Cases and authorities

SENTENCE - liability as a consignee

SETTLEMENT - offer and acceptance - variation - condition

COSTS - Orders - Costs orders following judgment dismissing Interlocutory Process - Whether there is any reason that costs should not follow the event.

APPEAL - appeal from Local Court - magistrate dismissed statement of claim - whether error of law or error of mixed fact and law - no reasonable cause of action disclosed - proceedings an abuse of process

APPEAL - appeal from Local Court decision - whether magistrate applied erroneous standard of proof - whether magistrate wrongfully refused to admit police statement of potential witness - plaintiff essentially argues error of fact only

PROCEDURE - costs - costs of motion

PRACTICE AND PROCEDURE - statement of claim manifestly an abuse of process and must be struck out - no reasonable cause of action disclosed - proceedings dismissed

TAXES AND DUTIES - Procedure - form of orders - whether time in the Taxation Administration Act 1996, s 102(1) should be varied - whether order should be made to avoid the embargo against objections in s 86(2)(b)

CRIMINAL LAW - appeal - leave to appeal against sentence - whether error in having regard to the standard non-parole period applicable to adult offenders as a reference point in sentencing - error conceded - whether there was error in assessment of the objective seriousness of the offence - error not established - impact of the consideration of the standard non-parole period - s 6(3) of the Criminal Appeal Act 1912 - no lesser sentence warranted

ADMINISTRATIVE LAW - judicial review - procedural fairness - duty to accord - proposal to vary terms of precinct liquor accord pursuant to Liquor Act 2007 - where decision whether to vary to be based on report - where source materials for report not to be before decision maker - whether obligation of procedural fairness required respondent licensees be given source materials on which report based ADMINISTRATIVE LAW - statutory interpretation - power to vary precinct liquor accord - Liquor Act 2007, Part 8, Div 2 ADMINISTRATIVE LAW - judicial review - relief - injunction sought to prevent decision being made - whether quia timet relief available to restrain alleged breach of obligation of procedural fairness

PRACTICE AND PROCEDURE - Pleadings - Application for leave to further amend notice of appeal - Prejudice - Party should be bound by the case run at trial - Proposed amendments address matters not in issue at trial - Whether new point can be raised on appeal - Discretion of the court - Forensic considerations - Cost implications - Uniform Civil Procedure Rules 2005, rr 19.1, 51.1 - Application dismissed. PRACTICE AND PROCEDURE - Pleadings - Leave required to withdraw express admissions in pleadings - Leave not sought in application to further amend notice of appeal - Uniform Civil Procedure Rules 2005, r 12.6.

ADMINISTRATIVE LAW - claim for prerogative relief - motor accidents compensation scheme - assessment by claims assessor of the amount that a court would be likely to award as damages - statutory obligation of assessor to be satisfied as to assumptions as to future earning capacity on which award is based - statutory obligation of assessor to state the assumptions - insurer alleges non-compliancce by assessor with these obligations - challenge to primary judge's decision that there had been compliance - where assessor embarker on process of calculation as distinct from awarding "buffer" - where award based on lost future earnings of $250 per week for 18.3 years - no statement of basis for assumption of either 18.3 years or $250 - where $250 apparently based on earnings for one year of abnormally high earnings - error of law on part of assessor established.

PRACTICE & PROCEDURE - leave to file notice of motion claiming an order for mediation - where parties had prepared for hearing on substantive issues - where mediation not likely to be beneficial PRACTICE & PROCEDURE - notice to produce - where plaintiff has disclosed to journalist that he has advice of senior counsel - whether privilege waived by deploying summary of legal advice in public - whether document sought relevant

NEGLIGENCE - duty of care - patron of hotel injured when assaulted by employee of licensed premises outside hotel in the street - duty of occupier of licensed premises to patrons beyond the licensed premise - duty of security guards to patrons beyond the licensed premises

CIVIL LAW - examination orders - no appearance - arrest warrants

PRACTICE AND PROCEDURE - application for stay - consideration of the interests of justice of the parties to the proceedings and other litigants in the court

CORPORATIONS - Winding up - Voluntary winding up - Order sought for extending the time for convening of annual general meeting of plaintiff's creditors under s 508(1)(b) Corporations Act 2001 (Cth) - Whether extension of time will save costs for creditors - Whether risk of injustice to any party.

FAMILY LAW AND CHILD WELFARE - application for orders that interventionist steps not be taken in event child suffers cardiac or respiratory arrest or another life-threatening event - where exceptional circumstances of child's profound disabilities - consideration of quality of life of child - where court satisfied that if steps were taken to resuscitate child the result would be to cause her increased suffering with no commensurate benefit

EVIDENCE - Exemption from service prior to trial - Interests of justice - Markus order

SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, seeks family provision order - very small estate - competing claimant - widow of the deceased of short marriage - Jurisdiction - need for cogent evidence of Plaintiff's financial circumstances before jurisdiction is established - Failure to disclose complete financial and material circumstances - Summons dismissed

PRACTICE AND PROCEDURE - application for vexatious proceeding order pursuant to s 8 Vexatious Proceedings Act 2008 - whether proceedings are vexatious - whether vexatious proceedings were instituted or conducted frequently - repeated relitigation of issues

CRIMINAL LAW - murder - appellant convicted of killing two flatmates with baseball bat - forensic and other evidence sufficient to support rational hypotheses consistent with innocence - reasonable doubt as to guilt notwithstanding inconsistencies and implausibilities in appellant's account - verdict unreasonable or insupportable having regard to the evidence - convictions quashed - no retrial ordered

CRIMINAL LAW - sentence - indecent act with child - possession and dissemination of child pornography - fixed term given for offence with standard non-parole period - error regarding maximum penalty - whether no lesser sentence warranted.

PROCEDURE - civil - judgments and orders - stay pending appeal or judicial review - applicant not party to proceedings below - whether danger that proceedings could be disposed of without involvement of applicant - whether stay appropriate - Land and Environment Court Act 1979 (NSW), s 34 PROCEDURE - Land and Environment Court - review of decision of Registrar - whether power of Judge of Land and Environment Court to review decision of Registrar of that Court - Lowy v Land and Environment Court [2002] NSWCA 353; 123 LGERA 179 discussed

CORPORATIONS - external administration - application to set aside creditor's statutory demand - application by director to be joined as plaintiff - whether director would have standing to be a plaintiff - UCRP r 7.1(2) requires that a solicitor be appointed to act for defendant company

COSTS - offer of compromise - whether indemnity costs should be ordered - whether court should otherwise order - where plaintiff rejected defendant's offer of judgment for the defendant with each party to bears its own costs - where outcome was less favourable to plaintiff - whether offer by defendant was a genuine offer of compromise - factors in determining whether an offer involved a real measure of compromise - whether offer was realistically calculated to bring about a compromise of the proceedings - UCPR r 42.15A - UCPR r 20.26(2)

WILLS, PROBATE AND ADMINISTRATION - executor - obligations of executors - where executors are directors of trustee of trust to which balance of estate is paid - no order had been made for payment of commission - executors paid themselves purported advances on commission - one executor paid himself remuneration for professional work done for the estate as an accountant although no clause in will authorising such remuneration - executors as directors of residuary beneficiary purported to authorise payments of advances on commission - where conflict between personal interests of executors in receiving remuneration and duty to residuary beneficiary - where acting on legal advice - prompt steps taken to rectify defaults after taking further legal advice - undertaking to court for repayment of funds received TRUSTS - beneficiaries - question as to who are beneficiaries of trust - where trustees power to appoint all or parts of the trust fund or income thereof to be held in trust for one or more persons to the exclusion of others - consideration of definition of "appointed class" - whether definition of "appointed class" so hopelessly wide so that trust is administratively unworkable - possibly that trust assets held for benefit of charities - referral of papers to Attorney-General COSTS - indemnity costs - resistance to plaintiff's claim not reasonable

Opinion evidence - mechanical engineer and ergonomist - evidence admitted - no question of principle.

[CONFIDENTIAL INFORMATION] - whether revenue figures of plaintiffs' employees is confidential information - distinction between approximate revenue figures of one employee and specific revenue figures of a large group of employees. [CONTRACT] - whether defendant aware of terms in contracts of employment requiring plaintiffs' employees to use best endeavours to promote and enhance plaintiffs' interests and not to do anything that may be harmful to plaintiffs - whether defendant aware of term requiring plaintiffs' employees not to disclose revenue figures to a competitor - whether defendant induced plaintiffs' employees to breach their employment contracts.

APPEAL FROM LOCAL COURT - claim for damages for breach of contract or, in the alternative, claim of quantum meruit - conflicting evidence - failure of Magistrate to provide adequate reasons - error of law - appeal allowed and matter remitted to Local Court

PROCEDURE - claim of conversion and detinue - discovery - application by plaintiff to cross-examine third defendant in relation to alleged insufficient discovery - application by defendants for discovery of documents - claim of legal professional privilege by plaintiff - application to file cross-claim - HELD - grant plaintiff's application to cross-examine third defendant - grant defendants' application for discovery - grant application to file cross-claim

SUCCESSION - FAMILY PROVISION - The Plaintiffs, daughters of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the grandchild of the deceased, to whom Probate of the deceased's Will was granted, and the daughter of the sole residuary beneficiary - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made. Allegation of estrangement and its effect on the provision made for each Plaintiff

CONTRACTS - principles - harsh and unconscionable contracts - where loan contract imposes a 2.5 per cent interest rate increase after 12 months - increase not extravagant or unconscionable so as to amount to a penalty CONTRACTS - loans to which loans monies paid by the defendants should be appropriated CONTRACTS - general contractual principles - offer and acceptance - where borrower offered certain rate of interest for certain loan amount different from amount ultimately in fact loaned - whether borrower agreed to pay the same rate of interest on the different amount INTEREST - recoverability of interest - award of interest on debts and sums certain - where loans not subject of agreement for interest - where loan promptly provided and unpaid for a long time - lender entitled to interest at rate specified in Practice Note SC Gen 16 CONSUMER CREDIT - credit protection - applicability of the National Credit Code -whether credit was provided in the course of a business of providing credit - whether credit provided wholly or predominantly for personal, domestic or household purposes REAL PROPERTY - torrens title - unregistered interests - where defendants promised to give plaintiff a mortgage over property in consideration for deferral of repayment of a loan - whether plaintiff had equitable mortgage over the property REAL PROPERTY - torrens title - caveats against dealings - compensation for lodging caveat without reasonable cause - distinguished from question of whether caveat was in bad form - whether plaintiff had reasonable belief it had a caveatable interest

PROCEDURE - Procedure under rules of Court - Summary Disposal - Want of prosecution - Defence Struck Out - Uniform Civil Procedure Rules, 2005 (NSW), rule 12.7(2) PROCEDURE - Procedure under rules of Court - Summary disposal - Judgment and orders - Summary judgment granted - Uniform Civil Procedure Rules, 2005 (NSW), rule 13.1

CRIMINAL LAW - appeal - 5F - decision of trial judge not to recuse himself - whether reasonable apprehension of bias - where lack of understanding between trial counsel and trial judge - no reasonable apprehension of bias.

CRIMINAL LAW - sentence - murder - plea of guilty - applicant stabs victim - intention to cause grievous bodily harm - applicant 34 years' old at time of murder - significant history of offences of violence - long history of drug use and mental instability - chequered history of recidivism - well-established pattern of ceasing to take medication on release from custody combined with illicit drug use - finding of slight prospect of rehabilitation - whether error in approach to applicant's mental illness and protection of the public - whether error in approach to standard non-parole period - whether sentence manifestly excessive - no error demonstrated - sentence not manifestly excessive - appeal dismissed

NEGLIGENCE - motor vehicle accident - injury to minor - appeal as to quantum of damages - settlement of proceedings - court approval required for minor

APPEAL - security for costs - UCPR r 51.50 - whether special circumstances - impecunious appellant - relevance of benefit to appellant's creditors if appeal succeeds

APPEAL - civil - appeal from discretionary decision - whether Court of Appeal should intervene where Court would have exercised the discretion differently - whether powers of Court of Appeal under Supreme Court Act 1970 (NSW), s 75A constrained by House v The King [1936] HCA 40; 55 CLR 499 APPEAL - civil - leave to appeal - whether disparate approaches to similar statutory regimes justifies leave to appeal CRIMINAL LAW - recovery of proceeds of crime - examination orders - whether examination would interfere with the administration of justice in criminal proceedings - whether examination order may be made where criminal charges pending against examinee - whether procedural protections available to prevent abuse of power - Criminal Assets Recovery Act 1990 (NSW), ss 13A, 31D, 63 PROCEDURE - civil - primary judge refused but did not dismiss application - whether oversight - whether parties treated application as dismissed - whether Court of Appeal should make the order which should have been made - whether Court of Appeal's order should take effect on date of primary judge's orders - Uniform Civil Procedure Rules 2005 (NSW), r 36.4(3) PROCEDURE - interlocutory issues - suppression orders - order for examination of persons before officer of Supreme Court - whether suppression order available to prevent prejudice to a future criminal trial - Court Suppression and Non-publication Orders Act 2010 (NSW), s 8 STATUTORY INTERPRETATION - Criminal Assets Recovery Act 1990 (NSW), ss 13A, 31D, 63 - examination orders - whether power to order examination limited by general law principles relating to a fair trial

AGENCY - real estate agents - failure by real estate agent to account for funds entrusted to it - claims against Property Services Compensation Fund established under Property, Stock and Business Agents Act 2002 - whether claims out of time - whether claims made more than two years after the failures to account or more than 12 months after the claimants became aware of the failures to account - meaning of "failure to account" - whether overcharging for commission constituted a failure to account - whether pecuniary loss suffered as a result of failure to account where prior misappropriation of funds - whether compensation to joint owners of funds limited by s 175 to one shared amount of $500,000 - whether costs of court proceedings included in amount to which claims limited - date from which claimants entitled to interest under s 100 Civil Procedure Act 2005

CORPORATIONS - Deregistration - Reinstatement - Corporations Act (2001) Cth) s 601AH(2) - Reinstatement by court - Satisfaction of the court as to whether it is just that company be reinstated - Circumstances in which company deregistered, purpose of reinstatement and public interest generally relevant to whether company should be reinstated. CORPORATIONS - Winding up - Termination - Power of court to terminate winding up - Attitude and interests of creditors, liquidator and contributories - Whether termination is in the public interest and the company is solvent - Whether any non-compliance with statutory duties and circumstances leading to wind up explained.

INDEMNITY - where plaintiff has judgment against the first defendant/applicant and he has orders that he is entitled to be indemnified by the first respondent and the second respondent - first defendant/applicant is entitled to a money judgment on an interim basis - no issue of principle

CRIMINAL LAW - criminal procedure - indictment - form of indictment - alternative verdict - availability of alternative verdict of accessory after the fact to manslaughter

CRIMINAL LAW - particular offences - offences against the person - homicide - murder - intention to kill or cause serious non-fatal injury - causation CRIMINAL LAW - general matters - criminal liability and capacity - defence of mental illness

CORPORATIONS - Winding up - Termination - Power of court to terminate winding up - Attitude and interests of creditors, liquidator and contributories - Whether termination is in the public interest and the company is solvent - Whether any non-compliance with statutory duties and circumstances leading to wind up explained.

PRACTICE AND PROCEDURE - application for leave to amend pleadings - utility of proposed amendment.

EVIDENCE - onus of proof - mental capacity to create trust - consideration of presumption of sanity - where elderly person purported to settle money on trust a few days before her death.

APPEAL AND NEW TRIAL - bias of trial judge - where the trial judge is alleged to have been vitiated by actual or apprehended bias - allegations of bias must be dealt with first on appeal as the discovery of bias taints the whole of the judgment below APPEAL AND NEW TRIAL - bias of trial judge - where the trial judge is alleged to have been vitiated by actual or apprehended bias - it is not prejudgment for a trial judge to rely on a party, without objection, seeking to confine the issues it agitates to particular arguments it has put forward at trial EVIDENCE - proof of documents - where print-out of email produced before the court purporting to show email and its attachments were sent to a particular addressee - reasonable to assume that in the ordinary course of business emails reach their intended recipient - conclusion supported by s 161 Evidence Act 1995 JUDGMENT - reasons for judgment - amendment by judge to judgment after delivery of reasons extempore - extent to which amendments are permissible - permissible amendments are limited to matters which were clearly in the judge's mind at the time or are merely editorial or stylistic - changes of substance are not permitted - the inclusion of an order not requested by either party supported by reasons not addressed by either party is a change of substance - order set aside JUDGMENT - reasons for judgment - amendment by judge to judgment after delivery of reasons extempore - where amendments were impermissible - proper course on appeal is to read judgment as if amendments had not been made PRACTICE AND PROCEDURE - expedition list - not necessary for trial judge having an expedited matter come before him or her to question the reason for the placement of the matter in the expedition list - reasonable to proceed on the basis that the matter ought to be dealt with as expeditiously as practicable in the circumstances REAL PROPERTY - service of notices - s 170 Conveyancing Act 1919 - the legislatively enumerated methods of service serve to increase, not limit, the ways in which service can be effected - any method by which a document actually comes to the attention of the person to be served is sufficiently served for the purposes of the section - Notice of Intention to Apply for Foreclosure required to be served on mortgagor - notice in electronic format attached to an email sent to the mortgagor by his solicitor was actual service of the mortgagor WORDS AND PHRASES - "actual bias", "apprehended bias", "service"

REAL PROPERTY - Sale of Land - Appointment of Trustees