Cases and authorities

EQUITY – trusts and trustees – charitable trusts – schemes – administrative scheme – where plaintiff holds property upon constructive charitable trust and no trust instrument – where plaintiff seeks an order that the trust be administered in accordance with an administrative scheme – whether purposes of remain charitable – where scheme will facilitate commercial dealings of trustee and permit winding up of trust and transfer of assets to corporation for same charitable purposes - held: trust to be administered in accordance with administrative scheme.

CRIMINAL LAW - sentence - agreed statement of facts - aggravating circumstances

REAL PROPERTY - default on loan with residential property as security - action for possession successful at first instance - refusal of stay of writ of possession - review of decision of Judge of Appeal - pending application for special leave to High Court - whether identifiable point of substance - stay not to be continued.

Civil - appeal from Local Court - whether breach of contract in relation to length of term of engagement - whether misrepresentations made - whether claim within scope of Trade Practices Act - meaning of phrase "carrying on a business"

CORPORATIONS - winding up - winding up by the court - surplus after payment of debts and claims in full - proposed distribution to contributories - whether necessary to settle list of contributories - ascertaining entitlements to surplus - role of company's constitution - need for "special leave" to distribute - whether Form 551 should be dispensed with - where surplus includes company's right to participate as a creditor in the insolvent winding up of another company - nature of that right - proposed distribution of the right in kind - where constitution allows distribution in kind with sanction of special resolution - no effective special resolution passed - whether court has power to sanction distribution in kind despite absence of special resolution - whether unanimous assent may cure absence of special resolution - whether assignment of right under winding up of another company is an "agreement" within s 477(2B) - where entitlement to surplus rests with sole member which is itself in liquidation and company concerned is a creditor in that liquidation - whether modified rule in Cherry v Boultbee requires deferral of distribution of surplus until proceeds of proof received - no such requirement in case of sole contributory - distribution in kind of the company's right under the sole contributory's winding up - whether such distribution constitutes "compromise" of "debt" - liquidator's remuneration - power of court to fix where no committee of inspection and no creditors - release of liquidators - application premature where surplus not distributed - destruction of books - whether on the evidence order sought as to destruction should be made

CRIMINAL LAW - sentence - murder - multiple blows to the head with a hammer - intention to kill - early plea of guilty

PROCEDURE – Motor Accidents Compensation Act 1999 - CARS assessment – refusal by assessor to permit cross-examination of claimant at an assessment hearing – whether denial of procedural fairness - application for stay pending challenge to procedure – requirements for grant of stay - whether risk that insurer will not be able to recover damages from claimant if stay not granted – whether insurer likely to succeed – stay refused

CRIMINAL LAW – accused charged with murder and wounding with intent – evidence of psychiatric illness including treatment resistant schizophrenia and psychosis – Mental Health (Forensic Provisions) Act 1990 – whether accused unfit to stand trial – undisputed medical opinion that accused unfit to stand trial

CRIMINAL LAW - sentence - accessory after the fact to murder - aggravated break, enter and steal - obtain money by deception - drive whilst disqualified - Form 1: take and drive conveyance and firearm offences

LANDLORD AND TENANT – leases and tenancy agreements – whether second plaintiff/lessee disentitled from exercising option to renew by reason that it had not observed and performed covenants and agreements in lease – where there had been “insolvency events” which were deemed defaults under lease – where there was no covenant or agreement by lessee not to suffer an insolvency event – held, lessee not disentitled from exercising option - assignment– where information required to be given to the defendant in order to obtain consent not provided – where assignment in breach of covenant not to assign without consent – whether assignment effective to convey leasehold in equity to assignee – where assignee purports to exercise option – whether assignee “permitted assign” – whether equitable assignee entitled to exercise option – held, assignment effective in equity notwithstanding want of consent but assignee not “permitted assign” and not entitled as mere equitable assignee to exercise option. CORPORATIONS – external administration – receivership – where receiver of lessee pursuant to mortgage of lease purports to exercise option to renew lease after liquidator appointed – whether receiver able to exercise option and execute notice of exercise

Offer and acceptance - acceptance must correspond with offer - offeree "prepared to accept subject to confirmation" of nominated matters - not merely "checking exercise" - held that no contract brought into existence.

EQUITY - confidential information - application by former client for injunction to restrain solicitors from acting - application based wholly on apprehension of misuse of confidential information about plaintiff's financial position - where last instructions given four years ago - where no substantial instructions given for many years - where any confidential information about financial position that solicitors did obtain was obtained fourteen or more years ago - not established that solicitors possess any relevant information or that reasonable person would have apprehension of misuse of any information

CRIMINAL LAW - appeal against sentence - whether sentence is manifestly excessive - possession of child pornography - difference between "objective seriousness" and "seriousness of an offence" - whether offence committed whilst on conditional liberty - applicant subject to interim prohibition order at time of offence

REAL PROPERTY – Compulsory Acquisition of land – Compensation – Assessment – Market value – Injurious affection or betterment of adjoining property – Whether increase in value of residue land was by reason of the carrying out of or proposal to carry out the public purpose for which land was acquired - Highest and best use – Acquired land located in flood zone – Council had adopted policies to use land for trunk drainage scheme involving detention basins – Whether hypothetical purchaser would be prepared to add value on the basis that a cut and fill scheme was likely to be approved by the Council and implemented so to enable development on flood affected land - Error on a question of law – Whether error of law constituted by statement of primary judge that where expert evidence is conflicting, doubts are to be resolved in favour of claimant – Whether finding vitiated by error of law - Whether an inherent characteristic of the acquired land was that it be used only for trunk drainage - Whether primary judge erred in determining underlying zoning of acquired land - Stamp duty – Claim under s 55(d) and s 59(d) of Land Acquisition (Just Terms Compensation) Act 1991 for loss attributable to disturbance due to stamp duty costs incurred in connection with purchase of a replacement property – Effect of s 61 of Land Acquisition (Just Terms Compensation) Act 1991 on stamp duty claim where market value is assessed on basis of potential use that is more valuable than actual use of land prior to acquisition

LOCAL GOVERNMENT – powers, functions and duties of councils – Gaming Machines Act 2001 section 209 – whether reasons for refusal of development application were reasons relating to the installation, keeping or operation of approved gaming machines – nature of the prohibition in section 209 – STATUTES – interpretation – observations of the nature of statutory interpretation – statutory context – whether regulations made after the commencement of the principal Act can be used to construe the principal Act – use of extrinsic material – whether statements of intention made in Parliament can be used to interpret an Act – APPEAL – role of Court of Appeal hearing an appeal on a question of law from a judge of the Land and Environment Court who acted as a substitute decision-maker for the consent authority – COURTS AND JUDGES – legal reasoning – observations as to the nature of legal reasoning in a common law system – WORDS AND PHRASES – “relates to” – “relating to” – “in relation to” – “in respect of” – “in connection with” – “refuse to grant … development consent … for any reason that relates to …”

PROCEDURE – Costs – Relief obtained by successful appellant substantially less than sought at first instance and on appeal – Less than reasonable participation in settlement negotiations – Appropriate orders for costs at first instance and on appeal.

EVIDENCE - facts excluded from proof - privilege in respect of self-incrimination – application for a certificate to be given under s 128 of the Evidence Act for evidence proposed to be given by a defendant in chief by affidavit - whether the defendant in those circumstances “objects” within the meaning of s 128(1) - consideration of Ferrall v Blyton (2000) 27 Fam LR 178 and Cornwell v R (2007) 231 CLR 260 - held that defendant did not object within the meaning of s 128 as defendant not otherwise compelled to give the evidence - PROCEDURE - courts and judges generally - precedents - decisions of particular courts - conflict between ratio of Full Family Court judgment and dicta of High Court majority judgment - both entitled to significant deference but neither strictly binding upon New South Wales Supreme Court - consideration of phrase “seriously considered dicta” - consideration of proper approach to conflicting non-binding authorities

Application for indemnity costs where party's evidence disbelieved - party's evidence not deliberately concocted - rather, party had persuaded himself as to the truth of his evidence - trial properly conducted - indemnity costs not awarded.

CORPORATIONS - scheme of arrangement - whether court has power to make orders adjourning or otherwise postponing a meeting to approve a scheme of arrangement, after the meeting has been convened pursuant to earlier orders of the court

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offender - preliminary hearing - release from custody imminent - application for interim supervision order for 28 days pending final hearing – order sought for examination by psychiatrists – orders made

MORTGAGES - exercise of power of sale - injunction to restrain mortgagee completing after sale at auction to a bona fide purchaser - rule in Inglis v Commonwealth Trading Bank

ADMINISTRATIVE LAW – Victims Compensation Tribunal – error of law – orders in the nature of certiorari – 'related acts' for purpose of definition of 'act of violence' – irrationality – sufficiency of reasons – orders issued

Principles re costs incurred under cross vesting applications

STATUTORY INTERPRETATION – acts of parliament – interpretation – applicant unsuccessful in proceedings for unfair dismissal under Workplace Relations Act 1996 (Cth) –subsequent complaint of unlawful dismissal in respect of the same termination pursuant to Anti-Discrimination Act 1977 (NSW) – whether Anti-Discrimination Act proceedings barred by Workplace Relations Act 1996 (Cth) s 170HB(4) - APPEAL – application for leave to appeal – challenge to findings on remitter from Court of Appeal – Court of Appeal found subject matter of complaint pursuant to Anti-Discrimination Act 1977 (NSW) not same as that dealt with in Workplace Relations Act complaint – whether primary judge reversed or failed to take into account first Court of Appeal ruling – no error demonstrated

COSTS - indemnity costs - defendants issue creditors' statutory demand against guarantor company, purporting to rely on an assignment - Deed of Assignment plainly does not assign the benefit of the guarantee - defendants should not have issued statutory demand - indemnity costs justified

WORKERS COMPENSATION - insurance - worker suffers workplace injury - worker is trainee under Australian Traineeship System - worker referred to dentist for treatment - dentist performs unnecessary and excessive treatment - treatment so inexcusably bad as to constitute novus actus interveniens - payments made to dentist by insurer - action by insurer in name of employer to recover monies paid to dentist - whether proceedings may be brought in name of employer - subrogation - restitution/unjust enrichment - contract - misleading or deceptive conduct - relief granted

FAMILY LAW - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - the Court should not be diverted from the clear words of the statute, which looks to past contributions actually made by the parties.

NEGLIGENCE - claim by patient against dentist - negligent treatment - admission of liability

Practice and procedure - Separate question orders - Principles - Complex proceedings concerning failed investment product and involving many corporate entities and 309 investors - Difficulties in identifying matters to be regarded as appropriate to be litigated as common questions as part of a separate question regime - Necessity for court to take an interventionist role in identifying separate question issues

PROCEDURE - application to re-open after judgment - whether obvious error that should be remedied by trial judge

Family Provision. Application by son who was left nothing in his mother's will. - Breach in relationship with mother. Legacy awarded. No matter of principle.

MENTAL HEALTH - management and administration of property – application for removal of NSW Trustee and Guardian as manager of estate of managed person and appointment instead of managed person’s father and sister – in best interests of managed person that his father and sister be entrusted with management of his estate

ADMINISTRATIVE LAW - judicial review - prerogative writs and orders - certiorari - medical assessment under Motor Accidents Compensation Act 1999 - application to CARS Assessor for further medical assessment - relevant and irrelevant considerations - duty to act judicially and reasonably - Assessor failed to consider relevant and material information - outcome may have been different - no discretionary factors for refusing relief.

LEGAL AID - Supreme Court's pro bono assistance scheme - requirement for "special reasons" if a referral has been made in the preceding period of 3 years - held no special reasons shown

Practice - Separate Questions - Franchise Agreement - meaning of 'termination'

ADMINISTRATIVE LAW - premises licensed under the Liquor Act 2007 - making of regulation which had effect of adding to the conditions under which those premises could operate - judicial review at common law - whether right to procedural fairness existed - content of requirement to provide procedural fairness - whether departure from procedure set out in "Fact Sheet" for consultation and assessment - whether procedural fairness in fact provided - whether decision irrational or illogical.

CORPORATIONS - managed investment schemes - unregistered scheme - earlier order for winding up of scheme - application by liquidator for directions - statutory basis for the making of directions - nature of interests of contributors to pooled investment fund - EQUITY - maxims of equity - "equality is equity" - "he who seeks equity must do equity" - hotchpot - how losses to be borne among contributors to pooled investment fund - where "returns" to early contributors paid out of capital - whether "returns" should be brought into hotchpot - where money of one pooled fund mixed with money of another. -

TRUSTS – establishment of a Welfare Fund by representatives of Masonic Lodges – the constitution established in accordance with Minutes of a General Meeting held in 1923 – no formal trust instrument – whether a valid trust, if so for what purposes – whether a trust to charitable purposes – if so how the charitable trusts may be described – a series of purported amendments to the constitution of the Fund subsequent to 1923 to change the objects of the Fund, to vest all trust property in elected trustees and to insert a power to amend the constitution – no previous power to amend – whether purported amendments effective only to change the rules of the Fund as an unincorporated association but not the terms of the trust on which the property was held – terms of the 1923 trust did not provide for replacement of the trustees, the revocation or variation of the terms of the trust – in absence of express provision, no basis on which such powers can be implied in the terms of the trust – no new trust settlements operating independently of the 1923 trust which was operated as a single continuous fund from 1923 – CHARITABLE TRUSTS the 1923 trust was a trust for charitable purposes, namely, a trust for the relief of poverty – all donated contributions made to the Fund – impossible to differentiate between donated funds according to the date of contribution – practical result accordingly was that all money and property settled upon the Fund since 1923 is to be taken as impressed with the trust which was established in 1923 and not as purportedly amended since establishment – balance of the proceedings in which orders sought settling a cy pres scheme to be case managed and determined

Application to set aside statutory demand - genuine dispute - to what extent does it have to be "revealed" by the supporting affidavit - whether "due and payable" as at the time of service of demand - offsetting claims. - Held: demand varied pursuant to section 459H.

PROCEDURE – adoption of referee’s report – principles applicable to adoption of report – whether referee made errors of law – construction of clause 10.14 of JCC-D 1994 when staged Practical Completion not being used – construction of schedule inconsistent with general conditions for payment of liquidated damages – whether proprietors who had not validly terminated contract could recover costs of rectifying defects where they prevented builder from making good defects in accordance with contractual procedures – where alleged works of rectification not done to contractual standard and record of alleged defects not kept – whether onus on builder to establish extent of betterment where works of alleged rectification were the result of proprietors’ repudiation – no substantial damages for cost of rectification of proven defects established – referee’s report substantially adopted

PROCEDURE – Stay – District court order for reassessment of an injury – Judicial review proceedings claiming order invalid – Whether order should be stayed.

PROCEDURE – Stay pending appeal – Whether leave to cross-appeal necessary where there is an appeal seeking damages substantially in excess of $100,000.

PROCEDURE - perfected final orders – irregularity – re-opening. - PRACTICE AND PROCEDURE - overriding purpose - duty of parties to assist Court - whether breach capable of being irregularity within Civil Procedure Act s 63. - RES JUDICATA - whether irregularity within Civil Procedure Act s 63 entitles unsuccessful party to have perfected final orders re-opened. - RES JUDICATA – finality - perfected orders - restrictions on re-opening.

PROCEDURE – Interlocutory injunction pending appeal – Balance of convenience.

PROCEDURE – Judgments and orders – Actions to review or set aside judgment – Application seeking leave to appeal from summary judgment – Where no error disclosed – Prospects of succeeding on appeal remote – Application dismissed - Application for extension of time in which to file summons for leave to appeal – leave granted due to particular factors in case warranting some leniency – not to be used as precedent for other such applications

CORPORATIONS – proofs of debt – appeals from rejection of proofs of debt – former employee sought to prove in liquidation of two companies who each rejected proofs of debt made by him for employment entitlements – each company submitted that the other was the employer at the relevant times – identification of plaintiff’s employer – transmission of business - determination of liability for superannuation contributions, redundancy pay, annual leave and accrued rostered days off – no entitlement to claim for untaken sick leave – appeals allowed - INDUSTRIAL LAW - New South Wales – identification of employer – transfer of employment requires consent of employee – plaintiff employed by new employer once he became aware of new employer and continued to work for new employer

PROCEDURE - costs - costs from estate - costs of expert witness - Calderbank letter - whether three elements of the plaintiff's costs should be disallowed

SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – where plaintiff widow is the only eligible person – where plaintiff, who is now 44 years of age, was married to the testator for 25 years and testator has no issue – where agreed that the provision for the plaintiff by the testator is inadequate – consideration of the relationship between the plaintiff and the testator – calculation of lump sum provision based on plaintiff’s future needs – provision for the purchase of a home and car and a fund for contingencies

TAXES AND DUTIES - Stamp Duties - plaintiff executed contracts for sale of land in New South Wales as purchaser for stated prices - deeds executed at same time for vendor to pay plaintiff amounts to be setoff against fit out rebates for tenants - whether consideration for agreements for sale were stated price less payments under the deeds