Cases and authorities

PRACTICE AND PROCEDURE - Application to set aside default judgment - relevant principles - whether application futile - costs of application to set aside judgment - extra curial conduct by mortgagee to take possession of mortgaged property.

CROSS VESTING - Jurisdiction of Courts (Cross-Vesting) Act 1987 – s 5(2)(b)(iii) – where plaintiff contributed capital to partnership conducted in Queensland – partnership dissolved by order of Supreme Court of New South Wales – plaintiff unable to recover losses from former partner – sale of land only prospect of recovery – land sold by former partner without plaintiff’s knowledge or consent - breach of duty by Registrar of Titles, Queensland and former solicitors alleged – whether otherwise in the interests of justice that proceedings be determined by Supreme Court of Queensland – order made for transfer to Queensland Supreme Court – PRACTICE and PROCEDURE – UCPR 6.29 – misjoinder of a party – application by second defendant to be removed from proceedings – application conducted as if in nature of summary dismissal – application misconceived – motion dismissed.

EQUITY – Proprietary estoppel – Geoffrey owned farm at Main Arm and had seven adult children – Geoffrey died in 1995 and left all land to widow Iris – Iris died in 2007 and left all property all seven children equally – youngest son Glen claimed entitlement by proprietary estoppel to part of land with old cottage based on assurances and encouragement by Geoffrey – consideration of protection of Iris as registered proprietor - HELD Glen’s claim failed because he did not obtain findings that the assurances and encouragement he alleged had actually happened. - FAMILY PROVISION – Claims by adult son aged 43, owned business earning $35,000 p.a. net but no other significant assets, left about $200,000 as one-seventh share of mother’s estate – HELD adequate provision in the Will, claim failed. Claim by adult daughter aged 38, no significant assets, supporting parent of two children aged 3 and 11, no employment, left about $200,000 in Will – HELD provision $300,000 ordered in lieu of benefits under Will. Consideration of significance of other claims and balancing process.

CRIMINAL LAW - contempt of court - breaches of orders of Grove J restraining offender from conduct in relation to residential building work - criminal history, including previous breaches of the same orders - gambling, mental health issues

WORKERS COMPENSATION - APPEAL - against medical assessment - on ground of demonstrable error - whether delegate made jurisdictional error - whether decision of Appeal Panel can stand

WILLS PROBATE AND ADMINISTRATION – principles of rectification and construction – acceptance and disclaimer of gifts – CHARITABLE TRUSTS – whether valid gift for charitable purposes – whether general charitable intention – cy-près schemes – half of residuary estate left to non-existent ‘Art Gallery of Victoria’ to create an annual painting award – HELD – rectification of will to refer to National Gallery of Victoria – valid disclaimer despite initial acceptance of gift due to misapprehension of conditions of gift – gift does not fail by reason of non-existence of ‘Art Gallery of Victoria’, by reason of disclaimer, for uncertainty or impracticality and is a valid gift for a charitable purpose – alternate trustee to be appointed to administer award

CORPORATIONS – PROVISIONAL LIQUIDATION – COSTS – whether costs agreement between provisional liquidator and solicitors subject to oral conditions – whether conditions unfulfilled – whether solicitors’ costs payable by anyone.

CRIMINAL LAW - appeal against conviction - child sexual offences - jury not properly instructed as to need to find absence of consent and knowledge of absence of consent in respect of offences under s 61J Crimes Act 1900 - application of proviso to s 6(1) Criminal Appeal Act 1912. - CRIMINAL LAW - sentence appeal - obligation to sentence in accordance with law prevailing at the time of offences - trial judge had inappropriate regard to subsequently introduced standard non-parole periods.

STATUTORY INTERPRETATION – subordinate legislative instruments – where a Ministerial Order made on 30 June 1992 pursuant to section 24 of Government Insurance Office (Privatisation) Act 1991 (NSW) (“the Order”) provided that all contracts of insurance or reinsurance which were entered into for the benefit of the TAC Fund be transferred from GIO Australia Holdings Limited to the plaintiff – where the defendants were the reinsurers under contracts of reinsurance entered into before coming into force of the Transport Accidents Compensation Act 1987 (NSW) which established the TAC Fund – whether in the circumstances the contracts of reinsurance were entered into for the benefit of the TAC Fund and had been transferred to the plaintiffs

FAMILY LAW - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - financial contributions of Plaintiff far outweighed those of Defendant - contribution of each party, especially of Defendant, as homemaker and parent.

PROCEDURE – application to set aside or vary orders filed within 14-day time limit prescribed by rules – amended application seeking more extensive orders filed outside 14-day limit – whether Uniform Civil Procedure Rules 2005 (NSW), 36.16 confers power to entertain amended application - PROCEDURE – powers of Court – whether s 14, Civil Procedure Act 2005 (NSW) confers power to dispense with requirements of Uniform Civil Procedure Rules 2005 (NSW), 36.16 - PROCEDURE – whether costs order should be varied

LANDLORD AND TENANT – legislation protecting tenants – Residential Tenancies Act 1987 – definition of residential tenancy agreement – formal requirements – construction and interpretation of agreement – surrounding circumstances – LANDLORD AND TENANT – legislation protecting tenants – Residential Tenancies Act 1987 – term of residential tenancy agreement – duration of residential tenancy agreement stated as “for life or as long as tenant wishes to stay” – certainty of term – whether an agreement “for a fixed term” – CONTRACTS – general contractual principles – lack of consideration – lack of intention to enter contractual relations – incorrect reliance on subsequent conduct in interpretation of contract – ADMINISTRATIVE LAW – judicial review – power of review under s 67 Consumer, Trader and Tenancy Tribunal Act 2001 – review permitted in relation to incorrect decision with respect to matter of law as opposed to jurisdictional error – need for there to be a decision with respect to a particular matter of law before a right of appeal under s 67 arises – lack of power of District Court to make orders in nature of prerogative relief concerning decisions of Tribunal – importance of identifying precise ground of complaint about a decision of the Tribunal before choosing to bring a s 67 appeal to District Court or application for prerogative relief to Supreme Court – ADMINISTRATIVE LAW – particular tribunals or bodies – Consumer, Trader and Tenancy Tribunal – extent of obligation to give reasons – whether failure to give reasons constitutes erroneous decision with respect to a matter of law

COSTS - whether costs incurred without reasonable cause - whether solicitor for plaintiff to indemnify successful defendants. LEGAL PRACTITIONERS - statutory power to order costs against practitioner - prospects to be fairly arguable - costs order discretionary - Civil Procedure Act 2005, sections 99(1)(b) and 99(2)(c).

PRACTICE AND PROCEDURE – application for leave to amend pleading – whether amendments so obviously futile that leave to amend should be refused – embarrassing pleadings – whether no reasonable cause of action disclosed – leave to amend granted

PROCEDURE - claim for damages for misfeasance in public office and negligence - planning decision by Council - Plaintiffs apply to amend Statement of Claim during final hearing - consequence of amendment would be adjournment of hearing - applicable principles - application refused

PRACTICE AND PROCEDURE – COSTS – interlocutory proceedings – appropriate costs orders where proceedings dismissed without proceeding to final determination – turns on the facts – no question of principle – Civil Procedure Act 2005 s 98 – Uniform Civil Procedure Rules 2005 r 36.4(1)(a)

CRIMINAL LAW - judge alone trial - murder - defence of mental illness

CRIMINAL LAW - Evidence - Judicial Discretion to admit or exclude evidence - whether Judge erred in excluding tendency and co-incidence evidence - whether Judge erred in severing indictment - Criminal Appeal Act 1912, ss 5f(2) and 5f(3A)

CRIMINAL LAW – appeal against sentence – appeals by Crown – procedure – requirement for the Crown to expressly state grounds in notice of appeal - CRIMINAL LAW – appeal against sentence – appeals by Crown – s 68A of the Crimes (Appeal and Review) Act 2001 – removal of double jeopardy as a principle of re-sentencing - CRIMINAL LAW – appeal against sentence – appeals by Crown – exercise of discretion – s 68A of the Crimes (Appeal and Review) Act 2001 – removal of double jeopardy element – residual discretion to reject a Crown appeal - CRIMINAL LAW – appeal against sentence – appeals by Crown – s 68A of the Crimes (Appeal and Review) Act 2001 – frequency of Crown appeals as a sentencing principle in individual cases – the rarity principle - CRIMINAL LAW – appeal against sentence – grounds for interference – parity between co-offenders carrying out a joint-criminal enterprise - CRIMINAL LAW – appeal against sentence – grounds for interference – sentence manifestly excessive or inadequate.

APPEAL – civil – procedure – restraint of proceedings in lower court – challenge to appointment of acting judge of District Court – whether constitutional challenge reasonably arguable on facts before court – balance of convenience – whether restraint justified pending determination of appeal - CONSTITUTIONAL LAW – judicial power – appointment of acting judge to State court – whether residence in State a condition of valid appointment – whether pressing necessity a condition of valid appointment - PROCEDURE – matter arising under Constitution – urgent interlocutory hearing – no requirement of notice – Judiciary Act 1903 (Cth), s 78B(5) - WORDS & PHRASES – "pressing necessity"

ADMINISTRATIVE LAW – judicial review – jurisdictional error – error on the face of the record – s 89 of the Industrial Relations Act 1996 – power of the Commission to order re-employment – power of the Commission to order a person to resign

Revocation of French will by later Australian wills not intended - intention of deceased to dispose of the whole of his estate including his residuary estate - sufficient cause shown for failure to make application for rectification within 18 months after death of deceased testator - rectification of will granted to reflect deceased's intention

Family Provision. Application for provision by same sex partners who was left a life estate. Application out of time by 11 years. Consideration of explanantion and change of heart. Time extended and order in favour of the plaintiff.

CORPORATIONS - PRODUCTION - Who should bear costs of application for production

ADMINISTRATIVE LAW – procedural fairness – hearing rule – consent orders made concerning disposal of property – orders made without notice to third party claiming interest – whether denial of opportunity to assert interest in property - CRIMINAL LAW – recovery of proceeds of crime – restraining orders – interaction with other provisions relating to recovery of proceeds of crime – extent to which constitutional invalidation of provision affects orders made under other provisions – Criminal Assets Recovery Act 1990 (NSW), ss 10, 12, 27, s 33 - PRIVATE INTERNATIONAL LAW – enforcement of judgments – overseas registration – restraining orders registered in New Zealand – dismissal of proceedings in which orders made – whether necessary to order that steps be taken for registration to be revoked - PROCEDURE – judgments and orders – effect of appellate judgment – effect of dismissal of proceedings – specific orders within proceedings not expressly set aside – whether orders discharged by virtue of dismissal of proceedings - PROCEDURE – jurisdiction – distinction between jurisdiction and satisfaction as to factual preconditions to exercise of jurisdiction – orders made by consent – whether necessary for Court to undertake independent inquiry into factual basis for orders - WORDS & PHRASES – "assets forfeiture order" – "effective control" – "proceeds assessment order" – "restraining order"

PROCEDURE- costs- reason for departure from general rule- unsuccessful alleged public interest litigation- appellant appearing to be a genuine public interest group significant factor- however respondent is a commercial enterprise, not a State or government authority- no broad question of natural environment- some benefit to appellant as private citizens- proceedings were an appeal by unsuccessful party not directly affected- no substantial evidence on whether there is "something more" to justify departure from the ordinary rule as to costs- Land and Environment Court Rules 2007, r 4.2 of little assistance on appeal to the Supreme Court.

APPEAL- from CTTT only "with respect to a matter of law" ambit- Consumer, Trader and Tenancy Tribunal Act 2001, s 67. CONVEYANCING- options- put option to operator of retirement village to buy back freehold unit on certain events- subsequently Retirement Villages Act 1999 provides that option lapses unless grantee gives notice of intention to exercise within a defined period- time for exercise of option does not occur during defined period- whether option lapses- Retirement Villages Act 1999, s 167. PRACTICE AND PROCEDURE- undesirability of coupling proceedings for specific performance with a statutory appeal. WORDS AND PHRASES- "Decide"- "Decision"- what does the propositus need to know before he or she can make a decision on a matter. WORDS AND PHRASES- "Moves out" (of premises).

CRIMINAL LAW - judge alone trial - murder - defence of mental illness

MORTGAGES – Whether agreement to give, or cause to be given, a mortgage – SPECIFIC PERFORMANCE – whether loan contract to be specifically performed

EQUITY - equitable remedies - injunctions - freezing orders - where proceedings pending - application by plaintiff for continuation of freezing orders against one defendant - whether "good arguable case" shown - whether risk of dissipation shown - balance of convenience considered - PROCEDURE - costs - security for costs - no matter of principle

PROCEDURE - Application to further amend Defence - ss 56, 57 and 58 of the Civil Procedure Act 2005 - Proposed defence of unclean hands and abuse of process - Proposed defence of freedom of political communication - Delay

PROCEDURE - Judgment and orders - Judgment by default - Application to have default judgment set aside - Whether breach of implied term - Whether breach of equitable estoppel - Whether breach of contractual condition precedent

CRIMINAL LAW - Sentences for killing in the course of robbery and associated robberies after pleas of guilty - juvenile offender - parity with co-offender

BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act 1999 – validity of second adjudication determination – where payment claim for amounts the subject of previous adjudication determination – where determination by previous adjudicator that defendant not entitled to amounts claimed – whether valid payment claim – whether subsequent claim before second adjudicator precluded by principles of issue estoppel or principles of abuse of process – whether plaintiff denied procedural fairness. - ESTOPPEL – issue estoppel – whether earlier determination created issue estoppel – whether abuse of process for defendant to reagitate claim leading to second adjudication determination.

APPEAL – New South Wales – Supreme Court – When appeal lies – As of right – Appeal from order of primary judge dismissing defamation proceedings – Defendant filed Notice of Motion seeking order that appeal be dismissed as incompetent – Whether claim of plaintiff that appeal involves a matter at issue amounting to $100,000 or more is both credible and realistic – Determination of issue of competence to be made upon the basis that plaintiff will be successful on all grounds – Finding that plaintiff was a person with a seriously compromised reputation founded upon credit and substantial truth findings - PROCEURE – Supreme Court procedure – New South Wales – Stay of proceedings – Primary judge ordered plaintiff to pay defendant’s costs – Defendant had itemised bill drawn up – Plaintiff filed Notice of Motion seeking stay of execution and enforcement of primary judge’s costs order and stay of costs assessment pending determination of appeal – Defendant did not oppose granting of stay of execution and enforcement of costs order – Whether costs assessment should be stayed – No evidence that plaintiff is financially unable to contest defendant’s bill – Agreement of defendant to pay plaintiff’s costs of contesting bill on indemnity basis if appropriate

CRIMINAL LAW - sentence - conviction after trial of unauthorised possession of pistol - plea of guilty to ongoing supply of prohibited drug - Form 1 matters

COSTS – plaintiff successfully sought superannuation order pursuant to Crimes (Superannuation Benefits) Act 1989 (Cth) s 19 – where plaintiff seeks no order for costs against the defendant – where defendant seeks an order for costs against the plaintiff from date of offer of settlement – defendant's offer of settlement contained ambiguity causing misunderstanding between the parties which the defendant should have corrected – no order as to costs.

SUCCESSION - wills, probate and administration - probate and letters of administration - grants of probate and letters of administration - where proceedings settled - deed of settlement - terms of release of parties

CONTEMPT OF COURT – SENTENCING – Defendant pleaded guilty to breach of order restraining him from attempting to leave jurisdiction pending ASIC examination – Defendant detained at airport attempting to leave – guilty plea – whether mitigating factors – whether prison sentence required.

Crimes (Serious Sex Offenders) Act 2006 — extended supervision order

Statutory Interpretation - Insurance Contracts Act 1984 (Cth) - Section 46 (2) construed in the context of Act as a whole - Plaintiff claiming to be indemnified by insurer in respect of damage suffered to yacht

INSURANCE - Accident and Sickness Insurance - whether the contract of insurance was made when an initial premium deposit was paid - whether contract of insurance made when plaintiff signed an acceptance of revised terms form including an explosives exception - whether the contract of insurance arose when the income protection policy issued - whether the plaintiff was in breach of his duty of disclosure - whether in answering a question in the application form the plaintiff made a misrepresentation to the defendant - whether the defendant was entitled to terminate the contract under the Insurance Contracts Act 1984 (Cth), s 29(3) on the basis that had the plaintiff complied with the duty of disclosure or the misrepresentation had not been made the defendant would not have been prepared to enter into the contract of insurance on any terms - whether the income protection policy was a contract of life insurance

CRIMINAL LAW - verdict - judge alone trial - murder - accused not guilty by reason of mental illness - proof of intention to kill - circumstantial evidence case - evidence of state of mind to be inferred from the evidence of the accused's specific acts causing death of infant and not upon any statements by her containing admissions as statements were unreliable and were not cogent evidence

CONTRACTS – construction of commercial contracts – defendant retained plaintiff to advise on takeover defence strategy – engagement provided for payment of different fees depending on the outcome of takeover offers – a number of takeover offers were made by different offerors, one of which resulted in the takeover of the defendant – dispute as to what fees are in the circumstances payable and how they are to be calculated – ACCORD AND SATISFACTION – defence of accord and satisfaction – defendant proffered cheque for an amount less than the plaintiff was claiming under cover of a letter stating that the cheque was “in full and final settlement of the matter” – plaintiff banked cheque and sent letter that it did not accept the payment in full and final settlement – whether the banking of the cheque in the circumstances brought about a binding accord and satisfaction

ENVIRONMENT AND PLANNING – Development control – Consent – Construction – Commercial uses – Hotels – Existing uses – Characterising purpose of use – Consent granted to the continuance of the existing use of the subject buildings and land as hotel premises – Whether the consent permits the use of the rear yard of the subject land as a beer garden – Whether rear yard was used for the purposes of a hotel

PROCEDURE – costs – indemnity costs – two separate offers of settlement – whether constituted a compromise – whether rejection of offer reasonable – whether award for indemnity costs justified – Uniform Civil Procedure Rules 2005 (NSW), Pt 20, Div 4

Corporations Law. Application to set aside demand under s 459G of Corporations Act. Demand set aside under 459J (1)(b) due to defaults in the affdavit in support. No matter of principle.

CRIMINAL LAW - appeal - purported advice given by legal advisers to client - miscarriage of justice - CRIMINAL LAW - sentence - relevant factors - parity between co-offenders - justifiable sense of grievance

CRIMINAL LAW - appeal - verdict unreasonable or unsupportable having regard to evidence - misdirection and non-direction - effect of misdirection and non-direction - review of evidence