Cases and authorities

PROCEDURE - judgments and orders - enforcement of judgments and orders - possession - order seeking leave to issue writ of restitution - order seeking a sealed copy of judgment with an endorsement - Rules 36.12 and 40.7 of the Uniform Civil Procedure Rules 2005 - reoccupation of property after eviction - claim made for a trial by jury - plaintiff entitled to possession - writ of restitution granted - orders made for the endorsement of judgment - costs

VENDOR AND PURCHASER – purchaser rescinds contract for the sale of a pharmacy business – deposit forfeited – whether purchaser complied with warranty to do all things necessary to obtain the landlords’ consent to assignment of the lease – construction of warranty – whether landlords’ consent could not have been obtained in any event – no basis for ordering return of deposit.

DAMAGES – personal injuries – gratuitous care – threshold of 6 continuous months care – satisfaction – whether plaintiff entitled to damages for earlier periods of care for less than six months. - CIVIL LIABILITY ACT – gratuitous care – s 15(3) – construction.

PRACTICE and PROCEDURE - whether audit conducted pursuant to orders previously made is valid or should be set aside - whether audit in conformity with contract - whether an obligation of natural justice owed by auditor - HELD - audit was in conformity with contract as previously construed - no obligation of natural justice - receipt of submissions assumed at best an obligation to give due consideration and a reasonable opportunity to respond - there was no breach of any such duty - the sum repayable by Joseph Lahoud consequent upon the audit is $346,027.17 - costs of the audit are the reasonable costs of the auditor in the conduct of the audit (including his costs of considering and responding to the various submissions put to him) - RESTITUTION - whether entitlement to a 'freestanding' award of interest for restitution of interest on sum retained in accordance with Terms of Settlement but repayable upon subsequent audit determination - HELD - no unjust enrichment - no restitution of interest

CRIMINAL LAW – Appeal against conviction – Possession of unlawfully imported substance – Mental elements supported only by circumstantial evidence – Whether verdict unreasonable – Whether new trial should be ordered – Whether trial judge misdirected jury concerning mental elements.

CRIMINAL LAW – particular offences – drug offences – supply prohibited drug (opium) – other offences – CRIMINAL LAW – application for leave to appeal – appeal against severity of sentence – no error in assessment by sentencing judge – omission by sentencing judge to direct the release of the applicant on expiration of non-parole period – omission remedied – CRIMINAL LAW – Crown appeal against refusal to make forfeiture order – Confiscation of Proceeds of Crime Act 1989 – “tainted property” – property used in connection with the commission of a serious offence – hardship – COSTS – no jurisdiction to order costs – counsel acting pro bono – unnecessary to determine question

CORPORATIONS - winding up - winding up in insolvency - application for order setting aside statutory demand - defendant abandons statutory demand except as to one element - whether genuine dispute as to existence of debt - obvious dispute obviously genuine - demand set aside - appropriate case for indemnity costs

CORPORATIONS - where parties previously married agree in property settlement to reciprocal relinquishment of directorships and shareholdings in certain corporations - whether the former wife is the sole director and shareholder - whether the former wife agreed to reinstate the former husband as a director/shareholder

SHIPPING AND NAVIGATION - bills of lading and carriage of goods by sea generally - actions for loss or injury in transit - limitations on liability and exceptions as to liability - where pieces of equipment lost in transit - where defendant's liability limited by Hague-Visby Rules - whether plaintiffs entitled to summary judgment pursuant to Rule 13.1 of Uniform Civil Procedure Rules

CORPORATIONS - winding up - winding up by the court in progress for ten years - application by all contributories for termination of winding up - contributories purport to pass resolution removing existing directors and appointing new director - whether such resolution may effectively be passed while winding up continues - alternative approach preferred under which winding up is terminated on the contributories' undertaking to reconstitute the board immediately after termination

TORTS – negligence – injury as a result of a fall into an unfenced pit at tip - whether risk of harm was "not insignificant" - whether primary judge took into account probability of harm if precautions were not taken - whether a reasonable person in the position of the occupier of the tip would have erected a protective wall - need to consider the risks created by the alternative safety strategy, in particular of those injuries occurring - Civil Liability Act 2002 (NSW), s 5B(1)(b)

PROCEDURE – entry of judgment –variation of orders – power of Court to vary orders after entry – costs order – application to vary made after determination of remitted damages issue – whether “claim for relief” in Uniform Civil Procedure Rules 2005 (NSW) 36.16(3) includes costs orders – finality of litigation – Defamation Act 1974 (NSW), s 48(1)(b) - DEFAMATION – damages – whether $5,000 award contemptuous - WORDS AND PHRASES – “claim for relief”

PROCEDURE – judgments and orders – application to vary orders – no question of principle – application to vary orders refused

LIMITATION OF ACTION – Old System Title – adverse possession – whether possession for twelve year period – nature of possession – use as family home – acts of possession – intent to possess – entry into possession with consent of documentary owner – whether consent revoked – date of accrual of documentary owner’s cause of action – effect of party in possession obtaining valuations to fix a purchase price for the premises

CORPORATIONS – application to set aside statutory demand – whether applicant filed and served supporting “affidavit” for purposes of Corporations Act 2001, s 459G – where jurat not signed by attesting witness – whether oath administered – form of oath required – whether genuine dispute that debt owed – whether genuine dispute as to part of debt – whether parties were in partnership – whether debt by way of loan – whether offsetting claim based on misrepresentation – quantification of claim

CORPORATIONS - winding up - application for winding up in insolvency - plaintiff has benefit of presumption of insolvency - defendant seeks to prove solvency - onus not discharged - no matter of principle

PRACTICE & PROCEDURE - Strike out of further amended statement of claim - LEGAL PROFESSION - Pro-bono scheme - application for further referral certificate - “special reasons”

Proceedings after conviction – Appeal – Application for leave to appeal against sentence – Plea of guilty – significance of as evidence of remorse – Reasons – applying standard non-parole reasoning in case where no standard non-parole period – Disparity – whether disparity where same sentence imposed after different discounts for plea – Remorse – relevance of plea of guilty to s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999

CRIMINAL LAW - appeal against sentence - supplying commercial quantity of prohibited drug - whether sentencing judge erred by failing to consider and find special circumstances - whether sentencing judge erred by failing to impose a non-parole period

CRIMINAL LAW - appeal against sentence - fraudulent use of counterfeit credit cards - organised criminal syndicate - whether sentencing judge erred by having regard to prospect of applicant’s deportation - whether sentences imposed, both individually and cumulatively, were manifestly excessive

CONTRACT – construction – whether there was unconditional acceptance of an offer in accordance with partnership agreement – objective and contextual approach to interpretation

PROCEDURE - amendment - application to amend Defence and Cross-Claim - whether proposed amendments are futile - application for separate questions - separate questions involving factual matters overlapping with other issues - no utility in ordering separate questions. CONSUMER CREDIT - credit protection - regulated contracts - hardship provisions - monetary thresholds - date at which threshold operates - floating thresholds - carried over instruments from uniform Credit Code - whether threshold determination different under National Credit Code.

CRIMINAL LAW - sentence - manslaughter verdict after trial for murder - provocation - confrontation planned without intention of gbh - knife used when provoked - objectively serious - some evidence mental illness - intoxicated - aggravated by disposal of body.

CRIMINAL LAW - sentence - accessory after the fact to murder - assisting to dispose of deceased's body - aggravated break, enter and steal - guilty plea

DEFAMATION – defence of common law qualified privilege – where matter complained of published in newspaper circulating in Clarence Valley – where plaintiff not named in article – whether publication to entire readership of paper or only those persons who identified the plaintiff from extrinsic facts – held publication to all recipients – defence of qualified privilege rejected – DAMAGES – hurt to feelings and loss of reputation – plaintiff employed as Aboriginal mental health worker – defamatory imputation that she was incompetent as such – where plaintiff the only Aboriginal mental health worker in Clarence Valley – defamation substantial – plaintiff awarded $60,000 – no aggravated damages

CONVEYANCING - breach of contract for sale and remedies - entitlement to deposit - on abandonment of contract - forfeiture to vendor - where plaintiffs paid deposit and called on indemnity provided by defendant under bond agreement - plaintiffs' application for payment of funds paid into court in satisfaction of judgment obtained against defendant

CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - setting fire to house in attempted suicide - partner died - long history drugs, alcohol, mental illness - offender severe burns - whether extra judicial punishment - whether offence aggravated because fire in deceased's home - shared accommodation s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999

CRIMINAL LAW - evidence - hearsay - murder trial - witness unavailable (overseas) - previous induced ERISP - whether portions of ERISP admissible.

SUCCESSION - wills - statutory jurisdiction to rectify a will - construction of new statutory provision - need to identify testator's "instructions" and to ascertain from them testator's "intentions" - specific devise of house to daughter - reference in instructions to destination of any surplus of proceeds of sale of house remaining after purchase of retirement unit - no express reference to destination of any such retirement unit - implication that retirement unit should be treated in same way as house - will to be rectified accordingly

DIVIDING FENCES - appeal against decision of local land board - whether retaining edge a "fence" for the purpose of Dividing Fences Act - determination whether vegetative barrier a sufficient dividing fence - denial of procedural fairness - whether Court should determine merits of the matter or remit it to land board

PERSONAL INJURY – industrial accident on 1 May 1994 – plaintiff unsuccessful at first hearing in 2000 - where matter remitted to Common Law Division for re-hearing following plaintiff's successful appeal to Court of Appeal in 2003 – costs of original trial and Court of Appeal to be determined by trial judge on re-hearing – defendant ordered to pay costs of both – where plaintiff claimed interest on past paid costs and disbursements from first hearing and Court of Appeal – defendant ordered to pay such interest – whether plaintiff entitled to damages for loss of superannuation – s 149 Workers Compensation Act 1987 – modified common law damages regime not apply to exclude or limit claim for lost superannuation – delay – where hearing scheduled for February 2007 vacated at request of plaintiff – where defendant not at fault - where plaintiff claimed interest on damages – whether plaintiff entitled to interest for period from commencement of proceedings until judgment following re-hearing in 2010 or lesser period – plaintiff entitled to interest for whole period – principles considered

PROCEDURE - time for service of originating process extended on several occasions - defendants have pending application for discharge of extension orders - existing orders require that material put before court by plaintiffs on hearing of the extension applications be kept confidential - application by defendants for discharge of confidentiality orders - held legal professional privilege waived and confidentiality no longer maintainable except as to litigation funding documents

PROCEDURE - Supreme Court procedure - New South Wales - notice of motion - amendment to pleading - leave to file further amended statement of claim - amendment to pleading - plaintiffs withdrew motion - costs - reconsideration of earlier costs orders against plaintiffs sought - unnecessary costs incurred by defendant and proposed defendants as result of plaintiffs' acts - no departure from usual rule - costs ordered - plaintiffs to bear costs as agreed or assessed

Criminal Law - sentencing - murder - jury verdict - self-defence - provocation - factual findings - offence within middle range of objective seriousness - mitigating factors - special circumstances - departure from standard non-parole period

CORPORATIONS - winding up - winding up in insolvency - statutory demand - application for order setting aside - two statutory demands issued by one creditor and addressed to different debtors - both debtors initiate single proceeding seeking a single order that both statutory demands be set aside - held that no valid s 459G application had been made in relation to either demand

PROCEDURE - Supreme Court procedure - New South Wales - notice of motion seeking leave to amend summons to seek orders under s 129 of the Conveyancing Act 1919 - amendments in relation to section 133E notices - consideration of s 64 and s 65 of the Civil Procedure Act 2005 and parties' respective positions - relief sought granted - costs

SENTENCE – Manslaughter – Death of seven month old child – No history of abuse – Inferences as to infliction of injury from autopsy – Inferences from plea of guilty – No basis for charge of murder – Prosecutorial discretion.

APPEAL AND NEW TRIAL - appeal - practice and procedure - appeal from Local Court - sections 39 and 40 of the Local Court Act 2007 - whether judgment appealed against was an interlocutory judgment requiring leave - leave required on appeal from interlocutory judgment, even when raising questions of law - leave granted - whether Magistrate erred in conclusion reached as to the effect of an alleged settlement agreement - whether Magistrate further erred in failing to determine that a binding agreement had been reached - section 73 of the Civil Procedure Act 2005 - nature of agreement - whether evidence established agreement reached - binding agreement established - appeal upheld - costs

CORPORATIONS - confectionery owned by defendant held at plaintiff's warehouse on terms returnable on demand but if sold by plaintiff replacement stock or money value would be provided. Stocks of parties mixed and not identifiable - demand for return made and not met but $100,000 paid on day before administrators appointed - whether payment an unfair preference - whether defendant knew plaintiff likely to be insolvent - whether objective test met. - BAILMENT - terms of bailment requiring goods to be identifiable and available for return - goods mixed and not returned - goods not mixed by accident - claim in conversion by owner. - TORTS - conversion - mixture of goods - measure of damages when share in mixed stock not ascertainable.

EVIDENCE - admissibility - lies as consciousness of guilt - directions to jury - elements in R v Heyde - alleged lies central to Crown case - perpetuation of lies - requirement of evidence establishing lies - possible circularity when acceptance of lies as consciousness of guilt taken as admission of guilt - danger that evidence demonstrating consciousness of guilt establishes guilt of accused - conduct pointing to guilty mind - unfair prejudice - limitation of evidence - perpetuation of a lie not available as separate evidence of guilt - right to silence - Crown not entitled to reverse onus of proof - directions to exclude or limit its use - need for restraint in presentation of Crown case.

ADMINISTRATIVE LAW - administrative tribunals - Administrative Decisions Tribunal (NSW) - no statutory right of appeal to Supreme Court in circumstances where the matter has not been determined by Appeal Panel - ADMINISTRATIVE LAW - judicial review - whether review should be undertaken in light of balancing considerations contained in s 123 of the Administrative Decisions Tribunal Act 1997

PROCEDURE - dismissal of proceedings - whether summary judgment should be entered in favour of the plaintiff based on pleadings and/or failure on the part of defendant to prosecute proceedings with due dispatch

APPEAL - procedural fairness - apprehended bias - in pleading ruling, indication of "surprise" at submission that counsel "surprised" by opponent's contention - whether apprehended bias shown - no apprehended bias. APPEAL - procedural fairness - observations of appellant - observation relied on in judgment - issue and observations raised in addresses - whether denial of procedural fairness - no denial of procedural fairness. DAMAGES - torts - negligence - personal injury - whether brain damage shown - whether error in evaluating conflicting evidence - no error shown - no question of principle. PROCEDURE - civil - adjournment - appellant injured when 16 months old - alleged brain damage - adjournment until age 11 sought in order to test brain function - adjournment refused - whether evidence misapprehended or given inappropriate weight - whether acted on wrong legal principle - whether so unreasonable must be error - no error shown.

COSTS - indemnity costs - Calderbank letter - reasonableness of rejection - offeree successful below - reasoning of judges in Court of Appeal differed although result agreed - reasonableness not determined with hindsight - not unreasonably rejected.

CORPORATIONS - directors and other officers directors’ fees whether directors had performed work which warranted additional fees overpayments - CORPORATIONS - directors and other officers whether transaction entered in good faith and for proper purpose conflicts of interest and duty business judgment rule s 182(2) Corporations Act - CORPORATIONS- directors and other officers issue of shares whether shares improperly issued to allow directors to maintain control of company legal costs of directors in defending action should not have been borne by the company exoneration, s 1318 Corporations Act - CORPORATIONS - directors and other officers directors’ duties breaches of ss 180, 181 and 182 Corporations Act and common law duties causation of loss contribution between directors - EQUITYgeneral principles rules and maxims of equity equitable contribution clean hands doctrine comparative moral culpability

Trusts and trustees - judical advice - application by trustee for juducal advice as to whether it would be justified in defending proceedings - proceedings at an early stage - counsel's advice tendered justifying defence of the proceedings - HELD: trustees would be justified in filing a defence and in utilising the trust estate for that purpose.