Cases and authorities

PROCEEDINGS FOR POSSESSION OF LAND - consequential orders after judgment

TRUSTS - trusts and trustees - trustee and appointer cannot be found trust property at risk of repossession and sale - suitable case for new trustees to be appointed.

ADMINISTRATIVE LAW - Adjudication under (NSW) Building and Construction Industry Security of Payment Act, 1999 -decision affected by jurisdictional error due to inadequate reasoning - failure to give reasons does not amount to jurisdictional error - inadequacy, illogicality, insufficiency or inconsistency of reasoning of an adjudicator does not go to jurisdiction - plaintiff must demonstrate that reasons, in context of surrounding material, illustrate failure by adjudicator to perform statutory function - need to bear in mind adjudicators operate under abridged timeframes and procedures - whether denial of procedural fairness where adjudicator did not notify plaintiff that he would decide matter on particular basis - adjudicator decided matter on basis adverted to by plaintiff - no denial of procedural fairness - whether adjudicator failed to take into account relevant consideration, namely provision of contract - failure to consider relevant provision of contract as required by s 22 of the Act would be jurisdictional error - adjudicator did take provision of contract into account. BUILDING AND CONSTRUCTION - Payment claims under Building and Construction Industry Security of Payment Act, s 13(5) - section prohibits service of more than one payment claim in respect of one reference date - not akin to plea in bar - section 13(5) goes to jurisdiction of adjudicator - pleas in bar do not deny jurisdiction - construction of contract to assess whether certificate of practical completion precluded service of additional payment claims - contract does not bar service of payment claims after issue of certificate of practical completion - payment claim valid under s 13.

REAL PROPERTY - Torrens Title - easement - plaintiffs have benefit of right of way "with or without vehicles" over defendants' steeply sloping land - mechanical inclinator built over the length of the easement - defendants' prevent plaintiffs' using inclinator without the defendant's permission - whether plaintiffs have express or ancillary rights to the use of the inclinator under the terms of the easement.

SUCCESSION - Probate - lost will - deceased communicated through her sister with her solicitor for will to be prepared - solicitor was (long estranged) husband of sister - will contained significant benefits for sister - husband not informed of will although relationship was good - suspicious circumstances required vigilant consideration of evidence of solicitor and of sister - found that their evidence should be accepted and the will expressed intentions of the deceased - dispositions in will were proved by electronic copy - found, evidence of sister and of solicitor accepted, copy admitted to probate. Decision on facts. FAMILY PROVISION - claim by husband - deceased wife left ING deposit $265,601.78 to her sister - other minor assets worth several thousand dollars - husband aged 57 sought Family Provision order - after long career with Qantas as baggage handler, now on light duties after severe permanent work injury to shoulder - low income, less than outgoings - superannuation $319,836, to retire in 4.5 years - owned town house worth $505,000 and beach house worth $590,000 - no significant savings or debts, no dependants - held, not left without adequate provision, order refused.

COSTS - no hearing on merits - application for indemnity costs - whether party acted so unreasonably as to justify costs order - usual order that each party to bear own costs - no justification for departure

CONTRACT - terms - construction - unambiguous terms of contract to be given effect in accordance with language, syntax and linguistic context

REAL PROPERTY- easements- Conveyancing Act 1919, s 88K- necessary pre-conditions for making an order; reasonable necessity, public interest, compensation and discretion, to be considered as a whole, not scored under separate heads- whether possible to grant a conditional easement to prevent sterilization of servient tenement- conditional easement granted. ISSUE ESTOPPEL- whether the precise question of fact or law was determined in the earlier proceedings as a fundamental basis for the decision- question was whether consent for road bridge required a weight capacity which would accommodate the defendant's trucks- question was not a fundamental basis of the earlier proceedings therefore judge not estopped from considering the issue.

POSSESSION - summary judgment

CORPORATIONS - arrangements and reconstructions - Part 5.1 scheme of arrangement - notice convening meeting and accompanying explanatory statement already sent to members - new circumstances make desirable despatch of updating material - need for court's approval - source of court's power to give approval

CROSS-VESTING - interests of justice - application dismissed

PRACTICE AND PROCEDURE - Summary Disposal - Amended Statement of Claim claimed only charge on house owned by defendant - defendant no longer owned house, applied for Summary Disposal as remedy claimed could not be awarded - plaintiff applied for amendment to revive Constructive Trust claim earlier abandoned - leave to amend granted to claim charge over proceeds of sale, refuse to revive Constructive Trust claim - on terms that plaintiff pay $20,000 on account of costs, proceedings to be dismissed if terms not complied with

PROCEDURE - Vexatious Proceedings Act 2008, s 6, s 8 - Whether proceedings are vexatious - meaning of "vexatious" - whether proceedings were conducted frequently - meaning of "frequently"

PROCEDURE - civil - documents or pleadings - strike out; application to - an application to strike out parts of defences to a statement of claim and a consequential order for summary judgment - application refused.

CONTRACT - formation - whether oral retainer for provision of legal services - DUTY OF CARE - duty of solicitor to client in contract, at common law and as fiduciary - breach of duty - conflict of interest - failure to advise - DAMAGES - causation - whether, but for the failure to advise, plaintiff would have made unsecured financial investment.

CORPORATIONS - derivative action - leave to commence - whether serious question to be tried - whether in best interests of the company CORPORATIONS - directors duties - whether director in a position of conflict - whether director used his position as a director or knowledge gained as a director to obtain an unauthorised benefit - acquisition of refinery by director - did not seek to acquire until after company's bid failed - no prospect of the company acquiring refinery - director was approached with opportunity while not a director - no serious question that director breached his duties

The Plaintiff, an adult child of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - Defendants named in the Summons are also adult children of the deceased - The lessee of land owned by the deceased at the date of her death joined as party Defendant - Whether provision made in Will of deceased inadequate and if so, whether order in favour of the Plaintiff should be made

APPEAL - criminal - interlocutory - refusal to grant separate trials in respect of separate complainants - whether evidence in respect of one charge admissible in respect of others - Criminal Appeal Act 1912 (NSW), s 5F(3) EVIDENCE - criminal proceedings - admissibility of tendency evidence - admissibility of co-incidence evidence - risk of concoction or contamination - evidence of sexual activities by teacher and priest at boarding school involving young boys under his authority - Evidence Act 1995 (NSW), ss 97 and 98 PROCEDURE - criminal proceedings - joinder of offences which are part of a series of offences of a similar character - application for separate trials in respect of separate complainants - whether evidence on one charge admissible on other charges - whether prosecution had negated risk of concoction or contamination - Criminal Procedure Act 1986 (NSW), ss 21 and 29

CRIMINAL LAW - appeal against conviction - sexual assault - Crimes Act 1900 ss 61I and 61L - whether miscarriage of justice - whether trial judge erred in directing jury on question of whether appellant was reckless as to complainant's consent to sexual intercourse - whether jury verdict was unreasonable, or cannot be supported, having regard to the evidence - Criminal Appeal Act 1912 s 6(1) - appeal dismissed

CRIMINAL LAW - appeal against sentence - whether applicant has justifiable sense of grievance for sentence imposed on co-offender - where applicant's medical condition taken into account when determining non-parole period - whether medical condition taken into account for overall term of imprisonment - whether new evidence of deterioration of medical condition means sentencing judge did not have full appreciation of the condition - whether sentencing discretion miscarried where prison authorities failed to make medical treatment available - whether error of commencement date of sentence - sentence adjusted and reduced by 1 month

PROCEDURE - Judgments and orders - in general - form of orders to be made -directions sought as to the enquiry to be undertaken pursuant to paragraphs [101] of the principal judgment, Waddell v Waddell as Executor of Estate of Waddell [2011] NSWSC 1174.

CRIMINAL LAW - procedure - bail - after conviction - grounds for granting or refusing - presumption against bail - offences committed in the course of riots or other civil disturbances

COSTS - whether or not indemnity costs should be orders - appropriate order for costs where common legal representation for two parties, one of whom succeeds and the other fails.

PRACTICE AND PROCEDURE - application for default judgment - where the plaintiff entered into a shipbuilding contract with a shipbuilder for the construction of a vessel - where the defendant is the guarantor of payments due from the shipbuilder - where the vessel was delivered late in breach of the agreement - where the shipbuilder had financial difficulties and sought overpayments from the plaintiff in order to complete the vessel - whether the overpayments by the plaintiff constitute unliquidated damages - where the plaintiff has issued notices of default to both the shipbuilder and the defendant but no payment was made in response - where the shipbuilder has gone into liquidation - the plaintiff seeks unliquidated damages from the defendant

PRACTICE AND PROCEDURE - Leave to file notice of motion

PROCEDURE - civil - strike out; application to , self-executing orders made and defence struck out

COMMERCIAL ARBITRATION - ss 35 and 36 of the Commercial Arbitration Act 2010 (NSW) - Award by arbitrator declaring a constructive trust, ordering specific performance of a Licencing Agreement and requiring the defendant to take steps - recognition and enforcement opposed on the basis that part of the Award dealt with the dispute not contemplated by or falling within the terms of arbitration and that recognition and enforcement of parts of the Award would be contrary to the public policy of this State - orders for recognition and enforcement made

CRIMINAL LAW - procedure - crown witness - application to cross-examine by Crown - whether portion of evidence unfavourable or inconsistent with prior statement - cross-examination permitted.

TORTS – personal injuries arising from motor vehicle accident – Motor Accidents Compensation Act 1999 – s.111 – whether matter should be remitted for further claims assessment in light of “significant new evidence” - whether details of share trading constituted “significant new evidence” – whether implication derived from treating psychiatrist constituted “significant new evidence” – whether alteration in opinion in cross-examination constituted “significant new evidence” – whether such evidence could have “materially affected” the assessment of expert witnesses

REAL PROPERTY - foreclosure - whether notice of intention to foreclose served - meaning of "service" - whether personal service required - purpose of service to bring nature, content and existence of document to party's notice - operation of Real Property Act 1900 s 61 CONVEYANCING - service of notice - whether notice of intention to foreclose a notice under Conveyancing Act 1919 s 170 CIVIL PROCEDURE - service - difference between service of originating process and other service - personal service not required CIVIL PROCEDURE - powers of Supreme Court Registrar - whether registrar empowered to exercise powers under Conveyancing Act 1919 s 170 CIVIL PROCEDURE - circumstances in which nunc pro tunc order may be made

NEGLIGENCE - claim for work injury damages under Workers Compensation Act - whether claim for damages is assessable under Motor Accidents Compensation Act - claim for damages in negligence under the Civil Liability Act - employer's non-delegable duty of care to provide safe system of work - defendants' liability as joint and several tortfeasors - contributory negligence - contribution and/or indemnity between joint and several tortfeasors - breach of contract - foreseeable risk of injury

COSTS - costs of appeal - multiple issues - whether points upon which appellant was unsuccessful constituted dominant or separable issues for the purpose of considering costs orders COSTS - respondent's contract claim remitted to the Common Law Division for further trial - whether Court should make orders in respect of costs incurred at first instance - costs incurred at first instance to be considered at the further trial

SECURITY FOR COSTS - Cross-claimant fails to comply with order for security - cross-defendant applies for dismissal of cross-claim - cross-claimant 'plaintiff' for purposes of (NSW) Uniform Civil Procedure Rules, (2005), r 41.21 - factors relevant to application for dismissal include time since security ordered, ability of cross-claimant to provide security, extent to which cross-claimant notified of dismissal application, prejudice to cross-defendant if stay continued, impact on court if stay continued, ability of cross-claimant to commence new proceedings and prejudice to cross-claimant - time elapsed since order not insignificant in context where cross-defendant required to prepare for trial - cross-claimant on notice of dismissal application - cross-claimant likely never to be able to fund cross-claim - prejudice to cross-defendant in having to prepare for trial on basis that cross-claim could re-emerge if stay lifted - not appropriate occasion for cross-claimant to cavil with merits of security order - cross-claim dismissed.

COSTS - Notice of Motion seeking orders for reference - Joint expert report ordered with effect that differences minimised - Remaining issues to be determined at hearing - Plaintiff no longer presses motion - Whether costs of motion follow the event or be reserved - Plaintiff to pay for costs of starting and finishing motion - Costs in the cause for balance associated with joint expert reports

[RES JUDICATA] ESTOPPEL] - whether plaintiff precluded from bringing proceedings by reason of earlier proceedings in relation to plaintiff's interest in same property [LAND LAW] - land transferred to daughter and son-in-law - claim that plaintiff held beneficial interest in land as joint tenant with estranged spouse - whether deemed to be held as tenant in common [TRUSTS] - whether presumption of advancement rebutted - parties intentions at time of transfer of land - whether resulting trust

PRACTICE AND PROCEDURE - Leave to tender additional documents not included in Court Book - Amendment of pleadings

PRACTICE AND PROCEDURE - Deconsolidation of proceedings - proceedings involving residential and commercial strata corporations previously consolidated as shared common substratum of facts - commercial corporation unable rely on statutory warranties - of itself insufficient to warrant deconsolidation - general position that plaintiffs should be represented by one solicitor - rule may be dispensed with in certain circumstances - circumstance that commercial corporation loses faith in solicitor - sufficient degree of change in circumstance to warrant deconsolidation - defendants contend deconsolidation will result in trial being attended by issues such as double cross-examination of defendant witnesses - extent to which such issues arise attenuated by (NSW) Evidence Act provisions allowing court to control cross-examination - proceedings deconsolidated and to be heard together with evidence in one to be evidence in other. PRACTICE AND PROCEDURE - Commercial strata corporation seeks leave to supplement liability and quantum evidence - deficiencies identified as to quantum evidence - Makita v Sprowles concerns as to admissibility of expert evidence on liability - different judges take different views as to requirements for admissibility of expert evidence - (NSW) Civil Procedure Act, s 56, makes just resolution of proceedings paramount concern - justice requires parties be permitted to adduce relevant and admissible evidence - only possible prejudice to defendants is that hearing may be delayed - interests of justice demand plaintiff be given leave to supplement quantum and liability evidence.

TRUSTS - Trustees - Application for judicial advice - Trustee of superannuation fund seeks judicial advice as to whether it would be justified in consenting to reclassification of members of fund in line with determinations made by Company - Trustee's consent to reclassification required under Trust Deed - reclassification would result in members of particular division being detrimentally affected - Company proposes to dissolve fund pursuant to power in trust deed - question whether consent to transfer is a course reasonably open to a prudent trustee - trustee bound to act honestly and for proper purposes, taking into account the interests of members - trustee must act impartially and fairly in relation to the different classes of members and avoid benefiting one class over another - Company's proposal will result in detriment to class of members - subject to countervailing consideration trustee should not accept proposal - countervailing consideration that if Trustee does not consent Company proposes to dissolve fund - if fund dissolved members will be worse off than under Company's proposal to reclassify and provide compensation - issue as to whether Company can lawfully dissolve trust - express power provided in Trust Deed untrammelled by express limitations - Company not a fiduciary - whether exercise of power moderated by implied obligation of good faith - even if had to exercise power honestly and in good faith would not preclude Company exercising power as proposed given purpose of power to provide mechanism for Company to free itself from onerous obligations under trust deed - Trustee justified in consenting to proposed reclassification of members.

PRACTICE AND PROCEDURE - amendments to claim - hearing not yet fixed - no delay occasioned - balance right to plead with case management - amendment allowed

ADMINISTRATIVE LAW - certiorari - Motor Accidents Compensation Act 1999 - determination of claims assessor - alleged irrationality or error of law in conclusions of fact - rejection of particular medical evidence and evidence from one practitioner - use of buffer for past or future economic loss - future commercial care - no jurisdictional error - no error of law - proceedings dismissed

CONTRACT - security for performance of obligations under contract - whether conversion of security into cash then deposited into bank account amounted to appropriation - whether security intended to serve function of risk allocation - meaning of words 'to account' in contract.

Criminal Law - sentencing - aggravated sexual intercourse with child - aggravated sexual assault on child - totality

SUPERANNUATION - Review of decisions, and related matters - work for which the insured is "reasonably fitted" by education, training or experience - whether different from "reasonably suited" or "reasonably qualified" - insured working as self-employed part-time taxi driver - must pass a Road Transport Training Course - insured had not done so at relevant time - whether education or training

PRACTICE AND PROCEDURE - stay of proceedings raising same issues as earlier proceedings pending payment of costs ordered to be paid in earlier proceedings

PROCEDURE - civil - interlocutory issues - stay or dismissal for abuse of process - whether proceedings for ulterior purpose - confuse purpose and motive - whether against public policy - plaintiff would receive direct benefit from litigation - third party had an interest in litigation - not against public policy

APPEAL - practice and procedure - Court of Appeal - stay of execution - serious questions for determination - risk that refusal of stay would cause prejudice or damage that would not be redressed by successful appeal APPEAL - practice and procedure - Court of Appeal - application for stay of execution - whether to permit adjournment to enable cross-examination

PROCEDURE - Suppression orders - Discretion.

PRACTICE AND PROCEDURE - Stay of judgment - Appropriate conditions of stay

COSTS - no question of principle.

CRIMINAL LAW - procedure - juries - discharge and excusing from attendance - prejudicial to accused - evidence of camera times analysis flawed - whether advising jury that submission based on evidence proceeded on mistake premise is prejudicial - whether counsel's credibility undermined