Cases and authorities

COSTS - Indemnity costs - Uniform Civil Procedure Rules 2005 (NSW) r 42.1 - Costs follow the event - Whether some other order should be made as to the whole or any part of the costs.

COSTS - proceedings to set aside creditor's statutory demand - Corporations Act 2001, s 459G - difficulty of making lump sum order

TRUSTS - JUDICIAL ADVICE - application by trustee for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) - HELD - judicial advice given

CIVIL PROCEDURE - interlocutory injunctions - application for injunction to restrain the defendants from breaching various restrictive covenants in agreements entered in connection with their employment - HELD - limited injunctive relief granted on an interlocutory basis

CONTRACTS- general contractual principles- construction and interpretation of contracts- valuation of interest of co-owner. CONTRACTS- general contractual principles- construction and interpretation of contracts- provision for expert determination by appointment if parties not in agreement- whether reasonable for appointed expert to require indemnity clause.

Offer of compromise, unreasonableness, multiple tortfeasors, settlement of one tortfeasor, indemnity costs, costs, pre-judgment interest, calderbank offer

APPEAL - criminal - whether appeal from suppression order made by District Court in its criminal jurisdiction lies to the Court of Appeal or Court of Criminal Appeal - whether restriction on evidence that can be admitted - whether de novo appeal - Court Suppression and Non-publication Orders Act 2010 (NSW), s 14 CONSTITUTIONAL LAW - inconsistently of State and Commonwealth laws - validity of Court Suppression and Non-publication Orders Act 2010 (NSW) - interaction with Broadcasting Services Act 1992 (Cth) - whether laws are inconsistent PROCEDURE - interlocutory issues - suppression orders - order made preventing publication of material throughout Australia, including on the internet - whether order is futile - whether order is "necessary" - Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8 PROCEDURE - power to make an order preventing public access to publicly available material - power to make orders requiring removal of material from web site - power of court to make orders preventing threatened interference with a trial - Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8 WORDS AND PHRASES - "necessary", Court Suppression and Non-publication Orders Act 2010 (NSW), s 8 - "review", Court Suppression and Non-publication Orders Act 2010 (NSW), s 14(6)

ADMINISTRATIVE LAW - judicial review - procedure - statutory right of appeal also available to applicants - whether supervisory jurisdiction of the Supreme Court was invoked - whether application should be dismissed - whether costs should be awarded APPEAL - jurisdiction - whether appeal from suppression order made by District Court in its criminal jurisdiction lies to the Court of Appeal or Court of Criminal Appeal - Court Suppression and Non-publication Orders Act 2010 (NSW), s 14

MEDICAL PRACTITIONERS - disciplinary proceedings before Medical Tribunal - separate complaints based on fact of criminal convictions and that practitioner not of good character - reliance on conduct as basis for assessment as to character - whether abuse of Tribunal's process to lead evidence inconsistent with findings on which prior convictions based

ADMINISTRATIVE LAW - Motor Accidents Compensation Act - CARS assessment of damages - failure by assessor to provide adequate reasons in relation to economic loss

ADOPTION - child over 18 years - Adoption Act, s 101(1)(a) - whether with child's consent court can change name in making adoption order - Adoption Act, s 55 - child who is 12 or more but less than 18 who is incapable of giving consent - exceptional circumstances required - nature of exceptional circumstances

VEXATIOUS LITIGANT - no question of principle.

TORTS - negligence - plaintiff lost control of motor vehicle - presence of loose gravel on road at difficult corner - claim against the local authority responsible for maintenance of road - whether local authority responsible for gravel being on road - content of duty of care - foreseeability of risk of harm - breach of duty by depositing gravel on road and/or failing to erect appropriate sign - causation - contributory negligence - failure of driver to keep a proper lookout - DAMAGES - nature and extent of injuries - whether residual earning capacity - need for past and future domestic assistance - whether Civil Liability Act threshold for gratuitous domestic assistance satisfied - whether requirements for future medical treatment and equipment reasonable.

SECURITY FOR COSTS - defendant seeks security for costs - plaintiff company with receiver and manager appointed - professional negligence claim - whether security is necessary - whether proceedings should be stayed until security is provided

CRIMINAL LAW - jury trial - application by Crown to adduce evidence in reply - principles on which Crown permitted a case in reply.

Contract, negotiations, oral contract, alleged declaration of trust, contract construction, commercial context, purpose and object of the transaction, lack of contemporaneous evidence, credibility of witness, alleged admission

PRACTICE AND PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - Whether supporting affidavit compliant - Whether proceedings to be instituted vexatious or lack prima facie ground - Whether appeal from decision disposing of the application - Proceedings vexatious

EQUITY- equitable remedies- where plaintiff paid full purchase price for defendant's new home- proceeds from the sale of the defendant's old home paid to plaintiff but significant balance still owing- plaintiff claimed whole balance payable but defendant claimed payment had discharged the debt due to the plaintiff- parties reached agreement witnessed by several church members and signed statutory declaration that plaintiff would receive 48.84% of proceeds from sale of defendant's new home and defendant would receive balance- agreement did not give plaintiff interest in property- parties to agree on appropriate orders to bring about a sale and plaintiff entitled to receive 48.84% of the proceeds. CONTRACT- series of payments made by plaintiff to defendant over period of several years- where plaintiff claimed that every payment was by way of a loan and defendant claimed that the payments were made voluntarily by the plaintiff as gifts towards the establishment of a home church in rural China- whether moneys recoverable as loans. FAMILY LAW AND CHILD WELFARE- Property (Relationships) Act 1984- s 5(1)(b)- whether parties in close personal relationship- whether relationship for period of 2 years- whether arrangement for free accommodation in return for non payment of purchase price of home was reward under s 5(2)(a) of Act- whether adjustment under s 20 should be made.

STATUTORY INTERPRETATION - s6(1) Trustee Act 1925 - change of trustee - does not impose mandatory requirement for registration of deed of appointment of new trustee STATUTORY INTERPRETATION - s9 Trustee Act 1925 - vesting of trust property upon appointment of new trustee - not a mandatory code STATUTORY INTERPRETATION - s66B Conveyancing Act 1919 - no relevant application

PRACTICE AND PROCEDURE Misfeasance in public office - elements of tort - pleadings and particulars - application for dismissal or striking out of statement of claim on the basis that no reasonable cause of action disclosed - embarrassing pleadings - unrepresented litigant - application of rules

PRACTICE AND PROCEDURE Subpoena to non-party - application to set aside - whether applicants had "sufficient interest" to bring the application - whether applicants had established a legitimate forensic purpose WORDS AND PHRASES - "sufficient interest" - "legitimate forensic purpose"

NUISANCE - fig trees growing on defendant Council's land adjacent to plaintiffs' residential property - whether fig tree roots extend into plaintiffs' property - whether fig tree roots caused damage to lawns and structures on plaintiffs' property - whether the cost of repairing damage to structures on the plaintiffs' land should be apportioned - the extent of such apportionment - between any fig tree related damage and any deterioration due to environmental factors - whether plaintiffs have suffered any loss of amenity - whether the circumstances warrant the grant of a mandatory injunction to remove the fig tree roots and prevent further ingress of roots.

PRACTICE AND PROCEDURE - subpoenas - application for review of decision of Registrar refusing to set aside subpoena to Commissioner of Police seeking criminal record of plaintiff and her deceased partner - whether abuse of process

CIVIL - Negligence - Collision between car and train at level crossing - Local driver of car deceased - Driver of car negligent - Whether contributory negligence by RailCorp or Country Rail Infrastructure Authority - Maximum speed through crossing not negligent CIVIL - Suicide - No presumption against committing suicide - Proper inference on the evidence - Whether intentionally drove car onto rail track to commit suicide - Collision due to inadvertence INSURANCE LAW - Collision between car and train at level crossing due to driver inadvertence - Driver of car deceased - Section 51 Insurance Contracts Act - Whether legal liability on the part of driver - Whether CTP insurer indemnified driver of car - Whether collision was accident within the meaning of the insurance policy - Accident undefined in policy - Common law principles - Collision accidental - Whether criminal offence excluding recovery - Difference between civil and criminal negligence - Plaintiffs entitled to recover from insurer - INSURANCE LAW - Collision between car and train at level crossing - Whether claim by RailCorp for alternative travel costs within insurance indemnity - Alternate transport costs pure economic loss - Whether policy's 'legal liability for loss or damage to other people's property' incorporates claim for pure economic loss - Alternate transport relates to running RailCorp's passenger services and not to damage of property - Outside coverage of policy ESTOPPEL - Whether Country Rail Infrastructure Authority precluded from proceeding with claim because of conduct prior to commencing proceedings - Whether 2009 agreement between second plaintiff and defendant to discontinue proceedings - Reservation to defendant's agreement that not prevented from bringing cross-claim - No basis second plaintiff would be excused completely from litigation - Defence not established

CRIMINAL LAW - murder - sentence after plea of guilty - co-offenders - objective seriousness - actual use of a weapon - committed in company - gratuitous cruelty - premeditated killing - Crimes (Sentencing Procedure) Act 1999 s 61 - person less than 18 years of age at time of the offence - circumstances where no discount for a plea of guilty is appropriate - whether there was an agreement to murder.

PRACTICE AND PROCEDURE - application for payment out of moneys presently held in Court in order to find legal expenses of criminal appeal proceedings and forfeiture proceedings - principles applicable on such an application where fund in Court represents moneys over which estate claims a resulting or constructive trust - HELD - order for access to part of the funds subject to provision of satisfactory costs estimates to be applied in priority to criminal appeal proceedings EQUITY - resulting trusts - property held in joint title - unequal contributions to purchase price - applicant was jointly liable with deceased on mortgage agreement - OBITER - estate has seriously arguable claim for presumed resulting trust EQUITY - presumption of advancement - the parties were in a de facto relationship at the time that the property was acquired - whether presumption applicable - OBITER - as stands on authority at present cannot assume that a presumption of advancement applies where parties were in a de facto relationship FORFEITURE RULE - Forfeiture Act 1995 - property held in joint title by deceased and applicant - operation of right of survivorship - OBITER - estate has seriously arguable claim that applicant holds deceased's half interest on constructive trust for the deceased's estate due to forfeiture rule

CRIMINAL LAW - appeal against conviction - maliciously discharging firearm with intent to do GBH, in the alternative, fire a firearm in or near a public place - conviction of first count - verdict unreasonable - view of scene conducted in the absence of accused who wished to be there - fundamental flaw in trial process - admissibility of evidence of flight as consciousness of guilt

CRIMINAL LAW - appeal against conviction - cause grievous bodily harm with intent - intent the only issue - whether verdict unreasonable - whether directions adequate

CRIMINAL LAW - sentence appeal - conspiracy to deal with money in excess of $1 million, conspiracy to import not less than the trafficable quantity of heroin, conspiracy to traffic in a marketable quantity of heroin and methamphetamine - whether adequate effect given to role of applicant in conspiracy - application of parity principle - whether applicant's "good character" appropriately dealt with by sentencing judge - whether discount for plea of guilty appropriately applied - need to take into account prospects for rehabilitation.

CRIMINAL LAW - appeal - conviction for murder - circumstantial evidence - whether direction required that jury needed to be satisfied beyond reasonable doubt that child suffered fatal injuries within specific time period alleged by the Crown - whether indispensable intermediate fact - whether Shepherd direction necessary CRIMINAL PRACTICE & PROCEDURE - appeal - conviction for murder - application to adduce new evidence - whether any significant possibility that evidence would have led to acquittal if adduced at trial

CRIMINAL - Sentence Appeal - Wounding with intent to cause grievous bodily harm - Failure to take into account highly relevant mental condition - Seizure disorder secondary to head injury - Probable frontal lobe damage diminishing capacity for self-control - Irrelevant material considered when finding offence above mid-range of objective seriousness - Deliberate and intentional conduct part of the offence - Failure to reflect discount for plea of guilty in the non-parole period - Failure to reflect finding of special circumstances - Resentenced

APPEAL - Summons seeking leave to appeal - Trial judge's order of an interlocutory nature - No error in trial judge's determination or order - Notice of motion dismissed. PROCEDURE - Notice of motion seeking to set aside order dismissing proceedings on basis of no appearance - Whether Court ought to set aside order - Uniform Civil Procedure Rules 2005, rr 36.15, 36.16

APPEAL - CIVIL - costs of Mining Warden proceedings - proceedings commenced without authority - ratification of solicitor's retainer - solicitor acting outside of instructions - whether solicitor personally liable for costs of third party - source of power to order costs - Civil Procedure Act (2005) s98, s99. CORPORATIONS - informal meeting - validity of resolution passed at an informal meeting.

CONTRACTS - Contract for provision of security services - Breach of contract - Award of expectation damages - Whether overhead expenses should be included in the assessment of damages - No absolute principle that account must be taken of overhead expenses - Plaintiff is entitled to such damages as place it in the same position it would have been in had the contract been performed - The Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64 DAMAGES - Contract - Breach of contract - Sufficiency of evidence to prove claim for damages - Challenge to the reliability and admissibility of accounting evidence - Inaccuracies were not of sufficient size or volume to raise sufficient doubt as to overall accuracy of accounting evidence - Sufficiency of evidence is a matter for the trial judge EVIDENCE - Evidence Act 1995, s 146 - Exhibits derived from business records - Statutory presumption - Section 146 relates to documents produced by processes, machines or other devices - Presumption not directed to underlying accuracy of information contained in a document or record that is reproduced

CORPORATIONS - whether requirements of s 436A (1) of the Corporations Act 2001 (Cth) met - whether winding up application should be adjourned

[PROCEDURE] - civil - leave sought to amend statement of claim - whether claim properly pleaded and particularised - whether plaintiff should be given an opportunity to propound a revised version of the pleading. [LIMITATION OF ACTIONS] - limitation defence - whether plaintiff's cause of action is statue barred.

[INSURANCE] - policy - duty of disclosure - scope of policy - whether plaintiffs made misrepresentations to insurer - whether misrepresentations fraudulent - whether insurer relied on misrepresentations in deciding to issue policy - whether debts claimed by the plaintiffs fall within the scope of the policy - whether amount of loss claimed should be reduced for breaches of warranty under which plaintiffs were required to mitigate loss.

TORT - negligence - causation - novus actus interveniens - concurrent wrongdoers REMEDIES - damages - apportionment - mitigation - duty to mitigate - onus of proof of mitigation

PROCEEDINGS FOR DAMAGES FOR PERSONAL INJURY - issue between second defendant and its insurer - whether insurer's liability to indemnify second defendant excluded by a term of the policy

CRIMINAL LAW - sentence - manslaughter - provocation.

[EQUITY] - interests - priorities - equitable mortgage - terms on which sale should be ordered. [COSTS] - indemnity costs - relevant delinquency - whether conduct of plaintiff and defendant is sufficiently "relevantly delinquent" to justify costs on the indemnity basis.

COSTS - application for costs on indemnity basis - offer of compromise - offer of compromise conditional on acceptance by all parties - valid offer of compromise conforms with rules and exclusive of costs - refusal of offer - entitlement for costs to be assessed on indemnity basis after date of offer, Civil Procedure Rules r 42.14(2) - whether extent of success of plaintiff on particular issues warrants any variation to the costs orders - held issues not dominant nor wholly severable - insubstantial success having no effect on costs order - costs ordered on ordinary basis until date of offer and on indemnity basis thereafter PRACTICE AND PROCEDURE - costs - offer of compromise brought by company - offer of compromise signed by director on behalf of company - whether offer of compromise invalid - non-compliance with Civil Procedure Rules, r 7.2 - held non-compliance did not invalidate offer COSTS - orders - Sanderson order - alternative claims against cross-defendants - whether joinder of parties reasonable and proper - held all parties necessarily joined to avoid separate litigation - whether conduct of unsuccessful defendant makes it fair to impose liability of successful defendant - conduct as cause of joinder of cross-defendants and raising of additional issues - consideration of relevant factors in the overall discretion under Civil Procedure Act 2005 s 100 - held costs of successful cross-defendants to be paid by unsuccessful defendant

LAND AND ENVIRONMENT - application for leave to appeal against decision of Land and Environment Court on a question of law - whether requirements of Hurstville Local Environment Plan concerning location of premises used for sex services were "development standards" as defined in Environmental Planning and Assessment Act 1979 - previous decisions of Court of Appeal identify relevant principles - no special features of case warranting grant of leave to appeal

REAL PROPERTY - sale of land by council for unpaid rates - defendant purchased land in 1998 in false name - defendant misleads council that he is tenant and not owner of land - land sold at public auction - condition of contract for sale that council gives vacant possession to purchaser - claim by council for possession of land before completion of sale to give vacant possession to purchaser on completion - defendant refuses to surrender possession of land - efficacy of sale process - compliance with ss.713 and 715 Local Government Act 1993 - whether summary rejection by council of partial offer by defendant on eve of auction constituted non-compliance with s.715(2)(b) - whether council entitled to possession of land - whether defendant required to surrender possession of land before registration of transfer - implied entitlement of council to obtain possession under Local Government Act 1993 - application of s.60 Real Property Act 1990 and s.109 Conveyancing Act 1919 - council entitled to possession - judgment for possession with leave to issue writ of possession forthwith

PROCEDURE - notices of motion - application for joinder - order seeking proceedings to be transferred to Queensland - question of standing - agreement reached - costs

PROCEDURE - notices of motions - joinder application - application seeking an extension of time to bring a cross-claim in the 2010 proceedings - strike out application - application for partial discharge of the implied undertaking in respect of certain documents produced to Court by third parties under subpoena - costs

PROCEDURE - notices of motions - whether claims, in whole or in part, statute barred - limitation question to be determined - pleadings - claims in respect of personal injury - operation of s 13 of the Limitation Act 1969 - discretions under s 65(2)(c) of Civil Procedure Act 2005 - malicious prosecution claims - claims within the limitation period - motions dismissed - costs

MORTGAGES - whether loan agreement and mortgage unjust - whether defendant entitled to relief under the Contracts Review Act

Criminal law - appeal - variation of order

Criminal law - sentencing - ongoing supply of heroin