Cases and authorities

FAMILY PROVISION - adult child - no appearance by defendant - plaintiff's circumstances deteriorated subsequent to execution of last will - will did not make adequate provision.

CRIMINAL LAW – appeal – conviction – evidence – fresh evidence – cogency – whether fresh evidence was credible, capable of belief or plausible – whether fresh evidence was so cogent that Court would be satisfied of appellant’s innocence or would entertain reasonable doubt as to guilt – whether fresh evidence likely to have caused jury to entertain reasonable doubt as to appellant’s guilt or given rise to significant possibility that jury would have acquitted

CRIMINAL LAW - appeal against conviction - armed robbery - detain for advantage - steal motor vehicle - fresh evidence - refusal to discharge jury - s.165 Evidence Act 1995 - whether "a dangerous to convict" direction should have been given - directions concerning delay - whether verdicts unreasonable and not supported by evidence - appeal dismissed

CRIMINAL LAW – appeal – necessity for warnings by a trial judge under s 165 of the Evidence Act 1995 – requirement for application to trial judge – unnecessary to warn as to bias of a child – allegation of unreasonable verdict – analysis of evidence – role of fresh evidence – appeal dismissed

CRIMINAL LAW - sentence - Crown appeals - one offender pleads guilty to recklessly dealing in proceeds of crime contrary to s.400.4(2) Criminal Code Act 1995 (Cth) - second offender pleads guilty to conducting transactions so as to avoid reporting requirements under s.31(1) Financial Transaction Reports Act 1988 (Cth) - sentence of imprisonment by way of periodic detention imposed in each case - claim by Crown that sentences were manifestly inadequate - offenders involved in elaborate and sophisticated scheme using phantom companies - avoidance of tax and exploitation of workers - sentencing principles applicable to money laundering offences and finance reporting offences - importance of general deterrence - offences involved significant degree of social harm - objectively serious s.400.4(2) offence - objectively serious s.31(1) offence - subjective circumstances of offenders not to outweigh need for sentences reflecting objective seriousness of offences and strong element of general deterrence - significant sentence of full-time imprisonment required in each case - sentences held to be manifestly inadequate - offenders resentenced

SUCCESSION - family provision- adequacy of provision - Plaintiff - de facto spouse of the deceased for 11 years - Plaintiff and deceased engaged in drug use - Estate left to the three adult children of deceased - Plaintiff continued to engage in drug use after death of deceased - large estate - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for proper maintenance and advancement in life - provision to be made for Plaintiff

SUMMARY JUDGMENT - Guarantee

SUMMARY JUDGMENT - STAY OF PROCEEDINGS

SUCCESSION – family provision – claim by daughter of deceased – estate fully distributed to defendant – application under Family Provision Act, s 16 for extension of time to apply for provision out of estate – ascertaining whether there is sufficient cause for application being made out of time – whether defendant will suffer any relevant prejudice by the plaintiff’s delay - SUCCESSION – family provision – whether order should be made designating property of defendant as notional estate – consideration of matters in Family Provision Act, ss 27 and 27 – meaning of “other special circumstances” justifying order – determination of amount of provision to be ordered

PRACTICE AND PROCEDURE - forum non conveniens - subject matter of proceedings already subject of proceedings in England where judgment was obtained in plaintiff's favour - whether proceedings in New South Wales would cause hardship - New South Wales Supreme Court appropriate venue - no hardship to defendant.

DEFAMATION – actions for defamation – pleading – defence – contextual truth – pleading back – whether s 26 Defamation Act 2005 allows defendants, as part of contextual truth defence, to rely on imputations pleaded by the plaintiff – form of imputations - STATUTES – Acts of Parliament – interpretation – consideration of extrinsic materials – intention of legislature – purposive approach – construction that promotes the purpose or object of s 26 does not change the result arising from the words of the section – words to be given literal and grammatical meaning – language of s 26 does not permit defendants to plead back – result diminishes the value of s 26 defence – statutory reform proposed

CORPORATIONS - winding up - application for winding up order based on alleged insolvency - plaintiff seeks to rely on presumption of insolvency arising from non-compliance with statutory demand - defendant seeks declaration that demand not served - PROCEDURE - service - service by post - need for proof of various acts culminating in depositing of addressed and stamped or franked envelope into the post - only evidence is that identified document "was forwarded by mail to the defendant" - hearsay - no evidence of acts of deponent - no evidence of existence, addressing or stamping of any envelope - no evidence of deposit into post

EQUITY – SUCCESSION – Family provision – eligible person – whether testator failed to make adequate provision for the Plaintiff having regard to the Plaintiff’s circumstances.

INSURANCE – General insurance – Indemnity insurance – Whether Farm Liability policy responds to liability for injury suffered by paying recreational shooters temporarily residing on the farm property – Whether the activity of receiving and accommodating recreational shooters for payment is part of, incidental to, or a business separate from the business of a “cropping farm” – Whether exclusion in Personal Legal Liability policy applies – Relevant indicia to a separate and distinct business – Activity a necessary part of farm business. - INSURANCE– General insurance – Double insurance – Contribution.

APPEAL- statutory appeal to District Court- role of judge on merit review of decision of trustee- whether primary judge failed to take into account relevant consideration of "the best interests of appellant" and the absence of prejudice to other beneficiaries- whether duty of trustee to exercise discretion favourably to applicant- District Court Act 1973, s 142J- consideration of "the best interests of appellant" and the absence of prejudice to other beneficiaries- whether duty of trustee to exercise discretion favourably to applicant. SUPERANNUATION- police superannuation- Police Regulation (Superannuation) Act 1906 s 9A(4)- backdating of superannuation allowance to date of retirement-application made some 20 years after date of resignation- whether primary judge took into account irrelevant considerations or disregarded relevant considerations. WORDS AND PHRASES- "proper, genuine and realistic consideration"- "real merits and justice of the case".

PRACTICE - rate of interest payable on judgment debt - interrelationship of covenant in lease to pay interest on unpaid rent and of statutory provision for interest on judgment debts

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

CONTRACTS - claims by mortgagee for possession of land and monetary judgment following mortgage default - applications for summary judgment - borrowers seek to rely upon Contracts Review Act 1980 - whether Act has application - s.6(2) Contracts Review Act 1980 - business loans for restaurant and shop premises owned by borrowers and leased for commercial purposes - mortgages taken over shop premises as security for loan - whether loan agreements and mortgages were entered into in the course of or for the purpose of a trade, business or profession - borrowers carried on business of owning and leasing a portfolio of investment properties for commercial purposes - held that s.6(2) applied to exclude Contracts Review Act 1980 - summary judgment granted

Family Provision. Claim by two children left out of deceased's will. One disabled daughter received whole estate. Orders for modest legacies for the plaintiffs.

EQUITY – SUCCESSION – Family provision – eligible person – whether testator failed to make adequate provision for the Plaintiff having regard to the Plaintiff’s circumstances.

Corporations - constitution and replaceable rules - types of companies - construction of constitution - company incorporated for multiple occupancy living in a rural environment - dispute about members right to use common property for the grazing of cattle - constitution does not grant a member the right to graze cattle on common property - consideration of application of Agricultural Tenancies Act 1990 - Act does not apply.

CRIMINAL LAW - appeal - appeal against conviction - sexual intercourse without consent - whether the trial judge failed to adequately identify the acts constituting count 1 - whether the trial judge failed to direct the jury that they should scrutinise the evidence with great care in relation to uncharged incidents and uncorroborated evidence - leave to appeal granted - appeal upheld - CRIMINAL LAW - appeal against sentence - common assault - whether sentence imposed manifestly excessive - preferable for appeal to be dealt within appeal proceedings brought in relation to other convictions in respect of same victim - leave to appeal refused - - CRIMINAL LAW - varying commencement dates of other sentences - s 59 Crimes (Sentencing Procedure) Act 1999 - commencement dates of other sentences varied - CRIMINAL LAW - sentences - lapse of time since offence committed - application of sentencing law and practice at date of offence

CRIMINAL LAW - application for leave to appeal against sentence - ongoing supply of methylamphetamine - Form 1 matters - sentence accumulated upon sentence following revocation of s 12 bond - error in manner in which head sentence arrived at - special circumstances arising from accumulation

PROMISSORY ESTOPPEL - commercial parties - formal contract - inherent probabilities - commercial reality - caution required - PROMISSORY ESTOPPEL - no assumption found - alternatively assumption unreasonable - PROMISSORY ESTOPPEL - relevance of terms of contractual relationship - PROMISSORY ESTOPPEL - necessity for clear and unambiguous conduct - reliance unreasonable - EVIDENCE - conversations - reconstruction - unreliable - no corroboration - principles in Watson v Foxman (1995) 49 NSWLR 315 at 319 - CONTRACT - loan agreement - default interest - ELECTION - no inconsistent rights

CRIMINAL ASSETS – Commonwealth legislation – Confiscation of criminal proceeds – Application for forfeiture of property – First defendant imprisoned in China for Chinese offence of smuggling common goods – Second defendant is the presently registered proprietor of the relevant property in Australia – Whether sufficient evidence to establish that the property is proceeds of crime – Whether sufficient evidence that the proved conduct in China would, if it had occurred in Australia, have constituted an indictable offence – Application for forfeiture dismissed.

Motor Accidents Compensation Act - assessment of claim under Part 4.4 - Guidelines - claims assessor's research into medical condition without notice to parties - whether procedural unfairness

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

CORPORATIONS - voluntary administration - meeting of creditors - party with unliquidated equitable claim - whether creditor for voting purposes - need for "just estimate" of amount of claim - where the party's assertion of right to recover is contradicted by solicitors' letter saying claim not maintainable - "just estimate" can be nominal only - function of chairperson in making "just estimate" - adjournment of meeting - where chairperson finds proxy invalid - whether chairperson should have adjourned meeting to give opportunity to repair proxy - no unilateral power of chairperson to adjourn - proxies - proxy purportedly given by company signed by person designated "executive manager" - chairperson given nothing to show actual authority of "executive manager" - manner of execution not attracting entitlement to make statutory assumptions - proxy correctly rejected

CONTRACT - penalty - proceedings pursuant to a loan agreement and mortgage - proceedings compromised with acknowledgment of amount owing - Plaintiff agrees to accept a lesser sum if certain conditions met - if conditions not met acknowledged debt becomes payable - indulgence by creditor - default provision not a penalty.

PROCEDURE - Notice to produce for inspection - relevance

PRACTICE AND PROCEDURE - interlocutory injunctions - serious question - whether valuation certificate is conclusive of value of property under loan agreement and mortgages - balance of convenience

CONTRACT – guarantee – consideration – guarantee contained in multiparty development finance agreement – where third defendant one of a number of guarantors – recital records that at the request of the borrower and the guarantors the lender has agreed to provide the facility to the borrower – sufficient consideration disclosed

COMMERCIAL ARBITRATION - question for separate determination - whether order amending earlier costs order made by arbitrator was ultra vires - whether arbitrator functus officio when amending order made - whether slip rule under s 30 of the Commercial Arbitration Act 1984 enlivened - consideration of objective intention of arbitrator when original order made - whether power of correction validly exercised - HELD - arbitrator did not have power to make original costs order and accordingly was not functus officio when second costs order adopting and amending original order was made - question posed for determination answered in negative

EQUITY - trusts and trustees - liability of trustees - deceased name at Lloyd's executors seek advice to permit distribution of estate despite existence of contingent liabilities - HELD - executors may distribute without any retention - Family Provision - approval of release under Family Provision Act s 31.

INSURANCE LAW – application for leave to commence proceedings against an insurer pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) – requirement for leave to be granted that the policy responds to the applicant’s claim against the insured – whether satisfied in the present case

CONTRACTS - unjust contracts - borrowers obtained 3 loans partly to refinance existing loan - false and misleading information provided to lender by borrowers - whether lender under obligation to advise borrowers about serviceability problems - borrowers not vulnerable persons - borrowers fully aware of their financial position - whether funds borrowed predominantly for personal, domestic or household purposes - appropriate test to be applied - whether test differs because false purposes stated by borrowers - failure of lender to obtain valid Business Purpose Declarations - whether lender engaged in asset-based lending - failure of lender to follow lending Guidelines and Banking Code strictly - failure to serve s 80 notice - whether proceedings should be dismissed for such failure.

COURTS AND JUDICIAL SYSTEM – Supreme Court Act 1970, s 69 – The Supreme Court’s supervisory jurisdiction over inferior courts and tribunals – Application for prerogative relief to Supreme Court – Effect of the Consumer, Trader and Tenancy Tribunal Act 2001 (CTTT Act), s 65 on the jurisdiction of the Supreme Court - ADMINISTRATIVE LAW – Judicial review – Orders in the nature of prerogative writs – Decision to terminate residential tenancy – Mandatory considerations for social housing premises – Power of Tribunal to order the relisting of matters in prescribed circumstances – Direction by Chairperson for constituting the Tribunal – Distinction between jurisdictional and non-jurisdictional error – Discretion for granting relief in the nature of certiorari – Appropriate avenues of appeal from Tribunal - - LANDLORD AND TENANT – Legislation protecting tenants – social housing.

TORTS - malicious prosecution - proceedings against plaintiff under Community Protection Act 1994 - whether such proceedings a basis for claim for malicious prosecution - who was prosecutor in those proceedings - whether Executive Government of NSW could be characterised as prosecutor - whether evidence of malice - whether evidence of "institutional malice" on part of Executive Government of NSW - whether proceedings under Community Protection Act 1994 brought without reasonable and probable cause - COLLATERIAL ABUSE OF PROCESS - whether Executive Government of NSW a party to proceedings under Community Protection Act 1994 - whether evidence of improper purpose in the bringing of those proceedings - FALSE IMPRISONMENT - who is liable for the tort - whether orders of superior court a nullity if Act under which orders made declared invalid by High Court.

Procedure – costs –where proceedings dismissed – where no determination on the merits - Default provision for costs in UCPR 42.20— whether to depart from ordinary position - need for reason to depart from ordinary position.

CRIMINAL LAW - sentence - manslaughter - criminal negligence - 7 week old baby - failure by father to obtain medical attention after assault by child's mother - plea of guilty

CORPORATIONS – application to set aside statutory demand – whether originating process and supporting affidavit served in time – where statutory demand specified address for service – whether personal service required – whether plaintiff has genuine offsetting claim – no facts asserted with sufficient particularity to enable court to determine whether genuine claim – whether ‘some other reason’ to set aside statutory demand under s 459J – plaintiff unable to establish that seriously arguable that default judgment giving rise to debt should be set aside and quantifiable amount of debt in dispute

REAL PROPERTY – loan agreement –mortgage and guarantee – variation of loan agreement – whether subsequent agreement was a variation of existing agreement or supplanted and replaced earlier agreement – transfer of mortgage – whether secured debt also assigned – notice of assignment of agreement – s 12 Conveyancing Act - GUARANTEE AND INDEMNITY – action against surety – whether guarantee assigned with principal debt – whether notice of assignment given to mortgagor, notices given under s 12 Conveyancing Act are sufficient evidence of assignment - MORTGAGES – mortgage contract – rights and liabilities of mortgagor and mortgagee – remedies of mortgagee

REAL PROPERTY - proceedings for possession - second mortgage originally unregistered - earlier proceedings for possession unsuccessful - further proceedings after mortgage registered - issues of res judicata, issue estoppel, Anshun estoppel - whether s 60, Real Property Act directed only to registered interests

CORPORATIONS - winding up - creditors voluntary winding up - liquidator's remuneration - where committee of inspection fixed an initial amount - additional work done - committee of inspection makes no further determination - whether court can determine further remuneration

LANDLORD AND TENANT - whether tenant has restitutionary claim against landlord for expenditure improving land - whether tenant liable to reimburse landlord for rates - whether original findings on applicastion of Conveyancing Act s 129(1) require re-assessment - PROCEDURE - findings announced by court - submissions sought as to any further matters requiring attention - whether court should determine further matters not affecting outcome - whether court should re-visit existing findings

TAXES AND DUTIES - Stamp Duties - transfer of land from retiring to new trustee of a unit trust - both trustees within the same corporate group of companies - corporate reconstruction exemption in the Duties Act 1997, s 281 contains a provision that a corporation includes a unit trust scheme - whether that means that the trustee is part of the unit trust scheme that is to be treated as if it were a separate legal entity - s 54(3) deals with transfers of property following the retirement or appointment of a trustee - whether a code - if the provision does not apply s 54(3) provides that the transfer is chargeable with the same duty as transfer to a beneficiary - whether s 281 applies on that account

BUILDING AND ENGINEERING CONTRACTS – challenge to adjudication determination – where plaintiff contended that adjudicator did not consider its submissions and documentation in support of its payment schedule – whether adjudicator considered plaintiff’s submission that defendant’s claim was a global claim – whether adjudicator “considered” payment schedule, expert report and statutory declarations – where conclusions given without reasons – whether denial of natural justice – whether failure to exercise statutory functions in good faith – content of good faith requirement – content of obligation to consider – whether adjudication determination void – Building and Construction Industry Security of Payment Act 1999.

PRACTICE AND PROCEDURE - Application for variation of orders - whether there is a material change in circumstances or discovery of new material

CONTRACTS - general contractual principles - discharge, breach and defences to action for breach - repudiation - both parties purport to terminate contract - which party in default of contractual obligations. APPEAL - from Local Court - correct result but for reasons involving error of law - leave to appeal in respect of costs orders in the Local Court.

APPEAL - from Local Court - obligation to provide adequate reasons - motor vehicle accident - each party alleging negligence in the other - failure of Magistrate to make necessary factual findings - failure to provide adequate reasons. EVIDENCE - expert evidence - requirements of Expert Witness Code for proper expression of opinion - need to show reasons for opinion - matters remitted to Local Court for hearing by another Magistrate.