Cases and authorities

CRIMINAL LAW - indecent assault of person under the age of 16 - evidence showing sexual interest of accused in complainant - requirement for use as tendency evidence not satisfied - jury invited to use evidence for impermissible tendency reasoning - convictions quashed

CRIMINAL LAW - indecent assault of person under the age of 16 - evidence showing sexual interest of accused in complainant - requirement for use as tendency evidence not satisfied - jury invited to use evidence for impermissible tendency reasoning - convictions quashed CRIMINAL LAW - indecent assault of person under the age of 16 - adequacy of directions to jury concerning a motive to lie on the part of the complainant and his mother

Application for leave to appeal from summary dismissal - application filed substantially out of time - proposed appeal devoid of merit - leave refused

STRATA PLANS - duty of owners corporation to renew or replace mechanical exhaust ventilation system pursuant to Strata Schemes Management Act 1996, s 62(2) - whether duty extended to installing additional system to service plaintiff's lot - whether proprietary right of plaintiff in common property imposed such a duty - validity of special resolution pursuant to s 62(3) of the 1996 Act determining that it was inappropriate to renew or replace system - whether special resolution constituted a fraud on the minority

PROCEDURE - costs - departing from the general rule - calculation of damages - orders made

LIMITATION OF ACTIONS - defamation proceedings - limitation period for a corporation - joinder application - two directors of company

LANDLORD AND TENANT - leases and tenancy agreements - construction and interpretation - lessee operated hotel on leased premises - whether lessor obliged to consent to lessee's application to Council for extended trading hours - appropriate material to which regard can be had in construing terms of lease - meaning of expression "proper business hours" - implied terms of co-operation and non-derogation from grant - whether implied terms ousted by clause excluding implication of terms in respect of pre-contractual promises and representations - declaration - whether application for declaration concerns purely hypothetical dispute

CONTRACT - residential mortgage - borrower in default - enforcement of deed of guarantee against third defendant PRACTICE & PROCEDURE - application for dismissal of cross-claim under r29.7(4) Uniform Civil Procedure Rules 2005 (NSW)

PROCEDURE - possession - notice of motion - leave to file for default judgment - pleadings - cross-claim struck out - costs

PROCEDURE - COSTS - Departing from the general rule - nature of proceedings -defendants' motion of 25 May 2012 challenges the validity of the plaintiff's service on the defendants outside the jurisdiction in accordance with UCPR Pt 11 and seeks a stay of proceedings on forum non conveniens grounds and alternatively a striking out of the plaintiff's proceedings as frivolous and vexatious - plaintiff successful in resisting the defendants' motion - whether in addition to costs against the defendants on the ordinary basis the plaintiff should have an order for indemnity costs and reimbursement of her costs out of the trust fund the subject of the proceedings - whether the defendants may have recourse to trust funds for payment of their costs of the motion - HELD: plaintiff should only have costs against the defendants on the ordinary basis.

PROCEDURE - motion to challenge transferred proceedings from District Court to Supreme Court - whether the interests of justice are served by a transfer - no point of general principle

CONTRACT - construction - plaintiff and defendant parties to professional services agreement - whether clause providing for the limitation of defendant's liability to plaintiff void for uncertainty - whether condition precedent to limitation of liability that plaintiff take out insurance - whether condition precedent satisfied - whether and to what extent liability of plaintiff to defendant limited

CONTRACT - construction and performance of contract - accommodation bond paid under Resident Agreement for occupation of units in an aged care facility - residents occupy units in facility for about seven months - residents since deceased - residents' executrices claim return of accommodation bonds - whether the defendants received the accommodation bonds - whether the defendants are liable to restore the accommodation bonds - whether the accommodation bonds are returnable under the Resident Agreement, or by other means - effect of Aged Care Act (Cth) on agreement. EQUITY - constructive trust - whether defendants hold accommodation bonds on constructive trust for the plaintiffs - whether defendants assisted in a breach of trust or breach of fiduciary duty by the facility lessor. TORT - interference with contractual relations - defendants aware of requirement in Resident Agreement for return of accommodation bonds - whether by demanding the bonds from the retirement village operator the defendants have intentionally interfered in the Resident Agreement between the residents and the facility operator. TRADE PRACTICES - misleading and deceptive conduct - defendants aware that aged care facility operator may transfer residents accommodation bonds to defendants in response to demand by defendant controlled company - whether defendants engage in misleading or deceptive conduct by not disclosing that information to residents and prospective residents of the aged care facility.

MORTGAGES - possession - application for an injunction restraining the respondent from taking enforcement action under its registered mortgage - issues already determined PRACTICE AND PROCEDURE - unmeritorious multiple notices of motion - applicant on own admission unable to meet costs orders past and future - further notices of motion not to be filed without leave

CORPORATIONS - deed of company arrangement - orders sought for termination of deed of company arrangement - leave sought to bring proceedings under s 444E of the Corporations Act 2001 (Cth) - whether the Court can make an order by consent that a deed of company arrangement be terminated for "some other reason" under s 445D(1)(g) Corporations Act 2001 (Cth).

ADOPTION - whether material being used to provide service relating to safety welfare and wellbeing of a child - where parenting capacity is relevant issue - whether information provided goes to parenting capacity

SUMMONS - summons seeking declaration - plaintiffs are trustees of trust to which defendant is beneficiary - whether beneficiary is "client" of trustee for purposes of Legal Profession Act 2004 - whether beneficiary is "third party payer" of trustee for purposes of Legal Profession Act 2004 - nature of beneficiary's obligation to pay costs of trustee is equitable not legal - distinction between "legal obligation" to pay and "liability to pay" costs - defendant not a "client" for purposes of Legal Profession Act 2004 - defendant not a "third party payer" for purposes of Legal Profession Act 2004

COSTS - Calderbank letter - Indemnity costs - Whether refusal of offer unreasonable

ADMINISTRATIVE LAW - judicial review - cyclist knocked off bicycle by motor vehicle - closed head injury - assessment of no permanent impairment - use of Permanent Impairment Guidelines - whether guidelines followed in assessment - necessity of Review Panel to expose reasoning

ADMINSTRATIVE LAW - Motor Accidents Compensation Act 1999 - effect of Guidelines - Review Panel procedure - requirement to give claimant capacity to respond to inconsistent observations

DEFAMATION - publication - fourth defendant sued as an original publisher jointly liable for the whole of a television broadcast - where only a minor contributor to the programme published - no allegation of control over preparation of the programme or assent to its final form - whether proceedings liable to be dismissed as against her

PROCEDURE - service of originating process - breach of contract proceedings commenced in District Court - District Court territorial jurisdiction based on due service - District Court originating process cannot be served outside Australia - defendant resided overseas but was temporarily in Australia - order for substituted service made the day before defendant due to leave Australia - whether order properly made

CORPORATIONS - winding up - statutory demand - application to set aside statutory demand under s 459G, s 459H and s 459J - whether plaintiff's application served within 21 day period - held, application not served within 21 day period - held, Graywinter principle would have precluded the plaintiff from relying upon offsetting claim - interlocutory process dismissed with costs

INTERLOCUTORY APPLICATION - restraint of defendant from selling property - transfer of property pursuant to Family Court Order - whether applicant has made out a prima facie case for relief sought - reason for non-compliance of parties with aspects of the Family Court Orders.

ADOPTIONS - whether adoption in best interests of child - whether natural mother's consent should be dispensed with - whether adoption plan should be registered

PRACTICE AND PROCEDURE - Subpoenas - costs of responding to subpoena - quantum of costs to be awarded

PRACTICE AND PROCEDURE - application for discharge of stay - stay discharged

COURTS AND JUDGES - Courts - Comity - Inappropriate for Supreme court freezing order in aid of District Court proceedings - Proceedings transferred to District Court

CRIMINAL LAW - Murder - special hearing pursuant to the Mental Health (Forensic Provisions) Act 1990 - where Crown relied upon circumstantial case - necessity to consider the entirety of the circumstantial case in determining whether the accused's commission of the alleged offence was proved beyond reasonable doubt EVIDENCE - admissions - exclusion of admissions on the basis that they were improperly obtained or alternatively on the basis that to use them against the accused would be unfair - where accused suffering from brain damage, epilepsy, alcohol dependence and resultant cognitive impairment - where accused had been interviewed by the police on two occasions and had denied killing the deceased - where police subsequently implemented undercover operation - where police were aware during the course of the undercover operation that the accused was undergoing treatment for psychological issues and alcohol dependence - where police continued with the undercover operation in those circumstances - where accused initially repeatedly denied responsibility for the deceased's death to undercover operative - where accused ultimately admitted at the conclusion of the undercover operation that she killed the deceased - whether the actions of the police in implementing and continuing the undercover operation were improper - whether the circumstances in which the admissions were made were otherwise improper - whether the evidence of the accused's admissions should be excluded as having been improperly obtained - alternatively whether evidence of the accused's admissions should be excluded on the basis of unfairness EVIDENCE - admissions - where evidence that the accused had allegedly admitted to the killing of the deceased - where the person giving evidence of the alleged admission first raised the assertion four years after such admission was allegedly made - whether the evidence of the admission should be excluded on the basis of unfairness. EVIDENCE - lies - where Crown relied upon lies told by the accused as evidence of consciousness of guilt - whether the statements made by the accused were in fact lies - whether the lies were deliberate - whether the lies were evidence of consciousness of guilt EVIDENCE - tendency evidence - whether evidence relied upon by the Crown which established tendency on the part of the accused to act aggressively

CONTRACTS - disagreement as to purchase price - wrongful termination of contract - whether inclusion of powder room express or implied term - counterpart contracts contained different amendments - whether parties agreed to be bound by terms in defendants' counterpart that were not included in plaintiff's counterpart

APPEAL - appeal from decision of Magistrate in Local Court - whether appeal grounds involved a question of law - where grounds asserted inadequacy of reasons - where reasons inadequate - error of law established PRACTICE AND PROCEDURE - reasons for decision - adequacy of reasons - necessity to determine identified issues - appellate court not to be left to speculate as to the basis of a finding or speculate as to whether an issue has been determined

CIVIL LAW - appeal from Local Court - proceedings terminated during cross-examination - no re-examination permitted - parties not permitted to address - denial of procedural fairness - matter remitted to Local Court

CRIMINAL LAW - accused charged with murder and other offences - found by Court to be unfit to be tried - Mental Health Review Tribunal concludes thereafter that accused fit to be tried - operation of ss.29 and 30 of Mental Health (Forensic Provisions) Act 1990 - fitness of accused associated with compliance with medication regime - Tribunal ordered under s.47(1) Mental Health (Forensic Provisions) Act 1990 that accused be detained in MRRC to receive care and treatment - thereafter accused transferred to Goulburn Correctional Centre - accused does not comply with medication regime - psychiatric opinion that accused again unfit to be tried - inquiry adjourned to assist determination under s.30 of Act

[CONTRACTS] - where parties in a commercial joint venture project for development of maritime fuel facility - where Shareholders Agreement governs funding of project - where one of the joint venturers in funding default - construction of Shareholders Agreement - whether non-defaulting party entitled to compulsory transfer of all the shares of the defaulting party for $1 - or for $1 per share [PENALTY] - whether compulsory transfer for $1 constitutes a penalty

PROCEDURE - civil - parties - identification - whether director entitled to commence and carry on proceedings for company - director authorised agent of company - director joined as party to proceedings - whether director could only be a plaintiff if director had a personal cause of action against the defendant, separate from that of the company - Uniform Civil Procedure Rules 2005, r 7.1 PROCEDURE - civil - parties - identification - whether director appeared as tutor for plaintiff company - whether company is a "person under legal incapacity" - persons under legal incapacity forced to sue through tutor - concept concerned with individuals not juristic persons - Civil Procedure Act 2005 (NSW), s 3(1) WORDS AND PHRASES - person under legal incapacity - Civil Procedure Act 2005 (NSW), s 3(1)

CHILD WELFARE - care proceedings - application by foster carers challenging decision of the Children's Court - whether magistrate erred in rejecting evidence - need to weigh advantages of admitting probative evidence against disadvantages of admitting improperly obtained evidence - whether magistrate failed to apply s 79(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - whether magistrate took into account, and acted on, irrelevant considerations CHILD WELFARE - care proceedings - where statutory opportunity to be heard on matters of significant impact - whether foster carers were entitled to that opportunity - what constitutes an opportunity to be heard - Children and Young Persons (Care and Protection) Act 1998 (NSW) s 87 CHILD WELFARE - care proceedings - whether foster carers have standing to seek relief under s 69 Supreme Court Act 1970 (NSW) - if not, whether manifest defects in hearing before and reasons of Children's Court constitute "exceptional circumstances" - whether Supreme Court may, in the exercise of parens patriae jurisdiction, grant relief under s 69 Supreme Court Act 1970 (NSW) EVIDENCE - care proceedings - admissibility - assessment reports - where assessment report obtained outside the assessment process outlined in the Children and Young Persons (Care and Protection) Act 1998 (NSW) - where report was not prepared pursuant to court order - relevant principles - Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 52, 53, 54, 55, 56, 57, 58, 59

CONTRACT - superannuation - insurance - claim for benefit - whether plaintiff totally and permanently disabled within the meaning of the relevant superannuation trust deed and insurance policy - duty on a trustee of a superannuation fund in determining a claim for a benefit - duty on an insurer in determining a claim for a benefit

CONTRACT - post employment restraints - no factual basis to support a finding of actual or threatened breach of restraints

Vexatious litigant - application for leave to institute proceedings - non compliant affidavit - no prima facie ground - no point of principle

DEFAMATION - imputations - whether capable of arising

REAL PROPERTY - possession of land - application by mortgagee for summary judgment - where first defendant does not contest plaintiff's claim - amended defence filed by second defendant - whether mortgagee failed to serve notice of default - cross-claim by second defendant against first defendant - whether pleading amenable to strike out

PRACTICE AND PROCEDURE- application for pro bono legal assistance

CRIMINAL LAW - murder - plea not guilty - assault on deceased with wooden baton -19 injuries to head of deceased - offender in a relationship with deceased - offender longstanding problems with alcohol - guarded optimism about prospects of rehabilitation - sentence imposed

CORPORATIONS - Remedies - declaratory relief - plaintiffs claimed purported cancellation of fully paid ordinary shares issued by defendant as consideration for sale and transfer of shares in other company was invalid, void and of no effect - where plaintiffs late in complying with obligations under share sale agreement - consideration of whether defendant entitled to terminate agreement on account of plaintiffs' failure to have performed their obligations under the agreement - consideration of whether time essential under contract - time not essential so defendant not entitled to terminate agreement - plaintiffs entitled to relief sought. COSTS - Indemnity costs - where cross claim for misleading and deceptive conduct bordering on the preposterous and could never have had significant prospects of success

CRIMINAL LAW - appeal against conviction - whether trial judge put defence case to jury - objection not taken at trial - substance of defence case in fact put to jury - leave to appeal refused

APPEALS - appeal from valuation decision limited to question of law - scope of appeal - error of law in failure to bring to account cashflow - no error of law in arithmetic error COURTS AND JUDGES - statement of reasons for decision - appeal limited to question of law - extent of duty to give reasons - no error in giving short reasons MINES AND MINERALS - operation and history of mining legislation - nature of rights conferred by mining lease - nature of rights of owner of privately owned minerals VALUATION - methods of valuation - hypothetical fee simple of mine - valuation by discounted cashflow of hypothetical mine - application of royalty provisions in Mining Act 1992 as generally applicable public law - parties' cashflows included royalty payments as expenses but did not include receipts of royalty for privately owned minerals - valuation set aside and proceeding remitted

SUCCESSION - executors and administrators - liability of executors in devastavit for failing to call in and collect the assets of the deceased - prior to his death the deceased's properties were sold by his wife acting under powers of attorney - attorney paid proceeds into her own bank account - executors should have enquired as to what became of the properties and proceeds of sale - manner of determining loss suffered by estate EQUITY - trusts and trustees - third party liability for breach of trust - knowing receipt under first limb of Barnes v Addy - property sold under powers of attorney and proceeds paid into attorney's own bank account - actual knowledge of breach of trust alleged - whether third parties knew that attorney lacked power to pay proceeds into own bank account and knew payments to them were from those proceeds LIMITATION OF ACTIONS - whether devastavit claim against executors statute-barred - whether time began to run from first failure of executors to recoup loss due to the estate or from expiry of limitation period for executors' claim on behalf of estate

LEGAL PRACTITIONERS- application to appoint receiver to legal practice

CORPORATIONS - management and administration - meetings - creditors meetings - application for an extension of the convening period for the second meeting of creditors - where extension of time sought to allow calculation of employee entitlements and for proposal of a deed of company arrangement.