Cases and authorities

CRIMINAL LAW – manslaughter – Crimes Act 1900 s 23A - substantial impairment by abnormality of mind arising from an underlying condition – severe depression resulting in offender's morbid appraisal of circumstances and impairment in problem solving and capacity to consider alternative courses of action - impaired ability to control himself at the time of the alleged offence - plea of guilty - sentence – prior good character - no likelihood of reoffending and no suggestion of future dangerousness – evident contrition and remorse

CORPORATIONS - membership, rights and remedies - oppression, unfair prejudice and unfair discrimination - shares held by three members in equal proportions - whether members in partnership - whether "quasi partnership" - whether understanding as to participation in day-to-day management - termination by the company of arrangement under which services of one member are made available to the company - whether exclusion in breach of understanding - whether denial of expectation of fair arrangement for withdrawal - where departure of relevant member followed physical altercation between him and another member - irretrievable breakdown superseded original understandings and expectations - just and equitable that company be wound up

ADMINISTRATIVE LAW - veterinary practitioner - unsatisfactory professional conduct - failure to provide estimated cost of veterinary services - appeal on question of law - whether Tribunal misdirected itself on standard of proof - whether Tribunal erred in law in construction of clause 16 of code of conduct - whether decision of Tribunal manifestly unreasonable - whether leave ought be granted for Court to undertake merits review - no error established - merits review declined - appeal dismissed

APPEAL - statutory right of appeal - whether need to invoke supervisory jurisdiction - objection to grounds - PROCEDURE - supervisory jurisdiction - need to rely upon affidavit evidence - powers of single judge - Supreme Court Act 1970 (NSW), s 46 - WORDS AND PHRASES - "decision ... with respect to a point of law" - "dismiss ... for other cause specified in the rules"

COSTS - assessment after conclusion of proceedings - not arguable that proceedings had not concluded - continued contention that proceedings were interlocutory an abuse of process.

SUCCESSION - family provision - claim by widower, aged 82 - marriage of 49 years - Plaintiff was given a conditional right of residence in matrimonial home - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - competing claims of other beneficiaries.

CRIMINAL LAW - sentence - murder - plea of guilty - carefully planned murder perpetrated through co-offender - misguided belief that deceased posed threat to offender and children - good prospects of rehabilitation

[REFEREES/REFERENCES] - Whether explanation from referee required in respect of matters omitted from report - Whether matter should be remitted to referee for further consideration and report - Whether matter should be remitted to provide a party an opportunity to be heard - Nature of discretion to require explanation and/or remit matter to referee

CORPORATIONS - reinstatement of registration - company deregistered under Companies (New South Wales) Code - need for reinstatement to be under that legislation - need for extension of limitation period - both shareholders now dead - company registered as proprietor of land free from encumbrance - beneficiaries of estates of deceased shareholders aggrieved by deregistration - whether order for reinstatement can be made subject to conditions

ADMINISTRATIVE LAW – Consumer, Trader and Tenancy Tribunal Act, 2001 s 67 – appeal against decision of Tribunal on a question of law - whether operator of a retirement village failed properly to exercise options to purchase a unit from the owner/occupier of the unit in the retirement village contained in two deeds made between it and the occupier – whether owner/occupier had permanently vacated the unit – Retirement Villages Act 1999 s167 – whether the section applied to the options in favour of the operator in circumstances where the specified events triggering a right to exercise the options had not occurred – no error of law

COSTS - claim for indemnity costs - whether failure to accept offer unreasonable - whether a true offer of compromise - doubt as to the value of an offer to pay costs and enforcement expenses in the context of the whole proceedings - refusal of costs order indemnifying first defendant in respect of his liability to pay plaintiff's costs - not damage suffered under s.129, Real Property Act.

CONTRACT – where arrangement made between elderly woman (Monica), her son (Leon) and her brother (Max) to fund Monica’s retirement accommodation and associated expenses, and to provide to Leon an interest free unsecured loan of $880,000 for a term of 10 years to fund the redevelopment of Monica’s property – where Monica moves to retirement village in reliance on arrangements – where Max referred to ability to draw on his company AFM to meet his obligations - where Max’s estate after his death does not provide agreed support or loan – whether arrangement sufficiently certain to be contractual – whether parties intended to create binding and enforceable legal relations - defences of unconscionability, undue influence and under Contracts Review Act not pressed – whether AFM was or became a party to the contract. - DAMAGES – Breach of contract – Assessment of damages for breach of promise to fund Monica’s retirement accommodation and associated expenses for life – relevant discount factor - Assessment of damages to provide to Leon an interest free unsecured loan to fund the redevelopment of Monica’s property – whether Monica and/or Leon entitled to damages – damages for failure to provide a loan – whether alternate loan available – onus of proof - FAMILY PROVISION – eligibility – dependency – where claimant has substantial assets and could fund own retirement accommodation – dependency in fact – circumstances warranting – actual dependency at date of death – relevance of deceased’s promise of support – adequacy of provision – where claimant is elderly with ongoing periodic needs - whether provision should be by lump sum or annuity

MORTGAGES - mortgage taken as part of security for payments due under three lease agreements - mortgage forged - lease agreements partly forged - lease agreements and mortgage executed for the benefit of mortgagor’s de facto son-in-law - mortgagor had no knowledge of transaction - finance company seeking order for possession due to default under lease agreement - whether mortgage charged the land with debts owed under the three leases - MORTGAGES - defences of mortgagor - whether finance company had knowledge of forgery before registration of mortgage - MORTGAGES - defences of mortgagor - whether failure to deal directly with the mortgagor gave rise to a personal equity enforceable against the finance company - MORTGAGES - defences of mortgagor - Yerkey v Jones - whether Yerkey v Jones principles apply to relationships beyond that of husband and wife whether Yerkey v Jones principles apply outside the context of a surety - whether Yerkey v Jones can apply where documents have been forged - NEGLIGENCE - whether solicitor liable for negligent misstatement whether initials and signatures of solicitor were forged whether solicitor signed mortgage and left it in the possession of the probable fraudster - whether solicitor liable for loss suffered by finance company

STATUTORY INTERPRETATION - meaning of "operator" in s.21(1), Road Transport (General) Act 2005 - the operator of prime movers (the plaintiff) not the company supplying trailers attached to the prime mover was the "operator" for the purpose of s.21(1)(b) of the Act.

SUCCESSION - family provision - claim by adult son - financial and material circumstances of Plaintiff - obligation upon Plaintiff to provide that information as fully and as frankly as possible - whether Plaintiff has been left without adequate provision for his proper maintenance - competing claims of beneficiaries (grandchildren of Deceased).

CRIMINAL LAW - particular offences - offences against the person - assault with intent to rob in company - whether conviction unreasonable

CRIMINAL LAW - manslaughter - appeal against sentence - whether sentencing judge erred in finding that the respective criminality of the applicant and of the co-offender were about the same - whether the applicant has a justifiable sense of grievance arising out of disparity in his sentence with that of the co-offender - whether the sentencing judge erred in finding that the applicant realised that the co-offender "might kill the deceased" - quantification of discount for plea of guilty - whether sentence is manifestly excessive - whether a less severe sentence is warranted

Criminal Law - sentence appeal - ongoing supply of MDMA - whether sentence excessive - supply cannabis - statement of wrong maximum penalty - Parity.

CRIMINAL LAW - appeal against conviction - maliciously inflict grievous bodily harm with intent to do grievous bodily harm - whether verdict unreasonable or cannot be supported by the evidence - whether a significant possibility that the incorrect person has been convicted - whether trial miscarried on account of crown prosecutor's address - whether trial judge erred by failing to give adequate directions in respect of acts or omissions of the appellant giving rise to a consciousness of guilt - appeal dismissed - CRIMINAL LAW - appeal against sentence - whether trial judge erred in consideration of subjective features of offender as going to special circumstances only - subjective features to be considered in assessing application of standard non parole period - whether insufficient variation from standard non parole period - appeal dismissed

CRIMINAL LAW - appeal against conviction - persistent sexual abuse of a child - whether error in trial judge's direction that the relevant acts must have been committed on "three separate occasions" without reference to need for acts to have occurred on "separate days" - whether error in trial judge's direction that evidence in relation to each occasion be considered separately - r 4 Criminal Appeal Rules applied - leave to appeal refused

Sentence appeal - parity

Sentence appeal - parity - comparison of starting points before differentiating discounts - significance of manifestly inadequate comparator

CRIMINAL LAW - sentence - relevant factors - error as to maximum penalty - slip in expression by judge - parity - disparity justified by marked difference in age of offenders

CRIMINAL LAW - appeal against sentence - totality principle - discretion of sentencing judge when determining whether to accumulate sentences - question of discount afforded to offender who does not plead guilty at earliest opportunity but offers plea only after negotiating with Crown to secure more favourable outcome - appeal upheld in part

DISTRICT COURT – interlocutory relief - freezing order restraining assets of a third party – whether the District Court has jurisdiction to make such an order - DISTRICT COURT – interlocutory relief - freezing order restraining assets of a third party – whether the District Court has the power to make orders effectively making a third party a guarantor of the judgement debtor’s debt - INTERLOCUTORY RELIEF – freezing orders – extent of order – must be limited so as not to exceed what is reasonably necessary in the circumstances - COSTS - interlocutory proceedings – entitlement to appellate intervention where costs ordered at interlocutory stage

REAL PROPERTY - Torrens title - caveats against dealings - whether caveats lodged without reasonable cause for purposes of s 74P(1)(a) of the Real Property Act 1900 - held that caveats lodged without reasonable cause - defendants ordered to pay compensation to plaintiffs

Practice and Procedure - UCPR - Power to make orders setting aside judgment following entry - Whether orders were given 'in the absence of a party' who attends at the commencement of the hearing and elects to withdraw

[CONTRACT] - Whether parties entered into contract - Where offer referred to "estimates" - Responsibility for insurance of barge and assessment of shoreline - Competing claims for demurrage

Family Provision. Claim by second wife of a 49 years marriage. Deceased provided right to occupy matrimonial home and for her to receive half proceeds when sold. Claim by widow for fee simple of home. Order only increasing percentage to be received on sale of home from 50% to 65%.

Criminal Assets Recovery Act 1990 - restraining orders - reasons given after orders pronounced

PROCEDURE - application for summary dismissal - obligations of Department of Youth and Community Services in 1983 on learning of child sexual abuse - no common law duty to notify police - no evidence of negligence

PROCEDURE - application for summary dismissal - obligations of Departhment of Youth and Community Services in 1983 on learning of child sexual abuse - no common law duty to notify police - no evidence of negligence

CRIMINAL LAW - offences against the person - aggravated detention of a person with intent to hold for ransom - appeal against sentence - whether sentence manifestly excessive - parity, whether justifiable sense of grievance when sentence considered in relation to co-offenders' sentences

Criminal Law - Conviction appeal and Crown appeal against sentence - Evidence - tendency evidence - whether admissible - whether overly prejudicial - sufficiency of reasons admitting the evidence.

PROCEDURE – costs – departing from the general rule – conduct of parties – offer of compromise – whether offer of compromise made less than two months before the date of commencement of the trial had been left open for a reasonable time – whether the reasonableness of the time for which an offer is left open for acceptance is assessed as at the date the offer is made or having regard to circumstances both before and after that date

BUILDING AND CONSTRUCTION CONTRACTS – Adjudications under Building and Construction Industry Security of Payment Act – application for declaration that defendant builder is not entitled to adjudicated amounts and injunction restraining registration and enforcement of adjudication - whether agreement between plaintiff principal and defendant resulted in binding agreement whereby builder was not entitled to recover payment for certain additional works over and above an agreed sum, the value of which was included in adjudicated amount – if so, whether agreement was avoided by s 34 – whether subsequent agreement for settlement of proceedings 5158/08 on terms that an amount be paid into court pending outcome of proceedings precluded prosecution of a progress payment claim – if so, whether such agreement was avoided by s 34 – whether principal who suffers adverse adjudication can bring proceedings for declaratory and injunctive relief for restitution of sum paid pursuant to adjudication or to restrain enforcement of adjudication.

PRACTICE AND PROCEDURE - Defendants' application for separate hearing on liability - applicable principles - effect of Civil Procedure Act 2005.

Employer - Employee Superannuation Fund - Claim Based on Trust Deed construed according to Victorian law - absence of bona fide inquiry and genuine consideration - Rules of Natural Justice inapplicable - Trustee not disclosing thrust of adverse mateial to employee - no opportunity to meet it - execution of Trust by Court due to behaviour of Trustee - limitations defences rejected - need for law reform - absurdity of using Trust law propounded in former times for different situations in employer/employee relations

PROCEDURE - time for service of initiating process - application for extension - several earlier extensions - whether plaintiff has shown good reason to extend - whether relevant prejudice to defendants - appropriateness of ex parte application confirmed - need for direction that defendant be informed of rights under the rules questioned - extension granted

PROCEDURE - SUBPOENA - whether legitimate forensic purpose or "fishing" - general principles considered - whether subpoena should be set aside

CONTRACTS - contract for fire protection of boundary fence - whether contract excluded under s 7(2)(b) from the operation of Building and Construction Industry Security of Payment Act 1999 - MAGISTRATES - appeals and review - appeals limited to question of law - points not taken below

Manslaughter - substantial impairment - limited culpability - delay in obtaining opinion on fitness to plead - effect on utilitarian discount - sentence too low when discounted - discount adjusted

INSURANCE - loss suffered by plaintiffs as a result of fire caused by defendant - part of loss met by insurance policies - claim by insurers against defendant settled - defendant's rights of subrogation - settlement of claim by plaintiffs against defendant - whether defendant entitled to deduct interest on insurance payments from settlement. - COSTS - unnecessary expenditure of costs by successful parties - corresponding adjustment in costs order in their favour.

Serious sex offender - preliminary hearing - order sought for examination by psychiatrists - application for interim supervision order

CRIMINAL LAW – search warrants – validity – whether the warrant was invalid on its face for failing to sufficiently recite an offence in accordance with the requirements of the Law Enforcement (Powers and Responsibilities) Act and Regulation – consideration of what constitutes adequate specification of an offence – where the warrant referred to the relevant provisions of a criminal statute and a short description of the offences – warrant valid – amended summons dismissed

INTEREST – claim under s 57 Insurance Contracts Act 1984 (Cth) - date from which it was unreasonable for insurer to have withheld payment on claim was three months after claim was made – plaintiff entitled to interest from this date to the date the benefit was paid

CRIMINAL LAW — Sentencing — murder

BANKER AND CUSTOMER – contract – plaintiff bank sues for repayment of two loans made to the defendant customers – held bank entitled to the repayment of the two loans - MORTGAGES - mortgages and charges generally – form and execution – whether a mortgage is void or voidable due to witnessing by an officer of a bank where the bank was a party to the mortgage – held that the officer of the bank was not a party to the mortgage, and that witnessing by the bank officer was not an action taken on behalf of the bank – held that the mortgage is valid - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - consumer protection – defendants claimed bank loans should be set aside or varied as the bank had engaged in misleading or deceptive conduct or conduct likely to mislead or deceive under s 52 – defendants disputed personal liability in relation to a loan of $2 million, claiming that the bank represented to them that in respect of this loan it would have no recourse to their personal assets, but only those of their company – defendants claimed that the bank represented to them that properties owned by them personally were not being provided as security for any of their debts or any of the debts of their company – defendants claimed that the bank represented that a fixed interest rate of 5.6%pa would apply to a $4.8 million loan, when the actual rate was higher – held that the bank did not make any such representations and that no breach of s 52 occurred - GUARANTEE AND INDEMNITY - the contract of guarantee - parties and capacity – whether guarantee executed by the defendants for the debts of their company should be set aside under s 7(1) of the Contracts Review Act 1980 (NSW) for being unjust – the first defendant claimed that the guarantee was unjust as he could not read, write or understand English, that he did not have legal advice, and that there was an inequality of bargaining power – the second defendant claimed that the guarantee was unjust as at the time the contract was entered into she was suffering from ill health, that she did not have legal advise and that there was an inequality of bargaining power – held that in respect of both the first and second defendant the guarantees were not in any was unjust in the circumstances in which they were entered into nor was there any basis upon which it could be held to be just to deprive the bank of its contractual rights under the guarantees.