Cases and authorities

PARTNERSHIP - Actions by and against partners - partnership funds mixed with funds of a partner and used to purchase residential investment properties - fresh trial under Civil Procedure Act 2005, s 88(1) - evidence at first trial admitted without need to recall witnesses under s 89(2)(a) - cash businesses - unreported cash sales - trust property in strict sense followed into hands of persons other than bona fide purchasers for value without notice - institutional constructive trust in favour of partners - onus of proof - withdrawal of election for equitable compensation rather than account of profits - equity to mould suitable relief - partner entitled to a percentage interest in properties in proportion to his capacity to contribute to the purchase prices.

PROBATE and FAMILY PROVISION - Three different proceedings - One for letters of administration with foreign will annexed -Parties agree on orders to be made - Further amendment of amended Summons to include construction of the foreign Will - Second claim by the daughter and grandchild of each parent and grandparent respectively for a family provision order under Family Provision Act 1983 and Succession Act 2006 respectively - The proceedings commenced out of time - The brother and applicant for administration of father and grandfather's foreign Will joined to represent the estate - Opposes the claim for family provision order in each case - Whether factors warranting the making of the grandchild's application in each case - Whether the provision made for each is adequate - If not, whether family provision order should be made - Third proceedings to revoke Probate of mother's will made to daughter - Unnecessary to decide because of agreement of the parties - Costs the only issue in third proceedings.

UNCONSCIONABLE CONDUCT - special disadvantage - independence and adequacy of advice - transfer of house from elderly father to daughter - transfer motivated by poor health and irrational political fears - father advised by solicitor obtained by daughter - solicitor explained transaction but did not know of father's irrational motivations - advice neither independent nor adequate - transfer set aside

RESTITUTION - in case of payment made under mistake - change of position defence - receipt by one bank from another and subsequent disbursement by recipient bank - each bank acted without negligence on an instruction subsequently shown to be fraudulent - whether recipient bank acted on the faith of the receipt in making subsequent payment - change of position defence established by recipient bank - basis for and significance of the decision in State Bank of New South Wales Ltd v Swiss Bank Corporation (1995) 39 NSWLR 350 discussed, explained and not followed in one respect - alternative defence of payment over - whether conditions for that defence satisfied - alternative defence of estoppel - whether conditions for that defence satisfied

RESTITUTION - recovery of money paid under mistake - general principles - defences - change of position - discharge of debt - fraudster concocted false invoices for purchase of equipment - financier paid seller of non-existent goods and entered leaseback arrangement with fraudster - seller applied funds received in discharge of pre-existing debts owed by fraudster's companies - unjust to require restitution

[ADMINISTRATIVE LAW] - Building and Construction Industry Security of Payment Act 1999 (NSW) - jurisdictional error - whether adjudicator acted outside jurisdiction - whether payment claims complied with the requirements of s 13(4) and (5) of the Act - whether compliance with s 13(5) is jurisdictional.

COSTS - Suitors' Fund Act 1951 - certificate granted

PROCEDURE - application of the 'slip rule' pursuant to UCPR 36.17

WILLS, PROBATE AND ADMINISTRATION - informal will - whether the document constitutes a will of the deceased person - whether the document embodies the deceased's real testamentary intentions - whether the deceased was of sound mind, memory and understanding at the time he executed the document- appointment of guardian for grant of will

PRACTICE AND PROCEDURE - application for stay of judgment pending appeal - no evidence of respondent's means

PRACTICE AND PROCEDURE - application to vacate hearing date - medical and Occupational Health and Safety grounds - weight to be given medical evidence in summary form - relevance of Occupational Health and Safety legislation

STAYS - Application for stay of parties' agreement pending judgment - Stay not available. INJUNCTIONS - Associations and clubs - Annual general meetings - Application for injunction to restrain holding of annual general meeting pending hearing of appeal - Parties entered into agreement as to holding of meeting - Court reluctant to restrain meeting - Balance of convenience not in favour of grant of injunction.

PRACTICE & PROCEDURE - Application for security for costs - Respondent company wound up in insolvency - Whether leave of Court required to commence appeal proceedings - Appeal is a new proceeding - Leave of Court required - No application for leave to proceed made - Court has no power to deal with application for security for costs - Proceedings are stayed - Corporations Act 2001 (Cth), s 471B.

APPEAL - civil - credibility - trial judge rejected evidence of plaintiffs - plaintiffs sought to challenge credibility findings on appeal - whether findings contrary to compelling inferences or glaringly improbable - whether trial judge failed to use or palpably misused his advantage in hearing the relevant witnesses - whether distinction between challenge to credibility and challenge to inferences from facts admitted or found - discussion of Fox v Percy [2003] HCA 22; 214 CLR 118; Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472; Abalos Australian Postal Commission [1990] HCA 97; 171 CLR 167 CONTRACT - capacity - mental disability - borrower alleged incapacity at the time of contract formation - whether trial judge considered allegations - whether retrial should be ordered CONTRACT - harsh or unjust - third-party guarantors became primary borrowers under loan restructuring - borrowers denied meeting with mortgage broker - whether borrowers aware of change of status - whether borrowers obtained benefit as members of family engaged in loan restructuring - Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA and 12CB; Trade Practices Act 1974 (Cth), s 51AC; Contracts Review Act 1980 (NSW)

FINANCIAL SERVICES - Dishonest conduct by representative - admissions of contraventions of ss 1041G and 1311 of the Corporations Act - declarations of contravention of the Corporations Act - order restraining carrying on financial services - disqualification from managing corporation.

CRIMINAL LAW - evidence - domestic homicide - evidence of prior domestic violence - relationship evidence - whether tendency evidence - whether significant probative value.

WILLS, PROBATE AND ADMINISTRATION - due and proper administration of estate prevented by omissions of one of two executors in office - existing grant of probate revoked - grant of probate to plaintiff alone

CRIMINAL LAW - fitness to stand trial

PRACTICE AND PROCEDURE - Subpoena for document production - Documents produced - Legal advice privilege claimed - Common interest privilege "as a sword" - PRIVILEGE WAIVER - Whether documents produced give rise to waiver

CONTRACTS REVIEW ACT - claim for possession by Mortgagee/lender - cross claim for relief under Contracts Review Act by Mortgagor/borrower - whether purpose of borrowing disentitled borrower to relief under the Act - where false information provided by the borrower in application for loan - whether provision of false information disentitled borrower to relief under the Act - conduct of lender - whether lender engaged in asset lending - whether lender failed to observe lending guidelines - whether contract unjust - whether discretionary relief should be granted WORDS AND PHRASES - "asset lending" - "lo-doc loan"

PROCEDURE - Judgments and orders - application to vary pursuant to r 36.16 - whether appropriate case - interlocutory judgment after full hearing - whether misapprehension by Court of fact or law

CRIMINAL LAW - appeal against conviction - whether jury should have been discharged because of possibly prejudicial evidence.

CRIMINAL LAW - appeal - sentence - misstatement of correct maximum penalty - error in applying standard non-parole period - whether some other sentence was warranted at law - no lesser sentence warranted - appeal dismissed

CRIMINAL LAW - appeal - conviction - conviction for possession of firearm contrary to Firearms Act 1996 - where firearm found in bedroom of appellant - where appellant denied knowledge of firearm - whether trial judge failed to give reasons that complied with s 133 of the Criminal Procedure Act - reasons of trial judge sufficient - whether verdict was unreasonable and cannot be supported by the evidence - where burden on appellant to prove that she did not know, or could not reasonably be expected to know, about firearm - verdict not unreasonable - appeal dismissed.

CRIMINAL LAW - appeal - sentence - whether sentencing judge erred by imposing cumulative sentences - whether sentence was manifestly excessive - where applicant convicted of four offences - where all offences were part of one sequence of events - where each offence involved a different sexual act - sentencing judge did not err in imposing cumulative sentences - sentence was not manifestly excessive.

CRIMINAL LAW - sentence - carjacking offences - applicant incarcerated for similar offences at time of sentence for present offences - finding of special circumstances - effect of accumulation on ratio between non-parole period and total sentence - principle of totality - relevance of all sentences to totality principle and effect on statutory ratio - supervision on parole of serious offender

TAXES AND DUTIES - Running Balance Account (RBA) established in relation to appellant under Taxation Administration Act 1953 (Cth) (Administration Act), s 8AAZC - debit balance an RBA deficit debt payable to Commonwealth under Administration Act s 8AAZH - appellants defence alleged errors in entries in RBA - some errors not defence issues as entitled to object and contest adverse objection decision in Federal Court or Administrative Appeals Tribunal (AAT) - Part IVC of Administration Act an exclusive code - other errors not subject of right to object and not open to Federal Court or AAT - with lack of assistance from respondent, trial judge did not determine detailed arguments of appellant that entries in RBA wrong

APPEAL AND NEW TRIAL - Court of Appeal - practice and procedure - constitution of court - most issues decided in principle by 2007 decision of Court of Appeal, but orders not then made, and some questions remitted for inquiry and report - only one member of original Court of Appeal bench available after answering of remitted questions by court below - power to reconstitute - s 45AA Supreme Court Act not sufficient - importance that original court hears all aspects of matter to conclusion - consideration not as acute for appellate courts - only final orders to be decided - appropriate to reconstitute new bench APPEAL AND NEW TRIAL - Court of Appeal - practice and procedure - powers of Court of Appeal - power to set aside own order and re-open appeal - grounds argued not different in substance to grounds argued in earlier application to re-open original appeal - abuse of process

APPEAL - grounds - failure to give reasons - where trial judge failed to resolve significant factual issues raised by the parties or purported to resolve factual issues without reference to relevant evidence - primary judge's reasoning process seriously flawed - new trial required APPEAL - grounds - where defendant argues evidence insufficient to support cause of action pleaded below - consideration of evidence - absence of important factual findings prevents Court of Appeal from being in a position of deciding the matter for itself

APPEAL AND NEW TRIAL - costs - jurisdiction - order affecting non-parties - whether Court of Appeal has jurisdiction to make a costs order that has the incidental effect of benefiting non-parties to the appeal - consideration of principle and s 98 Civil Procedure Act - court does have jurisdiction to make such orders when appropriate COSTS - general rule - discussion of principles COSTS - general rule - per defendant orders - where appropriate COSTS - general rule - where ultimately successful party not successful on all grounds of appeal - appropriate apportionment of costs WORDS AND PHRASES - "per defendant orders"

CONSEQUENTIAL ORDERS -- resolution of orders and costs - no question of principle

CONTRACT - construction - contract for sale and purchase of "off the plan" unit - liquidated damages clause - vendor's claim for liquidated damages - non-performance of some building items at completion date - whether contract substantially performed - whether vendor entitled to award - principles considered INTEREST - orders for specific performance - whether proceedings for specific performance also proceedings for the recovery of money - Civil Procedure Act 2005 s 100(1)

APPEAL - appeal on questions of law against decision of the Administrative Decisions Tribunal refusing orders under the Commission for Children and Young People Act 1998 - operation of Act - whether applicant is a prohibited person - nature of applicant's criminal record - whether offence dealt with under s556A of the Crimes Act 1900 is a 'serious sex offence' as defined - whether the applicant should have been permitted to issue a summons to victim of 1984 offence - whether applicant should have been permitted to issue summonses to others - whether evidence should have been received from Professor Greenberg - no error of law established - costs

PRACTICE AND PROCEDURE - application to re-open - informal application made by solicitor to Judge - no satisfactory explanation for delay - no proper basis to re-open out of time. COSTS - whether point successful on was first raised on appeal - application for indemnity costs.

CONTRACTS - Loan agreement - events of default - whether default established another contract - whether binding agreement reached GUARANTEE - Indemnity - variation of main loan agreement or variation of collateral arrangement

Building and Construction Industry Security of Payment Act 1999 (NSW), adjudication determination, functions and duty of adjudicator, whether jurisdictional error, whether denial of natural justice, s 22(3), extent of requirement to provide reasons, procedural fairness, content of adjudication, whether erroneous consideration, misunderstanding and/or failure to address or consider matters, whether quash and/or void determination, no jurisdictional error exposed.

CORPORATIONS - Voidable transactions - Application to set aside orders made under Corporations Act 2001 (Cth) s 588FF(3)(b) - Proper construction and scope of application of orders - Power of court to make orders - Entitlement to have orders set aside ex debito justitiae - Whether applicant was a person identified as an actual or likely target, or potential target, of an application under s 588FF(1) of Corporations Act 2001 (Cth) - Whether applicant likely to be affected by orders and thereby entitled to have orders set aside - Discretion of court as to extension of time.

ADMINISTRATIVE LAW - claim for prerogative and declaratory relief - application for further medical assessment - referral made for further medical assessment - s.62 Motor Accidents Compensation Act 1999 - whether s.62 decision made by Proper Officer - whether denial of procedural fairness - whether error of law on face of record or jurisdictional error - whether failure to give reasons - grounds for relief not established - Summons dismissed

Possession of land - licence - term - trespass - damages.

CRIMINAL LAW - Crown appeal against order permanently staying count of malicious infliction of grievous bodily harm - count stayed by primary judge due to uncertainty surrounding scope of s 35(1)(b) Crimes Act 1900 - complainant contracted HIV after consensual sexual intercourse with HIV-positive respondent - respondent alleged to have known that he was HIV-positive STATUTORY CONSTRUCTION - principles - meaning of 'inflicts' in s 35(1)(b) Crimes Act 1900 - whether transmission of serious disease by consensual sexual intercourse constitutes infliction of grievous bodily harm - whether term 'inflicts' requires physical assault - use of extrinsic material including Second Reading Speeches - relevance of subsequent introduction of separate offence for transmission of diseases - whether re-enactment of provision signalled legislative agreement with preceding judicial interpretation

PRACTICE - nature of appeal against finding that a forum was not clearly inappropriate - not necessary to decide - primary judge took into account irrelevant consideration - PRIVATE INTERNATIONAL LAW - stay of proceedings - clearly inappropriate forum test - negligence - asbestos related injury - governing law, the law of New Zealand - uncertainty as to content of law of New Zealand on issues likely to arise at trial - determination of content of New Zealand law a question of fact - relevance and effect of no appeal on question of fact from the Dust Diseases Tribunal of NSW - importance of appeal rights where content of foreign law in issue - other issues relevant to whether Dust Diseases Tribunal of NSW is a clearly inappropriate forum - whether making of declaration appropriate - PRACTICE - service of Statement of Claim issued out of Dust Diseases Tribunal of NSW in New Zealand - not authorised by Uniform Civil Procedure Rules 2005 - stay of proceedings.

APPEAL - consequential orders - no issue of principle

ADMINISTRATIVE LAW - judicial review - grounds of review - irrelevant considerations in defendant's decision not to grant certificate to retrospectively approve pipeline construction - where defendant took into account the fact that approval might lead to claims on the Mine Subsidence Compensation Fund - where defendant took into account delay in bringing application when pipeline had been in place for many years before legislative change and no damage or risk of damage appreciated until many years after legislative change - such grounds not open to be relied on under the legislative scheme - decision ultra vires ADMINISTRATIVE LAW - prerogative writs and orders - mandamus - discretion to refuse relief by reason of delay in bringing proceedings not exercised where delay is sufficiently explained and justified - inappropriate to order the grant of a certificate where legislation required satisfaction on a matter which the defendant had not yet considered ENERGY AND RESOURCES - mining - Mine Subsidence Compensation Act 1961, s 15(5)(b) - whether s 15B(3A) certificate required to claim for works preventing or mitigating damage caused by subsidence - whether "or anticipated to be caused" can, in effect, be read into "a claim in respect of damage caused by subsidence" - consideration of the legislature's intention - consideration of the phrase "in respect of" - where s 10(3) makes clear distinction between amounts payable in respect of damage caused by subsidence and preventative or mitigatory works EVIDENCE - burden of proof, presumptions, and weight and sufficiency of evidence - whether approval was granted by a public body - whether presumption of regularity available - where public body has not done some act inconsistent with the grant of approval - where presumption needs to also found an assumption that application was made - presumption not available and even if available, there is evidence to rebut the presumption ESTOPPEL - general principles - no evidence that plaintiff assumed approval had been granted - no evidence that defendant had induced any such assumption STATUTES - acts of parliament - interpretation - whether licensing scheme under s 11, Pipelines Act 1967 excuses non-compliance with requirement to obtain approval from the Mine Subsidence Board under s 15, Mine Subsidence Compensation Act 1961 - whether the two Acts are inconsistent - where Pipelines Act specifies acts not to apply to pipelines authorised by licence - where unlikely that Parliament intended licence to exempt pipelines from supervision of the Mine Subsidence Board - where Mine Subsidence Compensation Act more specific than Pipelines Act

CRIMINAL LAW – sentencing – guilty plea – affray – need for parity – relevance of discharge of loaded firearms – presence of bystanders at risk of serious injury – evidence of planning and premeditation – offence not in worst category – limited role of offender – need for general deterrence – limited need for specific deterrence – early plea – reasonable prospects of rehabilitation

CRIMINAL LAW – sentencing – guilty plea – affray – relevance of discharge of loaded firearms – presence of bystanders at risk of serious injury – evidence of planning and premeditation – limited role of offender – offence not in worst category CRIMINAL LAW – sentencing – guilty plea – giving false evidence to NSW Crime Commission – offender sought to protect manslaughter suspects – relevance of psychological condition – impaired ability to withstand peer pressure – specific deterrence irrelevant

PRIVATE INTERNATIONAL LAW - application to stay proceedings - application to set aside originating process - clearly inappropriate forum test - foreign law governing liability - cost and inconvenience

PROCEDURE - transfer of proceedings - from Supreme Court to District Court - Civil Procedure Act s 146(4)(a) - whether complex legal issue

CRIMINAL LAW - Sentencing - Manslaughter - Excessive self-defence

PRACTICE AND PROCEDURE - summary judgment - whether real question to be tried