Cases and authorities

PROCEDURE - transfer of proceedings - District Court proceedings - Industrial Court proceedings - alleged breach of employment contract - alleged underpayment of long service leave entitlements - breach of Corporations Act 2001 (Cth) - orders made - transfer of proceedings from District Court to Supreme Court - transfer of proceedings from Industrial Court to Supreme Court - costs

CRIMINAL LAW - sentence - manslaughter - provocation

CRIMINAL LAW - sentence - murder - violent confrontation between two groups of young men - shotgun discharged at unarmed person - objective seriousness of offending extremely high - aggravating features

PROCEDURE - costs - where no hearing on merits and proceedings resolved by consent - general principle that parties should bear their own costs - whether this general principle should be departed from - where defendant has effectively capitulated - whether plaintiff acted unreasonably in continuing proceedings after multiple offers of settlement in circumstances where extent of defendant's improper conduct unknown.

COSTS - Costs and consequential orders - Plaintiff unsuccessful in application to set aside deed of company arrangement in primary proceedings - Whether costs should follow the event in circumstances where deficiency in administrator's conduct was established in respect of deed of company arrangement although court declined to exercise discretion to set aside deed of company arrangement - Whether reasonable for Plaintiff to bring application. COSTS - Indemnity costs - Application for indemnity costs by Second Defendant - Final relief against Second Defendant not pressed at trial.

COSTS - Costs and consequential orders - Indemnity costs - Whether order for indemnity costs should be made in circumstances where Plaintiff rejected two offers to acquire his shares made by Defendants - Whether Plaintiff acted unreasonably in pursuing proceedings.

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

COSTS - Costs and consequential orders - Indemnity costs - Whether such circumstances exist as to warrant departure from usual order for costs on a party/party basis.

PRACTICE AND PROCEDURE - Orders - Orders to give effect to judgment in primary proceedings

PROCEDURE - various motions - motion to have questions raised in summons dealt with as preliminary questions - application by defendants to have their further two motions heard before Attorney General's motion - application not granted - oral application that the Attorney General's summons be dismissed - not granted - application to defer decision of Attorney General's motion, until the defendant's three outstanding motions have been dealt with - not granted - Attorney General's order must be granted - costs PROCEDURE - courts and judges generally - two disqualification applications - apprehended bias - both applications refused - reasons

Common law - personal injury - insurance - costs

Common law - costs

INSURANCE - statutory charge on monies payable by insurer - event completing the cause of action against the insured PRACTICE AND PROCEDURE - requirement for leave to commence proceedings to enforce statutory charge - proceedings commenced without obtaining leave - whether power to grant leave to operate nunc pro tunc - criteria for the grant of leave - whether there is an arguable case against the insured PRACTICE AND PROCEDURE - application for joinder of insurer pursuant to r 6.19 of the Uniform Civil Procedure Rules to allow plaintiff to proceed pursuant to s. 562 of the Corporations Act - exercise of discretion to grant leave - relevant considerations - whether it would be futile to grant leave

CRIMINAL LAW - appeal - murder - Applicant pleads guilty to shooting murder of grandfather - Applicant gives evidence for Crown at trial of Applicant's co-accused (father) - Applicant seeks leave to appeal against conviction - claim of miscarriage of justice arising from Applicant's legal representation - no merit in conviction grounds - Applicant given prudent and realistic advice to plead guilty - findings on sentence not unfavourable to Applicant - leave to appeal against conviction refused - appeal against sentence - challenge to findings of fact by sentencing Judge - reliance upon Applicant's post-sentence transgender status - no merit in sentence grounds - leave to appeal against sentence refused

CRIMINAL LAW - application for leave to appeal against sentence - six counts of various forms of sexual assault and one count of armed robbery - where Applicant had committed two serious unrelated sexual assaults for which he had been sentenced at earlier points in time - whether sentencing judge erred in finding that offences against one victim aggravated by earlier offending - no error by sentencing judge because prior convictions were only taken into account once objective gravity of offences determined - whether overall sentence manifestly excessive in circumstances of case - whether error in approach to concurrence of sentences - individual sentences not manifestly excessive but increased amount of concurrence of sentences warranted.

DEFAMATION - defences of truth, common law qualified privilege, comment and honest opinion - letter to community interest group and media publishers - whether defence of truth to all imputations - whether statements of fact or comment - whether each publication made on occasion of common law qualified privilege - whether evidence of malice - award of damages set aside - new trial on limited issues

CORPORATIONS - Corporations Act 2001 (Cth) s 440D - Whether Plaintiffs' claim, or parts of Plaintiffs' claim, stayed by operation of the Act.

FAMILY PROVISION - application for provision by a longstanding de facto partner of the deceased - applications for a portable Crisp order - Order made

PROCEDURE - indemnity costs against plaintiff's solicitor - plaintiff undischarged bankrupt - whether solicitor acting without valid retainer - proceedings not validly instituted

CONTRACT - specific performance - vendor and purchaser - contract for sale and purchase of "off the plan" unit - negotiations for variations for inclusion in replacement contract - whether concluded contract - whether vendor estopped from denying performance of variations - whether conduct of vendor misleading and deceptive, and unconscionable - whether vendor entitled to order for specific performance

TORTS - negligence - work injury - worker takes proceedings against employer and another person - both defendants found liable - whether employer entitled to indemnity under s 151Z - whether principle in Public Transport Commission v J Murray-More applicable - Plaintiff with compensable and non-compensable injuries - extent of indemnity - employer paid compensation believing all injuries compensable - whether compensation paid should be apportioned between compensable and non-compensable injuries for purposes of indemnity

PRACTICE AND PROEDURE - vacation of hearing date - appeal from Local Court - plaintiff self-represented - application by plaintiff to vacate hearing date in circumstances where firstly documents have not been produced and secondly the plaintiff has had insufficient time to prepare due to his partner's acute illness - first ground fails, not an exceptional case in which it is necessary to receive additional evidence which was not before the Local Court, subpoena for documents set aside - second ground succeeds - interests of justice - hearing date vacated

EQUITY - Equitable remedies - specific performance - whether agreement made to settle proceedings (between house proprietor and builder) before the CTTT - what are the terms of such agreement - whether agreement should be specifically performed.

PROCEDURE - judgments and orders - currency of judgment - interest up to judgment finding in principal judgment Ocean Star Resort Pty Ltd v David Hokyoon Kwon & Anor [2012] NSWSC 318 that June 2004 contract abandoned - restitution of monies paid under abandoned contract - whether monies recovered should be paid in Korean Won or Australian Dollars - whether interest should be paid up to judgment - what interest rate is applicable.

EVIDENCE - expert reports - whether defendant should be permitted to rely on further evidence - whether it would cause irretrievable prejudice to plaintiffs

VENDOR AND PURCHASER - Contract for Sale of Land - conditional on subdivision - vendor serves notice said to be notice of registration of subdivision - contract requires completion required 14 days offer notice - completion does not take place - vendor issues Notice to Complete - settlement does not take place within time allowed by Notice to Complete - vendor terminates contract - whether notice of registration of subdivision complies with contract - whether Notice to Complete allows sufficient time for completion - whether vendor disabled from giving Notice to Complete by reason of vendor's breach of contract - whether contract otherwise terminable for breach by the purchasers, even if Notice to Complete invalid -whether deposit should be returned.

COURTS - Practice and procedure - judgments and orders - power to re-open exercise of discretion before orders entered - circumstances in which power should be exercised by puisne judge COSTS - follow the event - where loan agreement varied under Contracts Review Act - whether costs order should reflect proportion in which loan as varied funded by parties - decision in Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 applied

WILLS, PROBATE AND ADMINISTRATION - probate - application for grant of probate in solemn form - where deceased made multiple testamentary instruments - later informal testamentary instruments not duly executed as a will - question as to both intention and capacity of deceased at time of creating informal testamentary instruments - whether beneficiaries of informal instruments to be provided with opportunity to object to grant of probate to properly executed will

ADMINISTRATIVE LAW - decision - natural justice - procedural fairness - whether declaratory relief appropriate - whether principles applicable to decision of Director-General for removal of children pursuant to s 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - whether hearing required prior to decision being made - urgency of situation as constraint on opportunity for a hearing - plaintiff provided with opportunity to remedy situation prior to children being removed - held no denial of procedural fairness FAMILY LAW AND CHILD WELFARE - lawfulness of removal of children pursuant to s 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - satisfaction that on reasonable grounds children were at immediate risk of serious harm - whether making of an apprehended violence order would have been sufficient to protect children - no protective ally identified to enforce apprehended violence order - non-compliance with previous orders a legitimate matter to take into account when assessing the imminence of the risk of harm - held not irrational for caseworker to consider children at immediate risk of serious harm PRACTICE AND PROCEDURE - parens patriae jurisdiction - interference with Children's Court proceedings only in exceptional circumstances - whether extraordinary circumstances exist - regardless no evidence adduced to satisfy the Court that best interest of the children to be immediately restored to care of plaintiff - no evidence of plaintiffs current circumstances

APPEAL FROM LOCAL COURT - Magistrate upheld contract between plaintiff and defendant - plaintiff and defendant had been married under Islamic law but not under Australian Law - contract contained clause whereby plaintiff was to pay defendant $50,000 in the event the plaintiff initiated "separation and/or divorce" - Magistrate found contract enforceable - whether error of law - whether jurisdictional error - whether contract against public policy - appeal dismissed

CRIMINAL LAW - appeal against conviction - act of indecency - inconsistencies in complainant's account - summing up failed fairly to state appellant's case - summing up unbalanced as to failure of appellant to give evidence - convictions quashed - appropriate sentence served pending appeal - no requirement for re-sentencing or retrial

APPEAL - procedure - application to adduce further evidence on appeal - assertion that evidence should have been before judge in earlier proceedings and would, if admitted, create res judicata estoppel against conclusions of judge in decision appealed from - not correct formulation of res judicata - application refused WORDS AND PHRASES - "res judicata"

PROCEDURE - costs - where applicants sought respondents' consent to orders prior to filing motion - where respondents agreed to orders on morning of hearing - whether costs of motion should be borne on indemnity basis

DAMAGES - Torts - Negligence - Personal injury - Non-economic loss - Trial judge assessed non-economic loss at 33 per cent of a most extreme case - Whether trial judge erred in assessment - Award of non-economic loss is an evaluative judgment - Trial judge did not take into account irrelevant considerations or wrongly assess medical evidence - No error in exercise of trial judge's discretion - Appeal dismissed. DAMAGES - Torts - Negligence - Personal injury - Future economic loss - Onus on plaintiff to prove impact of injury on future earning capacity - Whether trial judge erred in assessment of future economic loss when plaintiff did not plead or particularise claim for loss based on advancement to operations supervisor - Case expanded at trial beyond that particularised - Trial judge was entitled on the evidence to assess plaintiff as person who would have advanced to Operations Manager position. DAMAGES - Torts - Negligence - Personal injury - Future economic loss - Assessment of damages for future economic loss by way of buffer - Whether trial judge erred in assessment of buffer - Whether medical evidence must expressly state that earning capacity impaired - Evidence required to support finding that earning capacity impaired - Such finding to be made on all of the relevant evidence - No necessity for medical evidence to expressly state earning capacity impaired - Medical evidence consistent with plaintiff's evidence of extent of work incapacity - Trial judge did not err in assessment of buffer - Civil Liability Act 2002, s 13.

COSTS - costs of interlocutory applications - general rule that costs follow the event COSTS - whether costs payable forthwith

PRACTICE AND PROCEDURE - Failure to comply with directions of the court - Application for dismissal of proceedings - Application made in circumstances where Plaintiff has twice failed to provide security for costs as twice ordered by the court.

WILLS, PROBATE AND ADMINISTRATION - wills - construction of will - whether deceased intended informal document to form will - intention of deceased clear from terms of informal document and accompanying correspondence - Succession Act 2006 (NSW), s 8

BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999 (NSW), DIVISION 2A - Plaintiff (principal contractor) sought to quash adjudication determination obtained by the first defendant (respondent) and paid monies into Court pending its challenge - thereafter the second defendant (claimant), a creditor of the first defendant, which had itself obtained an adjudication determination against the first defendant served on the plaintiff a payment holding request under s 26A of the Act - later the plaintiff's challenge failed and the monies in Court were paid out to the first defendant discharging the plaintiff's debt to the first defendant - the second defendant contended that the plaintiff had discharged its obligation as principal contractor to pay money under a contract to the first defendant as respondent in contravention of a requirement under Division 2A of the Act and was jointly and severally liable for the first defendant's debt to the second defendant - HELD - no contravention of the division because the payment out of Court was not discharge of the principal contractor's obligation as contemplated by s 26C(1) of the Act.

[PROCEDURE] - civil - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether service of payment claim was regularly effected - whether injunctive relief should be discharged or continued.

TORTS - defamation - caller to talkback radio program - publication of false and defamatory allegations - Plaintiff sues radio station - radio station settles with Plaintiff - cross-claim against caller - whether caller had defences to claim for defamation - reasonableness of settlement - amount of contribution to be paid by caller - claim by radio station in deceit - elements of the tort of deceit.

CONTRACTS - Heads of Agreement relating to super yacht marina business - whether parties intended to be legally bound - whether void for uncertainty or incompleteness CONTRACTS - negotiations between solicitors concerning formal agreement intended to give effect to Heads of Agreement - whether parties bound by agreements on some terms prior to agreement on all and execution of document EQUITABLE REMEDIES - Heads of Agreement - specific performance of term that formal agreement be executed - whether permissible for court to add to the agreed terms provisions that are simply consistent with the Heads of Agreement and reasonable - court may only add provisions of a mechanical nature designed to implement the existing agreement

CRIMINAL LAW - procedure - juries - discharge and excusing from attendance - application to discharge jury - whether prejudice to accused - application refused

CRIMINAL - BAIL - Interlocutory proceedings - accused charged with obtaining financial advantage by deception contrary to s 134.1 of the Criminal Code Act 1995 (Cth) - adjourned sentence hearing - bail application pursuant to s 32 of the Bail Act 1978 - bail is continued

TRUSTS - judicial advice - application for judicial advice pursuant to Trustee Act 1925 (NSW) s 63 - interpretation of trust deed and administration of trust property - consideration of pooling arrangement contemplated by deed of company arrangement and trust deed - how trustees should deal with multiple proofs of debt submitted by Deputy Commissioner of Taxation - where members of GST Group were jointly and severally liable to pay GST that was payable by representative member of group - where representative member and group members are subject of deed of company arrangement and trust deed - question whether trustees would be justified in treating multiple proofs lodged by the ATO as being a single liability admissibility to proof under trust deed - judicial advice given - ATO entitled to lodge multiple proofs for several debts

PRACTICE AND PROCEDURE - whether Supreme Court of Queensland the more appropriate forum - injury occurred in Queensland - unlikely Queensland defendants could be joined - NSW defendant does not oppose - balance of convenience of parties and likely witnesses favour transfer - transfer to Supreme Court of Queensland

PRACTICE AND PROCEDURE - Limitation Act 1969 - application to claims for legal costs by solicitor against client where costs assessed under Legal Profession Act 1987

ADMINISTRATIVE LAW - proceedings in lieu of writs - whether costs order made with jurisdictional error APPREHENDED VIOLENCE ORDERS - appeal of costs order - avenue of appeal - construction of s 99(3) of Crimes (Domestic and Personal Violence) Act 2007 - whether error in not ordering costs - whether proceedings frivolous or vexatious STATUTES - Acts of Parliament - interpretation - purposive interpretation - whether s 99(3) of Crimes (Domestic and Personal Violence) Act 2007 dominant to s 99(2)

COSTS - Orders

PROCEDURE - Statutory Interpretation - claim for damages under Compensation to Relatives Act 1987 - Civil Liability Act 2002 - whether Part 2 applies to such proceedings - whether the limit imposed by s 12(2) applies to loss of expectation of financial support from the deceased - meaning of "claimant" in s 12(2)