Cases and authorities

PROCEDURE - interlocutory orders - stay - stay conditioned on provision of guarantee - application to have Registrar call upon guarantee

PROCEDURAL FAIRNESS - Failure of trial judge to disclose prior advising and appearance as counsel in interests of companies of which respondent was receiver - appellant accepted that prior advising and appearance did not disqualify trial judge - appellant submitted that denial of opportunity to consider application for disqualification gave rise to a reasonable apprehension of bias - non-disclosure not matter of right or duty - no denial of procedural fairness - non-disclosure does not give rise to reasonable apprehension of bias when prior advising and appearance did not disqualify trial judge - appeal dismissed PROPERTY - Transfer of property by appellant to one of two companies with similar name - question of appellant's intention - trial judge found intention to transfer to respondent - on facts, no basis to overturn finding - appeal dismissed

PROCEDURE - Miscellaneous procedural matters - Amendments - late application to deny indebtedness and raise mental illness as a defence - no application under the Uniform Civil Procedure Rules 2005, Pt 12 r 12.6(2) to withdraw admissions in defence - medical report did not say his medical condition prevented him from understanding the loan documents he signed - no explanation for lateness of application - no new principles

SUCCESSION - whether a bequest should be treated as adeemed where the gift has changed in form but not in substance between the date of the will and date of death - whether a bequest should be treated as adeemed where funds identified in the will have become so mixed with other funds that those funds can no longer be identified - whether the will should be rectified pursuant to s 27(1) of the Succession Act 2006 (NSW) due to a misdescription in the will of the charity described by the testatrix in her instructions

Application for costs by self represented Plaintiffs in care proceedings - Costs sought include costs for proceedings in Children's Court - Notice of motion filed by Defendant to set aside a subpoena for production

CONTRACTS - Particular Parties - Principal and Agent - power of attorney - attorney sells mother's house and fails to account to her for proceeds of sale - power in form of Sch 7 to Conveyancing Act 1919 - unnecessary to decide whether s 163B authorised benefit to attorney - attorney in breach of fiduciary duty under the power PROCEDURE - Failure to appear - Uniform Civil Procedure Rules 2005, Pt 29 r 29.7 - when trial called defendant absent - history of non-action when contacted by solicitors and process servers - informed of hearing - exercise of discretion to proceed with trial

APPEAL- application for leave to appeal against the striking out of applicant's statement of claim- no evidence read to Court at first instance before claim for promissory estoppel or unconscionable conduct struck out- whether appropriate- it is not necessarily a complete bar to a claim to property that there is a law preventing transfer of the interest or another party has an interest- Court can give equitable compensation- primary judge should have considered the material- leave granted- appeal allowed- matter remitted to the Equity Division.

TORTS - negligence - plaintiff falls into empty swimming pool whilst assisting defendant in tree-lopping activity - family relationship - nature and content of duty of care owed by defendant as occupier of property and organiser of activity - open to defendant not to engage in activity - whether plaintiff required to prove precautions that could have been taken where it was open to defendant not to engage in activity DAMAGES - negligence - personal injury - future economic loss - earning capacity - award of buffer to compensate plaintiff for risk that his present employment may cease in the future

CRIMINAL LAW - sentence - manslaughter - plea of guilty to manslaughter on the basis that the offender entered a joint criminal enterprise with the two co-accused to threaten or use unlawful violence against the deceased while each was armed with a weapon - gravity of offence - offence somewhere below the middle range of seriousness for the offence of manslaughter CRIMINAL LAW - sentence - manslaughter - relevant factors - nature and circumstances of offender - prior criminality - age of offender - substance abuse - limited intelligence - inability to control temper - finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 CRIMINAL LAW - sentence - manslaughter - relevant factors - guilty plea - discount of 15 per cent appropriate - sentenced to imprisonment for 7 years with a non-parole period of 4 years and 6 months

CONTRACTS - Particular Parties - Principal and Agent - power of attorney - attorney sells mother's house and fails to account to her for proceeds of sale - power in form of Sch 7 to Conveyancing Act 1919 - unnecessary to decide whether s 163B authorised benefit to attorney - attorney in breach of fiduciary duty under the power PROCEDURE - Failure to appear - Uniform Civil Procedure Rules 2005, Pt 29 r 29.7 - when trial called defendant absent - history of non-action when contacted by solicitors and process servers - informed of hearing - exercise of discretion to proceed with trial

COSTS - security for costs - assessment where party has disposed of assets prior to commencing proceedings in order to avoid the consequences of an adverse costs order

Common law - personal injury - costs.

Common law - personal injury - assessment

EQUITY - constructive trust - knowing assistance - whether third defendant had knowledge of trustee's dishonest and fraudulent design - partner deliberately failed to make inquiries for fear of what he might learn - satisfies third of the categories of knowledge expressed in second limb of Barnes v Addy PARTNERSHIP - liability to third parties - whether firm liable for wrongful act of partner committed in ordinary course of firm's business - where partner knowingly assisted in breach of trust - firm not liable where partner not pursuing business of partnership and engaged "in a frolic of his own" - Partnership Act 1892, s 10

PROCEDURE - civil - judgments and orders - payment out of court - corporations - relation back date - unfair preferences - liquidator sought payment out of court of money held in court as security for production of documents - document were the subject of a solicitor's lien - payment into court made during relation back period - whether the payment into court was an unfair preference that was voidable against the applicant liquidator - characterisation of solicitor's lien as possessory meant that debt owing to solicitors was an unsecured debt notwithstanding solicitor's lien - consideration of two classes of solicitor's lien

Criminal law - application for directed verdict - Crown case circumstantial in nature - applicable principles

CRIMINAL LAW - application for leave to appeal against sentence - attempted armed robbery - plea of guilty - whether issue of mental health arose - whether applicant's intoxication taken into account appropriately - no question of principle

CRIMINAL LAW - appeal against conviction - practice and procedure - juries - trial judge failed to comply with requirements of the Jury Act 1977 - length of jury deliberations insufficient - incorrect directions on availability of majority verdicts - trial not conducted according to law - miscarriage of justice - appeal allowed - conviction quashed and sentence set aside - new trial ordered

CRIMINAL LAW - application for leave to appeal against sentence - stealing from person (3) - where sentencing judge took into account that offences could have been dealt with summarily - structure of sentences - finding of special circumstances not reflected in aggregate sentence

DEFAMATION - s 8, Defamation Act 2005 (NSW) - cause of action defamatory matter - significance for defence of contextual truth DEFAMATION - Defences - contextual truth - whether defendant raising contextual truth may "plead back" imputations pleaded by plaintiff - s 26, Defamation Act 2005 (NSW) DEFAMATION - Defences - common law justification - extent to which defendant may plead and seek to justify imputation other than that relied on by plaintiff DEFAMATION - Defences - nature of defence of contextual truth under s 16, Defamation Act 1974 (NSW) STATUTORY INTERPRETATION - uniform laws of defamation in Australia - use of extrinsic material explaining adoption of uniform provisions - s 34, Interpretation Act 1987 (NSW) STATUTORY INTERPRETATION - uniform laws of defamation in Australia - compromise between common law and statutory jurisdictions - relevance of jurisprudence developed in respect of s 16, Defamation Act 1974 (NSW) WORDS AND PHRASES - "in addition to"

DUST DISEASES TRIBUNAL - Appellant claims that Tribunal made factual findings adverse to its case without prior notice - whether Tribunal sufficiently flagged the issues - whether complaint of procedural unfairness made out.

CORPORATIONS - assignment of choses in action - Corporations Act 2001 (Cth), s 477(2)(c) - liquidator of building company assigns company's entitlements against proprietor under a building contract - building contract expressly prohibits assignment of rights under the contract - whether purported assignment by liquidator effective to enable the assignee to sue the proprietor.

TRADE PRACTICES - causation - Council invites expressions of interest ("EOIs") to acquire land owned by it - Party A submits successful EOI - after protracted inconclusive negotiations with Party A Council begins negotiations with Party B without informing Party A - Council sells to Party B - Party A claims that Council engaged in misleading or deceptive conduct causing Party A loss and damage - primary Judge found that even if Party A had known of Council's dealings with Party B, Party A would still not have agreed to Council's terms - whether the finding was erroneous TRADE PRACTICES - whether Council had engaged in misleading or deceptive conduct - whether Council had represented that Council would negotiate exclusively with Party A unless and until it notified Party A that the period of exclusivity had ended - whether primary Judge correctly found that Party A had a reasonable expectation that it would have a prolonged period of exclusivity

ADMINISTRATIVE LAW - judicial review of decision of District Court - error of law in reasons - orders unaffected by error INSURANCE - policy - parties to policy - policy conforming to Home Building Act 1989 (NSW) - claim by Owners Corporation in respect of common property - whether claim made on behalf of all lot proprietors - whether a single excess or multiple excesses applicable to claim

CONTRACT - construction - percentage rent clause - whether clause should be construed contra proferentem - no issue of principle

TRADE PRACTICES - Misleading and deceptive conduct - representations made in relation to future matters - effect of (CTH) Trade Practices Act s 51A - where corporation makes representation in relation to future matters and does not have reasonable grounds to make representation, representation presumed to be misleading - evidential onus on defendant to establish it had reasonable grounds - once defendant adduces such evidence onus falls on plaintiff to establish on balance of probabilities that grounds were not reasonable - reasonable grounds in relation to future matters involve an intention on part of representor to perform the representation and an ability to perform the representation - defendant had intention but did not have ability at time made representation to construct hotel and have certain hotel chain operate hotel - representation misleading and deceptive. TRADE PRACTICES - Misleading and deceptive conduct - reliance on representation by plaintiffs to purchase property - first plaintiff asserts would not have purchased property but for representation - post facto subjective statements inherently unreliable - need to examine objective indicia as to whether plaintiff would have purchased property but for representation - representation influenced decision to purchase property but not decisive factor. TRADE PRACTICES - Relief for misleading and deceptive conduct - plaintiff seeks order to rescind contract - where representation not decisive in plaintiff entering into contract, not appropriate to order rescission - representation affected purchase price - damages awarded commensurate to impact of representations on purchase price. CIVIL LIABILITY - Defences - proportionate liability - plaintiffs' solicitor said not to have acted with due competence and skill in advising plaintiffs about purchase - claim an apportionable claim under (NSW) Civil Liability Act - solicitor a concurrent wrongdoer - liability of solicitor assessed at one-third.

EVIDENCE - opinion evidence - expert opinion - specialised knowledge - whether conclusions of experts based on specialised knowledge - evidence of the ultimate issue - assertion of falsification of accounts - inferences by expert.

Appointment of Trustee for sale - Property (Relationships) Act - Defendant's failure or omission to comply with orders made in substantive proceedings

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offence - application for extended supervision order - analysis of statutory criteria for the making of extended supervision order - ongoing risk of committing sex offence if not supervised - safety of community required extended supervision order - meaning of "high degree of probability" - unacceptable risk of committing a serious sex offence if not supervised - extended supervision order made.

CONTRACT - sale of shares agreement containing warranties that financial information provided was true and not misleading in any material respect - plaintiff sues for damages for breach of warranties - whether plaintiff has established breach and whether it has established damages; TRADE PRACTICES - Fair Trading Act 1987 (NSW) - ss 41, 42(1) and 68(1) - plaintiff makes alternative claim for damages on the basis that in providing information and in not providing certain other information defendants engaged in conduct that was misleading or deceptive or likely to mislead or deceive - whether plaintiff has established that defendants had engaged in such conduct and whether it has established that it suffered loss by the conduct complained of

CORPORATIONS - statutory demand - application to set aside statutory demand - where plaintiff appeared through a solicitor and sought adjournment - adjournment refused - where a solicitor for plaintiff had no instructions to appear in the proceedings - where no satisfactory explanation for no appearance for plaintiff - originating process dismissed with costs CORPORATIONS - practice and procedure - notice of motion - where director seeks leave to be joined personally as party to proceedings to set aside statutory demand - director not a proper plaintiff to set aside statutory demand CORPORATIONS - practice and procedure - where director appeared personally for company - company required to appear by a solicitor or can appear by director if director himself a plaintiff - director not entitled as of right to appear on behalf of plaintiff - Uniform Civil Procedure Rules r 7.1(2) and (3) COURTS AND JUDGES - bias - disqualification - apprehended bias - where after hearing complaint made of bias - where judge has decided previous applications adversely to complainant or his interests - where no objection taken to judge hearing application at time - where plaintiff's claim dismissed for non-appearance - remaining issue concerning costs - judge refuses to disqualify himself from dealing with remaining issue

ORDERS: - to give effect to reasons for judgment.

PRACTICE AND PROCEDURE - claims for damages - alleged assault by police in 1999 - alleged medical negligence and mistreatment in prison between 1999 and 2004 - previous District Court proceedings concerning both claims - fresh proceedings commenced in Supreme Court - abuse of process - embarrassing pleadings - limitation issues

CONTRACTS - general contractual principles - construction and interpretation of contracts - meaning of 'reasonable commercial endeavours' - where a party withdraws from a proposed transaction because it is not in the party's commercial interests to proceed - whether 'reasonable commercial endeavours' have been used

APPEAL - civil - fact finding - car accident caused by truck towing a caravan - differing evidence as to the identity of the offending vehicle and its driver - primary judge's findings credit-based - whether alleged errors in primary judge's reasoning sufficient to vitiate decision PROCEDURE - pleadings - UCPR r 14.14(2)(a) - surprise rule - car accident caused by truck towing a caravan - witness for two defendants gave evidence indicating that non-party likely cause of accident - hearing adjourned to enable plaintiffs to join non-party as defendant - whether rules of pleading required defendants to plead involvement of non-party at least in the alternative - whether defendants entitled to apply ambush theory of litigation - whether primary judge construed UCPR r 14.14(2)(a) in such a way as to put it in conflict with UCPR r 14.7

EVIDENCE - admissibility and relevancy - identification - witness claims assailant was an accused after seeing him on television - appearance of accused inconsistent with description earlier given by witness - danger of evidence being misused unfairly prejudicial

PRACTICE - strike out application in respect of proceedings bought out of time - statutory interpretation - time limit in s109ZK of the Environmental Planning and Assessment Act 1979 - purposive approach - meaning of the terms 'building action' and 'building work'.

APPEAL - Local Court civil claim and judgment - claim by barrister against solicitor for fees - requirements for costs agreement and bill of costs under Legal Profession Act 1987 - appeal on question of law - whether compliance with statutory scheme - whether failure to provide adequate reasons - reasons not adequate but correct result - desirability of use of gross sum costs order for costs of appeal

REAL PROPERTY - Strata and related titles and occupancy - whether an owners corporation required to upgrade an exhaust ventilation system to service the needs of a lot owner - whether owners corporation allowing the lot owner to connect to the exhaust ventilation system but refusing to guarantee any particular level of exhaust ventilation to the lot was a breach of Strata Schemes Management Act 1996 ss 62 (1) and (2) - whether special resolution of owners corporation complied with Strata Schemes Management Act 1996 s 62 (3) so the provisions of ss 62(1) and (2) did not apply to the exhaust ventilation system - whether if otherwise validly passed the special resolution was a fraud on the minority - whether the plaintiff has suffered any loss as a result of any breach of Strata Schemes Management Act 1996 ss 62 (1) or (2).

COSTS - Whether defendants' non-acceptance of offer of compromise entitles plaintiffs to special costs order - whether offer of compromise otherwise relevant to exercise of discretion - effect of plaintiffs' relying on knowingly untrue evidence and failure on majority of substantive issues on entitlement to costs - order for costs to reflect substantial realities of the case.

PRACTICE AND PROCEDURE - summary dismissal - application for dismissal for want of prosecution - where plaintiff does not have an address of service in New South Wales - where no appearance for plaintiff for hearing of interlocutory applications - where plaintiff failed comply with court orders in relation to filing of evidence in support of interlocutory application and against defendants application for security of cost - where plaintiff has done nothing to bring interlocutory application on for hearing - where inference that if plaintiff proposed to seek to have claim heard and determined he would have taken steps to pursue application - held proceedings should be dismissed for plaintiff's failure to prosecute proceedings with due despatch PRACTICE AND PROCEDURE - costs - application for security for costs - where plaintiff foreign resident - where not clear that plaintiff is resident of Hong Kong or has assets there - whether security for costs should relate to the costs of the proceedings or be restricted to the costs of enforcing judgment in Hong Kong - defendants entitled to security for costs of the proceedings as may have to register a judgment in other parts of China where no reciprocal arrangements for enforcement of judgment

CRIMINAL LAW - Crown appeal against sentence - aggravated indecent assault on child under the age of 10 years - plea of guilty - suspended sentence - whether sentencing judge had adequate regard to standard non-parole period as a guidepost - determination of objective seriousness of offence - benefit to victim if offender not given custodial sentence - whether sentence manifestly inadequate - unusual circumstances surrounding offence - appeal dismissed.

PROCEDURE - Costs - Many issues at first instance and on appeal - Some lost by successful party - Principles to be applied - Exercise of costs discretion.

CRIMINAL LAW - procedure - disclosure obligations - compulsory disclosure pursuant to orders made under statutory case management provisions - sanctions for prosecution non-compliance - whether police investigators are within the concept of the "prosecutor" for the purposes of the Criminal Procedure Act 1986

CORPORATIONS - winding up - ss 95A, 588E(3), 588FA, 588FC, 588FE and 588FF(1)(a) Corporations Act 2001 (Cth) - unfair preference - payment to director where company insolvent - where contract between company and director entitled director to call for security but he did not do so - payment unsecured - order made for payment of equivalent amount to company

PROCEDURE - Costs - agreements as to costs - gross sum costs orders under Civil Procedure Act 2005, s 98(4)(c) - counsel makes costs agreement in contravention of Legal Profession Act 2005, s 324(1) - whether counsel's fees recoverable on quantum merit basis despite the contravention - approach to assessing a gross sum costs order, where indemnity costs have been awarded in relation to 75 per cent of plaintiff's costs.

Practice and procedure - case management - directions as proceedings not being case managed - setting aside directions given in other proceedings - disqualification