Cases and authorities

PROCEDURE - costs - leave to appeal sought in respect of costs orders made on an issue-by-issue basis - applicant seeks to challenge the judge's conclusions on certain of the issues but not the ultimate decision - whether an appeal court should canvass intermediate conclusions merely for the sake of an appeal on costs - leave refused - PROCEDURE - subpoena to non-party - legal professional privilege at common law - common interest privilege - person maintaining claim by subrogation to proceeds of pending litigation - communication to that person of confidential legal advice given to the party in whose shoes the person seeks to stand - whether common interest of the litigant and the person claiming by subrogation exists so as to preclude a finding of waiver of privilege - PROCEDURE - subpoena to non-party - legal professional privilege at common law - where the non-party claiming by subrogation has agreed to fund proceedings brought by the litigant - whether the litigation funding agreement is protected by legal professional privilege

PROCEDURE - costs - where plaintiff obtains judgment in default of defence - application by defendant for order setting aside the default judgment - application adjourned on several occasions - orders made against defendant on 23 January 2012 in respect of costs of that and several earlier days, all such costs to be assessed on an indemnity basis and to be payable forthwith - where costs order had already been made in respect of one such day - whether the later order for that day should be set aside - whether assessment on indemnity basis warranted - PROCEDURE - order for payment of specified sum "on account of" costs already ordered - whether District Court had power to make such order - whether order made on wrong principle - defendant's pending application for order setting aside default judgment dismissed because of failure to pay the specified sum "on account of" costs already ordered - no attention to the merits of the case - whether the order of dismissal should be set aside

CRIMINAL LAW - accessory after the fact to murder - plea of guilty - murder committed by offender's lover - lies told to protect her from being brought to justice

CORPORATIONS - winding up - statutory demands - application to set aside statutory demand - whether exists genuine dispute about existence or amount of a debt to which the demand relates - disputed assignment of debt PROCEDURE - costs - departing from the general rule - order for costs on the indemnity basis - award of indemnity costs when party serving statutory demand maintained its validity when it acted unreasonably in doing so - Calderbank offer - real element of compromise of claim

Equity - Trusts and trustees - Powers, duties, rights and liabilities of trustees - Liability for beach of trust - Relief from liability - Defendant-trustee previously found to be liable for breach of trust by transferring trust money to Lebanon beyond practical control of plaintiff-beneficiary - Different view not justified by subsequent events - Breach of trust not excused.

DECLARATORY RELIEF - Costs - assessment process - discretion to refuse declaratory relief - availability of statutory mechanism of review and appeal - whether costs assessor can and should determine complex issues of fact and law.

COURTS - Application made ex parte - closed Court - order facilitating transfer of funds - discharge of previous suppression order - more limited order made.

TRUSTS - judicial advice pursuant to Trustee Act 1925 (NSW) s 63(1) - whether trust property can be used to defend proceedings - whether trustee acting in the best interests of the trust - charitable trusts

PRACTICE & PROCEDURE - application to stay enforcement of judgment entered upon filing of certificates of costs assessment - where application to extend time to appeal already refused by a judge of appeal - principles to be applied in determining whether to grant a stay

EVIDENCE - robbery of hotel - opinion evidence - s 79 Evidence Act 1995 - expert evidence of comparisons of CCTV images of offender and images of appellant - common anatomical features identified - evidence not given that there was "a high level of anatomical similarity" between offender and appellant - Morgan v R 215 A Crim R 33 distinguished - whether admissible as expert opinion evidence - whether based on specialised knowledge - whether witness qualified as an ad hoc expert CRIMINAL LAW - appeal - whether verdict unreasonable or insupportable having regard to evidence - appeal dismissed

CRIMINAL LAW - sentence appeal - two counts of driving in a manner dangerous occasioning grievous bodily harm - moral culpability - principle of totality - whether individual sentences and overall sentence were manifestly excessive

CRIMINAL LAW - sentence - make false statement with intent to obtain money - early admission of offences to ICAC investigators - assistance regarding other persons involved - no discount for assistance given - long delay in prosecution after admissions - change of circumstances - discount for delay - need to specify discount

DAMAGES - accident at workplace - damages for past economic loss - quantification of lost earning capacity - where appellant's lost earning capacity not reflected by income disclosed in tax returns - whether falsity of tax returns must be admitted before allowance could be made on that basis DAMAGES - damages for future economic loss - award of superannuation - whether appellant was employee or independent contractor - whether appellant qualified for superannuation under Superannuation Guarantee (Administration) Act 1992 (Cth) PROCEDURE - responsibility of legal advisers to ensure best evidence of lost earning capacity is adduced at trial

COSTS - varying order - whether applicant should pay only one set of costs - where multiple respondents represented separately - where respondents' interests at odds in main proceedings - where costs order related to appeal on discrete question - where respondents' interests identical on discrete question - where applicant gave advance notice of objection to more than one set of costs - where objection not raised before trial judge - Uniform Civil Procedure Rules, r 51.4

Appeal from Local Court - agreement for consultancy services - parties to the contract - whether Plaintiff entitled to payment - whether Defendant owed payment obligation - whether notice given of termination.

REAL PROPERTY - Community Title - Community Lands Development Act 1989 (NSW) - application to terminate scheme - whether the continuation of the scheme impractical - meaning of the word "impractical" for the purposes of the Act LAW REFORM - REAL PROPERTY - Community Title - Community Lands Development Act 1989 (NSW) - powers of the court to terminate the scheme expressed in too limited a fashion AGENCY - receivers - Conveyancing Act 1919 (NSW) s115 - extent of receivers authority to act as an agent of the mortgagor - receivers generally have power to commence litigation in the name of the mortgagor provided this action is sufficiently closely related to the subject property

EVIDENCE - corroboration - claim on deceased person's estate - where uncorroborated evidence of oral communications between the deceased and claimant - no rule of law against allowing uncorroborated oral communications with the deceased, but the court will treat such evidence with caution EQUITY - equitable defences - laches

PROCEDURE - application under UCPR r 28.2 to separate trial of issues of liability from the assessment of damages - alternative application to separate the question of advocate's defence of immunity from suit - defendants acted as plaintiffs' solicitors in proceedings with a neighbour in the Land and Environment Court - plaintiffs allege that the defendants negligently advised in relation to those proceedings - credit issues overlap between the proposed liability and damages hearings - facts on which the liability question to be determined not agreed - principles governing separate question application discussed - whether those principles changed after the introduction of the Civil Procedure Act 2005 - HELD: motion dismissed.

PROCEDURE - subpoenas issued under Evidence on Commission Act 1995 on request from the Virginia Circuit Court in the United States- application for the time for production to be extended - scope of subpoenas ambiguous - law in relation to modifying the scope of a subpoena discussed - subpoenaed material includes confidential information - possibility of masking the confidential material before production discussed - HELD: time for compliance with the subpoenas extended.

TORTS - tort of intimidation - extortion - exemplary damages - injunctive relief PROCEDURE - civil - application heard in the absence of the defendant COSTS - indemnity costs

PRACTICE AND PROCEDURE - application by defendant corporation to set aside default judgment - where defendant properly served with originating process - where proceedings brought to the attention of the director of the defendant corporation prior to judgment being entered - whether default adequately explained - whether bona fide defence made out - application to set aside judgment dismissed

CORPORATIONS - winding up - liquidators - application for the determination of liquidator remuneration where meeting of creditors lacked a quorum and no likelihood of quorum in future.

CORPORATIONS - winding up - order sought for termination of a winding up where company subject to a deed of company arrangement - whether company will be solvent - whether undertaking given to deed administrator sufficient to bring about solvency - undertaking to Court required.

CRIMINAL LAW - sentence - manslaughter - plea of guilty accepted in satisfaction of indictment for murder - impulsive act - intoxication

SUCCESSION - FAMILY PROVISION - The Plaintiffs, two grandchildren of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant the son of the deceased, to whom Probate of the deceased's Will was granted and to whom the estate left, in equal shares, with another son who predeceased the deceased - Meaning of "beneficiary of the deceased person's estate" - Deceased son the father of the Plaintiffs - That each Plaintiff is an eligible person and that there are factors which warrant the making of his and her application not in dispute - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff - Nature of family provision order to be made - How the burden of provision made in favour of each Plaintiff and the costs ordered to be paid should be borne

PROCEDURE - application for stay pending determination of application for special leave to appeal to High Court of Australia - no matter of principle

COSTS - indemnity costs for whole proceeding until date of order awarded against defendant as condition of adjournment sought by defendant - where defendant accepted indemnity costs order without complaint as condition of adjournment - leave to appeal refused COSTS - indemnity costs - offer of compromise by respondent - where only compromise was to forego costs of appeal - whether genuine compromise where costs already limited by s 338 of Legal Profession Act 2004

WORKERS COMPENSATION - dust diseases - Dust Diseases Tribunal - damages for loss of capacity to provide gratuitous domestic services - s 15B Civil Liability Act 2002 (NSW) - meaning of "that need is reasonable in all the circumstances" - whether "need" refers to the circumstances of the dependant DAMAGES - s 15B Civil Liability Act 2002 (NSW) - whether error in calculation of damages - damages awarded for domestic services provided by grandfather to grandchildren - where no reduction for services having been provided concurrently with grandmother - where grandmother now provides services DAMAGES - s 15B Civil Liability Act 2002 (NSW) - whether error in calculation of damages - whether double counting - where grandfather provided care to children of daughter and children of son - where care occasionally provided simultaneously - where damages did not take into account overlap WORDS AND PHRASES - "that need is reasonable in all the circumstances" - s 15B Civil Liability Act 2002 (NSW)

JUDICIAL REVIEW - determination of District Court dismissing appeal from decision of Consumer, Trader and Tenancy Tribunal on questions of law - application for certiorari to quash determination - restitution claim to recover monies paid to contractor contrary to the Home Building Act - whether District Court failed to find payment made under mistake as to requirement for contract to be in writing - such question not a ground of appeal in District Court - no error of law in failing to determine a question not in issue on appeal - whether Home Building Act precluded payee raising any "defence" to restitution claim - question not arising as entitlement to restitution not established - whether Home Building Act gives right of action to recover money paid to a contractor not entitled to receive money - no statutory right of action given

Building and Construction Industry - Building and Construction Industry Security of Payment Act - Where claimant serves a payment claim for a progress payment which does not disclose the precise contractual provisions relied. Where defendant fails to serve a payment schedule and then opposes judgment being entered on the basis that the terms of the contract do not entitle the plaintiff to the progress payment claimed - sufficient for the plaintiff to make a claim - defendant could raise the contractual issue in a payment schedule or adjudication response but is not entitled to do so now

PROCEDURE - application to have proceedings dismissed for failure to comply with directions and want of due despatch - where plaintiff representing self - numerous ill-conceived interlocutory applications and extensions of timetable

COURTS AND JUDGES - capacity of Court to correct reasons for judgment for slip and/or ambiguity - correction made after judgment entered; APPEAL - reasons for judgment - slip and/or ambiguity - judgment already entered - capacity of Court to alter wording - correction made to reasons for judgment - superior court of record - power in criminal proceedings

COURTS AND JUDGES - bias - disqualification - apprehended bias - whether prior professional relationship between judge as chair of board of school and a chair of another school over 13 years before will disqualify judge from hearing matter in which person is a party - question answered in negative

CONTRACTS - oral agreement - evidence relevant to whether parties entered into an oral agreement - identification of terms of oral agreement. EVIDENCE - credibility of witnesses - importance of contemporaneous material - Jones v Dunkel inferences. PARTNERSHIP - formation - whether the parties were in partnership - distinction between partnership and joint venture.

INTERPRETATION - Births, Deaths and Marriages Registration Act 1995, s 32DC - whether the Registrar's power under s 32DC to register change of a person's "sex" is limited to registering a change from male to female or female to male. ADMINISTRATIVE LAW - jurisdiction, Administrative Decisions Tribunal Act 1997, s 119(1) - whether question of law. INTERPRETATION - extrinsic material - whether regard could be had to second reading speeches, dictionary definitions, academic material and other Acts. EVIDENCE - proof - judicial notice - whether regard could be had to extrinsic material in the interpretation of the statute.

LEGAL PRACTITIONERS - order sought for removal of solicitor from the Roll as well as declaratory relief - misappropriation of funds by solicitor from firm's trust account -whether professional misconduct - whether solicitor of good fame and character - whether solicitor a fit and proper person to be on the Roll.

PROCEDURE - civil - interlocutory issues - defendant sought order for plaintiff to undergo MRI examination of lumbar spine - whether court should make order - where plaintiff brought action for damages for 2010 injury to upper spine - where previous injury to lumbar spine - where state of lumbar spine relevant to determining extent to which 2010 injury caused incapacity - where plaintiff's medical evidence deficient - where other supportive evidence available to defendant - where possible consequential use of evidence sought for credibility purpose - Uniform Civil Procedure Rules, r 23.4

PROCEDURE - variation of orders - variation pursuant to Uniform Civil Procedure Rules, r 36.17

COSTS - partial success by appellants -appropriate costs award - whether interest on costs should be awarded

NEGLIGENCE - damage to crops as the result of aerial spraying of herbicide on adjoining land - drift of spray of at least 1700 metres - weather conditions said to be "ideal" - whether findings of negligence against the lessee and occupier of the land, the pilot and the provider of the aircraft should stand - relevance of hazardous nature of the spraying

COSTS - whether costs order should reflect partial success of defendants - whether costs entitlement of successful party should be capped COSTS - security for costs - release of security REMEDIES - freezing orders - variation of orders - whether claim for damages should be remitted for determination

CRIMINAL LAW - procedure - whether evidence of deliberate act - whether directed verdict

PRACTICE AND PROCEDURE - application for approval of settlement of proceedings commenced on behalf of a person under legal incapacity pursuant to s 76 of Civil Procedure Act 2005 (NSW)

PROPERTY -whether the lease requires the lessee to maintain a minimum number of gaming machines entitlements that are held in connection with the lessee's liquor license.

Equity - Trusts and trustees - Implied trusts - When arising - Purchase in another name - Plaintiff is entitled to presumption of resulting trust upon paying for subject property - Work undertaken by defendant subsequent to acquisition of property gives rise to equitable estoppel operating in his favour - Whether defendant's occupation of property cancels his equitable interest - Whether defendant is entitled to defence of laches.

Real property - Statutory trust for sale - Costs - Usual order on applications under s 66G of Conveyancing Act 1919 (NSW) -Order that costs be paid out of sale proceeds

CONTRACTS - general contractual principles - remedies for breach - availability of damages for repudiation when plaintiff has commenced and later abandoned suit for specific performance - mitigation - extent of plaintiff's obligation to act reasonably so as to mitigate loss CONVEYANCING - breach of contract for sale and remedies - vendor's remedies - whether notice to complete required before vendor can terminate if purchaser has indicated it is unable to complete - measure of damages - election to claim loss on resale - availability of interest under contract for late completion when completion does not occur - availability of costs of sale and resale

PROCEDURE - Possession List - Defendants failed on two occasions to file Defence - no appearance when matter called - Plaintiff free to obtain default judgment

PROCEDURE - possession - application to strike out defence - granted - application to dismiss cross-claim - granted

PROCEDURE - judgments and orders - application to set aside consent judgment pursuant to UCPR 36.15 - irregularity - limited to process by which judgment entered and not later events - no irregularity when waived or condoned