Cases and authorities

Application to set aside default judgment

CRIMINAL LAW - sentence - riot - affray - violent fight between rival bikie gang members at airport - serious examples of offences - conviction after protracted trial - acquittal for murder and manslaughter - offer to plead guilty rejected by prosecution - deterrence - special circumstances - parity with co-offenders

CRIME - sentence - murder - escaping from lawful custody

PROCEDURE - UCPR 6.24 - joinder of proper or necessary party

Costs of proceedings - Successful plaintiff, who was self represented, seeks costs from the Defendant, including the costs of the costs application as agreed or as assessed on the ordinary basis - Plaintiff submits that there should be no order for the Defendant's costs of the proceedings

PROCEDURE - notice of motions - plaintiff's motion seeking to re-open 1964 proceedings - recovery of money and other orders sought - orders not made - defendant's motion seeking to strike out plaintiff's motion - motion struck out - pleadings to be put in proper form - leave granted to file amended pleadings - costs

GUARANTEE AND INDEMNITY - enforcement of guarantees - whether bank entitled to judgment in accordance with guarantees - whether defendants prevented from exercising or claiming any set off in accordance with guarantees - whether cross-claimants have any right to damages pursuant to guarantees - assessment of market value - whether bank breached obligation to exercise power of sale in good faith in accordance with s 420A Corporations Act 2001 (Cth) - whether bank engaged in unconscionable conduct within the meaning of ss 12CA, 12CB and/or 12CC of the ASIC Act 2001 (Cth)

Appeal from decision granting leave to file amended defence - withdrawal of admissions - appeal from order to pay costs - error in exercise of judicial discretion - denial of procedural fairness

Criminal law - sentencing - manslaughter - unlawful and dangerous act

PRACTICE AND PROCEDURE - Interlocutory injunction - Application for interlocutory injunction to prevent termination of licensing agreement - Whether there is arguable case - Balance of convenience. CONTRACT - Termination of contract - Interpretation of notice of termination - Termination without cause pursuant to contractual right - Interpretation of notice period. CONSUMER LAW - Unconscionable conduct - Termination of contract with indefinite term - Application of Franchising Code of Conduct - Terminating party's obligation to give reasons for termination under clause 22 of the Franchising Code of Conduct

COSTS - indemnity costs - where offer of compromise or Calderbank letter - applicants seek leave to cross appeal against costs orders in Court below - where primary judge ordered costs on the usual basis despite Calderbank offer - applicant argued that a correct exercise of the discretion would have resulted in an award for indemnity costs in its favour - consideration of Jones v Bradley (No 2) - insufficient reason to interfere with primary judge's exercise of discretion - leave refused

ADMINISTRATIVE LAW - error of law on the face of the record - inadequacy of reasons - application of Motor Accidents Compensation Act 1999 (NSW) s 126 to obligation to provide reasons DAMAGES - torts - negligence - motor vehicle accident - future economic loss - damages for future domestic assistance on a commercial basis - whether finding that future domestic assistance will be obtained on a commercial basis is required DAMAGES - torts - negligence - motor vehicle accident - future economic loss - use of buffer - whether precluded by Motor Accidents Compensation Act 1999 (NSW) s 126

APPEAL - civil - application for leave to appeal from refusal to allow amendment - issues raised following interim report of referee - referee's final report provided but not yet adopted PROCEDURE - civil - application to amend - leave sought after hearing before referee

COSTS - Indemnity costs - Whether Plaintiff should pay Defendant's costs on an indemnity basis where proceedings were objectively certain to fail.

PROCEDURE - road accident - Council roadworks - whether evidence of the fact and detail of a car accident involving another driver on the same stretch of roadway is admissible - relevance of evidence

EQUITY-Oral promise that "everything is yours"-Proprietary Estoppel by encouragement-Reasonable reliance-Detriment-Loss of chance-Constructive trust-Revocability of promises-Appropriate remedies-Proceedings concerning dispute between father and son over real property-Son claiming father promised a property to him-Whether promise proven and if so whether the son prejudiced in reliance upon this promise

PRACTICE AND PROCEDURE - application to strike out statement of claim and for summary dismissal of proceedings - no pleading in accordance with UCPR - statement of claim does not disclose any reasonable cause of action - delay in prosecuting proceedings - proceedings dismissed

PRACTICE AND PROCEDURE - Variation of interlocutory orders - Error in original order - Court's power to vary. REAL PROPERTY - Strata title - Power of agent appointed under s 162 of Strata Schemes Management Act 1996 to make certain resolutions without consent of individual lot owner

CRIMINAL LAW - appeal - sentence - application for leave to appeal - whether sentencing judge erred in finding that offence was "at least in the middle of any scale" - where offence involved remaining on premises with weapon with intent to intimidate victim - finding of sentencing judge in relation to objective seriousness was open - whether sentence was manifestly excessive - where offence committed in breach of ADVO - where there was history of domestic violence perpetrated against victim - where applicant has serious criminal history - sentence not manifestly excessive - leave to appeal refused.

PLEADINGS - Strike out application - Request for further and better particulars SECURITY FOR COSTS - Claim that plaintiff not suing for own benefit, but for the benefit of some other person

CORPORATIONS - winding up - application for termination of winding up pursuant to s 482 Corporations Act 2001 (Cth) - where solvency of company disputed and contingent on outcome of pending proceedings in Common Law division as to whether respondent to present application is creditor (or debtor) of the company - considering public interest against insolvent or potentially insolvent companies re-entering commercial world - where commercial reality is that company in a position to meet its day-to-day debts but would potentially be insolvent if debt claimed by respondent is established - where undertaking proffered to preserve position pending outcome of other proceedings - winding up order stayed pending judgment in Common Law proceedings

[PRACTICE & PROCEDURE] - Application at the conclusion of the proceedings to amend Defence - adequacy of explanation for delay - whether plaintiffs' legal representatives would have made different forensic judgments if Defence had been amended earlier - impact on fair trial - whether proposed defence doomed to fail. [ACQUIESCENCE] - Nature of the doctrine - whether a "defence" - elements - actual knowledge of relevant conduct.

PRACTICE AND PROCEDURE - private international law - application to stay proceedings - whether New South Wales a clearly inappropriate forum - whether parties agreed to submit present disputes to exclusive jurisdiction of Australian courts - whether agreement containing exclusive jurisdiction clause valid under Romanian Law - where parties have agreed that courts of Australia shall have exclusive jurisdiction in respect of substantial parts of the dispute, New South Wales not a clearly inappropriate forum PRACTICE AND PROCEDURE - application to stay proceedings - where criminal prosecution pending in Romania - guidelines enunciated in McMahon v Gould (1982) 7 ACLR 202 applied - on the facts pendency of criminal investigation in Romania does not warrant stay of civil proceedings

DEFAMATION - offer to make amends - whether offer may limit time for acceptance - ss 15(1), 18(1) Defamation Act 2005

BANKING - whether oral contracts formed between bank and customer - bank placing money in term deposit rather than paying off principal of loan - whether bank employee had actual or ostensible authority - appropriate measure of damages APPEAL - new trial - new trial not ordered where respondent was entitled as a matter of law to succeed on the evidence led at first trial APPEAL - error of law - duty to give reasons - whether adequate reasons for findings - where failure to deal with issue, whether evidence such as to warrant remitting the matter for re-trial APPEAL - costs - where appeal successful on basis of argument first raised in oral submission but arguments in written submissions rejected INFERIOR COURT - Local Courts - appeal to Supreme Court - power to remit under s 41(1)(c) Local Courts Act - not exercised where error of law shown, but retrial would be futile

CHARITIES - Administration and Control by Court - declaration sought that land held on valid charitable trust and order sought that it be transferred to a sole trustee - whether declaration proceedings are "charitable trust proceedings" within definition in Charitable Trusts Act 1993, s 5(1) requiring the leave of the court to continue under s 6(1)(b) and s 6(2A) - whether separate question should be determined

MORTGAGES - Mortgages and Charges Generally - The Mortgage - bank took a mortgage over a flat in a company title building from the shareholder entitled to occupation - whether bank secured

Trusts - Trustees - Earlier successful application for judicial advice that trustee is justified in defending certain proceedings and using the resources of the trust for that purpose up to the close of evidence - Application for further judicial advice to cover the period until the conclusion of the proceedings.

PROCEDURE - defendants' application to recall witness for further cross-examination - where proceedings have been protracted - whether grant of leave would be likely to add unduly to the length of the hearing - whether grant of leave would be unfair to a party or witness - leave refused

MAA assessment - application for review - whether procedural unfairness by assessor of itself a ground to suspect material incorrectness - uncorroborated allegation of assessor's conduct during assessment - whether should be disregarded

CRIMINAL LAW - application for leave to appeal against sentence - offences of stealing from person - where the non-parole period of a sentence exceeds 75 per cent of the total sentence - whether the sentencing judge failed to properly consider the issue of special circumstances in the context of partially accumulating sentences

CRIMINAL LAW - application for leave to appeal against sentence - break, enter and steal offences on residential properties - whether adequate representation at sentencing - whether the sentence imposed was too severe - refusal by the Drug Court to follow the sentencing judge's recommendation that the applicant be accepted into a compulsory drug treatment program

PRACTICE AND PROCEDURE - civil - parties - no appearance or representation by defendant- matter disposed of in absence of defendant WILLS AND ESTATES - application for revocation of probate - executrix failure to adhere to agreement - due and proper administration of the estate being prevented by executrix's intransigence in meeting her obligations - not a fit and proper person to carry out duties of executrix WILLS AND ESTATES - letters of administration - appointment of administrator - leave reserved for related party to apply for probate at future date - Probate and Administration Act 1898 s 41.

CORPORATIONS - application by company and its liquidator under s 588FF of the Corporations Act 2001 (Cth) to recover tax paid as voidable transactions - Commissioner admits liability and seeks indemnity against directors under s 588FGA(2)

Motor Accidents Compensation Act 1999 - s 62 - delegation - reasons - Medical Guideline 14.8

LEGAL PRACTITIONERS - Appeal from refusal to issue certificate of compliance thereby denying readmission as a lawyer - Professional misconduct - Misappropriation of law society funds for personal use -Repaid after short period - Small amount - Two false sworn statements to ADT - Removed from roll in 2006 - Heavy burden on applicant to show fit and proper person - Whether applicant displaced original removal decision that probably permanently unfit - Contrition - Proper and adequate understanding of wrongness of earlier conduct - Court satisfied of future honest conduct - Diligent and high quality work as legal clerk - Support from legal practitioner peers - Stability of personal relationship - Applicant fit and proper person to be admitted - Certificate of Compliance of ought to have been issued

EQUITY - trustees - order for accounts - beneficiary of estate entitled to inspect accounts of estate EQUITY - trustees - powers - discretion to pay income out of the residuary estate to intellectually disabled beneficiary for advancement and benefit in life - discretionary power to be exercised in good faith - power includes discretion to defer payment of income WILLS AND ESTATES - administration - application for extension of time to bring proceedings under the Family Provision Act 1982 - proceedings brought by Office of the NSW Trustee and Guardian - applicant to show sufficient cause for the application not having been made within the prescribed period - delay not occasioned by the applicant personally - small estate - unexplained delays - previous litigation where present claim not made despite advice - prospects not strong - extension of time refused

EVIDENCE - legal professional privilege - issue waiver - whether party claiming privilege has acted inconsistently with maintenance of privilege - whether party put in issue its state of mind - whether contents of privileged documents relevant to state of mind were put in issue - whether claim for declaratory relief means that plaintiffs required to disprove reasonableness of refusal of consent - where understanding of legal rights unlikely to contribute to the party's state of mind in refusing consent - no assertion as to contents of privileged legal advice - no inconsistency with maintenance of privilege

PRACTICE AND PROCEDURE - Default judgment

PARTNERSHIP - dissolution - dispute as to share of partnership profits upon dissolution - turns on facts - no questions of principle

CRIMINAL LAW - Bail - Whether bail condition imposing requirement to submit to a breath test when requested by a police officer unlawful - Does not comply with legislative purpose - Does not promote effective law enforcement - Deterring breach of bail does not fulfill purpose of protection and welfare of community of specially affected person - Consequences of non-compliance with bail condition do not contemplate deterrence conditions - "Breath test" term vague and meaningless - More onerous than required - Unlawful

EQUITY - unconscionability - whether moneylender should be restrained from relying on guarantee because of unconscionable conduct - general law and statutory principles of unconscionability - EQUITY - fiduciary duty - where two persons undertake business venture - company formed to be their vehicle - company largely bypassed - one person assumes possession and control of all funds - whether fiduciary duty owed - whether fiduciary duty breached - PROCEDURE - orders - where breach of duty established but only relief expressly claimed is inappropriate - could should receive further submissions as to relief

CRIMINAL LAW - appeal - sentence - whether the trial judge failed to account for the fact that an offence could have been dealt with in the Local Court - determination of objective seriousness in circumstances where there is no standard non-parole period for an offence - whether the trial judge considered an irrelevant factor in determining objective seriousness - whether the total sentence reflected the criminality of the offences committed - leave to appeal against sentence refused.

APPEAL - application for leave to appeal - basis of stay pending appeal -applicant to show reasonably arguable case for leave PROCEDURE - civil - judgments and orders - refusal to disqualify for apprehended bias - stay sought pending appeal -whether applicant need identify an interlocutory order, other than a refusal to recuse - discussion of Michael Williams & Partners v Nicholls [2011] HCA 48; 282 ALR 685 PROCEDURE - civil - interlocutory issues - stay pending appeal - power of judge of appeal to make order directing that trial not proceed pending determination of appeal or order directing a stay in the Court below -Supreme Court Act 1970 (NSW s 46(2)

APPEAL AND NEW TRIAL - appeal - general principles - right of appeal - whether leave to appeal required - whether matter in issue amounting to $100,000 or more

PRACTICE & PROCEDURE - Felons Act 1981 - leave to commence proceedings - Summons for leave to appeal - pro bono legal assistance - application refused

[CONTRACT] - whether the parties' discussions amounted to a contract for the transfer of real property to the defendant - uncertainty as to timing and other arrangements - implications of terms - whether a term that the transfer would occur "within a reasonable time" should be implied. [PROPRIETARY ESTOPPEL] - whether promise made that if defendant funded and caused renovations to be made to the property it would be transferred to him- whether plaintiff encouraged to make renovations at his cost - whether plaintiff paid for and caused renovations to be made - detriment principles - whether plaintiff's change of position operates as a detriment in the light of defendant's denial that plaintiff is not entitled to the transfer of the property - whether defendant estopped from denying plaintiff's entitlement to transfer of property. [TRUSTS] - whether defendant promised plaintiff ownership of a Property if the plaintiff renovated the Property at his cost - whether plaintiff renovated Property at his cost - whether plaintiff entitled to a declaration of trust.

Estoppel - Equitable - Principles to be applied - Representations - Detriment - Unconscionable conduct - Whether compensation for expenditures should be granted.

PRACTICE AND PROCEDURE - pleadings - amendment - application to amend pleadings - whether issue sufficiently raised - whether issue raised too late in proceedings - exercise of discretion to grant amendment