Cases and authorities

APPEAL - interlocutory orders - leave to appeal - orders granting prosecutor adjournment of hearing, leave to call evidence by videolink - Criminal Appeal Act 1912 s 5F - APPEAL - interlocutory orders - leave to appeal refused – application for costs - Criminal Appeal Act 1912 , s 17 - CRIMINAL LAW - appeal - leave to appeal - District Court appeal hearing - conviction in Local Court - offences under s 178BB Crimes Act 1900 - challenge to interlocutory orders

CRIMINAL LAW - armed robbery with offensive weapon - circumstantial evidence - Shepherd direction - Shepherd direction not required - CRIMINAL LAW - armed robbery with offensive weapon - conviction appeal - miscarriage of justice - criticism by trial judge to the jury of counsel's submission - no miscarriage - CRIMINAL LAW - armed robbery with offensive weapon - procedural fairness - alleged failure to give counsel an opportunity to be heard on trial judge's criticism of submission - trial counsel's submission to the jury states wrong principle - counsel given opportunity to address - no denial of procedural fairness - CRIMINAL LAW - armed robbery with offensive weapon - conviction appeal - procedural fairness - alleged failure to give counsel opportunity to address trial judge when trial judge had directed the jury that counsel's submission was wrong - CRIMINAL LAW - armed robbery with offensive weapon - conviction appeal - apprehended bias - apprehended bias not made out - CRIMINAL LAW - armed robbery with offensive weapon - evidence - alleged wrongful admission of evidence - evidence properly admitted

CRIMINAL LAW - Sentence - take and use vehicles and traffic offences - whether offences in most serious category - whether sentences manifestly excessive in total

CRIMINAL LAW - determination of objective seriousness for child pornography offences - objective seriousness of sexual offences against a young person - level of consideration required of general deterrence in sentencing process for offences - whether sentencing judge erred in giving too much weight to subjective case of respondent - whether sentences imposed was manifestly inadequate

CRIMINAL LAW - Appeal - Evidence - whether evidence of admission recorded on ICV admissible - whether proviso should be applied

CORPORATIONS - oppression - compulsory purchase order - basis of valuation of hotels

REAL PROPERTY - co-ownership - statutory trust for sale - discretion of Court to refuse order - alleged agreement which would deprive Plaintiff from prima facie right to relief - proprietary estoppel - unconscionable conduct.

PRACTICE & PROCEDURE – freezing orders – UCPR 25.11 – where first defendant received gift of $3.9M from the plaintiff's wife – first defendant purchased property for $1.345M in name of second defendant using part of the funds - where first defendant sole shareholder and director of second defendant - where plaintiff alleges defendants likely to dissipate assets if not restrained– where no evidence of past or likely future dissipation – whether sufficient evidence of danger of dissipation of assets to warrant continuation of ex parte injunctions - whether failure by defendants to undertake not to dispose of assets gives rise to any inference adverse to them – interim injunction discharged.

CORPORATIONS - deregistered company - application for order directing reinstatement of registration - where plaintiff wishes to proceed against company in District Court - whether insurance responsive so as to remove need for reinstatement - whether limitation defences would defeat plaintiff - appropriate to reinstate where arguable case maintainable

CORPORATIONS - winding up - creditors voluntary winding up - remuneration of liquidator - power of committee of inspection to fix remuneration - where committee does not act - procedures of committee - requirement that committee act through meeting - where meeting made no decision and supposedly "adjourned" while liquidator sought individual approvals of remuneration from committee members - power to adjourn "from time to time" - no permitted procedure contemplates what was actually done - individual approvals did not in any event "fix" remuneration - no legal basis for payment received by liquidator - application to validate actions - where ASIC conducting "review" of liquidator's remuneration - where application for order removing liquidator pending - ASIC to be given notice of proceedings - proceedings adjourned

EQUITY - general principles - unjust enrichment - second plaintiff paid workers compensation settlement to defendant without deducting monies owed to the Commonwealth - Centrelink had issued a Recovery Notice to the second plaintiff requesting the payment of $63,603.12 before the payment to the defendant - the second plaintiff paid this sum to Centrelink after payment to defendant - now seeks restitution - mistake of fact or law made by the second plaintiff's claims officer - miscalculation of sum to be paid to the defendant - no defence to claim - judgment entered for the plaintiffs in the amount of $63,603.12 plus interest accrued up to judgment

TORTS – conversion and detinue – where defendant was in possession of a substantial number of the plaintiffs’ pallets – whether demands made on defendant for return of pallets – whether defendant failed to comply – whether defendant is liable for conversion or detinue – whether plaintiffs had a right to immediate possession of pallets – whether the defendant had implied licence to use pallets - whether plaintiffs estopped from contending that any wrong was committed by the defendant by acquiescing in any holding and use of pallets by the defendant. - DAMAGES – whether loss suffered – proper measure of damages for any conversion or detinue – quantum of damages.

ADMINISTRATIVE LAW – Supreme Court Act 1970 s 69 – order in nature of certiorari – plaintiff of South Indian racial background – where plaintiff alleged workplace injury affecting lung function – where plaintiff relied on scientific evidence to suggest she was racially predisposed to reduced lung capacity – where evidence not referred to in Appeal Panel's reasons - whether Appeal Panel constituted under the Workplace Injury Management of Workers Compensation Act 1998 failed to take into account a mandatory consideration in assessment of degree of plaintiff's whole person impairment – summons dismissed.

CONTRACT – determination of separate question – employment contract terminated – whether “ceases” employment includes termination by employer - CONTRACT – determination of separate question – employment contract terminated – whether employee entitled to retained profits and unvested options in circumstances where employment is terminated by employer - CONTRACT – employment contract – strike-out application – Contracts Review Act 1980 (NSW), s 6(2) – restrictions on grant of relief – whether “trade, business or profession” includes a reference to the trade, business or profession of an employee - CONTRACT – employment contract – strike-out application – Contracts Review Act 1980 (NSW) – Workplace Relations Act 1996, s 16 – Workplace Relations Regulations 2006, r 1.4 – whether s 16 and r 1.4 operate to exclude an employment contract claim under the Contracts Review Act - CONTRACT – employment contract – strike-out application – Contracts Review Act 1980 (NSW) – Workplace Relations Act 1996, ss 13 & 16 – governing law of employment contract – whether s 16 has extraterritorial effect.

SENTENCING — manslaughter — excessive self-defence — substantial impairment by abnormality of mind

Existence of partnership - Unusual signed partnership agreement - Family patriarch conducting partnership business (or businesses) as if it (they) was (were) his own and controlling all aspects - Numerous disputed questions of fact and law and subsidiary issues - Substantial cash businesses (grocery and butchery) - Non-disclosure of full partnership income to ATO - Evasion of tax - Patriarch determining what should be disclosed to tax agents and ATO and paying tax of all parties except first plaintiff - Non-distribution of partnership profits to partners although distributions shown in tax returns of partnership businesses and returns of partners - Splitting of income amongst partners - Partnership funds used to acquire properties in patriarch’s name - Patriarch putting Queen Street property purchased in 1988 in his name and names of his children - Children not contributing to cost - Children (all adults) holding property as to their shares upon a bare trust - Not established that Haig Street property purchased wholly out of partnership funds but use of income from rental properties at Wiley Park and Fairfield and possible use of patriarch’s cash resources - Whether bare trust created as to one-third shares of Sunly and Gordon in Haig Street property - Both sons being minors when trust created, not contributing any funds to purchase and would transfer their interests in that property to their father upon his request - Whether partnership agreement created an express trust - Whether personal equities created in favour of plaintiffs - Whether Margaret (daughter) had a one-fifth (or a one-sixth) share in Maroubra Road property - Ownership of property (cash) in commercial bill - Whether it belonged to KST or Margaret - Sale by KST of YS butchery prior to 30 June 1986 and no adequate accounting for proceeds of sale - Defences of Indefeasibility of Title under the Real Property Act 1900 (NSW) fail - Defences under Limitation Act 1969, defences of laches, gross laches, acquiescence and estoppel fail - Plaintiffs not aware of full facts until size of KST’s estate and the property assets standing in his name revealed in about November 2001 - Proceedings instituted in November 2005

DEFAMATION - statements amounting to defamation - particular statements - whether a mere statement that a person has been charged with criminal offences coupled with further information is capable of imputing guilt - whether imputation is bad in form and not capable of being conveyed

COSTS - security for costs - corporate and individual plaintiff and co-plaintiff impecunious - meaning of impecuniosity - COSTS - security for costs - appeal - Corporations Act 2001 (Cth), s 1335 - COSTS - security for costs - co-plaintiff offers undertaking to be responsible for costs of applicant - party offering to guarantee costs impecunious - relevant principles - COSTS - security for costs - case of individual co-plaintiff not co-extensive with case of corporate plaintiff

CORPORATIONS - winding up - winding up in insolvency - statutory demand - application for order setting aside - offsetting claim alleged - extent to which such claim must be quantified in supporting affidavit as distinct from any subsequent affidavit - where subsequent quantification less than amount of statutory demand

COSTS – determination of costs of proceedings – application for indemnity costs under Uniform Civil Procedure Rules, r 42.8 of disputing facts in notice to admit facts – whether court should make contrary order under r 42.8 – whether disputing party liable for costs if in a position to make informed assessment about whether facts should remain in dispute after 14 days - COSTS – release of security for costs – costs not yet assessed but will exceed security – release ordered

Contracts. Building, engineering and related contracts. Progress claims under the Building and Construction Industry Security of Payment Act 1999 - Claim that later claim was an abuse as it reagitated matters the subject of earlier claims. - No adjudication of earlier claims. - Held in the circumstances no abuse. - Proceedings dismissed.

CORPORATIONS - winding up - winding up by the court - various applications by liquidators contemplating pursuit and funding of litigation - powers of liquidators to provide litigation funding - various heads of power discussed - what is "necessary" for winding up the affairs of the company - where same persons liquidators of funding and funded companies - conflict of duties - to whom liquidators duties owed in winding up by the court - inherent power of court to authorise what would otherwise be breach of duty - need for attention to separate interests of respective companies - statutory constraint upon a person's acting as liquidator of a company if the person is an officer of a mortgagee of the company - where litigation funding arrangements involve granting of mortgage - construction of the statutory provision

Evidence - statutory exceptions to hearsay rule in civil proceedings - whether person who made representation not available to give evidence about asserted fact - whether it would cause undue expense or undue delay or would not be reasonably practicable to call person who made the representation to give evidence - general statutory discretion to exclude evidence: whether probative value of evidence substantially outweighed by danger that it might be unfairly prejudicial to a party.

CORPORATIONS - winding up - winding up by the court - winding up of insurance company where Commonwealth insurance law makes assets in Australia primarily applicable to meet liabilities in Australia - scheme of arrangement binding on liquidator, creditors and contributories contains provision in like terms - meaning of "assets in Australia" - where company in liquidation enters into litigation funding agreement as funder - money being "assets in Australia" expended in providing funding thereunder - where agreement provided in certain eventuality for payment to company of sum outlaid, interest thereon and a share of net proceeds of litigation - whether third of these elements is part of "assets in Australia" - postulated concept of "new value"

PROCEDURE - costs - indemnity costs - compromise on basis that defendants pay plaintiff's costs - application by plaintiff for order that such costs be assessed on the indemnity basis - plaintiff says that defendants should have recognised the hopelessness of their case - conclusion on "relevant delinquency" available only by full assessment of the facts - not appropriate to try now hypothetical case merely to decide question of costs

CORPORATIONS - winding up - statutory demand - application for order setting aside - genuine dispute alleged - court not called upon to resolve matters in dispute

Requirement to provide blood and urine samples for analysis - whether person so required may choose to provide either and not the other.

PROCEDURE – Application seeking leave to rely upon lay evidence – whether Court will grant leave to rely upon further evidence despite earlier orders of the Court directing that no further evidence be filed on behalf of the Plaintiff – whether new material has emerged and whether the justice of the case supports the granting of leave to rely upon further evidence.

CRIMINAL LAW - sentence - offender convicted of manslaughter following trial for murder - excessive self-defence - offender's early offer to plead guilty to manslaughter rejected by Crown

PARTITION - sale of co-owned land under Conveyancing Act 1919 - disposition of proceeds - parties bought house property in partnership or joint venture to renovate, resell and share profits - project reached stalemate because of disputes, Public Trustee appointed under s 66G, sold land, paid mortgage and charges and produced small surplus – decision on entitlements to distribution according to oral terms of joint venture - on the facts, there were no profits, two members were entitled to their expenditures, the fund was not sufficient to repay them and the available money was distributed pro rata. Decision on facts.

CRIMINAL LAW – offences against the person – kidnapping – aggravated offence - CRIMINAL LAW – appeal and new trial – verdict unreasonable or insupportable having regard to evidence – appeal dismissed - CRIMINAL LAW – appeal against sentence – grounds for interference – special circumstances – parity between co-offenders – sentence manifestly excessive – effect of sentence and imprisonment on prisoner – appeal dismissed

CRIMINAL LAW - Crown appeal - Malicious wounding with intent - plea of guilty - whether failure to assess objective seriousness - whether failure to have sufficient regard to previous record - whether discount for plea too high - whether sufficient regard to specific deterrence - whether sentence manifestly inadequate

CRIMINAL LAW - SENTENCING - Appeal against the severity of sentences imposed in District Court - aggravated detain for advantage contrary to s 86(2)(b) of the Crimes Act1900 - aggravated sexual assault contrary to ss 61I and 61J(1) of the Crimes Act - take and drive conveyance contrary to s 154A(1)(a) of the Crimes Act – - s 54A of the Crimes (Sentencing Procedure) Act 1999 – whether objective seriousness of act within mid range - R v Way [2004] NSWCCA 131 - 60 NSWLR 168 – whether sentence for aggravated kidnapping was manifestly excessive – whether three counts of aggravated sexual assault were offences of the worst type – whether approach to the calculation of sentence contrary to Markarian v R [2005] HCA 25 - 228 CLR 357 by failing to afford sufficient weight to the applicant's subjective circumstances – whether sentence is manifestly excessive by breaching the principle of totality -

PRACTICE AND PROCEDURE- security for costs- no special circumstances- application of respondent and application of appellants re cross-appeal dismissed- no question of principle- comments as to quantum of costs in appeals. PRACTICE AND PROCEDURE- notice to produce (quasi subpoena) to produce arbitral award- court finds appellants liable as accessories for X's breach of fiduciary duties- X not a party to NSW suit- respondent sues X before London Arbitrators- suggestion that Arbitrators later found X not liable- whether relevant- significance of inconsistent verdicts- whether finding that principal not liable means nothing payable by accessories- Held legitimate forensic purpose to support notice to produce.

CRIMINAL LAW - murder - special hearing - judge alone - whether accused committed offence - if so, whether mentally ill at the time

EQUITY - equitable remedies - declarations - plaintiff seeks declaration that right of way was wrongfully extinguished - declaration proposed not in conformity with Court's reasons for decision - no utility in making alternative forms of declaration proposed - PROCEDURE - costs - costs to follow the event - plaintiff successful on motion of 29 May 2009 - first defendant otherwise successful - plaintiff pays the first defendant’s costs on the ordinary basis in respect of the proceedings other than on the motion of 29 May 2009 - misconduct of second defendant in transaction the subject of the proceedings - no order for costs between the plaintiff and the second defendant - no order for costs between the first and second defendants

EQUITY – Application by plaintiff to stay the exercise of a mortgagee’s power of sale – no basis for granting relief sought in Summons.

EQUITY – rectification – claim for monies owing under rectified convertible note

INTERLOCUTORY INJUNCTIONS – where lessee’s alleged delay in occupying leased premises caused by lessor’s not providing essential services – whether lessor should be restrained from terminating lease and calling on bank guarantee for unpaid rent – seriously arguable that lessor in breach of express term by not providing essential services – seriously arguable that lessor in breach of implied term to do all things necessary on its part to enable lessee to occupy premises and proceed with fit-out and subleases – whether lessee may have right of set-off for damages against obligation to pay rent – balance of convenience – no question of principle

SUCCESSION - Family Provision - Application for extension of time - Application by adult son

TRUSTS - order amending trust deed to empower trustee of family discretionary trust to separately identify and classify trust property and income and to vary trust deed to better manage and administer trust property.

PROCEDURE - costs - departing from the general rule - where plaintiff failed on all claims except claim for exercise of discretion in his favour - unsuccessful claims involved bulk of evidence and hearing time - appropriate to award part of costs only

LOAN - payment of money held to be made under an enforceable loan agreement between plaintiff and first defendant - first defendant ordered to repay loan amount - CONTRIBUTION - principles concerning doctrine of contribution - no right of contribution in absence of common intention between co-borrowers that second defendant be responsible for repayment - UNJUST ENRICHMENT - claims based on unjust enrichment fail - not sufficient merely to show receipt of benefit by first and second defendants - necessary to establish basis on which retention of benefit unjust - LIMITATION OF ACTIONS - date of accrual of cause of action based on a debt or unjust enrichment - existence of confirmation of debt and operation of s 54 of Limitation Act - proceedings commenced within limitation period - PLEADINGS - necessary to plead factors giving rise to claim for unjust enrichment

EQUITY - trusts and trustees - constitution and classification of trusts generally - classification of trusts in general - implied trusts - constructive trusts independent of intention - particular cases - "knowing assistance" alleged against first defendant - second limb of Barnes v Addy

Corporations Law. Application to set aside demand which was based upon a judgment debt. No application to set aside default judgment and no stay. Only matters raised were res judicata between the parties. Proceedings dismissed.

Trial procedure - offence of murder - trial by judge alone - whether "defence" of mental illness available

PROCEDURE - costs - review of registrar's decision to award commission to plaintiff/executor - first defendant's motion for review failed - costs should follow the event - not an appropriate case for the award of costs on an indemnity basis against first defendant - conduct not deliberately delinquent - to the extent that plaintiff's costs are not recovered on a party/party basis from first defendant he should be indemnified from the estate - no costs order made in favour of the first defendant - interest to accrue on the commission awarded from the time of the registrar's orders on 15 April 2009 - plaintiff entitled to deduct from any estate distributions to first defendant the amount of any assessed costs award in favour of the estate - unfairness if first defendant's late application for commission allowed to proceed

PRACTICE & PROCEDURE – Uniform Civil Procedure Rules, r 28.2 – separate decision of questions – order for decision – whether questions arising in the proceedings should be determined in advance of proceedings - PRACTICE & PROCEDURE – contract of employment – application for separate determination of questions in proceedings – whether further evidence will assist in determination of clause of contract – determination will save time and cost.

CRIMINAL LAW - Sentence - offences of child sexual assault and pornography - child aged under 10 years - whether sentences manifestly excessive in totality