Cases and authorities

CRIMINAL LAW - appeal against sentence - drugs offences - whether sentencing judge failed to pay adequate regard to subjective circumstances - whether repetitive conduct in one count taken into account in aggravation of another count - whether sentence manifestly excessive

CRIMINAL LAW - conviction appeal - five counts of "break and enter premises and commit a serious indictable offence" - adequacy of "Black direction" - whether inappropriate pressure exerted on jury - whether Crown negatived the defence of duress - whether trial miscarried by reason of inappropriate remarks by Crown prosecutor - direction to jury appropriate in the circumstances - sufficient evidence to negative duress - minor errors by Crown prosecutor in address which did not "warrant interference" with the appellant's convictions - appeal dismissed.

CRIMINAL LAW - appeal pursuant to 5F(3A) of the Criminal Appeal Act 1912 - whether error in excluding tendency evidence or context evidence - whether tendency notice defective - appeal allowed by consent - reasons later published

CRIMINAL LAW - appeal - conviction - post offence conduct - consciousness of guilt

CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - offences of dealing with money or property the proceeds of crime - non-parole period in respect of federal offences - whether matters on which the applicant was not convicted were taken into account in sentencing - whether the sentencing judge made findings that were not open to him - matters taken into account in sentencing

CRIMINAL LAW - appeal against conviction and sentence - in judge-alone trial appellant convicted of 21 charges where the appellant raised at trial a defence of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 - trial judge determined that defence of mental illness not established - whether trial judge failed to consider expert evidence - failure to take into account expert evidence called for the appellant on the issue as to the appellant's capacity to appreciate the wrongfulness of her actions - acceptance of expert evidence in Crown case without an analysis and evaluation of conflicting medical opinion evidence adduced in the defence case - obligation on the trial judge to analyse all relevant expert opinion evidence and identify the basis for preferring one expert witness over another - obligation of trial judge to provide reasons in preferring one expert witness over another - whether trial judge erred in not finding that the appellant was suffering from a mental illness at the time of the commission of the offences which gave rise to a defence of mental illness - error established in the trial judge's omission to evaluate the totality of the relevant medical evidence and in failure to take into account and analyse conflicting expert evidence and to identify the basis for accepting the Crown's expert witness and not accept the evidence called in the defence case - proceedings remitted to District Court for retrial.

TORTS - negligence - transmission of disease to partner by patient of medical centre - successful action by partner against doctors at medical centre - cross-claims in contract and tort by doctors against operator of medical centre - content of duty of care owed by medical centre to partner of patient - nature of breach of duty by doctors - causation - failure by medical centre to maintain accurate patient records - causation - apportionment of responsibility between doctors and medical centre - contract - service agreements between medical centre and doctors - meaning of indemnity clauses in service agreements - whether breach of service agreements by medical centre and doctors - consequences of breach - circuity of action - whether principle of equitable contribution applies - measure of damages recoverable by doctors.

COSTS - offer of compromise before trial - whether that offer entitled offeror to indemnity costs of appeal - application dismissed.

PROCEDURE - entry of judgments and orders - application to set aside or vary orders - UCPR r 36.17.

PROFESSIONAL NEGLIGENCE - insurance broker - retainer - implied term - duty of care - whether breach of retainer and duty of care - causation - whether insurer could have denied liability to indemnify - whether decision of ACT Supreme Court correct - mitigation - whether plaintiff should have joined in action against engineer INSURANCE - Industrial Special Risks policy - accidental damage sub-limit - proper construction of policy

SUCCESSION - family provision and maintenance - former wife of deceased seeking provision - property settlement granted after divorce - applicant a beneficiary of mother's estate - no factors warranting making of application established

GUARDIANSHIP - defendant incapable of managing her affairs - application by father for appointment of private company as financial manager - private company not a trustee company - whether company requires a financial services licence - whether private manager should receive remuneration - whether private manager in position of conflict of interest and duty due to personal interest in investing defendant's assets in certain financial products - noted that relationship between protected person and manager under the scheme of the NSW Trustee and Guardian Act is that of principal and agent, not trustee and beneficiary, so legal title in protected person's property should not vest in manager - no orders made unless and until private manager obtains financial services licence - NSW Trustee and Guardian appointed interim receiver and manager

GUARDIANSHIP - application that trustee company be appointed as financial manager of defendant - trustee company proposes to outsource investment of defendant's assets to another company - precise arrangement needs to be clarified before orders appointing manager can be made GUARDIANSHIP - applications to appoint trustee companies as financial managers of protected persons - usual practice should be for proposed manager and any proposed investment adviser for protected person to depose that their only reward will be their remuneration disclosed to the court and to provide an undertaking that any reward paid by a third party for investing the protected person's assets in a financial product will be accounted for to the protected person's estate

CRIMINAL LAW - sentence - affray - plea of guilty - parity - offender may only be sentenced for conduct giving rise to affray not conduct resulting in other offence - objective gravity of offence assessed as being particularly serious - juvenile offender

CORPORATIONS - securities - whether advances secured by a charge - no question of principle

CRIMINAL LAW - withdrawal of pleas of guilty - rejected

CRIMINAL LAW - sentence - murder - convicted after trial - killing occurred during drug robbery - premeditation not established - intention to kill - disposal of body of deceased

BUILDING AND CONSTRUCTION - adjudication - whether determination void - jurisdiction - meaning of "subsequent named month" - bona fide attempt determine matter - procedural fairness

CORPORATIONS - Winding up - Application to wind up company on just and equitable ground - Breakdown of relations and loss of confidence between company's members - Whether quasi-partnership - Relevance of solvency - Whether company should be wound up in circumstances that it is solvent.

CRIMINAL PROCEDURE – fitness to stand trial – cognitive capacity of accused to understand evidence at trial and nature and course of criminal proceedings – conflicting psychological evidence – accused found fit to stand trial on balance of probabilities

COSTS - Costs assessment - Misdescription of applicant for costs assessment (the plaintiff in the present proceedings) - Costs Assessor found no jurisdiction to amend original application - subsequent application out of time - Review Panel found no error on part of Costs Assessor - Supreme Court found Review Panel fell into error in determining matter in favour of costs respondent - plaintiff successful in obtaining limited order for itemised bill per s 728 of the Legal Profession Act 2005 - whether plaintiff entitled to costs order against defendant - plaintiff not entitled to indemnity costs but entitled to 85% of costs on the ordinary basis because he was largely successful in obtaining itemised bill of costs.

CRIMINAL LAW - sentence - murder - extended joint criminal enterprise - no issue of principle - arson - sentence imposed

CRIMINAL LAW - offence of threatening judicial officer - threats of death - objective seriousness of the offending - where offender serving sentence of imprisonment in a different state to his family - need for general and specific deterrence - whether requirement for general deterrence reduced on account of the offender's mental state - full time custodial sentence the only alternative having regard to the nature of the offending - whether special circumstances

COSTS - costs orders against legal practitioners pursuant to s 99 of Civil Procedure Act 2005 - no such order made in the circumstances because arguments advanced by solicitor were not obviously untenable - solicitor's conduct of Children's Court proceedings not relevant to wasted costs order in present proceedings

EVIDENCE - admissibility - whether evidence relevant - whether evidence opinion evidence - whether evidence should be excluded under s135 Evidence Act 1995 (NSW) - whether use that may be made of evidence should be limited under s136

PROCEDURE - costs EVIDENCE - documents seized by search warrant - legal professional privilege - parties agree no privilege in time sheets and ledger - privilege in file notes established

CONTRACT - employment contract - farm manager terminated - recovery of unpaid wages and superannuation - whether implied term requiring reasonable notice - whether conduct warranted summary dismissal - whether entitled to bonus - contract for tractor hire - whether oral agreement - whether term deferring payment until farm's cash flow allowed void for uncertainty - whether implied term that entitlement to payment for tractor hire arises on termination of employment contract - whether unauthorised self-dealing - whether breach of obligation of good faith and fidelity - whether breach of fiduciary duty - findings of credit adverse to defendant.

CRIMINAL LAW - sentence - manslaughter - guilty plea - objective gravity assessed as considerable - moral culpability diminished by offender's psychiatric state and distorted perception of threat posed by victim - reasonable prospects of rehabilitation - some evidence of contrition - offender an unsuitable vehicle for general deterrence - limited criminal history of summary nature - discount for guilty plea

PRACTICE AND PROCEDURE - pleadings - amendment - mistake - further amendment to reinstate claim allowed PRACTICE AND PROCEDURE - res judicata - amendment to withdraw claim - consent order - no final determination of cause of action - no res judicata

[INSURANCE] - whether plaintiff obliged to maintain an insurance policy that covered defendant for damage to property - whether defence of circuity of action available by breach of obligation to insure - waiver of subrogation clause - whether waiver contained in the policy affords an answer to the subrogated claim brought by the plaintiff - whether waiver of subrogation clause is limited to claims in respect of losses against which co-insured is entitled to be indemnified - contribution - whether double insurance.

Contract - Building and Construction Industry (Security of Payment) Act 1999 - entitlement of non-contractual party to recover moneys paid pursuant to a judgment filed under s 25 of the Act.

COSTS - indemnity costs - separate question - knowingly false allegations of fact relating to severable claim - prolonging litigation - sanction to mark improper conduct COSTS - payable forthwith - separate question - departure from rule justified - just, quick and cheap resolution of real issues

CRIMINAL LAW - sentence - dishonestly obtaining a gain from the Commonwealth - offender currently serving a non-parole period in respect of a federal sentence - delay - principle of totality

TRUSTS AND TRUSTEES - oral trust of land - principles for determining existence of trust - whole of circumstances - subsequent conduct GIFT - conditional - equitable personal obligation CONTRACT - family relationship - no contractual intention

CRIMINAL LAW - sentence - murder - use of weapon - wounding with intent to kill -disposal of deceased's body - no remorse - good prospects of rehabilitation

TRUSTS AND ESTATES - death of trustee - powers of trustee's executor - office of trustee does not devolve on executor - exception in the case of inactive trusts - executor has power to transfer trust property to beneficiary absolutely entitled

SUCCESSION - family provision and maintenance - wife of 48 years discretionary beneficiary under testamentary trust - whether to award pecuniary legacy

CRIMINAL LAW - sentence - conspiracy to possess commercial quantity of border controlled drug (cocaine) - co-offenders sentenced by different judges - co-offender sentenced first in time - applicant's sentencing judge not informed of co-offender's sentence - whether applicant has legitimate sense of grievance - parity principle - different roles of offenders - different quantities of cocaine - strong desirability that related offenders be sentenced by same judge - necessity for remarks on sentence to be provided if to be sentenced by different judge - objective foundation demonstrated for applicant's sense of grievance - lesser sentence imposed

CRIMINAL LAW - sentence - indecent assault of young children - produce child pornography - offender concealed camera to film young girls - multiple offences -special circumstances - judge increased additional term rather than reducing non-parole period to preserve statutory ratio

FAMILY PROVISION AND MAINTENANCE - property in respect of which order may be made - notional estate - "prescribed transaction" - property of deceased held on discretionary trusts for younger son and his progeny - deceased empowered to direct trustee to alter list of eligible beneficiaries, distribute property and exercise other discretionary powers - older son made application for provision on basis that failure before the death of the deceased to enlarge the eligible beneficiaries to include deceased or himself or to distribute property to deceased or him was a "prescribed transaction" under the Family Provision Act - application granted - shares held on trust to be designated as notional estate sufficient to satisfy provision and costs FAMILY PROVISION AND MAINTENANCE - principles upon which relief is reviewed on appeal - decision of primary judge on jurisdiction and quantum to be reviewed by principles applicable to discretionary judgments TRUSTS AND TRUSTEES - discretionary trusts - where person appointed to direct trustee to exercise discretionary powers in certain ways - whether attorney appointed under enduring power to the appointee able to exercise powers in relation to the trust - whether exercising power "as a trustee" - consideration of s 163B(2)(a) Conveyancing Act 1919 - ability to direct exercise of trust powers distinguished from possessing trust powers - legislation intended to cover only powers arising by virtue of appointment as trustee - attorney able to exercise powers POWER OF ATTORNEY - enduring power of attorney - consideration of s 163B(2)(a) Conveyancing Act 1919

COSTS - general rule that costs follow the event - trial costs - appeal costs. COSTS - appeal costs - separate costs orders. PROCEDURE - entry of judgments and orders - application to set aside or vary orders - UCPR r 36.16(3A).

TRAFFIC LAW - Speeding offence - Approved camera recording device - Evidence adduced by respondent contradicting time recorded by camera - Whether non-expert evidence admissible to challenge accuracy, reliability or proper operation of camera recording device - Respondent's evidence not sufficient to raise a doubt within meaning of s 73A of Act - Respondent's evidence otherwise admissible in defence of prosecution - Road Transport (Safety and Traffic Management) Act 1999, ss 47, 73A. STATUTORY CONSTRUCTION - Certificate adduced under s 47(5) is prima facie evidence that camera recording device operating correctly - Evidence of accuracy, reliability or proper operation of device not required unless evidence sufficient to raise doubt as to those matters adduced - Whether respondent adduced evidence sufficient to raise doubt that camera recording device was accurate, reliable and operating correctly - Prima facie evidence only rebuttable by evidence adduced from a person with relevant specialised knowledge pursuant to s 73A - Section 73A concerns admissibility not sufficiency of evidence - Respondent's evidence did not satisfy s 73A requirements.

COSTS - appropriate apportionment of costs - indemnity costs - resolution of orders

TORTS - negligence - causation - expert evidence of cause of fire and explosion - whether OPSOs on second stage regulators tripped as a result of over-pressurisation - analysis of expert opinion - whether dryer Bourdon tube pressure gauge subject to over-pressurisation - expert opinion - testing of filter box - disagreement as to test results - did the dryer gas filter boxes fail because of over-pressurisation - expert evidence - whether findings of trial judge as to causation open on evidence - absence of expert evidence to support appellants' theory - torts - contributory negligence - explanation for why tank isolation valve not closed when site left unattended - contributory negligence not established.

CRIMINAL LAW - sentence - murder - specially aggravated break, enter and steal - armed robbery - home invasions committed over three-day period - young offenders armed with meat cleavers - occupant at one home seriously injured - occupant of another house killed while resisting offenders - relevance of youth - importance of general deterrence and need for punishment - assistance to authorities - undertaking by Offenders to give evidence against co-accused - discount on sentence

Strata Schemes (Freehold Development Act) 1973 (NSW), Strata Schemes Management Act 1996 (NSW), serviced apartment, strata title apartment, whether lease or licence, construction of lease, validity of lease of common property, whether void, whether executed ultra vires, whether indefeasible, s 42 Real Property Act 1900 (NSW), unauthorised affixing of company seal, requirements of fraud, relation to indoor management rule, extent of indefeasibility, indefeasibility and certain personal covenants, proper construction of lease, delegation of functions, reasonable directions on voting rights, dealing with common property, whether valid exercise of right to be granted new leases, whether in contravention of relevant legislation, whether void or unenforceable, contravention of terms of lease, estoppel, specific performance of lease

SURROGACY - parentage order - application for parentage order - whether commercial surrogacy arrangement - whether agreement to donate sperm to partner of surrogate a benefit or reward in consideration of agreement to act as surrogate - reasonable expenses of birth mother

PRACTICE & PROCEDURE - application for stay of order pending appeal - principles applicable to stay application

CONVEYANCING - exchange of contracts - deposit - where real estate agent accepted a copy of a deposit bond pending provision of the original the next business day - agent did not breach his duty to the vendor CONVEYANCING - breach of contract for sale and remedies - vendor's remedies - rescission or termination - entitlement to - where contract term required provision of a deposit bond - where purchaser provided a copy of a deposit bond which could not be called on for cash - where vendor agreed to extend time for provision of original deposit bond to next business day - vendor entitled to terminate immediately on failure to supply original deposit bond by close of the next business day TORTS - negligence - damage - causation - where copy of a deposit bond accepted by real estate agent on exchange of contracts - where vendor was always entitled to terminate contract for purchaser's failure to produce deposit bond - agent's acceptance of the copy of deposit bond, failure to verify or obtain advice on its validity and failure to verify the purchaser's details in the contract not causative of loss - vendor's solicitor's failure to verify the validity of the deposit bond similarly not causative of loss TORTS - negligence - damage - causation - where copy of a deposit bond accepted by real estate agent on exchange of contracts - where purchaser would not have produced the original deposit bond and would not have provided the balance of a 10% "deposit" - where authority exists to suggest that vendor may not have been entitled to balance of 10% of the purchase price - vendor's solicitor's failure to require payment of deposit by alternate means as required under contract not causative of loss

CONTRACT - contract for the sale and shipment of iron ore fines over three years - the plaintiff purchaser arranges a standby letter of credit (standby LC) from the second defendant Bank pursuant to the contract - the first defendant vendor calls on the standby LC - whether the first defendant has a right to make demand under the standby LC - whether the contract between the plaintiff and the first defendant contains an implied negative stipulation limiting the circumstances in which the first defendant may call upon the standby LC - whether the plaintiff may restrain the second defendant bank's payment under the standby LC to the first defendant HELD:- the first defendant may make demand on the standby LC - the sale and shipment contract does not contain an implied negative stipulation limiting the first defendant's capacity to call on the standby LC