Cases and authorities

Statutory demand - genuine dispute - offsetting claims

CRIMINAL LAW - Appeals against conviction - Applications for leave to appeal against sentence - Whether misdirection by trial judge concerning counsel's failure to cross-examine - Whether misdirection by trial judge on issue of detention in relation to detain for advantage charge - Whether misdirection by reason of failure to give warning concerning hearsay evidence - Whether verdicts unreasonable - Whether there was a miscarriage of justice - Application of proviso.

CRIMINAL LAW - application for leave to appeal against severity of sentence - conspiracy to import not less than the commercial quantity of a border controlled drug - disparity between sentences imposed on applicant and co-offenders - relevance of assessment of the role played by each participant - no error demonstrated - leave granted - appeal dismissed

APPEAL - interlocutory decision - discovery - public interest immunity - whether Court should reconsider decision of application of immunity to category of documents in light of amended pleadings. PROCEDURE - discovery - public interest immunity - whether appropriate to appoint a special counsel - considerations of fairness, justice and efficiency - duty upon Court under Civil Procedure Act 2005 (NSW), s 56(2) to consider techniques and procedures to give effect to the overriding purpose of the Civil Procedure Act, s 56(1).

CORPORATIONS - application for leave pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) to extend the time to bring claims in relation to voidable transactions under s 588FF(1) - whether an extension of time can be granted in relation to the bringing of voidable transaction claims in general or 'blanket' terms - application of test for exercise of discretion in respect of such applications - HELD - decision in BP Australia v Brown binding on a single judge of this Court - discretion should be exercised in favour of particular claim identified against Jasmic Nominees Pty Ltd - otherwise claim for extension of time dismissed.

CROSS-VESTING APPLICATION - proceedings commenced in Dust Diseases Tribunal - worker suffering from asbestosis - injury suffered in Queensland - witness in Queensland - Queensland law applicable -defendants and cross-defendants participated in contribution assessments procedure - Contribution Assessment Determination as between defendant and cross-defendants - worker and defendant in Tribunal Proceedings reached settlement - defendant relied on effect of Contribution Assessment Determination - application by cross-defendants to transfer proceedings to Supreme Court of Queensland made without prior notice - natural forum Queensland - Queensland natural forum but interests of justice prevent cross-vesting - application to transfer refused.

Costs - Restatement of principles of awarding costs - Indemnity costs - Apportionment- Interest on costs - Ordinary rule as to costs- UCPR r42- Caldberbank letter - Consequences of rejecting a calderbank letter - Reasonableness of rejection of offer - Reasonableness to be assessed at the time the offer was rejected and in light of the factual circumstances

PRACTICE - case management - application to transfer proceedings from District Court to Supreme Court where unresolved issues remained in related proceedings in other courts - application premature and lacking in utility - application dismissed without prejudice to further proceedings.

Application to vacate hearing.

COSTS - Calderbank letter - where plaintiffs made offer in terms significantly more favourable than the outcome achieved by the defendant - where defendant says he did not receive the offer but there is no issue that is was received by solicitors then acting for him - indemnity costs payable by the defendant from the date the offer expired

FAMILY LAW - domestic relationships other than marriage - 9 year relationship - just and equitable division of parties' joint property adjustment of interests in property under Property (Relationships) Act 1984 (NSW), under s 20 - divisible pool of property agreed - extent of financial and non financial contributions as recognised under Property (Relationships) Act 1984 (NSW), s 20 - plaintiff claims an interest in one of two rural properties held by the defendant.

Application for strike out of pleadings - UCPR r14.28 - Evidence in strike out proceedings - Refusal to determine merits in application for strike out - Strictness in entertaining strike out applications in Technology and Construction List

ADMINISTRATIVE LAW - application for judicial review of suspension of driver's licence for non-payment of victims' compensation levy imposed by virtue of conviction for criminal offence - plaintiff contesting underlying conviction - whether appeal against conviction finalised - whether suspension authorised

EVIDENCE - Evidence on Commission Act 1995 - request from Turkish Court - ex-parte application - orders made

ADMINISTRATIVE LAW - certiorari sought against the Consumer, Trader & Tenancy Tribunal - earlier appeal to District Court - discussion of difficulties in issuing certiorari in such circumstances - whether agreement was not a residential tenancy thereby denying jurisdiction to Tribunal - whether denial of natural justice because Tribunal failed to advise party how best to conduct case - whether party entitled to challenge termination of lease on basis of invalid Board of Management meeting - summons dismissed

PROCEDURE - stay of proceedings sought - reasons for decision - Rule 28.5 of the Uniform Civil Procedure Rules 2005 - costs

PROCEDURE - stay of proceedings sought pending Federal Magistrates Court decision - defendants are bankrupts - question of arguable point and balance of convenience - stay refused - costs

EQUITY - trusts and trustees - applications to the court for advice and authority - notice of motion - advice sought under s 63 of the Trustee Act 1925 - administrator of an estate seeking advice as to whether proceedings should be settled on terms and conditions proposed by the parties - order made

EVIDENCE - Expert Evidence - revised report - still no explanation of how expert moves from statement of facts to opinions expressed

TORTS - wrongful detention - plaintiff "protected person" by reason of mental illness - plaintiff subject of "limiting term" per s.23 of Mental Health (Criminal Procedure) Act - construction of s.27 of the Act - whether s.27 of the Act provides both power to detain and determine location of detention - whether s.24 of the Act interim order

Two different proceedings, originally four claims for a family provision order under Chapter 3 of the NSW Succession Act 2006 - First application made by a son of deceased, and also by two children of the Plaintiff - Second Plaintiff sought leave to discontinue her proceedings - Leave to discontinue granted - Second application made by another child of the Plaintiff - Defendant in each proceedings is one of three executors named in the will, and a daughter, of the deceased - Proceedings continue with 3 other Plaintiffs

Two different proceedings, three claims for a family provision order made - Proceedings heard together, with evidence in one being evidence in the other - First application by child of deceased by her first marriage - Second application made by two children of deceased by different subsequent marriages - Defendant in each proceedings is executor named in the Will, a son, of the deceased by another marriage, and is brother and half blood of each of the Plaintiffs - Deceased left a Will, Probate of which was granted, to the Defendant

APPEAL - whether judge's finding was open in light of the pleadings and the way the case was conducted - requirement of procedural fairness - relief confined to that available on the pleadings unless the actual conduct of the proceedings shows another issue was litigated APPEAL - whether judge's finding had sufficient evidentiary support CONTRACT - parties - identification of agreement and parties - whether contract was with A, B, A and B jointly, or A and B jointly and severally CONTRACT - parties - promise made by two promisors presumed to be joint unless words making it joint and several

COSTS - Calderbank offer - refusal - no reference to other proceedings between same parties - refusal not unreasonable - indemnity costs refused.

PROCEDURE - civil - pleadings - medical negligence claim - whether primary judge erred in finding that plaintiff's case did not include a claim relating to a particular deformity PROCEDURE - civil - UCPR 31.28 - plaintiff sought leave to tender additional expert's report not served within time required by rule - whether primary judge erred in refusing leave on basis that there were no exceptional circumstances justifying the grant of leave MEDICAL NEGLIGENCE - causation - plaintiff consulted defendant doctor for leg lengthening treatment - whether primary judge erred in finding plaintiff's psychiatric condition not caused by defendant's negligence in treatment

DEFAMATION - claim by plaintiff for special damages - costs incurred prior to publication - duty to mitigate damage - application by defendants under Rule 14.28 Uniform Civil Procedure Rules 2005 to strike out claim - collateral proceedings challenging separate costs orders - reasonableness of anticipatory actions - defendants' Notice of Motion dismissed with costs

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - application for extended supervision order - offender at a high risk of re-offending without supervision - search and seizure condition justified - extended supervision order made for a period of three years

CONTRACT - guarantee - whether third defendant liable under personal guarantee - construction: whether loan contract was a 'guaranteed agreement'

PRACTICE - pleadings - application to amend pleadings brought by defendant on morning of hearing - application raised new issues - defendant not likely to succeed in making out those issues - application refused pursuant to discretion - s56 Civil Procedure Act 2005 (NSW).

Costs - Indemnity costs - Calderbank letter

CORPORATIONS - statutory demand - s 459J(1)(b) Corporations Act 2001 (Cth) - where demand is based on a default judgment debt and the judgment is rescinded - statutory demand set aside

PROCEDURE - subpoena - documents produced - access - legal professional privilege - third party documents - litigation or advice privilege - whether relevant difference

Application by Plaintiff for the making of a statutory will for the first Defendant under s 18 and for leave under s 19(1) of the Succession Act 2006 - NSW Trustee & Guardian appointed to represent first Defendant - Plaintiff, second and third Defendants are children of first Defendant - All Defendants oppose Plaintiff's application

CRIMINAL LAW - sentence - leave to appeal against sentence for recklessly causing grievous bodily harm - applicant served non-parole period - applicant released on parole - whether sentence imposed by sentencing judge was manifestly excessive - whether appropriate to reduce the balance of the term imposed by the sentencing judge - sentence imposed by sentencing judge was within an appropriate sentencing discretion - leave granted - appeal dismissed

CRIMINAL LAW - Crown appeal on sentence - whether sentences manifestly inadequate - whether trial judge's finding of offending "substantially below mid-range" in error - whether degree of departure from standard non-parole period in error - offenders to be releases shortly - whether deterrence and retribution give way to rehabilitation - appeal allowed

PROCEDURE - Undertaking to the court - Application to enforce - Construction of undertaking - Relevance of surrounding circumstances.

PROCEDURE - civil - appeal - stay of order for possession of house pending application for leave to appeal - whether stay required to preserve subject matter of proceedings - merit of leave application - balance of convenience - whether stay should be conditioned on payment of occupation fee

Criminal law - application for enquiry after conviction - application under s 79 Crimes (Appeal and Review) Act 2001 - claim of doubt or question as to applicant's guilt - no substantial failure of trial judge to perform duty in reality or appearance - judge's conduct did not affect outcome of trial or create a risk that trial would be affected

PRACTICE - Application for preliminary discovery - whether plaintiff could show that it may be entitled to make a claim for relief against the defendants - summons dismissed with costs.

PROCEDURE - Apprehended Bias - reference to $100 a week in Pastizzi Cafe Pty Ltd v Hossain [2011] NSWSC 765 was to an affidavit not then read - told issue hotly contested - whether should stand down

EVIDENCE - Expert Evidence - no application under Uniform Civil Procedure Rules 2005, Pt 31 r 31.19 and Practice Note SC Eq 5 [13]-[15] - non-compliance Sch 7, cl 5(1) - no acknowledgment of reading Expert Witness Code of Conduct or bound in terms of r 31.23(4) - non-compliance r 31.27(1)(e) and r 31.27(1)(f) - no indication of how expert moves from statement of facts to opinions expressed - opinion as to insolvency based on ATO debt when evidence of agreement to pay $100 a week until dispute resolved - rival business takings suggestive of ability to pay debts as and when due

COSTS - orders made

Costs

CONTRACTS - construction of Terms of Settlement on application pursuant to s 73 of the Civil Procedure Act 2005 (NSW) - whether obligation to pay sum of money was a dependent or independent obligation - construction of option to purchase "each" of a number of vehicles - whether option exercised - whether best endeavours clause amenable to specific performance - claim under indemnity - HELD - obligation to pay money independent of substantial compliance with other obligations - judgment for sum of money - option to purchase construed not as a single all-or-nothing option - option has been exercised on various occasions - best endeavours clause not amenable to specific performance - claim under indemnity partially upheld

NEGLIGENCE - Architect - whether negligently advised that building could not be constructed in compliance with plans in DA with which property purchased by plaintiff - where advice only established to be incorrect after iterative development of plans in context of subsequent litigation and as a result of incorporation of apparently innovative design - architect did not depart from standards of practice of reasonably competent and prudent architects - no breach of duty of care. MISLEADING AND DECEPTIVE CONDUCT - Architect's advice said to be misleading - whether opinion that building could not be constructed in compliance with plans in DA - professional opinion recognisable as such not misleading by reason of proving incorrect so long as genuinely held and a basis for it exists - opinion genuinely held - opinion not without grounds - only established to be incorrect after iterative development of plans in context of subsequent litigation as a result of incorporation of apparently innovative design - not unreasonable that architect did not discern this at time opinion proffered - no misleading and deceptive conduct. BARRISTERS - Professional negligence - where barrister said to have breached duty of care by advising institution and subsequently not advising discontinuance of proceedings for specific performance with compensation in circumstances that purchaser had architect's advice that building could not be constructed in compliance with plans in DA with which property purchased and various conditions of contract limited purchaser's rights in that respect - where proceedings continued after judge on application to extend operation of caveat holds no serious question to be tried on basis of one condition - arguable case to contrary on that condition - where claim for specific performance with compensation very weak but proceedings included well arguable claims for misleading and deceptive conduct and for return of deposit - barrister did not in relevant respects depart from standard expected of a barrister of reasonable competence and prudence - no breach of duty of care - in any event, properly advised plaintiff would have continued proceedings to claim damages under Fair Trading Act - causation could not have been established. SOLICITORS - Professional negligence - whether breached duty of care by advising institution and subsequently not advising discontinuance of proceedings for specific performance and compensation - solicitor receives advice from barrister that claim is arguable - not glaringly wrong - solicitor entitled to rely on advice - no breach of duty of care. SOLICITORS - Professional negligence - solicitor for purchaser receives notice to complete from vendor - reasonably competent and prudent solicitor in such circumstances obliged to discuss courses of action and their advantages and disadvantages with client to enable client to make informed decision - solicitor fails to give advice in timely manner - breach of duty established - causation - properly advised plaintiff would have been presented with options to complete purchase and sue for damages, or refuse to complete and bring actions for misleading and deceptive conduct under Fair Trading Act, s 42 and for return of deposit under Conveyancing Act s 55(2A) - former option less legally risky, latter more commercially attractive to plaintiff - contemporaneous statements and surrounding circumstances evince that particular plaintiff, properly advised, would still have taken more commercial option - causation not established.

TORT - negligence - workplace injury - employee of sub-contractor injured at colliery - responsibility of employer - responsibility of owner of colliery - apportionment of liability - CONTRACT - identifying terms of contract - what terms were implied in contract - whether implied terms breached - if breach of implied term whether damage too remote - whether standard terms and conditions of colliery owner formed part of contract - incorporation of terms in unsigned contract - indemnity clauses - whether sub-contractor required to indemnify owner of colliery - meaning of indemnity clauses.

ADMINISTRATIVE LAW - judicial review - substituted service - procedural fairness - duty to give notice - whether the defendants had opportunity to resist the proceedings in the Tribunal BUILDING AND CONSTRUCTION - claim for breach of statutory warranty implied under the Home Building Act 1989 (NSW), Pt 2C - whether available against co-owner spouse of holder of owner-builder permit - whether claim available in tort LIMITATION OF ACTIONS - whether the Tribunal had jurisdiction to determine the claim - Home Building Act 1989 (NSW), s 48K PROCEDURE - service - substituted service - whether order for substituted service resulted in procedural unfairness - whether order for substituted service at husband's business address effective in relation to husband and wife PROCEDURE - judgments and orders - whether order bad as against one defendant effective against the other

CORPORATIONS - Corporations Act 2001 (Cth) ss 459G(1), 459J(1)(b) - statutory demand for judgment debt - where recipient has on foot an application for preliminary discovery which if it succeeds might indicate the possibility of a cross claim for damages against a third party - recipient seeks adjournment until after preliminary discovery application, alternatively contends that these circumstances constitute some other reason why the demand should be set aside - no basis established for the adjournment and no reason why the demand should be set aside

Grant of leave to bring proceedings under s 471B of the Corporations Act - unusual case where proceedings seek to establish no proper basis for a claim asserted against the company in liquidation - whether conditions should be imposed on grant of leave.