Cases and authorities

PRACTICE AND PROCEDURE - Question by cross-examiner objected to - Whether question asked can be supported in respect of the matters raised in the Points of Claim in the proceedings - Whether question should be allowed

JUDGMENTS AND ORDERS - Enforcement - Garnishment - Liability of garnishee - Discharge of debt - Benefit of garnishee's costs orders assigned to judgment debtor - Whether assignment implicitly discharged garnishee's debt to judgment debtor - Whether assignment valid - Whether assignment of benefit of costs order future property.

BUILDING AND CONSTRUCTION - interlocutory injunctive relief - legislative purpose of the Building and Construction Industry Security of Payment Act 1999 - whether plaintiff should be restrained from enforcing adjudication determination - whether defendant should be restrained from calling upon bank guarantees - whether summons claims declaratory relief which is capable of being regarded as final relief.

REAL PROPERTY - Strata titles - owners corporation's duty to maintain common property - water penetrates plaintiff's apartment in and after episodes of rain - some remedial works undertaken - only partially effective - experts agree on further remedial work to be executed - whether defendant should pay the plaintiff's costs of the proceedings - whether defendant should pay certain of the plaintiff's out of pocket expenses - whether diminution in market value of plaintiff's apartment, if works not carried out.

CRIMINAL LAW - trial for murder - convicted of manslaughter - provocation - heated argument between acquaintances - provocative words and conduct directed at Offender - deceased stabbed - assessment of objective gravity - significant level of provocation - substantial degree of violence by Offender - determination of appropriate sentence

CRIMINAL LAW - murder trial - application for warnings under s.165 Evidence Act 1995 - three persons in house: the Accused, the deceased and the principal Crown witness - deceased stabbed - defence case that principal Crown witness must have been the killer - s.165(1)(d) unreliability direction sought - further s.165 unreliability direction sought based upon intoxication of principal Crown witness - whether matters which might adversely affect reliability of evidence of Crown witness would readily be understood and appreciated by jury - whether jury might be misled in making assessment or evaluation of evidence without s.165 warning - s.165 warnings declined

WILLS - interpretation - rule in Thistlethwayte's case - whether gift of income in perpetuity is gift of capital - rule of construction - application of rule where beneficiary of will is a charity - whether fact that beneficiary is a charity is a relevant indication of intention of testator. TRUSTS AND TRUSTEES - replacement of trustee - s 70 of Trustee Act 1925 - inherent power to replace trustee - relationship between s 70 of Trustee Act and Charitable Trusts Act 1993 - where no suggestion of mismanagement of trust by current trustees - whether "expedient" to appoint new trustees to save the trust certain commissions and fees

CRIMINAL LAW - sentence - supply commercial quantity of prohibited drug (liquid methylamphetamine) - knowingly dealing with proceeds of crime ($46,700.00 in cash) - offences in breach of conditional liberty - claim of disparity by reference to sentence for offender arrested in same police investigation - other errors asserted - grounds unmeritorious - leave to appeal refused

CRIMINAL LAW - Appeal against sentence - murder (Crimes Act 1900 (NSW) s18(1)(a)) - assault with intent to rob in company (Crimes Act 1900 (NSW) s97(1)) - principle of parity - distinction between criminal responsibility and moral culpability - parity principle not engaged - whether the allocation of a discount for plea of guilty by the trial judge constituted a denial of procedural fairness - applicant afforded opportunity to make submissions - appeal dismissed.

APPEAL- notice of motion to dismiss appeal as incompetent- whether decision was final, interlocutory or a special class of interlocutory decision- appellant and respondent in dispute over extensions of time under a contract- technical questions referred to a referee- referee's report substantially adopted by first trial judge- subsequent legal questions determined by a second trial judge- whether first trial judge's decision was final or interlocutory- the test as to whether a judgment is final or interlocutory is whether the decision finally determines the rights of the parties- held that the decision of the first trial judge did not finally determine the rights of the parties- therefore decision was interlocutory- motion dismissed with costs. APPEAL- estoppel from appeal based on prior conduct- appellant filed notice of intention to appeal from decision of first trial judge after date set down for hearing before second trial judge- hearing proceeded with no further action taken in relation to appeal from first trial judge's decision- whether proceeding on the basis of the correctness of the first trial judge's decision operates as an estoppel or unconscientious conduct short of an estoppel- conduct of appellant did not mislead respondent or second trial judge to conclude that there would be no appeal- held that there was no estoppel.

INTERLOCUTORY JUDGMENT - application for adjournment - counsel for the appellant accepted matter pro bono at short notice - insufficient time afforded to the appellant to prepare for appeal - whether interests of justice require adjournment - prejudice to respondent by adjournment.

TORTS - unlawful arrest - whether finding of unlawful arrest justified - whether arresting officer had reasonable grounds for suspicions DAMAGES - malicious prosecution - exemplary damages - whether award of exemplary damages justified - need to take into account award of compensatory and aggravated damages - quantum of exemplary damages

CRIMINAL - Interlocutory proceedings - preliminary ruling pursuant to s 192A of the Evidence Act 1995

COSTS - statutory discretion in relation to costs - mortgagee contractually entitled to indemnity costs - contractual right to have costs paid out of secured property as between solicitor and client MORTGAGE - mortgages and charges - calculation of interest on moneys secured by mortgage - question as to whether a default interest rate should be applied - relevant contentions not advanced at hearing - interest to be calculated as simple interest at defined "Interest Rate"

REAL PROPERTY - caveats - application for further extension of caveat - caveator entitled to equitable mortgage - no evidence of detriment suffered by caveat's remaining lodged over the title - risk that security could be reduced or defeated by dealings in favour of a third party - summons did not require a claim for final relief where caveator did not seek to enforce mortgage and no dispute that a mortgage was given

CORPORATIONS - Part 5.3A Corporations Act 2001 (Cth) - section 447A Corporations Act 2001 (Cth) - where administrator appointed and a party related to the company foreshadows challenge to his appointment but does not carry through with the challenge - uncertainty of administrator's position where administrator has accepted the appointment and has acted in good faith - appropriate to make orders ensuring certainty of position

CONTRACTS - loan contracts and mortgages - fraud of investment consultant - loans approved on fraudulent financial information - forgery of signatures on loan documents and mortgage - loans approved on consideration in contracts of sale without external valuation - consideration reduced by deeds of variation - settlement moneys obtained by solicitor's direction to bank - surplus of settlement moneys transferred to fraudulent agent - whether borrowers liable to the bank - BREACH OF WARRANTY OF AUTHORITY - whether solicitor dishonest - whether warranty of authority breached - whether cause of action available to the bank - CAUSATION - whether Civil Liability Act applies - whether contributory negligence is a defence to breach of warranty of authority - whether proportionate liability applicable - damages

Murder - sentence - substantial impairment by abnormality of mind

FAMILY LAW - adoption - order under s 67 of the Adoption Act 2000 dispensing with consent of natural parents - where application made by authorised carers -meaning of 'those carers' where Minister is authorised carer - whether adoption 'will promote the child's welfare' where child already in care of proposed adopted parents.

CONTRACT - alternative dispute resolution clause - construction - PRACTICE AND PROCEDURE - application for permanent stay of proceedings on basis they have been instituted in breach of binding alternative dispute resolution provision - stay ordered

TORTS - negligence - medical negligence - whether general practitioner made a wrong diagnosis - a lesion on the foot diagnosed as a plantar wart - whether there was a misdiagnosis of the lesion - whether it was an acral lentiginous melanoma (ALM) - whether there was failure to consider ALM as a differential diagnosis - whether there was failure to refer the plaintiff for specialist investigation - whether there was a failure to perform a punch biopsy of the lesion - plaintiff suffered a plantar wart and also had an ALM - duty of care owed - negligence established - whether there would have been a different outcome if ALM had been earlier treated - causation not established - section 50 of the Civil Liability Act - judgment for defendant - costs EVIDENCE - admissibility and relevance - opinion evidence - medical evidence - objections to expert evidence EVIDENCE - witnesses - credit - credibility of evidence - reliability of evidence

INJUNCTIONS - confidential information - expert retained to advise in support of development application which was refused by council - whether the same person should be restrained from acting as an expert witness for council against the development application in Land and Environment Court proceedings - whether a real and sensible possibility of misuse of confidential information

PRACTICE AND PROCEDURE - Joinder - Application for First Defendant to be removed as First Defendant and joined as Second and joined as Second Plaintiff in proceedings. PRACTICE AND PROCEDURE - Amendment of pleadings - Whether amendments should be permitted under ss 58 and 64 of Civil Procedure Act 2005 (NSW).

PROCEDURE - civil - interlocutory issues - case management - preparation for hearing - whether questions relating to defective work should be referred out - whether court should determine the termination issue of the contract in a separate and prior hearing - whether the appointment of a facilitator is required to assist in expert conclaves - whether court should appoint referee - whether referee bound by the rules of evidence.

CORPORATIONS - Winding up - Replacement of liquidator - Administration - Replacement of administrator.

EVIDENCE - relevance - credibility rule - whether a document can be evidence adduced in cross examination within the meaning of section 103 of the Evidence Act - business records - discretion to exclude evidence under s 135 of the Evidence Act

CORPORATIONS - Creditors' meeting - Plaintiff seeks declaration as to validity of resolution to remove and replace joint and several administrators - Plaintiff submitted proof of debt to chairperson of creditors' meeting- Chairperson admitted debt after recalculating interest at a lower simple interest rate - Debt treated as "a debt the value of which was not established" for the purposes of reg 5.6.23(2)(d) of Corporations Regulations 2001 (Cth) - Whether chairperson's decision effected by bad faith, mistake as to facts, error of law or error of principle - Whether the declarations sought by the Plaintiff ought to be made.

INTERLOCUTORY JUDGMENT - Notice of motion seeking document inspection prior hearing of leave application - allegation that documents were fraudulently created to raise assessment costs - speculative nature of application - whether applicant personally liable for bills of costs.

PROCEDURE- applicant filed motion seeking leave to withdraw a submitting appearance- applicant originally filed submitting appearance when appellant, who was in the same interest, was represented- applicant filed motion to withdraw submitting appearance when appellant's solicitors ceased to act- granting leave to withdraw a submitting appearance is a discretionary decision of the court- generally, leave should be granted where an appearance was entered by mistake or accident but not when a deliberate choice was made- other considerations include whether the applicant has an arguable case, whether there is real prejudice and whether there has been any material change of case- although no exact precedent, in accordance with principle, it is appropriate to grant leave- leave granted.

PRACTICE AND PROCEDURE - interlocutory issues - claim for interlocutory relief -whether serious question to be tried - predominant consideration as to where the balance of convenience lies - where greater risk of injustice - balance of convenience does not favour grant of interlocutory relief - absence of an adequate undertaking as to damages CONTRACT - intention of parties - nature of document - question as to whether parties bound by Heads of Agreement

CORPORATIONS - Winding up - Application for order under s 461(1)(a) of Corporations Act 2001 (Cth) to wind up Defendant company - Whether requirements for order are satisfied.

WILLS AND ESTATES - informal will - whether deceased intended document to form his will or to form an alteration or full or partial revocation of earlier will - deceased familiar with the formal requirements of the making of a will - deceased did not intend document to have immediate operation as will

WILLS, PROBATE AND ADMINISTRATION - application for revocation of the grant of probate - no explanation as to what steps have been taken to complete distribution of estate - no satisfactory explanation as to why the administration of estate has not been completed - failure to comply with order for delivery of accounts - probate revoked

PRACTICE AND PROCEDURE - costs

VENDOR AND PURCHASER - contract for sale of land - whether plaintiff entitled to serve notice to complete - whether plaintiff ready, willing and able to complete on contract completion date or on dated fixed by notice to complete - whether plaintiff validly terminated contract by service of notice of termination - whether purchaser liable to pay interest from the extended date for completion, to the date of termination. GUARANTEE - enforceability - whether directors of purchaser gave enforceable guarantees to the plaintiff - cross-claim - whether guarantors, upon payment of the rateable share of the guaranteed obligation, have a right of exoneration. DAMAGES - whether plaintiff entitled to damages for loss of bargain. PROCEDURE - application for leave to amend - prejudice - whether, if permitted, amendments would raise fresh factual issues.

CRIMINAL LAW - appeal against sentence - whether error in failing to apply the provisions of the Criminal Case Conferencing Act - whether error in failing to take into account that the offence was capable of being dealt with in the Local Court - leave to appeal granted - leave upheld - sentence quashed

EVIDENCE - appeal - application to adduce evidence to supplement transcript - discussion of Vakauta v Kelly (1988) 13 NSWLR 502 - whether court should receive evidence pursuant to Supreme Court Act 1970 (NSW), s 75A(7) - whether court should exercise discretion to reject admissible evidence tendered for the first time on appeal PROCEDURE - civil - refusal to disqualify for apprehended bias - whether appellate court or court exercising supervisory jurisdiction should consider judgment of the court below on recusal application - whether exchanges between counsel and judge demonstrate that a fair-minded lay observer might hold the opinion that the judge might not determine issues fairly WORDS AND PHRASES - "apprehension of bias"

PRACTICE AND PROCEDURE- preliminary discovery- UCPR 5.1, 5.2- respondent operated car parks and knew registration numbers of vehicles which had parked but had not paid fee- requested information from appellant identifying the owners of such vehicles- information provided would, in first instance, be used to contact registered owners of the vehicles- whether preliminary discovery only available if applicant establishes a threshold requirement that it has a "desire" to commence proceedings or whether that is only a discretionary consideration- there is a threshold requirement that applicant must have "desire" to bring proceedings (per Basten JA, threshold requirement is that the applicant has "the purpose of commencing proceedings"), [Young JA in dissent on this point, "desire" or purpose not required but rather a discretionary factor]- desire may be characterised as something less fixed and certain than an "intention" or "purpose" (per Barrett JA, Beazley and Campbell JJA agreeing)- desire may be conditional- respondent found to have requisite desire- appeal unanimously dismissed. PRACTICE AND PROCEDURE- preliminary discovery- UCPR 5.2- does information identifying the owner of the vehicle "relate to" the identity of the person concerned (prospective defendant)- a document which assists in ascertaining the identity of the prospective defendant is a document which "relates to" the person's identity.

TORTS - negligence - duty of care - roads - failure to install guide posts - public or other authorities - special statutory power under Civil Liability Act 2002, s 43A TORTS - negligence - duty of care - roads - failure to install guide posts - identification of relevant risk - Civil Liability Act 2002, s 5B TORTS - negligence - duty of care - roads - failure to install guide posts - public or other authorities - whether Council exercising special statutory power under Roads Act 1993, s 87 CIVIL PROCEDURE - pleadings - whether statutory defence pleaded under Civil Liability Act 2002 - Uniform Civil Procedure Rules 2005, r 14.7 - material facts - necessity to plead CIVIL PROCEDURE - pleadings - failure to plead - ambush - fairness to opposing party - prejudice - Civil Procedure Act 2005, ss 14, 56, 59 and 60 CIVIL PROCEDURE - defence - matters that must be pleaded - Uniform Civil Procedure Rules 2005, r 14.14

CONTRACT - Building and Construction - Building and Construction Industry Security of Payment Act 1999 - adjudication determination - whether Act applied to contract - definition of "related goods and services" STATUTORY INTERPRETATION - Words and Phrases - Building and Construction Industry Security of Payment Act 1999 - "related goods and services" CONTRACT - Building and Construction - Building and Construction Industry Security of Payment Act 1999 - adjudication determination - application of s 7(2)(c) - whether calculation of consideration by reference to value of services provided. CONTRACT - Building and Construction - Building and Construction Industry Security of Payment Act 1999 - whether adequate notification of adjudication application. CONTRACT - Building and Construction - Building and Construction Industry Security of Payment Act 1999 - whether valid payment claim made - whether primary judge erred in exercise of discretion in refusing permission to raise issue.

PROCEDURE - freezing order - purpose of freezing order not to provide security for judgment - no evidence defendant seeking to frustrate normal processes of court - where defendant goes by different names and has entered into contract to sell house

PRACTICE AND PROCEDURE - claim for possession of land following alleged mortgage default - application by Defendant's husband for leave to appear for her as lay advocate at final hearing - husband to be a witness in proceedings - exceptional nature of order sought - need for good grounds to be demonstrated - conflict of interest between Defendant and husband - importance of protection of administration of justice - interests of justice - leave refused

Criminal Practice and Procedure - sentencing - murder - life sentence - worst category.

PROCEDURE - pleadings - evidence - relevance - whether question asked in cross-examination arises on the plaintiff's pleaded case - question allowed

CORPORATIONS - Winding up - Statutory demand - Costs of application to set aside statutory demand where orders were made by consent -Whether service of statutory demand was reasonable.

PROCEDURE - costs - whether court should make single costs order in relation to failed claim and cross-claim - form of costs order involving failed cross-claim. PROCEDURE - costs - application for costs on indemnity basis - Calderbank offer - whether genuine offer of compromise - whether offer only inviting capitulation. PROCEDURE - costs - where award of nominal damages - not to be regarded as the successful party in the action.

CUSTOMS PROSECUTION - smuggling - criminal law - importation of kava - making false statement - guilty plea - sentence imposed

PROCEDURE - Judgments and orders - meaning of "otherwise dismissed" - whether proceedings dismissed against certain party - where orders resolve all issues between parties

CRIMINAL LAW - sentence - accessory after the fact to murder - various acts of assistance over 2 month period - false account given to police and maintained for that period - subsequent remorse and confession - considerable assistance