Cases and authorities

CORPORATIONS - management and administration - meetings - applications for amendment to notice requirements in convening a meeting of company creditors - whether service by email as opposed to post will expand the number of creditors to receive notification.

PROCEDURE - compulsory mediation - where first mediation unsuccessful - application made after six weeks of hearing - new lawyers for Plaintiffs - application refused

Common law - medical negligence - child born with antithrombin deficiency - father known to suffer from that condition - failure of gynaecologist to inform parents or cause parents to be informed prior to conception of the hereditary aspects of the condition - condition alleged to have caused or materially contributed to a stroke suffered by the child some days after birth - claim by parents for the cost of having, raising and caring for the disabled child and for damages for resultant physical and psychological harm to themselves.

PROCEDURE - civil - whether fairness of trial compromised by intervention of trial judge in questioning of witnesses - whether questioning by trial judge excessive - where trial judge did not suggest any answers to witness - where trial judge clarifying points of uncertainty TORTS - negligence - breach - whether occupier of retail store breached duty of care - failure to implement formal system of inspection and cleaning of spills - where informal detection system in place - where store selling clothing - where store took steps to prevent entry of food and beverage into store - where no amenities in store

INSURANCE - insurance contracts - whether primary judge erred in holding that first appellant was an insured under policy of insurance - formation of contract - orthodox analysis in terms of offer and acceptance - whether agreement made by broker's acceptance of insurer's quotation - whether policy schedule subsequently issued recorded terms of earlier agreement - significance, if any, of later issue by broker of "coverage summary" inconsistent with terms of earlier agreement TORTS - negligence - motor accident - whether first appellant and/or related company "owners" of forklift for purposes of Motor Accidents Compensation Act 1999 s 4(1)(b) - whether either "entitled to immediate possession of the vehicle" PROPORTIONATE LIABILITY - liability of each joint tortfeasor resulted from negligence of third party for which each was liable either vicariously or by deemed agency - neither tortfeasor liable for breach of duty owed directly to respondent or otherwise culpable - primary judge's decision that liability be apportioned equally between joint tortfeasors not shown to be manifestly wrong or unreasonable

COSTS - security for costs - $125,000 provided by appellant as security for costs of appeal - appellant unsuccessful - ordered to pay respondent's costs - costs not yet assessed or agreed - appellant seeks release of security to him - respondent seeks payment of security to him - respondent's incurred costs exceed $300,000 - fundamental purpose of security to protect respondent from inability of appellant to satisfy order for costs - appellant not contend amount of security likely to exceed recoverable costs - order security be released to respondent

CONTRACTS - construction and interpretation of contracts - use of extrinsic evidence - Deed of Agreement contained clause that appellant had 'agreed at his discretion to buy one or more properties' - whether recourse to a prior proposal and oral negotiations permitted in construction of the Deed of Agreement - whether language of deed ambiguous - whether proposal and conversations were mutually known surrounding circumstances - whether contract was partly in writing and partly oral - whether recital in Deed of Agreement incorporated any prior agreement CONTRACTS - consideration - alleged variation of a loan agreement - whether variation agreement supported by consideration - whether there was a practical benefit that sufficed as consideration

PROCEDURE - Part 14 r 28 of the Uniform Civil Procedure Rules 2005 - pleadings and other matters - abuse of process

CRIMINAL LAW - sentence - guilty plea - manslaughter by gross criminal negligence - accessory after the fact to murder - duty of care as a parent - failure to seek medical treatment for child - top of the range of objective gravity for gross criminal negligence - worst case category for accessory after the fact to murder - general deterrence

CRIMINAL LAW - sentence - application under s.43 Crimes (Sentencing Procedure) Act 1999 - committal for sentence for offence under s.33 Crimes Act 1900 - sentence proceedings transferred from District Court to Supreme Court to be linked with murder sentencing proceedings - parties proceed upon erroneous basis that committal for sentence for offence under s.35 Crimes Act 1900 - Offender sentenced for murder and s.35 offence - Crown application to reopen sentencing proceedings - common submission that sentence for s.35 offence was contrary to law - sentence reopened - fresh indictment presented - Crown accepts plea of guilty for s.35 offence - Offender sentenced according to law

CHARITIES - Administrative scheme - no question of principle.

Appeal from Local Court - construction of agreement to supply architectural services - entire obligation - staged performance of work - leave to appeal from costs decision.

BUILDING AND CONSTRUCTION - whether adjudication determination void - breach of natural justice - decision on basis not foreshadowed to the parties

PROCEDURE - Supreme Court procedure - New South Wales - Procedure under Uniform Civil Procedure Rules- Payment into and out of court - Receives and managers of applicants paid funds into court under Part 4 Trustee Act 1925 (NSW) - Applicants applied for payment of funds out of court - Applicants advertised notice of intended payment out of court in substantial compliance with court orders - No appearance in opposition to such application for payment out of court - Application allowed.

CORPORATIONS - construction of company's constitution - whether the words "profit of the company available for dividend purposes" means the company on a stand alone basis or the company and its controlled entities - whether contract under which the Constitution was amended to include the words concerned should be rectified - PRACTICE AND PROCEDURE - interest on money judgment - whether the rate should be at the prescribed rate or at a contractual rate which pertained to pre judgment obligations - whether there should be a stay of an order modifying the Constitution

ADMINISTRATIVE LAW - error of law - claims assessment under s 94 Motor Accidents Compensation Act 1999 where liability admitted - claimant self-employed business owner - assessment of future economic loss under s 126 Motor Accidents Compensation Act 1999 - claim based on alleged pre-injury earnings that exceeded amounts disclosed on taxation returns - evidence that claimant intended to continue running business - assessor however made award based on factual finding that claimant would sell business and find work as an employee in same industry - economic loss therefore assessed on earnings of an employee - assessment of likely future circumstances but for the injury not based on evidence and in fact in conflict with claimant's evidence - assessor accordingly failed to state assumptions on which award based as required under s 126 - assessor failed to adjust the amount of damages for future economic loss by reference to the percentage possibility of the future events occurring as required under s 126 - Guzman v Zammit [2003] NSWCA 224 relied upon by the assessor concerning the claim for future economic loss did not establish any point of principle but turned on its own facts - in any event the evidence did not support the approach taken by the Court of Appeal in that case

ADMINISTRATIVE LAW - claim for prerogative relief - decision of Review Panel under s.63 Motor Accidents Compensation Act 1999 - whether jurisdictional error or error of law on the face of the record - whether denial of procedural fairness - whether failure to give reasons as required by law - grounds for relief not established - Amended Summons dismissed with costs

SUCCESSION - family provision and maintenance - whether life insurance policy on life of deceased owned by deceased's former wife should be designated as notional estate - definition of "relevant property transaction" in s 75 of the Succession Act 2006 - whether deceased entered into "relevant property transaction" by failing to ask owner of life insurance policy to transfer it to deceased - time at which a transaction occurs pursuant to ss 77 and 80 - whether estate of deceased "disadvantaged" by payment of insurance premiums pursuant to s 83 - considerations relevant to making notional estate order pursuant to s 87

Practice and Procedure - joinder - affidavit not read - disqualification of judicial officer - apprehended bias - lack of procedural fairness - whether disqualification was erroneous.

PROCEDURE - application for vexatious proceedings order pursuant to s 8(7)(b) of the Vexatious Proceedings Act - meaning of vexatious proceedings - whether vexatious proceedings were instituted or conducted frequently - meaning of "frequently"

PROCEDURE - claim under Compensation to Relatives Act 1987 - whether dependants should be joined as parties - absence of indemnity for costs - absence of a willing tutor - not necessary parties

Sentence - accessory to attempt to possess border controlled drug - cocaine - commercial quantity - 20/6 months imprisonment - sentence manifestly inadequate - Crown appeal dismissed

CRIMINAL LAW - appeal - sentence only - issues of parity - assessment of objective gravity of offence - s 6(3), Criminal Appeal Act 1912 - no distinction between tests of "too severe" and "manifestly excessive" - disparity may be justified by age, background, criminal history and role in the offence of various offenders

CRIMINAL LAW - offences of aggravated sexual assault and aggravated indecent assault - multiple counts in relation to each of two child complainants - evidence of separate complaints - where no suggestion of collusion between the complainants - whether evidence of one complainant inadmissible in proof of the Crown case in relation to the other - no issues of cross-admissibility raised at trial - directions of trial judge did not indicate evidence on one count available to use in another count - no direction sought at trial - trial directions adequate in the circumstances of the trial - no error established by the trial judge in not giving a direction in terms specified in R v Mitchell (1995) NSWCCA, 5 April 1995, unreported or in R v Mayberry [2000] NSWCCA 531 CRIMINAL LAW - offences of aggravated sexual assault and aggravated indecent assault - directions to the jury - evidence of complaint - delay between the mother of the complainants hearing complaint and providing police statement - where absence of corroboration - whether direction under s 165 Evidence Act 1995 required in circumstances in which the issue of the reliability of the complainants and their mother is directly in issue - no direction was required under s 165 Evidence Act 1995

CRIMINAL LAW - appeal against conviction - murder - application of s 23 Crimes Act 1900 CRIMINAL LAW - appeal against sentence - application of standard non-parole period following Muldrock v The Queen [2001] HCA 39; 224 CLR 120

CRIMINAL LAW-appeal-duplicity-whether arises in an indictment where one charge encompasses alternate factual bases of liability CRIMINAL LAW-particular offences-supply a prohibited drug-when factually alternative cases available CRIMINAL LAW-whether analogy with manslaughter

CRIMINAL LAW - sentence appeal - applicant found guilty after a trial of one count of aggravated break and enter under Crimes Act s 112(2) - applicant solicits and organises two others to break and enter and steal tyres at night from industrial premises - applicant and co-offenders make two journeys to remove and store the tyres but caught on the second journey - applicant pleads not guilty - co-offenders plead guilty and give evidence against applicant at his trial - co-offenders receive suspended sentences of imprisonment - applicant sentenced to a term of imprisonment - whether applicant has a justifiable sense of grievance due to disparity in the sentences imposed upon his co-offenders and upon him - whether sentence manifestly excessive.

ADMINISTRATIVE LAW - judicial review - jurisdiction of State courts - where Commonwealth authority party to proceedings - where State court exercising federal jurisdiction - where no Commonwealth law conferred such federal jurisdiction - whether s 9 Administrative Decisions (Judicial Review) Act 1977 (Cth) excludes jurisdiction - where s 9 subject to s 1337B(3) Corporations Act 2001 (Cth) - where s 1337H(3) requires State Court to transfer s 1337B(3) proceedings to Federal Court unless related to other proceedings pending in a State court - where no such proceedings pending CONSTITUTIONAL LAW - judicial review - jurisdiction of State courts - whether State court has jurisdiction to prevent Companies Auditors and Liquidators Disciplinary Board exercising powers under Commonwealth law - where the Board is a Commonwealth authority - conferral of jurisdiction under Judiciary Act 1903 (Cth) s 39(2) - whether s 9 Administrative Decisions (Judicial Review) Act 1977 (Cth) excludes jurisdiction - whether s 23 Supreme Court Act 1970 (NSW) empowers State court to prevent Board exercising powers under Commonwealth Law PROCEDURE - civil - whether stay should be granted in respect of disciplinary proceedings - commencement of criminal proceedings against applicant possible but no criminal charges laid - Board empowered to exercise powers even where conduct might amount to an offence - public interest in prompt resolution of disciplinary proceedings

APPEAL - application for leave to appeal from decision in Common Law Division dismissing an appeal from decision of Appeal Panel of Administrative Decisions Tribunal - underlying dispute as to commencement date of lease and for payment of first rental instalment - primary judge held no error of law on part of Appeal Panel in upholding Tribunal's decision - no arguable error by primary judge on any question of law - application for leave to appeal dismissed

APPEAL - appeal to Court of Appeal - whether appeal lies from an order of the Supreme Court in its summary jurisdiction dismissing certain summonses issued upon an application made under s 246(1) of the Criminal Procedure Act 1986 and striking out certain counts in other such summonses - whether an application made or filed under that provision is an information presented or filed - WORDS AND PHRASES - "information presented or filed as provided by law for the prosecution of offenders"

PROCEDURE - defendants' application to have proceedings summarily dismissed or originating process struck out for failure to join a person jointly entitled to the same relief - UCPR 6.20 - whether appropriate in circumstances to 'otherwise order' and dispense with the rule requiring the plaintiff to join jointly entitled person to proceedings- where jointly entitled person does not wish to be joined -where jointly entitled person's cause of action is barred by statute of limitations- where jointly entitled person not a necessary party - where purpose of rule to prevent multiplicity of proceedings and have all necessary parties joined- whether deliberate non-compliance with rule 6.20 by plaintiff - appropriate in the circumstances to otherwise order pursuant to rule 6.20(2) that jointly entitled person not be joined as a party PROCEDURE - costs - ordinary rule

COSTS - indemnity costs - offer of compromise - whether sufficient particulars - whether offer to one defendant should be considered together with offers to other defendants - whether material change to offeror's claim after offer made - whether relevant that offer would not have resolved cross-claims between defendants

COSTS - order for costs in circumstances where plaintiff has discontinued proceedings - application for defendant to pay plaintiff's costs due to non-compliance with court orders - application to depart from general rule - no point of general principle

INJUNCTION - confidential legal advice - breach of confidence

PROCEDURE - notice of motion - order seeking to strike out statement of claim - case has triable quality - motion dismissed - pleadings - deficiencies in pleadings - pleadings to be amended - orders made - costs

TORTS-negligence-solicitors- whether duty to procure informal will before execution of formal will TORTS-negligence-defences- s 5O Civil Liability Act 2002 EVIDENCE-exceptions to hearsay-s 64(2) Evidence Act 1995-calling maker of statement not reasonably practicable when afflicted by age and infirmity

FINALITY - discretion to review and revise decision and reasons - misapprehension - interests of justice and fairness

PROCEDURE - motion to strike out parts of a defence - non-admission and denial in a defence may constitute proper pleading - no issue of general principle

CRIMINAL LAW - practice and procedure - judgments and orders - slip rule - amendment of error in term of sentence

ADMINISTRATIVE LAW - application in supervisory jurisdiction - no challenge available to fact-finding - interlocutory relief - whether assertion that fact-finding erroneous available FAMILY LAW - whether injunctive relief to maintain status quo of children appropriate - where District Court ordered removal of children - where challenge to District Court decision undetermined - whether real prospect of setting aside judgment below - whether removal of children would disrupt settled arrangement PROCEDURE - civil - interlocutory issues - injunction - whether injunctive relief should be granted to prevent applicant's children being removed to Adelaide -application already dealt with by single judge of the Court - where District Court order granted parental responsibility to children's father - where applicant's challenge to District Court decision undetermined - whether factual matters in original orders can be reagitated on application for interlocutory relief PROCEDURE - civil - judgments and orders - whether applicant should be referred to Pro Bono Panel - whether referral in the interests of the administration of justice - Uniform Civil Procedure Rules, r 7.36 - where applicant lacks means to employ legal assistance - where no application made for legal aid in present proceedings

PRACTICE AND PROCEDURE - whether trial dates should be vacated and proceedings stayed until judgment delivered in related proceedings in the Land and Environment Court

STRATA TITLES - appeal from Local Court question of law Local Court Act 2007 s 39 - proceedings by owners corporation in the Local Court against strata member for unpaid strata levies and recovery costs - whether owners corporation had complied with Strata Titles Management Act 1996 s 80D(1) by having a general meeting approve the taking of that legal action - whether the taking of that legal action is exempted from the operation of Strata Titles Management Act s 80D under Strata Titles Management Regulation 2005, r 15. PROCEDURE - appeal under UCPR 50 to Supreme Court - appeal seven months out of time - whether time to appeal should be extended in the circumstances HELD: Time to appeal extended.

CORPORATIONS - Winding up - Termination of winding up order - Solvency - Whether interests of future creditors served by termination of winding up - Whether any public interest reason not to terminate the winding up

CORPORATIONS - statutory demand - application to set aside a creditor's statutory demand under s 459H(1)(a) and 459J(1)(b) Corporations Act 2001 (Cth) - whether a 'genuine dispute' as to the existence of the debt.

CONTRACT - specific performance of alleged agreement to provide security for costs - whether there is an agreement between the parties - whether parties intended agreement have a legally binding effect - whether there is an inferred or implied term that conventional application for security for costs would not be brought - impossibility of performance PRACTICE AND PROCEDURE - security for costs - specific performance of alleged agreement to provide security for costs - impecunious corporate plaintiffs - whether security for costs should be ordered against individual plaintiff - stultification

PROCEDURE - costs - apportionment of costs - 'rule of thumb' applicable where multiple plaintiffs and defendants and some successful and others unsuccessful - application for indemnity costs - whether an unaccepted offer of compromise supports award of indemnity costs - whether issues arising in conduct of proceedings warranted variation to costs orders.

PROCEDURE - notice of motion - pleadings - leave sought to file amended defence - estoppel arguments - no additional evidence to be relied upon - leave granted to file the amended defence - order seeking trial date to be vacated - not granted - costs - orders

SUCCESSION - The Plaintiff makes a claim for a family provision order as a child of the deceased - Defendant is a solicitor and the executor appointed in the Will of the deceased, to whom Probate was granted -The principal beneficiaries are the grandchildren of the deceased - Competing claimants as beneficiaries on the bounty of the deceased although not eligible persons under the Act - Whether family provision order should be made for the Plaintiff and if so nature of the order

[COSTS] - Where non-party company employing former employee of plaintiff company funds defence of proceedings against former employee - whether order should be made against that non-party to pay the plaintiff's costs of proceedings against former employee

EQUITY - constructive trusts