Cases and authorities

SUCCESSION - FAMILY PROVISION - Consent Order in terms of a written agreement reached after mediation - Mother of sole minor residuary beneficiary opposes orders being made in accordance with consent order- Whether order should be made despite opposition

CRIMINAL LAW - appeal from decision of the Local Court - weapons prohibition offence - mens rea for possession - meaning of "the user" of knuckle-dusters

PROCEDURE - application for transfer of proceedings from the Local Court to the Supreme Court - where the plaintiff is seeking to amend its statement of claim to seek relief which can only be granted by the Supreme Court - where the plaintiff knew of its right to bring proceedings in the Supreme Court and chose to initiate proceedings in the Local Court - where defects in proposed amended statement of claim

Appeal from Local Court - extension of time in which to bring application for leave to appeal - material date - application of slip rule - relevant considerations in extending time - leave to appeal against decision of Magistrate - question of mixed fact and law - findings of fact by Magistrate - submissions in support of application for leave to appeal not put to Magistrate - party bound by the conduct of the case at first instance

COSTS - interlocutory appeal - application for leave to appeal in relation to pleadings in separate proceedings which might have been raised by way of defence in principal proceedings - application for leave to appeal cross-vested from Full Court of the Federal Court - separate proceedings stayed - whether costs of application for leave to appeal should be determined by the trial judge in the principal proceedings PROCEDURE - civil - abuse of process - proceedings commenced in Federal Court seeking prohibition against Industrial Court of NSW - proceedings to be heard together in Supreme Court - constitutional issue to be pleaded in defence in principal proceedings - whether separate proceedings should be stayed PROCEDURE - civil - interlocutory appeal - application for leave to appeal in relation to pleadings in separate proceedings which might have been raised by way of defence in principal proceedings - whether application for leave to appeal should be stayed - Civil Procedure Act 2005 (NSW), s 56(1) PROCEDURE - civil - proceedings cross-vested from the Full Court of the Federal Court of Australia to the Supreme Court - orders of single judge of Federal Court to be treated as orders of Supreme Court - application for leave to appeal from orders made by a judge of the Federal Court to be treated as an application for leave to appeal from a judge of the Supreme Court - Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

MENTAL HEALTH - effect of disability on civil rights and duties - death of protected person - whether rights concerning litigation begun by manager concerning manner of administration of protected person's property survives death - who has power to continue litigation PROCEDURE - manager of protected person brings litigation concerning administration of protected person's estate - death of protected person before orders made in litigation - procedural steps to enable litigation to be concluded WORDS AND PHRASES - "cause of action"

COSTS - indemnity costs - offer of compromise - whether Dust Diseases Tribunal Regulation 2007 (NSW), Pt 6, only operates to the extent that it is not inconsistent with the Uniform Civil Procedure Rules - whether offeror had provided all documents necessary to enable the offeree to consider offer under the Uniform Civil Procedure Rules - whether offer was open for a reasonable time EVIDENCE - admissibility - expert evidence - whether appropriate to consider all of the evidence to determine whether expert evidence should have been admitted - whether pathologist able to give evidence as to the causal connection between exposure to asbestos dust and lung cancer, given current state of medical knowledge TORTS - causation - whether increase in risk can be equated with factual causation - whether liability requires satisfaction of the necessary condition test - whether open to Tribunal to accept pathologist's opinion as to link between exposure to asbestos dust and lung cancer

DAMAGES - attendent care services - Motor Accidents Compensation Act 1999 s 128 - whether appellant satisfied statutory requirement that services must be provided for at least 6 hours per week.

TORTS - NEGLIGENCE - road accident cases - unidentified vehicle - action brought against Nominal Defendant - Motor Accidents Compensation Act 1999 s 34(1) - whether there was "due inquiry and search" - where injured pedestrian could reasonably be expected to obtain details of the vehicle at accident scene - CONTRIBUTORY NEGLIGENCE - whether finding that pedestrian struck by vehicle was not contributorily negligent should be set aside - apportionment of responsibility - ECONOMIC LOSS - whether finding that the plaintiff had suffered a loss of earning capacity was supported by evidence.

[EQUITY] - interest - priorities - whether acknowledgement is effective to prove that a debt was owing - whether acknowledgment created an enforceable promise to give security over the land in the event that the debt was not paid by the specified date - whether first cross-defendant is entitled to be subrogated to the rights of the mortgagee bank - whether cross-claimant's equitable interest should be postponed to the equitable interest of the first cross-defendant. [PROCEDURE] - whether orders made on 3 and 21 June 2011 be set aside pursuant to UCPR r 36.15.

CRIMINAL LAW - procedure - jury trial - directed verdict - application for direction to return verdict of not guilty - whether evidence at its highest capable of sustaining a verdict of guilty

APPEAL FROM LOCAL COURT - appeal against order by Magistrate to dismiss proceedings for driving motor vehicle with special range prescribed concentration of alcohol - offence of driving motor vehicle while licence suspended proved - whether Magistrate erred in failing to provide adequate reasons for decision - special category driver - suspended driver - whether liability for one offence is dependent on liability for the other

APPEAL FROM LOCAL COURT - appeal against order by Magistrate to dismiss proceedings - drive motor vehicle with high range prescribed concentration of alcohol - exclusion of improperly or illegally obtained evidence - whether Magistrate erred in law in refusing to exercise discretion under s 138 of Evidence Act - whether Magistrate failed to give proper account to factors required under s 138(3) of Evidence Act - whether Magistrate erred in disregarding very high blood alcohol reading indicated by certificate of analysis

Appeal from Local Court - no error of law established

Costs, where new trial ordered - special circumstances justifying departure from general rule that costs of first trial should abide the second trial - no special circumstances existed.

PRACTICE AND PROCEDURE- application for stay of judgment- appellants applied to have orders, including judgment sum of $12,000,000, stayed pending the hearing of an appeal due to their alleged impecuniosity- appellants displayed a lack of candour- evidence of complex series of family trusts- onus on applicant for stay to provide the material upon the basis on which the Court can fix the terms of the stay- although evidence suggested appellants did not actually possess the judgment sum they did not show that it was unavailable through the trusts- basis for stay application not made out- notice of motion dismissed.

REAL PROPERTY - claim for possession of land - mortgage default - order for possession made

COSTS - Application for indemnity costs - Principles on which an order for indemnity costs can be made - Offer of compromise - Whether "real and genuine element of compromise" - Calderbank offer - Whether rejection unreasonable - Whether interest on costs to be awarded.

CORPORATIONS - winding up - appeal from judgment dismissing application to set aside winding up order - whether applicant has standing to apply to set aside winding up order CORPORATIONS - winding up - appeal from judgment dismissing application to set aside winding up order - company failed to comply with statutory demand - company required to seek leave to oppose the winding up - whether ground on which company sought to rely was material to proving that it was solvent - whether evidence that company is solvent - Corporations Act 2001 (Cth), s 459S

APPEAL - civil - leave to appeal - extension of time to apply for leave - whether extension of time necessary - relevance of merits of proposed appeal APPEAL - civil - statutory appeal - interlocutory decision - costs only - whether leave should be granted - Administrative Decisions Tribunal Act 1997 (NSW), s 119 APPEAL - costs - discretionary order - Administrative Decisions Tribunal Act 1997 (NSW), s 88 and Health Records and Information Privacy Act 2002 (NSW), s 55 - whether possible for the Administrative Decisions Tribunal to award costs without reviewing the merits of the case - whether error shown in order for costs

CRIMINAL - Interlocutory proceedings - admissibility of evidence - tender of document - business record

PRACTICE AND PROCEDURE - claim for possession of land for mortgage default - protracted litigation - repeated breaches of Court orders by Defendants - whether one Defendant should be granted leave to seek to set aside consent judgment - whether Defendants should have leave to rely upon material served out of time after repeated breaches of Court orders - applications refused

PRACTICE AND PROCEDURE - evidence - meaning of "document" - whether evidence of the contents of a document must be given by a person who meets the criteria set out in s 171 of the Evidence Act

PROCEDURE - transfer of proceedings - Jurisdiction of Courts (Cross-vesting) Act 1987 s 5(2) - application to have proceeding transferred to Supreme Court of the Northern Territory - what the "interests of justice" require - factors in determining - Uniform Civil Procedure Rules 2005 r 44.5 - application is premature

JUDICIAL REVIEW - certiorari - whether Children's Court failed to consider properly an application for leave to apply for rescission of a care order - whether open to determine whether significant changes in any relevant circumstances - whether failure to consider plans for the children - whether error on face of record

PUBLICATION OF NAME - consent of Tribunal - mode of application - relevance of medical condition of applicant

Misfeasance in public office - elements of tort - pleadings and particulars - no reasonable cause of action disclosed - embarrassing pleadings

CRIME - sentencing - assistance to authorities - whether sentencing judge erred in refusing to reduce sentence

CRIMINAL LAW - Crown appeal against sentence - supply of ecstasy - whether sentencing judge erred in finding that respondent's mental condition was such that his judgment was impaired - whether sentencing judge erred in finding that respondent would face adverse consequences in relation to his employment and ability to travel overseas if a conviction was recorded - whether sentence was manifestly inadequate - sentence not manifestly inadequate - appeal dismissed

CRIMINAL LAW - appeal against sentence - whether error was made in the manner in which account taken of applicant's mental illness - whether error in the conclusion that there was a notable degree of planning - application of guideline judgment R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 - whether sentence was manifestly excessive - whether there was a failure to apply a 25% discount for the utilitarian value of the plea - lesser sentence not warranted in law

CRIMINAL LAW - Sentencing - Parity principle - Offenders convicted of same offence - Identical sentences imposed for offence - Co-offender given partially concurrent sentence for subsequent offence committed on bail - Whether justifiable sense of grievance at the effective sentence of co-offender - Good and adequate reason for discrepancy - Discrepancy not marked - Reduction would make sentence inadequate - Not entitled to reduction in sentence

APPEAL - application for leave to appeal - default judgment for possession of property set aside on condition that mortgagors pay part of claimed debt into court - whether condition should have been imposed - effect of bankruptcy of one mortgagor

PAROLE - application under s 155, Crimes (Administration of Sentences) Act - whether refusal of parole based on false, misleading or irrelevant information - no question of principle

CORPORATIONS - Variation of orders under s 588FF(3)(b) Corporations Act 2001 (Cth) - preservation of ability of liquidators to pursue claims after completion of adjudications - application for extension of time under s 588FF(1) Corporations Act 2001 (Cth) - Rule 36.16 Uniform Civil Procedure Rules 2005 - Consent to variation of orders by parties who may be prejudiced

CORPORATIONS - Corporations Act 2001 (Cth) s 459G - statutory demand - demand based on judgment which plaintiffs say was compromised - genuine issue that defendant's claim is now contractual and statute barred

MORTGAGE - mortgages and charges - calculation of interest on moneys secured by mortgage - amounts of advances and repayments allowed in the taking of accounts of the moneys owed - interest on advances to be calculated on compound basis at non-default rate of interest - consideration to the provision for profit PRACTICE AND PROCEDURE - judgments and orders - rectification - orders not yet made in accordance with reasons given - matter relisted for further argument - neither party disputed reconsideration of questions

COSTS - Court's discretion as to costs under s 98(1) of Civil Procedure Act 2005(NSW) - Whether there is a reason to depart from the usual order as to costs under r 42.1 of Uniform Civil Procedure Rules 2005 (NSW)

COSTS - Costs of costs argument - Costs of costs argument to be determined by reference to the level of success in that argument.

REAL PROPERTY - Torrens Title - easement - application to extinguish - Conveyancing Act 1919, s 89 - in 1977 a 20 metre wide right of carriage way was created over rural land - dominant tenement has alternative access to main highway - original purpose of right of carriageway is obscure - whether circumstances warrant extinguishment or modification of right of carriageway under Conveyancing Act, s 89(1)(a), (b) or (c) - HELD - no basis to extinguish or modify the easement under Conveyancing Act, s 89.

WILLS AND ESTATES - construction of will - words used - gifts in a will - "my nephews and nieces" - relationship with deceased - description of relationship -words used in a social context to display affection rather than convey meaning - deceased understood ordinary conception of nephew or niece - intended description includes nephews and nieces of the whole blood and of the half-blood - intention not to include nephews and nieces of testator's de facto partner WILLS AND ESTATES - construction of will - words used - intended use of words other than ordinary meaning - intention of testatrix at the time of execution of will with regard to the admissible extrinsic evidence - "testator's armchair principle" - Succession Act 2006 s 32 not applicable to present will WORDS & PHRASES - "nephews and nieces"

TORTS - Appeal - assault and battery - apprehension pursuant to s 24 Mental Health Act 1990 (NSW) - whether the trial judge erred in failing to properly consider admissions made by the respondent in pleadings adverse to the ultimate finding - whether the trial judge erred in failing to properly consider medical records supporting the appellant's version of events. TORTS - Appeal - Assault and battery - damages - exemplary damages for the use of excessive force by police.

COSTS - costs order - when a costs order takes effect - UCPR r 36.4 - interest - notice of motion claims interest levied on costs order in an original judgment where subsequent proceedings have involved no challenge to quantum - motion filed outside time permitted by UCPR r 36.16 - whether the slip rule in UCPR r 36.17 is enlivened - whether the amended notice of motion seeks relief consequential on the judgment - whether the notice of motion seeks orders to disturb the judgment.

ESTOPPEL - equitable proprietary estoppel - co-owners of rice growing property and shares with attached water entitlements - respondent purchased appellant's interest in property on understanding encouraged by appellant that would also obtain his interest in shares - whether respondent would suffer detriment from change of position in reliance on encouraged expectation if that expectation repudiated. REMEDIES - equitable proprietary estoppel - whether respondent entitled to have encouraged expectation made good.

EVIDENCE- rejection of evidence- affidavit evidence excluded by judge because "uncertain and of low probative weight"- Court of Appeal must consider all available grounds when deciding whether decision to exclude evidence was wrong- Court of Appeal very reluctant to interfere with such decisions- in any event material probably properly rejected- leave to appeal not granted. LANDLORD AND TENANT- application by respondent in CTTT for termination of lease and possession transferred to Supreme Court- applicant alleged a prior tenancy dispute was settled on the basis that he would be a tenant for life- whether s 5A Landlord and Tenant (Amendment) Act 1948 operated to exempt the lease from the 1948 Act- proceedings were not taken under the 1948 Act- therefore s 98A of the 1948 Act had no application- held that the proceedings were exempt from the operation of the 1948 Act. LANDLORD AND TENANT- vacant possession- whether a question of fact or a mixed question of fact and law- vacant possession is purely a matter of fact. PROCEDURE- re-opening after judgment- whether re-opening should be allowed- re-opening should be allowed where obvious that the decision has miscarried and that the miscarriage may be rectified by the attention of the primary judge rather than an appeal court- this principle applies to errors of fact and errors of law.

REAL PROPERTY - whether defendant is entitled to a charge over property presently owned by the plaintiff - construction of a deed of charge - no entitlement to charge - removal of caveats over property owned by plaintiff PRACTICE AND PROCEDURE - interlocutory issues - injunction to restrain completion of sale of property at discounted price - claim under s 37A of Conveyancing Act 1919 (NSW) - no serious question to be tried that completion of sale of property would be transaction made with intent to defraud creditors - if serious question to be tried balance of convenience would not justify grant of injunction - substantial losses if completion of sale restrained

PRACTICE AND PROCEDURE - Application for leave to file Amended Defence - Whether leave should be granted in circumstances where Amended Defence is partly based on unpleaded material facts.

REAL PROPERTY - mortgages - possession of land - defendant bankrupt - trustee does not appear to defend - loan used to pay out prior mortgagee - principle in Collier v Morlend Finance - stay sought on write of possession.

STATUTORY INTERPRETATION - Section 109ZK of Environmental Planning and Assessment Act - effect of repeal of Clause 34 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 - effect of Clause 2 of Schedule 6 of Statute Law (Miscellaneous Provisions) Act (No 2) 2011 - effect of Section 30 Interpretation Act 1987 STATUTORY INTERPRETATION - Clause 8(2)(b) of Schedule 1 of Civil Liability Act - effect of repeal of Clause 34 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 - whether repeal of Clause 34 affects the operation of Clause 8(2)(b)