Cases and authorities

STATUTORY CONSTRUCTION - construction of the Home Building Regulation 1997 made under the Home Building Act 1989 - clause 57BC(5) - basis for determining exclusion from exemption for multi-storey building - insurance not required for a building having a "rise in storeys of more than 3" - whether Lower Ground Floor was a level that "includes accommodation only intended for vehicles" and so excluded from the calculation of the number of levels (Regulation was repealed with effect from 1 September 2004) SEPARATE QUESTION - determination of UCPR 28.2 - separate question determination in relation to clause 57BC(5) of the Home Building Regulation 1997 would be an appropriate exercise of power under UCPR 28.2

PROCEDURE - application for leave to commence proceedings under Vexatious Proceedings Act 2008 - applicant prohibited from commencing legal proceedings without leave of the court - leave sought to file a notice of appeal - requirements of s 14(3) of the Vexatious Proceedings Act 2008 - consideration under s 15(1) of the Vexatious Proceedings Act 2008 - fresh application would be an abuse of process - no prima facie ground found - application dismissed

PROCEDURE - application for leave to commence proceedings under Vexatious Proceedings Act 2008 - applicant prohibited from commencing legal proceedings without leave of the court - leave sought to file a notice of appeal - requirements of s 14(3) of the Vexatious Proceedings Act 2008 - consideration under s 15(1) of the Vexatious Proceedings Act 2008 - prima facie ground found - leave sought granted

PROCEDURE- security for costs- UCPR Pt 51 r 50- no security for costs to be awarded for an appeal unless there are special circumstances- special circumstances differ from case to case and one must look at the whole of the circumstances- there are special circumstances if an appeal is considered to be hopeless- in view of lack of detail in notice of appeal, appeal appeared to be in "hopeless" category- leave to amend granted.

NEGLIGENCE - employer's liability - causation - employee working on top of wall while resting one foot on scissor lift - employee injured because of negligent operation of concrete pouring boom causing him to be thrown over wall from which metal bars protruding then falling to ground - no safety harness provided - no evidence whether in circumstances of the accident safety harness a reasonably practicable precaution - whether causation established - CONTRIBUTION - joint or several tortfeasors - third party recovery from employer of injured worker - injured worker director and shareholder of employer company - s 151Z(2) Workers Compensation Act 1987 (NSW) - DAMAGES - plaintiff with pre-existing condition - whether a contributing factor to continuing disability - DAMAGES - non-economic loss - appellate review of assessment of percentage of "most extreme case" - s 16 Civil Liability Act 2002 (NSW) - DAMAGES - non-economic loss - whether award excessive - relevance of plaintiff's age to assessment - DAMAGES - gratuitous attendant care services - whether award excessive - s 15 Civil Liability Act 2002 (NSW)

COSTS - director represents defendant company at trial - plaintiff succeeds - non-party costs order made against director - whether primary Judge erred in making the order - criteria for making a costs order against a director representing a defendant company PROCEDURE - Home Building Act 1989 (NSW), s 48L - defendant applies for transfer of the proceedings - application made on third day of hearing - application refused - whether refusal deprived Court of jurisdiction - whether right to apply for a transfer had been waived

Application by Notice of Motion seeking the removal of manager of estate of protected person - other orders, relating to the transferring assets and delivery of documents

MENTAL HEALTH - guardians- applications for leave to appeal against four decisions of the Guardianship Tribunal - application brought under Guardianship Act 1987 s67 - HELD - applications out of time in respect of three Guardianship Tribunal decisions - no basis to exercise discretion allowing further time for leave to appeal in respect of these three decisions - none of the appeals for which the plaintiff seeks leave involve a question of law under Guardianship Act s 67(1)(a) - no grant of leave to appeal in respect of the fourth Tribunal decision.

CRIMINAL - conviction appeal - admissibility of evidence of prior criminal conduct as "background" evidence - not tendency evidence - failure of trial judge to take into account risk that jury would engage in tendency reasoning - failure to warn jury against tendency reasoning - EXPERT EVIDENCE - improper cross examination of expert called by the appellant so as to place inadmissible hearsay opinion of another expert before the jury - appeal allowed.

CRIMINAL LAW - appeal - interlocutory orders - s 5F(3) Criminal Appeal Act 1912 - order for joint trial - sole issue determinative of appeal concerns admissibility of tendency evidence - whether leave ought to be granted - approach to judicial review of decisions on admissibility of evidence under s 97 Evidence Act - leave granted - appeal dismissed CRIMINAL LAW - appeal - jurisdiction of the Court - ruling on admissibility of evidence not "interlocutory judgment or order" within s 5F - order for joint trial - jurisdiction established CRIMINAL LAW - appeal - interlocutory orders - standard of appellate review of decisions on admissibility of evidence under s 97 Evidence Act - conflict of authority - whether reviewable under principles in House v The King [1936] HCA 40; 55 CLR 499 or Warren v Coombes [1979] HCA 9; 142 CLR 531 - characterisation of decision - practical considerations CRIMINAL LAW - appeal - whether test applicable for review under s 5F different from test on appeal following conviction - whether a decision under s 5F precludes further consideration under s 5(1) and s 6(1) Criminal Appeal Act EVIDENCE - tendency - s 97 and s 101 Evidence Act - whether a decision under s 101 is a "separate decision" - whether evidence of more serious conduct can support allegations of less serious conduct and vice versa - no misapplication of principle EVIDENCE - tendency - sexual offences - pattern of behaviour - sexual interest - vulnerability of particular complainants - "grooming" for sexual exploitation - whether probative value "significant" - no unfair prejudice WORDS AND PHRASES - "judgment" - "discretion"

CRIMINAL LAW - evidence - tendency - admissibility and relevance - for particular purpose - sexual offences - whether evidence has significant probative value - whether there would be specific prejudice to the applicant in a joint trial

CRIMINAL - sentence appeal - sexual assault - objective seriousness - manifest excess - appeal dismissed

CRIMINAL - conviction appeal - manslaughter by gross criminal negligence - manslaughter by unlawful and dangerous act - duty of care owed by supplier of drugs towards drug recipient - directions to jury - unreasonable verdict - appeal dismissed.

APPEAL - appeal against conviction - conviction on count of reckless wounding - allegation that motor vehicle intentionally driven at victim - whether Judge put defence case adequately to jury - whether admission of "complaint" evidence caused miscarriage of justice - whether adding of alternative statutory count in course of trial gave rise to a miscarriage of justice - admission of unfairly prejudicial evidence contrary to section 135 and 137 Evidence Act 1995 - application of s6(1) Criminal Appeal Act 1912 (ie the proviso).

CRIMINAL LAW - appeal against sentence - appeal by Crown - ss68A of the Crimes (Appeal and Review) Act 2001 - misunderstanding by sentencing judge of non-custodial and non-fulltime custodial sentence options - sentence passed shortly after commencement of Crimes (Sentencing Legislation) Amendment (Intensive Correction orders) Act 2010 - need to re-sentence - application of principles relevant to re-sentencing - rehabilitation prospects - finding by sentencing judge that respondent "at the crossroads" - matters to be taken into account when assessing objective seriousness of part played by respondent in the commission of the offence - imposition of same sentence as sentencing judge.

CRIMINAL - sentence appeal - manifest excess - proportionality with co-offender - effects of delay in sentencing - onerous custody conditions - assessment of plea discount - appeal upheld on account of delay.

Building and construction - payment claim under Building and Construction Industry Security of Payment Act 1999 sent by facsimile - whether served in accordance with s 31(1)(c) by sending addressed to the person's ordinary place of business - multiple ordinary places of business - whether necessary that ordinary place of business be that with closest connection with relevant works - not necessary - Melbourne office was ordinary place of business.

INJUNCTIONS - interim injunctions - balance of convenience favours preservation of status quo - no prejudice to defendant if injunction granted - need for a sufficiently serious arguable case for injunction to be granted - case merely faintly arguable on current pleadings -revision of pleadings needed to have seriously arguable case - valuation of chattels and fixtures to occur - interim injunction granted pending interlocutory hearing.

Costs

COSTS - whether plaintiff entitled to costs on an indemnity basis

COMMERCIAL ARBITRATION - Commercial Arbitration Act 2010 s 16(9) - jurisdiction of arbitrator to determine dispute concerning patents and patent applications - Contract - construction - meaning of term "dispute" in an arbitration clause - whether issues raised are purely hypothetical

REAL PROPERTY - s 37A of Conveyancing Act 1919 (NSW) - alienation of land with intent to defraud creditors - where the plaintiff executed a writ over trust property of which the first defendant was trustee to secure a judgment debt that the plaintiff obtained against the first defendant - the first defendant was replaced by the second defendant - the writ lapsed and the first defendant transferred the trust property to the second defendant as the new trustee before a new writ could be lodged - whether the transfer was intended to delay or hinder or defeat the creditor in circumstances where no step was taken by the outgoing trustee to protect its right to indemnity from the trust assets before it transferred the property to the new trustee - nature of relief

TRUSTS AND TRUSTEES - whether company bought land as trustee - questions of fact - no matter of principle

MORTGAGE - fraudulent use of certificate of title to obtain loan from plaintiff - Certificate taken by fraudster from office of solicitor for owners of the property - solicitor's negligence in failing to secure Certificate - whether solicitor owed duty of care to plaintiff INSURANCE - application by plaintiff to join solicitor's professional indemnity insurer as defendant - whether exclusion clause in policy in respect of fraud or dishonesty by solicitor applied

CORPORATIONS - winding up - just and equitable ground - plaintiff alleges irremediable constitutional and administrative vacuum by reason of absence of members' voting rights and the circumstance that no directors are in office and none can be appointed - CORPORATIONS - management and administration - all issued shares are of classes expressed to carry no right to vote - certain unissued shares, if issued, would carry voting rights - two persons consider themselves to be in office as directors, one since 1973 and the other since 2004 - first person ostensibly appointed by special resolution of members having no voting rights - those members also the only directors in office at the time - directors had power to appoint directors - whether the appointment ostensibly made by special resolution of members took effect as appointment in fact made by the persons concerned as directors - held that it did - but such appointment "only until" next annual general meeting - appointee accordingly not in office once annual general meeting began - appointee did not retire "at" the meeting - provisions of constitution defining "annual general meeting" by reference to Companies Act 1961 and requiring that such meeting be held in accordance with that Act - effect of those provisions after the Companies (New South Wales) Code came to operate "to the exclusion of" the Companies Act 1961 - effect of the provisions after the First Corporate Law Simplification Act 1995 (Cth) abolished the statutory requirement that the particular company hold an annual general meeting - second putative director appointed by unilateral act of first putative director after all other directors had ceased to hold office - whether appointment would have been valid had appointor been validly in office as a director - held that it would - whether purported appointment susceptible to validation under s 1322(4)(a) - held that it is - whether conditions for making of validating order satisfied - held that they are - validating order to be made in respect of appointment of second putative director - that person then able to act to appoint another director to bring the number up to the quorum of two and thereby establish a functioning board - accordingly no irremediable constitutional and administrative vacuum despite absence for the time being of voting shares - CORPORATIONS - winding up - basis for winding up on the just and equitable ground not shown - obiter observations on questions that would have been relevant to decision to order winding up if basis shown - possibility that surplus assets in winding up will pass to Crown as bona vacantia - possible Anshun estoppel - possible relevance of plaintiff's delay or acquiescence

MORTGAGES - Mortgages and Charges Generally - Remedies of Mortgagee - son raised loans secured by unregistered mortgages over mother's land - No payment of principal or interest - mortgagee claimed possession - whether son forged mother's signature

APPEAL from interlocutory order dealing with procedure- such appeals not encouraged- allegation that judge failed to deal with one aspect of submissions- recourse to that judge required rather than appeal. PROCEDURE- amending pleadings- amendment of defence in response to amended statement of claim- defendant may amend to plead specifically- defendant cannot raise entirely new case. PROCEDURE- joinder of additional parties- UCPR r 6.24- whether just and convenient- balancing of all factors required- additional costs, delay, relationship between matters affecting different defendants. PROCEDURE- security for costs for appeal- foreign appellant- whether special circumstances exist- ordinarily security limited to probable expense in obtaining satisfaction of costs order in foreign court- here case exceptional in view of South African legislation.

EQUITY - where the plaintiff is a foreign resident who provided all of the purchase price to the defendant for the purchase of a property under the defendant's name -no presumption of advancement asserted- whether the money was a gift from the plaintiff to the defendant or from the plaintiff's father to the defendant - whether the plaintiff is precluded from obtaining an interest in the property for not having notified and sought approval from the Foreign Investment Review Board pursuant to the Foreign Acquisitions and Takeovers Act 1975 (Cth) - laches defence - where the plaintiff only brought his claim 15 years after the interest in the property was created, the absence of any assertion by the plaintiff that he was not entitled to an interest in the property when the plaintiff at an early stage sought to have his name on title

CONTRACT - relief - damages - rectification - specific performance - declarations sought that that the purported sale of plaintiff's property pursuant to a power of attorney and a deed of security and indemnity were fraudulent and should be set aside - allegations of breach of fiduciary duty - allegations of breach of s 12 of the Powers of Attorney Act 2003 - allegations of negligence and misleading and deceptive conduct - allegations of breach of s 74O of the Real Property Act 1900 CONTRACT - building - defendant builder sold property to recover amount owing under purported building contract - identification of contract terms - performance - oral terms - evidence - breaches of the provisions of the Home Building Act 1989 - claim for a quantum meruit for building work performed

SUCCESSION - construction of will - whether a gift to and trust established for a beneficiary under the will has failed due to the death of the beneficiary prior to the death of the testatrix - whether the executor is entitled to pay out monies immediately to the named beneficiaries pursuant to the will

PROCEDURE - miscellaneous procedural rulings judgment given but not entered -undertaking to Court withdrawn after judgment - - application for leave to re-open - re-opening on single issue without cross-examination - HELD - leave to re-open granted. EQUITY - remedies - specific performance - whether plaintiff ready, willing and able to complete contract for sale of land - HELD - plaintiff not ready, willing and able to perform - specific performance refused.

PROCEDURE - interlocutory issues - preliminary discovery. COSTS - interlocutory decisions - preliminary discovery - UCPR r 5.8 - costs of production and preparation.

CRIMINAL LAW - sentencing - insider trading - "true insider" - plea of guilty - other favourable subjective features

DEFAMATION - misleading and deceptive conduct - consequential orders - form of declaratory and injunctive relief

PERSONAL INJURY - recovery of damages by an offender in custody under Pt 2A Civil Liability Act - conclusionary effect of Appeal Panel Medical Assessment Certificate issued under s 328(5) Workplace Injury Management and Workers Compensation Act - threshold requirement of whole person impairment in s 26C Civil Liability Act -causation under Pt 1A of the Civil Liability Act -estoppel by convention

ADMINISTRATIVE LAW - appeal from Local Court - certiorari - whether Magistrate made a finding not before the Local Court - error of law - whether plaintiff entitled to fees for allegedly defective and "wildly inaccurate" building report - whether defendant induced to engage plaintiff by false misrepresentation qualifications, when not pleaded, an error of law - undesirable for matter to be referred back to the Local Court - no formal agreement for works - quantum meruit - reasonable costs and expenses

CRIMINAL LAW - appeal against sentence - grounds for interference - whether error in assessing objective seriousness of offences as falling "just below the mid range" - whether failure to give proper effect to a finding of special circumstances - whether sentence manifestly excessive - parity between co-offenders - no error established - leave to appeal granted - appeal dismissed

CRIMINAL LAW - procedure - sentence appeal - power of the Court to correct judgment after delivery - orders do not reflect intention of the Court - Rule 50C Criminal Appeal Rules not available - slip rule - concession by the Crown - interests of justice in this case - orders amended

CRIMINAL LAW - appeal against sentence - whether there was insufficient weight given to contrition and remorse - whether insufficient weight given to the forfeiture proceedings and money paid to the State of New South Wales - whether penalty imposed was manifestly excessive

CRIMINAL LAW - severity appeal - murder - joint criminal enterprise - principles applicable - genital mutilation of victim - gratuitous cruelty - provocation - revenge killing - parity.

Family provision order sought by daughter of deceased under Succession Act 2006

REAL PROPERTY - mortgages - mortgagee cannot be found - amounts due under mortgage paid

PRACTICE AND PROCEDURE - transfer of proceedings from Supreme Court to Land and Environment Court - where related proceedings on foot in Land and Environment Court - where issue in Supreme Court is whether claim for relief in Land and Environment Court will be "encumbrance" within meaning of transactional documents so as to disentitle bank from calling in guarantee -- Supreme Court natural forum for contractual interpretation - doubt as to jurisdiction of Land and Environment Court to restrain bank calling on guarantee - matters will traverse same evidence - no reason why Land and Environment Court not capable of dealing with question of construction - convenient that matter be heard in Land and Environment Court. CORPORATIONS - second defendant in liquidation - relief claimed not susceptible of procedure by proof of debt - only able to be obtained by court proceedings - leave granted to commence proceedings against second defendant in liquidation.

UNCONSCIOUS PATIENT - parens patriae jurisdiction - patient inmate at correctional centre - proposal to withhold aggressive therapy which has the effect of prolonging the patient's life - consent of patient to such treatment not required - distinguishable from cases where invasive treatment otherwise constituting an assault is proposed - application of (NSW) Crimes (Administration of Sentences) Act 1999 s72A - whether section precludes withholding of therapy having effect of prolonging patient's life - section deals with treatment necessary for preservation of health, not treatment relating solely to prolongation of life - held: s72A does not require treatment to merely prolong life.

FAMILY LAW - De facto relationships - adjustment of property interests under (NSW) Property Relationships Act 1984, s 20 - parties in de facto relationship - initial contributions to relationship and contributions during relationship lead to apportionment of at least 70:30 in favour of defendant - property held by plaintiff already represents 37.5% of divisible pool - defendant seeks no adjustment - plaintiff not entitled to adjustment.

PROCEDURE - costs - application for indemnity costs - defendants successful on Anshun defence - very strong case on Anshun and success on other issues as well

CIVIL PROCEDURE - interrogatories - application for orders pursuant to Part 22.1 of the Uniform Civil Procedure Rules 2001 (NSW) - whether interrogatories necessary - whether, if purpose of interrogatories is to shield plaintiff or others from giving evidence, as matter of discretion leave should be refused - whether interrogatories to third defendant are objectionable or fishing expedition - HELD -interrogatories necessary - interrogatories not objectionable and not a fishing expedition - the fact that an admission in answer to interrogatories may relieve plaintiff from need to adduce other evidence is not a basis for refusing to exercise discretion to order interrogatories - leave granted

CRIMINAL LAW - sentence - remaining in a building with intent to commit assault - young Aboriginal offender with history of mental illness

CRIMINAL LAW - offence of murder - trial by judge alone - whether "defence" of mental illness available

CORPORATIONS - application under ss 459G, 459H(1)(a) and 459J(1)(b) of the Corporations Act 2001 (Cth) for order setting aside statutory demand - whether Graywinter principles apply to preclude reliance on grounds not expressly or by inference identified in supplementary affidavit - whether genuine dispute as to existence and amount of debt and offsetting claim - whether "some other reason" established for the purposes of s 459J(1)(b) - HELD - Graywinter principles applied - statutory demand reduced pursuant to s 459H(4) but not set aside - genuine dispute as to amount of debt - no genuine offsetting claim identified in affidavit material - no "some other reason" for the purposes of s 459J(1)(b)