Cases and authorities

Partnership. Inquiry as to nature and value of partnership assets. Business of partnership. Hedge fund. Indebtedness of one partner to the other.

Sentence appeal - no question of law raised

Sentence appeal - no question of law raised

Criminal Practice & Procedure - aggravated sexual intercourse and attempt - daughter - agreed statement - complainant's statement and other material tendered - whether judge able to go outside agreed statement - whether sentence excessive - sentencing for attempt.

Appeal against decision of Land and Environment Court of NSW - two offences of dumping septic waste - pleas of guilty - fined plus costs, total $20,000 - whether manifestly inadequate - deterrence - totality - matter could be prosecuted in Local Court - limited means to pay - owned house subject to large mortgage.

SENTENCING – Gravity of firearms offences reflected in maximum penalty – Firearms Act 1996, s51D

REAL PROPERTY – easements – grant of easement under section 88K Conveyancing Act 1919 – whether easement is “reasonably necessary for the effective use or development of land” – assessment of compensation – approach to assessment of compensation when valuation evidence inadequate

Application to set aside subpoena

CORPORATIONS - debentures - statutory jurisdiction to make orders to protect interests of debenture holders - where ASIC and borrowing corporation agree on enhanced review and reporting arrangements - whether court should make orders

CORPORATIONS - voluntary administration - enforcement of guarantee given by director of company - need for court's leave for enforcement during administration - where enforcement proceeding commenced one day before end of administration

Security for costs - delay in bringing application

FAMILY LAW - Adoption - EVIDENCE - Privilege - Protected Confidences - where birth mother has made confidential statements to medical practitioner whose report she relies on – where report relies on those confidences - whether access should be refused - where issue is welfare of a child - where confider has forensically deployed the confidences via medical report - where disclosure necessary to scrutinise expert opinion which relies on them - Client legal privilege and litigation privilege - where some communications for purpose not of litigation but securing appropriate care - Waiver – where report refers generically to file but privileged entries not reasonably necessary to understand report - where some privileged communications are instructions to expert for report which has been served - INTERROGATORIES - where parties other than birth mother contend that child is settled and thriving with proposed adoptive parents and there is no contrary evidence - where applicant birth mother unaware of respondent proposed adoptive parents' and child's circumstances - where interrogatories seek to identify witnesses from whom documents might be subpoenaed bearing on circumstances of proposed adoptive parents and child - whether parenting capacity of proposed adoptive parents is a real issue - whether proposed interrogatories relate to a real issue in the case - whether fishing - whether necessary.

Appeal - Local Court Small Claims Division - outstanding architect's fees

DEFAMATION – defence of statutory qualified privilege – whether conduct of publisher reasonable - DEFAMATION – defence of contextual truth – whether plaintiff’s imputations further injured plaintiff - DEFAMATION – Polly Peck defence – not recognised by common law of Australia - DEFAMATION – damages – mitigation – truth of contextual imputations – relevant in mitigation - D

Criminal Practice & Procedure - aggravated sexual assault of young child - Longman warning - did not use word "warning" or "dangerous to convict" - many counts uncorroborated - one count corroborated - proviso - whether miscarriage of justice - whether Longman fundamental to trial.

ADMINISTRATIVE LAW [63]- Complaint against minister- Minister unresponsive when provided with opportunity to be heard- Minister not told precise time and place of hearing but was aware of imminence of meeting- Committee made adverse decision- Minister lodged appeal against decision- Late with statements- Counsel assisting defendant stated appeal deemed abandoned- Not appropriate- Appeal still on foot.

Conviction appeal - prosecution tendered financial accounts - no evidence suggesting inaccurate or false - allegation made for first time in prosecution address - unfair to defence - should have given timely notice - matter for evidence not submission - jury should have been directed to disregard submission - miscarriage of justice

Appeal decision of Registrar - Application for leave to file amended statement of claim

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether genuine dispute - whether offsetting claim

Succession. Family Provision. Claims by two adult children. Financial and material circumstances of Plaintiffs. Obligation upon applicant for provision to place before the Court as fully and as frankly as possible all available information concerning her or his financial and material circumstances. Whether each plaintiff has been left without adequate provision for her or his proper maintenance. Competing claim of chief beneficiary, who is widow of Deceased. Only significant asset of estate is matrimonial home of Deceased, to which chief beneficiary made substantial financial and personal contributions. Plaintiffs must establish their claims upon their own merits. Claims of Plaintiffs cannot be established, or enhanced, by proving, if such be the case, that chief beneficiary, had she been an applicant for provision, might have been unsuccessful in her claim.

CORPORATIONS - winding up - special purpose liquidator appointed by court - whether principal liquidators should have oversight of expenditures by special purpose liquidator - whether special purpose liquidator should have fund for payment of expenses

JUDGMENTS AND ORDERS – Variation after judgment entered – When hearing conducted on agreed basis that statutory provision would not apply – Whether slip rule applies – Workers Compensation Act 1987, s 151Z(1), Uniform Civil Procedure Rules, 36.16. (ND)

LANDLORD AND TENANT - Covenants of lease - Construction and effect of covenants - Meaning of "demised premises" - Meaning of "reasonable wear and tear" - Meaning of "structural maintenance replacement or repair" - Whether repair of damage caused by sub-lessee was rendered necessary by the lessee's use of the demised premises - Whether lessor became liable for losses, claims or expenses arising from negligent use of facilities by the sub-lessee - Whether lessee's liability to repaint engaged by words "usually so treated" where the item would not generally be painted but had been painted at the leased property - Whether lessor had proved loss of rent because of lessee's breaches - Whether lessor entitled to interest at 20% on damages as moneys due pursuant to the lease but unpaid for 7 days.

CRIMINAL LAW - Appeal against conviction - Identification from photographs - Jury able to compare photographs with person before them - Appellant does not attend court on the appeal - Whether possible to say the jury could not reasonably be satisfied, beyond reasonable doubt, of identity of offender.

WILLS - informal wills - whether document signed by deceased but not witnessed should be admitted to Probate

Applications re limitations and extension of time - action for false imprisonment - whether action for breach of duty s18A Limitation Act - 3 year limitation - application to extend time - plaintiff under disability for part of period - previous refusal to extend time for another cause of action (negligence).

COSTS - application for costs order against non-parties - where applicants could have sought and in some cases did seek security for their costs - whether respondents funded and controlled litigation - whether respondents would have benefited from litigation's success - whether involvement of respondents amounted to "abuse of process" under UCPR r 42.3(2)(c)

ADOPTION – CONSENT DISPENSE APPLICATION – INDEPENDENT EXPERT – Whether consent dispense application should be heard with final adoption application – whether independent Court expert should be appointed where no conflicting experts’ reports – whether children’s interests should be separately represented.

TRUSTS – Resulting trust – arising from unequal contributions to purchase money – where property taken in joint names – how mortgage money treated – Constructive trust – Baumgartner v Baumgartner. - EQUITY – General principles – equity of exoneration. - REAL PROPERTY – Co-ownership – contribution between co-owners – liability to contribute in respect of mortgage repayments – requirement to do equity by offering to pay occupation fee.

BUILDING AND CONSTRUCTION - whether one adjudicator valued construction work - whether subsequent adjudicator bound by s 22(4) of the Building and Construction Industry Security of Payment Act 1999 to value that work accordingly - where adjudicator decided that obiter dicta in Supreme Court judgment were incorrect - where this issue not advanced by either party - where no notice to parties - whether material to adjudicator's determination - whether parties denied natural justice - whether adjudicator lacked good faith - application of Brodyn v Davenport [2004] NSWSC 394 - whether bringing the same claim in consecutive adjudications is abuse of process - where party likely to raise in future adjudication issue of notice precondition on the bringing of claims - whether declaration has utility - whether clause conflicts with s 13(4) of the Act - whether clause void by operation of s 34 of the Act

Claim of solicitor's professional negligence - limitations questions - whether exceptions to the normal rules on limitations - previous District Court proceedings between plaintiff and his former business partner - re-litigating issues already decided - whether abuse of process - whether defendant's breach led to plaintiff's loss in District Court - whether claim against solicitors for loss of partnership property

CRIMINAL LAW – Appeal – Sentence – Aggravating factors – Prior criminal record – Whether relevant to objective circumstances of the offence – Whether sentencing judge erred by taking prior criminal record into account as aggravating factor – Crimes (Sentencing Procedure) Act 1999, s 22A(2)(d) - CRIMINAL LAW – Appeal – Sentence – Guilty Plea – Whether trial judge correctly assessed utilitarian value – Whether sentencing judge erred by considering weight of Crown case - CRIMINAL LAW – Appeal – Sentence – Whether sentencing judge erred by not taking into account fact that proceedings could have been dealt with in Local Court – Where not put to sentencing judge - CRIMINAL LAW – Appeal – Sentence – Whether sentence manifestly excessive

CRIMINAL LAW - criminal procedure - detention after arrest - interviewing a vulnerable person - whether accused was a vulnerable person by reason of mental impairment - duties of custody managers - EVIDENCE - lies - consciousness of guilt - admissibility and use against co-accused - SENTENCING - parity - where co-accused receives heavier sentence than principal due to prior criminal record - whether sentences for each offender were manifestly excessive

Criminal law - sentence for murder - murder of partner after night of drinking - application of standard non-parole period - aggravating and mitigating factors.

Murder - sentence - plea of guilty - role of Post Traumatic Stress Disorder in commission of offence - past sexual assaults on offender.

EQUITY – Trusts and trustees – Implied trusts – Constructive trusts – Plaintiff and defendant were in de facto relationship – Plaintiff and defendant purchased property as joint tenants – Plaintiff contributed disproportionately to purchase price of property – Defendant contributed disproportionately to payment of plaintiff’s personal expenses – Plaintiff and defendant separated – Joint tenancy severed – Earlier judgment of Court found parties hold property on trust as to 57 per cent for plaintiff and 43 per cent for defendant – Whether parties should bear burden of mortgage debt in same proportion as that in which they hold property – Parties must bear burden equally - COSTS – Both parties sought orders for costs – Both parties relied upon offers of compromise – Where neither party bettered his or her offer of compromise – Where plaintiff failed to obtain relief sought in statement of claim – Where plaintiff’s only success came pursuant to submissions made belatedly – Order that plaintiff pay 50 per cent of defendant’s costs.

PROCEDURE - striking out parts of statement of claim - whether reasonable cause of action shown - CONTRACT - condition precedent - where condition described as "condition precedent" and consequences of non-fulfilment stated - whether claim that non-fulfilment resulted in contract being void ab initio maintainable - CORPORATIONS - subscription for shares - subscription moneys paid and shares allotted - whether alleged common intention as to application of proceeds by company may cause proceeds of allotment to be held on trust for subscriber - PROCEDURE - security for costs - plaintiff has minimal paid up capital and is a trustee - no evidence of right of indemnity or extent of trust assets - PROCEDURE - undertaking to court - application for release - whether relevant change in circumstances

TAXES AND DUTIES - Stamp Duties - Agreement to sell properties for specified sum - Rearrangement of transaction - Long term concurrent leases granted to purchaser - Rent for entire terms prepaid - Leases stamped at 3.5% - Options to purchase properties exercised and contracts for sale for balance of specified sum stamped up to 5.5% - Chief Commissioner acts under antiavoidance provision in the Duties Act 1997, s 24, disregards entry into concurrent leases, and assesses duty on unencumbered value of estates in fee simple - Whether dutiable property the subject of the contracts for sale were estates in fee simple or reversionary estates - Whether reversionary estates were created on grant of concurrent leases or on grant of earlier leases - Whether the dutiable values of the reversionary estates created on grant of earlier leases were affected by the agreements to grant concurrent leases - The nature of a concurrent lease - Whether the same principles apply to a grant of a lease over part only of land and a later lease of the entirety - Chief Commissioner entitled to disregard later leases but dutiable property the reversionary estates before grant of the later leases and not estates in fee simple

CRIMINAL LAW AND PROCEDURE - MURDER - TRIAL BY JUDGE WITHOUT JURY - MENTAL ILLNESS RAISED AND SUPPORTED BY EVIDENCE - FINDINGS

CRIMINAL LAW AND PROCEDURE - MANSLAUGHTER - AGGRAVATED SEXUAL ASSAULT OF CHILD - DEATH CAUSED BY ASSAULT - PAEDOPHILE - WORST CASE AND WORST OFFENDER CATEGORY

WILLS PROBATE AND ADMINISTRATION - question of testamentary capacity

Appeal from decision confirming police officer not hurt on duty - Procedural fairness - Reasoning process - No error in point of law - ND.

Limitation of actions - sailor on HMAS Melbourne - whether plaintiff ought to have been unaware of nature and extent of personal injury - whether plaintiff ought to have been unaware of connection between personal injury and act or omission of defendant - whether just and reasonable to grant an extension of time - whether fair trial possible - costs order to reflect way in which matter conducted.

CRIMINAL LAW - application for leave to appeal against sentence - charges of aggravated sexual assault - armed robbery - matters on Form 1 - whether sexual offences fell into worst category - whether sentences excessive

Conviction and sentence appeal - "lies" direction - bias in summing up - bias in evidentiary rulings - onus of proof - alleged incompetence of trial counsel - totality and accumulation of sentences.