Cases and authorities

CORPORATIONS - insolvency and winding up - where plaintiff company proposes to institute proceedings for breach of contract - where approval of litigation funding agreement and retainer sought - approval granted

CORPORATIONS - Winding up - order sought for winding up of defendant under s 461(1)(a) of the (Cth) Corporations Act 2001 on the ground that the company has by special resolution resolved it be wound up by the court - no good reason to do other than what the company has so resolved.

PRACTICE AND PROCEDURE - motion to set aside judgment on the basis of abuse of process and fraud - necessity for separate proceedings where fraud alleged - facts not in issue - merit in ensuring no advantage or disadvantage arising from judgment sought to be set aside - direction to file separate proceedings to be held jointly with motion based on abuse - entry and execution/enforcement of impugned judgment stayed

PROCEDURE - adjournment application - refused - further disqualification application - refused - notice of motion seeking leave to file second cross-summons - not granted - orders sought to restrain legal practitioners from acting in the proceedings - not granted - notice of motion seeking three judgments to be set aside - refused - notice of motion seeking an amendment to summons - additional prayer to be added to the summons, that the cross-claim be stayed - granted - costs reserved - further directions

ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 - assessment conference during which damages assessed - refusal to allow cross-examination on a specific credit issue - denial of procedural fairness - Motor Accidents Compensation Act 1999.

SUCCESSION - FAMILY PROVISION - The Plaintiff seeks a family provision order out of the estate of the deceased under the Succession Act 2006 as a person who, as a foster child, was a member of the household of which the deceased was a member and dependent on the deceased - The Defendants are the executors to whom Probate granted - Nearly the whole estate left to the Defendants who are also biological children of the deceased - No dispute as to Plaintiff's eligibility but dispute whether there are factors warranting the making of the application - Whether to make a family provision order - If order for provision made, quantum of provision that should be made - Distributed estate but no dispute that provision should be borne by the Defendants

TORTS - industrial accident - where plaintiff injured unloading truck - whether manner of loading by trucking company negligent - whether employer failed to instruct plaintiff in proper method of unloading - TORTFEASORS - cross-claims for contribution or indemnity - causal potency of two distinct sets of circumstances involving breaches of distinct duties of care - CONTRIBUTORY NEGLIGENCE - whether plaintiff contributed to his own loss and damage

APPEAL - Local Court - heavy transport loading - breach of mass requirements - reasonable steps defence - whether prosecution obliged to specify steps in Court Attendance Notice - what must be shown to establish defence - whether procedural unfairness - penalty - relevance of penalty in Penalty Notice where defendant elects to have court determine the matter

COURTS AND JUDGES - powers of Land and Environment Court to order costs - whether power to order amendments on terms as to costs a separate power to order costs - whether power to order costs in summary jurisdiction confined by circumstances stated in Criminal Procedure Act 1986 CRIMINAL LAW - procedure - summary jurisdiction - summons containing a single charge - whether bad for duplicity - summons particularised separate acts of storing and treating waste, contrary to condition on licence CRIMINAL LAW - procedure - costs - whether power to order costs against prosecutor, before determination of the trial, following amendment of duplicitous summons - no power to order costs ENVIRONMENTAL PROTECTION - offence of contravening condition of environmental protection licence - licence required scheduled activities to be carried out competently - whether allegations of carrying out storage and treatment of waste on different occasions could proceed as a single charge STATUTORY INTERPRETATION - separate provisions conferring power on Land and Environment Court to order costs in civil and summary jurisdiction - whether power to order amendment on terms as to costs was a free-standing power, authorising interlocutory costs orders in summary jurisdiction.

CRIMINAL LAW - appeal against sentence - failure to give sufficient weight to applicant's lesser role in offence - failure to give any weight to contrition - failure to give sufficient weight to parity principle for break enter offence - whether sentence was manifestly excessive - leave to be appeal refused in relation to grounds 1 and 2 - leave to appeal granted in relation to grounds 3 and 4 - appeal dismissed

CRIMINAL LAW - sentence appeal - supply a large commercial quantity of a prohibited drug - whether sentence manifestly excessive - parity - sentence of co-offender reduced by Court of Criminal Appeal - whether necessary to reduce applicant's sentence - no basis for justifiable sense of grievance - different subjective case and higher position in drug supply hierarchy.

APPEAL AND NEW TRIAL - separate question for determination as to scope of remitter - removed to Court of Appeal for determination pursuant to UCPR, r 1.21

ADMINISTRATIVE LAW - judicial review - error of law - claimed right to trial by jury with respect to traffic offences - question of validity of judicial appointments APPEAL - extension of time - notice of intention to appeal and summons seeking leave to appeal filed in time - no evidence as to timeliness of service of documents CONSTITUTIONAL LAW - validity of appointment of judicial officers - right to trial by jury with respect to traffic offences CRIMINAL LAW - traffic offences - claimed right to trial by jury

SUCCESSION - wills - construction and effect of testamentary disposition - clause of will explained daughter not provided for because testatrix had provided "substantial financial support" to her business ventures "during my lifetime" - whether clause released applicant from indebtedness to estate - whether any alternative construction available -applicant, husband and testatrix co-guarantors on loan to family company - house of testatrix security for loan

ORDERS - form of declaration and injunction restraining the retail sale of items from certain premises subject to exceptions for "PBS items, Prescription drugs and OTC drugs"

PROCEDURE - application for stay pending appeal - unrepresented appellants - application for adjournment in order to obtain legal representation - real chance that legal representation may be obtained in imminent future - adjournment and extension of existing stay granted - provisional regime pending determination of appeal ordered, as to which the parties may apply to be heard further

PROCEEDS OF CRIME - proceeds assessment order - s 27 Criminal Assets Recovery Act 1990 - whether primary judge erred in finding appellant committed serious crime related activity - held no

PERSONAL INJURY - injury to person caused by dog - plaintiff injured when defendant's dog ran onto road and collided with plaintiff's motorcycle - dog did not attack plaintiff - whether owner of dog strictly liable to person wounded as a result of action by dog - owner liable for "bodily injury to a person caused by the dog wounding or attacking that person" - whether "wounding or attacking" disjunctive - whether "wounding" requires aggression on part of dog - where exceptions to liability assume "attack by a dog" - Companion Animals Act 1998 (NSW), s 25 - Coleman v Barrat [2004] NSWCA 27 considered WORDS AND PHRASES - "wounding or attacking that person" - Companion Animals Act 1998 (NSW), s 25

CRIMINAL LAW - sentencing - hindering the apprehension of a person who had committed a serious indictable offence - low objective seriousness - s 9 Crimes (Sentencing Procedure) Act 1999 bond

PROCEDURE - costs - substantive proceedings resolved by consent - whether defendant capitulated or there was genuine compromise by both sides - distinction between costs incurred in objection process and in review proceedings under Pt 10 of the Taxation Administration Act 1996 - whether special costs order warranted in respect of purported joinder as plaintiff of deregistered corporation

CORPORATIONS - statutory demands - application to set aside a creditor's statutory demand - where an appeal is planned against a dismissal of a cross-claim - whether the affidavit supporting application to set aside a statutory demand sufficiently identifies the grounds of opposition - whether proposed appeal gives rise to 'some other reason' to set aside a creditor's statutory demand under s 459J Corporations Act 2001 (Cth) - whether cross-claim seriously arguable so as to give rise to any realistic prospect of recovery in an amount exceeding the debt.

PRACTICE - Concurrent civil and criminal proceedings - Same subject matter - Defendant established prejudice - Stay granted

PRACTICE AND PROCEDURE - Application to amend statement of claim - No issue of principle

PRACTICE AND PROCEDURE - application to amend amended statement of claim - where application made after hearing - Civil Procedure Act, s.64.

SUCCESSION- Wills, probate, and letters of administration- Probate-Revocation of grant- Grounds for exercise of discretion- Bona fide dispute between executor and sole beneficiary- Breakdown in working relationship- Affecting due administration of estate- Approval of compromise.

GUARDIANSHIP- Protected person- Financial management- Foreign national- Application by prospective managers to transfer protected person's estate to foreign jurisdiction- Principles to be applied- Statutory jurisdiction informed by inherent jurisdiction-Need for across border protective regime- NSW Trustee and Guardian Act 2009 (NSW), s 41. MENTAL HEALTH- Appointment of manager of estate- Property within jurisdiction- Person outside jurisdiction- Jurisdiction of court- Application by prospective managers to remove property from jurisdiction- Principles to be applied- Need for protective regime- NSW Trustee and guardian Act (NSW), s 41 PRACTICE - NSW Trustee and Guardian Act- Appointment of managers of estate- Property within jurisdiction- Person outside jurisdiction- Need for protective regime.

PRACTICE AND PROCEDURE- application for interim payment- use of payment relevant to exercise of discretion

PRACTICE AND PROCEDURE - plaintiff pleaded she was under disability - whether limitation defence should be separately determined - whether any substantial factual overlap - credibility findings necessary - undesirability of inconsistent findings - whether damages should be separately determined - all issues to be determined in one hearing - motions dismissed

PRACTICE AND PROCEDURE - application to amend statement of claim - outside prescribed period - leave required - breach of contract claimed - limitation defence pleaded - fraudulent concealment of cause of action alleged - whether fraud sufficiently pleaded - whether fraud claim doomed to failure - whether prejudice suffered by defendant - whether damages need to be quantified - application for leave to amend granted

REAL PROPERTY - possession of land - executors wishing to administer estate of the deceased - house and land falls into residue - one residuary beneficiary in occupation - Defence does not disclose any defence to the claim - Defence struck out - leave to re-plead

COSTS - indemnity costs - offer of compromise - alternative offers - whether one alternative was ambiguous - no point of principle

CRIMINAL LAW - sentence - accessory after the fact - no issue of principle - parity with co-offender - sentence imposed

CONTRACT - insurance - contra preferentem - reinstatement of Death Benefit to full value by exercise of contractual right at first and second anniversary of payment of trauma insurance - meaning of "within 30 days of" to include request made before anniversary date - each reinstatement power to operate independently

EVIDENCE- privilege against self incrimination- distinct from privilege against exposure to civil penalties- not abrogated by Police Act 1990 or Police Regulations 2008 STATUTORY INTERPRETATION- exclusion of basic rights requires irresistible clearness

CIVIL PROCEDURE - costs of complying with a subpoena - parties must make a genuine attempt to agree as to the amount before approaching the court - failure to wait for a response not a genuine attempt CIVIL PROCEDURE - claims for loss incurred in compliance with a subpoena must be reasonable

TORTS - negligence - plaintiff suffered catastrophic injury while participating in sport of wakeskating - determination of liability as separate question- whether defendant tow boat driver was in breach of his duty to exercise reasonable care for the safety of the plaintiff in the conduct of the activity - whether wakeskating dangerous recreational activity

EQUITY - Plaintiff sues for declarations that she alleged trust- deeds produced in which the legal holder of shares says that she holds them on trust- original deeds not produced- evidence shows they are forgeries- claim of trust dismissed.

TRUSTEES - Judicial advice to trustees - whether trustees should defend proceedings brought against it by beneficiaries of trust - whether trustee has good defence to such proceedings - whether trust indebted to executors of will - where trustee also executor of will.

PROCEDURE - costs - costs on discontinuance of proceedings - proceedings concerned defendant's capacity to revoke enduring power of attorney - medical reports indicated that defendant subsequently had capacity and could revoke power of attorney regardless of any prior incapacity - whether Court should order otherwise pursuant to r 42.19(2) of the Uniform Civil Procedure Rules 2005 - whether it is sufficient for an otherwise order that plaintiffs acted reasonably in commencing proceedings

MORTGAGES - possession - husband and wife borrow funds secured against their family home on lent to their business - business failed to pay the borrowers who eventually defaulted - application for possession or application for appointment of trustees for sale - Direction to pay - whether completed by borrowers - allegation of fraudulent conduct - application for a loan - whether a mortgage broker was an agent for lender CONTRACTS - Contracts Review Act - unfair contracts - bargaining position between lending institution and borrower - no imbalance between the parties apart from the usual difference affecting terms of loan - no reason to suspect borrowers were credit risk - whether asset lending LIMITATIONS - contract and tort - extension of limitation period where fraud or deceit

CRIMINAL LAW - sentence - accessory after the fact to murder - principles - wide sentencing range available - lower category of seriousness - impact of the mental state of the offender

COSTS - subpoenas - where the subpoena cannot be answered in full - subpoena oppressive - categories too wide - refused - unnecessary to quash entire subpoena - both sides substantially successful - each party to bear its own costs

MORTGAGE- obligations on Mortgagee when exercising power of sale.

EQUITY - construction of Deed - shares in company and adjustments - bus manufacturer - misleading representations - dispute resolution - expert determination

EQUITY & TRUSTS - equitable personal obligation - nature and quantification - approach to assessment

COSTS - application for leave to appeal from order as to costs - principles governing costs discretion in multiparty litigation - no error of principle shown - leave refused

TAXES AND DUTIES - land tax - interpretation of Land Tax Management Act 1956, s 10Q - land exempted from land tax where used for low cost accommodation and Chief Commissioner satisfied land so used and occupied in accordance with guidelines approved by Treasurer - whether purpose of guidelines to assist Chief Commissioner in being satisfied land used for low cost accommodation or to specify particular low cost accommodation entitled to exemption - latter interpretation correct STATUTES - by-laws and regulations - interpretation - guidelines approved by Treasurer under Land Tax Management Act 1956, s 10Q - meaning of long-term residency requirement - whether freestanding discretion conferred on Chief Commissioner to grant exemption

TORTS - negligence - occupier's liability - appellant fell in respondent's supermarket - where appellant slipped on wet floor left unattended for several minutes while wet floor warning signs were in place - whether respondent breached its duty of care to appellant in circumstances by failing to take reasonable precaution against risk - causation - where primary judge took into account own observations of appellant in witness box - assessment of damages where medical expert witnesses not cross-examined despite conflicting opinions - contributory negligence TORTS - negligence - whether appeal as of right under s 127 of District Court Act 1973 - where primary judge assessed damages, if respondent were liable, at $1773 - sufficiency of appellant's affidavit as to whether appeal as of right under UCPR r 51.22(2) - leave granted

PROCEDURE - application under 28.2 UCPR for separate determination of liability and damages - plaintiff sustained complete paraplegia to the T10 spinal cord level - plaintiff's injuries sustained 19 months before the hearing date of the application rendering uncertain his future employment prospects - in particular, uncertainty as to whether plaintiff will continue in post-accident employment - no suggestion of overlap of issues or of evidence - whether practical and proper course for issues to be separately determined - no countervailing circumstances against severance - application granted

CRIMINAL LAW - bail - firearms offences - whether bail should not be refused