Cases and authorities

SUCCESSION - family provision and maintenance - position of adult children - position of widow - legitimate expectation of widow to maintain way of life shared with deceased - where married to deceased for approximately 30 years and contributed to purchase of property which forms part of estate - where property forms important part of widow's and deceased's shared lives. SUCCESSION - family provision and maintenance - notional estate - interrelation of question whether a notional estate order should be made and whether family provision order should be made - moral obligation to make adequate provision held not to outweigh moral obligation to widow -order made in relation to property acquired only for investment purposes.

CRIMINAL LAW - APPEAL AGAINST CONVICTION - money laundering - (s 400.3(1) Criminal Code (Cth)) - dishonestly obtain gain from Commonwealth (s 135.1(1) Criminal Code (Cth)) - money laundering involving creation and misuse of offshore structure - dishonest obtaining offence involving deception of accountants and lodgement of false tax return - failure to declare capital gain - share swap designed to hide capital gain - transfer of legal ownership of shares with retention of the beneficial ownership - whether there was evidence to support the first charge - whether trial judge correctly refused verdict by direction - whether the shares involved in the transaction were intended by the offender to facilitate the commission of an offence - meaning of "used to facilitate" - whether facts capable of constituting money laundering offence - whether trial judge failed to give essential directions - whether a miscarriage of justice occurred - whether verdicts were unreasonable - whether capital gains event occurred in relevant financial year or later. CRIMINAL LAW - SENTENCE APPEAL - not guilty plea - grossly understated capital gain in false tax return - separate criminality in each of two related offences - loss to revenue of at least $1.9 million in capital gains tax - assessment of overlapping criminality - whether sentencing judge erred in assessment of criminality - whether totality principles correctly applied - whether sentences imposed reflected double punishment - substantial aspects of criminality in each offence - need for substantial sentences for each offence - importance of general and special deterrence in revenue avoidance offences - whether sentences were appropriately accumulated - whether good character overlooked - whether facilitation of the course of justice overlooked - whether sentences were manifestly excessive.

CRIMINAL LAW - sentence - manslaughter and affray - melee between rival motorcycle club members at airport - deterrence and denunciation - conviction after trial for affray - subsequent plea of guilty to manslaughter - favourable subjective case - special circumstances

VALUATION OF LAND - Valuation of Land Act 1916 - land value - heritage listed building - assumptions - same building but new - increase cost of construction - relevance.

PROCEDURE - finality of judgment amount

EQUITY - agent with control over trust property - removal of trust funds EQUITY - priority and notice - notice EQUITY - implied trusts - constructive trusts - knowing receipt EQUITY - trusts and trustees - following trust property EVIDENCE - burden of proof, presumptions, and weight and sufficiency of evidence - failure to give evidence where party choses not to defend the case - inferences to be drawn

COSTS - indemnity costs - offer of compromise or Calderbank letter; where - compliance with UCPR - reasonableness of rejection

PROCEDURE - civil - pleadings - further application to amend statement of claim - allege additional representations on same evidence - whether add anything to current pleadings - whether general assertions of fact are sufficient particulars - whether pleadings ambiguous and confusing - where amendments do not require new large factual enquiries - necessary to plead facts giving rising to duty to speak to plead negligent conduct by silence. TRADE AND COMMERCE - competition, fair trading and consumer protection - misleading and deceptive conduct - difference between representation as to future and representation of opinion about future.

CONTRACTS - Construction - Implied terms - Whether a lease contained implied term extending owner's consent to development application to performance of work the subject of development application. CONTRACTS - Breach of contract - Whether alleged breaches established.

APPEAL - civil - pursuant to of s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 - error of law

PRACTICE AND PROCEDURE - whether process of the Dust Diseases Tribunal can be served outside of Australia - procedure for serving process of the Dust Diseases Tribunal outside of Australia - transfer of proceedings - distinction between the right to serve outside jurisdiction and the jurisdiction to transfer proceedings to another court PRIVATE INTERNATIONAL LAW - stay of proceedings - choice of law - whether the Dust Diseases Tribunal is an inappropriate forum - factors in favour of, and against the Dust Diseases Tribunal being an inappropriate forum

PRACTICE AND PROCEDURE - interrogatories - whether email is privileged - whether further discovery required

LIMITATION PERIOD - victim of sexual abuse by step-father - action against State of NSW and Department of Youth & Community Services case worker - failure to report abuse to Police - claim of breach of duty - whether suspension of limitation period due to disability - whether extension of time should be granted - ss 52, 60G and 60I of the Limitation Act 1969

LIMITATION PERIOD - victim of sexual abuse by step-father - action against State of NSW and Department of Youth & Community Services case worker - failure to report abuse to Police - claim of breach of duty - whether suspension of limitation period due to disability - whether extension of time should be granted - ss 52, 60G and 60I of the Limitation Act 1969

COSTS - particular components - whether should be excluded from general costs order - whether matter for Court or Assessor

CRIMINAL LAW - application for leave to appeal against sentence - break, enter and steal - sentence accumulated upon sentences for other offences - effective non-parole period more than 75% of aggregate sentence - not an oversight by sentencing judge - no error

Criminal law - sexual assault - inconsistency of verdicts - rule in Browne v Dunn

CORPORATIONS - Corporations Act 2001 (Cth) s 459G - Application to set aside statutory demand - whether affidavit accompanying application to set aside the demand discloses facts showing a genuine dispute - putting a creditor to proof of its claim does not amount to showing a genuine dispute - proceedings dismissed

[JUDGES] - where trial judge is unable to complete hearing of proceedings - where numerous judgments - incomplete part-heard application to re-open findings in judgments and to allow re-opening of cases to call additional evidence previously allegedly unavailable to the parties - where parties do not consent to procedure to be adopted in the circumstances - application for declarations and orders to be made by another judge pursuant to process adopted in Smartec Capital Pty Ltd v Centro Properties Ltd & Anor (2011) ACSR 461 and Smartec Capital Pty Ltd v Centro (CPL) Limited & Anor [2011] NSWSC 644. [FRESH TRIAL] - whether there should be a fresh trial under s 88 of the Civil Procedure Act 2005 - nomination by "senior judicial officer" that the proceedings be listed for trial before "some other judicial officer" of the Court. [PROCEDURE ON FRESH TRIAL] - nature of directions in relation to evidence at fresh trial - consideration of procedure in context of history of the proceedings and the overriding purpose of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005.

CORPORATIONS - Winding up - statutory demand - Court lacks jurisdiction to set aside statutory demand where application to set aside and supporting affidavit not filed and served within time - Whether offsetting claim established.

REAL PROPERTY - claim for possession of land and monetary judgment - mortgage default - claim by Defendant that lender owed borrower a duty of care and duty breached - claim by Defendant of unconscionability and claim for relief under Contracts Review Act 1980 - Plaintiff establishes entitlement to relief - claims by Defendant rejected - judgment for Plaintiff

CONFISCATION - application for proceeds assessment order under Criminal Assets Recovery Act 1990 - whether Defendant had engaged in serious crime-related activity - obtaining financial advantage by false or misleading statement contrary to s.178BB Crimes Act 1900 - provision of false employment documents in support of loan application - proper foundation for order established - assessment of order - evidence of Defendant's expenditure over six-year period - onus on Defendant under s.28(3) to establish that expenditure was funded from sources unrelated to an illegal activity or activities - Defendant fails to discharge onus - quantum of order calculated under s.28(3) - order made

MORTGAGE - account of moneys secured by mortgage - no question of principle

ADMINISTRATIVE LAW - privacy - disclosure of personal and health information - ADT review of internal review of conduct - appeal to Appeal Panel on questions of law - whether Appeal Panel erred in not extending appeal to review of merits - Privacy and Personal Information Protection Act 1998, ss 52, 53 and 55 - Health Records Information Privacy Act 2002, s 21 ADMINISTRATIVE LAW - delay in provision of information - meaning of "excessive delay" COSTS - whether error in exercising discretion to award costs - Administrative Decisions Tribunal Act, s 88(1A)

REAL PROPERTY - Torrens Title - caveat against dealings - application for extension of caveat - Real Property Act 1900, ss 74K and 74J - whether caveatable interest

PROCEDURE - costs - application for costs on an indemnity basis - conduct of first defendant considered - failure to accept a Calderbank offer PROCEDURE - costs - consolidated proceedings - whether costs of plaintiff in pursuing Registrar General and defending cross claim of ex-wife should be ordered to be paid by solicitor found liable to plaintiff - whether plaintiff could recover his costs from Registrar General notwithstanding Registrar General's success on defence under s 129(2)(b) Real Property Act 1900

PRACTICE AND PROCEDURE - professional negligence claim - further application by Defendants to amend Defence - leave refused

CRIMINAL LAW - sentencing - accessory after the fact to murder - offender in fear of his safety from violent co-offender - period in custody served on remand - sentenced to term of imprisonment equating to time served

EQUITY - equitable compensation - misappropriation of funds - employer and employee - unauthorised payments - whether misappropriated funds used by employee for benefit of employer

COSTS - power to make costs order - no power to order costs under s 76 of Civil Procedure Act 2005 in proceedings that included charges of criminal contempt - power not impliedly conferred by Pt 55 of Supreme Court Rules - s 257C of Criminal Procedure Act 1986 not applicable to summary proceedings in court's inherent jurisdiction for contempt - power conferred by s 23 of Supreme Court Act 1970 - costs order made

CONTEMPT OF COURT - sentencing - findings of fact relevant to defendant's motives for breaching court orders - sentencing considerations addressed - community service ordered

Evidence - invalid search warrant

CRIMINAL LAW - appeal against sentence - whether sentencing judge erred in finding the applicant's prospects of rehabilitation were neutral - whether sentencing judge engaged in speculation as to the source of the money and fell into error - whether sentencing judge undervalued the onerous nature of the Criminal Justice Visa and life of the applicant since the date of charging - whether sentence imposed was too severe

CRIMINAL LAW - Crown appeal - sentencing - conspiring to defraud the Commonwealth - plea of guilty - manifestly inadequate sentence -- quantum of defalcation - assessment of objective criminality - Intensive Correction Order - s 5D Criminal Appeal Act 1912 - s 16G Crimes Act 1914 (Cth) - s 17A Crimes Act 1914 - s 19AC Crimes Act 1914 - s 19AD Crimes Act 1914 - s 20 Crimes Act 1914 - s 21E Crimes Act 1914 - s 29B Crimes Act 1914 - s 29D Crimes Act 1914 - s 86 Crimes Act 1914 - s 7 Crimes (Sentencing Procedure) Act 1999 (NSW) - s 135 Criminal Code 1995 (Cth) - s 68A Crimes (Appeal and Review) Act 2001 (NSW) - tax evasion - taxation offences - social security fraud - white collar crime - principle of totality

CRIME - Appeal - conviction - aggravated sexual assault - whether the jury verdict was unreasonable - SKA v R. CRIME - Appeal - sentence - whether the sentence was manifestly excessive - utility of sentencing statistics.

APPEAL - civil - application to strike out summons seeking leave to appeal against interlocutory order - whether summons to be rendered otiose by appeal against final judgment - whether application to strike out should be stood over

PRACTICE AND PROCEDURE- trial judge refuses adjournment, proceeds and finds a verdict for $189,000- Defendants appeal solely on ground that adjournment wrongly refused- Appellants seek to set aside judgment accordingly- Held interlocutory decision affected final result- appeal competent.

EQUITY - trusts and trustees - misappropriation of trust funds by co-trustee INTEREST - equitable right to interest - compound interest appropriate where trustee has misappropriated trust money for his own purposes

COSTS - consent orders for payment of legacy and costs - agreement that estate asset be sold - asset not sold and legacy not paid - legacy paid after application brought for revocation of grant and consequential orders to seek to give effect to agreement for compromise - costs follow the event - plaintiff substantially successful in obtaining the relief sought

CORPORATIONS - s 461 Corporations Act 2001 (Cth) - plaintiffs seeks validation of orders on just and equitable grounds - s 601AH Corporations Act 2001 (Cth) - liquidator appointed in circumstances where plaintiff has a money judgment against the defendant which was deregistered for non-compliance with its statutory obligations and its sole director is deceased

PRACTICE AND PROCEDURE - professional negligence claim - directions a month before trial for filing of amended pleadings - Plaintiff complies with direction - Defendants do not and file pleading out of time shortly before trial - Defendants' pleading goes beyond terms of direction - application by Defendants at trial to rely on amended pleading - associated application by Defendants to call as a witness former wife of Plaintiff - very late notice of application - no statement or affidavit of former wife served - leave refused to rely at hearing on contested amendments

EQUITY - equitable remedies - father gifts title to his residence to a daughter and son-in-law, retaining only a life estate - transferees provide no consideration - whether the plaintiff is under a special disability - whether defendants guilty of unconscionable conduct - whether gift should be set aside.

Dispute over purported loan agreements. Evidence Act - s 69 business records - s 136 general discretion to limit use of evidence. Real Property Act - s 74P - caveat lodged 'without reasonable cause'. Damages - trespass - illegal dumping of materials.

CIVIL - complex and intertwined litigation history between parties - Order for costs in favour of one party stayed until further order - Certificates of costs issued - Deed of release entered - Costs certificates later registered as judgment in supreme court - Whether the stay on the execution of the orders for costs until further order subsists - Costs assessor not a judicial officer - Issuing of costs certificates does not amount to further order of Supreme Court - Construction of deed of release

COSTS - Statutory demand - Whether the Defendant should pay the Plaintiff's costs after statutory demand set aside by consent

PROCEDURE - motion - orders sought under s 73 of the Civil Procedure Act 2005 - proper construction of consent orders - possession - non-compliance with order - whether consent orders were ambiguous - orders not ambiguous - breach of order - costs

CRIMINAL LAW - appeal - conviction - unreasonable verdict - unsupported by the evidence - circumstantial evidence - circumstantial evidence to be considered as a whole -reasonable doubt on independent assessment of the evidence - jury advantage in hearing evidence insufficient to resolve reasonable doubt. CRIMINAL LAW - appeal - conviction - identification evidence - probative value - "displacement effect" - appropriate directions - whether evidence of similar appearance is identification evidence. CRIMINAL LAW - appeal - conviction - expert evidence - identification and proof of assumptions by admissible evidence - qualification of expert - weight to be given to expert evidence. CRIMINAL LAW - appeal - conviction - expert evidence - breach of Expert Witness Code of Conduct - whether breach of Expert Witness Code of Conduct goes to admissibility or weight - discretionary exclusion of evidence of expert who breaches Code of Conduct. CRIMINAL LAW - appeal - conviction - evidence - admissibility - relevance. CRIMINAL LAW - appeal - conviction - whether a conclusion of fact is an indispensable intermediate fact - need for a Shepherd direction - Shepherd direction not required. CRIMINAL LAW - appeal - conviction - whether trial miscarried because of prejudice occasioned by the Crown prosecutor - prosecutor's duty of fairness - whether prosecutor breached trial judge's ruling - whether prosecutor invited jury to invert the onus of proof - whether prosecutor impermissibly gave personal opinions - whether prosecutor misrepresented evidence - whether prosecutor failed to adhere to case theory. CRIMINAL LAW - appeal - conviction - joint criminal enterprise - need for evidence of enterprise and participation by the accused. CRIMINAL LAW - evidence - lack of evidence to support motive - dangers of inviting speculation as to motive - whether unfair prejudice occasioned. CRIMINAL LAW - new and fresh evidence - evidence not disclosed by prosecution at time of trial.