Cases and authorities

CRIMINAL LAW - Appeal from Magistrate - offender aged 12 - aggravated break and enter - issue on appeal whether prosecution rebutted presumption of doli incapax - admissions by offender - sufficient evidence to rebut presumption.

SUCCESSION - wills, probate and administration - application of Briginshaw standard to alleged destruction of will - whether evidence supports finding that deceased made a new will that has not been found

PROCEDURE - costs - general rule costs follow the event - whether costs should be apportioned when plaintiff and defendant each successful on some issues - whether costs should be assessed on indemnity basis - application for costs out of the estate if costs not fully recoverable from former executor whose removal was subject of proceedings - whether executor entitled to costs out of the estate for unsuccessful defence of claim for his removal from office

CONTRACTS - general contractual principles - illegal and void contracts - whether contract in breach of s 25(1) of the Pharmacy Act 1964 is void for illegality - whether claim for restitution available if contract void for illegality CONTRACTS - general contractual principles - construction and interpretation of contracts - whether breach of contractual term preventing solicitation, inducement or encouragement of employees to leave INTELLECTUAL PROPERTY - copyright - original works in which copyright subsists - whether reproduced material is a "substantial part" of a work pursuant to s 14(1) of the Copyright Act 1968 (Cth)

APPEAL - leave to appeal - appeal from decision of Local Court Magistrate - no question of principle and no issue of general public importance - court cannot engage in fact-finding process on the merits of the case - leave refused

Criminal Law – appeal against conviction – judge alone trial – adequacy of required warnings – failure of trial judge to take into account possibility of confabulation – whether retrial appropriate – appellant served most of sentence.

BUILDING AND CONSTRUCTION - where contract required contractor to provide bank guarantees as security for performance - where contractor entitled to reduction of security if conditions fulfilled - whether conditions satisfied

LOCAL GOVERNMENT –- whether order made by council under s 124 of Local Government Act valid – whether order stated what was required to be done LOCAL GOVERNMENT – whether order under item 21 of s 124 for demolition valid LOCAL GOVERNMENT – whether trespass by council where order referred only to one of two parcels of real property on the premises – where order referred to address of premises containing both parcels LOCAL GOVERNMENT – whether s 124 order invalid for lack of jurisdictional fact – presumption of regularity – onus on appellant to prove jurisdictional fact did not exist – where opinion evidence of appellant inadmissible - whether friable asbestos on premises – definition of “friable asbestos” – where bonded asbestos affected by fire

APPEAL - application for stay of judgment pending determination of appeal - substantial money judgment - where arguable grounds of appeal conceded by respondents - no evidence of financial capability of respondents - respondents proffer undertakings of persons whose financial capability not demonstrated - but applicants give no assurance of their own financial capability - stay refused

PROCEDURE - judgments and orders - enforcement of judgments and orders - application to stay enforcement - Farm Debt Mediation Act - no principle of law

PRACTICE AND PROCEDURE - application for leave to institute proceedings where vexatious proceedings order made in respect of applicant

CRIMINAL LAW - whether guilty plea should be accepted

CORPORATIONS - management and administration - meetings - application for extension of convening period for second meeting of creditors - whether extension in best interest of companies' creditors - whether prejudice to any party.

CORPORATIONS - management and administration - meetings - declaration sought that a resolution was validly passed in meeting of directors and is binding on the first defendant to accept an offer to purchase - whether Court may properly make this declaration on the basis of consent of the parties.

PROCEDURE - subpoena - evidence on commission

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 - evidence in chief served - documents said to be necessary for expert reply evidence - whether exceptional circumstances necessitating disclosure exist

CONTRACTS - terms of contract - employment contract does not specify the duties of the employee - whether post-contract conduct of the parties can be used to identify the terms, subject matter or scope of application of an employment contract which does not specify the employee's duties. CONTRACTS - repudiation - whether the extent of alteration to the employee's position or status amounted to a repudiation of the employment contract - whether an employee can rely on after-acquired information to justify termination of the employment contract. CONTRACTS - assessment of damages - relevance of probable course of events if the contract was not repudiated - mitigation - whether the employee failed to act reasonably to mitigate loss. EMPLOYMENT LAW - long service leave - no dispute - payable where employer repudiates contract of employment - redundancy payment - whether employee entitled to redundancy payment under the Fair Work Act 2009 (Cth) - whether employment was terminated at the initiative of the employer where the employee accepted the employer's repudiation - whether the employment was terminated because the employer no longer required the employee's job to be done by anyone. TRADE AND COMMERCE - restraints of trade - relevant principles - non-operation of restraint provisions where employment contract repudiated by employer.

CONTRACTS - heads of agreement - whether binding arrangement - use of extrinsic evidence in determining formation of contract - construction of contracts - use of extrinsic evidence in construction of contract. CONTRACTS - relief from obligations - relief under general law and consumer protection legislation from contractual obligations - whether contract is unjust under the Contracts Review Act 1980. EVIDENCE - admissibility of non-expert evidence as to human condition, personal characteristics and behaviour - assessment of credibility of witness - discretion of judge to accept or reject evidence - whether appointment of tutor affects discretion to make findings as to credibility. EQUITY - unconscionable conduct - whether defendant engaged in unconscionable conduct at general law. TRADE AND COMMERCE - trade practices - whether defendant engaged in unconscionable conduct under the Trade Practices Act 1974 (Cth) - whether director of corporate defendants is liable as accessory.

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether the Act should be interpreted so as to permit a party to move for judgment on first payment claim when a second identical payment claim has been issued and responded to with a payment schedule - whether bringing of proceedings is an abuse of the Act - whether bringing of proceedings is an abuse of process - whether party ought to be estopped from bringing proceedings - whether claimant engaged in misleading or deceptive conduct - whether counterparty can bring a cross-claim COMPETITION AND CONSUMER LAW - Competition and Consumer Act 2010 (Cth) - misleading or deceptive conduct

CRIMINAL LAW - application for permanent stay of trial for murder - serious illness of accused - poor prognosis - effect of illness on her mental state - policy considerations - whether fair trial could be had

REAL PROPERTY - easements - easement to drain water under s 88B Conveyancing Act 1919 - condition to restore surface of servient tenement to original condition - grantee authorised excavation work on easement - whether backfilling of trench defective and cause of damage to servient tenement - whether grantee liable for breach of condition to restore

CRIMINAL LAW- sentence- manslaughter- excessive self-defence

CONTRACTS - heads of agreement - separate determination - whether binding agreement - whether to grant specific performance.

PRIVATE INTERNATIONAL LAW - jurisdiction - whether Singapore court had jurisdiction - whether defendant in Singapore proceedings submitted to jurisdiction of Singapore - whether proceedings determined in Singapore were within the ambit of the contractual submission to jurisdiction clause - relevance of contractual submission to jurisdiction clause where the relief sought in the local forum includes the setting aside of the contract containing the jurisdiction clause - whether contractual jurisdiction clause is against public policy if it has the effect of precluding prosecution of claims under consumer protection legislation in Australia - whether defendant submitted to Singapore jurisdiction by its conduct. PRIVATE INTERNATIONAL LAW - stay of local proceedings - earlier judgment in Singapore - whether an ex parte hearing in a foreign jurisdiction resulting in a brief ex tempore judgment can give rise to res judicata, issue estoppel, Anshun estoppel or a plea of abuse of process - whether an earlier foreign judgment can gives rise to equivalent preclusionary doctrines under the law of the foreign jurisdiction. PROCEDURE - res judicata - whether causes of action in pending New South Wales proceedings are in substance the same as those determined in earlier Singapore proceedings. PROCEDURE - issue estoppel - whether findings apparently made in the earlier Singapore proceedings give rise to issue estoppel - precise identification of findings which are legally indispensable to the ultimate outcome in the earlier Singapore proceedings. PROCEDURE - Anshun estoppel - whether the content of pending local proceedings was so relevant to the earlier Singapore proceedings that refraining from participating in the Singapore proceedings was relevantly unreasonable - whether a forensic decision to refrain from participating in the earlier Singapore proceedings gives rise to Anshun estoppel in the pending local proceedings - relevance of availability of juridical advantage in local forum to assessment of reasonableness under Anshun doctrine. PROCEDURE - abuse of process - whether continuation of proceedings in New South Wales following earlier Singapore judgment amounts to abuse of process - relevance of availability of juridical advantage in local forum to assessment of whether conduct constitutes abuse of process.

CRIMINAL LAW - drugs - possession -evidence of earlier possession of similar drug - admissibility - basis for admissibility - whether tendency evidence - evidence wrongly admitted. EVIDENCE - admissibility - relevance - whether evidence admissible other than as tendency evidence - no examination of prejudice.

PROCEDURE - freezing order pursuant to Uniform Civil Procedure Rules 2005 r 25.14 - foreign proceedings - construction of rule. PROCEDURE - freezing order pursuant to Uniform Civil Procedure Rules 2005 r 25.14 - foreign proceedings - whether primary judge determined if there was a danger that a judgment would be unsatisfied. PROCEDURE - freezing order pursuant to Uniform Civil Procedure Rules 2005 r 25.14 - foreign proceedings - whether the primary judge erred in determining that there was a danger that a prospective judgment would be unsatisfied.

EVIDENCE LAW - application to lead evidence of unrecorded admissions made to police - parts of admissions adopted by accused in subsequent ERISP - whether accused intoxicated when making admissions - whether reasonable not to record admissions at the time of making - whether reasonable not to put admissions to accused in ERISP - whether unfair to put parts only of unrecorded conversation - evidence partly excluded

PROCEDURE - application seeking extension of time in which to serve originating process - whether discretion enlivened

DEFAMATION - defendant's application to have proceedings dismissed as an abuse of process - whether predominant purpose of plaintiff's action other than to seek remedy available at law PROCEDURE - judgments and orders - costs - ordinary rule

FAMILY LAW AND CHILD WELFARE - Child welfare under State legislation - application by Director General - interim orders for parental responsibility under (NSW) Adoption Act - where responsibility under (NSW) Children and Young Persons (Care and Protection) Act cannot be extended

No question of principle.

PROCEDURE-payment of funds out of court under r 55.11 Uniform Civil Procedure Rules

PROCEDURE - Court orders interim stay on two money judgments which have been entered in the Defendant Bank's favour (C2C Investments Pty Limited & Ors v Commonwealth Bank of Australia [2013] NSWSC 256) - Defendant Bank seeks variation of stay orders - Plaintiff abandons dispute in relation to the subject matter of the money judgment in one of the proceedings (the Investments Proceedings) - the quantum of the undisputed amount in the other proceedings (the Developments proceedings) is less than $100,000 - whether stays should be continued or varied and if so on what terms.

PROCEDURE - Supreme Court procedure - New South Wales - Procedure under Uniform Civil Procedure Rules - Payment into and out of court - Land in dispute registered in names of defendants - Proceeds of sale of land paid into court - Defendants granted charge over funds in court in favour of their lawyers - Funds in court insufficient to satisfy costs entitlement of plaintiffs and defendants' lawyers - Application by defendants for payment out for benefit of their lawyers - Application refused. PROCEDURE - Judgments and orders - In general - Defendants' previous application for payment out of court refused - Whether principles of res judicata or issue estoppel bar another application for payment out of court by defendants - Whether principles governing abuse of process bar another application for payment out of court by defendants.

REAL PROPERTY - easements - easement by estoppel - appropriate relief to give effect to estoppel - claim for easement under s 88K of the Conveyancing Act 1919 - requirement of reasonable necessity - meaning of reasonable use and development - construction of s 6 of the Roads Act 1993

CRIMINAL LAW - appeal against sentence - knowingly taking part in the manufacture of prohibited drugs - whether sentencing judge's discretion miscarried when imposing a sentence of full-time custody

APPEAL - application for leave - interlocutory decision dismissing cross-claim - doubt as to correctness of approach - practical finality as to cause of action

PROCEDURE - application for leave to appeal - primary judge refused stay order - action sought to be stayed occurred before filing of application for leave - application futile

POSSESSION - application for stay of writ of possession - refinance proposal - uncertainty as to whether borrower able to meet new lender's terms

POSSESSION - application for stay of writ of possession - refinance proposal - uncertainty as to whether borrower able to meet new lender's terms

CORPORATIONS LAW - appeals from decision of a liquidator to sell by tender process causes of actions against officers of the company in liquidation.

SUCCESSION - Forfeiture where testator or intestate killed unlawfully - Deceased killed by her de facto spouse - De facto spouse found not guilty by reason of mental illness - Whether the forfeiture rule should apply to de facto spouse as if he had been found guilty of murder.

PROCEDURE-order for examination under s 639 Legal Profession Act 2004-issue of arrest warrant against solicitor for repeated non-compliance

PRACTICE AND PROCEDURE - application for Writ of Habeas Corpus by person in custody following trial and sentence - application by defendant to dismiss Summons - application for writ challenges conduct of trial and validity of conviction - application for writ collaterally impeaching order of court - application for writ misconceived - summons dismissed with costs.

PROCEDURE - pleading - Points of Claim - novel claim - legislative duty on Minister - plaintiff seeks to enforce duty - disclaimer of reliance on administrative law remedies - need to plead material facts - jurisdictional basis for the claim - need for pleading to relate facts to basis of claim

CRIMINAL LAW - conviction for murder in 1947 - release following Royal Commission - death of appellant - whether the Court had jurisdiction to deal with the matter under the Crimes (Appeal and Review) Act 2001 despite the death of the appellant. CRIMINAL LAW - conviction for murder in 1947 - release following Royal Commission - death of appellant - whether appellant's conviction was a miscarriage of justice.

CRIMINAL LAW - sentence appeal - whether sentencing judge took into account irrelevant matter - s 21A(2) Crimes (Sentencing Procedure) Act 1999 CRIMINAL LAW - sentencing appeal - whether judge found special circumstances - whether sufficient weight given to finding of special circumstances CRIMINAL LAW - sentence appeal - consideration of plea of guilty CRIMINAL LAW - sentence appeal - disseminate child pornography - whether manifestly excessive CRIMINAL LAW - sentence appeal - aggravated sexual intercourse offences - whether manifestly excessive - consideration of Form 1 offences CRIMINAL LAW - sentence appeal - totality principle - whether total effective sentence is manifestly excessive

CRIMINAL LAW - application for leave to appeal against sentence - armed robbery causing grievous bodily harm contrary to s98 Crimes Act 1900 (NSW) - whether sentence was manifestly excessive - whether ground made good by reference to comparable sentences

PRACTICE AND PROCEDURE - extension of time sought for leave to appeal against two interlocutory decisions of the Land and Environment Court New South Wales - where first decision ordered a separate determination of a preliminary question - where appellant delayed seeking leave to appeal pending outcome of the separate determination - whether extension of time would be consistent with the statutory objective of s 56 Civil Procedure Act 2005 (NSW) PRACTICE AND PROCEDURE - separate determination of a preliminary question - whether resolution of preliminary question would be dispositive of the litigious controversy or substantially narrow the field of litigious controversy - whether issue must be 'critical' - question of construction of a development consent - whether preliminary question was relevant to primary issue in dispute - whether order of a separate determination was open to be made having regard to s 56 Civil Procedure Act 2005 (NSW) VALUATION - consideration of the operation of s 56(1)(c) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ENVIRONMENT AND PLANNING - development consent - whether on proper construction of the consent extraneous material was incorporated expressly or by necessary implication into the consent

PROCEDURE - judgments and orders - confidentiality orders - release - liquidator's application for release of transcripts of examinations to a potential litigation funder - where access could potentially prejudice examinees' defence in criminal proceedings - where proposed orders contain a notification regime. PROCEDURE - costs - whether liquidator should pay the costs of the examinee of the examinations for which the liquidator sought release from confidentiality orders - general rule that where party seeks dispensation from the court they will be required to pay the costs of other parties which need to be notified of the claim and have acted reasonably in respect of the claim - where party had a necessary and helpful role in the proceedings.