Cases and authorities

EQUITY - estoppel - proprietary estoppel - where the first defendant (daughter) promised the plaintiff (mother) that if she contributed to a property to be purchased by the first defendant and her husband, which would have a granny flat, she could stay there - the plaintiff duly contributed but the first defendant resiled - HELD - plaintiff entitled to relief

WILLS & ESTATES - wills - testamentary capacity - whether deceased lacked testamentary capacity at time of making will EVIDENCE - admissibility - expert report - where expert fails to acknowledge, or agree to bound by, the Expert Witness Code of Conduct - whether court should exercise discretion to admit expert report - relevant considerations

COSTS - discontinuance - whether to "otherwise order" - where parties settled save as to costs - where terms of settlement require plaintiff to discontinue proceedings - whether the court should depart from ordinary rule that plaintiff pay defendants' costs upon discontinuance - whether failure of defendants to give appropriate undertaking was unreasonable - whether the plaintiff obtained substantial success in the proceeding

APPEAL FROM LOCAL COURT-conflicting evidence-second judgment after appeal-whether adequate reasons provided.

Procedure - Costs in unsuccessful claim for a family provision order - Small estate - General rules - Whether to depart from the general rule that costs follow the event - Overall justice of the case - Plaintiffs ordered to pay Defendants' costs

COSTS - no question of principle

PROCEDURE - appeal from an interlocutory decision on practice and procedure - no substantial issue of principle - whether substantial injustice by reason of any prejudice as a result of delay in commencing proceedings if leave not granted

PROCEDURE - interlocutory issues - injunctions - ex parte - whether applicants should receive interim injunctive relief to prevent respondent from disposing of properties owned by applicants - where applicants defaulted on loans in respect of properties - defaults subject to Farm Debt Mediation Act 1994 (NSW) - primary judge found that valid certificate issued allowing respondent to proceed with enforcement action - applicants filed summons seeking leave to challenge decision

PROCEDURAL MATTERS - enforcement of default judgment - stay of the order

PROCEDURE - duty to opponent - communications with the Court - Bar Rule 53 - Solicitors Rule 23

REAL PROPERTY - Torrens Title - leases - plaintiff-tenant claims entitlement to life tenancy arising from alleged oral agreements with predecessors-in-title of defendant-registered proprietor - plaintiff's claim failed on the facts

PROCEDURE - application under Uniform Civil Procedure Rules r 36.17 (the slip rule) - plaintiff seeks to correct matters in a published judgment - whether application should be referred back to trial judge - slip rule discussed - amendments sought are controversial - plaintiff filed notice of intention to appeal - some of the matters raised are more suitable for appeal. COSTS - motion dismissed - whether costs should not follow the event - plaintiff argues an entitlement to ensure publication of her personal details on the internet was correct.

BANKRUPTCY - application by bankrupt for injunction to restrain sale of property by trustee in bankruptcy - same application had been refused by Federal Circuit Court - application dismissed - no question of principle

CRIMINAL LAW - sentencing - riot and affray - violent protest while in lawful immigration detention - threats to public officials and Commonwealth property - relevance of context of offending CRIMINAL LAW - sentencing - special circumstances - immigration detention - mental condition EVIDENCE - relevance of reports of refugee tribunals to sentencing offenders - admissible as evidence of prior statements and claims made by offenders

CRIMINAL LAW - procedure - fitness to plead or be tried - charge of murder - Accused suffering from paranoid schizophrenia - whether Accused satisfies the requirements that he be able to give instructions and understand what his defence was - Accused unfit to be tried.

PROCEDURE - consent judgments - whether consent judgments were procured "against good faith" - meaning of "against good faith" - whether consent judgments should be set aside. EVIDENCE - cross-examination - whether rule in Browne v Dunn complied with.

PROCEDURE - notice of motion - pleadings - leave sought to file amended statement of claim - alternative claim 'blameless accident' - leave granted - costs - reasons

FAMILY LAW - surrogacy - parentage order - extension of time pursuant to s 16 of the Surrogacy Act 2010 (NSW) - no issue of principle

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - adjudication determination - whether determination void - jurisdictional error

FAMILY PROVISION - claim by adult son by his tutor - applicant suffering from numerous psychological and medical conditions - extension of time pursuant to Succession Act 2006 (NSW) s 58(2) - no issue of principle

EVIDENCE - admissibility of business records - admissibility of books kept by a body corporate - need for precise identification of relevant representation or matter. CONTRACTS - construction - surrounding circumstances - whether clause is ambiguous or susceptible of more than one meaning - scope of permissible extrinsic material to aid in construction. CONTRACTS - construction - dependency of rights and obligations - whether plaintiff's entitlement to seek particular rights under a contract are dependent on it having fulfilled particular obligations - whether plaintiff is taking advantage of its own wrongdoing. CONTRACTS - construction - particular clauses - whether plaintiff has exercised reasonable endeavours - whether plaintiff has acted in good faith.

APPEAL- appeal from Local Court- extension of time- application for leave- appeal allowed in part- matters remitted to Local Court

PROCEDURE - discovery and interrogatories - discovery - privilege - statutory privilege under s 170 Police Act 1990 - whether documents should be produced though not admissible in evidence - definitions of privileged document and privileged information in UCPR - whether original complaints should be produced - who is a witness for the purposes of s 170

ADMINISTRATIVE LAW - appeal from Local Court - application for prerogative relief - prosecution fails to serve notice pursuant to s 177 Evidence Act 1995 - refusal of adjournment by magistrate - whether error of law - whether failure to consider relevant matters - whether exceptional circumstances or serious injustice demonstrated to justify appellate interference.

REAL PROPERTY - mortgages - claim for possession - farm mortgage - Farm Debt Mediation Act - mediation - Heads of Agreement giving time to mortgagors to sell or refinance - Certificate by Rural Assistance Authority issued before expiry date for sale or refinance - whether mortgagors in default at date of certificate - whether breach of s 11 - effect of breach on proceedings - whether judgment irregularly entered.

PROCEDURE - costs - Calderbank offers - consideration of the stage the proceedings had reached - one offer made "inclusive of costs" - effect of such an offer - whether can result in order for indemnity costs - reasonableness of the time for acceptance of the offer

CRIMINAL LAW - sentence appeal - whether trial judge failed to take into account the availability of summary disposal - whether legitimate sense of grievance - whether trial judge erred in characterisation of objective seriousness - whether sentence manifestly excessive

CRIMINAL APPEAL - sentence appeal - aggregate sentence imposed where s 53A Crimes (Sentencing Procedure) Act did not apply - mistaken accumulation with Commonwealth offences - sentence corrected by District Court under s 43 Crimes (Sentencing Procedure) Act - no jurisdictional error CRIMINAL APPEAL - sentence appeal - manifest excess - firearms offence - substantial degree of criminality manifested by vast number of firearms - sentence not manifestly excessive CRIMINAL APPEAL - sentence appeal - failure to take into account pre-sentence custody - error in computation corrected

CRIMINAL LAW - application for leave to appeal against sentence - whether discount given for assistance insufficient - finding of value of assistance as low - subsequent sentence proceedings - different evaluation of value of assistance - whether post sentence events relevant to evaluation of value of assistance - no error - appeal dismissed

CRIMINAL LAW - application for leave to appeal against sentence - seven counts of sexual intercourse with a child between the ages of 14 and 16 - whether finding of fact by judge offended De Simoni principle - whether sentences for individual counts appropriate - whether aggregate sentence manifestly excessive

CRIMINAL LAW - drug supply offences - sentence - appeal by offender - contingent Crown appeal - parity with co-offender - whether sentences manifestly excessive - 3 year delay in appealing - whether extension should be granted - where parity ground made out but no alteration to overall sentence - extension of time refused

TORTS - personal injury - joint tortfeasors - worker subcontracted by employer - liability of employer and controller of worksite - pre-existing degenerative conditions - vicissitudes

PROCEDURE - application for order for referral to legal practitioner on Pro Bono Panel - applicant suffering cognitive difficulties affecting ability to present oral argument - whether referral in interests of administration of justice - application granted

LOCAL COURT APPEAL - proceedings against solicitor - failure to advise date for acceptance of CARS award - alleged failure to account for interest - costs order - amendment to raise bias allegation - amendment to raise claim magistrate wrongly failed to include amount for loss of use - whether magistrate erred in acting on basis that plaintiff received offers of compromise within time for acceptance.

EVIDENCE LAW - evidence of unfired cartridges located at home of accused - unfired cartridges found whilst accused in hospital - unfired cartridges of same calibre as ammunition found at scene - majority of unfired cartridges of same make as ammunition found at scene - whether evidence relevant - whether probative value of evidence outweighed by danger of unfair prejudice - evidence to be admitted

PRACTICE AND PROCEDURE - whether leave should be granted to the Applicant pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to commence civil proceedings in the Equity Division

Ex parte hearing - no question of principle.

LUMP SUM COSTS ORDER - costs claimed relatively modest - doubts about payer's capacity - parties already in dispute about costs assessment.

COMMERCIAL LAW - Personal Property - Goods - title - competing claims of ownership - no question of principle COMMERCIAL LAW - Personal property securities - (CTH) Personal Property Securities Act 2009 - competing security interests - lease entered into prior to commencement of Act - interest of lessor unregistered - lessee grants security interest to third party financier which registers its interest - secured creditor appoints receiver - whether rights of lessee sufficient to permit secured creditor to acquire rights in priority to lessor - where lessor has unperfected security interest and secured creditor has perfected security interest - where lessor's interest is a transitional security interest - whether transitional security interest was registrable on a transitional register - where secured creditor seeks to enforce right to possession under security instrument - where plaintiff not exercising rights and remedies under chapter 4 - whether secured creditor's rights limited to rights of lessee under lease - whether lessor's unperfected security interest vests in lessee on liquidation

PROCEDURE -

CRIMINAL LAW - conviction appeal - demand money with menaces - whether demand has to be made on each occasion for offence to be made out - continuing effect of original demand - whether inclusion of money laundering count was an abuse of process - elements of offences different - substantial overlap in offending conduct - no abuse of process - SENTENCE APPEAL BY CROWN - whether objective criminality of offences determined - whether error in commencement date of sentences - whether a failure to accumulate - whether Crown can rely upon the "parity principle" to increase a sentence - whether offender's role and aggravating features taken into account - whether too much weight given to offender's subjective case - whether sentences individually and as aggregated manifestly inadequate - Crown appeal dismissed.

CRIMINAL LAW - sentence appeal - Crown appeal and appeal by applicant - large number of offences with matters on a Form 1 - whether Form 1 matters properly dealt with - whether sentencing judge erred in approach to aggregate sentences - adequacy of sentences - whether proper effect given to finding of special circumstances - need to re-sentence.

CROWN APPEAL - aggravated sexual assault - act of indecency - finding of no ongoing harm - finding that culpability at the lowest end of the range - whether sentencing judge in error in assessing culpability - relevance of pre-existing relationship - error found - respondent re-sentenced.

CRIMINAL LAW - bail application - notice of intention to appeal against conviction filed - but appeal not yet filed - whether a single judge of the Supreme Court has power to grant bail in those circumstances - whether Bail Act s 30AA "special or exceptional circumstances" exist - Applicant has serious medical and psychological conditions -argument in the legal opinion on the merits of appeal well structured and compelling.

MOTOR VEHICLE ACCIDENT - claim against Nominal Defendant under Motor Accidents Compensation Act 1999, s 33(1) - appellant injured in motorcycle accident which he claimed was caused by second respondent riding uninsured and unregistered motorcycle - issue as to whether accident happened on a "road" and due to "fault" of second respondent - only direct evidence of circumstances of accident from those parties - adverse findings made as to reliability of that evidence - in absence of independent evidence primary judge did not err in not being satisfied that accident happened on a "road" - erred in finding "fault" of second respondent

EVIDENCE LAW - application for advanced ruling pursuant to s 192A of Evidence Act - proposed cross-examination of Crown witness with regard to past offences - Crown witness convicted of manslaughter - tendency adduced by accused of Crown witness to act violently - whether evidence has significant probative value - whether facts in remarks on sentence admissible pursuant to s 91 of Evidence Act - evidence of manslaughter admissible as tendency evidence - undisputed facts found in remarks on sentence admissible - no adverse credibility consequences EVIDENCE LAW - whether tendency of accused to threaten people verbally with regard to firearms admissible - tendency evidence adduced by Crown of accused - whether evidence has significant probative value - whether probative value of evidence substantially outweighs prejudicial effect - tendency of accused inadmissible

COSTS - Appeal from Local Court upheld - referral to Pro Bono Panel - application of r 7.41 of Uniform Civil Procedure Rules - costs follow the event - no point of principle

PROCEDURE - costs - security for costs PROCEDURE - discovery and interrogatories - discovery and inspection of documents PROCEDURE - Supreme Court Procedure - New South Wales - Procedure under Uniform Civil Procedure Rules and other rules of court - Parties - Joinder and addition of parties PROCEDURE - Supreme Court Procedure - New South Wales - Procedure under Uniform Civil Procedure Rules and other rules of court - Parties - Directions

PROCEDURE - amending judgments and orders.

[EASEMENTS] - whether proposed works on right of way by owners of dominant tenement reasonably necessary for enjoyment of use - whether refusal by owners of servient tenement to consent to lodgement of development application for proposed works without any lawful reason. [COSTS] - where defendants agreed to give consent at conclusion of the evidence - whether in all the circumstances the plaintiffs should have a costs order in their favour.