Cases and authorities

CRIMINAL LAW - appeal against conviction - first ground of appeal conceded - appeal allowed - conviction quashed and new trial ordered

CRIMINAL LAW - Crown application for bail review

CRIMINAL LAW - appeal against sentence - error in not giving effect to finding of special circumstances - error conceded - applicant to be re-sentenced - principal of totality - whether insufficient weight given to intellectual disabilities other than on contrition and remorse - applicant re-sentenced

INSURANCE - general - Interest on insurance money. PROCEDURE - costs - general rule costs follow the event - self-represented litigant succeeded - whether her out-of-pocket expenses should be limited.

CRIMINAL LAW - practice and procedure - judgment by direction - no case submissions - whether evidence taken at its highest could satisfy a jury beyond reasonable doubt - charge of riot - evidence in relation to accused Kamali discloses no act of unlawful violence - no case to answer - charge of aiding and abetting riot - evidence in relation to accused Mosawi does not establish that he was the individual responsible for the acts in question - no case to answer - charge of affray - evidence in relation to accused Haidari discloses no act of threat of unlawful violence - no case to answer

EQUITY - guardianship - application to set aside orders of the Guardianship Tribunal - appeal under s 67 of the Guardianship Act 1987 - meaning of appeal "on a question of law" - considerations governing leave to appeal on a question of fact - requirement under s 14(2)(a)(i) to consider views of person in respect of whom order is to be made - whether failure to provide adequate reasons for Tribunal's decision - requirement under s 17(1)(b) of "no undue conflict" between interests of guardian and person in respect of whom order is to be made

CONTRACTS - whether a contractual clause is a condition precedent to performance - whether a time stipulation in a condition precedent is of the essence - whether an election to terminate the contract has been made - whether a party is entitled to assert termination for the first time as defence in proceedings - whether it is too late to terminate where the breach of a condition precedent giving rise to a right to terminate has been remedied before termination is asserted - whether to exercise discretion to give effect to settlement agreement.

APPEAL - error of law - tort of assault in relation to a threat must be framed by reference to objective terms not subjective apprehension of threat - Civil Liability Act not applicable to circumstances of assault allegations - appeal partially successful

Appeal from decision of the Consumer Trader and Tenancy Tribunal

Appeal from decision of the Consumer Trader and Tenancy Tribunal

SUCCESSION - wills, probate and administration - construction and effect of will

Personal injury claim against employer - damages restricted to future and past economic loss - contributory negligence - earning capacity - vicissitudes.

CRIMINAL LAW - jury trial - charges of murder in context of home invasion - victim killed as a result of multiple blows struck with meat cleavers - "000" calls made by occupants of house during and immediately after home invasion - media seek electronic copies of "000" calls to broadcast as part of television reports of the trial - discretionary considerations - risk of jury being distracted directly or indirectly by dramatic reporting of trial including "000" calls - application declined for balance of trial

CIVIL LIABILITY - proportionate liability - Part 4 of the Civil Liability Act 2002 - contract for indemnity - whether express provision as to parties' rights excluded operation of Part 4 - whether "an action for damages" within the meaning of Part 4 - whether a claim "arising from a failure to take reasonable care" - whether concurrent wrongdoers caused the same loss - whether concurrent wrongdoers liable to plaintiff

INSURANCE - contract - interpretation - Total and Permanent Disablement - Regular Remuneration Work- whether respondent reasonably fitted by education, training or experience to carry out work INSURANCE - contract - interpretation - Total and Permanent Disablement - Regular Remuneration Work- whether part-time employment constituted Regular Remuneration Work

CORPORATIONS - winding up - winding up in insolvency - presumption of insolvency arising from non-compliance with a statutory demand. PROCEDURE - service - whether statutory demand was served so as to give rise to a presumption of insolvency arising from non-compliance with it - where conflicting evidence about the sending and receipt of mail - where mail diverted from registered office to post office by arrangement between the company and the post office - whether evidence sufficient to raise doubt about the presumption that mail is received on the fourth business day after it was posted.

FAMILY LAW AND CHILD WELAFRE - Child welfare under State legislation - Adoption - Adoption order - where natural mother has made considerable efforts to improve parenting capacity - where children are in permanent foster care - whether order in best interests of the child FAMILY LAW AND CHILD WELAFRE - Child welfare under State legislation - Adoption - Consent dispense order - birth mother indicates agreement to proposed adoption but does not wish to consent under (NSW) Adoption Act 2000 - whether consent may be dispensed with under (NSW) Adoption Act 2000 s 67(1)(d) FAMILY LAW AND CHILD WELAFRE - Child welfare under State legislation - Adoption - Orders - where reasonable inquires have failed to locate natural father - whether notice requirement should be dispensed with

APPEAL - adequacy of reasons for adverse credit findings - whether findings of fact affected by adverse credit findings CONTRACT - whether good consideration established for variation of contract - whether alleged consideration was past consideration - capacity in which signatory entered into agreement relied upon as variation of joint venture agreement EQUITY - unjust enrichment - restitution - whether bank withdrawals authorised - whether, if not for purposes of joint venture, retention amounted to unjust enrichment PRACTICE AND PROCEDURE - civil - pleadings - adequacy of pleadings - alleged failure to plead consideration in contract claim

EVIDENCE - admissibility - character evidence - evidence of refugee status as relevant to character - passing security clearance as relevant to character - evidence admissible

CORPORATIONS - creditor's statutory demand - application to set aside creditor's statutory demand - whether genuine dispute - Graywinter principle - whether grounds of dispute sufficiently identified in affidavit - whether debt claimed was "due and payable" when demand was served - whether any relevant debt in existence when demand was served

CORPORATIONS - winding up - creditor's statutory demand - Corporations Act 2001 s 459G - whether genuine dispute exists - whether offsetting claim exists - whether abuse of process

PROCEDURE - evidence - early rulings on the evidence pursuant to s 192A Evidence Act.

PROCEDURE - judgments and orders - stays

PROCEDURE - leave to file second amended statement of claim - victims of sexual abuse - action against State of NSW and case worker - claim of breach of duty - whether pleading of causes of action extends beyond that permitted by Court of Appeal

APPEAL - Extension of stay of writ of possession

DAMAGES - claims under the Compensation to Relatives Act 1897 (NSW) - limit on the "claimant's" income to which a court may have regard when calculating future loss of economic support - whether limit applies to claims under the Compensation to Relatives Act - whether deceased person is a "claimant" - whether appropriate for court to insert words not used by the Parliament - Civil Liability Act 2002 (NSW), s 12 STATUTORY INTERPRETATION - principles - whether words may be read into a provision to qualify the literal meaning - proper scope of a purposive construction WORDS & PHRASES - "claimant" - "relate to"

COSTS - whether Plaintiff was successful on application - whether application was unnecessary - no order as to costs

CORPORATIONS - external administration - winding up - disclaimer of assets by liquidator - whether disclaimer should be set aside - whether the court should make orders vesting property in a person entitled to the property

SUCCESSION - Family provision -Application by de facto wife and minor son for provision from the deceased's estate - Matter determined on its facts.

SUMMARY DISMISSAL - proceedings against solicitors arising from conduct of personal injury claim in the District Court - abuse of process - collateral attack on District Court judgment - claims against solicitors manifestly groundless

CRIMINAL LAW - sentence - manslaughter - excessive self-defence - wounding with intent to inflict grievous bodily harm - victim was police officer -- objective seriousness

PRACTICE AND PROCEDURE - adjournment application - in chambers - no question of principle

CRIMINAL LAW - accused charged with murder and other offences - found by Court to be unfit to be tried - Mental Health Review Tribunal concludes thereafter that accused fit to be tried - Crown to proceed further against accused - accused found fit to be tried

PARTNERSHIP - dissolution and winding up - whether conduct or words of the plaintiff amounts to requisite notice of intention of dissolution. REAL PROPERTY - statutory trust for sale of co-owned property - whether there is an agreement between the parties justifying a refusal of s 66G orders.

APPEAL AND NEW TRIAL - appeal - general principles - whether on appeal an appellate court may correct interlocutory orders made in the court below. PROCEDURE - Supreme Court procedure - New South Wales - jurisdiction and generally - stay of proceedings - plaintiff is the appellant in appeal proceedings in the Court of Appeal seeking to challenge final orders made in the District Court - plaintiff sought to re-agitate in separate equity proceedings in the Supreme Court questions which were determined by interlocutory orders made in the District Court - whether the equity proceedings should be stayed pending the determination of the appeal proceedings.

BUILDING AND CONSTRUCTION - adjudication - absence of natural justice - absence of procedural fairness - determination void

CRIMINAL LAW - conviction appeal - felony murder - shop owner shot when attempting to detain robber outside shop - whether trial judge was correct to reject "no case" submission - failure of trial judge to leave factual issue to jury - application of words "during or immediately after" in s18 Crimes Act 1900 - application of proviso - whether jury verdict unreasonable - whether evidence of certain bystanders should have been rejected - whether evidence of gunshot residue on appellant's hands should have been rejected - SENTENCE APPEAL - whether sentencing judge correctly characterised factual background to offence - whether sentence excessive because of appellant's terminal illness - whether principle of totality applied - whether special circumstances should have been found.

PROCEDURE - pleadings - defective pleadings - claim for accessorial liability under s 75B of the Trade Practices Act 1974 (Cth) - whether pleaded facts demonstrated that the alleged accessory participated in the misleading or deceptive conduct pleaded. COSTS - interlocutory decision - order that costs be paid forthwith - whether a variation under UCPR r 42.7(2) must be made by the judge who made the original costs order.

EVIDENCE - sections 118 and 124 of the Evidence Act 1995 (NSW) - admissibility of admissions made by a party to a barrister previously retained jointly by the parties

COSTS - Indemnity costs - Deliberate violation of the rights of a party - Disparagement of title - Allegations of fraud when no proper basis for the allegation

PROCEDURE - Supreme Court Procedure - New South Wales - application for access to files to aid application for gross sum costs pursuant to s 98(4)(c) of the Civil Procedure Act 2005 - Practice Note SCEQ 11 - purpose of gross sum costs order being to avoid delay and cost - no line by line consideration of documents - potential for sampling documents to assess reasonableness of costs

PRACTICE AND PROCEDURE- summary dismissal of claim as abuse of process-prejudicial effect of delay-whether fair trial possible when evidence lost or unreliable by reason of effluxion of time PRACTICE AND PROCEDURE- summary dismissal of claim for want of due despatch

PRACTICE AND PROCEDURE-costs-Calderbank offers-whether plaintiff may make offer directly to defendant through another party PRACTICE AND PROCEDURE-costs-departing from general rule-conduct of parties-unreasonableness of conduct

PROCEDURE - judgments - varying - accidental slip or omission.

PRACTICE AND PROCEDURE - Failure to comply with case management orders - The appropriate use of expert evidence - A request for the Court to change the location of the conduct of the hearing - Providing equal weight to the objectives of case management and the exceptional circumstances of the case.

PRACTICE AND PROCEDURE - Notice to Produce - Notice of Motion to set aside a Notice to Produce on relevance grounds. CLIENT LEGAL PRIVILEGE - Is there an implied waiver of privilege by reference to the privileged document in, publicly available, preceding correspondence.

PROCEDURE - judgments - varying and setting aside - judgment on cross-claim following summary dismissal application - whether final - whether principle in Anshun precluded further cross-claim - abuse of process - slip rule - unintended consequences of judgment

PROCEDURE - Application for leave to continue Local Court proceedings - Whether detriment to company and creditors - Whether preferable to lodge a proof of debt. PROCEDURE - Application for Local Court proceedings to be transferred to the Supreme Court of New South Wales - Whether basis for transfer established under s 140 Civil Procedure Act 2005 (NSW)

CORPORATIONS - Application for leave under s 471B Corporations Act 2001 (Cth) to bring proceedings against company in liquidation - Application for proceedings to set aside judgment as procured by fraud or by conduct in bad faith by plaintiffs- Court's jurisdiction to set aside judgment procured by fraud - Whether solid foundation for the allegation of fraud at the time the leave application is brought - Whether failure to present to the Court vital evidence - Whether application to set aside earlier judgment requires newly discovered facts - Whether non-disclosed matters 'probably affected the result' of the earlier proceedings - Whether serious question to be tried that the judgment should be set aside as not obtained in good faith - Whether other relevant discretionary considerations apply to grant of leave.

EVIDENCE - witnesses - cross-examination - application for review of a decision of a registrar - applicant sought further cross-examination of a witness who gave evidence before the registrar - whether further cross-examination of that witness should be allowed.