Cases and authorities

Non-publication order - Internet

COSTS - whether costs should follow the event - s 120A Residential Tenancies Act 1987 - whether Consumer, Trader & Tenancy Tribunal could have enforced rights of plaintiff - offers of settlement - whether plaintiff achieved better result than offers to settle - plaintiff successful on main issues in dispute - costs to follow the event

Plaintiff the widow of the deceased seeks family provision order - Marriage of about 30 years - Beneficiaries are sons of the deceased by a prior marriage - Only issue is the nature of provision to be made for Plaintiff

PROCEDURE - judgments - setting aside - proposed defence relies only on cross-claim - "no set-off" clause in mortgage - no defence disclosed - application to file cross-claim - pleading of cross-claim embarrassing - Defendant given 3 opportunities to prepare proper pleadings - applications refused

CRIMINAL LAW - application for inquiry after conviction and sentence - s 78 Crimes (Appeal and Review) Act 2001 - claim that sentencing judge took additional offences into account on sentence - Crown's erroneous submission to sentencing judge does not give rise to a sense of unease in the sentence imposed - sentence lenient considering total criminality involved in offending - expression of charges on the indictment in conformity with s 178 BA of Crimes Act 1900 and Criminal Procedure Act 1986 - benefit to the offender constituted by deposit of funds into accounts not by withdrawal of money - other inconsistencies identified not capable of producing a different result in sentence - application refused

REAL PROPERTY - easements - right of carriageway - where substantial interference with right of carriageway - mandatory injunction - no question of principle

TRUSTS AND TRUSTEES - creation of trust - where company acquired substantial parcel of shares - company registered as holder - evidence that company acquired and held as nominee of members of investment syndicate - dividends passed through to syndicate members - evidence of proportions in which shares held for account of syndicate members - existence of trust sufficiently established - lack of writing signed by company except as to one beneficiary - writing not required by statute of frauds in the particular circumstances

CRIMINAL LAW - sentence - murder - verdict after trial - contract killing - first offender arranged contract - objective gravity of a very high order - close to worst category offence - largely financial motive - no remorse or contrition - no basis for special circumstances - second offender provided bulk of deposit - criminality of a lesser order - no contrition or remorse - adjustment to statutory ratio as sentence will probably result in offender living the remainder of life in prison.

CORPORATIONS - winding up - winding up by the court - debts and claims satisfied in full - surplus in liquidator's hands - who is entitled to surplus - trustee in bankruptcy of shareholder is on the register - wife of that shareholder has interest in shares under Family Court order - two financiers with whom the shareholder dealt claim equitable interests - former lawyers of the shareholder claim fruits of the action lien - whether equitable interests in shares cognisable when deciding entitlements to surplus - whether surplus should be paid into court - pending applications by liquidator, one financier and the former lawyers - whether these should be cross-vested to the Federal Court - further submissions required on regime to allow liquidator to play minimal role and to determine the conflicting claims to surplus

CRIMINAL LAW - sentencing - murder - intention to inflict grievous bodily harm - significant level of intoxication - whether personality disorder contributed to offence - guilty plea - standard non-parole period not applicable

PRACTICE AND PROCEDURE - effect of bankruptcy of defendant to proceedings - application for orders under UCPR r 6.30 for the joinder, removal or re-arrangement of the parties. BANKRUPTCY - whether rights have passed from bankrupt to bankruptcy trustee. BANKRUPTCY - jurisdiction - whether ousted - jurisdiction of the Supreme Court of New South Wales.

CRIMINAL LAW - murder - alternative verdict of manslaughter - joint trial - issue as to whether the accused were present - should manslaughter have been left to jury - miscarriage of justice - conduct of counsel in not asking manslaughter to be left. CRIMINAL LAW - murder - alternative verdict of manslaughter - not left to jury - meaning of "open on the evidence" - evidence available to support verdict of manslaughter rather than murder - error of law - application of Rule 4, Criminal Appeal Rules - leave to appeal required - appellants lost real chance of being found not guilty of murder but guilty of manslaughter. CRIMINAL LAW - murder - alternative verdict of manslaughter - not left to jury - proviso to Criminal Appeal Act 1912, s 6 - test to be applied - nature of error to be taken into account - analysis of High Court decisions post Weiss v R.

PRACTICE AND PROCEDURE - complex and intertwined litigation history between parties - Certificates of costs issued in favour of one party in earlier proceedings - Deed of release subsequently entered into - Costs certificates later registered as judgments in local court - Judgment set aside - Costs certificates registered as judgment in supreme court - Current four matters related to costs certificates - Heard together as construction of deed of release central issue BANKRUPTCY AND INSOLVENCY - Jurisdiction - Four matters heard together - Plaintiff in two matters applied for bankruptcy - Application for stay pending determination by trustee in bankruptcy - Section 60 Bankruptcy Act 1966 not available ground in supreme court for stay - Supreme court's inherent jurisdiction invoked PRACTICE AND PROCEDURE - Whether stay should be granted pending determination by trustee in bankruptcy - Four matters heard together - Plaintiff in two matters applied for bankruptcy two days prior to hearing date - Insufficient time for processing of application at date of hearing - Application bona fide - Offer to resolve proceedings made prior to bankruptcy petition - Significant professional consequences of solicitor filing for bankruptcy - Absence of proven statement of affairs in court not conclusive that petition non-compliant - Determination of hearing if not stayed will impact positively or negatively on extent, size and content of bankrupt's estate if sequestered - Costs of preparation for hearing acknowledged but not determinative - Stay granted

SUCCESSION - informal will - s 8, Succession Act 2006 - unattested will written out on standard will form - whether deceased intended informal document or part of informal document to operate as his will - whether deceased subsequently formed the intention that informal document should operate as his will - where deceased handed over title deeds and original transfers of property to beneficiary named in informal will - competing considerations - held that deceased did not intend informal document to operate as his will at time it was signed or subsequently - deceased died intestate SUCCESSION - family provision - what order for provision should be made - no question of principle

PRACTICE AND PROCEDURE - stay of costs judgment.

PRACTICE & PROCEDURE - vacation of hearing date.

PROCEDURE - medical negligence - expert evidence - directions as to groups of expert witnesses to confer and prepare joint report

Three different proceedings, each a claim for a family provision order - Two applications are by daughters of deceased - Third application by two grandchildren of deceased - Defendants are executor named in Will of deceased, to whom Probate was granted, and the person said to be the de facto partner of the deceased at the date of his death - Additional issue in the proceedings brought by one Plaintiff relates to whether one of the properties, owned by the deceased, is held in trust for her.

TAXES AND DUTIES - application to renew an assessment of duty - contract for the sale of a freehold interest subject to a 300 year concurrent lease at a nominal rental - whether grant of concurrent lease had the effect of reducing dutiable value for the purposes of the Duties Act 1997, s 24(1) - whether Chief Commissioner was correct not to be satisfied that the concurrent lease was not granted as a part of an arrangement or scheme for the purpose of reducing the duty otherwise payable

TORTS - NEGLIGENCE - plaintiff hit by unidentified truck whilst on highway - plaintiff intoxicated at time of accident - whether primary judge dealt adequately with cause of accident - whether primary judge advanced reasons as to what negligent driver should have done to avoid accident - whether evidence available that evasive action could have been taken by driver - whether primary judge gave adequate reasons. TORTS - CONTRIBUTORY NEGLIGENCE - whether primary judge's apportionment should be overturned.

WILL AND ESTATE - family provision - application by three children of the first marriage - all the estate to widower of 16 years - small estate - no provisions for the plaintiffs - no matter of principle

APPEAL - nature of appeal from Associate Justice to a single Judge - not a retrial - discretion exercised on wrong basis PRACTICE AND PROCEDURE - applications by a defendant to strike out parts of statement of claim pursuant to UCPR 13.4(1) and 14.28(1) - whether Plaintiffs had arguable claim against Defendant - no evidence to establish Plaintiffs' case against Defendant - such evidence unlikely to be available in the future - whether principle in Wickstead and Ors v Browne (1992) 30 NSWLR 1 applicable

CONVEYANCING - operation of Conveyancing Act 1919 Section 66G(4), (5) and (6) - ambulatory and flexible - may proceed in stages CONVEYANCING - meaning of "more beneficial" in Section 66G(4) CONVEYANCING - sale or partition - whether sale a preferred remedy - no predisposition towards sale CONVEYANCING - contingent order for partition - implementation subject to grant of subdivision approval - order available in principle CONVEYANCING - consent of mortgagee - adjournment to allow evidence of consent CONVEYANCING - necessity of having determination of remaining issues including the respective contributions of each party to the acquisition of the land and the construction of the dwellings on it - relevant to what is "more beneficial" - relevant to any adjustment or equality money

WILLS AND ESTATES - family provision claim - time extended for application to be made - - whether deceased had entered into a prescribed transaction - claimant son had settled family disputes prior to deceased's death - no entitlement to make a claim.

ABUSE OF PROCESS - Court can act of its own motion to control abuse of its process PRACTICE - interlocutory application refused - renewed application competent - further application may be abuse of process

FIDUCIARY DUTIES - Relationship of principal and attorney under power - power of attorney gives attorney power to execute assurances and documents - power does not exonerate attorney from fiduciary obligations - attorney enters into unsecured loan agreement to fund speculative development - principal of development was the first defendant's son - nondisclosure to and potentially deception of principal - breach of fiduciary duty.

REAL PROPERTY - Caveat - Caveator seeks leave under (NSW) Real Property Act s 74O to lodge further caveat - whether caveat has or may have substance - caveator claims interest in land as unregistered mortgagee - mortgage secures moneys due in respect of proposed legal proceedings - caveator has prima facie interest in caveatee's land - balance of convenience - comparison of potential harm to caveator if order incorrectly not made and to caveatee if order made incorrectly - no prejudice to caveatee identified - necessity to consider circumstances in which caveat lapsed in applications under s 74O - such circumstances overlap with analysis of balance of convenience lies - caveator claims not to have been notified caveat had lapsed - no suggestion caveatee took action in reliance on caveat lapsing - leave to lodge fresh caveat granted.

PRACTICE AND PROCEDURE - Application for interlocutory injunction - Injunction seeking to restrain local council from considering agenda item at meeting - Subject of agenda item was report of conduct complaint against councillor - No prima facie case made out by the plaintiff - At prima facie level the following were not made out - No unreasonable exercise of discretion finding that conduct was not trivial - Culture of council relevant to triviality - Relevant to consider publicity of conduct as council code of conduct requires harm be considered - No apprehension of bias by reviewer exploring alternate means of problem resolution - No actual bias merely due to disagreement between reviewer and applicant - No procedural error due to lack of early disclosure of and ability to cross-examine witnesses - No issue of principle PRACTICE AND PROCEDURE - Application for interlocutory injunction - Injunction seeking to restrain local council from considering agenda item at meeting - Subject of agenda item was report of conduct complaint against councillor - Balance of convenience does not satisfy injunction - Sanction to be imposed on councillor subject to vote and council processes - Applicant will have opportunity to present submissions - Not satisfied appropriate to interrupt council's public duty - Any damage or harm to applicant remediable by other proceedings - No issue of principle

WILLS AND ESTATES - family provision claim - age of claimant - claimant maintained by deceased before death; whether - claimant and his father lived with deceased prior to her death - claimant's father in defacto relationship with deceased - claimant was not dependant on deceased

WILLS, PROBATE AND ADMINISTRATION - probate - application for revocation of probate - where due and proper administration of estate prevented by continuation of one of two executors in office - form of orders - defendant removed from office as executor without prejudice to continuing executorship of the other executor - existing grant of probate not revoked

TORTS - negligence - cross-claim for contribution - transmission of a medical condition scheduled under Public Health Act 1991 - medical centre - duty of care owed by provider of administrative services and facilities - failure to keep current and accurate patient records was a necessary condition of the occurrence of the harm - indemnity clause does not defeat claim for contribution - apportionment of responsibility and damages - CONTRACTS - breach of service agreements by second defendant's company and by third defendant - breach of service agreement by fourth defendant - second defendant cannot recover personally for breach as not party to agreement - principle of circuity of action does not apply as measure of damages is not precisely the same - principle of equitable contribution does not apply as second and third defendants bore greater burden of liability

CRIMINAL LAW - Crown sentence appeal - pleas of guilty - three counts of dangerous driving occasioning grievous bodily harm - one count of take and drive vehicle without consent - three victims were passengers in Respondent's vehicle - 15-year old victim rendered a C2 tetraplegic - 18-year old son of Respondent loses an arm - 15-year old son of Respondent suffers multiple fractures - Respondent a 44-year old man who had never held a driver's licence - disqualified driver at time of collision - finding by sentencing Judge of high level of moral culpability - speed and alcohol - challenge by Crown to levels of accumulation and to total effective sentence - error demonstrated - non-parole period and head sentence both manifestly inadequate - Respondent resentenced

CRIMINAL LAW - sentence after trial - Applicant convicted of murder and aggravated armed robbery - application for extension of time to appeal against sentence - claim of denial of procedural fairness in sentencing process - ground established - claim of justifiable sense of grievance by reference to sentence imposed on co-offender - assessment of dangerousness of Applicant and co-offender - parity ground established - Applicant resentenced

Criminal Law -Special Circumstances - whether finding by sentencing judge of special circumstances carried into effect in sentences imposed

CRIMINAL LAW - sentence appeal - offences of aggravated act of indecency and aggravated sexual intercourse to a person under the age of 16 - sentencing judge taking into account matters that were not part of the agreed facts - inconsistency of approach to similar offences - taking into account as aggravating factors matters which were part of the offence - need to resentence

PRACTICE AND PROCEDURE - Defendants apply to amend defence - application made at conclusion of plaintiff's case - defendants apply to propound defences of illegality and unclean hands - discussion of doctrine of illegality - purpose of impugned transaction of evidentiary significance not foundation of claim to establish trust - fact defences have poor prospects of success - relevant factor in considering whether to accede to it at late stage -evidence founding defences alluded to in correspondence between parties in 2010 - plaintiff's affidavit material containing evidence on which defences could have been raised available since September 2011 - amendment application made by defendants after serving of such evidence did not include defences of illegality and unclean hands - application refused.

REAL PROPERTY - caveat - whether basis for extension of caveat established

CORPORATIONS - winding up - application for appointment of provisional liquidator and associated freezing order - pending application for winding up on several grounds including just and equitable ground - evidence of recent discovery of events grounding suspicion that one director has diverted company money and property to himself - business has been disposed of so that shareholders agreement exhausted - seriously arguable case for winding up on the just and equitable ground - cogent evidence that company assets in jeopardy - relief granted

Setting aside - Consent Judgment -

Serious offender - Misleading information acted on by State Parole Authority when refusing parole - Direction given to Authority

REAL PROPERTY - trustee in bankruptcy seeking sale of property pursuant to s 66G of the Conveyancing Act

Common law - Contracts Review Act - mortgage - application to set aside or vary.

Promissory estoppel - Constructive Trust - Equitable damages - Detriment - Reliance

Division of Property - Property Relationships Act 1984 - Defacto Relationship Trust and Equitable Division of Property

Equitable Interest in Property - Resulting Trust - Constructive Trust - Constructive Trust Based on Unconscionability - Bona fide purchaser for value without notice -Indefeasibility under the Real Property Act 1900 - Dishonest and fraudulent design

Application brought by Plaintiff against former de facto partner under Property (Relationships) Act - Parties do not agree when the relationship commenced or when it ended - Principal issue of property adjustment dependant upon other findings including duration of the relationship, nature and value of property owned - Time at which value of the property is to be calculated - Direct and indirect contributions made by each party

TAXATION - PAYG deductions from wages and salaries of employees of company - withholdings not remitted to Deputy Commissioner - liability of directors to statutory penalty - appellant found to be sole director of company and liable for penalty - no question of principle.

CORPORATIONS - meeting of shareholders convened by two of three shareholders - application by third to restrain holding of meeting and to restrain another shareholder from acting as a director based on a particular purported appointment of him - construction of constitution and replaceable rules as to respective powers of the company in general meeting and the board of directors - held that resolutions to be put before general meeting will, if passed, be devoid of legal effect - held that there is an overwhelmingly strongly arguable case against validity of purported appointment of director - interlocutory injunctions granted

CORPORATIONS - winding up by the court - application by liquidator under s 479(3) for directions from the court - directions made regarding shareholding and creditors of company in liquidation

BUILDING AND CONSTRUCTION - contract - interpretation of contract - nature of superintendent's task - whether contractor's entitlement to extensions of time and payments are limited to those so determined by superintendent - extent to which liability flowed to principal for superintendent's failure to adequately perform tasks - DAMAGES - quantification - damages for shortfall between entitlement and superintendent's valuation- - whether recovery constrained by contract - damages for delay in practical completion - whether loss too remote - entitlement to interest.