Cases and authorities

EQUITY - trusts and trustees - applications to the court for advice and authority - practice and procedure in judicial advice proceedings and partial administration proceedings - nature of and principles governing judicial advice -judicial advice on whether, upon proper construction of will, a class of beneficiaries has closed - Materiality of opinion of counsel - provisional construction of trust instrument - directions for notice of proceedings to be given to affected interests. EQUITY - perpetuities and accumulations - rule against remoteness of vesting - rule against perpetuities under general law and as modified by Perpetuities Act 1984 (NSW). SUCCESSION - wills, probate and administration - construction and effect of testamentary dispositions - operation of class closing rules displaced by text of will.

CRIMINAL LAW - appeal - sentencing - whether error of fact by sentencing judge materially affected sentence imposed - applicant charged with kidnapping offence in company of co-offenders - sentencing judge wrongly attributed threat to use knife to applicant - whether error material CRIMINAL LAW - appeal - sentencing - whether appellate court should reduce sentence where sentencing judge made material error of fact - error did not relate to most serious aspect of offending - sentence not manifestly excessive for objective offending - applicant's culpability not significantly reduced by subjective circumstances - reduction would create disparity with less culpable co-offender - whether less severe sentence warranted in law - Criminal Appeal Act 1912 (NSW), s 6(3)

CRIMINAL LAW - appeal - appeal against sentence - whether sufficient evidence to support findings relating to applicant's knowledge of drug transaction - whether evidence capable of supporting findings adverse to applicant beyond reasonable doubt - error found - whether lesser sentence warranted - parity - whether applicant entitled to have justifiable sense of grievance

ADMINISTRATIVE LAW - apprehended bias - pre-judgment - Independent Commission Against Corruption (ICAC) - conduct of the Commissioner of the ICAC. ADMINISTRATIVE LAW - apprehended bias - pre-judgment - conduct of the ICAC Commissioner - test for reasonable apprehension of bias - application of test to investigatory body - scope of Independent Commission Against Corruption Act 1988. ADMINISTRATIVE LAW - apprehended bias - pre-judgment - conduct of the ICAC Commissioner - test for apprehended bias - Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 - whether there was a logical connection between the conduct of the Commissioner and the alleged apprehended bias. ADMINISTRATIVE LAW - apprehended bias - pre-judgment - conduct of the ICAC Commissioner - whether contact between the Commissioner, the Executive and Government Departments, advice provided by the Commissioner and the circumstances of providing such advice either separately or holistically established apprehended bias.

COSTS - indemnity costs - offer of compromise - Uniform Civil Procedure Rules 2005 (UCPR) r 20.26 - compliance with UCPR - whether an offer including "costs as agreed or assessed" is an offer exclusive of costs. COSTS - indemnity costs - offer of compromise - Uniform Civil Procedure Rules 2005 (UCPR) r 20.26 - whether a non-compliant offer can take effect as a Calderbank offer.

APPEAL - application for leave - summary dismissal - pleaded claim had no reasonable prospects of success - where Court of Appeal made orders in 1994 concerning plaintiff's interest in land - whether res judicata or issue estoppel - whether fraud pleaded in statement of claim necessary to challenge registered title under s 42 of Real Property Act 1900

CORPORATIONS - Corporations Act ss 588FL, 588FM - application under s 588FM for extension of time for registration of a security interest - order granted subject to conditions

PRACTICE AND PROCEDURE - amendment of Commercial List Response - service of evidence PRACTICE AND PROCEDURE - Practice Note SC Eq 11 - whether certain documents ought to be disclosed where the parties have not yet served all of their evidence - whether exceptional circumstances necessitating disclosure exist

PRACTICE AND PROCEDURE - interlocutory orders - ex parte application - search order - freezing order

PROCEDURE - subpoenas issued under Evidence on Commission Act 1995 in aid of US proceedings - NSW proceedings commenced in name of US Judge - but one party to the US proceedings is the true moving party - recipients of subpoenas seek reimbursement of their expenses in complying with subpoenas under Uniform Civil Procedure Rules 2005 (UCPR) r 33.11 - whether costs may be awarded against a non-party to the NSW proceedings - whether moving party should pay UCPR r 33.11 costs, and if so in what amount.

PRACTICE AND PROCEDURE - Rule 17.3 and 17.6 Uniform Civil Procedure Rules 2005 (NSW) - application by second defendant seeking leave to withdraw an admission PRACTICE AND PROCEDURE - s73 Civil Procedure Act 2005 (NSW) - determination of question as to whether the proceedings have been settled between the second cross-defendant and second cross-claimant EQUITY - estoppel by representation - whether second defendant is estopped from denying to first defendant that second cross-defendant was an employee of the second defendants insured - nature of relevant detriment

PROCEDURE - judgments and orders - amending, varying and setting aside - interlocutory process heard in absence of defendants - whether sufficient explanation for failure to attend - defendants' solicitor failed to file notice of ceasing to act or notice of change of address for service - defendants unaware of hearing - whether arguable defence available

PRACTICE AND PROCEDURE-adjournment of civil trial-late discovery of pertinent medical evidence-no question of principle

PROCEDURE- pleadings- plaintiff seeks leave to file amended statement of claim-draft does not comply with Rules.

ADMINISTRATIVE LAW - jurisdictional error - jurisdictional fact - sitting day relief entitlements - corrupt conduct - relevant considerations - scope of duty to provide reasons

PROCEDURE - whether extension of time to file summons seeking leave to appeal should be granted - whether leave to appeal should be granted from summary dismissal of proceedings - whether question of principle, public importance or circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment the subject of the leave application going beyond what is merely arguable - where applicant seeking to re-agitate issues already determined in other proceedings relating to refusal of leave to withdraw guilty plea

ADMINISTRATIVE LAW - judicial review - review of decision of single judge of appeal: Supreme Court Act 1970, s 46 - whether applicant demonstrated error of principle or that the decision was plainly wrong.

INSURANCE - construction of insurance contract - respondents insured by appellant in relation to contract works including a cofferdam wall - substantial rainfall damaged cofferdam wall and resulted in risk might fail - expenses incurred by respondents to prevent failure of cofferdam wall - whether expenses recoverable under temporary protection extension as expenses deemed necessary by insured to avoid further loss or damage to insured property - whether expenses recoverable under general insuring clause or under implied term as expenses reasonably incurred to avoid insured loss, damage or liability - whether expenses within "dewatering operations" exclusion CONTRACTS - implication of terms - insurance - respondents contended for implied term indemnifying them for expenses incurred to prevent insured loss, damage or liability - whether to be implied as a matter of law or in fact to give contract business efficacy - implied term contended for inconsistent with express term

PROCEDURE - application for an arrest warrant - deliberate and or intentional defiance of previous court orders - use of s 97 of Civil Procedure Act 2005 - no point of principle

CRIMINAL LAW – murder – unfitness to be tried – referred to the Mental Health Review Tribunal

CONTRACTS - whether the plaintiff breached the Shareholders Agreement - whether the plaintiff's breach was capable of rectification and proper notice was given by the first defendant

MENTAL HEALTH - guardians, committees, administrators, managers and receivers - other matters - plaintiff, as manager of estate of defendant, was to act under direction of Protective Commissioner - plaintiff commenced and maintained unauthorised legal proceedings - whether plaintiff should be removed from office of manager

ADMINISTRATIVE LAW - administrative tribunals - statutory appeals from administrative authorities to courts - applicant sought leave to advance full appeal from orders made by the Guardianship Tribunal of New South Wales - whether such leave should be granted.

SUCCESSION - wills, probate and administration - plaintiff propounded a codicil knowing that the signature on it was not the testator's - whether the plaintiff should be passed over as executor of his brother's will - circumstances in which the Court may pass over a named executor discussed. COSTS - plaintiff failed to establish that the codicil he propounded was properly executed - whether the plaintiff should pay the defendant's costs of the proceedings - part of the trial occupied by irrelevant matters raised by the defendant - whether costs on indemnity basis appropriate - additional costs incurred because the plaintiff's conduct - whether the plaintiff's and/or the defendant's costs may be paid out of the estate - principle that the executor's costs may be paid from the estate if his conduct was honest but mistaken discussed. COSTS - whether a specified gross sum order under Civil Procedure Act 2005 s 98(4)(c) appropriate - principles of making such an order discussed - cost assessment necessary to unpick the costs on irrelevant issues raised by the defendant at the trial.

PROCEDURE - miscellaneous procedural matters - application to strike out a statement of claim under r 14.28(1) Uniform Civil Procedure Rules 2005 (NSW) - whether specified pleadings had a tendency to cause "embarrassment" in the proceedings - whether striking out the statement of claim is in accordance with the overriding purpose of the Civil Procedure Act 2005 (NSW).

CORPORATIONS - winding up - orders sought granting leave to plaintiffs to initiate and continue proceedings in the name of the company - where proposal to allow liquidators to commence proposed proceedings defeated at meeting of creditors of the company - where departing from general principle that proceedings in the name of a company in liquidation should be conducted by the liquidator - whether proposed claim has solid foundation - whether liquidator is financially protected - whether conflicting interests will arise when company brings cross-claim against the plaintiffs in the proposed proceedings - whether leave to commence and continue proceedings should be conditional on providing security for costs.

COSTS - summary criminal proceedings - costs order against prosecutor purportedly by consent - whether order validly set aside by magistrate - whether consent order for costs against public prosecutor appropriate

COSTS - claim for a specified gross sum instead of assessed costs under Civil Procedure Act 2005 s 98(4)(c) - unsuccessful plaintiff ordered to pay defendant's costs - plaintiff unlikely to be able to pay assessed costs - whether a specified gross sum order under s 98(4)(c) is appropriate.

MURDER - sentence following verdict of guilty by a jury - where offender and deceased in a domestic relationship - where previous acts of violence by the offender towards the deceased in the course of that relationship - necessity to determine sentence in the context of that relationship - where offence of murder aggravated by the offender having been released on conditional liberty only three months earlier - where offender's expressed remorse appeared genuine - where prospects of rehabilitation dependent upon commitment and adherence to treatment to address drug addiction - where offender's conduct of trial reflected a willingness to facilitate the course of justice SENTENCE - Intoxication - where offender used ice and consumed alcohol leading up to commission of the deceased's murder - where evidence of increased aggression and violence as the result of use of ice - where offender aware for some time beforehand of the likely consequences of his drug use in terms of his behaviour - where offender chose to continue his drug taking - where offending aggravated by intoxication as a result SENTENCE - where additional offences of violence occurred prior to the offence of murder

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) ss 4, 8, 13(5) - whether a payment claim was based on a construction contract - the parties entered into a verbal construction contract and the defendant served a payment claim - the plaintiff stated it would pay a lesser amount and the defendant sent a revised invoice - the plaintiff contended that the second invoice was not based on the construction contract but on a later independent arrangement arising out of the parties' communications which was not a construction contract - the plaintiff contended that if the claim was based on a construction contract it was the second claim under it and was in respect of the same reference date of the first claim and was impermissible under s 13(5) - held that the second claim was made under the original contract which had been varied and that the second claim was not impermissible as a duplication because the first one had by necessary implication been withdrawn. Held further that, in any event, prerogative relief sought by the plaintiff should be withheld on discretionary grounds

EQUITY - breach of confidential information - records produced from plaintiff's attendance at medical practitioner - whether information has the necessary quality of confidence - whether in the public domain - interlocutory injunctions - balance of convenience - non-publication order under Court Suppression and Non-Publication Orders Act 2010 - importance of open justice to the administration of justice

PRACTICE AND PROCEDURE - application by defendant for summary judgment on its cross-claim pursuant to r.13.1 Uniform Civil Procedure Rules (2005) - application by defendant for determination of separate question under r. 28 - application by plaintiff for summary dismissal of defendant's cross-claim under r.13.4 - application by plaintiff to strike out part of defendants defence pursuant to r.14.28 - application to set aside subpoenas under r. 33.4

CORPORATIONS - arrangements and reconstructions - schemes of arrangement or compromise - orders sought convening meeting of shareholders for the purpose of considering a proposed company scheme - Court's power to give advice pursuant to s 63 of the Trustee Act 1925 (NSW) - where notice to security holders in Malaysia and Thailand could constitute an offer of securities requiring regulatory approval - whether the court would be likely to approve the scheme of arrangement on hearing an application which was not opposed - whether there is a mechanism for scheme members to enforce the right to entitlements that are to be received under the scheme.

PRACTICE AND PROCEDURE - failure to comply with previous orders to file amended statement of claim - additional amended statement pleading matters statute barred and previously disallowed

CRIMINAL LAW - sentencing - Crimes Act 1914 (Cth) s 29D - Criminal Code (Cth) s 134.2 - false income tax returns - Crown appeal - inadequacy of sentence.

CRIMINAL LAW - application for leave to appeal against sentence - whether sentencing process offended Muldrock v The Queen - whether sentence imposed demonstrated erroneous disparity with co-offender - appeal dismissed

MOTOR ACCIDENTS COMPENSATION - claim against nominal defendant - whether respondent made "due inquiry and search" to attempt to establish identity of vehicle - what constitutes "due" inquiry and search - whether futile search required to satisfy test - where accident occurred near café in business complex - whether respondent should have placed notice in café seeking witnesses - whether respondent should have canvassed businesses to ascertain identity of vehicle - Motor Accidents Compensation Act 1999 (NSW), ss 34(1AA) and 34A(3) MOTOR ACCIDENTS COMPENSATION - claim against nominal defendant - respondent failed to claim within six months of accident - whether respondent provided "full and satisfactory explanation" for delay - respondent instructed, and relied on advice from, solicitors and counsel - whether "full" explanation required details of instructions to, and advise from, solicitors and counsel - Motor Accidents Compensation Act 1999 (NSW), ss 73(1), 73(5) and 73(7) WORDS AND PHRASES - due inquiry and search - Motor Accidents Compensation Act 1999 (NSW), ss 34(1AA) and 34A(3) WORDS AND PHRASES - full and satisfactory explanation - Motor Accidents Compensation Act 1999 (NSW), ss 73(1), 73(5) and 73(7)

APPEAL - leave to appeal - r 36.15(1) Uniform Civil Procedure Rules - Farm Debt Mediation Act 1994 - where complaint directed at enforcement of Consent Order

APPEAL - application for leave to appeal - no challenge to substantive result - contention that wrong conclusion reached on two of three alternative bases of determination - challenge to costs order only

NEGLIGENCE - duty of care - scope of duty - whether respondent owed appellant duty to ensure safe work conditions - where appellant worked as independent contractor - relevance of cases concerning principal's liability for negligence of one independent contractor harming another NEGLIGENCE - duty of care - scope of duty - whether respondent owed duty to independent contractor to ensure safe work conditions - where respondent occupied premises - appellant injured whilst unloading parcels on respondent's premises - appellant contracted to work solely for contractor to respondent -appellant not exercising specialist skills - appellant injured during course of work which was part of system devised and controlled by respondent - where respondent knew of the risks which materialised - whether duty affected by terms of contract NEGLIGENCE - breach of duty - adequacy of precautions against risk which materialised - appellant injured whilst lifting parcels pursuant to contract with respondent - respondent placed stickers on parcels indicating that they were heavy - respondent required principal contractor to accept responsibility for safe handling of parcels - additional precautions within primary control of respondent - additional precautions not unreasonably burdensome

EVIDENCE - no question of principle.

EVIDENCE - no question of principle.

SUBPOENA - REPRESENTATIVE PROCEEDINGS - class action arising out of engine failure in flight - subpoena to airline for passenger manifest - whether subpoena premature - need to facilitate cheap and quick disposal of proceedings.

TAXES AND DUTIES - land tax - exemptions - principal place of residence - s 10(1)(r) Land Tax Management Act 1956 - decision of Commissioner not to grant exemption reviewed by Administrative Decisions Tribunal - whether ADT treated limited physical presence at the property as determinative factor - whether ADT failed to take into account relevant considerations APPEAL AND ADMINISTRATIVE LAW - appeal on a question of law from Administrative Decisions Tribunal - whether ADT failed to take into account relevant considerations - whether statute mandated that they be taken into account - analogy to approach in judicial review proceedings - consideration of concept of "taking into account" relevant factors - consideration of Minister for Immigration and Citizenship v Li [2013] HCA 18

CORPORATIONS - voluntary administration - creditor's meeting - meeting of creditors pursuant to s 439A of the Corporations Act 2001 (Cth) - period available for holding meeting pursuant to s 439B and reg 5.6.18(2) - whether period should be extended under s 447A - balance between efficiency of administration and maximising return for creditors

PROCEDURE - costs - general rule costs follow the event - meaning of "the event" where plaintiff successful on one issue but unsuccessful on others - whether issues were separable - appropriate costs order on issue by issue basis - appropriate form of order when deviating from general rule - principles applicable to whether Bullock or Sanderson order ought to be made

CORPORATIONS - voluntary administration - creditor's meeting - meeting of creditors pursuant to s 439A of the Corporations Act 2001 (Cth) - period available for holding meeting pursuant to s 439B and reg 5.6.18(2) - whether period should be extended under s 447A - balance between efficiency of administration and maximising return for creditors