Cases and authorities

REAL PROPERTY - Encroachment on neighbouring property - claims for trespass - order for conveyance of narrow strip of land along boundary - damages and compensation - Whether Court erred in orders consequent on judgment of 2009 - construction of orders of Court of June 2009 - whether appellants entitled to compensation beyond the minimum amount by reference to matters set out in EBA, s 4(2)

EVIDENCE - admissibility - probative value - unfair prejudice - whether reliability or weight relevant to determination of probative value - potential contamination of evidence - R v Shamouil and Dupas v The Queen considered - insufficient evidence of contamination - no ground to believe effective cross-examination not possible - evidence admissible

PRACTICE - Subpoena to produce documents - application to have subpoenas set aside - where no question of oppression - test for relevance of documents sought

SUCCESSION - FAMILY PROVISION - The Plaintiff, the sister of the deceased, seeks a family provision order out of the estate of the deceased under the Succession Act 2006 - The Defendants, were friends and carers of the deceased, the executors to whom Probate granted and sole beneficiaries named in Will - No dispute as to Plaintiff's eligibility - Dispute 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 - Part of the deceased's estate distributed by Defendants - Breach of inter partes undertaking by Defendants

EQUITY - corporations - application for judicial advice under s 63 of the Trustee Act 1925 - responsible entity of managed investment scheme - ability of responsible entity to redeem members' units - prohibition on acquisition of relevant interests in voting shares under s 606 of the Corporations Act 2001 (Cth) - definition of "relevant interest" under s 608 of the Corporations Act - time of acquisition of a relevant interest by responsible entity - effect of ASX Listing Rule 10.1 on responsible entity's ability to redeem members' units - s 604GA(4) of the Corporations Act - meaning of a "right to withdraw" - meaning of "adequate procedures" for dealing with redemption requests

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

BANKING - commercial loan facility - default - claim for possession - alleged breach of duty by bank to customer

CORPORATIONS - winding up - application for leave to commence proceedings against company in liquidation - proprietary claim by plaintiff - application for extension of caveat - turns on facts

CRIMINAL LAW - sentence appeal - two charges of importing commercial quantity of pseudoephedrine - sentences accumulated upon sentences already being served for previous offences of a similar kind - totality - whether aggregate non-parole period excessive

DISMISSAL OF SUMMONS FOR LEAVE TO APPEAL - failure to serve in compliance with UCPR 2005, r 11.2 - no order for substituted service. DISMISSAL OF SUMMONS FOR LEAVE TO APPEAL - refusal to stand over summons - insufficient prospects of success - vesting of proceedings of an undischarged bankrupt in bankruptcy trustee - absence of evidence of reasons for delay.

CIVIL PROCEDURE - application for orders under Vexatious Proceedings Act granted - numerous proceedings in NSW and ACT

CORPORATIONS - external administration - winding up - (CTH) Corporations Act 2001, s 588FDA - whether payments made to associated company was a loan - whether payments were contributions to the purchase price of the properties - whether payments made to associated company were unreasonable director-related transactions

BUILDING AND CONSTRUCTION - entitlement to progress claim - subsequent inconsistent progress certificate

PROCEDURE - dismissal sought by defendants - unrepresented plaintiff seeking special timetable in order to obtain medical evidence - lengthy history of adjournments - plaintiff on notice since 2010 that statement of claim defective - leave to file amended statement of claim denied - statement of claim dismissed

GUARANTEE AND INDEMNITY - enforcement - bank in possession - failure of bank to exercise power of sale since taking possession - whether conduct of bank disentitles it from enforcing guarantee - whether bank engaged in unconscionable conduct

CORPORATIONS - Judgment- where directors liable for equitable compensation - where transfer of assets bought about in breach of directors' fiduciary obligations - where defendant company holds assets on trust for plaintiff - whether relief should be given against directors - amount of equitable compensation

CORPORATIONS - External administration - winding up in insolvency - creditor's statutory demand - setting aside - whether application to set aside served within time CORPORATIONS - External administration - winding up in insolvency - creditor's statutory demand - setting aside on some other ground - where judgment debt has been stayed

CORPORATIONS - Management and administration - Officers of corporation - Order sought under s 1324 of the Corporations Act 2001 (Cth) that director be restrained from appointing an administrator or voluntary administrator - Whether company insolvent or likely to become insolvent - Whether appointment of administrator would be for improper purpose - Whether basis for interim relief is established.

[PROBATE] - where Caveat lodged - where prima facie evidence of lack of capacity in testator

PROCEDURE - Supreme Court procedure - bank applies for summary judgment and principal claim against guarantors - whether summary judgment should be granted - bank seeks to strike out cross claim for want of prosecution

CRIMINAL LAW - indictment charging three accused persons with several offences - application by one accused to sever certain counts - s.29 Criminal Procedure Act 1986 - whether offences arise out of the same set of circumstances or form, or are part of, a series of offences of the same or a similar character - interests of justice - severance application refused

LIMITATION OF ACTIONS - plaintiff injured on fire stairs during drill - identity of occupier - date on which cause of action is discoverable - interpretation of s 50D(1)(b) of the Limitation Act

CORPORATIONS - Interlocutory relief - Whether real prospect of success - Whether balance of convenience favours the grant of an interlocutory injunction

CRIMINAL LAW - sentence appeal - break, enter and steal - multiple offences - Form 1 offences notified - gambling debt, possible physical threat to family for repayment - effect of duress - totality - aggregate sentence manifestly excessive - exercise of discretion - not outside range - appeal dismissed

CRIMINAL LAW - appeal against sentences - sexual intercourse with a child under the age of 10 years (three counts) - whether standard non-parole period erroneously applied - whether sentences manifestly excessive

CRIMINAL LAW - appeal - Drug Proceeds Order - s 92(4) Confiscation of Proceeds of Crime Act 1989 - whether s 29 obliges the court to make an order - whether sufficient information available to determine the benefit derived

CRIMINAL LAW - application for leave to appeal against conviction - murder - direction on standard of proof - direction regarding rejected plea to manslaughter - direction on intoxication and intent - direction on provocation - direction on substantial impairment CRIMINAL LAW - application for leave to appeal against sentence - whether offence was mid range - effect of intoxication and culpability on sentence - approach to standard non-parole period after Muldrock v The Queen [2011] HCA 39; 224 CLR 120 - applicability of special circumstances.

CRIMINAL LAW - appeal against conviction - murder - whether summing-up involved a substantial miscarriage of justice

CRIMINAL LAW - leave to appeal against sentence - error in approach to aggravating features contained in s 21A Crimes (Sentencing Procedure) Act 1999 - error in approach to s 21A(2)(ea) - error in approach to s 21A(2)(m) CRIMINAL LAW - leave to appeal against sentence - old child sex offences - whether pattern of sentencing existed - no failure to reflect past sentence length in individual sentences - individual sentences not manifestly excessive - wholly cumulative sentences not in accordance with past sentencing practices - re-sentence in accordance with past practices

CRIMINAL LAW - grant of stay - Australian Crime Commission (ACC) examination transcripts disseminated to Commonwealth Director of Public Prosecutions (CDPP) - scope of s 25A of the Australian Crime Commission Act 2002 (Cth) - whether dissemination might prejudice a fair trial. CRIMINAL LAW - grant of stay - ACC examination transcripts disseminated to CDPP - whether dissemination of transcripts resulted in a fundamental defect in the trial process - exercise of discretion - whether a permanent stay justified. CRIMINAL LAW - grant of stay - ACC examination transcripts disseminated to CDPP - whether dissemination resulted in a fundamental defect in the trial process - inference as to use of transcripts by CDPP - whether material justified inference.

ESTOPPEL - proprietary estoppel - father's promises to give property to son - whether son changed his position in reliance on promises

PROCEDURE - Supreme Court procedure - judgments and orders - time for service of Amended Statement of Claim extended in May 2012 pursuant to UCPR, rules 1.12 and 6.2(4)(a) - amended pleading served - defendants move for discharge of these orders extending time - whether orders extending time should now be discharged. LIMITATION OF ACTIONS - amendment to unserved Statement of Claim - addition of causes of action for unconscionable conduct under Trade Practices Act 1974, s 51AC - whether additional causes of action are statute barred - defendants move to strike out amendments - whether amendment should be allowed.

BAIL - conviction for murder - appeal pending in Court of Criminal Appeal - s30AA Bail Act 1978 - bail refused.

ADMINISTRATIVE LAW - practice and procedure - summary dismissal - no reasonable cause of action - proceedings dismissed

EMPLOYMENT LAW - contract of employment - minimum service requirement - not fixed-term contract - factual dispute as to breach of employment contract - employee breach found - particular termination provision followed - wages, leave and shares not paid - employer breach in non-payment - damages awarded

ADMINISTRATIVE LAW - claims assessment under Motor Accidents Compensation Act - decision not to exempt claim from assessment process - allegation of fraud or forgery - wrong question asked - relevant consideration not considered - jurisdictional error - error of law on the face of the record - orders granted

SERIOUS SEX OFFENDER - extended supervision order - variation to terms - no issue of principle

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

ADMINISTRATIVE LAW - Housing Act - decision to cancel housing rebate - requirements of investigation under s 58 - conduct of s 58 investigation a jurisdictional fact in decision to cancel rebate - requirement to consider and investigate weekly income - jurisdictional precondition not satisfied - orders granted

PRACTICE & PROCEDURE - transfer of proceedings from District Court to Supreme Court - s 140(1) Civil Procedure Act 2005 - whether necessary for all matters arising out of related facts to be heard at one time - whether transfer indicated in order to satisfy the s 56 overriding purpose

JUDGMENTS - setting aside - hearing of Motion for summary judgment - Defendants aware of hearing date - hearing in the absence of Defendants - reasonably arguable defence on the merits - whether judgment should be set aside.

SUCCESSION - family provision and maintenance - eligible person criteria - de facto relationship - whether family orders should be made - beneficiaries joined as parties in proceedings.

PRACTICE AND PROCEDURE - no question of principle

TORTS - negligence - professional persons - solicitors - independent legal advice regarding financier's loan and security documents - whether penumbral duty of care beyond retainer - whether failure to advise of reality of financial risks was a breach of duty - whether failure to advise client to seek independent financial advice was a breach of duty - causation - whether breach of duty caused loss - whether client would have sought independent financial advice if advised to do so CONTRACTS - Contract Review Act s 7 - whether loan agreements unjust - whether loan introducer an agent of the lender -whether breach of lender's credit manual - significance of asset lending - relevance of requirement for borrower to obtain independent legal advice

CORPORATIONS - Winding up - Winding up in insolvency - Application for an order that the defendant be wound up under s 459P Corporations Act 2001 (Cth) - Application for winding up by a creditor substituted under s 465B - Whether statutory presumption of insolvency applies.

CORPORATIONS - Winding up - Winding up in insolvency - Application for an order adjourning winding up application under s 467(1)(c) Corporations Act 2001 (Cth) - Whether adjournment would deliver better prospects to creditors - Whether likelihood that applicant could be restored to solvency during adjournment.

PROCEDURE - Supreme Court Procedure - New South Wales - application to set aside orders made in defendant's absence - sufficiency of explanation for defendant's absence - exercise of discretion pursuant to r 36.16 of the UCPR - defendant's prospects of success

PROCEDURE - application to have proceedings transferred to Supreme Court of Queensland - proceeds jurisdiction - whether in the interests of justice

MORTGAGES - possession - application to restrain sale

[EQUITY] - Where mortgage and caveat secured solicitor's costs - where caveat removed and fund set aside in place of security - where solicitor suing for costs - where parties at issue on solicitor's entitlement to costs - application for payment out of funds set aside.