Cases and authorities

CORPORATIONS - Examination - Order for production - Oppression - Supreme Court (Corporations) Rules 1999 (NSW) r 11.5 - Uniform Civil Procedure Rules 2005 (NSW) r 49.19 - Application for summonses for examination and orders for production to be set aside.

CRIMINAL LAW - sentence - accessory after the fact to murder committed by offender's brother - plea of guilty - significantly involved in cleaning up crime scene and disposing of body - early plea and assistance to authorities

WILLS, PROBATE AND ADMINISTRATION - probate - application for grant of probate in solemn form - defendant previously raised queries as to deceased state of health at time of execution of will - alleged plaintiff exerted improper influence over deceased at time of execution of will - no appearance from defendant - no evidence presented to cast doubt on evidence that will was duly executed WILLS, PROBATE AND ADMINISTRATION - probate - grant of probate - costs - where costs of litigation caused by testator, executor or person interested - caveat lodged by interested party demanding no grant be made without prior notice - effect of knowledge or insufficient inquiry - obligations of caveator - costs

WILLS, PROBATE AND ADMINISTRATION - probate - application for revocation of probate - where due and proper administration of estate prevented by omissions of one of two executors in office - failure to comply with duties as an executer to realise the assets with reasonable diligence to enable debts to be paid and distributions made - defendant not a fit and proper person to carry out the duties of executor - form of orders - existing grant of probate revoked - probate granted to plaintiff alone

WILLS, PROBATE AND ADMINISTRATION - probate - application for the revocation of the grant of probate - no steps taken by executor to realise the estate assets - whether bankrupt defendant to be removed as executor so that the estate assets may be realised - defendant's beneficial interests to be made available for the payment of creditors - defendant removed as executor to ensure proper administration of estate

CRIMINAL LAW - sentence - manslaughter and affray - public melee between rival motorcycle club members - accumulation of sentences - parity with co-offenders

CRIMINAL LAW - Sentence appeal - Affray - Applicant on bond at time of offence - Similar culpability of all five offenders - Error attributing statement during affray to applicant not of substance - Error regarding circumstances of Form 1 offences not of substance - Sentence not manifestly excessive - Four month longer non-parole period to co-offender not marked as clearly unjustifiable - Appeal dismissed

CRIMINAL LAW - Crimes Act 1900, s 321(1)(a) - Appeal against conviction - Plea of guilty - Whether plea was entered in circumstances amounting to a miscarriage of justice - Plea of guilty to offence particularised in indictment should not have been accepted - Conviction on charge under Crimes Act 1900, s 321(1)(a) quashed - Order for committal proceedings to be continued pursuant to Criminal Appeal Act 1912, s 8A - Appeal allowed CRIMINAL LAW - Application for leave to appeal against sentence with respect to Crimes Act 1900, s 35(4) - Reckless wounding offence - Whether sentence manifestly excessive - Injuries sustained less extensive than found by trial judge - Crimes (Sentencing Procedure) Act 1999, s 21A

CRIMINAL LAW - sentence - co-offenders - sentenced by different judges - parity principle - roles of offenders - discount for guilty plea - substituted offence on new indictment - plea after voir dire.

CRIMINAL LAW - application for leave to appeal against sentence - two counts of supply drugs - different types of drugs - accumulation of sentences - principles - no commonality of criminality for different drugs.

PRACTICE AND PROCEDURE - application for dismissal of proceedings by respondent - applicant bankrupt - trustee does not wish to proceed - costs.

PRACTICE AND PROCEDURE - notice of motion filed seeking a suspension of the execution of a sheriff's warrant for possession - notice of motion is pending on the hearing of a summons pursuant to s 69 Supreme Court Act 1970 for judicial review - applicant seeks judicial review of a District Court decision which rejected an appeal of the decision of the CTTT to terminate a lease based on the ground of non payment of rent PRACTICE AND PROCEDURE - Cross claim filed by respondent seeking the amount of arrears of rent - application of s 89(3) Residential Tenancies Act 2010 to give the applicant an opportunity to pay the arrears in rent - warrant stayed for 14 days- applicant to file amended summons under s 69 Supreme Court Act 1970

TRADE AND COMMERCE - Trade Practices Act 1974 and related legislation - engineering company purchases green waste shredder for approximately $6 million - representations alleged before purchase as to the performance and suitability of the machine for the purchaser's purposes - whether shredding machine did not perform in accordance with representations - whether representations misleading and deceptive - representations as to future matters - operation of Trade Practices Act, s 51A - future matters - proof of reasonable grounds - HELD: some representations made but others not - defendants not established reasonable grounds for representations made - representations misleading and deceptive.

CRIMINAL - Interlocutory proceedings - admissibility of evidence - tender of documents - evidence is unfairly prejudicial and outweighs the probative value pursuant to s 137 of the Evidence Act 1995

Evidence – insider trading prosecution – co-incidence evidence – significant probative weight to be assessed taking into account possibility of alternative inferences – inferential reasoning – circumstantial case – whether co-incidence evidence admissible

PROCEDURE: - extension of time - defamation proceedings - whether "not reasonable" to commence proceedings within one year of publication of communication - proceedings in other fora - implied undertaking not to use documents produced in those proceedings - discretion to determine period of extension "up to" three years -- costs.

PROCEDURE - costs - conversion and detinue - where proceedings otherwise resolved - whether either party behaved so unreasonably that costs should be ordered against the party - reasonableness of commencing and continuing proceedings - goods returned after proceedings commenced - damages claim abandoned - no cross-claim - both parties unreasonable - no order made.

CRIMINAL LAW - sentence - murder - contract killing - parity - objective seriousness - whether life sentence should be imposed

Appeal - Associate Judge of Supreme Court of New South Wales - Appeal to Supreme Court Judge - UCPR rule 49.1 - Interlocutory matter - whether reasonable cause of action - company director - actual authority

PRACTICE AND PROCEDURE Interrogatories - whether relevant and necessary

LANDLORD AND TENANT - leases - no express term as to when contribution to outgoings became due - contribution to be paid within reasonable time - reasonable time was within 30 days of delivery of invoices - no evidence of variation of lease with respect to payment of interest COSTS - exceptions to the general rule that costs follow the event - multiple issues - partial success - success or failure on each type of charge had separate monetary consequence - costs significantly increased by separate issues raised by late amendments - lessee ordered to pay two-thirds of costs of account COSTS - exceptions to the general rule that costs follow the event - where offer of compromise or Calderbank letter - no reference to claim for interest in offer - failure to accept offer not unreasonable - offer ambiguous - acceptance of offer would not have resolved underlying dispute - non-acceptance of offer not affect appropriate costs order made COSTS - application for indemnity costs to give effect to terms of lease - lease did not require payment of costs on indemnity basis LANDLORD AND TENANT - leases - forfeiture of lease - relief against forfeiture - whether relief against forfeiture should be made conditional upon compliance with earlier orders of the court - conditions of relief under Conveyancing Act 1919, s 133F - inclusion of condition with aim to avoid future litigation LANDLORD AND TENANT - leases - forfeiture of lease - relief against forfeiture - whether "general rule that the lessee seeking relief against forfeiture should pay costs" - court to have regard to all circumstances in deciding just costs order - resistance to claim went beyond what was reasonable - issues unsuccessfully pursued - significant time spent on issues in which breaches not established - order that lessor pay half of lessee's costs COSTS - indemnity costs for application concerning subpoena - order sought against director appearing for plaintiff company on motion - defendant substantially successful on notice of motion - failure of plaintiff to comply with court order - delinquency in conduct of litigant warrants order for indemnity costs including order against director

CRIMINAL LAW - sentence - manslaughter - spontaneous offence - blow to head of the deceased with baseball bat

CRIME -murder - sentence after trial - whether offender intended to kill the deceased - treatment of body after death aggravating offence

PROBATE AND ADMINISTRATION - whether estate has been properly administered - whether grant of probate should be revoked and whether new executor appointed - who should be new executor - HELD: grant of probate revoked - NSW Trustee granted letters of administration of the estate cum testamento annexo and de bonis non.

PRACTICE AND PROCEDURE - jurisdiction of the Supreme Court - transfers from the District Court to the Supreme Court under s 140 of the Civil Procedure Act 2005 - jurisdiction of the Local Court under s 30 of the Local Court Act 2007 - meaning of "action" for the purposes of s 127 of the District Court Act 1973 - dismissal of proceedings under s 60 of the Bankruptcy Act 1966 (Cth)

CRIMINAL LAW - sentence - intellectually disabled offender - relevance of standard non-parole period - relevance of specific and general deterrence - availability of rehabilitation programme only in event of excessive head sentence

DAMAGES - torts - negligence - claim and cross-claim each alleging negligence and each answered by a defence of contributory negligence - whether a single apportionment of responsibility appropriate TORTS - negligence - motor vehicle accident - vehicle entering highway hit by second vehicle already on highway - whether driver entering highway was negligent - whether entering highway was a dangerous manoeuvre in the circumstances TORTS - negligence - motor vehicle accident - vehicle entering highway hit by second vehicle already on highway - whether driver already on highway was negligent - whether driver already on highway was travelling at a safe speed - identification of relevant risk

INTERLOCUTORY APPLICATION - application to review interlocutory decision dismissing appeal as incompetent - self-represented litigant - District Court Act 1973 (NSW), s 127(2)(c) - Uniform Civil Procedure Rules 2005 (NSW), r 51.22 - no affidavit filed identifying why leave was not required - whether the application should be regarded as competent simply because it was permitted to be filed by the Registrar - Supreme Court Act 1970 (NSW), s 46(4) - no basis to suggest earlier refusal of leave was unreasonable or unjust - application dismissed.

INTERLOCUTORY APPLICATION - Notice of Motion to review prior decision of Court refusing leave to appeal - self-represented litigant - Uniform Civil Procedure Rules 2005 (NSW), r 36.16 - whether earlier refusal of leave was made irregularly, illegally or against good faith - no denial of good faith or natural justice on refusal of leave alone - Motion dismissed.

APPEAL AND NEW TRIAL - credibility of witness - adverse credit findings against plaintiff at trial - where liability reliant on plaintiff's evidence - whether whole of plaintiff's evidence should be rejected - whether judge palpably misused advantage as trial judge - whether trial judge dealt adequately with inconsistencies in evidence and medical opinions EVIDENCE - medical evidence - whether plaintiff had retrograde amnesia - whether failure by trial judge to properly analyse medical evidence - whether trial judge erroneously substituted own opinion of medical issues for evidence TORTS - negligence - mechanism of injury - alternate version of events equally probable TORTS - negligence - motor vehicle accident - Nominal Defendant - Motor Accidents Compensation Act 1999 s 34 - whether plaintiff struck by unidentified vehicle - whether plaintiff undertook due search and inquiry

TORTS - negligence - contributory negligence - motor vehicle accident - pedestrian struck by car - failure of driver to keep proper lookout - failure of pedestrian to have regard to own safety - apportionment of liability - whether primary judge erred in omitting to consider greater potential of vehicle to cause harm than pedestrian

APPEAL - Grounds of appeal not available to be argued as were directly inconsistent with the concessions made at trial - Appeal dismissed COSTS - Indemnity costs - Offer of compromise - Whether offer of compromise was genuine - Whether offer was "exclusive of costs" - Compliance with Uniform Civil Procedure Rules 2005

Notice of Motion filed by the Defendant seeking summary dismissal and/or striking out of the proceedings as constituting an abuse of process or, in the alternative, permanently staying them - Costs order also sought - The Plaintiff denies the Defendant's entitlement to such relief

SUMMARY JUDGMENT - whether plaintiff was entitled to charge default rate - whether promissory estoppel arises - whether plaintiff is entitled under counter indemnity to issue notice of demand on the defendants - whether plaintiff has a right to retiredebt into overdraft account

PROCEDURE - fidelity fund - claim against fidelity fund after settlement of proceedings - cross-claim on Law Society - whether court has jurisdiction in respect of appeal on merits of claim - claim that Law Society determined claim on its merits - no decision on merits - no right to have merits of claim determined - no right to appeal to this Court as to the merits of its case - no obligation to investigate a time barred claim - Court has no jurisdiction to determine the merits of the application - separate question application - orders

APPEAL - orders seeking to set aside Review Panel determination and its decision to confirm the certificate issued by the Assessment Panel - order sought for matter to be remitted back to Review Panel - motor vehicle accident - amputations of both legs below the knee - eligibility criteria for participation in Lifetime Care and Support scheme - construction of applicable Guideline - whether or not below knee transtibial amputations were 'adjacent to or above the knee' - whether there was a failure to apply the criteria established by the Guideline - Review Panel erred - decision set aside - matter remitted to Review Panel

PROCEDURE - pleadings - leave sought to file further amended defence - leave refused - reasons for decision - deficiencies of the earlier amended defence not addressed - proposed pleadings - proposed amended defence embarrassing

PROCEDURE - notice of motion - leave sought to re-order five volumes of material already served - not opposed, leave granted - leave sought to file further evidence - expert evidence - application opposed - leave refused - reasons for decision

PROCEDURE - courts and judges generally - disqualification - apprehended bias - application refused - reasons

PROCEDURE - costs - notice of motion - order seeking further security for costs - whether order for security would stultify the proceedings - case is bona fide - relevant tests - undertaking by individual - individual a substantial shareholder - no further order as to past costs - future costs - undertaking accepted - order sought refused - motion dismissed - costs

CONTRACT - mortgage - goods mortgage - interlocutory injunction - application to restrain a party from dealing with certain personal property - whether prima facie case EQUITY - priorities - prior charge over chattels subsequent consent orders under the Family Law Act 1975 - nature of a Mareva injunction

CORPORATIONS - Winding up - Statutory demand - Corporations Act 2001 (Cth) s 459H(1)(b) - Application to set aside statutory demand on the basis of offsetting claim - Application for orders for further production of documents and adjournment of the proceedings - Further application for adjournment on the basis that the Plaintiff would be caught by surprise if matter proceeded to hearing on the merits.

CRIMINAL LAW - escape lawful custody - appeal against conviction - conviction following judge alone trial - existence of points raised by appellant that might be decided in favour of the appellant - no substantial miscarriage of justice - conviction appeal dismissed CRIMINAL LAW - escape lawful custody - appeal against sentence - whether sentence manifestly excessive - failure by trial judge to consider special circumstances - evidence to support finding of special circumstances - error by trial judge - lesser sentence warranted in law - sentence appeal allowed

CRIMINAL LAW - appeal - conviction - whether misdirections in summing up to jury - evidence - whether verdict unreasonable or unsupportable on evidence - Criminal Appeal Act 1912, s 5(1)(a) and s 5(1)(b) CRIMINAL LAW - appeal - sentencing - whether manifestly inadequate - standard non-parole period - consideration of Muldrock - significance of appellant's intellectual disability - Criminal Appeal Act 1912, s 5D(1) CRIMINAL LAW - appeal - procedure - sentencing hearing - order Crown pay costs incurred by appellant in calling expert under s 177(7) of Evidence Act - no direction in accordance with s 4(2)(a) that law of evidence applied - costs order set aside

CRIMINAL LAW - appeal on sentence - standard non-parole periods - Muldrock - intellectual impairment - special circumstances.

CRIMINAL LAW - Application for leave to appeal against sentence - Crimes Act 1900, s 349 - Accessory after the fact to murder - Sentencing - Whether sentence manifestly excessive CRIMINAL LAW - Application for leave to appeal against sentence - Drug Misuse and Trafficking Act 1985, s 25(2) - Sentencing - Whether sentencing judge erred by failing to impose a non-parole period in relation to the second count in accordance with Crimes (Sentencing Procedure) Act 1999, s 45(1) - Matter remitted to trial judge for re-sentencing in accordance with Crimes (Sentencing Procedure) Act 1999, s 45(1) - Appeal allowed in part

EVIDENCE - claim for damages, indemnity and contribution arising from helicopter accident - joint report of aviation experts - objection by one party to tender of earlier reports of aviation experts - objection by same party to aviation experts giving oral evidence - concurrent evidence from aviation experts to assist Court in resolution of issues in proceedings - concurrent oral evidence allowed

REAL PROPERTY - sale or partition - Co-owner seeking appointment of trustees for sale under s 66G of the Conveyancing Act 1919 - whether plaintiff has interest in property to which s 66G applies - plaintiff claiming one-third equitable interest pursuant to deed entered into with defendants - whether court ought to make order for appointment for trustees for sale - relevance of provisions of deed - whether provisions are impermissible restriction on alienation of property - whether restrictions in deed should be interpreted to be limited to life of parties where deed has no express term - whether order under s 66G should be made "almost as of right" - where deed still on foot and both parties are in breach - held that order should be refused.

LANDLORD AND TENANT - construction of hotel lease - works required for compliance with fire safety standards under Building Code of Australia - whether works "of a structural nature" - question of fact and degree - no question of general principle

Production of documents; Practice Note SC Eq 11; necessity for exceptional circumstances