Cases and authorities

EQUITY - succession - family provision - eligible person - close personal relationship between the plaintiff and the testator found - plaintiff an eligible person under Family Provision Act - provision made for plaintiff in her lifetime inadequate for her proper maintenance, education and advancement in life - relief claimed by plaintiff would place estate in financial deficit - real financial need of beneficiaries - legacy provided for out of estate.

INTERLOCUTORY APPLICATION – application for injunction to restrain second defendant from entering into rail transportation agreement with railway operator – where plaintiff minority shareholder and second defendant majority shareholder – whether making of proposed contract would be oppressive or involve breach of fiduciary duties of common directors – balance of convenience – application dismissed – no question of principle.

DEFAMATION – actions for defamation – pleading – whether proposed amended statement of claim defective – leave granted to file amended statement of claim

PROCEDURE - amendment - application to amend on fourth day of hearing to add new count of breach of statutory duty - existing claim pleaded common law negligence only - alleged mistake by lawyers in relation to applicability of statute and regulations - proceedings on foot for 6 years - 2 previous amendments to Statement of Claim - prejudice to Defendants and Cross-Defendants - case management principles - application refused.

CRIMINAL LAW AND PROCEDURE - Sentence - Manslaughter - Plea of guilty accepted in satisfaction of indictment for murder - Unlawful and dangerous act - Particular facts - No special point of principle

CRIMINAL LAW – particular offences – property offences – break, enter and steal in company – knowingly deal in the proceeds of crime – other offences - CRIMINAL LAW – appeal against severity of sentence – parity with sentence imposed on co-offender – extent of accumulation of sentences – totality – leave to appeal granted, appeal dismissed

EVIDENCE – Charge of aggravated sexual intercourse with a minor – Offence alleged to have occurred at night after the accused had driven the complainant and another boy to a friend’s house – Evidence that the accused had masturbated in the car while driving the boys to the friend’s house – Whether admissible as res gestae or as evidence of the accused’s state of mind. - CRIMINAL LAW – Appeal against conviction – Alleged errors in directions – Points not taken at trial – Whether verdict unreasonable.

CRIMINAL LAW - Appeal agains sentence- offences under s 36(1) Firearms Act 1996 and s93GA(1) Crimes Act 1900 - whether Judge erred in assessment of objective gravity of offences - whether motive for commission of offences reduced offender's moral culpability - whether disparity of sentence with co-offender - whether sentence manifestly excessive.

CRIMINAL LAW – particular offences – offences against the person – enter dwelling with intent to commit a serious indictable offence in circumstances of aggravation – assault occasioning actual bodily harm - CRIMINAL LAW – appeal against severity of sentence – voluntary disclosure of offence – amelioration of effect of offence – remorse – prospects of rehabilitation – failure to set non-parole period – fixed term representing non-parole period – parity with co-offender dealt with in juvenile jurisdiction – proportionality – less severe sentence warranted in law – appeal allowed, sentences quashed, applicant re-sentenced and released forthwith

CRIMINAL LAW - appeal against conviction - sexual assault and larceny - verdicts unreasonable or cannot be supported - no question of principle

ADMINISTRATIVE LAW – judicial review – procedural fairness – legal test applied below rejected – failure to afford appellant the opportunity to address the Appeal Panel on the basis of the preferred test – whether Appeal Panel entitled to apply test itself - APPEAL – civil – error of law by Administrative Decisions Tribunal – appeal to Appeal Panel – erroneous decision below not set aside – Administrative Decisions Tribunal Act 1997 (NSW) ss 113, 114 - PROCEDURE – statutory appeal limited to question of law – Court’s power to order costs of proceedings before Tribunal – whether power extends to the making of costs order even if no order for costs were asked for or made by Tribunal – Administrative Decisions Tribunal Act 1997 (NSW) s 120 - PROCEDURE – costs – no costs regime – exceptions only if Tribunal "satisfied" an award of costs "fair" – whether exception engaged - WORDS AND PHRASES – "such orders as it thinks appropriate in light of its decision" – "nature and complexity of proceedings"

TRUSTS – FRAUD – PERJURY – Whether Plaintiffs’ consent to establishment of trust under control of Defendant procured by Defendant’s misrepresentation – whether Defendant fabricated evidence in support of his case.

CRIMINAL LAW - sentence - manslaughter - abnormality of mind - congenital adrenal hyperplasia - non-compliance with medication

PROBATE - Revoking grant of probate - Plaintiff and Defendant originally granted probate - Removal of Defendant executor - Grant of probate to Plaintiff alone - Statements by Deceased that Defendant held $100,000 cash on behalf of Deceased - Declaration that Defendant indebted to estate.

REAL PROPERTY - claim for compensation out of Torrens Assurance Fund - whether discharge of mortgage registered under the Act was forged - whether plaintiff was complicit in forgery or consented to discharge - whether loss caused by alleged forgery - whether loss a consequence of plaintiff’s own acts or omissions - whether plaintiff mitigated loss - HELD - discharge of mortgage not forged - plaintiff’s loss of interest in land was not a consequence of fraud - no entitlement to compensation

Customs prosecutions - whether offences proved - elements of offences governed by parts of the Criminal Code - defence of mistake of fact.

COSTS - order for security for costs - appeal from judgment refusing to lift stay of proceedings - whether leave should be granted to extend the time for bringing appeal under Pt 49 r 8 UCPR - whether Associate Justice erred in exercise of discretion to refuse to lift stay - whether error disclosed by considering weight to be given to personal undertakings in accordance with Epping Plaza Fresh Fruit and Vegetables Pty Ltd v Bevendale Pty Ltd - whether sufficient weight given to whether public interest was affected by a determination of the facts in issue in substantive proceedings to justify lifting stay

ADMINISTRATIVE LAW - Workers Injury Management and Workers Compensation Act 1998, s328(3) - discretionary admission by Appeal Panel of fresh evidence.

PRACTICE & PROCEDURE – summary dismissal and strike out – UCPR 13.4 and 14.28 – whether triable issue or absolutely hopeless – whether pleadings disclose a reasonable cause of action, have a tendency to cause prejudice, embarrassment or delay – statement of claim struck out – plaintiff given leave to replead

PRACTICE AND PROCEDURE - Amendment to Statement of Claim - claims by plaintiffs on facts with general similarities to Heperu v Perpetual Trustees [2009] NSWCA - applications to amend to recast claims and add new claims - extensive consideration of proposed amendmenets led to decision to allow some and not others - plaintiffs to make further redraft

TRUSTS AND TRUSTEES - liability of trustees - Chapman (plaintiff's grandfather) left half his estate to Chapman Trust to provide his daughter Mrs Nisbet with income for life remainder to her descendents - Chapman died in 1937, Mrs Nisbet became one of the trustees in 1953, sole trustee after deaths of others in 1960 and died in 2008 - Mr Antill her only child succeeded in remainder - challenge to Mrs Nisbet's investments and conduct of trust affairs - loans to herself were misappropriations - Mrs Nisbet acknowledged in 1983 that the assets were in her house - consideration of sufficiency of writing under s 23C of Conveyancing Act - her house was found to be subject to the trust and its proceeds were traced into second house which she bought in 1995 after selling earlier house - HELD that Mr Antill as remainderman was equitable owner of second house - Extensive consideration of facts

SECURITY FOR COSTS - Plaintiffs' case - whether with merit - consideration of strength of case - whether good faith - impecuniosity - real estate security available

PREROGATIVE WRITS – PARENS PATRIAE JURISDICTION – Whether extraordinary circumstances existed warranting Court’s interference with proceedings in District Court under Children and Young Persons (Care and Protection) Act 1998 (NSW).

VENDOR AND PURCHASER - contract for sale of real property contained non-standard Special Condition 43 which conferred right of rescission on each party if final approval of finance not obtained by 30 June - Special Condition 42 conferred right of rescission on Purchaser if development consent not obtained by 31 July - on 31 July when neither finance approval nor development consent had been obtained the parties agreed to alter Special Condition 42 by extending time - Development consent was given on 12 September, finance approval was refused on 29 October. Parties made several agreements extending time for completion and time was of the essence for 5 pm on 31 October - Purchaser rescinded at 2.26 pm, Vendors terminated at 5.20 pm. It was contended that right of rescission under Special Condition 43 had been lost by election, waiver, estoppel, etc - On consideration of facts in detail, there was no election. Discussion of construction of Special Conditions. Decision on own facts.

PRACTICE AND PROCEDURE - representative proceedings - whether and how a representative plaintiff can be substituted

FREEZING ORDERS – EX PARTE APPLICATION – Whether full and frank disclosure made in ex parte application – whether freezing orders should be discharged and new interlocutory application refused.

PRACTICE and PROCEDURE - evidence - expert's report - whether opinions supported by evidence - whether report admissable

NEGLIGENCE - Limited issue remitted by Court of Appeal - Medical practitioners - Reading of mammograms in breastscreening operation - Whether patient should have been recalled for investigation in particular circumstances - Conflict of expert opinion to be resolved

PROCEDURE - Application to re-open appeal - What directions appropriate.

PROCEDURE – multiple claims including baseless allegations of contempt – indemnity costs orders imposed – prohibition on bringing further proceedings until costs paid and leave granted – PROPERTY – whether exchange between counsel and bench in previous proceedings amounted to the granting of a mortgage or charge – whether alienation of property under s 37A of the Conveyancing Act 1919

CORPORATIONS - voluntary administration - second meeting of creditors - application for order extending convening period - two steps required to convene - one but not the other already taken - whether convening period may be extended

CORPORATIONS – charges of contempt in respect of orders made under s 1323 of Corporations Act in the nature of Mareva orders – application to strike out charges of contempt – whether impugned charges are so clearly untenable that could not possibly succeed – construction of orders – whether person charged dealt with assets by using credit card to pay for services – no evidence of circumstances in which orders were made which may bear on construction of orders

PROCEDURE - access to court file - access denied - public interest immunity found to justify the withholding information in court file from disclosure - non disclosure justified on basis of denial of useful information to criminals about police enquiries or which would impede those enquiries - restriction on publication on the basis that it is necessary to assist in the investigation and detection of crime - proper basis for making a non-publication order over Court file - access denied notwithstanding the Court's file records what happened in open court - extremely rare case - subject matter of the proceedings woven into fabric of current police investigation

APPEAL - from Local Court - need to show error of law - what amounts to an error of law - findings of primary fact - no evidence to support findings - inferences which cannot reasonably be drawn from evidence - claim for debt - agreement to offset supply of products - whether products supplied referable to the debt or to new contract.

PRACTICE AND PROCEDURE - declaratory relief - cross-vested proceedings - costs assessment - construction of s 353(1) Legal Profession Act - whether general rule of statutory construction applies - whether section applies to order for costs by District Court of South Australia - whether sufficient connection when legal work carried out in New South Wales - whether full faith and credit should be given to judgment of Master of District Court of South Australia - whether proceedings should be finalised

PRIVATE INTERNATIONAL LAW - stay of proceedings - generally - where proceedings in New South Wales and China involving one of the plaintiffs and another defendant

SUCCESSION – Family provision and maintenance – Enforcement of orders – Estate distributed by executor prior to order being made – Estate retained probably insufficient for costs – Beneficiary seeks remedies – What remedy available – What order should be made.

PROCEDURE - courts and judges generally - disqualification for apprehended bias - alleged contempt of court - findings as to alleged contemnor's probity made on an earlier occasion

LEASES – CONSTRUCTION – RELIEF AGAINST FORFEITURE – COSTS – Whether demand for rent and outgoings given so as to justify termination – whether, despite long history of default by lessee, relief against forfeiture should be granted – whether lessee should pay lessor’s costs on indemnity basis.

CONTRACT - agency - whether defendant personally liable under contract entered into on behalf of unidentified team

LEGAL PRACTITIONERS - application to restrain solicitor from acting against former client based on court’s inherent jurisdiction over solicitors - principles upon which a solicitor will be restrained from acting against a former client - solicitor previously acted for company and received instructions from sole director - director removed from company and solicitor’s retainer terminated - solicitor then commenced to act for former director against company in respect of same claim as that to which solicitor had previously acted for company - HELD - a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required that the solicitor be prevented from so acting - solicitor restrained from acting against former client

GUARANTEE AND INDEMNITY - rights of surety - against creditor - creditor claims against guarantors for shortfall after sale of debtor's property - agreement between creditor and surety to enter consent judgment if shortfall - alleged implied terms in agreement to obtain the best price - application by guarantors to file cross-claim to prevent entry of consent judgment - whether terms implied - whether provisions of guarantee require payment by guarantors before claim can be made against creditor - duty under s 420A Corporations Act 2001 - whether provides a remedy. MORTGAGES - remedies of the mortgagee - exercise of power of sale - nature of duty owed to surety.

CORPORATIONS - deregistered company - application for order directing reinstatement - whether applicant a person aggrieved - whether just that reinstatement occur - where applicant has claim by subrogation against deregistered company - holding company says that criteria for reinstatement not satisfied because such claim statute barred - uncertainty on limitation issue - can only be decided on full inquiry - such inquiry not appropriate on this application - reinstatement ordered - observations on resort to "voluntary" deregistration

PROCEDURE - application for vexatious proceedings order under Part 2 of the Vexatious Proceedings Act 2008

PROCEDURE - civil - appeal from order setting aside service on defendant - whether interlocutory - requirement for leave - Supreme Court Act 1970 (NSW), s 101(2)(e) - PROCEDURE - civil - application for leave to appeal and appeal - concurrent hearings - criteria of cost, delay, likelihood of significant saving in hearing time - likelihood of refusal of leave - Uniform Civil Procedure Rules 2005 (NSW), r 51.14(1)(b)

EQUITY - trusts and trustees - charitable trust - plaintiff's property acquisition funded by public appeal - plaintiff claims to be absolute owner of property - Attorney-General alleges property held on trust for charitable purposes - issues as to whether plaintiff operating properly within charitable purposes - HELD - property held on trust for charitable purposes - scope of charitable purposes defined

CORPORATIONS - winding up - statutory demand - application for order setting aside - defendant does not dispute existence or amount of debt - only ground advanced is desire to have time to raise money to pay debt - not an available ground

ORDERS - final orders in lengthy reference process - whether judgment should be entered on cross-claim for contribution - COSTS - numerous events in respect of which costs should follow - apportionment of costs in the circumstances