Cases and authorities

DEEDS - question of construction of superannuation trust deed - consideration of principles applicable to contractual construction TRUSTS - duty of trustee to determine application by plaintiff - where trustee proceeded on basis of what has now been found to be an incorrect construction of the relevant Rule - whether matter should be remitted to trustee to make determination having regard to proper construction or whether Court should make a determination as to the entitlement claimed - where no evidence that trustee previously acted in bad faith - HELD - matter remitted to trustee for determination

GUARANTEES - whether discharged or unenforceable - misleading or deceptive conduct

CRIMINAL LAW - sentence - manslaughter - excessive self defence - aggravating and mitigating matters - deterrence - parity - custody - victim impact statements

CRIME - particular offences - insider trading - no case submission - whether Crown had adduced evidence upon which a jury could convict - possession of alleged inside information - whether particulars to be taken in combination - whether Crown required to prove possession of every component of alleged inside information - whether failure to prove any individual component fatal to Crown case - materiality of alleged inside information - whether evidence so lacking as to require jury to speculate

MORTGAGES - mortgages and charges generally - remedies of the mortgagee - discharge of mortgage - mortgagor threatens cross-claim to challenge mortgage - whether mortgagee can require additional amount as security for contingent liability in return for discharge - whether proceedings reasonably anticipated.

GAMING MACHINES - leases of gaming machine entitlements - whether notice of termination validly given - effect of termination - orders made for specific performance of leases

CORPORATIONS - application by member of company limited by guarantee for interim relief - where undertakings given to court largely satisfy claim for relief

EVIDENCE - provocation - statement made by deceased to her daughter - s 65(2)(b) of the Evidence Act - whether representation made shortly after the asserted fact - s 65(2)(c) - whether statement made in circumstances that is highly probable that the representation is reliable - s 137 - whether prejudicial effect outweighs its probative value.

REAL PROPERTY - trustee in bankruptcy seeking sale of property pursuant to s 66G of Conveyancing Act 1919 (NSW)

[PROCEDURE] - whether court should grant mandatory interlocutory relief on an interlocutory basis - no question of principle.

EVIDENCE - cross-examination - whether party can refuse to produce witness for cross-examination after affidavit has been read - application of UCPR r 35.2 - held that witness not required for cross-examination so long as affidavit is no longer relied upon.

PROCEDURE - application for stay pending hearing of application for leave to appeal - no matter of principle

CORPORATIONS - creditor's statutory demand

CORPORATIONS - Investigations - Possible contraventions of Corporations Act 2001 (Cth) - Whether evidence establishes that investigations are being carried out under Australian Securities and Investments Commission Act 2001 (Cth) in relation to act or omission that constitutes or may constitute a contravention of Corporations Act 2001 (Cth) - Whether Court satisfied that a person is about to leave the jurisdiction or Australia in order to avoid being examined about the affairs of a company being wound up in insolvency or by the court - Whether evidence establishes a proper case for issue of a warrant for arrest to avoid the frustration of examination powers conferred on liquidators.

WILLS, PROBATE AND ADMINISTRATION - plaintiff and defendant siblings and executors of mother's will - consent orders made on 23 August 2010 noting agreement resolving dispute - further dispute as to implementation of agreement

PRACTICE AND PROCEDURE - judge grants leave to file amended pleading by specified date - pleading not filed in time - accepted in registry out of time - whether court should refuse to accept document for filing under Rule 4.10 Uniform Civil Procedure Rules 2005 - proceedings commenced in 2006 - plaintiff extradited in 2008 to USA - plaintiff serving lengthy sentence of imprisonment in USA - litigation not progressed since 2008 and no real prospect that proceedings will progress - application by defendants that proceedings be dismissed for want of prosecution under Rule 12.7 Uniform Civil Procedure Rules 2005 - proceedings dismissed

PRACTICE AND PROCEDURE - expert granted access to plaintiff's computer to compile report - plaintiff claims client legal privilege and confidentiality over documents expert had access to - plaintiff a quantity surveyor - defendant provides funding for property projects - commercially confidential and sensitive information - documents to be amended as specified

BANKRUPTCY - election by trustee in bankruptcy to prosecute or discontinue legal proceedings - whether proceedings are "for personal injury or wrong done to the bankrupt" - proceedings concern contractual arrangements in relation to real property - whether trustee had notice of the proceedings for 28 days - whether proceedings deemed to be abandoned - Bankruptcy Act 1966 (NSW), s 60 PROCEDURE - adjournment - respondent alleged inability to attend court due to medical condition and treatment - whether respondent unable to attend court due to medical condition - whether evidence of medical treatment - whether respondent aware of hearing

PRACTICE AND PROCEDURE - application to vary or set aside judgment - functus officio - no question of principle

TRAFFIC LAW - statutory compensation in respect of motor vehicle accidents - New South Wales - where insurer is deemed to have denied liability - whether insurer permitted thereafter to admit liability for part of the claim - permissible for insurer to admit partial liability after being deemed to have denied liability STATUTES - acts of parliament - interpretation - construction of s 81 of the Motor Accidents Compensation Act 1999 - whether s 81(2) permits admission of partial liability both initially (s 81(1)) and after liability has been denied (s 81(4)) - where s 6 requires the Court to prefer construction which promotes the objects of the Act

[PROCEDURE] - civil - jurisdiction - cross-vesting application - whether it is more appropriate that the proceeding be determined in the Supreme Court of Queensland - whether interests of justice favour application to cross-vest proceedings.

[PROCEDURE] - civil - judgments and orders - stay pending appeal - whether grant of stay might have an adverse impact on the plaintiffs' rights under judgment - whether declining to continue the stay would have significant impact on the interests of other unit holders - whether interests of justice favour grant of stay.

GUARDIANSHIP - accommodation of protected person - applications by daughter of protected person - application that NSW Trustee and Guardian release funds from protected person's assets for accommodation of protected person - court will not replace the decision of NSW Trustee and Guardian with its own decision - application for NSW Trustee and Guardian to immediately make decision regarding proposal for accommodation of protected person - delay in making decision regarding previous accommodation proposal - decision must be made in accordance with principles in Guardianship Act 1987 (NSW), s 4 - order that decision be made promptly - application that questions of protected person's accommodation be decided by protected person's daughter alone or jointly with Public Guardian - Guardianship Tribunal already decided that Public Guardian make accommodation decisions - previous application to remove Public Guardian dismissed - application for order that accommodation decisions be made jointly refused

FAMILY LAW - De Facto Relations - Proceedings to Set Aside Termination Deed with a view to obtaining court order for property settlement - Woman Applies for funding for expert assistance - Man alleges no jurisdiction - Held jurisdiction exists - Property (Relationships) Act 1984 NSW s 47(1) - Civil Procedure Act 2005 NSW s 98

PROCEDURE - defendant's interlocutory application for access to documents held in Court by the Prothonotary and the subject of an existing interlocutory restraint - documents the subject of Freedom of Information Act 1982 (Cth) review - whether documents should be disclosed to representatives of the first defendant, Fairfax Media, pending final hearing.

CORPORATIONS - Winding up - Statutory demand - Application to set aside statutory demand - Whether statutory demand defective by reason of only one of two joint creditors having signed statutory demand - Whether statutory demand signed "by or on behalf of the creditor" - Some other reason to set aside statutory demand - Whether in circumstances where debt the subject of statutory demand is owed to joint creditors those creditors must jointly serve the statutory demand.

PROCEDURE - defence - application for leave to amend - Civil Liability Act 2002 ss 34 and 35 - proportionate liability - whether apportionable claim - whether claim sufficiently arguable to justify grant of leave - delay in bringing application - leave granted - costs payable on indemnity basis

COSTS - partition suit - analogous to dissolution of partnership - general principle as to costs

CRIMINAL LAW - sentencing - application for leave to appeal - administering an intoxicating substance - aggravated sexual intercourse without consent - taking into account a fact not found beyond reasonable doubt - whether Muldrock error - whether instinctive synthesis approach adopted - whether manifestly excessive - cumulation and concurrency of sentences for offences arising out of a single incident.

CRIMINAL LAW - Crown appeal - sentence - reckless infliction of grievous bodily harm, respondent pleaded guilty - respondent released from custody under supervision - whether Crown denied procedural fairness in factual finding on sentence after Judge alone trial - whether error in finding respondent had no knowledge of glass in hand - whether error in failing to have regard to use of glass as a weapon - whether error in giving discrete mathematical discount to remorse rehabilitation and unlikelihood of re-offending - whether error in giving discount of 13 per cent for plea - whether sentence manifestly inadequate

CRIMINAL LAW - appeal - sentence - aggravated dangerous driving occasioning death - plea of guilty - whether moral culpability of the applicant assessed appropriately - whether improper regard to applicant's prior criminal history - whether any lesser sentence warranted

APPEAL - leave to appeal - judgment against one joint tortfeasor for over $100,000 - appeal against dismissal of claim against other joint tortfeasor - first tortfeasor satisfied judgment - whether leave to appeal required - whether matter at issue of the value of $100,000 - whether value of matter determined at time that notice of appeal is filed - Supreme Court Act 1970 (NSW), s 101 CONSTITUTIONAL LAW - Constitution of New South Wales - functions and duties of Member of Legislative Assembly - whether Member of Legislative Assembly is "a person in the service of the Crown" - Constitution Act 1902 (NSW); Law Reform (Vicarious Liability) Act 1983 (NSW), s 8 DAMAGES - assessment of damages - severity of loss as proportion of most extreme case - uncertainty as to the prospects of full recovery - whether necessary to assess likelihood of hypothetical future event occurring - whether error of principle - whether assessment wholly unreasonable - Civil Liability Act 2002 (NSW), s 16 JUDGMENTS AND ORDERS - res judicata and issue estoppel - default judgment - claim brought against third defendant for alternative and inconsistent causes of action - first and second defendants vicariously liable for conduct of third defendant - default judgment entered against third defendant did not distinguish between causes of action - whether res judicata or issue estoppel created in relation to either or both causes of action - relevance of pleadings - whether default judgment can be entered in relation to only one of alternative causes of action - whether default judgment necessarily and precisely determined the cause of action for which the third defendant was liable TORT - vicarious liability - vicarious liability of the State for conduct of persons in service of the Crown - tortious conduct of Member of Parliament in relation to electorate officer - whether Member of Parliament in the service of the Crown - whether conduct in Member's capacity as a Member of Parliament - Law Reform (Vicarious Liability) Act 1983 (NSW), s 8 TORT - vicarious liability - vicarious liability of the State for conduct of persons in service of the Crown - tortious conduct of Member of Parliament in relation to electorate officer - whether Speaker of Legislative Assembly part of executive government - whether Member agent or delegate of Speaker - Law Reform (Vicarious Liability) Act 1983 (NSW), s 8 WORDS & PHRASES - "involves a matter at issue amounting to or of the value of" - Supreme Court Act 1970 (NSW), s 101 WORDS & PHRASES - "the Crown" - "person in the service of the Crown" - Law Reform (Vicarious Liability) Act 1983 (NSW), s 8

TORT - negligence - employee injured manoeuvring a large gas cylinder down a ramp - employee successful in claim against employer - claim for contribution by employer against supplier of gas cylinders - gas cylinders supplied in cage with ramp - whether duty of care owed by supplier of gas cylinders to employee - risk of injury reasonably foreseeable - integrated purpose built ramp invited particular method of unloading which was hazardous - duty of care found to exist - apportionment of liability between employer and supplier of gas cylinders - primary judge took into account factually incorrect consideration and failed to take into account relevant matters - need to re-assess apportionment - breach of duty of care - causation - application of "but for" test - EVIDENCE - admissibility of expert evidence - relevance of evidence - compliance with s 79(1) Evidence Act 1995 (NSW) - necessary expertise established.

DEFAMATION - appeal from jury verdict - jury satisfied of the substantial truth of the imputations - whether verdict unreasonable or not open on the evidence - discussion of Hocking v Bell [1945] HCA 16; 71 CLR 430 COSTS - defamation - application for indemnity costs following failure to accept reasonable offer - interaction with Uniform Civil Procedure Rules 2005 (NSW) - whether offers reasonable - whether failure to accept unreasonable - whether exercise of discretionary power - Defamation Act 2005 (NSW), s 40; Civil Procedure Act 2005 (NSW), s 98; Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.15 and 42.15A

PRACTICE AND PROCEDURE - plaintiff seeks orders for judicial sale of property - plaintiff is judgment creditor of first defendant only - whether severance of the jointure must be effected - consideration of legal principles and context - whether order for judicial sale ought be made - second defendant has arguable defence - incomplete evidence - analogous to summary judgment - unjust to second defendant - orders dismissed

PRACTICE AND PROCEDURE - plaintiff seeks separate determination of liability - whether interests of justice support order plaintiff seeks - plaintiff's injuries ascertainable and stabilised - delaying assessment of damages for approximately 16.5 years causes quality of evidence to deteriorate and adversely affects quality of justice - will not facilitate the just, quick and cheap resolution of the proceedings - interests of justice require all the issues to be determined at a single hearing

REAL PROPERTY - defendants properties used as security for substantial loan - loan used by second cross-defendant - defendant's lacked education, life experience and commercial sophistication - inadequate independent legal advice - solicitor also acted for second cross-defendant - defendants pressured by second cross-defendant - plaintiff did not adhere to prudential lending guidelines - whether contract under Contracts Review Act 1980 or unconscionable - contract unjust - whether mortgage ought be set aside - consideration of benefit to defendants

PRACTICE AND PROCEDURE - plaintiff seeks to enforce settlement agreement - parties agreed to an "in principle" agreement - whether leave required to withdraw admission - whether there was an immediately binding agreement - whether conduct by plaintiff constituted a repudiation - whether relief ought be granted to plaintiff by way of specific performance

WILLS PROBATE AND ADMINISTRATION - informal document - whether suicide note constituted informal will - whether deceased had testamentary capacity when document made - whether deceased intended document to constitute will - whether document a valid will - whether plaintiff entitled to grant of letters of administration - turns on facts - no question of legal principle EQUITY AND TRUSTS - constructive trusts - deceased and defendant held joint bank accounts - whether deceased beneficially entitled to whole of monies in joint accounts - whether funds held on constructive trust for estate of deceased - whether payments by deceased to defendant procured by undue influence - turns on facts - no question of legal principle

[ADMINISTRATIVE LAW] - Building and Construction Industry Security of Payment Act 1999 (NSW) - application to restrain enforcement of, and to quash, a determination of an adjudicator - whether adjudicator materially denied parties natural justice by permitting the defendant to advance its claim in a way the plaintiff was not able to answer - whether adjudicator acted outside jurisdiction - whether adjudicator's determination void - whether adjudicator erred in his approach to the application of s 20(2B) and 22(2)(c) of the Building and Construction Industry Security of Payment Act 1999 (NSW).

INSURANCE - possession proceedings - cross-claim against solicitor - application to join insurer pursuant to s 6 Law Reform (Miscellaneous Provisions) Act - when event giving rise to claim for damages occurred - whether insurer bound by pleading of third party - when damage first suffered - when reasonably ascertainable that recoupment is impossible - whether cause of action accrued prior to inception of policy

PRACTICE & PROCEDURE - application for stay of writ of ejectment - whether inappropriate for ejectment to proceed in light of pending proceedings in Federal Court - whether realistic prospect of timely refinancing established

PRACTICE & PROCEDURE - application for summary dismissal - whether cause of action to remove trustee survives vesting of trust - test for summary dismissal - whether case is hopeless, without prospects of success or doomed to failure TRUSTS - application for summary dismissal of application to remove trustee - where trust has vested after application for removal - nature of duties of a trustee of a vested trust - grounds for removal of a trustee - whether safety of the trust is the central consideration - court's interest in the due administration of the trust - whether it is inevitable that case for removal must fail TRUSTS - order for production of trust documents and accounts - application for summary dismissal - whether plaintiffs entered into deed releasing their right to make such a claim PRACTICE & PROCEDURE - application for leave to amend statement of claim - where new facts are alleged to have occurred after the original pleading - where plaintiff seeks to add new grounds of relief - whether proposed pleading articulates cause of action for equitable compensation

PLEADINGS - whether reasonable cause of action disclosed CORPORATIONS - reflective loss rule - proper plaintiff rule - derivative actions NOTICE TO PRODUCE - Practice Note SC Eq 11

PROCEDURE - judgment and orders - setting aside notice of motion - failure of service of notice - exercise of judicial discretion to set aside

WORKERS' COMPENSATION - assessment and amount of compensation - entitlement to cost of funds management - contribution between joint tortfeasors with respect to cost of funds management - entitlement to pre-judgment interest - entitlement to interest on past payments of weekly compensation PROCEDURE - costs - costs as between plaintiff and first defendant - general rule costs follow the event - costs as between plaintiff and second defendant - costs as between co-defendants - costs apportioned to reflect respective liabilities of first and second defendants STATUTES - by-laws and regulations - construction - breach of statutory duty

PROCEDURE - costs - offer of compromise by Defendant - offer not accepted by Plaintiff - whether Plaintiff obtained a judgment not less favourable than the offer - offer made without deduction for workers compensation indemnity - need to take indemnity into account - meaning of "less favourable" in r 42.15 UCPR - regard to be had to Plaintiff's net position - indemnity costs not ordered - judgment less than $500,000 - whether commencement and continuation of the proceedings in the Supreme Court was warranted pursuant to r 42.34

LEAVE TO APPEAL - amendment to pleadings - delay between oral delivery of reasons and provision of revised judgment - consequent delay in application for leave to appeal - need for practitioners to take notes in court - danger to long-established trial dates caused by delay in application for leave - leave refused

PRACTICE AND PROCEDURE - application for review pursuant to s 46(4) Supreme Court Act 1970 of decision of a Judge of Appeal dismissing summons for leave to appeal on the respondent's motion - applicant must demonstrate that there has been an error of principle in the exercise of the power or that the decision was plainly wrong - heavy burden to discharge - whether there was plainly an error in the construction of ss 58 and 60 of the Bankruptcy Act 1966 (Cth) - whether there was an error in principle in dismissing proceedings pursuant to rr 13.4 and 51.1 of the Uniform Civil Procedure Rules 2005 (NSW)

EVIDENCE - admissibility - business record - Evidence Act, s 69 - previous representation in document - whether representation was made or recorded in course of business - whether person who made representation had first hand knowledge of facts asserted - where there is dispute as to provenance or authenticity of document - where document produced by third party EVIDENCE - admissibility - business record - Evidence Act, s 69 - documents that purport to be financial documents of plaintiffs - whether inference can be drawn from face of the documents - whether authenticity can be inferred from form and content of document alone - where there is no other evidence to authenticate - whether production on subpoena would be sufficient to found the inference that it is a business record