Cases and authorities

APPEAL - criminal conviction - appeal from Local Court to District Court - whether District Court erred in failing to make independent assessment of evidence - Crimes (Appeal and Review) Act 2001 (NSW), s 18 ADMINISTRATIVE LAW - supervisory jurisdiction - whether jurisdictional error on part of District Court - whether Court misconceived function under statute - acceptance of credibility finding made by magistrate

CONTRACT - separate questions - construction of commercial contract - employer and employee - profit retention policy - natural meaning of words - lack of ambiguity - post contractual conduct cannot contradict terms of contract

WILLS AND ESTATES - validity of the will - capacity of testator - fraud - removal of caveat

Contract - Implied Agreement - Whether a contract of loan is to be inferred from the circumstances

PROCEDURE - application to have proceeding transferred to Supreme Court of Queensland - where Commonwealth facing similar claim in that Court at the suit of a different party - common questions of fact and law raised in both proceedings - whether more appropriate that present proceeding be determined in the Supreme Court of Queensland - where interests of justice lie.

CRIMINAL LAW - conviction appeals - joint trials of Appellants - all Appellants convicted of two murders (Lawford Street shooting) - firearm attack on suburban house from street - two occupants (Ziad Razzak and Mervat Nemra) killed - joint criminal enterprise - alleged to be part of feud between two groups - one Appellant (Darwiche) convicted at same trial of earlier offences of maliciously discharge loaded firearm with intent to cause grievous bodily harm (to Bilal Razzak) and shoot at a person (Farouk Razzak) with intent to murder (Yanderra Street shooting) - these offences also alleged to be part of feud - jury unable to agree upon verdict on further count against Darwiche of murder (of Ali Abdul Razzak) APPEAL - grounds by all Appellants claiming prejudice and a miscarriage of justice flowing from joint trial - no error in decision to hold joint trial of all Appellants for Lawford Street shootings - no error in decision to try Darwiche in same joint trial for earlier alleged shooting offences said to be part of feud - appropriate directions given to jury concerning use of evidence against each Appellant - jury reached verdicts impartially on evidence and in accordance with trial judge's directions - no miscarriage of justice resulting from joint trial APPEAL - grounds challenging direction that evidence of one indemnified witness could support evidence of another indemnified witness - no error in direction APPEAL - claim by Darwiche that it was abuse of process for prosecution case to be based upon evidence of indemnified witnesses who received benefits - no application made at trial for stay on this basis - no proper basis for stay in any event - assessment of credibility and reliability of witnesses part of jury's function - all evidence concerning indemnities and benefits placed before the jury - no miscarriage of justice APPEAL - grounds contending error in various respects during trial - no error demonstrated - no miscarriage of justice APPEAL - applications by two Appellants (Darwiche and El-Zeyat) for leave to add further grounds of appeal after hearing of appeal but before judgment delivered - suggested fresh evidence - approach to determination of application for leave - assessment of suggested fresh evidence - whether fresh and credible - whether likely in the context of the trial to cause jury to entertain a reasonable doubt about guilt of Darwiche or El-Zeyat - no miscarriage of justice - leave to add grounds refused

Criminal Law - direction by trial judge that jury could look for independent support for the evidence of one indemnified witness in the evidence of another indemnified witness - evidence of comfit identification - fresh evidence - failure by prosecution to disclose to defence material relevant to credibility of Crown witness.

CRIMINAL LAW - Sentencing - Crown appeal - Offence of recklessly inflicting grievous bodily harm - Sentence of one year eight months, suspended - Whether insufficient regard to standard non-parole period - Whether too much weight given to subjective features - Whether sentence manifestly inadequate - Crown appeal allowed.

APPEAL - Application for leave to appeal out of time - No appearance for applicants on date appointed for hearing - Whether documents supplied by applicants supported the granting of leave.

PROCEDURE - Application to adjourn hearing - Made in writing annexing a medical certificate - Whether a sufficient basis for an adjournment.

PRIVATE INTERNATIONAL LAW - application for stay of proceedings on forum non conveniens basis - proceedings against New York attorneys alleging breach of retainer by failure promptly to pay to clients monies received in settlement of Pennsylvania proceedings - whether New South Wales a clearly inappropriate forum - significance of alternative forum being unavailable and of identity of the proper law of the contract of retainer - significance of place of contracting to determination of proper law of contract

APPEAL - extension of time to file notice of appeal - competence of appeal - applicant seeks to vary judgment below by $66,598 - whether appeal involves claim, demand or question to or respecting civil right amounting to or to the value of $100,000 - Supreme Court Act 1970 (NSW) s 101(2)(r)(ii) APPEAL - leave to appeal - extension of time to file a summons seeking leave to appeal - whether prospects of obtaining leave to appeal - whether appeal raises any question of general legal principle - Uniform Civil Procedure Rules 2005 51.10

PROCEDURE - Costs - Discrete issues on which successful party failed - Appropriate orders at first instance and on appeal.

APPEAL - inadequacy of reasons - can not be seen why judgment on admissions refused - claim to summary judgment not dealt with - other inconsistency or obscurity - leave to appeal granted. PROCEDURE - judgment on admissions requires clear admissions - issue of appointment of new trustee - no clear admissions - statement in issues response on which applicant relied did not admit entitlement to relief or facts on which entitlement based - summary judgment required proof of passing of a resolution - not proved (see below) - order imposed for decision of separate questions - no adequate reasons - failure to give procedural fairness - questions inappropriate in terms - not situation for separate questions. EVIDENCE - copy minute of resolution tendered as business record - need for proof that was business record - evidence on information and belief - inadmissible where not interlocutory proceedings (Evidence Act, s 75) - business record not proved. COSTS - indemnity costs order against successful respondent - order not warranted - inutility of applications for judgment - costs against applicant.

ADMINISTRATIVE LAW - Administrative Decisions Tribunal - Power to award costs - Interpretation of s 88 of the Administrative Decisions Tribunal Act 1997 - Meaning of "costs of or incidental to proceedings in the Tribunal" in relation to proceedings before an appeal panel.

ADMINISTRATIVE LAW - Complaints of sexual harassment and victimisation - Complaints dismissed by Administrative Decisions Tribunal - Appeal to appeal panel - Appeal extended to merits - Respondent permitted to file notice of contention out of time - Appeal dismissed - Whether Appeal Panel erred by reconsidering a decision - Res judicata and issue estoppel - Whether Appeal Panel otherwise erred or denied procedural fairness.

CORPORATIONS - application for access to confidential affidavits filed pursuant to section 596C(1) of the Corporations Act 2001 (Cth) - application for discharge of summonses - HELD - arguable case established for setting aside of summonses and necessary for access so as fairly to dispose of application - access to confidential affidavits granted - summonses seeking to examine about internal information of third parties not examinable affairs of corporation so basis for exercise of power to issue summonses not established - as matter of discretion would have set aside in any event due to fact that non disclosure of import of dispute as to Receivers' title - improper forensic advantage in now relying on summonses - examination summonses discharged

EXPEDITION LIST - principles and practice - more demanding standards - revocation of expedition - vacation of hearing dates

COSTS - principles in Re Minister for Immigration and Ethnic Affairs: Ex parte Lai Qin (1997) 186 CLR 622 where application resolved by agreement prior to hearing - whether application to pay by instalments was doomed to failure or so unreasonable in the circumstances as to warrant costs order - HELD - parties to bear their own costs

Application for family provision order under Chapter 3 of the NSW Succession Act 2006 - Plaintiff and Defendant only children of deceased

PROCEDURE - Discovery - Must be relevant to a fact in issue - Whether discovery categories are too broad.

CRIMINAL LAW - offence of entering upon inclosed lands without lawful excuse - meaning of "inclosed lands" in Inclosed Lands Protection Act 1901 - held by Magistrate not to extend to retail premises open to public in commercial shopping complex - person prohibited from entry to premises - premises fall within definition of "inclosed lands" - error demonstrated - matter remitted to Local Court

PROCEDURE - civil - joinder of parties - Uniform Civil Procedure Rules r 6.19 - whether primary judge had power to grant leave to join insurer as defendant

CONTRACT - deed - effect of - collateral obligations - whether plaintiff entitled to interest in property as tenant-in-common with defendant under mother's will pursuant to deed - whether contract unjust pursuant to Contracts Review Act 1980 (NSW). EQUITY - estoppel by representation - failure to prove that representations were in fact made - failure to prove estoppel by conduct.

PRACTICE AND PROCEDURE - Application to set aside order granting access to third and fourth defendant's property for 21 days - plaintiff alleged to have obtained judgment by fraud or false evidence - access period still has 7 days to run - plaintiff entitled to respond to allegation - exigencies of duty judge list not amenable to determining such applications.

PRO BONO REFERRAL - Applicant had prior referral within three years - special reasons required to justify further referral - potential availability of family provision claim - claim different from claim dealt with in previous referral - special circumstances satisfied

CRIME - sentence - manslaughter based on dangerous and unlawful act - plea of guilty - lengthy record of prior convictions - intellectual disability - Fernando principles

CORPORATIONS - application by Perpetual Nominees for the winding up of NA Investment in insolvency pursuant to s 459P of the Corporations Act 2001 (Cth) - application by NA Investment for leave under s 459S to oppose winding up application on ground that it relied on and/or it could have relied on for application to set aside statutory demand under s 459G - HELD - application for leave under s 459S dismissed - s 459S(2) not satisfied - order winding up NA Investment in insolvency

ESTOPPEL - General principles - contract for sale of irrigated farm land in 2000 - whether interest in shares of irrigation supply company transferred with land - both parties treated interest in shares as transferred in 2000 at time of contract - defendant purchaser acted on assumption shares transferred in 2000 - HELD plaintiff vendor estopped from denying transfer of shares to purchaser.

ESTOPPEL - General Principles - plaintiff obtained judgment for damages for fraud - later proceedings in constructive trust against recipients of fraud moneys - application for summary termination - whether abuse of process - whether Anshun applied - whether earlier proceedings constituted an election between alternative remedies - whether remedies were cumulative

WILLS AND ESTATES - intestacy - family provision claim -power to make orders affecting immovable property of deceased in New South Wales - no power to make orders affecting property outside of New South Wales - orders to adjust entitlements of claimants on intestacy appropriate. WILLS AND ESTATES - administratrix - duty to get in assets - appropriate to order account for rent for properties forming part of estate. EQUITY - trusts - express trust - no evidence of present intention to create a trust.

COSTS - basis for awarding in variation to original order - exercise of discretion

CONTRACTS - rectification of contract EQUITY - common mistake - when rectification of contract for common mistake is warranted - common intention of parties to contract on basis other than that specified in the contract - contract inclusive or exclusive of GST EVIDENCE - drawing of adverse inferences due to failure to call witnesses.

PROCEDURE - civil - pleadings - strike out; application to

EVIDENCE - Client Legal Privilege - whether drafts and filenotes of non-privileged communications are privileged - whether waived by disclosure - whether commercial communications are privileged - whether state of mind based on legal advice is part of the plaintiff's case

COSTS - varying judgment or order -application that the court rescind the instalment order allowing the defendant and judgment debtors to pay the judgment debt to the plaintiff and judgment creditor by instalments

Criminal law - sentencing - relevance of mental condition - appeal fresh evidence Solicitor's incompetence

CRIMINAL LAW - sentence - obtain benefit by deception under s.134.2(1) Criminal Code 1995 (Cth) - lodgement of false Business Activity Statements with ATO to obtain GST refund - Dwayhi an ATO verification officer acting corruptly to process sham returns - Bechara a businessman who obtained benefit - Kertebani another businessman who obtained benefit - three offenders sentenced by different judges - Dwayhi and Bechara claim legitimate sense of grievance by reference to Kertebani's sentence - different charges against each offender - different roles of offenders - gross breach of trust by Dwayhi as ATO employee - principle of parity, proportionality or relativity between sentences of offenders involved in same criminal enterprise - objective test of legitimate grievance - requirement for marked and unjustifiable disparity - strong desirability that related offenders be sentenced by same judge - necessity for courts and prosecutorial bodies to actively promote this practice - Dwayhi not establish legitimate sense of grievance - Bechara does - error established - Bechara resentenced

CRIMINAL LAW - conviction appeal - rule in Browne v Dunn - whether mistrial if question put to applicant but not complainant - questions from the jury relating to whether counsel was restricted from mentioning certain evidence as he knew it to be untrue - whether trial judge erred in allowing the jury to assess whether counsel's failure to question was an oversight - whether jury should consider counsel's ethical obligations - whether directions of trial judge were sufficient - whether misdirection by trial judge adversely impacted on applicant's credibility - no objection by counsel at trial to direction or request for jury's discharge - whether the verdict was unreasonable on the evidence

CRIMINAL LAW - appeal against sentence - whether discount given for assistance was too high - whether sentence was manifestly inadequate in regard to seriousness of offence, role of offender and comparable sentences - importation of a commercial quantity of a border controlled drug, cocaine - sentence not found to be manifestly inadequate - appeal dismissed

CRIMINAL LAW - Sentence appeal - Offences under s 97(2), 112(1)(a) of the Crimes Act 1900 and s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999 - Offences committed to satisfy drug habit. SENTENCING - Failure to refer to JIRS statistics or comparative cases - Whether sentences manifestly excessive - Inherent and aggravating features - Good prospects of rehabilitation - Early guilty plea - Substantial assistance to authorities - Disclosure of offences to authorities - Crimes (Sentencing Procedure) Act s 23(3) permits reasonable disproportion in sentence.

PROCEDURE - Judgments and orders - powers of Judge of Appeal to make any order by consent - orders defective where party had not consented PROCEDURE - Judgments and orders - leave to appeal granted nunc pro tunc and additional orders made to ensure validity

REAL PROPERTY - Application to extend operation of caveat - interest described as 'equitable interest arising from estoppel' - test whether caveat has or may have substance - whether serious question to be tried - plaintiff's evidence not challenged - assumption said to arise from representations made by mother - reliance on representations inferred by expenditure of labour and moneys on property - detriment incurred does not have to be of grand scale - plaintiff paid one-quarter of purchase moneys - proprietary remedy may not be disproportionate - plaintiff has arguable case - balance of convenience - proposed refinancing not jeopardised by extension of caveat - undertaking given as to damages - plaintiff impecunious - no significant risk of defendant incurring pecuniary damage if caveat extended - balance of convenience favours extension. REAL PROPERTY - Caveat said to be defective in form - caveat deals with whole of subject land - remedies available may apply to whole of land - caveat does not specify residential address - want of strict compliance with formalities not fatal - interest not described as beneficial or as chargee - interest said to arise by way of equitable estoppel sufficiently discernible.

REAL PROPERTY - Application by co-owner for appointment of trustees to hold property on statutory trust for sale - prima facie entitlement to order - court will generally only exercise discretion to decline to make order where co-owner can establish right in contract or equity - discretion also exercisable where proceedings for alteration of property interests may result in one co-owner becoming sole owner - if such an order made unlikely defendant would become sole owner - no reason to decline order to which plaintiff prima facie entitled.

CONFIDENTIAL INFORMATION - application to restrict access - principle of open justice - reason for principle - limited exceptions - confidential information that might advantage competitors if disclosed

PRACTICE AND PROCEDURE - Undertakings given by party to court -defendant mortgagee gives undertaking to pay into court proceeds of sale of properties if significant risk established that may be unable to do so if required by judgment - construction of undertaking - 'significant risk' directs attention to prospective situation when judgment given - 'risk' pertains to possibility not probability - fluctuation and deterioration of net asset position of mortgagee points to significant risk - mortgagee has finance facility - holding company of mortgagee subject to acquisition by another company - acquisition may permit termination of facility arrangement - finance facility may be insufficient to meet refund payment - cross-guarantee said to reduce risk enforceable only on winding up of mortgagee - held: significant risk mortgagee may be unable to refund proceeds of sale with interest if so required by judgment. COSTS - Special costs order sought that costs of interlocutory application be payable forthwith - general rule that such costs are not payable until the conclusion of proceedings - factors militating against application of general rule not present - no special costs order made.

PRACTICE AND PROCEDURE - representative proceedings - settlement approved in Federal Court of Australia - substantially the same proceedings in the Supreme Court - transitional provisions - requirement for approval of settlement dispensed with

Equity Perpetration of a fraud by outside party Plaintiff carrying on finance business Fraudulent invoices Unjust enrichment Elements of unjust enrichment claim Which of a number of entities should bear the cost of the fraud Fraudulent invoices Alternative claims for knowing receipt of trust property Change in position Recognized elements of establishing change of position defence Contractual allocation of risk Barnes v Addy

COSTS - orders re costs of various interlocutory applications

PROCEDURE - costs - interlocutory proceedings - costs payable forthwith