Cases and authorities

MORTGAGES - mortgage allegedly forged - whether indefeasibility extends to obligation to pay amount owing MORTGAGES - construction - construing all moneys clause - objective contemplation of the parties - whether "amount owing" includes liability to make restitution PROCEDURE - separate question - Uniform Civil Procedure Rules r 28.2 - whether determination of separate question should be ordered

CONTRACTS - breach of contract - breach of essential term, or alternatively, serious breach of a non-essential term - termination CONTRACTS - repudiation - acceptance of repudiation CONTRACTS - repudiation - where both parties partially misconstrue a term of the contract - where defendant failed to comply with demands purportedly made pursuant to the terms of the contract - no repudiation if the relevant demand was not wholly a requirement of the contract TRADE & COMMERCE - misleading or deceptive conduct - representations - no reliance ESTOPPEL - equitable estoppel - whether plaintiff estopped from resiling from assumption that all files referred to the defendant were appropriately classified - no reliance DAMAGES - damages for loss of benefit of the contract and likely renewals - no loss proved

PRACTICE AND PROCEDURE - application to amend statement of claim - power to allow amendments raising cause of action under federal statute outside limitations period - discretion. CORPORATIONS - application to amend to seek relief under s 1005(1) for breach of s 999 of the Corporations Act 2001 (Cth) outside period in s 1005(2) - whether Court has power to allow amendment under ss 64 and 65 of the Civil Procedure Act (2005) - discretion - utility of amendments - whether cause of action under s 1005 for breach of s 999 requires investor to have been misled - delay - prejudice - explanation for delay - application to amend claim for relief under s 1325(2) of the Corporations Act 2001 (Cth) - whether amendment futile because right to apply contingent on proceedings otherwise instituted under the Act - power to allow amendment to make application outside period in s 1325(4) - whether making application within period in s 1325(4) an "essence of" or jurisdictional precondition to the right to apply under s 1325(2) - whether amendment should be allowed - delay - prejudice - explanation for delay.

CRIMINAL LAW - sentence appeal - discount for plea of guilty "about 25 percent" - no need for arithmetic precision in process of intuitive synthesis - manifest excess - sentence neither unreasonable nor plainly unjust - all factors taken into account - sentence within range - appeal dismissed

CRIMINAL LAW - recklessly cause grievous bodily harm - affray - unprovoked attack in nightclub leading to physical and psychological injury - sentences of 4 years and 18 days with a non-parole period of 2 years and 9 days, and 4 years and 6 months with a non-parole period of 2 years and 3 months - whether inconsistency between findings of the sentencing Judge and the sentences imposed - whether sentences manifestly excessive

Torts - negligence - personal injury - skiing accident - school student - operator of ski resort - breach of duty of care - characterisation of risk - causation - adequacy of reasons - whether accident would have been avoided had certain steps been taken Torts - negligence - application of Civil Liability Act 2002 ss 5D, 5E - factual causation and scope of liability Torts - negligence - proof of negligence - inferences - whether findings supported by the evidence Damages - future economic loss - reduced earning capacity - likelihood of more remunerative employment - consistency with findings of fact Costs - Civil Procedure Act 2005, s 56 - whether costs order so unreasonable that no reasonable judge could have arrived at it

DUST DISEASES TRIBUNAL - jurisdiction - exclusive jurisdiction of Dust Diseases Tribunal conferred by s 11(1) Dust Diseases Tribunal Act 1989 - whether proceedings should be dismissed for want of jurisdiction - where respondent claims compensation for psychiatric illness allegedly suffered as a result of father's death from mesothelioma exposure whilst in appellants' employ - whether respondent "claiming through" deceased for damages "in respect of" his death under s 11(1)(c) Dust Diseases Tribunal Act 1989 DUST DISEASES TRIBUNAL - pendent or ancillary jurisdiction - s 11(3) and s 11(4) Dust Diseases Tribunal Act 1989 DUST DISEASES TRIBUNAL - jurisdiction - whether Mangion v Jamies Hardie & Co Pty Ltd (1990) 20 NSWLR 100 correctly decided STATUTORY INTERPRETATION - principles - construction of relational terms - relevance of amendments WORDS AND PHRASES - "claiming through" - "in respect of"

PROCEDURE - application to re-open - application refused

DE FACTO RELATIONSHIP - division of property - effect of relationship deed signed without independent legal advice - whether payment of mortgage gave defendant beneficial interest in plaintiff's property - consideration of financial and non-financial contributions

PROCEDURE: interest - whether plaintiffs' procedural delay warrants a reduction in the rate of interest under Civil Procedure Act 2005 or the time from which interest is to be calculated - costs - whether costs should follow the event or whether some other costs order should be made.

PROCEDURE - notice of motion - leave sought under section 14 of the Vexatious Proceedings Act 2008 to bring proceedings in negligence - whether plaintiff entitled to press application for leave in relation to the proposed amended statement of claim - disputed expert reports - whether s 79 of the Evidence Act 2005 applies to the disputed reports - requirements of Rule 31.36 of the Uniform Civil Procedure Rules 2005 - whether the plaintiff has a prima facie case - no prima facie case established - whether plaintiff complied with s 14(3)(c) - obligation to disclose all material facts not complied with - whether plaintiff established that proceedings were not vexatious - not established - application for leave refused - orders - costs

LEGAL PRACTITIONERS - practising certificates - show cause events - suspension of practising certificate - refusal to grant a new practising certificate - rights of review - whether appeal to Supreme Court available - claim for damages against Law Society - whether cause of action pleaded.

ADMINISTRATIVE LAW - habeas corpus - plaintiff detained in a prison - court order authorised detention in a hospital - whether habeas corpus available to plaintiff - relationship between habeas corpus and false imprisonment - Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24 and 27 MENTAL HEALTH - District Court nominated "limiting term" in respect of plaintiff - District Court ordered that plaintiff be detained in a hospital - plaintiff detained in a prison - whether person has residual liberty after nomination of limiting term - whether court has discretion to decline to make order with respect to custody of person after nominating limiting term - discussion of R v AN (No 2) [2006] NSWCCA 218; 66 NSWLR 523 - Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24 and 27 TORT - false imprisonment - plaintiff detained in a prison - court order authorised detention in a hospital - whether plaintiff had residual liberty to be vindicated by tort of false imprisonment - relationship between habeas corpus and false imprisonment - whether false imprisonment available where plaintiff detained in the wrong place - Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24 and 27

APPEAL - constructive failure to exercise jurisdiction - failure by trial judge to consider relevant, uncontested evidence - whether failure to consider material amounts to an error of law. APPEAL - failure to give proper reasons - variable nature of obligation to give reasons - minimum acceptable standard of reasons - discussion of Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. WORKERS' COMPENSATION - coal miner matter - psychological or psychiatric disorder arising out of employment - total incapacity.

TORTS - negligence - duty of care - workplace injury - employee of labour hire company lost footing on stairs when moving bulky office furniture at direction of host employer - content of duty of care - whether warning and instruction by host employer required - commonplace task - no unusual or unexpected risks - no special precautions required.

ADOPTION - registration of adoption plan pursuant to (NSW) Adoption Act s 50 - where court satisfied that adoption plan does not contravene the adoption principles - where court satisfied that the parties to the adoption understand its provisions and freely enter into it - where court satisfied that adoption plan is in the child's best interests and proper in the circumstances ADOPTION - Obiter - registration of adoption plan pursuant to (NSW) Adoption Act s 50 - inability of birth parents to seek registration of adoption plan where not parties to the adoption

ADMINISTRATIVE LAW- judicial review- subject matter, scope and purpose of legislation inform the identification of relevant considerations when not stipulated in Act PRACTICE AND PROCEDURE - costs assessment-whether assessment invalid - objection must be rationally capable of bearing on fairness and reasonableness of assessment

TORTS-Negligence-Personal Injury-Damages-Loss of Earning Capacity-Husher v Husher TORTS-Per Quod Servitium Amisit-Damages-Availability of loss of profits as measure of damages

CONTRACTS - general contractual principles - illegal and void contracts - plaintiff was assignee of two loan agreements between assignor as lender and first defendant as borrower, charging land owned by first defendant - plaintiff was the assignee of a deed of charge between assignor as lender, first defendant as borrower, and second defendant as chargee - whether loan agreements and deed of charge were unenforceable as elements of a sham arrangement intending to defraud creditors of the defendants. ESTOPPEL - estoppel by deed - in general - plaintiff was the assignee of two loan agreements and a deed of charge acknowledging the receipt of loan moneys by the first defendant from the assignor - whether the defendants were bound by any estoppel from denying receipt of the moneys. ESTOPPEL - estoppel by deed - in general - whether estoppel by deed is a subset of estoppel by convention. DEEDS - what amounts to a deed - generally - defendants' execution of two instruments was not attested by a non-party witness - section 38(1) of the Conveyancing Act 1919 (NSW) does not require each and every signature to have been attested by a non-party witness - a party who knowingly takes the benefit of a deed may be bound by it even without execution of it. DEEDS - other matters - enforceability of receipt clause - plaintiff took assignment of lender's rights under the deeds without notice of any deficiency in amounts paid to borrower compared with amounts acknowledged as having been received - whether plaintiff was entitled to a judgment in debt in the sum of the amounts acknowledged as having been received

CRIMINAL LAW - application for leave to appeal against sentence - aggravated robbery - plea of guilty - co-offender sentenced subsequently by different judge - parity

CRIMINAL LAW - application for leave to appeal against sentence - serious firearms offences, including manufacturing sub-machine guns - whether appropriate weight given to applicant's psychological condition - whether sentences manifestly excessive

CRIMINAL LAW - sentence appeal - series of firearm and drug offences - multiple offenders - error in fact finding of co-offenders - no error in not applying fact-finding error - Muldrock error identified - no lesser sentence warranted at law - sentences not manifestly excessive CRIMINAL LAW - crown appeal against sentence - whether aggregate sentence manifestly inadequate - indicative sentences not amenable to appeal as separate ground

APPEAL - interlocutory relief refused - no issue of principle

PRACTICE AND PROCEDURE - no question of principle

COSTS - no question of principle

DEFAMATION - defence of qualified privilege - common law - occasion of qualified privilege. DEFAMATION - defence of qualified privilege - relevance - sufficient connection to privileged occasion - effect of excessive language. DEFAMATION - defence of qualified privilege defeated by malice - statement made for purpose foreign to the privilege - basis for inferring an improper motive. DEFAMATION - defence of qualified privilege - response to attack. DEFAMATION - defence of qualified privilege - comment - recognisable as comment not fact - proper material for comment. DAMAGES - relationship between harm and quantum - nature of assessment by trial judge - basis for appellate intervention. LIMITATION OF ACTIONS - tort - defamation - contemporaneity of distribution.

APPEAL - only ground that further evidence available justifying new trial - exercise of discretionary power under s 75A(7) of Supreme Court Act 1970 - most of further evidence as to matters occurring before trial - importance of principle of finality - whether "special grounds" - whether appellant could have led evidence as to those matters at trial by exercise of reasonable diligence - whether probable that further evidence would have resulted in a different outcome at trial - further evidence considered separately and together not justify conclusion that outcome would have been different - interests of justice not require order for new trial on basis that a "substantial wrong or miscarriage" has been occasioned

CONTRACT - construction of a commercial contract - sale of iron ore - wrongful refusal to take delivery - Sale of Goods Act 1923 - s 52 - measure of damages DAMAGES - denomination - time for conversion from foreign currency PRACTICE AND PROCEDURE - importance of clear expression of issues at trial

SUCCESSION - application for provision for children from former marriage of deceased - estate administered in bankruptcy - provision from notional estate

Tort - personal injury - costs - interest thereon

PRACTICE & PROCEDURE - pleadings - amendment to pleadings - whether proposed amendments futile - strike out - whether proposed amendments disclose cause of action with reasonable prospects of success - whether frivolous or vexatious or an abuse of process

PROCEDURE - costs - interlocutory proceedings - matter resolved before full hearing necessary - whether summons should be dismissed - who should pay costs of proceedings and on what basis - whether defendant entitled to compensation - whether estoppel created re future proceedings

Appeal from Local Court - action for part of damage - consent judgment - right of insurer which paid other damage to sue - whether consent judgment can be set aside - UCPR 36.15 - whether consent judgment irregular or against good faith.

FAMILY LAW AND CHILD WELFARE - current proceedings under the Act on appeal to the District Court - application for urgent interlocutory relief in parens patriae jurisdiction - whether relief should be granted in circumstances

PROFESSIONAL NEGLIGENCE - legal - advice in connection with execution of will - whether failure to explain possibility of severance of joint tenancy - whether duty of care owed to deceased's children EVIDENCE - challenge to factual findings and assessment of witnesses - whether primary judge erred in failing to recognise requirement of close scrutiny of evidence of conversations with deceased person - whether primary judge erred in failing to consider absence of corroborating evidence - whether primary judge erred in assessment of documentary evidence of circumstances surrounding execution of will WILLS AND ESTATES - whether terms of will reflected instructions of testatrix - evidence of instructions

PROCEDURE - Supreme Court Procedure - New South Wales - payment of interest under s 100 of the Civil Procedure Act 2005 - costs in probate proceedings - costs when circumstances of will call for judicial enquiry - offer of compromise - costs when two proceedings raise single controversy and plaintiff successful in only one

PROCEDURE - Summary Termination - proof of debt be admitted by trustees of trust for former creditors of company - abuse of process - Uniform Civil Procedure Rules 2005 Pt 13, r 13.4(1)(c), Pt 14, r 14.28(1)(c) - time limit for lodgement of proofs - no power to extend - amended summons sought order giving trustees power to extend time under the Trustee Act 1925, s 81(1)

BANKRUPTCY - Property held by trustee in bankruptcy for payment of debts - Dispute as to whether the property falls within the bankrupt's estate EQUITY - Trust and trustees - Appointment, removal and estate of trustees - Appointor and incapacity to act as Appointor due to bankruptcy EQUITY - Beneficiaries of a discretionary trust - Standing to bring proceedings against third parties ESTOPPEL - Res Judicata - Privity ESTOPPEL - Res Judicata - Estoppel

PROCEDURE - application for summary dismissal - whether oral term precluded by entire agreement clause - whether estoppel by convention or representation

PROCEDURE - Costs - defendant's motion to strike out plaintiff's claim partially successful - issue of validity of retainer of plaintiff's solicitor stood over to trial - defendant appeals against Court's refusal to strike out the whole of the plaintiff's claim - whether costs should be reserved or paid now by one or other party - Security for Costs - whether security for costs should be ordered against the plaintiff - whether any (and the extent of any) past costs should be included in any order for security - what should be the amount of any security for costs to be paid.

PROCEDURE - costs - security for costs - plaintiff - whether jurisdictional condition has been met - security to be ordered - order made

APPEAL - appeal against Local Court decision - legal practitioners - barrister's costs agreement - cross-appeal - whether there was a contractual arrangement between the parties for the provision of legal services - construction of parties' costs agreement - costs

SUCCESSION - wills, probate and administration - construction and effect of testamentary dispositions. PROCEDURE - costs - general rule costs follow the event - costs out of a fund - construction of will - terms of will not ambiguous - parties pursued proceedings for their own personal interests - whether costs should be paid out of the estate.

LEAVE TO APPEAL - application for leave to appeal from Local Court to the Supreme Court - s 40(1), Local Court Act 2007 (NSW) - no question of mixed fact and law raised by the appeal - no denial of procedural fairness - magistrate correctly applied test for implying terms contained in Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 - magistrate did not rely on an implied term of law but correctly implied the term based on fact - magistrate did not draw an inference from facts that could not reasonably be drawn - leave refused.

ADMINISTRATIVE LAW - judicial review - application for rehearing in Consumer, Trader and Tenancy Tribunal refused - whether plaintiff denied procedural fairness - whether self-represented litigant not made sufficiently aware of kind of evidence relevant to her case - whether Tribunal failed in its obligation to ensure as far as practicable all relevant material disclosed to it

CRIMINAL LAW - appeal - conviction - maliciously inflicting grievous bodily harm with intent - Crimes Act s 33 - medical assault - whether lawful cause or excuse - whether jury misdirected as to consent -correct direction as to consent - operation of Criminal Appeal Act s 6(1) proviso - whether accused deprived of reasonable chance of acquittal CRIMINAL LAW - appeal - conviction - aggravated indecent assault - Crimes Act s 61M - whether verdict unreasonable or unsupportable on evidence - reliability of complainants testimony - relevance of delay CRIMINAL LAW - appeal - sentencing - whether manifestly inadequate - objective seriousness - mitigating factors - whether undue weight placed on subjective factors - whether structure of sentences such that total effective sentence manifestly inadequate

CRIMINAL LAW - manslaughter - extended joint criminal enterprise - agreed facts - where agreement did not extend to an agreement as to the nature of the applicant's participation - whether sentencing judge misconstrued the basis of the applicant's plea - whether sentencing judge confused joint criminal enterprise with extended joint criminal enterprise - whether sentencing judge erred in assessment of objective gravity of the offending - whether sentencing judge gave too much weight to general deterrence in light of applicant's youth - whether there was disparity in the sentence imposed on the applicant when compared with sentences imposed on co-offenders - whether sentence manifestly excessive

CRIMINAL LAW - murder charge - defence of substantial impairment of capacity by abnormality of mind - s 23A Crimes Act 1900 - no issue of principle CRIMINAL LAW - murder charge - accused admitted to killing of estranged wife's lover - whether issue of provocation should have been left to jury - issue of provocation not raised by accused at trial - s 23 Crimes Act 1900 - whether ordinary person in position of appellant might have so far lost self-control as to have formed an intent to kill CRIMINAL LAW - sentence appeal - murder - 18 year non-parole period with 6 year balance of term - leave to appeal refused

PRACTICE AND PROCEDURE - application for extension of time to file notice of appeal - importance of finality of litigation - relative advantages and disadvantages of appellate and trial courts