Cases and authorities

PRACTICE AND PROCEDURE – application for leave to re-open before hearing is concluded and delivery of final judgment – principles relevant to grant of leave to re-open – plaintiff seeking to tender further evidence coming into existence after conclusion of proceedings – leave granted to re-open and submit further evidence – INJUNCTIONS – principles concerning when an injunction of the kind referred to as a Mareva order should be made – requirement of prima facie cause of action and real risk of frustration of judgment – not necessary to show an intention to frustrate – no Mareva order made – balance of convenience in favour of defendant

Family Provision. Claim by two daughers. Plaintiffs' interests in remainder accelerated as life tenant could no longer use family home. No matter of principle.

Family Provision application by adult daughter left with only small provsion as majority of deceased's estate passed to another daughter by survivorship. Minor further provision and plaintiff's costs capped.

PRACTICE AND PROCEDURE – application to re-open and set aside judgment in reliance on unconscionable conduct claim – alleged procedural unfairness/irregularity – alleged misapprehension of principles of law/pleadings/facts going to question of acquiescence – motion for leave to re-open dismissed - COSTS – multiple issues in proceedings – unsuccessful plaintiffs sought departure from general rule that costs follow the event and apportionment of costs for separate issues – no disentitling conduct on the part of the defendant – defendant did not improperly pursue issues on which she failed but which may well have been considered to have prospects of success – defendant’s unsuccessful claims were relevant to an understanding of other matters in issue – no apportionment of costs referable to separate issues in the proceedings

CRIMINAL LAW - sentence - non-parole period or minimum term - aggravating or mitigating factors - CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offender - mental disorder - CRIMINAL LAW - appeal - appeal against sentence - grounds for interference - sentence manifestly excessive or inadequate

CRIMINAL LAW - appeal - appeal against sentence - grounds for interference - judge acted on wrong principle - other matters - sentence manifestly excessive or inadequate - CRIMINAL LAW - sentence - interpretation of sentencing provisions - relevant factors - nature and circumstances of offence - premeditation and method of execution

EQUITY- father's estate claims land in son's name- father and son with very similar names- primary judge dismisses claim- decision on facts upheld- presumptions of resulting trust and advancement of little assistance.

PROCEDURE - Supreme Court procedure - New South Wales - s 60(2) of the Bankruptcy Act 1966 (Cth) - effect of statutory abandonment of proceedings following bankruptcy - effect on claim for personal injury - s 60(4) of the Bankruptcy Act (Cth) - consequence of appeal to Federal Court - BANKRUPTCY - proceedings in connection with sequestration - petition and sequestration order - stay of proceedings - adjournment of hearing pending appeal to Federal Court - proceedings dismissed upon Federal Court's refusal of appeal

PRACTICE & PROCEDURE – UCPR 28.2 - application to set aside previous order that issues of liability and quantum be determined separately – where high probability that plaintiffs' witnesses will give evidence touching both areas - whether questions of credit likely to arise – where real possibility of both conflicting decisions on credit of witnesses and forensic disadvantage to the defendants if separated issues not consolidated – order revoked.

PROCEDURE - costs - general rule costs follow the event - multiple issues - failure on one issue - no departure from general rule - refusal of costs of successful party - nominal success on cross claim - each party to bear their own costs of cross claim

CORPORATIONS - winding up - application for reinstatement of defunct company by liquidator for purpose of investigating and taking recovery proceedings - failure to notify former director of reinstatement application - whether Court should set aside reinstatement order - whether Court should reverse the reinstatement under s 1322 - whether liquidator is acting for improper purpose - whether proposed recovery proceedings statute-barred - whether abuse of process - whether liquidator's solicitor should be disqualified from acting

STRATA TITLES – Duty of Owners’ Corporation to maintain common property in Strata Schemes Management Act 1996 s 62(1) – Ingress of water through exterior walls caused damage to carpet in August 2003, ineffective repairs were arranged by Owners’ Corporation, dampness and water leaks in 2005 and 2006, flooding in June 2007, extensive interior damage, tenant left, premises uninhabitable from about August 2006 – Many calls for action by Owners’ Corporation and no effective response – Claim for damages and mandatory injunction – Owners’ Corporation joined Insurer in Cross-claim but discontinued during hearing – HELD – Mandatory Injunction appropriate, damages awarded, Seiwa Pty Limited v Owners Strata Plan 35042 [2006] NSWSC 1157 applied.

PRACTICE and PROCEDURE - judgments and orders - slip rule - amending costs order - COSTS - award of costs in workplace injury matters - Workplace Injury Management and Workers Compensation Act 1998, s 346 - Workers Compensation Regulation 2003, cl 91 - parties to bear their own costs - WORKERS COMPENSATION - costs in workplace injury matters - costs governed by Workplace Injury Management and Workers Compensation Act and Workers Compensation Regulation

PRIVATE INTERNATIONAL LAW - stay of proceedings - clearly inappropriate forum test – relevance of foreign law as substantive law of underlying legal relationship between parties - PRIVATE INTERNATIONAL LAW - stay of proceedings – clearly inappropriate forum test - issues in dispute questions as to real property in New South Wales - PRIVATE INTERNATIONAL LAW - choice of law - contract with respect to property, including real property, usually governed by the proper law of the contract - PRIVATE INTERNATIONAL LAW - choice of law - implied contract of marriage - governed by the law of matrimonial domicile.

LIQUIDATIONS – PRACTICE AND PROCEDURE – Application for leave to file Cross Claim against company in liquidation – discretionary factors relevant to granting of leave under s 471B – whether leave is given by the Court where evidence supporting Cross Claim appears to be inadmissible.

CRIMINAL LAW - Sentence after trial - conspiracy to do acts in preparation for a terrorist act - Commonwealth offence - Terrorism offence - Principles applicable to sentencing - Application of parity principles by analogy - Objectively grave offence - not far short of most serious case - Absence of remorse and contrition - Absence of withdrawal from extremist convictions.

Criminal Law - Sentence - multiple armed robberies - whether sentence manifestly excessive

CRIMINAL LAW - sentence - relevant factors - sexual intercourse with child under 16 - whether use of internet and planning of offence constitute aggravating factors - whether public opprobrium or loss of public standing constitute mitigating factors

REMEDY - further submissions as to tracing - assessment of benefit ordered

CRIMINAL LAW – sentence – murder – underlying incipient psychosis – particular facts – no issue of principle – sentence imposed

Damages - Summary of principles in relation to damages generally and contract damages in particular - Separate question orders agreed by parties - Lost profits-competing contentions on treatment of overheads/fixed costs - Whether proper basis of assessment is to apply the ‘absorption method’ of cost accounting to allocate correctly all of the fixed costs across the whole of the relevant business - Alternatively whether the proper basis of assessment is that has defendant continued to incur the fixed costs in question, an apportionment of those costs using the ‘absorption method’ is inappropriate - Consideration of Dart Industries inc. v Decor Corporation (1993) 179 CLR 101-Evidence - Consideration of section 146 of Evidence Act 1995

CONTRACTS - general contractual principles - illegal and void contracts - call option for purchase of residential property made void by statute - call option and put option created by same deed - period within which prospective vendor may put commences after period within which prospective purchaser may call - whether statutory provision making call option void affects put option - whether contract severable

Claim for possession of land - motion for summary judgment - whether service of notice under section 8 Farm Debt Mediation Act 1994 was effective - whether plaintiff entitled to bring proceedings.

SUCCESSION – family provision and maintenance – principles upon which relief granted – application made by three adults from first marriage for provision from father’s estate –large estate left to five children from both marriages and second wife – whether inadequate provision made for three children from first marriage – if so, what provision ought to be made – one claimant with serious psychological condition requiring provision for special care – application of discount tables to lump sum award – whether property held by second wife as a result of survivorship and distribution of deceased’s estate is available to be designated notional estate after second wife’s death – held that inadequate provision made – property held by or distributed to second wife not able to be designated notional estate – provision ordered for plaintiffs by rewriting of testamentary trusts and capital sum to be held under special disability trust for one of claimants

WILLS PROBATE AND ADMINISTRATION – Intestacy – De facto spouse – Decision that plaintiff was de facto spouse of intestate – Review of evidence of events in relationship from February 1981 until death of intestate in February 2007 – Plaintiff and deceased had many journeys separately and apart and did not stay in one place for more than a few months at a time – Houses in New South Wales, Bali and New Mexico – Often physically separated but always returned to be together – Consideration of conduct during illness and hospitalisations – At time of death had not been together in same place for eight months – HELD – De facto relationship as defined, plaintiff entitled on intestacy.

APPEAL AND NEW TRIAL - Appeal - Question of law - Where Magistrate found for defendant on every issue - Whether there was error of law

PARTNERSHIP - Accounts _ Partnership or joint venture in suburban newsagency governed by home-made written agreement - Partnership assets held through vehicle of company - Plaintiff to be manager but left after six months with agreed drawings unpaid - defendants partners provided finance, took over and conducted the business for four years until company wound-up for unpaid debt - Plaintiff claimed accounts and other claims - HELD on the facts there were not sufficient prospects of a result favourable to the plaintiff to justify ordering accounts to be taken.

LANDLORD AND TENANT – lease, "residence contract" – Retirement Villages Act 1999 – resident not in occupation – purported termination of tenancy by landlord – whether s 129 of Retirement Villages Act 1999 exhaustive – whether disclaimer under s 129(2)(d) established

CRIMINAL LAW AND PROCEDURE - Sentence - Robbery in company - Young offender - Plea of guilty at earliest opportunity following frank admissions to police - Unplanned opportunistic offence - Failure to accord utilitarian value of the plea benefit to offender - Material available for resentence - Assessment of new sentence (by majority)

CRIMINAL LAW AND PROCEDURE - Sentence - Fraud by company officer - Multiple offences over extended period - Sentencing judge not satisfied that offender has good prospects of rehabilitation - Setting of non-parole period - Special circumstances not found - Effect of cumulation on proportion of non-parole period to head sentence - Adjustment appropriate - Otherwise no case for intervention by appellate court shown

CRIMINAL LAW - application for leave to appeal against sentence - armed robbery - whether sentencing judge gave adequate weight to applicant's mental condition arising from use of a drug and to his troubled background - whether effect of applicant's imprisonment upon his family should have been taken into account

CRIMINAL LAW - sentence - sentencing procedure - approach to sentencing process - generally - procedural fairness - judge's expression of suspicion about role of applicant in offence - whether caused change in previously indicated view about non-parole proporton of sentence

CRIMINAL LAW AND PROCEDURE - Prohibited drug grown by enhanced indoor means - Sentence - Limited role of offender - Plea of guilty - Standard non-parole period prescribed - Previous offending relating to drugs - Head sentence and non-parole period significantly less than standard prescription - No error in assessment by sentencing judge

Proceedings represent aftermath of decision of the High Court of Australia in Agricultural and Rural Finance v Gardiner [2008] HCA 57 - Failure by the plaintiff to serve the applicants until late 2008 being well after the hearings at first instance, in the Court of Appeal and the High Court - Applications for orders discharging extension orders - Consideration of the nature of the discretion - Consideration of the factors to be taken into account in the exercise of the discretion

PROCEDURE - Pleadings - Amendment - Leave - where cross claimant seeks leave to file further amended cross claim - whether dictates of justice require amendment be allowed

EVIDENCE – ruling on admissibility in advance of hearing - STATUTORY INTERPRETATION – meaning of “engage”, “engaged” and “procedural irregularity” –Superannuation Industry (Supervision) Act 1993 (Cth) (the “SIS Act”), sections 10, 266(1), 295, 312(1) and 312(5) and the Australian Prudential Regulation Authority Act 1998 (Cth) (the “APRA Act”) sections 3(1) and 47(1) – section 295 of the SIS Act provides that a copy of a report under Division 6 by an inspector is admissible in a proceeding (other than a criminal proceeding) as prima facie evidence of any facts or matters that the report states an inspector to have found to exist – section 266(1) of the SIS Act provides that an inspector may, by signed writing, delegate to a member of the staff of the Regulator any of the inspector's powers under this Part – under section 10 a member of the staff in relation to APRA means a person who is an APRA staff member within the meaning of the APRA Act – under sections 3(1)(c) and 47(1) of the APRA Act an APRA staff member means a person engaged to provide advice to it or perform services for it – where an inspector purports to delegate his powers to another person who is engaged by the inspector or other consultants to assist in the preparation of a Report – whether that person was engaged within the meaning of the statutory enactments – whether, if the person was not engaged because he did not satisfy the requirements of being a member of the staff of APRA the irregularity is a procedural irregularity – whether the court should make an order under section 312(5) of the SIS Act curing the irregularity.

FAMILY LAW - de facto relationship - claim for adjustment of interests of parties in property - duration of relationship - no pooling of assets - little by way of contribution by either party to relationship - entitlement to adjustment of interests in property not established. - Claim for debt - monetary advance by one party in a de facto relationship to the other party - characterisation of such advance - whether a loan which recipient is liable to repay

Criminal Law - Sentencing - inappropriate use of Form 1 - no other matter of principle.

APPEAL - criminal - conviction - failure to give Longman warning - verdict unreasonable - powers of court on appeal - whether new trial appropriate - CRIMINAL LAW - appeal against conviction - procedure - summing up - failure to give Longman warning - whether miscarriage of justice - CRIMINAL LAW - appeal against conviction - whether verdict unreasonable or unsupportable having regard to evidence

JUDICIAL REVIEW – order of Tribunal set aside – order thereby avoided ab initio – proceedings in which order made by Tribunal never determined by it – Tribunal bound to hear and determine according to law.

TORTS - negligence - slip and fall - breach of duty of care - causation of harm - LIMITATION OF ACTIONS - contracts, torts and personal actions - personal injury cases - when time begins to run - Limitation Act 1969 section 50C

COSTS – certiorari against Tribunal – underlying internal dispute in strata scheme – costs of manager appointed irregularly – costs of plaintiff and indemnity against liability for costs

CORPORATIONS - receivers, controllers and managers - duties and liabilities - DAMAGES - liability of receivers and managers - s 419A Corporations Act - assessment of damages payable by agents for mortgagee in possession in respect of rent and other amounts accruing under prior agreement - TORTS - conversion - assessment of value of goods converted - INTEREST - recoverability of interest - interest on unpaid hire charges - interest pursuant to s 100 Civil Procedure Act

COSTS – ordinarily follow the event – no good reason to depart from ordinary rule

COSTS - No question of principle.

PRACTICE and PROCEDURE – appeal – extension of time –intending appellant impecunious – prejudice to respondent - prospects of success required.

CORPORATIONS – application to set aside statutory demand under Corporations Act 2001, s 459G – genuine dispute in relation to part of debt claimed – substantiated amount of demand less than statutory minimum – statutory demand set aside under s 459H(3)

CONTRACT – vendor and purchaser dispute – where time for completion of the essence – failure to complete by purchaser – validity of vendor’s service of notice of termination of contract – whether vendor performed obligation to serve occupation certificate within meaning of Environmental Planning and Assessment Act 1979 – whether documents required to accompany occupation certificate form part of certificate – whether vendor breached obligation to provide particulars for form of transfer by failure to notify purchaser of appointment of administrator – intimation by purchaser to vendor that useless to complete – vendor’s reliance on purchaser’s intimation dispensed with vendor’s obligation to be ready, willing and able to complete – vendor’s remedies – termination – forfeiture of deposit – damages