Cases and authorities

WILLS AND ESTATES - family provision claim by three of the deceased's 10 children for further provision out of the deceased's very small estate. Order for further provision made.

INTERLOCUTORY ORDERS - protection of property and goods in dispute - mortgages over real estate and goods mortgage related to farming - serious question to be tried - balance of convenience favours making orders

PRACTICE AND PROCEDURE - motion to be added as a party to proceedings finalised in 1986 - motion to set aside creditor settlement approved in 1986 - applicant had no standing - matter has been dealt with on a number of occasions by other judicial officers - vexatious and abuse of process - motion dismissed - indemnity costs awarded

Judgment - orders - error - correction - slip rule

CRIMINAL LAW - wrong direction on alternative count - whether miscarriage of justice - whether jury if properly instructed would have returned verdict on principal charge CRIMINAL LAW - maliciously inflict grievous bodily harm with intent - construction of malice - mental element of recklessness - foresight of possibility of grievous bodily harm - trial judge left wrong alternative count to jury - breach of procedural fairness of a significant kind - miscarriage of justice - appeal allowed - conviction quashed and new trial ordered CRIMINAL LAW - verdict - whether conviction should be set aside - whether jury verdict was unreasonable - whether jury verdict was not supported by the evidence - evidence of intoxication - onus of proof of mental element - it was open to the jury to convict appellant of the principal offence

CRIMINAL LAW - sentence appeal - supply prohibited drug being not less than a commercial quantity of methylamphetamine - applicant convicted after trial - need for trial judge to make findings of fact beyond reasonable doubt - assessment of objective seriousness of offence - limited effect of sentencing statistics - parity principle - applicant and other offender with only one offence in common - other offender convicted of more offences but with same sentence - objective test of legitimate grievance - application of parity principle inappropriate.

CRIMINAL LAW - appeal against sentence - whether failure to give proper weight to applicant's mental condition - whether too much weight to issue of general deterrence - mental handicap - whether ambiguity of remarks concerning personal and general deterrence - appeal dismissed.

TORT - Motor accidents - Cyclist harassed by driving of motor vehicle - Cyclist loses control and is injured after being hit by object thrown from the vehicle - Whether there was a "motor accident" and an "injury" within the meaning of the Motor Accidents Compensation Act 1999. PROCEDURE - Costs - Offer of compromise by plaintiff - Plaintiff obtains judgment no less favourable - Primary judge does not order costs on an indemnity basis - Whether this an error in principle, or outside reasonable discretionary judgment.

PROCEDURE - interlocutory issues - Anton Pillar orders - duty of full disclosure in ex parte applications - whether failure to notify of links to independent computer expert breach of duty - whether should exercise discretion to set aside order

CONTRACT - termination - misrepresentation - TPA - whether conduct amounted to a material misrepresentation - whether conduct relied upon. CONTRACT - rescission - misrepresentation - whether conduct amounted to misrepresentation giving rise to a right of rescission - whether contract repudiated. CONTRACT - termination - fraud; meaning of - whether fraudulent conduct. DAMAGES - breach of contract; calculation of - interest; calculation of.

EVIDENCE - client legal privilege - waiver of privilege - whether defendant knowingly and voluntarily disclosed the substance of the evidence within the meaning s 122(3) Evidence Act 1995 - disclosure of the conclusion and reasoning of advice disclosure of substance of the legal advice - whether substance disclosed under compulsion of law within the meaning of s 122(5) Evidence Act 1995 - where defendant disclosed substance of legal advice by giving discovery and producing document for inspection - defendant not under compulsion of law to disclose the substance of legal advice as could have claimed privilege - privilege waived by production for inspection on discovery

COSTS - whether should be payable forthwith - discrete application brought in broader interests of justice

Notice of Motion seeking documents relating to management of financial affairs of the protected person by the protected person's guardian

PRIORITIES - postponing conduct - necessity for conduct that is blameworthy and causative SUBROGATION - nature and scope - not available to purchaser who pays outgoing mortgagee at vendor's direction EQUITABLE INTEREST - commensurate only with purchaser's right to specific performance - no equitable interest in land

PROCEDURE - civil - pleadings - statement of claim - applications to dismiss for want of prosecution or to strike out statement of claim - considerations of delay, prejudice, whether current pleadings were improper - proposed amendment to statement of claim - application to dismiss cross claim - cross claim substantially repeats a statement of claim that was struck out by the Federal Court - whether res judicata or issue estoppel exists - whether Federal Court proceedings that were dismissed pursuant to s 31A Federal Court of Australia Act 1976 were interlocutory - whether Supreme Court has jurisdiction to consider application to stay cross claim pending payment of costs in Federal Court proceedings - application to dismiss proposed amended cross claim - whether proposed cross claim statute barred - whether causes of action arise from the same or substantially the same facts as those in the existing cross claim

CRIMINAL LAW - sentencing - murder

CORPORATIONS - foreign corporations - application by foreign company and its liquidator appointed by foreign court for declarations recognising foreign winding up and its effects - reliance on Corporations Act provision requiring this court to "act in aid of, and be auxiliary to" foreign court in "external administration matter" - potential operation of provision of UNCITRAL Model Law on Cross Border Insolvency (as enacted in Australia) requiring that court "cooperate to the maximum extent possible" with foreign court - statutory provision making the relevant Corporations Act provision of no effect if inconsistent with enacted Model Law - where foreign winding up was ordered on the just and equitable ground - whether "foreign proceeding" under enacted Model Law - whether inconsistency - held none in the particular case - availability of declaratory relief where no defendant and no contradictor - particular circumstances warrant such relief where statutory foundation exists - observations on capacity of court's inherent jurisdiction to support such relief

CORPORATIONS - voluntary administration - administration imposed when application for winding up in insolvency pending - administration likely to result in winding up - plaintiff in winding up proceeding seeks order terminating administration - defendant through administrator consents - if administration terminated and winding up later ordered by the court an earlier "relation-back day" will apply for liquidator recovery purposes - significantly greater recoveries potentially available if earlier date applies - identified creditors would be affected if earlier date rather than later applied - procedural fairness requires that those creditors have an opportunity to be heard - application adjourned with direction that those creditors be served

CORPORATIONS - winding up - winding up in insolvency - where defendant served statutory demand and plaintiff's attempt to apply for an order setting aside miscarried - whether defendant responsible for the miscarriage - held not - but subject matter of statutory demand obviously not a debt - subject matter explained by defendant in contemporary correspondence in terms making it clear that defendant knew there was no debt - resort to statutory demand procedure was a perversion of the statutory process - any winding up application based on defendant's failure to pay will be an abuse of process - injunction granted to restrain such application

CORPORATIONS - statutory derivative action - shareholder wishes to have company bring claim which he is actively causing another company to bring against the same defendant - applicant recognises that only one claim can succeed - no attempt to disengage from prior competing claim - adherence to prior competing claim until re-examination following adjournment - applicant fails to establish that he is acting in good faith and that it is in company's interests for him to be authorised to sue for it

CONTRACT - sale of land - completion of contract conditional on registration of plan of subdivision - condition not satisfied -whether vendor fulfilled contractual requirement to use best reasonable endeavours to satisfy condition. CONTRACT - best reasonable endeavours clause; meaning of - onus of proof. CONTRACT - termination - rescission - whether contract validly rescinded for failure of condition.

CONTRACT - whether parties entered into agreement for purchase of vehicle - whether any moneys outstanding under agreement - whether declaration should be made in favour of first plaintiff as to ownership of vehicle. CONTRACT - whether parties entered into agreement for loans - whether any moneys owing under loan agreements. EVIDENCE - witnesses - credibility.

NEGLIGENCE - Duty of care - Accident occurred in a school in which there were internal roads and pedestrian crossings - Maintenance contractor engaged by the school to paint pedestrian crossings - Plaintiff slipped and fell on a painted strip of a pedestrian crossing NEGLIGENCE - Breach of duty - Proper pleading of a claim under s 5B of the Civil Liability Act - Identification of a risk of harm - Foreseeability - Whether defendant had actual or constructive knowledge of the risk of harm - Whether risk of harm was not insignificant - The precautions which the plaintiff says a reasonable person in the defendants' position would have taken in the circumstances - Whether part of the crossing had been more recently repainted - Whether the slip resistance of the crossing was below recommended standards - Whether the slip resistance of the crossing was insufficiently uniform - Whether a reasonable person in the position of the school or the maintenance contractor would have sourced a different paint for use on the crossing NEGLIGENCE - Causation - The test under s 5D of the Civil Liability Act 2002 - Many potential causes of a slip and fall - Whether the plaintiff has established that the lack of slip resistance of the crossing caused her injury DAMAGES - Assessment of damages for personal injury - The extent to which the plaintiff utilised her earning capacity prior to the accident - Difficulties with assessing future economic loss - Damages for loss of capacity to provide domestic services - Where plaintiff has a disabled child

[CONTRACT] - oral agreement - joint venture to operate transport/courier business - whether plaintiff's involvement limited to lending his name to venture or to share in profits of the business - defendant's clandestine conduct in moving the business into other companies - whether plaintiff's or defendant's version of oral agreement supported by surrounding circumstances - trial limited to liability

CRIMINAL LAW - Child murder - factors influencing objective seriousness - intention to kill - absence of premeditation - relatively spontaneous decision - presence of personality disorder - factors relevant to sentencing - youth and immaturity - rehabilitation - good character - unlikelihood of re-offending - excessive media attention - unavailability of standard non-parole period legislation - sentencing pattern at time of offence - delay in prosecution - protective custody - effect on child of offender - whether exceptional circumstances. STATUTORY INTERPRETATION - Standard non-parole period legislation not retrospective to date of offence - principles applicable. CRIMINAL LAW - False swearing - adoption proceedings - need for father's consent - seriousness of offence - no need to accumulate sentences on punishment for murder.

CRIMINAL LAW - Sentencing - Homicide - Manslaughter - Juvenile offender - Considerations of deterrence and rehabilitation in sentencing for juvenile offenders - Discount for offer to plea guilty - Offer rejected by Crown - Special circumstances for varying statutory ratio for non-parole period - Special circumstances for offender to serve non-parole period in a juvenile detention facility - Limited availability of educational facilities in adult correction centres

ESTOPPEL - equitable estoppel - proprietary estoppel - requirement that plaintiffs' assumption be reasonable - no requirement that representations be sufficiently certain to amount to valid contract - requirement to demonstrate detriment - expectation arising from conduct over a period of time - whether it would be contrary to good conscience to disappoint - APPEAL AND NEW TRIAL - new trial - failure to make specific findings of fact to resolve conflicts of evidence - APPEAL AND NEW TRIAL - Court of Appeal - circumstances in which appellate court will make findings of fact where conflicts of evidence unresolved - not where questions of credibility - APPEAL AND NEW TRIAL - practice and procedure - costs - certificate under Suitors' Fund - PRACTICE AND PROCEDURE - mediation - power to order where appropriate

Calculating expectation damages - Contract - Adjustment for inflation - Valuing expected revenue - Fixed costs - Variable costs - Overhead costs - Hudson formula - Pro-rata expenses

DAMAGES - assessment - after default judgment entered against accountant who provided false accountant's letter to obtain Lo-doc loan - borrowers forced to surrender home

COSTS - HELD - costs awarded in favour of plaintiffs on a party/party basis and thereafter on an indemnity basis

PRACTICE AND PROCEDURE - application to re-open and vary judgment pursuant to Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) - alleged misapprehension of law going to evidence permissible to satisfy onus under s 98A of the Landlord and Tenant (Amendment) Act 1948 (NSW) - alleged misapprehension of effect of Barilla v James [1964] NSWR 741 - application for leave to amend pleading - HELD - motion to re-open and vary granted on basis of misapprehension of effect of Barilla v James - onus satisfied by evidence contained in earlier registered lease - premises are not controlled premises and tenant is not a 'protected tenant' under Part 5A - plaintiff entitled to possession - leave to amend pleading granted

PRACTICE AND PROCEDURE - application for leave nunc pro tunc pursuant to s 500(2) of the Corporations Act 2001 (Cth) to commence proceedings against company in liquidation - application for leave to bring derivative suit in name of or on behalf of company to enforce right of indemnity out of trust assets - application by first defendant to strike out plaintiff's statement of claim - HELD - leave granted nunc pro tunc - leave to bring derivative suit in name of or on behalf of company refused - proceedings stayed

SUCCESSION - Wills, Probate and Administration - Construction and Effect of Testamentary Dispositions - devise of half interest in property - interest sold under power of attorney in lifetime of deceased - power of attorney subject to condition or limitation that could only be used upon treating medical practitioner certifying that deceased was no longer physically or mentally able to sign documents or look after her own affairs - whether letter that deceased may not be so capable sufficient - whether an exemption to the principle of ademption applied - whether acquiescence

CONTRACT - agreement to settle dispute between parties - deed of release - whether parties reached binding agreement

CRIMINAL LAW - Appeal against sentence - Malicious infliction of grievous bodily harm - Actual use of a weapon - Offence committed in company and planned - Mitigating factors present - Sentencing judge made finding of special circumstances - Whether sentence was manifestly excessive - Whether a more substantial adjustment of the statutory non-parole period ratio is warranted - Court is slow to intervene in discretionary decisions of the sentencing judge - Use of statistics

APPEAL - civil - final orders - whether remittal of matter for reconsideration means matter should be remitted to original trial judge PROCEDURE - civil - application to amend orders - slip rule - Uniform Civil Procedure Rules 2005 (NSW), r 36.17 WORDS AND PHRASES - 'reconsideration', 'determination'

JUDICIAL REVIEW of administrative decisions- appeal from an overturned decision of the Victims Compensation Tribunal- whether the Tribunal committed error of law and its decision was wholly irrational and capricious- Tribunal found 500 sexual assaults were "related acts" within the meaning of the Victims Support and Rehabilitation Act s 6(3), (4)- whether the Tribunal failed to take into account factors of age and location or failed to give them adequate weight- Tribunal's statutory construction of "related acts" was within its mandate- the reasons given by a tribunal are not to be construed minutely and finely with a keenly attuned eye to the perception of error- appeal upheld with costs- decision of Tribunal restored.

PARTNERSHIP - receivership - winding down - payment of receiver - whether sum should be retained by receiver to cover contingent liabilities

EVIDENCE - privilege - client legal privilege - whether a consultant is an agent for the purposes of privilege - whether documents received in capacity as agent. PROCEDURE - applicability of common law or UCPR and Evidence Act to question of whether documents produced in answer to a subpoena subject to client legal privilege - UCPR r 1.9 and s 131A of the Evidence Act 1995.

TORT - NEGLIGENCE - personal injury - psychiatric/psychological harm - plaintiff bullied and harassed by other pupils at high school - complaints of bullying to school authorities by plaintiff, plaintiff's mother and other school students - observations made by school staff of bullying - symptoms of anxiety and depressed mood engaging in self harm, collapses and seizures - nature and content of duty of care owed - whether duty of care was breached - school aware of bullying - school's bullying policies and practices - inadequate implementation of bullying policies established - question of whether plaintiff suffered illness - psychiatric injury established - causation - reasonable foreseeability of damage - supervision - damages - relevance of plaintiff's vulnerability to psychiatric injury and experiences at home - contributory negligence DAMAGES - measure of damages in action for tort - personal injuries - loss of earnings and earning capacity non-economic loss - past economic loss - future economic loss - domestic assistance - treatment - superannuation

CRIMINAL LAW - sentence - Crown appeal - manslaughter - 18 year old offender - spontaneous killing while intoxicated - sentence of 6 years, non-parole period 2 years - disproportion between non-parole period and head sentence - whether non-parole period manifestly inadequate

REAL PROPERTY - removal of caveat - caveatable interest - prior claim of registered first mortgage - whether in those circumstances caveat should be removed.

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offender - age and ill-health - antisocial personality disorder - unacceptable risk of committing a serious sex offence if not supervised - extended supervision order

WILLS AND ESTATES - family provision claim - competing claims or interests - financial resources and needs of claimants - small estate - unable to provide for claimant grandchild despite inadequate provision for claimant by deceased's will.

REAL PROPERTY - application to extend caveat - where plaintiff claims interest in property under contract for sale - whether defendants entitled to terminate contract - whether defect in defendants title - where serious question to be tried as to whether illegal sewer connection or omitted easement over property - mere possibility that Sydney Water may exercise statutory power to enter and do work on the property not a defect in title - special conditions preclude claim with respect to location of sewer or omitted easements - no serious question to be tried as to whether defendants entitled to terminate contract - in any event balance of convenience and inadequate undertaking as to damages would not favour extending caveat

COURTS - PRACTICE AND PROCEDURE - abuse of process - proceedings for damages for defamation - destruction of material by plaintiff when legal proceedings in contemplation - destroyed material potentially relevant to truth or falsity of defamatory imputations- whether conduct amounted to an attempt to pervert the course of justice - whether proceedings should be dismissed - counsel bound by admission made to court - principles considered

PROCEDURE - Supreme Court procedure - New South Wales - Application to extend time to file a reply to a cross-claim - Application brought during final hearing - Final hearing adjourned part heard - Proceedings involve multiple claims and cross-claims - Whether there is sufficient explanation for the facts and circumstances giving rise to the application - Whether the matters raised in the proposed reply catch the respondent by surprise - Whether the respondent suffers any prejudice

CRIMINAL LAW - sentence - appeal against severity - recklessly causing grievous bodily harm - s 35(2) Crimes Act 1900 - applicant unrepresented - applicant accepted sentence was "fair" - no error established CRIMINAL LAW - sentence - appeal against order for parole conditions imposed - order exceeded power of the Court - order set aside

CRIMINAL LAW - sentence - whether sentencing judge wrongly took into account factors irrelevant to assessment of objective seriousness of offence - whether judge failed to take into account the fact that the applicant could have been sentenced in the Local Court - whether sentence manifestly excessive - appeal allowed

PROCEDURE - Referral for pro bono assistance - Whether special reasons exist - Whether stay should be granted.