Cases and authorities

APPEAL - application to vary costs orders made in principal judgment - no issue of principle

BUILDING AND CONSTRUCTION - Application to set aside adjudication determination on the basis of no jurisdiction on the grounds that the defendant impermissibly made, and the determination dealt with, more than one payment claim in relation to the same reference date in conflict with ss 13(1), 13(5) and 17(1) Building and Construction Industry Security of Payment Act 1999 (NSW) - HELD - Whether more than one payment claim was made to be viewed as a matter of substance not form - multiple invoices capable of being one payment claim for the purposes of the Act

COSTS - contested application for costs where parties came to commercial settlement - Owners Corporation abandoned large portion of claims for defects - defendants (the builders) agreed to rectify small proportion of defects originally claimed - Parties agreed no reasons required and Court at liberty to fix quantum of any orders - No issue of principle

CORPORATIONS - external administration - special leave to distribute a surplus -meaning of special leave - interim distribution - circumstances in which interim distribution is appropriate - requirement to annex Form 551 to order - power to dispense with requirement for Form 551 - circumstances in which Form 551 can be dispensed with

FAMILY LAW AND CHILD WELFARE - The Family Law Act 1975 (Cth) and Related Legislation - breakdown of marriage - husband brought equity suit for declaratory and other relief with respect to the property of the parties - settled by heads of agreement with deed to follow during mediation - husband refused to execute deed - wife sought specific performance - whether in 1st or 3rd category under Masters v Cameron - maintenance agreement but not a financial agreement - whether s 86A of the Family Law Act rendered it unenforceable - whether validated by s 29(1) of the Civil Procedure Act 2005 - whether maxim that equity will not allow a statute to be used as a cloak for fraud applied

ADMINISTRATIVE LAW - judicial review - decision of Consumer, Trader and Tenancy Tribunal - termination of residential tenancy agreement for non-payment of rent - whether plaintiff denied procedural fairness - whether Tribunal Member prejudged matter - plaintiff was accorded procedural fairness

ADMINISTRATIVE LAW - judicial review - decision of Consumer, Trader and Tenancy Tribunal - termination of residential tenancy agreement for non-payment of rent - whether plaintiffs denied procedural fairness - orders of Tribunal "by consent" - plaintiffs accorded procedural fairness

PROCEDURE - costs - depriving a successful party from order for costs - where defendants failed on factual assertions but were successful on the issue in respect of which the facts were asserted - where proven breaches of duty were not causative of loss - plaintiff has not succeeded on a clearly dominant or separable issue and not an appropriate case for apportionment of costs to specific aspects of evidence PROCEDURE - costs - conduct of parties - misconduct in proceedings - where findings made that a party was not a credible witness and admissions made by a party in cross examination - departure from general rule not warranted PROCEDURE - costs - offer of compromise under UCPR - where offer of compromise deals with costs - offer not in accordance with UCPR r 20.6(2) but can be effective as a Calderbank offer PROCEDURE - costs - order for costs on indemnity basis for non-acceptance of Calderbank offer - where offer involved prospect of an application to reduce costs to unspecified degree - where considerable costs incurred were on the plaintiff's case brought about by conduct of the defendants - where a separate offer is made by another defendant together with a number of incorrect assertions - in context of an open offer by the other defendants which it was not unreasonable for the plaintiff not to accept - where offer does not specify which party should pay what amounts - non-acceptance by plaintiff of offers not shown to be unreasonable

PRACTICE AND PROCEDURE - Orders made under s 73 of the Civil Procedure Act 2005 giving effect to Heads of Agreement - whether respondent had complied with conditions precedent in Heads of Agreement - construction of Heads of Agreement - whether Council had "certified" that work on the site had physically commenced and that development consent was still current - orders under s 73 set aside.

PRACTICE AND PROCEDURE - application pursuant to s 140 of the Civil Procedure Act 2005 for transfer of proceedings from District Court to Supreme Court - whether court satisfied that damages would be likely to exceed the jurisdictional limit of the District Court - not satisfied

PRACTICE AND PROCEDURE - application for payment of moneys out of Court - application pursuant to r 25.3(3) Uniform Civil Procedure Rules 2005 (NSW) or in the alternative pursuant to s 95 Trustee Act 1925 (NSW) - application by Vertical-T with respect to moneys held by Vertical Australia, initially Australian agent for Vertical-T - other potential claimant Wellman Limited, a company incorporated in Cyprus, which had previously acted as intermediary between Vertical Australia and Vertical-T - HELD - satisfied that Vertical-T has established claim to moneys COSTS - application for payment out of Court brought by Vertical Australia on interpleader procedure - Vertical Australia seeks costs of application - whether unreasonable or premature for Vertical Australia to commence proceedings - HELD - proceedings were not commenced unreasonably or prematurely - cost application granted PRACTICE AND PROCEDURE - application for security for costs by Vertical Australia - claim for retention of moneys paid into Court in the interpleader proceedings - whether position of Vertical Australia is analogous to a trustee with respect to right of indemnification from trust property - whether in analogous situation trustee would have right to indemnification - no equitable lien claimed - power to order security for costs is discretionary - objective is to assess sufficient security that is just in all the circumstances of the case - where uncertainty as to actual costs which will be incurred in conduct of proceedings - HELD - security for costs to be provided on a staged basis

PRACTICE AND PROCEDURE - application for strike-out/summary dismissal - rr 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW) - whether claims statute barred by Limitation Act 1969 (NSW) - where limitation defences raise issues of fact - whether proceedings are futile either on the basis that the claims are untenable on their face or due to deficiencies in the plaintiffs' evidence - HELD - application dismissed

PRACTICE AND PROCEDURE - Orders - Interlocutory application to stay operation of orders made on 8 March 2012 and several other orders - Orders made after proceedings settled on first day of hearing - Whether orders should be stayed.

REAL PROPERTY - unregistered interests - caveats - operation of s 74H(4) of the Real Property Act - meaning of "has been lodged" - consideration of definition of lodgment in s 36(1B) - held that dealing is not lodged until given distinctive reference. REAL PROPERTY - unregistered interests - priority - determination of "better equity" - postponing conduct - where earlier interest holder has withdrawn caveat - where later interest holder has acquired their interest from a person with a "better equity" but is on notice of the earlier interest. REAL PROPERTY - unregistered interests - priority - operation of s 43A(1) - where person has acquired interest from a person entitled to protection under s 43A(1) - held still entitled to priority.

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

CORPORATIONS - Winding up - Just and equitable ground - quasi-partnership where purposes can no longer be achieved and shareholders wish to realise assets COSTS - where one shareholder resiles from agreement to wind up company and unsuccessfully opposes proceedings

CONFLICT OF LAWS - stay of proceedings - proceedings concerning application brought under s 66G Conveyancing Act 1919 (NSW) in relation to matrimonial property situated in New South Wales - where both parties resident in People's Republic of China - where proceedings on foot in People's Republic of China regarding disposition of matrimonial property - stay sought pending determination of other proceedings - HELD - appropriate to grant temporary stay of s 66G proceedings pending outcome of Chinese proceedings on certain conditions

Pleadings - amendment - whether abuse of process

PRACTICE AND PROCEDURE - evidence - affidavits - whether residential address is required on an affidavit PRACTICE AND PROCEDURE - application to set aside a default judgment - bona fide defence on the merits - whether failure to provide a residential address on an affidavit indicates a lack of bona fides PRACTICE AND PROCEDURE - appeal - costs - whether denial of natural justice

REAL PROPERTY - co-ownership - application for appointment of statutory trustees for sale - adjustment of interests - whether non-occupying owner entitled to occupation fee - where there has been no exclusion from the property - consideration of principle in McKay v McKay and Callow v Rupchev - held applicable to "domestic relationship" between brother, sister and mother. REAL PROPERTY - co-ownership - application for appointment of statutory trustees for sale - adjustment of interests - whether contributions made by associated entity attributable to party. EQUITY - trusts - resulting trust - presumption of resulting trust based on contributions to purchase price - presumption rebutted where parties have agreed on beneficial interest at time of purchase. EQUITY - trusts - remedial constructive trust - principle in Baumgartner - application to family relationship - necessity of identifying relevant "joint enterprise" - whether there was "attributable blame" for the failure of the joint enterprise - whether party adequately compensated by a right to contribution - whether respective contributions by parties should be valued according to cost or increase in value of property. LIMITATION OF ACTIONS - whether claim for imposition of remedial constructive trust subject to limitation period - application of Limitation Act directly or by analogy - distinction between claim for constructive trust and claim for debt or action for money had and received - consideration of when claim for remedial constructive trust accrues. EVIDENCE - admissibility - inadmissibility of evidence of communications in connection with an attempt to negotiate a settlement of the dispute - whether admissions made in such communications admissible - consideration of exception in s 131(2)(g) - held evidence not admissible simply because it qualifies other evidence adduced in proceedings. ONUS OF PROOF - general principle - onus is on the defendant if the allegation is not simply a denial of an essential ingredient of the cause of action but a good defence.

CRIMINAL LAW - appeal - conviction - double jeopardy - incontrovertibility of verdict - whether conviction of applicant for murder of his parents controverted applicant's acquittal for murder of his brother - whether manner in which Crown Prosecutor conducted trial controverted earlier acquittal - whether trial judge failed to instruct jury to give applicant "full benefit" of earlier acquittal - whether trial judge erred by not staying proceedings - rule against double jeopardy not infringed - trial judge's directions denied applicant full benefit of earlier acquittal. CRIMINAL LAW - appeal - conviction - expert evidence - admissibility - relevance - prejudicial effect - whether evidence of fire demonstrations and likely behaviour of fire elicited from Crown expert was relevant - whether probative value of evidence outweighed by prejudicial effect - probative value outweighed by prejudicial effect - evidence ought not to have been admitted - whether expert opinion evidence on similarity of pattern of stab wounds admissible - evidence of similarity admissible - opinion that similarity constituted an underlying pattern inadmissible - Crown Prosecutor's reliance on pattern of similarity amounted to coincidence reasoning - evidence of pattern of similarity not admitted as coincidence evidence under s 98 of Evidence Act 1995 - whether failure to call additional expert on issue of similarity on grounds of unreliability occasioned a miscarriage of justice - failure to call witness caused trial to miscarry - whether expert evidence on expected amount of blood on applicant and murder weapon relevant and admissible as expert opinion evidence - whether probative value of evidence outweighed by prejudicial effect - evidence admissible as expert opinion evidence - probative value outweighed prejudicial effect. CRIMINAL LAW - appeal - conviction - whether Crown Prosecutor cross-examined applicant in improper manner - whether Crown Prosecutor addressed jury in an improper manner - whether Crown Prosecutor undermined directions of trial judge - aspects of Crown Prosecutor's conduct and address improper -no miscarriage of justice occassioned. CRIMINAL LAW - appeal - conviction - whether verdict unreasonable or unsupported by the evidence - circumstantial evidence - circumstantial evidence to be considered as a whole - doubt capable of being resolved by jury's advantage in seeing and hearing evidence of applicant - no reasonable doubt on independent assessment of evidence. CRIMINAL LAW - new and fresh evidence - whether evidence available at time of trial - whether evidence credible, plausible or capable of belief - whether evidence likely to have caused jury to have entertained a reasonable doubt about guilt of applicant - new evidence concerning carbon monoxide likely to have caused jury to entertain a reasonable doubt. CRIMINAL LAW - appeal - conviction - whether applicant should be acquitted or retried - discretionary considerations.

PRACTICE AND PROCEDURE - application for pro bono assistance under UCPR 7.36 - where litigant had received assistance under a previous referral twice within preceding three years - determining whether interests of justice are in the applicant's favour requires assessment of whether the appeal has reasonable prospects of success - prospects of success found to be insufficient - application refused PRACTICE AND PROCEDURE - power to waive, postpone and remit fees under Civil Procedure Regulation 2005 reg 11 - power to be exercised by Registrar on separate application

APPEAL AND NEW TRIAL - stay of proceedings - stay sought based on the possibility of wasting expenditure if appeal were to succeed, and applicant's inability to afford expenditure - only evidence of applicant's inability to afford expenditure is solicitor's affidavit stating he is informed and believes applicant cannot afford to provide money - insufficient evidence to support assertion - application refused

APPEAL - insurance broker's advice to insured concerning insurance policy - whether the primary judge was in error in finding that the appellant had not suffered any relevant loss as a consequence of the respondent's wrongdoing - whether primary judge erred in finding that the appellant did not have a substantial prospect of acquiring a policy with the requisite protection - whether evidence that a more advantageous policy would be available and accepted - whether the primary judge made a number of factual errors in relation to conclusion that no such evidence. DAMAGES - whether the appellant was entitled to recover damages to compensate it for that lost opportunity - principles applicable to assessment of damages for a lost chance. COSTS - indemnity costs - whether there was a genuine offer of compromise.

NEGLIGENCE - personal injury from traffic accident involving bicycle rider - appeal against the primary judge's orders challenging his finding of negligence and his assessment of contributory negligence. NEGLIGENCE - duty of care - breach - question of fact - whether the appellant's response to the risk created was unreasonable or indicative of a lack of reasonable care in the circumstances - application of the principle of agony of the moment - only with the benefit of hindsight could criticism be levelled at the appellant's response. NEGLIGENCE - findings of negligence could not be sustained - appeal allowed and verdict, judgment and orders of the primary judge set aside - verdict and judgment for the appellants.

PRACTICE AND PROCEDURE - adjournment application - application based on psychiatric disability of defendant - right to defend proceedings - adjournment granted

TRADE PRACTICES - Misleading and deceptive conduct - conveyancer represented to incoming mortgagee that contracts had been exchanged - incoming mortgagee advanced funds where borrower had represented that contracts had been exchanged - Whether conduct misleading or deceptive - Misrepresentation by conduct - (NSW) Fair Trading Act 1987 s 42, 68. TRADE PRACTICES - Misleading and deceptive conduct - conveyancer represented to title insurer for incoming mortgagee that contracts had been exchanged - title insurer accepted risk where borrower had represented that contracts had been exchanged - Whether conduct misleading or deceptive - Misrepresentation by conduct - (NSW) Fair Trading Act 1987 s 42, 68. TRADE PRACTICES - false or misleading representations concerning the nature of an interest in land - whether representation concerned the nature of an interest in land - misrepresentation concerning grant of an equitable interest in land by falsely representing to mortgagee that mortgagor had equitable interest in land - misrepresentation by agents - (NSW) Fair Trading Act 1987 s 45. TRADE PRACTICES - Misleading and deceptive conduct - conveyancer represented to incoming mortgagee that he had instructions to apply funds to purchase of certain real property - Whether conduct misleading or deceptive - Whether representation concerned an interest in land - Misrepresentation by conduct - (NSW) Fair Trading Act 1987 s 42. TRADE PRACTICES - Misleading and deceptive conduct - misrepresentation by non-disclosure - conveyancer acting for purchaser and mortgagee did not disclose that client was contemplating alternative arrangements to purchase property - Whether conduct misleading or deceptive - Whether duty to disclose existed - (NSW) Fair Trading Act 1987 s 42. CAUSATION - Trade practices - Misleading and deceptive conduct -whether contravening conduct a cause of the loss or damages - causal connection established by inference - where title insurer liable to indemnify lender in respect of loan where borrower had no equitable interest in property - where lender insured against risk that materialised - whether insurance operates to extinguish loss - loss to insured caused by misrepresentation to insurer. TORTS - duty of care of conveyancer to client when acting in respect of loan transactions - duty based on responsibility and vulnerability - client acquiesced in conveyancer taking instructions from third party - whether breach of duty by making misrepresentations to counterparty to loan transaction. PROPORTIONATE LIABILITY - Loan and mortgage transaction - Fraudster liable to lender for fraud - conveyancer misrepresented to lender that borrower had equitable interest in property - lender's solicitor liable for failing to make proper inquiries - Whether concurrent wrongdoers - Pt 4 of Civil Liability Act 2002 - Whether acts or omissions caused the same damage or loss the subject of lender's claim - Difference between damage and damages - conveyancer, solicitor, and fraudster concurrent wrongdoers in causing lender to advance loan funds - apportion liability 50% to fraudster, 25% to solicitors and 25% to conveyancer.

ADMINISTRATIVE LAW - appeal from Nurses and Midwives Tribunal - findings by tribunal of unsatisfactory professional conduct and professional misconduct - plaintiff's registration as nurse cancelled and not to apply for review of tribunal decision` for two years - judicial review - whether correct law was applied - whether purpose of law was considered - whether correct legal test was used - whether there was a denial of procedural fairness - appeal dismissed

CONTRACT - construction - conditional agreement to lease - option given to one party to terminate if conditions not satisfied - conditionality not absolute CONTRACT - void for uncertainty - agreement apparently incomplete as to essential matter - mechanism for curing omission - matter left for determination of one of contracting parties - not agreement to agree - not incomplete CONTRACT - void for uncertainty - unworkability - applicable principles - agreement prepared without legal assistance - necessity to strive for contractual intention - agreement enforceable

APPEAL: - decision of Associate Justice - leave previously granted to amend pleading - application under s 1325(2) of Corporations Act - form of pleading - limitation period - case management - appeal allowed - amendments disallowed.

ADMINISTRATIVE LAW - judicial review - certiorari - error of law on the face of the record - jurisdictional error - plaintiff and defendant challenge review panel certificate issued by a medical review panel under s.63(4) Motor Accidents Compensation Act 1999 - HELD - panel asked itself the wrong question and identified the wrong issue - panel misdirected itself as to law -jurisdictional error and error of law on the face of the record established - certificate issued by review panel set aside - matter remitted to the Motor Accidents Medical Assessment Service for referral to a review panel constituted under s63 Motor Accidents Compensation Act 1999 for determination according to law.

Consent orders - discovery - Practice Note SC Eq 11 - disclosure - exceptional circumstances required - relevant partial admission insufficient - orders vacated

PRACTICE AND PROCEDURE - Application to amend pleadings - concurrent application to strike out particular paragraphs of the pleadings and to amend granted - Strike out application partially successful

PRACTICE AND PROCEDURE - costs

PRACTICE AND PROCEDURE - professional negligence pleadings - application to strike out defence - whether pleadings vexing or embarrassing - whether compromise reached with Plaintiff's professional indemnity insurer relevant to defence - subrogation - application to amend defence - whether proposed amended pleadings sufficiently arguable - relevance of Plaintiff's compromise with professional indemnity insurer - whether proportionate liability pleading a proper claim.

COSTS - Plaintiffs' application dismissed - Defendant seeks an order that their costs be paid by the first Plaintiff - Whether Defendant's costs should be paid out of estate - Whether Court should depart from usual costs order - Defendant's costs calculated on the ordinary basis be paid out of first Plaintiff's share of estate

CRIMINAL LAW - sentence - murder - plea of guilty - reckless indifference to human life - domestic setting - offender surrendered to police after lengthy period at large - offence in 1987 - sentencing practice at that time

[INJUNCTIONS] - Restraint on publication of program in which first defendant breaches contract with the plaintiff - whether injunction should continue [INDUCING BREACH OF CONTRACT] -whether publisher was aware of contract - whether constructive knowledge - whether intention to induce breach of contract

DEFAMATION - pleading - objections as to capacity and form of proposed imputations - no question of principle

CORPORATIONS - Winding up - Question arising during winding up - Application by liquidators to court for direction - Application by liquidators for approval of entry into deed of release - Merits of deed of release - Corporations Act 2001 (Cth) s 511 - Whether it would be "just and beneficial" for court to determine question or exercise a power.

SUCCESSION - family provision - application by adult son - application made after estate distributed - whether applicant consented in writing to distribution - notional estate - reasonable expectations as to property - justice and merits of making order for provision

DEFAMATION - parties - further proceedings against same defendant - whether proceedings in respect of same or like matter - application for dismissal under s 23 Defamation Act 2005 - Internet publications - whether "matter" as defined in s 4 Defamation Act incorporates mode of communication - turns on facts - no question of general principle

MORTGAGE- Real Property- mortgages- claim by mortgagee for possession on default- cross claim under Contracts Review Act- claim by second mortgagee for possession when order for possession already made in favour of first mortgagee- whether orders should be made. CONTRACT- loan agreements secured by mortgage- lender told purpose of loan- no evidence this was untrue or unintended - borrower understood the nature of documents signed and lender's solicitor relied on documents forwarded to him signed by borrower as to loan purposes, and independent advice- no disability- whether contracts unjust. EQUITY- unconscionable conduct- no evidence of special disability.

Guarantees - applications to set aside default judgment and to strike out defence - whether arguable case.

Defamation - extension of limitation period - plaintiff unaware of publication within limitation period - would have become aware of the publication on reasonable inquiry- extension refused.

COSTS- circumstances where cross claim dismissed because plaintiff's claim failed. SET OFF- costs against costs and costs against judgment.

APPEAL - summons seeking leave to appeal - appeal against primary judge's findings rather than orders not permissible COSTS - assessment process - what objections may be raised

APPEAL - practice and procedure - appeal out of time - application for extension of time - no question of principle

PROCEDURE - Court of Appeal - application for stay pending determination of appeal -- appellant seeks stay of judgments not challenged on appeal - where party named as second respondent to appeal against whom no relief is sought on appeal has commenced winding up proceedings against the appellant on the basis of unpaid judgment debts arising from those unchallenged judgments in its favour - whether pendency of appeal and possibility of winding up order against appellant forms basis for staying the judgments

CONTRACTS - building and construction - clause requiring execution of strata plan - construction - whether obligation arose only on completion of works - meaning of 'completion' - whether requiring only 'practical completion' CONTRACTS - building and construction - entire contract - whether doctrine of substantial performance applicable -whether obligations substantially performed PRACTICE AND PROCEDURE - references - adoption of referee's report - whether referee erred in construction of contract CONTRACTS - waiver - forbearance abandonment and election - whether taking possession of incomplete building works constituted waiver of right to completion CONTRACTS - construction - implied obligation of good faith - content of obligation - whether obligation capable of altering express contractual terms - whether breach of obligation. CONTRACTS - termination - repudiation - whether renunciation of contract RESTITUTION - availability of recovery on quantum meruit - whether action for damages by innocent party enlivens claim by defaulting party for recovery on quantum meruit CONTRACTS - building and construction - damages - measure of damages - Bellgrove v Elridge - Tabcorp Holdings Ltd v Bowen Investments - whether rectification work reasonable - relevance of probability work would not be carried out.