Cases and authorities

DEFAMATION - trial by judge alone on all issues - publication of emails - imputations of sexual harassment and conduct warranting complaints of unwanted sexual advances - limited number of recipients - each recipient had knowledge and a close association with events concerned in publication DEFAMATION - defences - substantial truth - meaning of "sexual harassment" - whether conduct properly characterised as sexual harassment - whether conduct warranted complaints of unwanted sexual advances - contextual truth - s 26 Defamation Act 2005 - pleading back - imputations pleaded on behalf of plaintiff significantly more serious DEFAMATION - defence of honest opinion - s 31 Defamation Act 2005 - defence fails - clear statement of facts - not a matter of public interest DEFAMATION - common law qualified privilege - statements made in pursuance of duty or interest - proper identification of subject matter - approach to determining extent of interest - incidental recipients - reciprocity - "pressing need" test not applied - s 30 Defamation Act 2005 - reasonableness of conduct - plea of malice - whether privileged occasion used for improper purpose DEFAMATION - publication - email - where recipients of publication are also co-authors - electronic communication - whether co-authors can be recipients for the purpose of defamation law DAMAGES - evidence of hurt and distress - damage to reputation - publication within limited circle WORDS & PHRASES - "sexual harassment" - ordinary meaning

SUCCESSION - Family provision - deceased dies intestate - whether plaintiff an eligible person under Family Provision Act s6 - plaintiff claims to be in a domestic relationship with deceased in last three years of his life - if so, whether adequate provision made for the proper maintenance, education and advancement in life of the plaintiff - whether an order for provision should be made under Family Provision Act s7 - HELD - domestic relationship existed between plaintiff and deceased at the time of his death - plaintiff an eligible person - adequate provision for the plaintiff's maintenance, education and advancement in life not made - order for provision made in the sum of $750,000 from the estate.

COSTS - Indemnity costs application - Concerns notice under the Defamation Act before litigation, identifying imputations - Settlement offers - s 40 Defamation Act 2005 - Whether defendant unreasonably failed to make or accept offer

TRADE PACTICES - misleading and deceptive conduct - Fair Trading Act 1987 s 42 - statements about prospects of redevelopment of leased premises - no misrepresentation. DAMAGES - misleading and deceptive conduct - allegation that lessee induced to surrender lease - lease not found to have greater value than amount obtained on surrender - loss of opportunity - potential involvement in redevelopment - value of chance no greater than amount received on surrender

CONTRACT - damages - purchaser under a contract for the sale of a unit defaults - vendor terminates contract - vendor claims as damages mortgage interest payments - whether evidence established that the claimed loss was caused by the purchaser's breach CONVEYANCING - primary Judge orders return of deposit under s 55(2A) of the Conveyancing Act 1919 (NSW) by reason of the vendor's misrepresentation prior to the contract - whether any error shown in the exercise of the primary Judge's discretion

ESTOPPEL - General Principles - promise by one joint tenant to transfer an unsubdivided lot when able to do so - subdivision not taken place - other joint tenant not party to proceedings

JUDICIAL ADVICE - application by administrator of company for judicial advice and directions under ss 447D and 447A of the Corporations Act 2001 (Cth) - in the alternative, application for directions under ss 63 and 81 of the Trustee Act 1925 (NSW) to the extent that administrator is a bare trustee - HELD - it was appropriate for judicial advice to be given under s 447D as to the manner in which the assets of the company should be dealt with by the administrator and the administrator's claim for remuneration - it was inappropriate for orders to be made which would determine competing parties' claim to the artworks in question - EQUITY - whether statutory lien or equitable lien to be imposed over artworks that are property of investors, not company - whether imposition of equitable lien over assets of a regulated self-managed superannuation fund will result in those assets losing their 'complying fund status' under reg 13.14 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) - whether amount of work undertaken by the administrator in the administration of the company was excessive or unnecessary - HELD - statutory lien over artworks the subject of lease to the company - equitable lien imposed to secure reimbursement of administrator's reasonable costs and expenses - reg 13.14 not applicable to an equitable lien imposed by the court - work undertaken by administrator was reasonable in the circumstances

Corporations law. Application to set aside statutory demand under s459G of the Corporations Act. Demand set aside. No matter of principle.

CRIMINAL LAW - Abuse of process - Bringing of separate counts for what is in substance one offence - Charges of conspiracy to import a border controlled precursor and of knowing participation in an attempt to supply a prohibited drug - Whether total alleged criminality captured by one charge - Whether any reasonable possibility of different jury verdicts - Held not to be an abuse of process.

Criminal Law - sentence - indecent assault by brother - young victim - significance - offences long ago - offender entitled to be sentenced in accordance with standards then - information as to those standards - significance of rehabilitation.

CRIMINAL LAW - knowingly concerned in cultivation of large commercial quantity of cannabis plants - discharge of jury - possibly prejudicial evidence effectively withdrawn by trial judge from jury's consideration - sentencing - aggravating factors in s 21A(2)(e), s 21A(2)(i) and s 21A(2)(n) of Crimes (Sentencing Procedure) Act - wrongly found by sentencing judge - these factors inherent in offence - applicants re-sentenced

CRIMINAL LAW - sentencing - possession of methylamphetamine - very large quantity of drug - offender sentenced to maximum term of imprisonment prescribed for offences - whether open to sentencing judge to find that that the offences were in the worst category of their type or that the applicant was a more serious offender than his co-offender

SENTENCE APPEAL - offender the apex of organisation - similar prior convictions - sophisticated drug supply network - 14 months involvement - marked difference in criminality between offender and co-accused - no error for lack of parity of sentences - findings as to remorse, rehabilitation and special circumstances - open for trial judge to make - non-parole period not manifestly excessive in light of criminality

FRAUD, MISREPRESENTATION AND UNDUE INFLUENCE - Remedies and procedure - Pleading - whether it is open for a judge to make a finding of dishonest conduct against a party when fraud has not been specifically pleaded against that party - whether particulars need be given of knowledge PRACTICE - Procedural fairness - Allegation of dishonesty - requirement can be met by notification in pleadings APPEAL - Leave to appeal - relevance of consequences of success or failure in an appeal to the individuals concerned - relevance of the quantum of the claim APPEAL - Leave to appeal - Interference with judge's findings of facts - whether there was sufficient material for inferences to be drawn EQUITY - remedies - breach of fiduciary duty - account of profits - equitable wrongdoer not permitted to keep the benefit derived from the wrongdoing

PRACTICE AND PROCEDURE - EVIDENCE - waiver of privilege - where solicitors agreed not to maintain privilege in certain file notes - extent of waiver brought about by the arrangement properly construed - where questions related to the production of documents including the extent of the waiver referred to a referee for investigation and report - whether the report should be adopted or otherwise

PROCEDURE - interlocutory injunction - where plaintiffs seek relief in respect of security granted by two of them over their assets - allegation of misleading or deceptive conduct and unconscionable conduct by chargee in connection with grant of charge - chargee appoints administrator under voluntary administration - application for interlocutory order restraining administrator proceeding with meeting of creditors - where administrator of opinion that companies insolvent and should be wound up - no application for termination of administration by court - balance of convenience favours refusal of interlocutory injunction

CONTRACT - informal agreements - construction contracts - relevance of post contractual conduct in determining who the parties to the contract are - objective determination - contract found between builder and contractor, not developer and contractor. PROCEDURE - adjudication application under Building & Construction Industry Security of Payment Act 1999 - natural justice - failure to supply same documents to adjudicator and opposing party - denial of natural justice - whether relief should be refused in circumstances where conduct not deliberate and issue determined on the merits by the court - abuse of process - deliberately withheld relevant documents from adjudicator - no duty of full disclosure in adjudication process

Succession - Family provision order sought by daughter of the deceased who was estranged from the deceased for 35 years

APPEAL AND NEW TRIAL - appeal against Local Court decision - appeal brought under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 - Road Rules - infringement of r 56(1) of the Road Rules 2008 - failure to stop at a red traffic light - whether Magistrate erred in law in determining that an essential element of the offence was missing- whether failure to give adequate reasons - construction of r 56 of the Road Rules and interaction with r 59 - appeal upheld - costs

MORTGAGES - mortgages and charges generally - remedies of the mortgagor - orders sought for possession - whether defendants authorised a third party to obtain the loan - authority established - whether defendants signed the loan documents - allegation of fraud or forgery - whether signatures were forged - whether loan was obtained with defendants' knowledge - whether defendants were bound by documents which they did not sign - Contracts Review Act 1980 (NSW) - whether contract unjust EVIDENCE - witnesses - credibility CONTRACTS - general contractual principles - parties - authority - estoppel - ratification

ASSIGNMENT - benefit of agreement for purchase of land - assignee covenants with vendor - purchaser released - agreement not novated CONTRACT - assignment of benefit of agreement for purchase of land - assignee covenants with vendor - purchaser released - agreement not novated CONTRACT - novation - assignment of benefit of agreement for purchase of land - assignee covenants with vendor - purchaser released - agreement not novated TAXATION - duties - assignment - whether agreement for transfer or transfer - whether taxpayer entitled to refund when transaction cancelled - Duties Act s 50 TAXATION - duties - whether transaction transfer of dutiable property or agreement for transfer - whether cancellation of transaction entitled taxpayer to refund - Duties Act s 50

PROFESSIONAL NEGLIGENCE - solicitor - finding that solicitor failed to pass on counter-offer - challenge to fact finding - no question of principle.

WORKERS COMPENSATION – independent contractor – whether regularly carrying on trade or business in own name – no question of principle APPEAL – question of law – whether primary facts necessarily within statutory provision – no question of principle

INJUNCTION - application to restrain plaintiff from dealing with property - where property was asset of dissolved partnership and contract entered into for sale to third parties - where property held on trust by plaintiff for himself and defendant as partners - where plaintiff as trustee sold property to himself as purchaser in another capacity - where property sold at auction alleged to be in contravention of s 66 Property, Stock and Business Agents Act 2002 - balance of convenience does not warrant orders sought - parties wanted property to be sold, contemplated that either party could bid at an auction and is in interests of both parties that purchase price be paid into court and partnership accounts be taken

CORPORATIONS - registration of charges - application for order rectifying Australian Register of Company Charges - where evidence establishes that instrument executed and charge created on a date after that borne by the instrument and included in the lodged particulars - rectification appropriate - whether charge created within six months before commencement of winding up is void against liquidator under s 588FJ as to subsequent advances - section confined to company that is "being wound up in insolvency" - winding up in place is creditors voluntary winding up - section does not apply

APPEAL - Local Court Magistrate

ADMINISTRATIVE LAW - appeal from Local Court - motor vehicle accident caused by negligent driving - extent of reasons required for decision - whether Magistrate in error for failing to explain rejection of expert evidence - opinions based on assumed facts not verified - approach to fact-finding with disputed eye-witness evidence - no question of law

EVIDENCE - application for inspection of rural properties at Moree - s 53 Evidence Act 1995 - whether in court's opinion inspection would assist in resolving issues of fact or understanding the evidence - whether inspection might cause or result in undue waste of time - cost of inspection relevant - application refused

ADMINISTRATIVE LAW: - Motor Accidents Compensation Act - - CARS assessment of damages arising from two accidents - - error of law by Review Panel - - whole person impairment attributed to second accident only - - failure to apportion impairment between the two accidents - - consideration of pre-existing permanent impairment pursuant to clause 1.33 of Permanent Impairment Guidelines

PROCEDURE - miscellaneous procedural matters - other matters - vexatious litigant - how leave applications should be commenced - procedure on leave applications - whether applicant can supplement evidence filed in support of a leave application - whether the Vexatious Proceedings Act excludes principles of case management and/or the inherent jurisdiction of the Court.

DEFAMATION - Action for defamation - Pleadings - Whether imputations capable of being conveyed - Whether bad in form - Whether combination of concepts gives rise to a "comprehensible charge" - Whether form leads to confusion at pleading stage or trial - Slander (conversations between academics) and libel

CRIMINAL LAW - appeal - sentencing - ongoing supply of cocaine - whether error in taking into account aggravating factors - whether disregard for public safety inherent characteristic of offence - whether planning exceeded what ordinarily might be expected - whether material error established - whether offence of deemed supply can be part of an offence of ongoing drug supply - resentence.

CRIMINAL LAW - appeal - sentencing - application of s 59 Crimes (Sentencing Procedure) Act 1999 - no requirement for subsequent sentence to begin at a future date

CRIMINAL LAW - appeal against conviction - whether error in not ordering separate trials - whether error in admitting evidence of offences not on indictment - whether error in leaving all counts for the jury to determine - whether miscarriage resulting from submissions by prosecutor or errors of fact by trial judge EVIDENCE - whether evidence in support of some counts and offences not on indictment admissible as tendency or coincidence evidence - whether evidence of confessional statements to custody manager admissible under s 281 of Criminal Procedure Act 1986 - whether in the course of "official questioning" - whether "in connection with the investigation" of an offence

CRIMINAL LAW - sentence - appeal against sentence and period of licence disqualification - whether the sentencing judge erred in his assessment of the aggravating features of the offence - whether the sentence was manifestly excessive - sentencing judge correctly held the offence was not due to momentary inattention - no evidentiary basis for the finding that conduct was due to a time imperative - low moral culpability - sentence imposed was manifestly excessive

PRACTICE AND PROCEDURE - pleadings - amendment - statement of claim - matter having proceeded to trial and on appeal - application to file a further amended statement of claim raising a new issue not previously litigated - lateness of application - lack of explanation for delay - Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 60 - Costs disproportionate to verdict - just determination of the proceedings - application to amend refused.

CONTRACTS - partners - whether partnership agreement in respect of a restaurant business should be rectified - whether there was a breach of fiduciary duty by the first defendant - whether money paid by the plaintiff to the first defendant should be repaid on the basis of a Quistclose trust, constructive trust and/or total failure of consideration - whether the second defendant, who was the sole director and a shareholder of the first defendant, is liable to repay monies paid by the plaintiff as a knowing recipient, and if so to whom - whether the de facto wife of the second defendant is liable as a volunteer to repay monies paid by the plaintiff - whether money claimed to have been paid by the plaintiff to the second defendant towards the purchase of another restaurant was paid

Equity Interlocutory relief Prima facie case Balance of convenience

PROCEDURE - application for freezing order under rule 25.11 of the Uniform Civil Procedure Rules - effect of lodgement of proof of debt on ability to claim a right of subrogation to former trustee's right of indemnity out of trust assets to meet judgment debt - whether plaintiff has standing to maintain such a claim - HELD -sufficiently arguable case as to existence of right of subrogation - reasonable apprehension of risk or dissipation of assets - freezing order granted

INTERPRETATION - General Rules of Construction of Instruments - Trust Deed, Final Funding Agreement and James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 establishing fund for payment of victims of James Hardie Asbestos - nervous shock claims in Dust Diseases Tribunal sustained on death of fathers from exposure to asbestos - "personal asbestos claim" defined in Act differently from definition in Trust Deed and Final Funding Agreement - whether definition in Act extended to personal injury arising from another person's exposure to asbestos - advice sought under s 55 of the Act

Possession of land - loan on mortgage - whether unjust and unconscionable.

Common law - practice and procedure - litigants in person - deficient pleadings - strike out application.

Breach of contract - action for damages for inconvenience, distress and disappointment - whether for personal injuries. Damages for inconvenience, distress and disappointment - whether award governed by Civil Liability Act 2002.

Adoption - Change of name of child - Whether change of given name in best interests of child - application granted

Succession - Family provision order sought by daughter of the deceased

CORPORATIONS - winding up - insolvency - insolvent insurer - claims by insured in respect of liability for bodily injury - insurer holds reinsurance in respect of relevant risks - claim by insured for order that amounts received by the liquidators under reinsurance be applied to its claims to the exclusion of those of other insurance creditors - claim in respect of both reinsurance amounts already received and those yet to be received - statutory criteria considered - none essential except court's opinion that departure from ordinarily applicable statutory scheme is "just and equitable" - connections between particular insurance and facultative reinsurance examined - circumstances in which reinsurance obtained examined - relief to be granted in respect of amounts already received - no power to make order in respect of future receipts

TRUSTS - application for judicial advice pursuant to s 63 of the Trustee Act 1925 - whether trustee justified in defending proceedings brought by a beneficiary - whether trustee would be entitled to be paid his indemnity costs from the estate - plaintiff in substantive proceedings joined as defendant - access to documents filed by trustee on application for advice

REAL PROPERTY - application to extend caveat - where mortgagee obtained foreclosure order and become registered proprietor - serious question to be tried as to whether foreclosure order validly made - pre-conditions for making of foreclosure order may not have been satisfied - whether balance of convenience favours extension of caveat - if foreclosure order set aside equity of redemption revived and defendants position as mortgagees restored - mortgagees entitled to exercise power of sale - balance of convenience does not favour extension of caveat - where defendants undertake to preserve ability of plaintiff to restore equity of redemption if succeed at final hearing

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