Cases and authorities

CRIMINAL LAW - procedure - fitness to plead or be tried - charge of murder - Accused suffering from schizophrenia and poly-substance abuse - Accused unfit to be tried.

CRIMINAL LAW - Appeal - Leave to file out of time - discretionary issues - no arguable case - leave to extend time refused

MOTOR ACCIDENTS COMPENSATION - worker claimed from his employer damages under the Motor Accidents Compensation Act 1999 in respect of injury suffered in the course of his employment whilst a passenger in the bucket of an excavator - whether the excavator was a "motor vehicle" as defined in the Act - whether the excavator was a vehicle "on wheels" within the meaning of the Road Transport (General) Act 2005

REAL PROPERTY - conveyancing - voluntary alienation to defraud creditors - transfer of land by judgment debtor - whether intent to defraud creditors by making execution against land impossible - PROCEDURE - judgments and orders - enforcement of judgments and orders - whether writ of execution may be enforced in respect of judgment debt of trustee - EQUITY - trusts and trustees - money judgment against trustee - trustee's right of indemnity and preferred beneficial interest in trust assets - subrogated position of trust creditors - protection of preferred beneficial interest from destruction by levy of execution

PROCEDURE - interlocutory injunction - to prevent filing of adjudication certificate in court pursuant to s 25 of the Building and Construction Industry Security of Payment Act 1999 - whether arguable case and balance of convenience - where evidence of defendant having no assets. ADMINISTRATIVE LAW - whether adjudicator had jurisdiction under Act - where application made out of time - where claim already lodged for same reference dates and work - whether denial of natural justice. BUILDING AND CONSTRUCTION - security of payment legislation - whether more than one adjudication application can be made for same reference dates and work.

CRIMINAL LAW - procedure - costs - application for costs certificate - Costs in Criminal Cases Act 1967 - ss 2, 3, 3A - unreasonable for Crown to have instituted proceedings against the defendant - evidence supporting Crown case inherently tenuous and weak

REAL PROPERTY - application to extend operation of caveats - whether caveator as beneficiary under a discretionary trust had an estate or interest in the land - whether beneficiary entitled to lodge caveat in right of the registered proprietor and trustee

The Plaintiffs seek an order that the Defendant, the appointed executor to whom Probate was granted, provide a proper account in respect of his administration of the estate of the deceased, and that he pay to them all monies found to be due to them upon the taking of such an account, together with interest thereon - The Defendant asserts that the deceased's estate has been fully distributed in accordance with the terms of the deceased's Will to the beneficiaries named in the Will

The Plaintiff, a daughter of the deceased, seeks a family provision order out of the estate of the deceased - The Defendant, a son of the deceased, opposes claim - The estate, in events that happened, left largely to grandchildren of the deceased, the children of the Defendant - Very small estate - Plaintiff asserts that she will give all or most of the provision she receives out of the estate to her own children - Whether provision should be made for the Plaintiff and, if so, the nature of the provision to be made

ESTATE - Succession Act 2006 - application for family provision order by son of the deceased - defendant son of the deceased - estate left to all four children equally - claim for deceased's property - plaintiff carried out improvements to property - deceased provided below market value accommodation to the plaintiff for over 30 years - possession of property

APPEAL - civil - evidence - whether evidence supports inference asserted by plaintiff - whether finding critical to the judgment - whether the judgment should be set aside TORTS - negligence - duty of care owed by owner of premises to person coming onto premises to carry out work - whether defendant owed an extended duty of care to plaintiff based on knowledge of condition of building - whether defendant had requisite knowledge - whether defendant should have carried out further investigation - whether plaintiff should have made his own investigation TORTS - negligence - causation - representations and assurances - whether defendant represented to plaintiff that building was safe - whether, if made, representations were without any reasonable basis - whether, if made, representations caused injury - Civil Liability Act 2002 (NSW), s 5D, "necessary condition"

PROCEDURE - notice of motion - interlocutory order sought for prisoner to be housed in a one out cell - seeking mandamus order and mandatory injunction - onus not met - motion dismissed - costs

EQUITY - Succession - Family Provision - deceased makes provision for intellectually disabled daughter - Whether provision made is adequate for the daughter's proper maintenance, education and advancement in life. PROBATE AND ADMINISTRATION - whether estate has been properly administered - delay in selling estate property - whether orders should be made for the sale of the single asset in the estate, a residential property.

PROCEDURE - pleadings - defamation -strike-out application - contextual truth defence - whether contextual imputation liable to be struck out as being incapable of being defamatory - substantial truth defence - whether particulars capable of sustaining defence PROCEDURE - pleadings - defamation - application for leave to amend defence - whether too late - where prompted by late provision of discoverable documents - whether contextual imputation capable of being an other imputation carried in addition to plaintiff's imputations

PRACTICE AND PROCEDURE - Discovery - Uniform Civil Procedure Rules 2005, r 5.3, 5.4 - person against whom the order for discovery is sought is not a "prospective defendant" - person against whom the order for discovery is sought is not a party to the proceedings - whether documents relate to a "question in the proceedings"

CONTRACTS - Formation - Discussion of relevant principles. EQUITY - Fiduciary duties - Relevant principles - Whether pleaded duties were established - Whether pleaded breaches were established. EQUITY - Special disadvantage - Whether pleaded special disadvantage established. TRUSTS - Constructive trust - Relevant principles - Baumgartner constructive trust - Whether Plaintiff entitled.

CONTRACTS - Formation - Whether Plaintiff established consideration for alleged agreement - Whether agreement contained alleged terms - Whether those terms were breached. TORTS - Negligence - Duty of care - Whether Plaintiff established duty of care. EQUITY - Fiduciary duties - Whether pleaded duties established.

PRACTICE AND PROCEDURE - Review of determination of trustees for sale - Jurisdiction for review - Referee's report under Uniform Civil Procedure Rules 2005 (NSW) Pt 20 Div 3 - Whether error of principle, patent misapprehension of evidence or perversity or manifest unreasonableness in trustee's determination.

PROCEDURE - notices of motion - orders sought to have two sets of proceedings be heard by one judge, one immediately after the other - application opposed - different claims under different laws - New South Wales laws, New York laws and consideration of Pennsylvanian laws - question of delay - motions dismissed - costs

COSTS - departing from the general rule - order for costs on indemnity basis - walk-away offer of compromise - Calderbank letters - Rule 42.15A of the Uniform Civil Procedure Rules 2005 - orders made

SENTENCE - accessory after the fact to murder - principles - wide sentencing range available - whether mere agreement to give false alibi never actually provided constitutes an offence.

CONTRACT - retainer - express or implied retainer - whether the defendant solicitor was retained by the plaintiff TORT - negligence - duty of care - duty of a solicitor - duty of a solicitor owed to a former client - duty of a solicitor in the absence of a retainer EQUITY AND TRUSTS - establishment of a trust - requirement of certainty of objects - lack of certainty as to terms of the trust DAMAGES - loss of chance - causation

JURISDICTION - Industrial Relations Commission - Probationary police constable - Unfair dismissal - Right to review - Inconsistency or incongruity between the provisions of Police Act and Industrial Relations Act - implied repeal

CONCURRENT TORTFEASORS - damages - apportionment - separate judgments - Environmental Planning and Assessment Act s 109Z - Civil Liability Act s 35 - whether joint and several orders for costs appropriate. COSTS - concurrent tortfeasors - damages apportioned - whether joint and several orders for costs appropriate. PRACTICE - action referred for enquiry and report - report substantially adopted by Judge - final judgment not entered - application to re-open - new evidence in hearsay form - witness not available for cross examination - credibility not established - application dismissed. PRACTICE - new trial - fresh evidence - evidence of witness in hearsay form - witness not available for cross examination - court unable to assess credibility - application dismissed.

PROCEDURE - application for order setting aside order of dismissal for want of prosecution - whether order of dismissal made "irregularly" because of non-observance of rule 18.3 - order made in absence of party - whether any factor making it unjust that the order should stand - application dismissed

PROCEDURE - Supreme Court procedure - New South Wales - leave to amend pleadings - where plaintiff's motion brought at commencement of hearing - where amendments make fresh claims against fourth defendant - where plaintiff has been on notice for a long time of those claims - where plaintiff has in the past stated in pleadings that relief is not sought against fourth defendant - where fourth defendant, now deceased, has not been given an opportunity to defend herself - amendment would be to the prejudice of the defendants

CORPORATIONS - Winding up - Statutory demand - Application to set aside statutory demand - Whether there is a "genuine dispute" as to the amount claimed in the statutory demand. COSTS - Indemnity costs - Application for indemnity costs in circumstances where there were significant deficiencies in respect of statutory demand, a very substantial defect in the affidavit verifying the statutory demand, and a finding that the statutory demand was not a proper use of the statutory demand procedure.

PROCEDURE - Application for leave to reopen - whether new evidence credible, highly probative and previously unobtainable - held not credible or highly probative

PRIVATE INTERNATIONAL LAW - anti-suit injunction - vexatious foreign proceedings - where issue in foreign proceedings already decided in NSW proceedings in which proper parties represented. PROCEDURE - application for summary judgment - no defence to the plaintiff's claim. PROCEDURE - summary judgment - whether appropriate to make declaration.

COSTS - interlocutory applications - Uniform Civil Procedure Rules 2005 (NSW) r 42.1 - Costs should follow the event.

REAL PROPERTY - Strata titles -Whether deed providing for specified services unenforceable by reason of Strata Titles Act 1973 (NSW) s 78 - Whether subsequent deeds of assignment were effective.

PROCEDURE - non-publication order under Court Suppression and Non-Publication Orders Act 2010 - whether order necessary to protect safety of any person - meaning of "necessary" - whether increase in media attention constituted threat to safety. PROCEDURE - Anshun estoppel - not applicable to interlocutory orders - whether party still free to re-litigate interlocutory application without change of circumstances. EVIDENCE - expert evidence - security and safety experts - UCPR expert witness code of conduct - failure to provide code to witness before preparing report - whether cured by later affidavit asserting compliance with code. EVIDENCE - expert evidence - compliance with experts code of conduct and Makita requirements - failure to comply - failure to identify material relied upon in expert report - failure to disclose reasoning process - no demonstration of application of specialised knowledge.

COSTS ASSESSMENT - prior determinations by costs assessors - leave to extend time to appeal - leave to appeal under Legal Profession Act 1987 s208M

CRIMINAL LAW - Appeal - conviction - reliability of witnesses - whether the trial judge erred in failing to warn the jury that the witness' evidence might be unreliable - s 165 Evidence Act 1995 - whether the trial judge erred in failing to provide reasons concerning the s 165 jury direction.

CRIMINAL LAW - appeal - sentencing - assault involving an act of indecency upon a person under 16 years of age - offences committed between 1975 and 1981 - application of sentencing procedure at the material time - whether sentencing judge erred in setting non-parole period of two-thirds of the sentence period - discussion of remissions system established by Prisons Act 1952 (NSW) CRIMINAL LAW - appeal - sentencing - aggregate sentences - whether Court of Appeal has power to impose an aggregate sentence of imprisonment in circumstances where that power was not available to sentencing judge - discussion of Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44 and 53A

WORKERS COMPENSATION - appeal - whether Commission erred in point of law - whether any evidence capable of supporting finding that nature and conditions of employment constituted a substantial contributing factor in relation to worker's injury WORKERS COMPENSATION - whether insurer who was not formally a party to proceedings before Commission entitled to appeal under s 353 Workplace Injury and Workers Compensation Act 1998 COSTS - appeal costs - whether party who filed submitting appearance entitled to costs of appearing at hearing to seek costs order when had not previously sought consent to such an order

WORKERS' COMPENSATION - passenger on board aircraft suffered injury during flight while landing in Texas - passenger employed by and in course of employment with respondent at time of injury - respondent made workers' compensation payments through insurer - whether respondent could recover payments from applicant pursuant to Workers Compensation Act 1987 (NSW), s 151Z(1)(d). CARRIAGE BY AIR - right of indemnity and contribution pursuant to Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("Act"), s 37 - whether two year time bar provision in Art 29 of Warsaw Convention and amending instruments ("Convention") made applicable in Pt IIIC of Act applicable - discussion of Art 17 and Art 24 of Convention - two year time bar not applicable to respondent's claim. STATUTORY INTERPRETATION - consistency between Parts of statute - avoidance of unjust or capricious result - applicable principles in construing Australian Act derived from or based on international instruments. PRIVATE INTERNATIONAL LAW - choice of laws - respondent not barred from bringing proceedings - right of indemnity and contribution created by New South Wales statute - Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; 210 CLR 491 distinguished.

APPEAL - civil - evidence - construction of contract - whether evidence supports primary judge's findings as to contract terms - whether open to appellate court to reject findings based on credibility of witnesses - whether open to appellate court to reassess construction of contract based on findings of fact made by trial judge CONTRACT - construction - identifying contract terms - contract for advice prior to purchase - use of language of the contracting parties DAMAGES - contract - time for assessment - whether assessed at the time of breach or at some other date - circumstances in which it is appropriate to measure damages at some other date - circumstances in which plaintiff is considered to be locked in to holding the asset

PROCEDURE - Supreme Court procedure - New South Wales - allegation that proceedings are frivolous and vexatious - first day of hearing not an appropriate time to deal with motion to strike out pleadings; defendants' contentions require examination of all material relied on by the plaintiff which is the process to be embarked on at hearing

Murder - guilty plea

APPEAL - practice and procedure - discovery - application for further discovery by defendant - appeal from decision of Associate Judge - whether documents subject to 'without prejudice' privilege were discoverable - whether s 131(2)(g) of the Evidence Act 2005 was engaged - whether party claiming client legal privilege has acted inconsistently with the maintenance of privilege - defendant's appeal dismissed

CORPORATIONS - Winding up - Insolvency - Proceeds of contract of reinsurance - Application for orders under Corporations Act 2001 (Cth) s 562A(4) - Whether "just and equitable" to make orders sought by the Plaintiffs.

Evidence - expert report - relevance of expert reports to issues in the proceedings - proof of assumption rule - whether underlying assumptions admissible as part of business records or as admissions

Procedure - application for change of venue - convenience of parties - application dismissed

EQUITY - "fruits of the action" lien - prior to commencement of hearing in main proceedings solicitor acted for company defending a claim and prosecuting a cross-claim - judgment in favour of the company on the cross-claim - HELD - lien arose in favour of the solicitor over moneys recovered in the litigation by reference to the cross-claim - EQUITY - trust over litigation proceeds claimed - no question of principle - HELD - no trust was created - CORPORATIONS - deed of company arrangement - charges registrable under s 262(1) Corporations Act 2001 (Cth) - whether a "fruits of the action" lien is registrable - whether equitable charge created by deed over money to be recovered by company in litigation is registrable - HELD - "fruits of the action" not registrable under s 262(1) as it arises by operation of law and is exempt under s 262(2) - express charge over money claimed in litigation registrable as a book debt insofar as secured claim was for reimbursement of expenses incurred in ordinary course of business - CORPORATIONS - deed of company arrangement - competing priorities between a fixed charge and an administrator's statutory and/or equitable lien - circumstances in which an equitable lien may arise in favour of the administrator and take priority over a fixed charge - AGENCY - claim that a grant of irrevocable authority to current solicitor to pay former solicitor created a secured interest in favour of former solicitor - HELD - no such secured interest - CONTRACT - whether personal obligation of directors of company to pay solicitors' costs - created by either the retainer or the deed - HELD - no personal obligation created by deed, but personal obligation arose from joint retainer under which the directors were joint and severally liable with the company for costs of the proceedings

DECLARATIONS - where proceedings conducted in stages before different judges - where earlier judgments resolve certain questions - whether ultimate judge should pronounce declarations in wider terms than earlier judgments. DECLARATIONS - preference for declaratory orders to be clear and complete and not require recourse to other documents or orders

PROCEDURE - possession proceedings - Defendant fails to comply with orders for filing of pleadings and evidence - Defendant subsequently made bankrupt - stay sought by Defendant until appeal against sequestration order determined - no utility in stay - Plaintiff seeks summary judgment - final hearing directed.

CORPORATIONS - s 423(1) Corporations Act 2001 (Cth) - defendant was appointed as a joint receiver to wind up a partnership between a corporation (Pinata) and a number of individuals by a deed of dissolution made on 9 April 1996 - the plaintiffs are, and have at all times, been associated with Pinata - Pinata brought proceedings in 2001 against its individual former partners and the joint receivers claiming that the individual partners owed monies to the partnership and for an accounting - Pinata also made claims by way of cross-claim against the defendant - the proceedings failed as against the individual partners because Pinata did not put up security for costs in accordance with orders of the court and the claims against the defendant were statute barred - the plaintiffs complain that the defendant, as receiver to the partnership, should have brought claims against the individual former partners and move the court for an inquiry under s 423(1) of the Act - whether the defendant was a controller - whether the plaintiffs are entitled to invoke the section - EQUITY - PARTNERSHIP - whether the plaintiffs have established that the defendant should have brought the claims the plaintiffs say he should have brought - whether the plaintiffs have established that the defendant did not faithfully perform a requirement of the instrument under which he entered into possession or took control of property or that he committed an act or omission appropriate to inquire into - HELD - plaintiffs have not satisfied the requirements of s 423 - HELD - Pinata was the party which could and should have motivated the complaints - HELD - the plaintiffs guilty of gross delay in bringing the proceedings without explanation - HELD proceedings are an attempt to obtain a collateral advantage beyond what the law offers and are an abuse of process - COSTS - HELD - the plaintiffs maintained these proceedings although they should have known that they had no real prospects of success - order for indemnity costs appropriate