Cases and authorities

WILLS AND ESTATES - family provision claim - application out of time - financial resources and needs of claimant - whether the trial judge could have regard to the fact appellant's claim would have been weaker had it been brought and determined within the prescribed period, whether the trial judge could have regard to the detriment the appellant's siblings would have suffered had there been redistribution - Family Provision Act 1982 (NSW), ss 9, 16

TORT - Negligence - Duty of care - Causation of injury - Contributory negligence - Plumber decommissions solar hot-water system but does not advise property owner that he did not disconnect electricity - Handyman later asked by owner to attend to leak in roof in vicinity of decommissioned hot-water system - Handyman tells owner that electricity still connected - Six weeks later handyman goes back on to roof to attend to leak, and is electrocuted - Compensation to relatives proceedings brought - Whether plumber owed duty of care to handyman - Whether breach of any such duty caused handyman's death - Whether owner owed duty of care to handyman - Whether breach of any such duty caused handyman's death - Apportionment of liability.

CONTRACT - mobile phone service dealership terminable if dealer made "misleading misrepresentations" - whether advertisements placed by dealer misleadingly described service provider's mobile phone plan - on facts, dealer made misrepresentations - whether misrepresentations were material - on facts, were material to service provider and to potential customers - materiality not removed if dealer had system for correcting potential customers' misunderstandings - but evidence deficient as to a system

TAXATION - payroll tax - exemption - non-profit organisation - whether dominant charitable purpose - promotion of soccer - not charitable purpose CHARITY - promotion of sport - not charitable

CONTRACTS- Construction of commercial contracts- Construction of the Early Termination clause of a "Litigation Funding" Agreement- Entitlements of Funder do not continue once obligations have ceased- Construe "immediate payment of the Early Termination Fee" as payment of that fee only and not supplementary fees. CORPORATIONS- Financial products- Whether a "Litigation Funding" Agreement constitutes a financial product, derivative, credit facility- Corporations Act 2001 (Cth), sections 761D, 762B, 763A, 763E, 765A- Financial services and markets- Financial services providers- Licensing and regulation- rescission of agreement due to lack of licence under Corporations Act 2001 (Cth)- Whether licence required- What constitutes a financial product, derivative, credit facility- When is a financial product only incidental.

EQUITY - trusts - charitable trusts - application of cy-pres scheme where purpose not suitable and effective method of using the trust property - application of Charitable Trusts Act 1993 (NSW), s 9 to proceedings commenced before enactment of Act considered - operation of cl 5.26 - whether substantive or procedural

APPEAL FROM LOCAL COURT - power of Local Court to re-open sentence proceedings - whether errors of law had occurred entitling Local Court to re-open proceedings pursuant to s43 Crimes (Appeal and Review) Act 2001 - scope of s43 of that Act - whether denial of procedural fairness in later proceedings.

EVIDENCE - admissibility - judicial discretion to exclude or limit the use of evidence

Corporations law. Application to set aside statutory demand on numerous bases. Only one offsetting claim established in respect of a defamatory email. Demand varied.

COSTS - application for preliminary discovery - plaintiff substantially successful - summons and affidavits originally filed misconceived - costs wasted by defendant in preparing to meet original claim - significance of plaintiff's representation under Pro Bono Referral Scheme - need to balance competing considerations - each party to pay his or its own costs.

CRIMINAL LAW - appeal - sentencing - offences of aggravated breaking and entering, aggravated kidnapping and assault occasioning actual bodily harm - whether sentences manifestly excessive - whether error in degree of partial accumulation - whether error in assessment of objective seriousness of crime - whether error in failing to take into account evidence of mental condition - whether insufficient weight given to good character and likelihood of reoffending.

EQUITY - CORPORATIONS - Corporations Act 2001 ss 182(1), 183 - Senior employee establishes competing business with that of his employer during his employment - also fails to inform his employer of his traffic infringements and that it was obliged to nominate a driver resulting in the employer having to pay penalties - held first defendant breached his duties to the plaintiff

PROCEDURE - application by plaintiff to reopen case after final judgment pronounced - relevant defendant not present at hearing - material relied on in support of claim available at original hearing - no evidence as to why material not relied on at original hearing - failure to advance case at original trial must be responsibility of plaintiff - held: motion to reopen case declined.

PROCEDURE - judgments and orders - after hearing and judgment Court told that the second defendant is a deregistered corporation - second defendant deregistered on 12 July 2009 before the hearing - HELD Commonwealth of Australia joined as a party - amended orders made.

PRACTICE & PROCEDURE - application pursuant to s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 - discretion - whether application should be refused for want of forensic diligence

CRIMINAL LAW - procedure - witnesses - where witnesses are ASIO officials - where identity and facial features of witnesses are screened from accused - whether District Court has implied power to make an order for the screening of witnesses for the purpose of protecting national security - whether District Court erred in the exercise of the power to make screening orders CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution -where identity and facial features of witnesses are screened from accused - whether order for non-disclosure of witnesses' facial features violates Chapter III of the Commonwealth Constitution

COSTS- successful application for leave to continue litigation against company in liquidation- Corporations Act 2001 (Cth) s 500(2)- costs of liquidator to be paid by applicant- whether trial judge erred- whether should have been costs in the cause- administrative decisions in equity- requesting a privilege or dispensation- liquidators entitled to reasonable costs- costs order was within judge's discretion.

PROCEDURE - judgment - setting aside summary judgment - whether the case against the party against whom summary judgment is sought is so clearly untenable that it cannot succeed, whether the appellant has been improperly deprived of the opportunity for the trial of his case by a court, whether the high threshold required to justify the entry of summary judgment was met.

WORKERS' COMPENSATION - Medical assessment - Appeal against decision of approved medical specialist - Further medical examination by approved medical specialist on the appeal panel - Report of examination adverse to applicant provided to appeal panel - Report adverse in a respect previously put in issue - Report not shown to applicant prior to being acted on by appeal panel - Obligation of appeal panel to afford procedural fairness - In circumstances, no breach of obligation to afford procedural fairness.

APPEALS- Procedure- Jurisdiction- Appellate jurisdiction of NSW Court of Appeal from District Court- Avenues of appeal from District Court- District Court Act 1973 (NSW) s 127- Meaning of "action"- Statutory appeal to District Court not an "action".

CRIMINAL LAW - procedure - jurisdiction - where summons filed in both Court of Appeal and Court of Criminal Appeal - s 17 of the Supreme Court Act 1970 - whether Court of Appeal or Court of Criminal Appeal the proper forum

CONTRACT - Breach - Repudiation - Whether actual breach in the circumstances conveyed repudiation - Whether repudiation accepted - Whether innocent party relieved from performing condition precedent - Application of principle in Peter Turnbull & Co Pty Limited v Mundus Trading Co (Australasia) Pty Limited [1954] HCA 25; (1954) 90 CLR 235. GUARANTEE - Whether contract of guarantee imposed liability greater than that of principal debtor.

BUILDING AND CONSTRUCTION - Home Building Act 1989, s 83B(3) - licensing of builders - disciplinary provisions - holder of contractor licence issued with reprimand - holder of contractor licence seeks review in Administrative Decisions Tribunal - whether decision to reprimand is decision "to impose a penalty" - whether Administrative Decisions Tribunal has jurisdiction to review - ADMINISTRATIVE LAW - Administrative Decisions Tribunal - jurisdiction - internal review - Administrative Decisions Tribunal Act 1997, s 53 - whether holder of contractor licence aggrieved by decision to impose reprimand may apply for review - STATUTES - interpretation - purposive construction - purpose of disciplinary proceedings - no rigid distinction between punitive and protective - Interpretation - ambiguous meaning - unjust or capricious result - STATUTES - interpretation - aids to construction - statutory history - relevance of pre-existing regulations to amend legislation - structure of legislation - headings - Consideration of extrinsic materials - Second Reading Speech - Explanatory Memorandum - ADMINISTRATIVE LAW - judicial review legislation - privative clauses - COSTS - party and party costs - litigant in person - costs of preparation and presentation of case - out-of-pocket expenses actually and reasonably incurred - WORDS AND PHRASES - "penalty" - "reprimand" - "disciplinary" - "includes"

EQUITY - trusts and trustees - access to trust documents by beneficiary

CRIMINAL LAW - criminal procedure - appeal - application by defendant under s 55(2)(b) of the Crimes (Appeal and Review) Act 2001 seeking variation of magistrate's order requiring suspect to attend police station to be photographed - no notice of application to vary order given to suspect - application refused

PROCEDURE - Uniform Civil Procedure Rules - Application to discharge orders - Extension of time for service of statement of claim - Substituted service - Hearing de novo - Evasion of service - Delay through inadvertence of solicitor - Limitations - Whether some causes of action out of time

ADMINISTRATIVE LAW - claim for damages and prerogative and declaratory relief - sentenced prisoner detained in restricted facilities in correctional system - limits on movements, associations and visits - restriction on residual liberty - whether segregation order required - whether such placement permissible under general power of management and good order - retrospective legislation allowing separation of prisoners without segregation order - summary dismissal application

CRIMINAL - appeal against conviction- Shepherd direction not required on facts - failure to issue s 165 Evidence Act warning did not render the verdict of the jury unreasonable - Edwards direction not required - appeal against conviction dismissed CRIMINAL - appeal against sentence - sentence was not disproportionate to appellant's criminality - sentence of co-offender did not indicate a lesser sentence for appellant - leave to appeal granted but appeal against sentence dismissed

CRIMINAL LAW - appeal and new trial - appeal against sentence - grounds for interference - parity between co-offenders - inadequate sentence imposed upon co-offender - limited interference warranted

CRIMINAL - Appeal against conviction - criminal negligence manslaughter of baby - standard of care of a reasonable parent - standard of care of a reasonable homeopath - verdict unreasonable having regard to evidence - not callous disregard or uncaring negligence - evidence of medical appointments not sufficient to refute liability - appeal dismissed. CRIMINAL - Appeal against sentences - severity appeal - delay in bringing trial to court - second child born in interim - extra-curial punishment not found - appellant threatened sentencing judge but judge not required to step down - Leave to appeal against sentences granted but appeals dismissed.

CRIMINAL - appeal against sentence - grounds for interference - objective criminality- accumulation of sentence - insufficient weight to applicant's subjective circumstances - organised criminal activity - discount for plea and assistance - sentence quashed and applicant re-sentenced.

APPEAL - civil - application for rehearing and to set aside orders dismissing appeal - principles on which a rehearing may be ordered - application dismissed

TAXATION - duties - declaration of trust - property to be vested - future property - where the declaration of trust liable to ad valorem duty TAXATION - duties - declaration of trust - consideration for - may be provided by beneficiaries TAXATION - duties - declaration of trust - exemption - declaration of trust by apparent purchaser VALUATION - future property

INSURANCE - Double insurance principle - two different insureds entitled to indemnity from two different insurers with respect to separate liabilities for the same injury - contribution between insurers - extended contribution principle in AMP Workers Compensation Services (NSW) Ltd v QBE Insurance Ltd [2001] NSWCA 267; (2001) 53 NSWLR 35 - uncrystallised liability sufficient for purposes of double insurance - second insurer concurred in first insurer indemnifying its insured in the injury - proof of liability of second insurer's insured - first insurer's indemnity discharged that liability - second insurer required to share burden of indemnity - sufficient to declare entitlement to contribution

COSTS - indemnity costs - Calderbank offer - whether genuine compromise

CHILDREN AND YOUNG PERSONS - Children and Young Persons (Care and Protection Act) 1998 (NSW) - child under parental responsibility of Minister - application by mother for parental responsibility - existing care plan with two carers but one had died - application of principle of least intrusive intervention in s 9(2)(c) - confined to when necessary to take action to protect child from harm - does not apply where question is whether existing care arrangements are to be displaced - consideration of care plan required by s 80 - care plan that is considered must be relevant to the circumstances - need for revised care plan - (per Spigelman CJ and Beazley JA) treaty obligations under Convention on the Rights of the Child capable of being a relevant consideration to the exercise of discretion - held error of law (application of principle of least intrusive intervention) and jurisdictional error (failure to consider revised care plan and rejection of regard to Convention on the Rights of the Child).

PROCEDURE - pleadings - where material facts pleaded in confusing terms

Adoption - Change of name of child - s 101(5) whether change of given name in best interests of the child - application not granted

BAIL - Application for bail - s 8A of the Bail Act 1978 - Whether applicant satisfied court that "bail should not be refused" - Charge of supply commercial quantity of cocaine - Strong Crown case - Presence of firearms - Applicant's wedding scheduled in following days

GUARANTEES & INDEMNITIES - Personal guarantee on company loan - Company guarantee on home loan - Security by way of mortgages over property in NSW and Victoria - Default on payment of interest and principal - Failure of defendants to file a defence or any evidence in support in compliance with court orders - Defendants unable to explain any proper basis for a defence.

CONTRACT - formation - acceptance. ARBITRATION - Commercial Arbitration Act 1984 - no jurisdiction for arbitration as no contract - acceptance in writing not required if terms of arbitration agreement in writing

APPEAL - civil - application to set aside orders dismissing leave application - application refused - no issue of principle

CONTRACT - sale of goods - whether vendor waived right to claim that purchaser breached purchase obligation - whether vendor had choice between two inconsistent courses of action - whether election by vendor CONTRACT - sale of goods - concurrent and mutually dependent obligations - whether vendor's failure to communicate readiness and willingness to perform precluded claim for breach - whether vendor required to tender performance DAMAGES - Sale of Goods Act 1923, s 52 - contract price and market price the same - whether vendor suffered loss - whether trial judge erroneously assessed damages DAMAGES - failure to mitigate loss - onus on defendant - issue only arises if plaintiff proves loss at least on a prima facie basis

PROCEDURE - Judgments and orders - Amending, varying and setting aside - Court's power to set aside judgment - Where judgment was entered in the absence of a party - Whether judgment was entered irregularly - Whether the mortgagor has shown any basis for a defence to the mortgagee's claim - Whether the mortgagee is estopped from maintaining and enforcing the judgment - Whether the mortgagee entered into an agreement not to maintain and enforce the judgment.

PROCEDURE - Application for adjournment of final hearing - Failure to file defence or any supporting affidavit evidence - No satisfactory reason given for delay in filing pleadings - Repeated contravention of court orders - No evidence provided in support of application - Unlikely to have a proper defence - Irremedial prejudice likely to be suffered by the plaintiff.

TRUSTS - judicial advice - s63 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 - jurisdiction to give advice - advice as to registration of transfers is advice respecting administration of trust property - no statutory obligation to register transfers - trustee justified in acting on basis that no presumption contracts are binding - judicial advice that trustee justified in refusing to register transfer in respect of unitholders who have not indicated to the trustee they wish transfers to be registered - judicial advice on distribution of income and proceeds of redemption

Rescission - election

CRIMINAL LAW - APPEAL - offences involving conspiracy to import commercial quantities of a border controlled precursor - whether error in approach to assessing the evidence of remorse - whether error in fixing the non-parole period - whether error in relation to prospects of rehabilitation

CO-OPERATIVES - Rules - Rule providing for expulsion of member by resolution of general meeting - Construction of rule - Requirements for validity of resolution - Content of requirements of natural justice - Effect of rule concerning resolution of disputes.