Cases and authorities

TORT - negligence - professional negligence - alleged failure by a solicitor to properly advise in a commercial property transaction - instructions given to settle without receipt of deposit - client an experienced property developer CONTRACT - contract of retainer - scope of retainer

EQUITY - equitable compensation for breach of fiduciary duties by employees and consultants - assessment after remitter of case by High Court to Court of Appeal - fiduciaries deliberately breached duties by diverting opportunities for legal work from a legal and consulting firm in Kazakhstan to their own firm and by knowingly assisting in other breaches of fiduciary duty - principles governing assessment of equitable compensation for lost opportunity to perform legal work and to receive financial rewards for involvement in projects - need to establish causation - significance of fiduciaries' resignation from firm in order to further their wrongful conduct - extent to which plaintiff is entitled to rely on the presumption against wrongdoers where there are gaps in the evidence. EVIDENCE - admissibility of expert report - report estimates legal work likely to be performed on particular projects and fees or other rewards likely to be derived by the firm performing the work - whether expert's opinion met the requirements of s 79 of the Evidence Act 1995 - whether opinions shown to be based on the expert's specialised knowledge - whether report should be given any probative weight.

COSTS - costs where each party partly succeeded - whether orders relating to separate issues should be made

CORPORATIONS - Management and Administration - validity of notice of meeting - short notice but reasonable in circumstances - Corporations Act 2001 (Cth) s 1322(2) - resolution to lodge caveat carried with it implied right to protect it by instituting proceedings for its extension - referee to deal with any dispute in relation to the development of land - resolution to lodge caveat not in relation to development of land

CORPORATIONS - winding up - insolvency - whether service of statutory demand effective - statutory demand served on registered office through post but did not come to attention of company - alternative basis for service, by attaching statutory demand to originating process for winding-up application, not effective - submission that winding-up application is an abuse of process did not take account of regime imposed by Pt 5.4 - leave not required under s 459S in circumstances - genuine dispute as to liability - plaintiffs do not have a claim for debt due and payable but for damages for alleged breach of contract

CRIMINAL LAW - Evidence - objection to tender of photographs of deceased - whether probative value outweighs potential prejudice to accused - no question of principle.

ASSOCIATIONS AND CLUBS - officers, trustees, servants and committees - removal - whether plaintiff's removal as General Secretary was an "irregularity" within the meaning of s 1322 of the Corporations Act 2001 (Cth) - whether controversial meetings which led to plaintiff's removal were validly called - not practical to restore the membership of governing committee to what it was before plaintiff's displacement as General Secretary - effect of subsequent election.

CORPORATIONS - Winding up - Substitution of applicants - Whether applicant was someone who might otherwise have applied for company to be wound up - Whether court should decline to order substitution in circumstances where a registrar has decided to allow it. PRACTICE AND PROCEDURE - Review of decision of registrar - Uniform Civil Procedure Rules 2005 (NSW) r 49.19 - Application to set aside decision of a registrar.

COSTS - Uniform Civil Procedure Rules 2005 (NSW) r 42.1 - Ordinary rule that costs follow the event - Whether reason has been shown to depart from the ordinary rule.

CRIMINAL LAW - appeal against sentence - supply large commercial quantity of prohibited drug - possession of prohibited firearm - whether unfairness in way supply charge was framed - complaints about legal representatives - whether sentence excessive

EQUITY - ex parte injunctions - duties of counsel when applying - whether any breach of obligations

LEGAL PROFESSIONAL PRIVILEGE - Implied waiver of privilege

CIVIL LAW - proceeds of crime - restraining order - disposal of property - reasonable grounds for suspecting property to be proceeds of crime - when opening or operating bank account in false name is indictable offence - whether money deposited in bank account in false name can be proceeds of that offence - whether money in bank account operated under false name can be proceeds of that crime - instrument of crime - Proceeds of Crime Act 2002 (Cth), s 19, s 38, s 49, s 329 - Financial Transaction Reports Act 1988, s 24 - Crimes Act 1914 (Cth), s 4G

CORPORATIONS - liquidation - application to set aside summonses for examination by liquidator - application dismissed - examination as to defendants' capacity to satisfy judgment debts and costs orders party of company's examinable affairs - no material non-disclosure - liquidator's examination not rendered oppressive or unnecessary by prior creditor's examination

PROCEDURE - Judgments and orders - scope of leave granted in respect of the implementation of the Court's 20 June 2012 orders - whether orders in the proceedings of 20 June 2012 should be varied to provide for removal of the trees the subject of the proceedings.

PRACTICE AND PROCEDURE - Joinder - Application by third party for joinder to proceedings - Whether party applying for joinder to proceedings is a proper party.

PROCEDURE - costs - appeals as to costs - mistake of law - general rule that costs follow the event only displaced by disentitling conduct - third defendant to pay plaintiff's costs of motion. PROCEDURE - discovery and interrogatories - discovery and inspection of documents -competent legal advice does not necessarily ensure that the obligations of a subpoena have been complied with- it was open to the deputy registrar to order the third defendant to attend court to be examined in respect of its response to the subpoenas.

BUILDING AND CONSTRUCTION - adjudication - jurisdictional error - construction contract - guarantee - indemnity

WILLS, PROBATE AND ADMINISTRATION - testamentary capacity - whether deceased had capacity to revoke prior will and create new will - test of capacity required for complete revocation of a will same as that required for making a will - whether deceased affected by delusions at time of making will - deceased held beliefs as to motives of some relatives not only rational but correct - held that deceased had testamentary capacity WILLS, PROBATE AND ADMINISTRATION - righteousness of will and suspicious circumstances doctrine - beneficiaries involved in procuring solicitor for deceased and arranging medical examination, but not in framing will GUARDIANSHIP - financial managers - entitlement to remuneration - private financial managers generally must act gratuitously because they must not place themselves in a position of conflict between their interest and duty - no answer to conflict that fiduciary was acting for the benefit of the principal - private managers only entitled to remuneration allowed by the Court

LEASES - Appeals from decision of Administrative Decisions Tribunal and decision of Appeal Panel under s 119 of the Administrative Decisions Tribunal Act 1997 - Tribunal proceedings commenced by lessee plaintiff who was locked out of defendant lessors' premises for failing to pay rent - parties in dispute as to commencement date of lease and length of the rent-free period - Tribunal rejected plaintiff's version of events and held that rent payable under written terms of lease in arrears - Tribunal also found in favour of defendants regarding other issues including: (i) plaintiff's claim various chattels not returned; whether same had been abandoned, (ii) liability for cost of a new awning; whether lessors liable, (iii) whether bond forfeited - Appeal Panel affirmed Tribunal's decision - no error on part of the Tribunal or Appeal Panel on a question of law. COSTS - Appeal from decision of Administrative Decisions Tribunal Appeal Panel - Appeal Panel found plaintiff liable to pay the defendants' costs of proceedings - plaintiff failed to apply for leave to appeal decision and did not advance any grounds for the appeal in relation to costs - no demonstrable error as to fact or law identified regarding Appeal Panel's decision on costs - leave to appeal refused.

CRIMINAL LAW - appeal - conviction - appellant convicted of aggravated people smuggling -whether trial judge erred in refusing to direct jury regarding evidence given by appellant on essential element of Crown case - where appellant and key prosecution witness gave conflicting accounts - whether principle in Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531 was breached - whether direction in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 - principle in Robinson not breached - Liberato direction not required - appeal dismissed. CRIMINAL LAW - appeal - whether verdict unreasonable and unsupported by evidence - where no evidence capable of showing appellant knew Ashmore Reef was part of Australia - where evidence gives rise to reasonable doubt that jury should have had - where jury advantage in seeing and hearing evidence not capable of resolving doubt - verdict unreasonable - appeal upheld. CRIMINAL LAW - appeal - conviction - whether trial judge erred in not giving direction that accused intended to take passengers to Australia or that appellant knew Ashmore Reef was part of Australia - where central issue in trial not properly identified.

COSTS - failure to accept offer of compromise and Calderbank offers - offers made by defendants before the issue on which defendants were ultimately successful had been raised - no order for indemnity costs - Calderbank offers nonetheless relevant to exercise of costs discretion COSTS - successful party unsuccessful on some issues - whether issues are distinct and severable - fact that successful party did not act unreasonably in raising unsuccessful issues does not preclude modification of the usual order to reflect failure on those issues - delay in amending defence to raise issue on which defendants were ultimately successful not material because case would still have been vigorously prosecuted by plaintiff if amendments made earlier - suggested distinction between successful plaintiffs and defendants who reasonably raise unsuccessful severable issues doubted - exercise of costs discretion requires consideration of all circumstances - in circumstances, plaintiff ordered to pay two-thirds of defendants' costs

[PRACTICE & PROCEDURE] - application to amend List Statement to include claim of proportionate liability under s 34 Civil Liability Act 2002 - whether action against insurer for indemnity is an apportionable claim for economic loss "arising from a failure to take reasonable care"

PROCEDURE - costs - general rule costs follow the event - co-plaintiffs - apportionment of costs between multiple plaintiffs

CRIMINAL LAW - Crown appeal against directed acquittal - Grounds of appeal involved questions of law alone - Crimes (Appeal and Review) Act 2001, s 107. CRIMINAL LAW - Sexual assault offence - Requisite proof of knowledge of lack of consent - Circumstantial evidence relied upon by Crown - Trial judge erred in determining that the Crown was required to establish communication of lack of consent prior to acts of intercourse occurring - Trial judge's failure to have regard to requirements of s 61HA(3)(d) - Trial judge erred by having regard to statutory provisions concerning the vitiation of apparent consent - Findings involving questions of law alone - Crimes Act 1900, ss 61HA, 61I. CRIMINAL LAW - No case to answer application - Trial judge is to determine whether there is evidence in respect of every element of the offence - Complainant's evidence could sustain verdict of guilty - Trial judge erred in prohibiting the Crown from relying upon the accused's answers in the ERISP in support of the circumstantial case. WORDS AND PHRASES - "Question of law alone"

CRIMINAL LAW - Sexual offences - Application for leave to appeal against sentence - Offences committed between 1997 and 1998 - Applicable sentencing standards at time offences committed - Consideration of comparable cases - Whether the sentences imposed by the sentencing judge were outside the proper sentencing range - Whether the trial judge relied on cases that represented a true range of sentences imposed at the time of the offences - Sentence to reflect objective criminality involved and personal circumstances of offender - Crimes Act 1900, ss 61O(2), 61M(2), 66A. CRIMINAL LAW - Sexual offences - Sentencing - Sentence imposed by trial judge manifestly excessive - Relevant factors - Special circumstances - Totality principle - Crimes Act, s 66A.

CRIMINAL LAW - application for leave to appeal against sentence - applicant and co-offender involved in same drug dealing enterprise - charged with different offences - co-offender sentenced by different judge - issue of parity.

SENTENCING - four counts of supplying prohibited drug - six year non-parole period - first offence - applicant with good prospects of rehabilitation - totality - sentence manifestly excessive

CRIME - appeal - aggregate sentence - steal car - aggravated break and enter - reckless wounding of police officer - juvenile offender - committed one serious children's indictable offence and three other offences - whether erroneous for all four offences to be dealt with "according to law" - whether sentencing judge failed to consider statutory principles relevant to sentencing juveniles - whether sentence manifestly excessive - no prior convictions - intellectual impairment.

CRIMINAL LAW - appeal - appeal against sentence - parity of sentences in relation to sentences imposed on the applicant and on each of the two co-offenders - whether severity of sentence imposed on applicant gave rise to justifiable sense of grievance - whether sentencing judge erred in application of Pearce v The Queen [1998] HCA 57 - whether total sentence imposed in respect of one count excessive - whether total effective sentence manifestly excessive - error not established.

EVIDENCE - opinion evidence - expert opinion - Evidence Act, s 79 - defendant tenders opinion on interpretation and application of accounting standards - plaintiff objects to tender on ground that opinion is not based on specialised knowledge - whether interpretation of accounting standards is specialised field of knowledge in which expert is demonstrated to be qualified by study or experience

[CONTRACT] - [RESTRAINT] - where two large organisations conducting negotiations for possible equity investment or purchase -where non-solicitation restraint agreed during due diligence regime - where due diligence process aborted after approximately three weeks - some confidential information provided - where approaches to employee made prior to entry into restraint - where employment secured after entry into restraint - whether restraint reasonable and enforceable - whether injunction should be granted. [EMPLOYEE RESTRAINT] - where employee renegotiates notice period under contract - where employee agrees to 6 months restraint - whether restraint reasonable and enforceable - whether injunction should be granted.

JUDICIAL REVIEW - certiorari - construction of s 44 Children and Young Persons (Care and Protection) Act 1998 - application of s 69 (3) and (4) Supreme Court Act 1970 - whether the magistrate considered s 70A Children and Young Persons (Care and Protection) Act 1998

CRIMINAL LAW - accused charged with murder and other offences - inquiry into fitness to be tried - earlier finding in District Court of unfitness to be tried for different offences in that Court - finding that accused unfit to be tried for offences in Supreme Court

CRIMINAL LAW - Sentencing - Murder

CRIMINAL LAW - sentence - murder - accessory after the fact to murder - discharge firearm with intent to cause grievous bodily harm - possess prohibited weapon - possess prohibited firearm - influence witness to pervert the course of justice

CRIME - sentencing following verdict - murder - self defence, intoxication and provocation rejected by jury - antecedents - mainly drug-related property offences and domestic violence offences - use of weapon - mild intellectual disability - low to medium risk of re-offending - absence of remorse.

CRIMINAL LAW - sentence - murder CRIMINAL LAW - sentence - wounding with intent to murder

PROCEDURE - costs - departing from the general rule - plaintiff seeking order for costs on indemnity basis from first and third defendants - UCPR 20.26 - whether offers of compromise valid under rule - whether conduct of plaintiff throughout litigation disentitling - award of costs on indemnity basis PROCEDURE - judgment and orders - application by first and third defendants for stay of judgment pending appeal - stay opposed - where affidavit sworn by officer of the Court attesting to indemnification of first and third defendants - stay granted

WILLS, PROBATE AND ADMINISTRATION - disputes between executors and between executors and one beneficiary - claim for costs by solicitor executor - costs included items for executorial work - moderation of costs by Registrar - whether solicitor executor should indemnify estate for moderated costs allowed to co-executor - WILLS, PROBATE AND ADMINISTRATION - application for commission for both executors - whether commission should not be allowed to solicitor executor or reduced due to his conduct

CORPORATIONS - Winding up - Costs - Costs relating to application for directions in relation to matters arising under winding up - Whether remuneration and expenses incurred by liquidators in respect of administration and liquidation should be paid solely from company's beneficial assets or from client segregated accounts and recoveries against counterparties - Whether liquidators' costs and expenses in relation to proceedings should be paid from company's beneficial assets or from client segregated accounts and recoveries against counterparties.

CRIMINAL LAW - sentence - manslaughter - serious case - excessive self-defence - use of firearm

DAMAGES - leases and tenancies - whether there was a breach of contract - lock out by lessor - hotel - claim for damages for outstanding rent; repair and replacement of plant and equipment; repair and maintenance of hotel; and rent to end of term - defendant in default of various obligations including rent - plaintiff re-entered, occupied and took possession of the hotel - claim that defendant failed to maintain, replace, repair hotel - loss of bargain claim dismissed - referee claims - evidentiary difficulties - nature of lease obligations - was the defendant liable for any prior breach of the lease - observed items - claim for painting-head contractor - claim for costs of re-entry - cross-claim - repayment of security deposit - conversion - claim in respect of mini bus - interest - costs PROCEDURE - various notice of motions - leave sought to rely on further affidavits - refusal of pleading amendment - refusal of the adjournment application - rejection of the tender EVIDENCE - admissibility - expert evidence

REAL PROPERTY - Conveyancing Act 1919, s37A - avoidance of alienation of property in favour of ex-wife effected pursuant to consent orders of the Family Court of Australia REAL PROPERTY - Conveyancing Act 1919, s 37A(1) - "creditors" - includes future creditors and impending liabilities REAL PROPERTY - Conveyancing Act 1919, s 37A(3) - onus of proof of defence of purchaser for value without notice

COSTS - UCPR r 42.1 - determining who in substance has won the proceedings - where proceedings initiated by application for order under s 66G of the Conveyancing Act 1919 but majority of evidence focused on respective interests of each party in the property - where neither party has succeeded - where plaintiff alleged to have given deliberately false evidence - held parties should bear their own costs.

Torts - negligence - duty of care - causation - damages - personal domestic care and assistance - liability of scaffolder and construction company - liability of employer.

REAL PROPERTY - Easements - Conveyancing Act 1919 s 88K - orders.

APPEAL - civil - apprehended bias - matter remitted to primary judge - whether findings in overturned judgment gave rise to reasonable apprehension of bias in subsequent determination of matter - whether complaint based on final judgment must plead actual bias - relationship between bias and failure to exercise jurisdiction - whether absence of reasonable apprehension of bias is a jurisdictional fact - whether complaint of apprehended bias must be dealt with before other grounds APPEAL - civil - constructive failure to exercise jurisdiction - claim for annual superannuation allowance based on police officer being hurt on duty - whether primary judge failed to deal with issues critical to claim APPEAL - civil - no evidence - claim for annual superannuation allowance based on police officer being hurt on duty - plaintiff alleged no evidence for finding that there was no link between traumatic events and injury - whether error in failing to make affirmative finding of link between events and injury follows from error in making negative finding - discussion of Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 APPEAL - civil - procedural fairness - whether primary issue determined by adopting an inconsistent conclusion - whether primary judge made finding in relation to a novel issue without notice to the appellant WORKERS COMPENSATION - claim for annual superannuation allowance based on police officer being hurt on duty - finding that injury did not develop before date of discharge - Police Regulation (Superannuation) Act 1906 (NSW)

PROCEDURE - costs - offer of compromise - defendants offered to compromise by paying plaintiff's costs "as assessed or agreed" - whether offer complied with r 20.26 UCPR - whether defendants entitled to costs on indemnity basis - whether offer operated as Calderbank offer - whether costs order should be discounted by reason of plaintiff's conduct of litigation

BUILDING AND CONSTRUCTION -recourse to security CONTRACTS - contract purportedly terminated - accrued rights