Cases and authorities

PROCEDURE - Successive applications for leave to appeal - Whether circumstances supporting a second application shown.

WORKERS' COMPENSATION - Medical assessment by approved medical specialist - Appeal to appeal panel - Worker's statement disputes history recorded by approved medical specialist - Statement rejected by appeal panel - Appeal panel confirms assessment of approved medical specialist - Worker seeks judicial review of appeal panel decision - Whether appeal panel erred in rejecting affidavit - Whether decision of appeal panel was Wednesbury unreasonable.

CORPORATIONS - directors' statutory duty of care and diligence under s 180 of Corporations Law - contraventions of s 180 by secretary/general counsel (Mr Shafron) and chief financial officer (Mr Morley) - whether Mr Morley should be relieved from liability under ss 1317S or 1318 of Corporations Act - found acted honestly - but declined to find ought fairly to be excused - or to exercise discretion to relieve from liability - whether Mr Shafron or Mr Morley should be disqualified from managing corporations - whether they should be ordered to pay pecuniary penalties - assessments of periods of disqualification - assessments of pecuniary penalties - issues fact-specific - protective purposes of legislation - particular regard to general and in Mr Shafron's case personal deterrence - COSTS - limited costs appeal by Mr Morley - no error shown - adjustment of costs order against Mr Shafron by reason of partial success on appeal - orders made for costs on appeal.

EVIDENCE - admissibility - s 138 of the Evidence Act 1995 - evidence obtained improperly or in consequence of an impropriety CRIMINAL LAW - permanent stay of proceedings

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

CONTRACT - deed - whether deed enforceable - whether deed unenforceable because it is attempt to enforce a loan agreement that is a sham - even if loan agreement does not contain true agreement between the parties that does not preclude plaintiff from claiming debt under deed - whether deed procured through undue influence or the result of unconscionable conduct engaged in by the plaintiff - undue influence and unconscionable conduct not established on the facts - creditor does not engage in unconscionable conduct by threatening to take all avenues lawfully available to recover its debt - whether plaintiff released second defendant from obligations under the deed - no agreement for release from obligations - defendants liable to plaintiff for sum owing under deed

PRACTICE AND PROCEDURE - claim for possession of land following mortgage default - default judgment given and writ of possession issued - application by occupier of property (not the Defendant) for stay of execution of writ - claim that Applicant and Defendant had entered into agreement for purchase of property - Applicant and family in occupation of property since August 2009 - claim by Applicant that notice not given of Plaintiff's claim for possession - discretionary considerations - stay granted

PRACTICE AND PROCEDURE - claim for damages for personal injury - Plaintiff rendered quadriplegic as a result of wake-skating accident - Defendant was driver of boat towing Plaintiff at time of accident - application by Plaintiff, supported by Defendant, for separate determination of question of liability - order made for separate determination of liability

PRACTICE AND PROCEDURE - application by Attorney General for leave to intervene or appear as amicus curiae - proceedings by Plaintiffs to challenge decision of Magistrate refusing to issue Court Attendance Notices - Plaintiffs had sought to prosecute three Supreme Court Judges for alleged offences under the Crimes Act 1914 (Cth) arising from judgments adverse to the Plaintiffs given in exercise of judicial duties in civil proceedings - Magistrate had determined that criminal proceedings "had no prospects whatsoever of success" - Plaintiffs oppose application of Attorney General - applicable principles where leave sought to intervene - role of Attorney General - appropriate public officer to represent public interest in administration of justice - leave granted for Attorney General to intervene

PROCEDURE - application to strike out - Uniform Civil Procedure Rules 2005 r 12.7(1) - delay - ongoing failure to comply with order to provide security - whether proceedings should be struck out for want of despatch

CRIMINAL LAW - murder - judge alone trial - special hearing - defence of mental illness

CONTRACTS - general contractual principles - construction and interpretation of contracts - successive employment agreements - whether later employment agreement was subject to a condition precedent to its operation or enforceability - where both parties given a unilateral right to terminate without cause - where employee terminated employment agreement - claim by employee to be entitled to payment of termination benefit upon resignation - whether benefit payable in absence of cause ESTOPPEL - prior judicial determination of separate questions - Corporations Act ss 200B and 200F - judgment inter partes - res judicata - issue estoppel - Anshun estoppel - whether entitlement to termination benefit remains subject to approval by members of defendant in general meeting - where s 200F(2)(a) previously considered but s 200F(2)(b) not argued - whether unreasonable for employer not to have raised the issue for decision in earlier proceedings

CRIMINAL LAW - bail - attempt to possess a commercial quantity of cocaine - onus on the Applicant to show bail should not be refused - assessment of strength of Crown case - probability that Respondent will attend Court - whether onus discharged.

CRIMINAL LAW - appeal against conviction on charge of being an accessory before the fact to do an act with intent to pervert the course of justice - giving advice on falsifying community service order time sheets when application for revocation of community service order extant - whether conviction good in law CRIMINAL LAW - appeal against conviction following plea of guilty - circumstances in which conviction may be set aside discussed CRIMINAL LAW - agreed facts used for sentencing - relevance to integrity of conviction

APPEAL - s 75A(8) Supreme Court Act 1970 - whether further evidence can be received on appeal - what constitutes "special grounds" for the purpose of s 75A(8) - three conditions required by Akins v National Australia Bank - tests for determining "special grounds" are not exhaustive and possess some flexibility - Akins criteria not satisfied where with reasonable diligence evidence could have been obtained at the trial - Akins criteria not satisfied where evidence sought to be tendered is largely inadmissible and of little probative value

INJUNCTIONS AND DECLARATIONS - permissibility of a seniors housing development on land zoned rural - construction of instruments and characterisation of use LOCAL GOVERNMENT - powers, functions and duties - town planning - development application - whether the proposed development is a prohibited development under the Local Environmental Plan or whether it is permissible with consent - prohibited development

PROPERTY LAW - Authority of Owners Corporation to take legal action to recover outstanding levies - failure to pay levies contra to Strata Schemes Management Act - defence struck out at Local Court - denied permission to amend or re-plead defence - whether applicant denied procedural fairness - whether commencement of legal action by Owners Corporation valid - whether Magistrate justified in determining proceedings relating to the commencement of legal action where "no evidence" is before the Court - appeal proceedings limited to the question of costs pursuant to s.80D - liability for principal sum admitted - breach of procedural fairness - no disadvantage from the alleged failure to permit plaintiff to re-lead a defence

CORPORATIONS - winding up - application for winding up in insolvency - whether application should be adjourned because company under administration - held no - ground for winding up established - choice of liquidator - whether there should be departure from usual approach of appointing plaintiff's nominee - where administrator has done substantial work - administrator appointed

CORPORATIONS - voluntary administration - application for order terminating administration - applicant is plaintiff under pending winding up summons - plaintiff/applicant contends that preference recoveries for the benefit of creditors in a winding up will potentially be greater if the administration is terminated before a winding up order is made - consequent desire of plaintiff/applicant to avoid winding up by resolution of creditors in the administration or by order of the court while the administration subsists - potentially greater returns for creditors through preference recoveries is the only ground on which application for termination of administration is advanced - not a sufficient ground for the exercise of s 447A jurisdiction

PRACTICE AND PROCEDURE - costs - strike-out application by Defendant - partial but substantial success of application - appropriate costs order

CRIMINAL LAW - Sentence appeal - sentencing for multiple offences in 2010 - had been sentenced in 2004 for offence part of same course of criminal conduct - no prosecutorial delay - effect of totality principles on 2010 sentencing - failure to volunteer commission of offences does not deprive offender of totality considerations - totality principles applicable although delay not caused by interstate element or conduct of criminal justice system - were not applied - error in sentencing principle - offender re-sentenced

CRIMINAL LAW - appeal - Crown appeal - asserted manifest inadequacy - individual and aggregate sentences - multiple offences - aggravated carjacking - robbery in company - Form 1 offences - escape lawful custody - offender on parole - pleas of guilty - mental illness - drug addiction - youth age - personal circumstances - error in failure to accumulate - finding of special circumstances - no manifest inadequacy CRIMINAL LAW - sentence - structure of sentences - no part of overall non-parole period solely referrable to most serious offence - exercise of discretion - appeal dismissed CRIMINAL LAW - sentence - robbery in company - sentences well below range specified in R v Henry [1999] NSWCCA 111 - whether excessive emphasis placed on mental illness - circumstances warranting sentence imposed - no manifest inadequacy CRIMINAL LAW - sentence - escape lawful custody - where sentences imposed on co-offenders identified as manifestly inadequate - where increased sentence might occasion unfair disparity CRIMINAL LAW - sentence - classification as "extremely high-risk" inmate - onerous conditions of incarceration - offender referred by sentencing judge to Drug Court - s 18B Drug Court Act 1998 - "eligible convicted offender" - circumstances calling for dismissal of Crown appeal

Criminal law - conviction appeal - s 137 Evidence Act 1995 - no error in admitting evidence - sentence appeal - evidence capable of constituting special circumstances - no variation of statutory proportion

PRACTICE AND PROCEDURE - Court of Appeal - where judgment that has already been paid in whole or part is reversed on appeal - orders for restitution - payment of interest - successful appellant entitled as of right to restitution of sum paid with interest - PRACTICE AND PROCEDURE - Court of Appeal - where judgment that has already been paid in whole or part is reversed on appeal - requirement of Notice of Appeal to state claim for restitution, sum concerning which restitution is sought and time period over which interest is sought - PRACTICE AND PROCEDURE - judgments and orders - stay of execution pending appeal - where risk that plaintiff will be unable to repay the money without difficulty or delay if appeal were to succeed - considerations affecting whether to seek payment of all or part of a judgment when appeal lodged

CORPORATIONS - oppression - ss 232, 233 Corporations Act 2001 (Cth) - agreement in principle for separation of interests in business enterprise carried out in some respects but not others - oppression possible even if no breach of contract nor estoppel - oppression possible even if conduct is carried out in good faith - keeping the value of minority shareholding locked up can be oppression - reasonable offer to buy out the minority shareholding does not necessitate a conclusion of no oppression - whether court has power to grant relief concerning assets that corporate trustee held on trust - 'legitimate expectation' not appropriate and unhelpful in context of oppression remedy - appropriate remedy for oppression - principles for deciding time as at which value of share to be decided for compulsory buy-out order - CORPORATIONS - winding up - by court - s 461(f), (k) - compulsory buyout order preferable where serious commercial detriment arise from winding up of companies and where both parties submit compulsory buyout preferable

SUCCESSION - construction of will - gift of home to A to be shared with his sisters as they see fit - whether absolute gift to A; or gift to the five in shares as they agree and failing agreement in equal shares; or gift to A but to share right of use or occupation with his sisters as they agree; or gift of the legal estate to A to be held upon trust for A and his sisters in such shares as they agree and failing agreement in equal shares - held the last was correct

WILLS AND ESTATES - family provision claim - contributions by the applicant - applicant the deceased's adult son contributed to purchase price of family home - applicant estranged from deceased for 14 years

CRIMINAL LAW - particular offences - offences against the government - conspiracy to defraud the Commonwealth - s 29D and s 86(1) Crimes Act 1914 - s 135.4(5) Criminal Code Act 1995 CRIMINAL LAW - procedure - application for permanent stay of proceedings on count 2 - indictment alleging two counts of conspiracy - particulars allege single conspiracy - change in legislative regime during course of alleged conspiracy - order for stay refused CRIMINAL LAW - procedure - indictment - duplicity - latent and patent duplicity - pleading of statutory alternatives - single offence charged - orders refused STATUTES - acts of parliament - interpretation - operation and effect of statutes -conspiracy to defraud the Commonwealth - repeal of provisions in Crimes Act 1914 - enactment of provisions in Criminal Code Act 1995 - single continuing conspiracy spanning periods of operation of two legislative regimes - relevant course of conduct prosecuted as two counts of conspiracy

APPEAL - civil - evidence - admission of evidence - whether defendant's affidavit complied with rule 35.7 UCPR - whether defendant was able to understand written English.

PROCEDURE - civil - pleadings - strike out

PROCEDURE - Application for leave to appeal - No draft notice of appeal or other document identifying error - Leave to appeal refused.

CORPORATIONS - Application for leave to appeal from decision to set aside statutory demand - Whether primary judge had sufficiently enquired into whether there was a genuine dispute as to the existence of the debt - Leave to appeal refused.

PROCEDURE - costs - application to vacate hearing - where defendants seek costs thrown away or occasioned by the adjournment - where adjournment necessitated by plaintiff's fault - where first defendant an undischarged bankrupt not known to the plaintiff - where first defendant did not reveal his status until the day case was due to commence - where adjournment pending application for leave to proceed would have been inevitable - merit of both parties equal - costs in the cause

Interlocutory motion - Setting aside a subpoena - Uniform Civil Procedure Rule 33.4

PRINCIPAL AND AGENT - real estate agent - agent appointed to find purchaser of property - entitlement to receive commission - where contract defines event upon which entitlement to commission arises and states circumstances in which commission is due and payable - whether agent entitled to receive commission where the event has happened but the circumstances do not exist - construction of contract - CORPORATIONS - winding up - winding up of real estate agency company - where deposit moneys received by company before winding up to be held as stakeholder - company is under an obligation to account for those moneys even though not pad into statutory trust account - but moneys not held by liquidator as trustee - PROCEDURE - where proceedings in truth adversarial are constituted as application by liquidator for judicial advice under Trustee Act and in the alternative for direction under Corporations Act - former inappropriate - latter of limited utility - need for proceedings to be reconstituted before remedies awarded

TRUSTS - judicial advice - s 63 Trustee Act 1925 - application for judicial advice by trustee whether justified in refusing to register transfer of units pursuant to transfer documentation executed under powers of attorney granted by unitholders - reasoning in Re Perpetual Investment Management Limited as responsible entity for Perpetual's Monthly Income Fund and Perpetual's Wholesale Monthly Income Fund [2011] NSWSC 133 and Re Challenger Managed Investments Limited as responsible entity for Challenger Howard Mortgage Fund [2011] NSW 213 applied and subject to minor adjustments, same judicial advice given as in those cases

PRACTICE AND PROCEDURE - order made by Judge that claim proceed on pleadings - order for pleadings confirmed by Court of Appeal - Plaintiff agitates and reagitates that issue by further Notices of Motion - Notices of Motion filed contrary to order requiring prior leave of Judge or Registrar - Plaintiff's application dismissed - order for indemnity costs assessable forthwith

Application for property adjustment order under Property (Relationships) Act 1984; ex parte application

The Plaintiffs seek leave to appeal, and if leave is granted, to appeal the decision and orders made by Guardianship Tribunal in an application for a financial management and guardianship application in respect of the first Plaintiff made by the fourth Defendant - Tribunal made orders pursuant to which the first Defendant was appointed financial manager of first Plaintiff's estate, and the third Defendant was appointed guardian of the first Plaintiff - Further amended Summons filed seeking leave to appeal the decision of the Tribunal, an order that the Tribunal's orders be set aside, or, that the financial management of the first Plaintiff's estate, and her guardianship be granted to the second Plaintiff, and an order that the costs of the second Plaintiff of the first and third Defendants sought to be paid out of the estate of the first Plaintiff .

Application for the adoption of a child in favour of a married couple - Father of the child opposes orders - Mother of the child does not consent but did not appear at the hearing. Application for an order dispensing with the consent of the natural parents under s 67(1)(d) of the Adoption Act 2000 (NSW) and consequential orders regarding the name of the child.

SUCCESSION - Family provision order sought by daughter of the deceased who was left nothing in the Will - Application brought out of time - Estate distributed to the Defendant - Whether time for making application should be extended - Whether provision should be made for the Plaintiff - Whether notional estate order should be made.

Equity-Principles concerning whether interlocutory orders should be varied- Application by City of Sydney to be released from undertakings that City would not enter into any agreement for the sale of the intellectual property in the "S1" and "S2" series of "Smartpole" poles - Specific performance - Consequence of defendants determining not to press relief seeking specific performance -- litigation before the Court concerns what came to be known as the Smartpole Project said to have been developed by the City of Sydney in around 1996/1997 in preparation for the 2000 Sydney Olympic Games

COSTS - applications by each of the parties as to costs of applications for leave to bring derivative proceedings and to strike out plaintiff's statement of claim - application by second defendant for indemnity costs assessable and payable forthwith - HELD - plaintiff to pay second defendant's costs of on party/party basis of day's hearing only - costs to be assessed and payable forthwith - no other order as to costs

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

Appeal decision of costs review panel -jurisdiction of the review panel to determine issues of waiver and estoppel - whether a residual category or waiver exists at common law - waiver by election - waiver by estoppel - abandonment - termination of agreement - misleading or deceptive conduct

ADMINISTRATIVE LAW - appeal from decision of medical assessor of Medical Assessment Service of Motor Accidents Authority - appeal from decision of proper officer - whether decision vitiated by error of law - whether assessment incorrect in a material respect - whether assessor ought to have accounted for later developing injury in the assessment of whole person impairment - provisions of Act to be interpreted in context - medical assessor found subsequent injury to be a direct consequence of accident - meaning of "as a result of" and "caused by" - remitted to Motor Accidents Medical Assessment Service for re-assessment

COSTS - professional negligence action against two firms of solicitors by two plaintiffs - second plaintiff successful against the second firm - costs application by the first firm (the successful defendant) - by reason of its Limitation Act defence - Professional Standards Act - "statutory cap" by reason of interaction of s.4 and s.29 of that Act APPORTIONMENT OF COSTS - second plaintiff successful in establishing liability issues against the first firm but failed on limitation defence - liability issues (breach of duty, causation and consequential damages) determined in favour of second plaintiff were severable and dominant issues from the limitation issue - apportionment of costs in those circumstances appropriate - the first firm entitled to on 20% of its costs from the date the second plaintiff brought its claim against that firm - the first plaintiff entitled to a partial direct costs order against the unsuccessful defendants in respect of the costs of the first firm - first plaintiff's claim was a different claim to that of the second plaintiff - limitation under s.29 of the Professional Standards Act did not apply to the making of a direct order against the unsuccessful defendants to pay a portion (50%) of the successful defendants' costs

APPEAL - Right of appeal - Jurisdiction of the Court of Appeal - Supreme Court Act 1970 s 101(2)(r)(ii) - Whether leave to appeal required - Whether claim of appellant that appeal involves a matter at issue amounting to $100,000 or more is both credible and realistic - WILLS - Application under Family Provision Act 1982 (NSW) - Whether realistic prospects on appeal - PRACTICE AND PROCEDURE - Requirements of Notice of Appeal - Identification of grounds relied upon in support of appeal - COSTS - Costs of appeal - UCPR 51.41 - notice of motion seeking to strike out Notice of Appeal must be filed within 28 days - Costs of notice of motion - UCPR 51.41 inapplicable - costs follow the event

PROCEDURE - extension of time to appeal - principles - order in which application to strike out appeal as incompetent because filed out of time, and application for extension of time, should be dealt with - whether "fairly arguable case" always a requirement - extra risk of late filing of documents not been promptly noticed the cause of change in Registry practice. APPEAL - extension of time to appeal - principles - order in which application to strike out appeal as incompetent because filed out of time, and application for extension of time, should be dealt with - whether "fairly arguable case" always a requirement - extra risk of late filing of documents not been promptly noticed the cause of change in Registry practice. APPEAL - leave to appeal - "appeal that involves a matter at issue amounting to or of the value of $100,000 or more" - difference between tests for leave under s 101(2) (r) Supreme Court Act 1970 and tests for appeal as of right to High Court under pre-1984 versions of s 35 Judiciary Act 1903 (Cth) - whether s 101(2) (r) satisfied when an appellant seeks to appeal against two related judgments each for less than $100,000 but together for more than $100,000.