Cases and authorities

WILLS & ESTATES - letters of administration - application for special letters of administration - where deceased required to be replaced as director of corporate trustee of SMSF within 4 days - where SMSF otherwise non-compliant - where prospective contestant of will consents to orders sought

Succession - Evidence - Defendant served subpoenas on third parties to produce documents relating to his and her Will and other financial documents - Application by applicants for family provision order to set aside each subpoena - No evidence of age or state of health of either third party -Relevance of prospective inheritance of applicants to claim for family provision order - Whether potential inheritance of an applicant in such circumstances is a financial resource - Documents not relevant to justify production - Subpoenas set aside

PROCEDURE - notice of motion - various orders sought - whether possession of property could be returned to defendant pending determination of dispute as to payment under deed - settling plaintiff's claims in the proceedings - orders sought declined

CRIMINAL LAW - Criminal Assets Recovery Act 1990 - notice of motion seeking examination orders - ex parte - orders made

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 - consent orders

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 - consent orders

CRIMINAL - Criminal Assets Recovery Act 1990 - production order sought - orders made

PROPERTY - restriction as to user over parking spaces in strata building - use limited to owners or occupiers of adjoining building - restriction registered before adjoining building developed - adjoining building ultimately developed with its own parking spaces - owner of parking spaces seeks extinguishment of restriction under Conveyancing Act 1919 s 89 - all but three of the owners benefiting from restriction signed releases - three remaining owners filed submitting appearances. COSTS - plaintiff successful on its application under Conveyancing Act 1919 s 89 - plaintiff and defendants involved in lengthy negotiations before proceedings commenced - defendants' filed submitting appearances "save as to costs" under UCPR r 6.11 - whether plaintiff should pay defendants' costs - or whether defendants should pay plaintiff's costs on an indemnity basis - whether proceedings should have been commenced ex parte.

EVIDENCE - PRIVILEGE - common interest legal privilege - whether directors of companies party to proceedings have a common interest with companies in legal advice given to the companies - held there was no common interest but only a single interest and no disclosure to the directors because in so far as the communications were with directors, they were no more than the guiding mind and will of the companies.

ADMINISTRATIVE LAW - Motor Accidents Compensation Act 1999 - decision of Proper Officer to refer matter for further medical assessment - judicial review of exercise of power - statutory interpretation of s62 Motor Accidents Compensation Act 1999 - meaning of "additional relevant information" - whether application for further medical assessment contained "additional relevant information" - whether principle of functus officio applies to decision of Proper Officer to refer matter for further medical assessment - whether Proper Officer failed to take into account a relevant consideration.

REAL PROPERTY - Co-ownership by siblings - application for appointment of statutory trustee for sale - adjustment of interests - Contributions made. EQUITY - Trusts - resulting trust - presumption of resulting trust based on contributions to purchase price - no presumption of advancement - presumption of resulting trust rebutted where parties have agreed on beneficial interest at time of purchase - whether any agreement - joint mortgagors - effect of substantial contribution to mortgage repayment - Whether beneficial interests according to contributions EQUITY - Trusts - constructive trust - application to family relationship - Whether party adequately compensated by a right to contribution and equitable charge.

ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 - application for further medical assessment - whether application contained "additional relevant information" - plaintiff hit by vehicle when crossing road on pedestrian crossing - physical and psychological injuries

CORPORATIONS - insolvency and winding up - where creditor's statutory demand served in New South Wales - where demand specified address for service in Victoria - where necessary for debtor company to comply with Service and Execution of Process Act 1992 - whether statutory demand so defective as to be a nullity- statutory demand null and void

PROCEDURE - civil - pleadings - leave to amend proposed cross-appeal to add new ground refused - where defence did not put plaintiff on notice and involves factual matters

INSURANCE - separate questions to be decided by Court of Appeal based on statement of agreement facts - directors' and officers' liability insurance contracts - proper construction of s 6 Law Reform (Miscellaneous Provisions) Act 1946 - territorial operation of s 6 - whether s 6 applies to claims made policies - whether s 6 applies where insured's alleged conduct giving rise to claim for damages or compensation happened before policy entered into - whether The Owners - Strata Plan No 50530 v Walter Construction Group Limited [2007] NSWCA 124, which held that s 6 does not apply where insured's alleged conduct giving rise to claim for damages or compensation happened before policy entered into, should be followed - whether Court of Appeal when constituted as a bench of five will more readily overrule its own decisions or only when decision plainly wrong - whether "insurance moneys that are or may become payable" on which s 6 imposes charge include defence costs paid by insurer under policy before claimant's claim determined - whether insurer's payment in respect of insured's liability, excluding defence costs, is valid discharge to insurer if made before claimant's claim determined - whether insurers on actual notice of existence of charges under s 6 by reason of correspondence from claimants' solicitors

COURTS - jurisdiction of Court following retirement of one member of appellate bench - whether reconstituted Court has power to hear and determine application under the slip rule PROCEDURE - slip rule - whether errors and omissions in orders are within the ambit of slip rule

PROCEDURE - where defendant dies after judgment reserved and before judgment delivered - where probate has not been granted - order made under UCPR rule 7.10 appointing a representative of the deceased estate

COSTS - Consent orders made under Corporations Act s 233 - consent orders make no reference to costs - where matter was not litigated - whether consent orders made pursuant to Corporations Act s 233 amount to a concession that there had been oppressive conduct JUDGMENTS - Interest - plaintiff seeks interest on purchase price - originating process does not seek interest - purchase of share made pursuant to consent orders - purchase of share made pursuant to valuation as at certain date - where purchase completed a significant time after the date of valuation

PROCEEDURE - Application to vacate orders restraining defendant from proceeding with extraordinary general meeting - where plaintiff no longer seeks protection of interlocutory orders - where defendant is a listed company - where defendant has made notifications to market of deferral of meeting in accordance with stock exchange listing rules - where defendant has not given formal notice to shareholders - whether orders whether vacating orders would cause confusion to shareholders

REAL PROPERTY - land in co-ownership - sale of land - application to appoint trustee - no question of principle.

PROCEDURE - civil - pleadings - leave to file late amendment

CRIMINAL LAW - whether manslaughter should be left to jury - whether verdict of manslaughter viable - cautious approach required - position of parties relevant but not determinative - manslaughter left as alternative verdict

PROCEDURE - appeal against decision of Council of Law Society - suspension of practising certificate - stay sought pending hearing of appeal - expedition of hearing - stay granted - reasons

ADMINISTRATION AND PROBATE - Plaintiff advances, in the alternative, two informal testamentary documents as the last Will of the deceased - Issue whether these are the documents of the deceased - Neither document disclosed until many months after the death of the deceased - Forensic document examination by single expert of the documents relied upon by the Plaintiff - Plaintiff gives version of events not previously given - Allegation of forgery by Plaintiff not pleaded by the Defendants - Court not satisfied that either document is a document of the deceased or that the deceased intended either to form his Will, or an alteration to his Will, or a full or partial revocation of his Will - Grant of Probate in solemn form of Will and Codicil duly executed. SUCCESSION - FAMILY PROVISION - The Plaintiff, one of four children of the deceased applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants, two other children of the deceased, also make defensive claim for family provision order in the event that the Plaintiff's Probate proceedings are successful - Whether adequate and proper provision not made in Will and the Codicil of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made - Court satisfied adequate and proper provision made.

APPEAL FROM LOCAL COURT - Magistrate found no final agreement - whether failure to provide adequate reasons - whether error of law - appeal dismissed

CONTRACTS - loan agreement - guarantee and indemnity for loan - default under loan and guarantee - claim for relief of obligations on basis of unjust contract - allegations that statement of assets on loan application false - whether defence of unconscionable transaction - defence not made out - plaintiff granted possession of land

CORPORATIONS - External Administration - Scheme of Arrangement - remuneration of Scheme Administrator - where mechanism for determining amount of remuneration has failed - whether court has power to amend scheme of arrangement - whether on true construction of scheme documents Scheme Administrator is entitled to remuneration calculated by reference to own firm's cost structure - held, Scheme Administrator is entitled to reasonable remuneration, alternatively to quantum meruit - whether failure of mechanism to determine amount of remuneration can be remedied by slip rule - whether Scheme Administrator is entitled to payment out of combined scheme funds without recourse to specific funds

PROCEDURE - urgent application for stay of eviction pursuant to a writ of possession - no basis for grant of stay - stay refused

HIGH RISK SEX OFFENDER - application for extended supervision order - consent orders made

PROCEDURE - orders of the Local Court in its civil jurisdiction striking out defence and directing judgment for the plaintiff - appeal to the Supreme Court - appeal dismissed - further appeal (by leave) to the Court of Appeal - no clear explanation by the magistrate why the orders were made - the primary judge addressed the possibilities of judgment in default of defence and judgment on admissions - the primary judge rejected the first possibility and concluded that the judgment was a judgment on admissions - no sufficient basis for that conclusion - rationale for the magistrate's decision was unexplained - the defence showed that significant parts of the claim were in dispute - no occasion for judgment on admissions or any other form of judgment precluding trial on the merits - observations on the need for precise identification of the relevant question of law where appeal on a question of law only is permitted and to identify what material can properly be relied upon in answering that question.

COSTS - indemnity costs - offer of compromise - compliance with Uniform Civil Procedure Rules - defendant offered plaintiff $320,000 and to "pay plaintiff's costs" - offer required to be "exclusive of costs" - UCPR r 20.26 - Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 applied PROCEDURE - civil - interlocutory issues - whether applicant should have leave to challenge recent five-judge decision regarding offers of compromise - arguable reason for different conclusion not addressed in impugned judgment - desirability of certainty - where reasonable minds differ as to correct construction - no compelling reason to reconsider - relevant rule since amended

TORTS - negligence - occupier's liability - slip and fall on ferry ramp - whether conclusion as to how plaintiff fell available either from direct evidence or by inference - whether circumstances raised a more probable inference in favour of plaintiff's case TORTS - negligence - Civil Liability Act 2002, s 5B and s 5C - breach of duty of care - identification of risk of harm - whether risk of slipping on dry concrete surface of boat ramp "not insignificant" - whether evidence of unreasonable failure to take precautions against risk of harm TORTS - negligence - Civil Liability Act 2002, s 5D - causation - necessary condition of harm - whether absence of adequate cleaning system cause of injury TORTS - contributory negligence DAMAGES - apportionment of responsibility as between employer and occupier for purposes of s 151Z(2)(c) Workers Compensation Act 1987 - assessment of damages for future economic loss and future paid domestic assistance

PROCEDURE - notice of motion - order sought pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 - whether question of immunity from suit be considered separately and before any trial - consent orders made

PROCEDURE - proceeds of crime - application to have matter listed for mention and to have defendant in court to enable settlement negotiations to proceed - application granted

CRIMINAL LAW - appeal - sentencing - parity between co-offenders - whether difference between sentences imposed on co-offenders inadequately reflected disparity between actions - each offender convicted of manslaughter - co-offender administered blows with metal pole and punches to head of victim - applicant provided aid and encouragement and kicked victim - kicking not instrumental in causing death - trial judge found co-offender's offending more serious than that of applicant - applicant offered to plead to manslaughter - plea rejected - discount given for plea - whether 14-15% differential between sentences sufficient to reflect disparity PROCEDURE - criminal appeal - whether further evidence should be accepted on appeal against sentence - solicitor's affidavit regarding offer to plead - additional evidence usually only admitted for purpose of re-sentencing - where material provided not useful in resolving matters in issue

CRIMINAL LAW - conviction appeal - three counts of sexual intercourse without consent and two counts of sexual assault involving three separate victims - whether course of events at trial gave rise to a miscarriage of justice because of the failure to order separate trials - whether s97 Evidence Act 1995 (NSW) was correctly applied - whether tendency evidence gave rise to a miscarriage of justice - appellant a practitioner of traditional Chinese medicine - whether jury should have been directed as to "for proper medical purposes" with respect to offence contrary to s61H(1) Crimes Act 1900 - significance of jury question - whether evidence gave rise to need for such a direction - whether direction required even though appellant had not raised the issue "for proper medical purposes" - whether jury properly directed as to appellant's good character - appeal dismissed.

CRIMINAL LAW - conviction appeal - appellant charged with eight counts of sexual intercourse and indecent assault on a person under 16 years of age - appellant found guilty of two counts and not guilty of five counts with a failure to agree in respect of one count - whether the verdicts of the jury were unreasonable and could not be supported having regard to the evidence - test to be satisfied in order for appeal to succeed - corroborative evidence supporting the complainant - difficulties with evidence of complainant - conviction appeal should be dismissed - sentence appeal - appellant step-father of complainant - whether open to sentencing judge to find "substantial" harm suffered by complainant in the absence of medical evidence to that effect - whether level of criminality properly assessed - whether sentence manifestly excessive - whether the extent of accumulation appropriate - no error demonstrated.

APPEAL - application to amend notice of appeal - whether appeal arguable COSTS - security for costs - UCPR 51.50(1) - special circumstances requirement - admitted impecuniosity - whether order should be made where appeal arguable

APPEAL - extension of time for leave to appeal - where applicant tutor sought leave to appeal against costs order against him personally - whether adequate explanation for delay - whether applicant had a fairly arguable case COSTS - liability of tutor for costs

TORTS - negligence - breach of duty - medical practitioner - laparoscopic cholecystectomy - whether surgeon departed from the usual standard of care TORTS - negligence - causation - medical practitioner - s 5D Civil Liability Act 2002 - equally likely causes - whether the trial judge erred as to the cause of the stricture TORTS - negligence - s 5I Civil Liability Act 2002 - whether injury was a result of the materialisation of an inherent risk

CORPORATIONS - Winding up - application for order setting aside statutory demand - judgment debt - default judgment - application to set aside default judgment unsuccessful - notice of intention to appeal lodged - judgment not stayed - whether statutory demand should be set aside for some other reason - considerations in determining whether pendency of appeal constitutes some other reason CORPORATIONS - Winding up - application for order setting aside statutory demand - judgment debt - application to set aside default judgment unsuccessful - notice of intention to appeal lodged - Graywinter principle - where supporting affidavit made no reference to appeal - whether appeal from dismissal of application to set aside a default judgment is within scope of what was notified by the affidavit

PRACTICE & PROCEDURE - judgments & orders - orders - where plaintiff did not seek an order for possession in initiating process or during hearing - where court ordered property be sold subject to the supervision of the court - whether thereafter plaintiff could obtain order for possession - whether order for possession can be made pursuant to and for the purpose of working out the order for sale.

CHILD WELFARE - care proceedings - application by foster carers challenging decision of the Children's Court - whether magistrate erred in failing to admit relevant evidence - where unadmitted evidence raised significant issues - need to weigh advantages of admitting probative evidence against disadvantages of admitting improperly obtained evidence - whether magistrate failed to comply with s 9(2)(c) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - whether magistrate failed to properly apply s 79(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - where indication that magistrate regarded time as a dispositive consideration in decisions to admit evidence CHILD WELFARE - care proceedings - where an Act confers 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)

PROCEDURE - possession of land - notice of motion - orders seeking summary judgment, vacant possession and issue of a writ of possession - exparte application - orders sought made - costs

Paternity - Declarations of paternity - No question of principle

PRACTICE AND PROCEDURE - application for leave to institute proceedings where vexatious proceedings order made in respect of applicant

PROCEDURE - payment of funds - funds presently held by second defendant - order seeking the disputed sum be paid either into plaintiff's trust account or into court, pending determination of the issues - sum to be paid into court - orders made

TORTS – NEGLIGENCE – personal injury – motor vehicle accident – liability of principals to independent contractors – cause of accident – load shift – whether load shift attributable to negligent packing or negligent instructions – principal and employer owed duty to plaintiff – whether principal’s duty limited to exercising reasonable care in designing system for transporting steel coils – principal maintained control over system of packing – principal not entitled to relieve itself of its duty to plaintiff by relying on separate duty employer owed to plaintiff – principal’s duty included proper design of the loading and packing system as well as maintaining efficacy of system when circumstances changed – principal in breach of duty – employer also in breach of duty – plaintiff not contributorily negligent – apportionment of responsibility

PROCEDURE - Miscellaneous procedural matters - Funds paid into Court by mortgagee under Trustee Act Pt 4 - Fund represents surplus proceeds after mortgagee sale of property then owned by two of the claimants - Application for payment out of court - Procedure under Uniform Civil Procedure Rules - Payment into and out of Court - Matters to be established - Competing claimants - Whether any claimant has established that she has an interest in the fund - Order for payment out of whole of surplus to one of the claimants - However order for payment out of part of the surplus stayed

EQUITY - Accounts - procedure - examination of accounting party prior to filing of objections surcharges and falsifications - scope of examination - content of requirement to give notice of points of examination