Cases and authorities

APPEAL - leave to appeal and appeal from Local Court decision - whether judgment given on admissions - whether default judgments entered - whether his Honour erred in striking out the defence - whether judgment was wrongly given, on the admissions made - no error - appeal dismissed

JUDICIAL REVIEW - Decisions of proper officers of Motor Accidents Authority - exercise of discretion - whether incorrect test applied - whether failure to take into account, failure to accord natural justice, or constructive failure to exercise jurisdiction - gloss on statutory test - costs.

[CONTRACT] - building and construction - whether defendants breached contractual duty of care - whether breach of specific design criteria - whether defendants design of the works was in accordance with best engineering practices - whether defendant complied with contractual duty of care - whether defendant engaged in misleading and deceptive conduct by representing it would provide design services properly - whether rectification works unreasonable. [EQUITY] - assignments - whether valid assignment - whether genuine commercial interest. [DAMAGES] - contract - calculation of indirect costs - whether plaintiff is entitled to recover damages for corporate overheads - whether assessment of loss includes rectification works. [TORTS] - duty of care - whether defendant owed the plaintiff a duty of care - whether duty of care more extensive than the obligations under the express retainer. [PROCEDURE] - application for leave to amend - whether amendment propounded was so deficient as to be embarrassing - whether proposed pleading is likely to cause significant prejudice.

COSTS - Civil Procedure Act 2005, s 98(4) - specified gross sum costs order - whether defendant impecunious and unlikely to satisfy any costs order - defendant not likely able to pay costs of assessment or meet liability from any order for legal costs - consideration of evidence - requisite orders justified

[PROCEDURE] - Practice Note SC Eq 11 - disclosure - where further disclosure and verified list of documents sought - limitations on extent of disclosure.

CRIMINAL LAW - appeal - objections or points not raised in court below - Criminal Appeal Rules, Rule 4- leave to appeal granted only where miscarriage or an irregularity going to the root of the trial CRIMINAL LAW - appeal - conviction - misdirection by trial judge - multiple grounds of appeal - evidence not relevant to appellant where multiple accused - tendency and coincidence and context evidence - meaning of 'in company' element of aggravated sexual assault - physical presence during preparatory acts - knowledge of lack of consent - directions on criminal standard - jury note on 'beyond reasonable doubt' - insufficient summing-up - failure to direct on other charge the subject of a directed acquittal - leave to appeal refused CRIMINAL LAW - appeal - conviction - guilty verdict not reasonably open to the jury - insufficient evidence to be satisfied of guilty beyond reasonable doubt CRIMINAL LAW - appeal - sentence - approach to standard non-parole period after Muldrock v The Queen [2011] HCA 39 - no error in application of standard non-parole period CRIMINAL LAW - appeal - sentence - no failure to take into account subjective features CRIMINAL LAW - appeal - sentence - unreasonable or plainly unjust - sentence not manifestly excessive

CRIMINAL LAW - appeal against conviction - supply of more than a large commercial quantity - deemed supply - whether trial judge erred in refusing to sever count 2 - whether trial judge erred in refusing to direct a verdict - whether trial judge erred in directions to the jury - whether unreasonable verdict

CRIMINAL LAW - appeal - conviction - whether verdict unreasonable or unsupported by evidence - whether verdicts inconsistent - where inconsistency explainable by evidence suggesting error in asserted date and location of offence - appeal dismissed. CRIMINAL LAW - appeal - conviction - directions - whether trial judge made error in directions relating to delay in making of complaint - s 165B Evidence Act - leave to appeal refused. CRIMINAL LAW - appeal - conviction - evidence - context evidence - whether trial judge erred in referring to "uncharged acts" - where trial judge used term "uncharged acts" on only one occasion - leave to appeal refused. CRIMINAL LAW - appeal - conviction - evidence - tendency evidence - whether evidence of common assault properly admitted without tendency evidence notice - whether trial judge erred in failing to properly direct jury about manner in which evidence of common assault could be taken into account - where evidence admitted relied upon by applicant at trial - where no redirection sought by applicant at trial - leave to appeal refused. CRIMINAL LAW - appeal - conviction - directions - whether trial judge erred in not cautioning the jury about use of evidence of uncharged acts as tendency evidence at time evidence given via DVD - where trial judge elected not to interrupt DVD of complainant's evidence - no objection made by trial counsel - direction of trial judge appropriate - leave to appeal refused. CRIMINAL LAW - appeal - conviction - evidence - whether trial judge erred in admitting evidence of a protected confidence - where issues discussed with trial judge - whether trial judge erred in failing to require Crown Prosecutor to seek leave - no objection made by trial counsel - no miscarriage of justice - leave to appeal refused. CRIMINAL LAW - appeal - conviction - directions - whether trial judge erred in failing to assist jury with meaning of "under authority" - whether trial judge gave binding direction of law to find that complainant "under authority" of applicant - where words of statute ordinary English words - where acceptance of evidence could only result in one conclusion - leave to appeal refused. CRIMINAL LAW - appeal - sentence - whether sentence in relation to common assault manifestly excessive - sentence manifestly excessive - appeal upheld.

CRIMINAL LAW - preliminary issue, application for extension of time for leave to appeal on basis of incorrect advice - not opposed by Crown - application granted and time extended - primary issue, application for leave to appeal pursuant to Criminal Appeal Act 1912 s 5F - offence of break and enter and sexual intercourse without consent - Crown's case circumstantial - applicant entered plea of guilty - relied on advice from solicitor and counsel that tendency evidence would be admitted - whether error in District Court decision - central question is admissibility of the tendency evidence - unlikely evidence would have been admitted - satisfied advice affected applicant's plea - error with respect to view of admissibility of evidence and with respect to view that advice was appropriate - whether plea should be allowed to be withdrawn - consideration of facts, context of circumstances - no genuine consciousness of guilt - appellant ought to have been allowed to withdraw plea - application allowed

CRIMINAL LAW - sentence - wounding with intent to cause grievous bodily harm - glassing on licensed premises - consideration of standard non-parole period - assessment of objective seriousness - whether sentence manifestly excessive.

APPEAL - leave to appeal - applicable principles - whether applicants suffered injustice - whether primary judge in error. CRIMINAL LAW - order under Criminal Assets Recovery Act 1990 restraining property - application to vary order to meet reasonable legal expenses of sentencing proceedings - whether precluded by undertaking to make no further application for legal expenses "with respect of the trial of drug charges" - whether sentencing proceedings "with respect of the trial of drug charges". CRIMINAL LAW - order under Criminal Assets Recovery Act 1990 restraining property - undertaking given - consent order - construction of undertaking - applicable principles.

CIVIL PROCEDURE - Joinder of parties - Husband and wife - Wife registered proprietor of land - Land encumbered by registered mortgage - Husband claims land held on resulting trust by wife - Husband not party to possession proceedings on appeal - Whether non-party to appeal proceedings is necessary party and ought to be joined -- Equitable interest does not have priority over first ranking registered mortgage - Husband not necessary party - Application dismissed with costs.

PRACTICE AND PROCEDURE - Application for leave to reopen proceedings - Applicant re-agitating same issue dealt with in previous applications before Court - No fresh argument - No new circumstances justifying reopening initial decision refusing leave to appeal - Vexatious and abuse of process - Application dismissed - Uniform Civil Procedure Rules 2005 (UCPR), r 36.16 PRACTICE AND PROCEDURE - Application for stay of costs orders - Dependent upon outcome of application pursuant to UCPR, r 36.16 - Application fails

NEGLIGENCE - duty of care - breach - inadequate lighting in car park - car park user tripped on log in darkness en route to vehicle - reasonable requirement for car park operator to take precautions - no contributory negligence NEGLIGENCE - damages - past domestic assistance - sufficient evidence to justify conclusion of 1-2 hours per day of gratuitous care

PROPERTY - possession - no evidence of value of land - whether court should exercise discretion to make an order for sale - whether court should determine relevant reserve price - whether debtors ought to be allowed time to repay outstanding balance

CRIMINAL LAW - sentencing after trial - conspiracy to defraud the Commonwealth - Crimes Act 1914, s 29D, s 68(1) - conspiracy to cause loss to the Commonwealth - Criminal Code (Cth) - Crimes Act 1914, Pt 1B - relevant sentencing considerations - nature and circumstances of offences - contrition - cooperation with law enforcement authorities - general deterrence - scheme involving fraudulent claims for deductible business expenses - false invoices - false document trail - period of offending - financial benefit - involvement and participation of offenders - attempts at concealment of offences - course of criminal conduct - necessity for adequate punishment - personal circumstances of offenders - evidence of good character - absence of mitigation - worst category case - effect of reduction in maximum penalty - totality - mitigating circumstances - influence of older and more powerful employer - attempt to halt participation - delay in proceedings - probable effect of sentence on family and dependants - must be exceptional - availability of intensive correction order - not appropriate - cooperation with prosecution in adducing evidence

PROPERTY - Transfers of property - undue influence - presumed undue influence - parent and child - evidence to rebut presumption - improvidence of transfer - divesting voting control of valuable company - whether explicable by ordinary motives - whether presumption rebutted PROPERTY - Transfers of property - unconscionable dealing - whether transfer of shares procured by unconscionable dealing - relationship of special disadvantage - youth, inexperience, lack of knowledge, absence of advice, reliance on and trust and confidence in parent - whether defendant knew plaintiff was not in a position to look after his own interests LACHES - whether plaintiff had relevant knowledge to justify commencement of proceedings TRUSTS - breach of trust - transfer of shares held on trust CORPORATIONS - oppressive conduct - whether defendants managed company so as to disproportionately benefit them and disadvantage plaintiff - failure to prove disproportionate benefits - whether defendants failed to provide information - no case of oppression made out TRUSTS - dealing with trust property - whether wilful default on part of defendants - difference between account on basis of wilful default and common basis - wilful default requires evidence of failure to bring receipts to account - evidence of expenditure in breach of trust does not justify account on ground of wilful default - no evidence of wilful failure to get in an asset CORPORATIONS - winding up - just and equitable ground - closely held family company - whether personal equitable obligations subsist between shareholders - whether objects can be carried out notwithstanding breakdown in relationships between directors - lack of clean hands on the part of the applicants for winding up - no basis for imposing equitable obligations in addition to legal rights of shareholders FAMILY LAW - application to set aside consent orders under (Cth) Family Law Act 1975 - (Cth) Family Law Act 1975 s 79A - whether matrimonial cause - whether residuary beneficiary in unadministered estate affected by an order - whether orders made without jurisdiction - whether proceedings discontinued before orders made - denial of procedural fairness - whether plaintiff was entitled to notice as person affected - failure to give notice to plaintiff amounted to a miscarriage of justice - order to set aside consent orders FAMILY LAW - application for another order under (Cth) Family Law Act 1975, s79A(1) - (Cth) Family Law Act 1975 s 79(8) - preconditions for making a property order after death of a party - where court would have made an order but for the death of a party - whether it is still appropriate to make an order - effect of distribution of deceased's assets on whether it is still appropriate to make an order FAMILY PROVISION - (NSW) Family Provision Act - application for provision out of deceased estate - whether extension should be granted to bring claim out of time - factors relevant to exercise of discretion - whether an extension ought to be granted where substantive application would not succeed - no extension of time granted

COSTS - costs under the Defamation Act 2005 s 40 - differential costs orders - considerations relevant to the exercise of the discretion with respect to costs - whether plaintiff's offer to settle reasonable - whether defendants' failure to make an offer unreasonable

ADMINISTRATIVE LAW - judicial review - magistrate's decision under s 91 of Criminal Procedure Act denying an application to compel attendance of witnesses for cross-examination at plaintiffs' committal hearing - whether magistrate's decision was affected by apprehended bias - whether magistrate asked himself the wrong question - whether magistrate took irrelevant considerations into account, or failed to take relevant considerations into account - magistrate held not to have fallen into error CONSTITUTIONAL LAW - meaning and scope of "trial by jury" in s 80 of the Constitution - whether s 91 of the Criminal Procedure Act is picked up by s 68 of the Judiciary Act 1903 (Cth) so as to apply to an indictment for a federal offence - whether s 91 of the Criminal Procedure Act is compatible with the conception of "trial by jury" in s 80 of the Constitution - section held not to be invalid - summons dismissed

CONTRACT - unjust contract - claim under the Contracts Review Act - self-certifying loan - allegation of asset lending - whether the loan is unjust in the circumstances - borrower's age at the time of the loan made the loan contract unjust - lender's lack of substantiation of the borrower's income CONSUMER LAW - misleading and deceptive conduct - representations by a lender's agent at settlement - causation - whether a sufficient and direct link between the conduct and consequences

APPEAL - consequential orders - application for indemnity costs - no issue of principle

PRACTICE AND PROCEDURE – application for expedition of bail hearing – whether legal error to found judicial review – no legal error – whether order should be made in any event – application dismissed

PRACTICE AND PROCEDURE - application for adjournment - consideration of history - Civil Procedure Act 2005, ss 56 and 58 - dictates of justice - just quick and cheap resolution - not in interests of justice to adjourn

PROCEDURE - pro bono application - application for referral to pro bono legal panel - application granted - reasons

ADMINISTRATIVE LAW - judicial review - Plaintiff a councillor on Warringah Council - Plaintiff also works as Secretary/Research Assistant for Member of Legislative Council - MLC places questions on notice in Legislative Council that are strongly critical of Council - Council meets to consider MLC's questions - debate in Council leading to resolution critical of MLC - Plaintiff does not declare conflict of interest - Plaintiff participates in debate and strongly defends MLC - complaint made against Plaintiff of breach of Code of Conduct - Conduct Reviewer appointed by Council to investigate - Conduct Reviewer provides report adverse to Plaintiff - Plaintiff brings proceedings for prerogative relief to set aside report - claim of error of law on face of record and failure to have regard to mandatory consideration - claim of apprehended bias on part of Conduct Reviewer by way of prejudgment - meaning of non-pecuniary conflict of interest - construction of Code of Conduct and Code of Meeting Practice - error of law not established - no failure to have regard to mandatory consideration - apprehended bias not established - proceedings dismissed

EVIDENCE - expert reports - advance ruling - whether inadmissible

CRIMINAL ASSETS - consent order for proceeds assessment orders and related orders - motion by defendants to set aside order under Contracts Review Act - no question of principle

RESTRAINT OF TRADE - Covenant Post Employment Restrictions Non-Competition Restraint Interlocutory Injunction

CRIMINAL LAW - procedure - fitness to plead or be tried - charge of murder - charge of sexual intercourse with child under 10 - mild intellectual disability

STATUTES - interpretation - deeming provision of s 34AB(1)(c) of the Acts Interpretation Act 1901 - whether reasonably arguable that functions of Civil Aviation Safety Authority were delegated de facto by operation of legislative instrument - whether reasonable cause of action in tort against CASA disclosed PRACTICE AND PROCEDURE - pleadings - whether reasonable cause of action disclosed - whether pleadings as against Civil Aviation Safety Authority liable to be struck out

EVIDENCE - expert reports - advance ruling - foreign law - content evidence - application evidence - whether inadmissible

INSURANCE - construction of policy - applicability of excess provision

WILLS - construction and effect - general principles of construction - court should give words their ordinary meaning in the context of the will - whether ordinary meaning should be departed from because arguably inconsistent with the "basic scheme" of the will - admissibility of evidence of intention of the deceased.

APPEAL FROM LOCAL COURT - summary judgment in Local Court - application for leave to appeal and for extension of time to apply for leave to appeal - defendant in Local Court did not appear but had filed affidavit supporting his defence - extension of time granted - appeal upheld

COSTS - general rule that costs follow event - trial costs - appeal costs COSTS - assessment - interest - up to judgment

PRACTICE AND PROCEDURE - costs - security for costs

PROCEDURE - judgments and orders - satisfaction on set-off of judgments - costs - judgment entered against fourth defendant for $89,970.01 - whether Court should proceed to deal with questions arising out of the enforcement of the plaintiff's judgment against the fourth defendant in addition to issues of costs as between the plaintiff and the fourth defendant. HELD: Court will deal with the costs issues between the plaintiff and the fourth defendant only.

CORPORATIONS - Corporations Act 2001 (Cth) ("the Act") ss 9, 286(1), 429 and1305 - company books and records - presumption that books kept by body corporate under a requirement of the Act are prima facie evidence of any matter stated or recorded - director's loan account records his indebtedness to the company - where company is placed in receivership and director signs Report as to Affairs stating that he is a debtor of the company - director challenges accuracy of loan account balance on the basis that additional matters should be recorded and certain entries were incorrectly included - CONTRACT - where director borrows money and on lends it to company - whether agreement by company to pay interest

[CONTRACT] - alleged statement by the deceased to leave her estate to the plaintiffs if they "looked after" the deceased and her husband and looked after their "affairs" - whether intention to be legally bound - whether deceased suffering from dementia at time of alleged statement - capacity generally and in particular in relation to the consequences of the alleged statement. [ESTOPPEL] - whether alleged representations made - whether reliance - whether detriment established.

CIVIL LAW - negligence - personal injury - liability - motor vehicle collision with cyclist - no acceptable evidence of negligence

[PROCEDURE] - Practice Note SC Eq 11 - disclosure - where parties seek an order for disclosure before service of evidence - whether discovery categories too broad.

CRIMINAL LAW - Crown appeal - sentence - where sentencing judge categorise each offence as being of similar seriousness - where sentencing judge failed to indicated impact of matters on Form 1 on sentence for particular offences - application of s 53A of Crimes (Sentencing Procedure) Act 1999 - whether sentencing judge erred in finding that offences were not planned - no error in finding that offences were not planned - whether sentencing judge erred in the manner in which he took into account mental illness of respondent - no error found in approach of sentencing judge to issue of mental illness - whether non-parole period of sentence manifestly inadequate - where non-parole period 21.42% of head sentence - where history of significant mental illness - where effective and appropriate psychiatric treatment requires - where respondent had history of not offending whilst on parole - non-parole period not manifestly inadequate.

CRIMINAL LAW - appeal - sentence - fresh or new evidence - inadmissible - no question of principle

CRIMINAL LAW - interlocutory Crown appeal - larceny - admissibility of evidence - coincidence evidence - conditions of admissibility - reasonable notice - formation of opinion by court that the evidence, either by itself or having regard to other evidence adduced or to be adduced by tendering party, capable of having significant probative value - evidence not admissible if conditions not met - process for determination of admissibility - differing functions of judge and jury - whether evidence capable of having significant probative value - whether probative value of evidence substantially outweighs its prejudicial effect - probative value does not substantially outweigh prejudicial effect - Criminal Appeal Act 1912, s 5F(3A), s 5F(5) - Evidence Act 1995, s 97, s 98, s 100(2), s 101, s 165

CRIMINAL LAW - conviction appeal - trial for seven alleged sexual offences committed in 1978-1979 - verdict by direction on one count - appellant convicted on remaining six counts - whether Markuleski direction should have been given arising from acquittal by direction- no such direction sought at trial - no miscarriage of justice - leave refused under rule 4 Criminal Appeal Rules CRIMINAL LAW - sentence appeal - whether sentences imposed failed to reflect sentencing practices in 1978-1979 - whether error in approach to appellant's good conduct since commission of offences - whether sentences manifestly excessive - error established - appellant resentenced

CRIMINAL LAW - Appeal - sentencing - accumulation and totality - sentence for two similar offences - sentence imposed while another sentence being served.

CRIMINAL LAW - Appeal - trial judge refused to discharge jury - jurors raised concern about person loitering near jury exit - no miscarriage of justice - trial judge directed jury appropriately - principle discussed.

COSTS - Costs order against law practice - Whether professional negligence claim had reasonable prospects of success - Whether solicitor entitled to rely on expert opinion and counsel advice - Solicitor must turn an independent mind to the matter - Legal Profession Act 2004, ss 345 and 348 COSTS - Costs order against legal practitioner - Unnecessary costs - Costs incurred without reasonable cause in circumstances where legal practitioner responsible for costs unnecessarily incurred - Civil Procedure Act 2005, s 99 LEGAL PRACTITIONERS - Provision of legal services - Requirement to have reasonable belief in reasonable prospects of success - Reliance on counsel's advices - Reliance on expert's reports - Expert's reports wrong TORTS - Negligence - Solicitor's duty of care - Solicitor retained to advise on nervous shock claim - Whether solicitor under obligation to take additional or positive step - Whether solicitor owed duty to obtain psychiatric evidence - Solicitor settled claim pursuant to client's instructions - Solicitor entitled to follow instructions of client - No evidence of client's mental or emotional incapacity to give instructions WORDS AND PHRASES - "without reasonable prospects of success"