Cases and authorities

APPEAL - CIVIL - Power of District Court to make order that 3rd party hand over monies in trust account - solicitor's undertaking - limitations on garnishee power - limitations on injunction power under s 46 District Court Act 1973 - limitations on implied power to make freezing order - interim asset preservation orders - contempt of court - void order - no power to refer contempt where order a nullity.

PROCEDURE - civil - pre-trial discovery - public interest immunity - principles to be applied - Commonwealth v Northern Land Council [1993] HCA 24; 176 CLR 604 considered. STATUTORY INTERPRETATION - Evidence Act 1995 (NSW), ss 130 and 131A - meaning of "a person" - whether State a person for the purposes of ss 130 and 131A.

PRACTICE AND PROCEDURE - enforcement of judgments - order for delivery up of goods - writ of delivery - where plaintiff fails to deliver property to defendants and delivers same to third-party - where third-party on notice of order and refuses to deliver up property - writ of delivery issued as of right - whether special circumstances such as to authorise order authorising Sheriff to enter third-party's premises.

PRACTICE AND PROCEDURE - independent experts - experts under search order gave undertaking to Court not to disclose information found that may be used in any other criminal or civil proceeding - material discovered potentially disclosing commission of offence by third party - whether leave should be granted to disclose material to relevant authorities - application for leave to be heard on notice to the parties

REAL PROPERTY - application under s 74MA of the Real Property Act 1900 (NSW) for the removal of a caveat lodged by the first defendant - whether the form of the caveat is inadequate and hence should be removed - PROCEDURE - costs - whether the first defendant should be ordered to pay the costs of the plaintiffs on an indemnity basis

Protection of interests in property of beneficiary named in will of managed person; nature and effect of s 83 NSW Trustee and Guardian Act 2009

ARBITRATION - Arbitration agreement - whether parties agreed to submit dispute under s 15(2)(a)(i) of the Building and Construction Industry Security of Payment Act 1999 to arbitration. BUILDING AND CONSTRUCTION CONTRACTS - Building and Construction Industry Security of Payment Act 1999 - whether dispute under s 15(2)(a)(i) of the Act arbitrable - whether proceedings under s 15(2)(a)(i) should be stayed.

CRIMINAL LAW - Conviction appeal - unreasonable verdict - verdict not unreasonable - evidence available to satisfy a jury of appellant's involvement - sentence appeal - proportionality of sentence with other offenders - sentence not manifestly excessive - cruel and callous act involving need for general deterrence.

CRIMINAL LAW - conviction appeal - conspiracy to interfere with Crown witnesses and intent to cause grievous bodily harm - inculpatory statement obtained by recording device on undercover police officer - initial plea of guilty to obtain entry by unlawful detention and two counts of conspire to cause grievous bodily harm - attempt to withdraw plea after sentence - applicant contended a lack of knowledge regarding the plea and no evidence to support conspiracy charges - recording device material suggested a fully formed conspiracy - conviction appeal dismissed Sentence appeal - whether the conspiracy was a fleeting conspiracy - whether material adduced in sentencing offender taken into account that was not in evidence - although taken into account, material would not have affected the trial judge-s assessment - appellate court intervention not warranted - whether Form 1 offences were enacted at the time of the offence - recognised by trial judge in reasons - no error despite inclusion on Form 1 - appeal dismissed

CRIMINAL LAW - sentence - Crown appeal - supply large commercial quantity of prohibited drug (MDMA/ecstasy) - possess prohibited firearm - keyring pistol - assistance to authorities - errors in assessment of objective seriousness of offences - error in approach to concurrence and accumulation - sentences manifestly inadequate - Respondent resentenced

CRIMINAL LAW - appeal against conviction - multiple armed robberies - coincidence evidence - evidence correctly set out in notice - conflicting witness identification evidence - jury obliged to consider that evidence - no injustice in admitting that evidence - whether there was a rational view consistent with innocence for the jury to consider - no risk of unfair prejudice or miscarriage of justice - conviction appeal dismissed Sentence appeal - trial judge applied standard non-parole period to s.97(2) offences - question is whether sentences excessive - trial judge must consider objective seriousness - care to be taken when considering Judicial Commission Statistics - maximum sentence determined by Parliament, not statistics - analysis of comparative sentences - sentence was impermissibly high - adjustment through accumulation

DEFAMATION – Defences – whether truth and comment can be pleaded in respect of the same imputations DEFAMATION – Defences – truth – whether defendant established substantial truth of imputations – Defamation Act 1974 (NSW), s 15 DEFAMATION – Defences – comment – whether defendant proved factual basis for comment – Defamation Act 1974 (NSW), s 30 DEFAMATION – Defences – qualified privilege –common law – whether imputations reply to an attack – whether imputations relevant to occasion of qualified privilege DEFAMATION – Malice – whether evidence of malice

CONTRACTS - unjust contracts - loan obtained by borrower to on-lend to a friend who acted as his finance broker - borrower promised $20,000 for on-lending money -borrower independently but inadequately advised - borrower signs Business Purposes Declaration - whether funds borrowed predominantly for personal, domestic or household purposes - whether on-lending was for a business or investment purpose - loan subject to Credit Code - interest rate reduced - whether finance broker exerted undue influence over borrower - whether unconscionable dealing - effect of undue influence and unconscionable dealing on lender - failure to serve s 80 notice - whether mortgage identified property charged - whether mortgage void for contravening s 40 Credit Code.

INTERIM RELIEF - injunction - where the defendant has undertaken significant building works to a unit in a strata plan without the consent of the Owners Corporation - where the Owners Corporation has issued a notice of breach of by-laws - where the defendant has sold the unit to a third party purchaser - where the transfer has been lodged at the Land Titles Office but not yet registered - whether the Owners Corporation is entitled to an interim injunction to preclude the defendant from taking further steps to complete the sale of the unit pending further order of the Court - discretion to exercise the Court's jurisdiction, laches, utility and the adequacy of damages considered in the context of an interlocutory injunction

PRACTICE AND PROCEDURE - notice to produce documents - foreigner not submitting to jurisdiction and seeking exercise of discretion to stay proceedings - documents referred to in foreign defendant's affidavits - foreign defendant is a party - Part 21 Rule 21.10 and Rule 21.11 of the Uniform Civil Procedure Rules 2005 - discretion to otherwise order - relevance - fishing - production required

PRACTICE & PROCEDURE - subpoenas - UCPR 33.11 - entitlement of third party to claim loss and expense incurred in complying with subpoena

LEGAL PRACTITIONERS - removal from the Roll of Local Lawyers -application to have legal practitioner struck off the Roll - whether fit and proper person to remain on the Roll - professional misconduct- making false statements to the Court - practising without holding a current practising certificate - Legal Profession Act 2004 (NSW) ss 14, 15, 25, 32, 47, 497, 590

DEFAMATION - Defences - Qualified Privilege - Common Law - appellant published defamatory imputations alleging respondent had repeated misleading information and was reasonably suspected by the appellant of corrupt conduct - no evidence of the truth of those allegations - whether communication made on occasion of qualified privilege - relevance of voluntary nature of publication and its timing in determining defence DEFAMATION - Defences - Qualified Privilege - Common Law - whether reciprocity of interest between appellant and recipient of communication - whether community of interest proven DEFAMATION - Defences - Qualified Privilege - Common Law - whether defamatory matter sufficiently connected to the privileged occasion WORDS AND PHRASES - "community of interest", "occasion of qualified privilege", "reciprocity of interest"

EVIDENCE - witnesses - credibility; PROCEDURE - service - whether effective - consequence of not being wholly within premises and whether service occurred within office hours; CONTRACT - building - whether contract provided a due date such that relief under Building and Construction Industry Security of Payment Act 1999 (NSW) was available

ADMINISTRATIVE LAW - judicial review - application for prerogative relief - whether dismissal of notice of motion constituted error of law ADMINISTRATIVE LAW - judicial review - application for prerogative relief - whether applicant entitled to have unresolved notice of motion determined

CRIMINAL LAW - sentence - manslaughter and affray - melee between rival motorcycle club members at airport - deterrence and denunciation - plea of guilty - favourable subjective case - special circumstances

TRUST AND TRUSTEES - charitable trust - cy-pres scheme - from time of testatrix's death it was impracticable to use the property and trust funds for stated purpose - general charitable intention - trust property should be applied cy-pres - application for trust property to be applied cy-pres should proceed in two stages - plaintiff failed to demonstrate that proposed scheme best way of settling trust property - plaintiff not yet justified in selling trust property as no advertisement designed to elicit response as to whether entity could use trust property for purpose within the general charitable intention

LEGAL PRACTITIONERS - application by defendant to restrain plaintiff's solicitor from continuing to act - where solicitor is son of plaintiff's director and principal witness - whether proper administration of justice requires that solicitor not to act

CORPORATIONS - voluntary administration - extension of convening period for second meeting of creditors - no matter of principle

Succession - Will construction - claim for rectification of Will

Serious sex offender - application for extended supervision order - only issue as to duration of order

CORPORATIONS - application for defendant to be wound up on the ground of insolvency under ss 459A, 459P and 459Q of the Corporations Act 2001 (Cth) - whether service of statutory demand was validly effected by leaving it in letterbox at residential address listed as defendant's registered office - whether defendant is insolvent pursuant to s 95A of the Corporations Act 2001 (Cth) - HELD - service of statutory demand was validly effected as letterbox wholly inside boundaries of place identified as registered office and letterbox was accessible to the public - statutory presumption of insolvency applied - evidence in any event established defendant's insolvency - winding up order made - PROCEDURE - whether application could be heard in absence of defendant - HELD - appropriate to hear application ex parte - all reasonable attempts were taken to notify defendant of application and no explanation of absence provided

TRUSTEE - indemnity for costs and liability - conduct unreasonable - no right of indemnity JUDICIAL ADVICE - no proper basis for seeking advice - discrete issue - indemnity for costs refused

COSTS - defamation - apportionment of costs - Defamation Act 2005 s 40(2) - indemnity costs - where plaintiff succeeds on one only of a number of imputations - whether costs should be apportioned to reflect time taken dealing with issues where plaintiff unsuccessful - whether plaintiff entitled to indemnity costs - whether interests of justice required otherwise where defendants unable to refer to what occurred during mediation - where defendants could have made offers not embargoed by Civil Procedure Act 2005 s 30(4) - defendants to pay plaintiff's costs on indemnity basis

PRACTICE AND PROCEDURE - application for extension of time to review Registrar's decision under r 49.20 Uniform Civil Procedure Rules - where Registrar refused application for extension of time for filing defence and cross-claim PRACTICE AND PROCEDURE - application for review of Registrar's decision under r 49.20 Uniform Civil Procedure Rules - where Registrar refused application for extension of time for filing defence and cross-claim -whether the need for just determination of the issues requires leave be granted - where defendant guilty of exorbitant delay in filing defence and cross-claim and treated the orders of the court with disdain - defendant should prima facie not be given leave to file defence and cross claim - if leave not granted to file defence plaintiff prima facie entitled to such relief as it appears to be entitled to on statement of claim under r 16.10 Uniform Civil Procedure Rules - plaintiff's pleading deficient - risk that judgment in default of defence would not determine all the real issues - direct plaintiff to file and serve amended statement of claim and leave to defendant to file defence to amended statement of claim - leave to file cross-claim granted - cross-claim to be heard after determination of plaintiffs claim - defendant ordered to pay part of plaintiff's costs of proceedings on indemnity basis

EVIDENCE - Evidence Act 1995 - hearsay and opinion rules - whether admissions in ERISP made with authority

DEFAMATION - misleading and deceptive conduct - publications on internet and by email - defamatory statements concerning individual Plaintiffs - defence of substantial truth - defence not established - assessment of damages for defamation - claim by corporate Plaintiff for relief under Fair Trading Act 1987 - whether representations misleading and deceptive - whether made in trade or commerce - whether injunctive and declaratory relief appropriate

PROCEDURE - application to set aside orders setting aside service of summons - whether primary judgment should be set aside as it contained errors and a number of grounds of prejudice which the respondent no longer relies upon - Uniform Civil Procedure Rules rr 1.12, 12.11, 36.16 PROCEDURE - application to set aside orders - whether factors to be taken into account when exercising the discretion under UCPR r 1.12 are applicable to the discretion under UCPR rr 12.11 and 36.16 - Arthur Anderson Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104

CAVEAT - whether existing caveat should be extended or a further caveat should be lodged - whether caveator's claim has "substance" - whether serious question arises and where balance of convenience lies - interest in land in the nature of improvements and monies spent thereon and payment of all rates - purported agreement that land would be given to the applicant for payment and improvements - no formal lease or lease-type payments - whether caveat defective in form - whether property held on constructive trust - no evidence of detriment to the respondent

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offender - application for extended supervision order - consideration of "unacceptable risk" test

PRACTICE AND PROCEDURE - appeal from orders dismissing statutory appeals from determination by liquidator of proof of debts for want of due despatch pursuant to r 12.7 Uniform Civil Procedure Rules - where basis of dismissal of appeals for want of prosecution was that appellants had shown no willingness to pursue appeals - failure to take into account material considerations - no evidence that parties did not wish to pursue statutory appeals - no evidence of prejudice to the parties from the delay - all parties content for proceedings to remain in abeyance - orders for dismissal discharged

PRACTICE AND PROCEDURE - summary dismissal - appeal from orders refusing application for summary dismissal - claim based upon contention that plaintiff's claim barred by Limitation Act 1969 - where plaintiff alleges Limitation Act does not apply by reason of acknowledgment of debt under s 54 - whether alleged acknowledgments purport to acknowledge debt and are signed for the purposes of s 54(4) - where no signature in the ordinary sense - arguable that principles of "authenticated signature fiction" apply by analogy to s 54(4) - appeal dismissed

ADMINISTRATIVE LAW - Order in the nature of certiorari - Workplace Injury Management and Workers Compensation Act 1998 - WorkCover Guides for the Evaluation of Permanent Impairment - Applicant suffered frank injury during course of employment - Injury assessed by approved medical specialist disregarding functional overlay - Assessment not to be undertaken until the degree of permanent impairment is fully ascertainable - Unassessed functional overlay precluded full ascertainment of degree of permanent impairment - Certificate of assessment by medical specialist beyond power - Appeal Panel decision affirming medical specialist's assessment infected with same error.

PROCEDURE - costs - security for costs - whether corporate plaintiff impecunious - winding-up application against plaintiff - relevant discretionary factors

Equity Equitable charges Equitable lien Constructive trust "Windfall Equity" Equitable Estates and Interests Non-financial contributions Breakdown in relations Whether breakdown occurred "without attributable blame" Parents sell their own home and place the net proceeds with their son and daughter-in-law to use to build a house for them all to live in Whether the parents were promised that their names would be placed on the title as co-owners of the property Parents not fluent in reading English Relief Adjustments for contributions

Insurance contracts - Insurance Contracts Act 1984 s 48 - whether section extends to a plaintiff suing an insured - whether plaintiff is a person to whom the insurance cover provided by the contract extends

DEFAMATION - pleadings - imputations - questions of form and capacity - whether open to plead articles published on separate occasions as a composite DEFAMATION - parties - further proceedings against same defendants - whether proceedings in respect of same or like matter - application for dismissal under s 23 of Defamation Act 2005 - Internet publications - whether "matter" as defined in s 4 of Defamation Act incorporates mode of communication PROCEDURE - whether open to plaintiff to discontinue where proceedings impermissible under s 23 of Defamation Act - UCPR Pt 12.1

CRIMINAL LAW - sentencing - maliciously wound with intent to cause grievous bodily harm - whether open to sentencing judge to take into account an injury not inflicted during principal offence - parity - whether subjective circumstances of offenders justify significant distinction

CRIMINAL LAW - Appeal against sentence - affray - young offender - under influence of alcohol at time of offence - part of group of young persons which inflicted injuries on three victims seriously and permanently on two - offence committed in public place. SENTENCING - Guilty plea - material error - failure by judge to give full discount of 25% under s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008 - sentence quashed - offence requires significant element of general deterrence - special circumstances warranting departure from statutory ratio - accumulation on sentence already being served.

CLAIM ON GUARANTEE - no issue of principle

Criminal law - sentencing - accessory after the fact to murder

PROCEDURE - application pursuant to s 237 of the Corporations Act to commence a derivative suit on behalf of fourth defendant against first and fifth defendants for alleged breach of fiduciary and statutory duties - HELD -once five criteria under s 237 satisfied there is no discretion - leave granted to commence derivative suit - requirement that derivative suit be commenced and continued as part of existing proceedings

BUILDING AND CONSTRUCTION CONTRACTS - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether a decision by an adjudicator who does not have jurisdiction was a determination under s 22 - whether entitled to submit new claim under s 17 - whether adjudicator had jurisdiction to determine claim - whether construction work carried out outside NSW

PROCEDURE - civil - pleadings - strike out; application - whether reasonable cause of action is disclosed in statement of claim