Cases and authorities

REAL PROPERTY – Caveats – Application to extend caveat – Caveat recorded on title to lot of land – Evidence that second defendant holds land on trust for plaintiff – Second defendant and third parties attempted to develop land without consent of plaintiff – Attempts to develop land breach of trust – Evidence that attempts to develop land will fail if caveat extended – Whether caveat should be extended – Balance of convenience – Effect of statutory scheme envisaged by Real Property Act 1900 (NSW) – Caveat extended until further order – Whether plaintiff entitled to injunction to prevent further borrowings on security of land – Injunction granted.

SUCCESSION - family provision - application by widow - thirty year marriage - widow receives home by survivorship and half estate - other half left to ex-nuptial child of deceased who never formed part of deceased's household and with whom deceased had infrequent contact - home in need of extensive repair - widow in immediate need of various necessities - inadequate fund to meet these needs and to provide for contingencies

Appeal decision of Local Court Magistrate - legal fees

CORPORATIONS - statutory demand - offsetting claim - evidence quantifying claim

CRIMINAL LAW: - administration of prisons - habeas corpus - plaintiff sentenced to term of imprisonment with non-parole period - parole order made by sentencing court - transferred to hospital under Mental Health Act while in custody on remand - whether forensic patient after sentence passed - whether then entitled to release in accordance with parole order or subject to discretionary release by Minister on recommendation of Mental Health Review Tribunal

CORPORATIONS - winding up - appeal against liquidator's decision to reject proof of debt - lessee repudiates lease by non-payment of rent - lessor sues for rent on basis that lease remains on foot - court enters judgment for lessor for rent up to termination of lease by lessor's acceptance of lessee's repudiation - lessor then proves in lessee's liquidation for damages for loss of rent from date of termination of lease to date of expiration of term of lease - whether lessor's proof of debt prevented by Anshun estoppel or on grounds of abuse of process

PROCEDURE - costs - ASIC successful in insolvent trading proceedings against company director - defendant director contends that there should be departure from rule that costs follow the event - no reason for departure shown

TRUSTS – Charitable trusts – Procedure – difficulty in ascertaining and finding next-of-kin – whether representative should be appointed - Trustees – corporation assumes charitable functions and assets and liabilities of unincorporated society – whether corporation is successor of unincorporated society - Charitable gifts – gift for charitable purposes “as a memorial” to testator’s family – whether charitable – Perpetuities - gift to charity with gift over on failure of charitable purpose – whether gift over void for perpetuity – whether at common law grantor’s possibility of reverter upon termination of determinable fee is affected by rule against perpetuities - Schemes – Cy pres – for supervening impossibility – where original purposes have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust – supervening failure of charitable purpose in context of void gift over – where particular charitable intent only –- general charitable intention not required – absolute gift required - distinction between limited or determinable interest and conditional interest - where gift not one for a limited period or until the occurrence of a particular event, but absolute gift to charity subject to a gift over on void condition subsequent – gift takes effect unconditionally and absolutely - cy pres is available - scheme approved.

Practice & Procedure - Privilege - Client legal - Waiver - Loss of privilege - Document becoming part of public record

CORPORATIONS - arrangements and reconstructions - companies in liquidation - proposed compromise or arrangement with creditors - meetings of creditors - format of meeting - where several voting constituencies assembled together but each later had opportunity for separate discussion and voted separately - motions moved by chairman of meetings - whether irregular - voting at meeting - whether requirement for decision "on the voices" satisfied by vote by show of hands - taking of poll "before or on the declaration of the result of the voices" - whether preliminary vote "on the voices" thereby made necessary - where court invited to approve scheme as altered by resolution of creditors - whether creditors having claims subject to potential reduction by operation of scheme constitute class distinct from creditors whose claims are not subject to such potential reduction - whether non-disclosure in explanatory statement of potential reduction of some claims was material non-disclosure

Criminal law - Sentence - Murder - Plea of guilty.

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. Asserted needs of Plaintiffs. Whether each Plaintiff has been left without adequate provision for her or his maintenance. Competing claim of chief beneficiary, who was also a child of Deceased. Plaintiffs must establish their claims upon their own merits. Claims of Plaintiffs cannot be established, or enhanced, by proving that chief beneficiary, had he been an applicant for provision, might have been unsuccessful in his claim.

notice of motion - reopen judgment 1 September 2005 - claim against Council in breach of duty of care - application of Civil Liability Act 2002 - date of commencement of proceedings - whether date of commencement of original proceedings or date of filing cross-claim - dross-defendant party to original proceedings - proceedings against cross-defendant commenced on date of filing cross-claim - whether conduct in question so unreasonable that no council could consider it reasonable exercise of function - approval of stairway not reasonable exercise of council function

COURTS AND JUDICIAL SYSTEM - appellant injured in unknown circumstances - appellant suffering from partial amnesia - unusual combination of injuries - appellant alleged that he had been struck by a motor vehicle - expert witnesses at trial propounded two alternative theories to explain the appellant's injuries - whether an appellate court can overturn a decision of a trial judge when it is based on the competing views of expert witnesses - whether a judge can decline to accept either theory - Rhesa Shipping Co SA v Edmunds ("The Popi M") [1985] 1 WLR 948 discussed - determination of probabilities - the task of an appellate court when the trial judge's decision in regard to a conflict between experts is based only to a minor degree on demeanour. - EVIDENCE - whether admission by conduct by a driver binding on the Nominal Defendant - whether failure to stop after accident is admission by driver. D

TRADE PRACTICES – Unconscionable conduct – Whether Appellant “delegated” responsibility for execution of guarantee – Absence of disadvantage or special disability on the part of a prospective guarantor – Trade Practices Act 1975, s51AC. - CONTRACTS – Unjust contracts – Weight accorded to failure to implement scheme for certification that potential guarantors obtain legal advice – Relevant time for assessment of “unjustness” – Contracts Review Act 1980, s7. - CONTRACTS – Unjust contracts – Whether “unfair tactics” used – Where guarantor failed to read guarantee – Absence of disadvantage or disability on the part of a prospective guarantor – Contracts Review Act 1980, s9(2)(j).

SUCCESSION – FAMILY PROVISION – claim by adult son of first marriage –estate left to widow of second marriage – plaintiff estranged from deceased following his parents’ divorce and assumed name of his stepfather – whether estrangement is conduct disentitling – plaintiff able to support himself but in marginal circumstances - where plaintiff may in case of need expect support and provision from mother and stepfather – competing claim of widow - primacy of deceased’s obligation to widow - where estate insufficient to provide adequately for maintenance of widow – obligation to maintain widow prevails over any obligation to advance adult son – summons dismissed – COSTS – unsuccessful claim by adult son - where claim not unreasonably brought – where adverse costs order would falsify finding that plaintiff was able to support himself – no costs order made against plaintiff.

SUCCESSION – Family Provision – claim by adult daughter – no surviving spouse – estate net $537,000 - sole beneficiary is disabled adult son – plaintiff has since death assumed responsibility for care and accommodation of deceased’s disabled adult son – estate insufficient both to make adequate provision for plaintiff and to preserve sufficient fund for alternative accommodation for beneficiary – probability that current arrangements of plaintiff caring for beneficiary will continue and fund provided under Will for beneficiary’s care would not be utilised, but possibility that those arrangements will fail and fund will be required for maintenance of beneficiary.

TORT - negligence - duty of care of road authority to motorist - motorist affected by alcohol - confusing nature of roadworks and signs - causation - contributory negligence and apportionment - damages - brain injury - claim for economic loss of unemployed musician - attendant care.

FAMILY LAW & CHILD WELFARE – Director-General sought interim orders in Children’s Court allocating parental responsibility for three children to Minister – Children’s Court made interim orders substantially in accordance with orders sought by Director-General – Application by children’s parents for stay of orders of Children’s Court – Whether Supreme Court should exercise its parens patriae jurisdiction to grant stay of orders of Children’s Court – Parens patriae jurisdiction used in exceptional circumstances – Whether circumstances exceptional – Application dismissed.

EQUITY [400] – Equitable remedies – Specific performance – Defences – From conduct of parties – Absence of readiness and willingness – Averment and proof of – Whether averment necessary in statement of claim – Whether necessity for averment removed by UCPR r 14.11 - PROCEDURE [99] - Supreme Court procedure - Practice under Supreme Court Rules - Admissions - Withdrawal - Absence of absolute right to withdraw - Discretionary considerations.

Further appeal of Costs Review Panel's decision

COSTS – Plaintiff and defendant in dispute over possession of retail premises – Mediation pursuant to Retail Leases Act 1994 (NSW) – Mediation successful in resolving dispute – Plaintiff sought order for costs – Defendant countered with Calderbank letter – Offer open for less than twenty-four hours – Offer not accepted – Defendant sought order for costs on indemnity basis – Incurrence of further costs by both parties contrary to s 56 Civil Procedure Act 2005 (NSW) – Usual principle that Court not to order costs where proceedings not determined on merits and no capitulation – Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia - Ex parte Lai Qin (1987) 186 CLR 621 considered – Whether usual principle applicable – Principle applicable – No order as to costs made.

Application for Judgment for want of evidence - construction of amendments to Excise Act and regulations - petrol blending.

CORPORATIONS - winding up - liquidator seeks leave to appoint himself and another as voluntary administrators - ex parte application - whether notice to creditors should be required before application is determined

CRIMINAL LAW - Crown appeal - resentence for failure to cooperate with authorities - heroin importation - evidence in trials of co-offenders - undertaking under s 21E of Crimes Act 1914 - whether failure in full or in part - proportions of sentence attributable to past or future cooperation

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude Evidence – whether opinion evidence of identity based on facial mapping and body mapping admissible. - CRIMINAL LAW – Evidence – Expert opinion – whether facial mapping and body mapping constitute areas of “specialised knowledge” – meaning of “specialised knowledge” – meaning of “knowledge” – s 79 Evidence Act 1995 (NSW). - CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude Evidence – whether curriculum vitae of witness correctly admitted. - CRIMINAL LAW – Practice and Procedure – Whether the use of the phrase “ultimate issue” in directions constituted a miscarriage of justice. - WORDS AND PHRASES - "specialised knowledge", "knowledge".

CRIMINAL LAW - Conviction appeal - charge of malicious wounding contrary to s 35(1)(a) Crimes Act 1900 - trial judge failed to explain concept of recklessness - whether jury properly directed as to meaning of maliciously.

CRIMINAL LAW - Appeal against conviction - aggravated indecent assault contrary to s61M(1) Crimes Act 1900 - failure to call analysts who carried out DNA tests - point conceded at trial - rule 4 of Criminal Appeal Rules - application to discharge jury - no risk of substantial miscarriage of justice - application for leave to appeal against sentence - incorrect maximum penalty relied on - whether offences "in middle range of objective seriousness" - evidence of extra curial punishment - principles of totality and proportionality in respect of sentences awarded.

TORTS - NEGLIGENCE - ROADS - Pedestrian injured when he put his foot into a hole in nature strip between formed footpath and gutter - Whether claim was for failure of a roads authority to carry out roadwork within s.45 of the Civil Liability Act 2002 - Whether it was proved that the authority had actual knowledge of the risk.

NEGLIGENCE – duty of care owed by doctor to patient – doctor failed to warn patient of material risks in operation – risks materialised – whether doctor had duty to warn patient of risks. - NEGLIGENCE – causation – whether trial judge made finding in relation to causation – whether breach of duty by failure to warn caused injury – whether the plaintiff needed to only establish a prima facie case of causation in the absence of a more plausible contrary inference.

APPEAL - WORKERS COMPENSATION - error of law - extent of duty to give reasons where no appeal on findings of fact - whether primary judge discharged obligation to give reasons - primary judge entitled to apply knowledge derived from experience on specialised tribunal to make causation finding - sufficient for primary judge to reveal grounds although not detailed reasoning in support of finding of fact - HELD - obligation to give reasons discharged.

Criminal law - Sentencing - Cumulation - Mental illness - Sentence not manifestly excessive.

CORPORATIONS - winding up in insolvency - creditor's statutory demand - offsetting claim - inappropriate use of statutory demand procedure by creditor aware of genuine offsetting claim

[INSURANCE] — Plaintiff insured with defendant for business interruption consequent upon “closure” of manufacturer’s premises — Manufacturer’s licence to manufacture plaintiff’s product suspended — Whether consequences of suspension of licence amounted to “closure” of manufacturer’s premises.

Extension of time - ss 60C & E, G & I Limitation Act 1969

CONVEYANCING – Default under mortgage – Mortgagee’s claim for possession – Whether mortgagee entitled to exercise rights under the mortgage – Estoppel – Anshun estoppel – Whether notices under s 7(1) Credit (Home Finance Contracts) Act 1984 and s 57(2)(b) Real Property Act 1900 sufficient – Whether caveat should be extended or removed

CORPORATIONS – Application for order that Australian Securities and Investments Commission (ASIC) reinstate registration of company – s 601AH(2) Corporations Act 2001 (Cth) – Plaintiff was sole director and secretary of company – Company deregistered for failure to lodge annual returns with ASIC – Application prompted by notice under s 222AOE Income Tax Assessment Act 1936 (Cth) that plaintiff liable to Commissioner of Taxation for unpaid liabilities of company – Plaintiff entitled to exemption from liability by causing company to be wound up within fourteen days of notice – Where purpose of reinstatement is to effect winding-up of company – Where ASIC not opposed to application for reinstatement – Where Commission of Taxation not opposed to application for reinstatement – Whether order for reinstatement appropriate – Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 34 ACSR 232 considered – Policy of Income Tax Assessment Act considered – Application granted - CORPORATIONS – Winding-up – Application for leave for plaintiff to apply for winding-up of company in insolvency – Where grounds for winding-up plainly established – Application granted.

CORPORATIONS - interim injunctions sought by administrator appointed under Aboriginal Land Rights Act to protect aboriginal land council's interest in assets - administrator purports to remove directors while application is pending - discretionary considerations in preliminary hearing

plaintiffs' application for leave to file sixth amended statement of claim - previous pleadings struck out or dismissed - lengthy procedural history - claim in contract - claim in contract statute barred - plaintiffs' liberty to plead fraudulent concealment of action - claim in deceit - fraudulent misrepresentation - essentials of claim in deceit/ fraudulent misrepresentation - identification of fraudsters - particulars of knowledge of falsity - whether proof of particulars capable of supporting claim - claim under Trade Practices Act 1975 - when cause of action arises - statute barred - claim under Australian Securities and Investments Commission Act 2001 - ASIC Act not in force at time of events giving rise to claim - statute barred - discretionary factors - procedural history - leave to file further amended statement of claim refused - proceedings dismissed

LANDLORD & TENANT – Plaintiffs and defendant commenced negotiations for creation of lease agreement – Defendant forwarded leasing proposal to plaintiffs – First plaintiff made alterations to leasing proposal – Leasing proposal allegedly returned to defendant – Leasing proposal expressed not to create binding legal relations – No memorandum or note indicating defendant’s acceptance of altered leasing proposal – Section 54A Conveyancing Act 1919 (NSW) considered – Whether serious question to be tried that parties created binding lease agreement - LANDLORD & TENANT – Leases and licences – Defendant entered into lease agreement with third party in relation to commercial premises – Third party gave licence to plaintiffs to occupy premises – Plaintiffs allegedly in arrears – Third party sent plaintiffs notice of termination of licence agreement – Defendants subsequently terminated lease agreement with third party – Whether serious question to be tried that plaintiffs entitled to possession of premises pursuant to licence agreement or otherwise.

INTEREST [21] – Where equitable relief or fiduciary relationship – Generally – Simple or compound interest – Rate – Money repayable to trust estate – When commercial rate applicable - PROCEDURE [553], [573] - Costs - General rule - Costs follow the event - Costs of whole action - Generally - Plaintiff generally successful - Defendants win on some issues - Departing from the general rule - Powers of court - Relevant principle - Whether claims distinct - Whether issues intertwined - PROCEDURE [565] - Costs - General rule - Costs out of a fund - When costs allowed out of fund - Benefit of estate - Defendant defending proceedings for own benefit rather than benefit of estate - PROCEDURE [743] – Miscellaneous procedural matters – Declarations – Jurisdiction – Limitation on Court’s jurisdiction – Discretionary power not to be fettered by laying down rules – Confined only by bounds of judicial power.

CRIMINAL LAW – evidence – prior criminal conduct – whether tendency – evidence of prior drug supply - EVIDENCE – tendency evidence – no operation of general exclusionary provisions where tendency provisions apply - JURISDICTION – s.5F(3A) Criminal Appeals Act (NSW) 1912 – whether decision of trial judge to exclude evidence substantially weakens prosecution’s case – appeal may be made against an interlocutory decision regardless of whether or not a jury has been empanelled

appeal against conviction - application for leave to appeal against sentence - aggravated armed robbery with wounding - conflicting accounts given by complainant - leave granted to Crown Prosecutor to cross-examine complainant - directions to jury with respect to evidence of identification - complainant and complainant's husband known to appellant - complainant's husband pleaded guilty to charge of accessory after fact of armed robbery of his wife - complainant's out of court representations at variance with trial identification evidence - directions to jury - unreliable evidence - descriptive evidence - warning not required - warning not prohibited - no error in directions to jury - directions adequate - whether verdict unreasonable - appellant's prior criminal record - offence committed whilst on conditional liberty - victim vulnerable - planned criminal activity - whether appellant knew of victim's vulnerability - pre-trial period in custody - sentence to reflect pre-trial period in custody

PROCEDURE [101] Supreme Court procedure - Practice under Supreme Court Rules – Amendment - Relevant considerations - Prejudice – Lateness of application – Overriding purpose.

PRACTICE AND PROCEDURE – Plaintiff and defendant involved in proceedings pursuant to Property (Relationships) Act 1984 (NSW) in District Court of New South Wales – Plaintiff brought proceedings covering same subject matter in Supreme Court of New South Wales claiming beneficial interest under a trust – Whether institution of Supreme Court proceedings an abuse of process or contrary to s 56 Civil Procedure Act 2005 (NSW) – Whether institution of Supreme Court proceedings justified by absence of jurisdiction on part of District Court - - PRACTICE AND PROCEDURE – District Court – Jurisdiction – Jurisdiction of District Court in Equity Proceedings pursuant to s 134(1)(g) District Court Act 1973 (NSW) – Jurisdiction of District Court to make order for financial adjustment under s 20 Property (Relationships) Act – Monetary jurisdictional limit of District Court in proceedings pursuant to s 20 Property (Relationships) Act – Consent jurisdiction of District Court pursuant to s 51 District Court Act - PRACTICE AND PROCEDURE – Application by plaintiff to transfer District Court proceedings to Supreme Court – Application dismissed.

Criminal Practice & Procedure - relevance of character in context serious drug offence - special circumstances - whether parole period reflects finding of special circumstances.

Practice and Procedure – Appeal – Whether statement of claim an abuse of process

NEGLIGENCE - prisoner on weekend detention - slipped on wet floor in toilet cubicle - floor left wet after cleaning - whether breach of duty of care - HELD - Yes. CONTRIBUTORY NEGLIGENCE - whether prisoner failed to keep a proper lookout - HELD - No.

CONVEYANCING [191] - Land titles under the Torrens system - Caveats against dealing - Practice - Order extending caveat – Notice of hearing not given to registered proprietors – Dispensing with service – Circumstances in which order made.