Cases and authorities

REAL PROPERTY - easements - whether easement should be granted by Court under Conveyancing Act s 88K - rights over neighbouring property's stairs in order to access land - whether reasonably necessary - reasonableness of current property owner regarding use of stairs not relevant to question of whether easement reasonably necessary - whether plaintiff should have joined owners of neighbouring properties who also had easements over the stairs - consequences of non-joinder - compensation - assessment of compensation - can consider increased value to plaintiff when determining compensation in certain circumstances.

CIVIL - contract - loans secured by deeds of guarantee - Debtor deregistered company - Plaintiff seeks to obtain judgment against one defendant guarantor - Other defendants bankrupt or subject of default judgment - No defence filed or appearance by remaining defendant - Satisfactory evidence of present debt of defendant - Judgment against defendant PRACTICE AND PROCEDURE - Defendant filed cross-claim against plaintiff - Defendant subsequently deregistered company - Plaintiff disputes cross-claim - No appearance or evidence in support of cross-claim at hearing - Cross-claim dismissed

BANKING AND FINANCIAL INSTITUTIONS - where one bank transfers money from its customers' accounts on a fraudulent instruction to another bank who pays it out also on a fraudulent instruction - both banks accept that customers must be compensated - first bank claims repayment of the money - second bank pleads change of position - EQUITY - unjust enrichment - restitution - defence of change of position - held that defence of change of position succeeds

[APPEAL] - where leave to amend refused - whether error in refusal of grant of leave [INSURANCE] - where plaintiff's claim alleges that contract of insurance terminated on acceptance of defendant's repudiation - whether in those circumstances it is reasonably arguable that contract of insurance was subsequently avoided under s 29 of the Insurance Contracts Act 1984 (Cth)

CRIMINAL LAW - murder - judge alone trial - mental illness defence

CRIMINAL LAW - sentence - murder - reckless wounding - common assault - standard non-parole period - objective seriousness of offence - test after R v Way - Stabbing of two victims - Weapon a matter of aggravation - accumulation and concurrency

Plaintiff's application seeks an order for determination, by inquiry, of the identity of the next of kin of the deceased intestate - Proceedings brought pursuant to Uniform Civil Procedure Rules 2005 ("UCPR"), rule 54.3 - First Defendant asserts that he is the father of the deceased - Second Defendant appointed to represent the interests of the siblings of the half blood of the deceased

Costs of proceedings in which each of the Plaintiffs does not achieve a result more favourable than offer made in Calderbank offer; whether Offer of Compromise effective

Serious Sex Offender - application for Extended Supervision Order - statutory requirements satisfied - no issue of principle - Extended Supervision Order made for 3 years

EQUITY - account of profits

COSTS - security for costs - general principles relevant to determining application

GUARDIANSHIP - whether plaintiff can properly be appointed as guardian - whether plaintiff fit a proper person to be appointed - whether appointment of plaintiff is in the person in need of guardian's best interests

EQUITY - co-guarantors - where directors guaranteed the debts of the company to which the plaintiff lent funds - plaintiff obtained judgment against the first defendant guarantor but no monies paid in satisfaction of the judgment debt - plaintiff now seeks judgment against the second defendant co-guarantor for the debt owed

CRIMINAL LAW - Accused charged with murder - Whether fit to be tried - Undisputed medical evidence that accused unfit to be tried - Chronic Schizoaffective Disorder - Referred to Mental Health Review Tribunal - No issue of principle

HUMAN RIGHTS - discrimination - sexual harassment - unwelcome conduct of a sexual nature - whether conduct alleged capable of amounting to conduct of a sexual nature in relation to the plaintiff PROCEDURE - pleadings - application for further leave to amend - application to have parts of amended pleading struck out as being inconsistent with earlier leave PROCEDURE - subpoenas - application to set aside

Proceedings brought by City of Sydney against Streetscape Projects (Australia) and Mr Moses Obeid in relation to "Smartpole" poles CONTRACTS - Action for breach of contract - Contractual interpretation - Confidential information - Deeds of variation - Whether particular clauses were penalty clauses - Claim that plaintiffs suffered no loss - Distinction between liquidated damages clause and penalty clause - Damages when proof of loss is difficult - Foreign law- Presumption of identity - Principles for interpreting terms of a contract to avoid capricious consequences EQUITY - Equitable duty - Duty of confidence - Fiduciary duty - Fiduciary duty under a commercial contract -Accessorial liability - Barnes v Addy ADMINISTRATIVE LAW - Ultra Vires - Scope of Local Councils authority - Broad interpretation TRADE PRACTICES CLAIM - Misleading and deceptive conduct - Section 52 Trade Practices Act - Proof of representations - Reliance on representations - Failure to take reasonable care-Section 51A Trade Practices Act - Misleading representation as to future without reasonable basis-No need to prove reliance - Appropriate relief under Section 87 (2) of Trade Practices Act - Varying the terms of a contract for misrepresentation

CORPORATIONS - winding up - statutory demand - s 459G application dismissed when plaintiff did not appear - plaintiff now seeks urgently order for short extension of compliance period pending hearing of application to have dismissal order set aside - very short notice to defendant - defendant not present - short extension granted

PROCEDURE - Striking out portions of Pleadings - earlier action settled by consent orders - amended notice of motion to raise issues subject of the earlier action - new action as well - whether premature - issues of interpretation of consent orders and alleged breaches to be tried

CRIMINAL LAW - procedure - application for separate trial by co-accused - Applicant and co-accused indicted for murder - circumstantial case against Applicant - case against co-accused includes admissions of joint criminal enterprise - whether case against Applicant is a weaker one - whether prejudice at a joint trial because of admissions - separate trial ordered.

CORPORATIONS - winding up - statutory demand - application for order setting aside - no appearance for plaintiff when matter called on for hearing - counsel sought leave to appear for plaintiff's directors - refused - defendant in liquidation when proceedings commenced and remains in liquidation - no attempt by plaintiff to seek leave to proceed - proceedings therefore doomed to fail - costs to be assessed on the indemnity basis

PROCEDURE - default judgment - application to set aside - misunderstanding as to terms of open offer made by defendants - whether judgment should be set aside on terms more favourable than those proposed by the Court in the face of that misunderstanding

EQUITY - plaintiff lent funds to the first defendant - the property which is the subject of the proceedings was mortgaged to the plaintiff as security for the debt - whether the first defendant is in default of its obligations under the loan facility agreement and as mortgagor - the plaintiff seeks possession of the property in order to effect a sale of the property as a mortgagee in possession - whether current occupiers of the property were served with requisite notices of these proceedings - whether the plaintiff is entitled to possession

EQUITY - solicitor claims charge over real property in name of corporation to secure payment of a judgment for costs against a former client - shares in corporation transferred by client to his wife - real property of corporation mortgaged - solicitor seeks to set aside both the transfer and mortgage under Conveyancing Act, s 37A - client funds acquisition of property by corporation - HELD - solicitor has equitable interest by way of charge over the real property - mortgage but not transfer voidable under Conveyancing Act, s 37A - corporation holds property on resulting trust for client.

CORPORATIONS - winding up - application for termination of winding up - application by a contributory - that person later becomes bankrupt - trustee in bankruptcy therefore contributory in his place - trustee does not pursue application - in any event no evidence of solvency - application dismissed

APPEAL - application under section 5F of the Criminal Appeal Act 1912 - leave to appeal against interlocutory judgment or order - leave to appeal refused

PROCEDURE - criminal - extension of time - appeal against conviction - no reasonable prospects of success

Criminal Law - sentencing for offence in accordance with sentencing practice at time of offence, when delay between offence and sentencing

CRIMINAL LAW - sentence appeal - aggravated indecent assault on a child and sexual intercourse with a child - impact of mental disability on sentence - findings of fact not open on the evidence - effect on sentence of s61M offence being able to be dealt with in the Local Court - need to resentence

PRACTICE AND PROCEDURE - Stay of proceedings - court has jurisdiction to stay proceedings to enforce agreement by parties to refer disputes to mediation and arbitration - defendants invoke confidential mediation and arbitration clauses of deed - whether first and third plaintiffs bound by deed - condition precedent to certain parties being bound by deed that they provide letters acknowledging entered into deed without coercion or undue influence - issue whether first and third plaintiff provided such letters - no evidence from these plaintiffs disputing provision of letters - recital to subsequent deed recognises plaintiffs bound. PRACTICE AND PROCEDURE - Stay of proceedings - application by beneficiaries to remove trustee - whether such a dispute susceptible to "private justice" - subject matter of dispute susceptible to mediation and arbitration. PRACTICE AND PROCEDURE - Stay of proceedings - confidential mediation and arbitration procedure applicable to "disputes under this deed" - "under this deed" connotes dispute dealing with enforcement or invocation of rights created by deed - construction of "claim now and in the future" - means "now and forever" and does not extend "claims", defined as existing or discontinued at time of deed to claims not existing at time of deed - whether dispute "under" clause in deed relating to vesting date of trust - dispute about removal of trustee - whether dispute "arising under this deed" raised by second defendant proffering wish to have non-family member appointed trustee - where plaintiffs make no such claim - whether proceedings contrary to non-disparagement provision - fact second defendant may wish to prosecute such a dispute does not change nature of plaintiffs' dispute - whether proceedings contrary to undertaking not to challenge first defendant's "right title or interest" in Group or any trust of which she is a beneficiary - reference to beneficial title or interest not to first defendant's legal title as trustee - second defendant invokes provision providing that parties to deed will not challenge ongoing management and control of first defendant in company known as HPPL - trust only owns 25% of shares in HPPL whilst first defendant owns 75% of shares - management not reference to shareholding but to directorship - ongoing control not reference to ability to control every single share - not a dispute "under this deed". COURTS AND JUDGES - Application for suppression order under (NSW) Court Suppression and Non-publication Orders Act 2010 - where defendants' propose to apply for leave to appeal orders dismissing application for stay of proceedings - prior suppression order expressed to be contingent on determination of stay application - failure to grant further interim suppression order would render arguable appeal nugatory and undermine defendants' claimed right to confidentiality in event Court of Appeal overturns primary judge's decision - interim suppression order granted.

COSTS - Caveats - defendant lodges insupportable caveat - caveat removed voluntarily by defendant after plaintiff initiates proceedings - defendant puts plaintiff to expense of coming to court - defendant must pay costs.

INJUNCTIONS - Interlocutory injunctions - reconsideration of prior refusal to grant interlocutory relief - plaintiff tenders moneys into court - defendant transfers subject property to parents for unknown consideration - no prejudice to defendant if relief granted - failure to grant relief could irretrievably prejudice plaintiff - departure from previous position warranted.

MORTGAGE - proceedings for possession - application for summary judgment - whether absence of defence clearly demonstrated - defendants alleging loan and mortgage unenforceable due to alleged securitisation of plaintiff's interests in those transactions

COSTS - indemnity costs - offer of compromise - Calderbank letter - whether unreasonable for the offeree not to accept the offer of compromise - long history of disputation between parties - whether ambiguities in the offer that made it not unreasonable to fail to accept the offer

TRUSTS - trustee - application for judicial advice - whether trustee may sell property and deposit sale funds on trust with NSW Trustee for beneficiary in circumstances where legal interest in property was retained by mistake and beneficiary cannot be contacted for instructions - no question of principle.

PROCEDURE - preliminary discovery - application for leave to appeal against Local Court order granting discovery - Uniform Civil Procedure Rules 2005, r 5.2 - no sound basis for refusing to follow decision of Adams J in RTA v Care Park Ltd [2011] - no relevant distinction between intention of applicant and "purpose" required by the rule - magistrate did not apply the wrong test by referring to intention rather than purpose.

Courts - evidence - non-publication order

CRIMINAL LAW - sentence - murder

PRACTICE AND PROCEDURE - defendant's application to strike out parts of Statement of Claim pursuant to UCPR 14.28(1)(b) - paragraphs irrelevant and therefore embarrassing - defendant's objection upheld - defendant's request for particulars - practical considerations - limited order for particulars

EQUITY - Breach of fiduciary duty - where first defendant found to have breached duties to the plaintiff by channelling away to an enterprises owned by the first and second defendants business opportunities of the plaintiff - where second defendant did not dispute breaches found against the first defendant but disputed that he had knowingly assisted - found that the second defendant had knowingly assisted the first defendant - EVIDENCE - where affidavit sworn by second defendant was not read and plaintiff sought to tender parts of it as admissions - course adopted

REAL PROPERTY - Application to extend operation of caveat - caveator must show claim has or may have substance - test akin to that for interlocutory injunctions - caveator claims interest described as 'equitable fee simple as purchaser of exchanged contract for sale' and as beneficiary of a constructive trust - seriously arguable that contracts exchanged and/or circumstances give rise to constructive trust exist - caveat said to be defective in form as deals with interest in four lots whilst contract pertained to only one lot - possible for plaintiff to obtain relief relating to whole of subject land - caveat also allegedly defective as misdescribes contract - defect overlooked under (NSW) Real Property Act 1900, s 74L - plaintiff has seriously arguable claim - balance of convenience factors include defendant being unable to obtain finance and incurring interest costs - plaintiff and plaintiff's principal proffer undertaking as to damages - Court will only allow caveator's priority to be jeopardised in rare circumstances - caveat extended.

INJUNCTIONS - Plaintiff seeks ex parte injunction - plaintiff has seriously arguable case and balance of convenience favours grant of injunction - circumstances that a Court had recently withdrawn injunction given plaintiff's failure to pay moneys into court - Court had also restrained plaintiff from lodging further caveats - circumstances entail inappropriate to grant ex parte relief.

CORPORATIONS - liquidation - termination of winding up under s 482(1) - whether all debts have or will be discharged - no issue of principle

CRIMINAL LAW – sentence – obtain financial advantage by deception – Criminal Code 1995 (Cth) – lodgement of false business activity statements – whether sentences should have been imposed concurrently – sentences reflect criminality inherent in course of offending – sentencing judge had regard to applicant’s medical condition – hardship to offender’s family not so extreme as to operate in mitigation of sentence – no miscarriage of sentencing judge’s discretion

CRIMINAL LAW – sentence – accessory after the fact to murder – no issue of principle

CORPORATIONS - COMMERCIAL ARBITRATION - S 440D of the Corporations Act 2001 (Cth) - an application for leave to bring and continue proceedings against a company in voluntary administration for recognition and enforcement of an arbitral award pursuant to s 35 of the Commercial Arbitration Act 2010 (NSW) - nature of discretion to be exercised - relevant circumstances - leave granted

PLEADINGS - principles involved in pleading defence - striking out defence - costs - whether successful party entitled to order for assessment forthwith

PRACTICE AND PROCEDURE - Subpoenas - plaintiff serves subpoenas on third parties - subpoena catches documents of no potential relevance - plaintiff belatedly attempts via letter to defendants' and third parties' solicitor to narrow scope - no weight attributable to this - subpoena oppressive and a fishing expedition - subpoena set aside.

CORPORATIONS - managed investment schemes - modification of constitution of registered scheme under s 601GC(1) - whether in the particular case the responsible entity may effect modification under s 601GC(1)(b) - meaning of "members' rights" - whether members have a "right" to see new units issued for the price stated in the existing constitution and not otherwise unless some different basis is added by special resolution of members - held that "members' rights" do not extend to a "right" to have the scheme administered according to the existing constitution and not otherwise - "members' rights" to be construed by analogy with company law - need nevertheless for the responsible entity, as a trustee, to act for the benefit of beneficiaries - the possibility of dilution of existing members is a matter to be taken into account in assessing benefit to beneficiaries

CORPORATIONS - arrangements and reconstructions - proposed Part 5.1 scheme between companies and a group of their creditors - application under s 411(1) for orders for the convening of meetings of creditors - objections taken by persons given leave to be heard without becoming parties - where funds will be paid to "junior stakeholders" including equity holders - objectors are plaintiffs in other proceedings seeking unliquidated damages against the companies - objection that proposed payment is contrary to principle of maintenance of capital, entails breach of directors' duties where company approaching insolvency and entails impermissible departure from order of application of assets in a winding up - role of court upon s 411(1) application discussed - objections not fanciful but raised at level of generality in circumstances where a full understanding may not be available - no objection seen at this stage to represent a "knock-out blow" - appropriate exercise of s 411(1) discretion is to order convening of meetings and to revisit objections if and when pressed in fully formulated form at any s 411(4)(b) hearing