-
- Catchwords
- Production of documents; Practice Note SC Eq 11; necessity for exceptional circumstances
- Judgment of
- Stevenson J
- Category
- Interlocutory applications
-
- Catchwords
- Appeal from Psychologists Tribunal of New South Wales - professional misconduct - protective order - statutory test for professional misconduct - failure to give adequate reasons - insufficient evidentiary basis - failure to resolve critical factual disputes - civil standard of proof in Briginshaw v Briginshaw - denial of procedural fairness - mandatory reporting - failure to report under s 27 of the Children and Young Persons (Care and Protection) Act
- Judgment of
- Fullerton J
- Category
- Principal judgment
-
- Catchwords
- REAL PROPERTY - mortgages - whether monies owing on mortgage - whether side agreement that monies not owing effective - two proceedings heard together-brought by mortgagor, Ms Avery against first and second mortgagees of Torrens title land, respectively Lava and Saree - first mortgagee entered judgment for possession against plaintiff/mortgagor in March 2009 - plaintiff/mortgagor seeks to set aside in Lava proceedings - plaintiff/mortgagor seeks declaratory relief against Saree mortgagee.PROCEDURE - judgment and orders - varying, amending or setting aside - whether existing judgment for possession in Lava proceedings should be set aside under UCPR, r 36.15 as irregularly entered due to Consumer Credit Code, s 80 notice not being served before commencement of proceedings - whether "sufficient course" is shown to set aside judgment - HELD - no irregularity in the entry of judgment - in any event sufficient cause not shown to set aside judgment for possession.CONSUMER CREDIT - credit protection - general - regulated contracts and regulated mortgages - whether by the application of Consumer Credit Code, s 6(1) the Code applies to Lava's loan agreement to the plaintiff in the Lava proceedings - whether plaintiff/mortgagor "ordinarily resident" in jurisdiction under Code, s 6(1)(a) - whether charge made for providing the credit under Code, s 6(1)(b) - whether credit provided in the course of a business Code, s 6(1)(d) - HELD: Code applies - is a regulated credit contract.MORTGAGE - the mortgage - second mortgage registered with Saree as mortgage - plaintiff/mortgagor claims agreed in side agreement as part of illegal scheme that no money is owing to Saree on second mortgage - HELD: side agreement not part of illegal scheme - directions for taking of accounts.
- Judgment of
- Slattery J
- Category
- Principal judgment
-
- Catchwords
- MORTGAGES - claim for possession of land and for money sum - cross-claim against mortgagee for unconscionable conduct - application to restrain mortgagee sale of security properties pending determination of cross-claim - whether defendants have sufficiently apparent entitlement to justify order restraining sales - balance of convenience
- Judgment of
- McCallum J
- Category
- Interlocutory applications
-
- Catchwords
- REAL PROPERTY - sale or partition - Co-owner seeking appointment of trustees for sale under s 66G of the Conveyancing Act 1919 - whether plaintiff has interest in property to which s 66G applies - plaintiff claiming one-third equitable interest pursuant to deed entered into with defendants - whether court ought to make order for appointment for trustees for sale - relevance of provisions of deed - whether provisions are impermissible restriction on alienation of property - whether restrictions in deed should be interpreted to be limited to life of parties where deed has no express term - whether order under s 66G should be made "almost as of right" - where deed still on foot and both parties are in breach - held that order should be refused.
- Judgment of
- Ball J
- Category
- Principal judgment
-
- Catchwords
- CRIMINAL LAW - procedure - determination as to fitness to be triedCRIMINAL LAW - murder - trial by judge alone - offence committed whilst accused suffering acute symptoms of schizophrenic illness - consensus between expert psychiatrists as to mental illness defence - defence established
- Judgment of
- McCallum J
- Category
- Principal judgment
-
- Catchwords
- LANDLORD AND TENANT - construction of hotel lease - works required for compliance with fire safety standards under Building Code of Australia - whether works "of a structural nature" - question of fact and degree - no question of general principle
- Judgment of
- Nicholas J
- Category
- Principal judgment
-
- Catchwords
- COSTS - solicitor's lien - dispute over type of lien - which party terminated the retainer - whether plaintiff owes fees to defendant -security for costs
- Judgment of
- Harrison AsJ
- Category
- Procedural and other rulings
-
- Catchwords
- PRACTICE AND PROCEDURE - costs - indemnity costs or ordinary costs - challenge to retainer of solicitor for corporate plaintiff, being one of two plaintiffs - solicitor acting for a period of two months - onus of proof on party impugning retainer - exercise of Court's discretion where proceedings would have continued in the name of the non-corporate co-plaintiff in any event - HELD: corporate plaintiff's solicitor not ordered to pay the defendant's costs.
- Judgment of
- Slattery J
- Category
- Separate question
-
- Catchwords
- PRACTICE AND PROCEDURE - application for summary judgment - recovery of outstanding debt - no arguable defence raised by second defendantPRACTICE AND PROCEDURE - application to strike out various parts of Amended Commercial List Response - pleading of first defendant inadequate STATUTORY INTERPRETATION - Farm Debt Mediation Act 1994, s11 - application of Act to mortgages - "satisfactory mediation" - not limited to mediation in regards to farm debts alone - validity of certificate not affected by mediation in respect of both farm debts and other debts
- Judgment of
- White J
- Category
- Interlocutory applications
-
- Catchwords
- TORT - negligence - professional negligence - failure to diagnose
- Judgment of
- Adamson J
- Category
- Principal judgment
-
- Catchwords
- MEETINGS - public meetings and assemblies - unlawful assembly - application for order under Summary Offences Act 1988 Part 4 - principles on which order should be made or withheld
- Judgment of
- Adamson J
- Category
- Principal judgment
-
- Catchwords
- PROCEDURE - subpoenas - application to set aside - whether legitimate forensic purpose - whether it was "on the cards" that the documents would assist the case of the party issuing the subpoena - proceedings for malicious prosecution and false imprisonment - prior proceedings for defamation against third party - settlement of defamation proceedings - whether settlement documents should be produced - confidentiality issues attending settlement documents - subpoena not set aside
- Judgment of
- Davies J
- Category
- Interlocutory applications
-
- Catchwords
- REAL PROPERTY - co-owners - statutory power of sale - application by bankruptcy trustees of one co-owner - property encumbered - whether trustees entitled to sell if no equity remaining in property - whether sale would be outside provisions of Bankruptcy Act and Regulations - whether discretion in court to refuse order for sale
- Judgment of
- Davies J
- Category
- Principal judgment
-
- Catchwords
- COSTS - security for costs - practice matters - proportionality - form of security - matter of impression - no questions of principle
- Judgment of
- Nicholas J
- Category
- Interlocutory applications
-
- Catchwords
- TORT - negligence - claim for work injury damages under Workers Compensation Act - duty of care - employer's non-delegable duty of care to provide safe system of work - where employer claims no capacity to discharge its duty of care by reason of corporate arrangement - contributory negligence - apportionment between joint and several tortfeasors - contribution and/or indemnity between joint and several tortfeasorsLIMITATION - discoverable fact - whether the plaintiff was required to take steps to confirm the true identity of his employer
- Judgment of
- Adamson J
- Category
- Principal judgment
-
- Catchwords
- TRAFFIC LAW Section 136 Road Transport (General) Act 2005 - Traffic sign Whether sign to enter heavy vehicle weighing station constituted direction to stop - Similar to divert to in regulation Regulation valid Allow appeal from magistrates decision to dismiss charge
- Judgment of
- Garling J
- Category
- Principal judgment
-
- Catchwords
- CONVEYANCING - vendor and purchaser - purported rescission of contract by purchaser - whether purchaser became mentally ill - termination of contract by vendor - application for return of deposit
- Judgment of
- Stevenson J
- Category
- Principal judgment
-
- Judgment of
- McCallum J
- Category
- Interlocutory applications
-
- Catchwords
- CONSTITUTIONAL LAW - powers to allocate parental responsibility - whether referral of matters to Commonwealth limits power of Children's Court to make orders - no effect of referral on operation of State laws - creation of additional power in Commonwealth Parliament - inconsistencies subject to s 109 of the ConstitutionCONSTITUTIONAL LAW - statutory framework - interaction between State and Commonwealth laws - whether inconsistencies between State and Commonwealth powers to allocate parental responsibility - no effect on the operation of State child welfare laws - statutory mechanism for dealing with inconsistencies - Family Law Act 1975 (Cth) s 69ZK
- Judgment of
- White J
- Category
- Principal judgment
-
- Catchwords
- Negligence - air-lock in coal mine
- Judgment of
- RS HULME J
- Category
- Principal judgment
-
- Catchwords
- CORPORATIONS - winding up - application for "pooling order" in respect of two entities in liquidation - one a company the other an Aboriginal and Torres Strait Islander corporation - whether the windings up of a "group" consisting of corporations of these different types may be pooled under either the Corporations Act 2001 (Cth) or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) - held that they may not - the company later obtains re-registration under the Corporations (Aboriginal and Torres Strait Islander) Act and deregistration under the Corporations Act - application renewed under provisions of the Corporations Act applied by the Corporations (Aboriginal and Torres Strait Islander) Act to the windings up of Aboriginal and Torres Strait Islander corporations - consideration on the merits by reference to the six questions identified in Re Kirby Street (Holdings) Pty Ltd [2011] NSWSC 1536 - pooling approved
- Judgment of
- Barrett JA
- Category
- Principal judgment
-
- Catchwords
- PRACTICE AND PROCEDURE - Amendments - Application by Plaintiff for leave to file Second Further Amended Statement of Claim -Whether specific amendments would be permitted - Second Further Amended Statement of Claim not pressed in form currently before the Court.
- Judgment of
- Black J
- Category
- Interlocutory applications
-
- Catchwords
- EQUITY - undue influence - presumption of undue influence - whether presumption arises from relationship between parties - eldery father and daughter - father suffering from mild dementia - whether presumption rebutted. EQUITY - unconscionable conduct - daughter caring for father - whether father's medical condition gave rise to a 'special disability'. FAMILY PROVISION - adult sons - one son homeless and estranged for 36 years - other son dependant on pension - whether adequate provision made - whether notional estate order should be made - intention of deceased - difference between intention and effect of transaction.
- Judgment of
- Ball J
- Category
- Principal judgment
-
- Catchwords
- INSURANCE - catastrophic injury - structured settlement - construction of deed - entitlement to 29 hours care and case management services - entitlement to cost of entrance ticket for nurse or carer at recreational eventsREMEDIES - declaration - discretionary nature of relief
- Judgment of
- Justice Stephen Campbell
- Category
- Principal judgment
-
- Catchwords
- CORPORATIONS - Scheme of arrangement - Application or approval of share scheme pursuant to s 411(4)(b) of Corporations Act 2001 (Cth)
- Judgment of
- Black J
- Category
- Principal judgment
-
- Catchwords
- CORPORATIONS - Winding up - Resignation of liquidator - Application for appointment of replacement liquidators.
- Judgment of
- Black J
- Category
- Principal judgment
-
- Catchwords
- CORPORATIONS - Statutory derivative action - Application to bring proceedings on behalf of company - Corporations Act 2001 (Cth) s 237(2) - Whether the Court is satisfied that the applicant is acting in good faith and in the best interests of the company in bringing proceedings - Whether there is a serious question to be tried. CORPORATIONS - Application for inspection of company's books - Corporations Act 2001 (Cth) s 247A - When the Court should make such an order.
- Judgment of
- Black J
- Category
- Principal judgment
-
- Catchwords
- COSTS - Whether costs should follow the event.
- Judgment of
- Black J
- Category
- Costs
-
- Catchwords
- SUCCESSION - family provision - notional estate - plaintiff, son of the deceased, seeks a family provision order out of the estate or notional estate of the deceased under Succession Act 2006 - plaintiff received no provision out of the estate in the will - defendant is husband of the deceased to whom the deceased left entire estate - whether provision should be made for plaintiff and, if so, the nature of the provision to be made
- Judgment of
- Stevenson J
- Category
- Principal judgment
-
- Catchwords
- CRIMINAL LAW - fitness to plead to murder charge - cognitive impairment - verbal skills within extremely low range - inability to instruct counsel.
- Judgment of
- Beech-Jones J
- Category
- Principal judgment
-
- Catchwords
- CRIMINAL LAW - Sentence - Manslaughter - Single stab wound during affray - Good behaviour bond at time of offence - Unreasonable self-defence - Reasonable prospects of rehabilitation - Discount for plea of guilty - Special circumstances for varying statutory ratio for non-parole period
- Judgment of
- Garling J
- Category
- Sentence
-
- Catchwords
- CRIME - sentence - manslaughter - manslaughter by unlawful dangerous act
- Judgment of
- Adamson J
- Category
- Sentence
-
- Catchwords
- MORTGAGES - mortgage securing obligations under a credit contract - where defendant dissuaded by credit provider from making hardship application in accordance with the National Credit Code - default judgment entered without notice to defendant - whether default judgment should be set aside to allow defendant to avail herself of remedies under the Code
- Judgment of
- McCallum J
- Category
- Interlocutory applications
-
- Catchwords
- MORTGAGES - mortgage securing obligations under a credit contract - where defendant sought to invoke hardship provisions of the National Credit Code - dispute lodged with Financial Ombudsman Service resolved on terms - disagreement as to compliance with terms - default judgment entered without formal notice to defendant - whether default judgment should be set aside to allow defendant to revive dispute
- Judgment of
- McCallum J
- Category
- Interlocutory applications
-
- Catchwords
- CRIMINAL LAW - judge alone trial - charges of murder, wound with intent to murder and possess offensive weapon with intent to commit an indictable offence - defence of mental illness - acts committed whilst Accused experiencing acute psychotic episode - chronic paranoid schizophrenia - auditory hallucinations - verdicts of not guilty by reason of mental illness - detention order made
- Judgment of
- Johnson J
- Category
- Principal judgment
-
- Catchwords
- PROCEDURE - UCPR 13.4 and 14.28 - application for summary dismissal and strike out - amended statement of claim struck out - leave to plaintiff to file a further amended statement
- Judgment of
- Harrison J
- Category
- Interlocutory applications
-
- Catchwords
- PROCEDURE - judgments and orders - amending, varying and setting aside -application by second defendant to have judgment and consent orders set aside pursuant to UCPR 36.15(1) and 36.16(2)(c) or pursuant to the Court's inherent jurisdiction - application dismissed with costs
- Judgment of
- Harrison J
- Category
- Interlocutory applications
-
- Catchwords
- SUCCESSION - informal will - s 8 of the Succession Act 2006 - will written out on standard will form - whether deceased intended document to operate as her will - whether deceased died intestate - whether defendant was de facto spouse - family provision and maintenance - application by child for provision from mother's estate pursuant to s 59 of the Succession Act 2006 - whether inadequate provision made for plaintiff and, if so, what provision ought to be made
- Judgment of
- Stevenson J
- Category
- Principal judgment
-
- Catchwords
- PRACTICE AND PROCEDURE - Supreme Court of New South Wales - Uniform Civil Procedure Rules 2005 (NSW) Pt 13 r 13.4(1)(b) and (c) - application to dismiss proceedings against second defendant and third defendant on the basis that the plaintiff has disclosed no reasonable cause of action and the proceedings are an abuse of process - plaintiff claims that the first defendant sold land to the second defendant who on-sold part of it to the third defendant in which land the plaintiff had a beneficial interest in circumstances where the sale was a breach of fiduciary duty by the first defendant - plaintiff had in earlier proceedings against the first defendant asserted the same beneficial entitlement - those proceedings culminated in orders of the Court of Appeal that plaintiff had a beneficial entitlement in the proceeds of sale - plaintiff claims against the second and third defendants that they participated in the alleged breach of fiduciary duty and now hold their interests in the land on constructive trust for him - second and third defendants' interests in the land are registered under the provisions of the Real Property Act 1900 (NSW) - HELD - plaintiff has disclosed no reasonable cause of action because he can have no interest in the land, which can be asserted against the second and third defendants - his only interest is that recognised and declared by the Court of Appeal in the proceeds of sale - HELD - further, he has disclosed no reasonable cause of action because he must plead and establish fraud on the part of the second and third defendants, and has not pleaded it - HELD - further, the proceedings are an abuse of process because they are an attempt by the plaintiff to re-litigate a central issue determined in the prior judgment of the New South Wales Court of AppealUniform Civil Procedure Rules 2005 (NSW) Pt 13 r 13.4(1) operates subject to Civil Procedure Act 2005 (NSW) s 56(1) and (2) - approach to exercising power under r 13.4(1) is the same as that elucidated in Spencer v Commonwealth of Australia (2010) 241 CLR 118 - reasonable cause of action is one giving rise to real issues requiring resolution by the court - proceedings need not be hopeless or bound to fail, although in the present case they are hopeless or bound to fail
- Judgment of
- Hammerschlag J
- Category
- Principal judgment
-
- Catchwords
- PROCEDURE - civil - interlocutory issues - stay of proceedings - whether defendant entitled to stay of proceedings pursuant to UCPR r 12.10; s 67 Civil Procedure Act 2005 (NSW); or the Court's inherent power pending costs orders paid in other proceedings on basis of unpaid costs in other proceedings.
- Judgment of
- McDougall J
- Category
- Procedural and other rulings
-
- Catchwords
- REAL PROPERTY - Torrens title - caveat - whether caveat discloses a caveatable interest - whether plaintiff entitled to an order pursuant to s 74MA of the Real Property Act 1900 (NSW) to have caveat withdrawn - [PROCEDURE] - documents - affidavits - application to read affidavit in court - whether defendant should have leave to rely on affidavit not served in accordance with directions.
- Judgment of
- McDougall J
- Category
- Procedural and other rulings
-
- Catchwords
- UNINCORPORATED ASSOCIATION - strict adherence to rules for expulsion - nature of rights of membership - policy and principle demand strict adherence
- Judgment of
- Pembroke J
- Category
- Separate question
-
- Catchwords
- GUARANTEE AND INDEMNITY - enforcement of guarantees - whether bank entitled to judgment in accordance with guarantees - whether suspension of rights clauses effective - whether defendants can seek relief under s 12GM of the Australian Securities and Investments Commission Act 2001 (Cth) - whether, as a matter of construction, suspension clauses preclude the bringing of the cross-claims relying on federal law.
- Judgment of
- McDougall J
- Category
- Principal judgment
-
- Catchwords
- VEXATIOUS LITIGANT - leave granted to institute proceedings - appropriate conditions on grant of leave - costs
- Judgment of
- Beech-Jones J
- Category
- Principal judgment
-
- Catchwords
- CRIMINAL LAW - evidence - tendency and coincidence - evidence proposed to be adduced by one accused concerning the behaviour of another accused relevant to a claim of duress - no significant probative value
- Judgment of
- R A Hulme J
- Category
- Procedural and other rulings
-
- Catchwords
- CRIMINAL LAW - practice and procedure - prosecution duty of disclosure - transcript of interview of proposed witness not disclosed until midway through trial - whether previous cross-examination of other witness affected - whether irredeemable prejudice
- Judgment of
- R A Hulme J
- Category
- Procedural and other rulings
-
- Catchwords
- CRIMINAL LAW - evidence - admissions - no electronic recording - s 281 Criminal Procedure Act 1986 - admissions made in Victoria - practice of Victorian police not to electronically record admissions in the field - whether following standard Victorian police practice a "reasonable excuse"
- Judgment of
- R A Hulme J
- Category
- Procedural and other rulings
-
- Catchwords
- CRIMINAL LAW - procedure - jury trial - directed verdict - application for direction to return verdict of not guilty - whether evidence at its highest capable of sustaining a verdict of guilty
- Judgment of
- R A Hulme J
- Category
- Procedural and other rulings
-
- Catchwords
- CRIMINAL LAW - evidence - post-offence conduct - large cash transactions in months following alleged robbery capable of supporting inference of involvement in robbery
- Judgment of
- R A Hulme J
- Category
- Procedural and other rulings
-
- Catchwords
- CRIMINAL LAW - procedure - verdict - Prasad direction - whether circumstances appropriate to give such direction
- Judgment of
- R A Hulme J
- Category
- Procedural and other rulings
-
- Catchwords
- CRIMINAL LAW - evidence - admissibility of evidence of purchase of cable ties prior to alleged robbery and murder - evidence capable of supporting inferences for which Crown contends - no other basis to exclude shown
- Judgment of
- R A Hulme J
- Category
- Procedural and other rulings
-
- Catchwords
- CRIMINAL LAW - practice and procedure - trial of multiple co-accused involved in the same crime - defence of one accused prejudicial to another accused - whether separate trials should be ordered - whether there is "positive injustice" to the accused.
- Judgment of
- R A Hulme J
- Category
- Procedural and other rulings
-
- Catchwords
- BAIL - Review of Local Court grant of bail - Nature and seriousness of offence - Strength of Crown case - Probability of future appearance - Protection of the community - Bail refused
- Judgment of
- Garling J
- Category
- Principal judgment
-
- Catchwords
- PRACTICE AND PROCEDURE - application pursuant to s. 140 of the Civil Procedure Act 2005 for transfer of personal injury proceedings from District Court to Supreme Court - where procedural history in District Court evidenced breaches by the plaintiff of her duty to the court to comply with relevant orders - where there was delay in bringing application for transfer of proceedings in circumstances where hearing date fixed in the District Court - whether court satisfied that damages would be likely to exceed the jurisdictional limit of the District Court - nature of the task of the Court in determining whether it is so satisfied
- Judgment of
- Bellew J
- Category
- Procedural and other rulings
-
- Catchwords
- PROCEDURE - various motions and oral applications - application by defendants for summary dismissal of Attorney General's summons - application refused - motion seeking leave to issue subpoenas - refused - application for trial by jury - application previously heard and refused - leave sought to proceed on defendants' proposed statement of claim - leave not granted - notices to admit facts served on Attorney General - refused - summary judgment on notice to admit facts served on the Commonwealth - notice set aside - leave sought by Commonwealth to amend its motion to set aside notices to produce documents granted - motion to set aside notices to produce documents - granted - notices to produce served on Attorney General - motion seeking production of documents by Attorney General - production of certain documents required, motion otherwise dismissed
- Judgment of
- Schmidt J
- Category
- Procedural and other rulings
-
- Catchwords
- [PROCEDURE] - plaintiff's application to reopen case - whether interests of justice favour reopening for purpose of admitting new material - whether finding by a commissioner as to the credibility of a witness is admissible in other proceedings for the purpose of proving that witness's credibility - whether plaintiff made a tactical decision not to tender an expert's report - whether expert's report, obtained on subpoena, is tendered for the purpose of responding to a submission put by the defendants as to plaintiff's alleged depression.[EVIDENCE] - proof - standard of proof - civil - approach to assessment of credibility - burden of proof to the Briginshaw v Briginshaw standard - whether onus of proof in civil litigation is any different where the fact involves criminal conduct, fraud or serious misconduct - whether evidence of each witness should be assessed, on its own merits, for credibility - whether court can defer resolution of the question of credibility until all the facts have been found. [TORTS] - intentional - conspiracy - harm by lawful means - harm by unlawful means - whether there existed a conspiratorial agreement between the first, second, either the third and fourth or both, or the fifth defendant and others to ensure that the plaintiff and his company were removed from the construction industry - whether defendants' intent and purpose of agreement was to injure the plaintiff - whether first and second defendants had an evil intention of the kind contemplated by Evatt J in McKernan v Fraser - whether purpose of the fifth defendant entering into agreement (if it did) was to injure the plaintiff - whether agreement becomes tainted and all participants are liable for harm if one, or all of the defendants had an evil motive and countenanced this purpose by giving assistance - whether any such conspiracy agreement was carried into execution.[TORTS] - intentional - tort of intimidation - whether third, fourth and fifth defendants coerced the first and second defendants by way of threat and intimidation to terminate the construction contract - whether threats by defendant were unlawful as to induce, procure or engage in unlawful industrial action - whether third and fourth defendants threatened to use unlawful means to compel the first and second defendants to obey the defendant's demands - whether the third and fourth defendants intended that by making the threat, the first and second defendants would be persuaded to accede to the other defendants' will, being to deprive the plaintiff of the opportunity to provide demolition services. [TORTS] - intentional - wrongful interference - whether tort of unlawful interference exists - whether third, fourth and fifth defendants illegally interfered with the contract between the first and second defendants and the plaintiffs - whether a contractual relationship existed between the first and second defendants - whether the third and fourth defendants knew of that relationship - whether the third and fourth defendants unjustifiably and intentionally interfered with the contract between the first and second defendants and the plaintiffs - whether that interference caused termination of the contract.[LIMITATION OF ACTIONS] - limitation defence - fraudulent concealment - whether plaintiff's cause of action is statue barred - whether plaintiff proved, on the balance of probabilities, that he discovered fraudulent concealment to enliven the operation of section 55 of the Limitation Act (NSW) - whether defendants fraudulently concealed causes of action from the plaintiff.[BUILDING AND CONSTRUCTION] - contract - building - performance - whether subcontract was terminated lawfully - whether first and second defendants paid all that was contractually due - whether notice of default and notice of termination was ineffective - whether first and second defendants unlawfully locked out plaintiff from the work site - whether first and second defendants unlawfully and without authority or cause, seized and converted the plaintiff's plant and equipment.[DAMAGES] - torts - negligence - financial loss - pure economic loss - recoverability - damages for psychological and psychiatric impairment - aggravated and exemplary damages - whether experts report in relation to damages were based on assumptions made good in evidence - whether plaintiff can claim damages for lost earnings that would have been made but for the conspiracy - whether plaintiff can claim damages for the loss of opportunity - whether calculation of damages by expert was calculated with flawed assumptions.
- Judgment of
- McDougall J
- Category
- Principal judgment
-
- Catchwords
- Cost - indemnity costs - Calderbank offer - Offer of Compromise
- Judgment of
- Stevenson J
- Category
- Costs
-
- Catchwords
- CORPORATIONS - Winding up - Application by special purpose liquidator for claim to remuneration to be referred to registrar for assessment and quantification - Application for interim payment pending determination.
- Judgment of
- Black J
- Category
- Interlocutory applications
-
- Catchwords
- CORPORATIONS - Winding up - Application for order under s 461(1)(a) of Corporations Act 2001 (Cth) to wind up Defendant company - Whether requirements for order are satisfied.
- Judgment of
- Black J
- Category
- Principal judgment
-
- Catchwords
- Detailed rulings as to specific applications to tender documents.
- Judgment of
- Black J
- Category
- Interlocutory applications
-
- Catchwords
- JUDGMENTS - foreign judgment - judgment of High Court of Solomon Islands - judgment registered after contested application under s.6 Foreign Judgments Act 1991 (Cth) - application under s.7 to set aside registration of judgment - whether judgment registered in contravention of Act - whether High Court of Solomon Islands had jurisdiction - whether judgment obtained by fraud - whether applicable test is different where fraud alleged in obtaining foreign judgment as opposed to local judgment - whether enforcement of judgment contrary to public policy - whether matter in dispute already subject of final and conclusive judgment by other court - whether leave to reopen hearing ought be granted after judgment reserved - reopening application refused - all grounds to set aside registration of judgment rejected
- Judgment of
- Johnson J
- Category
- Principal judgment
-
- Catchwords
- CORPORATIONS - Winding up - Application by special purpose liquidator for claim to remuneration to be referred to registrar for assessment and quantification - Application for interim payment pending determination.
- Judgment of
- Black J
- Category
- Interlocutory applications
-
- Catchwords
- PRACTICE AND PROCEDURE - Discovery - Confidentiality - Whether parties are trade rivals - Inspection of documents by trade rivals - Whether inspection should be restricted.
- Judgment of
- Black J
- Category
- Interlocutory applications
-
- Catchwords
- PRACTICE AND PROCEDURE - motion seeking summary dismissal - plaintiff self represented - plaintiff retained legal representation and sought leave to file and serve amended statement of claim - parties agreed - leave granted.
- Judgment of
- S G Campbell J
- Category
- Interlocutory applications
-
- Catchwords
- PROCEDURE - Practice Note SC Eq 11 - disclosure - where parties seek an order for disclosure before service of evidence - existing proceedings - whether Practice Note SC Eq 11 discharges, abrogates or varies existing discovery orders - whether exceptional circumstances - whether disclosure necessary - meaning of "exceptional circumstances" and "necessary" - whether making of disclosure orders consistent with s 56 of the Civil Procedure Act 2005 (NSW)
- Judgment of
- McDougall J
- Category
- Procedural and other rulings
-
- Catchwords
- PROCEDURE - civil - subpoena - application to set aside - whether subpoenaed material relevant to pleaded case - whether subpoenas should be set aside - whether relevant that no evidence served.
- Judgment of
- McDougall J
- Category
- Procedural and other rulings
-
- Catchwords
- PROCEDURE - civil - interlocutory issues - Practice note SC Eq 11 - disclosure - where verified further and better discovery of documents sought - Whether Practice note SC Eq 11 applies in circumstances that existing order for discovery have been performed - whether obligation to give discovery applies to documents discoverable as a result of amendments to "pleadings".
- Judgment of
- McDougall J
- Category
- Procedural and other rulings
-
- Catchwords
- CRIMINAL LAW - sentence - accessory before the fact to robbery - robbery of drug dealer - purchase and provision of materials to bind and gag victim - victim robbed of substantial quantity of drugs - offender and robber fled the State and lived off the proceeds
- Judgment of
- R A Hulme J
- Category
- Sentence
-
- Catchwords
- JUDICIAL REVIEW - local court - certiorari - costs in criminal case - whether magistrate applied proper test to determine whether investigation unreasonable or whether proceedings initiated without reasonable cause
- Judgment of
- Beech-Jones J
- Category
- Principal judgment
-
- Catchwords
- COSTS - security for costs - plaintiff has no valuable assets and is a trustee - whether plaintiff has a right of indemnity - effect of potential class action - extent of trust assets - no indication that recovery of costs will be compromised - application refused.
- Judgment of
- Harrison AsJ
- Category
- Procedural and other rulings
-
- Catchwords
- Torts - injurious falsehood - interlocutory injunction to restrain publication - application to dissolve injunction - no material change of circumstances
- Judgment of
- Hislop J
- Category
- Interlocutory applications
-
- Catchwords
- COSTS - UCPR 42.1 - whether plaintiff is entitled to costs on an indemnity basis having regard to the overall requirements of justice - whether second defendant's rejection of plaintiff's offers to compromise the proceedings were unreasonable - costs awarded to plaintiff on an indemnity basis from 1 July 2011
- Judgment of
- Harrison J
- Category
- Costs
-
- Catchwords
- CRIMINAL LAW - procedure - fitness to plead or be tried - charge of murder - further enquiry after determination of Mental Health Review Tribunal that Accused was fit to plead - Accused suffering from schizophrenia including Formal Thought Disorder - Accused has no insight into his mental illness - whether Accused satisfies the requirements that he be able to make his defence and version of the facts known to counsel and the Court - Accused unfit to be tried.
- Judgment of
- Davies J
- Category
- Principal judgment
-
- Catchwords
- PROCEDURE - Costs - successful defendants - plaintiffs companies of straw - sole shareholder funded proceedings and paid security for costs - whether sole shareholder should pay defendants' costs on the indemnity basis
- Judgment of
- Gzell J
- Category
- Costs
-
- Catchwords
- COSTS - Costs of motion - Whether costs should follow the event
- Judgment of
- Black J
- Category
- Costs
-
- Catchwords
- Sentencing - offences under s 16 of the Public Health (Tobacco) Act 2008 - prohibit advertising by display of tobacco advertisement - sentencing principles for multiple offences - principle of totality - objective seriousness of offence - close to mid-range offences - penalties imposed.
- Judgment of
- Hall J
- Category
- Principal judgment
-
- Catchwords
- ADMINISTRATIVE LAW - order in the nature of certiorari quashing the decision of a Children's Court magistrate - alleged error in admitting expert report independently obtained by party without consent to assessment by all parties with parental responsibility. CHILDREN - care proceedings - whether expert report independently obtained by a party is admissible - whether consent of all persons with parental responsibility necessary - paramountcy of the interests of the children the subject of the proceedings - need to balance principle that probative evidence should be admitted against principle that evidence should not be admitted in contravention of the law - appropriate to consider the requirement that Children's Court proceedings be conducted with as little formality and technicality as possible.
- Judgment of
- Ball J
- Category
- Principal judgment
-
- Catchwords
- ASSOCIATIONS - Associations Incorporation Act 2009 (the Act) - Director-General of Department of Finance and Services appointed administrator - s 55 of the Act - review sought - nature of review - full merits review - effect of non-compliance with antecedent 1984 Act - "persistently" - power of Director-General discussed - "interest of creditors" - evidence before Court different from and more complete than material before Director-General.
- Judgment of
- Rothman J
- Category
- Principal judgment
-
- Catchwords
- COSTS - security for costs - application to vary freezing order
- Judgment of
- Harrison J
- Category
- Interlocutory applications
-
- Catchwords
- FAMILY PROVISION. Claims by two children of deceased. Orders for provision made. No matter of principle.
- Judgment of
- Associate Justice Macready
- Category
- Principal judgment
-
- Catchwords
- SUCCESSION - Plaintiff, who is a child of the deceased applies for a family provision order under Chapter 3 of the Succession Act 2006 - Defendants are the deceased's solicitor and the deceased's niece, to whom Probate of the deceased's Will was granted - No dispute about eligibility or that inadequate provision made for Plaintiff - Only issue nature and quantum of the provision that ought to be made and the burden of costs of the proceedings
- Judgment of
- Hallen AsJ
- Category
- Principal judgment
-
- Catchwords
- VOLUNTARY ASSOCIATION - justiciability - contract of employment - domestic tribunal - procedural review - abuse of process - permanent stay - bias - right against self incrimination - reputation - oppression and unfairness - absolute privilege
- Judgment of
- Sackar J
- Category
- Principal judgment
-
- Catchwords
- Costs - Indemnity costs - Where plaintiff foreshadowed the commencement of proceedings and an intention to seek indemnity costs - Where defence to proceedings abandoned following the conclusion of the evidence
- Judgment of
- Bellew J
- Category
- Procedural and other rulings
-
- Catchwords
- PROCEDURE - Striking out Portions of Pleadings - agreement for sale of shares - upfront payment and "earn out" based on how well business performed after sale - high and low limits for adjusted sale price - whether implied term that business would not be operated to achieve low adjusted sale price
- Judgment of
- Gzell J
- Category
- Procedural and other rulings
-
- Catchwords
- FAMILY LAW - application for adjustment of parties' property interests pursuant to s 20 of the Property (Relationships) Act 1984 - de facto relationship of approximately 15 years - whether it is appropriate to take account of a lottery win in the adjustment process - TORT - assault and battery - cross-claim for assaults by plaintiff - limitation period relating to each assault - some assaults statute barred - whether defendant suffered from a disability - compensatory damages - aggravated and exemplary damages - order made for adjustment
- Judgment of
- Associate Justice Macready
- Category
- Principal judgment
-
- Catchwords
- CONTRACT - whether concluded agreement reached - principles applicable - sale of business - significance of background context - family acrimony - intention that there be exchange of signed contracts - matters outstanding
- Judgment of
- Pembroke J
- Category
- Separate question
-
- Catchwords
- CRIMINAL LAW - sentence - manslaughter - secondary participant in killing in the course of drug "rip off" - aggravating feature of participating in disposal of body - favourable subjective case
- Judgment of
- R A Hulme J
- Category
- Sentence
-
- Catchwords
- ASSOCIATIONS AND CLUBS - Incorporated Associations - parties seek the exercise of the Court's jurisdiction under Associations Incorporation Act 2009, s 96 and Corporations Act 2001, s 1322(4) to make orders validating the holding of a general meeting to elect a new Executive Council of an incorporated association - but the parties have now failed to maintain their agreed basis for the Court to exercise Corporations Act, s 1322(4) jurisdiction without a full trial - HELD: proceedings must now be referred to the Registrar for directions for the filing of evidence for a final hearing.
- Judgment of
- Slattery J
- Category
- Separate question
-
- Catchwords
- Bail - facilities in prison to prepare appeal unavailable or denied
- Judgment of
- RS Hulme J
- Category
- Principal judgment
-
- Judgment of
- Johnson J
- Category
- Interlocutory applications
-
- Catchwords
- ASSOCIATIONS AND CLUBS - incorporated associations - members - parties agree to hold elections for Executive Council of Association - disagreement about where and how election will be held - whether sufficient evidence for Court to order an election.
- Judgment of
- Slattery J
- Category
- Separate question
-
- Catchwords
- COSTS - Security for costs - Factors relevant to the exercise of the Court's discretion to order security for costs.
- Judgment of
- Black J
- Category
- Interlocutory applications
-
- Catchwords
- CORPORATIONS - Winding up - Application under s 564 of the Corporations Act 2001 (Cth) permitting preferential payment to certain creditors of property recovered under an indemnity for costs of litigation provided by those creditors.
- Judgment of
- Black J
- Category
- Interlocutory applications
-
- Catchwords
- [CORPORATIONS] - whether the transfer of shares of the corporation in two other corporations by directors to wife and daughter respectively amounted to oppression against the minority shareholders - whether notice was given - whether consent or acquiescence - whether shares transferred at undervalue.[DIRECTORS] - Obligations in circumstances where transfer of corporation's assets are to be transferred to a family member - whether consent obtained - whether breach of statutory duties and breach of fiduciary duties.[KNOWING RECEIPT] - where wife/daughter to whom shares transferred aware of circumstances which would indicate the facts to an honest and reasonable person - where admission that transfer was to avoid litigation and/or appointment of provisional liquidator.[CONVEYANCING] - Conveyancing Act 1919 (NSW) - s 37A - whether alienation of shares to delay hinder or defraud creditors - where admissions that transfer was made to avoid the appointment of a provisional liquidator.[EVIDENCE] - where plaintiffs did not give evidence - "rule" in Jones v Dunkel - whether necessity to give evidence to prove oppression under s 232 of the Corporations Act 2001 (Cth) - and/or to prove prejudice under s 37A of the Conveyancing Act 1919 (NSW)
- Judgment of
- Bergin CJ in Eq
- Category
- Principal judgment
-
- Catchwords
- CORPORATIONS - Winding up - Application for order to terminate members' voluntary winding up
- Judgment of
- Black J
- Category
- Principal judgment
-
- Catchwords
- COSTS - indemnity costs - Calderbank letter expresses an inclusive of costs offer - whether reasonable for plaintiffs to refuse to accept offer - whether defendant entitled to indemnity costs.
- Judgment of
- Slattery J
- Category
- Costs
-
- Catchwords
- REAL PROPERTY easements imposition of easement by court right of carriageway reasonable necessity for easement over community land whether easement reasonably necessary for effective use or development of landlocked dominant tenement whether use of dominant tenement will be inconsistent with the public interest whether servient owner can be adequately compensated whether all reasonable attempts made to obtain easement whether any discretionary factors justify refusing relief
- Judgment of
- Nicholas J
- Category
- Principal judgment
-
- Catchwords
- PROCEDURE - pleadings - leave sought to amend statement of claim - leave granted - reasons - costs reserved
- Judgment of
- Schmidt J
- Category
- Procedural and other rulings
-
- Catchwords
- COSTS ASSESSMENT - Misdescription of applicant for costs assessment - costs assessor erred in determining no jurisdiction - misnomer and wrong identity of applicant - Review Panel's determining costs assessor's determination also wrong in law, determination of assessor and review panel set aside - application under s 178 Legal Profession Act 2004 - order made for itemised bills of costs in respect of the subject of the costs assessment application.
- Judgment of
- HALL J
- Category
- Principal judgment
-
- Catchwords
- Conveyancing Act 1919 s 66G, application for appointment of trustees for sale, application by trustee in bankruptcy for appointment of trustees for sale of wife's interest in matrimonial home.
- Judgment of
- Stevenson J
- Category
- Principal judgment
-
- Catchwords
- PROCEDURE - contempt, attachment and sequestration - motion for contempt brought for breach of the Court's orders - after filing the motion for contempt a sequestration order is made against the estate of one of the alleged contemnors - prosecutor disclaims any attempt to recover money from the estate of the bankrupt. BANKRUPTCY - scope and policy of legislation - whether Bankruptcy Act, s 58(3) renders the contempt motion incompetent.
- Judgment of
- Slattery J
- Category
- Principal judgment
-
- Catchwords
- BAIL - importation and sale of 150 Glock pistols - charges under (inter alia) ss.51B and 51D Firearms Act 1996 - presumption against bail under s.8B Bail Act 1978 - bail refused
- Judgment of
- Johnson J
- Category
- Principal judgment
-
- Catchwords
- [DISCOVERY] - Motion for return of documents produced allegedly inadvertently - Discovery process involving numerous "reviewers" (including lawyers and law students) of many thousands of documents - Use of electronic data base that provides for categorisation of documents as relevant and/or privileged.[PRIVILEGE] [WAIVER] - Whether documents produced informally and listed in Verified Lists of Documents, disclosed inadvertently or by mistake - Whether listing of documents in non-privileged section of Verified Lists of Documents waived privilege of documents - Where inspection of documents by party[PRACTICE & PROCEDURE] - Practice Note SC Eq 11 Disclosure in the Equity Division - regime for preparation of evidence and confining of ambit of any necessary disclosure additional to documents already in evidence as served.
- Judgment of
- Bergin CJ in Eq
- Category
- Interlocutory applications
-
- Catchwords
- PRACTICE AND PROCEDURE - interlocutory issues - injunctions - application to restrain defendant from acting on purported termination of agreement - no serious question to be tried that defendant not entitled to give notice of termination under agreement between parties - interlocutory injunction to restrain plaintiff from holding out she has a current agreement with defendant and using defendant's intellectual property
- Judgment of
- White J
- Category
- Interlocutory applications
-
- Catchwords
- Approval of proposed settlement of proceedings commenced by the Plaintiff, by his tutor, the NSW Trustee and Guardian - The Defendant, and a party to the proposed settlement, is the son of the Plaintiff
- Judgment of
- Hallen AsJ
- Category
- Principal judgment
-
- Catchwords
- DEFAMATION - strike out application - whether matter complained of capable of conveying imputations pleaded by plaintiff - local council meeting - bane and antidote
- Judgment of
- McCallum J
- Category
- Interlocutory applications
-
- Catchwords
- COSTS - whether successful plaintiff should pay unsuccessful defendant's costs of a discrete issue on which plaintiff was unsuccessful - whether alternatively she should be deprived of her costs of that issue - whether defendant should pay indemnity costs in respect of a period during which he was in default of directions of the Court
- Judgment of
- McCallum J
- Category
- Costs
-
- Catchwords
- PROCEDURE - pleadings - leave to file amended defence refused - final opportunity sought to plead defence - leave granted for any further amended defence to be filed
- Judgment of
- Schmidt J
- Category
- Procedural and other rulings
-
- Catchwords
- DAMAGES - recovered by minor - where damages should be invested - application by mother to establish trust - better net return than will be received from NSW Trustee and Guardian - considerations to justify private trust.
- Judgment of
- Davies J
- Category
- Principal judgment
-
- Catchwords
- Criminal assets recovery - whether relevant suspicion based on reasonable grounds - whether interest in property is "serious crime derived property" - whether such interest has ceased to become "serious crime derived property"
- Judgment of
- Bellew J
- Category
- Procedural and other rulings
-
- Catchwords
- PERSONAL INJURY - supply of contaminated food - Salmonella poisoning - factual contest as to source of supply.
- Judgment of
- Rothman J
- Category
- Principal judgment
-
- Catchwords
- TORTS - negligence - work injury - plaintiff employed by one defendant and hired to another defendant - system of work - whether unsafe - lack of training and instruction - causation - whether all injuries work related - plaintiff assessed at less than 15% whole person impairment - apportionment between employer and entity to whom employees hired.
- Judgment of
- Davies J
- Category
- Principal judgment
-
- Catchwords
- LIMITATION OF ACTIONS - application for extension of time under Limitations of Actions Act 1958 (Vic) - whether plaintiff able to rely upon s27J of the Act - if not whether plaintiff entitled to discretionary extension of time under s27K and 27L of the Act - reasons for delay on part of plaintiff- extent of prejudice to defendant - absence of actual prejudice - time within which cause of action was discoverable - requirement that extension of time be "just and reasonable" - whether deliberate decision by plaintiff to let limitation period expire - effect of possible availability of cause of action against previous solicitors - delay in advising defendant of possibility of bringing proceedings against it - extension of time granted.
- Judgment of
- HOEBEN J
- Category
- Principal judgment
-
- Catchwords
- Judgment of
- Associate Justice Macready
- Category
- Costs
-
- Catchwords
- Trade and commerce - Trade practices - Misleading or deceptive conduct - Representations - Setting aside of consent order discontinuing proceedings - Damages for loss of opportunity to prosecute discontinued proceedings - Likelihood of success of discontinued proceedings - Fiduciary duties - Whether necessary to demonstrate ability to pursue opportunity appropriated by errant fiduciary - Laches - Entitlement to rescission - Necessity of knowledge of legal right to rescind - Affirmation - Restitutio in integrum - Intervention third party rights - Agency
- Judgment of
- Stevenson J
- Category
- Principal judgment
-
- Catchwords
- INSURANCE - double insurance - contribution - whether sufficient to only show reasonable compromise - whether common insured an "owner" of vehicle - whether "injury" established - whether compromise reasonable so as to entitle Plaintiff to contribution - recoupment.
- Judgment of
- Beech-Jones J
- Category
- Principal judgment
-
- Catchwords
- Judgment of
- Grove AJ
- Category
- Procedural and other rulings
-
- Catchwords
- CRIME - murder - special hearing - partial defence of substantial impairment by abnormality of the mind
- Judgment of
- Adamson J
- Category
- Principal judgment
-
- Catchwords
- PRACTICE AND PROCEDURE - judgments and orders - stay of execution pending leave to appeal - consideration of strength of application for leave to appeal -- no ground established for obtaining leave - no demonstration of hardship suffered through execution of judgment APPEAL - civil - leave to appeal from decision of Local Court - leave required -summons alleged error of fact not question of mixed law and fact - nothing in application to show magistrate erred in final decision - whether leave to appeal within overriding purpose of facilitating just, quick and cheap resolution of issues - inappropriate to remit matter back for further hearing having regard to amount at stake.
- Judgment of
- White J
- Category
- Principal judgment
-
- Catchwords
- APPEAL FROM LOCAL COURT - appeal against order by Magistrate to dismiss proceedings for driving motor vehicle with special range prescribed concentration of alcohol - offence of driving motor vehicle while licence suspended proved - whether Magistrate erred in failing to provide adequate reasons for decision - special category driver - suspended driver - whether liability for one offence is dependent on liability for the other
- Judgment of
- Fullerton J
- Category
- Principal judgment
-
- Catchwords
- APPEAL FROM LOCAL COURT - appeal against order by Magistrate to dismiss proceedings - drive motor vehicle with high range prescribed concentration of alcohol - exclusion of improperly or illegally obtained evidence - whether Magistrate erred in law in refusing to exercise discretion under s 138 of Evidence Act - whether Magistrate failed to give proper account to factors required under s 138(3) of Evidence Act - whether Magistrate erred in disregarding very high blood alcohol reading indicated by certificate of analysis
- Judgment of
- Fullerton J
- Category
- Principal judgment
-
- Catchwords
- PROCEDURE - judgment and orders - final orders - whether Council should be restrained from considering the report, given the order that the report be quashed - restraining order madePROCEDURE - costs - general rule costs follow the event - Sanderson type order sought - no departure from usual rule - defendant sought costs orders in relation to contempt motions and suppression motion - no departure from usual costs order in relation to contempt motions - plaintiff to bear costs of suppression order
- Judgment of
- Schmidt J
- Category
- Consequential orders
-
- Catchwords
- Costs of the proceedings - Defendant seeks costs, calculated on the ordinary basis; or, in the alternative, an order that the Plaintiff should pay 90 per cent of those costs - Plaintiff seeks an order that there be no order as to costs
- Judgment of
- Hallen AsJ
- Category
- Costs
-
- Catchwords
- INJUNCTIONS - excavation of Defendant's property - appreciable risk to Plaintiff's adjoining property - apprehended breach of duty of care - balance of convenience
- Judgment of
- Beech-Jones J
- Category
- Interlocutory applications
-
- Catchwords
- EQUITY - injunctions - auxiliary jurisdiction - to restrain party assisting in breach of contract - settlement of proceedings by confidential deed - breach by one party to deed - intention of television station to broadcast material in breach of deed - whether broadcast would amount to further breach - whether serious question to be tried.
- Judgment of
- Davies J
- Category
- Interlocutory applications
-
- Catchwords
- TRUSTS - Charitable Trusts - administrative schemes - Charitable Trusts Act 1993, s 12(1)(b), s 14(1)(a) - inherent jurisdiction - proposed rules for administration of trusts - no departure from the original trusts
- Judgment of
- Gzell J
- Category
- Principal judgment
-
- Catchwords
- PUBLIC INTEREST IMMUNITY - s 130(1) Evidence Act - Balancing test - Police Guidelines for Negotiation - Negotiation Incident Form
- Judgment of
- Beech-Jones J
- Category
- Interlocutory applications
-
- Judgment of
- Price J
- Category
- Separate question
-
- Catchwords
- CONTRACT - agreement for sale of fixtures - breach of warranty of ownership - assessment of damages - no questions of principle
- Judgment of
- Nicholas J
- Category
- Principal judgment
-
- Catchwords
- Common law - Evidence on commission - application of secrecy provision
- Judgment of
- Hislop J
- Category
- Interlocutory applications
-
- Catchwords
- WILLS AND ESTATES - Succession Act 2006 - application for family provision order by the deceased's former de facto partner and her son - plaintiffs only person with a claim - extension of time needed for son - whole estate split equally
- Judgment of
- Associate Justice Macready
- Category
- Principal judgment
-
- Catchwords
- Judgment and orders. Application to vary judgment under UCPR 36.16 (3A). Held no jurisdiction to alter orders.
- Judgment of
- Associate Justice Macready
- Category
- Consequential orders
-
- Catchwords
- CONTRACT - existence of contract - whether plaintiff has failed to prove the agreement upon which it sues. LIMITATION OF ACTIONS - whether there has been a confirmation for the purposes of s 54 of the Limitation Act 1969 - whether there has been a relevant acknowledgement - whether alleged acknowledgment has been signed - where no signature in the ordinary sense of the word.
- Judgment of
- Ball J
- Category
- Principal judgment
-
- Catchwords
- Application to vary earlier judgment within UCPR 36.16(3A). No power to review judgment.
- Judgment of
- Associate Justice Macready
- Category
- Consequential orders
-
- Catchwords
- WILLS AND ESTATES - Succession Act 2006 - application for family provision order by two foster children of the deceased, Clement Jones and Alva Griffiths.Judith Carney has settled her claim and is no longer in the proceedings - legacies left to plaintiffs and residue to natural son of the deceased - in lieu of the legacies further provisions ordered
- Judgment of
- Associate Justice Macready
- Category
- Principal judgment
-
- Catchwords
- LANDLORD AND TENANT - tenant's liability to remediate land contaminated by asbestosEVIDENCE - burden of proof, presumptions, and weight and sufficiency of evidence - proof that prior activities might lead to contamination with asbestos insufficient to undo linkage between scrap piles maintained by cross defendant and discovery of asbestos at those locations
- Judgment of
- Rein J
- Category
- Principal judgment
-
- Catchwords
- PRACTICE AND PROCEDURE -summary judgment - whether any arguable defence
- Judgment of
- Adamson J
- Category
- Interlocutory applications
-
- Catchwords
- PRACTICE AND PROCEDURE - Application for interlocutory injunction - Injunction seeking to restrain local council from considering agenda item at meeting - Subject of agenda item was report of conduct complaint against councillor - No prima facie case made out by the plaintiff - At prima facie level the following were not made out - No unreasonable exercise of discretion finding that conduct was not trivial - Culture of council relevant to triviality - Relevant to consider publicity of conduct as council code of conduct requires harm be considered - No apprehension of bias by reviewer exploring alternate means of problem resolution - No actual bias merely due to disagreement between reviewer and applicant - No procedural error due to lack of early disclosure of and ability to cross-examine witnesses - No issue of principlePRACTICE AND PROCEDURE - Application for interlocutory injunction - Injunction seeking to restrain local council from considering agenda item at meeting - Subject of agenda item was report of conduct complaint against councillor - Balance of convenience does not satisfy injunction - Sanction to be imposed on councillor subject to vote and council processes - Applicant will have opportunity to present submissions - Not satisfied appropriate to interrupt council's public duty - Any damage or harm to applicant remediable by other proceedings - No issue of principle
- Judgment of
- Garling J
- Category
- Interlocutory applications
-
- Catchwords
- PRACTICE AND PROCEDURE - summary judgment - vicarious liability - principle in Wickstead v Browne - preliminary question - separate hearing on liability.
- Judgment of
- Beech-Jones J
- Category
- Interlocutory applications
-
- Catchwords
- COSTS - self represented litigant in custody challenged validity of department policy document - challenge unsuccessful but clarified operation of policy - other grounds lacked merit - apportionment of costs.
- Judgment of
- Beech-Jones J
- Category
- Costs
-
- Catchwords
- Judicial review of decision and award of claims assessor under the Motor Accidents Compensation Act 1999 ("the Act") - orders sought in the nature of certiorari or, alternatively a declaration setting aside or declaring invalid the assessment and/ or the certificate of the claims assessor - relief sought in the summons refused - no error of law in respect of paid future care - no error of law in respect of the decisions in respect past and future economic loss - costs of expert reports on taxation law no restricted by clause 9 of the Motor Accidents Regulation 2005 - no error in respect of asserted inadequacy of reasons - no error in application of s 126 of the Act in assessing future economic loss - relevant principles in respect of the assessment of future economic loss under those provisions discussed.
- Judgment of
- HALL J
- Category
- Principal judgment
-
- Catchwords
- DEFAMATION - offer to make amends - whether offer may limit time for acceptance - ss 15(1), 18(1) Defamation Act 2005
- Judgment of
- Nicholas J
- Category
- Interlocutory applications
-
- Catchwords
- SUCCESSION - family provision and maintenance - position of adult children - position of widow - legitimate expectation of widow to maintain way of life shared with deceased - where married to deceased for approximately 30 years and contributed to purchase of property which forms part of estate - where property forms important part of widow's and deceased's shared lives. SUCCESSION - family provision and maintenance - notional estate - interrelation of question whether a notional estate order should be made and whether family provision order should be made - moral obligation to make adequate provision held not to outweigh moral obligation to widow -order made in relation to property acquired only for investment purposes.
- Judgment of
- Ball J
- Category
- Principal judgment
-
- Catchwords
- Application by Notice of Motion seeking the removal of manager of estate of protected person - other orders, relating to the transferring assets and delivery of documents
- Judgment of
- Hallen AsJ
- Category
- Principal judgment
-
- Catchwords
- CRIMINAL LAW - Murder - Conspiracy to murder
- Judgment of
- Price J
- Category
- Sentence
-
- Catchwords
- REAL PROPERTY - Claim for possession of land - Mortgage default - Order for possession made - Judgment against mortgagor and guarantor - No issue of principle
- Judgment of
- Garling J
- Category
- Principal judgment
-
- Catchwords
- WILLS, PROBATE AND ADMINISTRATION - application for the revocation of the grant of probate - alternative application for order pursuant to s 84 of the Probate Administration Act 1898 - distribution of share of net residuary estate - executors in agreement with order sought - direct payment of specified sum of money on account of share of net residuary estate - no question of principle
- Judgment of
- White J
- Category
- Principal judgment
-
- Catchwords
- WILLS AND ESTATES - informal will - whether deceased intended document to form his will or to form an alteration or full or partial revocation of earlier will - deceased familiar with the formal requirements of the making of a will - deceased did not intend document to have immediate operation as will
- Judgment of
- White J
- Category
- Principal judgment