Cases and authorities

Family Provision. Application under the Family Provision Act 1982 by a son of the deceased. No matter of principle.

CRIMINAL LAW AND PROCEDURE - LIFE SENTENCE IMPOSED PRIOR TO SENTENCING ACT 1989 - APPLICATION TO REDETERMINE RESULTING IN FINITE HEAD SENTENCE AND NON PAROLE PERIOD - NECESSARY CONSIDERATION OF SPECIAL PROVISION FOR INDETERMINATE SENTENCE WITH PAROLE OPPORTUNITY - CROWN APPEAL - SPECIAL PROVISION NOT REFERRED TO IN REASONS FOR REDETERMINATION - INTERVENTION TO REDETERMINE APPROPRIATE - RECAPITULATION OF FACTS - YOUTHFUL OFFENDER - OFFENCE IN WORST CASE CATEGORY - WHETHER UNSUPERVISED LIBERTY IN PUBLIC INTEREST

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - jurisdiction - need for cogent evidence of plaintff's financial situation before jurisdiction is established - otherwise turns on its facts

FAMILY LAW [105]- De facto relationship- Application for an adjustment of interest in joint property- Relationship under two years- Evaluation of financial and non-financial contributions- Held insubstantial- Plaintiff entitled to recover half of her mortgage payments made during the period of co-habitation- Whether there should be an equitable accounting of notional rent from the plaintiff for over two and one half years sole occupation of the property- Plaintiff is adequately compensated.

CORPORATIONS - winding up - termination of winding up after completion of deed of company arrangement - deed and accompanying creditors' trust provide for recapitalisation of company and payment of subscription amount into a trust for the benefit of participating creditors, while releasing the company from its obligation to pay them - interests of existing and future creditors, contributories and the public - relevant considerations in a case involving a creditors' trust

Criminal law - admissions by accused: s 81 Evidence Act (NSW) 1995 - exception to hearsay rule (s 65(1) and 65(2)(c) Evidence Act) - availability of witness - evidence admissible for non-hearsay purpose - s 136 Evidence Act - Limitation order

EVIDENCE - onus of proof of a payment of money being a loan - EVIDENCE - transaction involving a deceased person - standard of proof - relevance of presenting available corroborative evidence - MORTGAGES - inference of mortgage arising from deposit of title deeds - relevance of actual agreement as to purpose of deposit - EVIDENCE - whether Jones v Dunkel inference to be drawn when lawyer fails to give evidence

CRIMINAL LAW – CONVICTION APPEAL – charge of importation of prohibited goods, namely counterfeit credit cards - whether the cards imported by the appellant were capable of being found by the jury to be “counterfeit credit cards”

CRIMINAL LAW - Appeal - Apprehension of bias - Jury trial - Comment by judge in absence of jury - No application to disqualify - Whether objection waived - Whether miscarriage of justice shown.

Practice and Procedure - Amendment of pleadings - Limitations

PROCEDURE [83]- Application for preliminary discovery- Possible claim for breach of confidence or under Trade Practices Act- How far court needs to be satisfied of strength of plaintiff's claim- How far approach of Federal Court on similar rules should be followed- Whether condition of payment of expenses should be imposed.

CORPORATIONS - winding up - application to appoint liquidator and grant him leave to appoint himself administrator - purpose of administration is to consider a proposal under which the winding up would be terminated or permanently stayed - whether liquidator should be appointed - whether leave should be granted to permit liquidator to appoint himself administrator, to consider the proposal

CONTRACTS [145]- Attempted rewriting after other parties took interest in subject matter- Attempt to include retention of title clause after title passed- Invalid. - SHIPPING & NAVIGATION [5] & [6]- Sale of unregistered ship- Transfer of property- Possession passed to buyer in 2001- Buyer entered into hire purchase agreement with financier- No evidence of transfer of ownership from seller to financier- Intention of parties- Whether sale completed and property passed.

NOTICE OF MOTION UNDER LEGAL PROFESSION ACT 2004 - release of solicitors' files - damages claim for defective packaging - lien over the file - costs incurred in other proceedings - whether claim by the solicitors reasonable - whether solicitors should have accepted previous offer

CONTRACT – Whether compromise agreement gave rise to contractual obligations enforceable by the Court – Capacity of Civil Aviation Safety Authority to bind itself in contract – whether agreement unenforceable as a fetter on CASA’s statutory discretion.

AGENCY – scope of agent’s authority – whether agency extended to receiving or directing payment of purchase money – whether purchasers on constructive notice of agent’s lack of authority.

PRACTICE AND PROCEDURE – BANKRUPTCY – summary judgment – whether arguable case that claimant entitled to defend opponent’s action – jurisdiction of District Court to hear challenge to Notice issued pursuant to s139ZQ Bankruptcy Act 1966 – whether District Court proceedings should have been stayed to enable claimant to pursue application in Federal Magistrates Court to set aside Notice.

PRACTICE - APPEAL - Whether stay should be granted on late application and on incomplete material.

CONTRACT - PURCHASE OF EXPENSIVE MOTOR CAR - RESOLUTION BY CONSENT OF DISPUTES BETWEEN DEALER AND FINANCIER - SOLICITOR CEASING TO ACT FOR PURCHASER - ADJOURNMENT APPLICATION CONCERNING BALANCE OF ISSUES

Building and Construction - Entitlement to make second payment claim - Determination of reference dates - S22(4) of Building and Construction Industry Security of Payment Act (NSW) 1999 requires a subsequent adjudicator to treat an attempt [by an earlier adjudicator to determine the value of construction work] as having been successful and compliant with s.10 - value of work changing since previous determination

Succession. Family Provision. Claims by de facto partner and by two adult children. Deceased by will gave his estate between his two children. Status of de facto partner disputed by Defendant. De facto relationship obtained for no more than seven months (possibly for only three months). De facto partner entitled to substantial death benefit consequent upon death of Deceased. Financial and material circumstances of each Plaintiff. Claims by the children not instituted within the prescribed period. Whether that period should be extended. Whether any Plaintiff has established an entitlement to provision, or additional provision, out of estate of Deceased. If so, whether part of the death benefit should be designated notional estate of the Deceased.

Sentence appeal - drug dealing - significance of subjective factors - whether users of drugs are "victims" within s 21A(2) of Crimes (Sentencing Procedure) Act 1999 - whether drug dealing "committed without regard to public safety" within s 21A(2)(i) - potential for double counting - appeal dismissed

Conviction appeal - murder - joint criminal enterprise - mere knowledge of other's intention insufficient if no agreement - nature of enterprise - necessity for underlying criminal offence - whether evading police "hindering" - manslaughter - necessary to foresee possibility that accomplice might murder the victim - mere advertance to possibility of death or grievious bodily harm insufficient

TRUSTEE [204]- Application by trustee for judicial advice on whether trustee must disclose counsel's opinion on main proceedings to beneficiary opponents in main proceedings- Whether and which parts of counsel's opinion are confidential or privileged- Objectors to be given access to as much of the opinion as does not disclose confidential or privileged information.

APPEAL FROM THE DECISION OF THE REGISTRAR - notice of appeal declined by the registry - requirement to provide an address for service to the court - requirement to pay a fee - whether post office box sufficient as an address for service - whether fee should have been waived

Customs prosecution - offences against Customs Act 1901 - thirteen offences of evasion of duty payable under the Act - offence of anauthorised movement of under bond goods - importation of goods - alcoholic liquor - warehousing of goods - deferral of duty otherwise payable - movement of goods "under bond" - "Continuing Permission" to move under bond goods - limitation defence - whether s249 creates a five year limitation on commencement of a prosecution under the Act - - whether prosecution was commenced within five years of the events on which it was founded - cause of action authorised by Part 20 r4(5) and r5A of Supreme Court Rules - whether inconsistent with s249 of Commonwealth Statute - leave granted to plead cause of action - doctrine of estoppel - whether by reason of acceptance of payment by plaintiff estopped from pursuing additional defalcations - no representation by officers of Customs - no reliance by defendant - no evidence defendant induced to act to his detriment - significance of plaintiff's failure to give evidence - documentary path - averment of truth of factual allegations - significance of averment - accountant's report - not relevantly challenged - whether offence of unauthorised movement of goods committed by person who carries or directs movement, but does not physically move goods - offence established by proof that defendant caused an unauthorised movement - meaning of "evasion"

PROCEDURE [24] - Courts and judges generally – Courts - Concurrent jurisdiction of different courts - Transfer of proceedings under cross vesting legislation - In general.

Family Provision. Application by two step-sons. Deceased died intestate and estate passed to siblings whom the deceased had not seen for over 50 years. Provision ordered for step-sons with a protective trust in respect of one plaintiff.

voir dire - admissibility of evidence - Customs prosecution - irregularity in manner in which evidence obtained - evidence obtained as the result of impropriety - Notice to Produce - lack of proper identification of goods said to have been illegally dealt with - powers conferred upon Customs officers - search warrant - power exercised under Customs Act - alternative power conferred by Crimes Act 1914 - balance between nature of offences and gravity of impropriety in obtaining evidence - extent of intrusion into the rights of the individual - no mala fides

FAMILY PROVISION ACT – Extension of time – Plaintiff brought proceedings out of time – Section 16 of Family Provision Act 1982 (NSW) – Factors relevant to Court’s discretion to grant extension of time – Relevance of plaintiff’s possible cause of action against her solicitor –Extension of time granted - FAMILY PROVISION ACT – Adequate provision – Plaintiff was deceased’s wife – Plaintiff and deceased separated (but not divorced) prior to deceased’s death – Needs of plaintiff significant – Needs of other beneficiaries under the will significant – Modest estate – Provision ordered.

APPEAL AGAINST ORDER OF THE LOCAL COURT - driving in a manner dangerous - failure to give name and address of driver - responsibility of prosecutor to assist magistrate to an understanding of the appropriate law - an error of law

Sentence - applicant entitled to finding of prior good character - accumulation - manifest excess.

CRIMINAL LAW - Appeals - Leave to appeal against sentence - Whether manifestly excessive - Whether s.21A of the Crimes (Sentencing Procedure) Act 1999 complied with - Whether appropriate discount given for plea of guilty

NEGLIGENCE – contributory negligence – apportionment – no question of principle - ND

BUILDING AND CONSTRUCTION – ADMINISTRATIVE LAW – Second defendant made adjudication determination pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) – Whether second defendant failed to consider plaintiff’s payment schedule and adjudication response – Whether second defendant erred in failing to consider plaintiff’s payment schedule and adjudication response – Whether second defendant’s adjudication determination is void – Whether second defendant committed jurisdictional error, failed to act bona fide, or failed to afford plaintiff natural justice – Sections 20(2B) and 22(2) of the Building and Construction Industry Security of Payment Act 1999 (NSW) considered – Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 considered.

Building and Construction Security of Payments Act 1999 (NSW) - Requirement that unsuccessful party having paid unpaid portion of adjudicated amount into Court be ready to proceed if opposing payment out - Impermissible use of subpoena/notice to produce for purposes of fishing to establish whether a basis exists to oppose payment out

CORPORATIONS - voluntary administration - directors who resolve to appoint administrators are undischarged bankrupts - whether s 447A(1) available to cause Part 5.3A to apply notwithstanding invalidity of resolution

CRIMINAL LAW - Local Court practice and procedure - requirements for valid court attendance notice - endorsement of service of notice - whether endorsement of service must include place of service - held that endorsement need not state place of service - appropriate order where Magistrate makes finding of no jurisdiction

CRIMINAL LAW - Sentence - murder - guilty plea - prisoner murdered his mother.

Family Provision. Claim by a daughter who was left out of the will of the deceased. Legacy ordered in plaintiff's favour. No matter of principle.

CORPORATIONS - civil penalty proceedings - director allowing insolvent trading - declarations of contravention previously made - whether exoneration order should be made - meaning of "honestly" and "ought fairly to be excused"- whether disqualification order should be made - relevant considerations discussed

Mortgages - defendant in default under each of two mortgages - default judgment entered - writ of possession issued - stay - financial capacity to repay - relief under the Contracts Review Act 1980 (NSW) - Practice and procedure - application to set aside default judgment - nature of review proceedings conducted by an Associate Justice - affidavit evidence rejected on review application - appeal from decision of an Associate Justice - additional evidence adduced on appeal - benefit received under mortgages - obligation to repay principal - discretion ground based on utility of an order setting aside default judgment.

PROCEDURE - Supreme Court procedure - joinder of extra defendants at a time when some affidavits already served in the proceedings - which party has obligation to serve the new parties with those affidavits - PROCEDURE - Uniform Civil Procedure Rules 10.2 - who is a party "using" an affidavit and hence obliged to serve it

FAMILY PROVISION ACT - estate left to one of two daughters - small estate - estrangement between plaintiff and deceased until shortly before death - both daughters in poor health - plaintiff separated from husband at present time - documentary evidence that husband has considerable assets - no evidence of his assets put forward by the plaintiff

TORTS – nuisance – who may be sued for – defendant not in occupation of the land from which the nuisance emanates – NUISANCE – what constitutes – removal of support for land – unavailability of action for nuisance since enactment of section 177 Conveyancing Act 1919 – NUISANCE – what constitutes – interference with access to a public road – DAMAGES – measure and remoteness of damages in actions for tort – general principles applicable – effect of damage sustained by the plaintiff before the tort is committed – effect of remedying damage in a particular way being to put the plaintiff in a better situation than before the tort was committed (betterment) – adjustment of prima facie measure of damages to take account of vicissitudes – need to apply principle about extent of damages a plaintiff is entitled to by using principles concerning onus of proof and the shifting onus of adducing evidence – onus of proof of facts relating to pre-existing damage to plaintiff’s property – onus of proof of facts relating to betterment – DAMAGES – measure and remoteness of damages in actions for tort – availability of aggravated damages for nuisance or negligence – DAMAGES – general principles – whether appropriate to accept undertaking proffered by defendants to perform work in lieu of, or in reduction of, monetary damages

Succession, Family Provision. Claim by a de facto partner of deceased and thus entitled to the whole of the deceased's estate on intestacy. Alternative claim under Family Provision Act 1982. Held plaintiff not a de facto partner and alternative claims fail.

LEGAL PRACTITONERS - solicitors - claim for charge or lien over fruits of verdict

CRIMINAL LAW - supply of a prohibited drug - methylamphetamine - appeal against sentence - whether a correct application of s 21A - whether the judge erred in taking criminal history into account as an aggravating feature - parity - whether judge correctly took into account th ematter on the Form 1 - whether insufficient weight given to family hardship - whether sentence manifestly excessive

NEGLIGENCE - respondent struck by a taxi while walking across a busy city road - taxi driver did not see respondent until just prior to impact - whether taxi driver was negligent - whether taxi driver should have been alert to the possibility of someone crossing the road - whether taxi driver had an opportunity to see the respondent - contributory negligence - apportionment - respondent did not cross at pedestrian crossing - respondent intoxicated. ND