Cases and authorities

PRACTICE AND PROCEDURE - joinder of insurer - Law Reform (Miscellaneous Provisions) Act 1946 s 6 - where respondent was the liability insurer of company A, alleged to be manufacturer of defective equipment - requirement to establish arguable case against the insured party - test for arguable case requires evaluation of evidence supporting pleaded case, not merely acceptance that facts have been pleaded which if true would, on an arguable view of the law, provide a remedy - insufficient evidence led to establish an arguable case that insured manufactured the defective equipment PRACTICE AND PROCEDURE - joinder of insurer - Law Reform (Miscellaneous Provisions) Act 1946 s 6 - where policy insures company A and its subsidiaries - alternative allegation that manufacturer was company B, and that company B was subsidiary of company A - no arguable case that company B was subsidiary of company A WORDS AND PHRASES - "arguable case"

EQUITY - trusts and trustees - where s 17 Superannuation Industry (Supervision) Act 1993 (Cth) requires each member of a self-managed superannuation fund to be a trustee or director of the corporate trustee - where a trustee has breached fiduciary duties owed to the trust and breached s 52(2) of the Act - appropriate to remove that trustee and permit replacement by a corporate trustee connected with the only beneficiary having an interest in the fund, subject to approval by the Australian Taxation Office EQUITY - trusts and trustees - where trustee breached fiduciary duty owed to the trust - trustee to account for the amount of trust proceeds withdrawn in excess of his entitlement as beneficiary

PRACTICE AND PROCEDURE - whether evidence of expert witness should be taken by use of audio visual facilities - relevant considerations

PRACTICE AND PROCEDURE - Orders -Orders to give effect to judgment in Primary Proceedings.

PROCEDURE - Trustee Act 1925, Part 4 - Uniform Civil Procedure Rules, r 55.11 - former registered proprietor claims surplus offer mortgage sale - claim for funds to be paid out of Court - whether claimant has satisfied elements to be established.

COSTS - Application for costs of interlocutory motion to be payable forthwith on indemnity basis - whether relevant delinquency - no defence brought against application to strike out proceedings - unsupported and irrelevant allegations of negligence.

CRIMINAL LAW - appeal against sentence - importing a marketable quantity of heroin s 307.2 (1) of the Criminal Code (Cth) - whether trial judge erred in application of Ellis discount - whether trial judge erred in failing to find applicant was remorseful - whether sentence was manifestly excessive -- undue weight was not placed on general deterrence - no scope for finding remorse after conviction at trial - sentence imposed was at the very bottom of the range - appeal dismissed

CRIMINAL LAW - appeal - murder - plea of guilty - appeal against sentence - whether manifestly excessive - low level of objective criminality - sentence manifestly excessive - appeal allowed - applicant resentenced.

CRIMINAL LAW - sentence appeal - offence contrary to s 400.3(2) Criminal Code Act 1995 (Cth) of dealing with $1 million or more, being reckless as to the risk that the money will become an instrument of crime - whether sentence manifestly excessive - $9.9 million dealt with in 23 days - assessment of objective seriousness of offence - extent to which suspicion as to source of funds relevant - relevance of covert features of offence - use of strong subjective case - use of statistics.

CRIMINAL LAW - conviction appeal - whether trial judge wrongly excluded evidence pursuant to s 293 of the Criminal Procedure Act 1986 - evidence properly excluded - appeal dismissed

APPEAL - leave to appeal - whether leave to appeal required from permanent stay order - where application to set aside consent judgment dismissed by primary judge - where applicant had commenced further proceedings raising substantially the same claims raised in proceedings the subject of consent judgment - whether permanent stay order final or interlocutory

COSTS - principles in Calderbank v Calderbank - whether letter of offer contained genuine offer of compromise - where letter of offer from defendant requested that the plaintiff discontinue proceedings and pay a sum as to costs of the defendant - whether rejection of offer unreasonable - whether conduct of the plaintiff otherwise warrants indemnity costs - HELD - rejection of offer by plaintiff not unreasonable - plaintiff's conduct in not pursuing allegations of bias at final hearing warranted order for costs thrown away on an indemnity basis

COSTS - principles in Calderbank v Calderbank - informal offer from defendants before proceedings commenced - whether offer involved a genuine element of compromise - whether rejection of offer was unreasonable - whether the plaintiff's conduct of the proceedings warrants an indemnity order - HELD - rejection of offer by plaintiff was not unreasonable - although conduct of proceedings by plaintiff does not warrant indemnity costs orders, conduct does warrant order that plaintiff pay the defendants 85 percent of their solicitor/client costs of the proceedings

Summary dismissal claims and strike-out application by different Defendants in relation to proceedings brought by a Lot Owner in strata scheme - Rule in Foss v Harbottle - Whether pleadings require amendment - Whether leave to file reply should be granted

[TORTS] - negligence - motor vehicle accident - assessment of damages - Motor Accidents Compensation Act 1999 (NSW) s126 and 128 - no question of principle

PROCEDURE - summary judgment - cross-claim alleging misleading or deceptive and unconscionable conduct - defence by way of equitable set-off - whether arguable defence

CORPORATIONS - creditor's statutory demand - Corporations Act, s 459G - whether a genuine dispute exists

PRACTICE AND PROCEDURE - summary judgment application - principles as set out in General Steel Industries v Commissioner of Railways (1964) 112 CLR 125 - power to be exercised with utmost caution and only in the clearest of cases - application in respect of claims for monies payable under three loans - HELD - evidentiary burden satisfied in relation to monies payable under the three loans - application granted - enforcement of judgment stayed pending determination of cross-claim PRACTICE AND PROCEDURE - application to amend defence and statement of cross-claim - proposed amendments to defence minor with no material effect - proposed amendments to cross-claim substantial and plead that plaintiff is vicariously liable for misleading and deceptive conduct of the loans originator - plaintiff opposes proposed amendment as failing to disclose a reasonable cause of action and/or as an embarrassing pleading - where unclear from proposed amended pleadings in cross-claim how the particular agency relationship gives rise to the alleged liability - HELD - leave to file amended defence granted - application to file amended statement of cross-claim in the form proposed dismissed - leave to file within 28 days an amended cross-claim addressing the pleading issues raised by the plaintiff

COURTS AND JUDGES - bias - reasonable apprehension of bias - basis of bias being alleged errors in principal judgment and subsequent judgment regarding the valuation of shareholding in company - allegations that trial judge failed to afford defendants procedural fairness in making certain findings - where, upon initial error in principal judgment being raised, further submissions were considered and trial judge varied the orders as made - where any error regarding valuation would fall within the rubric of appellable error - appellable error not being of itself sufficient to found a reasonable apprehension of bias - HELD - application dismissed

PRACTICE AND PROCEDURE - application to file amended defence - application for leave to withdraw admissions contained in original defence - UCPR rule 12.6 - original defence prepared without proper legal advice - leave to file amended defence granted

[CRIMINAL LAW] - bail application - bail pending appeal after conviction and sentence on indictment - s30AA Bail Act 1978 (NSW) - whether special or exceptional circumstances exist justifying the grant of bail - necessary to examine totality of circumstances - likely whole or major part of custodial sentence will have been served before the hearing of the appeal - conditional bail granted.

CRIMINAL LAW – application for leave to bring interlocutory appeal – whether interests of justice require intervention by the Court – leave refused

CRIMINAL LAW - appeal - sentencing - parity - application of s 52 Crimes (Sentencing Procedure) Act to correct commencement date of sentence.

PRACTICE AND PROCEDURE - Orders - Consent orders where agreed between parties.

CORPORATIONS - winding up - statutory demands - whether genuine dispute exists - dispute as to indebtedness to Australian Taxation Office - effect of conclusive evidence provisions in Taxation Administration Act - decision in Broadbeach Properties - those who rely on conclusive evidence provisions must do so punctiliously

CORPORATIONS - Application for orders for retrospective approval of liquidator's entry into costs agreements and associated retainers with two firms of solicitors.

Corporations - leave to proceed against company in liquidation - leave to commence cross-claim where substantially the same facts are raised as in defence - discretionary considerations

INJUNCTIONS - application to extend - appointment of administrator to defendant company

TORTS - negligence - duty of care - principal and subcontractor - existence of duty and content of duty - application of Leighton v Fox - standard of care - assumption by principal of responsibility to devise and supervise system of works - knowledge of defect in system - whether breach of duty established - TORTS - adjustment of liability between principal and employer - non-delegable duty of employer owed to employee - TORTS - contributory negligence - experienced scaffolder - tedious, repetitive and physically demanding work - DAMAGES - apportionment.

SUCCESSION - Family provision - Application under s 95 Succession Act 2006 (NSW) for approval of release of rights to apply for family provision orders as provided by a deed of settlement, release and indemnity following protracted litigation - approval granted upon consideration of all the circumstances

JUDICIAL REVIEW - Appeal from interlocutory Local Court decision to refuse to require prosecution witnesses to give oral evidence at committal hearing - Table 1 offences dropped - committal hearing dispensed with - whether appeal against ruling frivolous - whether adjournment should be granted.

[EVIDENCE] - admissibility - affidavits - opinion; expert - application for leave to rely on further expert evidence - Rule 31.28 of Uniform Civil Procedure Rules 2005 (NSW) - Whether "exceptional circumstances" exist supporting the admissibility of expert's reports - whether interests of justice favour application for leave being granted.

EQUITY - lien - general possessory lien over plaintiff's goods - money paid into court for which the lien is claimed - whether defendant entitled to general lien under agreement with plaintiff - whether money in court should be paid out to plaintiff - turns on facts - no question of general principle

APPEAL FROM LOCAL COURT - franchise agreement - early termination fee - contractual penalty - genuine pre-estimate of loss - termination of contract

ADOPTION - adoption with consent of adoptee - appeal against - appeal against adoption of teenage daughter by foster family brought by her natural father - no appeal as of right against an adoption order - leave must be sought APPEAL - leave to appeal - where no error of primary judge identified in documents or submissions - leave refused

DAMAGES - personal injury - psychological injury - whether when assessing diminution in earning capacity, primary judge correctly treated certain behaviour as not being a consequence of tortious act - whether awards of past and future economic loss inadequate

RE-SENTENCE

CORPORATIONS - Winding up - Termination - Application to terminate winding up - Whether it is established that the order is appropriate even where the liquidator consents to that order - Attitude and interests of creditors, whether debts of the company have been discharged, company's current trading position, explanation for any non-compliance by directors with statutory duties and circumstances leading to winding up. PRACTICE AND PROCEDURE - Judgment obtained through fundamental irregularity - Right of a party to proceedings before the court to be heard - Whether winding up order should be set aside.

PARTNERSHIP - rights and duties of partners inter se - where defendant removed money to which defendant was not entitled from partnership bank account -breach of partnership relationship or conduct justifying termination of the partnership PARTNERSHIP - dissolution and winding up - by the court - where size of partnership is not substantial - where some partnership assets very likely could not be traced but in respect of which the plaintiff seeks no relief - where there is no appearance by the defendant - where neither party seeks appointment of receiver - not appropriate to appoint receiver

PRACTICE AND PROCEDURE - interlocutory issues - injunctions - application for extension of injunction restraining registration of Transfer Severing Joint Tenancy - question as to capacity of defendant to sever joint tenancy - whether defendant acting under undue influence - evidence on application does not raise serious question to be tried - possibility of future application does not provide basis for continuing current injunction - as a person claiming adversely to the transfer the plaintiff does not have standing to challenge the transaction

LEGAL PRACTITONERS - lien - defendant/solicitor appointed executor of estate of deceased - plaintiff/widow of deceased and registered proprietor of residential property with deceased as joint tenants instructs solicitor to arrange transfer of deceased's interest in property to her - solicitor performs legal work but claims work performed as executor of the estate, not as solicitor for the widow - solicitor does not provide fee disclosure or issue a bill of costs to widow in conformity with Legal Profession Act 2004, Pt 3.2 in respect legal work performed in relation to Certificate of Title - whether solicitor retained by the widow or whether solicitor acting as executor - solicitor claims lien over Certificate of Title issued by Land Titles Office in widow's name - whether order should be made under Legal Profession Act 2004, s 728 for the delivery up of the Certificate of Title to the widow - whether solicitor's lien.

[PROCEDURE] - civil - subpoena - whether recipient of subpoena should produce unredacted copies of documents - application for amended subpoena to be set aside - whether further compliance with subpoena should be dispensed with.

PRACTICE AND PROCEDURE - Application for short service of application for interlocutory injunction to restrain further disciplinary hearing of a club - serious questions to be tried as to procedural fairness but not appropriate to restrain meeting - further litigation might be avoided if meeting not restrained

SUCCESSION - FAMILY PROVISION - Proposed Consent Orders in terms of an agreement reached between Plaintiff and Defendant - A residuary beneficiary opposes orders being made in accordance with Short Minutes of Order and indicates an intention to seek leave to intervene - Later withdraws intention to intervene but states that he does not consent to orders being made - Amendment of consent orders by agreement of Plaintiff and the Defendant following argument - Whether orders should be made despite opposition and in accordance with amended Short Minutes of Orders

DEFAMATION - role of judge and jury - findings of fact made on question of damages must not be inconsistent with the verdict of the jury DEFAMATION - damages - mitigation - evidence - reputation - admissibility and relevance - relationship to "relevant sector" of reputation

APPEAL - appeal from an award of costs - principles governing appeals concerning the exercise of a discretion PRACTICE AND PROCEDURE - costs - principles governing the exercise of costs discretion

Contract - whether parties agreed on essential terms - whether post-contractual conduct can be taken into account - whether agreement on price evidence of binding contract - essential terms still to be agreed - evidence that negotiations were ongoing Corporations - oppression - whether oppressive conduct established - whether share-buy out order appropriate Costs - whether indemnity costs should be ordered - whether offer of compromise made - whether basis to depart from ordinary rule

TRUSTS - discretionary trusts - power of court to approve advantageous dealings - alteration of powers conferred on trustees - application by trustee to amend vesting day notwithstanding clause that trustee does not have power to vary trust deed insofar as it fixes vesting day - beneficiaries of trust support proposal - whether in the court's opinion it is expedient that the transaction take place - whether proposed amendment in management and administration of trust property - amendment to advance objectives of trust and minimise tax impacts - s 81 Trustee Act 1925 (NSW)

APPEAL - tribunals - appeal from Mental Health Review Tribunal - whether tribunal constituted in accordance with Mental Health Regulation 2007 - failure to adhere to requirement for Tribunal to be constituted by three persons for the purpose of determining an application for a community treatment order - whether failure to adhere to statutory procedure when conducting mental health inquiry - constructive failure of Tribunal to exercise jurisdiction under s 35 of Mental Health Act 2007 - properly constituted Tribunal to determine application for community service order according to law COSTS - exceptions to general rule that costs follow the event - conduct of parties - appropriate and reasonable actions of second defendant in instance of miscarriage by Mental Health Review Tribunal - no order as to costs