Cases and authorities

PROCEDURE: Defendant Bank seeks summary judgment against the plaintiffs under Uniform Civil Procedure Rule r 13.4(1)(b) and (c) and for the plaintiffs' pleadings to be struck out under UCPR r 14.28(1)(a) and (b). Second and Third Plaintiffs seek a stay of the Bank's money judgment in certain earlier proceedings.

FAMILY LAW & CHILD WELFARE - application for parentage order under Surrogacy Act 2010 - applicant not resident in NSW contrary to s 32 - substitute parentage order not available in Victoria as child was not conceived as a result of procedure carried out in Victoria - exceptional circumstances justifying making the parentage order pursuant to s 18(2)(b) - child conceived as result of procedures in NSW where parents resident in Victoria an exceptional circumstance

APPEAL FROM LOCAL COURT - claim for judgment to be set aside and deposit for land purchase returned to plaintiffs - purchase of land subject to lodgement of development plan - whether special condition prevailed over standard form clause - whether inconsistency between clauses relating to rescission of contract

PROCEDURE - claim of privilege over documents disclosed - whether documents such as to attract privilege - whether bank waived privilege - legitimate forensic purpose - whether scope of subpoena to produce too broad

DEFAMATION - imputations - whether conveyed by matter complained of.

WILLS PROBATE AND ADMINISTRATION - construction of will - testatrix and son co-owners of house - whether sum to be paid to son from proceeds of sale of the house intended to be taken from his share or hers - no question of principle

LIMITATION OF ACTIONS - plaintiff injured when restacking collapsed load on truck - date on which cause of action is discoverable - interpretation of s 50D(1)(b) of the Limitation Act

Charities-Gift to ethnic women's association-whether charitable-whether cy-près scheme may be ordered where there is no express trust

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - construction and interpretation of contracts - whether defendant entitled to seek delivery up of shares pursuant to contract - whether breach of contract by plaintiff CONTRACTS - EMPLOYMENT - REPUDIATION/TERMINATION - where termination by agreement admitted - whether termination either a termination by the plaintiff or a termination by the defendant for breach of contract by plaintiff CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - construction and interpretation of contracts - implied terms of good faith and reasonableness - whether excluded CRIMINAL LAW - PARTICULAR OFFENCES - offences relating to the administration of justice - perjury and false statement - where defendant swears amended defence inconsistent with original sworn defence - explanation required

COSTS - failure to prosecute proceedings diligently - wasted correspondence and appearances - expert conclaves postponed - specified gross sum costs order

ADMINISTRATIVE LAW - judicial review - whether Registrar acted outside statutory powers - whether issue estoppel

PROCEDURE - judgments and orders - summary judgment - where no appearance for the plaintiffs - defendants seek orders under r 29.7(4) Uniform Civil Procedure Rules 2005 (NSW) for dismissal of proceedings.

CORPORATIONS - external administration - insolvency - winding up - application for injunction to restrain liquidator from selling certain assets - where applicant seeking reversal of liquidator's decision to reject a proposal for a deed of company arrangement as final relief - Whether there is a seriously arguable case for final relief reversing the liquidator's decision to reject the proposal for a deed of company arrangement - Whether there is a seriously arguable case that the liquidator acted in bad faith in the conduct of the sale

SUCCESSION - Family Provision and Maintenance - Circumstances precluding relief - Uniform Civil Procedure Rules 2005, Pt 54 - whether defendant executor and trustee should be ordered to pay most of balance of estate to plaintiff his former wife to be held in trust for their daughter - whether a departure from proper administration - whether an extension of time to make application by daughter under Family Provision Act 1982 should be granted under s 16 - entire estate left to daughter at 21 with power of advancement by executor and trustee

NOTICE OF MOTION seeking variation of restraining order - Criminal Assets Recovery Act 1990, s 10 - claim for legal and living expenses - interest in property includes a reference to money - interest in property is illegally acquired if it is all or part of the proceeds of illegal activity - no evidence defendant cannot access other funds for legal expenses - claim for living expenses not satisfied - notice of motion dismissed

[DECEIT] - where plaintiff claims he was deceived into believing that it was necessary to grant a Power of Attorney to his brother to implement his instructions as to transaction in relation to his Taxi whilst he was incarcerated - where claim that brother and others had no intention of implementing the plaintiff's instructions but rather intended to steal the plaintiff's money. [UNDUE INFLUENCE] - where plaintiff incarcerated for lengthy term of imprisonment - whether relationship of ascendency over the plaintiff - whether plaintiff unable to make worthwhile judgment in relation to the grant of the Power of Attorney - whether Power of Attorney procured by undue influence. [UNCONSCIONABLE CONDUCT] - where plaintiff claims a special disability - dependence on defendants - luring of plaintiff into granting of Power of Attorney.

CRIMINAL LAW-sentence-murder-moral culpability- diminished where intellectual disability compromises tolerance and responses to frustration- causal nexus between delusion and criminal act CRIMINAL LAW-sentence-armed robbery- R v Henry features present

EVIDENCE - client legal privilege - waiver of privilege - communication between experts and parties legal advisors - s 122 Evidence Act 1995 (NSW).

LEASE - hotel lease - construction of term "Licence" as defined in the lease - whether definition of "Licence" extends to gaming machine entitlements - whether lessee entitled to sell, transfer, remove or otherwise deal with gaming machine entitlements without lessor's consent

Judicial review - plaintiff charged with criminal offences in the Local Court - failure on the part of the plaintiff to comply with orders of the Local Court regarding provision of submissions in support of an application under s. 91 of the Criminal Procedure Act - application under s. 91 deemed to be abandoned by operation of practice note - application to set aside decision of the Magistrate - application to stay proceedings - evidence that the plaintiff's failures to provide instructions caused termination of grant of legal aid - application dismissed

Conviction appeal - Appellant convicted of carnal knowledge of victim under ten years of age - former s 67 of the Crimes Act 1900 - Judge sitting alone - whether unfairness arising from findings of trial judge in another trial of same accused - fresh evidence - unreasonable verdict - appropriate order - new trial or acquittal.

EQUITY - application seeking stay of auction by mortgagee

EQUITY - interlocutory mandatory injunction - application for monies from proceeds of mortgagee sale to be paid out of court

PRACTICE AND PROCEDURE - security for costs - application for orders as to communications between parties BIAS - application for disqualification on grounds of bias EQUITY - interlocutory mandatory injunction sought for reinstatement to premises pending appeal

PROCEDURE - application for leave to discontinue - whether proceedings should be dismissed or discontinued COSTS - where Plaintiff sought leave to discontinue proceedings - whether the court should depart from ordinary rule that Plaintiff pay Defendants' costs upon discontinuance

DEFAMATION - application under s 21(3) of the Defamation Act 2005 for proceedings not to be tried by a jury - the practical consequence of a trial by jury of technical, scientific or other issues in voluminous proceedings - relevance of the overriding purpose of the Civil Procedure Act 2005 - no issue of principle

EVIDENCE - admissibility - hearsay - business records exception - email from a supplier to a former customer indicating the final date a particular chemical was supplied - evidence constituted a previous representation made in the course of business - the content of the representation and the time gap between the email exchange and the commencement of proceedings do not indicate proceedings were contemplated at the relevant time. EVIDENCE - admissibility - court's general discretion to exclude evidence - inappropriate to exercise discretion where evidence carries significant probative value and is unlikely to mislead, confuse, waste time or cause unfair prejudice.

TRUSTS - Charitable Trust - Previous declaration that purposes of trust failed - Application of trust property cy-pres in 1978 - Variation of that scheme - Application of Charitable Trusts Act 1993 (NSW), s 9 to proceedings commenced before enactment of Act considered - Variation to cy-près scheme approved

CONTRACTS - offer and acceptance - whether the parties entered into a binding settlement agreement.

CONTRACT - CORPORATIONS - where a written Restructure Agreement required parties to amend a company's constitution to provide for the issue of and rights governing B Class shares including the right to receive dividends calculated by reference to profits of the company available for dividend purposes - construction of the phrase "profits available for dividend purposes" in the agreement and constitution - whether the words used by the parties in the particular instruments gave to the directors of the company discretion to utilise distributable profits for purposes other than paying the B Class dividend - RECTIFICATION - whether if the agreement and constitution are to be properly construed contrary to the plaintiff's contention, the requirements for rectifying the agreement have been satisfied - ESTOPPEL - whether the defendant has unconscionably departed from an assumption common to the parties - MINORITY OPPRESSION - Corporations Act 2001 (Cth) ss 232, 233 - whether in denying the plaintiff its rights and expectations to receive dividends on the B Class shares there has been conduct of the company's affairs oppressive to, unfairly prejudicial to, or unfairly discriminatory against the plaintiff - whether relief should be given - REMEDIES - where a contractual provision entitles one party to be offered participation in new projects - where no new project has yet been embarked upon and where none may be embarked upon - whether a declaration of the validity and legal enforceability of the provision should be made because the other party previously denied enforceability of the provision.

EQUITY - equitable remedies - injunctions - interlocutory injunctions - injunctions to preserve status quo or property pending determination of rights - freezing orders - orders against third parties - whether available in absence of property currently held by defendant - property of defendant transferred to discretionary trustee - where defendant with power of appointment and contingent beneficiary of discretionary trust EQUITY - equitable remedies - injunctions - interlocutory injunctions - injunctions to preserve status quo or property pending determination of rights - freezing orders - nature and effect of order - appropriate form of order PRACTICE AND PROCEDURE - rejection of affidavit where witness unavailable for cross-examination - rejection notwithstanding absence of timely notice to attend for cross-examination

CRIMINAL LAW - sentencing - manslaughter - substantial impairment by abnormality of mind - provocation - excessive self defence

DEFAMATION - qualified privilege - reply to attack - truth and contextual truth - offer of amends

CRIMINAL LAW - resist police officer in execution of duty - mens rea - honest and reasonable mistaken belief of fact - effect of s 201 of Law Enforcement (Powers and Responsibilities) Act 2002

SUCCESSION - executors and administrators - whether executors entitled to refrain from incurring further expense in the administration of the estate until put in funds or granted indemnity - whether proceedings should be presently stayed.

PROCEDURE - civil - notice of motion seeking dismissal of appeal pursuant to s 61 of the Civil Procedure Act 2005 - where appellant failed to comply with Court's directions and Part 51 of the Uniform Civil Procedure Rules - whether dictates of justice under ss 56 - 58 of Civil Procedure Act 2005 warrant dismissal of appeal

CORPORATIONS - voluntary administration - meeting of creditors - voting by creditors - whether the appellant was a creditor - where company owed obligations to the appellant but appellant had taken steps to assign rights to another - PERSONAL PROPERTY - alienation of personal property - choses in action - assignment of legal chose in action - whether assignment effective at law under Conveyancing Act 1919, s 12 - assignment by party accommodated to accommodating party as security for indebtedness - common ground that assignment in writing and that notice thereof given to the debtor - whether "absolute assignment" - whether assignment "by way of charge only" - PROCEDURE - parties - proper and necessary parties - where deed of company arrangement executed by company contemplates creation of creditors' trust and such trust is established - where plaintiff seeks order modifying actions resulting in and proceeding from execution and effectuation of deed of company arrangement - potential effect on rights of persons who have become beneficiaries of creditors' trust.

CRIMINAL LAW - procedure - whether fitness inquiry required

CORPORATIONS - creditor's statutory demand - application to set aside creditor's statutory demand - whether genuine dispute - whether genuine offsetting claim COSTS - Corporations - external administration - application to set aside creditor's statutory demand - UCPR r 7.1(2) - Rule requires that a solicitor be appointed to act for defendant company unless director joined as a plaintiff - Director not joined as a plaintiff - Usual course is to stay proceedings - Proceedings are at an advanced stage - Director's personal undertaking as to costs avoids need for stay

PROCEDURE - Striking out of a defence pursuant to s 61(3)(c) of the Civil Procedure Act 2005 - Granting an application for judgment in circumstances where the defendant has explicitly notified the Court of no intended future participation in the proceedings.

COSTS - costs follow the event - where amount recovered substantially less than amount claimed and disproportionate to costs of proceedings - no order as to costs.

EQUITY - Power of attorney with clause expressly permitting the attorney to obtain a benefit - fiduciary obligations of the donee and breach

PRACTICE AND PROCEDURE - judgment against Defendants - possession of land - monetary judgment - Defendants foreshadow claim to set aside judgment on basis that procured by fraud - claim of third-party fraud - whether stay on orders made in principal proceedings should be continued - no appeal on foot - necessity for Statement of Claim to bring proceedings to set aside judgment for fraud - need for specificity and particularity - Summons inappropriate - discretionary considerations - Court declines to extend stay

EQUITY - Purchaser's lien - Stakeholder provisions in contracts for the sale of land - Rescission of contract for the sale of land - Competing prior equitable interest created by agreement with owner of land - Whether prior equitable interest should be postponed by reason of failure to lodge a caveat

SUCCESSION - wills, probate and administration - presumption of revocation of will when original cannot be found - application of Briginshaw standard of proof to allegation of destruction of will - non est factum - understanding of effect of document by person signing it

PROCEDURE-application for summary judgment for possession of property-effect of clause in mortgage excluding reliance on defence, counter-claim or set-off in response to claim for possession of secured property PROCEDURE-application to strike out defence-whether defence discloses a reasonable cause of action per UCPR r. 14.28(1)(a) EQUITY- whether bank owes fiduciary duty to customer EQUITY-unconscionability-superior bargaining position of bank GUARANTEE-nature of bank guarantee- equivalent to cash

PROFESSIONS AND TRADES - lawyers - client legal privilege - waiver of - inconsistency between claims made and maintenance of the privilege - claim for mental harm - incapacity to conduct business or litigation alleged - documents seeking and providing instructions to solicitors in other litigation - privilege waived

CRIMINAL LAW - sentence - murder - stabbing at a hotel - prior physical confrontation and racial abuse involving the offender and the deceased earlier in the day - Aboriginal offender with history of alcohol and substance abuse since early teens - violent upbringing in deprived circumstances - prior criminal record including personal violence offences - whether provocation or intoxication mitigating features - plea of guilty on first day of trial

Common law claim by employee against employer - entitlement to pre-judgment interest - s 151M of Workers Compensation Act 1987.