Cases and authorities

REMEDIES - declaratory relief - relief sought by plaintiff in relation to whether 2010 suspension from association valid under association's constitution - whether there is a justiciable issue in the absence of a proprietary right or damage to livelihood or reputation - company limited by guarantee - whether the association's constitution is a binding contract or a consensual compact - whether any utility in granting declaratory relief where association concedes that 2010 suspension was invalid - HELD - association's constitution constitutes a binding contract - there is justiciable issue - no utility in relief sought - proceedings dismissed

CONVEYANCING - completion of contract - time for completion - time of the essence - by notice given - when notice to complete may be given - notice given by vendor - purchasers in default through failure to complete on specified completion date - contract requires payment of interest on balance of purchase moneys - uncertainty as to applicable rate of interest - where vendor before giving notice to complete reserves rights concerning calculation of interest and states that she relies on the contract - vendor later submits a settlement statement containing interest amount arguably inconsistent with the contract - whether that subsequent action affects the validity of the notice to complete - observations on the status and purpose of a settlement statement submitted by one party to the other.

TRADE PRACTICES - consumer protection - misleading or deceptive conduct - future matters - purchase of residential lot in country club development - representations orally and in promotional material as to number and size of lots - representations as to construction and management of on-site hotel resort - intention and financial capacity of developer - planning approval - reasonable grounds for making representations TRADE PRACTICES - consumer protection - misleading or deceptive conduct - remedies - damages and rescission - difficulty in ascribing monetary value to material inducement - availability of rescission

FRAUD - tracing of proceeds - sufficiency of proof - husband of appellant defrauded bank of over $1m - large unexplained sums in appellant's bank accounts - appellant's only income a single parent pension - no evidence of legitimate or honest source of moneys - inference as to source of funds CONSTRUCTIVE TRUSTS - knowing receipt - evidence that female voice was necessary to one of the frauds - matching telephone records - evidence of appellant's address used in frauds - inference of actual knowledge

ASSOCIATIONS AND CLUBS - incorporated associations - requirements pursuant to Associations Incorporations Act 2009 (NSW) (the Act) - whether defendant required to keep accounts and minutes of proceedings in English language - whether plaintiff entitled to mandatory injunction to require keeping of such documents - plaintiff entitled to provision of English translation of documents brought into existence after commencement of the Act - held no requirement for translation to be provided by duly accredited translator

CORPORATIONS - Statutory demand - application to set aside - application dismissed

CRIMINAL LAW - appeal - conviction - where directions of trial judge regarding recklessness incorrect - whether proviso should be applied - appeal upheld - conviction quashed - retrial granted.

Plaintiffs seek appointment of trustees for the sale of a property pursuant to s 66G of the Conveyancing Act 1919 - Plaintiffs and Defendant are registered proprietors of the property as tenants in common - Plaintiffs wish to sell the property in the course of administration of a deceased estate - Application for family provision order out of deceased's estate by Defendant in s 66G proceedings - No appearance by, or on behalf of, the Defendant - Application for family provision order dismissed - S 66G orders made

CRIMINAL LAW - appeal - sentence - robbery in company - seriousness of involvement in offence - sentencing judge found that both offenders planned offence - whether co-offender planned the offence - whether appellant became involved after offending conduct commenced - whether number of discrete acts done by each offender relevant to seriousness of respective conduct - whether relevant error demonstrated CRIMINAL LAW - appeal - sentence - robbery in company - parity - whether disparity in roles of appellant and co-offender warranted departure from equal sentences

CRIMINAL LAW - conviction appeal - offences of fraudulently omitting to account for money and perjury - whether Crown failed to lead relevant and material evidence - application to lead additional evidence - obligations of Crown when leading evidence at trial - relevance and materiality of additional evidence sought to be relied upon - whether application for offences to be tried separately was properly refused - relevant principles - challenge to direction by a trial judge concerning receipt of funds for personal use - SENTENCE APPEAL - application to adduce additional evidence on sentence - appellant non-Australian citizen - evidence as to policies of Department of Immigration and Citizenship and Department of Corrective Services to non-Australian citizens in custody - such evidence available at time of sentence proceedings but not placed before sentencing judge - need for Court to take into account circumstances of hardship - principles relevant to hardship arising after sentencing - principles relevant to when sentence proceedings should be re-opened.

TORTS - conversion - tax office audit identifying shortfall in the declaration of company's cash sales receipts - company alleging that shortfall represents cash appropriated by defendant whilst employed as bookkeeper for the company - circumstantial case - conversion of small sum established EVIDENCE - representation by tax office as to shortfall in the declaration of company's cash sales receipts - where representation relevant for a non-hearsay purpose - whether use to be made of the representation should be limited under s 136 of the Evidence Act 1995

PRACTICE AND PROCEDURE - Notice of motion seeking firstly leave to have the administrative law proceedings heard and determined first, and before the claim for damages; and secondly leave to withdraw various admissions made in the defence and subsequent defence - whether more efficient and in the interests of justice to hear the administrative law proceedings first - not satisfied - whether in the interests of justice to withdraw pleadings - proceedings not reached that stage that it would be unjust to permit a withdrawal, no irremediable prejudice - leave granted - leave to withdraw admission in paragraph 13 of subsequent defence - motion otherwise dismissed

WILLS, PROBATE AND ADMINISTRATION - wills - construction and execution of will - whether deceased intended document containing instructions for the preparation of a will, without more, to form will - later will prepared by solicitors based on instructions in document - no evidence that deceased was aware later will had been prepared - deceased unable to sign prepared will - consideration of circumstances of the deceased at time will preparation document was prepared and signed - held deceased intended the document to form her will to extent it recorded instructions as to deposition of her estate, appointment of executors and funeral instructions

BUILDING AND CONSTRUCTION - where design and construct building contract requires provision by the contractor of bank guarantees as security for performance - where, upon satisfaction of certain conditions, the contractor is entitled to a reduction of the security - whether such conditions satisfied - whether, by taking possession of the works, the principal has exercised an election amounting to a waiver of its right to continue to keep the security

COSTS - UCPR r 42.19 - circumstances in which a departure from the usual rule will be ordered - defendant to pay plaintiffs costs

CORPORATIONS - external administration - whether proceedings can be carried on by director of defendant company - director would not have standing to be a plaintiff - UCRP r 7.1(2) requires that a solicitor be appointed to act for defendant company

PROCEDURE - cross-vesting - whether Supreme Court of Victoria the more appropriate forum - interests of justice - collapsed schemes - many group proceedings and individual proceedings in the Supreme Court of Victoria - transfer to Supreme Court of Victoria

PRACTICE AND PROCEDURE - application for summary dismissal - whether a reasonable cause of action

EQUITY - equitable charge - claim by solicitor under costs agreement - whether costs secured by a charge over defendants' properties - agreements not signed by defendants - whether charge enforceable - whether part performance - claim to "fruits of action" lien not disputed REAL PROPERTY - caveats - whether leave to lodge further caveats justified - turns on facts - no question of general principle

APPEAL - application to rely on further evidence - directed to issue relevant to assessment of appellant's credibility - whether "special grounds" - whether requirement of probability of different result satisfied - whether evidence credible - whether evidence available or could reasonably have been obtained - relevance of gravity of findings TRUSTS - establishment of discretionary trust - whether respondents' consent procured by fraudulent misrepresentation - whether appellant fabricated a claim upon brother's estate to delay distributions to respondents - whether appellant fabricated evidence in support of his case - whether primary judge erred in making findings adverse to appellant on facts in issue and issues relevant to assessment of credibility - findings based in part on demeanour

TORRENS TITLE - bankrupt estate - certificate of title - whether issue new certificates of title - practice of the Registrar-General

INTEREST - issues of calculation of interest after the principal judgment (Sino Synergy Investment Co Ltd v Maygood Australia Pty Ltd; Lee v Koo [2012] NSSWSC 92) - from what date should interest be calculated - whether or not interest should be calculated on a compounding basis - COSTS - issues of costs after the principal judgment - whether Sino is entitled to indemnity costs - what apportionment of costs is appropriate given Sino was unsuccessful in some of the proceedings.

TRUSTS - JUDICIAL ADVICE - application by trustee for judicial advice pursuant to s63 of Trustee Act 1925 - whether advice should be given as to a commercial matter - advice given as to a matter of construction

PROCEDURE - Defendant filed notice of motion - usual orders not made to prepare parties for hearing - process interrupted by plaintiff's application to be referred to Duty Judge to be heard in full on the day with no application to do so - Plaintiff's reason is urgency for determination - Defendant not had opportunity to respond - refer matter back to Registrar to make necessary orders

[PROCEDURE] - civil - leave sought to amend statement of claim - embarrassing pleadings - whether plaintiff's proposed amendments to pleadings clarify defects in previous iteration.

COSTS - Indemnity costs - Application for indemnity costs in circumstances where the grounds for which statutory demand was set aside were not identified in earlier correspondence between the parties.

PROCEDURE - Fresh Trial - judge unable to conclude part heard trial - Civil Procedure Act 2005, s 89 - whether any additional evidence should be limited to questions unresolved or whether parties have right to tender evidence and cross-examine generally witnesses called before original judge

PRACTICE AND PROCEDURE - adjournment application - substantially similar to previous application for adjournment - heard as fresh application - application based on medical evidence regarding the first defendant's health - four to six month adjournment sought - no evidence to suggest that the first defendant's health would be substantially improved in that period - HELD - application dismissed EVIDENCE - expert evidence - evidence not given in compliance with Expert Witness Code of Conduct - whether to admit evidence on discretionary basis - HELD - evidence not admitted

Referee, adoption of report, Uniform Civil Procedure Rules 2005 (NSW) r 20.24, Trade Practices Act 1974 (Cth) s 52, misleading and deceptive conduct, relationship with contract, alleged misrepresentations under contract, time limitation, limitation period in contract and negligence, latent defects, res judicata

CRIMINAL LAW - sentence - murder, obtain money by deception - reckless indifference to human life - spontaneous killing - pleas of guilty in Local Court

Interpleader - whether costs should be on indemnity basis - whether costs payable from fund held

PROCEDURE - claim by first plaintiff for interim payment pursuant to s 82(3)(c) Civil Procedure Act 2005 - first plaintiff sustained injury in industrial accident - mild traumatic brain injury and other physical injury - Court satisfied that, if the matter goes to trial, the first plaintiff would obtain judgment for substantial damages against first defendant - order for interim payment made

CORPORATIONS - Corporations Act 2001 (Cth) s 237 - Derivative proceedings - Application by First Plaintiff to bring proceedings in the name of the Second Plaintiff - Whether matters under Corporations Act 2001 (Cth) s 237(2) are satisfied. CORPORATIONS - Winding up - Corporations Act 2001 (Cth) s 461 - Application for order that company be wound up on the just and equitable ground. PRACTICE AND PROCEDURE - Summary judgment - Application for judgment granting final relief sought in Further Amended Originating Process in circumstances that Defendants in extended default of Court's orders. EQUITY - Fiduciary duties - Claim for breach of fiduciary duty against directors of company. EQUITY - Trusts - Constructive trust - Barnes v Addy (1874) LR 9 Ch App 244 - Liability for knowing assistance - Knowing assistance - Whether there is evidence to meet knowledge requirement for knowing assistance. EQUITY - Trusts - Claim for proprietary remedy in circumstances where real property transferred to Defendants for no consideration - Whether volunteer holes property in respect of which claimant has a proprietary interest.

PRACTICE AND PROCEDURE - Application to set aside notice to produce - Relevance of material sought - Legal professional privilege - Utility in requiring production of documents in circumstances where on their face a proper claim for privilege could be made and access not permitted.

ASSOCIATIONS AND CLUBS - incorporated associations - whether compliance with disciplinary procedure under rules of constitution - whether purpose in granting declaratory relief - turns on facts - no question of general principle

CRIMINAL LAW - sentence - murder - whether offender had an intention to kill or an intention to inflict grievous bodily harm - whether offender acted for reward - effect of offender's brain injury upon need for general deterrence - whether special circumstances - malicious wounding - whether partial accumulation of sentences warranted

CRIMINAL LAW - assault - summary hearing in Local Court - charge dismissed - prosecution appeal against dismissal - Magistrate did not permit prosecutor to call certain witnesses - whether denial of procedural fairness - whether error of law in Magistrate's approach to dismissal of charge - whether Magistrate failed to give reasons required by law - duties of Magistrate at defended criminal hearing - error of law and denial of procedural fairness established - matter remitted to Local Court for hearing before a different Magistrate

[BUILDING AND CONSTRUCTION] - strata titles - whether development was adapted for commercial use as a tourist holiday or overnight accommodation - whether owners corporation is entitled to the benefit of the statutory warranties implied under the Home Building Act 1989 (NSW) - whether appropriate for a trial judge to determine a common law duty of care owed to an owners corporation - whether defendants owed a common law duty of care. [PROCEDURE] - civil - interlocutory issues - severability of issues - whether court should order the separate and prior determination of issues proposed by the notices of motion - leave sought to withdraw admission - whether admission is contrary to the actual facts - whether interests of justice favour application for leave being granted - no question of principle. [WORDS AND PHRASES] - dwelling.

CRIMINAL LAW - sentence - manslaughter - plea of guilty to manslaughter on the basis that the offender entered a joint criminal enterprise with the two co-accused to threaten or use unlawful violence against the deceased while each was armed with a weapon - gravity of offence - offence somewhere below the middle range of seriousness for the offence of manslaughter

SENTENCE - murder - constructive murder - deceased killed when struck by car driven by offender in course of fleeing scene of attempted break and enter - no intention to kill or inflict grievous bodily harm

Appeal - appeal against decision of Mental Health Tribunal - whether applicant has standing to appeal as a forensic patient - applicant not a forensic patient - leave to appeal refused

CRIMINAL LAW - Crown appeal against sentence - robbery and assault with intent to rob offences - whether sentencing judge erred in his approach to issue of mental illness - offender with lifelong mental illness problems - relevance of specific and general deterrence - abuse of drugs and mental illness both contributing to commission of offences - sentences imposed not manifestly inadequate - APPEAL against sentence by applicant - parity - considerations relevant to operation of parity principle - different sentencing judges - whether later sentencing judge should go behind findings of earlier sentencing judge - whether sentencing judge should go behind exercise of prosecutorial discretion to examine parity of treatment with regard to co-offenders charged with different offences - whether that issue properly arose on facts - no scope for operation of parity principle.

CRIMINAL LAW - Appeal - Extension of time - Principle of totality - Preventative detention - use of prior criminal record - effect and use of intoxication - Principles in Fernando - no limit on use but unchallenged factual findings inconsistent with use of Fernando - Fernando not raised at sentence hearing, leave refused on this ground - delay - special circumstances on account of accumulation explained.

CRIMINAL LAW - Appeal - disparity in sentence - no justifiable sense of grievance - no error in application of totality principle - no manifest excess - discussion of principles - on facts tests not satisfied

CRIMINAL LAW - sentence - Crown appeal - aggravated kidnapping - detain victim for advantage (to assault and intimidate the victim) whilst in company - victim said to have sexually assaulted co-offender - respondent friend of co-offender - vigilante action against victim - use of firearm, knife and handcuffs - suspended sentence imposed in District Court - Crown asserts patent errors and latent error leading to manifestly inadequate sentence - suspended sentence held to be manifestly inadequate - whether Court should dismiss Crown appeal in exercise of residual discretion - evidence of respondent concerning progress between sentence and appeal hearing - evidence misleading - necessity for candour on part of respondent where evidence advanced in support of discretionary dismissal of Crown appeal - basis not demonstrated for exercise of residual discretion - respondent resentenced

CRIMINAL LAW - sentencing - maliciously inflict grievous bodily harm - two counts - consumption of drugs and alcohol before the attacks - applicant used knife that he was carrying - relevance of the seriousness of the injuries suffered - how intoxication dealt with - sentences not manifestly excessive.

PROFESSIONS AND TRADES - legal practitioners - professional negligence - breach of retainer - scope of duty - proof of loss or damage - causation - assessment of damages - advocate's immunity. GUARANTEE AND INDEMNITY - discharge of surety - where security given for guaranteed obligations - whether later covenant affects security so as to discharge guarantors.

DEFAMATION - common law qualified privilege - jury trial - appeal against primary judge's findings - where respondent not identified in matter - whether trial judge correct that publication was to world at large - whether publication to recipients who would not identify respondent merely incidental DEFAMATION - statutory qualified privilege - s 30 Defamation Act 2005 - whether appellants' conduct reasonable in the circumstances - whether reasonableness determined by principles in Reynolds v Time Newspapers Ltd. PRACTICE and PROCEDURE - extension of time - where leave applied for unnecessarily - leave rejected - whether time to file notice of appeal should be extended

COSTS - departing from the general rule - care proceedings in respect of child - application for prerogative relief in respect of a decision of the District Court upon appeal from the Children's Court - application made by mother and grandmother defended by Director-General of Family and Community Services - application unsuccessful - respondent seeks costs - whether any special factor warrants departure from the general rule