Cases and authorities

CRIMINAL LAW - Crown appeal against sentence - guilty plea - whether sentence manifestly inadequate - whether sentencing judge erred in finding that vow of celibacy imposed on Catholic priests by the Catholic Church was a mitigating factor - whether sentencing judge erred in finding that absence of actual victim created situation of entrapment and whether this was a mitigating factor

APPEAL – civil – whether appeal as of right – monetary threshold – Supreme Court Act 1970 (NSW), s 101(2)(r)(i) - CONTRACTS – termination – frustration – allegation that employment contracts were frustrated by failure of respondent company's public float - TRADE AND COMMERCE – restraints of trade – contracts of employment of senior executives – non-solicitation clauses – whether restraints were void for uncertainty – whether challenged provisions were severable - TRADE AND COMMERCE – restraints of trade – whether non-solicitation clauses were breached – whether clauses were unreasonable as to scope and duration – application of Restraints of Trade Act 1976 (NSW), s 4 - EQUITY – interlocutory injunction granted to restrain contraventions of non-solicitation clauses – cross-claim for damages on ground that injunction should not have been granted – significance of undertaking as to damages being of little value

ADMINISTRATIVE LAW - administrative tribunals - procedure - admission of transcript of evidence from hearing before improperly constituted Tribunal - Administrative Decisions Tribunal Act 1997, s 73 - appeal on a question of law pursuant to Administrative Decisions Tribunal Act 1997, s 119 - STATUTES - by-laws and regulations - validity - whether Security Industry Regulations 2007, cl 29 inconsistent with Security Industry Act 1997 - PROFESSIONS AND TRADES - licensing or regulation of security industry - revocation of master licence - Security Industry Act 1997, s 26(1)(d) - Security Industry Regulations 2007, cl 29 - public interest

COSTS – general principle to be varied to take account of what is fair and just – arithmetic approach inappropriate – two of eight imputations not proved to be true – one-third costs awarded - INTEREST – general damages – half the damages subject to 4% and the other half subject to 2% - overall interest of 3% up to judgment

APPEAL – Appeal from Local Court of NSW – Appeal by way of rehearing – Whether leave to appeal on questions of mixed fact and law –– Whether matters the subject of the appeal are matters of fact, mixed fact and law, or of law – Obligation for Magistrate to provide adequate reasons. - PRACTICE AND PROCEDURE – Whether plaintiff’s pleadings in the Local Court were adequate – Purpose of pleadings and particulars – Whether the defendant in the Local Court knew the nature and extent of allegations made against it – Where the defendant did not object to the adequacy of the plaintiff’s pleadings until its written submissions made ten weeks after the conclusion of trial. - CONTRACTS – Whether there was sufficient evidence before the Magistrate to find the existence of an agreement in the terms set out in a written fee proposal – Clause in the agreement provided for termination payments in lieu of notice – Whether clause is penal. - BUILDING AND CONSTRUCTION – Whether consultant engineer was entitled to a variation under the agreement – Whether there was sufficient evidence before the Magistrate to find that there had in fact been a variation to the agreement .

CONTRACTS – General Contractual Principles – Formation of contractual relations – Acceptance – whether unconditional – whether within time

EQUITY [397] – Equitable remedies – Specific performance – The jurisdiction in general – General principles – Enforcement by purchaser

DE FACTO RELATIONSHIP – application for adjustment of property interests – defendant’s contributions to plaintiff’s asset position are entirely outweighed by advantages he has derived from occupation, without payment of rent, of property – no order in defendant’s favour. - DEFENCES – illegality – whether defendant was registered proprietor for purpose of evading capital gains tax or concealing assets in relation to social security benefits – title to property not arranged for illegal purpose. - TRUSTS – resulting or constructive trust – proof of beneficial ownership – defendant holds legal interest – plaintiff contributed whole purchase price – no arrangement or expression of intention for defendant to have life interest – plaintiff did not manifest intention to confer beneficial ownership on defendant – plaintiff is beneficial owner of property.

TRUST - implied constructive and resulting trusts - plaintiffs (mother and sister of defendant) claimed on several bases that trusts, not evidenced in writing, and an equitable mortgage by deposit of deeds, arose from conversations at various times from 1988 to 2003 over home of which defendant is registered proprietor: on consideration of evidence in detail of numerous events, these claims failed on the facts. - LIMITATION OF ACTIONS - consideration of standing of defendant's affidavit as acknowledgement and confirmation under s54 of Limitations Act 1969 - as the affidavit was made after expiry of 12 year limitation on claim for conversion of trust money it was not available as acknowledgement - expression of doubt whether affidavit evidence can be an acknowledgment.

PHARMACIST – Deregistration – Continuing unfitness – Whether remorseful – Significance of finding of dishonesty – Requirements of procedural fairness – Whether breach of rule in Brown v Dunn - Error of law – Mistake of fact – Whether Supreme Court should hear and determine consequential orders when quashed – Remit to Tribunal for determination.

Arbitration agreement - civil proceedings for interlocutory relief commenced in the Court - defendant applies for stay of proceedings - whether Commercial Arbitration Act 2010 applies to the proceedings - whether the defendant's application for stay of proceedings and request for referral to arbitration was made not later than the defendant submitted its "first statement on the substance of the dispute" within Commercial Arbitration Act 2010 - HELD: defendant's application was made after its "first statement on the substance of the dispute" - proceedings not stayed.

Cross Vesting Application

PROCEDURE - costs - where offer of compromise made by plaintiff - where plaintiff obtained judgment more favourable than amount offered - whether defendant liable to pay plaintiff's costs on an indemnity basis

MORTGAGES – Mortgagee exercised power of sale upon default – Claim by mortgagors that mortgagee incorrectly accounted for the proceeds of sale – Whether mortgagee entitled to costs and expenses levied – Whether mortgagee entitled to retain an amount as security for future legal costs – Where the future legal costs relate to proceedings other than the dispute over redemption accounts - CONTRACTS – Interpretation of settlement agreement – Whether the settlement agreement in respect of proceedings to recover a debt affected the terms of the mortgage securing that debt – Doctrine of merger considered - PRACTICE AND PROCEDURE – Interest up to judgement – Interest after judgment – Where terms of mortgage provide for the payment of interest at a rate higher than the statutory rate – Where the mortgagee has not made a formal application under the Civil Procedure Act 2005 that interest be payable at the higher rate

CORPORATIONS – EXAMINATION – ABUSE OF PROCESS – whether issue and maintenance of examination summons was designed to coerce applicant into settling proceedings – whether examination summons should be set aside as abuse of process.

Corporations- validity of appointment of directors of company who purported to appoint administrators- single shareholder company- whether document headed notice of removal and signed by sole shareholder constituted a valid resolution within Corporations Act 2001 (Cth), s 249B- relevance of intention of shareholder- distinction between legal personality of shareholder and company- importance of formalities. Corporations- whether Corporations Act s 201M or company Article to same effect validates appointment of the administrators by invalidly appointed directors- distinction between purported appointment and non-appointment of directors. Corporations- s 1322(4)- whether "contravention of the Act" extends to failing to take advantage of a provision of the Act- "contravention" has extended meaning- s 1322(6)- whether proceeding of a "procedural nature"- question irrelevant where just and equitable to make validating order.

CONTRACT – interpretation – whether agreement is for a lease or a licence – whether licence is binding on subsequent purchaser of property – whether agreement contained right to sublicense. PROPERTY – fixtures – whether transmission tower and equipment shed are fixtures. REMEDIES – rectification – whether agreement was varied after document embodying agreement was executed – whether document embodying agreement should be rectified. TORTS – intentional – trespass to land – licence to occupy land – where defendant entered land for lawful purpose pursuant to licence but subsequently engaged in unlawful activity. WILLS AND ESTATES – executor – transfer of property from plaintiff’s father to plaintiff – whether defendant had a proprietary interest in that property - whether executor failed to recognise proprietary interests of defendant – whether executor failed to discharge contractual obligations of the deceased

CONTRACT – interpretation – retirement village contact – where premises no longer operated as a retirement village – extent of obligations under villiage contract

PROCEDURE - judgments and orders - amending, varying and setting aside - reasons sought in respect to various findings and reasonings - quantum of damage - whether the Court failed to complete the exercise of its jurisdiction by discounting damages ordered by reference to certain probabilities and hypotheses -whether first defendant was entitled to reasons for rejection of submissions - whether failure to give reasons constituting an error of law and denial of procedural fairness - hypothetical scenarios pressed - motion dismissed - costs

COSTS – indemnity costs – defendants’ prospect of success – no order for indemnity costs – no reason to reduce costs order. COSTS – apportionment of costs between parties – by reference to total costs awarded. COSTS – exceptions to the general rule that costs follow the event – multiple parties – inappropriate joinder - appropriate that party bear their own costs

REAL PROPERTY - Lease with option containing clause that lessor would contribute $45,000 to lessee's cost of fit out - option exercised - when that provision included in new lease. - LEASE - covenant to pay rent without deduction - whether right of set off excluded. - GUARANTEE BONDS - action to restrain beneficiary from calling on bond - whether fact claim for unpaid rent by lessor statute barred prevented claim on bond payable upon demand. - LIMITATION OF ACTIONS - whether claim under bond barred when claim for breach which bond to secure was extinguished by Limitation Act 1969. - DEEDS - construction - whether literal meaning of words absurd so that words intended could be added.

SUCCESSION – COSTS – INTERIM COSTS ORDER – Contested probate suit – plaintiff seeks interim costs order upon terms as to repayment – consideration as to whether such costs order may be made.

CRIMINAL LAW – property offences – being in dwelling, larceny and breaking out in circumstances of aggravation - CRIMINAL LAW – appeal against severity of sentence – whether sentencing judge erred in finding that objective seriousness of aggravated steal and break out offence was above mid-range – offence not capable of being an offence of more than mid-range gravity – applicant’s mental illness causally connected to offending which has a bearing on assessment of objective gravity: R v Way – head sentence disproportionate to non-parole period – error established

PRACTICE & PROCEDURE – costs – where plaintiff successful on some but not all grounds of appeal – UCPR 42.1 – whether costs should follow the event – defendant ordered to pay the plaintiff's costs - where defendant seeks stay pending consideration of an appeal to Court of Appeal – where proper to grant stay in the circumstances

PRACTICE & PROCEDURE – possession list – UCPR 14.28 – application to strike out defence and cross-claim – defendant bankrupt – no election by Official Trustee to prosecute the cross-claim – where Official Trustee not proposing to defend the proceedings – where defendant had no more than a bare legal interest in the security property and no standing to appear or be heard – where defendant given leave to make submissions – defence had a tendency to cause prejudice, embarrassment and delay – plaintiff established prima facie entitlement to the orders sought

COURTS and JUDGES - PRIVATE INTERNATIONAL LAW recognition and enforcement of foreign judgments - plaintiff obtained in litigation in High Court London judgment for money amount and declarations establishing liability for knowing ssistance of breaches of trust, and order for accounts - plaintiff sought judgment and orders in NSW enforcing orders of High Court - exercise of jurisdiction in UK based on service outside UK (and in NSW) and not on service within UK - defendant, a UK citizen resident in Australia, did not appear and plaintiff applied for summary disposal consideration of - recognition and enforcement of foreign judgments for a) money sum, b) equitable remedies - citizenship of foreign jurisdiction as a ground for recognition, sufficient connexion as ground for enforcement of equitable remedies - after review of case law, judgment and orders of High Court were enforced

CRIMINAL LAW - judge alone trial - murder - defence of mental illness

TRADE AND COMMERCE - Fair Trading Act 1987 (NSW) - misleading and deceptive conduct - where plaintiff invested in restaurant business which failed - where defendant was accountant for restaurant syndicate and member of syndicate - where other syndicate members proffered guarantees to plaintiff - where defendant knew of worthlessness of two guarantees - whether plaintiff relied on defendant's conduct - whether defendant obliged to inform plaintff in respect of final advance that loan was unsustainable - TORTS - negligence - duty of care - whether defendant owed plaintiff duty of care - breach of duty of care - whether defendant failed to advise plaintiff of worthlessness of two guarantees and to obtain independent legal and accounting advice - EQUITY - fiduciary duties - whether defendant owed plaintiff fiduciary duty - breach - conflict of interest - whether defendant's interests conflicted with plaintiff's interests and defendant preferred his interests and interests of other restaurant syndicate members over plaintiff's interests

EMPLOYMENT LAW – post-employment restraint deed – cascading clause not void for uncertainty – individual covenants all capable of being understood and complied with without breach of any other – no requirement for mechanism of order of operation - EMPLOYMENT LAW – restraint covenant – whether provisions amounting to repetitive and overlapping restraints were against public policy under the Restraints of Trade Act 1976 (NSW), s 4(1) - EMPLOYMENT LAW – restraint covenant – reasonableness of restraint period – no legally required test – the use of one test or another depends on the facts and evaluation of the approach that is reasonable

CRIMINAL LAW - appeal and new trial - procedure - application to cross examine as to compliance with order to produce - application for juror at trial to attend to give evidence as to possible impact upon verdict of "fresh evidence"

CRIMINAL LAW - appeal and new trial - bail pending appeal

COSTS – appeal – Uniform Civil Procedure Rules 2005, r 42.4 – maximum costs order – appeal against decision to order maximum costs - COSTS – appeal – Uniform Civil Procedure Rules 2005, r 42.4 – maximum costs order – discretion to order maximum costs - interrelationship with the Civil Procedure Act 2005, ss 56-60 - COSTS – appeal – Uniform Civil Procedure Rules 2005, r 42.4 – maximum costs order – proportionality – whether maximum costs order should be proportionate to the estimated costs of the proceedings - PROCEEDINGS – interlocutory proceedings – determination of whether proceedings are taken in the public interest - PROCEEDINGS – interlocutory proceedings – whether proceeding can be characterised as being in the public interest at an interlocutory stage - COSTS – appeal – Uniform Civil Procedure Rules 2005, r 42.4 – maximum costs order – relevance of public interest nature of proceedings in assessment of maximum costs – impact of Land and Environment Court Rules 2007, r 4.2 on a party’s cost expectations - COSTS – appeal – Uniform Civil Procedure Rules 2005, r 42.4 – maximum costs order – need to balance discretion to order maximum costs with overriding statutory purpose of the Civil Procedure Act 2005 and Uniform Civil Procedure Rules 2005 - WORDS & PHRASES – “the public interest”

PRACTICE AND PROCEDURE - motion to vary principal judgment pursuant to r36.16 UCPR - motion dismissed with costs

PROCEDURE - summary dismissal of proceedings - pleadings fail to disclose a reasonable cause of action

CRIMINAL LAW - murder - trial by judge alone - accused present when deceased fatally assaulted

CRIMINAL LAW - Indictment charging one act of murder - Trial by judge alone. - CRIMINAL LAW - Defence of mental illness - Facts agreed by Crown and the accused - Psychiatric diagnosis of chronic Schizophrenia - Whether accused mentally ill under M'Naghten Rules - Whether accused knew that what he was doing was wrong.

MORTGAGES - mortgages and charges generally - obligations of the mortgagee - consent orders made as to possession of properties and agreement as to sale of properties - no challenge to consent orders - motion seeking stay of auction - mortgagee's obligations on sale- no payment of disputed sum into Court - evidence did not otherwise support grant of relief sought - no orders made - motion dismissed - costs

CRIMINAL LAW - procedure - confiscation of proceeds of crime - restraining or freezing order - - subsequent order that solicitor for the Defendant produce documents - whether order should have been made ex parte - whether illegitimate forensic advantage obtained by the Commission - redacted documents a sufficient answer to the order.

COSTS - no order as to costs - compromised proceedings - defendant offered genuine compromise - no reason to depart from general principle. COSTS - exceptions to the general rule that costs follow the event - conduct of parties - whether plaintiff acted unreasonably in proceeding with motion without first making enquiries of the defendant's solicitors - no reason to depart from general rule

CRIMINAL LAW - appeal

ASSIGNMENT - assignment of cause of action - GC9 of Building Contract forbade assignment of the contract or any payment thereunder without prior written approval - held an assignment of a claim for payment without consent by Liquidator of the contractor did not have effect as an equitable assignment. CORPORATIONS - winding up - disposition by Liquidator of claim for payment took effect under s477(2) of Corporations Act notwithstanding that assignment was not otherwise possible.

CRIMINAL LAW - whether the sentence imposed upon the applicant was manifestly excessive - assessment of the criminality of the applicant - whether the sentencing judge erred in the applicability of comparable cases - relevance of applicant's prior convictions in assessing prospects of rehabilitation

CRIMINAL LAW – appeal – sentence – Crown appeal – armed robbery and armed robbery with wounding – concurrent non-parole periods – manifest inadequacy – compelling subjective circumstances – sentence within range available to sentencing judge – no less severe sentence warranted

APPEAL – findings of trial Judge – credibility of witnesses – errors in fact-finding – facts incontrovertibly established – improbabilities – no question of principle.

Appeal - Local Court - Smoke-free Environment Act 2000

PRACTICE AND PROCEDURE - application for preliminary discovery seeking identification of journalists' sources - whether an interlocutory proceeding - where defendants sought to rely on evidence on information and belief from the very sources the identification of whom is sought in the proceeding without identifying those sources - whether such evidence admissible under the exception to the hearsay rule in s75 of the Evidence Act - reasons for granting adjournment enabling both parties to address by direct evidence matters previously sought to be proved only by evidence on information and belief

FAMILY LAW - de facto relationships - existing orders of District Court adjusting parties' interests in property under Property (Relationships) Act - one order made being that jointly owned property be sold and proceeds be applied in stated manner - Plaintiff unable to obtain benefit of order - jurisdiction of Supreme Court to act in aid of and be auxiliary to District Court in matters under Property (Relationships) Act - REAL PROPERTY - land in co-ownership - whether order appointing trustees for sale should be made

REAL PROPERTY - Fixtures - whether plant and equipment were installed on property with intention they become part of land. CONTRACT - Construction - whether term operated as a condition precedent or a binding obligation. SALE OF GOODS - whether transfer occurred notwithstanding the rights of a third party under a bill of sale