Cases and authorities

CRIMINAL LAW - Sentence - offences of fraud and accessory before the fact to arson - application for leave to appeal and Crown appeal - whether sentences manifestly excessive in light of assistance by applicant - whether sentences manifestly inadequate - whether error in determining penalty for common law offence - whether error in making sentences concurrent - whether insufficient regard to matters on Form 1 - effect of delay in determining the Crown appeal

CRIMINAL LAW - Crown appeal on sentence - dangerous driving occasioning grievous bodily harm - injury to two persons resulting from the same dangerous driving - whether imprisonment for concurrent non-parole periods of 12 months served by periodic detention manifestly inadequate - need for some accumulation where two persons harmed as result of one act of dangerous driving - complete concurrency does not recognise the total criminality - periodic detention inappropriate - need to adhere to the guideline judgment in R v Whyte,

CRIMINAL LAW - Sentence - Crown appeal - offences of child sexual assault and pronography - whether sentences severally and in totality manifestly inadequate - whether judge erred in taking into account effects of protective custody - whether error in application of discount for guilty pleas - whether established pattern of sentencing for child sexual assault offences in 1970s - whether error in failing to accumulate some sentences - whether error in finding facts

CRIMINAL LAW - Crown appeal on sentence - offence of applying corrosive fluid with intent to burn under s.47 Crimes Act 1900 - acid attack - offender subject to bond and suspended sentence - objective seriousness of offence - manifestly inadequate sentence - relevance of Crown approach in District Court - whether Court should decline to resentence on discretionary grounds - Court should proceed to resentence offender - accumulation, concurrency and totality as between previously suspended sentence and sentence imposed on Crown appeal

PROCEDURE – Stay of order for removal of caveats – Reliance by primary judge on information not supported by proper evidence – Whether case made out for stay pending hearing of application for leave to appeal.

PROCEDURE – Appeal – Appellant evading lawful custody and in breach of High Court order – Appeal stayed – Whether appeal should be summarily dismissed.

PRACTICE & PROCEDURE - Application for leave to inspect documents produced on subpoena

Coroner - Inquest into death - whether inquest should be ordered. - Coroner - inquest - manner and cause of death - scope of. - Coroner - inquest into death. - limits of jurisdiction - remoteness. - Coroner - manner and cause of death - proximate cause - words and phrases - manner and cause of death.

CRIMINAL LAW – Appeal against sentence – Crown appeal – whether sentence manifestly inadequate – attempt to possess marketable quantity of heroin – sentencing exercise directed to individual justice – no specific error by sentencing judge - CRIMINAL LAW – s 68A Crimes (Appeal and Review) Act 2001 – ss 68, 79 and 80 Judiciary Act 1903 (Cth) – whether s 68A Crimes (Appeal and Review) Act 2001 picked up by Judiciary Act 1903 (Cth)

TORTS – Negligence – professional negligence – solicitor failed to properly advise on availability of common law damages in workplace injury claim - WORKERS’ COMPENSATION – Entitlement to compensation for permanent impairment and pain and suffering – Workers Compensation Act 1987 (NSW) ss 66 and 67 – election to be made for damages under Workers Compensation Act or damages at common law – Workers Compensation Act 1987 (NSW) s 151A(2) - DAMAGES – Personal injury – measure and assessment of damages – loss of opportunity to pursue common law claim in preference to Workers Compensation Act entitlements – assessment of comparative worth of proceedings under Workers Compensation Act and common law – calculation of the value of the loss of a lump sum payment should include interest

TORT – WRONGFUL IMPRISONMENT – mentally ill person dealt with by way of a special hearing under s.19 of the Mental Health (Criminal Procedure) Act 1990 – a “limiting term” nominated under s.23 of the Act – whether the limiting term deprived the plaintiff of her right to liberty – s.24 order for plaintiff’s custody an interim order – order made by District Court under s.27 for the plaintiff’s detention “in a hospital” – “hospital” had the meaning prescribed by s.3 of the Mental Health (Criminal Procedure) Act 1990 and s.208 of the Mental Health Act 1990 – plaintiff not detained in a “hospital” as required by order made under s.27 – detention unlawful and infringed her rights – separate question as to liability of State for wrongful imprisonment answered in the plaintiff’s favour against the State.

TORTS - negligence - liability admitted by defendants - personal injury - plaintiff struck on head by metal roller shutter door - fibromyalgia - causation - damages

CRIMINAL LAW - sentence - accessory after the fact to murder - assisting to dispose of deceased's body - supply commercial quantity of cocaine - admissibility of victim impact statement - guilty plea - assistance to authorities

CORPORATIONS - management and administration - officers of corporation - CEO and Managing Director - retirement from office - retirement benefit - whether exempt benefit - whether officer held the office at the time of making the agreement for the retirement benefit - whether member approval required - whether approval given by approval of Director's report generally.

CRIMINAL LAW - sentence - murder - victim assaulted after refusing to supply cannabis on credit - objective seriousness of offending

Trusts and trustees - Constitution and classification of trusts generally - Classification of trusts in general - Implied trusts - Resulting trusts - Where intention presumed - When arising - Joint purchase of land - Whether cross-claimant shown on evidence to have contributed to the purchase price of the property in question such that a proportion of the proceeds of sale were held on resulting trust for her - Following trust property - Identification of property - Whether possible to trace trust money paid into an overdrawn bank account - Procedure - Judgments and orders - Effect of judgments - In general - Whether cross-claimant’s claim inconsistent with earlier declaration of Court

CORPORATIONS – COSTS – Whether costs of proceedings to set aside proof of debt of creditor/shareholder should be costs of liquidation or paid by unsuccessful party.

COSTS - whether indemnity costs should be awarded on basis that defendant's case was manifestly devoid of merit and he should have known he had no real prospect of success - whether indemnity costs should be awarded on basis of Calderbank letter

EVIDENCE - documentary evidence - complaints to health insurer about health service provider - whether complaints confidential - whether insurer entitled to redact documents to protect confidentiality of complainants - whether protected confidence - whether health care provider acting in professional capacity - whether admissibility of redacted documents unfairly prejudicial to health care provider.

PROCEDURE - judgments and orders - amending varying and setting aside - order in favour of member and against company for access to company books - company subject to deed of company arrangement - originating process delivered to deed administrators - whether company served - no appearance by company at hearing - whether company had adequate notice of hearing - duty of plaintiff proceeding in absence of defendant - distinction, for that purpose, between case where defendant notified of hearing and case where defendant not so notified - various alleged misstatements to court - assessment of these - none warrants interference with orders made

PROCEDURE - costs - defendant/applicant seeks security for costs - plaintiff/respondent natural person resident in NSW - inherent jurisdiction of Court to make orders for security for costs - whether the plaintiff's claim is bona fide and not a sham - whether the plaintiff has a reasonably good prospect of obtaining the orders sought - whether the plaintiff's action is harassing or vexatious - failure to have the costs orders quantified or assessed - defendant cannot establish that the plaintiff has failed to honour existing costs orders - plaintiff’s case is not so unmeritorious that a security for costs order should be made - defendant to pay the plaintiff’s costs of the motion

GUARANTEE AND INDEMNITY [31] – Rights of surety – Against co-surety – Contribution – Surety who has received no benefit may be entitled to indemnity from co-sureties who have.

CRIMINAL LAW - murder - judge alone trial - Prasad application

SUCCESSION - wills, probate and administration - probate and letters of administration - whether an informal document was intended to form the testator’s will - sufficient evidence for the Court to dispense under s 8 (2) of the Succession Act with the usual requirements for the execution of a valid will - Letters of Administration cta of the will granted to plaintiff due to the nominated executrix's mental incapacity

CRIMINAL LAW - committal proceedings - sexual assault charges - application for leave to appeal and other relief against magistrate's disposition of applications under ss 91/93, Criminal Procedure Act - material concerning complainant's sexual experience in prosecution brief - decision by prosecution not to lead that material in evidence - whether material "disclosed ... in the case for the prosecution" for the purpose of s 293(6), Criminal Procedure Act - whether work association and friendship between complainant and accused a "relationship" for the purpose of s 293(4)

COSTS – where plaintiff successfully defended motion to dismiss professional negligence proceedings pursuant to UCPR 31.36 – defendant's motion premature and inappropriate - defendant to pay plaintiff's costs of the motion PRACTICE AND PROCEDURE – where plaintiff's decision to amend statement of claim connected to information unavailable to plaintiff but in the possession of defendant – costs of amendment be costs in the cause – where plaintiff by his tutor commenced proceedings without a solicitor – leave granted nunc pro tunc pursuant to UCPR 7.14(2)

CRIMINAL LAW - Sentence - Plea of Guilty to Supply Prohibited Drug - "social supply" - Extra-curial punishment

NEGLIGENCE - liability of builder/occupier to employee of sub-contractor - employee to perform brick cleaning work - fell through hole of gap in the scaffolding which had not been present when inspected three days before - sub-contractor was plaintiff's wife - unsophisticated sub-contracting entity - previous contracts with the defendant - defendant knew plaintiff's wife not experienced in safety aspects of bricklaying work - plaintiff's attendance at site on a Saturday when no other employees present was a practice followed with brick cleaning - whether specific notice given by sub-contractor of plaintiff's intention to attend site - application of s.151Z Workers Compensation Act - defendant 90% - plaintiff contributory negligence 15%

PRACTICE AND PROCEDURE – where plaintiffs' neighbours published allegedly defamatory material about them by erecting signs and distributing a letter – application by defendants pursuant to UCPR 14.28 to strike out a paragraph of the statement of claim upon the contention that the pleaded imputations are not capable of arising from the matters complained of – further application by defendants to strike out entire claim in defamation for non-compliance with UCPR 15.19(1)(d), 15.19(1)(e) and 15.19(2) – where no way of knowing what part of which publication is said to give rise to each pleaded imputation – pleading wholly bad in form and cannot stand – COSTS - where plaintiffs served notice to produce upon defendants' solicitor personally - where no disadvantage or prejudice caused to defendants – overly technical insistence on form viewed in light of Civil Procedure Act s56 – no order as to costs – where plaintiffs challenge retainer of the defendants' solicitor – subsequently abandoned - where no confidential information communicated - plaintiffs to pay the defendants' costs incurred resisting the challenge.

ENERGY AND RESOURCES – Mining for minerals – Mining leases and licences apart from statute – nature of “free-carried interest” where transfer of no force unless approved by Minister – effect of repeal of statute requiring ministerial approval – where transfer required to be in writing – whether writing must post-date statute imposing requirement – ESTOPPEL – Former adjudication and matters of record or quasi of record – Former Adjudication - Judgment inter partes – Res judicata – General matters – whether order of Mining Warden’s Court final judgment on merits – whether plaintiff is privy of party to earlier proceedings – CONTRACT – where agreement intended to supersede and replace earlier agreement – where later agreement terminated or abandoned – whether earlier agreement revised – CONTRACT – Conditions – Condition subsequent – failure to obtain stipulated approval renders contract voidable, not void – CONTRACT – Implied – whether to be implied from supposition and reconstruction in context of dispute years after event

CORPORATIONS - winding up - conduct and incidents of winding up - alleged insolvent trading by directors - action by liquidator against directors to recover as a debt due to the company loss or damage suffered by creditors - nature and incidents of statutory cause of action - whether action "for a debt or liquidated claim" - PROCEDURE - default judgment - judgment in default of defence - available where proceedings commenced by statement of claim - proceedings required to be commenced by originating process in fact commenced by statement of claim - whether default judgment procedure attracted

APPEAL – civil - statutory appeal – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353 – point of law - competency - WORDS AND PHRASES –"substantial contributing factor" – Workers Compensation Act 1989 (NSW) s 9A - WORKERS COMPENSATION – employer's liability – whether employment a "substantial contributing factor" - accident occurring during 'slip-time' but in the course of the employment

EQUITY – plaintiff transferred interest in land to deceased for sum described as consideration for transfer – true agreement was a loan and mortgage - whether plaintiff entitled to equity of redemption on repayment of loan – whether executrix held land on constructive trust for plaintiff - EQUITY – plaintiff’s claim under constructive trust not barred by Limitation Act 1969, s 14, s 42 or s 27 – defence of laches not made out –purpose of transaction to frustrate enforcement of maintenance orders by family court – insufficient nexus with equity sued for – defence of unclean hands not made out - REAL PROPERTY – EQUITY – which of s 23C or s 54A of Conveyancing Act 1919 relevant to enforcement of constructive trust under executed agreement –principle that reliance on s 23C and s 54A to deny true nature of transaction is to use the statute as an instrument of fraud – oral evidence admissible to establish true nature of transaction –principle applicable to mortgages – whether reliance on defence as note or memorandum of agreement permitted for s 54A – sufficient acts of part performance by plaintiff – whether repayments of principal and payment of interest can be relied on as acts of part performance – proving acts of part performance by admissions of acts - REAL PROPERTY – EQUITY – whether personal equity exception to indefeasibility applies – deceased held land subject to constructive trust for plaintiff – executrix personally bound by same trust as deceased’s legal representative and under Probate and Administration Act, s 45 – executrix lodged notice of transmission claiming entitlement as beneficiary under will – fraud not pleaded - registration of title in executrix does not defeat enforcement of constructive trust

CONTRACT – EMPLOYMENT – employee was senior executive – participant in employee incentive schemes – employment contract provided for notice periods for termination of employment and payments to employee on termination – contract allowed employee to terminate contract for change of control of employer leading to material diminution of role and responsibilities and additional payment in lieu of notice – takeover of employer – employee gave conditional notice under change of control provision – employer terminated contract and employment - CONTRACT – construction of contract – employee not entitled to benefits under employee incentive schemes if employment terminated earlier – entitled to pro-rata benefits under transitional arrangements and amended employee incentive schemes – purported amendments of incentive schemes effective – plaintiff entitled to benefits under schemes as amended - CONTRACT – employee gave valid termination notice – change of control leading to material diminution in role and responsibilities – “entitlement” to more than 50% of shares in employer includes equitable interest – requirements for valid notice of termination – conditional notice valid provided condition is certain – notice operates on fulfilment of condition – employer wrongly terminated employment after valid notice given – breach of implied term not to hinder or prevent fulfilment of purpose of provision in contract – employee entitled to damages equal to amount payable under provision - CONTRACT – employee not entitled to redundancy payments – damages not reduced by earnings made after termination – employee entitled to be put in same position had contract been performed

APPEAL - leave to appeal against Local Court decisions - leave to appeal granted - loans advanced to defendant company on the security of personal guarantees provided by directors - calculation of moneys outstanding under loan - whether deduction of $10,000 discount agreed - calculation of prejudgment interest - award of $10,000 damages under cross claim - denial of natural justice - award of damages and prejudgment interest - contradicted findings in first judgment - unexplained departures from conclusions reached in first judgment - costs - unexplained departures from general rule - plaintiff's success in proceedings overlooked - both plaintiff and defendants partially successful - just cost order that defendants bear two thirds of plaintiff's costs - appeal upheld - Local Court decision set aside - costs

CORPORATIONS – ADMINISTRATION – LIQUIDATION – Whether company placed in administration although not insolvent – whether administration and subsequent liquidation for proper purpose – whether position of administrators and liquidators so compromised that they should be replaced.

EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees - general matters - rules governing exercise of discretion - where trustee entered into new insurance policy - where trustee gave reasons for decision - whether Court can review trustee's decision - whether trustee breached any duty owed to the insured under the general law - whether Superannuation Industry (Supervision) Act 1993 (Cth) alters the general law and whether breach by trustee - INSURANCE - accident, sickness and income protection insurance - total and permanent disablement or total incapacity - discussion of matters going to the question of whether there was any difference in wording between the total and permanent disablement clause in the previous insurance policy and in the new policy - causation: whether the insured suffered any loss due to any difference in wording

COSTS - Assessment of Costs - Gross - Sum Costs Order - where indemnity costs awarded. Exclusion of GST.

CONTRACTS - Building, engineering and related contracts - The Contract - Claim by builder for variations and delay costs - Whether Court can adjust date for practical completion under contract - Whether architect/proprietors estopped from pleading that that builder’s claims were not made in compliance with the relevant contractual procedures and therefore must fail - The principle in Liebe v Molloy - Whether the plaintiff builder’s claims for variations and delays made out on the evidence - Relevant principles where the architects are simultaneously the proprietors - Whether architect had duty to act impartially - Whether this duty breached - Performance of work - Whether it is possible to assess delay where construction programming has not occurred - Whether the expert evidence relied upon by the parties should be accepted - Cross-claim by defendants against builder for defective work - PROCEDURE - Courts and judges generally - Courts - Relevant principles for making a finding of fraudulent conduct - Whether allegation of fraudulent conduct made out - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - Consumer protection - Misleading or deceptive conduct or false representations - Whether brochure produced by cross-defendants was misleading or deceptive - Whether cross-claimants proved reliance on particular representations - Whether causation shown in cross-claim - Whether relevant limitation period had expired - Whether evidence showed that cross-defendants’ product was not fit for purpose.

TRUSTS – Trust (Masonic Youth Welfare Fund of NSW & ACT) a charitable trust for relief of poverty – plaintiffs executors de son tort – objects of the Fund are as set out in Minutes of a General Meeting held on 28 March 1923 and not as set out in purported amendments of the objects of the Fund – no longer practical to apply capital or income of the Fund for the charitable purposes of the Fund – Fund to be administered cy pres – the power under s.70(2), Trustee Act 1925 to appoint new trustees cannot be exercised so as to operate retrospectively – order sought pursuant to s.85, Trustee Act to excuse trustees in respect of any breach of trust in permitting the corporate plaintiffs to hold the assets of the Fund in accordance with the constitution of the Fund as purportedly in force from time to time – the power under s.85 is to be exercised with caution – relief under s.85, Trustee Act sought late in the proceedings which were primarily concerned with orders for the future management of the Fund and clarifying its charitable objects – evidence insufficient to permit a conclusion on reasonableness and the issue of "ought fairly to be excused ..." in terms of s.85(2) with respect to any particular breaches notwithstanding evidence from which inferences could be drawn as to the honesty of the trustees – leave to the trustees to apply with respect to the application under s.85

COSTS - whether to order that interlocutory costs be payable forthwith - whether to make a specified gross sum order for interlocutory costs

SUCCESSION - Family provision - claims by two adult daughters - financial and material circumstances of each Plaintiff - whether each Plaintiff has been left without adequate provision for her proper maintenance - written statements by Deceased concerning, inter alia, reasons for her testamentary dispositions - competing claims of residuary and other beneficiaries.

CORPORATIONS - winding up - statutory demand - application for order setting aside statutory demand dismissed - application for extension of time for compliance with demand - where appeal proposed - relevant considerations discussed

ADOPTION – Whether adoption in child’s best interests – child with special needs – adoption opposed by birth parents – birth parents refuse to give any information as to their capacity to care for child – only available evidence strongly supports adoption.

PROBATE – revocation of grant of probate – failure to act in accordance with the terms of the will – duty to account by administrator for period of administration – PROBATE – application for appointment of replacement administrator – duty to account to estate for benefits received by plaintiff beneficiaries – whether the duty to account constitutes sufficient conflict of interest to refuse application for appointment – whether appointment of independent administrator preferred – PROBATE – whether vesting order necessary to transfer land to replacement administrator

CORPORATIONS – LIQUIDATION – PROOF OF DEBT – whether liquidator’s decision to admit proof of debt should be reversed – whether valid and binding agreement between company and shareholder for buy-back of shares.

PROCEDURE [83] – Practice under Supreme Court Rules – Preliminary discovery – Setting aside order refusing preliminary discovery – Decision made on wrong basis.

CONTRACT - agreement to settle dispute between parties - deed of release - whether parties reached binding agreement