Cases and authorities

PROCEDURE - application to summarily dismiss application for non-party costs orders - summary dismissal sought on the basis that applicant for non-party costs orders failed to comply with court orders as to pleading and failed to duly prosecute claim - whether failure to duly prosecute when administration of applicant intervened

SUCCESSION - family provision and maintenance - plaintiff married to testator for 27 years - plaintiff and testator separate two years before his death - no approved settlement under the Family Law Act before his death - his will declares she "has already been generously provided for" and makes no provision for her -whole estate given in equal shares to the two children of testator's first marriage and his three children with the plaintiff - whether adequate provision made for the plaintiff out of the estate of the deceased - whether an order for provision should be made out of the estate of the deceased, under Succession Act 2006 s 59, and if so what order should be made.

CRIMINAL LAW - murder - judge alone trial - reasons for verdict

PRACTICE AND PROCEDURE- application for leave to amend pleadings- pleadings to be read as a whole- causal nexus adequately pleaded

PRACTICE AND PROCEDURE - application to stay removal of personal property - application overtaken by events

PRACTICE AND PROCEDURE - application for stay of public auction - ample time afforded to mortgagor for refinance

PROCEDURE - possession - proceed to execute writ of possession - no reason for further delay - orders sought made

Stay pending appeal - suspension of solicitor's practising certificate - public interest - stay granted pending application to Court of Appeal.

PROCEDURE - subpoenas - whether material relevant ADOPTION - whether material constituted communication

CRIMINAL LAW - Crown appeal against sentence - aggravated break and enter and commit serious indictable offence - domestic violence - whether error in assessing objective gravity of offence -whether offender being known to complainant reduced the objective seriousness of the offence - whether offender's primary motive in going to the home reduced objective seriousness of the offence - whether offence being committed is the presence of children aggravated the offence - whether error in approach to suspension of sentence - whether suspended sentence manifestly inadequate - whether residual discretion should be exercised - re-sentencing - special circumstances - parole direction

TORTS - negligence - occupiers' liability - plaintiff fell in defendant's supermarket - small pieces of cardboard on the floor in the vicinity of the fall - causation - whether the plaintiff established that she trod on the cardboard - whether the plaintiff established that the cardboard was a slip hazard - assessment of damages - where evidence of treating doctors indicated minor injury in consequence of fall - more serious consequences suggested in medico-legal reports but loss of capacity to earn quite limited - finding of 20 per cent of a most extreme case not supportable - findings as to loss of earning capacity not supportable

CORPORATIONS - voluntary administration - administrator - s 41 Registered Clubs Act 1976 - whether administrator validly appointed CORPORATIONS - voluntary administration - administrator - s 447A Corporations Act 2001 - s 1322 Corporations Act - whether primary judge erred in exercising his discretion to make curative orders CORPORATIONS - voluntary administration - administrator - s 128 Corporations Act 2001 - s 129 Corporations Act - whether administrator entitled to rely on statutory assumptions CORPORATIONS - voluntary administration - administrator - attempted sale of core property without member approval - whether attempted sale was conduct prejudicial to the interests of club members

CIVIL LAW - application for interim supervision order pursuant to s 10B of Crimes (High Risk Offenders) Act 2006 - test similar to whether there is prima facie case - whether defendant a "high risk violent offender" - not a stringent test - test made out in the circumstances - interim order made

PRACTICE AND PROCEDURE-application for leave to rely on expert report- application inconsistent with overriding purpose of Civil Procedure Act

EQUITY - Fiduciary duties - Breach - Director and company - Alleged misapplication of company's funds - Whether money paid to defendant by director belonged to plaintiff company - Whether money paid to defendant constituted a misapplication of company funds to actual or constructive knowledge of defendant. EVIDENCE - Proof - Burden or onus - Whether plaintiff able to discharge onus on case alleged - Availability of Presumption of Undue Influence - Rebuttal of presumption. REMEDIES - Declarations - Onus of Proof - Depends on substantive character of contest - Proceedings on cross claim ancillary to principal proceedings. PROCEDURE - Civil - Parties - Standing - Corporation - Internal disputation - Affect on third party claim. CORPORATIONS - Directors - Implied actual authority.

EVIDENCE - admissibility - early determination - expert reports - assumptions given to experts - no factual material to support or validate assumptions - whether expert reports admissible

LEGAL PRACTITIONERS - suspension of practising certificate - appeal against suspension - where suspension for alleged misappropriation of funds - hearing de novo - whether suspension necessary in the public interest - whether necessary to make findings of dishonesty - Legal Profession Act 2004, ss 548 and 549

DEFAMATION - whether plaintiff should have leave to continue proceedings against company in liquidation - factors relevant to exercise of Court's discretion - defences - whether adequately particularised

WILLS, PROBATE AND ADMINISTRATION - Forfeiture under public policy rule - Defendant killed wife and children - Joint tenancy - Intestacy - Order for sale

CRIMINAL LAW - conviction appeal - import a commercial quantity of pseudoephedrine - whether verdict unreasonable and unsupported by the evidence - whether miscarriage of justice occurred - whether conduct of trial by counsel improper or negligent - no unfairness occasioned by delay in trial - no denial of opportunity to cross examine key witness - no misdirection as to mental element of the offence - recklessness - whether defence case mischaracterised in summing up - no denial of procedural fairness - no miscarriage of justice. CRIMINAL LAW - sentence appeal - whether conduct of trial by counsel improper or negligent - whether reasonable apprehension of bias - further findings of fact by trial judge without evidence - whether principles of parity or relativity misapplied - whether sentence manifestly excessive - discretion to re-sentence not exercised.

CORPORATIONS - application for correction of register of members - transferee of shares registered as member by one director without board consideration - transferee provided quorum for members' meeting - members' meeting led to appointment of additional directors - whether registration of transfer valid despite lack of board approval - right of transferee to have registration considered by board

ADOPTION - Whether consent of natural father should be dispensed with

PROCEDURE - summary dismissal of proceedings - frivolous proceedings - orders sought with no basis in fact or law - abuse of the process of the Court - no general principle

PROCEDURE - costs - departing from the general rule - plaintiff seeks tracing orders against four defendants in respect of misappropriated funds - plaintiff settles with two defendants - other defendant bankrupt - plaintiff fails to prove fourth defendant knowingly concerned in fraudulent misappropriation of funds - plaintiff's claim for approximately $2.7 million against all defendants - plaintiff recovers judgment for $89,970.01 against the fourth defendant as a volunteer - whether the fourth defendant should pay the plaintiff's costs of the proceedings or some part of the proceedings.

TRUSTS - trust created under a will - judicial advice under Trustee Act 1925 s 63 - whether agreed facts presented by the trustee to the Court incorrect - whether advice should be postponed. COSTS - whether the beneficiaries should bear their own costs of the judicial advice proceedings - or whether their costs should be costs in the administration of the estate - extensive argument by beneficiaries in respect of their own interests - proceedings in the nature of semi-hostile litigation.

PRACTICE AND PROCEDURE - application to amend pleading - no basis for amendments in experts' reports or other documents

PRACTICE AND PROCEDURE - application for interrogatories - special reason for interrogatories

EVIDENCE - criminal - maker unavailable hearsay - s 65 Evidence Act - victim of alleged assault made statements to others some five weeks after attack after recovering from coma - victim later died - whether "shortly after" occurrence of asserted fact - whether ambiguity of statement that victim "bashed" unfairly prejudicial where maker unavailable for cross-examination

TORTS - negligence - solicitors' duties to clients and former clients - whether primary judge erred in holding that no solicitor/client retainer and no duty of care or fiduciary duties owed to appellant in relation to transaction in question - whether primary judge erred in holding no breach of duty of care or fiduciary duties and no loss caused as a result of conduct in question

PROCEDURE - interlocutory relief - interlocutory orders sought for the nomination of trustees to hold on trust all of the shares of the company and for the appointment of directors to the company for day-to-day management of the company - where the defendants argue that the plaintiff does not hold shares in the company - where ASIC searches at different times show different results about the ownership of shares - the Court's power to grant interlocutory relief under s 66 of the Supreme Court Act 1970 (NSW) - whether the balance of convenience favours the grant of relief where the orders would be substantially adverse to the defendants - whether the terms of the proposed orders are too indeterminate - whether the proposed appointment of directors would be outside the established structure of the company's constitution and the Corporations Act 2001 (Cth).

PRIVATE INTERNATIONAL LAW - enforcement of foreign judgments - discrepancies in parties' names

CONTRACT - purchaser's failure to complete contract for sale of land - minor inaccuracy in description - no uncertainty of subject matter CONTRACT - alleged defect in title - rights of carriageway and restrictions on use created after contract - limited rights to make objection, requisition or claim for compensation or rescission - purchaser obliged to complete the contract

SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are also children of the deceased and siblings of the Plaintiff - Deceased left Will allowing Plaintiff to reside in only substantial asset for 12 months and then divided estate between her four children - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made

CONTRACTS - repudiation - whether bank repudiated facility agreement - whether alleged failure by the bank to pay GST component of drawdown amount was repudiatory - whether alleged statement by a bank employee that the bank "wanted out" was repudiatory - whether repudiation accepted - whether borrower's conduct amounted to event of default - whether bank entitled not to make further payments under the facility - whether bank is relying on its own wrongdoing. CORPORATIONS - duties of mortgagee when selling corporate property - whether the bank contravened s 420A of the Corporations Act by failing to take all reasonable care to sell property for not less than its market value - whether advertisement as "mortgagee sale" was in contravention of s 420A - whether alleged delay in dealing with alleged prospective purchaser amounted to a breach of s 420A. CORPORATIONS - unconscionable conduct under the Australian Securities and Investments Commission Act 2001 - whether the bank engaged in unconscionable conduct under s 12CC. BANKING AND FINANCE - whether Code of Banking Practice applies - whether bank breached Code of Banking Practice - effect of breach of Code of Banking Practice.

TRUSTS AND TRUSTEES - Resulting trust - Land acquired as joint tenants - Contribution by one purchaser only - Clear intention other party recorded on title in name only

CRIMINAL LAW - application for criminal assets restraining order and associated orders

PRACTICE AND PROCEDURE - stay of judgment - condition of stay - strict compliance - effect of non-compliance PRACTICE AND PROCEDURE - application for summary dismissal of application for leave to appeal - whether no arguable grounds PRACTICE AND PROCEDURE - costs - application for order conditioning prosecution of matter upon payment - poverty no bar to a litigant

EVIDENCE - tender of affidavit sworn in different proceedings - hearsay - no question of principle.

REAL PROPERTY - whether certificate of title ought be delivered to the Registrar-General to enable sale of property - no general point of principle

CONTRACTS - construction - inconsistent provisions - whether inconsistency is capable of correction by an exercise of construction - proper construction of a contract containing conflicting provisions - whether handwritten provision overrides inconsistent printed provision. CONTRACTS - rectification - whether parties held a "common intention" - whether rectification is available where the terms though deliberately selected by the parties do not achieve their intended effect - principle in Pukallus v Cameron - whether there is sufficiently specific evidence to indicate the precise method by which the parties' intended effect is to be carried out - whether parties' "common intention" was merely to contract on terms drafted by a third party adviser - whether the party resisting rectification held numerous conflicting intentions - relevance of "governing" or "predominant" intention. CONTRACTS - relief from obligations - whether personal guarantees "unjust" within the meaning of the Contracts Review Act 1980. CONTRACTS - variation - whether alleged variations are supported by consideration - whether consideration was provided by way of a "factual benefit" or the avoidance of a "disbenefit". EQUITY - unconscionable conduct - whether debenture deed should be set aside - whether the defendant engaged in unconscionable conduct in procuring the debenture deed. EVIDENCE - alleged medical condition - no medical or expert evidence - extent to which a trial judge can make findings about an obvious or apparent incapability. TRADE PRACTICES - unconscionable conduct under s 51AC(2) - whether debenture deed should be set aside - whether defendant acted unconscionably - whether defendant's conduct involved moral obloquy - whether the defendant engaged in misleading and deceptive conduct.

DEFAMATION - imputations - whether capable of arising - whether bad in form

PRACTICE AND PROCEDURE - judgments and orders - whether jurisdiction to vary orders made by the Court of Appeal or to set aside writs for levy of property issued to enforce such orders - whether writs issued for collateral purpose

EVIDENCE - Court Suppression and Non-publication Orders Act 2010 ss 7, 8(1)(a), 8(1)(e) - application for suppression orders with respect to documents where during the trial of a commercial cause contractual documents concerning a joint venture and partnership between one of the parties to the cause and third parties were admitted into evidence without qualification but asserted by that party to the cause to be commercially confidential to it - whether making of a suppression order is necessary to prevent prejudice to the proper administration of justice - whether suppression orders is otherwise necessary in the public interest and whether this public interest signifficantly outweighs the public interest in open justice - Held making of a suppression order not necessary in the circumstances.

[TAXES AND DUTIES] - [STAMP DUTY] - where duty assessed pursuant to land rich provisions of the Duties Act 1997 - review/appeal from decision of Chief Commissioner of State Revenue - whether the land holder was land rich at the time of the relevant acquisitions - whether transfers exempt from land rich duty

CONTRACT - construction of contract - supply of sunshades for fixing to exterior building surfaces during construction - exchange of sunshade supplier's invoice and builder's purchase order - whether contract price is calculated per sunshade unit supplied up to 102 sunshades or, whether it is a fixed price for sunshades shown in architectural drawings of the exterior building surface. APPEAL - appeal from Local Court - Local Court Act ss39 and 40 - whether appeal on a question of law

PROCEDURE - application to transfer proceedings to District Court - medical negligence claims - claims by child and mother - problems arising from perinatal period - medical evidence unchanged since proceedings commenced - length of hearing in country sittings of District Court - need for judicial case management - applications refused

LOCAL COURT APPEAL - guarantee - whether principal debtor entered into agreement to obtain goods on credit - capacity of named persons to bind company - sections 127 and 129 of the Corporations Act - whether guarantee discharged - whether Court's reasons adequate - discretion to grant relief.

PROCEDURE -Summary disposal-Dismissal of proceedings -Abuse of process-Failure to comply with order for statement of claim to be filed- No reasonable cause of action identified

SENTENCE - guilty pleas - offence of murder - offence of intimidation - maximum discount for utilitarian value of pleas of guilty - execution style murder for payment - top of the range of objective seriousness for intimidation offence - offender's past and future assistance to police of a very high order - offender not entitled to an Ellis discount - no finding of special circumstances on basis of offender's subjective circumstances - finding of special circumstances on basis that accumulation of sentence for murder upon sentence for intimidation offence results in an aggregate non-parole period that is disproportionate to aggregate term

PROCEDURE - costs - recovery of costs - defendant revoked authority to receive funds from former solicitors - former solicitors had lien over verdict moneys to secure costs properly payable - former solicitors were cause of proceedings regarding verdict moneys - whether former solicitors should indemnify defendant for costs payable by her to plaintiff - whether former solicitors should pay defendant's costs of the proceedings