Cases and authorities

BUILDING & CONSTRUCTION - building contracts - adjudication - interlocutory injunction - whether payment into court of adjudicated amount should be ordered

REMEDIES - injunctions - interlocutory injunctions

TRUSTS - constructive trust - whether retention monies held on constructive trust by bank- whether bank trustee de son tort - implied representations BUILDING CONTRACT - breach of contract - retention

CRIMINAL LAW - appeal - conviction - appellant convicted by jury of offences against s 307.2(1) and s 11.5(1) of the Criminal Code (Cth) - whether a miscarriage of justice - whether there was fresh evidence - no fresh evidence - appeal against conviction dismissed - CRIMINAL LAW - application for leave to appeal against sentence - whether there was a failure to take into account evidence of appellant's medical condition -whether there was an error regarding the issue of parity with co-offender - whether the sentences were too severe when effect upon appellant's family is considered - all grounds rejected - leave to appeal against sentence granted - appeal dismissed

CRIMINAL LAW - appeal against sentence - aggravated break and enter with intent to steal - conspiracy - attempt - whether misdescription of offence and applicable penalty infected sentence - Muldrock principles

CRIMINAL LAW - sentence - enter dwelling with intent to commit serious indictable offence - aggravated robbery - parity principle - co-offender with more serious criminal record - co-offender on conditional liberty at time of offences

CRIMINAL LAW - application for leave to appeal from decision of trial Judge refusing to adjourn trial - Applicant and co-accused tried for murder in 2012 - co-accused convicted of murder - jury could not agree concerning Applicant - retrial of Applicant fixed for January 2013 - application for adjournment of retrial until appeal against conviction by co-accused heard and determined - Crown case against Applicant dependent upon conviction of co-accused - claim of prejudice to Applicant if retrial proceeded and Applicant convicted and co-accused later acquitted by Court of Criminal Appeal - paucity of information concerning strength of appeal grounds of co-accused - appeal process still at early stages - significant delay before any appeal to be heard - no proper basis for grant of leave to appeal - leave refused

APPEAL - appeal against sentence - pleas of guilty - break and enter - commit serious indictable offence - error in placing greater weight on Form 1 matter - offence punishable by fine.

PROCEDURE - Production of documents - Notice to Produce - Whether paragraphs adequately specify documents to be produced - Whether call for production of a class of documents rather than specifically identified document - Whether potential relevance established - Whether oppressive

CONTRACTS - interpretation - whether the construction of a new pipeline and the lining of existing water channels constituted the "implementation, maintenance and administration" of the existing irrigation scheme - whether approval obtained from the members for the works - members informally but effectively approved and ratified the subject works - whether easement over a portion of the defendant's land should be granted - grant of an easement reasonable in the circumstances

BANKRUPTCY - Property held by trustee in bankruptcy for payment of debts - Dispute as to whether the property falls within the bankrupt's estate EQUITY - Trusts and trustees -- Creation and effect - Sham trusts ESTOPPEL - Res judicata EQUITY - Trusts and trustees - Proceedings between beneficiaries and third parties - Standing of beneficiaries to bring proceedings EQUITY - Appointment and removal - Invalid appointment

PROCEDURE - discontinuance of proceedings - determination of costs - principles of proper approach to award of costs where proceedings discontinued

STATUTORY INTERPRETATION – professional negligence claim against solicitor and barrister – loss of opportunity to recover damages – settlement for $60,000 plus costs – declaration sought that costs not limited by s 338 of the Legal Profession Act 2004 – whether a claim for “personal injury damages” – whether damages “that relate to” injury to a person – declaration that costs of proceedings are regulated by s 338 COSTS – application of s 338 of the Legal Profession Act 2004 to costs of professional negligence claim – where loss of opportunity to recover damages in personal injury claim – costs regulated by s 338

COSTS - indemnity costs - abuse of process - evidence did not establish improper purpose or malice COSTS - indemnity costs - whether properly advised plaintiff should have known case had no prospects of success - test is objective COSTS - fixed costs - where no basis for concluding upon a particular gross figure and where process of reaching that assessment unlikely to be protracted or expensive COSTS - indemnity costs - third party costs PRACTICE & PROCEDURE - applications - funds paid into court - claim for payment out of court

PRIVATE INTERNATIONAL LAW - foreign judgments - validity of judgment - second application under the Foreign Judgments Act 1991 - whether plaintiff has a sufficient interest to permit registration of judgment. CORPORATIONS - constitution and replaceable rules - execution of documents - appointment of a power of attorney by a company's directors

PRACTICE and PROCEDURE - application for security for costs - whether special circumstances exist for grant of security - where hearing below was substantial in length - where appellant seeks to agitate the same legal and factual issues raised at first instance - where estimated costs of appeal will be significant - where appellant impecunious and applicant will have no prospect of enforcing a costs judgment in her favour against appellant - where appeal has little prospects of success.

CORPORATIONS - Winding up - (Cth) Corporations Act 2001 s 479(3) - Application for directions in relation to matters arising under winding up - whether the Liquidator would be justified in not engaging in further discussions relating to a proposed sale of causes of action or to do so only on certain terms

PRACTICE AND PROCEDURE - search orders - variation

SUCCESSION - family provision and maintenance - widow sole beneficiary - whether plaintiff in de facto relationship with deceased at time of death - whether factors warranting application - claim on notional estate

SUCCESSION - family provision and maintenance - claim by stepdaughter - loss of contact in recent years not such as to deny provision

APPEAL - application for leave to appeal against sentence - robbery whilst armed with dangerous weapon - whether good prospects of rehabilitation

PRACTICE AND PROCEDURE - no question of principle

APPEAL - application for leave to appeal dismissed - no issue of principle

TORT - Teacher in breach of duty of care embarking on sexual relationship with a pupil - operation of Civil Liability Act 2002 s 3B(1)(a) - duty of care of State including whether State vicariously liable. ESTOPPEL - Issue estoppel - Limitation Act 1969 ss 50A-50F - primary judge incorrectly accepting that an interlocutory decision under the Felons (Civil Proceedings) Act 1981 created an issue estoppel on the limitation issue.

CONTRACTS - building engineering and related contracts - variations - delays - extensions of time - PROCEDURE - proceedings or part thereof referred to a referee for inquiry and report - function of court upon motion for adoption of referee's report - function of appellate court upon appeal from decision on such motion - consideration of whether sufficient evidentiary basis for various decisions of judge upon motion for adoption - DAMAGES - breach of contract - delay in completion of works - appropriate manner of assessing damages for late completion - INTEREST - pre-judgment interest - applicable regime for computing interest in the particular case

EVIDENCE - admissibility - hearsay evidence - identification of accused by person unknown - evidence not admissible

CRIMINAL LAW - particular offences - offences against peace and public order - affray, riot, unlawful assembly and like offences - riot - evidence of incidents in disturbance beyond when accuseds' involvement can be established - evidence relevant to common purpose - sufficient temporal connection - probative value not outweighed by unfair prejudice

TORTS - NEGLIGENCE - professional negligence - breach of contract - claim for damages - legal practitioner retained to draft deed - whether breach of legal practitioner's duty of care - whether drafted in contravention of implied instruction - implied instruction superseded by subsequent communication - whether drafting caused loss or damage - verdict for defendants - plaintiff to pay defendant's costs

CRIMINAL LAW - co-offenders - restriction of judgment of one co-offender - other co-offenders seek leave to appeal against their sentences on the parity principle - interests of justice to access restricted judgment.

CRIMINAL LAW - sentence appeal after conviction on one count quashed - re-sentence pursuant to s 7(1) of Criminal Appeal Act 1912

CRIMINAL LAW - application for leave to appeal against sentence - aggravated break, enter and steal - co-offenders - parity/proportionality - quasi-custody - whether reduction of sentence required in anticipation of residential rehabilitation

CRIMINAL LAW - application for leave to appeal against sentence - sexual assaults in prison - sentences accumulated upon previous non-parole period - long custodial history of applicant - whether special circumstances should have been found because of accumulation

APPEAL - application for leave to appeal dismissed - no issue of principle

APPEAL - application for leave to appeal dismissed - no issue of principle

PRACTICE AND PROCEDURE - no question of principle

TORTS - negligence - duty of care - respondent customer injured on applicant's premises as result of collision with third party - third party fleeing premises after being detained by employees of applicant - no general duty owed by applicant to protect customers and the public from actions of third party - whether "special relationship" existed between customer and applicant - whether applicant's ability to control access to and presence on premises and existence of a foreseeable risk of harm of kind suffered by applicant sufficient to give rise to a duty of care - whether primary judge failed to apply ss 5B and 5D of the Civil Liability Act 2002

CONTEMPT - adjournment of contempt proceedings - whether adjournment to permit applicants to remedy evidentiary difficulties justified CONTEMPT - leave to discontinue contempt proceedings - whether leave to discontinue contempt proceedings should be granted

SUPPRESSION ORDERS - Interim -privileged material - where privilege has been waived - whether privileged material in evidence will ground a suppression order SUPPRESSION ORDERS - Interim - privileged material - where privilege has been waived - whether publication of reasons would prejudice the mind of the trial judge SUPPRESSION ORDERS - Interim - whether matters cross-examined in open court will ground a suppression order

CORPORATIONS - Winding up - Proof of debt - Whether order for payment of interest under s 100 Civil Procedure Act 2005 (NSW) applicable COSTS - Order sought for costs on ordinary basis - Whether to apply principles applicable to settlement of proceedings - Whether costs should be assessed as lump sum under s 98 Civil Procedure Act 2005 (NSW)

EVIDENCE - Expert Evidence - Uniform Civil Procedure Rules 2005, Pt 31 r 31.19 - commerciality and profitability in Land Tax Management Act 1956, s 10AA(2)(a) and s 10AA(2)(b) PROCEDURE - Disclosure before evidence - Uniform Civil Procedure Rules, Pt 21 r 21.2 - Practice Note SC Eq 11 - whether exceptional circumstances - defendant applicant - limited disclosure in plaintiff's evidence

PROCEDURE - courts and judges generally - bias - apprehended bias - application to remove magistrate from hearing proceedings in the Children's Court

CORPORATIONS - Voidable transactions - Application to set aside order previously made under Uniform Civil Procedure Rules r 36.16 varying an order to extend time under Corporations Act 2001 (Cth) s 588FF(3)(b) - Whether s 588FF(3)(b) excludes an application made under r 36.16 - Whether the time period in s 588FF(3) had expired - Whether r 36.16 is not 'picked up' by s 79 Judiciary Act

CORPORATIONS - Voidable transactions - Application for orders under Corporations Act 2001 (Cth) s 588FF - Whether transactions are unfair preferences - Whether transactions are uncommercial transactions - Whether transactions are voidable as insolvent transactions - Whether defence under s 588FG(1)(a) Corporations Act 2001 (Cth) is applicable.

APPEAL - appeal from Local Court -leave under section 53(3)(b) of the Crimes (Appeal and Review) Act 2001 - criminal charges – application for separate hearing of two charges - jurisdiction - failure to give adequate reasons for decision - tendency - coincidence - separate trial – leave to appeal granted - appeal dismissed EVIDENCE - tendency and coincidence

CRIMINAL LAW - sentence - recklessly causing grievous bodily harm and murder - Offender (18 years' old) seriously assaults 15-year old former girlfriend including kicking and stomping on victim - Offender charged with offence four days later and held in custody pending appearance before Local Court - Offender attacks 69-year old fellow prisoner in courthouse cell - kicking and stomping causing fatal injuries - objective gravity of offences - relevance of youth to sentence - Offender's turbulent family background - assessment of psychiatric evidence concerning Offender - assessment or risk of reoffending and prospects of rehabilitation - relevance on sentence of fact that prisoner murdered in custody in courthouse cell - specific and general deterrence - partial accumulation of sentences

REAL PROPERTY - defendant's property used as security to refinance existing loans - existing loans were used by defendants' daughter - allegation that daughter defrauded parents - defendants lacked education, had limited use of English - credibility of witnesses - whether defendants' solicitor made false and misleading statements under the Fair Trading Act 1987 - whether defendant's solicitor owed a duty of care to Plaintiff - negligent discharge of solicitors retainer - whether the plaintiff was vulnerable - whether duty to explain loans was exercised with reasonable care - whether defendants are entitled to compensation under Real Property Act 1900 - the use of family member as an interpreter - whether contract under Contracts Review Act 1980 was unjust or unconscionable - whether mortgage ought to be set aside - consideration of benefit to defendants

APPEAL - application for leave to appeal dismissed - no issue of principle

APPEAL - application for leave to appeal dismissed - no issue of principle

PRACTICE AND PROCEDURE - Admissions - leave to withdraw admissions - whether admissions wrongly and/or inadvertently made - balance of prejudice - whether prejudice to opponent outweighs desirability of hearing case on true legal basis