Cases and authorities

PRACTICE AND PROCEDURE - cross-vesting - whether in the interests of justice that the proceedings be transferred to the Supreme Court of Western Australia - no obvious connection to New South Wales - relevance of likely case management procedures in the Supreme Court of Western Australia

FAMILY LAW AND CHILD WELFARE - Surrogacy - Application for parentage order under Surrogacy Act 2010 in relation to child of a surrogacy arrangement entered into after the commencement of Act - Application by married couple - Court may make parentage order upon compliance with preconditions provided by the Act and by UCPR Part 56A - Satisfaction of certain preconditions - Relevant preconditions specified are mandatory - Other non-mandatory preconditions may be waived if exceptional circumstances exist - UCPR rule 56A.9 - Insufficient evidence of legal advice given in present case - Subsequently provided - Court able to make parentage order

EVIDENCE LAW - first hand hearsay evidence - maker of statement not available - statement tendered as to state of mind of maker - impermissible inference inevitable - evidence excluded

CRIMINAL LAW - application for a view pursuant to s 53 of Evidence Act 1995 - accused can only attend in prejudicial circumstances - accused waives right to attend - view would assist jury - application granted

PROCEDURE - Possession List - early judicial directions - consideration of defences - unrepresented defendants - defences struck out with liberty to re-plead

PRACTICE AND PROCEDURE - where monies recovered by a party under a judgment based on an adjudication determination - where adjudication determination is quashed and judgment set aside - right of the party from whom the monies were recovered to return of the monies - whether the Court has a discretion to not order repayment

CORPORATIONS - winding up - liquidators - application for approval of entry into litigation funding agreement under s 477(2B) Corporations Act 2001 (Cth) - whether agreement in interests of creditors.

CORPORATIONS - winding up - interest incurred after a winding up under s 100 Civil Procedure Act 2005 (NSW) - whether entitled to prove the amount of interest awarded on the judgment debt. COSTS - orders sought for priority payment under s 556 Corporations Act 2001 (Cth) - whether proper expense of the winding up.

PRACTICE AND PROCEDURE - separation of issues for trial - whether separation of issues will facilitate the just, quick and cheap resolution of the real issues in the dispute - no point of principle.

EQUITY - parens patriae jurisdiction - application for injunctive relief to prevent restoration of children (RM and HM) to custody of second defendant

WORKERS' COMPENSATION - meaning of "claim for compensation" - Workers Compensation Act 1987 (NSW), Sch 6, Pt 19H, cl 15 - whether "claim for compensation" referred to a claim for compensation generally or a claim specifically for lump sum compensation - where clause relates to amendments to lump sum compensation entitlements - where no statutory requirement to make a separate claim for lump sum compensation STATUTORY INTERPRETATION - whether Sch 6 of the Workers Compensation Act 1987 (NSW) permitted regulations to prejudice accrued rights - whether any express intention or necessary implication that Sch 6 created such a power - where Sch 6, Pt 20, cl 1(3) precluded regulations from prejudicing rights accrued before publication of regulation in Gazette - where Sch 6, Pt 19H, cl 5 purported to limit operation of Pt 20, cl 1(3) WORKERS COMPENSATION - whether Sch 6 of the Workers Compensation Act 1987 (NSW) permitted regulations to prejudice accrued rights - whether any express intention or necessary implication that Sch 6 created such a power WORKERS COMPENSATION - when right to compensation for permanent impairment accrues - when worker who receives injury resulting in permanent impairment "entitled to receive" compensation - Workers Compensation Act 1987 (NSW), s 66 WORDS AND PHRASES - "claim for compensation" - Workers Compensation Act 1987 (NSW), Sch 6, Pt 19H, cl 15 WORDS AND PHRASES - "entitled to receive" - Workers Compensation Act 1987 (NSW), s 66

REAL PROPERTY - partition of land - partition or sale in partition actions - statutory trust for sale or partition - where primary judge granted one co-owner's application for appointment of trustees for partition in preference to the other co-owner's application for appointment of trustees for sale - finding that partition would be "more beneficial for" the co-owners than sale - nature of the "more beneficial" assessment - whether non-financial matters may be taken into account - nature of "partition - whether partition achieved if each co-owner receives one lot in a strata subdivision - nature of equitable co-ownership of strata scheme common property by lot owners discussed - such equitable co-ownership incompatible with partition - REAL PROPERTY - partition of land - ancillary matters - financial adjustments - "equality money" - taking of account to ascertain co-owners' contributions to expenditure enhancing the value of the land

PROCEDURE - adjournment - claim for possession - one defendant bankrupt - other defendant with no defence to claim - adjournment sought until after application for review of sequestration order is heard - delay in pursuing review - adjournment refused.

SUCCESSION - family provision - operation of ss 59 and 60 of the Succession Act 2006 (NSW) - provision for adult sons

CORPORATIONS - management and administration - orders sought for appointment of administrator of a deed of company arrangement - where a current joint administrator of the deed has resigned - whether the Court's power to appoint a deed administrator falls under s 449D or s 447A of the Corporations Act 2001 (Cth).

COMPANIES - Members' voluntary winding up - Former trustee of family trust - Appropriate scale for assessment of liquidator's remuneration. TRUSTS AND TRUSTEES - Former trustee's lien over trust assets - Equitable jurisdiction to allow remuneration to liquidator of former trustee to be paid from trust assets.

Opinion evidence - UCPR 31.22 - expert fails to disclose contingency fee and agreement to defer fees - assumptions not set out - expertise.

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - Calderbank offer - offers of compromise - was there a genuine offer of compromise - was it unreasonable for the plaintiffs to have refused the offer - orders made

CRIMINAL LAW - sentence appeal - two counts of aggravated break and enter and commit serious indictable offence - Form 1 offences - whether sentence was manifestly excessive - principle of totality

CRIMINAL LAW - EVIDENCE - where applicant pleaded guilty to dealing with proceeds of crime and related offences - where facts asserted by the Crown on sentence were disputed - where Crown sought to prove disputed facts by relying upon representations of an unavailable co-offender pursuant to s. 65(2)(b) and s. 65(2)(d) of the Evidence Act - where sentencing judge admitted the representations - whether sentencing judge erred in concluding that the representations were made in circumstances that made it unlikely that they were a fabrication, or that made it likely that they were reliable - whether representations should have been excluded - whether open to the sentencing judge to conclude that he was satisfied beyond reasonable doubt of the disputed facts - no error in the decision of the sentencing judge to admit the representations - no error in the sentencing judge's conclusion that he was satisfied, o n the basis of the representations, of the disputed facts beyond reasonable doubt SENTENCE - parity principles - whether applicant had a justifiable sense of grievance in light of sentence imposed upon a co-offender for a similar offence - where sentencing judge properly considered principles of totality - where the applicant charged with offences over and above those with which the co-offender had been charged - where the overall criminality of the applicant was substantially in excess of that of the co-offender - no error demonstrated - no justifiable sense of grievance made out - appeal dismissed

ADMINISTRATIVE LAW - judicial review - Supreme Court Act 1970, s 69. PROCEDURE - Supreme Court Act 1970, s 46(4) - application for review of judge of appeal - refusal of stay by judge of appeal - not shown decision of judge wrong.

APPEAL - application for leave to appeal - application to amend pleadings in proceedings in Common Law Division - proceedings commenced in 2002 - plaintiff notified substance of proposed amendments in May 2011 - respect in which amendment said to be critical raised by a defence filed in November 2006 - primary judge refused leave - whether arguably erred in exercise of discretion - notwithstanding significance of amendment, decision not "attended with sufficient doubt" to warrant leave to appeal

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 - consent orders

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 - consent orders

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 - consent orders

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 - consent orders

CRIMINAL LAW - Crown appeal against sentence - murder - whether sentence is manifestly inadequate - whether sentencing judge erred in assessment of objective seriousness of offence - whether sentencing judge erred in assessing respondent's prospects of rehabilitation - whether sentencing judge erred in assessing extent of respondent's intellectual impairment - whether sentencing judge erred in approach to respondent's mental illness

EVIDENCE - privilege - client legal privilege - whether an adequate description of documents, over which privilege is claimed, has been provided - Uniform Civil Procedure Rules 2005 (NSW) rr 21.3 and 21.4 - whether privilege properly claimed - inspection of privileged material - DISCOVERY - relevance - Uniform Civil Procedure Rules 2005 (NSW) r 21.1(2).

CONVEYANCING ACT - whether assets transferred with the intention to defraud creditor - whether the second defendant can rely on the defence of a purchaser in good faith without notice of the first defendant's intention to defraud creditors

Setting aside decision of District Court - parens patriae jurisdiction - exceptional circumstances required - whether an order in the nature of a writ of certiorari should be made - whether there was a failure to observe some applicable requirements of procedural fairness

CRIMINAL LAW - sentencing - guilty verdict by jury - dishonesty offences - s 29D and s 86 Crimes Act 1914 (Cth) - s 135.4(3) of Criminal Code Act 1995 (Cth) - conspire to defraud the Commonwealth - tax avoidance scheme -- nature and seriousness of offences - personal circumstances - hardship faced by offender's mother's circumstances did not constitute "exceptional circumstances" - tax scheme proposed by offenders' accountant but unlawful conduct continued - significance of delay - evidence of good character - Importance of general deterrance - where convicted of two charges but involved single conspiracy - other comparable offenders - sentence imposed - recognisance release order

PRACTICE AND PROCEDURE - documents "produced to the court in response to a subpoena" - whether documents not within ambit of subpoena should be returned

COSTS - proportionality of costs - delay in seeking costs - whether costs finally determined without order reserving costs in earlier proceedings - whether punitive damages should be awarded - costs to follow the event

PRACTICE AND PROCEDURE - application to dismiss proceedings - plaintiff bringing action for negligence against former solicitor - plaintiff previously bankrupt - whether plaintiff's right to bring proceedings against solicitor was property which vested in his trustee upon the making of the sequestration order - whether such right was re-assigned to the plaintiff by the trustee - whether plaintiff's action for personal injury was maintainable on the basis that it was independent of his property rights - proceedings not maintainable by the plaintiff - proceedings dismissed

STATUTORY CONSTRUCTION - stated case - determination of an offence as strict liability offence - s 49, Companion Animals Act is a strict liability offence - defence of taking all reasonable steps arises

APPEAL - civil - whether appeal against quantum of damages should be dismissed - whether appeal would be an exercise in futility - where applicants awarded damages for breach of contract against estate - where estate bankrupt - where amount awarded exceeded remaining assets in the estate - where applicants had brought devastavit proceeding against executors of estate

EVIDENCE - findings of fact - appellate review - whether a finding of fact by a referee was based on no evidence or no more than a mere scintilla of evidence DAMAGES - negligence - method for valuing a loss of commercial opportunity(or loss of chance) - whether credit should be given for salvage value of business including any residual goodwill PRACTICE AND PROCEDURE - whether primary judge erred in exercise of discretion in adopting the referee's report

BUILDING AND CONSTRUCTION - Home Building Act 1989 - statutory warranties - whether owners corporation entitled to statutory warranties - liability of non-contracting owner to immediate successor in title - whether second defendant was the party "on whose behalf" the "residential building work" was done for the purposes of the Act

PROCEDURE - costs - costs sought on an indemnity basis of an application to set aside a statutory demand where it did not proceed to hearing - whether the demand would have been set aside because of other means to satisfy the debt - whether statutory demand issued unreasonably.

CORPORATIONS - External administration - provisional liquidator - application to inspect books kept under s 531 Corporations Act - where statutory right to inspect books - whether request can be refused on grounds of oppression CORPORATIONS - External administration - provisional liquidator - Application to terminate appointment of provisional liquidator - where no winding up order was made - where no winding up order will or can be made in substantive proceedings - whether CORPORATIONS - External administration - provisional liquidator - application for judicial advice by provisional liquidator - whether provisional liquidator would be justified in entering into loan transactions and giving security over assets of the companies in order to pay fees and remuneration

CORPORATIONS - management and administration - meetings - application for interlocutory injunction restraining respondents from moving, or voting on, a resolution - whether serious question to be tried - whether damages not adequate remedy.

Claims for money judgment against three Defendants - No appearance by first and second Defendants at the trial - Claim against third Defendant resolved by agreement of the Plaintiff and the third Defendant - Trial proceeds in absence of first and second Defendants - No Appearance or Defence filed by first and second Defendants - Deemed admissions, as well as evidence read and documents tendered at the trial - Plaintiff entitled to relief sought against first and second Defendants

PROCEDURE - notice of motion - leave sought to have issue of liability and quantum heard separately - granted - costs

PROCEDURE - notice of motion - severance - orders sought granted

PROCEDURE - judgment and orders - possession - application for further writ of restitution - reoccupation of property after eviction - plaintiff entitled to possession - further writ of restitution granted - orders made for endorsement of judgment - contempt application - costs

SUCCESSION - Wills, probate and administration - executors and administrators - testator's will made June 2010 - plaintiff propounds and defendant challenges 17 February 2011 codicil - whether the deceased executed the codicil - whether the deceased lacked testamentary capacity to make the codicil - if codicil not admitted to probate, whether, the plaintiff, named executor of the will, and who propounded the codicil, should not be executor of the will.

PRACTICE AND PROCEDURE - application for security for costs - impecunious corporate plaintiff - personal undertaking to be liable for costs - insufficient resources - whether defendants' conduct adversely affected plaintiff's ability to meet costs order and resist application for security - whether bringing of application an abuse of process - whether order would stultify proceedings

Appeal from Local Court. Statutory interpretation - meaning of staying overnight - whether void for uncertainty - question of law alone - construction of penal provisions. Local government - power to erect notices prohibiting conduct in public places.

BUILDING AND ENGINEERING CONTRACTS - Building and Construction Industry Security of Payment Act 1999 - challenge to adjudication determination - claim for work either as variation or on quantum meruit - allegation that amount claimed is within the contract price - not a matter raised in payment schedule and inconsistent with contractual documents - allegation of denial of procedural fairness and error of law - no error of law involved in determination - alleged denial of procedural fairness had no practical impact - no jurisdictional error