Cases and authorities

WILLS, PROBATE AND ADMINISTRATION - application for revocation of reseal and grant of probate - where on executor and trustee suffering from ill health and not been able to assist in administration of estate - reseal of grant of probate revoked and fresh reseal made

Evidence; prior consistent statement

EQUITY - lien - general possessory lien - application for delivery up of goods - whether defendant entitled to general lien over goods that came into their control as security for prior debts - Supreme Court Act 1970, s 74 - where plaintiff clearly has title to goods - serious question to be tried that defendant entitled to general lien - delivery up of goods ordered subject to payment into court of amount of money in respect of which lien is claimed

WILLS AND ESTATES - Family Provision Act 1982 - application for provision order by deceased's child (by her tutor) - defendant the deceased's de facto at the time of death - applicant and defendant's child by the deceased both suffering health problems - small estate - application dismissed

CORPORATIONS - Judicial advice - Proposal to distribute surplus in superannuation fund

PRACTICE AND PROCEDURE - Whether reasonably arguable case is established for relief sought in Summons - Whether person associated with foreign company has standing to seek declaratory relief in respect of the company's rights

PROCEDURE - joinder - proceedings by companies under Corporations Act 2001 (Cth) s 411 concerning proposed schemes of arrangement between the companies and certain groups of their creditors - a creditor not within such a group foreshadows intention to object to approval of schemes - that creditor applies for joinder as a defendant and for order for discovery of certain documents by the companies - both orders made

CORPORATIONS - Whether second defendant acquired shares in first plaintiff as trustee of a trust the beneficiary and appointor of which was the controlling mind of the plaintiff companies - first defendant as director of second defendant said to have executed trust deed - first defendant disputes he executed trust deed - issues of fact and credit - where both protagonists unreliable, significant weight given to documentary record, source and application of funds, and commerciality - more probable explanation second defendant acquired shares as trustee of trust of which controlling mind of plaintiffs was beneficiary and appointor. TRUSTS - Whether second defendant validly and effectively replaced by second plaintiff as trustee of trust - controlling mind of plaintiff companies fabricates first defendant's resignation as director and purports to have second defendant resign as trustee - controlling mind of plaintiff companies not sole director and secretary and purported resignation ineffectual - pursuant to trust deed controlling mind of plaintiff as appointor had power to remove and replace trustee - instrument of replacement supportable by that power - second plaintiff validly and effectively appointed trustee.

TRADE PRACTICES ACT - accessorial liability - no allegation of any acts in Australia - no jurisdiction - expert evidence - non compliance with code - consequences - costs - gross sum costs order - principles

REAL PROPERTY - Easements - Restrictive covenants - Validity of restriction permitting use for recreational and other purposes

Damages - loss of action against tortfeasor - assessment of damages - notional trial and judgment dates -evidence of later unforeseen events Negligence - solicitor - loss of action against tort feasor - assessment of loss at notional trial and judgment dates - evidence of later unforeseen events inadmissible

COSTS - no question of principle

PRACTICE AND PROCEDURE - Defendants/ cross-claimants' pleadings do not refer to claim based in equitable estoppel - plaintiff/ cross-defendant prepares case on basis estoppel not basis of case - unsatisfactory and artificial to preclude defendants/cross-claimants advancing case based on estoppel -proceedings adjourned, leave to amend granted.

WILLS AND ESTATES - Succession Act 2006 - Application for provision out of the estate of a father

ADMINISTRATIVE LAW - decision of Consumer Trader and Tenancy Tribunal - application pursuant to s69 of the Supreme Court Act 1970 - lessors seeking arrears of rent and order for possession from Tribunal - no denial of procedural fairness - summons dismissed.

CRIMINAL LAW - interlocutory proceedings - s 192A Evidence Act 1995 - advanced rulings and findings - admissibility and use of evidence CRIMINAL LAW - particular offences - offences against the government - conspiracy to defraud the Commonwealth - s 29D and s 86(1) Crimes Act 1914 - s 135.4(5) Criminal Code Act 1995

APPEAL - application for leave to appeal - no issue of principle

ADMINISTRATIVE LAW - prerogative writs - privative clause - s 179 Industrial Relations Act 1996 - effect of Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 - whether privative clause effective to exclude power to grant prerogative relief on basis of error of law on the face of the record ADMINISTRATIVE LAW - jurisdictional error - whether Full Bench of Industrial Relations Commission invoked wrong source of power - ss 187, 188 Industrial Relations Act 1996 ADMINISTRATIVE LAW - jurisdictional error - whether factual error concerning presence of interpreter was jurisdictional error ADMINISTRATIVE LAW - jurisdictional error - whether refusal to regard misunderstanding of Commissioner as reason for granting leave to appeal was jurisdictional error ADMINISTRATIVE LAW - jurisdictional error - whether Wednesbury unreasonableness in refusing to hold documents provided as part of settlement as inadequate ADMINISTRATIVE LAW - natural justice - whether bias INDUSTRIAL LAW - Industrial Relations Commission jurisdiction - whether power to revert to conciliation after arbitration commenced - ss 86, 87 Industrial Relations Act 1996 - Industrial Relations Commission Practice Note No. 17 INDUSTRIAL LAW - Industrial Relations Commission jurisdiction - whether Full Bench of Industrial Relations Commission has unremoveable jurisdiction to supervise activities of a Commissioner INDUSTRIAL LAW - Industrial Relations Commission jurisdiction - whether applicant is entitled to merit-based appeal without first establishing error of law PRACTICE AND PROCEDURE - whether UCPR 20 applicable to Industrial Relations Commission (when constituted otherwise than as the Industrial Court) EVIDENCE - challenge in one court to accuracy of transcript of hearing in another court or tribunal

Costs - no question of principle.

CIVIL - Negligence - Personal injury - Proposed settlement - Significant dispute on question of liability - Disputed options for damages would result in significant differences - Approved pursuant to s76(4) Civil Procedure Act

ADOPTIONS - consent dispense order - Adoption Act, s 67(1)(d) - child under parental responsibility of Minister and with authorised carers since shortly after his birth - birth parents notified of proposed adoption and that a consent dispense order will be sought - birth parents not formally counselled or given mandatory written information seeking their consent under Adoption Act 2000, Chapter 4, Part 5, Division 2 - whether parents should undergo formal consent procedures before the Court considers making a consent dispense order and an adoption order.

VENDOR and PURCHASER - rectification - contract for sale of farm contained SC 66 authorising Vendors to occupy part of land sold for 4 years to store and trade in scrap materials - about 6 months after possession, Purchaser denied access - after further demand for access and removal, Purchaser's husband began selling the scrap - issues relating to rectification and whether SC 66 reflected precontract negotiation - illegality and whether vendor's claim for access, removal of goods and damages for detention affected by LEP prohibition on junkyard - vendors succeeded - issues of fact, no question of legal principle

PRACTICE and PROCEDURE - Statement of Claims - striking out claims - claims in Statement of Claim were struck out as they were unarguable in the face of a Release given by the plaintiff's bankruptcy trustee SECURITY for COSTS - where plaintiff resided in Hong Kong subject to renewal of visas and his asset there were credit bank accounts and readily transmissible, security for costs was not limited to costs of registration of judgment in Hong Kong Decision on facts

PRACTICE AND PROCEDURE - leave sought to file cross claims - context of large lending scheme - whether cross claim demonstrates that lender knew of representations and that representations were misleading and deceptive - whether particulars support allegation that lenders would rely on representations - whether particulars support allegation that representations were misleading and deceptive - leave to file cross claims granted in accordance with reasons for judgment

MURDER - plea of guilty of manslaughter - provocation - whether loss of self-control - firearm -Judge alone trial

ADMINISTRATIVE LAW - prerogative relief - certiorari & mandamus - inferior court - whether jurisdictional error - wrong question asked - whether error of law on face of record - irrelevant considerations - unsuccessful prosecution - whether costs order should be made - whether investigation unreasonable.

CRIMINAL LAW - sentence appeal - conspiracy to commit a robbery while armed with an offensive weapon - whether sentencing judge could take into account as an aggravating factor that the offence was to be committed in company - whether sentence passed was manifestly excessive - to what extent should the commencement date of the sentence have been backdated - parity.

CRIMINAL LAW - Appeal - where accused pleaded guilty to two counts of supplying large quantity of prohibited drug - where accused sought to ascertain role of third party in relation to his involvement in the offences to which he had pleaded guilty - where police informed Director of Public Prosecutions they held information "which might reasonably be expected to assist in the case for the prosecution or the case for the accused person" but that that material was subject to a bona fide claim of privilege, public interest immunity or statutory immunity - whether s 15A Director of Public Prosecutors Act 1986 obliged police to produce that information to Director of Public Prosecutions - CRIMINAL LAW - prosecutor's duty to act fairly - duty of disclosure - whether prosecutor should disclose to accused existence of material possibly relevant to accused's defence but subject to claim of public interest immunity - CRIMINAL LAW - sentence - stay of sentencing proceedings - prosecutor's duty of disclosure - whether sentencing proceedings should be stayed until DPP obtains from police information in relation to third party's role in his involvement in the offences to which he had pleaded guilty - avoidance of potential miscarriage of justice - STATUTORY INTERPRETATION -whether permissible to use subordinate legislation to construe statute - WORDS AND PHRASES - "disclose"

CRIMINAL LAW - sentencing - Crimes (Sentencing Procedure) Act - s 21A(2)(eb) - s 21A(5A) - s 21A(3)(m)

CRIMINAL LAW - conviction appeal - appellant convicted of murder of his partner - conversation between appellant and his brother - brother's first version of conversation asserted that appellant said "How can they [the children] love me? I killed their mother" - brother later asserts first version was incorrect and that the appellant said "How can they love me if I killed their mother" - Crown given leave to cross-examine brother under s.38 Evidence Act 1995 - Crown relied on first version as admission of guilt - trial Judge directs jury that first version capable of constituting admission - contended on appeal that error in accordance with Lee v The Queen [1998] HCA 60; 195 CLR 94 - point not taken at trial - whether leave under Rule 4 should be granted - Crown concedes that error occurred at trial - whether proviso applied - Crown case involving circumstantial evidence and direct evidence - by reference to admissible evidence used permissibly, Court satisfied beyond reasonable doubt of guilt of appellant - appeal dismissed

CRIMINAL LAW - sentencing - Criminal Case Conferencing Trial Act - parity between co-offenders

PRACTICE AND PROCEDURE - costs - whether there has been a determination of the plaintiff's claim - whether there has been an abandonment of the plaintiff's original case as pleaded by reason of the legislative amendment - whether costs follow the event

TRADE AND COMMERCE - other regulation of trade or commerce - statutory regulation of particular matters - Fair Trading Act 1987 - misleading or deceptive conduct - representations by financial adviser as to present and future matters - nature and performance of investments - whether reliance by investors upon advice TORTS - negligence - professional advice concerning investments in agricultural managed investment schemes - breach of duty - whether financial adviser failed to carry out adequate assessment of investments - whether investments were "sound, prudent and sensible" having regard to investors' instructions and risk profile - contributory negligence - apportionment of responsibility and damages CONTRACTS - general contractual principles - discharge, breach and defences to action for breach - whether breach of retainer by accountants and financial advisers in relation to investment advice EQUITY - general principles - fiduciary relationships - financial adviser - conflict of interest arising from commission entitlement in respect of finance borrowings for investments - whether breach of fiduciary duty - whether financial adviser failed to eschew conflict of interest CORPORATIONS - financial services and markets - financial services providers - advice to retail clients - whether statements of advice provided - whether statements of advice defective - liability of financial services licensee and authorised representative - whether loss or damage suffered because of failure of provide statement of advice or because statement of advice defective DAMAGES - general principles - valuation of failed agricultural managed investment scheme investments - effect of investments on plaintiffs' post-tax cashflow - application of consumer price index to reflect present value - application of Supreme Court rates to reflect loss of opportunity to earn interest DAMAGES - general principles - incidence of taxation as affecting damages - "grossing up" of damages for taxation - expenditure relating to tax-deductible investments - ordinary income - whether damages to "fill the hole" in assessable income - statutory income - whether assessable recoupment - whether assessable recoupment ascertainable from award of damages LIMITATION OF ACTIONS - contracts, torts and personal actions - when time begins to run on claims - failed investments - question as to when loss occurred PARTNERSHIP - generally - what constitutes partnership - whether directors of a corporate partner were partners themselves - conduct of corporate directors consistent with them being partners as individuals - construction of partnership agreement PARTNERSHIP - actions by and against partners - actions and proceedings against firms and individual partners - whether chartered accountancy firm liable for conduct of related financial planning business

FAMILY LAW AND CHILD WELFARE - Surrogacy - application for parentage order under (NSW) Surrogacy Act 2010 in relation to child of a surrogacy arrangement entered into pre-commencement of Act - discussion of law - parentage order has legal effect of child ceasing to be child of birth parent and becoming child of intended parents - court may make parentage order subject to certain satisfaction of certain preconditions - preconditions specified to be mandatory and non-mandatory - non-mandatory preconditions may be waived if exceptional circumstances exist - court must be satisfied order in best interests of child - surrogacy arrangement cannot be a commercial surrogacy arrangement -consent must be freely and voluntarily given by persons with capacity to consent - no prescribed formality for consent but must be appropriate evidence of fully informed consent - insufficient evidence of consent of birth parents in present case - all information that is registrable under (NSW) Assisted Reproductive Technology Act 20007 must have been provided - not so provided in present case.

CORPORATIONS - Application for extension of time to investigate voidable transactions - No evidence of voidable transactions - Just and fair in the circumstances- Meaning of exceptional circumstances. Application for pooling of assets of seven companies- Meaning of business carried on jointly where seven companies are part of a larger joint venture- Meaning of specific property- Requirement for a company to presently own particular property.

The deceased made two wills during her lifetime, the first in 1999 and the last in 2004 - No dispute that the 1999 Will was duly executed and otherwise valid - Sole issue whether 2004 Will valid and should be admitted to probate - If valid, it revoked the 1999 Will - Central questions concerning the validity of the 2004 Will, are whether the deceased validly executed the 2004 Will; whether she had testamentary capacity; and whether the Will was produced as a consequence of undue influence - Late amendment to assert also the deceased's lack of knowledge and approval of the 2004 Will

PRACTICE AND PROCEDURE - Pleadings - defendants apply to suspend operation of pleading timetable to avoid filing a defence before determination of appeal against refusal to stay proceedings - defendants contend that if successful on appeal any defence filed will not be required - Court proceeds on basis initial decision correct - defendants argue legal prejudice as pleading may entail forgoing ability to apply to stay proceedings - application for stay already dismissed - defendants argue should not have to plead as unsure of endurance of suppression order - suppression order generally refused and interim order made to preserve position pending appeal - parties ought to plead on assumption no suppression order will be in place - defendants contend that any defence filed will solidify parties in their positions undermining mediation efforts - parties already significantly at odds - defence will be protected by suppression order if defendants successful on appeal - steps involved in preparing defence will be required for any ADR proceedings.

SUCCESSION - probate - caveat - where deceased died intestate - serious question to be tried as to parentage of next of kin - triable issue as to whether a document expressing testamentary intentions should be admitted as an informal will - application for order that caveat cease to remain in force refused - Status of Children Act 1996, s 26 - parentage testing procedure to be carried out to assist in determination of parentage of child

WILLS AND ESTATES - Succession Act 2006 - application for family provision order by daughter of deceased - plaintiff and first defendant both daughters of deceased -deceased left racehorse to defendant but died intestate as to residue of estate -transfers of assets to defendants during deceased's lifetime - further provision made for plaintiff

[PRIVATE INTERNATIONAL LAW] - [PRACTICE & PROCEDURE] - application to stay proceedings - claims by plaintiffs of breach of employment contract/breach of duty of loyalty in respect of conduct in Kuala Lumpur, Malaysia and Indonesia - concurrent process in Malaysia by defendant for reinstatement - real issues - prospective witnesses in many different countries in the Asian region - whether a clearly inappropriate forum for plaintiffs' claims - referral of questions of foreign law to foreign court or to referee

PROCEDURE - form of initiating process - "creditors' trust" created by deed of company arrangement - trust deed creates procedure for proof of debts to establish status as beneficiary - various provisions of corporations legislation "incorporated into" trust deed by reference - person dissatisfied with rejection of proof by trustees files interlocutory process in proceeding in which voluntary administrators obtained directions as to establishment of creditors trust - "funder" of trust maintains that the person's application is a nullity because (a) filed in completed or spent proceeding (b) embodied in interlocutory process that can only be used to make an application under Corporations Act and (c) a trust instrument cannot confer jurisdiction on the court - "funder's" objections well taken but do not lead to finding of nullity - the situation is one of irregularity under Civil Procedure Act s 63 amenable to amendment under s 64.

CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - whether mental health and intoxication relevant to assessing the objective seriousness of the offence - proper application of the standard non-parole period - application of Muldrock v R [2011] HCA 39; 85 ALJR 1154

ADMINISTRATIVE LAW - judicial review - obligation of decision-maker to consider specified matter as a precondition to the validity of a decision - further consideration in exercise of separate power not inconsistent with obligation COSTS - varying judgment or order - remittal - order for costs in court below JUDICIAL REVIEW - limitation period - whether notice commencing period "in accordance with the regulations" PROCEDURE - judgments and orders - no entitlement to relief - option for court to make an order of conditional validity - Land and Environment Court Act 1979 (NSW), s 25B - Environmental Planning and Assessment Act 1979 (NSW), s 124 - remittal for trial court to consider appropriate order STATUTORY INTERPRETATION - language of regulation deliberate and not inadvertent - statutory obligation placed on councils - all necessary elements required for validity of development consent notice STATUTORY INTERPRETATION - principles - implied limitation on the language of Environmental Planning and Assessment Act 1979 (NSW), s 79C - assessment of all likely impacts of development application - exclusion of likely environmental impacts the subject of separate evaluation - inconsistent with objects of Act WORDS & PHRASES - "in accordance with the regulations" - "ordinary office hours" - "statement"

PRACTICE AND PROCEDURE - Notices to produce - notice in the nature of discovery - notice fails to specify a document or thing - notices cannot be used to obtain further and better discovery - notice set aside. PRACTICE AND PROCEDURE - Strike out application - plaintiffs apply for strike out of defence on basis of alleged defaults by defendants in giving discovery - usually necessary for applicant to show that has been and remains in substantial degree of default - mere suspicion discovery inadequate does not establish default - affidavit of documents generally conclusive - no evidence defendants remain in default - motion to strike out dismissed.

Evidence - hypothetical - whether s 5D(3) Civil Liability Act subject to right to re-examine

CORPORATIONS - public companies - giving of "financial benefit" to "related party" - statutory requirement for approval by resolution passed at a meeting of members - statutory process includes lodgment of material with ASIC before despatch to members and despatch of any ASIC comments with notice of meeting - through inadvertence ASIC lodgment not made before despatch of notice - ASIC's review in any event raises no concern - application for declaration under s 227 in respect of steps concerning ASIC lodgment - various other aspects of the statutory procedure lie in the future - application adjourned as s 227 permits declaration only in respect of the process as a whole

PARTNERSHIP - JOINT VENTURE - whether the parties engaged in partnership or joint venture for the importation and sale of insulation ceiling batts - whether breach of fiduciary obligations on unilateral termination of any such agreement - questions of liability only to be determined in preliminary hearing - HELD - no partnership or joint venture for the importation and sale of batts established - no breach of fiduciary obligations

ADMINISTRATIVE LAW - appeal from Local Court - motor vehicle accident - negligence found in Local Court - whether failure to given sufficient reasons - whether findings of fact necessary - failure to consider contributory negligence - appeal allowed

COSTS - Property (Relationships) Act 1984 - costs order made on delivery of judgment - no submission made prior to delivery of judgment - whether party denied procedural fairness - processes, including application under UCPR 36.16 to make submissions not availed of - no denial of procedural fairness COSTS - Property (Relationships) Act 1984 - UCPR 42.1 - starting point for costs is that costs follow the event - no error in exercise of discretion COSTS - Property (Relationships) Act 1984 - offer of compromise -offer of compromise made at first instance - trial judge not advised of offer of compromise - no basis to give effect to offer of compromise for proceedings at first instance when offer raised for first time on the appeal COSTS - Property (Relationships) Act 1984 - offer of compromise made in respect of appeal proceedings - result of appeal more favourable to offeror than offer - order for indemnity costs made in accordance with UCPR 42.14