Cases and authorities

TRUSTS – Resulting or Constructive Trust - Tracing – Where recipient of funds does not know of receipt and provider of funds intends to retain beneficial ownership - “Windfall Equity” – EQUITY – ESTOPPEL – General principles – Equitable estoppel - Proprietary estoppel – Elements of proprietary estoppel – Creation by estoppel of subsidiary equitable interest in equitable estate itself arising by estoppel - whether remedy is to satisfy expectation, or charge – INTEREST - appropriate interest rate where constructive trustee unaware of trust property and earns interest at savings bank rate - FAMILY LAW AND CHILD WELFARE – THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION – Jurisdiction – Cross-vesting - Where Plaintiff’s claim is in part a matrimonial cause – Whether Supreme Court has jurisdiction in matrimonial causes – held, it does.

ASSOCIATIONS – Meetings – Interlocutory injunction to restrain holding of meeting – where seriously arguable case that meeting would not be valid – where meeting proceedings would cause confusion – where defendants had not availed of opportunity to challenge status of new committee at earlier stage – balance of convenience

CIVIL LAW - SOLICTOR - COSTS – whether former solicitors are entitled to a lien – if entitled to a lien, the conditions subject to which an order under s728 of the Legal Profession Act 2004 should be made.

Succession. - Family Provision. - Claim by adult daughter. - Financial and material circumstances of Plaintiff. - Asserted needs of Plaintiff. - Whether Plaintiff has been left without adequate provision for her proper maintenance. - Competing claim of Defendant. - Equality in testamentary provisions made in favour of Plaintiff and of Defendant. - Benefits and advances made by Deceased during her lifetime to Plaintiff and to Defendant. - Estate not sufficient to meet any order for provision. - Whether advances to Defendant constitute prescribed transactions. - Whether an order for provision should be made out of notional estate of Deceased.

ABUSE OF PROCESS – earlier proceedings based on estoppel – later proceedings against another party based on the truth – later proceedings not abuse of process - ESTOPPEL – representation conveyed by pleadings and affidavits – capable of supporting estoppel against amendment of pleadings - RES JUDICATA - Anshun estoppel – not available in proceedings for fraud inducing conduct creating estoppel enforced in earlier proceedings - RES JUDICATA - abuse of process – collateral challenge to prior decision – no abuse where prior decision based on estoppel and later proceedings based on truth - D

PROCEDURE - COSTS - APPEAL - New hearing ordered in case concerning best interests of a child - Appellant only partly successful - No order made as to costs.

WILLS, PROBATE AND ADMINISTRATION - Son and daughter of deceased named co-executors and beneficiaries under deceased’s will – Son took possession of house of deceased – Status of son as both beneficial co-owner and executor – Whether son, as co-executor, liable to account for profit arising from occupation of house - WILLS, PROBATE AND ADMINISTRATION – Obligation of son to swear affidavit describing dealings with personal papers of deceased - WILLS, PROBATE AND ADMINISTRATION – Division between beneficiaries of personal chattels of decease.

PRACTICE – judgments and orders – consent orders – consent orders settling Supreme Court litigation on terms of payment of money into controlled monies account to abide resolution of a dispute – Supreme Court proceedings dismissed – District Court proceedings commenced to determine the dispute – whether order for payment of money into controlled monies account was interlocutory – interlocutory orders terminating upon determination of the proceedings – consent orders as both orders and embodiment of a contract – whether contractual aspect of consent orders terminated by dismissal of Supreme Court proceedings – construction of consent orders by reference to surrounding circumstances

EQUITY – Equitable estates and interests – ESTOPPEL – equitable estoppel – matters which plaintiff must establish to found an equitable estoppel – SUCCESSION - FAMILY PROVISION AND MAINTENANCE – two step process for provision out of an estate under Family Provision Act 1982 (NSW) s 7 – “moral duty” – consequential provision - vesting order - costs

PROCEDURE - EVIDENCE - Subpoenas and Notices to Produce - Standing to apply to set aside - relevance

Real property. - Interests in land. - Equitable charges. - Mortgagee sale. - Payment of surplus into Court. - Competing claims for such surplus. - Priority between adverse equitable interests. - Charges created on same day. - Mortgage pursuant to one charge was subsequently registered. - Express agreement between parties that such registration shall not alter the rights (including priority) of the parties. - Effect of such registration upon priority between respective interests.

CUSTOMS - OFFENCES - SMUGGLING, DUTY EVASION FALSE ENTRY - NOT CONTESTED - ONE TRANSACTION AND SINGLE PENALTY APPROPRIATE - MEANS OF OFFENDER NOT A REASON FOR REFRAINING FROM DETERRENT PENALTY

PROCEDURE [657] – Costs – Taxation – Assessment in lieu of taxation – Power to order gross sum – Circumstances in which gross sum ordered.

CORPORATIONS – creditor’s voluntary winding up – effect on civil proceedings by or against company – stay of proceedings effected unless court grants leave to proceed – application of s 500(2) Corporations Act 2001 - PRACTICE – service of process – interested parties merely notified of proceedings – not made parties thereby – not invited to join thereby – lack of procedural fairness – presents “insurmountable difficulty” to proceedings continuing - APPEALS – standing – where claimant only a witness at first instance – need for utility in relief sought - CRIMINAL LAW – perjury – application of s 327 Crimes Act 1900 to a “judicial proceeding” – no requirement that “judicial proceeding” be concluded before offence of perjury established - CRIMINAL LAW – perjury – application of s 327 Crimes Act 1900 – whether evidence uncovered during stayed proceedings under s 500(2) Corporations Act 2001 admissible in criminal proceedings for breach of s 327 (ND)

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – parol evidence rule – authority of agent – principally turns on facts – EVIDENCE – effect of failure of a party to give evidence on a topic which he could have given evidence – effect of failure to call a relevant witness

Negligence - Employer's liability to employee - Quantum of damages - No questions of principle.

Succession. - Family Provision. - Claim by former wife of Deceased. - Plaintiff and Deceased separated more than forty years before death of Deceased. - They did not divorce until almost twenty years after separation. - Plaintiff neither sought nor received any property settlement or maintenance from Deceased. - Nature and extent of subsequent contact between Plaintiff and Deceased. - Obligation upon Plaintiff to provide as fully and as frankly as possible all information concerning her financial and material circumstances. - Failure of Plaintiff to disclose a subsequent marriage and benefit received by her on death of her second husband. - Lack of frankness in evidence of Plaintiff. - Whether there are factors which warrant the making of the application. - Whether, in any event, Plaintiff has established an entitlement to an order for provision. - Competing claims of beneficiaries named in will.

Review - new regime - appellate nature thereof - need to demonstrate grounds relied on - no error in exercise of discretion.

Criminal Law - Sentence - two counts of dangerous driving causing gbh - concurrent sentences - double counting between guideline judgment and s 21A - no lesser sentence warranted.

RESTRAINT OF TRADE - employee restrained from soliciting customers - application for interlocutory injunction - where employee was the point of contact for relevant customers

National Security Information (Criminal & Civil Proceedings) Act 2004 - Constitutional validity - implied freedom of speech in political discussion

EQUITY – Fiduciary Obligations – Constructive Trust – where defendant exploits commercial opportunity introduced by plaintiff on basis that it be exploited for ultimate benefit of plaintiff - where opportunity not available to plaintiff - INJUNCTIONS - Interlocutory injunctions - irrelevance of sufficiency of damages where claim is in equity's exclusive jurisdiction - balance of convenience - where risk that injunction might establish breach of condition of defendant's licence

Criminal Law - sentences imposed by Drug Court after termination of Drug Court programme - whether sentences manifestly excessive having regard to pre-sentence custody, the period spent by the applicant in the programme, sanctions imposed on the applicant and period spent in rehabilitation centre - whether non-parole period excessive having regard to these matters - Appeal - material placed before the Court for purposes of resentencing - whether it has any relevance or weight.

Non-compliance with directions in Small Claims Division - Registrar gives direction at pre-trial conference for witnesses to attend for cross-examination - Magistrate does not allow cross-examination - plaintiff not allowed to rely on witness statements - judgment entered for defendant - plaintiff alleges denial of natural justice - any denial of natural justice was not material to the result.

FAMILY LAW - De Facto relationships - Adjusting order under s 20(1) of Property (Relationships) Act, 1984 - 20 year relationship - De facto wife had primary role as homemaker and parent - Almost all assets in de facto husband's name - Contribution to his business - Lump sum ordered - No question of principle.

PROCEDURE - Supreme Court procedure - Anton Piller order - application to vacate or vary - obligations of disclosure on seeking of Anton Piller order

CORPORATIONS - winding up - application by liquidator for order granting advantage to one creditor in winding up - creditor financed successful preference recovery litigation - Commonwealth through GEERS scheme occupying higher position on scale of priorities - whether order sought by liquidator may impinge upon such priority - whether special onus applies where order will so impinge - whether relevant that Commonwealth is a volunteer

Criminal Law - Sentence - taking matters into account - whether quantifying the increase in sentence an error of discretion - non-parole period more than 75% of total sentence - parity.

Applicant appeal against sentence - dangerous driving occasioning grievous bodily harm - fatigue - influence of marijuana and alcohol - serious permanent injury caused - serious offence - knowledge of own physical condition - recent personal emotional turmoil impairing psychological functioning - whether a mitigating factor - whether lowers moral culpability - whether sentence manifestly excessive - importance of general deterrence - high moral culpability - extent and nature of injuries

DEFAMATION - whether matters complained of reasonably capable of conveying imputations to ordinary reasonable reader - HELD - primary judge erred in striking out imputations - ordinary reasonable reader would read the matters complained of in the sense for which the claimant contended - 8 out of 10 causes of action restored - REASONS - observations concerning judicial obligation to give reasons. (D)

PRACTICE AND PROCEDURE - DEFAMATION – Notice of Motion – In proceedings arising from publication of defamatory matter prior to commencement of Defamation Act (2005) – Whether form of procedure contained in s7A, Defamation Act (1974), has been replaced by that in s21 and s22, Defamation Act (2005) for pre-commencement actions – Interpretation of Defamation Act (2005), sch 4 - cl 2 – Interaction of transitional provisions and s21 and s22 – Discussion of presumption against retrospectivity and procedural provisions – Whether the expression, “the determination of civil liability” in Defamation Act (2005), sch 4 - cl 2 encompasses substance and procedure - WORDS AND PHRASES – “the determination of civil liability”

PROCEDURE [101] Supreme Court procedure - Practice under Supreme Court Rules – Amendment - Whether amendment necessary for defendants to rely on particular subject matter - Relevant considerations - Prejudice – Lateness of application – Overriding purpose.

PROCEDURE - discovery and interrogatories - whether discovery to be ordered of documents relating to professional indemnity insurance policy of defendant - ongoing discovery - form of interrogatories - interrogatories only if necessary - procedure for obtaining expedition

Practice and Procedure - Application to vary interlocutory orders of another Judge - Separate question orders

Jurisdiction conceded before Tribunal - credit contract - leave to add a ground of appeal challenging finding as to jurisdiction - dictates of justice - leave to file further evidence of material not led before Tribunal.

CRIMINAL LAW AND PROCEDURE - DEEMED SUPPLY OF HEROIN - LARGE COMMERCIAL QUANTITY AND COMMERCIAL QUANTITY - OFFENCES ARISING FROM ONE COURSE OF CONDUCT - EXTENT OF APPROPRIATE ACCUMULATION OF SENTENCE - TOTALITY - PARITY WITH CO-OFFENDERS - HARSHER TREATMENT OF APPELLANT - SOME MITIGATION OF SENTENCE APPLIED

CRIMINAL LAW AND PROCEDURE - SENTENCE - INTIMIDATION - SUSPENDED SENTENCE NOW EXPIRED - NO BREACH DURING OPERATIVE PERIOD OF RECOGNIZANCE - APPEAL NOT PURSUED WITH TIMELY DILIGENCE - NO PRACTICAL POINT TO APPEAL - LEAVE REFUSED - ADJOURNMENT TO ALLOW LATER CONTEST TO PLEA OF GUILTY REFUSED

CRIMINAL LAW AND PROCEDURE - SENTENCE - SUPPLY (DEEMED) COMMERCIAL QUANTITY OF PROHIBITED DRUG (KETAMINE) - PRIOR RECORD NOT A MATTER OF AGGRAVATION - OBJECTIVE OFFENCE SERIOUS - NO LESSER SENTENCE WARRANTED - CRIMINAL APPEAL ACT s 6(3) APPLIED

Sentence - manslaughter - substantial impairment - offender suffered from a psychotic disorder - "defence" of "mental illness" available but not relied upon

FAMILY LAW – Binding Financial Agreements – setting aside – Jurisdiction – Jurisdiction of Supreme Court under Jurisdiction of Courts (Cross-Vesting) Act (Cth) – Costs – circumstances justifying a costs order in proceedings under Family Law Act. COSTS – Proceedings under Family Law Act – third party proceedings to set aside financial agreement.

CORPORATIONS – winding up – application for adjournment of winding up summons – administrator appointed shortly before winding up summons due to be heard – sufficiency of evidence on adjournment application

TAXES AND DUTIES - superannuation guarantee charge - persons in respect of whom payable - independent contractors - RESTITUTION - mistake - recovery of superannuation contributions paid by mistake

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – Resolution of disputes – Adjudication – Determinations – Judicial review – minimum requirements for validity – whether 12-month limit for serving a claim is a basic and essential requirement non-compliance with which results in invalidity – held it is not – whether payment claim made within 12 months of performance of the latest of the construction work to which it related – whether specificity in payment claim is basic and essential requirement non-compliance with which results in invalidity – held it is not – whether payment claim sufficiently specified the construction work in respect of which it was made - whether service on receiver of respondent required – held it is not – whether adjudicator failed to have regard to relevant submissions – where submissions were outside ambit of payment schedule - held adjudicator rightly did not have regard to submissions – whether adjudicator entitled to determine progress payment at amount claimed upon rejection of respondent’s material – held such approach is jurisdictional error or failure of basic and essential requirement of validity as to minimum content of adjudication – whether further prosecution of adjudication application should be restrained as abuse of process – where proceedings at law on foot but not advanced – held no basis for stay. CORPORATIONS – Proceedings – Service – whether service on receiver of corporation required – effect of appointment of receiver on means of service – service on sole director sufficient service on company.

CORPORATIONS - creditors granted leave to be heard without becoming parties - applications by liquidators for convening of meetings of creditors to consider scheme of arrangement - difficult and novel questions - whether creditors should be awarded costs

PRACTICE AND PROCEDURE - Claim for damages in negligence against State of New South Wales by former police officer - psychiatric injury resulting from alleged victimisation and harassment of Plaintiff by senior police officers - application by State to strike out statement of claim on pleading grounds - application by State to set aside Plaintiff's requisition for trial by jury - relevance of pre-trial media publicity favourable to Plaintiff and unfavourable to NSW Police on application to dispense with jury - application by Plaintiff for discovery

Defamation - practice - discovery - in order to plead publication of newspaper beyond Australia - whether application a fishing expedition - whether dictates of justice require order for discovery at present stage of proceedings