Cases and authorities

COSTS - Preliminary discovery ordered against defendants - whether plaintiff or defendants should pay costs of preliminary discovery proceedings - relevance of adversarial and non-adversarial conduct - characterisation of parties' conduct

PROCEDURE - pleadings - dispute as to issues raised - whether issues identified in case management document properly raised on pleadings - whether plaintiff should be granted leave to amend EVIDENCE - second defendant seeking to call a witness without notice after being directed to provide evidentiary statements from all witnesses - late forensic decision - where first defendant had decided not to go into evidence and court had excused interstate witness on different assumption as to the evidence to be adduced - party precluded from calling witness

CRIMINAL LAW - sentence - murder - late guilty plea - offence above mid range of objective seriousness - offender hired to provide protection for a drug deal - possess firearm - supply large commercial quantity of methtylamphetamine - amendment of indictment to reflect correct law part code - supply cocaine - discount for assistance to authorities - expression of remorse and sound prospects of rehabilitation - no finding of special circumstances.

Negligence - Solicitor - Advocates immunity - Easement

Notice of motion seeking to amend Statement of Claim so as to join a second Defendant and seeking an order pursuant to r 7.6(1)(c) of Uniform Civil Procedure Rules

SUCESSION - whether informal document made after will purported to state testamentary intention of deceased - turns on facts - no questions of general principle - section 8 Succession Act

REAL PROPERTY - easements - right of carriageway - whether defendant contractually bound to grant a registered easement to provide for relocation and extension of existing right of way - where registered right of way gave plaintiff access over defendant's land to public roads leading to nearby town rendered impassable by defendant - where plaintiff gave only partial assent to proposal for relocation and extension and no confirmation or suggestion that agreement had been made - no offer or acceptance leading to contract for relocation and extension of right of way - no consideration for variation of right of way - no contract for grant of extended right of way REAL PROPERTY - easements - right of carriageway - equitable estoppel - whether defendant estopped from denying that plaintiff and his successor in title are entitled to extension of existing right of way - where registered right of way gave plaintiff access over defendant's land to public roads leading to nearby town rendered impassable by defendant - where defendant induced plaintiff to assume or expect that he would be entitled to use relocated and extended right of way - where plaintiff both acted on assumption that he was entitled to use relocated and extended right of way by using it and abstaining from taking steps in enforcing his entitlement to use existing right of way to obtain access to public roads leading to nearby town - all necessary elements of equitable estoppel satisfied - defendant estopped from denying the plaintiff is entitled to relocated and extended right of way - terms of extension of easement should follow terms of registered easement REAL PROPERTY - easements - right of carriageway - who is entitled to use right of way - whether grant of easement to grantee and "his agents servants and workmen" extends to grantee's invitees and licensees - words in grant mentioning persons entitled to use the easement illustrative and not restrictive REAL PROPERTY - easements - right of carriageway - obligation to maintain - whether defendant under obligation to install or maintain a crossing over a creek on part of the route of the right of way - where defendants had installed culvert bridge crossing, subsequently removed it and blocked access to crossing - no evidence as to condition of creek at site of crossing and whether crossing as trafficable as it was prior to construction of culvert bridge - defendant interfered with the creek crossing by construction of culvert bridge and its subsequent removal of the bridge and re-contouring of the creek - defendant required to take all steps necessary, including obtaining approval, for the construction of a vehicular crossing at least as adequate as crossing that existed before culvert bridge constructed

CRIMINAL LAW - manslaughter - directed verdict - no evidence upon which jury could properly convict - significant gaps in Crown case when taken at its highest - cause of death and deliberate act speculative - jury not permitted to overcome gaps by engaging in impermissible conjecture - verdict directed on manslaughter.

PRACTICE AND PROCEDURE - Notice to Produce - public interest immunity - proceedings for judicial review of exclusion order by Commissioner for Corrective Services - claim for public interest immunity over some documents relied upon by the Commissioner for his decision - whether s 130 Evidence Act applies - whether information and documents concern "matters of state" - balancing exercise between public interest in disclosure and preserving confidentiality - claim of public interest immunity upheld.

PRACTICE AND PROCEDURE - applications by Attorney-General for summary dismissal of summonses brought by litigants in person - refusal by Magistrate to sign Court Attendance Notices directed to Supreme Court Judges - nature of function performed by Magistrate - whether statutory right of appeal exists in relation to the exercise of that function by a Magistrate - summonses to be treated as applications for prerogative relief - no basis for exercise of prerogative relief disclosed - summonses dismissed on the basis that they have no prospects of success

CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - visual identification evidence - whether it was reasonable not to have held an identification parade - Complainant knew Defendant - s 114 Evidence Act - whether "identification" includes out-of-court identification.

DECLARATIONS - requirements for declarations - need for actual controversy CORPORATIONS - share capital reduction - conversion of company title to strata title -Sections 257A, 258B and 259A of Corporations Act 2001 (Cth) CONTRACTS - construction of ambiguous provisions - relevance of parties' omission to address specific matter - totality of willingness to agree STATUTORY INTEPRETATION - aids to interpretation - use of examples - use of headings - Sections 13 and 15AD of Acts Interpretation Act 1901 (Cth) STAUTORY INTERPRETATION - consistency - whether terms in same Act to be given consistent reading DUTY OF COUNSEL - submissions - need for moderation and restraint - just, quick and cheap resolution of issues FINALITY OF LITIGATION - limited power to re-open - undesirability of re-litigation of decided issues

REAL PROPERTY - partition of land - statutory trust for sale or partition - dispute as to trustees - appropriate principles - costs - whether circumstances displaced usual approach to costs of both parties as proceeds of sale.

CRIMINAL LAW - conviction appeal - whether trial Judge erred in refusing to direct acquittal of Applicant - obtaining financial advantage by deception - need to establish causal connection between deception used and financial advantage obtained - clear adverse inferences arising from documents together with evidence from officers of relevant financial institutions - no error in declining verdict by direction - extension of time to appeal refused

CRIMINAL LAW - conviction appeal - applicant seeking to rely upon fresh evidence relating to earlier convictions relevant to conviction appealed from - application to cross-examine juror from earlier trial as to impact evidence would have had upon the jury's deliberations at that trial - application to cross-examine a police witness as to compliance with order to produce

CRIMINAL LAW - appeal - sentence for murder - parity between co-offenders - whether insufficient differentiation between sentences based upon level of culpability

Criminal law - appeal against sentence - offences of aggravated break, enter and steal and break, enter and steal - whether sentences manifestly excessive - whether error in failing to take into account that various of the offences could have been dealt with in the Local Court

CRIMINAL LAW - application for leave to appeal against severity of sentence - break and enter of a school by applicant and younger brother - property stolen - arson - fire lit to destroy bloodstain left by applicant - extensive damage caused by fire - at liberty on bail at time of offences - error in finding that aggravated break enter and steal of mid-range of objective gravity - assessment influenced by greater objective seriousness of arson offence - failure to make appropriate allowance for special circumstances - leave granted - appeal allowed - applicant re-sentenced CRIMINAL LAW - particular offences - s 112(2) Crimes Act aggravated break enter and commit serious indictable offence - s 195(1)(b) intentionally causing damage to property by fire

CRIMINAL LAW - sentence - appeal against sentence - accessorial liability - accessory before the fact to common law offence of Misconduct in Public Office - whether sentence imposed on first co-offender gave rise to justifiable sense of grievance on part of second co-offender - sentencing judge erred - sentencing judge imposed disproportionately severe sentence on second co-offender compared to first co-offender - appeal allowed - aggregate sentence of imprisonment set pursuant to Crimes (Sentencing Procedure) Act 1999, s 53A(1)

CRIMINAL LAW - sentence - 3 offences of assault - no consideration of special circumstances - variation of statutory ratio for individual offences - no allowance for variation when sentences accumulated - error in not considering special circumstances - whether another sentence should be imposed - non-parole periods varied.

CRIMINAL LAW - evidence - credibility - prior inconsistent statements - contradicting denials by witness by proof of prior representations recorded in business records - CRIMINAL LAW - evidence - relevance - whether prior representations relevant to facts in issue

TORTS - negligence - dangerous premises - injuries to persons entering premises - invitees - plaintiff visiting domestic building site - fall through void for proposed stairwell to floor below - no physical barriers in place - whether risk obvious - whether plaintiff not aware of risk - whether contributory negligence - DAMAGES - measure and remoteness of damages in actions for tort - measure of damages - personal injuries - loss of earnings and earning capacity - change in work circumstances - assessment of earnings not based on past earnings but upon basis of that of replacement salesman

CORPORATIONS - practice and procedure - registration of charges - application for order rectifying Australian Register of Company Charges - where prescribed form incorrectly stated that plaintiff's charge had been discharged or released - orders sought must be addressed to Australian Securities and Investment Commission - Australian Securities and Investment Commission necessary party to application ordered that Australian Securities and Investment Commission be joined as a defendant

CORPORATIONS - Oppressive Conduct of Affairs - quasi-partnership as in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 - who were the partners - lease of business premises taken in the name of first defendant - first plaintiff conducting the business locked out - whether Corporations Act 2001 (Cth), s 232 applies - whether third plaintiff a director of the first plaintiff although not validly appointed - whether damages for loss of goodwill in addition to lost profits should be awarded

PROCEDURE - notice of motion - orders seeking dismissal of claim - whether the claim an abuse of process - limitation of actions - s 50C of the Limitation Act 1969 - operation of Limitation Act 1969 - whether limitation period expired before proceedings were commenced - whether all reasonable steps taken - s 50D of the Limitation Act 1969 - claim not established - motion dismissed - costs

PROCEDURE - Notices to Produce - production of documents for intended Motion for security for costs - whether notice was a fishing expedition or required documents for an improper purpose - whether bank accounts and tax returns were relevant to the question of whether the claimants were "ordinarily resident" out of the jurisdiction.

INSURANCE - leave sought to institute proceedings under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 - claims made policy - consideration of the policy - when the relevant event occurred - arguable case established - s 54 of the Insurance Contract Act 1984 (Cth) - leave sought granted

PROCEDURE - notice of motion - order seeking summons to be dismissed - declaration that defendants are not able to raise or rely on any objection to the plaintiff's applications for assessment of bills of costs - res judicata - issue estoppel - Anshun estoppel - summons dismissed

REAL PROPERTY - appointment of trustees for sale - section 66G of Conveyancing Act - whether contractual entitlement against exercise of discretion - property at risk of mortgagee's sale - no question of general principle

FAMILY LAW - de facto relationship - adjustment of property interests - s 20, Property (Relationships) Act 1984 (NSW) FAMILY LAW - de facto relationship - evaluation of contributions of parties over 13 year period of cohabitation - relevance of initial contributions where real estate purchased partway through relationship - evaluation of non-financial contributions - discretion of trial judge to determine methodology when considering s 20 order - need to articulate findings and reasons for order - whether adjustment order just and equitable FAMILY LAW - de facto relationship - departure of one co-owner from co-owned property - whether departed co-owner entitled to occupation fee

INSURANCE - trustee of superannuation fund took out insurance providing benefits upon total and permanent disablement of members (TPD) - entered into new policy with different insurer - member of fund unfit for full time work but fit for part time work - member alleged old policy provided TPD benefits if fit for fulltime work but new policy did not and so provided lesser benefits - whether new policy provided lesser TPD benefits than old policy - no consistent course of construction or application of wording - old policy did not provide TPD benefits if fit for part time work EQUITY - as above - member alleged breach of fiduciary duty owed by trustee to members or of duties owed pursuant to covenants in ss 52(2)(b), (c) Superannuation Industry (Supervision) Act 1993 (C'th) - alleged breach because new policy provided lesser TPD benefits than old policy - no breach because no lesser TPD benefits - no meaningful challenge to trial judge's finding that in any event trustee did not err in exercising discretionary power in entering into new policy - covenants in Superannuation Industry (Supervision) Act did not materially add to trustees general law duties - member otherwise not entitled to TPD benefits because unemployment not shown to be due to sickness, illness or injury

CONTRACTS - general contractual principles - construction of contract CONTRACTS - general contractual principles - anticipatory breach - negotiations for substituted performance fail - repudiation - whether election to affirm CONTRACTS - general contractual principles - repudiation - where terminating party is in breach of a non-essential term - whether breach of non-essential term negates right to terminate for repudiation

Subpoena - Application to set aside - limiting scope of subpoena.

CONTRACTS - General contractual principles - sale of real estate agents' rent roll - vendor/plaintiff claims balance of purchase price - purchaser/defendant alleges vendor in breach of contractual provisions relating to the transfer of the rent roll properties - HELD: no breach of contract. TRADE PRACTICES ACT - Trade Practices Act, 1974 and related legislation - purchaser/defendant claims rent roll sale contract induced by the vendor's misleading and deceptive conduct - HELD - no misleading and deceptive conduct.

Application to set aside statutory demand - defendant consented to application to set aside demand shortly before hearing - costs.

Costs thrown away by vacating the hearing date - whether costs should be paid forthwith on a gross sum basis - whether costs should be paid forthwith.

CRIMINAL LAW - sentence - manslaughter and affray - melee between rival motorcycle club members at airport - deterrence and denunciation - plea of guilty - favourable subjective case - special circumstances - parity with co-offenders

PRACTICE AND PROCEDURE - Application for stay of writ of possession - defendants require further time to obtain finance to discharge debt - case for stay weak - no prejudice to be suffered by plaintiff - stay granted.

Striking out of part of a defence which discloses no arguable defence; refusal of leave to file Amended Statement of Cross-Claim; application of Civil Procedure Act sections 56 - 59 and Uniform Civil Procedure Rules r 14.28.

CORPORATIONS - Corporations Act 2001 (Cth) ss 459J(1)(b), 459E(3) - statutory demand - where statutory demand relies on judgment debt but claims a different amount because of an amount received reducing the debt and also claims interest - requirement for accompanying affidavit in respect of amount received - statutory demand set aside

PROCEDURE - Whether order for costs should be stayed.

PROCEDURE - Abuse of process.

APPEAL - Leave to appeal - interlocutory judgments and orders - relevance of matter decided in interlocutory judgment continuing to be open to challenge on appeal from final decision - where reversal of an interlocutory decision would not avoid a first trial, or require a second trial - insufficient prospects of success on appeal to justify the grant of leave - whether primary judge erred in granting leave to amend Statement of Claim - whether primary judge erred in granting leave to withdraw admissions - whether orders entered were materially different to those pronounced in open Court - relevance of s 56 Civil Procedure Act 2005 to applications for leave to appeal COSTS - costs of application where leave to appeal against one judgment not granted and application for leave to appeal against a different judgment only pressed if leave to appeal against the first judgment were granted - where issues involved in both applications thoroughly enmeshed - where second application purely defensive

CRIMINAL LAW - Plea of guilty in Local Court - Non-compliance with requirement of s 192 of the Criminal Procedure Act 1986 that the court state the substance of the offence to the accused - Whether plea thereby invalidated.

LANDLORD and TENANT - Occupancy agreement for stand in Paddy's Markets - Whether a "retail shop lease" within s 3 of the Retail Leases Act 1994 - Whether the stand was a "retail shop" - Whether the stand was "premises" - Whether the stand was used or proposed to be used for the purpose of the business of "gift shop" and/or "stationery shop".

MEDICAL PROFESSION - Appeal from decision of Chiropractors Tribunal on point of law - powers of Tribunal conditional upon finding chiropractor convicted of a criminal offence and circumstances of offence such as to render chiropractor unfit in the public interest to be registered - Tribunal did not find chiropractor so unfit - no power to impose condition - error of law - conditions imposed on professionals - conditions do not necessarily entail professional unfit to practice - conditions may be imposed to secure and maintain public confidence in the profession MEDICAL PROFESSION - Whether chiropractor not of good character - error of law established only if tribunal bound to conclude on facts chiropractor not of good character of if it misapprehended its task - failure by chiropractor to notify Board of conviction within requisite time - notification only one working day late - cannot inform judgment not of good character - impact of criminal convictions - convictions do not necessarily mean professional unfit to practice - crime committed at lower end of scale of criminal wrongdoing - failure of chiropractor to admit wrongdoing before Local and District Courts and Tribunal - many reasons people do not admit wrongdoing - Tribunal took matter into account - no error of law. MEDICAL PROFESSION - Unsatisfactory professional misconduct under (NSW) Chiropractors Act s 25 - notification to Chiropractors Board of criminal conviction one day late - technical breach of Act constituting professional misconduct - triviality of breach entails no need for consequential order.

CORPORATIONS - voluntary administration - application under Corporations Act 2001 (Cth), s 447A for order curing defect relating to appointment of voluntary administrators - where administration initiated by two directors of public company required to have at least three directors - where direction resigned due to concerns as to appropriateness of appointment of voluntary administrators to the company - second meeting of creditors - extension of convening period - extension of time in interest of creditors generally

CORPORATIONS - costs - application to set aside statutory demand - where orders made by consent setting statutory demand aside - prima facie position that a successful party is entitled to its costs is not displaced merely because the opposite but unsuccessful party to the litigation has acted reasonably - where plaintiffs asserted basis for off-setting claim in further affidavits not clearly raised in supporting affidavit - had basis for off-setting claim been clearly raised in supporting affidavit case would not have been further defended - plaintiff not entitled the whole of its costs - defendant ordered to pay two thirds of the plaintiff's costs on the ordinary basis

SUCCESSION - wills, probate and administration - probate and letters of administration - 1 April 2007 instrument propounded as a will of the deceased does not comply with the Succession Act, s 6 formal requirements for a will - whether the Court should under Succession Act, s 8 dispense with the requirements for execution of the instrument as a will - proceedings settled - analysis of whether the circumstances justify the making of a Succession Act, s 8 order - HELD: the April 2007 instrument is a document that purports to state the testamentary intentions of the deceased and the deceased intended it to form his will - COSTS - agreement as to costs upon an exchange of correspondence - dispute as to whether costs agreed to be paid on the ordinary basis or on the solicitor and client basis - HELD: upon the true construction of the terms agreed in the correspondence the parties agreed that the costs of Deborah Middleton and Sharon Cook be paid out of the deceased's estate on the solicitor and client basis.