Cases and authorities

JUDICIAL ADVICE - application for judicial advice and orders under s 511 of the Corporations Act 2001 or alternatively under ss 63 and 81 of the Trustee Act 1925 - HELD - it was just and beneficial for advice to be given as to the entitlement of the liquidator to deal with assets held by it but in respect of which there was legitimate doubt

WILLS AND ESTATES - family provision claim - relationship with the deceased - deceased and daughter estranged for 38 years

SUCCESSION - Wills and Estates - testatrix devises real property to defendant sons - plaintiff daughters contest capacity of testatrix at time of preparing and making will - legal onus on defendants to establish testatrix freely and capably executed will - evidential onus on plaintiffs to rebut presumption of capacity - at time of execution will was rational on its face - medical evidence and evidence of persons who observed testatrix at time of preparation and execution do not raise doubts as to capacity - held: testatrix was of sound mind, memory and understanding at time of executing will. SUCCESSION - Wills and Estates - whether will procured by undue influence - burden of establishing undue influence falls on party impugning the will - necessity to establish will of the testatrix was overborne - circumstantial evidence - undue influence must be more probably than not the explanation for the will - burden of proof to the Briginshaw standard - undue influence said to be inferred from: change in former testamentary position of equality amongst four children of testatrix; involvement of defendant sons in execution of the will; testatrix's vulnerability to defendant son; failure and irregularities of legal protections surrounding preparation and execution of the will by a solicitor; and dishonesty of defendants in giving evidence to the court - held: most probable explanation of circumstantial evidence is not coercion of testatrix's will. SUCCESSION - Wills and Estates - plaintiffs contend that notwithstanding failure to establish defence of undue influence there were sufficient circumstances of suspicion to cast onus on defendants to establish testatrix's knowledge and approval of will - proponent of will generally bears onus to establish testator knew and approved contents - knowledge and approval usually satisfied by proving testamentary capacity and due execution of will - suspicion of undue influence not a relevant suspicion in removing presumption of knowledge and approval - held: testatrix knew and approved the contents of the will. SUCCESSION - Family Provision Claim - plaintiffs eligible persons as daughters of testatrix - whether testatrix made adequate provision for proper maintenance of plaintiffs - no provision made for plaintiffs under will - equality is not starting point for purposes of Family Provision legislation - essential question is whether testatrix failed in a moral duty to make proper and adequate provision for eligible persons for whom the community would expect provision to be made - defendant was dependent on testatrix and his father for accommodation - defendants in relatively worse financial positions than plaintiffs - held: in circumstances, neither plaintiff left with inadequate provision for their proper maintenance.

SENTENCE APPEAL - Break and enter in circumstances of aggravation - intellectual disability and poor impulse control - relevant to objective seriousness but not expressly taken into account in determining the objective seriousness of the offence - considered in context of subjective factors - sentencing within reasonable range - leave granted to account for pre-sentence custody - pre-sentence custody to be taken into account - pre-sentence custody referrable solely to subject offence - five days pre-sentence should have been taken into account - subject to that matter appeal against sentence dismissed

APPEAL OUT OF TIME - guilty plea not entered at earliest opportunity - 15% discount reasonable for seriousness of offence - no finding in favour of rehabilitation - aggravation for being on conditional liberty - racially motivated assaults - strong deterrence - general and specific deterrence - longer than normal parole to enhance rehabilitation - violent offences part of one course of conduct - concurrent - drug offences separate - new provisions of s 35 Crimes Act 1900 are new offences - error regarding non-parole period not material - offences not manifestly excessive

SENTENCING IN RESPECT OF MULTIPLE OFFENCES - (nine offences - Crimes Act 1900, Criminal Code Act 2005, Firearms Act 1996) - application of principles of totality and proportionality - offences committed on same day not to be treated as part of one enterprise - each offence was objectively serious - concurrency and accumulation of sentences - principles correctly applied - sentences individually and in combination not manifestly excessive - appeal against sentences dismissed

COSTS - whether costs should depart from general rule that costs follow the event - successful appellant fails on separable ground of appeal - effect of the abandonment of one ground of appeal - effect of non-compliance with UCPR 51.36 in filing written submissions and narrative statement.

BAIL - Crown application for review - conspiracy to import commercial quantity and supply large commercial quantity of pseudoephedrine - presumption against bail - assessment of strength of Crown case - probability that respondent will attend court - factors relating to the protection and welfare of the community - inordinate delay in bringing proceedings to finality - respondent's conduct whilst at liberty on bail pending review

SUCCESSION - Family provision and maintenance - pre-nuptial agreement - mutual releases - rights under Family Provision Act - whether release of rights should be approved after death of one of parties - Family Provision Act, s 31- extent of circumstances considered on approval - HELD - inadequate explanation of release - due consideration to release not given - Family Provision Act, s 31(5)(d) - further whether adequate provision made for widow and daughter of deceased - Family Provision Act s 7 and s 9 - daughter not provided for in will - assets bequeathed to widow produce uncertain income - what is necessary for the "proper" maintenance, education and advancement in life of the widow and child of the deceased - HELD - inadequate provision made by deceased out of his estate for the proper maintenance, education and advancement in life of daughter - and inadequate provision made for advancement in life of widow - further provision made in favour of widow and daughter. TRUSTS - resulting trusts - deceased purchases property in his own name - evidence that purchase funded by trustee company not deceased - HELD - deceased holds property on resulting trust for company.

Defective product claim Fibreglass swimming pools Claim that defective resin sold by the defendants to plaintiffs had caused unseemly blistering and blackspots to hundreds of fibreglass swimming pools Plaintiffs claim entitlement to sue on be half of 837 owners of pools manufactured with allegedly defective resin Plaintiffs claim that all defective swimming pools necessary to be replaced Reference out Effect of adoption of referee's report Reference not to be treated as some kind of "warmup" for the real contest Cause of failure Whether failure of the pools caused by the defendant or by the plaintiff Whether defendant had contravened sections 52 and 53 of Trade Practices Act 1974 (Cth) Whether alleged representations were made by the defendant Whether representations induced the Plaintiffs to buy the product Whether defendant made out defence of contributory negligence under s 82(1B) Whether defendant breached implied contractual terms of merchantable quality and fitness for purpose Whether defendant estopped from relying on standard terms and conditions which would have greatly restricted such a claim Assessment of claim to damages and expense to the businesses of the Plaintiffs as a result of the pool failures Whether plaintiffs entitled for damages on basis that defendant's defective product had destroyed their business Whether plaintiff could rely on data favoured by it to establish trends in the swimming pool market Court left to determine, on all the evidence, but for the pool failures, how plaintiffs' business would have performed Quantum of plaintiffs' consequential loss Whether plaintiffs' liable to customers with failed pools Whether alleged express warranty incorporated into plaintiffs' contract with customers who contracted directly with it Whether alleged express warranty formed a collateral contract between plaintiffs and customers where pool purchased through a third party dealer Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 61 applied Fairey Australasia Pty Ltd v Joyce [1981] 2 NSWLR 314 considered Whether customers could rely on express warranty contained in warranty cards, brochures, and conveyed orally Whether plaintiffs use of "sampling" evidence from a subset of customers appropriate Civil Procedure Act 2005 (NSW) ss 56, 62 considered Whether customers could rely on implied contractual terms as to merchantability and fitness for purpose against plaintiffs Trade Practices Act 1974 (Cth) s 71, Sale of Goods Act 1923 (NSW) s 19 applied Whether plaintiffs also liable to customers under Pt V Div 2A of the Trade Practices Act 1974 (Cth) Whether that Division applied to "goods" once they had become fixtures Theo Holdings Pty Limited v Hockey (2000) 99 FCR 232 considered Trade Practices Act 1974 (Cth) ss 74B, 74D, 74F, 74G applied Whether plaintiffs liable to subsequent purchasers of properties including failed pools manufactured by plaintiffs Whether letters written by plaintiffs stating that warranties covering vendors would be transferable to purchasers affected a novation Alternatively whether plaintiffs liable to subsequent purchasers under Pt V Div 2A of the Trade Practices Act 1974 (Cth) Limitation periods applicable to plaintiffs' liability to customers Whether maximum liability, under express warranty, was 10 or 16 years VAI Industries (UK) v Bostock & Brawley [2003] BLR 359 considered Whether, as against plaintiffs, pool owners entitled to complete replacement of their failed pools or some lesser rectification method Willshee v WestCourt [2009] WASCA 81, Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 83 ALJR 390, applied. Whether any of lesser suggested rectification methods meet the relevant test laid down by the authorities Consideration of costs of replacement of failed pools Proper approach to sections 82 and 87 of the Trade Practices Act 1974 (Cth) Wardley Australia v Western Australia (1992) 175 CLR 514 considered Whether plaintiffs' liability to its customers constitutes damage

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether genuine dispute - whether offsetting claim - no matter of principle

ADMINISTRATION OF ESTATES - transmission of interest in joint property - proper characterisation CONTRACT - repudiation - conduct not repugnant or inconsistent - no repudiation EMPLOYMENT LAW - employee's duty of fidelity - characterisation of conduct - not employee - no duty - no breach

CRIMINAL LAW - bail following conviction and pending appeal - review of single judge's decision - review by way of re-hearing - need for applicant to show special or exceptional circumstances.

SENTENCE - appeal - manifestly excessive - one sentence beyond range for offence of its seriousness - other beyond range available for middle to low range objective seriousness - need to sentence for each offence before questions of concurrency and accumulation - re-sentencing - these and other sentences should be serially accumulated - same effective result.

CRIMINAL LAW - Appeal against sentence - Appeal by Crown - Aggravated break, enter and commit serious indictable offence (wound with intent to cause grievous bodily harm) - Reckless wounding - Where the offender engaged in a violent knife attack on the victims in their home - Where numerous people tried repeatedly to stop the offender from proceeding to the home of his victims - Whether the sentencing judge failed to determine the objective seriousness of the offences - Whether the sentencing judge erred in determining the objective seriousness to be below mid-range - Principles for the accumulation or concurrency of sentences - Whether sentence was manifestly inadequate.

APPEAL - civil law - extension of time - principles applicable - reasons for delay - full and satisfactory explanation - plaintiff with intellectual disabilities - prejudice to defendant - onus to satisfy statutory test

TORRENS SYSTEM - Caveats - Lapse, removal and withdrawal - test for ordering withdrawal is whether the caveator would have been granted an interlocutory injunction to protect the interest claimed in the caveat - INJUNCTIONS - Interlocutory - Serious question to be tried - balance of convenience - relevance of whether the proceeds of sale of the properties would be sufficient to repay the mortgage in full - relevance of the financial position of the mortgagor - relevance of whether the mortgagor has brought into court the amount owed to the mortgagee - relevance of whether the mortgagor is in a position to offer the usual undertaking as to damages and has done so - relevance of the effect on third parties - discussion of principles for which Inglis v Commonwealth Trading Bank of Australia (1971) 126 CLR 161 is authority TORRENS SYSTEM - Caveats - Who may lodge - where land subject to a mortgage has been sold at a price completely payable to the first mortgagee, someone with an interest in the land to which that mortgage has priority is usually not entitled to maintain a caveat - COMPANIES - Receivers, managers and controllers - Duties of controller - whether it is appropriate to grant an interim injunction to restrain an alleged breach of s 420A Corporations Act 2001 (Cth)

APPEAL - civil - fact finding - competing evidence - credibility - no error in approach of primary judge APPEAL - civil - failure to provide reasons - question is whether argument or matter of substance and importance has been addressed - no error in approach of primary judge

TORT - Sydney County Council put pole for transmission line on Crown land - land subsequently in private ownership - whether existence of pole a trespass against owner - whether Sydney County Council had authority to place pole on land - whether EnergyAustralia as successor had authority to keep pole on land - no trespass. CONTRACT - formulation - whether contract made to remove pole within stated period - on facts, not made.

TAXATION - Income Tax - Income Tax Assessment Act 1936 (Cth), s 22AOE - notice - service by post - service effected upon delivery - Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354 not followed. STATUTORY INTERPRETATION - Acts Interpretation Act 1901 (Cth), s 29 - meaning of service by post.

GUARANTEE - where plaintiff obtained an unregistered mortgage and consent to caveat from the defendants over their jointly-owned property as security for unpaid rent from a company substantially owned by the first defendant for which the first defendant was guarantor - where the debtor and guarantor failed to pay - where plaintiff seeks to enforce his equitable interest in the property - whether the defendants are entitled to relief under s 9 of the Contracts Review Act 1980 (NSW) - whether the mortgage and caveat were intended to be legally binding REMEDIES - declarations - where the mortgage in favour of the plaintiff is unregistered and there is a prior registered mortgage over the same property - whether there is utility in making a declaration in favour of the plaintiff

PROCEDURE - application to strike out proceedings - statement of claim fails to appreciate limited nature of proceedings - statement of claim unintelligible, ambiguous, vague and too general.

CORPORATIONS LAW - application under s 459G Corporations Act 2001 (Cth) for order to set aside statutory demand - where plaintiff relies upon offsetting claim and contends that demand should be varied pursuant to s 459H - genuine claim for legal costs incurred as a result of defendant's alleged misleading and deceptive conduct - no genuine claim for lost revenue - statutory demand varied - no question of principle

PRACTICE AND PROCEDURE - application for summary dismissal - whether proceedings abuse of process - where fresh proceedings raise substantially the same issues as proceedings previously commenced - where orders made by consent in the Family Court of Australia and proceedings in Supreme Court of New South Wales dismissed - whether orders preclude plaintiff initiating these proceedings - no release of chose in action in orders - orders do not preclude plaintiff from bringing and maintaining these proceedings PRACTICE AND PROCEDURE - application for summary dismissal - whether proceedings an abuse of process - whether proceedings brought for an improper or collateral purpose - offer of compromise beyond scope of issues or relief did not give rise to inference that predominant purpose in pursuing proceedings an improper or collateral purpose

EQUITY - trusts and trustees - whether liquidators of a corporate beneficiary can be appointed trustees of the trust - whether there is a conflict of interest in appointing the liquidators of a sole beneficiary as trustee - whether the retiring trustees have an interest in the identity of the new trustees and whether they should be heard on the appointment PROCEDURE - costs - whether the defendants should pay the plaintiff's costs of the notices of motion

CONTRACTS - general contractual principles - discharge, breach and defences to action for breach - non est factum - Contracts Review Act 1980 - unjust contracts - whether contract unjust - unconscionability under Trade Practices Act 1974 and Australian Securities and Investments Commission Act 2001 - relevant considerations - where borrower naive as to financial matters - whether lender had knowledge of borrower's vulnerability to coercion - whether lender failed to adhere to lending guidelines - MORTGAGES - mortgages and charges generally - remedies of the mortgagee - unconscionability - whether prior unjust mortgage relevant as part of relief that may granted in respect of later mortgage

CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offence - gravity of offence - generally - parity between co-offenders - grounds for discrimination between co-offenders - degree of criminality.

PROCEDURE - costs - appeal as to costs - Plaintiff claims damages for assault in the General Division of the Local Court - award of damages less than the jurisdiction of the Small Claims Division - Magistrate assesses costs summarily - whether Magistrate bound under Practice Note to refer costs for assessment. APPEAL AND NEW TRIAL - leave to appeal required - what must be shown for leave to be granted - status of Practice Note - subservience of Practice Note to Civil Procedure Act and Rules of Court - no matter of public importance shown.

ADMINISTRATIVE LAW - Judicial Review - Determination of the Manager, Costs Assessment not to extend time for filing an application for review - Whether discretion miscarried - Whether decision-maker took into account an irrelevant matter - Whether decision-maker failed to consider relevant matters - Principles of judicial review - Whether failure to have regard to the merits of the matter is a failure to consider a relevant matter - Irrational finding of fact - Failure to consider interests of justice.

JUDICIAL ADVICE - application by plaintiff to set aside judicial advice for material non-disclosure and for repayment of trust funds paid out to trustees in reliance on such judicial advice - claim by defendants for variation of injunction to permit payment out of costs in accordance with judicial advice - HELD - application to set aside judicial advice dismissed - injunction varied - CORPORATIONS - application to declare invalid winding up resolution of company invalid or, in the alternative, to terminate winding up pursuant to s 482 Corporations Act 2001 - application for leave to commence a derivative suit against the defendant - HELD - dismiss applications re alleged invalidity of winding up resolution - leave to commence a derivative suit refused - PROCEDURE - whether issue estoppel or Anshun estoppel - HELD - issue estoppel and Anshun estoppel established

Family Provision. Application by a daughter under Succession Act. Defendants do not appear. Order for provision. No matter of principle.

PRACTICE AND PROCEDURE - application for preliminary discovery - plaintiff alleges purchase of winning Oz Lotto ticket - whether Rule 5.3 UCPR tests satisfied - effect of inconsistencies in supply of particulars by plaintiff - appropriate form of orders.

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offender - preliminary hearing - application for extended supervision order to replace existing continuing detention order - consideration of "unacceptable risk" test - objects of the Act - relevance of offender's participation in rehabilitation program

ADMINISTRATIVE LAW - Nurses and Midwives Tribunal - appeal by Health Care Complaints Commission - nurse convicted of sexual intercourse without consent and assault with an act of indecency with child under 16 years and sentenced to imprisonment - one occasion - nurse suffering from bipolar illness at time of offences - conduct "one off" and out of character - nurse no longer practising -Tribunal not bound by findings of court - open to Tribunal to find that nurse of good character - appeal dismissed

STRIKING OUT - notice of motion - Local Court Judgment set aside - motor vehicle accident caused by negligently kept livestock - default judgment on non-attendance of plaintiff - striking out of defence ENFORCEMENT - stay of legal advice for plaintiff prior to default judgment - s.56 Uniform Civil Procedure Act - prejudice to creditor where monies already dispersed - error of law - default judgment of liquidated damages where claim for unliquidated damages - judgment in default obtained irregularly - to be set aside ex debito justitiae - no arguable case on liability - damages to be particularised in unambiguous terms - Local Court to re-determine damages

WORKERS' COMPENSATION - assessment - medical assessment - appeal to Appeal Panel - whether Appeal panel was obliged to hear oral submissions

CRIMINAL LAW - Severity appeal - Manslaughter by criminal neglect - Crime in worst case category - sentence not manifestly excessive - no error in factual findings - child neglect - starvation death.

Criminal law - Crimes Act s 33 - erroneous direction by trial judge - about element of offence - proviso to s 6(1) Criminal Appeal Act apply

APPEAL - application for summary dismissal - Uniform Civil Procedure Rules 2005 13.4 - leave to appeal - powers of a single judge of appeal - s 46 Supreme Court Act 2005 (NSW) PROCEDURE - application to set aside subpoena PROCEDURE - stay of writ of possession pending appeal - prejudice - no dispute as to liability for principal sum owing - stay not appropriate

PROCEDURAL AND OTHER RULINGS - consequential orders - no issue of principle

CHILDREN - parens patriae jurisdiction - child approaching age of 18 - application to Guardianship Tribunal made - child progressing well in secure accommodation - whether court should pronounce view as to appropriateness of a secure or coercive accommodation and/or restraint order in anticipation of Guardianship Tribunal determination - not appropriate for court to pronounce such a view.

CORPORATIONS - application to set aside statutory demand - whether genuine offsetting claim - whether court should exercise its discretion under s 459J(1)(b) of the Corporations Act - judgment subject to application for special leave to appeal to High Court - discretion refused due to limited prospects of success of application

CORPORATIONS - winding up - special purpose liquidator appointed by court in creditors voluntary winding up - where members of committee of inspection and ASIC made submissions against approval of remuneration initially sought - liquidator's claim revised - claim to be assessed by registrar in the first instance - order for payment of two thirds of claim in advance of this assessment

ESTOPPEL - proprietary estoppel - expectation of inheriting share of estate - contribution of wages to family finances - deceased making representations that claimants would inherit equal share in family home - whether executrix estopped from denying claimants had beneficial interest in family home - whether sufficiently clear and unequivocal representation - whether claimants had to show they assumed that deceased was not free to withdraw from promise or assurance - whether steps taken to plaintiffs' detriment were taken in reliance on representation that they would acquire equal share in family home - whether suffered detriment by leaving school and contributing wages to family finances SUCCESSION - family provision - proper maintenance and advancement in life - Family Provision Act 1982, ss 7 and 9(2) - claims by adult sons - whether adequate provision for proper maintenance and advancement in life - contribution of wages to family finances - assessment at date of hearing not date of death

PROCEDURE - constitution of proceedings - sufficiency of parties - action by employer (in liquidation) to recover from superannuation trustee contributions in respect of employees where contributions allegedly made by mistake - application by defendant trustee for judicial advice as to stance it should take - application by plaintiff's liquidator for direction whether he is justified in proceeding against trustee alone - discussion of true nature of proceedings and need for affected fund members to be joined or represented