Cases and authorities

CRIMINAL LAW - sentence - assault occasioning actual bodily harm - entering or remaining in a dwelling with intent - sentencing process - sentences not excessive

PRACTICE AND PROCEDURE - application to withdraw admission in pleadings - whether admission wrongly or inadvertently made - necessity for evidence that admission wrongly or inadvertently made - absence of evidence from party (a solicitor) who verified pleadings as to actual facts and circumstances in which pleading containing admission twice verified by him - leave refused

CRIMINAL LAW - Sentence - Manslaughter - excessive self-defence - affray involving two groups of young people - single stab wound - no intention to kill - strong subjective circumstances - discount for offering to plead guilty

APPEAL - CRIMINAL LAW - Alleged disparity between co-offenders - principles discussed - no justifiable sense of grievance, objectively determined - appeal dismissed.

PRACTICE AND PROCEDURE - cross-defendants (plaintiffs) seek leave to amend on the morning of the hearing because their legal advisors failed to plead a defence to the cross-claim, of which they were aware - amendment would necessitate an adjournment - matter finely balanced - proceedings adjourned with indemnity costs order

PRACTICE AND PROCEDURE - operation of slip rule - Uniform Civil Procedure Rules 2005 (NSW) rule 36.17 - whether amendment to the date from which interest calculated falls within the operation of the slip rule - HELD - not within scope of slip rule PRACTICE AND PROCEDURE - reopening of hearing - whether interests of justice require reopening of issue - where no suggestion that material previously unavailable - HELD - proper basis for reopening hearing after judgment not established COSTS - offer of compromise - whether genuine element of compromise where offer of compromise by plaintiff gave up claim to interest on the principal sum claimed - HELD -offer involving genuine element of compromise and not derisory nor mere offer for defendant to surrender - order for indemnity costs granted COSTS - Calderbank offers - basis for special costs sanctions being whether offeree's failure to accept offer in all the circumstances warrants departure from ordinary rule as to costs - where Calderbank offer by plaintiff gave up claim to both interest and costs - had issue arisen finding would have been that it was unreasonable for defendants to reject offer

DEFAMATION - defences - honest opinion - qualified privilege - adequacy of particulars

CONFLICT OF LAWS - stay of proceedings - anti-suit injunction granted in Singapore - whether New South Wales is forum non conveniens - whether duplication of proceedings is vexatious or oppressive - whether commencing or continuing proceedings in New South Wales amounts to an abuse of process - whether enforceability of foreign judgment where non-monetary relief sought relevant to granting a stay CONFLICT OF LAWS - stay of proceedings - principles of comity - where New South Wales proceedings commenced in breach of anti-suit injunction granted in Singapore - foreign anti-suit injunction a factor to be taken into account when exercising discretion to grant stay but not determinative CONFLICT OF LAWS - choice of law - tort - misrepresentation - cross-border communications over telephone - law of jurisdiction where communication reasonably expected to be received is proper law of the misrepresentation PROCEDURE - issue estoppel - foreign judgment as basis of estoppel - estoppel said to arise from finding in Singapore regarding question of forum non conveniens - different legal test for forum non conveniens in Singapore and Australia - precise identification of the legal issue - no issue estoppel in relation to forum non conveniens question - issue estoppel in relation to finding by Singapore court whether New South Wales proceedings vexatious and oppressive

APPEAL - appeal from the Local Court - questions of law - questions of mixed law and fact - discretion to allow appeal where there are questions of mixed law and fact - procedural fairness - advantages enjoyed by first instance decision makers

APPEAL FROM LOCAL COURT - appeal against decision not to set aside consent judgment - plaintiffs' claim they did not consent to judgment - whether solicitor for plaintiffs acted without clients' authority - whether ostensible authority to compromise matter sufficient - appeal dismissed

CRIMINAL LAW - appeal - sentencing - assault with intent to rob whilst in company, with wounding - whether manifestly excessive CRIMINAL LAW - appeal - sentencing - whether inappropriate reference to standard non-parole period - whether proper consideration given to principles in Children (Criminal Proceedings) Act 1987 (NSW), s 6 CRIMINAL LAW - appeal - sentencing - assault with intent to rob whilst in company, with wounding - parity between co-offenders

APPEAL - criminal - withdrawal of plea - adequacy of evidence regarding legal advice - prosecutor's duty in accepting that plea - followed incorrect legal advice CRIMINAL LAW - appeal - conviction based on plea of guilty - recklessly cause grievous bodily harm, Crimes Act 1900 (NSW), s 35(2) - application to withdraw plea of guilty on basis of incorrect legal advice - whether miscarriage of justice - considerations when defence lawyer has acted incompetently

CRIMINAL LAW - crown appeal - sentencing - plea of guilty - principle of totality - non-parole period - period of parole - s 5D Criminal Appeal Act 1912 - s 319 Crimes Act 1900 - s 44 Crimes (Sentencing Procedure) Act 1999 - s 50 Crimes (Sentencing Procedure) Act 1999 - s 51 Crimes (Sentencing Procedure) Act 1999 - intent to pervert the course of justice - driving whilst disqualified - variation of bail - letter of forgery

CRIMINAL LAW - crown appeal - sentencing - sentencing guidelines - plea of guilty - dangerous driving occasioning death; dangerous driving occasioning grievous bodily harm - s 5D Criminal Appeal Act 1912 - s 52A Crimes Act 1900 - s 12 Crimes (Sentencing Procedure) Act 1999 - s 44 Crimes (Sentencing Procedure) Act 1999 - s 166 Criminal Procedure Act 1986 - objective criminality of offences - moral culpability - objectives of sentencing - consideration of deterrence - provisional driving licence - licence disqualifications - drugs - alcohol - vehicle restrictions

Variation of Order withholding part of Special Purpose Liquidator's remuneration - no issue of principle

TRUSTS - Trustees - Judicial advice under Trustee Act 1925 (NSW), s 63(1) - Charitable Trust - Entitlement of trustee to advice on whether to seek instructions and obtain legal advice as to the prospects of success of defending proceedings

Application for disqualification - no questions of principle.

PROCEDURE - application by plaintiff to reopen its case in reply - whether in the interests of justice - leave refused

APPEAL - civil - leave to appeal - costs assessment - whether consent orders raise an issue estoppel to preclude right of appeal under Legal Profession Act 1987 (NSW), s 208L APPEAL - civil - discretionary orders - application for leave to appeal from decision refusing to exercise discretion not to apply issue estoppel - whether any real prospect of success COSTS - assessment - solicitor-client - conditional costs agreement - entitlement of solicitor to recover costs in circumstances where solicitor terminates retainer - whether entitlement subject to a requirement of termination for just cause or on reasonable grounds

SUCCESSION - Wills - Succession Act 2006 (NSW) s 27 - Application for rectification of Will - Whether Will gives effect to the testator's intention - Whether Will should be rectified.

SUCCESSION - Family provision - Satisfaction of the Court as to whether consent orders should be made.

PRACTICE AND PROCEDURE - Application for adjournment raised in correspondence refused - no question of principle MORTGAGES - Discharge of mortgage - principles of subrogation referred to REAL PROPERTY - application to reject and cancel unregistered dealings pursuant to s138(3) Real Property Act 1900 - transfer of mortgage and change of name - no opposition to order that the Registrar-General reject the registration of the transfer of the mortgage REAL PROPERTY -practice and procedure - powers of the Registrar-General to reject and cancel unregistered dealings pursuant to s138(3) Real Property Act 1900 - no power to order the Registrar-General to cancel unregistered dealings - orders made to ensure correct recording on the register

JUDGMENTS - setting aside - defence based on Contracts Review Act 1980 - whether loan for business purposes - defence of unconscionability - asset-based lending - satisfactory explanation for failure to file defence - judgment set aside.

PROCEDURE - Cross-vesting legislation - Application to transfer proceedings to the Supreme Court of Tasmania - whether transfer "in the interests of justice" - balancing interests of plaintiff, defendant and public

CONTRACT - for sale of land - termination - breach - whether plaintiff validly served notice to complete on defendant - whether at time of service of notice plaintiff was in breach DAMAGES - contract - assessment of damages - whether plaintiff failed to mitigate loss.

PROCEDURE - separate question - plaintiff's application to reopen following judgment - whether interests of justice favour reopening for purpose of admitting new material - whether new material likely to produce different result in any event - application dismissed

CRIMINAL LAW - Penalty notice for red traffic signal offence - Proceedings dismissed in Local Court as no prima facie case established - Denial of procedural fairness - Magistrate peremptorily refused to permit prosecution to call two police witnesses - Error of law in ruling prosecution had not established prima facie case - Statements that witness evidence is unreliable without analysis as to why does not discharge judicial obligation to give reasons - Order dismissing proceedings set aside and new hearing before new magistrate ordered

TRUSTS AND TRUSTEES - Charitable trusts - church trust - trust property - where certain property held by trustees to permit its use by unincorporated association as a church of the Macedonian Orthodox Religion - whether income generated by church and parish activities is trust income - whether other property acquired with trust income is held upon same trusts. ASSOCIATIONS AND CLUBS - Incorporated associations - where property held by trustees to permit its use by a predecessor unincorporated association as a church of the Macedonian Orthodox Religion - where constitution of successor incorporated association provides that funds of association shall be applied to carry out the objects of the association - whether legislation and constitution impedes acquisition by incorporated association of further property on same trust. TRUSTS AND TRUSTEES - Charitable trusts - church trust - whether certain provisions of church law were sufficiently fundamental to be terms of trust. TRUSTS AND TRUSTEES - Breach of trust - defence of proceedings brought against trustee - whether resort to trust assets to fund defence is breach of trust. LIMITATIONS - Breach of trust - charitable trusts - whether claim by plaintiffs suing not for the benefit of the public at large but by virtue of special interest in enforcing the trust is "an action on a cause of action in respect of a breach of trust" accruing to a plaintiff within Limitation Act, s 48(a). TRUSTS AND TRUSTEES - Rights of trustees - Judicial advice - where advice obtained irrelevant to breaches established. TRUSTS AND TRUSTEES - Excusable breaches - whether trustee ought fairly to be excused for omitting to obtain the direction of the Court in the matter in which the trustee committed the breach - where trustee did not believe that it was a trustee - whether trustee ought fairly to be excused for the breach of trust - relevant considerations - whether trustee has acted honestly and reasonably - where breaches involved repudiation of sworn promise to adhere to church law and to knowledge of trustee could achieve no religious purpose. TRUSTS AND TRUSTEES - Charitable trusts - accessorial liability - whether mere engagement in conduct causative of breach attracts accessorial liability - necessity for consciousness of those elements of the transaction which make participation transgress ordinary standards of honest behaviour - where breaches involved repudiation of sworn promise to adhere to church law and to knowledge of trustee could achieve no religious purpose.

CONTRACTS - Interpretation - plaintiff's predecessor grants defendant licence to exploit intellectual property at its facility in consideration of royalties charged on certain income from facility - whether defendant is obliged to pay royalties in respect of a number of disputed categories of income - whether defendant has complied with its obligations to provide plaintiff with detailed monthly statements as to the calculation of royalty payments and to keep proper books of account and records of activities undertaken by it at the Facility. CONTRACTS - Waiver - whether plaintiff has waived its right to royalty payments. EQUITY - Remedies - Account - whether an account should be ordered.

Proceedings brought by Plaintiff against her former de facto partner seeking an adjustment of property interests under the Property (Relationships) Act 1984 - Extent and evaluation of financial and non financial contributions - Allegation of family violence - Allegation of hidden property - Costs - Each of the parties appeared unrepresented

EQUITY - application for the taking of accounts - fiduciary duty - duty to pay expenses and care for the deceased - authority from deceased to withdraw moneys from the account for maintenance and care - control of money in the account - admitted use for personal benefit - no intended obligation to account - no failure in duties to deceased - application for the taking of accounts dismissed EQUITY - application for the taking of accounts - authority to draw from the account for own purposes revoked on death of deceased - requirement to account for moneys to be restored to the estate - account for restoration to estate subject to any entitlement to credit

COSTS - costs in probate action - consent to dismissal of claim to rectify will - proceedings not reasonably commenced - costs to follow the event

PROCEDURE - suppression orders - order necessary to protect the safety of any person - threat to safety allegedly because of increased media interest in litigation - Interim suppression orders

Defendant seeks an order that his costs be paid by the Plaintiff - Plaintiff submits that she should have her costs out of the estate, or alternatively, there should be no order as to her costs of the proceedings - Plaintiff does not dispute that Defendant should receive his costs of the proceedings, such costs to be calculated on the indemnity basis

PRACTICE AND PROCEDURE - security for costs - surplus funds after first mortgagee exercises power of sale paid into court - competing claimants under Real Property Act, s 58(3) to funds in Court - whether one claimant to the fund should have security for costs against another claimant to the fund, a company in liquidation.

SUCCESSION - adult daughter's application for order for provision out of time - extension of time - factors relevant to exercise of discretion to grant extension of time - plaintiff's need significant - modest estate - whether order for provision should be made - turns on facts - no question of principle

CRIMINAL LAW - Appeal against conviction - sexual assault - Crimes Act 1900 s66C - whether miscarriage of justice - whether trial judge erred in failing to adequately direct the jury in relation to the appellants silence or inaction in response to allegations - whether trial judge erred in failing to adequately direct the jury regarding the circumstances in which the appellants silence or inaction could be used as evidence of consciousness of guilt - whether trial judge erred in failing to adequately direct the jury in relation to the submission by the prosecutor to discount the whole of the appellants evidence due to silence or inaction - implied admissions - evidentiary significance of post offence conduct - directions by trial judge where there may be risk of a misunderstanding on the part of a jury - appeal allowed - conviction quashed.

Proceeds of Crime - No question of principle

PRACTICE AND PROCEDURE - application to set aside a consent order - whether judgment given against good faith - whether sufficient cause to set aside order

CONSTITUTIONAL LAW - implied freedom of communication on matters of government and politics - power to order preliminary discovery under rule 5.2 of the Uniform Civil Procedure Rules 2005 - whether rule 5.2 authorises orders in respect of the identity of a confidential source who has provided information to a journalist for use in a publication about government or political matters - whether the newspaper rule is of absolute effect in protecting the journalist against such an order in the case of communication on matters of government and politics PRACTICE AND PROCEDURE - preliminary discovery - publication amounting to communication on matters of government and politics - alleged defamation of plaintiff - plaintiff seeking identification of journalists' confidential sources - where journalists alleged to have been provided with forged documents - whether discretion enlivened - discretionary factors

ORDERS - Final orders reflecting reasons for judgment in The City of Sydney v Streetscape Projects (Australia) Pty Ltd EVIDENCE - decision on admissibility of proposed tender by defendants.

DEFAMATION - pleading - plaintiff's application to further amend statement of claim - proceedings to be tried by jury - contextual truth defence - whether plaintiff should be permitted to amend to "plead back" the contextual imputations - whether amendment necessary for determination of the real questions in the proceedings - whether unjust to permit amendment

Applications by de facto partners under Property (Relationships) Act 1984 - whether orders to be made to adjust property interests of the parties - assessment of financial and non-financial contributions - turns on facts - no questions of principle

COSTS – assessment- where plaintiff seeking order for itemised bill – s 332A of Legal Profession Act

PRACTICE AND PROCEDURE - application for adjournment of proceedings -whether to grant adjournment pending appeal against refusal of grant of legal aid - whether special circumstances established pursuant to s 57 of the Legal Aid Commission Act 1979

CORPORATIONS -Corporations Act 2001 (Cth) s 459A winding up in insolvency - no issue of principle

PROCEDURE - pleadings - further application to amend - equitable unconscionability - special disadvantage - Business Purposes Declaration signed - effect for pleading - further pleadings allowed.

PROCEDURE - civil - interlocutory issues - Mareva order - appellate jurisdiction - freezing order granted at first instance to now appellant - appellant unsuccessful at trial - appellant seeking new freezing order pending hearing of appeal - power of Court of Appeal to grant Mareva orders under UCPR 25.14 - considerations in granting Mareva order to appellant unsuccessful in court below - refusal to give undertaking not in itself evidence of actual or threatened diminution of assets - orders refused

PRACTICE AND PROCEDURE - application to set aside orders for security for costs and to strike out statement of claim with only limited leave to replead - rule 36.15 of the Uniform Civil Procedure Rules - submitted that judgment was given irregularly, illegally or against good faith - plaintiff alleged procedural unfairness, bias or reasonable apprehension of bias, and errors in judgment - held judgment could only be set aside on appeal - substance of complaints considered