Cases and authorities

PRACTICE & PROCEDURE - production and inspection - notice to produce - where no forensic purpose.

PRACTICE & PROCEDURE - expert report - application to adduce expert report - where report produced and served grossly out of time - no question of principle

CONTRACTS - construction of the contract - whether a clause limited council rates to $100K (plus "pegged" increases) for twenty years - issue of material to which the Court can have regard in the case of ambiguity and the relevance of the outcome of a particular construction (illegality or void contract) - alternative claims in estoppel and rectification raised but not determined. ADMINISTRATIVE LAW - whether the council's agreement to fix rates for twenty years in the manner contained in clause 3.1 of the contract was beyond power and or a fetter on its power and hence ultra vires. MISLEADING AND DECEPTIVE CONDUCT - whether a local council is acting "in trade or commerce" pursuant to s 42 of the Fair Trading Act 1987 and s 52 of the Trade Practices Act by entering into a contract relating to the creation of a road and whether the local council is a trading corporation pursuant to s 52 of the Trade Practices Act - findings also made on the question of whether the impugned conduct caused loss and whether there was evidence that the council did not have a reasonable ground for making the representation.

MORTGAGES - mortgages and charges generally - accounts - whether NZ$309,507 of the funds paid to a mortgagor were advanced by the mortgagee on account of the mortgage - or, whether the funds paid were merely funds paid on behalf of a third party and are not owing under the mortgage. HELD: The NZ$309,507 in funds were not advanced to the mortgagor by the mortgagee and are not owing under the mortgage.

PROCEDURE - parties - identity of proper defendant - claim for possession of land for mortgage default - mortgagor dies after default and before proceedings commenced - deceased dies intestate - no representation in the deceased estate - whether NSW Trustee and Guardian is proper defendant - s 61 Probate and Administration Act - persons interested in the estate - whether ancillary orders should be made giving notice of proceedings

PROCEDURE - parties - identity of proper defendant - claim for possession of land for mortgage default - mortgagor dies after default and before proceedings commenced - deceased dies leaving will appointing Public Trustee as executor - no representation in the deceased estate - whether NSW Trustee and Guardian is proper defendant - s 61 Probate and Administration Act - persons interested in the estate - whether ancillary orders should be made giving notice of proceedings

EMPLOYMENT LAW - concurrent breach of contract and fiduciary duty based on the same conduct may give rise to different remedies - appropriate to grant declarations for both breach of contract and breach of fiduciary duty DE MINIMUS - cultivation of clients may have long-term impact - present value of reasonably estimated future fees relevant not just the initial work done - inappropriate to apply the de minimus principle

PROCEDURE - judgments and orders - actions on judgments - stay of orders - r 51.44 Uniform Civil Procedure Rules 2005 - judicial sale - ancillary orders for possession subsequently made - whether arguable case for appeal

TORTS - negligence - liability for others' negligence - other persons - Soblusky v Egan (1960) 103 CLR 216 - Scott v Davis (2000) 204 CLR 333 - social occasion - where owner of vehicle not present - where owner of vehicle not aware of its use - whether applicant vicariously liable for the acts of his de facto wife

ORDERS & DIRECTIONS - where conflicting orders proposed by the parties to give effect to the courts reasons - no question of principle

CRIMINAL LAW – Sentence– murder – reckless indifference – worst case category - life imprisonment – application of s 61(1) Crimes (Sentencing Procedure) Act 1999 CRIMINAL LAW – Sentence – recklessly cause grievous bodily harm – worst case category CRIMINAL LAW– Sentence – larceny as a clerk – theft of prescription drugs

REAL PROPERTY - Torrens Title - easement - plaintiff dominant owner of a right of carriageway - plaintiff claims the servient owners have caused actionable interference to the easement - whether the servient owners have caused real and substantial interference to the easement by latching a gate, by blocking sub-surface drains, by placing roadside rocks, or by erecting poles on the road surface.

CRIMINAL LAW - sentencing - whether full effect given to utilitarian discount - whether greater degree of concurrency of sentence required - whether proper adjustment to statutory ratio - special circumstances - whether sentence manifestly excessive

INJUNCTIONS - interlocutory injunctions - freezing orders - application for freezing order in aid of execution of Local Court judgment - jurisdiction of Supreme Court to make freezing order pursuant to inherent jurisdiction and r 25.14 of Uniform Civil Procedure Rules 2005 - whether making order is in the interests of the administration of justice when Local Court has same inherent power PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - proceedings with no real prospects of success - improper allegations of fraud

TORRENS SYSTEM - Caveats - Leave to lodge further caveat - No issue of principle

PLEADINGS - objectionable form - no question of principle.

APPEAL FROM LOCAL COURT - whether measurement of height qualifies as "non-intimate forensic procedure" as defined under s 3(1) of the Crimes (Forensic Procedures) Act 2000

PROCEDURE - Civil - Judgments and orders - Contempt of court - Practice - Whether contemnor can be heard in own cause before purging contempt PROCEDURE - Civil - Judgments and orders - Effect of judgment - Estoppel by judgment - Res Judicata - Issue estoppel - Anshun estoppel - Abuse of process - Consideration upon application for summary disposal of second proceedings - Whether entitlement to rely on a res judicata defence can be lost by a failure to plead - Waiver - Estoppel

CONFISCATION OF CRIMINAL ASSETS - warranty - whether personal warranty necessary - whether actual or apparent authority of agent to give warranty sufficient - whether, as a fact, authority existed

CONTRACTS - Unjust contracts - Contracts Review Act - Plaintiff urgently needed funds but determined to keep property in family name - Only prepared to sell to nephew who agreed to purchase for all he could afford and granted seven year lease back to Plaintiff - Both parties understood price was a significant undervalue - Contracts not unjust in the circumstances

MORTGAGES - Sale under power - Proceeds of sale - Surplus paid into Court - Directions for payment out

EVIDENCE - criminal trial on the charge of murder - question put by Crown to witness objected to by Defence - whether evidence about emotional state of the accused relevant - whether opinion evidence admissible as lay opinion under s78 Evidence Act 1995 (NSW) - whether question should be excluded under s137

CONTRACTS - general contractual principles - construction and interpretation of contracts - agreement required valuation of property as at a particular date be obtained - valuer made valuation as at a later date, then subsequently made valuation as at requested date - whether valuer's task was complete upon making first valuation - whether term can be implied into agreement that valuer entitled to make new valuation

TRUSTS AND TRUSTEES - Implied trusts - Property acquired with stolen funds declared to be held on trust for plaintiff by defendants - Defendants absconded - Vesting order made to perfect plaintiff's title to property

APPEAL - appeal from Local Court Magistrate - whether error of law or mixed fact and law established - construction of agreement.

CORPORATIONS - whether transactions liable to be set aside as preferences, uncommercial transactions and insolvent transactions under Part 5.7B of the Corporations Act - whether the company was insolvent at relevant times - whether a presumption of insolvency based on a failure to maintain adequate financial records is established - whether the grant of a charge was an unfair preference or an uncommercial transaction - whether an assignment of rights in litigation was an unfair preference or an uncommercial transaction - whether payments made to the defendant were unfair preferences.

CONTRACT - failure of joint venture agreement - assignment - estoppel - restitution

Wills-rectification-alleged clerical error-whether clerical error must be the sole or primary cause of the relevant problem-proper practice when preparing wills

APPEAL - appeal from decision of Magistrate in the Local Court on a question of law - where plaintiff sued for damages for breach of agreement - where defendant pleaded a different agreement and alternatively pleaded that no agreement had been reached - where Magistrate found that the parties were not ad idem and that no agreement had been reached between them - whether Magistrate was in error in so finding in view of the pleadings - whether the Magistrate was obliged to inform the plaintiff of the possibility of such a finding prior to delivering judgment - whether the Magistrate's failure to do so constituted a denial of procedural fairness

CRIMINAL LAW - application for leave to appeal against sentence - application for leave to appeal out of time - whether error in determining non-parole period which offended the parity principle - special circumstances - leave to appeal out of time granted - leave to appeal granted - appeal dismissed

CRIMINAL LAW - appeal - murder - conviction - leave required under r 4 of the Criminal Appeal Rules to argue sole ground of appeal - whether error in failing to leave partial defence under s 421 of the Crimes Act 1900 to the jury - no evidence which required s 421 issue to be left to jury - leave to argue ground refused - appeal dismissed CRIMINAL LAW - sentence - murder - application for leave to appeal against sentence - whether sentence manifestly excessive - no error found - leave to appeal granted - appeal dismissed CRIMINAL LAW - sentence - murder - application for leave to appeal against sentence - whether sentence manifestly excessive - whether error in departure from the standard non-parole period - whether error in findings relating to appellant's prospects of rehabilitation - whether insufficient attention given to mitigating factors in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 - whether error in not adequately disclosing reasons for exceeding non-parole period - no error found - leave to appeal granted - appeal dismissed

PROCEDURE - notice of motion - application to re-open - not granted - application to adjourn costs hearing for three months - not granted - application seeking the Court to accept fifth medical report - not granted - access to transcript of proceedings granted to defendant

CONTRACTS — building, engineering and related contracts — Home Building Act 1989 — warranties implied by statute — whether owners corporation under strata scheme entitled to statutory warranties as against “developer” — liability of non-contracting owner to immediate successor in title — whether appellant was the party “on whose behalf” the “residential building work” was done and therefore a “developer” for the purposes of the Act.

PROCEDURE - motion to set aside vexatious proceedings order - no reasonable grounds

EQUITY - trusts and trustees - removal of trustees - recovery of trust assets - proceedings commenced in New South Wales by one of three trustees of a testamentary trust created under will admitted to probate in Fiji - whether New South Wales Supreme Court has jurisdiction to determine the proceedings - whether defendants have been served personally within jurisdiction - whether defendants have been served outside jurisdiction in accordance with UCPR Pt 11 - whether leave to proceed should be given under UCPR Pt 11 - defendants issued subpoenas and filed an unconditional appearance - application for leave to withdraw appearance - whether defendants have submitted to jurisdiction - whether New South Wales is a clearly inappropriate forum for their determination.

PROCEDURE - Possession List - early judicial directions - defendant an undischarged bankrupt - Defence filed does not disclose defence to the claim - defence struck out

DEFAMATION - trial by judge alone - Defamation Act 2005 - publication of email - limited number of recipients - imputations pleaded related to plaintiff's competency to supervise trainee vascular surgeons' clinical work - natural and ordinary meaning - true innuendo - extrinsic facts - imputations not conveyed - verdict for defendant - plaintiff to pay defendant's costs DEFAMATION - defences - contextual truth - s 26 Defamation Act 2005 - substantial truth - s 25 Defamation Act 2005 - qualified privilege at common law - statutory qualified privilege - s 30 Defamation Act 2005 - malice - defences of qualified privilege not defeated by malice - triviality - s 33 Defamation Act 2005

PROCEDURE - application for leave pursuant to s 151D Workers Compensation Act - where previous applications for leave heard and determined - whether application subject to res judicata or issue estoppel - whether actual prejudice to the defendant - consideration of effect on potential cross -claim - Limitation Act s 74 - leave granted

EVIDENCE - application for order compelling plaintiff to produce evidence under s169 Evidence Act 1995 (NSW)

APPEAL AND NEW TRIAL - application for leave to appeal - whether an error of principle resulting in substantial injustice is identified

PROCEDURE - application to vary or set aside orders of the court - whether misapprehension of law and/or fact - scope of remitter

COURTS AND JUDGES - Courts - Allegation of bias - Not established

EVIDENCE - admissibility of evidence in criminal proceedings - identification of an accused person in an out-of-court identification by array of photographs provided by police - where witness had previously given a description of the accused to police as having, among other features, tattoos and tattoos up to the neck prior to formal identification process - where witness said to have observed and interacted with the accused for some time before and after participating in subject offences - where witness both observed and spoke with the accused on subsequent occasion whilst in custody - whether observation and interaction with the accused on second occasion resulted in "displacement effect" - the conversation and meeting with the accused on second occasion is more accurately characterised as recognition of a person the witness was previously involved with capable of re-enforcing the original mental image of the person - array of photographs compiled by software which randomly selected photographs from a database that share "parameters of likeness" to photograph of the accused taken soon after date of subject offences - array of photographs included some photos exhibiting tattoos - a sound basis existed upon which the array of photographs was compiled - probative value of identification evidence not outweighed by the danger of unfair prejudice to the accused - application for the exclusion of the identification evidence under ss 135 and 137 of the Evidence Act 1995 refused

LIMITATION OF ACTIONS - application for extension of time to bring proceedings under s 56A Limitation Act 1969 (NSW)

COSTS - no question of principle

PRACTICE & PROCEDURE - application for summary dismissal under UCPR r14.28 LOCAL COURT APPEAL - application for order extending time to bring appeal

PRACTICE AND PROCEDURE - transfer of proceedings from District Court to Supreme Court - degree of connection with existing proceedings.

PRACTICE AND PROCEDURE - civil - strike out of pleadings - operation of Uniform Civil Procedure Rules 2005 (NSW) r 14.28

HIGH RISK SEX OFFENDER - application for extended supervision order - no dispute as to making of order - dispute as to duration and conditions - no question of principle

CRIMINAL LAW - fitness to stand trial