance of convenience

PROCEDURE - subpoena - application for leave to serve in New Zealand - no issue of principle

CORPORATIONS - winding up - voidable transactions - application for orders under s 488FF Corporations Act 2001 (Cth) for an extension of the period within which an application may be brought against certain persons in respect of voidable transactions - where parties consent to extending the time for the commencement of proceedings - whether fair and just in all the circumstances to grant the extension.

REAL PROPERTY - Torrens title - caveats against dealings - removal - caveator - prima facie holds caveatable interest in form of equitable charge - balance of convenience favours extension of caveat - motion for removal dismissed.

PRACTICE AND PROCEDURE - where evidentiary statements served by plaintiffs - where order made by Registrar that plaintiffs not be permitted to rely upon further affidavit material without leave of the court - where Registrar's order made six months prior to trial - where plaintiffs served further affidavit material approximately one week prior to trial - where affidavit material raised new issues - where defendant had made forensic decisions as to the conduct of the case based upon evidentiary statements - where granting of leave would necessitate lengthy adjournment of proceedings so as to allow defendants to investigate new issues raised - where such adjournment would cause further delay and additional costs - leave to rely upon further affidavit material refused

PRACTICE AND PROCEDURE- costs- application for orders forthwith- conduct of unsuccessful party not unreasonable

CRIMINAL LAW - sentence appeal - conspiracy to defraud Commonwealth - Crimes Act 1914 (Cth) - s29D, s86(1) - conspiracy to cause loss to Commonwealth - Criminal Code (Cth) - CROWN APPEAL - ground of appeal that sentence manifestly inadequate - principles relevant to a Crown appeal - respondent an accountant - scheme involving fraudulent claims for deductible business expenses - false invoices - false document trail - period of offending - absence of direct financial benefit - involvement and participation of offender - attempts at concealment of offences - course of criminal conduct - importance of general deterrence - necessity for adequate punishment - personal circumstances of offender - evidence of good character - absence of mitigation - absence of remorse - influence of older and more powerful employer - delay in proceedings - failure of sentence to properly have regard to general deterrence and the need to impose adequate punishment - relevance of extra curial punishment - Interpretation of s16A(2)(p) Crimes Act 1914 (Cth) - probable effect of sentence on family and dependants - whether hardship must be "exceptional" - whether appropriate for this Court to overrule long accepted interpretation of s16A(2)(p) - limited effect on sentence even if probable effect on family and dependants taken into account - need to re-sentence and impose custodial sentence.

PROCEDURE - extension of time to file notice of appeal - appeal of interlocutory order - where substantial delay - whether failure to join plaintiff would render the appeal an abuse of process

EQUITY - whether the matter should be expedited - whether an order should be made to restrain the defendant from preventing or hindering access to the property by a valuer and otherwise impeding the undertaking of an inspection by a valuer - jurisdiction of the Court to make the order sought considered and reference made to the application by the defendant to the Consumer, Trade and Tenancy Tribunal purportedly pursuant to s 77 of the Residential Tenancies Act 2010 (NSW)

PRACTICE AND PROCEDURE - where order made requiring plaintiffs to provide verified lists of documents within stipulated time - where further order made that proceedings would be automatically dismissed in the event of non-compliance - where plaintiffs failed to provide verified lists within stipulated time - where lists provided did not discover documents known to be in existence but which were not in possession of the plaintiffs - plaintiffs obligations met - dismissal of proceedings not warranted PRACTICE AND PROCEDURE - where solicitor sought leave to file notice of ceasing to act four days prior to hearing - where evidence of failure on the part of the plaintiffs to comply with costs agreement - where such failure provided good cause for termination of retainer - leave granted PRACTICE AND PROCEDURE - where further application for dismissal of proceedings brought following withdrawal of plaintiffs' legal representatives - where no relevant alteration in circumstances since determination of original application - further application for dismissal refused.

SUCCESSION - Family Provision - Notional estate - Claim on distributed estate - Competition between adult son and widow of deceased - Application by adult son in need - Relief granted

PROCEDURE - possession - notice of motion - motion against second defendant - monetary order sought - orders made

CRIMINAL LAW - murder of police officer - whether s 19B of Crimes Act applies - whether offender had intention to kill - whether offender was engaged in criminal activity that risked serious harm to police officers - no substantial cognitive impairment - standard of proof for statutory factors - imprisonment for life imposed

CONTRACT - construction - assignment of rights - whether plaintiff entitled to monies by reason of irrevocable directions to pay - whether implied term that must have authority to assign rights - whether consideration given for assignment CONTRACT - principal and agent - authority of agent - ostensible authority - withdrawal of authority CONTRACT - inducing breach - whether damage suffered as a result of inducing breach EQUITY - equitable charge - priority EQUITY - election between inconsistent rights PRACTICE AND PROCEDURE - pleadings - admissions made in pleadings - whether such admissions can be withdrawn - whether reason to doubt correctness of admissions

CRIMINAL LAW - application for enquiry to be held into convictions recorded against the applicant - where application brought on the basis of matters which had emerged since the date of conviction concerning witnesses who gave evidence against the applicant at his trials - whether doubt or question as to guilt - whether material relied upon by the applicant sufficient to give rise to a sense of disquiet or unease in allowing the convictions to stand

REAL PROPERTY - entitlement to possession of land - whether merely monthly licence - whether lease granted - whether there was a "grant" of interest in land by reason of consent to development application CONTRACT - construction of licence and lease agreements - implied terms CONSUMER LAW - misleading or deceptive conduct - Fair Trading Act 1987 - Australia Consumer Law - whether government body carrying on a business EQUITY - unconscionability - bad faith PRACTICE AND PROCEDURE - whether admission made - whether authority to make admission - whether reason to doubt admission

CONSTITUTIONAL LAW - inconsistency between Commonwealth and State laws - State law restricting the recovery of damages for personal injury - State law limiting liability for negligence - Commonwealth law implying warranty into contract that services will be rendered with due care and skill - the Constitution, s 109 - Civil Liability Act 2002, Parts 1a & 2 - Trade Practices Act 1974 (Cth), s 74(1). CONSTITUTIONAL LAW - inconsistency between Commonwealth and State laws - whether State law purports to operate on contractual term rendered void by Commonwealth law - the Constitution, s 109 - Civil Liability Act 2002, s 5n - Trade Practices Act 1974 (Cth), s 68(1). DAMAGES - personal injury - whether Civil Liability Act applies to cause of action for breach of term implied by s 74(1) of the Trade Practices Act arising before 13 July 2004 - general damages - economic loss - domestic assistance - out of pocket expenses.

REAL PROPERTY - possession of land - unrepresented litigant - loan and default relied on established - unchallenged evidence - cross-claim not pressed - cross-claim dismissed - orders made for possession

CRIMINAL LAW - sentence appeal - stealing from person and aggravated robbery - whether pre-sentence detention taken into account - whether error in not finding special circumstances in early guilty plea and prospects of rehabilitation - no merit in either ground - no point of principle

CRIMINAL LAW - conviction appeal - people smuggling - s233C Migration Act - appellants were crew on boat bound for Australia/Ashmore Reef from Indonesia with twenty three passengers - trial judge directed that the necessary intention was facilitating the bringing of people to Australia - whether necessary to establish that the immediate destination was part of Australia or only that the ultimate destination was Australia - mention of a particular destination does not create an additional element of offence - evidence established knowledge that ultimate destination was Australia - no misdirection - whether trial miscarried because summing up by a trial judge was unbalanced and unfair - extent to which trial judge required to set out each particular challenge to the evidence of each passenger - summary of evidence comprehensive - summing up not favouring either side - no objection to summing up made at trial - ground of appeal not made out - APPEAL AGAINST SENTENCE - whether sentence manifestly excessive - mandatory minimum head sentence and minimum non-parole period - no error identified - leave to appeal refused.

ARBITRATION - application for leave to appeal against interlocutory decision dismissing application to stay proceedings and refer them to arbitration - arbitration clause in deed applicable where "disputes under this deed" - whether releases and undertakings in deed foreclosed claims in equity proceedings - whether certain of the claims constituted claims covered by the deed when they had not been communicated prior to the date of the deed - whether outcome of equity proceedings claims "governed or controlled" by the deed

PROCEDURE - parties agree on final order

POSSESSION OF LAND - default judgment for possession of mortgaged property - refusal of registrar to set judgment aside - appeal from registrar's decision - whether defendants have arguable defence to claim for possession

EQUITY- promissory estoppel REAL PROPERTY- s 138 Real Property Act 1900- order ancillary to grant of legal or equitable relief- no juridical basis for order REAL PROPERTY- nature of severalty interests

PROCEDURE - subpoena - objection to production - statutory privilege under s 29 Children and Young Persons (Care and Protection) Act - definition of "report" - whether documents should be produced

CORPORATIONS - winding up - winding up in insolvency - application under s 459A Corporations Act 2001 (Cth) for an order for winding up - where failure to comply with creditor's statutory demand - where insolvency established in fact.

COSTS - whether an order should be made that the first defendant pay the plaintiff's costs on an indemnity basis

CORPORATIONS - statutory demands - application to set aside a statutory demand under ss 459H or 459J Corporations Act 2001 (Cth) - where alleged debt arises from a claim under an agreement in respect of a statutory recycling scheme and the dispute about the right to payment flows from a dispute as to whether recycling services were provided - whether evidence in support of one ground to set aside a statutory demand can be used as evidence in support of another ground - whether genuine dispute raised about the provision of recycling services - whether further argument raised that alleged debt was incorrectly calculated - whether affidavit sufficiently raised this argument under the Graywinter principle - whether offsetting claim exists - whether some other reason to set aside statutory demand.

Probate - Contested right to administration - Order for special letters of administration pending determination - Appointment of NSW Trustee and Guardian as administrator - Protection of estate and interests of all concerned.

COSTS - costs following successful appeal brought by the Plaintiff from a decision in the Local Court - where conduct of the plaintiff's case in the court below was relevant to the discretion in respect of costs - where plaintiff's success on one ground of appeal was based upon submissions not put to the court below - where conduct of defendant in the proceedings in the court below in abandoning aspects of its defence on the day of the hearing contributed to the manner in which the proceedings unfolded before the Magistrate - whether costs should follow the event - whether the court should exercise its discretion to make some other order in light of the conduct of the proceedings by the parties in the court below - whether the court should order that the successful party on appeal pay the costs of the unsuccessful parties to the appeal - whether the court should depart from the general rule in some other way

PRACTICE AND PROCEDURE - civil - interlocutory application - security for costs - whether reason to believe plaintiff would not be able to meet an adverse costs order - discretion to order security - entitlement to set off of liability for costs by reason of s 553C(1) of the Corporations Act 2001 (Cth), s 21 of the Civil procedure Act 2005 or at general law - relevant considerations in exercising discretion - quantum EQUITY - set off - s 553C(1) of the Corporations Act 2001 (Cth), s 21 of the Civil procedure Act 2005 or at general law - whether an answer to application for security for costs CORPORATIONS - s 553C(1) of the Corporations Act 2001 (Cth) - entitlement to set off of liability for costs against amounts "due" - whether amounts "due" between the parties - whether "mutual dealings" exist

TORTS - conspiracy by unlawful means - where plaintiff arrested and charged - charges dismissed by magistrate - whether plaintiff established elements of tort of conspiracy JUDICAL IMMUNITY - whether magistrate is entitled to judicial immunity PROCEDURE - application for joinder on the basis of similar factual circumstances and common parties - dismissal of proceedings

PROCEDURE - application for further adjournment - refused

BUILDING & CONSTRUCTION - construction contracts - conflict of laws - where contracts said to be governed by the laws of a foreign jurisdiction - where contracts said to require disputes to be determined by foreign courts - whether amounts to contracting out of provisions of Building and Construction Industry Security of Payment Act 1999 (NSW)

PROCEDURE - application for an adjournment - refused - reasons for refusal

PROCEDURE - judgments and orders - stay of execution - application for stay of administration of deceased estate and costs order pending hearing of application for leave to appeal - no question of principle

REAL PROPERTY - determining the terms of a licence agreement - no issue of general principle. PRACTICE AND PROCEDURE - whether orders should be stayed pending an appeal

COSTS - assessment - Review Panel - application for leave to appeal - when leave should be granted - accountant and solicitor fees - filing fee - whether determination of Panel arbitrary - whether reasons were inadequate.

PROCEDURE - ceasing to act - leave to file a notice of ceasing to act and withdraw from proceedings - application opposed by client - failure to provide money for costs and disbursements - leave granted

CORPORATIONS - winding up - liquidators - order sought granting special leave to liquidator to make a distribution of a surplus in the winding up to contributories - whether appropriate in all the circumstances for the distribution to be made to the contributories - order sought that books and records in the liquidator's possession may be destroyed under s 542(3) Corporations Act 2001 (Cth) - where high cost to retain records for the statutory five year period -order sought for release of liquidator and deregistration of companies - where final return to contributories has not yet been made.

TRUSTS - discretionary family trust controlled by a corporate trustee - trust funds generated from a motel business run by the trustee - what are the assets of the trust - whether trust for the benefit of one of the brothers only or of the whole family - whether trust funds misapplied by family members who controlled the corporate trustee - several properties held by two brothers, directors of the trustee, in their own names were purchased and then refinanced through loans taken out by the trust - whether the brothers hold the properties on behalf of the trust - whether a food importing business run by a sister and its profits are held on constructive trust for the trust - funds paid from trust accounts to one brother and to companies controlled by him - whether some of these payments were remuneration for services rendered to the trust, loans from the trust or trust distributions - no contemporaneous trust accounts evidencing remuneration for services, loans or distributions. TRUSTS - breach of trust - Barnes v Addy knowing receipt or knowing assistance claims against the directors of the corporate trustee and third parties - whether Barnes v Addy knowledge requirements satisfied. CORPORATIONS - breach of directors' duties by the directors of the corporate -trustee - whether directors acted honestly and reasonably and should be excused from personal liability for breaches of duties under Corporations Act 2001 s 1318. PROCEDURE - limitation period - whether limitation period in relation to the pleaded breaches of trust expired - when did the relevant limitation period start running - whether limitation period in relation to the claim for constructive trust over the food business expired or whether the doctrine of laches operates. CONTRACTS - two brothers, directors of the corporate trustee, bought several properties as co-owners - whether the properties purchased with trust funds - whether the properties owned by the brothers beneficially or on behalf of the trust - whether the brothers entered into a joint venture agreement in relation to the properties - whether one of the brothers misapplied proceeds from the joint venture properties to his own benefit and should be required to refund the misapplied amounts.

PRACTICE AND PROCEDURE - application by defendant for an order that the plaintiff submit to MRI examination - where plaintiff alleged post concussional syndrome and cognitive impairment - where onset of cognitive impairment was late - where previous MRI scan evidenced cerebral shrinkage - where order sought so as to allow the defendant to investigate the presence of cerebral pathology unrelated to the accident EVIDENCE - evidence in support of application for an order that the plaintiff submit to MRI examination - evidence sufficient to establish that the proposed testing may throw light on the issues EVIDENCE - admissibility of hearsay evidence on interlocutory applications - whether exception extends to hearsay evidence of expert opinion

EQUITY - fiduciary duties - breach of fiduciary duties - employer and employee - where employee acts as a shadow director of supplier - where employee fails to disclose several conflicts of interest - where advantage accrues to third party that is the alter ego of the fiduciary employee EQUITY - fiduciary duties - breach of fiduciary duties - knowing involvement - knowledge - what constitutes knowledge - where a person is aware of the circumstances that would indicate, to an honest and reasonable person, a breach of fiduciary duty REMEDIES - equitable remedies - equitable compensation - breach of fiduciary obligations - employer and employee - conflict of interest - failure to disclose - causation - test for causation - whether loss would have occurred in the absence of the breach - obligation to make restitution not limited to common law principles governing damage, foreseeability and causation TORT - trespass to goods - conversion PRACTICE & PROCEDURE - pleadings - where evidence raises issues not pleaded - where party fails to object to the admission of evidence - cases determined by the evidence, not the pleadings

CRIMINAL LAW - application for leave to appeal sentence - plea of guilty - knowingly take part in manufacture of not less than commercial quantity of MDMA, knowingly take part in manufacture of not less than large commercial quantity of methylamphetamine, supply not less than large commercial quantity of methylamphetamine - Three offences of supply prohibited drug and offence of knowingly take part in manufacture of not less than large commercial quantity of MDMA dealt with on Form 1 - whether trial judge made a finding in relation to existence of an aggravating feature - whether trial judge erred in extent of accumulation - whether sentence manifestly excessive - leave refused.

CRIMINAL LAW - conviction appeal - admission of evidence for non-propensity purpose - evidence relevant to motive - evidence accompanied by comprehensive direction to jury not to engage in propensity reasoning - no objection taken at trial - the same evidence relied on by defence in its case - whether evidence had to be established beyond reasonable doubt - no miscarriage of justice - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE - whether treatment of corpse after killing relevant to seriousness of offending - whether excessive weight given to treatment of corpse after death - ground of appeal not made out.

COURTS - jurisdiction - parens patriae - power of court to consent to medical treatment - whether power extends to a mature minor capable of consenting to medical treatment - relevant considerations - consent to administration of blood refused by minor on religious grounds - family subscribed to tenets of Jehovah's Witnesses TORTS - trespass to person - medical treatment without consent - power of court to override refusal of consent by minor STATUTORY INTERPRETATION - whether provision giving effect to consent by minor constituted 'code' - whether court retained power to override refusal of consent - Children and Young Persons (Care and Protection) Act 1998 (NSW), s 174