Cases and authorities

PROCEDURE - motion to amend statement of claim - many previous amendments- late amendment sought -- no justification for additional amendments to statement of claim provided -- exercise of judicial discretion to allow or disallow amendments - parties must address issues in proceedings comprehensively and in a timely manner - overriding purpose of the Civil Procedure Act 2005 is not attained -no point of general principle

CORPORATIONS - Winding up - Statutory demand - Application for extension of time to comply with statutory demand - Whether appeal has prospects of success and whether arguable case has been shown - Whether potential prejudice to the parties - Considerations relating to leave to appeal.

CONTRACT - contract for services - formation - intention to create legally binding relations - where a written contract under which the defendant Artist was to provide her exclusive services to the plaintiff television station gave the station an option to extend the contract for a year - where the option was exercised on different terms to those contained in the written agreement after oral discussions between the parties - whether there was a binding oral agreement - whether the option was validly exercised - TERMINATION OF CONTRACT - whether subsequent oral discussions resulted in a binding agreement to terminate the written contract as extended - whether there was some other oral variation of contract - RELIEF - whether an injunction should be granted restraining the Artist from performing similar services in Australia for any person other than the plaintiff

WILLS, PROBATE AND ADMINISTRATION - informal testamentary document - whether the document purports to state the deceased's testamentary intentions - no dispute that document not executed in accordance with s 6 Succession Act 2006 - Deceased familiar with the formal requirements for the making of a valid will -whether Court satisfied that the deceased intended document to form an amendment to his duly executed Will - Consideration of circumstances in which the document was executed

SUCCESSION - FAMILY PROVISION - The Plaintiff seeks a family provision order out of the estate of the deceased under the Succession Act 2006 as a person who was a member of the household of which the deceased was a member and partly dependent on the deceased - The Defendant is the executor to whom Probate granted - Nearly whole estate left to charity - Dispute as to Plaintiff's eligibility and as to factors warranting the making of the application - Whether to make a family provision order - If order for provision made, how the burden of that provision should be borne - Plaintiff not eligible and no factors warranting the making of the application - No need to determine whether and if so, what family provision order should be made.

APPEAL - appeal against Workers Compensation Commission Appeal Panel decision - Court's power to make orders sought - legislative scheme - arbitrator's decision - medical specialist's decision - Appeal Panel's decision - whether Appeal Panel's reasons inadequate - whether there was jurisdictional error - degree of impairment - failure to determine degree of impairment due to pre-existing condition - specific injury - whether specific injury needed for diagnosis related estimate category - failure to consider extent of resulting impairment - failure to consider whether pre-existing condition contributed to impairment - failure to consider whether proportion of impairment was due to pre-existing condition - whether Appeal Panel failed to address s 323(2) - orders

ADMINISTRATIVE LAW - Review of decisions of Proper Officer and Medical Assessor. CAUSATION - claimant intimidated by other driver - consequent psychiatric injuries not caused directly by accident - utility of "but for" test - application of s 3A - Motor Accidents Compensation Act 1999

ADMINISTRATIVE LAW - judicial review - whether proceedings for prerogative relief against non-judicial decision of a Supreme Court judge properly commenced in the Court of Appeal APPEAL - civil - relief sought against decision of Supreme Court judge under s 78 Crimes (Appeal and Review) Act 2001 (NSW) - whether decision judicial or non-judicial - whether applicant entitled to amend draft notice of appeal to seek relief under ss 65 and 69 Supreme Court Act 1970 (NSW) -- whether determination of substantive issues appropriately dealt with by single judge of the Court of Appeal PROCEDURE - judicial review - whether applicant entitled to amend draft notice of appeal - where application to amend outside time stipulated by r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) - where impugned decision handed down prior to commencement of rule

TAXES AND DUTIES - Payroll Tax - notices under s 72 of the Taxation Administration Act 1996 issued to third parties to ascertain the taxable facts of the plaintiff for payroll tax purposes - special case - questions for opinion of court referred by Administrative Decisions Tribunal - whether the plaintiff entitled to object under s 86(1)(b) to the decisions to issue the notices - whether the plaintiff could apply to the ADT for a review of an objection decision under s 96(1) of the Act - whether "dissatisfied" in s 86(1)(b) limited to decisions having an immediate and direct effect on the plaintiff's actual or potential liability to payroll tax

TORTS - negligence - motor vehicle accident - liability admitted. DAMAGES - whether the award for future accommodation and care was reasonable - the proportionate relationship between the health benefits obtained and future costs incurred - purpose of award of damages to fulfil reasonable, not ideal, requirements - no issue of general principle.

BUILDING AND CONSTRUCTION - construction contracts - whether compliance with a contractual mechanism for claiming progress payments formed a condition precedent for payment of the entire contract sum

CRIMINAL LAW - sentencing - affray - offence committed while in immigration detention EVIDENCE - expert evidence - where psychiatric opinion based on history of dubious credibility

LEGAL PRACTITIONER - wilfully engaging in prohibited conduct-real prospect of continued engagement in conduct requiring a practising certificate - need for the protection of the public - no issue of general principle

CRIMINAL LAW - sentencing - appeal against sentences imposed for kidnapping, aggravated indecent assault, attempted sexual intercourse with a child under 10 and aggravated sexual intercourse with a child under 10 - whether sentencing judge erred in finding that the objective seriousness of the offences were aggravated by the fact that they were part of a series of acts aimed at self-sexual gratification - whether the sentencing judge erred in determining the objective seriousness of the offending - whether the sentencing judge, having found that the offending was above the mid range of objective seriousness, erred in failing to specify the extent to which the offending fell above that range SENTENCING - where the sentencing judge made a series of findings in favour of the applicant - where those findings not reflected in sentence ultimately imposed - where sentence in excess of the established pattern of sentencing generally applicable to that type of offending - sentences manifestly excessive - leave to appeal granted - appeal allowed - applicant re-sentenced

PRACTICE AND PROCEDURE - application to set aside earlier orders for security of costs on basis of change of circumstances - applications for summary dismissal due to non-compliance with security for costs orders

REAL PROPERTY - easements - particular easements and rights - right of carriageway - where an electrically driven inclinator system forms part of the servient tenement - where the inclinator system is a fixture - whether the right to pass and repass created by the easement includes a right to use the inclinator - REAL PROPERTY - easements - other matters - easement affecting Torrens system land - extent to which matters outside the register may be taken into account in construing the easement terms

CORPORATIONS - winding up - litigation funding agreement - orders sought under s 477(2B) Corporations Act 2001 (Cth) approving entry into litigation funding agreement - whether entry into the agreement is proper exercise of the liquidator's power - whether appropriate to give direction under s 479(3) Corporations Act protecting liquidator from claim of breach of duty in respect of the funding agreement.

ADOPTION - whether an adoption order should be made when the natural mother opposes adoption.

CORPORATIONS - winding up - order sought for deregistration of company after disposal of relevant proceedings - whether party is an 'interested party' for the purposes of s 509(6) Corporations Act 2001 (Cth) - whether a form of order that provides for deregistration within a period after a specified event constitutes an order for deregistration on a 'specified date' for the purposes of s 509(6).

CONTRACTS - indemnity clause - construction of indemnity clause - indemnity not to be construed as extending beyond the assigned risk unless words intractable. CONTRACTS - indemnity clause - onus of proof - party relying on indemnity clause bears the onus of establishing it applies. EVIDENCE - standard of proof - on balance of probabilities - whether land contaminated with particular pollutant at time of sale - tribunal of fact must feel actual persuasion - date of relevant spill not established by the evidence.

SERIOUS SEX OFFENDERS - application for extended supervision order - need to address defendant's mental illness

PRACTICE AND PROCEDURE - application for summary judgment - Contracts Review Act defence pleaded - difficulties with defence identified - Contracts Review Act claim not doomed to failure - application refused

CRIMINAL LAW - Appeal by DPP pursuant to Part 5 of the Crimes (Appeal and Review) Act 2001 - matter dismissed pursuant to s 32 of Mental Health (Forensic Provisions) Act 1990 - insufficient reasons contained in judgment - appeal allowed - matter remitted to Local Court

NEGLIGENCE - Duty of care - pure economic loss - where contract for the provision of services by an architect the content of an architect's duty of care informed by the nature and scope of the retainer - duties in contract and tort co-extensive - plaintiff entitled to select the most advantageous action. NEGLIGENCE - Duty of care - pure economic loss - where no contract for the provision of services by an architect - factors relevant to establishing existence of duty of care include assumption of responsibility, known reliance and reasonable forseeability of economic loss. EVIDENCE - witnesses - credibility - deleterious effect of the effluxion of time on the reliability of witness testimony.

PRACTICE AND PROCEDURE - application for summary judgment - no opposition after amended statement of claim filed - summary judgment granted - question of costs to be determined separately

CORPORATIONS - management and administration - meetings - orders sought by administrators for extension of time to convene second meeting of creditors - order sought permitting notice by email - whether extension of convening period is in the interests of creditors.

PRACTICE AND PROCEDURE - application pursuant to a court order for leave of the court to be obtained for service of any intended evidence - whether evidence that is permitted to be filed and served upon can later be relied upon is a matter for the trial judge.

EMPLOYMENT LAW - contract of service - rights, duties and liabilities as between employer and employee - breach of contract and fiduciary obligations - misappropriation - remedies - Common Law damages - Restitution - Equitable compensation - Measures of relief. EQUITY - general principles - fiduciary obligations - first defendant was a manager of plaintiff company - first defendant induced plaintiff to pay a sum of money to business name registered in name of his wife, the second defendant, for goods not supplied and services not rendered to plaintiff - second defendant liable for knowing receipt - equitable compensation awarded against both defendants. RESTITUTION - general principles - common money counts - money had and received - knowing receipt of misappropriated money - repayment required.

PROPERTY - Withdrawal of caveat by plaintiff in order for the bank to exercise their power of sale

FAMILY LAW - guardianship of person - parens patriae jurisdiction of Supreme Court - jurisdiction not confined to preventing immediate risk - jurisdiction available to promote minor's welfare

CORPORATIONS - Winding up - Statutory demand - Application to set aside a creditor's statutory demand under s 459H(1)(b), 459J(1)(a) and 459J(1)(b) Corporations Act 2001 (Cth) - Whether offsetting claim established - Whether sufficient evidentiary material for damage to be calculated.

CORPORATIONS - Administration - Proceedings against a company under administration - Whether leave to commence proceedings should be revoked - principles to be applied.

CORPORATIONS - deregistration - reinstatement - former director fails to give appropriate undertakings - winding-up on reinstatement - just and equitable ground.

PRACTICE & PROCEDURE – pleadings – whether embarrassing – principles to be applied when considering pleadings drafted by self-represented litigant

APPEAL FROM LOCAL COURT - appeal by defendant against plaintiff's refusal to grant defendant an examiner's authority under the Road Transport (Vehicle Registration) Regulation - failure to afford plaintiff procedural fairness - failure to provide adequate reasons

EQUITY - trusts and trustees - application for judicial advice under s 63(1) of the Trustee Act 1925 - validity of power to appoint income and capital to anyone in the world except class of excluded persons - construction of trust deed - whether person can be appointed as member of "Appointed Class" under trust deed in its capacity as trustee

REAL PROPERTY - Torrens Title - caveats against dealings - application for extension of caveat under s 74K(2) of the Real Property Act 1900 - requirements for lodgment of caveat under s 74F(1) - whether unitholder of unit trust has "legal or equitable estate or interest" in land that is trust property

NEGLIGENCE - railway accident - Plaintiff falls onto railway line from platform at night - whether driver had time to stop train - perception of object on line - emergency brakes not applied until driver later perceives object as human being - whether breach of duty in so acting - whether instructions and guidelines to drivers adequate - Plaintiff's intoxication - impact on liability - contributory negligence

CRIMINAL LAW - application for leave to appeal against sentence - applicant charged with break and enter with intent to commit indecent assault - further offences of committing an act of indecency and stalking on the Form 1 - guilty plea - whether sentencing judge erred by taking into account an irrelevant consideration - whether sentence manifestly excessive - whether sentencing judge erred by inverting the sentencing process required by Pearce v The Queen [1998] HCA 57; 194 CLR 610 - whether the Court should re-sentence the applicant or remit the matter for re-sentencing.

CRIMINAL LAW - appeal against conviction - conspiracy to import commercial quantity of cocaine - extension of time - whether trial miscarried because of conduct of Crown prosecutor - application of the proviso in s 6(1) of the Criminal Appeal Act

CRIMINAL LAW - application for leave to appeal against sentence - applicant charged with three counts of aggravated sexual intercourse without consent - plea of guilty - whether sentencing judge erred by applying a two-stage sentencing process discussed in R v Way [2004] NSWCCA 131; 60 NSWLR 168

CONTRACT - contract of guarantee - construction of suspension/preservation of rights clauses and no waiver clauses -whether affirmative defences that, if proved, may lead to relief that would have the effect that there was no relevant failure to pay by the borrower as at the relevant date fall within the operation of the said clauses as properly construed PRACTICE AND PROCEDURE - civil -summary judgment - whether there is an underlying defence that has a real or more than fanciful prospect of success

CORPORATIONS - winding up - liquidators - liquidator seeks directions approving entry into a funding agreement and a costs agreement - whether entry into the agreement is a proper exercise of power - whether entry into the funding agreement is in the interests of creditors - whether there is a risk of duplication with other proceedings where litigation has been commenced by the proposed funder against the proposed defendant to the proceedings.

PRACTICE AND PROCEDURE - plaintiff became bankrupt after decision reserved in primary proceedings - trustee in bankruptcy appointed to plaintiffs estate - proceedings stayed until trustee makes election to prosecute or discontinue the action pursuant to s60(2) Bankruptcy Act 1966 (Cth)

PRACTICE & PROCEDURE - Application for stay of execution of judgment pending determination of appeal - where seriously arguable ground of appeal - where bankruptcy proceedings are on foot against defendants - where defendants have not made proper disclosure of their financial position - whether refusing stay would be oppressive or cause hardship - stay granted upon defendants giving appropriate securities to plaintiff

ADOPTION - whether an adoption order should be made when the natural father opposes adoption.

CRIMINAL LAW - procedure - duplicity in indictment - whether legislation prohibiting riot and affray creates more than one offence for each - no duplicity

CRIMINAL LAW - defences - self-defence - whether defence should be left to jury

Building and Construction - Building and Construction Security of Payment Act 1999 (NSW)- meaning of "construction contract" for the purposes of the Act - whether undertaking to supply related goods under an arrangement. Building and Construction - Construction Contracts - Adjudication of payment claims - whether claim in respect of one contract.