Cases and authorities

PROCEDURE - amendment - late application to amend cross-claims to introduce new causes of action - application made one month prior to date for hearing - matter fixed for hearing months earlier - no explanation for why application not made at earlier time - application refused

CORPORATIONS - winding up - order sought for winding up to be stayed pending determination of costs properly payable to liquidator on termination of winding up -whether claims for unascertained liabilities deprive the company of solvency for the purposes of s 95A Corporations Act 2001 (Cth) -whether there is any public interest reason not to terminate the winding up

TAXATION - proceedings for recovery of outstanding tax payable by a partnership - defences challenging tax assessments - properly the subject of procedures under Pt IVC of Taxation Administration Act 1953 - unable to be pursued in this court

PROCEDURE - civil - appeal - judgments and orders - security for stay - timing of hearing - existence of bankruptcy proceedings against appellants - no question of principle

EQUITY AND TRUSTS - claim for entitlement to property - whether property held on an express or constructive trust - operation of Conveyancing Act 1919 (NSW) s 23C - no issue of principle

PROCEDURE - civil - judgments and orders - stay pending hearing of application for leave to appeal and appeal - where interlocutory judgment made orders referring questions of foreign law to referee panel - accepted that order for referral should be stayed - whether ancillary order should also be stayed - where ancillary order for parties to agree on questions of foreign law to be referred within certain timeframe - where time for compliance with order expired

PROCEDURE - civil - appeal - judgments and orders - whether to stay substantive orders pending determination of appeal - where respondents own property subject to mortgage in favour of applicant - orders would permit respondents to deal with or dispose of property - applicant could lose security for amount owing if appeal successful - applicant sought undertakings from respondents - no undertakings given - sole disadvantage to respondents theoretical PROCEDURE - civil - appeal - costs - whether order for costs should be stayed pending determination of appeal - risk that costs will be unrecoverable - no undertaking that costs will be repaid if appeal succeeds - whether respondents should be permitted to continue with costs assessment

MORTGAGES - equitable mortgage over shares - creation - effect of specifically enforceable agreement to create mortgage by deposit of share certificate - failure to obtain signed transfer - subsequent extension by contract to secure later borrowing CONTRACTS - construction and interpretation - mistaken reference to mortgage of land as opposed to mortgage of shares - intended meaning self-evident MORTGAGES - equitable mortgage over shares - not created by mere retention of share certificate by bank - rights governed by terms of parties' agreement

PROFESSIONS AND TRADES - lawyers - complaints and discipline - Legal Profession Act 2004, ss 496 and 497 - whether role in the preparation of a bill that overcharged a client constituted unsatisfactory professional conduct or professional misconduct

INSURANCE - construction of policy - applicability of excess provision to appellant's claim to indemnity - whether primary judge erred in concluding that excess applied to each occurrence which caused injury or damage rather than each claim made by an insured to an indemnity - primary judge's construction correct

CRIMINAL LAW - procedure - application for view - not insubstantial cost - trial relocated in the interests of accused - relocation ought not prejudice Crown - accused entitled to be present at view - whether defence could be afforded opportunity to inspect proposed view location - whether danger of jury misusing view - application granted

CRIMINAL LAW - application for discharge of jury - whether opening argumentative - use of rhetorical questions in Crown opening - whether in appropriate reference made to witness interview with Police - Crown opening not inappropriate - application refused

COSTS - Application for certificate for costs from Crown - Costs in Criminal Cases Act 1967, s 2 - whether applicants satisfied s 3(1)(b) to a civil standard - whether applicants unreasonably withheld police note from prosecuting authorities - prosecuting authorities includes the police - certificate granted

CORPORATIONS - winding up - preferences - time limits - application to extend - who should be notified - liquidators' duty of candour

WILLS - construction - gift to wife on condition she ultimately give subject of the gift to two nephews

COURTS AND JUDGES - validity of judicial acts - proceedings at first instance challenged because judge did not swear necessary oaths - no viable ground of appeal - summary dismissal ordered

PROCEDURE - costs - security for costs -- where appellant has unexplained dissipation of assets - impecuniosity - whether special circumstances shown

ENVIRONMENT AND PLANNING - characterisation of development in development application - construction of local environment plan - whether fly-in-fly-out temporary accommodation for migratory workers is classifiable as "residential buildings (other than dwelling-houses and units for aged persons)"

TORTS - negligence - breach of duty owed by hospital to newborn child - mother attends hospital - risk of mother developing chicken pox while pregnant - breach - risk to mother and child if mother developed chicken pox - failure to advise mother of availability of VZIG and its potential beneficial effects in preventing or ameliorating chicken pox - failure to offer to administer VZIG - section 5B Civil Liability Act 2002 - breach established - TORTS - negligence - causation - section 5D(1)(a) Civil Liability Act - factual causation - whether appellant's breach "necessary condition" of harm suffered - whether administration of VZIG would have prevented mother developing chicken pox and therefore child suffering injury - TORTS - negligence - causation - expert evidence - conflicting opinion of doctors as to efficacy of VZIG - status of available medical literature - effect of medical literature equivocal - limitations of available medical literature - statistical probability of VZIG being effective to protect child - TORTS - negligence - causation - application of statistics provided by medical literature - equivocal nature of statistics - whether trial judge adopted an overly mechanistic approach to causation issue - whether too much weight placed on limitations of scientific evidence - whether as an "exceptional case" section 5D(2) of Civil Liability Act 2002.

Property (Relationships) Act 1984 (NSW) - Appeal against "add back" of monies into "asset pool" - cross-appeal against trial judge's refusal to order payment forthwith of the value of share of property after adjustment - contention that judgment in favour of respondent be affirmed on grounds other than those relied upon by trial judge - whether order for adjustment of property should be increased in respondent's favour - TORT - assaults and batteries during relationship - whether entitlement to damages - quantum of damages - whether entitlement to aggravated damages - whether capacity to manage home reduced by effects of assaults and batteries - LIMITATION - application of s52 of the Limitation Act 1969 - whether respondent subject to a relevant "disability" under section - whether assaults and batteries barred by Limitation Act - conflicting opinions of psychiatrists who gave evidence - whether conflict in medical material properly resolved - DAMAGES - whether evidentiary basis for damages awarded for past and future economic loss and past and future out-of-pocket expenses - assessment of damages for assaults and batteries - whether appropriate to award aggravated damages.

PRACTICE AND PROCEDURE - representation - application for Court appointed referral for legal assistance - where plaintiff has obtained assistance under a previous referral

REAL PROPERTY - possession of land - application for a declaration that the plaintiff is entitled to occupation of residential premises - plaintiff signed a 3 month residential tenancy agreement over the premises under the Residential Tenancies Act 2010 - the plaintiff's landlord was evicted upon the execution of a writ of possession obtained by the mortgagee - plaintiff had no notice of the planned eviction - plaintiff locked out of the premises - regime for termination of residential tenancy agreements, and recovery of possession, under Parts 5 and 6 of the Residential Tenancies Act 2010 discussed.

APPEAL - application for leave to appeal against Local Court's refusal to set aside a default judgment - whether detriment requiring leave to be granted identified - no detriment, as appellant may bring a further application in the Local Court to set aside a default judgment - whether error in the Local Court's decision demonstrated - not a matter in which Supreme Court should interfere.

PROCEDURE - claim in negligence resulting from a near drowning incident - plaintiff seeks appointment of a tutor and approval of a settlement of the proceedings - whether medical evidence establishes the plaintiff requires a tutor - whether Uniform Civil Procedure Rules 2005 r 7.15 requirements for appointment satisfied - whether settlement reasonable in light of liability and causation issues in the proceedings.

CORPORATIONS ACT - application to set aside Statutory Demand pursuant to s 459H of the Corporations Act on the basis that there is a dispute as to part of the debt and a genuine claim to an offsetting amount at least equivalent to the amount of the Statutory Demand.

CRIMINAL LAW - costs - offenders found not guilty by directed verdict - application for certificate under Costs in Criminal Cases Act 1967 - principles applicable - where evidence unable to support an element of the offence against one accused - where Crown case inherently weak against other accused - certificates granted CRIMINAL LAW - costs - offenders found not guilty by jury - application for certificate under Costs in Criminal Cases Act - principles applicable - Crown case against accused not strong but not inherently weak - reasonable to have initiated prosecution - applications refused CRIMINAL LAW - costs - certificate for costs - meaning of "relevant facts" - Costs in Criminal Cases Act 1967 - ss 3, 3A

ENVIRONMENT LAW - waste dumping levy - no records kept - levy made by calculation under regulation - calculation not made in accordance with the legislation

COSTS - action against two solicitors for damages for professional negligence - plaintiff successful against one of them - defendants' offer of compromise for a specified sum of damages "plus costs" - whether offer complied with UCPR r 20.26

TORTS - medical negligence - lengthy hearing at first instance - proceedings remitted by Court of Appeal for new trial limited to four questions expressly articulated by the Court - scope of questions - whether parties should have leave to adduce evidence as to the questions remitted

PROCEDURE - application for separate determination of issues - no utility in making order - separate trial on liability ordered

APPEAL - limitation of actions - Limitation Act 1969 s 54 - whether cause of action confirmed in email exchange between debtor and creditor - whether signature - whether "authenticated signature" principle applies

EVIDENCE - client legal privilege - internal document handed up in court to confirm decision of no further proceedings (s 7(2)(b) Director of Public Prosecutions Act 1986 (NSW)) - whether document privileged under s 118 and s 119 of Evidence Act 1995 (NSW) - whether Director of Public Prosecutions is "client" and Deputy Director is "Australian lawyer" - whether client legal privilege waived by act of Crown Prosecutor handing document up in court to be filed with the court file - whether consent imputed to client - whether court functus officio at time of handing up of document

CRIMINAL LAW - sentencing - two murders - shooting with intent to murder - whether worst category - aggravated indecent assault - break enter and commit serious indictable offences - utilitarian discount for guilty plea - whether mental disorder - no remorse - future dangerousness - whether life sentence should be imposed - totality

CORPORATIONS - Debts - Statutory demand - Application to set aside statutory demand

CORPORATIONS - Debts - Statutory demand - Application to set aside statutory demand

CORPORATIONS - Debts - Statutory demand - Application to set aside statutory demand

CORPORATIONS - Debts - Statutory demand - Application to set aside statutory demand

CORPORATIONS - Debts - Statutory demand - Application to set aside statutory demand - Requirements of affidavit supporting application to set demand aside - Graywinter principle - Whether genuine dispute as to debt

CRIMINAL LAW - appeal - application for extension of time to file application - leave to appeal against sentence of life imprisonment - whether sentencing judge erred in sentencing applicant pursuant to provisions of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 - whether sentencing judge erred in finding of fact - political motive for murder - whether sentencing judge erred in failing to take into account subjective factors relevant to the applicant - no error found - application for extension of time refused

CRIMINAL LAW - leave to appeal against sentence - objective seriousness - foreign convictions as evidence of applicant's character - deterrence - onerous bail conditions - manifest excess - power to adjust sentence to reflect period on bail pending Crown appeal where no error of law established

REAL PROPERTY - possession of land - application for stay upon a writ of possession - writ previously stayed to allow refinancing discussions on condition that interest payments be made to the bank - payments not made - but most of the refinancing now approved.

REAL PROPERTY - possession of land - plaintiff seeks judgment for possession and leave to issue a writ of possession - second defendant's defence previously struck out - whether default has occurred under mortgage - whether notice requirements complied with - plaintiff seeks judgment for a pecuniary sum and a costs order - but second defendant bankrupt.

POSSESSION OF GOODS - recovery under deed of loan and charge agreements - trucks and trailers - whether defendants signed complete agreements - whether misleading and deceptive conduct by plaintiff - whether unjust contract

ADMINISTRATIVE LAW - plaintiff seeks an order the effect of which would be to stay any hearing conducted by the Crime Commission at which the plaintiff is summonsed to appear

Practice and procedure - application to amend to add additional cause of action after Court of Appeal remits proceedings for inquiry as to damages

PROCEDURE - pleadings - the cross-claimant seeks leave to amend the cross claim by adding Code of Banking Practice and misleading and deceptive conduct causes of action - only misleading and deceptive conduct amendment contested - whether the respondent prejudiced by the contested amendment - the evidence closed after three days hearing and extensive cross-examination including via video link -further cross-examination ordinarily possible to cure prejudice during the trial - but here the evidence already concluded and too late to reopen the trial - principles in relation to amendments to pleadings discussed - HELD: leave to make the contested amendments refused.

COSTS - Plaintiffs previously granted leave to discontinue proceedings on terms they pay the defendant's costs - defendant seeks costs to be awarded as a specified gross sum under Civil Procedure Act 2005 s 98(4)(c) - principles in relation to the making a gross sum cost order discussed -- whether gross sum cost order appropriate - plaintiffs unlikely to pay the costs -defendant's solicitor's estimate that the costs would be assessed in the range of 80-90% accepted - HELD: gross sum cost order made.

COSTS - Limitation Act 1969 - whether limitation period relevant to cost assessors - whether claims for legal costs by barrister are cause of action - cause of action accrues when work last done - whether assessor failed to consider relevant material

PROCESS AND PROCEDURE - application to reopen hearing before judgment handed down - applicant did not attend hearing - discretion to be exercised with caution