Cases and authorities

CRIMINAL LAW - unfavourable witness - whether leave granted to Crown to cross-examine should be extended - considerations of fairness.

CRIMINAL LAW - Criminal Assets Recovery Act 1990 - Notice of motion seeking orders for the examination of first and fourth defendants refused - Current notice of motion seeks same examination orders and includes non-publication order application - Whether orders sought constitute revisiting of orders formerly sought by the notice of motion or before Court of Appeal - Non-publication orders are relevantly identical under s 62 of the Criminal Assets Recovery Act and s 7 of the Court Suppression and non-publication Orders Act - No change in circumstance - Application constitutes abuse of process - Application dismissed

CRIMINAL PROCEDURE - Committal proceedings - co-accused appearing in different courts - witness cross-examined in committal proceedings in the Local Court - Children’s Court Magistrate refused to make attendance direction for witness under s 91 of the Criminal Procedure Act 1986 - no error or injustice or apprehension of injustice by refusal to make order

COSTS: Costs of motion without decision on merits - Section 131 Evidence Act

CRIMINAL LAW - murder - judge alone trial - fitness hearing

Introduction agency - allegations of misleading and deceptive conduct - allegations of unconscionable conduct -accessorial liability of the second defendant - ex parte proceedings

CRIMINAL LAW - murder - judge alone trial - not guilty by reason of mental illness

APPEAL - cross appeal - leave to appeal - failure to give reasons - illogicality of reasoning - whether findings based on evidence - whether certain issues were overlooked - failure to give effect to certain provisions of the lease - Land Tax Management Act 1956 - section 170 of the Conveyancing Act 1919 - mixed questions of fact and law - error of law established - appeal upheld and matter reheard - claims for unpaid rent - abatement of rent - unpleaded point - cross appeal upheld - claim for outgoings - land tax - water and council rates - painting - fire hydrant services - property management fees - pre-judgment interest COSTS - costs of arbitration - costs below - costs of the appeal

TRUSTS - constructive trust - order for equitable compensation reflecting proceeds attributable to plaintiff's interest in properties where substratum of family relationship fails without attributable blame - return of contributions

PROCEDURE - civil - application to have District Court judgment entered in relation to a costs assessment set aside - consideration of indemnity costs- whether a costs order should be made against costs review panel and Attorney General.

PROCEDURE - civil - pleadings - statement of claim - strike out, defendant's application to - stay proceedings, defendant's application to APPEAL - civil - plaintiff's application for orders in place of those made below - plaintiff's application for an order that default judgment be entered.

PROCEDURE - civil - application for joinder as defendant - application for default judgment for possession to be set aside - whether applicant has an arguable defence

PROCEDURE - costs - departing from the general rule - unrepresented litigant - unfortunate circumstances - indemnity costs sought - not granted

Application for the adoption of a child - Child is over 12, but less than 18, years old - Child gives consent to adoption - Birth mother does not consent. Birth father does not contest adoption and is party to Adoption Plan - Child wishes surname to be the same as adoptive parent - Opposition by natural mother.

CRIMINAL LAW - appeal against sentence - attempt to possess commercial quantity unlawfully imported border controlled drug - parity

CRIMINAL LAW - application for leave to appeal against severity of sentence - plea of guilty - importing not less than the marketable quantity of a border controlled drug - cocaine - criminal history provided by Interpol - particular outcomes not identified - independent evidence of record of previous offences - error in introducing an 'exceptional circumstances' test to exercise of discretion - lesser sentence warranted - leave granted - appeal allowed - sentence quashed - applicant re-sentenced

CORPORATIONS- redeemable preference shares- whether shares can be "redeemable preference shares" if there are no issued shares over which they take preference- the rights described in the articles of association determine whether shares are preferential- there is a distinction between the rights attached to a share and the enjoyment of those rights- shares with potential preferential rights but no effective content may be preference shares- appeal allowed- redemption effective.

TORTS - personal injury - dismissal of claim for damages - future economic loss - loss of earnings and diminution of earning capacity - stay of proceedings pending provision of adequate particulars and full discovery - orders sought preventing supplementing evidence served to date - orders sought preventing reliance at trial upon reports of forensic accountants - litigation by ambush - delay in prosecuting case - protracted course of proceedings - sufficiency of discovery - serial non-compliance with orders of judicial officers

CORPORATIONS - statutory demand - application to set aside statutory demand - where statutory demand for judgment debt arising from registration of foreign judgment under Part 2 of the Foreign Judgments Act 1991 (Cth) - where plaintiffs have applied to have the registration of the foreign judgment set aside - where application to have registration of foreign judgment set aside not determined - circumstances analogous to case where statutory demand based on judgment debt and there is a pending appeal which has not been determined and no order staying execution of judgment - arguable grounds for setting aside registration of judgment - there is some other reason to set aside demand if the debt claimed is secured by payment into court or by other means - statutory demand set aside on the condition that plaintiff pay sum claimed in statutory demand into court or otherwise provide an assurance of payment by way of bank guarantee

PRACTICE - application to modify confidentiality undertakings - where grant of application would enable a party to use a confidential document produced under subpoena in present proceedings for preparation of fresh proceedings against a non-party - whether 'special circumstances' exist such that the undertaking ought to be varied - breadth of 'special circumstances' test.

TECHNOLOGY AND CONSTRUCTION - motion for summary dismissal of plaintiff's claim for breach of statutory warranty and negligence - s 18B of the Home Building Act 1989 (NSW) - statutory warranties as to quality of construction work - s 18E(1) of the Home Building Act 1989 (NSW) - proceedings for breach to be commenced within seven years of completion of work - ss 23(1), 24(1), 24(2) and 33 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) - Reg 11(1) of the Consumer, Trader and Tenancy Regulation 2009 (NSW) - s 14(1) of the Limitation Act 1969 (NSW) - whether Home Building Division application lodged with Consumer, Trader and Tenancy Tribunal a nullity such that proceedings statute-barred - held Holding Building Division application contains sufficient particulars - held proceedings also not nullified by failure to comply with regulations - held limitation issues should not be determined in advance of trial where insufficient is known of damage sustained - summary dismissal refused

MORTGAGES - claim for possession of land and monetary judgment - mortgage default - application by Plaintiff for summary judgment - fraud exception under s.42 Real Property Act 1900 - subrogation - summary judgment granted for possession of land but not monetary judgment - application for summary dismissal by Registrar General - whether reasonable cause of action for compensable loss under s.129 Real Property Act 1900 - summary dismissal granted - pleading issues - leave to amend Defence and Cross-Claim refused - leave granted to serve further proposed Amended Defence and Amended Cross-Claim

EVIDENCE – insider trading offences charged under s.1043A of the Corporations Act 2001 (Cth) – 10 counts charged against two accused – applications for orders determining admissibility of evidence in the Crown case particularised in a Notice of Coincidence Evidence being evidence in relation to each of the counts charged against each accused and evidence in relation to three uncharged maters – orders sought for separate trial of some charges – ADMISSIBILITY OF EVIDENCE – s.98(1)(b) and s.100(2) of the Evidence Act – approach to be taken when assessing “significant probative value” of coincidence evidence – meaning of “probative value” – distinction between probative value under s.98(1)(b) and actual probative evidence at trial – whether in evaluating evidence under s.98(1)(b) alternative rational inferences or explanations to those contended for by the Crown must be evaluated and assessed so as to determine whether the inferences relied upon by the Crown have greater strength than the alternative inferences – approach to be taken in a circumstantial evidence case – proof of facts in issue by inferential reasoning.

COSTS - costs assessment - appeal on questions of law PLEADINGS - application to strike out claims alleged to have been determined by previous consent orders

EVIDENCE - admissibility - mediation privilege - whether s 30 of the Civil Procedure Act applies - s 30 only applies to court ordered mediation under Part 4 of Civil Procedure Act - other mediations do not attract mediation privilege of s 30 RESTITUTION - account stated - accounts as admissions of debt - whether statute barred - limitations period runs from time of accrual of underlying debt or cause of action, not time of admission - documents relied upon do not constitute admissions

CRIMINAL LAW - Crown appeal on sentence - Respondent convicted at trial of three offences - supply large commercial quantity of methylamphetamine - supply commercial quantity of MDMA - supply MDMA - Respondent a principal in drug supply enterprise - standard non-parole period offences - errors in determination of objective seriousness - limited relevance of non-dissemination of drugs into community - markedly excessive weight given to Respondent's medical condition - subjective factors allowed to overwhelm objective seriousness of offences - failure to give proper regard to standard non-parole periods - sentences manifestly inadequate - Respondent resentenced

CRIMINAL LAW - sentence appeal - entering a building with intent to commit serious indictable offence (assault occasioning actual bodily harm) - sentencing Judge declined to find "special circumstances" - claim of error in failing to take into account Applicant's risk of institutionalisation as "special circumstances" - argument not advanced in District Court - error not established - no lesser sentence warranted in any event - appeal dismissed

STATUTORY INTERPRETATION- Home Building Act 1989, ss 18C and 18E- s 18C imposes a contract for the work between developer and successor in title- what are the terms of that notional contract- is one cause of action only created- what is meant by "completion of the work" in s 18E- when completion of the work occurred is a question of fact properly found by the primary judge. STATUTORY INTERPRETATION- Civil Liability Act 2002, s 34- whether a claim under s 18C of the Home Building Act 1989 is an action for damages from a failure to take reasonable care discussed.

WILLS AND ESTATES - family provision claim - financial resources and needs of claimant - only possible to provide for one claimant - claimant daughters needs were great however estate it was not possible to make provision for claimant - widow's claim prevailed over daughter's claim

PRACTICE AND PROCEDURE - costs - rule as to costs where a proceeding is resolved without a hearing - where orders made by consent - court will not try an hypothetical action to determine who would have succeeded in order to decide questions of costs - consent orders represented a compromise of the parties' position PRACTICE AND PROCEDURE - interest - where parties agreed that defendants would purchase plaintiffs shares at price determined by valuation - whether interest payable on unpaid purchase price - whether consent order for payment of purchase price is a judgment debt - whether consent order for payment of purchase price an order for payment of money - defendants' obligation to pay money and plaintiffs' obligations to transfer shares dependent and concurrent obligations - purchase price not payable except against the receipt of duly executed share transfers and share certificates - claim for interest rejected

CORPORATIONS - Corporations Act 2001 (Cth) s 459G(1), 459H(1) - application to set aside a statutory demand - genuine dispute as to existence of debt - statutory demand set aside

COSTS - second defendant represented by director - whether entitled to recover costs - equivalent of litigant in person - can recover for costs incurred in course of proceedings but not time spent in connection with proceedings - no order for indemnity costs

DAMAGES - motor vehicle accident - cost of managing future fund management costs - cost of managing future fund income - appropriate rate of assumed earnings on fund

Costs - costs ordered against plaintiffs where application to extend caveat could not have succeeded

Adjustment of property interests pursuant to section 20 of the Property (Relationships) Act 1984 - application for extension of time - leave sought to commence substantive proceedings - whether an occupation fee should be taken in to consideration - defendant won the domestic home in a competition

CRIMINAL LAW - severity appeal - whether sentence manifestly excessive - where sentencing judge found "special circumstances" - where sentence failed to give effect to that finding - non-parole period reduced by 2 months

CRIMINAL LAW - evidence - propensity, tendency and co-incidence - relevance - for particular purpose - to assert a tendency to act violently and possess and use weapons - evidence of prior convictions of a witness - evidence does not have significant probative value

CORPORATIONS - practice and procedure - winding up in insolvency - application to set aside order dismissing application to set aside statutory demand made in the absence of the party - where party did not receive notification of hearing date due to incorrect email address being used - plaintiff entitled ex debito justitiae to have orders set aside - orders set aside pursuant to r 36.16(2)(b), Uniform Civil Procedure Rules 2005 - effect of setting aside order on presumption of insolvency - presumption of insolvency arose 7 days after application to set aside statutory demand was finally determined or otherwise disposed of - make order setting aside order dismissing application to set aside statutory demand with retrospective effect

COSTS - Costs of motion follow the event

PRACTICE - summary disposal - application to set aside default judgment - whether defendant had a good defence on the merits - application dismissed.

ADMINISTRATIVE LAW - Building Professionals Board - investigator appointed to investigate complaints against certifier - finding by Board of professional misconduct on part of certifier based on investigator's report - investigator did not seek response from certifier concerning material allegations contained in report - Board did not afford certifier reasonable opportunity to be heard on whether conduct constituted unsatisfactory professional conduct or professional misconduct or the appropriate disciplinary orders - denial of procedural fairness.

CORPORATIONS - liquidator intending to retire as insolvency practitioner and resign appointments - orders made to fill the vacancy and having the effect of extending or abridging the period for filing of reports under s 539(1) of the Corporations Act 2001 (Cth) to avoid duplication of reports

CORPORATIONS - application for appointment of liquidator - s 502 of the Corporations Act 2001 (Cth) - where company in liquidation without liquidator -- r 7.2 of the Supreme Court (Corporations) Rules 1999 (NSW) - whether plaintiff can bring the application where it is neither a creditor nor a contributory of the company - held r 7.2(2)(a) does not create a closed class - held s 502 of the Corporations Act 2001 (Cth) does not restrict who may properly make the application - s 14 of the Civil Procedure Act 2005 (NSW) - if it were otherwise the present case is an appropriate one in which to dispense with rule - r 1.8 of the Supreme Court (Corporations) Rules 1999 (NSW) - liquidator appointed

AGENCY - real estate agent - whether entitled to commission - whether statement of claim for commission served - whether "introduced" for purposes of agency - held in favour of agent

Caveat - form of caveat - whether description of interest adequate - leave to lodge further caveat.

WILLS AND ESTATES - family provision claim - competing claims or interests - contributions by the plaintiff - obligations owed by deceased - relationship with the deceased - nature and extent of estate - charges on property - deceased's daughter sole beneficiary - daughter bankrupt - deceased severed joint tenancy with plaintiff prior to death - deceased and plaintiff living separately and apart under the one roof - plaintiff provided some financial support for deceased and cared for deceased until his death - whether deceased had a moral obligation towards plaintiff.

CONTRACT - construction - identifying contractual terms - informal agreements - implied terms - use of surrounding circumstances - use of conduct of parties - use of post-contractual conduct - can use course of dealing as relevant to ascertaining terms in informal contracts. CONTRACT - construction - informal agreements - implied term - reasonable notice - whether 2 weeks' notice reasonable - held sufficient. CONTRACT - termination - informal contract - breach of term that would not export - whether condition of contract - only intermediate term - breach insufficient to give rise to the right to terminate. EQUITY - fiduciary duties - agency - scope of fiduciary duty - whether conflict of interest involved breach of duties in this case - held not. DAMAGES - award of nominal damages for breach of contract - not appropriate in this case. TORT - intentional - conversion - no immediate right to possession - no contractual right to goods

COSTS - security for costs - leave to appeal - power of district court to stay proceedings brought by individual plaintiff pending provision of security - Civil Procedure Act 2005 (NSW) s 67 - judicial discretion - no error of principle identified PROCEDURE - civil - leave to appeal - apprehended bias - previous professional relationship with judge - allegations to circumstances of termination - non-disclosure of details - absence of clear evidence - conduct of judge during hearing - tapes obtained but not tendered - whether arguable ground of appeal PROCEDURE - civil - leave to appeal - waiver provided as condition of order for access to premises - lawfulness of condition

ENVIRONMENT AND PLANNING- construction of development consent- consent for "establishment of a commercial development"- intention to change shop and caf to a "mixed media exhibition"- whether covered by existing use rights- development consent never tendered- whether appellant could rely on former s 91(4) of EP&A Act (now s 81A(1)) as to purpose of development consent. WORDS & PHRASES- "purpose", "retail premises", "business premises".

ADMINISTRATIVE LAW - Local government - Local Government Councils have power to sell ratepayer's real property under (NSW) Local Government Act s 713 if ratepayers fail to pay rates for five or more years - Local Government Act s 582 affords Councils a discretion to waive outstanding rates for pensioner ratepayers - defendant Council has policy to not exercise power to sell land of pensioners' who have not paid rates except in 'exceptional circumstances' - pensioner does not pay rates for 10 years - Council sells property - policy gives rise to legitimate expectation Council would not sell property - if Council proposed to sell pensioner's property contrary to policy obliged to inform pensioner as to what 'exceptional circumstances' alleged and to afford pensioner opportunity to make submissions as to why policy should not be departed from - Council fails to afford pensioner opportunity to make submissions - pensioner denied procedural fairness. ADMINISTRATIVE LAW - Remedies - where act or decision contrary to natural justice - discussion of authorities - decisions contrary to natural justice are retrospectively void ab initio - if relief discretionary, circumstances of current case including illness of pensioner plaintiff and absence of manifest prejudice to second defendant would not warrant declining relief.