Cases and authorities

ESTOPPEL - Equitable proprietary estoppel - primary importance of providing just and conscionable satisfaction of the plaintiff's expectation - no requirement that unfulfilled expectation be precisely quantified and valued - relevance of change in circumstances after promise made CONTRACT - Intention - Contracts between family members - relevance of the relationship between parties, context and absence of formality

SUCCESSION - FAMILY PROVISION - NOTIONAL ESTATE - Two Plaintiffs, a son and a daughter of the deceased, seek a family provision order out of the estate or notional estate of the deceased under the Succession Act 2006 - Each Plaintiff received a modest legacy out of the estate in the Will - Virtually no actual estate left thereafter - The Defendants are grandchildren of the deceased to whom the deceased's real property was transferred a few months prior to her death - Consideration identified in contract for sale not paid by them - Other consideration provided - Whether full valuable consideration given - Property subsequently sold by Defendants - Whether provision should be made for each Plaintiff and, if so, the nature of the provision to be made - Whether proceeds of sale, or other property of the Defendants, or any of them, or any other property should be designated as notional estate

Review of Registrar's decision on provision of security for costs. Decision of Registrar was appropriate in the circumstances.

DEFAMATION - defences - contextual truth - whether contextual defendant's contextual imputations liable to be struck out - true innuendo - whether capable of sustaining plea of contextual truth

LANDLORD AND TENANT - leases - whether Retail Leases Act 1994 applies - variation of lease with regard to the use of the premises - objective facts known as to intended use - principal or predominant business carried on upon the site LANDLORD AND TENANT - option to renew lease - variation of original lease - obligation to contribute to outgoings - taking of account of outgoings to which lessee obliged to contribute LANDLORD AND TENANT - option to renew lease - prescribed notices served in respect of alleged beach of lease - alleged invalidity of notices of alleged breaches pursuant to s 133E of Conveyancing Act 1919 (NSW) LANDLORD AND TENANT - leases - application for relief from breach of certain obligations - circumstances to be considered by the court to be relevant to grant of relief - relief granted conditionally against forfeiture of the option for renewal - Conveyancing Act 1919 (NSW), s 133F LANDLORD AND TENANT - option to renew lease - alleged invalidity of exercise of option of renewal - established breaches not of such seriousness to warrant denial of the option of renewal - established breaches did not adversely affect lessor WORDS AND PHRASES - "retail shop lease"

WILLS AND ESTATES - Succession Act 2006 - application for family provision order by daughter of deceased - four children of deceased all beneficiaries - daughter received provision of 15% of estate - daughter estranged from deceased - small estate - other beneficiaries with significant needs - application dismissed

Judicial review of decision and award of claims assessor under the Motor Accidents Compensation Act 1999 ("the Act") - orders sought in the nature of certiorari or, alternatively a declaration setting aside or declaring invalid the assessment and/ or the certificate of the claims assessor - relief sought in the summons refused - no error of law in respect of paid future care - no error of law in respect of the decisions in respect past and future economic loss - costs of expert reports on taxation law no restricted by clause 9 of the Motor Accidents Regulation 2005 - no error in respect of asserted inadequacy of reasons - no error in application of s 126 of the Act in assessing future economic loss - relevant principles in respect of the assessment of future economic loss under those provisions discussed.

LEAVE TO APPEAL - Application for grant of probate in solemn form of testator's will - challenge by executor - proper basis for ordering indemnity costs against unsuccessful executor - whether there was a miscarriage of the discretion to grant cost orders - House v R - leave to appeal refused.

APPEAL - civil - power of judge of appeal - whether the Court of Appeal constituted by two judges of appeal pursuant to s 46B(1)(b) may exercise the powers of a single judge PROCEDURE - civil - judgments and orders - application to set aside judgments under Uniform Civil Procedure Rules 2005 (NSW), r 36.15 - whether time limit applies - whether inherent power of the Court to reconsider interlocutory orders is preserved

APPEAL - civil - damages - claim for tortious damages raised for the first time on appeal - discussion of Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 MINING - whether provision of an exploration licence application complying with the Mining Act is a precondition of the exercise of the power to grant an exploration licence - whether non-compliance of exploration licence application with the Mining Act invalidates application and any licence granted in response to it - whether decision-maker's satisfaction as to compliance is sufficient to satisfy precondition - Mining Act 1992 (NSW), s 382 PROCEDURE - civil - judgments and orders - contempt - private litigant bringing contempt proceedings - requirement that charges be formulated with precision - evidence required in support of charge of contempt

CRIMINAL LAW - practice and procedure - trial of multiple co-accused involved in the same crime - defence of one accused prejudicial to another accused - whether separate trials should be ordered - whether there is "positive injustice" to the accused.

CRIMINAL LAW - evidence - admissibility of evidence of purchase of cable ties prior to alleged robbery and murder - evidence capable of supporting inferences for which Crown contends - no other basis to exclude shown

CORPORATIONS - Mandatory examination - Application for review of registrar's decision to disallow a question in examination - Uniform Civil Procedure Rules 2005 (NSW) r 49.19

CONFIDENTIALITY - deed containing confidentiality provision - whether plaintiff disentitled to assert confidentiality due to unclean hands - whether disclosure of some terms of the deed due to ordinary legal processes such as filing a Notice of Discontinuance in court destroyed the confidentiality of the material - whether posting of judgment containing some terms of the deed in the NSW Caselaw website destroyed the confidentiality of the material - whether material entered public domain a matter of fact and degree - limited disclosure in these circumstances does not deprive the confidentiality provision of utility - HELD - permanent injunction granted and plaintiff entitled to costs of these proceedings on indemnity basis pursuant to relevant provision in deed

PRACTICE AND PROCEDURE - transferring Supreme Court proceedings to the Land and Environment Court pursuant to s 149B Civil Procedure Act 2005 (NSW) - Supreme Court proceedings with respect to construction of an easement - Land and Environment Court proceedings with respect to modification of conditions of development consent - where the proceedings concern different legal questions - where outcome of Land and Environment Court proceedings might obviate utility of Supreme Court proceedings - HELD - application for transfer not granted - appropriate order is to stay Supreme Court proceedings pending outcome of the Land and Environment Court proceedings - PRACTICE AND PROCEDURE - review of discretionary costs of order made by Registrar - considerations to be taken into account when reviewing exercise of discretion similar to those established in House v R on an appeal - HELD - cost orders were not plainly unjust or unreasonable or outside the discretion of the Registrar - application to set aside dismissed

CORPORATIONS - breach of fiduciary duties or statutory duties pursuant to ss 180, 181 and 182 Corporations Act 2001 (Cth) - director of company set up competing company while still director and employee of first company - director appropriated company name of first and goodwill associated with previous trading history of first company (though not registered trade mark, which was at all relevant times property of director or family trust company) - HELD - breach of director's duties and knowing assistance by second and third defendants - CORPORATIONS - oppression - s 232 Corporations Act 2001 (Cth) - whether conduct engaged in by the first defendant in setting up the competing company and diverting the business of the first company to the new company was oppressive - HELD - conduct of "affairs of the company" by the first defendant objectively unfair and oppressive - REMEDIES - equitable compensation - valuation of shares of company - where intangible assets of the company include value associated with a trade mark used but not owned by the company and the value associated with the business name - HELD - value of shares to be calculated according to value of Net Operating Assets plus an amount attributable to goodwill (if any) independent of the trade mark

EVIDENCE - Expert evidence - Expert's reports - Rules of court as to admissibility of expert's reports - Rule 31.28 of Uniform Civil Procedure Rules 2005 (NSW) - Whether "exceptional circumstances" exist supporting the admissibility of expert's reports - Whether substantial prejudice exists preventing the admission of expert's reports. EVIDENCE - Tender of MYOB records - Whether sufficient evidence exists to establish how MYOB records were prepared - Whether business records under s 69 of Evidence Act 1995 (NSW).

CORPORATIONS - Winding up - Statutory demand - Costs - Whether costs should be awarded in respect of application to set aside statutory demand - Whether Defendant should pay Plaintiff's costs where statutory demand would almost certainly have been set aside if the matter had proceeded to a contested hearing.

TORTS - personal injury - negligence - work accident on stairs - third party liability - factual issue only - inability to identify negligent party - limitation of action - action within time - damages discussed - no issue of principle.

CRIMINAL LAW - appeal - directed acquittal - whether trial judge erred in directing verdict of acquittal CRIMINAL LAW - appeal - directed acquittal - whether the evidence taken at its highest could support a guilty verdict CRIMINAL LAW - appeal - acquittal - discretion to order retrial - third retrial - whether jury guilty verdict would be set aside as unreasonable

CRIMINAL LAW - appeal against sentence - Form 1 offences - how properly dealt with when sentencing - sentence imposed pre Muldrock - reference by Sentencing Judge to R v Way - whether error identified in reference to guideline or yardstick - whether other sentence warranted.

TORTS - negligence - contributory negligence - apportionment - collision of unknown motor vehicle with bicycle - gross intoxication of plaintiff and failure to wear helmet - significant injuries to spine - failure to take care only relevant to apportionment where particular failure led to particular harm - onus on defendant to show particular failure - unable to prove nexus of intoxication to loss of control - no error shown in judge's assessment of 5% contribution for lack of helmet APPEAL AND NEW TRIAL - appeal - general principles - interference with Judge's findings of fact - whether trial judge failed to use or misused forensic advantage - trial judge found plaintiff to be a witness of truth and persuaded by consistency of contemporaneous evidence - insufficient evidence at appeal to establish misuse of forensic advantage - trial judge's findings undisturbed

REAL PROPERTY - Real Property Act 1900, s 12A(3) - Limits of the operation of the prohibition of action against the Registrar-General where Register altered - No effect on other provisions of the Act such as ss 122 and 138 - Meaning of "through or under". REAL PROPERTY - Real Property Act 1900 s 12(3)(b) - No accrued rights if no indefeasibility; no effect on s 138.

EQUITY - equitable remedies - plaintiff entitled in equity to the conveyance from the estate of a 10 acre property but on terms that he give credit for any benefits he has received from an interest free loan advanced to him by the deceased - inquiry as to benefit received by plaintiff from the $500,000 interest free loan.

WILLS AND ESTATES - Succession Act 2006 - application for family provision order by two foster children of the deceased, Clement Jones and Alva Griffiths.Judith Carney has settled her claim and is no longer in the proceedings - legacies left to plaintiffs and residue to natural son of the deceased - in lieu of the legacies further provisions ordered

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - adjudication determination - whether adjudicator's performed statutory function by giving sufficient reasons for the decision that was made - ADMINISTRATIVE LAW - jurisdictional error - denial of natural justice - whether adjudicator gave sufficient reasons for accepting superintendent's representative's assessment - whether adjudicator properly dealt with submissions based on the quantum of the claim - whether adjudicator erred by failing to note a concession - whether oversight capable of correction under "slip rule" - whether adjudicator failed to afford natural justice by omitting reference to materials provided to him in relation to submissions and documentation in support of a payment schedule.

EVIDENCE - Expert evidence - Expert's reports - Rules of court as to admissibility of expert's reports - Rule 31.28 of Uniform Civil Procedure Rules 2005 (NSW) - Application for leave to rely on further expert evidence after orders of the Court directed that the Plaintiff not be entitled to rely on further expert evidence without leave of the Court - Whether leave should be granted - Whether "exceptional circumstances" exist supporting the admissibility of expert's reports - Whether real prejudice exists preventing the admission of expert's reports.

COSTS - application for costs to be paid forthwith - original costs order made against solicitor and solicitor's firm - context of order that solicitor cease to act on grounds of conflict of interest or breach of fiduciary duty or confidentiality - departure from general rule - UCPR 42.7 - whether forthwith order involves variation of earlier judgment - order made that costs be paid forthwith

TRUSTS - application for judicial advice pursuant to s 63 of the Trustee Act 1925 - whether trustee justified in defending proceedings brought by a beneficiary - whether trustee would be entitled to be paid his indemnity costs from the estate - plaintiff in substantive proceedings joined as defendant

CRIMINAL LAW - Appeal - Special Hearing - s 19 Mental Health (Forensic Provisions) Act 1990 - interlocutory judgment refusing to permanently stay criminal proceedings - whether an intellectually handicapped accused knew right from wrong at the material time - whether substantial delay had resulted in unfairness to the accused in adducing evidence - a permanent stay is only to be granted in the extreme case where the apprehended defect is of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences.

MENTAL HEALTH - management and administration of property - garage on separate certificate of title bequeathed to neighbour in will - testatrix subsequently subject to a management order - garage sold with home unit by manager - where NSW Trustee and Guardian has made an order under s 83 NSW Trustee and Guardianship Act 2009 for the investing of the proceeds from the sale of a specific bequest in a separate fund - merely accounting device to hold in separate fund, as moneys are available for protected person on exhaustion of general pool of funds available for the maintenance of the person - it is generally appropriate to also segregate income and interest from the separate fund from the general pool of funds MENTAL HEALTH - management and administration of property - garage on separate certificate of title bequeathed to neighbour in will - testatrix subsequently subject to a management order - garage sold with home unit by manager - whether disposal of subject matter of bequest by manager of protected person's estate adeems the bequest - found that disposal does adeem the bequest provided the disposal is effected with proper authority - manager disposed of property with authority of NSW Trustee and Guardian and in the best interests of the protected person - disposal adeemed the specific bequest - not necessary that the disposal be known to the protected person for ademption to occur MENTAL HEALTH - management and administration of property - garage on separate certificate of title bequeathed to neighbour in will - testatrix subsequently subject to a management order - garage sold with home unit by manager - whether the NSW Trustee had power under NSW Trustee and Guardianship Act 2009 to order separate investment of proceeds from devised asset - NSW Trustee did have such power - separate investment was an appropriate action in accordance with legislative intent and proper principles of managing protected estates - history and manner of operation of s 83 NSW Trustee and Guardianship Act 2009 - amendments made to orders of court below MENTAL HEALTH - management and administration of property - management of protected estate that includes real or personal property subject to specific bequests - primary regard to be had to maintenance of protected person - secondary regard to be had to preservation of bequests - to the extent that the protected person is properly maintained, specific bequests (or their proceeds of sale) should be preserved SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - construction and effect of testamentary dispositions - ademption of specific bequest - circumstances in which sale, in testatrix's lifetime, of specifically bequeathed property does not adeem bequest - history of ademption generally PRACTICE - commencement of proceedings - parties - failure to joinder parties who would be affected by a judicial opinion on the correct disposal of a specific bequest for a testatrix not yet deceased - these parties included specific devisee and residual beneficiaries - not appropriate in circumstances to joinder parties after conclusion of hearing - decision of court is not to bind parties not joined WORDS AND PHRASES - "ademption"

CONTRACTS - construction and interpretation of - contractual right to have discretions exercised - extent of discretion - where contract provided for payment of bonus at the discretion of the Remuneration Committee - discretion held to constitute a discretion to allocate bonus and a discretion to pay the bonus - appellant informed respondent in writing that he would be 'paid' bonus of $300,000 - appellant argued that bonus had only been allocated, and discretion to pay reserved - held, on evidence, that both discretions had been exercised in favour of the respondent CONTRACTS - construction and interpretation of - contractual right to have discretions exercised - extent of discretion - where contract provided for payment of bonus at the discretion of the Remuneration Committee - bonus allocated on certain conditions, including provision for claw back - discretionary nature of contractual right extended to allocating bonuses conditionally CONTRACTS - disclaimer - availability - where contract provided for payment of bonus at the discretion of the Remuneration Committee - bonus allocated on certain conditions, including provision for claw back - respondent communicated his dissatisfaction with conditions attaching to bonus - appellant did not pay bonus - appellant argued that the respondent had disclaimed an entitlement to the bonus - held that no disclaimer of individual rights under a contract not by deed, in circumstances not amounting to variation of contract, estoppel, election or waiver CONTRACTS - offer and acceptance - purported exercise of contractual rights not an offer - attempted variation of contractual rights not accepted - no variation of contract EQUITY - assignments - voluntary - disclaimer - principles of effecting disclaimer generally where one party is equitably assigned undesirable property EQUITY - equitable personal obligation attached to a transfer of property - enforceability WORDS AND PHRASES - "disclaimer", "abandonment", "renunciation", "waiver"

CORPORATIONS - Winding up - Application under s 564 of the Corporations Act 2001 (Cth) permitting preferential payment to certain creditors of property recovered under an indemnity for costs of litigation provided by those creditors.

CRIMINAL LAW - appeal - conviction - evidence - decision of trial judge to not permit cross examination on the basis of relevance - where evidence may have been relevant in a manner not put by trial counsel - no error demonstrated. CRIMINAL LAW - appeal - conviction - directions - failure to direct the jury regarding alleged admissions - where conduct, demeanour and failure to deny accusations are relied upon as evidence of guilt - failure to direct jury on how evidence could be utilised in relation to particular offences. CRIMINAL LAW - appeal - conviction - directions - failure properly to direct the jury in relation to statements of complainant in recorded conversations with the appellant.

CRIMINAL LAW - appeal - s 5F - whether multiple counts should be heard together - where one count is a count of murder - whether evidence of one count is admissible in relation to another count

PRACTICE AND PROCEDURE - no issue of principle

PROCEDURE - civil - interlocutory issues - application for injunction - injunction necessary for the administration of justice in New South Wales -demonstration of substantial hardship not sufficient basis for restraint of actions - right to recovery of tax owing expressly conferred - restraint would not further administration of justice - Supreme Court Act 1970 (NSW) s 23 PROCEDURE - civil - interlocutory issues - application for stay of recovery proceedings - application that Chief Commissioner of State Revenue be restrained for taking further steps to recover sums assessed in way of payroll tax - alternative application for restraint until after determination of objections lodged - claimed extreme personal hardship suffered if recovery or winding up proceedings initiated - no evidence given as to whether attempts have been made to meet assessments by borrowing on security of assets TAXATION AND REVENUE - assessment for payroll tax - objections and review - alleged incorrect grouping of companies for purpose of calculation of payroll tax - challenge as to the imposition of penalties - taxpayers right to object to assessment and review adverse determination to such objections -- tax can be recovered as if no objection or review pending - amounts assessed due and owing

ESTATE - Succession Act 2006 - application for family provision order by son of the deceased - claim for additional provision - plaintiff's medical condition a serious concern - additional provision held in trust

TORTS - injurious falsehood - interlocutory injunction to restrain publication - serious question to be tried on issues of falsity and malice - inferences available concerning falsity and malice.

PRACTICE AND PROCEDURE - application for summary judgment - whether any arguable defence or issue to be tried

PROCEDURE - notices of motions - dispute over acceptance of gift of three goats - two motions by defendants seeking orders to have proceedings dismissed for want of prosecution and orders seeking amended statement of claim to be dismissed against personal defendants - motion by plaintiff seeking leave to amend pleadings - leave is granted - defendants motions dismissed - costs

COSTS - costs assessment scheme - enforcement of cost certificates issued pursuant to ss 368 and 369 Legal Profession Act 2004 (NSW) - where both certificates lodged together and, pursuant to ss 386(5) and 369(7) Legal Profession Act 2004 (NSW), entered as single judgment for cost applicant - whether judgment entered irregularly on the basis that money payable under s 369 certificate not a debt due to the cost applicant - HELD - judgment arising from filing of s 369 certificate not for a debt due to the cost applicant - judgment set aside - orders in lieu made to give effect to the import of the statutory costs judgment arising on filing of the s 369 certificate RESTITUTION - right to reimbursement where moneys paid under compulsion discharging liability of another - whether right arose where cost applicant paid costs of cost assessor in order to obtain cost certificates from Manager, Costs Assessment - where cost respondent liable to pay costs as assessed under the s 369 certificate - OBITER - cost applicant in those circumstances would have right to reimbursement from cost respondent

HABEAS CORPUS - Whether available - Exhaustion of alternative route of bail - Conditions of custody - Difficulty in preparing appeals - No manifest injustice of further incarceration pending appeals

CONTRACT - construction - whether terms of contract are uncertain PRACTICE AND PROCEDURE - arbitration clause -whether arbitration clause covers a claim for contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 PRIVATE INTERNATIONAL LAW - international arbitration - agreement to refer matter to international arbitration - mandatory stay PRACTICE AND PROCEDURE - discovery - whether categories of document sought through discovery are oppressive in the instant case

DEFAMATION - defences - substantial truth - whether defence should be left to the jury - contextual truth - whether the jury should be directed to exclude consideration of such of the plaintiff's defamatory imputations as they have found to be substantially true

CRIMINAL LAW - sentence - murder - guilty verdict by jury - joint criminal enterprise with father to kill mother's lover - young adult - no remorse - whether under father's influence. CRIMINAL LAW - sentence - accessory after the fact to murder - guilty verdict by jury - assistance by mother to enable son to flee the jurisdiction - knowledge of son's involvement.

SUCCESSION - Family provision order - s58(2) of Succession Act 2006 - application out of time - no sufficient cause for extension of time - solicitor's oversight not sufficient cause of itself -relevance of prejudice - order refused SUCCESSION - Family provision order - freedom of testamentary disposition - relevance of testator's appreciation of claimant's virtues, failings and needs SUCCESSION - Family provision order - s59 of Succession Act 2006 - consideration of adequate provision for proper maintenance or advancement in life -standard of living that plaintiff entitled to expect - modest award would not make meaningful contribution to plaintiff's advancement in life - testator's knowledge of plaintiff's needs, virtues and failings SUCCESSION - Family provision and maintenance - s 60 of Succession Act 2006 - discretionary factors - delay and prejudice - unreasonable conduct of proceedings - character and conduct

DAMAGES - torts - professional negligence - financial loss - interest component - appropriate date for quantification of damages PROFESSIONS AND TRADES - solicitors - negligence - forged mortgage - loss of interest - scope of liability under s 5D Civil Liability Act 2002