Cases and authorities

COSTS - against non-parties - liquidator -order to pay costs personally on indemnity basis - matter dealt with on the papers - failure to hear liquidator denial of procedural fairness - case remitted on question of costs.

APPEAL - leave to appeal - costs - where comparatively small amount of costs - where complex factual background - where no question of general public interest - where areas of factual dispute not resolved - where new argument raised in oral submissions

CORPORATIONS - oppression - private company - breakdown in relationship - funds urgently required - majority make secured advance - minority fully informed - refused to contribute - no oppression CORPORATIONS - oppression - private company - breakdown in relationship - majority selling assets to new company owned by them at fair valuation - minority fully informed - declined to make higher offer or obtain further valuation - no oppression CORPORATIONS - oppression - private company - breakdown in relationship - majority undertaking informal winding up - formal winding up no benefit to minority - no oppression DIRECTORS - duty to act in good faith for benefit of company - company in difficulties - majority making secured advance to preserve assets - breach of duty not established MORTGAGES - advances made before security granted - advances pursuant to agreement to grant security - made under security when granted - no preference VALUATION - retrospective - events after valuation date - known contingencies at valuation date - evidence of later events admissible

HUMAN RIGHTS - discrimination - sexual harassment and victimisation - unwelcome conduct of a sexual nature - how judged -requirement that the conduct be unwelcome to the complainant - vicarious liability - defence under s106(2) of the Sex Discrimination Act 1984 PROCEDURE - pleadings - application to have particulars struck out - application for leave to amend statement of claim

PRACTICE AND PROCEDURE - Application for stay of writ of possession - Default for considerable period of time - Adjournment of many previous notices to vacate - No real attempts to address indebtedness - No steps to offer property for sale - No diligent attempts to refinance loan - Notice of motion dismissed

PROTECTED ESTATES - application for removal of manager of estate - whether in best interests of protected person that management of estate be transferred to NSW Trustee - where manager of estate received gifts from protected person - manager of estate must proceed on basis that unless Court decides otherwise protected person is not capable of managing his affairs and is not capable of giving away his own money - manager of estate has obligation to act in interests of protected persons and cannot without the approval of the Court accept gifts from the protected person

CRIMINAL LAW - unfavourable witness - application by Crown to cross-examine Crown witness on ERISP - matters considered in granting leave.

INTEREST - interest to run from date on which family relationship broke down - delay in giving notice of claims - no evidence of prejudice to Defendants from absence of earlier notice of claim. COSTS - order for costs against Defendants advancing joint defence to be joint and several.

HUMAN RIGHTS - discrimination - sexual harassment and victimisation - unwelcome conduct of a sexual nature - how judged -requirement that the conduct be unwelcome to the complainant - vicarious liability - defence under s106(2) of the Sex Discrimination Act 1984 PROCEDURE - pleadings - application to have particulars struck out - application for leave to amend statement of claim

WILLS AND ESTATES - family provision claim

Public passenger service - Taxi-cab service

CRIMINAL LAW - Possession of prohibited drug - Whether a penalty other than imprisonment appropriate - Whether decision to impose sentence of imprisonment elided with decision to impose suspended sentence - Whether quantity of drug in supply range significant - Whether futile to impose sentence effectively served - Suspended sentence quashed - Direction to enter good behaviour bond for same period as suspended sentence

CRIMINAL LAW - application for leave to appeal against interlocutory judgment or order - s 5F(3) Criminal Appeal Act 1912 - refusal of application to quash indictment - whether indictment discloses an offence known to law - specially aggravated kidnapping - nature and scope of "advantage" within meaning of s 86(1) Crimes Act 1900 - leave granted - appeal dismissed

CRIMINAL LAW - appeal against sentence - whether sentences are manifestly inadequate - whether sentences reflect the objective gravity of the crimes - whether weight given to principle of general deterrence - whether error in allowing full utilitarian discount for the pleas

APPEAL - Defamation Act 1974 (NSW) - conduct of appellant as commander of Serbian troops - prior criminal convictions - imputations found to have been conveyed - defences of truth and contextual truth (NSW and TAS) - defences of truth and justification (other interstate jurisdictions) - TRUTH - matters and circumstances that establish the substantial truth of the imputations - JUSTIFICATION - whether Polly Peck or Hore-Lacy defence applies to interstate publications - verdict for the respondents.

CONTRACT - Contracts Review Act 1980 (NSW) - "asset lending" - deed of guarantee and mortgage by parents of borrower - parents obtained no benefit from transaction - failure of lender to make enquiries concerning ability of parents to repay in event of default - fact that parents guarantors and not borrowers no bar to relief - asset lending not a term of art but an expression applied in cases where contract may be found to be unjust. CONTRACT - unjust - Contracts Review Act 1980 (NSW) - relevant enquiry for the purposes of the Contracts Review Act, ss 7 and 9 is whether contract is unjust in all the circumstances of the case and whether it is just to grant relief - no requirement of moral obloquy on the part of the party against whom relief is sought.

TRADE AND COMMERCE - Fair Trading Act 1987 (NSW) - misleading and deceptive conduct - representations concerning matters connected with purchase of rural land - and (second) as to reliability of valuations in existence - reliance on Act not waived. TRADE AND COMMERCE - Fair Trading Act 1987 (NSW) - causation and relief - tortious analogue of loss not to be applied - misleading and deceptive conduct affected price negotiations - proper form of relief in circumstances - appropriate to order return of deposits. CONTRACT - election - affirmation - no affirmation in circumstances where purchasers sought to enforce rights as qualified by statutory remedies.

CRIMINAL LAW - appeal - plea of guilty in Local Court - Plaintiff out of time to appeal to District Court - Plaintiff seeks to appeal to Supreme Court against conviction - Plaintiff seeks order from Supreme Court that he be allowed to appeal to District Court - no power to make such order under Crimes (Appeal and Review) Act 2001 - observations concerning appeal against conviction to Supreme Court where plea of guilty by represented defendant in Local Court

CONTRACT - termination for breach - whether an intermediate term of the contract was breached - whether the breach was sufficiently serious to justify termination - whether termination for breach of intermediate term was valid where terminating party was also in breach of an intermediate term.

PRACTICE - security for costs - matters relating to exercise of discretion - where defendant's proposed cross-claim would cause issues in current proceedings to be litigated in any event - motion dismissed - no question of principle.

CORPORATIONS - application for removal of liquidator pursuant to s 503 of the Corporations Act 2001 (Cth) on grounds of apprehended bias - HELD - application dismissed - ESTOPPEL - whether plaintiff estopped from seeking removal of liquidator on Anshun principles - whether application for removal otherwise an abuse of process - HELD - Anshun estoppel established

EVIDENCE - Evidence of alleged inadequacy of discovery

ROAD TRANSPORT - summary prosecutions - issue of double jeopardy - breaches of height and width requirements of vehicles - whether breach of each requirement a separate offence

CRIMINAL LAW - claim for prerogative relief - summary prosecution in Children's Court - prosecution to call mother of defendant to give evidence - mother objects under s.18 Evidence Act 1995 - ruling that objection not available because of s.19 Evidence Act 1995 - construction of s.19 Evidence Act 1995 - error established - relief granted - recommendation for review of terms of s.19 Evidence Act 1995

MORTGAGES - claim for possession of land - mortgage default - application by Plaintiff for summary judgment - no arguable defence to claim for possession - summary judgment granted

PROCEDURE - notice of motion - leave sought under s 151D(2) of the Workers Compensation Act 1987 - leave granted

PROCEDURE - civil - pleadings - strike out; application to - statement of claim - law of Florida applicable

PROCEDURE - pleading - leave to file Amended Statement of Claim - whether causes of action disclosed - whether pleading is embarrassing - whether Plaintiffs should be permitted to replead after strike out.

ADMINISTRATIVE LAW - procedural fairness - whether entitled to - legitimate expectation - representations or assurance by Minister - content of hearing rule - notice and right to make submissions - practical injustice ROADS ACT - operation of Part 8 - existence of statutory precondition for exercise of discretion under Section 115 - entitlement to notice under Roads Regulation 2008 - meaning of "closure" for purposes of Roads Regulation 2008 - CROWN LANDS ACT - entitlement to object to minister's direction under section 70 - whether statutory precondition barring objection fulfilled - construction of recommendations of local land board - power of minister to direct removal of gates - power of minister to cancel enclosure permit

APPEAL - Appeal from judgment of District Court in Property (Relationships) Act 1984 (NSW) s 20 matter - appeal as of right restricted to matter at issue amounting to $100,000 or more, or claim demand or question amounting to $100,000 or more - value of matter at issue determined by whether realistic prospect of changing wealth of party by at least $100,000. FAMILY LAW - de facto relationships - property - division of assets and adjustment of interests - contributions - failure to apply ratio of contribution of the parties to the net assets - whether open to allocate no property to partner found to have made 40% of contributions - balancing initial and ongoing contributions - treatment of tax debt in calculating liabilities incurred during relationship - both parties to relationship receive benefits of unpaid tax - tax debt treated as liability to be borne by divisible property - duty to finally determine financial relationships between the parties under Property (Relationships) Act 1984 (NSW), s 19 - judge at first instance left party with rights to recover contribution for mortgage debt against other - practicable to end parties' financial relationship - evaluation of contributions of parties fails to correctly assess initial contribution - ongoing contributions weighed with initial contribution result in just and equitable apportionment of totality of contributions of 80:20 in favour of respondent. COSTS - Appeal substantially successful - costs of proceedings at first instance - starting point that costs should follow the event in de facto relationship cases unless court adjusts interests of parties of a value or amount not in excess of jurisdictional limit of Local Court - costs for first instance proceedings should be proportionate to adjustment of interests in context of amount in issue.

CRIMINAL LAW - general matters - ancillary liability - complicity - common purpose - particular cases - manslaughter - extended joint criminal enterprise - whether common purpose to intimidate can be foundational crime for incidental crime of assault

CRIMINAL LAW - evidence - judicial discretion to exclude or limit use of evidence - mandatory exclusion of prejudicial evidence - video footage - evidence is not misleading or confusing and does not give rise to unfair prejudice

PRACTICE AND PROCEDURE - application for leave under Felons (Civil Proceedings) Act 1981 - plaintiff serving sentences of imprisonment for serious indictable offences - claim for prerogative and declaratory relief - proposed proceedings seek orders requiring grant of legal aid for plaintiff's various criminal and civil appeals - no prima facie ground for relief sought - leave refused to institute proceedings

RESTRAINT OF TRADE - validity of restraint - legitimate interests - customer connection - confidentiality - whether restraint reasonable - relevance of legal advice to reasonableness of restraint - proportionality between protection of interests and duration/location of restraint. CONTRACTS - construction - parties - whether party bound personally when signing as director of company - whether objective intention to be bound can be ascertained - relevance of surrounding circumstances and text of contract. CONTRACT - meaning of termination - whether relevant distinction between effluxion of time and termination - contract to be read as whole - absurdity, commercial sense

GIFTS - Gifts Inter Vivos - whether made - whether undue influence - whether unconscionable to retain - imperfect gifts - authority to draw cheque - cheque drawn, presented and paid after donor's death - donee not requiring court's assistance to acquire cheque

CORPORATIONS - application for final injunction to restrain unitholder in registered management investment scheme from voting for an extraordinary resolution to wind up the scheme pursuant to ss 601NB and 601NE of the Corporations Act 2001 (Cth) - proper construction of joint venture agreement and trust deed provisions - whether statutory right to apply for winding up of scheme under s 601NB overrides a contractual provision to exercise voting rights so as to give effect to intent of a prohibition on sale of property without written consent of all unitholders - HELD - injunction granted to restrain vote in favour of proposed resolution

PROCEDURE - civil - interlocutory issues - application to vacate hearing - filing of expert reports - whether reports relevant - whether raise new issue - whether insufficient time to obtain expert in reply - in circumstance where substantial part of expert evidence only submissions - where can accommodate prejudice with additional time - not vacate hearing date

Administrative law - appeal from Local Court - whether Magistrate gave adequate reasons - error of law - defence involving fraud

COSTS - Interest on costs - rate of interest - UCPR 36.7(1) - earlier order that interest be paid "at the rates set out in Schedule 5" UCPR - effect of repeal of Schedule 5 and amendment of r 36.7(1) - rate at which interest payable prior to 1 July 2010 - proper construction of order COSTS - Interest on costs - time during which interest runs - earlier order reserving consideration of whether costs should continue to run - whether power to make order denying interest over past periods - power to make order denying interest over future periods - whether delay that makes it just for the successful parties not to receive interest on costs for a particular time - delay in preparing bill of costs before High Court special leave application determined - delay while Review Panel reviewed cost assessor's assessment - delay while appeal from Review Panel to District Court was on foot COSTS - Effect of the entitlement to an input credit for GST on extent of indemnity - COSTS - failure of costs assessor to disclose costs agreement between other party and solicitor - client legal privilege - procedural fairness

COSTS - Application of UCPR 42.1 - costs to follow the event - no adequate reason advanced for why costs should not follow the event.

PRACTICE AND PROCEDURE - Further medical report obtained for retrial - contents inconsistent with evidence at first trial - admissibility - report raising new issues already rejected - report admissible subject to deletion of rejected material.

RES JUDICATA - Anshun estoppel - later proceedings arising out of same matrix of fact - leave to amend refused in earlier proceedings on defendants' undertaking - later proceedings not within undertaking - stay property granted

TORTS - negligence - plaintiff falls into plate glass window when attending at defendants' home unit to undertake work - plaintiff contended that a reasonable person in the position of the defendants would have taken precaution of lowering blind over window to ensure it was not mistaken for a door - whether primary judge failed to apply the provisions of the Civil Liability Act - significance of accident-free history - fact that premises could be made safer does not mean they are dangerous or defective - Jones v Bartlett (2000) 205 CLR 166 applied

PRACTICE AND PROCEDURE - Subpoenas - solicitor fails to comply with subpoena for production - failure of issuer to provide conduct money - conduct money only mandatory for subpoenas to attend to give evidence - asserts failure to reach agreement as to costs incurred in complying with subpoena - Court has discretion to make costs orders for expenses incurred in complying with subpoena - discretion ordinarily occur post compliance - solicitor claims possessory lien entitling to refuse to produce - solicitor cannot simply disregard subpoena - solicitor must take positive steps to have subpoena set aside or oppose inspection.

MORTGAGES - claim for possession of land and monetary judgment - application for summary judgment - no arguable defence - clear case established - summary judgment granted

ASSOCIATIONS AND CLUBS - officers, trustees, servants and committees - association incorporated under Associations Incorporation Act 2009 - whether the Association's present committee of management is a group of persons elected in April 2009 or another group of persons elected in May 2011 - issues of construction as to whether the Association's constitution requires the committee of management elected in 2009 to retire by 31 December 2009 - and whether general meetings called on 3 January 2010 and 1 May 2011 were validly called in accordance with the Association's constitution.

DEFAMATION - assessment of damages following default judgment - matters complained of published on Internet

COSTS - successful opposition to application to extend caveat - costs follow the event

Administrative Law - error of law - no question of principle

APPEAL - Local Court - civil claim - verdict for Defendant after hearing - Defendant seeks order for costs - refusal to order costs - Defendant later applies to Local Court to vary costs order - Magistrate holds is functus officio - whether leave to appeal ought be granted under s.40 Local Court Act 2007 - error in refusal to order costs - no error in holding was functus officio - desirability of use of gross sum costs orders for Local Court costs and appeal costs