Cases and authorities

PROCEDURE - application for default judgment where defendant was in serious beach of court orders - defendant ordered, as an alternative to default judgment, to give proper discovery - order for costs payable forthwith.

EQUITY - Proceedings ex parte - determination that amounts due under mortgage had been paid - variation of terms of trust - Conveyancing Act s98(1); Trustee Act s 81

Effect of refusal of leave to bring proceedings against company in liquidation on basis that no serious question to be tried - monies held in Controlled Monies Account pending outcome of proceedings - stay of orders.

DEFAMATION - pleadings - imputations - questions of capacity and form PROCEDURE - whether defendant can force plaintiff to plead imputation as alternative or fallback to another imputation where no basis for order under UCPR Pt 14.28 demonstrated

PROCEDURE - security for costs - discharge of security - whether security may be discharged before costs assessed - Uniform Civil Procedure Rules 2005 36.4

PROCEDURE - application for stay pending appeal - mortgage default - applicant unable to pay money owing into court - whether stay should be granted on grounds of hardship alone

PROCEDURE - application for stay of orders pending appeal - appeal to be based on argument not raised at trial - whether applicant can show a proper basis for stay that would be fair to both parties

CRIMINAL LAW - jury trial - whether transcript of Crown's opening address should be supplied to the jury.

PRACTICE AND PROCEDURE - Plaintiff seeks leave to amend statement of claim to include additional particulars - joint expert report contrary to proposed particulars - no contention court should reject joint expert report - compels finding on balance of probabilities - proposed particulars irrelevant - leave to amend refused.

CORPORATIONS - application for distribution of surplus and adjustment of rights of contributories - ss 448(1) and 488(2) Corporations Act 2001 (Cth)

CORPORATIONS - winding up - application to terminate winding up - consideration of assets and liabilities of company - surplus of assets over liabilities - winding up terminated - no question of principle

COSTS - security for costs - whether an order for security for costs appropriate in the circumstances - order made for security for costs.

FAMILY LAW - Domestic relationships other than marriage - application of Property (Relationships) Act 1982 - whether de facto relationship ended before or after the commencement of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 on 1 March 2009 - whether relationship had "broken down" before or after 1 March 2009 - test to be applied.

SUCCESSION - application for Benjamin order - application by the plaintiff to administer the estate on certain assumptions

PROCEDURE - Costs - lay executor in selling assets to fund legacy ordered by court distributed the estate without paying balance of legacy - whether indemnity costs should be ordered

JUDICIAL ADVICE - application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) - in the alternative, application for trustees to be further remunerated pursuant to s 81 of the Act or the Court's inherent jurisdiction - HELD - order that the trustees are entitled to further remuneration out of the trust fund pursuant to s 81 or the Court's inherent jurisdiction

Stay of proceedings - Issues relevant to stay of proceedings- Prima facie right to have claim heard - Onus on applicant for motion to stay

Commercial Lease - Breach of term of lease - Statutory compliance - Allegation of fraud - Equitable damages - Nominal damages

TORT - Negligence - Advice by truck towing company to truck owner to remove tail-shaft of truck - Direction by truck owner to assistant to remove tail-shaft - Assistant does so and truck moves causing injury to assistant - Whether duty of care in truck towing company, breached by failure to advise that removal of tail-shaft might disable the handbrake - Whether breach of duty of care by truck owner. TORT - Motor accidents - Whether fault of truck owner in directing assistant to remove tail-shaft without chocking wheels of truck was fault "in the use or operation of the vehicle" within definitions in the Motor Accidents Compensation Act 1999.

Insurance Contracts - Statutory write-off - Section 16B (3) (f) Road Transport (Vehicle Registration) Act 1997 (No 119) - Cl 83C (1) (c) Road Transport (Vehicle Registration) Regulation 2007 - Election - Reasonable time - "Without prejudice" communication - Construction of insurance clause - Hearsay

CRIMINAL LAW - sentence - manslaughter and affray - melee between rival motorcycle club members at airport - deterrence and denunciation - plea of guilty - favourable subjective case - imposing a fixed term not justifying a reduction of sentence - special circumstances - parity with co-offenders

Dismissal of proceedings - costs.

Cross-vesting application

Entitlement to funds paid into Court pursuant to UCPR r 55.9 - whether equitable mortgage granted - unconscionability - mistake in respect of whether mortgage had been granted

CRIMINAL LAW - section 5F Criminal Appeal Act - appeal against interlocutory judgment made by trial judge - evidence of lies as consciousness of guilt - appeal allowed - evidence admissible as evidence of guilt.

Criminal law - offence of aggravated robbery - whether error in finding that applicant was not remorseful - whether principles governing sentencing of young offender applied.

CRIMINAL LAW - sentence appeal - head sentence and non parole excessive - objective range of seriousness - error in findings of fact - totality principle - special circumstances - no error found - leave to appeal granted - appeal dismissed.

CRIMINAL LAW - conviction appeal - whether verdict unreasonable or cannot be supported having regard to the evidence - alleged inconsistencies in complainant's evidence and contradictions between complainant's evidence and other evidence - whether opinion of trial judge and Crown prosecutor that Prasad direction should be given assisted appellant on appeal CRIMINAL LAW - sentence appeal - failure to make findings as to objective seriousness of offences - failure to give reasons for setting a non-parole period that caused statutory ratio to be exceeded

APPEAL - s308H Crimes Act 1900 - unauthorised access to restricted data - ulterior purpose for access - can 22 convictions be considered oppressive - leave to appeal granted - appeal dismissed.

APPEAL - challenge to findings of trial judge - no question of principle DAMAGES - challenge to assessment - no question of principle DAMAGES - mitigation - no recovery for avoidable loss - cost of mitigation to avoid further loss - cost not incurred - whether plaintiff entitled to recover cost as accrued loss

CRIMINAL LAW - application for directed verdict - reasonable hypothesis consistent with innocence is not a basis for directed verdict - application refused

PROCEDURE - Miscellaneous procedural matters - Leave to file cross-claim - first day of trial - against plaintiff and new party - Uniform Civil Procedure Rules 2005, Pt 9 r 9.1 - Civil Procedure Act 2005, s 22 - leave to amend - Civil Procedure Act, s 64(1)(b)

MORTGAGES - Mortgages and Charges Generally - Rights and Liabilities of Mortgagor and Mortgagee - effect of signing mortgage documents without reading them - effect of accountant's certificate of ability to service loan - whether finance broker the agent of mortgagor or mortgagee - whether defendant mortgagor in a special position of disadvantage as against plaintiff mortgagee - whether provision entitling mortgagee to lodge a caveat applied to after acquired real property - whether mortgage unjust under the Contracts Review Act 1980, s 7(1) - whether Consumer Credit (New South Wales) Code applied - certificate signed that credit for business or investment - whether under s 11(2) of the code the conclusiveness of the certificate to be denied

PROCEDURE - notice of motion - order sought restraining the third plaintiff from lodging caveats on property - mortgagee in possession of property - section 74MA of the Real Property Act 1900 - order sought made

PROCEDURE - preliminary discovery to identify defendants - Uniform Civil Procedure Rules 2005, r 5.2 - demand before action - possible pre-action settlement - whether intent to sue - unconditional intention not required.

EVIDENCE - Expert evidence - Requirement for directions in UCPR 31.19 - Evidence as to technical meaning of words used in statutory instruments - Directions not given because of marginal relevance - Whether error by primary judge shown - Need in some cases to state propositions to be established by expert evidence.

CONTRACT - interlocutory application - injunction sought to prevent termination of contract - whether parties should be left to resolve consequences of termination according to mechanisms within the contract - whether specific performance appropriate relief in building contracts. PROCEDURE - contract contains mandatory dispute resolution procedure - whether proceedings should be stayed to that procedure to be followed. PROCEDURE - jurisdiction - whether proceedings ought to be transferred to Supreme Court of Victoria pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) - factors for consideration in determining whether proceedings ought to be transferred.

EVIDENCE - admissibility - lies as consciousness of guilt - unfair prejudice - misleading or confusing evidence in the context of the proceedings - same lie told be innocent persons and the accused

COSTS - indemnity costs - Calderbank offer - whether offer "genuine compromise" - claim for insurance, transportation and storage of paintings - claim for such expenses ancillary to primary relief in detinue and constituting part of the "loss" associated with the unlawful detention of the paintings

SENTENCING - aggravated housebreaking - larceny of motor vehicle - intimidation -nature of hypothesis of a case in the middle of the range - to be avoided where no standard non-parole period - young offender - history of mental illness - under influence of alcohol and drugs - not taking medication at time of offences.

TRUSTS - JUDICIAL ADVICE - application by interested party for clarification of earlier judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) - further application by trustee for judicial advice and/or clarification of earlier advice - HELD - judicial advice given

WILLS AND ESTATES - family provision claim - competing claims or Interests - relationship with the Deceased - contributions by the Applicant - whether applicant and Deceased were in a defacto relationship - no provision had been made for applicant in Deceased's will - held that applicant in defacto relationship with Deceased for 16 years - Deceased's daughter, step-daughter grandchildren and step - grandchildren beneficiaries under the will - Deceased's step daughter executor but she and her children had been estranged from the Deceased for 9 years prior to his death - estrangement occurred over a Robert Mapplethorpe photography book that Deceased had lent to step-granddaughter - estrangement not fatal to step-daughter and step-grandchildren's claim - provision made for applicant defacto.

CORPORATIONS - statutory demand - application to set aside under s 459J(1)(b) of the Corporations Act 2001 (Cth) on the basis that, in the circumstances that exist between the parties, the use of the statutory demand procedure is not within the proper scope or purpose of the statutory provisions

PROCEDURE - Appeal - Application to dismiss appeal as incompetent - Appropriate orders.

CRIMINAL LAW - internet take-down orders - principle of open justice - test of necessity - whether court satisfied to a high degree of certainty that orders are necessary to ensure a fair trial.

PRACTICE AND PROCEDURE - costs - where the plaintiff brought an urgent application to remove a caveat lodged by the defendant and the defendant challenged the urgency - the plaintiff abandoned its application for urgent relief on the second day of the hearing

PROCEDURE - Inspection of Property - Uniform Procedure Rules 2005, Pt 23 r 23.8(1) - defendants utilised confidential computer database of plaintiffs - discovery defective - whether IT expert should interrogate defendants' computer and other digital storage devices

GUARANTEE AND INDEMNITY - enforcement of guarantee - no question of principle.

CORPORATIONS - practice and procedure - statutory demand - application to summarily dismiss plaintiff's application to set aside statutory demand - whether application to set aside validly served within 21 day period required by s 459G, Corporations Act 2001 (Cth) - an application under s 459G, Corporations Acts 2001 (Cth) to set aside statutory demand and a copy of the supporting affidavit can be served by the documents being serve at the address for service stated in the demand - service at the address for service is effective whether or not the document is received by a person - service by facsimile - service effective on the day the facsimile was received and printed at the office of the address for service CORPORATIONS - practice and procedure - statutory demand - application to summarily dismiss plaintiff's application to set aside statutory demand - Graywinter principle - whether supporting affidavits meets minimum requirements of supporting affidavit CORPORATIONS - practice and procedure - observations on undesirability of a party applying for summary dismissal of an application under s 459G