Cases and authorities

[PRIVILEGE] - documents produced in answer to subpoena served on accountants who had provided accounting advice to trustee that included reference to legal advice - where issues include trustee's state of mind and specific beliefs at time of sending letter the subject of claims for trustee's removal - whether privilege waived

PRACTICE AND PROCEDURE- negligence claim- separation of issues- whether liability should be determined separately from damages

PRACTICE AND PROCEDURE - civil -application for leave to use documents produced to court in other proceedings - whether special circumstances existed

PRACTICE AND PROCEDURE- application for summary dismissal - plaintiff claimed failure to disclose relevant information in Family Court proceedings - whether defendants immune from suit- suppression order

EQUITY - assignment of choses in action - assignment to insurer in support of subrogated rights - whether compliance with Conveyancing Act 1919, s 12 - whether assignment absolute - whether notice in writing given to obligor PROCEDURE - civil - defence alleging lack of standing - leave to amend statement of claim to substitute plaintiff out of time - no legal assignment of right to sue -- unnecessary substitution of plaintiff - equitable assignee properly suing in name of legal holder of rights

PRINCIPAL AND AGENT - power of attorney - power executed by home owner in favour of principal of building company undertaking renovation work - separate security granted to builder to secure moneys owed for renovations - whether power of attorney irrevocable because provided for purpose of securing repayment of moneys due to builder - whether donee of power owed fiduciary duties to donor APPEAL AND NEW TRIAL - appeal - claims and arguments not pleaded or made below - trial judge ordered contract for sale of property be specifically performed subject to condition purchaser pay amount of unpaid purchase price - on appeal vendor sought to maintain order for specific performance but vary condition on basis that amount of unpaid purchase price exceeded that found by trial judge - argument not able to be made on appeal because inconsistent with basis upon which trial judge found purchaser ready, willing and able to perform - argument also not available on appeal because could have been subject of evidence at trial APPEAL AND NEW TRIAL - appeal - claims and arguments not pleaded or made below -donor of power of attorney and vendor sought to argue on appeal that solicitor knowingly participated in breach of fiduciary duties by donee in acting on sale on instructions from donee, breached duty of care by failing to advise donee of limitations upon his authority and engaged in misleading or deceptive conduct in relation to purchaser - arguments not available on appeal because could have been subject of evidence at trial CONTRACTS - building contract - remuneration - quantum meruit - whether trial judge erred in allowing builder's claim for scaffolding - no question of principle

APPEAL - practice and procedure - application for review - s 46(4) Supreme Court Act 1970 - where proceedings dismissed by a single Judge of Appeal as an abuse of process - where an order in the type of Teoh v Hunters Hill Council (No 4) has been made - whether judge erred in not applying Convention on the Elimination of All Forms of Discrimination against Women APPEAL - practice and procedure - s 38(a) Judiciary Act 1903 (Cth) - application for removal of proceedings to the High Court - where leave to issue or file a proceeding for removal to the High Court has been refused by a judge of the High Court

PRACTICE AND PROCEDURE - Default judgment - Whether Plaintiff entitled to a debt or liquidated claim - Uniform Civil Procedure Rules 2005 (NSW), rule 16.6(1)

PROCEDURE- Summary disposal- Dismissal- Abuse of process- Frivolous and vexatious claim

REAL PROPERTY - possession of land - application for stay of writs of possession - motion to set aside default judgment to be heard within three weeks - plaintiff may have writs issued but not executed prior to hearing of motion

SENTENCE - murder - knife stabbing on railway station - victim under 18 years of age - intent to inflict grievous bodily harm - premeditated attack - offender on conditional liberty at time of offence - very high level of objective gravity - standard non-parole period would be appropriate but for offender's youth - no show of remorse - reasonable prospects of rehabilitation - finding of special circumstances to moderate degree for offender's youth

CRIMINAL LAW - attempted armed robbery - verdict of not guilty by reason of mental illness - conditional release order under s.39 Mental Health (Forensic Provisions) Act 1990 - Judge specifies order to operate for two years - claim for declaratory relief by Attorney General - relationship between power of court under s.39 and powers of Mental Health Review Tribunal under Part 5 of Act - nature and effect of conditional release order under s.39 - whether District Court order operates to bring to end status of person as forensic patient - determination that it does not - continuing power of Tribunal to exercise powers and functions under Part 5 - appropriateness of declaratory relief - discretionary considerations - declaratory relief granted

REAL PROPERTY - possession of land - application for stay of execution - fourth application - each application based on proposal to refinance - earlier stays granted on terms - terms not complied with - multiple caveators - no evidence of arrangements with caveators - conceded shortfall in funds available - further stay refused

REAL PROPERTY - easement - actionable interference to easement by blocking sub-surface drains with rocks made out - parties unable to agree on final orders - whether injunction restraining placement of rocks an appropriate form of relief - whether a declaration should be made - whether any injunction should be conditional on the payment agreed in the previous consent orders. COSTS - plaintiff unsuccessful in relation to a dominant issue but successful on a lesser issue - relief granted against the first defendant only - no interference on the part of the second defendant - whether the plaintiff should pay some or all of the defendants' costs - whether the first and second defendant's costs should be treated differently - whether any presumption that first and second defendant each liable for half of the costs should be applied - whether a more flexible apportionment is possible, in the circumstances.

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - whether costs order should be made in favour of the plaintiff - no indemnity costs order - whether plaintiff should be deprived of any costs - whether there should be a reduction in costs to reflect defendant's success in resisting an aspect of the claim - reduction order made

REAL PROPERTY - possession of land - golf course - receivers appointed - receivers seek possession - whether employee manager of golf course entitled to possession - possession granted to receivers - writs to be issued and executed forthwith CONTRACT - construction of contract - using surrounding circumstances as an aid to construction - alleged failure to read contract - allegation of undue influence - allegation of unconscionability - no undue influence found - no unconscionability found

SUCCESSION - deceased's older son brings an out of time application under Family Provision Act 1982 - principal judgment determined that orders for provision in the form of a legacy of $400,000 and an order for designation of notional estate should be made - parties unable to agree on the form of final relief - plaintiff presently occupies a unit in the property designated as notional estate - whether order for provision should be conditional on the plaintiff vacating the unit - the principle that the Court should, so far as possible, completely and finally determined all matters in controversy between the parties discussed - whether a stay of final orders pending appeal should be granted and if so, for how long.

REAL PROPERTY - easements - implied - non-derogation from grant - first rule in Wheeldon v Burrows - requirement that quasi-easement be used by the grantor prior to grant - where surrounding circumstances indicate parties did not intend easement to pass REAL PROPERTY - statutory easements - Conveyancing Act 1919 s 88K - whether easement reasonably necessary for the effective use of the land - whether all reasonable attempts made to obtain easement - whether court should refuse to grant easement on discretionary grounds - availability of alternate statutory dispute resolution mechanism for strata management schemes REAL PROPERTY - statutory easements - Conveyancing Act 1919 s 88K - costs of application - whether conduct of defendant unreasonable

CRIMINAL LAW - sentence - guilty pleas - offence of manslaughter - unlawful and dangerous act - brandish a firearm - offence of assault occasioning actual bodily harm - beat a person to recover a drug debt - firearm offence - possession of prohibited pistol - victim impact statements - discount for utilitarian value of guilty pleas - concurrency and accumulation - need to avoid double punishment - special circumstances.

INTERLOCUTORY RELIEF - balance of convenience - mandatory interlocutory injunction - breach of contract - implied terms in contract - conventional estoppel - unconscionable conduct - assurances by defendant

LOCAL COURT - appeals - factors relevant to the exercise of the Court's discretion to grant leave to appeal against a decision on a ground involving a question of mixed law and fact - where plaintiff failed to prove claim in the proceedings below in any event - relevance of the plaintiff's conduct of the proceedings below

MORTGAGES - possession - mortgagee exercises power of sale - claims of fraud and improper conduct made by mortgagors against mortgagee - re-litigate issues already determined by the Court - res judicata - alleged sale at undervalue - mere negligence insufficient PRACTICE AND PROCEDURE - application to strike out statement of claim or in the alternative parts of the statement of claim - frivolous or vexatious statement of claim - statement of claim struck out

CRIMINAL LAW - sentence - drug supply - co-offenders - parity - all offenders sentenced by same judge - judge refers to earlier remarks when sentencing later offenders - sentencing judge misstates maximum penalty for some offences - whether sentencing infected by error - whether some other sentence warranted

CRIMINAL LAW - leave to appeal against sentence - old child sex offences - whether sentences were manifestly excessive having regard to sentencing patterns at time of offence - sentence on standards at the time of commission of offence - whether established pattern of sentencing for child sexual assault offences in 1970's - long delay between commission of offence and conviction - whether regard was had to the spectrum of criminality encompassed by the offences in sentence - whether error in application of discount for guilty pleas - whether error in concurrent sentences to reflect the totality of criminality of offences.

APPEAL - practice and procedure - appeal from convictions in Local Court - primary judge set aside convictions and remitted matter to Local Court - remitter should not have occurred - otherwise no error warranting grant of leave - orders formulated to permit disposition of appeal by consent

COSTS - rating appeals brought against Council - Council abandoned defence shortly before hearing - costs ordered against Council - no factual findings made - Council raised question of construction - leave refused as insufficient prospects and inappropriate vehicle

TRAFFIC LAW - proceedings commenced contrary to Motor Accidents Compensation Act 1999 s 108 - decision below plainly correct - proceedings in Court of Appeal dismissed

NEGLIGENCE - Civil Liability legislation - liability - no causation where harm is outside scope of defendant's liability - no liability for materialisation of inherent risk - failure to diagnose aneurysm - no deterioration of aneurysm in three years before diagnosis occurred - plaintiff suffered harm when aneurysm treated - defendant not liable for harm suffered

CRIMINAL LAW - application for separate trial - a central issue in Crown case is the identity of the person who wielded a bottle used as a weapon against the deceased - Crown case against applicant is reasonably strong circumstantial case - evidence against co-accused inadmissible against applicant - inadmissible evidence is only evidence capable of being seen as directly bearing upon above issue - Crown case made stronger by reason of prejudicial inadmissible material - jury directions not sufficient to avoid miscarriage of justice - real risk of positive injustice in joint trial - separate trial ordered

JUDGMENTS & ORDERS - judgments -summary judgment - requirements for summary judgment - whether applicant demonstrated the proceedings had a certain outcome LIMITATIONS OF ACTIONS - claim for defective building works - time of accrual of cause of action - principles to be applied

FREEZING ORDERS - application to vary - where orders in existence for lengthy period without breach - where no evidence adduced to suggest that judgment would go unsatisfied because of disposition or diminution in value of asset - where balance of convenience favoured the respondents

SALE OF GOODS - personal property - title - principal and agent - authority of agent to bind - whether contract created a "security interest" for the purposes of the Personal Property Securities Act 2009 (Cth) EQUITY - personal property - title - competing claims of ownership - whether there is an equitable interest that is a "security interest" for the purposes of the Personal Property Securities Act 2009 (Cth)

CRIMINAL LAW - proceeds of crime - restraining and forfeiture orders - no question of principle

PROCEDURE - application for referral for pro bono assistance - prior legal advisors ceased to act because they did not consider Plaintiff had reasonable prospects of success - referral limited to the obtaining of advice on reasonable prospects of success

PRACTICE AND PROCEDURE - summary disposal - issue estoppel and release under deed - attempt to agitate issues subject to release - costs - contractual rights

PROCEDURE - costs - security for costs - application for security for costs under s 1335 Corporations Act 2001 (Cth) and r 42.21(1)(d) Uniform Civil Procedure Rules 2005 (NSW) - whether there is reason to believe or credible testimony that third and fourth plaintiffs may be unable to pay the costs of the defendants if ordered to do so -whether any impecuniosity of the plaintiffs results from the conduct of the defendants - whether the application would stultify the third and fourth plaintiffs' claims - what quantum of security should be ordered and the form of that security.

COSTS - dismissal of plaintiff's proceedings following settlement - whether the court should exercise its discretion to make an order for costs other than the usual order under r 42.20(1) - whether the defendant should pay the plaintiff's costs - whether the executrix defendant should be entitled to seek her costs out of the estate

GUARDIANSHIP - protected person - Financial management - appointment of manager - Private manager - terms of appointment - Remuneration- regulatory regime - interlocutory orders pending consideration of terms of appointment - appointment of NSW Trustee as interim receiver and manager. MENTAL HEALTH - protected person - appointment of manager of estate - Private manager - remuneration - regulatory regime - interlocutory orders pending consideration of terms of appointment - appointment of NSW Trustee as interim receiver and manager PRACTICE - NSW Trustee and Guardian Act - protected person - appointment of manager of estate - private manager - terms of appointment - remuneration - regulatory regime - interlocutory orders pending consideration of terms of appointment - appointment of NSW Trustee as interim receiver and manager

CRIMINAL LAW - sentence - murder - where offender stabbed former partner during domestic dispute - single issue trial -whether offender substantially impaired by an abnormality of mind arising from an underlying condition - Crimes Act 1900 s 23A - where early plea of guilty to manslaughter rejected - where allowance on sentence for abnormality of mind to be made despite jury's rejection of partial defence

CRIMINAL LAW - SENTENCE - murder - guilty plea entered at a later stage - remorse demonstrated by the behaviour of the offender immediately after the offence

APPEAL - civil - leave to appeal - whether primary judge erred in making order as to costs on discontinuance - no error.

APPEAL - civil - leave to appeal - whether arguable case - jurisdiction under the District Court Act 1973 APPEAL - civil - leave to appeal - whether trial judge denied applicant procedural fairness CONTRACTS - general contractual principles - harsh and unconscionable contracts and statutory remedies - Contracts Review Act 1980, s 6(2) - whether contract entered in the course of or for the purpose of a trade, business or profession CONTRACTS - general contractual principles - harsh and unconscionable contracts and statutory remedies - Contracts Review Act 1980, s 7 - whether contract was unjust at the time it was made

CORPORATIONS - management and administration - meetings - creditors' meeting - application for orders to extend the convening period for a second meeting of creditors - whether the proposed extension of time would cause prejudice to creditors.

CORPORATIONS - Registration - Security interests registered on the Personal Properties Security Register with reference to ABN instead of ACN - defect not "seriously misleading".

PRACTICE AND PROCEDURE - notices to produce - whether notices should be set aside - whether documents sought under either notice relevant

ADMINISTRATIVE LAW - judicial review - committal proceedings - decision to not allow cross-examination of witness - unusual case - “interests of justice” not confined to interests of accused - no error established WORDS AND PHRASES - “interests of justice” - “substantial reasons”

REAL PROPERTY - possession of land - application to stay writ of possession - second application - application made the day before eviction scheduled - no explanation for delay - hardship - defendants' son disabled and in need of special care and accommodation - inability to find alternative accommodation - failure to pay any money since judgment despite means to do so - no evidence that accommodation will become available - short stay granted