Cases and authorities

AGENCY - powers of attorney - Powers of Attorney Act 2003, s 36(4) - the plaintiff and first defendant, two sisters, are appointed co-attorneys by their parents, the second and third defendants under two enduring powers of attorney - plaintiff resides in the United Kingdom - first defendant involved in Australia in the day-to-day exercise of the powers conferred under the powers of attorney - the plaintiff seeks relief that the first defendant provide accounts and information to the plaintiff in relation to her administration of the two powers of attorney - the first, second and third defendants oppose the relief sought - to what standard are co-attorneys obliged to keep accounts of their administration under the power of attorney - whether the powers of attorney should be reviewed under Powers of Attorney Act, s 36(4). HELD: - attorney not required to keep accounts to the trustee standard - powers of attorney not reviewed under Powers of Attorney Act, s 36(4).

SUCCESSION - family provision and maintenance - whether the plaintiff is an eligible person under Succession Act, s 57(1)(e) - whether the plaintiff, a niece of the deceased, was 'dependant' on the deceased - whether adequate provision made for the plaintiff out of the estate of the deceased - whether an order for provision should be made for the plaintiff under Succession Act, s 59.

EQUITY - general principles - fiduciary obligations - where law firm entered into put and call options with respect to real property to be developed by client - where put and call options were wholly favourable to the law firm - where lawyer knew that client intended to fund purchase and development of second property with law firm's prospective purchase of first property - where there was a failure to advise client that it should obtain independent advice - law firm breached its fiduciary duty to client DAMAGES - measure of damages for breach of fiduciary duty - where defendant failed to execute contract to purchase real property under put and call options - amount plaintiff would have achieved had it entered into a contract with another party - discount for contingencies or vicissitudes - global financial crisis and its effect on completion of hypothetical contract DAMAGES - measure of damages - claim for rent and capital gain lost as a consequence of forced sale - where damages already awarded for sale of property at a loss - where no evidence of market value of property after the forced sale - inadequate submissions and evidence for award of such damages DAMAGES - measure of damages - causation - costs of audit and report required by the bank - where requirement arose because of bank's concern as to plaintiff's ability to service its debts - where plaintiff's financial burden was consequential upon defendant's default - cost should be borne by defendant

FAMILY LAW - adjustive property orders - Family Law Act, s 79 - valuation of property of parties available for division

CONTRACTS - construction

SUCCESSION - family provision and maintenance - summary dismissal application - whether eligible person - statutory interpretation - whether the change from the Family Provision Act to the Succession Act means that a person can only be a member of one household.

SUCCESSION - FAMILY PROVISION - Three Plaintiffs, the wife and two of four children of the deceased, each seeks family provision order out of the estate of the deceased under the Succession Act 2006 - The Defendant, the executor to whom Probate granted - No dispute as to eligibility - Whether to make a family provision order - If order for provision made, how the burden of that provision should be borne

TRUSTS AND TRUSTEES - Application to the court for determination of how the estate of the deceased should be distributed - Also question as to the composition of the beneficiaries having a beneficial interest in the estate - Which institutions or organisations are "public hospitals" in New South Wales

CORPORATIONS - creditor's statutory demand - where defendant has not complied with demand - whether defendant has rebutted presumption of insolvency

PROCEDURE - Costs - indemnity costs - whether costs follow the event - defendant successful in proceedings on issue raised in a late amendment - whether costs should follow the event - defendant claims indemnity costs based on (1) a settlement offer made before proceedings were commenced and (2) a later settlement offer that included a fixed sum for costs - whether first offer could base a claim for indemnity costs - whether second offer compliant with UCPR, r 26.20.

REAL PROPERTY - Strata and related titles and occupancy - defendant Owners Corporation in breach of Strata Schemes Management Act 1996, s 62(2) since December 2007 - whether plaintiff lot owner has suffered any loss from such statutory breach - assessment of the quantum of any such loss.

COMPANIES - winding up - application for leave to appeal from judge's refusal to adjourn hearing of an application to wind up company concerning which Deed of Company Arrangement proposed - criteria for granting leave to appeal - whether the interests of creditors would be better served by administration or liquidation - no error of principle below - leave to appeal refused

COSTS - costs of appeal - appeal substantially allowed - appellants made Calderbank offer - whether offer included costs of trial - whether appellants bettered their offer - whether offer provides basis for assessing appellants' success on appeal - whether respondent should pay appellants' costs of appeal COSTS - costs of trial - appeal substantially allowed - whether respondent bettered appellants' offer below - whether basis for interfering with costs order below - Uniform Civil Procedure Rules 2005 (NSW), r 20.26 COURTS AND JUDGES - constitution of Court of Appeal - judge retired between primary judgment and final orders - power to reconstitute - procedure where retired judge returns but in different capacity - discussion of Orr v Holmes [1948] HCA 16; 76 CLR 632; Cotogno v Lamb (1985) 3 NSWLR 221 - Supreme Court Act 1970 (NSW), s 43 DAMAGES - parties unable to agree on quantum - whether amount in dispute justifies precise calculation - whether basis demonstrated for rejecting respondent's calculation - calculation of interest PROCEDURE - judgments and orders - party alleged factual error in judgment - whether significance of issue justifies reopening judgment

TORT - negligence - visitor slipping on steps of rotunda in park - park including rotunda property of a trust - Council trustee of trust - relationship between Council and trust not explored at trial - whether s 42 Civil Liability Act 2002 applied to Council as trustee - whether Council could rely upon "principles" in s 42 without calling any evidence - application of s 5B Civil Liability Act 2002 - whether defect in steps reasonably foreseeable by Council - if so what if any was a reasonable response - admissions made by injured plaintiff - what inferences could properly be drawn from those admissions - what inferences could be properly drawn when neither party called evidence as to previous accidents or complaints - whether trial judge impermissibly used photographic evidence - whether causation established - DAMAGES - s 13 Civil Liability Act 2002 - future loss of earning capacity - whether any evidentiary basis for finding of trial judge.

BANKING AND FINANCE - banks - bank accounts - where bank charged plaintiff's account based on fraudulent authority not in fact signed by the plaintiff - receipt of those funds by third parties - where bank did not establish that plaintiff later ratified the receipt of funds by those third parties - bank liable to plaintiff for the unauthorised disbursement of funds CONTRACTS - particular parties - principal and agent - where bank charged plaintiff's account based on authority fraudulently provided by its mortgage originator - whether mortgage originator was acting as agent of the bank - where a clause in agreement between bank and mortgage originator expressly precludes mortgage originators from being agents of the bank - despite such a clause mortgage originator was still agent for the purposes of the bank's dealings with the public - bank liable for the mortgage originator's actions

CRIMINAL LAW - special hearing - nomination of limiting term - murder - intent to kill - intellectual impairment arising after commission of offence

CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - gunshots fired in suburban street - juvenile offender

CRIMINAL LAW - sentence - riot - violent fight between rival bikie gang members at airport - serious example of offence - negotiated plea after acquittal for murder and no verdict on manslaughter - parity with co-offenders

CORPORATIONS - Winding up - Corporations Act 2001 (Cth) s 500(2) - Application for leave to proceed against company in liquidation - Whether proposed claim has solid foundation and gives rise to a serious question to be tried.

CRIMINAL LAW - bail - manufacture not less than commercial quantity of prohibited drug - whether bail should not be refused

PROBATE - application pursuant to Pt 78 r 69 Supreme Court Rules 1970 (NSW) that three caveats lodged pursuant to Pt 78 r 61(1) Supreme Court Rules 1970 (NSW) cease to have effect - application by plaintiff who has sought probate of informal will dated 14 November 2011 - caveats lodged by three parties named either as beneficiaries or executors under earlier will - only one caveat remaining in force as at time of application - where that caveator maintains challenge to the validity of the informal will - consideration of whether caveator should be joined as a party and proceedings proceed by way of pleadings - HELD - declaratory relief pursuant to Pt 78 r 69 granted - directions made as to conduct of proceedings

CORPORATIONS - Winding up - Application for winding up and appointment of liquidator - Just and equitable ground - Application made in circumstances of shareholder deadlock and breakdown of confidence between shareholders -Whether mismanagement or lack of confidence in the conduct of management of the company's affairs.

CONSTITUTIONAL LAW - legislative power of NSW Parliament - defining characteristics of Supreme Court COMMERCIAL ARBITRATION - validity of s 5, s 34, s 35 and s 36 of the Commercial Arbitration Act 2010

SUMMARY DISPOSAL - applications to strike out defence for non-compliance with directions - operation of duties under Civil Procedure Act 2005 on practitioners and parties - application to set aside default judgment - necessity to demonstrate arguable defence by evidence and to plead case with particularity

CONTRACTS - loan to company - personal guarantee by director - cross-guarantee in respect of loans to other related parties - release by bank of company on cross-guarantee - effect on personal guarantee - whether guarantees operative - new cross-guarantee - forgery of director's signature - indoor management rule - whether bank dealt with company - director's ostensible authority - whether personal guarantee covers later cross-guarantee - whether guarantee given in course of director's business - s 6(2) Contracts Review Act 1980 - whether unconscionable for bank to rely on guarantee

COSTS AND INTEREST - amendment of orders - determination of rate of interest prior to judgment at rate set by contract breached - costs on an overall basis - judgment less favourable to offeror than Offer of Compromise - no indemnity costs - principles on amendment of orders where subject matter reserved to parties

PROCEDURE - notice of motion - order seeking summary judgment - final opportunity to amend pleadings - costs

CORPORATIONS - Federal jurisdiction - Application for declaration that Consumer, Trader and Tenancy Tribunal had no jurisdiction to determine proceedings - Whether rights or duties asserted in application before tribunal arose under, owe their existence to, or depend on, federal law - Whether relevant defence or immunity created jurisdiction.

CRIMINAL LAW - application for leave to appeal - s 6G - application for leave to appeal against decision of trial judge to discharge jury - application heard by single judge of Court of Criminal Appeal - where Crown sought to adduce context evidence relevant to explain complainant's response to sexual advances of accused - where evidence found to be relevant but excluded for unfair prejudice - where defence counsel then addressed the jury about "bizarre" nature of complainant's response to sexual advances of accused - where address of defence counsel occasioned the trial to be unfair - leave to appeal refused.

ADMINISTRATIVE LAW - judicial review - appeal to District Court from Consumer, Trader and Tenancy Tribunal ('CTTT') - application for relief by way of certiorari under s 69 of Supreme Court Act 1970 - whether District Court made jurisdictional error or error of law on face of record - whether District Court entitled to find that CTTT decision on question of law justifiable by different legal analysis to that adopted by CTTT - whether District Court should have remitted proceedings to CTTT for redetermination - whether District Court erred in making impermissible factual findings - whether discretion to refuse grant of certiorari relief CONTRACT - breach of contract - agreement to carry out construction and renovation works at family home - whether installation of solar panels and water tank formed part of contract - whether inclusion of items within plans conferred obligation to install them despite their omission from builder's quotation - whether alleged oral conversation between parties was capable of supporting appellant's contention

PROCEDURE - appeal from judgment given in absence of party - whether leave to appeal required - whether final judgment although may be set aside under UCPR r 36.16(2)(b) - judgment final and conclusive of rights - leave to appeal not required. PROCEDURE - security for costs - appellant resident outside Australia - no assets in Australia - evidence not establish has sufficient assets in place of residence or that order could readily be enforced there -security for costs ordered.

NEGLIGENCE - damages - assessment of non-economic loss - assessment of future economic loss - rejection of "buffer" approach by trial judge - assessment of past and future domestic assistance - factual finding of seven hours per week of gratuitous care by husband - no requirement of objective standard when assessing past domestic care - no error by trial judge

PRACTICE AND PROCEDURE - repetitious applications - alleged abuse of process - no arguable point to support complaint - applicant to show cause why a vexatious proceedings order should not be made

PRACTICE AND PROCEDURE - Orders - Disputed issues remaining before orders can be made to give effect to primary judgment in proceedings.

BAILMENT - warehouse destroyed by fire - cause of fire - duties and liabilities of bailee - whether duty discharged CONTRACT - contract of bailment - whether standard terms and conditions incorporated into contract - whether standard terms and conditions exclude liability TRADE AND COMMERCE - trade practices - misleading or deceptive conduct - representations PROPORTIONATE LIABILITY - concurrent wrongdoer

TORTS - Negligence - personal injury - overseas resort - guest slipped on wet stairs - whether resort negligent - whether sufficient proof of occupier - whether contributory negligence - damages - pre-existing medical conditions exacerbated by accident - economic loss - gratuitous attendant care - out of pocket expenses - non-economic loss - costs.

CONTRACTS - Local Court appeal - construction of guarantee - whether lease assigned - whether unregistered lease terminated by registration of title by subsequent proprietor - whether new registered proprietor entitled to benefit of guarantee - whether guarantee discharged.

PROCEDURE - amendment - leave to amend Statement of Claim to add parties - delay - lack of explanation for delay - whether fatal - proposed defendants already cross-defendants - effect of joinder on limitation period. PROCEDURE - possession proceedings - application by occupiers to be joined - life tenant and remaindermen not registered on title - whether interests prevail over registered mortgagee - effect on limitation period of joinder on potential cross-defendants - s 74 Limitation Act. REAL PROPERTY - Torrens system - indefeasibility - Administrator mortgages estate property -rights of life tenant and remaindermen - rights in personam - constructive notice of interests -unconscionability. LIMITATION OF ACTIONS - when action accrues - loan of funds - claim by lender -whether no-transaction case - nature of interest infringed. PROFESSIONS AND TRADES - lawyers - solicitors - non-contentious business- whether solicitor owes duty of care to other party - representations by solicitor. CONTRACTS - unjust contracts - rights of third parties - third parties not having benefit of contract.

CRIMINAL LAW - appeal against conviction - appellant convicted of armed robbery - whether Judge failed to give jury proper direction about circumstantial evidence and use of coincidence evidence - whether inappropriate for Crown not to lead evidence of biometric measurement of height - whether the conviction is unreasonable or cannot be supported, having regard to all the evidence

NEGLIGENCE - duty of care - plaintiff slipped on grease on surface of car park - escaped from grease trap under control of building manager - content of duty of care owed by car park operator to avoid risk of slipping on car park surface - whether hourly inspections would have prevented accident - grease trap alarm system known to be faulty - content of duty of care owed by building manager - whether regular inspections of grease trap would have prevented accident NEGLIGENCE - apportionment - whether primary judge erred in concluding car park operator primarily at fault as best placed to deal with risks and safety EVIDENCE - admissibility - whether primary judge erred in rejecting tender of documentary evidence - tendering party's obligation to make clear purpose and basis of tender - ordinarily no "improper" rejection of evidence if grounds which would justify tender not argued before primary judge. PROCEDURE - amendment - joinder - oral application to amend and join additional party - no notice of motion served - challenge to exercise of discretion to dispense with filing and service of notice of motion and to grant leave to amend - no House v The King error - Civil Procedure Act, s 64

PROCEDURE - claim against valuers for negligent valuation - loan made in reliance on valuation - default - resale - sale price less than valuation - whether claim is liquidated claim - what constitutes a liquidated claim DAMAGES - heads of damage - whether contractual interest is recoverable - whether amounts referable to default of borrower recoverable

EVIDENCE - objections to evidence - relevance - Evidence Act, s 55 - plaintiff seeks indemnity under policy of insurance -defendant seeks to avoid policy on ground of material non-disclosure - defendant seeks to tender audio recordings of conversations between corporate officers - whether material could rationally affect the existence of the probability that the plaintiff was aware of certain facts EVIDENCE - objections to evidence - provisional relevance - Evidence Act, s 57 EVIDENCE - objections to evidence - authenticity and provenance - where defendant proposes to adduce transcripts of audio recording of teleconferences - Evidence Act, s 48(1)(c) - where what is being tendered is not the transcript but the audio recording as proved by the tender of the transcript - where prima facie the audio recording is likely to be a business record of at least one of the parties to the teleconference EVIDENCE - objections to evidence - s 135 - whether evidence more probative than prejudicial

SUCCESSION - family provision and maintenance - whether adequate and proper provision made for maintenance, education and advancement in life

ADMINISTRATIVE LAW - order in the nature of certiorari - judgment of Consumer, Trader and Tenancy Tribunal - privative provision preventing order unless error going to jurisdiction or denial of procedural fairness - allegation of error of law by reason of no evidence finding - whether error of law goes to jurisdiction PROCEDURE - application to dismiss summons summarily - no error of law demonstrated - no jurisdictional error - summons dismissed

COSTS - Purchasers bring proceedings for performance of contract for sale of land - the contract for sale settles after commencement of proceedings - plaintiffs do not wish to proceed with relief sought in their summons - the defendant seeks costs - the plaintiffs seek their costs.

CORPORATIONS - whether various defendants acted as de facto or shadow directors in relation to various of impugned corporations - directors and officers duties - duty of care and diligence - duty to act in good faith and for a proper purpose - duty not to make improper use of position - whether officers were 'involved' in contraventions by others - Corporations Act 2001 (Cth) ss 79, 180(1), 181 and 182 AGENCY - whether illegal acts were within scope of agency - whether independent contractors were acting as agents - consideration of the scope of authority - whether scope of authority limited to the express terms of a contractual document CORPORATIONS - financial services and product - whether business confined to provision of financial education or extended to provision of a financial product or financial product advice - whether business required a financial services licence - Corporations Act 2001 (Cth) s 911A CORPORATIONS - managed investment scheme - whether there was contribution of money or money's worth in consideration for an interest in the benefits produced by the scheme - whether scheme was required to be registered - Corporations Act 2001(Cth) s 601ED(5) MISLEADING AND DECEPTIVE CONDUCT AND FALSE STATEMENT - by directors and officers - by various of the corporate administrators of the various investment funds - whether would lead recipient into error - relevance of contemporaneous disclaimers - Corporations Act 2001 (Cth) ss 1041E, 1041G and 1041H - Australian Securities and Investments Commission Act 2001 (Cth) ss 12DA, 12DB and 12DF EVIDENCE - civil penalty proceedings - whether Jones v Dunkel inferences can be drawn where defendant fails to call particular witness in a civil penalty proceeding

PROCEDURE - miscellaneous procedural matters - other matters - separate question. PROFESSIONS AND TRADES - lawyers - other matters - restraint from acting -defendants' solicitors had a history of acting for plaintiff, including in relation to takeovers - whether defendants' solicitors should be restrained from acting for the plaintiff.

PROCEDURE - leave sought to amend cross-claim - substantial delays in proceedings - discretion to allow amendments - prejudice to parties

PROCEDURE - judgments and orders - failure to comply with order - motion to strike-out proceedings for want of prosecution

COSTS - Offer of compromise not accepted - Indemnity costs - Rule 42.15A of the Uniform Civil Procedure Rules - Whether exceptional circumstances exist that warrant departure from r 42.15A