Cases and authorities

Entitlement to costs orders against first defendant to partnership proceedings - s37A Conveyancing Act claim - intent to defraud by first defendant, first and second defendants acting together - subsequent mortgages registered not vulnerable to attack - inability to grant useful relief - case not adequately pleaded - contempt of court established as against first defendant but not second defendant

Proceedings commenced by summons - grounds for relief unclear - application for summary dismissal on grounds that no reasonable cause of action disclosed - Held: application for dismissal premature - orders made requiring plaintiff to plead its case.

REAL PROPERTY – easements – application for grant of right of carriageway under s 88K Conveyancing Act 1919 – easement not reasonably necessary for the effective use or development of land that would have the benefit of the easement – defendant cannot be adequately compensated for loss arising from imposition of easement – requirements of s 88K not made out – court would not exercise discretion to grant easement – application dismissed

PRACTICE AND PROCEDURE –– application to set aside summary judgment pursuant to UCPR 36.16(2)(b) –application for adjournment – where defendants contest liability as guarantors - where delay in bringing application to set aside judgment – where failure to appear in response to application for summary judgment – where no defence on the merits - application dismissed

CRIMINAL LAW - Appeal against sentence - murder - whether applicant sentenced on wrong factual basis

CRIMINAL LAW – appeal against convictions – verdict unreasonable or unsupportable having regard to evidence – prosecution case based on evidence of complainant – applicant convicted on some counts but acquitted on others – whether verdicts inconsistent – whether rational basis for inconsistency between verdicts – whether convictions unreasonable or unsupportable – Criminal Appeal Act 1912 (NSW), s 6(1) - WORDS & PHRASES – "inconsistent verdicts" – "miscarriage of justice" – "unsafe or unsatisfactory"

CRIMINAL LAW - sentence appeal - drug cultivation - sentence not manifestly excessive

EVIDENCE – application for leave to commence proceedings out of time – tender of assessment by claims assessor – whether able to be taken into account – tender of reasons for assessment – whether relevant absent assessment – Motor Accidents Compensation Act 1999 (NSW), s 115 - LIMITATION OF ACTION – leave to commence proceedings after expiration of limitation period – motor accident compensation claim – whether total damages likely to be awarded were not less than 25% of the maximum amount for non-economic loss – Motor Accidents Compensation Act 1999 (NSW), s 109 - LIMITATION OF ACTION – application for leave to commence proceedings out of time – meaning of “likely” – whether assessment of likely damages required – evidence tendered not the subject of challenge - Motor Accidents Compensation Act 1999 (NSW), s 109

EQUITY - equitable remedies - mortgagee exercised power of sale - surplus proceeds of sale paid into Court - motion for payment out of court - whether applicant entitled to funds - whether any competing claimants - whether all interested parties served - calculation of interest

PROCEDURE – application to have proceedings dismissed pursuant to rule 13.4(1) UCPR – conspiring to injure – conspiracy – defamation – failure by plaintiff to identify in pleading the material facts relied upon – mere speculation – proceedings dismissed

CORPORATIONS - application to reverse rejection by Deed of Company Administrator of proof of debt - proof of debt claiming damages for breach of building contract under Bellgrove v Eldridge (1954) 90 CLR 613 and claim in respect of Local Court judgment - whether administrator erred in rejecting building contract damages claim - whether administrator rejected or erred in failing to adjudicate Local Court judgment claim - held that proof of debt should be admitted in part. - INSURANCE - subrogation - administrator asserted that insurer not subrogated to insured’s rights as insured had not fulfilled conditions of policy - held that insurer subrogated even had it not been strictly obliged to pay out claim as payment made in good faith - King v Victoria Insurance Co Limited [1896] AC 250 applied.

EQUITY - equitable remedies - injunctions - borrower/mortgagor seeks an injunction restraining the defendant bank's exercise of a power of sale over the security property - borrower/mortgager unable to tender or pay into Court the moneys secured - party seeking equity unable to do equity - injunction refused

INJUNCTION – where power pole on plaintiff's golf club premises damaged by collision with truck - where defendant disconnected power supply to plaintiff's golf club for safety reasons following the damage - where plaintiff obliged to repair the pole – where defendant refuses to reconnect power until pole repaired - application for mandatory order for restoration of disconnected power - where dispute exists concerning current condition and safety of the damaged pole - where evidence at interlocutory stage inadequate to establish either the existence or the nature of the issue(s) to be tried – where balance of convenience in any event favours refusal of application

DEFAMATION – interlocutory application – whether imputations pleaded by plaintiff are reasonably capable of being conveyed by the matter complained of

Jurisdiction of Courts (Cross Vesting) Act 1987 - Principles

CRIMINAL LAW - sentence appeal - recklessly causing grievous bodily harm - appeal dismissed - no issue of principle

Criminal Law - appeal against sentence - aggravated break and enter - assaulting residents and inflicting injuries - whether sentence manifestly excessive.

DEFAMATION - second-stage trial after jury trial under s.7A Defamation Act 1974 - eight imputations - two general imputations that Plaintiff was unfit to manage Jenolan Caves House and was incompetent in the management of Jenolan Caves House - six specific imputations alleging bad management in particular respects - substantial truth - contextual truth - qualified privilege - fair comment - fair protected report - verdict for the Defendant

CARRIERS – carriage of goods – common carriers – whether a tow truck driver arriving at an accident scene is a common carrier – characteristics of a common carrier – common callings – public nature of the role of a common carrier – APPEAL AND NEW TRIAL – whether an argument that a tow truck driver had a common carrier’s lien was litigated at trial – determining case put at trial when there were no pleadings – whether trial judge was entitled to find the existence of a lien when there was no evidence as to a holding out to the public – APPEAL AND NEW TRIAL – whether parties can be taken to have consensually litigated a question when invited to make submissions on the topic by the trial judge – ONUS OF PROOF – onus of proving a negative proposition

CONTRACTS – Option agreement between Commonwealth and ex-service organisation for latter to purchase Commonwealth land – Exercise of option – Whether concluded contract for sale then existed – Requirements of such contract as to payment of money – Notice by Commonwealth purporting to make time of the essence for making payments – Payments not made – Commonwealth gives notice of termination – Whether termination effective. - CONTRACTS – Agreement between ex-service organisation and developer concerning development of land – Promise by former to actively promote and assist developer to effect pre-sales of units in development – Promise by developer to arrange finance for the development – Breach by ex-service organisation of its obligation concerning pre-sales – Breach by developer of its obligation concerning finance – Ex-service organisation gives notice of termination – Whether termination effective – Whether developer’s breach such as to justify termination – Whether terminating party precluded by its own breach from effectively terminating agreement. - TORTS – Inducing breach of contract – Elements of tort – Whether Commonwealth, by purportedly terminating option agreement, induced breach by ex-service organisation of its contract with developer.

COURTS AND JUDGES – natural justice – procedural fairness – nature of natural justice in a judicial context – importance of judicial context when determining content of natural justice – nature of an opportunity to respond – whether natural justice requires a judge to warn a witness that adverse credit findings are proposed to be made against them – entitlement of trial judge to make findings about credibility – COURTS AND JUDGES – judicial duty – reasons for judgment – whether a trial judge ought to avoid making findings about credibility if the case can be resolved without making such findings – obligation of the judge to state the real reasons for judgment – EVIDENCE – admissibility and relevancy – decisions as to admissibility – obligation on party tendering evidence to demonstrate admissibility and relevancy – whether evidence which a party failed to demonstrate was admissible or relevant can be adduced on appeal – parties bound on appeal by manner in which the case below was conducted – CONTRACTS – onus of proof – whether plaintiff has the onus of proving the validity of a document sued upon when the validity is disputed by the defendant – COURTS AND JUDGES – judges – bias – apprehended bias – matters giving rise to a reasonable apprehension of bias in a fair-minded lay observer – COSTS – costs of interlocutory applications

EQUITY – trusts and trustees – applications to the court for advice and authority – where questions for which advice is sought relate management and administration of trust property – where law governing the trust is the law of NSW – where trust is administered in NSW – advice on question of construction – where persons with rights affected have been notified and given opportunity to be represented in court – advice given

Application for extension of time for assessment of costs - Inherent jurisdiction of the Court - s 209C of the Legal Profession Act 1987 - Discretionary factors

CONTRACTS – Agreement for sale of land and construction of house – Whether second appellant executed agreement – Whether terms of agreement and accompanying 'Annexure A' required second appellant to repay respondent 'vendor finance' loan upon sale of property – Whether first appellant executed guarantee of loan – Whether guarantee, if executed, extended to 'vendor finance' loan – Agreement unable to be produced at hearing – Findings by primary judge as to terms of agreement based primarily upon credit findings - APPEAL – Admission of further evidence – Where evidence not available at hearing – Building contract anonymously received by appellants after hearing – Whether special grounds existed to admit contract under s 75A(8) Supreme Court Act 1970 – Whether there was a real possibility that the primary judge would have reached a different decision had the building contract been admitted at hearing

SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – where marriage between plaintiff widow and testator was for a short period of time – where agreed that the provision for the plaintiff by the testator is inadequate – consideration of when period of cohabitation prior to marriage commenced – provision for the purchase of a house, contingency fund and a lump sum for plaintiff’s future needs

EQUITY - equitable remedies - alleged agreement for sale of business - failure of defendants during the proceedings to cause the exercise of the option to renew lease over premises from which the business is conducted - PROCEDURE - costs - recovery of costs - leave to discontinue granted under UCPR r12.1 - non appearance of defendants - first, second and third defendants to pay the plaintiff's costs of proceedings incurred after 30 December 2008, the date on which the defendants failed to cause the exercise of the option to renew lease over subject premises

PRACTICE AND PROCEDURE – medical negligence - application by plaintiff for expedition and an interim payment of damages pursuant to s 82(3)(c) Civil Procedure Act 2005 – requirement that Court be satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant – where defendant seeks adjournment in order to obtain expert evidence on liability – adjournment granted

EQUITY - equitable remedies - injunctions - plaintiff claims beneficial interest in bank accounts - application to discharge injunction over accounts - distinction between freezing order and injunction - lack of evidence to justify discharging injunction

PLEADINGS – application to amend – medical negligence – where plaintiff proposes to rely on loss of a chance of a better outcome – whether proposed amendment raises a different case to that pleaded originally – where application to amend made 11 years after the events said to give rise to the cause of action and 8 years after the current pleading filed – where hearing listed to commence in February 2010 – where amendment potentially futile or unfair to the defendant – application refused

Negligence - duty of care - solicitors - extent of retainer - Damage - causation - Contract - construction of contract - surrounding circumstances

EQUITY - trusts and trustees - express trusts constituted inter vivos - whether defendant held property as an express trust for plaintiff - property purchased by defendant with intention of plaintiff taking over mortgage later - plaintiff made mortgage payments and paid council rates, insurances, water rates and maintenance for five years - plaintiff more than a mere tenant - equitable defences - laches - plaintiff's delay in taking four months before commencing proceedings not unreasonable - common intention found to create an express trust that the defendant would hold the property for the benefit of the plaintiff - defendant ordered to transfer property to the plaintiff on condition that the plaintiff reimburses the defendant for the defendant's mortgage and other past payments in relation to the property

PRACTICE AND PROCEDURE – amendment to pleadings – discovery of evidence not previously known to be available – difference between non-admission and denial – case management and ability to present case – leave to amend granted

PROCEDURE - costs - general rule costs follow the event - application to vary costs order - costs order related to successful application to vary orders made by consent - where an exercise of discretion is involved that does not of itself warrant departure from normal rule that costs follow the event - defendants' success on some issues not in itself a reason to modify prima facie position - application dismissed

REAL PROPERTY - torrens title - caveats against dealings - lapsing notices served - application for extension of caveats - caveats incurably defective - no description of estate or interest claimed - no clear interest created by underlying transactions - caveats not extended

PROCEDURE - Stay of orders pending appeal - Requirements for grant of stay.

INSURANCE - Accident and sickness insurance - construction of insurance policy - policy including excess – excess defined to be amount “insured first bears” – claim against now insolvent company - whether insured has to pay the excess before claim can be bought against insurance company – payment by insured not precondition for claim against insurance company - Law Reform (Miscellaneous Provisions) Act 1947 (NSW) – s 6

COSTS – application for leave to appeal – discretionary costs order – no issue of principle – offer of settlement made by defendant prior to hearing – offer rejected – applicant enjoyed nominal success at trial but failed on single substantive issue litigated – plaintiff ordered to pay defendants' costs following offer – whether basis for interfering with exercise of discretion

PROCEDURE – application by defendant insurer to waive direction that all affidavit evidence be served before trial – application of discretionary power said to be established by Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 – source of power to make orders sought by insurer – whether the power exists under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules – whether primary judge erred in the exercise of discretion in making the order sought by the insurer

EQUITY - equitable remedies - self-represented plaintiff - proceedings resolved - fund for security for costs in Court - one of three plaintiffs seeks payment out of Court - inadequate evidence before the Court for payment out of court to be ordered

PRACTICE AND PROCEDURE - matter being case managed - no hearing date yet allocated - application by plaintiff to adduce further expert and lay evidence - effect of application would be to substantially change evidentiary basis for proceedings - if application successful most of preparation previously performed by defendants would be wasted - likelihood of further substantial delay before case ready for hearing - application of Civil Procedure Act 2005 (CPA) - exercise of discretion under s 58 CPA - balancing competing factors - application granted - need for substantial costs order.

PROCEDURE – application by defendants to have proceedings for medical negligence removed to Queensland – plaintiff commenced proceedings in New South Wales – whether Queensland more appropriate forum

SUCCESSION - family provision - claim by adult daughter on estates of both parents - plaintiff one of two adult children - estate left to them equally by mother - father's estate given predominantly to son - some estrangement between plaintiff and father until last years of his life - whether plaintiff left without adequate provision - held inadequate provision by father but not by mother - limited relief granted

CRIMINAL LAW - Procedure - application for leave to cross examine unfavourable witness - hearsay evidence including admissions - Lee's case - s 137 discretion to exclude - whether voir dire or cross examination in front of jury.

PROCEDURE - costs - proceedings for injurious falsehood and defamation - anonymous publication - application for preliminary discovery - Respondents to preliminary discovery application also Defendants in the proceedings - late admission by the author of the publication - threat by other Defendant to republish - who should pay the costs of proceedings which settled before final hearing.

CRIMINAL LAW - Sentence - Manslaughter - unlawful and dangerous act - deceased beaten with cricket bat - intoxication - spontaneous act - on bail - plea of guilty

TORTS - negligence - claim against solicitor - solicitor advising on mortgage and loan documents - whether solicitor provided advice as to moneys to be applied to investment - contested factual findings - credibility of witnesses - LEGAL PRACTITIONERS - solicitors - duty to client - whether duty extends to making inquiries and providing advice as to investments - CAUSATION - no causation on the facts.

CRIMINAL LAW - appeal - evidence - notice of motion to exclude evidence relied on by Crown - notice of motion to permanently stay proceedings - admission of illegally obtained evidence under Evidence Act 1995 (NSW) s 138 discretion and refusal of stay - appeal rights from the decision - Criminal Appeal Act s 5F - interlocutory judgment or order matter of legal form - ruling on the admissibility of evidence not interlocutory - refusal of stay interlocutory - statutory authority to hear s5F application - application for leave to appeal refused - Criminal Appeal Act 1912 (NSW) - s 5F

ADMINISTRATIVE LAW – judicial review – intervention in ongoing inquiry – availability of relief against refusal to recuse – order in the nature of prohibition - ADMINISTRATIVE LAW – judicial review – procedural fairness – bias – Medical Tribunal – prejudicial documents agreed to be excluded from tender but inadvertently provided to one Tribunal member – documents identified and looked at by Tribunal members before resolving that documents would not be taken into account – whether Tribunal members should have recused themselves due to reasonable apprehension of bias - LEGAL PRACTITIONERS – medical practitioners – Medical Tribunal – constitution, functions and procedures – relevance to reasonable apprehension of bias