Cases and authorities

APPEAL - application for leave to appeal - where primary judge refused to order stay of consent orders - consent orders made upon settlement of proceedings - various potential grounds of challenge to consent orders and underlying agreement - but no proceedings instituted to seeking to have orders set aside or agreement rescinded - interlocutory application for stay irregular - various grounds of challenge to agreement and consent orders without apparent prospects of success

PRACTICE AND PROCEDURE - application to set aside default judgment for writ of possession - statement of claim and judgment omitted relevant folio identifiers and registered mortgage numbers - whether judgment alternatively capable of amendment under slip rule - judgment set aside due to irregularity - summary judgment for possession on amended statement of claim before filing of defence - no legal defence - mortgagor in default - outstanding money claim - costs.

SUCCESSION - wills, probate and administration - whether grant of administration to defendants upon intestacy should be revoked - whether independent administrators should be appointed - whether plaintiff and defendants should have their costs out of the estate and if so on what basis.

PROCEDURE - security for costs - inherent jurisdiction - plaintiff's impecuniosity not a determinative discretionary factor - whether additional factors favouring order for security established - turns on facts - no question of general principle

PROCEDURE - motion - order seeking stay of the cross-claim - order made

PROCEDURE - costs - security motion - amendment motion - orders made

CRIMINAL LAW - appeal against sentence - perverting the course of justice by omission - no error in forming opinion as to the sentence that ought to have been imposed - no error in taking into account sentence that ought to have been imposed - no failure to take into account extra-curial punishment - no error in finding specific deterrence was a significant consideration - sentence not manifestly excessive

CRIMINAL LAW - Sentence appeal - orders on appeal issued ex tempore - reasons issued - manifest excess - latent error

CRIMINAL LAW - appeal against conviction - sexual assault offences - assessment of the evidence as a whole - whether jury's verdict was unreasonable CRIMINAL LAW - juries - decision to discharge a juror - two step approach when discharging a juror - deliberations of jurors -whether the discretion to continue with a jury of eleven miscarried - the importance of giving reasons when making the decisions to discharge a juror and continue with fewer than twelve jurors

CRIMINAL LAW - sentence appeal - sexual assault offences - whether sentence manifestly excessive

PROCEDURE - courts and judges generally - disqualification - bias - apprehended bias - prior assessment of damages - plaintiffs appealed to the Court of Appeal on liability only - appeal allowed - remitter by Court of Appeal to Common Law Division for "assessment of damages" - application by plaintiffs that trial judge recuse himself - whether reasonable apprehension of bias - application granted

PROCEDURE - judgments and orders - setting aside - where plaintiff claims that orders were obtained against good faith - where plaintiff seeks to set aside orders on basis of non-disclosure or misrepresentation by silence - no evidence that orders were obtained by misconduct or dishonourable conduct - no misconduct established and no linkage established between alleged non-disclosure or misrepresentation by silence and procurement of the orders - no evidence of mistake in relation to the orders made by consent on the discontinuance of preliminary discovery proceedings PROCEDURE - order for costs against third parties - where there had been no hearing on the merits, a discontinuance filed and agreement that each party bear their own costs - where there is no evidence that the third parties knew of the proceedings, the discontinuance or agreement on costs - no basis for costs order against the third parties

PRACTICE AND PROCEDURE - costs - review of Registrar's order as to costs

COMMERCIAL ARBITRATION - appeal against arbitral award pursuant to ss 38(2) and 38(4) of the Commercial Arbitration Act 1984 (NSW) - CONTRACT - contracts for the sale and purchase of grain incorporating the National Agricultural Commodities Marketing Association Ltd Trade Rules (NACMA Rules) - construction of the NACMA Rules - provision for contract to be closed out on occurrence of an Insolvency Event of which the defaulting party must give immediate notice - provisions for determination of the Fair Market Price in the event that notice is given and also where notice is not given as required - where Insolvency Event occurs but no notice is given and then another Insolvency Event occurs of which notice is given - how the NACMA Rules operate in these circumstances

PRACTICE AND PROCEDURE - application to set aside a default judgment - application to dismiss proceedings - whether proceedings rendered void because of failure to comply with provisions of the Farm Debt Mediation Act - whether a certificate issued under s 11 of the Farm Debt Mediation Act operates retrospectively - whether the defendant was solely or principally engaged in a farming operation - whether the defendant was served with a statement of claim

CIVIL PROCEDURE - Application to strike out summons seeking leave to appeal - Sealed copy of notice of motion moving for strike out not served on applicant - Court has power to dispense with service requirements - Civil Procedure Act 2005, s 14; Uniform Civil Procedure Rules 2005, rr 18.1, 18.2. CIVIL PROCEDURE - Application to strike out summons seeking leave to appeal - Whether summons seeking leave to appeal constituted an abuse of process - Non-attendance by applicant on three occasions when matter listed before the court - Grounds of appeal disclose no reasonable case on the appeal - Uniform Civil Procedure Rules 2005, rr 13.4, 13.6, 14.28.

ADMINISTRATIVE LAW - judicial review - procedural fairness - application for apprehended violence order before Local Court - solicitor for applicant sought but did not press adjournment - applicant alleged procedural unfairness - whether applicant was aware of time and place of hearing - whether error identified in failure to grant adjournment PROCEDURE - apprehended violence orders - appeal from Local Court to District Court - protected person sought to appeal against ancillary property recovery order - whether ancillary property recovery order falls within expanded meaning of apprehended violence order - whether application for apprehended violence order is a criminal proceeding - whether right of appeal available - Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 84; Local Court Act 2007 (NSW), ss 44 and 70

INDUSTRIAL LAW - occupational health and safety - statements of charge - whether deficiencies in particularisation rendered charges nullities - whether Industrial Court in jurisdictional error INDUSTRIAL LAW - occupational health and safety - statements of charge - guilty plea - whether insufficient particulars can be amended or rectified INDUSTRIAL LAW - occupational health and safety - statements of charge - insufficient particulars - whether one particular adequate in Kirk sense - whether guilty pleas cure defects in charges

COURTS AND TRIBUNALS - judgments and orders - construction of orders - whether appropriate to consider the statute conferring the power pursuant to which the order was made or judgment constituting the reasons for the order to resolve ambiguity or lack of clarity in order - whether order restrictive of the civil rights of an individual should be given full effect according to its terms but should not be read expansively PROCEDURE - vexatious proceedings - affidavit pursuant to Vexatious Proceedings Act 2008 (NSW), s 14(3) - whether affidavit rendered non-compliant if it ceases to provide the information required by s 14(3) - whether vexatious litigant prohibited from serving or relying on material relevant to the application, other than the affidavit pursuant to s 14(3) PROCEDURE - vexatious proceedings - source of requirement that vexatious litigant obtain leave to commence proceedings - whether application for order for discovery is an "interlocutory proceeding" - whether terms of vexatious litigant order require vexatious litigant to obtain leave with respect to steps in proceedings which litigant had been given leave to institute - Supreme Court Act 1970 (NSW), s 84, Vexatious Proceedings Act 2008 (NSW), s 13

COSTS - Calderbank principles

PROCEDURE - costs - indemnity costs - whether the defendant's conduct of the proceedings was so unreasonable that the defendant should pay the plaintiff's costs of the proceedings on an indemnity basis - whether the defendant should pay the plaintiff's costs after 27 June 2011 as a result of the defendant's non-acceptance of the plaintiffs' offer of compromise dated 27 June 2011.

CORPORATIONS - external administration - where voluntary administrators appointed after winding-up proceedings instituted - circumstances in which a court should not order a winding up because an administrator has been appointed - whether in interest of company's creditors that administration continue - adjournment - Corporations Act 2001, s 440A(2) - grounds for adjournment - proposal for Deed of Company Arrangement

CORPORATIONS - deregistration - reinstatement - whether order should be made for removal of director upon reinstatement

CORPORATIONS - Creditors' meeting - Resolution of meeting - Corporations Act 2001 (Cth) s 600A(2)(a) - Application to set aside resolution of creditors' meeting. CORPORATIONS - Termination of deed of company arrangement - Whether deed should be terminated by Court - Interests of creditors of company as a whole - Whether winding up would allow more favourable outcome or better return to creditors than deed of company arrangement and whether deed of company arrangement would be contrary to the interests of or prejudicial to creditors as a whole.

CORPORATIONS - Winding up - Statutory demand - Onus on recipient of statutory demand to establish genuine dispute - Test for genuine dispute.

CONTRACT - construction of interrelated agreements for large development project - compulsory acquisition by RTA of part of land owned by a party - whether party required under the agreements to account for compensation received - whether compensation the proceeds of sale within the contractual definition of "Revenue" - whether compulsory acquisition within the contractual definition of "Disposal" ESTOPPEL - equitable estoppel - whether plaintiffs estopped from requiring defendants to account for compensation received - turns on facts - no question of general principle

NEGLIGENCE - road resurfacing works - driver fatality - whether Council failed to provide adequate signage - duty to exercise reasonable care - breach of duty of care - Traffic Control Plan - statutory defence under s 43A Civil Liability Act - special statutory power of a public authority - Wednesbury unreasonableness - traffic control facility - "but for" test - causation

Appeal from Local Court - contract - termination of agreement - breach of implied term

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 made to revoke the Court orders because of accused conduct - bail is continued

Appeal from Local Court - Magistrate dismissed proceedings even though amount conceded by defendant to be owing - recovery of contributions - recovery of interest - defence to claim under s 80(1) Strata Schemes Management Act.

PROCEDURE - costs - Sanderson order - application for costs on indemnity basis - refusal of Calderbank offers - whether rejection of offers was unreasonable.

CONTRACT - Construction of deed recording agreement as to the basis upon which a party would assist companies and their receivers in prosecuting proceedings against certain third parties - where another party (the bank) makes available funds to facilitate prosecution of proceedings and is owed money under secured facilities - construction of formula for the sharing of settlement proceeds (between the companies and the bank) where provision is capable of two meanings - construction of clauses providing for the taking into account of interest

CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - joint criminal enterprise - planned offence - disregard for public safety - use of weapon - offence committed in company - parity - guilty plea

Application by Plaintiff for payment of moneys out of Court to second Defendant - Initially no claim by second Defendant for moneys - Cross-Claim later filed by second Defendant for payment of moneys out of Court - No appearance by first Defendant who may have right to claim part of funds paid into Court - Court satisfied that first Defendant properly served with Statement of Claim and other documents - Plaintiff agrees that amount owed to second Defendant by Plaintiff and first Defendant is greater than amount paid into Court - Order that moneys be paid out of Court to second Defendant - Judgment for second Defendant for balance owed to her by Plaintiff and first defendant

EVIDENCE - Evidence Act 1995, s 131 - whether settlement communications admissible - settlement communications admissible pursuant to 131(2)(f) as existence of or making of agreement an issue in proceedings

SUCCESSION - The Plaintiffs, an adopted son and an adopted daughter of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant, also an adopted daughter of the deceased, to whom Probate of the deceased's Will was granted - Dispute that adequate and proper provision not made in Will of the deceased for Plaintiff, Craig - No dispute that adequate and proper provision not made in Will of the deceased for Plaintiff, Carolyn and that an order in favour of that Plaintiff should be made - Dispute as to the quantum of the provision and how the burden of that provision should be borne - Dispute concerning moneys used by the Defendant during lifetime of deceased

PROCEDURE - costs - general rule costs follow the event - costs of whole action - where offers of compromise made - Calderbank offer - whether reasonable for plaintiffs to reject offer - whether genuine offer to compromise

SUCCESSION - Plaintiff makes a claim for a family provision order - Defendant the de jure wife of the deceased and the executrix appointed in the Will of the deceased, to whom Probate was granted - Dispute whether the Plaintiff an eligible person and whether factors warranting the making of the application - Whether family provision order should be made and if so nature of the order

CRIMINAL LAW - dangerous driving - foetus - child in utero - child born alive prematurely and later died - appeal against conviction - whether it was necessary to establish that the baby was injured in utero - whether it was necessary to establish that it was an intended act which caused the baby to be born - grounds not established - appeal against sentence - intensive correction order - whether sentence was manifestly inadequate - whether her Honour erred in determining the degree of moral culpability for this offence as being at a low level - grounds not established

CRIMINAL LAW - appeal against sentence - threatening to injure officer with intent to hinder lawful detention in company - full time custodial sentence not manifestly excessive - no error in finding lack of remorse and contrition

CRIMINAL LAW - Conviction Appeal - extension of time granted - sexual offence - "corroboration" - relevantly immediate complaint to mother - accused gave evidence at trial - ground of appeal on basis of unreasonable verdict - no reasonable doubt - mere fact that jury verdict depended on choice as to whether to believe complainant beyond reasonable doubt is not, without independent evidence or some other factor affecting assessment, does not necessarily give rise to reasonable doubt.

CRIMINAL LAW - Sentence - appeal - sentence imposed cumulative on prior sentence currently being served - insufficient potential parole period - insufficient account taken of effect of accumulation - principle of totality - more appropriate to round sentence downward to years and months and disregard parts of months.

CRIMINAL LAW - Crown appeal against sentence - four counts of aggravated indecent assault, two counts of aggravated sexual intercourse without consent - child victim - step-daughter of respondent - whether sentencing judge's assessment of objective gravity of the offences appropriate - whether sentences manifestly inadequate

CRIMINAL LAW - appeal - conviction - whether directions of trial judge correct - whether directions regarding whether certain acts constitute sexual intercourse correct - leave to appeal granted - appeal dismissed.

[CRIMINAL LAW] - appeal - sentence - supply of not less than a commercial quantity of a prohibited drug and possession of an unauthorised pistol - whether sentencing judge erred in approach to accumulation and totality - whether error of kind in Muldrock v The Queen demonstrated - whether sentencing judge erred in engaging in a two-stage approach when sentencing the applicant - whether overall sentence manifestly excessive.

CRIMINAL LAW - appeal against sentence - manslaughter - reckless driving - stolen vehicle - police pursuit - whether trial judge erred in failing to give effect to finding of special circumstances - whether trial judge erred in finding offending conduct reflected higher serious criminality than other cases - extra-curial punishment -whether sentence manifestly excessive

CRIMINAL LAW - appeal against sentence - offence of recklessly inflict grievous bodily harm - whether too much emphasis placed on standard non-parole period

LIMITATION - motor accident - leave required to commence proceedings out of time under s 109 Motor Accidents Compensation Act 1999 - nature of appeal from lower court decision - whether decision pursuant to s 109 properly described as "discretionary" - monetary threshold requirement for extension of time - need to determine predictively range of contributory negligence - meaning of words "likely to be awarded" in s 109 - which party bears the onus of establishing a range for contributory negligence - whether "real chance" of contributory negligence being assessed at 24 percent or lower - whether monetary threshold under s 109 can include non-economic loss even though an assessment of permanent impairment has not been made by a Medical Assessor.

FAMILY LAW - de facto relationships - adjustment of property interests - relevant property - inheritance - superannuation entitlements - just and equitable order - Property (Relationships) Act 1984 s 20

PRACTICE AND PROCEDURE - application by defendants for leave to proceed against company in liquidation pursuant to s500(2) Corporations Act 2001 - insurer seeks joining order under s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 - HELD - leave to proceed as sought by defendants granted - COSTS - application for costs order against a non-party pursuant to 98(1)(b) Civil Procedure Act 2005 - order made - COSTS - order sought that costs be payable forthwith pursuant to r 42.7 Uniform Civil Procedure Rules 2005 - order made.