Cases and authorities

CORPORATIONS - winding up - application for leave to proceed against company in liquidation - purported proprietary and restitutionary claims - whether serious question to be tried - SALE OF GOODS - passing of property - title retention clause - whether implied term that proceeds of on-sale by buyer should be held on trust for seller - where buyer had agreed to on-sell before delivery by seller - CONTRACTS - implied terms - conditions for implication of terms in written contract

DEFAMATION – application to vacate hearing – where plaintiffs' senior counsel previously gave advice to the defendants – where defendants challenged his continued retainer for the plaintiffs - where plaintiffs unable to locate alternative senior counsel on short notice – whether plaintiffs should be required to proceed without senior counsel – hearing vacated – costs reserved

CORPORATIONS - winding up - statutory demand - application for order setting aside - two offsetting claims alleged - first such claim not shown to be within s 459H(5) definition of "offsetting claim" - second admitted to be less than amount of statutory demand so that reduction under s 459H(4) alone sought - need to establish basis of claim - need to show amount - whether court limited to accepting or rejecting amount put forward by plaintiff

EXTEND TIME for service of statement of claim - SUBSTITUTED SERVICE

CRIMINAL LAW – Appeal against conviction – Sexual assault of a child – Evidence of uncharged acts admitted over objection – Requirements for admission as tendency evidence not satisfied – Whether evidence admissible as context evidence – Whether probative value outweighed by danger of unfair prejudice – Whether proviso should be applied.

CRIMINAL LAW: Crown appeal against interlocutory order rejecting evidence - Principles applicable - rejection of complaint evidence in child sexual assault case - error in construction of s 66 of Evidence Act - meaning of phrase "fresh in the memory" - history of "recent complaint" doctrine - enactment of s 66(2) of Evidence Act - Reasons underlying amendment - Proper approach to construction of s 66(2) and (2A) Evidence Act - Power of Court of Criminal Appeal where error demonstrated.

CRIMINAL LAW – Appeal against conviction – Sexual assault of a child – Evidence of uncharged acts admitted without objection – Requirements for admission as tendency evidence not satisfied – Errors in summing up – No complaint concerning summing up or request for further direction – Whether leave to rely on points not taken at trial should be granted – Character evidence – Evidence that appellant had no conviction for sexual assault - Whether evidence of uncharged acts thereby made admissible.

CRIMINAL LAW – appeal – sentence – detain for advantage in circumstances of aggravation – relevance of period of detention – significance of circumstances of detention – recitation of factors relevant to determination of objective seriousness is not multi-tier sentencing – failure to find special circumstances not error where no application made – manifest excess – grounds of appeal rejected – appeal dismissed

APPEAL – civil – right to appeal from decision of District Court on an appeal from the Consumer, Trader and Tenancy Tribunal - WORDS & PHRASES – “action”

Practice and Procedure – Application for hearing limited to the issue of liability – Exercise of discretion – Principles applicable

FAMILY LAW AND CHILD WELAFRE – Child welfare under State legislation – Adoption – Orders – whether notice requirement under (NSW) Adoption Act 2000 s 54(3)(a) should be dispensed with – whether notice has been given to natural father – whether consent of father required where child over 12 has consented – whether court has jurisdiction to deal with application under (CTH) Family Law Act 1975 s 60G application – whether adoption order should be made in absence of s 60G leave.

FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Adoption – Application for orders – relevant considerations – where child over eighteen years of age – whether consent dispense order required, or whether necessary to give notice to natural father pursuant to (NSW) Adoption Act 2000, s 88

COURTS AND JUDGES – appeal – capacity to correct reasons for judgment for slip and/or ambiguity – correction made after judgment entered - APPEAL – reasons for judgment – slip and/or ambiguity – judgment already entered – capacity of Court to alter wording – correction made to reasons for judgment

TORT – negligence – motor vehicle accident – involvement of unidentified vehicle – claim against Nominal Defendant – failure to notify within statutory period – Motor Accident Compensation Act 1999 (NSW) s 36 - STATUTORY INTERPRETATION – principles – Act read as a whole – ss 36, 109 - WORDS AND PHRASES – "full and satisfactory explanation"

COSTS – costs of appeal in work injury damages matter – Work Injury Management and Workers Compensation Act 1998, s 346 – whether s 346 governs costs in relation to an appeal against costs – Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62 - COSTS – costs of appeal in work injury damages matter – Workers Compensation Regulation 2003, cl 91 – whether cl 91 governs costs in relation to an appeal against costs – whether parties should bear their own costs of an appeal against costs - COSTS – costs of appeal in work injury damages matter – Workers Compensation Regulation 2003, cl 93 – ancillary proceedings – whether cl 93 governs costs in relation to an appeal against costs – whether the UCPR should apply in relation to costs - WORDS & PHRASES – ancillary proceeding – Workers Compensation Regulation 2003, cl 93

PROCEDURE - interlocutory issues - notice of motion - orders for inspection - whether view would facilitate just, quick and cheap resolution of the real issues

EQUITY - fiduciary duties - breach - conflict of interest - defences to breach - disclosure and informed consent - where solicitor acted for client on sale of property owned by solicitor's wife's company, and proceeds of sale used to discharge mortgage on home of solicitor and solicitor's wife - whether solicitor breached fiduciary duty to client - EQUITY - second limb of Barnes v Addy ("knowing assistance") - whether solicitor's wife and company owned by her had knowledge of solicitor's dishonest and fraudulent breach of fiduciary duty to client - EQUITY - remedies - breach of fiduciary duty - account of profits - "profit" or "benefit" received by solicitor, solicitor's wife and company owned by her

PROCEDURE - costs - appeal as to costs - whether Magistrate erred in considering herself constrained by law applicable in Small Claims Division - determination by solicitors to discontinue proceedings - whether costs should have been ordered on indemnity basis after after they failed to seek leave to do so

MORTGAGE – commercial property – duty of mortgagee on sale – whether required to consent to lease that increases value – specific performance not appropriate – remedy, if any, in damages

CONTRACTS - interpretation - insertion of special conditions into standard form contract. CONVEYANCING - payment of GST under standard form real estate contract

COSTS - family provision - cost capping - whether appropriate to cap costs

Practice and procedure - Application to set aside subpoenas - Discussion or relevant principles

CRIMINAL LAW-sentence-relevant factors-nature and circumstances of offence-financial gain-premeditation-objective gravity below worst case but above mid-range-nature and circumstances of offender-no special circumstances

PROCEDURE - Supreme Court procedure - New South Wales - application for leave to re-open - where defendants sought leave to re-open their case after principal judgment delivered

FAMILY PROVISION - Practice and procedure - Application for summary dismissal of claim - Facts in dispute - Other facts incomplete - Family Provision Act 1982

PRACTICE AND PROCEDURE - contempt of court - contemnor signed by way of consent, and returned to plaintiff's solicitors, short minutes of orders restraining her from disposing of property and requiring her to file and serve asset disclosure affidavit - she disposed of property and failed to file and serve affidavit - no evidence that making of order or its contents known to contemnor - copy of order not served on contemnor and contemnor not in court when order made - charges of contempt of court not proved.

EQUITY [1439] - Trusts and trustees - Applications to Court for advice and authority - Petition a summons for advice - Generally - General principles

SUCCESSION – WILLS – STATUTORY REVOCATION – no question of principle.

CRIMINAL LAW - sentence - appeal against severity - break, enter and steal - use of statistics - comparison between offence charged and aggravated form of the offence - sentence imposed said to fall within appropriate sentence for aggravated form of the offence - no error shown.

CRIMINAL LAW - Appeal pursuant to s5F(3A) Criminal Appeal Act 1912 - tendency and coincidence evidence - whether Judge erred in revoking earlier ruling allowing Crown to rely on evidence of three complainants as tendency and co-incidence evidence.

CRIMINAL LAW - sentence - appeal against severity - indecent assault of a child under 16 years - first such offences - offender assessed as borderline mildly retarded - offences could have been dealt with in the Local Court - no regard paid to that principle - whether standard non-parole period displaced consideration of that principle - failure to consider offences separately - sentence manifestly excessive.

PROCEDURE - civil - meaning of originating process - period for which originating process valid for service - test to be applied on application to extend that period - PROCEDURE - judgments and orders - resort to extrinsic material for the purposes of construction of order where order ambiguous

ENVIRONMENT AND PLANNING – development control – planning instruments – local environmental plan – Ku-ring-gai LEP 194 – interpretation – whether approval of Governor required under s 28(3) of EPA Act to provisions of LEP 194 that effected change of zoning – whether provisions of LEP 194 provide that regulatory instrument specified in LEP 194 shall not apply to any particular development STATUTORY INTERPRETATION – extrinsic material – dictionaries – definition of “provide”, “provision” and “tenor” - STATUTORY INTERPRETATION – principles – context reading provision in – plain and unambiguous text giving effect to – purposive approach STATUTORY INTERPRETATION – EPA Act, s 28(2) and (3) – “provide”, “provision”, “regulatory instrument”, “specify”, “tenor”

REAL PROPERTY – strata title – common property – whether work was enhancement or improvement of common property requiring special resolution under Strata Schemes Management Act 1996, s 65A – whether owners corporation authorised work – work constituted repairs and maintenance under s 62 – no special resolution required - REAL PROPERTY – strata title – common property – whether works to enclose a verandah constituting common property with a specific lot in building were authorised under s 65A – specific authorisation can be found in more than one special resolution – first resolution authorised enclosure supplemented by second resolution approving plans - EQUITY – estoppel – unavailability of estoppel – injunctive relief declined as a matter of discretion - DAMAGES – whether primary judge should have remitted question of damages in lieu of an injunction – case not run below – too late for referral of question

PROCEDURE - Joinder of Parties - whether plaintiff should have leave to join insurer of defendant that refused to indemnify - whether in related proceedings it should have leave to amend its defence to raise issues upon which the insurer relied

PRACTICE & PROCEDURE – UCPR 12.6 – admissions – withdrawal of admissions – application for leave – whether defendants entitled to withdraw an admission that they jointly contracted with a third party for aerial spraying on the plaintiff's land – whether withdrawal necessary to expose real issues in dispute – whether true position was that separate contracts entered creating several liability – whether Court liable to determine an issue based upon a fiction unless leave granted - delay – where admissions made five and a half years previously – actual and presumptive prejudice – leave refused.

CORPORATIONS – INSOLVENT TRANSACTION – UNCOMMERCIAL TRANSACTION – UNFAIR PREFERENCE – whether Charge secured any monies actually advanced – whether company insolvent at time of giving Charge – whether transaction uncommercial, unfair preference, related entity transaction or director related transaction.

PRACTICE & PROCEDURE – UCPR 14.14(2) – application by third defendant to cross-examine on an issue not specifically referred to in its defence – whether this was a new case - whether plaintiff taken by surprise – whether issue a matter for specific pleading – where issue raised generally in the defence and otherwise apparent from the factual material to which all parties had directed their attention – third defendant entitled to call evidence in support of the "new" case.

CRIMINAL LAW - Crimes (Serious Sexual Offenders) Act 2006 - Extended supervision order for a period of 5 years - where defendant has lengthy criminal history for offences of sexual assault - where defendant has problem with alcohol abuse and history of non-compliance with parole and supervisory conditions - where evidence of high risk of recidivism

PRACTICE & PROCEDURE – Application for leave to commence proceedings against the insurer of an existing defendant – Leave of the Court under s.6(4) of the Law Reform (Miscellaneous Provisions) Act 1946. - COSTS – Usual practice that the costs of the notice of motion be costs in the cause – Whether there are any facts, matters or circumstances sufficient to vary from the usual practice.

CORPORATIONS – deed of company arrangement – remuneration of administrator – whether administrator estopped from seeking a review of his remuneration under s 449E(2) of the Corporations Act 2001 (Cth) – effect of an agreement to “cap” administrator’s fees – whether the administrator demonstrated a need to inquire into the originally determined quantum of remuneration.

PROCEDURE - subpoena - enforcement - procedure on non compliance - examination of witness.

DEFAMATION - defences - common law qualified privilege - reply to attack - elements of defence - whether necessary for defendant to establish "proportionality" between reply and attack - test for determining what is an attack - DEFAMATION - damages - whether broadcast caused hurt to feelings and harm to reputation as claimed.

STRATA MANAGEMENT – building with mixed commercial and residential – two Owners Corporations sharing costs for shared facilities – obligations in relation to determining shared costs – STRATA MANAGEMENT STATEMENTS (SMS) – whether dispute has arisen regarding proportions of shared costs – appointment of Expert under dispute resolution mechanism – conduct of parties – whether implied term – amendment of SMS – whether in circumstances Court should appoint Expert

Practice and Procedure – Security for costs – Company – Impecuniosity – Whether “reason to believe” inability to pay – Co-plaintiffs – Whether identity of issues on their claims – Cross claim against plaintiffs – Exercise of Court’s discretion

CRIMINAL LAW - sentencing - murder - strangulation of former de facto partner - plea of guilty

COMMON LAW - Plaintiff seriously injured when ladder of Club's Tallescope tilts and he is thrown head first onto thrust stage - Plaintiff former employee of defendant with much experience as light and sound operative in safely operating Tallescope while adjusting lighting on lighting bar immediately below ceiling of auditorium - engaged as independent contractor but envisaged by defendant that plaintiff would use Tallescope - probable cause of accident that locking mechanisms not secured before plaintiff climbed ladder - Tallescope contains warnings that before climbing the locks shoud be secured - ladder top-heavy because of attached workbox - no negligence by defendant nor breach of implied term of contract - statutory counts under former Factories, Shops and Industries Act 1962 and former Construction Safety Act 1912 and Regulations 1950 inapplicable.