Cases and authorities

Bail - facilities in prison to prepare appeal unavailable or denied

ASSOCIATIONS AND CLUBS - incorporated associations - members - parties agree hold elections for Executive Council of Association - referee appointed to determine membership of Association - -referee reports - whether referee's Report should be adopted. PROCEDURE - Supreme Court procedure - appointment of referee.

COSTS - whether successful plaintiff should pay unsuccessful defendant's costs of a discrete issue on which plaintiff was unsuccessful - whether alternatively she should be deprived of her costs of that issue - whether defendant should pay indemnity costs in respect of a period during which he was in default of directions of the Court

TRUSTS - trustees - appointment - purported appointment - power of appointment - fraud on the power

COSTS - self represented litigant in custody challenged validity of department policy document - challenge unsuccessful but clarified operation of policy - other grounds lacked merit - apportionment of costs.

NEGLIGENCE - allegation of negligent valuation of property - whether valuer negligent - whether loss - discussion of valuation methods

CAPACITY - presumption of sanity - test of capacity is 'issue specific' - relevant issue was whether there was capacity to enter into March Deed - HELD - onus of proof to displace presumption not satisfied on balance of probabilities - EVIDENCE - whether Court bound to accept expert evidence where the expert is not called for and hence challenged in cross-examination - HELD - general principle that Court is not bound to accept such evidence although it may be given more weight depending on the balance of the evidence before the Court - uncontradicted evidence is still be to assessed in light of all other lay and expert evidence - UNCONSCIONABLE CONDUCT - two allegations of unconscionable conduct - first, that plaintiff took advantage of her position vis-Ã -vis the second defendant to induce him to enter the deed - second, that plaintiff took advantage of first defendant's concern that she would be denied access to the second defendant to induce her to enter the deed - HELD - unconscionable conduct not established in relation to either allegation - UNDUE INFLUENCE - no presumption of influence between husband and wife - evidence of increasing dependence of second defendant on plaintiff giving rise to a presumption of influence - relevant consideration is the quality of consent by the donee - second defendant had independent legal advice - context in which gift is given is also relevant, including any benefits which are obtained by the donee - HELD - benefit to plaintiff was not procured by undue influence over the second defendant - DURESS - conduct alleged to amount to duress being alleged threats made against the person of the first defendant and an alleged threat to deny first defendant access to the second defendant - consideration of Karam and whether the alleged conduct must be unlawful to establish duress - alleged threats against person made two years before the deed entered into - no evidence aside from the first defendant's testimony that alleged threats to deny access to second defendant were made - HELD - duress not established by first defendant - DEED - non est factum defence not pleaded - even if first defendant succeeded in making out a vitiating factor the deed was only voidable and not void - whether deed would have been set aside in the circumstances of the case - OBITER - deed would not have been set aside - CONTRACTS REVIEW ACT - whether deed was 'unjust' - whether first defendant had standing to plead 'unjustness' insofar as the injustice pleaded was not suffered by the first defendant - HELD - first defendant had standing under the Contracts Review Act 1980 (NSW), however none of the allegations of injustice made out - EQUITY - equitable maxims - relief sought was approximate to specific performance as deed was executed rather than executory - whether plaintiff disentitled to relief due to unclean hands - where unclean hands alleged in relation to a putative breach of the deed by the plaintiff - where the relief sought would affect the interests of the second defendant as another party to the deed, the second defendant's interests are relevant to whether relief is denied - HELD - not satisfied that alleged conduct of the first defendant amounted to unclean hands

PROCEDURE - six successive extensions of time for service pursuant to Uniform Civil Procedure Rules, r 1.12 - service of statement of claim three years and three months after filing - primary judge discharges Fifth and Sixth extension pursuant to r 12.11(1)(e) - whether primary Judge's exercise of discretion miscarried - whether challenges to findings on prejudice should be set aside - significance of the decision by the liquidator of the plaintiff to postpone service until litigation funding arrangements were in place - whether any conflict between extensions of time for service on ex parte applications and discharge orders

PRACTICE & PROCEDURE - abuse of process - fourth application for leave to appeal - no change of circumstances or fresh argument - application summarily dismissed. PRACTICE & PROCEDURE - judgment procured by fraud - application to set aside to be brought in separate proceedings. FRAUD - judgments & orders - application to set aside for fraud - to be brought in separate proceedings.

EVIDENCE - admissibility and relevancy - opinion evidence - expert opinion - expert reports - minor ambiguities - use of "we" and use of passive voice and possible ambiguity as to method used can clarified in examination-in-chief of expert EVIDENCE - admissibility and relevancy - opinion evidence - expert opinion - expert reports - observations in report are at the low end of the spectrum of opinion evidence - expert not required to disclose how expertise was applied to make observations

Application to vary earlier judgment within UCPR 36.16(3A). No power to review judgment.

WILLS AND ESTATES - Succession Act 2006 - application for family provision order by the deceased's former de facto partner and her son - plaintiffs only person with a claim - extension of time needed for son - whole estate split equally

Family Provision. Application for summary dismissal. No funds in the estate which was expended on debts and costs. Proceedings in dismissed.

LOCAL COURT - appeal against decision of magistrate in civil claim - no question of principle

TORT - breach of statutory duty - whether a breach of the Occupational Health and Safety Regulation creates a private cause of action based on breach of statutory duty TORT - negligence - relationship between occupational health and safety legislation and tort - standard of care - standard of care owed by an employer to an employee TORT - negligence - duty of care - employer-employee relationship - non-delegable duty of care - whether, in the circumstances, the plaintiff was an employee of the third defendant PRACTICE AND PROCEDURE - pleadings - amendment - where applications to amend pleadings made at various stages in the trial - where amendment raises real issues in the proceedings

TRUSTS - Charitable Trusts - administrative schemes - Charitable Trusts Act 1993, s 12(1)(b), s 14(1)(a) - inherent jurisdiction - proposed rules for administration of trusts - no departure from the original trusts

CRIMINAL LAW - Sentencing appeal - Aggravated sexual assault - Victim 15 year old step-daughter at home - No other adult at home - Remarks on victim's future consequences based on general knowledge not evidence - No error finding not of good character - No error not entitled to mitigation by reason of past record - Sentence not manifestly exercise - Appeal dismissed

CRIMINAL LAW - application for leave to appeal against severity of sentence - Methylamphetamine supply offence at low end of indictable range - Extensive history of illicit substance abuse - Escalated after disappearance of brother - Drug dealer conduct to support habit - Discount for early plea of guilty and assistance to authorities - Close family support - Error in finding applicant on conditional liberty when offended - Finding aggravated sentence imposed - Applicant currently abstinent from drugs and alcohol for eight months - Undertaking programs for continued reform - Sentence reduced - No point of principle

CRIMINAL LAW - sentence - trial for murder, robbery in company with wounding - offender found guilty of manslaughter, robbery in company - offender complicit in stabbing of robbery victim by co-offender - offer before trial to plead guilty to manslaughter - undertaking to give evidence against co-offender and accessory after the fact

REAL PROPERTY - Torrens title - caveat - whether caveat discloses a caveatable interest - whether plaintiff entitled to an order pursuant to s 74MA of the Real Property Act 1900 (NSW) to have caveat withdrawn - [PROCEDURE] - documents - affidavits - application to read affidavit in court - whether defendant should have leave to rely on affidavit not served in accordance with directions.

INJUNCTIONS - excavation of Defendant's property - appreciable risk to Plaintiff's adjoining property - apprehended breach of duty of care - balance of convenience

Judgment and orders. Application to vary judgment under UCPR 36.16 (3A). Held no jurisdiction to alter orders.

CONTRACT - contract for assignment of Crown leases subject to conditions precedent including a condition that the Commonwealth consent to assignment - Commonwealth does not give consent - proposed assignee pays money under contract - no assignment - lessor alleges assignee repudiates contract - assignee seeks recovery of moneys paid under contract - whether assignee repudiated contract - whether moneys paid under contract recoverable under contract or in restitution - whether contract abandoned - whether agreement to compromise assignee's claim by repayment of moneys paid under contract.

PROCEDURE - application for order setting aside orders previously made - no matter of principle

EQUITY - interest - priorities - whether cross-defendant had any equitable interest capable of recognition - whether cross- defendant's equitable interest (if any) should be postponed to the equitable interest of the cross-claimant - whether cross-claimant had any equitable interest because of "nemo dat" principle. COSTS - whether costs should be assessed on the indemnity basis.

INTEREST- Recoverability of interests - whether loans made - restitution - recovery of interest on refinance to repay alleged debt - question of fact only

TRUSTS - whether deceased held property on a constructive trust for plaintiff as to a half share SUCCESSION - family provision and maintenance - application by one of six children for provision from father's estate pursuant to s 59 of the Succession Act 2006 - whether inadequate provision made for plaintiff and, if so, what provision ought to be made

CRIMINAL LAW - sentence - murder and affray - violent confrontation between members of rival bikie gangs at airport terminal - offender leader of Comanchero gang - killing of associate of rival Hells Angels gang - claims of provocation, duress and self-defence rejected

CRIMINAL LAW - appeal - conviction - manslaughter - unlawful and dangerous act - joint criminal enterprise - need for agreement to commit act exposing victim to appreciable risk of serious injury - whether failure to direct jury as to essential element of offence led to miscarriage of justice - whether failure to comply with pre-trial disclosure requirements led to miscarriage of justice - evidence of critical Crown witness - ss 137, 138 Criminal Procedure Act 1986 CRIMINAL LAW - appeal - conviction quashed - miscarriage of justice - circumstances in which retrial appropriate

CRIMINAL LAW - sentence - whether the sentencing judge erred by failing to take into consideration statistics from the Judicial Commission - whether the judge erred in the assessment of the objective seriousness of the offences - whether the judge failed to take into account relevant mitigating factors - appeal dismissed.

CRIMINAL LAW - application for leave to appeal against severity of sentence - application made nearly 12 years out of time - whether Court should exercise discretion to extend time to file notice of intention to appeal, Criminal Appeal Act 1912, s 10(1)(b) - application refused

CRIMINAL LAW - application for leave to appeal - appeal against sentence - sentencing judge erred with respect to maximum penalty - whether sentencing judge erred by imposing the maximum penalty - whether sentence in total is manifestly excessive - Crimes Act 1900, ss 178BA(1), 193B(3), 308C(1)

CRIMINAL LAW - APPEAL - unreasonable verdict allegation - inconsistent verdict alleged - no reasonable doubt not resolved by juries capacity to observe the evidence - appeal dismissed.

COMPANIES - management and administration - directors and other officers - appointment removal and retirement of directors - family company incorporated in 1971 - directors consisting of founder, his wife and their two children - no voting shares ever issued - in 2003 the founder passed away, and his wife had become incapable - both children ceased to be directors - result was no validly appointed directors - the son, who was a de facto director, purported to exercise reserve power under articles to return directors to quorum by electing his wife as an additional director - application by appellant for winding up COMPANIES - management and administration - directors and other officers - appointment removal and retirement of directors - whether director validly appointed - director appointed to fill casual vacancy until next annual general meeting - articles of association required directors to retire and seek re-election at each annual general meeting, failing which directors who retired at annual general meeting were deemed to be re-elected - directors did not retire at each annual general meeting but purported to re-elect themselves as "retiring" directors - consequently director appointed to fill casual vacancy was not, since his first annual general meeting, ever validly elected or deemed elected despite acting as de facto director for decades - default re-election provision not effective where the director had not retired at the annual general meeting - remaining de facto director not director COMPANIES - management and administration - directors and other officers - appointment removal and retirement of directors - whether additional director validly appointed by de facto director - articles of associated contained a defect clause that cured any defects in acts done by directors - whether this clause operated to cure fact that the remaining de facto director was never re-elected - held that initial appointment was not defective, as it had simply run its natural course - no defect for the articles of association to cure - de facto director not able to validly appoint additional director COMPANIES - management and administration - directors and other officers - appointment removal and retirement of directors - power of court to rectify corporate act which is taken in contravention of corporate constitution - Corporations Act 2001 s 1322 considered - where primary judge granted relief in relation to purported appointment of additional director by de facto director - whether purported act contravening constitution by person never validly appointed to office is a "contravention" that can be cured by s 1322(4)(ii) - remedial provisions to be construed broadly - held (per Young JA and Sackville AJA) "contravention" does not mean every invalid act done in relation to the corporate constitution, despite wide meaning - additional director's appointment not capable of being validated under s 1322 ESTOPPEL - issue estoppel - Anshun estoppel - appellants did not challenge, in previous proceedings, the validity of the appointment of the remaining director - where validity of appointment of director was not obvious or complete argument in previous proceedings - where argument would have required substantial additional resources to make - where previous litigation not necessarily sufficiently related to present proceeding to give rise to Anshun estoppel - not unreasonable to not rely on argument against validity of appointment APPEAL AND NEW TRIAL - denial of natural justice - defendants in court below did not extend their submissions on Corporations Act 2001 s 1322 issue to appointment of additional director - appellant lost opportunity not merely to make submissions, but to lead evidence on the topic and make submissions on that evidence - s 1322 finding essential to underlying relief claimed by appellant - held (per Campbell JA dissenting) matter to be remitted to consider whether s 1322 order should be made COMPANIES - management and administration - directors and other officers - powers under articles - directors empowered to allot unissued voting shares - voting shares comprised of par value shares - consideration of Company Law Review Act 1988 s 1427 repealing par value share provisions - Company Law Review Act to be interpreted as a whole - "repeal" of provision may only require that certain parts of the provision are inoperative - held (per Campbell JA dissenting) validly appointed director would have power to issue voting shares

ORDERS - nature of orders and declarations where party entitled to rely on various provisions of Real Property Act 1900 - Amendment to Register by Registrar-General - Delivery up of certificate of title for amendment to accord with Register. COSTS - Whether late reliance upon s 42(1(a1) of the Real Property Act 1900 provided reason to deprive successful party of its costs - Appropriate costs orders to be made given appeal successful - Whether costs order should be made on a defensive cross-appeal.

COURTS AND JUDGES - bias - apprehended bias - disqualification of a judge - solicitor for accused alleged judge made out of court statements indicating preconceived views - judge disputed statements in terms alleged - whether necessary to make findings as to disputed facts before applying reasonable apprehension of bias test - whether reasonable apprehension of bias

SUCCESSION - application for provision under Part 3 Succession Act 2006 - testatrix with three adult children leaves whole estate to two of them equally - long estrangement between third child and testatrix - third child obtains at first instance an order giving her a legacy of roughly one-third of estate - whether primary judge correctly applied jurisdictional or "first stage" test - whether discretion miscarried at "second stage"

DISMISS CROSS CLAIM - possession of property in consequence of default - whether knowingly acted - whether relief under Contracts Review Act 1980, unconscionable conduct or wife's equity principle

CRIMINAL LAW - evidence - admissions - no electronic recording - s 281 Criminal Procedure Act 1986 - admissions made in Victoria - practice of Victorian police not to electronically record admissions in the field - whether following standard Victorian police practice a "reasonable excuse"

CRIMINAL LAW - evidence - tendency and coincidence - evidence proposed to be adduced by one accused concerning the behaviour of another accused relevant to a claim of duress - no significant probative value

CORPORATIONS - Winding up - Resignation of liquidator - Application for appointment of replacement liquidators.

CIVIL PROCEDURE - separate question - obligation to take interventionist role - effect of Civil Procedure Act 2005 - overriding purpose intersects with usual warnings about dangers of separate questions CONTRACT - deed of release - Grant v John Grant & Sons (1954) 91 CLR 112 - construction - general words of release confined to subject matter of dispute - limited by recitals and other admissible evidence EQUITY - deed of release - Grant v John Grant & Sons (1954) 91 CLR 112 - equitable principle - unconscientious reliance on legal rights - general words of release confined to true purpose of transaction EVIDENCE - deed of release - Grant v John Grant & Sons (1954) 91 CLR 112 - equity permits consideration of state of knowledge of parties concerning existence, character and extent of liability in question [including] actual intention of releasor BUILDING AND CONSTRUCTION - notorious likelihood of future claims - plaintiff advised by specialist construction litigation solicitors - probative value of evidence of lack of awareness of claims - desirability of evidence from plaintiff's solicitor

MORTGAGES - claim for possession of land and for money sum - cross-claim against mortgagee for unconscionable conduct - application to restrain mortgagee sale of security properties pending determination of cross-claim - whether defendants have sufficiently apparent entitlement to justify order restraining sales - balance of convenience

LANDLORD AND TENANT - tenant's liability to remediate land contaminated by asbestos EVIDENCE - burden of proof, presumptions, and weight and sufficiency of evidence - proof that prior activities might lead to contamination with asbestos insufficient to undo linkage between scrap piles maintained by cross defendant and discovery of asbestos at those locations

PRACTICE AND PROCEDURE - Amendment of reference to referee by insertion of new paragraph into orders previously made by the Court.

CRIMINAL LAW Bail - murder-whether exceptional circumstances exist

PROCEDURE - Judgments and orders - whether there is a discretion not to quash Appeal Panel's orders - no utility in referring matter back to Appeal Panel - declaration that the Appeal Panel's decision involved error on the face of the record - summons otherwise dismissed PROCEDURE - costs - departing from general rule - indemnity cost order sought by defendant - complaint about plaintiff's conduct - plaintiff to bear 70% of defendant's costs