Cases and authorities

SUCCESSION – family provision and maintenance – whether testatrix made adequate provision for applicant – bulk of estate left to son in will – significant gifts to son inter vivos – applicant an adult daughter with multiple sclerosis – competing claim of adult son with Hepatitis C. - SUCCESSION – family provision and maintenance – practice, procedure and orders – cost-capping application – costs increased by defendant executor’s failure to place all relevant evidence before the court – application not determined prior to the hearing.

APPEAL - Local Court Magistrate - Agency - Christmas Parade

PROCEEDS OF CRIME - Pecuniary penalty order - Defendant derived a benefit from the commission of offences - Whether reductions apply to the determination of the pecuniary amount - Consideration given to s 16 of the Crimes (Superannuation Benefits) Act

SUCCESSION - family provision - claims by three adult children - assets and liabilities of Deceased - value of shareholding in family company - whether each Plaintiff has been left without adequate provision for her or his maintenance - competeing claims among Plaintiffs - duty of executor, who is mother of one of the Plaintiffs - executor must act even handedly among beneficiaries

SUCCESSION - Family provision and maintenance - whether testator made adequate provision for applicant - unsatisfactory evidence of applicant's financial circumstances.

CRIMINAL LAW - applicant convicted at trial of sexual assault offences - application under s.78 Crimes (Appeal and Review) Act 2001 - claim of doubt or question as to applicant's guilt - nature of application - relevance of fresh evidence rule - reasons for decision on application - whether doubt or question as to applicant's guilt or doubt or question as to part of evidence in the case - application refused

LEAVE TO APPEAL - Local Court Magistrate - Strike out defence

CRIMINAL APPEAL – order entered – application to set aside or vary order within 14 days of entry of judgment – Criminal Appeal Rules r 50C(2) – power of Court to reopen appeal "as if the order had not been entered" - CRIMINAL APPEAL – reopening where orders not entered – criteria to be satisfied to justify reopening – misapprehension of fact or law materially affecting judgment in the appeal – further evidence – proposed reopening appeal to remedy deficiency in material presented at hearing

CRIMINAL LAW - Crown appeal against sentence - aggravated break, enter and commit a serious indictable offence, aggravated detention for advantage, maliciously inflicting grievous bodily harm with intent to do so, robbery in company - sentence reduced on basis of plea of guilty, respondent's own disclosure of guilt, assistance to authorities - respondent entitled to cumulative discounts - failure by the respondent to fulfil undertaking to give evidence - whether the principle of proportionality operating on cumulative discounts reduced the discount for past assistance - whether a greater level of discount would have been given for past assistance had the promise of future assistance not been made - where the benefit of discount for future assistance is removed, the part of the discount for past assistance lost due to compression may be restored - substantial delay of Crown appeal justified to allow respondent to fulfil his undertaking - respondent's parole eligibility date imminent - Crown appeal dismissed in exercise of discretion

STRIKE OUT DEFENCE - Summary judgment

CORPORATIONS - winding up - "pooling" under new statutory provisions - what constitutes "group" of companies - whether condition prescribed by s 579E(1)(b) satisfied - whether business carried on "jointly" - requirement that every company's winding up commence after 31 December 2007 not satisfied - whether that requirement amounts to "association" to be ignored under s 579N - WORDS AND PHRASES - "jointly" - "to avoid doubt"

COMMON LAW - application for order for security for costs - factors relevant to the exercise of discretion to order security - enforcement of an Australian judgment - whether plaintiff ordinarily resident outside NSW

Loan agreement using contract for sale as form of security - whether abandoned by mutual agreement - Earlier loan whether interest agreed to be paid and whether fully repaid.

CRIMINAL LAW – appeal against sentence – fraudulent misappropriation – plea of guilty – lapse of 5 years between offending and sentencing – Community Service Order and periodic detention not available as applicant living interstate – principle of parsimony

CRIMINAL LAW – evidence law – identification and recognition evidence – whether direction to jury required – Evidence Act 1995, s 116 - WORDS & PHRASES – “identification evidence”

EQUITY - Fiduciary Obligations - Director of corporate partner painted grim picture of financial position to other partners - Offer to purchase their interests - Failure to inform partners of change in fortune - Misrepresentation of director's view as to value of partnership land - Whether corporate partner in breach of fiduciary duty - Election for account of profits - Whether entitled to an account - Whether interests should be added - Whether adjustments should be made for price paid to acquire other partners' interests - Whether adjustments should be made for balances in loan and capital accounts - Whether director, as accessory to breach of fiduciary duty, should only account for profits distributed to him by corporate partner - Provision in purchase deed that assignee pay income tax payable in respect of appropriation of share of net profit to assignor - Assignee with carry-forward tax losses - Whether payment of tax by assignor years later within the provision

EQUITY [317]- Injunctions- Application for variation of injunction- Injunction restrains the use of property allegedly subject to charitable trust for payment of the principal defendant's legal costs- Circumstances where a court reviews interlocutory orders- Whether material circumstances or fresh material have come to light that are not available at the original hearing- Held that no major variation is to be made that will nullify the basic effect of the existing interlocutory order.

Adoption of children - parental responsibility order - application for interim parental responsibility order by Director-General in his favour - whether court can make order under s 84(2) when no application for adoption of the child has yet been made - whether the court should make an interim parental responsibility order under s 84(2) or under s 78(2) and (3) - whether suspension under s 79(2A) applies when order has been made under s 84(2)

CRIMINAL LAW – Evidence – Admissibility – Tendency evidence – Relationship evidence – Inadequacy of directions by trial judge – Substantial miscarriage of justice

CRIMINAL LAW - appeal against conviction - verdict inconsistent and unreasonable having regard to the verdicts on other counts – conviction quashed – verdict of acquittal entered - EVIDENCE – tendency and/or coincidence evidence – whether probative value substantially outweighed prejudicial effect – miscarriage of justice – conviction quashed – new trial ordered

APPEAL AND NEW TRIAL – New trial – in general and particular grounds – particular grounds – verdict against evidence or weight of evidence – verdict against weight of evidence – when new trial granted – preponderance of evidence in favour of unsuccessful party – where findings on liability not necessarily supported because of gaps within the evidence - APPEAL AND NEW TRIAL – Appeal – general principles – interference with judge’s findings of fact – proof and evidence – other matters – where gap in evidence supporting findings of liability should have been addressed – where conflicting evidence of witness relied upon should have been addressed - PROCEDURE – Judgments or orders – amending, varying and setting aside – other cases adequacy of reasons – whether complainant should have brought adequacy of reasons up prior to entry of judgment – whether complainant should have brought it up when opportunity was given - TORTS – Negligence – contributory negligence – particular cases – road accident cases – whether failure to give way – whether defendant not keeping proper lookout – where defendant has right of way

EVIDENCE - occupiers liability - tenant of office suite injured in slip and fall in toilet, common area in office building - tenant alleged he had earlier informed director of building owner of repeated pooling of water - adverse inference based on failure of occupier to call director - Trial Judge accepted evidence of other witnesses denying complaints to them and declined to draw adverse inference although recognized that it was available - Held, no error. - COURTS and JUDGES - delay in giving judgment - reserved 29 July 2005, published 23 June 2006 - no expressed reliance on demeanour - on review of reasons in judgment, no ground for fearing that a grasp of the evidence has been lost or that conclusions have been hurried or poorly considered.

RESTITUTION - claim for restitutionary interest on capital sum and periodic payments made as conditions of stay

CRIMINAL LAW - accused found not guilty on the grounds of mental illness.

CONTRACTS [27][31]- Acceptance- Construction of tender document- Whether written notification of acceptance from vendor is mandatory- Held "Yes"- No written notification of acceptance- No formal contract. CONTRACTS [75]- Informal contract within the meaning of the "fourth class" of Masters v Cameron- Lack of written note or memorandum- Part performance- Acts constituting part performance must be in performance of the contract, not merely in reliance on it. ESTOPPEL [32]- Proprietary estoppel by encouragement- Whether fulfilment of expectation disproportionate or inequitable- Calculation of equitable compensation- Reasonable foreseeability of plaintiff's expenditure in reliance on the defendants' representation.

TRUSTS AND TRUSTEES - trust deed provides that office of trustee is "determined and vacated" if trustee, being a company, goes into liquidation - effect of such provision - trust deed provides for unit holders to appoint new trustee - whether such appointment made - old trustee reluctant to surrender trust property while it has unsatisfied recoupment claims - ability of old trustee to maintain proprietary claims after transfer to new trustee

CRIMINAL LAW - Crown appeal against sentence - aggravated dangerous driving occasioning grievous bodily harm - prescribed concentration of alcohol significantly above threshold - whether appropriate for sentence to be served by way of periodic detention - whether trial judge erred by failing to fix an appropriate sentence and then considering alternatives to full time custody - steps in sentencing process - need for sentence to reflect general and specific deterrence - whether sentence manifestly inadequate

CORPORATIONS - company under voluntary administration - member wishes to commence proceeding seeking winding up order in respect of company and other orders against company and a natural person defendant - whether leave needed under s 440D

Pleadings - General Steel - Particular

Arbitration - Leave to appeal from Arbitral Award - Principles - Onus of proof

PRACTICE AND PROCEDURE - Plaintiffs' application for costs where the Attorney General sought to appear as intervener and limited leave granted - reliance placed on failure by the Australian Government Solicitor to provide particulars - failure to provide information concerning conditional appearance - obligation of the Commonwealth to act as a model litigant - no criticism of the Attorney General's conduct as litigant - no order as to costs.

CRIMINAL LAW - Practice and Procedure - Indictments - Consent to commence proceedings for conspiracy - time of commencement of proceedings - Criminal Code Act 1995 (Cth), s 11.5(8)

CRIMINAL LAW – appeal against conviction – whether verdict of guilty unreasonable – multiple indictments – accessory to an attempt to import not less than the commercial quantity of a prohibited drug – knowingly take part in the supply of not less than the large commercial quantity of the drug – verdict of guilty not unreasonable – no miscarriage of justice

CRIMINAL LAW – Crown appeal against excluding evidence – exclusion such as to eliminate or substantially weaken Crown case – identification evidence – whether risk of unfair prejudice outweighed probative value – credibility and reliability not relevant to determination of probative value – evidence to be considered on the assumption that it is accepted by the jury – weight of the evidence may be taken into account when assessing unfair prejudice

APPEAL AND NEW TRIAL – Appeal – general principles – interference with judge’s findings of fact – proof and evidence – other matters – where primary judge’s findings inconsistent with own findings of fact and evidence - EVIDENCE – Burden of proof, presumptions and weight and sufficiency of evidence – uncontradicted evidence – where treating doctor’s and expert’s conclusions unchallenged – where rejected on inadequate grounds - NEGLIGENCE – Occupier’s liability – dangerous premises – injuries to person entering premises – live open light socket at pub – electrocution of patron at pub – causation – damages

CRIMINAL LAW - Practice and Procedure - Indictments - Conspiracy - Patent and latent duplicity - Criminal Code Act 1995 (Cth), s 11.5 - CRIMINAL LAW - Practice and Procedure - Indictments - Conspiracy - Whether a conspiracy to commit a preparatory act is unknow to law - Criminal Code Act 1995 (Cth), s 101.6. - CRIMINAL LAW - Practice and Procedure - Indictments - Conspiracy - Whether a charge of conspiracy should be dismissed on the basis that it is in the interest of justice to do so - Appropriateness of conspiracy charge - Criminal Code Act 1995 (Cth), s 11.5(6)

CRIMINAL LAW - Suitability of venue for large scale Criminal Trial - Principles applicable to change of venue.

PROCEDURE – Stay pending appeal.

PROCEDURE - Security for costs of an appeal - Appeal brought for benefit of creditors - Stay of costs orders - Provision for interest on costs.

PROCEDURE – Stay pending appeal – Whether appeal from decision of GREAT can challenge earlier decision that it had jurisdiction – Discretionary considerations.

CORPORATIONS - winding up - statutory demand - application for order setting aside statutory demand - where plaintiff unable or unwilling to show that application for order filed and served within 21 days after service of statutory demand - where plaintiff accordingly seeks leave to discontinue - whether plaintiff should pay defendant's costs

SUCCESSION - Family Provision and Maintenance - Failure of testatrix to make provision - Elderly daughter left nothing by mother - Executrix living in house, the only asset in the estate - Executrix's flats designated as notional estate - Executrix settled another claim by a sibling by legacy out of notional estate - Applicant's house subject to mortgage as a result of guarantee of son's business being called up - Whether a legacy sufficient to discharge mortgage is proper provision

Cross-vesting - mesothelioma case in DDT - place of tort Queensland - can be heard sooner in DDT - plaintiff with poor short term prognosis - transfer to Supreme Court of Queensland refused.

Criminal law - Court Attendance Notice - Time not an essential ingredient of offences

PRACTICE AND PROCEDURE – application of the Attorney General to appear as intervener or alternatively as amicus curiae – application for default judgment by the plaintiffs – whether service on the defendant was effected in accordance with the Foreign States Immunities Act 1985 – appearance and defence not entered by the defendant

EXTENSION of time to appeal - LEAVE to appeal decision of Local Court

SENTENCE APPEAL - Knowingly deal with proceeds of crime - no question of parity - no question of principle raised by Appeal.

CRIMINAL LAW - LEAVE TO APPEAL AGAINST SENTENCE - plea of guilty - aggravated break, enter and the commission of a serious indictable offence and malicious damage to property - six year term of imprisonment with a four year non-parole period - proportionality - error in the assessment of objective seriousness - error in approach to proper allowance for the plea of guilty - application of Div 1A of Part IV of the Crimes (Sentencing Procedure) Act - approach to s 44(2) of the Crimes (Sentencing Procedure) Act - DOMESTIC VIOLENCE OFFENCES - specific and general deterrence - protection of the community - denunciation of offender’s conduct - relevance of victim’s expression of forgiveness

CRIMINAL LAW - Sentencing - Plea of Guilty involving numerous offences - Lengthy criminal record - Sentences not excessive - No error in sentencing judge's approach