Cases and authorities

PROCEDURE-costs-departing from the general rule-costs against a non-party- effect of Offer of Compromise-misconduct- whether false testimony, fraudulent manufacture and destruction of documents are grounds for costs order against non-party.

PRACTICE & PROCEDURE - preliminary questions - judicial power - purpose of judicial determinations - questions based on facts assumed, but not proved or admitted - need to identify all essential facts

APPEAL - appeal from Local Court - attempt to dishonestly obtain financial advantage by deception from Tabcorp - match fixing - adequacy of reasons in dismissing the information - failure to consider elements of offence and admissibility of expert evidence - whether matter should be remitted

PROCEDURE - costs - claim under Workers Compensation Act - whether successful appellant entitled to recover full costs where major ground abandoned before hearing - allowance for costs thrown away

EVIDENCE - Witnesses - Examination in chief - Order sought under s 75(10) Supreme Court Act 1970 (NSW) that evidence given in liquidator's examination not admissible in evidence - Whether misdirection on examinee's entitlement to claim a privilege against self-incrimination under s 597(12A) Corporations Act 2001 (Cth)

EQUITY - guardianship - application to set aside orders of the Guardianship Tribunal - requirement for leave to appeal on a question of fact - consideration of views of persons under s 14 of the Guardianship Act 1987 - substitution of the applicant for a guardianship - whether a person should be appointed guardian in preference to the Public Guardian under s 15 of the Guardianship Act 1987 PROCEDURE - Supreme Court procedure - New South Wales - referral of litigant to registrar for pro bono assistance under r 7.36 of the Uniform Civil Procedure Rules 2005

WILLS, PROBATE AND ADMINISTRATION - probate - application for the revocation of the grant of probate - whether constructive trust arose from testator's representations - whether claim for revocation of probate barred by reason of delay - whether testator lacked testamentary capacity - whether will procured by undue influence - whether will executed in suspicious circumstances - whether testator knew and approved contents of will - whether executor liable to reimburse distributed estate after revocation of probate - whether executor protected by notice given under Wills, Probate and Administration Act, s 92(1) - Wills, Probate and Administration Act 1898, s 40D(2) - good faith

REAL PROPERTY - mortgage - mortgagee sale of plaintiff's property - plaintiff denied signing mortgage and related documentation - turns on facts - no question of general principle

DEEDS - limitation period for causes of action under a deed. DEEDS - whether the date is essential to the validity of a deed. DEEDS - whether the deed entered into attracts stamp duty - admissibility of unstamped document in court proceedings. DEEDS - whether the defendant should be granted relief of his obligations under the Contracts Review Act 1980, the equitable doctrine of unconscionability or non est factum.

TORT - negligence - claim for economic loss by property developer against Local Council - whether duty of care owed

WILLS, PROBATE AND ADMINISTRATION - validity of informal testamentary notes under Succession Act 2006 - whether deceased intended informal document to form part of a will - whether party disentitled from taking a grant of letters of administration - application of Briginshaw standard of proof to allegation of destruction of a will

Claim by bank for judgment on a guarantee. No issue of principle.

TAXES AND DUTIES - Land Tax - Penrith Rugby League Club (Panthers) transferred its lands to two purchasers, the former company in which it held all the shares, the latter the trustee of a unit trust - whether the land was owned by or in trust for any person and used or occupied solely as a site for a building owned and solely occupied by a club not carried on for pecuniary profit within s 10(1)(g)(iii) of the Land Tax Management Act 1956 - whether the land was owned by or in trust for any club and used primarily and principally for the purposes of any game or sport and not for the pecuniary profit of members of the club within s 10(1)(h) of the Act - agreements provided Panthers had full economic benefit of the land transferred - lands leased back to Panthers by new owners - whether Panthers entitled in equity to the lands for any estate of freehold in possession within par (a)(i) of the definition of "owner" in the Act - whether Panthers entitled to receive the rents and profits of the lands if sublet by it within par (a)(ii) of the definition

GUARANTEE AND INDEMNITY - Actions against surety - damages - whether limited to amount of bond for three month's rent - whether calculated on basis no GST on court awards - whether entitled to diminution in value of land on sale plus loss of rent to end of lease - damages for breach of agreement to remove a guarantor - amount paid to settle action on guarantee less discount for possibility that might not have been removed

TAXES AND DUTIES - Land Tax - land used for primary production - whether use had a significant and substantial commercial purpose or character within s 10AA(2)(a) of the Land Tax Management Act 1956

ASSOCIATIONS AND CLUBS - Expulsion, Suspension and Disqualification - council of plaintiff expelled defendant from membership - whether procedure for expulsion from membership of council should have been used

TAXES AND DUTIES - Stamp Duties - mortgage duty - charge stamped at $5 on execution as securing no amount - variation deed extending time for payment - whether an advice as a forbearance under s 206(a)(iii) of the Duties Act 1997 - whether charge required to be upstamped under s 208(2) - whether capitalised interest included in amount secured

TAXES AND DUTIES - Stamp Duties - call options with power in optionee to nominate a substitute - whether an agreement for sale or transfer within s 8(1)(b)(i) of the Duties Act 1997 - nomination effected by giving a call option nomination notice - whether a transfer of dutiable property within s 8(1)(a) of the Act

INSURANCE - Accident and Sickness Insurance - claims ultimately accepted and paid - interest - Insurance Contracts Act 1984 (Cth), s 57 - injuries did not stabilise for over 2 years from accident - trustee of superannuation fund overruled early recommendation of insurer that plaintiff totally and permanently incapacitated

[WORKERS COMPENSATION] - Where worker employed for short term contract to provide services for work at smelter in Tasmania - where worker lived in Western Australia - where employer's registered office in New South Wales providing employment in various States - no other employment relationship between employer and worker - worker injured during employment at smelter. [INSURANCE] - Where defendant insurer insured plaintiff in respect of workers compensation liability under Workers Rehabilitation and Compensation Act 1988 (Tas) - where insurer denied indemnity on basis that worker's employment was not "connected with" the State of Tasmania - whether worker's employment connected with Tasmania

PRACTICE AND PROCEDURE - civil - interlocutory application - security for costs sought against cross-claimant - threshold question satisfied - whether Court should exercise discretion to order security - whether cross-claim 'natural response' to claim - personal undertaking to be liable for costs - quantum

JURISDICTION - immunity - Foreign States Immunities Act 1985 (Cth) s 10 - whether first defendant has submitted to jurisdiction by agreement - requirement for agreement to be express or clearly implied - whether Convention Against Torture Art 14 clearly implies agreement to submit to jurisdiction

WORKERS COMPENSATION - application for leave to bring proceedings for damages out of time - whether fair and just to grant leave - whether employer precluded from recovering contribution from other tortfeasors - whether prejudice arising due to claims by employer for indemnity under s 151Z(1)(d) being statute-barred

TORT - injurious falsehood - where no actual damage alleged due to early grant of injunction to restrain publication - whether pleading discloses any commercial or proprietary interest of the plaintiff to be protected by the relief sought - whether claim in substance one for defamation rather than injurious falsehood

DEFAMATION - defences - defence of contextual truth - objections to defendant's contextual imputations

DEFAMATION - defences - defence of contextual truth - requirement that contextual imputations arise in addition to plaintiff's imputations

DEFAMATION - defences - contextual truth - requirement that contextual imputation be conveyed in addition to plaintiff's imputations

COSTS - where plaintiff successful in personal injuries claim against both employer and third party - where costs recoverable against employer capped by legislation - whether defendants should be ordered to pay costs jointly and severally

CORPORATIONS - valuation of shareholding - where court has ordered purchase of shareholding pursuant to Corporations Act s 233(1)(d)

CORPORATIONS - External administration - winding up in insolvency - creditor's statutory demand - setting aside - whether application to set aside served within time -where demand based on judgment arising from registration of adjudication certificate under Building and Construction Industry Security of Payment Act - whether offsetting claim

LIMITATION OF ACTIONS - Equitable claims - breach of trust - whether claim in respect of a fraudulent breach of trust - whether claim for breach of directors' duties is a claim in respect of a breach of trust - application in equity of statutory limitation period by analogy - whether claim for equitable compensation including profits for breach of general law directors' duties sufficiently analogous to claim for statutory compensation under Corporations Act, s 1317H that limitation period in s 1317K should apply - whether inequitable in particular circumstances of case to apply limitation period by analogy CORPORATIONS - Limitation of actions - whether running of limitation period against deregistered corporation can be suspended upon reinstatement under Corporations Act, s 601AH(3) - whether claim for equitable compensation including profits for breach of general law directors' duties sufficiently analogous to claim for statutory compensation under Corporations Act, s 1317H that limitation period in s 1317K should apply - whether inequitable in particular circumstances of case to apply limitation period by analogy

CONTRACT - agreements - termination cancellation. TRADE MARKS - registered trade marks - whether consent of registered owner was obtained. PRACTICE & PROCEDURE - application for declaratory relief - circumstances in which granting declaratory relief appropriate - declaration made.

PRACTICE AND PROCEDURE - judgments and orders - freezing order - whether arguable case - REAL PROPERTY - caveats - application for extension - whether equitable invest identified

PRACTICE AND PROCEDURE - judgments and orders - application for stay of execution of writ of possession - hardship.

PRACTICE & PROCEDURE - judgments and orders - application for stay of execution of writ of possession - hardship

REAL PROPERTY - caveats - removal of caveat - PRACTICE AND PROCEDURE - costs - lump sum costs order.

Criminal Law - application for temporary stay of proceedings - missing Dutch intercept material - whether "on the cards" material would assist the accused - whether risk that the trial would not be fair.

Procedure - costs - offer of compromise - application for indemnity costs - whether rejection of offer unreasonable

REAL PROPERTY - sale of land - contract - whether vendor ready, willing and able to complete REAL PROPERTY - caveats - balance of convenience

CRIMINAL LAW - Criminal Assets Recovery Act - Restraining orders - Necessity for reasons - order should be made.

PRACTICE AND PROCEDURE - non-compliance with orders of the court - delay in filing submissions - indemnity costs orders only in the case of contumelious conduct - application for indemnity costs denied - party and party costs awarded - costs assessor may take delay and its consequences into account in their assessment

PROCEDURE - entry of judgments and orders - application to set aside or vary orders - UCPR r 36.17 - no question of principle

Courts - Jurisdiction - Parens Patriae - Medical Treatment of Terminally Ill child - Matters to be considered by the Court in exercise of its jurisdiction - Best interests of the Child

CRIMINAL LAW - sentencing - shooting with intent to murder - mental illness - effect of standard non-parole period on sentencing - balancing of factors when sentencing mentally ill offender - sentence manifestly excessive

MOTOR ACCIDENT COMPENSATION - leave to commence proceedings outside three year period - respondent delayed over two years in notifying motor accident claim - whether primary judge erred in finding that respondent had provided a "satisfactory explanation" for delay - respondent made a false claim under student health insurance and driver, a friend, agreed to pay balance of outstanding expenses - driver did not honour agreement and respondent notified a claim - reasonable person in respondent's position would not have acted as she did and delayed notifying claim - primary judge erred in concluding otherwise - Motor Accidents Compensation Act 1999, s 109(3)(a).

REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - preconditions to imposition - whether easement can be imposed subject to undertaking to extinguish it if certain future events do not occur - obligation to assess preconditions in s 88K in light of circumstances existing at time of hearing. REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - power to order conditional easements - obligation to impose conditions as term of order imposing easement. REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - preconditions to imposition - reasonable necessity - whether obligation to consider effect on servient tenement. REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - preconditions to imposition - reasonable necessity - whether easement reasonably necessary for effective use and development of land - obligation to consider whether proposed development appropriate and economically rational - obligation to consider alternative methods of achieving development. REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - preconditions to imposition - reasonable necessity - effect on servient tenement - whether servient tenement "sterilised" by imposition. REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - preconditions to imposition - compensation - whether servient tenement able to be adequately compensated - whether possible to assess compensation where easement would create uncertainty as to development of servient tenement. REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - compensation - appropriate measure of compensation - diminution in land value - whether sufficient evidence to calculate compensation payable.

LIMITATION - solicitor negligent in failing to highlight lapsed development consent prior to purchase - whether negligence claim statute barred - time runs from first instance of actual loss - whether loss caused at time of entering into agreement to purchase or upon local council's discovery of lapsed consent

PROCEDURE - interlocutory issues - suppression orders - order granted to extent "necessary to protect the safety of any person" - Court Suppression and Non-publication Orders Act 2010 (NSW), s 7

REAL PROPERTY - claim by receiver for possession - general principles -occupation of acquired land - licences - whether a general loan agreement constitutes a licence to occupy premises. CORPORATIONS - receivers, controllers and managers - duties and liabilities - powers - appointment

INJUNCTIONS - interlocutory injunction restraining plaintiff from disbursing funds - whether defendant established seriously arguable case for final relief - balance of convenience