Cases and authorities

[EQUITY - COMMERCIAL LIST] - practice and procedure - application to transfer matter out of Commercial List to Common Law Division Professional Negligence List - rationale of specialist lists - professional negligence suit - underlying commercial transaction in respect of which no relief is sought

TORRENS SYSTEM - Assurance Fund - costs of litigation as loss or damage for compensation under s 129 - consideration of claims of plaintiffs and mortgagee who earlier succeeded in claims against the Fund - see [2007] NSWSC 694 - consideration of - causation of loss - process of assessment and reasonableness of costs incurred.

GUARANTEE and INDEMNITY - deposit bond in lieu of deposit on sale of land - P obtained issue by Lumleys of Deposit Bond to V - P defaulted, V terminated and claimed under Deposit Bond - by mistake, the wrong document was included with the claim as copy Notice of Termination - Lumley's agent refused payment on this ground but notification did not reach V's solicitor until after expiry of Bond - consideration of construction of Deposit Bond and need for strict compliance with provisions about formalities of claims HELD - strict compliance required by terms of bond, no entitlement to recovery, agent's conduct was not unconscionable.

Substituted service of Statement of Claim, Pt.11 r14 UCPR - Application to set aside originating process - Breaches of contract made in NSW - jurisdiction under Schedule 6 of UCPR - Whether substituted service on Australian citizen residing permanently overseas permissible

DEFAMATION - imputation that plaintiff knowingly made false claims - meaning of the imputation - defence of substantial truth and public interest - plaintiff detained in Pakistan, Egypt and Guantanamo Bay - allegations of mistreatment during detention - plaintiff interviewed by officials whilst in detention - conflicting statements made by plaintiff duirng interviews in Australia - creditability of the plaintiff - EVIDENCE - admissibility - whether admissions influenced by violence or other conduct - whether fear of punishment for wrongdoing relevant conduct - whether evidence improperly obtained - whether circumstances of plaintiff's incarceration or expectation of release influenced plaintiff to make admissions - whether plaintiff a "protected suspect" for purposes of s 23F Crimes Act 1914 (Cth)

CRIMINAL PRACTICE & PROCEDURE - appeal against sentence - whether sentence manifestly excessive - three serious drug offences - all sentences concurrent - not appropriate to make concurrent - whether lesser sentence warranted (s6(3) Criminal Appeal Act).

CRIMINAL PRACTICE & PROCEDURE - appeal against conviction and sentence - Longman direction - delay up to 4 years - whether Longman necessary - relevance of length of delay to content of warning - Markuleski direction - no objection by counsel - Rule 4 - whether inconsistent verdicts - error on sentence - whether lesser sentence warranted in law (s6(3) Criminal Appeal Act).

Defamation - s 7A trial - determination that imputations were conveyed - summing-up - judge expressed views that were conveyed - including that it was his duty to tell jury they would be unreasonable if they found otherwise - refused application to discharge jury - whether excess in expression of views - danger of overawing jury - consideration of division of functions between judge and jury - was error and should have discharged jury - no new trial unless substantial wrong or miscarriage of justice - whether there was - court to decide for itself whether imputations conveyed - they were conveyed - although error, no new trial - immediate order for costs of s 7A trial - on basis trial was a waste of time - previous appellate holding that reasonable jury could not determine imputations were not conveyed - but was one new imputation and jury did determine some imputations not conveyed - not a waste of time - discretion miscarried - costs order set aside.

COSTS – Family provision – Appeal – Appeal court awards appellant one-seventh share of estate – Offer of compromise at first instance but not on appeal – No effect on costs of appeal – Offer of sum greater than amount resulting from appeal decision, but less than amount appellant would have received if costs not incurred – Costs orders in favour of appellant confirmed.

Appeal - negligence - contributory negligence - damages - whether subsequent sexual assault compensable by defendant - novus actus interveniens - damages recalculated in part

BANKRUPTCY - leave to proceed - application for declaration that alleged creditor has security interest in bankrupt's land and for order extending operation of caveat affecting that land - whether proceedings "in respect of a provable debt" - REAL PROPERTY - caveats against dealing - application for order extending operation of caveat affecting bankrupt's land - caveat claims interest as security for debt - whether leave to proceed under Bankruptcy Act required

CRIMINAL LAW — assault — Crimes Act s 418(2) — Liquor Act s 103 — Inclosed Lands Protection Act — power of licensee to eject person

Costs - Principles - Statutory Construction

Identity of lender disputed - Construction of guarantees & indemnities - Whether loan agreements subject to Consumer Credit (New South Wales) Code - Whether guarantees of loans void for uncertainty - Construction of guarantee, whether limited to principal or inclusive of interest - Whether rate of interest unconscionable, and unenforceable

TRADE AND COMMERCE - restraint of trade - restrictive covenant in contract for sale of restaurant business - application for interlocutory injunction - serious question to be tried amply shown - balance of convenience - where grant of interlocutory relief would be equivalent to grant of final relief - interlocutory relief not granted but directions to be made for early preparation for final hearing

CRIMINAL LAW AND PROCEDURE - Life sentence for offence committed in 1988 prior to legislation altering effect of such imposition - Application for determinate sentence refused but non parole period fixed

CRIMINAL LAW - appeal against conviction - aggravated kidnapping and robbery in company - joint indictment of three co-accused - co-accused found not guilty - whether verdicts inconsistent - signifcantly different roles assumed by co-accused - whether verdict for robbery in company charge was unreasonable - whether jury should be directed in relation to alternative non-aggravated count - whether trial judge required to summarise all evidence for jury in summing-up

ASSOCIATIONS AND CLUBS - incorporated associations - winding up by the court - surplus after payment of debts - no special resolution specifying destination of surplus - statutory power of court to determine manner of distribution - proposed distribution to like community organisations - whether association competent applicant - whether liquidator competent applicant - CORPORATIONS - corporation aggregate - where corporation aggregate has no members - whether corporation dissolved

DEFAMATION - application to strike out defence pleadings - UCPR 4.15 - whether pleadings scandalous, oppressive or an abuse of process - relevance of pleadings to defence of truth and to contextual imputations - capacity of contextual imputations to arise from published material

Family Provision. Claim by twin sister and her husband who looked after deceased for 14 years. Legacy awarded. No matter of principle.

CRIMINAL LAW - Crown appeal - sentence imposed upon respondent in relation to two charges of attempting to import a border controlled drug, namely gammabutyrolactone, being a commercial quantity, contrary to ss 11.1(1) and 307.1 in Part 9.1 of the Criminal Code Act 1995 - maximum penalty of life imprisonment and/or a fine of $825,000 - plea of guilty - sentence on first count to 150 hours of community service and on second count to 360 hours of community service to be served concurrently – statutory regime distinguishing between drugs in prescribing the threshold trafficable and commercial quantities, but otherwise without distinction as to applicable maximum penalties - trial judge erred - no scope for judicial or forensic enquiry about individual characteristics of any of the listed substances except by reference to quantity - seriousness of an offence relating to a border controlled drug should be determined by reference to statutory provisions relating to it, rather than by some comparison with other border controlled drugs - sentences inadequate - harsh and unfair to subject respondent to more severe penalty even in circumstances where error is demonstrated - exercise of Court’s residual discretion not to interfere

CRIMINAL LAW – appeal against sentence – unauthorised use of prohibited pistol – possession of an unregistered firearm – applicant convicted and s 9 good behaviour bond imposed – whether conviction carries extra-curial punishment – whether s 10 bond should be substituted for s 9 bond and conviction set aside – conviction disentitles renewal of licence but does not necessarily entail automatic revocation of licence – substitution of s 10 would result in the circumvention of the discretion conferred upon the statutory officer holder – appeal dismissed

CRIMINAL LAW – Crown appeal against stay of proceedings on alternative charge on indictment – whether doctrine of double jeopardy attaches to formulation of charges in the alternative – elements and facts of each count not identical – no element of double jeopardy

LEAVE TO APPEAL – appeal from interlocutory judgment in District Court - refusal by Judicial Registrar of leave to file cross-claim – no evidence to explain delay in filing cross-claim – defendant had knowledge of proposed proceedings – appeal without real prospects of success

CONSTRUCTION – CONTRACT – whether Building and Construction Industry Security of Payment Act 1999 applies – whether construction contract within s 7(2)(b) – statutory construction – whether claimant entitled to payment claim – claimant’s application for summary judgment under Uniform Civil Procedure Rules 2005, Pt 13, r 13.1

JUDICIAL REVIEW - WIMWCA

APPEAL – appeal from refusal of District Court judge to grant adjournment – appellate intervention in discretionary judgment - FURTHER EVIDENCE – evidence tending to show procedural unfairness – denial of truth of statements made by lawyer in court – evidence obtained from lawyer but not addressing statements made – further medical evidence – doctor not called - LEGAL REPRESENTATIVE – retainer for litigation – adjournment application refused – not prepared for trial – withdrawal of instructions – advice given to client – application to withdraw from hearing - PROCEDURAL FAIRNESS – defendant taken to hospital in ambulance in course of hearing – defendant withdrew retainer of solicitor – trial judge refused adjournment – hearing continued in absence of defendant and any legal representative of defendant – balance of prejudice between parties

Contempt - criminal contempt - media - publication of material about accused standing trial - allegation that accused attempted to "derail" trial by appealing to Court of Criminal Appeal - jury discharged - whether publication amounted to contempt - whether journalist named in byline the author - relevance of effect of publication on trial.

PROCEDURE - interpleader - need for competing claims to the same fund or property - where A makes specific claim to funds held in trust account by B - where C has money claim against D for unpaid price - where C alleges that the money held in B's trust account "comprises the purchase price" - no claim of C to the fund sufficient to warrant interpleading

PRISONERS: - Habeas Corpus - whether available - conditions of custody - applicant wishing to lodge High Court special leave application - difficulty in complying with High Court rules while in custody

MAGISTRATES: - Private prosecution - refusal by registrar to issue court attendance notice - review of that decision by a magistrate - whether review appropriate - power of a magistrate to determine whether court attendance notice should be issued after refusal by registrar - whether refusal to issue court attendance notice in the instant case affected by denial of procedural fairness or constructive failure to exercise jurisdiction

CORPORATIONS [1508] – Winding up – Other grounds for winding up – Just and equitable – Impossibility of effectively carrying on business – Relationship between only two directors and shareholders suffered irretrievable breakdown.

CRIMINAL LAW – appeal against conviction – whether presumptive evidence of blood stains should have been admitted – Whether direction on unreliability under s 165(1) of the Evidence Act should have been given – Whether verdict of guilty unreasonable.

CORPORATIONS – Application for termination of winding up under s 482 of the Corporations Act 2001 (Cth) – Winding up proceedings instituted after applicant failed to either contest or comply with statutory demand – Winding up proceedings not contested by applicant as a result of legal and accounting advice received – Whether solvency established – Consideration of whether termination should be ordered having regard to public interest and commercial morality – Relief refused

Joint Venture - Dispute re accounts - final orders consequential on judgment.

CRIMINAL LAW - remarks on sentence - partial defence - substantial impairment by an abnormality of mind arising from an underlying condition

ADMINISTRATIVE LAW - judicial review - reconsideration - obvious error

Consumer Trader & Tenancy Tribunal has no jurisdiction to order corporate plaintiff to provide security for costs - Tribunal not a court under Corporations Act 2001 (Cth) and not otherwise authorised

CRIMINAL LAW - Breaches of s 12 good behaviour bond - break enter and steal offence, abusing amphetamines and failure to comply with directions of Probation and Parole Service - revocation of s 12 bond - special circumstances due to offender's pregnancy - sentence to include a period of imprisonment.

Clause 105(1)(a) of the Crimes (Administration of Sentences) Regulation - Commissioner prohibited solicitor from visiting correctional centres - Whether conduct would prejudice the good security of NSW correctional centres - Finding of deceitful conduct - Whether sufficient material for that finding

TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and related legislation – consumer protection – misleading or deceptive conduct or false representations – representations in relation to investment in property development – whether reasonable grounds for representations – whether misleading conduct by non-disclosure – whether omissions advertent – accessorial liability – causation of loss.

Succession - family provision - claim by asserted de facto partner of Deceased - status of Plaintiff as de facto partner is disputed by Defendant - financial and material circumstances of Plaintiff - whether plaintiff has been left without adequate provision for her proper maintenance - competing claim of children of Deceased, who are the beneficiaries under his will - assets and liabilities of estate - whether estate is insolvent - whether an alleged debt to former wife of Deceased has been paid - obligation of administrator to get in assets of estate - failure of parties to comply with Practice Note SC Eq 1, paragraph 55

CRIMINAL LAW - application for leave to appeal against sentence - principle of totality in sentencing - special circumstances in setting non-parole period - whether overall sentence was manifestly excessive - whether sentence should be concurrent with previous sentence imposed for related offence - charges of manslaughter and sexual intercourse with a child under 10 years - finding that offence was in the worst class of manslaughter

CRIMINAL LAW – appeal against sentence – supply of not less than the commercial quantity of a prohibited drug methylamphetamine – plea of not guilty – parity principle – additional offences of co-offender

CRIMINAL LAW - appeal against conviction - four occasions of sexual conduct in relation to a child - judge's directions to jury - whether summing up lacked balance and objectivity - whether trial judge unfairly bolstered child complainant's evidence and Crown case - CRIMINAL LAW - evidence - whether trial judge erred in admitting evidence of complaint - "fresh in the memory" requirement - re-establishing creditability - whether trial judge erred in his direction on the Markuleski principle - CRIMINAL LAW - application for leave to appeal against sentence - whether the applicant being held in custody with more onerous conditions constitutes special circumstances - rehabilitation of sexual offenders - whether sentence manifestly excessive

APPEAL - CTTT - res judicata

CRIMINAL LAW - sentence - plea of guilty to murder and associated charges - ferocity and brutality of the killing an aggravating factor