Cases and authorities

Crime - appeal against sentence

APPEAL - civil - leave to appeal - whether appeal "as to costs only" - whether appeal relates to interlocutory orders - Supreme Court Act 1970 (NSW), s 101(2) COSTS - against decision-maker - circumstances in which order for costs can be made against decision-maker - failure of review panel to consider all of the evidence before the costs assessor - whether serious misconduct demonstrated - whether review panel protected by statute - whether review conducted in good faith - Legal Profession Act 2004 (NSW), s 391 COSTS - indemnity costs - offer of compromise - whether offer to forgo costs ordered below constitutes a real element of compromise - Uniform Civil Procedure Rules 2005 (NSW), rr 20.26(2), 42.15A, 51.47 COSTS - lump sum costs - whether appropriate for court to make an order for lump sum costs - whether amount sought was within a fair range - whether preventing further disputation as to quantification of costs justified order - relevance of comparison between the costs of the parties and the amount in dispute - Civil Procedure Act 2005 (NSW), s 98(4)(c) PROCEDURE - judgments and orders - merger - circumstances in which a cause of action merges in a judgment - costs review panel affirmed decision of costs assessor - application for judicial review of decision of costs review panel - whether order quashing decision of costs review panel also quashes order of costs assessor - Legal Profession Act 2004 (NSW), Part 3.2

WILLS, PROBATE AND ADMINISTRATION - wills - construction of a will - whether deceased intended for document, without more, to operate as her will - whether deceased understood requirements of Succession Act 2006, s 8 - effect of informal alterations to wills - whether inference as to intention of deceased affected by absence of any initialling or authentication of informal amendments - held deceased intended latest testamentary instrument to form will WILLS, PROBATE AND ADMINISTRATION - wills - grant of probate - where multiple informal documents written in hand of deceased - no revocation clause in later will - later wills prevail over earlier ones to extent of any inconsistencies - consideration of extent to which prior wills have been revoked - probate granted of will of deceased comprising of two instruments WILLS, PROBATE AND ADMINISTRATION - wills - construction of will - whether words of gift or statement of intention - question as to the nature of the gift made - words of will conferring right of residence - gift as conferring only a conditional right of residence

COSTS: - costs payable forthwith - complete success of Third and Fourth Defendants on discrete and substantial part of proceedings.

CONTRACTS - construction - nature of accrued rights on termination - whether noteholders are creditors - convertible notes - redemption of notes

SUCCESSION - executors or administrators - proceedings by executors and administrators - beneficiary entitled to undertake claim if executors do not do so - beneficiary cannot be in better position than estate POWERS OF ATTORNEY - breach of limitation on donee using power for own benefit - ratification of breach by principal - onus on defendant to establish ratification by unequivocal words or acts - onus on defendant to prove that principal had knowledge of all material circumstances - evidence deficient in that conversations with principal said to establish ratification were in very general terms SUCCESSION - executors and administrators - rights, powers and duties - executor liability in devastavit for wilful default or want of prudence - where executors had or ought to have had knowledge of potential claim for misappropriated funds - executors entitled to take into account unpaid amounts to which potential defendant would be entitled - executors entitled to take into account fact that proceeds of misappropriated funds were paid to or for the benefit of residuary beneficiaries - executors not in breach of trust for failing to pursue beneficiary of legacy or withholding legacy from that beneficiary EQUITY - claim of third party liability for breach of trust or fiduciary duty - knowing receipt - where knowledge of breach not established - where knowledge of receipt of property acquired through breach not established - third party not liable LIMITATION OF ACTIONS - contracts, torts and personal actions - when time begins to run - cause of action accrues on suffering of loss or damage - trusts and deceased estates - where estate had potential claim for misappropriated funds against fourth defendant - devastavit claim against the executors accrued when executors failed to withhold legacy to the fourth defendant LIMITATION OF ACTIONS - application of statutes of limitation - Limitation Act 1969 - Barnes v Addy claim brought by beneficiary in lieu of the estate can be characterised as remedy of conversion of trust property under s 47(1)(b) - applicable limitation period is 12 years EVIDENCE - witnesses - lies told by witnesses - no inference to be drawn that the defendants understood that the powers of attorney were limited by reason of lies that they had not read the powers of attorney

PRACTICE AND PROCEDURE - Vacation of hearing date - Application by Plaintiff to vacate hearing date in circumstances where relevant documents have not been produced - Civil Procedure Act 2005 (NSW) s 68 - Application by Plaintiff for order for production of relevant documents and for attendance of Second Defendant for examination.

STRATA SCHEMES - whether by-laws validly made by strata managing agent appointed under s 162 of the Strata Schemes Management Act 1996 - limits on power of agent appointed under s 162 - whether agent can make by-laws concerning construction and exclusive use - whether special resolution of general meeting of owners corporation required before by-laws can be made - held agent has power to make relevant by-laws. STRATA SCHEMES - whether agent appointed under s 162 acted improperly in exercising his powers - application of "fraud on power" and "fraud on minority" doctrines - whether agent has duty to afford procedural fairness to lot owners when making decisions - whether agent owes duty of care to lot owners when exercising powers conferred under s 162 - held agent did not act improperly. STRATA SCHEMES - by-law authorising construction work under s 65A - whether by-law passed for purpose of "improving or enhancing the common property" - whether removal of external wall is alteration of individual lot - held by-law validly made. STRATA SCHEMES - by-law conferring right of exclusive used under s 52 - whether agent appointed under s 162 can give consent on behalf of lot owners concerned by by-law - meaning of "owner or owners of lot concerned" - whether consent required before by-law passed - held by-laws invalidly made because no written consent of owners concerned.

APPEAL - appeal from Local Court to Supreme Court - Local Court Act 2007 sections 39 and 41 - construction of agreement between divorced parents for maintenance of children - whether agreement to change of school to be inferred from conduct of one party - no failure on the part of Magistrate to provide adequate reasons - error in failing to decide all issues placed before court - Notice of Contention - whether agreement between divorced parents subject to Child Support (Assessment) Act 1989 (Cth) - whether and in what circumstances agreement brought to an end - no remittal to Local Court - discretionary grounds.

Criminal law - sentencing - murder - manslaughter - causing grievous bodily harm with intent to murder - substantial mental incapacity

WILLS, PROBATE AND ADMINISTRATION - wills - Succession Act 2006, s 8 - where documents saved on deceased's computer expressing testamentary intentions - whether intended to form will of deceased - whether deceased intended document without more to operate as will - evidence that deceased did not consider task of making will complete - mention of "will" in conversation with daughter not sufficient to show intention for either informal document to form will - informal documents expressed intentions only - held deceased died intestate

APPEAL - extension of time to file notice of appeal - relevant considerations - whether in interests of justice to extend time - UCPR, r 51.16

CRIMINAL LAW - CONVICTION APPEAL - theft assault and robbery convictions - appellant self-represented - whether hearsay evidence wrongfully admitted - whether Crown address caused miscarriage of justice - whether miscarriage of justice as a result of directions by trial judge - whether fresh evidence should be admitted on appeal - whether miscarriage of justice occurred as the result of conduct by appellant's counsel - whether revocation of bail during trial caused miscarriage of justice - whether jury verdict unreasonable - SENTENCE APPEAL - whether sentencing judge erred in assessment of objective seriousness - whether principle of totality applied - whether sentence manifestly excessive.

Criminal law - conviction appeal - jury verdict - unreasonable or cannot be supported having regard to the evidence - quintessentially jury questions - no miscarriage of justice.

Criminal - appeal - conviction - whether verdict inconsistent - whether verdict unreasonable or unsupported by the evidence - where evidence of witnesses was inconsistent - where witnesses may be criminally concerned.

CRIMINAL LAW - appeal - indecent assault and sexual intercourse with a child - whether the verdict was unreasonable and unsupportable on the evidence - whether verdict involved a miscarriage of justice because it involved an inconsistent verdict with the acquittal on count 2 in the indictment

Criminal law - sentencing - representative offences - sentences should reflect matters charged

CRIMINAL LAW - Evidence - appeal against interlocutory ruling - exclusion of DNA evidence - prejudicial - misleading.

CRIMINAL LAW - appeal against sentence - two counts of supply prohibited drug - whether miscarriage of justice resulted from failure by legal representatives to obtain evidence of psychiatric condition for sentence proceedings

WILLS, PROBATE AND ADMINISTRATION - construction and effect of testamentary disposition - ademption of specific bequest - whether change of substance of asset adeems gift - where valid sale of specifically bequeathed property during deceased's lifetime - held proceeds of sale of property to be dealt with as residue of estate WORDS AND PHRASES - ademption

PRACTICE AND PROCEDURE - costs - unsuccessful application to set aside registration of judgment under Foreign Judgments Act 1991 (Cth) - application for costs on indemnity basis - whether relevant delinquency or unreasonableness - whether failure to comply with s.56 Civil Procedure Act 2005 - application to set aside not hopeless - proceedings not conducted efficiently by unsuccessful party - however delinquency or unreasonableness not established - costs to be assessed on ordinary basis

PROCEDURE - notice of motion - amendment to pleading - granted - reasons for decision

APPEAL - appeal against Local Court decision - charges under s 5(3)(c) and 8(1)Prevention of Cruelty to Animals Act 1979 - definition of 'person in charge' in s 4 - greyhounds - greyhounds not owned by defendant - whether his Honour misunderstood and misapplied the decision Song v Coddington - construction of term 'person in charge' - whether appeal raised an error of law - error established - appeal upheld - costs

CORPORATIONS - Winding up -consideration of assessment and quantification by registrar of special purpose liquidator's claim for remuneration - registrar recommends payment of amount sought - whether final payment appropriate while proceedings to remove special purpose liquidator pending

PRACTICE AND PROCEDURE - Possession List - claim for possession of land - verified Defence filed in Registry - complete absence of pleadings and particulars in Defence - whether Registry staff should have refused to accept document - order made under Rule 4.10(4) Uniform Civil Procedure Rules 2005 refusing to accept document for filing

SUCCESSION - wills, probate and administration - making of a will - deceased creates a Microsoft Word document in his personal computer - document not executed in accordance with Succession Act, s 6 - whether the document expresses the testamentary intentions of the deceased - whether the deceased intended the document to be his will - Succession Act, s 8 - revocation - document printed out of deceased's computer but not found amongst his papers after his death - Microsoft Word document not deleted from deceased's computer - whether the deceased destroyed the printed version of the document - if so, whether the deceased intended to revoke the testamentary intentions expressed within the Microsoft Word document and/or the printed document - whether the deceased no longer intended to treat the Microsoft Word document and the printed document as his will - HELD: no intention to revoke the testamentary intentions expressed in the Microsoft Word document - the Microsoft Word document satisfies Succession Act, s 8 and should be admitted to probate.

CORPORATIONS - equitable compensation for oppressive conduct by defendants pursuant to s 232 Corporations Act 2001 (Cth) - value of goodwill associated with use of company name - parties elected for the Court to determine the nominal value - the relief granted for oppressive conduct may be fashioned so as to compensate the oppressed party - method of valuation may be adapted to the dictates of fairness in the circumstances - determination of nominal value not a strictly mathematical exercise, but involves an element of intuition

The sole issue is whether the court should determine a separate question - Defendants seek an order that the question whether property could form part of the notional estate of the deceased, should be tried separately - Plaintiffs oppose the Defendant's application "as presently framed" - Parties attend court with agreed question

CORPORATIONS - Winding up - Corporations Act 2001 (Cth) s 511 - Application for advice, opinion and direction as to distribution of funds held by liquidators in winding up.

REAL PROPERTY- Torrens title- receivers appointed by mortgagee commenced proceedings for possession of land- defendants failed to remove considerable amount of heavy material from property- no appearance at trial by 1st defendant as no claim to possession asserted by it- 2nd defendant made irregular payments, but not of rent, if money available- distinction between lease and licence- defendants- interest amounted to a licence to occupy the premises. MORTGAGES- receivers- powers, duties and liabilities- whether rights the defendants had under any agreements with the mortgagor bound the plaintiff receivers- receivers would be bound but at best a contractual licence existed which was terminable upon giving reasonable notice. REAL PROPERTY- licences- termination- if licence terminated with notice but the time is not sufficient there is a notice of termination but a reasonable time must be fixed- consideration of reasonable time to vacate and remove all possessions from the property- defendants granted six weeks.

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - conduct of parties - misconduct, etc - in proceedings - conduct of case - where party has pleaded a defence which it then abandons at trial - abandonment of a defence does not itself support order for indemnity costs PROCEDURE - costs - departing from the general rule - Supreme Court procedure - New South Wales - UCPR r 42.34(1) costs order not to be made unless Court satisfied proceedings in appropriate court - where proceedings transferred to Supreme Court to avoid claim being restricted by jurisdictional limit of District Court on quantum - bringing of proceedings in Supreme Court was warranted - exception in UCPR r 42.34(2) applies

PRACTICE AND PROCEDURE - proposed settlement between court-appointed guardian and financial custodian of plaintiff and defendant - settlement requires approval of court under s 76 Civil Procedure Act 2005 because plaintiff a person under legal incapacity - plaintiff resides in Germany - relevant considerations

CONTRACT - expert determination clause - general principles - expert's discretion regarding process of valuation BIAS - expert determination clause - actual bias - heavy onus on party alleging bias - communications prior to formal appointment BIAS - expert determination clause - apprehended bias - necessity for connection between relevant conduct and likelihood that decision-maker might not decide question on merits BIAS - expert determination clause - apprehended bias - principle of apprehended bias will rarely apply to experts - policy and principle PRACTICE & PROCEDURE - advisory opinion - theoretical issue - dispute not yet crystallised - not appropriate to determine

COSTS - offers of compromise - Calderbank offers.

PRACTICE AND PROCEDURE - application for summary dismissal - r. 13.4 and r. 14.28 Uniform Civil Procedure Rules 2005 - purchase of unit financed by unregistered second mortgage - caveat lodged - lapsing notice sent but not received by plaintiff or assignor - caveat lapsed - no trialable issue - order for summary dismissal made.

[PROCEDURE] - civil - discretion to adopt a referee's report pursuant to UCPR r 20.14 - whether referee's report, as to the amount of damages suffered by the plaintiffs, should be adopted, varied or rejected - whether referee erred in assessing the value of the loss of the opportunity to benefit from a contract. [DAMAGES] - torts - negligence - loss of opportunity - standard of proof - whether court is required to asses the degree of probability of occurrence of the opportunity and reflect that degree of probability in the award of damages.

VENDOR AND PURCHASER - contract for sale of hotel - put and call option - licence deed entered into by which company associated with the purchaser was given licence to operate hotel - licence deed and option deed issued on same date - vendor exercised put option - notice to complete served by vendor - notice of rescission issued by purchaser - alleged breach of warranties entitling rescission - construction of warranties VENDOR AND PURCHASER - whether notice to complete invalid - whether purported rescission of contract was repudiation entitling vendor to terminate contract EVIDENCE - admissibility - whether evidence that assets not located at hotel at date of option deed precluded by recitals in licence deed and option deed - held evidence admissible CONTRACT - contract for sale of hotel - alleged misleading and deceptive conduct - representation made in recital to licence deed - vendor did not rely on recital - vendor not misled

CORPORATIONS - Winding up - Statutory demand - Application to set aside - Corporations Act 2001 (Cth) s 459J - Whether verifying affidavit was sworn prior to statutory demand - whether affidavit sworn prior to, but on same day as, signature of statutory demand would give rise to some other reason why statutory demand should be set aside.

FREEZING ORDER - mareva order - foreign proceedings - Uniform Civil Procedure Rules (NSW) rule 25.14 - good arguable case - sufficient prospects of judgment being entered - sufficient prospects of judgment being registered - danger of judgment being unsatisfied

RESTITUTION - claim for money had and received - failure of consideration - negotiations for sale of land in 2000 - whether payments of money by individual director of plaintiff company to or on behalf of defendants was on behalf of the plaintiff company - whether payment of money to or on behalf of defendants were payments toward the purchase price or in consideration of the purchase price - whether consideration for money paid to and on behalf of defendant was keeping the subject land off the market - OBITER - claim for money had and received based on failure of consideration established - moneys were paid by the plaintiff in consideration of purchasing the land - consideration failed with cessation of negotiations in mid 2002 RESTITUTION - claim for restitutionary interest - whether interest accrued from date of moneys paid or date of cessation of negotiations - OBITER - interest accrued from date consideration failed DEFENCES - Limitation Act 1969 (NSW) - action for money had and received falls under s 14(1)(a) as a claim in "quasi contract" - whether cause of action accrued at date moneys were paid or at date consideration failed - HELD - cause of action accrued at date consideration failed which was when (objectively) the contemplated sale failed to materialise in mid 2002 - claim statute barred as proceedings not commenced until September 2008 DEFENCES -unclean hands - not pleaded - whether failure by the principals to disclose a potential claim against the defendant to the external administrator while plaintiff company was under administration was improper conduct - s 438B Corporations Act 2001 (Cth) considered - whether immediate and necessary relation to the relief sought - whether unclean hands if not pleaded goes to discretionary relief - pleading of laches - OBITER - unclean hands, if raised, would have failed due to insufficient evidence of improper conduct and no immediate and necessary relation to relief sought - no finding of laches

CRIMINAL LAW - appeal - conviction - evidence - whether verdict unreasonable on evidence CRIMINAL LAW - appeal - conviction - joint criminal enterprise - whether misdirection in summing up to jury - whether extended joint criminal enterprise alternative should have been left to jury CRIMINAL LAW - appeal - conviction - whether misdirection in summing up to jury - whether evidence capable of verifying key witness's account CRIMINAL LAW - appeal - conviction - joint criminal enterprise - whether manslaughter alternative should have been left to jury

PRACTICE AND PROCEDURE - application for leave to institute proceedings where vexatious proceedings order made in respect of applicant - Whether supporting affidavit compliant - Whether proceedings to be instituted vexatious or lack of prima facie ground - Proceedings vexatious

CASE MANAGEMENT - interlocutory applications regarding affidavit evidence, vacation of the hearing date and request for a referral for pro bono legal assistance - HELD - application to vacate dismissed but commencement date deferred - limited order for pro bono assistance - other applications dismissed.

CORPORATIONS - Deed of company arrangement - (Cth) Corporations Act 2001, 444DA - employees - employees not given priority by deed - employee creditors consent to deed - circumstances in which court will approve non-inclusion of provision under 444DA - whether approval can be given after execution of deed

REAL PROPERTY - possession of land - stay of execution - by occupiers - hardship.

CONTRACT - termination - rescission - whether contract affirmed or terminated CONTRACT - termination - breach - defences - compromise - whether release of cause of action by accord and satisfaction EQUITY - estoppel - promissory estoppel - whether respondent estopped from terminating contract for appellant's breach

PRACTICE & PROCEDURE - Interlocutory application - Application for leave to adduce fresh and further evidence on appeal EVIDENCE - Subpoena to produce documents - Claim of legal professional privilege over subpoenaed documents - Whether the documents were privileged - Copies of documents submitted to legal advisers for legal advice are privileged - Waiver of privilege - Originals not privileged

DUST DISEASES TRIBUNAL - claims resolution process - apportionment between joint tortfeasors - multiple claims and cross-claims between joint tortfeasors - Dust Diseases Tribunal ordered first tortfeasor to pay second tortfeasor although second tortfeasor had not commenced proceedings against first tortfeasor - whether order properly made - discussion of QBE Insurance (Australia) Ltd v Wallaby Grip Ltd [2007] NSWCA 43; 4 DDCR 331; Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107; Bradford Insulation Industries Pty Ltd v Babcock Australia Pty Ltd [2011] NSWCA 117 - Dust Diseases Tribunal Regulation 2007 (NSW), Pt 4 Div 6

EQUITY - fiduciary duty - whether employee and employer in fiduciary relationship - breach - account of profits - whether relevant that employer unable to make profits for which account is taken - just allowance - whether defendants discharged onus of proving allowance claimed CONTRACT - employment contract - restraint of trade clause - whether reasonable - clause preventing employee's involvement in business "which carries on the operations or business similar to" and "which is in competition with" employer - clause applied "in respect of" every State and Territory of Australia and New Zealand - whether employee involved in competition with employer - whether restraint for one year after termination of employment reasonable