Cases and authorities

Equity - general principles, transfer of property, unconscionable conduct, undue influence, review of contract, fraud, misrepresentation, constructive trust, limitation period, compensation, negligence

EQUITY - general principles - mortgage - unconscionability - unconscionable dealing - unconscionable conduct

CRIMINAL LAW - appeal against sentence - supply of heroin - Form 1 offences including further drug supply - mental condition of offender - whether moral culpability reduced - whether offender appreciated consequences of her conduct - whether sentence manifestly excessive

CRIMINAL LAW - appeal against sentence - parity with co-offenders - Drug Misuse and Trafficking Act 1985 s 24(2) - whether applicant has cause for a justifiable sense of grievance - no marked disparity between co-offenders - appeal dismissed

CRIMINAL LAW - sentence - plea of guilty - reckless wounding - standard non-parole period offence - whether error in approach after Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 - no error established CRIMINAL LAW - sentence - Judge considered imposition of intensive correction order - after adjournment, declined to do so - sentence of imprisonment passed - whether error in Judge's description of consequences if ICO breached - erroneous description used - (by majority) error not material CRIMINAL LAW - sentence - theoretical capacity for offence to be disposed of summarily in Local Court - point not taken in District Court - approach of Court of Criminal Appeal when issue raised for first time on appeal - need for submission to be made in District Court - confined nature of arguable ground - no merit in ground - in any event, sentence imposed was less than jurisdictional limit of Local Court

CRIMINAL LAW - Crown appeal against sentence - discount for assistance - mode of expressing - whether excessive - relationship to other discounts - whether permissible to apply cumulatively - Crimes (Sentencing Procedure Act 1999 (NSW), s 23

PRACTICE - judgments and orders - variation - reopening. RES JUDICATA - cause of action estoppel order for specific performance - but not damages - later claim for damages barred.

CRIMINAL LAW - evidence - post-offence conduct - large cash transactions in months following alleged robbery capable of supporting inference of involvement in robbery

CRIMINAL LAW - practice and procedure - prosecution duty of disclosure - transcript of interview of proposed witness not disclosed until midway through trial - whether previous cross-examination of other witness affected - whether irredeemable prejudice

PRACTICE AND PROCEDURE - proceedings for debt - claim for unpaid fees for use of horse training facilities - freezing order made upon commencement of proceedings - whether freezing order should be continued - further order declined - costs application - claim by Defendant for indemnity costs - costs order made on ordinary basis - proceedings transferred to District Court

SUCCESSION - application for provision order under Part 3 Succession Act 2006 (NSW) - whether financial and material circumstances of persons entitled to intestate estate of a named beneficiary under deceased's will relevant under s 60 in making a provision order in favour of another named beneficiary under deceased's will - consideration of meaning of 'beneficiary' in s 60(2)(d) - EVIDENCE - applicant sought declaratory relief at preliminary stage that evidence of financial and material circumstances of persons entitled to intestate estate of a named beneficiary under deceased's will not relevant to making of a provision order in favour another named beneficiary under deceased's will - HELD - application dismissed - not appropriate to make preliminary determination on relevance of such evidence in advance of hearing - not persuaded that evidence can be dismissed as having no potential relevance

PROCEDURE - costs - general rule costs follow the event - costs out of a fund - plaintiff successful in action against a defendant executor upon an equitable estoppel to enforce promises a testator made to devise a 10 acre block of land to the plaintiff - defendant reasonable in defending the action - whether the executor should pay the costs of all parties and be indemnified for those costs out of the 10 acre block - whether the plaintiff's share of the residue of the estate should bear any part of (i) the defendant/executor's costs of defending the proceedings, and (ii) the estate's liability to pay the plaintiff's costs of the proceedings.

RESTITUTION - Unjust enrichment - Measure of retained enrichment - Determination of the extent of the First Defendant's retained enrichment after judgment in proceedings.

PRACTICE AND PROCEDURE - Motion to proceed with inquiry under r 46.11 of Uniform Civil Procedure Rules 2005 (NSW) - Whether inquiry should proceed.

TORTS - negligence - personal injury - appellant afraid of dogs - invited to respondents' home - respondents owned hunting dog called Cougar - appellant injured when slipped and fell while leaving hastily after seeing dog inside premises - whether breach of respondents' duty of care - whether risk of injury foreseeable and not insignificant - whether respondents should have taken precaution of keeping dog outside - Civil Liability Act 2002 s 5B

SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of a former de facto partner of deceased seeks family provision order under Family Provision Act 1982 - Whole estate shared between natural daughters, a friend, identified grandchildren of the deceased - Allegations of sexual relationship between the Plaintiff and the deceased - Whether jurisdictional issue established, factors warranting the making of the Plaintiff's application, and if so, nature and quantum of provision to be made.

PROCEDURE - civil - subpoena - application to set aside - whether subpoenaed material relevant to pleaded case - whether subpoenas should be set aside - whether relevant that no evidence served.

COSTS - offer of compromise - Calderbank offers - whether unreasonable for offeree to reject Calderbank offers - long history of disputation between parties - whether there was an element of real and genuine compromise in both offers - where first offer subject to set off against costs orders owed by offeree to offeror and did not include provision for interest - where second offer subject to set off against a fixed costs assessment in favour of offeree which was being appealed by offeree - uncertainty in the operation of the proposed set-off against costs orders - whether public policy principles underlying Calderbank offers supports finding that failure to accept offer unreasonable - HELD - not unreasonable for the offeree not to accept either offer

JOINT VENTURE - Generally - whether payments to cross-defendant by cross-claimant contributions to a joint venture to develop residential dual occupancy on land or contributions to purchase price of one of the houses - whether late argument that deposit not recoverable should be allowed - whether election to terminate communicated to cross-claimant - whether prior notice requiring performance within a reasonable time required

SUCCESSION - Claim by daughter of the deceased for a family provision order under Succession Act 2006 - Defendant a son of the deceased and the executor named in Will of the deceased, to whom Probate was granted, who opposes Plaintiff's claim - Whether provision made for Plaintiff is adequate - Competing claim by Defendant - Only notional estate of small value

TORTS - trespass - trespass to land -deposit of bricks - subsequent unauthorised entry to remove bricks - damages awarded TORTS - trespass - trespass to land - encroaching dwarf retaining wall - no damages awarded TORTS - nuisance - land unkempt, overgrown and weed infested - no nuisance established

REAL PROPERTY - caveats - removal of caveat under s 74MA - general principles same as for interlocutory injunction - balance of convenience - where registered proprietor seeks to sell property on which caveator lives - where caveator's undertaking as to damages may be worthless - where caveator in better position than he ever could be following a final hearing. PROCEDURE - interlocutory orders - variation of orders made by consent - relevant legal principles -whether consent orders operate as an agreement between the parties - whether general rule for variation of interlocutory orders applies - importance of what was in parties mutual contemplation when orders were made - interpretation of phrase "until further order" - where facts suggest defendant did not intend the consent order to continue indefinitely.

CRIME - sentencing - offender sentenced before the decision of the High Court in Muldrock v R - whether sentence entailed error of the kind identified in that decision

LEAVE TO APPEAL - proceedings dismissed in Court below - res judicata - no arguable case - leave refused.

ADMINISTRATIVE LAW - judicial review - error of law on the face of the record - whether appropriate for review of appellate court's decision take the form of a rehearing of the appeal - no evidence - need to identify factual issues in play before the decision-maker ADMINISTRATIVE LAW - judicial review - decision of Consumer, Trader and Tenancy Tribunal appealed - failure to make findings of fact essential to an award - whether error sufficient to set aside decision - whether notice of contention could support such a decision on appeal with respect to a matter of law

CORPORATIONS - where liquidator retains solicitors for proceedings and retainer agreement includes provision which might offend provisions of the Legal Profession Act 2004 (NSW) as being a conditional costs agreement in relation to a claim for damages providing for the payment of an uplift fee on a successful outcome - liquidator seeks approval to enter into a further agreement - approval granted

WILLS, PROBATE AND ADMINISTRATION - application for the revocation of the grant of probate - alternative application for order pursuant to s 84 of the Probate Administration Act 1898 - distribution of share of net residuary estate - executors in agreement with order sought - direct payment of specified sum of money on account of share of net residuary estate - no question of principle

SUCCESSION - Claims by the daughter and two grandchildren of the deceased for a family provision order under Succession Act 2006 - The Defendant is the executor named in Will of the deceased, to whom Probate was granted - It opposes the Plaintiffs' claims - Whether factors warrant the making of the grandchildren's application - Whether the provision made for each Plaintiff is adequate - If not, whether family provision orders should be made

PRACTICE AND PROCEDURE - Reference under Pt 20 r 14 of Uniform Civil Procedure Rules 2005 (NSW) to referee for inquiry and report - Whether references should be terminated at Cross-Claimants' motion - Whether reference has utility - Whether reference will narrow issues in dispute between the parties.

COSTS - Orders to be made consequential upon judgment in proceedings.

COSTS - Orders to be made consequential upon judgment in proceedings.

CONTRACT - existence of contract - alleged contract to care for parents - presumption of no intention to create legal relations in family context - application of presumption where money paid for promised conduct - where parties did not use language of contract - where no attempt to address future contingencies. RESTITUTION - failure of consideration - where no contractual promise - where money paid in expectation of conduct - whether in such circumstances payment was for purpose which had failed. EQUITY - trusts - constructive trust - relationship between remedial constructive trust and restitution for failure of consideration.

PRACTICE AND PROCEDURE - parties - abuse of process - conduct of parties - vexatious litigant - prohibited from instituting proceedings in New South Wales without leave of the court, s 8(7)(b) Vexatious Proceedings Act 2008 - application for stay of a writ for possession made ex parte on a Saturday - same application made and rejected previously - no material change of circumstance - no proper basis for application - no question of principle

Sentence by majority - application of Muldrock v R [2011] HCA 39 - whether lesser sentence warranted in law - significance of Form 1 offence.

LANDLORD AND TENANT - termination of tenancy - whether plaintiff validly terminated a Residential Tenancy Agreement made between it and the second defendant - where the lease incorporated by reference the provisions of the Residential Tenancies Act 1987 - where s 71 Sydney Harbour Federation Trust Act 2001 (Cth) excluded the application of the Residential Tenancies Act 1987 -- whether s 71 resulted in the acquisition of property for the purposes of s 51 (xxxi) of the Constitution - no acquisition of property - whether lease otherwise validly terminated -lease validly terminated in accordance with the general law

PROCEDURE - contempt, attachment and sequestration - motion for contempt brought for breach of the Court's orders - after filing the motion for contempt a sequestration order is made against the estate of one of the alleged contemnors - prosecutor disclaims any attempt to recover money from the estate of the bankrupt. BANKRUPTCY - scope and policy of legislation - whether Bankruptcy Act, s 58(3) renders the contempt motion incompetent.

PRACTISING CERTIFICATE - whether should be conditional - role of Law Society.

JUDICIAL REVIEW - mandatory injunction - conditions of incarceration - prisoners access to legal documents - quia timet relief - access to Courts.

ASSOCIATIONS AND CLUBS - Incorporated Club - Removal and suspension of member - Whether actions of the Defendant in suspending the Plaintiff's membership of the Club were ultra vires and void, and whether he was wrongfully suspended from membership - Assertion that the general manager acted on the mistaken belief that suspension from another section of the Club disqualified him from using the facilities of the Club, including bowling greens - Whether the claims of the Plaintiff are justiciable - Whether proceedings commenced prematurely, without compliance with the procedures provided for in the Club's Constitution; and whether the Plaintiff was only temporarily suspended, pending the determination of the Club's Disciplinary Committee, which determination the Plaintiff did not permit because he commenced these proceedings; Whether the Plaintiff suffered any diminution of rights of property, livelihood or trade, which may include reputation; Assertion that the Plaintiff does not come to Court with "clean hands" and that, therefore, the exercise of any discretion in his favour should be refused was withdrawn

LEGAL PRACTITIONER - misappropriation - convicted of criminal offences - sentence completed - relevance of mental illness now controlled - whether unfit for practice.

PRACTICE AND PROCEDURE - costs - claim by successful Defendant for indemnity costs - offers of compromise - Calderbank offer - whether genuine element of compromise - order for indemnity costs made by reference to third offer of compromise made by Defendant

CRIMINAL LAW - appeal - application for permanent stay of prosecution - general principles governing grant of permanent stay of criminal proceedings - whether the proceedings are an affront to the public conscience - abuse of process - duplicity - oppression and undue hardship - Criminal Appeal Act 1912, s 5F

CRIMINAL LAW - murder - reckless indifference to human life - intoxication - unreasonable verdicts - fact finding on sentencing - standard non-parole periods

APPEAL AND NEW TRIAL - practice and procedure - stay of proceedings - where stay of Local Court criminal proceedings sought in Supreme Court - stay refused - appeal to Court of Appeal - appeal and prerogative relief proceedings not to fragment criminal proceedings except in exceptional circumstances - stay of order that has been carried out impossible APPEAL AND NEW TRIAL - practice and procedure - where stay of Local Court criminal proceedings sought in Supreme Court - appellant seeks stay to prevent anticipated imprisonment - lack of evidence to confirm this would be outcome - not a case of urgency - stay not available to prevent outcome one merely fears may result

APPEAL - interlocutory injunction pending appeal - balance of convenience - no question of principle

LOCAL GOVERNMENT - building control - development application - principles - whether application in respect of "designated development" - Environmental Planning and Assessment Act 1979 (NSW), s 77A - identification of "existing or approved development" - Environmental Planning and Assessment Regulation 2000 (NSW) Sch 3, Pt 2, cl 35 APPEAL - appeal from Land and Environment Court - whether order or decision on question of law - where decision required formation of opinion appeal available if decision maker asked the wrong question - Land and Environment Court Act 1979 (NSW), s 57 EVIDENCE - presumption of regularity - whether applicable to issue of whether original development consent given - whether original consent can be inferred from subsequent development consents PROCEDURE - adequacy of reasons - burden of proof - whether establishing existing use rights a principal contested issue between parties in merits hearing to determine development application

WORKERS COMPENSATION - Workers' Compensation Commission - Arbitrator's decision - Review of decision by Presidential member - Nature of review - Whether Presidential member bound to apply the principle in Fox v Percy. WORKERS COMPENSATION - Workers' Compensation Commission - Arbitrator's decision - Review of decision by Presidential member - Whether breach of procedural fairness by Presidential member. WORKERS COMPENSATION - Workers' Compensation Commission - Arbitrator's decision - Review of decision by Presidential member - Error of law - Whether error of law material to decision of Presidential member. WORKERS COMPENSATION - Whether 'worker' within definition in Workplace Injury Management and Workers Compensation Act.

STATUTORY INTERPRETATION - Anti-Discrimination Act 1977 s 49ZT - unlawful, by public act, to incite hatred - whether regard must be had to effect of act on class of persons to whom it is directed - whether ordinary or reasonable member of class considered STATUTORY INTERPRETATION - Anti-Discrimination Act 1977 s 49ZT - whether defence of "good faith" requires objective assessment of defendant's intentions STATUTORY INTERPRETATION - words and phrases - meaning of "incite" - Anti-Discrimination Act 1977 s 49ZT CONSTITUTIONAL LAW - constitutional validity of legislation - unlawful to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of homosexuality - whether s 49ZT of the Anti-Discrimination Act 1977 (NSW) burdens implied freedom of political communication - whether reasonably appropriate and adapted to serve legitimate end compatible with maintenance of system of government prescribed by the Constitution (Cth) CONSTITUTIONAL LAW - implied freedom of political communication - whether regard must be had to the content of prohibition said to burden the implied freedom

APPEAL FROM LOCAL COURT - s 309 Legal Profession Act 2004 - whether solicitor acted negligently - whether error of law or fact - two appeal categories; non-compliance with disclosure provisions and failure to seek leave to join party (cross claim) - error of law relating to cross claim only - appeal allowed in part and remitted to Local Court