Cases and authorities

COSTS – offer of compromise – consideration of finding of fraud as relevant to discretion – indemnity costs ordered - INTEREST – interest prior to damage – major consideration proper compensation – consideration of delinquency not overcome entitlement to compensation for denial of funds to which plaintiff entitled – consideration of the nature of the discretion – claim is for damages, not payment under the contract and Court entitled to award interest - PRACTICE AND PROCEDURE – stay of part of money amount pending appeal – no issues of principle – stay granted

CORPORATIONS – EQUITY – INTERLOCUTORY INJUNCTIONS – Whether there is a serious question to be tried – whether balance of convenience favours preserving the status quo until final determination if granting the injunction may permit the carrying on of an insolvent business.

PRACTICE & PROCEDURE – UCPR 31.36 & 12.7 – where plaintiff alleged delay by defendant in performing urgent cholecystectomy leading to poor outcome - application to dismiss proceedings for want of compliance with requirement to file and serve an expert's report with the statement of claim – whether any report served satisfied the rule – where delay in the proceedings - whether failure by plaintiff to conduct the proceedings with due despatch – defendant's notice of motion dismissed.

PRACTICE & PROCEDURE – order for costs made in favour of successful defendants – where orders, including costs order, entered by the Court – where no assessment of costs commenced or completed – where defendants apply for interest on costs pursuant to s 101(4) Civil Procedure Act 2005 - whether principle of finality in litigation means that judicial officer functus officio so that application incompetent – principle found not to apply.

COSTS - alternative claims against more than one defendant - action succeeding against one defendant only - Bullock and Sanderson orders - when applicable - whether conduct of unsuccessful defendant encouraged joinder of successful defendant - nature of defence raised by unsuccessful defendant - provision of information to plaintiffs - whether unsuccessful defendant's conduct constituted sufficient inducement or was otherwise unreasonable.

ADMINISTRATIVE LAW - whether jurisdictional error in refusing to refer medical assessment to review panel - Motor Accidents Compensation Act 1999, Part 3.4, s63 - error in a material respect.

Family provision. Application by widower left a right of residence. Long second marriage with widower contributing to the house. Widower given the fee simple in the house.

APPEAL - appeal from Local Court - question of procedural fairness - indemnity costs - appeal dismissed

PROCEDURE - Judgments and orders - Amending, varying and setting aside - application to re-open case after judgment and before judgment or order entered - application to re-open refused - application for joinder - joinder granted - application for rectification of consent orders - rectification granted - DAMAGES - difficulty of assessing damages in relation to interest - damages ordered

PRACTICE AND PROCEDURE – interlocutory application – whether serious question to be tried that defendant entitled to enforce clause in agreement requiring plaintiff to provide financial assistance to defendant in respect of proceedings between them – CORPORATIONS – statutory corporations – whether agreement signed by employee of statutory corporation binding on statutory corporation and if binding whether statutory corporation validly rescinded agreement – whether defendant entitled to rely on statutory assumptions in s 20ZD(3) of State Owned Corporations Act 1984 – AGENCY – whether employee had ostensible authority to bind statutory corporation to agreement – agreement purported to commit statutory corporation to transactions of substantial financial magnitude, covered diverse and exotic field of activities, contained onerous and financially disadvantageous terms to statutory corporation, provided for statutory corporation to engage in activities outside principal functions and conferred benefit on employee –employee only made representations to defendant as to extent of delegated authority – defendant did not check terms of instrument of delegation – defendant put on inquiry by very nature of transaction – defendant’s awareness of employee’s authority in other dealings consistent only with employee’s position and far removed from such kind of agreement – AGENCY – agreement conferred promise of financial reward to employee – conflict between personal interest and duty to employer – no informed consent by employer to conflict – statutory corporation entitled to rescind agreement

PROCEDURE - judgments and orders - amending, varying and setting aside - whether given or entered irregularly, illegally or against good faith. PROCEDURE - pleadings - verification of pleadings - who can verify. PROCEDURE - amendment of pleadings - late application for amendment - no evidentiary basis for proposed amended pleading. PROCEDURE - courts and judges - disqualification for apprehended bias. PROCEDURE - abuse of process - limited resources of courts - Plaintiffs' desire to pursue futile claims - proceedings stayed. COSTS - costs thrown away by failure of Plaintiffs to comply with Court orders - summary assessment of costs by Court - direction that costs to be paid forthwith or proceedings stayed.

CRIMINAL LAW - sentence - break, enter and steal - principle of totality - whether prior sentence of imprisonment should have been taken into account - whether sentence manifestly excessive - Applicant with long prior criminal history - minimal prospect of rehabilitation.

CRIMINAL LAW – appeal against sentence – supplying prohibited drug (methylamphetamine) – whether trial judge erred in not accepting as a matter of mitigation the circumstances of the applicant’s drug addiction from a young age – whether trial judge erred in not adjusting the overall non-parole and parole period sufficiently for special circumstances after indicating there were special circumstances – no error found – leave to appeal refused.

COSTS – criminal appeal – appeal by Director against interlocutory decision – appeal withdrawn – whether respondents entitled to certificate under Suitors’ Fund Act 1951 (NSW), s 6 - WORDS & PHRASES - "appeal" - "Supreme Court" "succeeds", in relation to appeal

CRIMINAL LAW - appeal and new trial - objections or points not raised in court below - misdirection and non-direction - whether certain statements made by accused capable of being construed as evidence of consciousness of guilt - whether trial judge failed to direct jury in relation to consciousness of guilt reasoning

Family Provision. Claim by step-daughter. Short period of dependency. Held that plaintiff who lived with her father in the deceased's house was dependant on deceased. Order for modest provision.

PRACTICE AND PROCEDURE - complex litigation concerning insurers' purported avoidance of D & O policy and liquidator's claim against directors for insolvent trading - respondent settles insolvent trading claim with liquidator but seeks indemnification from insurers for settlement money paid - application for joint hearing of proceedings - whether appropriate for same judge to determine insolvent trading proceedings and decide whether settlement was reasonable - whether common issues in the proceedings - whether prejudice to respondent

COSTS – Probate litigation – Issue in application for Letters of Administration – Whether plaintiff was de facto spouse of intestate – Lengthy hearing including overseas witnesses led to finding that she was [2010] NSWSC 50 – Plaintiff sought costs order against defendants (relatives of intestate), defendants sought costs out of estate – Consideration of discretionary factors including contribution of intestate's conduct to difficulties of resolving the issue – Consideration of UCPR 42.1 – Costs order departed from ordinary course in UCPR.

PROCEDURE - costs - order setting aside statutory demand by consent or without opposition - defendant sought no order as to costs after filing of submitting appearance - plaintiff sought indemnity costs from date of settlement offer rejected by defendant - prima facie position that costs follow the event not displaced - defendant to pay plaintiff's costs on ordinary basis

APPEAL – Local Court Act 2007, s.39 – question of law – CORPORATIONS – proceedings by creditor of insolvent company for recovery fro director under s.588M(3), Corporations Act 2001 – requirement under s.588R of that Act for written consent of liquidator to begin such proceedings – proceedings commenced before liquidation – subsequently amended statement of claim filed the day following receipt of written consent from liquidator – whether proceedings validly commenced by the amended statement of claim – whether “consent” given – or statement of “no objection” a “consent” – PRACTICE AND PROCEDURE – s.65, Civil Procedure Act 2005 – power to amend documents – whether power under s.64 available to “commence” proceedings under s.588M when proceedings on the original statement of claim were defective – held power under s.64 to amend was available and could validate such proceedings consistently with the purpose and object of the federal provisions (s.588M) – the proceedings were valid under the amended statement of claim

APPEAL - Workers Compensation - appeal from Workers Compensation Commission Appeal Panel - construction of s 323 of the Workplace Injury Management and Workers Compensation Act 1998 - error made - appeal upheld - medical panel decision quashed - costs

CONTRACTS - particular parties - vendor and purchaser - sale of land - where vendor failed to complete contract - specific performance

SUCCESSION - wills, probate and administration - construction and effect of testamentary dispositions - uncontested that inadequate provision was made for the plaintiff out of the testator's estate - what is the proper provision that should be made for the plaintiff’s maintenance, education and advancement in life - little chance of plaintiff finding employment - plaintiff given legacy to further his advancement in life

CORPORATIONS - insolvent trading - liability of directors - presumed insolvency arising from failure to keep and retain financial records - actual insolvency arising from deficiency of working capital - whether reasonable grounds for suspecting insolvency - whether directors aware of such grounds - whether a reasonable person in like position in a company in the company's circumstances would be so aware - when debts were incurred

CRIMINAL LAW – appeal against sentence – common assault, malicious damage and intimidation whether fact that all of the charges could have been dealt with in the Local Court was taken into account– whether the sentencing judge failed to assess properly, or at all, the objective seriousness of any of the offences that had been the subject of pleas of guilty in the Local Court – whether the sentences are manifestly excessive – appeal against sentence allowed.

NON-PUBLICATION ORDER - whether necessary to secure the proper administration of justice PRACTICE AND PROCEDURE - proceedings summarily dismissed - claims founded on sexual abuse of children by their stepfather - existence of a duty of care by the State conceded - whether allegations of breach of duty raised factual questions that should be determined at trial - whether primary Judge erred in holding that the claims were bound to fail

CORPORATIONS – REINSTATEMENT – Whether identifying the existence of an insurance policy is a proper and practical purpose of reinstating de-registered company.

COSTS – Application to set aside Statutory Demand – whether defendant should bear the costs of the proceedings after withdrawing original Statutory Demand.

Administrative law - Workplace Injury Management and Workers Compensation Act 1998 - review by Appeal Panel of medical assessment - no error on face of record - lack of procedural fairness.

ADMINISTRATIVE REVIEW - Judicial Review - ERROR OF LAW - Medical assessment under Motor Accidents Compensation Act 1999 - Where Proper Officer made decision to refer the matter for further assessment - Whether Proper Officer made error in law

CORPORATIONS – STATUTORY DEMAND – Application to set aside Statutory Demand – whether there is a genuine dispute as to the amount of the debt.

AGENCY – CORPORATIONS – company has two directors each of which guarantees repayment by company of loan from plaintiffs - authority of a single director to give a direction to pay under loan agreement where the company was borrower – implied actual authority – requirements for – ostensible authority – requirements for – Corporations Act 2001 (Cth) – assumption in section 129(2)(b) that director has authority – whether plaintiffs were entitled to make that assumption – CONTRACT – deed of guarantee – construction – joint guarantee – effect of joint obligation

PRIVATE INTERNATIONAL LAW – stay of proceedings – dismissal of proceedings – test is whether the Court is a clearly inappropriate forum – factors argued relate to substantive law, residence of defendants, cost of expert evidence, costs of attendance by defendants, availability of insurance cover for foreign judgment and available jurisdiction of the service – Court not clearly inappropriate – motion dismissed

PROCEDURE - miscellaneous procedural matters - other matters - application to amend statement of claim to add cause of action and join additional plaintiffs - application that plaintiffs be identitified by pseudonyms

CRIMINAL LAW — Road Transport Legislation — habitual traffic offender declaration — effect of “quashing” habitual traffic offender declaration — declaration annulled for the future but not ab initio — Crimes (Sentencing Procedure) Act s 43 — Section 43 not available where penalty not imposed by a court

INSURANCE - right to contribution as between insurers - double insurance - workers compensation insurance - motor vehicle third party insurance - employee of TT injured through use of motor vehicle - employee sued CB as "owner" of vehicle in negligence and recovered damages - third party policy in respect of vehicle covered CB's liability - whether TT also "owner" under third party policy - whether liability of TT covered by both that policy and TT's workers compensation policy - no liability of TT crystallised - only crystallised liability is that of CB - no basis for operation of double insurance

WILLS PROBATE AND ADMINISTRATION – Entitlement on distribution where executors claimed to offset debt owed by beneficiary to deceased – Decision on operation of non-standard Deed of Agreement and Loan Agreement entered into by testator with beneficiary – On construction of documents HELD the beneficiary had a contractual right under Deed of Agreement Cl 13 to discharge of debt arising according to terms of Loan Agreement – Decision on documents, no general principle.

PROCEDURE - miscellaneous procedural matters - other matters - claim for interim payment under s 82 Civil Procedure Act 2005 - conflicting opinions in reports of experts as to whether breach of duty of care - inability of Court to resolve conflict on basis of reports - inability to be satisfied that the plaintiffs would obtain judgment

STRATA TITLES – VENDOR AND PURCHASER – Option to purchase land – Bondi Beach Astra Retirement Village – Developer sold unit to Mr and Mrs Evans and Special Condition required them to enter into Occupancy Agreement and Buy-back Deed with plaintiff BBA (not the vendor) – Those documents gave permanent pre-emption and option to purchase rights at original sale price on events including vacation of unit and deaths of unit owners: After deaths of Evans in 1995 and 1997 BBA purportedly exercised option in 1999 but contracts were not exchanged, no deposit paid and no move towards completion after July 1999 – BBA revived claim to purchase in 2007, gave a fresh notice of exercise and sued for specific performance. - HELD (1) Notice of Exercise in 2007 had no effect because of time limit on options imposed by s 167 of Retirement Villages Act 1999. (2) BBA could not rely on 1999 exercise because of laches. (3) Further, the pre-emptive and buyback provisions were void as restraints on alienation of freehold land. - Consideration of events in course of conduct of affairs of Bondi Beach Astra Retirement Village.

CORPORATIONS - statutory derivative action - pleadings - company asserts breach of duty against director and recipient from company of Torrens land - application for leave to amend to plead that director was agent for recipient - whether amendment alleged recipient had actual or imputed knowledge of wrongdoing - oppression proceedings - application to add derivative claims arising out of same facts - whether statutory derivative claims and oppression claims may be combined in single proceedings - whether company required to be a plaintiff in proceedings containing statutory derivative claims

Common law - practice and procedure - setting aside default judgment - interests of justice.

PROCEDURE - Leave to amend Statement of Claim - no reasonable cause of action - abuse of process - dismissal of proceedings

SUCCESSION - family provision - claim by elderly widow - financial and material circumstances of Plaintiff - Defendants concede that will does not make adequate provision for Plaintiff - competing claims of residuary beneficiaries - appropriate provision to be made for Plaintiff.

CRIMINAL LAW – particular offences – property offences – robbery – circumstances of aggravation – inflict actual bodily harm – CRIMINAL LAW – appeal against sentence – failure to take into account requirements of s 22 Crimes (Sentencing Procedure) Act - explanation required where discretion to decline to allow reduction in respect of guilty plea is exercised - sentence manifestly excessive based on objective circumstances – parity ground rejected, disparity in sentences proportionate to culpability and personal circumstances – appeal allowed, applicant re-sentenced

CRIMINAL LAW - appeal - appeal against sentence - grounds for interference - whether sentencing judge erred in assessment of the objective seriousness of the offence - appeal ground dismissed - whether sentencing judge properly considered the applicant's mental illness when sentencing - appeal ground dismissed - CRIMINAL LAW - appeal - appeal against sentence - grounds for interference - sentence manifestly excessive - application of De Simoni principle

CONTRACT - construction and interpretation of contracts - limitation clauses - whether any or both of two relevant limitation clauses in the relevant contracts applied

CORPORATIONS – STATUTORY DEMAND – Application to set aside a Statutory Demand – whether Demand can be set aside for “substantial injustice” or “some other reason” – whether defects including omission of required warning produced injustice or “some other reason” to set aside Demand – whether defects amounted to “mere defect” for s 459J(2). - COSTS – INDEMNITY BASIS – Whether Plaintiff should bear costs of the proceedings on the indemnity basis where application had no prospects of success.

REFEREES/REFERENCES - Whether the Referee's explanation impacts on findings previously made in judgment ([2009] NSWSC 208) - Whether Referee addressed matter remitted - Whether Report in respect of architect's liability for Contents Claim should be adopted - Whether architect's limitation defence available