Cases and authorities

MORTGAGES - security for loan - refinancing - whether mortgagee authorised to payout prior mortgage - whether loan moneys secured by mortgage - whether mortgagor obtained benefit of loan. PROCEDURE - admissions in defence - amended defence purporting to withdraw admissions - whether leave should be granted - no evidence of circumstances of making admission. PROCEDURE - amendment - application to amend on second day of hearing - failure of defendant to avail himself of leave to amend on prior occasions - no explanation for failure to amend earlier.

CRIMINAL LAW - appeal - conviction - appellant convicted following trial of two offences pursuant to s 178BB(1) of the Crimes Act 1900 - whether jury verdicts unreasonable or cannot be supported by the evidence - ample evidence on which jury could find charges proved - charges proved beyond reasonable doubt - materiality of statements known to appellant - appeal dismissed

CRIMINAL LAW - Crown sentence appeal - pleas of guilty - manslaughter and wounding with intent to cause grievous bodily harm - excessive self-defence manslaughter - victim a police officer engaged in lawful execution of duty - execution of search warrant - Respondent shoots at and wounds victim with intent to inflict grievous bodily harm - Respondent believes unreasonably that victim and other police not genuine police - other police officer discharges firearm in response inflicting fatal injury to victim - objective seriousness of offences - errors established concerning assessment of objective seriousness of both offences - error in imposing entirely concurrent sentences - sentences manifestly inadequate - aggravating factor that victim a police officer acting in execution of duty - importance of specific and general deterrence - seriousness of possess prohibited firearm offence taken into account on Form 1 for manslaughter offence - Respondent resentenced

INJUNCTIONS - application for freezing order - whether applicant has a good arguable case - whether danger that existing costs judgment or prospective judgment would be unsatisfied - UCPR 25.11, 25.14 PROCEDURE - extension of time to file and serve notice of cross-appeal - UCPR 51.17

LEGAL PRACTITIONERS - solicitor's practising certificate suspended by resolution of the Council of the Law Society - alleged misappropriation of funds - appeal to the Supreme Court against the Law Society's decision dismissed - further appeal to the Court of Appeal pending - that appeal to be heard in the relatively near future - stay of the suspension in force since start of Supreme Court proceedings but about to expire - whether the stay should be extended until the hearing of the appeal.

CONTRACTS - building, engineering and related contracts - the contract - construction of contract - whether further progress claim could be made - whether Superintendent entitled to issue progress and other payment certificate in month when no work done and contractor did not issue progress certificate - whether Superintendent's progress certificate void

STATUTES - acts of parliament - interpretation - whether "default under the farm mortgage" in s 11(1)(a) of the Farm Debt Mediation Act 1994 (NSW) is to be construed as meaning "default under the farm mortgage as affected by any agreement reached at a mediation pursuant to the Act"

CORPORATIONS - statutory demands - application to set aside a creditor's statutory demand - offsetting claim - whether serious question to be tried - where loan advance in construction loan refused and the schedule of loan advances is not in evidence.

SUCCESSION - deceased died in 1998 - leaving his estate to a corporate trustee of a family trust - deceased's wife died in 2013 - deceased's younger son and executor in control of the family trust - deceased's older son brings an out of time application under Family Provision Act 1982 - plaintiff has no contact with his parents for 10 years - dispute as to the extent of family reconciliation - whether "sufficient cause" shown within Family Provision Act s 16(3) for application not having been made within time - plaintiff believed that his father's estate passed to his mother - whether executor aware of and contributed to the plaintiff's belief and remained silent - whether plaintiff was misled - whether prejudice due to delay - estate distributed - whether Family Provision Act 28(5)(d) "special circumstances" exist to justify making an order designating notional estate - whether plaintiff left without adequate provision - whether an order for provision should be made.

SUCCESSION - application for judicial advice by an executor under Trustee Act 1925 s 63 - proceedings against estate commenced by son and daughter of the deceased - son has intellectual disability and daughter is currently his primary carer - deceased's will provided a life tenancy in the deceased's property for his son subject to a right of limited occupation for his daughter - deceased's previous will gave the property to plaintiffs in equal shares - plaintiffs seek declaration that the executor holds the estate on constructive trust for them as tenants in common in equal shares - trust said to arise from conversations sister had with her parents before their death - in the alternative plaintiffs seek provisions out of the estate pursuant to Succession Act 2006 - plaintiffs made joint offer of compromise under which property passes to them as joint tenants and that joint tenancy cannot be severed during their lifetime - executor concerned that the offer does not sufficiently protect brother's future interests - small estate - significant legal costs of the proceedings incurred - executor's duties to uphold the will and compromise claims - executor not justified in accepting the offer in this form.

ADMINISTRATIVE LAW - Motor Accidents Compensation Act 1999 - application of s 94 of the Act - whether there are formal requirements for admission of liability - admission of breach of duty of care - separate admission of some damage but dispute as to the extent of any injury, the extent of any loss and the extent of any damage - liability admitted - insurer bound by assessment of damage

PROCEDURE - application for adjournment after 7 hearing days - where plaintiff claiming to be unable to attend court for completion of his cross-examination owing to acute stress - factors relevant to exercise of discretion to adjourn hearing - whether proceedings should alternatively be stayed or dismissed

APPEAL - application for leave to appeal from decision refusing oral application for leave to appeal from Guardianship Tribunal of NSW on questions of fact - whether Tribunal approached fact-finding task in unorthodox manner - application for leave to appeal dismissed

APPEAL - no question of general principle arising - no ground of appeal shown - respondent's title to land unimpeachable - short form reasons appropriate

PROCEDURE - application for review of Registrar's decision ordering plaintiff to attend medical examination - where plaintiff already assessed on behalf of defendant by a consultant psychiatrist - where plaintiff had been examined by a highly experienced medical expert whose report had been served on defendant prior to plaintiff being assessed by the specialist psychiatrist on behalf of defendant - whether Registrar made decision without evidence that a second medical examination was necessary - issue of causation of plaintiff's conditions complex - Registrar's decision based upon a broad basis, namely that as causation was a complex matter, it was open to him to have regard to the nature of the central issue in the proceedings in deciding that an order should be made permitting the defendant to have a second examination undertaken by a different specialist - no House v The King error demonstrated - application refused

EVIDENCE - criminal - maker unavailable hearsay - Evidence Act s 65 - evidence from deceased of threats made by accused - substantial gap in time between treats and alleged assault - probative value outweighed by danger of unfair prejudice - evidence inadmissible EVIDENCE - criminal - maker unavailable hearsay - Evidence Act s 65 - evidence of animosity between deceased and accused - evidence of items in disarray at scene of alleged assault - both items of evidence admissible

EVIDENCE - criminal - evidence of flight - whether unfair prejudice - where defence rebuttal would require evidence of accused's prior offending and experience with police

CRIMINAL LAW - bail - murder - whether exceptional circumstances exist

EVIDENCE - whether appropriate for trial judge to view property the subject of compensation determination - scope of view - purposes of view - Evidence Act 1995, ss 53 and 54.

CONVEYANCING - Non-compliance with condition - purchaser's remedies - rescission - pursuant to condition giving right to rescind - loss of right - election between inconsistent rights - whether entry into negotiations for early occupation of property was conduct inconsistent with the right to rescind CONTRACTS - general contractual principles - election - loss of right to rescind - whether entry into negotiations for early occupation of property was conduct inconsistent with the right to rescind a contract for the sale of land

PROCEDURE - notice of motion - writ of possession - order sought for possession of property - leave to issue a writ of possession granted PROCEDURE - notice of motion - joinder application - joinder serves no purpose - not granted PROCEDURE - notice of motion - order seeking that proceedings be dismissed - order seeking transactions be reversed - not granted

PROCEDURE - costs - indemnity costs - Calderbank letter served - whether plaintiffs should pay the defendants' costs on the indemnity basis after the Calderbank letter - plaintiffs and defendants have both suffered loss at the hands of a third party - plaintiffs bring proceedings as a matter of principle - whether a costs order should be made in the defendants favour for legal costs incurred prior to the Calderbank letter.

JUDGMENTS - application to reopen and vary - party wishing to put forward further material for consideration - further material served only in support of prior Motion already determined - no reason offered for failure to put it forward as material for consideration - application to reopen refused.

CONTRACT - specific performance - limitation of actions - whether an action for specific performance cannot be maintained by operation of Limitation Act 1969 (NSW) ss 14 and 23.

PROCEDURE - application for stay by appellant - where plaintiff does not seek to enforce judgment against appellant - where successful plaintiff seeks to enforce judgment against joint tortfeasor - where joint tortfeasor has not filed notice of appeal

PRACTICE AND PROCEDURE - No issue of principle - Litigant in person requests adjournment of hearing - Granted on terms requiring security for costs

PROCEDURE - hearing - where plaintiff failed to return for conclusion of his cross-examination - whether hearing of proceedings should be concluded in his absence

PROCEDURE - evidence - witnesses - application for witnesses in reply to give evidence beyond time fixed for hearing - no efforts made to have witnesses present during time fixed for hearing - whether witnesses could give admissible evidence - application refused

[CORPORATIONS] - [SCHEMES OF ARRANGEMENT] - Where question arising in winding up of a company - where claim in Scheme of Arrangement non-compliant with Scheme requirements - whether non compliance a procedural irregularity - whether Scheme Administrator entitled to treat claim as invalid

APPEAL FROM LOCAL COURT - reasons for decision - whether reasons of the Magistrate adequate - where reasons did not expose the reasoning process and contained no determination of one of the issues between the parties - where defendant filed notice of contention - where resolution of notice of contention would involve making new findings of fact - limitations placed upon appellate court in dealing with the notice of contention in view of the nature of the appeal PRACTICE AND PROCEDURE - reasons for decision - whether reasons of Magistrate adequate - need to adequately expose the process of reasoning leading to findings of fact - need for unsuccessful party to be able to ascertain, from the reasons, why he or she was unsuccessful COSTS - where costs order made in favour of party who was substantially successful - where application for interest on costs refused - where reasons did not identify the basis of refusal

PROFESSIONAL NEGLIGENCE - plaintiff sues former solicitor - where plaintiff sought effective ownership and control of family farming and grazing business - where business shares were to be acquired by plaintiff from family members - whether solicitor was retained by plaintiff - where solicitor denied existence of retainer - no formal retainer - whether retainer implied by conduct of parties - where professional relationship between solicitor and plaintiff's family spanned generations - retainer existed - whether breach of retainer or duty of care - where solicitor advised parties on both sides of transaction - conflict of interest - where misuse of confidential information - where failure to advise client properly - breach of duty and retainer - causation - whether breaches disadvantaged plaintiff's negotiating position at mediation - whether breaches influenced final settlement sum offered - where plaintiff influenced by own conduct independent of defendant

CRIMINAL LAW - Crown appeal - offences of assault, sexual assault and pervert course of justice - suspended sentence of 22 months imprisonment - sentence manifestly inadequate - relevance of comments preliminary to remarks on sentence - whether judge decided to suspend the sentences before determining their length - principles applicable where sentencing for multiple offences - totality CRIMINAL LAW - Crown appeal - errors in assessing impact of mental condition and objective seriousness of offences - error in assessing discount for utilitarian value of pleas of guilty - pleas entered after date allocated for commencement of trial - whether fact that delay partially explicable by charge negotiation warranted deviation from usual discount for plea of very limited utilitarian value

PRACTICE AND PROCEDURE - judgments and orders - non-publication orders - open justice - whether order restricting publication on internet necessary - Court Suppression and Non-publication Orders Act 2010, ss 6, 8.

CRIMINAL LAW - sentence appeal - attempt to possess marketable quantity of unlawfully imported border controlled drug - proceeds of crime - custody of false instrument - whether sentencing judge erred in sentencing on basis of incorrect maximum penalty - whether sentencing judge erred in manner he dealt with applicant's criminal record - whether individual sentences and total accumulated sentence were unduly harsh and severe

DEFAMATION - slander - claim supermarket manager publicly accused plaintiff of stealing prawns - whether primary judge erred in finding that the defamatory words had been published - whether primary judge erred in assessment of reliability of plaintiff's case - whether primary judge erred by failing to take into account contrary inferences to be drawn from documentary evidence - consideration of degree of tolerance allowed in departure in words proved from words pleaded - Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 - plaintiff's evidence provided sufficient acceptance of a material and defamatory part of the words alleged - factual conclusions of primary judge not "glaringly improbable" or "contrary to compelling inferences" - Fox v Percy [2003] HCA 22 - leave to appeal refused DAMAGES - quantum - compensatory and aggravated - no issue of principle - leave to appeal refused

APPEAL AND NEW TRIAL - procedural fairness - where request for adjournment and transfer of trial to another location refused - where defendant (now appellant) did not attend - whether violation of the hearing rule established CONTRACT - construction of clause giving rise to an election to terminate on a insolvency event - whether there was anything that indicated the defendant (now appellant) was or would be insolvent at the relevant time - whether contract validly terminated EVIDENCE - where evidence adduced ex-parte - where evidence is comprised of hearsay - whether evidence should be given less weight

PROCEDURE - whether failure to afford procedural fairness - where solicitor ceased to act - where trial proceeded in defendant's absence - whether notice given to defendant - whether adequate evidence tendered to prove no notice was given to defendant - whether miscarriage of discretion in proceeding in defendant's absence PROCEDURE - whether appeal can succeed on grounds not pleaded at trial - where defendant not present at trial - where defendant filed no defence or inadequate pleadings or particulars at trial APPEAL AND NEW TRIAL - whether failure to give adequate reasons

CORPORATIONS - Winding up - Termination of winding up order - Factors to be considered - Public interest - Solvency - Interests of present and future creditors - Order for termination made on terms - Corporations Act 2001 (Cth), s 482

FAMILY LAW- De facto relationship- Adjustment of property interests - Application for property adjustment order out of time-Application for leave to make application for adjustment order refused- Property (Relationships) Act 1984 NSW, ss 18, 20

PROCEDURE - plaintiff failing to comply with orders for service of proposed amended pleading - where original pleading embarrassing and liable to be struck out - exercise of discretion to dismiss proceedings for want of due despatch

CORPORATIONS - Winding up - Corporations Act 2001 (Cth) ss 500(1), 501, 569(1) - BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) Div 2A ss 26A, 26B, 26C ("the SoP Act") - Contractors Debts Act 1997 (NSW) ss 5, 6, 7, 8, 9(1), 11(1) ("the CD Act") - whether service of a payment withholding request under s 26A of the SoP Act on a company creates a charge over the monies retained in favour of the claimant - Held no charge created - whether service of a payment withholding request is an attachment put in place against the property of the company within s 500(1) of the Corporations Act - Held: that it is - whether the obtaining of a debt certificate under s 7 of the CD Act and service of a notice of claim under s 8(1) of the CD Act is the institution of proceedings to attach a debt due to a company within s 569(1) of the Corporations Act - Held that it is - whether payment out of monies retained as a consequence of the service of a payment withholding request under the SoP Act to the unpaid person as a consequence of the service of a notice of claim is an amount received by the creditor as a result of the attachment - Held that it is

SUCCESSION - Deceased dies intestate - whether cross-claimant is an "eligible person" under Succession Act, s 57 able to make a claim for family provision against his estate - cross-claimant claims to be in a domestic relationship with the deceased for at least seven years before his death - if so, whether adequate provision made for the proper maintenance, education and advancement in life of the cross-claimant - whether an order for provision should be made under Succession Act, s 59 - whether adequate provision made for the proper maintenance, education and advancement in life of the deceased's two children, the plaintiffs - whether an order for provision should be made in favour of the plaintiffs under Succession Act, s 59 - HELD: domestic relationship exists between the cross-claimant and the deceased at the time of his death and for approximately seven years before - cross-claimant an eligible person - adequate provision for the cross-claimant's maintenance, education and advancement in life not made - order for provision out of the deceased's estate made - adequate provision for the plaintiffs maintenance, education and advancement in life not made - order for provision made from the deceased's estate.

COSTS - offers of compromise - whether offer of compromise complied with UCPR - whether rejection of Calderbank offer was reasonable - whether court should exercise its general discretion and award indemnity costs - whether court should depart from usual order as to costs - whether costs should be set-off against relevant judgment amount.

CRIMINAL LAW - sentence - murder - guilty plea - home invasion - use of weapon - cowardly attack on elderly man - seriousness of offence - aggravating factors - co-offenders - mitigating factors - remorse - offender's personal circumstances - deterrence - repeated violent offender - discount on sentence for guilty plea - comparable cases - no special circumstances - victim impact statement - sentence imposed

NEGLIGENCE - accident on building site - duty of care - independent contractors - subcontractor - whether principal contractor on building site owed duty of care to independent contractor engaged by subcontractor - scope of duty - breach - employee of principal contractor lifted garage door occasioning injury to plaintiff - whether staff on site should have been notified of presence of plaintiff in garage - whether warning sign should have been erected - whether bolt should have been affixed to door - whether employee was careless in lifting the door - causation - contributory negligence. DAMAGES - past economic loss - income splitting - future economic loss - whether plaintiff has residual earning capacity - past and future care - out of pocket expenses.

COSTS - cross-claim dismissed - application for ordinary and indemnity costs - offer of compromise made - no issue of principle

ADMINISTRATIVE LAW - judicial review - assessment of injury to left hip - relative contributions of prior right knee injuries to hip injury - whether panel departed from issues raised on appeal - whether panel dealt with plaintiff's complaint sufficiently

PROCEDURE - amendment of pleadings - whether the plaintiff is effectively seeking to amend its pleadings - whether an issue not squarely raised during the hearing as an alternative case to the plaintiff's primary case can be agitated following judgment. PROCEDURE - conduct of litigation generally - whether the defendant's conduct amounts to an admission or a concession - whether the defendant is otherwise bound by his conduct by reason of preclusionary doctrines - whether the defendant is seeking to "approbate and reprobate". CONTRACTS - assessment of damages - whether the court should "do the best it can" on the available evidence to assess damages - whether this principle is applicable in a case where the nature of the amount to be proven permits precise calculation but there is a lack of evidence.

CRIMINAL LAW- sentencing-sexual intercourse with child between 14 and 16 years- no conflation of consideration of appropriateness of imprisonment and suspension of sentence-sentence not manifestly excessive

Criminal Law - sentencing - indecent assault contrary to s 76 Crimes Act 1900 (now repealed) - whether error in assessment of objective seriousness - whether too much weight afforded to victim impact statement - whether sentence manifestly excessive - re sentence