Cases and authorities

PROCEDURE - civil - pleadings - amendment - defence - consideration of the principles in relation to the question of the prejudice to the plaintiff

CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - mortgagee sale frustrated by series of caveats lodged one after the other on lapsing of prior caveat - interest claimed that land was in the principality of Snake Hill that had seceded from Australia was not subject to the jurisdiction of the court

LIENS - general possessory lien - vendor entitled to exercise right of stoppage in transitu - carriers claim lien for unpaid freight charges, demurrage and legal costs - vendor seeks redelivery and sale of wheat - wheat perishable - urgent sale of wheat required - carriers seek preservation of their claimed lien over the proceeds of sale, to be paid into Court - risk that sale proceeds may not be paid into Court due to circumstances beyond the parties' control - HELD - orders for delivery and sale made - proceeds of sale to be paid into Court - but orders made subject to vendor paying into Court partial security for the carrier's lien.

CLAIM FOR POSSESSION OF LAND - defence based on Consumer Credit Code - whether default notice complied with provisions of section 80 of Code - effect of failure of notice to comply with section 80 - whether statement of claim should be dismissed - power of Court to authorise beginning of proceedings nunc pro tunc.

CORPORATIONS - defunct companies - where company deregistered under Companies (New South Wales) Code - where case made for reinstatement - question as to the legislation under which reinstatement should be ordered - need for law reform

CRIMINAL - appeal against convictions - Black direction - appropriate "perseverance directions" to jury with respect to majority verdicts - had directions undermined the applicant's common law right to a unanimous verdict - appeal dismissed. CRIMINAL - application for leave to appeal against sentence - sexual offence in home of victim not aggravating factor where offender is lawfully present - committing offences for offender's own sexual gratification is not an aggravating factor - leave to appeal granted - appeal granted and sentences varied with respect to counts 3 and 8 only

CRIMINAL LAW – appeal against sentence – various offences of sexual intercourse with a person under the age of 10 – offences of producing child pornography and using the internet to access child pornography - whether sentencing judge erred in treating offences as falling into the “worst category of case” – whether sentencing judge erred in relation to discount permitted for pleas of guilty and assistance to the authorities

TORRENS SYSTEM - MORTGAGES - SALE BY MORTGAGEE - DISPOSITION OF SURPLUS PROCEEDS OF SALE - RPA land subject to two registered mortgages and one unregistered mortgage - first mortgagee exercises power of sale and pays whole amount surplus to its entitlement to second mortgagee - second mortgagee pays whole amount surplus to its entitlement to third mortgagee - third mortgage later held to secure no debt, and third mortgagee becomes insolvent - whether second mortgagee obliged to compensate mortgagor for amount paid to third mortgagee - whether s 58(3) RPA applies at all to a mortgagee other than the mortgagee who exercises a power of sale - whether s 58(3) RPA requires payment of surplus proceeds to a mortgagee who is unregistered - comparison of s 58(3) RPA with s 88(1) Property Law Act 1974 (Qld) and s 135 Real Property Act 1886 (SA) - interaction of s 58(3) with equitable obligations of a mortgagee who holds surplus proceeds of sale PROCEDURE - SUPREME COURT PROCEDURE - INTERPLEADER - payment into court in stakeholder's interpleader, and payment into court under s 95 Trustee Act 1925 compared and contrasted EQUITY - FIDUCIARY OBLIGATIONS - OF MORTGAGEE HOLDING SURPLUS PROCEEDS OF SALE - obligation to pay each subsequent security holder and the mortgagee the amount each is owed, in their respective order of priority - explanation of Re Thomson's Mortgage Trusts [1920] 1 Ch 508 - if there is a statutory direction about order of payment of proceeds, whether the equitable obligation operates only after the statute has run its course, or whether the equitable obligation applies immediately to whoever holds the surplus proceeds of sale APPEAL - POINT NOT TAKEN AT TRIAL - when point not only not taken, but conceded at trial - when point could not have been affected by evidence at trial [41]-[42] - when point is failure to prove an essential element of plaintiff's case, and there was concession at trial [175]-[177] JUDGMENTS AND ORDERS - SATISFACTION OF - rule against double satisfaction applies universally - source of rule against double satisfaction

ADMINISTRATIVE LAW - revocation of security licence by Commissioner of Police - application for review of decision to the Administrative Decisions Tribunal ("ADT") - ADT required by s 29(3) of Securities Industries Act 1997 (NSW) ("SI Act") to ensure that it does not disclose the existence or content of "criminal intelligence" without approval of the Commissioner - Commissioner relied on criminal intelligence - whether ADT bound or empowered to adopt a "special advocate" procedure to represent the review applicant's interests - whether the Commissioner's refusal to approve disclosure of the criminal intelligence was amenable to judicial review - whether the Commissioner was bound to consider the review applicant's request for approval to disclosure - powers and duties of the ADT to afford procedural fairness in face of confidentiality regime. CONSTITUTIONAL LAW - whether s 29(3) of the SI Act is unconstitutional because it purports to deny the supervisory jurisdiction of the Supreme Court - whether the constitutional issue is premature - application of principles in Kirk (2010) 239 CLR 531 - difficulties facing applicant for judicial review do not establish a denial of the supervisory jurisdiction

APPEAL - Court of Appeal - notice of appeal - requirements of notice of appeal APPEAL - Court of Appeal - appeal out of time - application for extension of time PRACTICE - order for pro bono assistance - relevant considerations for deciding that it is in the interests of justice to make the order - prospects of success of appeal

CONCURRENT TORTFEASORS - cross-claim for contribution - consent judgment for cross defendant - claim by plaintiff not barred - other claims for contribution not barred. RES JUDICATA - cross defendant - party to principal proceedings - Civil Procedure Act s 22 - consent judgement in cross-claim - plaintiff not bound by judgment in the cross-claim.

PROCEDURE - civil - pleadings - amendment - statement of claim - review of registrar's decision to grant leave to file amended statement of claim - - consideration of phrase 'dishonest and fraudulent design'

FAMILY LAW AND CHILD WELFARE - Adoption - non-citizen child - child born in Ethiopia - not a party to Inter-Country Adoption Convention - not a prescribed overseas jurisdiction - adopting parents not resident or domiciled in Ethiopia - adoption application must proceed under (NSW) Adoption Act - birth mother gave consent to adoption in Ethiopian court - birth mother has not given consent for purposes of Adoption Act - consent dispense order applied for - birth mother not shown to be unable to be identified or found - no grounds apparent to dispense with consent - held: application for consent dispense order declined.

COSTS - successful action by plaintiffs in defamation - claim for interest and costs - offers of compromise rejected by defendants - method of calculating interest - applicable interest rate - order for costs on an ordinary basis - order for costs on an indemnity basis

CONTRACT - whether agreement under which second defendant obliged to transfer shares in first defendant company back to former shareholder - claim for damages for breach of implied term not to diminish benefit of alleged agreement - alternatively, if agreement as defendants contend, whether agreement has been frustrated - HELD - plaintiffs have failed to establish agreement by second defendant to transfer shares in the company - claim for breach of agreement alleged by plaintiffs fails - agreement, as found, has not been frustrated as matter of law - if failure of third party to complete contract for sale of land did amount to a frustrating event it was self-induced CORPORATIONS - claim for order for rectification of share register - claim of oppression of former shareholder's interests in relation to circumstances in which she ceased to be member of company - claim by former shareholder that second defendant in breach of director's duties - HELD - no rectification of share register - no oppression established - claim by first plaintiff of breach of director's duties in relation to conduct after she ceased to be a shareholder does not arise in light of finding that she not entitled to shares in the company RESTITUTION - alternative quantum meruit claim in relation to completion of subdivision works - HELD - no entitlement to restitution in face of agreement in relation to those works - value of works not adequately established TORT - claim for damages in deceit - HELD - claim in deceit not established - POSSESSION - claim by company for possession of land and mesne profits - HELD - first defendant entitled to an order for possession of land and mesne profits to be assessed.

PROCEDURE - Supreme Court procedure - New South Wales - summary judgment sought - whether consent judgment would be held in escrow until completion of sale - no triable issue found - section 52(2)(b) of the Real Property Act 1900 - whether there were technical difficulties with entry of judgment flowing from s 52(2)(b) of the Real Property Act 1900 - hardship - whether judgment and leave to issue writ of possession should be made - orders taking account of hardship made

CONTEMPT - whether application to punish for contempt for disobedience of court's orders were civil proceedings to which the Civil Procedure Act 2005 and Uniform Civil Procedure Rules apply - whether application is a proceeding for an offence and therefore a criminal proceeding and not a civil proceeding - whether proceedings were civil or criminal proceedings for purposes of the Evidence Act 1995 - held character of principal proceeding in which alleged contempt committed does not determine character of contempt proceeding - held proceedings for criminal contempt are proceedings for an offence but proceedings for civil contempt are not - distinction between civil and criminal contempt - held proceeding included charges of criminal contempt - held Uniform Civil Procedure Rules r 29.10 did not apply where no case to answer submission made CONTEMPT - evidence - standard of proof - Witham v Holloway (1995) 183 CLR 525 displaced by Evidence Act - proof required beyond reasonable doubt because proceedings are criminal proceedings within definition in Evidence Act - principles in Jones v Dunkel (1959) 101 CLR 298 inapplicable CONTEMPT - orders restrained defendants from dealing with 'their assets' - whether orders restrained dealing with moneys not beneficially owned by the defendant - trust asset is property of trustee - beneficial interest not carved out of trust property leaving the trustee with a 'bare legal title' - 'their assets' includes assets held as trustee - Federal Bank of the Middle East v Hadkinson [2000] 1 WLR 1695; [2000] 2 All ER 395 disapproved CONTEMPT - ambiguity - orders restraining dealing with 'their assets' ambiguous - defendant not liable for contempt if breach not established on a reasonable view of what the orders prohibit - not proved beyond reasonable doubt that defendant beneficially entitled to moneys transferred - orders breached but contempt not established CONTEMPT - proof of breach of court orders in relation to swearing affidavit of assets - genuine effort to comply - not proved beyond reasonable doubt that breach deliberate

CRIMINAL LAW - appeal against conviction - various offences of aggravated sexual intercourse and indecent assault - whether verdicts of guilty on some counts inconsistent with other verdicts of acquittal - whether evidence established that the appellant's conduct constituted "sexual intercourse"

APPEAL - leave to appeal - basis of leave granted being question of construction - notice of appeal failed to raise any question of construction - when leave is granted, appeal should be conducted on that basis - leave revoked - consideration of the administration of justice

LAND AND ENVIRONMENT - ability to amend monetary condition for Council's consent to development for providing public amenities and services - whether condition is unreasonable in particular circumstances - whether rateability of relevant land is relevant for the net demand for public amenities and public services generated by development under construction - whether net demand for public amenities is dependent upon whether the previous landowner paid rates at any time - Environmental Planning and Assessment Act 1979 (NSW), ss 94, 94B PROCEDURE - judgments and orders - whether matter should be remitted for determination or Court make appropriate orders - no purpose remitting matter for further consideration on basis of Court's decision with respect to sole basis upon which Senior Commissioner determined to discount credit the developer was found to be entitled to

BUILDING AND CONSTRUCTION - progress payments - payment plan served on Defendants - failure of Defendants to provide payment schedule within time limited by Building and Construction Industry Security of Payment Act 1999 - Plaintiff serves notice of intention to make adjudication application - Plaintiff thereafter takes proceedings for debt - whether Plaintiff made an election.

Application to set aside judgment

Leave to file a further amended commercial list statement; Security for costs

TORTS - negligence - motor vehicle accident - whether unidentified vehicle caused plaintiff's accident - whether verdict in plaintiff's favour sustainable APPEAL - appellate review of findings - whether errors in process of fact-finding - whether denial of procedural fairness -whether defendant deprived of fair trial - whether substantial miscarriage of justice APPEAL - appellate review - natural justice - whether denial of procedural fairness - whether case determined in plaintiff's favour substantially on points not raised by plaintiff and not identified by primary judge at trial - whether primary judge acted of own motion absent cross-examination or submissions by plaintiff to reject evidence of defendant's witnesses - whether failure to consider parties' submissions - whether failure to give party opportunity to deal with potential adverse finding - whether primary judge's conclusions favouring plaintiff's case soundly based APPEAL - appellate review - whether denial of procedural fairness to defendant to award plaintiff substantially more than amount sought for head of damages EVIDENCE - expert evidence - opinion - whether factual basis for expert opinion established - whether facts expert relied on to form opinion "sufficiently like" facts established at trial EVIDENCE - expert evidence - report admitted without objection - oral evidence adduced without objection - whether open to primary judge to reject opinion on basis factual foundation not established EVIDENCE - cross-examination - failure to cross-examine - whether trial judge may reject evidence not challenged in cross-examination - whether rejection of evidence not challenged in cross-examination may lead to wrong finding of fact

Evidence - client legal privilege - documents produced on subpoena by third party - no claim of privilege made - whether privilege lost.

CRIMINAL LAW - jurisdiction - practice and procedure - internet take down orders - non publication orders

Criminal Law - abuse of process - charge in indictment based on ss 307.11(1) and 11.5 Commonwealth Criminal Code - whether inclusion on same indictment of charge based on s 25.2 of the Drug Misuse and Trafficking Act NSW an abuse of process

EVIDENCE - hearsay - whether report by consultant engineer falls within business records exception - where document part of records of one of the defendant companies and copy kept by consultant - held: admissible under business records exception. EVIDENCE - opinion - documents admissible under business records exception to hearsay rule contain opinions - admissibility of opinions dependent also on satisfying an exception to the opinion rule - non-compliance with expert witness code does not impact on admissibility as expert opinion - held: admissible under specialised knowledge exception.

PROCEDURE - interest - whether there was an agreement as to which statutory provision dealing with interest should apply and the appropriate date from which interest is to run

Appeal decision of Local Court Magistrate - Construction of agreement

CRIMINAL - sentence appeal - fraud - manifest excess - relevance of psychological history when criminality assessed - repayment of monies - appeal dismissed.

Aid, abet counsel or procure the commission of an offence - attempted importation of not less than the commercial quantity applicable to ecstasy - appellant's knowledge - Crown case circumstantial - whether the verdict is unreasonable - whether Crown's closing address prejudicial -whether adequate correction - whether jury should have been discharged.

CRIMINAL LAW - Commonwealth offence - dealing in an instrument of crime - appeal against sentence - parity between co-offenders - grounds for discrimination between co-offenders - whether Judge erred in making finds beyond reasonable doubt about applicant's knowledge for the purposes of sentence - whether error in ratio between head sentence and non-parole period - whether Judge erred in assessing applicant's prospects of rehabilitation.

CRIMINAL LAW - plea of guilty to one count of aggravated robbery - appeal against sentence - whether Judge erred by giving insufficient weight to applicant's drug addiction - whether Judge erred by failing to find special circumstances

CRIMINAL LAW - Appeal against sentence - Appeal by Crown - Robbery armed with an offensive weapon - Whether the sentencing judge was required to determine "objective seriousness" for an offence for which there is no standard non-parole period - Whether there was any failure to take into account personal deterrence - Whether there was any error in the finding of special circumstances - Concession made by the Crown at sentencing hearing - Whether sentence was manifestly inadequate

PROCEDURE - Orders to give effect to judgment.

CRIMINAL LAW - jurisdiction - practice and procedure - application to vacate internet take down orders - articles highly prejudicial to accused - right of accused to fair trial - jurisdiction of Supreme Court - whether orders futile - onus of proof - jury directions - whether orders reasonably necessary to ensure a fair trial.

TORTS - negligence - apportionment between tortfeasors - occupier's liability - apportionment; not unreasonably low

WORKERS' COMPENSATION - error in point of law - wrong application of principle in Makita - failure to afford procedural fairness WORKERS' COMPENSATION - practice of the Commission - determination of the matter on the papers where credit issues involved

CORPORATIONS - winding up in insolvency - failure to comply with statutory demand - application for leave under s 459S Corporations Act 2001 (Cth) to oppose winding up on ground that existence of debt genuinely in dispute - whether disputed debt "material" to proof of solvency - what is material to proof of solvency not same as what is determinative of solvency - existence of disputed debt pivotal if company might be found to be solvent if debt exists

CORPORATIONS - winding up - statutory demand - whether genuine dispute as to amount of debt - debt said to arise from business sale agreement provisions for deferred purchase of stock - provisions ambiguous - intended meaning obscure - whether court should in these proceedings resolve competing contentions as to construction - parties in dispute as to correct construction - whether dispute genuine

Trusts - Orders made in District Court proceedings for supervision of damages, because tutor appointed in those proceedings Deed of Trust entered into with Public Trustee No declaration made that Plaintiff incapable of managing her affairs Plaintiff now seeks declaration that she is capable of managing her affairs and that the balance of the fund and real estate purchased on her behalf be paid, or transferred to her

Application to re-open judgement on basis of alleged procedural unfairness and alleged misapprehension of principles of law

Costs - assessment - interest - whether costs recoverable for claim abandoned - appeal costs - no order as to costs

APPEAL - civil - application to dismiss - whether appeal should be dismissed for want of despatch COSTS - against non parties - whether legal practitioners liable for unnecessary costs - whether serious neglect, serious incompetence or serious misconduct

ENVIRONMENT AND PLANNING - existing use - whether development consent for "commercial offices" permitted use of premises as a brothel - Strathfield Planning Scheme Ordinance 1969 (NSW)

Vexatious proceedings - whether plaintiff has frequently instituted or conducted vexatious proceedings - where small number of proceedings instituted - defendant persisting in filing pleadings repeating the same allegations where earlier pleadings struck out - orders made limited to prohibiting proceedings against the plaintiffs

CRIMINAL LAW - appeal - sentencing - diagnosis of terminal condition of applicant's young child after sentence - fresh evidence allowed - highly exceptional circumstances - sentence reduced

CRIMINAL LAW - Appeal against sentence - Appeal by Crown - Whether sentencing judge erred in making factual findings on the circumstances of the offence - Whether offender was provoked by the victim - Whether sentencing judge failed to take into account the need for personal and general deterrence - Whether no special circumstances found for departing from the statutory ratio between the non-parole period and the balance of sentence - Whether sentence is manifestly inadequate - Whether inappropriate for sentence to be served by periodic detention.