Cases and authorities

PROCEDURE - stay of orders of lower court pending appeal - stay of writ of possession of family home - factors affecting grant of stay - prospects of success on appeal - ability to offer terms to respondent during period of stay - whether appeal would be nugatory without stay

SUCCESSION - intestacy - next of kin inquiry - Deceased domiciled in New South Wales - effect of adoption of Deceased, as an adult, in Greece - whether under law of Greece adoptive parents were placed generally in relation to Deceased in the position of parents - whether intestate estate passes to son of Deceased's natural parents or to Crown as bona vacantia.

CONTRACTS -joint venture - taking of an account - calculation of interest - whether interest should be upon a compound basis or simple interest - implication of a term into contract - asserted practice of bankers and financiers - proof of any such practice.

CORPORATIONS – winding-up – application to terminate winding up – consideration of assets and liabilities of company - termination of winding-up would allow deed of company arrangement to be executed which would release claims of all existing unrelated unsecured creditors - winding-up terminated

CRIMINAL LAW - serious sex offender - application for interim supervision order pending final hearing

Appeal and new trial. Application for review of Registrar's decision on prelimnary discovery. Nature of proceedings and matter of practice and procedure. Application for preliminary discovery. Principles applicable. Difference between UCPR and Federal Court rules.

CRIMINAL LAW - appeal against sentence - robbery in company - guilty plea- whether parity of sentence with co-offender who pleaded not guilty but was convicted.

CRIMINAL LAW AND PROCEDURE - Manslaughter - Excessive self defence - Sentence - No error in assessment by sentencing judge

CRIMINAL LAW - sentence - relevant factors - parity between co-offenders - may consider sentencing reasons for co-offender but not whether that sentence manifestly excessive or inadequate. - CRIMINAL LAW - sentence - sentencing procedure - factual basis for sentence - role of guilty plea or depositions - discount for utilitarian value - remorse and contrition encompassed by plea discount - s 21A Crimes (Sentencing Procedure) Act 1999. - CRIMINAL LAW - sentence - non-parole period or minimum term - New South Wales - aggravating or mitigating factors - fact that aggravating factors which might be present in other cases were not present does not detract from significance of other elements of aggravation. - CRIMINAL LAW - sentence - sentencing procedure - sentencing statistics, schedules, tariffs, comparisons, etc - statistics of limited use when based on limited data.

CRIMINAL LAW - Appeal and new trial - Appeal against sentence – Applicant pleaded guilty to maliciously inflicting grievous bodily harm – Received sentence of six years imprisonment with a non-parole period of three years and six months – Sentencing judge correct in finding that conduct fell within middle range of objective seriousness – Sentencing judge entitled to take into account lengthy history of violence – Appeal dismissed – Recommendation that applicant receive alcohol and anger management rehabilitation -

CRIMINAL LAW - Crown Appeal against sentence - Criminal Appeal Act 1912, s 5DA - discount on sentence due to undertaking to give evidence reversed when undertaking breached

CRIMINAL LAW – sentencing – leave to appeal against sentence – supplying prohibited drug – supplying commercial quantity of prohibited drug – finding of special circumstances – whether sentencing Judge erred in finding as to objective seriousness of offence - whether sentencing Judge adequately took into account subjective circumstances of offender – whether sentence manifestly excessive - partial accumulation – sentence imposed severe having regard to statistics – limits to the use of statistics – no error by sentencing Judge

PROCEDURE – Pleading – Whether necessary for defendant to plead s 5O of the Civil Liability Act 2002 or material facts referred to in that section. - PROCEDURE – Amendment – Whether amendment should be allowed where other party intends to raise issue that it does not communicate – Trial by ambush. - PROCEDURE – Appeal – Error shown – Whether new trial should be ordered – Whether substantial miscarriage of justice shown.

De facto relationship - claim under Property (Relationships) Act 1984 for adjustment of interests after relationship ceased - equality as at cessation - jointly held land - thereafter both parties acquired land in part using resources from their jointly held land - one party realised capital profit - other party's land increased in value - judge held no injustice or inequity calling for adjustment of interests - no error in exercise of discretion - cross-claim for half proceeds of sale of jointly held land therefore succeeded - whether interest on relevant amount properly included in judgment - again no error in exercise of discretion.

EQUITY - trusts and trustees – distribution of net proceeds of sale by trustees where some co-owners cannot be located – consideration of applicability of Unclaimed Money Act 1995 – trustees directed to advertise and publish the names of co-owners whose whereabouts is unknown and six months thereafter to be permitted to pay unclaimed moneys either to the Public Trustee or into Court pursuant to the Trustee Act 1925

COMMON LAW - appeal from decision of Local Court Magistrate - whether findings made open to Magistrate - appeal dismissed

DEFAMATION – matters complained of published in internet newspaper in the Italian language– plaintiffs were candidates in election to Italian parliament – whether matters complained of identified plaintiffs – whether publications defamatory - DEFAMATION – defences – common law defence of qualified privilege – whether occasion of qualified privilege – whether recipients had interest in receiving information published – whether defendant actuated by improper motive - DEFAMATION – defences – statutory defence of qualified privilege under s 30 Defamation Act 2005 – whether publication of matters complained of reasonable in the circumstances - DEFAMATION – damages

CONVEYANCING [76] - Relationship of vendor and purchaser - Breach of contract - Deposit - Recovery of deposit - Statutory power to order - Circumstances in which order refused

Strata Schemes Management Act - obligations on owners corporation under section 62 to properly maintain and keep in a state of good and serviceable repair common property - owners corporation brings proceedings against builders for defective balustrades on balconies - individual owner seeks damages against owners corporation for breach of obligations imposed by section 62 - query whether bringing and prosecuting action against builder satisfies the owners corporations obligations under section 62. Strata Schemes Management Act - application by owners corporation to stay individual owner's proceedings against it - whether individual owner must first exhaust his or her remedies by proceeding under Chapter 5 of the Act - does the Tribunal have power to award damages - exercise of discretion - no assertion of abuse of process or of prejudice to owners corporation - individual owner's proceedings not stayed.

TRADE PRACTICES - purchase of a business- whether misleading or deceptive representations were made by vendor- whether the respresentations caused the purchaser loss or damage- significance of contractual disclaimer on reliance

CONTRACTS - whether event of default - whether defendants actually aware of event of default. - EQUITY - whether relief against forfeiture available. - INJUNCTIONS - whether serious question to be tried - whether balance of convenience favours grant of relief - whether damages adequate remedy - whether undertaking given provides sufficient protection.

EVIDENCE - defamation - admissibility and relevance - facts relevant to facts in issue - facts showing state of mind - credit and credibility - objection to the tender of evidence on the contention that it is irrelevant, unfairly prejudicial, previous representation and does not qualify as business record - Evidence Act 1995 ss 44, 69 and 135

EVIDENCE - defamation - admissibility - objection to question asked in cross-examination on contention that it attempted to adduce tendency evidence without giving reasonable notice - credit and credibility - Evidence Act 1995 ss 97, 103 and 135

CONTRACTS - whether contract void for uncertainty - whether implied term - whether breaches entitling defendant to terminate contract - claim for damages

CORPORATIONS – examination summons – application for access to affidavit filed by administrators on their application for examination summonses – applicant demonstrates arguable case for an order that examination summons be set aside - no prejudice to administrators if affidavit disclosed – affidavit made available for inspection

CRIMINAL LAW - sentence - specially aggravated break, enter and steal - partial accumulation of sentence upon lengthy pre-existing sentence - finding of special circumstances but overall non-parole period 86% of total term - whether error in concluding grievous bodily harm inflicted intentionally as opposed to recklessly - whether sentence manifestly excessive

Trade Practices Act - Representations with respect to future matters - no evidence adduced to establish reasonable grounds - reliance and liability established. Contracts Review Act - liability established - section 6(2) found not to apply Unconscionability - vulnerability resulting from lack of financial or business sophistication - "wall of persuasion" constituted by defendant providing plaintiff with advice on all aspects of transaction.

ADMINISTRATIVE LAW - judicial review - error of law on face of record - jurisdictional error - decision of State Parole Authority - determination not to rescind order revoking parole - reasonableness of decision - onus of proof - not accepting evidence despite finding not untruthful - whether witnesses had interest in outcome of proceedings - assessment of voice identification evidence

CRIMINAL LAW AND PROCEDURE - Manslaughter - Sentence on particular facts

CRIMINAL LAW - appeal - murder - opinion evidence - application for discharge of jury

CRIMINAL LAW - appeal - admissibility of DNA evidence - whether evidence was obtained improperly - direction in relation to lies and false alibi - whether the judge erred in directing the jury as to the approach of DNA profiling evidence - Longman direction - unreasonable verdict - appeal dismissed

CRIMINAL LAW - Crown appeal - objective seriousness - sentence manifestly inadequate - residual discretion dismissing the appeal

ABORIGINALS – land rights under legislation – claim to Crown land – establishment of national park – needed or likely to be needed for public purpose of nature conservation – appropriate level of government to demonstrate need or likely need – whether resolution of dispute at Cabinet level necessary – Aboriginal Land Rights Act 1983 (NSW) s 36(1) - ADMINISTRATIVE LAW – procedural fairness – foreseeable inferences drawn from tendered evidence to support case other than that of tendering party – whether such inferences available in absence of warning to tendering party - APPEAL – statutory appeal from Land and Environment Court – appeal against erroneous decision on a question of law – denial of procedural fairness – whether capable of grounding appeal - EVIDENCE – Aboriginal land claim – permissible use of evidence of events and conduct post-dating claim – whether such events and conduct irrelevant considerations - STATUTORY INTERPRETATION – remedial legislation – principle of beneficial construction – whether adopted impermissibly in treatment of gaps in evidence - WORDS AND PHRASES – 'needed or likely to be needed' – 'appropriate level of government' – 'beneficial construction'

ENVIRONMENT AND PLANNING – planning schemes and instruments – consistency of instruments – construction and interpretation – meaning of 'inconsistency' – Local Environmental Plan – State Environmental Planning Policy – whether permission under Policy inconsistent with prohibition under Plan – whether Policy intended to operate as exclusive code – whether Policy mandated consent when development proposal in accordance with terms of Policy - STATUTORY INTERPRETATION – environment and planning – meaning of 'inconsistency' – Environmental Planning and Assessment Act 1979 (NSW), s36 - WORDS AND PHRASES – 'consent considerations' – 'cumulative impact' – 'development consent' – 'environmental planning instrument' – 'general presumption'

TORTS - negligence - motor vehicle accident - whether plaintiff in vehicle at time defendant collided with it - appellate review of trial judge's findings - various elements in challenge to fact-finding - in particular failure to note consistency of evidence of two unconnected groups of witnesses - detailed consideration of judge's reasons - appellate court must conduct real review - errors in process of fact-finding despite credibility-based findings - new trial ordered save for an issue not the subject of appeal.

CRIMINAL LAW - appeal - appeal of sentence - whether the sentence is manifestly excessive - whether the sentencing judge erred by finding the applicant had "a well-entrenched pattern of disobedience to the law"

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether genuine dispute as to existence of debt - not appropriate to address questions of credit upon such application - otherwise no question of principle

PROCEDURE - re-opening after judgment but before orders made - where conduct of hearing was on false basis - need for decision to be adjusted in light of correction of misapprehension

PROCEDURE – security for costs – cross-defendants seek orders that cross-claim filed by first defendant be dismissed under r 42.21(3) of the Uniform Civil Procedure Rules for failure to comply with order requiring provision of security for costs – consideration of all relevant circumstances - cross-claim dismissed - PROCEDURE – cross-defendants seek orders that cross-claims filed by second defendant be dismissed under r 13.4(1) of the Uniform Civil Procedure Rules – onus on cross-defendants to show no triable issue that there was a reasonable cause of action against them – onus not discharged - application by first cross-defendant dismissed – alternative application made by second cross-defendant that cross-claim totally disproportionate to costs incurred and to be incurred – misconception by second cross-defendant as to nature of claims - application by second cross-defendant dismissed

SUCCESSION – Family Provison – Eligible persons – Claims of grandchildren and mother of those grandchildren – Mother of grandchildren living with them for short period in home of deceased – Whether grandchildren dependant on deceased – Held not dependant – Father of grandchildren and their mother in sporadic relationship – Mother living in deceased’s home for two periods – Whether member of household – Whether dependant on deceased – Father of grandchildren found guilty of murdering his sister – Sister beneficiary under will whose interest passed to the brother who committed the murder – Bearing of this claim of mother of grandchildren – Whether in each case there are factors warranting an application – Held no such factors – Claims dismissed.

CORPORATIONS - winding up - examination of officers and others by liquidators - application by examinees for discharge of examination summonses - where proceedings commenced by company shortly before commencement of winding up - where liquidators seek to examine persons who are defendants and likely witnesses - purpose of liquidators is to come to concluded view about viability of litigation and to obtain information to assist decision making by potential litigation funder - whether permissible purposes - whether purpose of conducting dress rehearsal for cross-examination predominates - PROCEDURE - review of decision of registrar - nature of such review - where burden lies - whether circumstance that court is exercising federal jurisdiction changes nature of review

SUCCESSION - family provision - claim by adult daughter - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - competing claim of Deceased's widow, who is chief object of his testamentary beneficence - prescribed transaction - designation of notional estate.

PROCEDURE - Supreme Court procedure - New South Wales - pleadings - leave sought to amend various pleadings - concurrent wrongdoers - section 35 of the Civil Liability Act 2002 - new allegation of breach of fiduciary duty - equitable compensation claimed - amendments allowed

CONTRACTS - building, engineering and related contracts – plaintiff contends adjudication determination is void under s 7(2)(b) of Building and Construction Industry Security of Payment Act 1999 because contract was for the carrying out of residential building work – meaning of ‘resides in or proposes to reside in’ – consideration of plaintiff’s intention – plaintiff resided at the premises at all relevant times – purported adjudication determination is void

CRIMINAL LAW - sentence - aggravated dangerous driving causing death (two counts) - Form 1 offence of aggravated dangerous driving causing grievous bodily harm - 17-year old driver on learner’s permit - grossly excessive speed in residential area - some impairment by alcohol - collision with power pole - 16 and 17-year old passengers killed - 17-year old passenger seriously injured - late pleas of guilty - offender denies being driver until shortly before trial date - sentences of imprisonment imposed - whether error in assessment of aggravating features of offences - whether error in use of victim impact statements of families of deceased victims - whether breach of De Simoni principle in findings of fact - claim that findings amounted to findings of manslaughter - whether sentences manifestly excessive - relevance of offender’s youth, inexperience and immaturity - importance of general deterrence - no error established - sentences not manifestly excessive

CRIMINAL LAW - application for leave to appeal against sentence - supply of large commercial quantity of ecstasy - sentencing judge's approach to standard non-parole period - whether finding of mid range objective gravity open - whether sentence manifestly excessive

CRIMINAL LAW AND PROCEDURE - Sentence - Delay as a result of interstate arrest and sentence before return to NSW - Totality - Proportion of minimum to head term of custody - Advanced age of offender - Conditions of detention

Criminal law - sentence appeal - whether parity is a consideration when assessing objective seriouisness of offence - whether refusal to find special circumstances constituted error - whether parity principles applied where co-offender not involved - whether parity principle applied to co-offender.