Cases and authorities

PROCEDURE - application for referral for pro bono assistance - where no prospects of successful appeal shown - application refused

CORPORATIONS - External administration - winding up - where dispute as to appropriate appointee - plaintiff's nominee ordinarily appointed - where administrator seeks appointment as liquidator - whether grounds for departing from ordinary course of appointing plaintiff's nominee

CORPORATIONS - external administration - judicial advice to liquidator - liquidator proposes to enter into deed of compromise with creditor - whether court should approve deed of compromise

CRIMINAL ASSETS - ex parte application - orders sought under s 31D of the Criminal Assets Recovery Act 1990 - orders granted

CONTRACTS - sale of wholesale bakery business - three agreements - sale of business, lease and chattel mortgage - breach of lease - misrepresentations - breach of collateral contract - misleading and deceptive conduct - unconscionable conduct in relation to business title and bread contract - whether plaintiff's son a co-owner of business when sold - established - whether defendants obtained good title to the business - nemo dat rule - bread contract for the supply of bread - good faith - misrepresentation as to contract terms established - defendants entered contract while relying on misrepresentations - damages - orders EVIDENCE - witnesses - credibility and reliability of evidence EVIDENCE - application by plaintiffs seeking leave to call evidence in reply - failure to give notice - failure to comply with Court's direction - prejudice - leave sought refused

CRIMINAL LAW - leave to appeal against sentence - guilty plea - aggravated break, enter and steal - occupants at home at time of offence - whether trial judge failed to consider special circumstances in the context of accumulation - whether sentence manifestly excessive - finding of special circumstances a matter of discretion for sentencing judge - objective gravity cannot be assessed by what offender does not do - leave refused

CRIMINAL LAW - appeal against sentence - commercial supply of prohibited drugs - dealing with the proceeds of crime - two-stage approach by sentencing judge - dominance of standard non-parole period - whether financial reward an aggravating feature or inherent characteristic of offence - whether consideration of sentence appealed from affected by sentences not subject to appeal.

PRACTICE AND PROCEDURE - notice of seeking substantive relief - inappropriate to proceed by motion - res judicata

PROCEDURE - civil - pleadings - amendment - statement of claim - operation of limitation periods

PRACTICE & PROCEDURE - application to amend statement of claim - application to join insurer as defendant - no question of principle

PRACTICE & PROCEDURE - judgments and orders - application to reopen - relevant principles

INSURANCE - whether the defendant (worker's compensation insurer) was liable to contribute to the payment made by the plaintiff (motor vehicle insurer) to an injured passenger in the insured vehicle. CONTRACT - whether the defendant insurer was contractually bound to contribute to the amount paid by the plaintiff insurer to the third party.

COSTS - assessment - interest - after judgment s 101(4) Civil Procedure Act 2005 (NSW) COSTS - Court has discretion to order a specified gross sum of costs (s 98(4)(c) Civil Procedure Act 2005) - discount for possibility that assessment will not allow all costs

CRIMINAL LAW - fitness to plead - accused unfit to stand trial - where accused previously found fit to stand trial - assumption that accused would be legally represented - refusal to engage with legal representatives - malingering - limited cognitive skills - illiteracy - mental illness - complex trial evidence

CRIMINAL LAW - sentence - murder - domestic violence - intention to inflict grievous bodily harm - momentary and spontaneous intention - a degree of provocation - principles in Fernando applied - sentence imposed

CRIMINAL LAW - sentence - manslaughter - joint criminal enterprise - no issue of principle - special circumstances - sentence imposed

CONTRACT - construction - identification of ambiguity - known objective fact - textual anomaly RECTIFICATION - best evidence of concurrent intention - contemporaneous prior consensus - more reliable than oral evidence at hearing CONTRACT - commercial object - unresolved subjective evidence of divergent commercial purposes - no assistance - no need to resolve

TRUSTS AND TRUSTEES – creation of trust – property settled on trust in order to deceive former husband and to evade taxation – whether trust a sham – improper purpose not sufficient for trust to be a sham – creation of discretionary trust consistent with improper purpose – subsequent conduct inconsistent with trust would amount to breach of trust, not “emerging sham” TRUSTS AND TRUSTEES – powers, duties, rights and liabilities – power of variation – purported replacement of trustee and appointor – purported exercise of power of appointment TRUSTS AND TRUSTEES – beneficiaries – standing of beneficiary to bring proceedings – special circumstances BANKRUPTCY – effect of bankruptcy on property – effect on trust property – effect on power of appointment JUDGMENTS AND ORDERS – declaration in related caveat proceedings involving trustee – whether gives rise to res judicata APPEAL – when appeal lies – no appeal from findings

ENVIRONMENT AND PLANNING - whether development consent prevented from lapsing by application of s 95(4) of Environmental Planning and Assessment Act 1979 - geotechnical work was to be carried out once demolition completed - not work "relating to" development because demolition work not undertaken as required by consent - consent lapsed

ENVIRONMENT AND PLANNING - planning schemes and instruments - validity of development consent relating to pharmacy - whether consent approved use of premises for prohibited purpose of a shop - whether use in accordance with development consent - whether retail business subordinate to principal purpose - whether continuing use for a prohibited purpose

No question of principle

NON-PUBLICATION ORDER - review of decision of Coroner - whether necessary

CONTRACT - undisclosed principal

PRACTICE AND PROCEDURE - application to set aside orders - whether court has statutory power to entertain application - whether court has inherent jurisdiction - should inherent power be exercised - conduct of proceedings - whether sufficient evidence available for decision at first instance

APPEAL - appeal from Local Court to Supreme Court - no appeal from Local Court to Supreme Court on questions of fact - leave to appeal refused - indemnity costs granted

CRIMINAL LAW - leave to appeal against sentence - aggregate sentence - obtain benefit by deception offences - money laundering offences - sentencing judge erred in application of Crimes (Sentencing Procedure) Act 1999, s 53A - sentencing remarks provide no insight into calculation of sentence - must consider criminality of each offence in imposing aggregate sentence - obtain financial benefit offences involving transfer of funds of similar order ought to be grouped together - money laundering offences within "highly technical" category - restitution is an expression of applicant's remorse - finding of special circumstances - re-sentence

CRIMINAL LAW - conviction appeal - sexual intercourse without consent - suggestion that evidence of complainant contaminated by support person - decision by counsel not to cross-examine complainant on voir dire - whether decision gave rise to a material irregularity in the trial - whether miscarriage of justice occurred - proper forensic purpose for decision by counsel - instructions obtained from accused - no material irregularity - no miscarriage of justice - PRACTICE AND PROCEDURE - evidence taken on appeal - evidence of offender that no instructions given - evidence of counsel that advice given and instructions received - evidence of counsel should be accepted.

APPEAL - CRIMINAL - Appeal from refusal by District Court in its criminal jurisdiction to make a non-publication and suppression order - de novo appeal - Court Suppression and Non-publication Orders Act 2010 - admission of additional evidence - whether orders necessary to protect the safety of any person - whether evidence given in District Court gave rise to a risk of reprisals - meaning of word "necessary" in context of criminal proceedings.

CRIMINAL LAW - sentence appeal - 13 counts of demand money with menaces with intent and 11 counts of knowingly deal with the proceeds of crime - initial demand and threat not made by offender - Crown appeal - substantial overlap in offending - money laundering counts directly related to demand counts - inappropriateness of Crown relying on parity principle - general deterrence - whether sentences aggregated was manifestly inadequate - Crown appeal dismissed.

CRIMINAL LAW - appeal against conviction - charges of sexual assault - a number of potential witnesses not called in the Crown case - fresh material served on defence during course of the trial - suggested misconduct by juror - whether miscarriage of justice

CRIMINAL LAW - application for leave to appeal against severity of sentence -sentencing judge erred by finding offence aggravated by commission in presence of child - no lesser sentence warranted at law - sentence not manifestly excessive

CRIMINAL LAW - appeal - conviction for offence of supplying prohibited drug - evidence - admission of inconsistent statements by appellant about stolen motor vehicle - relevance - where individuals named in relation to stolen motor vehicle also named in relation to occupation of room where prohibited drug found CRIMINAL LAW - appeal - conviction for offence of supplying prohibited drug - evidence - admission - warning to jury - s 137 Evidence Act 1995 - whether unfair prejudice to appellant of impugned evidence outweighed probative value of impugned evidence

PROCEDURE - s140 Civil Procedure Act 2005 (NSW) - application for transfer of proceedings from District Court of New South Wales to Supreme Court of New South Wales

PRACTICE & PROCEDURE - production & inspection - application for delivery of solicitor's files COSTS - costs orders - where both parties achieve substantial success - where matter should have been resolved without litigation - no order as to costs

Wills, probate and administration - Will of the deceased - Named beneficiaries, sisters of the deceased predeceased -Determination of matters in doubt - Whether father of deceased predeceased - No issue that mother predeceased - Administrator seeking order giving liberty to distribute the estate on footing that father predeceased the deceased - Next of kin inquiry - Deceased domiciled in New South Wales - Distribution - Benjamin Order

CORONER'S COURT - death occurring in course of police operations - police officer witness - privilege - exposure to penalty imposed other than by a court - objection to giving evidence - direction to give evidence - whether discretion miscarried

CONSUMER LAW - misleading or deceptive conduct - appellant suffered loss when borrowed money from lender and invested money in property venture which failed - whether loss caused by misleading or deceptive conduct of solicitor for lender which resulted in making of loan to appellant - alleged representations not made by solicitor's certificate - no sufficient and direct link between any conduct of solicitor and appellant's loss CONTRACTS - unjust contracts - claim for relief under Contracts Review Act 1980, s 7 - first respondent advanced money secured by mortgage over appellant's home - only evidence of ability to repay loan required by lender was declaration of borrower - loan used to refinance repayment of earlier investment loan - whether loan by first respondent unjust in circumstances - not established appellant unable to act in own commercial interests or that in all circumstances loan unjust

TORTS - negligence - road accident - whether driver breached duty of care to pedestrian - where collision occurred when traffic light green for vehicles - where pedestrian broke rules by commencing to cross when pedestrian light flashing red - whether driver failed to keep proper lookout

PRACTICE AND PROCEDURE - application for a stay in support of an appeal from the Local Court

COMPANIES – winding up – appeal from rejection of proof of debt – parties unable to establish state of account on balance of probabilities PRACTICE – abuse of process – injunction to restrain relitigation refused

CRIMINAL LAW - leave to appeal against sentence - offence of cultivate not less than a commercial quantity of prohibited plant - whether sentence manifestly excessive - whether sentence within appropriate range - significant remorse demonstrated - reference to previous cases and statistics of some utility - starting point of sentence outside appropriate range - leave to appeal granted - appeal allowed

PROCEDURE - service - whether service of notice of motion by post sufficient service - UCPR 10.6(2)

PROCEDURE - whether proceedings should be dismissed as incompetent - deficiencies in service - late filing of notice of appeal - UCPR 51.9, 51.16, 51.41 - no question of principle

ESTOPPEL - equitable estoppel - proprietary estoppel - promises by a man to a woman to give her a cottage property - where that property not separately transferable unless a plan of subdivision approved and registered - where the property is owned by the man and his wife as joint tenants - implications for proprietary estoppel claim of these preconditions to transferability - whether promisee acted to her detriment in reliance on the promises - inconclusive answers by her in cross examination to questions as to what she would have done if the promises had not been made - relevance of such answers to presumption of reliance - whether it was unconscionable for the man to resile from the promises - form of relief where third party interest subsists in promised property - equitable compensation to be rendered

DEFAMATION - publication - statements by fourth defendant

DEFAMATION - imputations - practice and procedure - directions issued

LIMITATION OF ACTIONS - application for extension of time to bring proceedings under s 56A Limitation Act 1969 (NSW) PRACTICE AND PROCEDURE - application for adjournment - application for substituted service

APPEAL - conviction appeal - appeal from Local Court to Supreme Court - error of law - whether magistrate erred in making a finding of guilt on a date other than the nominated hearing date - statutory construction of ss 190, 196 Criminal Procedure Act 1986 - meaning of "first return date" - no denial of procedural fairness where notice of court attendance date given - amended summons dismissed

LEGAL PRACTITIONERS - costs - whether costs agreement accepted by conduct - declaration agreement created equitable charge

WILLS & ESTATES - legacies - executor fails to pay full amount of legacy - no question of principle