CONTRACT – construction – settlement deed – whether obligation upon two parties to pay Settlement Sum joint and several – effect of definition dividing Settlement Sum into two unequal components – effect of interpretation clause providing that obligations by two parties were joint and several – effect of clauses being subject to the context otherwise providing – resolving conflict between two clauses, each of which subject to the context otherwise providing – limited utility of dictionary definitions – significance of entire agreement clause – limited relevance of precontractual communications
EVIDENCE – relevance of precontractual documents to construction – distinction between inadmissible evidence of subjective intent and admissible evidence of context
EQUITY – estoppel – unilateral mistake – whether representation made during negotiations as to effect of draft deed – whether any representation made in terms which could found relief – significance of contemporaneous documentary records – significance of testimonial evidence – limited advantage of trial judge
EQUITY – rectification – need to establish common intention – requirement of very clear proof – where parties did not turn minds to the point – multipartite deed – whether all parties must share common intention – attribution of intention to separately represented corporate party
COSTS – Civil Procedure Act 2005 (NSW) s 98(1)(b) – Non-party costs order – Litigation funder – Where funded plaintiffs bring unsuccessful proceedings – Where litigation funder stood to receive a significant financial benefit from the fruits of the litigation – Relevant circumstances warranting making of the order – Release of monies paid into Court by plaintiffs as security for costs – Where consent order regulates payment out and agreed condition that costs be agreed, set or fixed by the Court has not yet been met – Indemnity costs – UCPR Pt 42.15A – Where result of litigation is more favourable to defendant than offered – HELD – Indemnity costs appropriate as a result of offer of compromise and adverse results to plaintiffs – Money in Court not to be paid out until agreed conditions are met – Appropriate to make a non-party costs order against litigation funder with respect to costs incurred by the defendant from the time of the litigation funding agreement.
CIVIL PROCEDURE — court administration — case management — directions — referral by Registrar to Duty Judge as plaintiff not willing to comply with court timetable
CIVIL PROCEDURE — hearings — adjournment — relevant factors — other proceedings on foot before NCAT
CIVIL PROCEDURE — representation — unrepresented litigant
CIVIL PROCEDURE — service — personal service — whether effected — service by express post and email — plaintiff disputes personal service — finding that personal service has been effected
PROCEDURE – Payment into court – Where money paid into court to obtain extension of time to lead evidence of solvency – Where money paid into court to demonstrate ability to meet judgment amount – Whether money borrowed from associated entity and paid into court held on Quistclose trust in favour of lender – Where objectives of payment into Court satisfied.
CRIMINAL LAW – application for review of conviction – attempt to escape from prison – where applicant hid in roof cavity of gaol for over 5 hours – where appeal against conviction dismissed and special leave refused – where complaint made as to particular aspects of the evidence – hearsay! – whether speculation and conjecture – whether opinion evidence inadmissible – where matters not raised in earlier appeal hearing – appropriate to consider matters afresh – whether there is an appearance of doubt as to the applicant’s guilt – application dismissed
EQUITY — Trusts and trustees — Judicial advice – Trustee Act 1925, s 63 – The proper interpretation of the NSW Rural Fire Service and Brigades Donation Fund – The proper limits of the application of donated monies in accordance with the NSW Rural Fire Service and Brigades Donation Fund – whether such monies can be donated to other charities or rural fire services – whether such monies can be used to set up or contribute to a fund to support rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting – whether such monies can be donated to provide physical health training and resources, mental health training and resources or trauma counselling services to volunteer firefighters, as defined in Rural Fires Act, s 8, in connection with performing the functions of the NSW Rural Fire Service and Brigades – whether such monies can be used to set up or contribute towards meeting the costs for rural firefighter volunteers to attend and complete courses that improve skills related to volunteer-based fire and emergency services activities.
COSTS – Party/Party – Bases of quantification – Indemnity basis – Plaintiff seeks indemnity costs for set aside of statutory demand by consent – Parties’ submissions as to costs rely on facts not established by evidence – Merits of application to set aside statutory demand cannot be determined – No order as to costs.
CORPORATIONS – voluntary administration – second meeting of creditors – largest proof of debt lodged by plaintiff in building defect proceedings – proof admitted for $1 for voting purposes – plaintiff wishes to replace administrator – proxies indicate administrator will be appointed liquidator but not replaced – balance of convenience – plaintiff can replace external administrator in due course – important to appoint liquidator sooner rather than later
PRACTICE AND PROCEDURE – application to amend Commercial List Response – hearing date in July - whether plaintiff able to meet amendments – whether adequate justification for proposed amendment explanation for delay in bringing application
ADMINISTRATIVE LAW – review of decision to remove a police officer – police officer allegedly ingested illicit drugs – construction of s 181F(2) Police Act 1900 – whether shifting evidentiary onus in review proceedings – whether proceedings should be removed into the Court of Appeal – special circumstances found – proceedings remove to Court of Appeal
PRACTICE AND PROCEDURE – Separate question – Principles applicable to whether question for determination should be tried separately – Whether order should be made.
CIVIL PROCEDURE — Subpoenas and notices to produce — Application to set aside
EVIDENCE — Privileges — Legal professional privilege — Waiver — Implied waiver by putting in issue state of mind
PERSONAL PROPERTY – ownership and possession – possession – rights of possession – human bodies or tissue as property – gametes – sperm – application by former de facto for possession of sperm extracted from late partner – whether sperm lawfully extracted – whether transfer of possession prohibited by statue – Extraction lawful
CIVIL PROCEDURE – miscellaneous matters – declarations – application by de facto for declaration of ownership of sperm – where existing statutory regime regulates extraction, storage, supply , use and exportation of human gametes – Jurisdiction and power of court to declare extraction lawful – whether lawful – Assisted Reproductive Technology Act 2007 (NSW), Pt 2 Div 3 – Human Tissue Act 1983 (NSW), ss 4(2A), 23 – declaration granted – orders made for extraction
CIVIL PROCEDURE — Pleadings — Form and content of pleading — Pleading material facts — Defects —Striking out — Tendency to cause prejudice, embarrassment or delay — Amendment — Late application for amendment
HIGH RISK OFFENDER – final hearing – application for extended supervision order (ESO) – interim supervision order previously made – ESO not opposed – Court independently satisfied of need for ESO – conditions and length of ESO a matter of dispute – terms of electronic monitoring condition – monitoring condition to provide incentive for the defendant to strictly comply with his schedule of movements – regard to protection of community and rehabilitation of offender – ESO imposed for 3 years with conditions
PRACTICE AND PROCEDURE – application to vacate hearing date – whether first defendant able properly to present her case – where first defendant’s psychologist opined that first defendant was “Presser fit”
AGRICULTURE – Rice growing – Landforming by cutting and filling – Water management – Irrigation bay layout – Urea and nitrogen – Bloodworms dead or alive – Turbidity – Remediation and flocculation
CONTRACTS – Implied terms – Breach of contract – Whether quality of water supplied by irrigator to farmer was contaminated or unfit to be used for irrigation in breach of contract – Deoxygenated water – Ca:Mg ratio of water – Metal toxicity and monosulfidic black ooze – No breach of contract in the circumstances
NEGLIGENCE – Duty of care – Whether duty of care limited by contractual limitation of liability clauses – No breach of duty in the circumstances
TRESPASS – General principles – Wrongful depositing of harmful solids on land as a result of turbid water – Whether consent to entry of turbid water onto land – Where landholder ordered delivery of water and opened outlets to permit entry of turbid water – Trespass not established in the circumstances
CIVIL PROCEDURE — Registrars — review of Registrar’s decision — application for leave to file notice of motion seeking review of Registrar’s decision — orders sought permitting “fresh evidence” — leave refused — no utility in granting leave — repeated opportunity to present case — no valid defence
MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — possession — writ of possession
CIVIL PROCEDURE — Registrars — Review of Registrar’s decision — refusal of application for transfer under Civil Procedure Act 2005 (NSW) s 140 — whether order for transfer ought be made
CIVIL PROCEDURE — summary disposal — parties entered into contract for the sale of real property — plaintiff claims it paid deposit and that defendant acknowledged this under later deed — plaintiff seeks specific performance — whether triable issues raised by defendant — construction of deed not as clear or free of doubt as plaintiff contends — plaintiff’s readiness, willingness and ability to complete put in issue — prospect of an arguable defence of hardship — not appropriate case for summary judgment
BUILDING AND CONSTRUCTION – whether serious question to be tried that an adjudication determination made under the Building and Construction Industry Security of Payment Act void – whether balance of convenience favours restraining defendant from enforcing the determination pending the hearing of the proceedings
PRACTICE AND PROCEDURE – in first judgment Court makes orders concerning amendment of pleadings, the setting aside of subpoenas and the appointment of representatives of two estates – further disputes concerning what other consequential orders should be made – whether costs should follow the event or whether some other order should be made – whether or not the plaintiffs were successful in the issues decided in the first judgment – what form of orders should be made varying or setting aside contested subpoenas – plaintiffs file motion to vary orders made in respect of the form of indemnity for the appointed representative to an estate.
CRIMINAL PROCEDURE – application under s 45(4) and (5) of the Crime Commission Act 2012 (NSW) to release evidence given under compulsion before Crime Commission – release not required in the interests of justice
CIVIL PROCEDURE — compromises and settlements — plaintiff chargee gave undertaking on terms to withdraw caveat to allow completion of sale of defendant’s property — plaintiff made subsequent offer to settle dispute — offer entailed different terms in relation to completion of sale — offer accepted by defendant — defendant claimed settlement agreement procured by duress or unconscionable conduct — held that making of offer did not amount to a threat not to comply with undertaking — held that no case of duress shown — held that plaintiff’s conduct not unconscionable — order made under s 73 of Civil Procedure Act 2005 (NSW) that proceedings were settled on certain terms
SUCCESSION – Claim for family provision order by a close friend for over 30 years of the deceased – No dispute as to eligibility of Plaintiff as a person who was, at any particular time, partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member – Alternative basis of eligibility, he was a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death not necessary to determine – Also no dispute that there are factors warranting the making of the Plaintiff’s application – Deceased died intestate – In the events that happened, beneficiaries on intestacy are two nieces and two nephews of the deceased in equal shares – None of the beneficiaries had met the deceased, but were said to have spoken to him on the telephone – Telephone contact between them limited – Significant competing claim of the Plaintiff on the deceased’s estate – Whether Plaintiff has been left without adequate provision for his proper maintenance and advancement in life under rules of intestacy – Whether an order for provision should be made for the Plaintiff’s proper maintenance and advancement in life and, if so, in what amount and how calculated
COSTS – Ordinary basis – Exceptions to general rule that costs follow the event – Calderbank offers made – Whether rejection of offers was unreasonable
CIVIL PROCEDURE – amendment of pleadings – application for adjournment – vacation of hearing – plaintiffs seek to amend pleadings and join two new defendants – amendment and the joinder of the new defendants would result in vacation of a hearing date fixed since mid-2019 – whether the pleadings should be amended and the new defendants joined – if the pleadings are amended whether the hearing should be vacated and if so, on what terms.
HIGH RISK OFFENDER – preliminary hearing – application for interim detention order – whether threshold requirements met – whether defendant is a ‘detained offender’ or a ‘supervised offender’ under the Crimes (High Risk Offenders) Act 2006 (NSW) – whether summons was filed not more than 9 months before the end of the defendant’s total sentence pursuant to s 13B – defendant is a supervised offender – application brought prematurely – summons dismissed
STATUTORY INTERPRETATION – legislative purpose – whether ‘total sentence’ in s 13B of the Crimes (High Risk Offenders) Act 2006 (NSW) refers only to the custodial element of a sentence – legislation intended to protect the community – conditional release is subject to exercise of powers of the state to protect the community – total sentence encompasses both custodial element and period of conditional release in s 13B
CONTRACTS — construction — contract for the sale of proposed lot in plan of subdivision — area of lot affected by area of another proposed lot — sketch plan annexed to contract showed area of other lot as 2001m² — correct figure was 2205m² — purchaser given right to rescind if area of other lot shown as 2100m² or more on registered plan — plan of subdivision as registered showed area of other lot to be 2205m² — purchaser rescinded — vendor claimed that sketch plan should be read as if it showed the correct area (2205m²) — vendor claimed that objective intention of parties was to confer a right of rescission if area shown on registered plan exceeded area shown on sketch plan by 5% — whether mistake in contract can be corrected as a matter of construction — whether literal meaning of language of contract created an absurdity — whether objective intention self-evident — held that a reasonable person in the position of the parties would not appreciate the existence of the error — held no absurdity where area recorded on sketch plan not obviously wrong — held that suggested objective intention not self-evident — held that purchaser validly rescinded the contract
HIGH RISK OFFENDER – final hearing – application for an Extended Supervision Order – defendant has multiple convictions for sexual offending – extensive criminal history generally – where defendant does not oppose making of an Extended Supervision Order – necessity for Court to be satisfied that Extended Supervision Order should be made – community safety paramount – dispute as to form of conditions to be imposed – Extended Supervision Order made and conditions imposed.
BUILDING AND CONSTRUCTION – residential building work – whether plaintiff principals repudiated their obligations under the contract – whether defendant builder thereby exonerated from any liability for defective work – accrued rights of parties
CONTRACTS – residential building work – whether plaintiff principals repudiated their obligations under the contract – whether defendant builder thereby exonerated from any liability for defective work – accrued rights of parties
RESTITUTION – whether restitution on the basis of a quantum meruit available where there is an enforceable contract and rights have accrued under that contract
EQUITY – Misappropriation – Stolen moneys – Institutional constructive trust – Trust money received by volunteers – Trust money dissipated – Absence of property to support proprietary remedy – Recovery of equitable compensation as personal remedy.
AGENCY – Authority of agent - Ostensible authority – Third party reliance upon principal’s holding out of “agent” as duly authorised – Reliance by third party unreasonable – Principal not bound – No ostensible authority.
CIVIL PROCEDURE — Pleadings — Strike out/summary judgment application — Adequacy of pleading — Whether reasonable cause of action — Whether tendency to cause prejudice, embarrassment or delay
LAND LAW — Torrens title — Indefeasibility of title — Effects of indefeasibility —Proper construction of acknowledgement in mortgage where advance never received by mortgagor due to intervention of alleged fraudster
PRACTICE AND PROCEDURE – application for adjournment on day listed for hearing – enforcement of foreign judgment needs expedition – applicant’s failure to comply with Court directions – adjournment refused
CIVIL PROCEDURE – Stay of proceedings – Pending appeal – the plaintiff is successful in a TPD claim against an insurer defendant – defendant appeals – judgment in excess of $750,000 – plaintiff has no property in her name – whether a stay should be granted pending appeal.
COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers - plaintiff issues Calderbank letter offering to settle for $300,000 plus costs – plaintiff successful in a greater sum – whether it was unreasonable for the defendant not to have accepted the plaintiff’s offer.
INSURANCE – General – total and permanent disablement – plaintiff a police officer – plaintiff discharged from police force in July 2011 – plaintiff a member of police superannuation fund – first defendant is a trustee of the fund – first defendant takes out two policies of insurance for the benefit of members of the fund with the second defendant insurer – plaintiff claims she is totally and permanently disabled (“TPD”) after being off work for six months and entitled to a benefit for the same – the first and second defendants decline the plaintiff’s claim in July 2015 – plaintiff discontinues proceedings against first defendant – whether the second defendant insurer acted with the utmost good faith in dealing with the plaintiff’s claim and acted reasonably in forming an opinion as to whether the plaintiff qualified as TPD under the policies – whether the second defendant’s decision can be set aside – whether the Court should now itself determine whether the plaintiff is TPD under the policies – whether the plaintiff was “unlikely ever to be able to engage in or work for reward in any occupation or work for which… she is reasonably qualified by education training or experience”.
CRIMINAL LAW – sentence after trial – terrorism offences – conviction for doing an act in preparation for, or planning, a terrorist act or acts – Criminal Code (Cth), s 101.6(1) – guilty plea to attempting to make funds available to terrorist organisation – Criminal Code (Cth), ss 11.1(1) and 102.6(1) – where offender was pursuing the agenda of Islamic State – where offender made funds available to Islamic State to fund foreign fighters – where offender participated in intercepted telephone conversation with senior Islamic State member discussing plan for domestic terrorist attacks
CONTRACTS — Remedies — money claim made under loan agreement — whether attempts to discharge debt by refinancing were frustrated by conduct of the lenders
CONTRACTS — Unconscionable conduct — Australian Securities and Investments Commission Act 2001 (Cth) s 12CA — whether interest rates in the loan agreement unconscionable
CIVIL LAW – freezing orders – serendipitous supply of hand sanitiser – allegation of deceit – where one partner diverts funds meant for purchase of product to their own use – acquiring product from source contrary to business plan – allegation of warning off from competing – Fat Charlie – shady sounding figure – details a little sketchy – difficulties in contacting defendant – good arguable case – freezing orders made
CORPORATIONS – winding up – application for directions that liquidators and deed administrators are justified in determining employing entity – whether entity was an employer of record only - where entity had no assets to meet liabilities to employees – where another entity in corporate group paid employees on behalf of the group.
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, approve a proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CORPORATIONS - voluntary administration - application by administrators for leave to deal with secured property – where secured party neither consents nor opposes leave being granted – where secured party’s interests are protected by amounts held exceeding value of secured property – where proceeds of sale are to be held pending determination of dispute between secured party and deed administrator.
EQUITY – injunctions – interlocutory injunctions – where plaintiffs retained legal services of the first defendant – plaintiffs entered into two costs agreements with the first defendant which contained security provisions granting the first defendant an equitable charge over all of the plaintiffs’ present and future property to secure payment of any amount unpaid on tax invoices issued by the first defendant – where security provisions also stipulated that any non-payment of first defendant’s invoices as and when they fall due would be a payment default entitling the first defendant to appoint an “external controller” – second defendant subsequently appointed by first defendant as receiver and manager of first plaintiff’s real properties – where plaintiffs seek to restrain defendants from taking possession of and otherwise dealing with those properties and taking further steps in reliance on the security provisions and/or the deed of appointment of the second defendant – serious question to be tried conceded – balance of convenience favours the grant of interlocutory relief
PRACTICE AND PROCEDURE – Amendment of pleadings – application for leave to file an Amended Statement of Claim – procedural motions brought by opposing parties – whether proposed amendments to the Statement of Claim are bound to fail – whether proposed amendments to the Statement of Claim are properly and sufficiently pleaded – appointment of representatives for two estates involved in litigation – who should be appointed to represent the estates – what conditions should be imposed before representatives of the estates are appointed – production of and access to subpoenaed documents – width of subpoenas – whether subpoenas should be set aside.
PRIVATE INTERNATIONAL LAW — foreign judgments and orders — registration of foreign judgment — registration of judgment sum — order seeking interest not pressed
COSTS — party/party — exceptions to general rule that costs follow the event — plaintiff to pay defendant’s costs of and incidental to defence of the summons and costs of and incidental to the preparation of written submissions and the appearance of counsel today, as relief sought in summons not pressed
HIGH RISK OFFENDER – final hearing – application for extended supervision order – defendant convicted of murder committed in 1988 – serious risk of future intimate partner violence – extended supervision order of two years not opposed by defendant – events since imposition of interim supervision order - whether electronic monitoring and schedule of movements should be imposed
CIVIL PROCEDURE – payment out of court – a fund, being the proceeds of sale of certain real property is paid into Court – claim made against the funds where a property that was held by tenants in common is auctioned by a mortgagee in possession – where the first and second applicants for the funds had paid $75,000 directly to the vendor as a deposit for a half-share in the real property – where the whereabouts of the tenant in common who defaulted on the mortgage over the real property is unknown.
EQUITY –Trusts and trustees — Bare trusts - Trustee Act 1925, s 95 – payment into Court – application to pay funds out of Court under Uniform Civil Procedure Rules 2005, r 55.11 – bank exercises its mortgagee’s power of sale of a property and after deduction of the first mortgage amount pays the balance of the proceeds of sale into Court – the registered proprietors of the property have not applied for the payment out-of-court – two applicants for payment of $75,000 out-of-court claim this sum is a deposit on a failed contract to purchase the subject property – one of the registered proprietors agrees with the applicants’ claim – the other cannot be found – whether the monies should be paid out of Court – no other evidence of other claimants to the funds in Court.
SUCCESSION – Family provision – Claim by adult son from deceased’s estate – substantial provision made for plaintiff in the deceased’s will and during her lifetime – Plaintiff not left without adequate provision for his proper maintenance, education and advancement in life – Claim for family provision order dismissed
COSTS — Security for costs — Form of order
COSTS — Party/Party — Exceptions to general rule that costs follow the event — where no adjudication on the merits — whether defendant was almost certain to succeed on its motion
COSTS – Discretion to award costs – Where two of four sets of proceedings proceeded to contested hearing – Where plaintiff was unsuccessful in that hearing – Whether costs should follow the event – No basis for altering the general rule that the defendants as the successful parties should have an order for costs in their favour – Each party to pay its own costs in other proceedings
APPEALS – appeal from Local Court to Supreme Court – extension of time to appeal – evidentiary basis for delay in filing summons – fairly arguable case – extension of time granted – summons deemed to be filed in time
APPEALS – appeal from Local Court to Supreme Court – leave to appeal interlocutory judgment – magistrate did not consider all relevant principles and submissions – whether matter should be remitted to Local Court – no injustice going beyond what is merely arguable – leave to appeal refused where order for new trial would be futile
Costs — Party/Party — Whether costs order ought to be made against defendants — Where proceedings involved application for judicial advice to trustee — Where defendants joined as parties and unsuccessfully sought a stay of proceedings and opposed the giving of judicial advice
COSTS – Party/Party – Bases of quantification – Indemnity basis — Whether the defendant engaged in relevant delinquency
COSTS — Party/Party — Timing — Costs payable forthwith — Where the issues so far determined are discreet and threshold and further litigation is likely
SUCCESSION – family provision – testator dies survived by three sons, one other son having predeceased her – testator made a gift of real estate during her lifetime to one of her sons, the first defendant and his wife, the second defendant – the testator made the first defendant executor of her last will – that will divided the substance of her estate, giving three quarters of it to another son, the plaintiff, and one quarter, to another surviving son, on trust for his children – plaintiff brings a claim under Succession Act 2006, Chapter 3 contending that he has been left without adequate provision from the testator's estate for his proper education, maintenance and advancement in life – whether a further order for provision out of the deceased’s estate should be made – whether the property transferred to the first and second defendants should be designated as notional estate – whether a notional estate order should not be made on the grounds that it is out of time – whether there are "special circumstances" allowing a notional estate designation – whether a designation of notional estate will interfere with the first and second defendants’ reasonable expectations about the ownership of their property.
COSTS – indemnity costs – indemnity costs sought against unsuccessful plaintiff – plaintiff failed to accept “walk away” Calderbank offer – whether offer involved a genuine compromise – whether plaintiff’s failure to accept Calderbank offer unreasonable – held that plaintiff did not act unreasonably where aspects of transaction not known to plaintiff, and defendants’ evidence not yet served – where cross-claim dismissed because it did not arise – costs ordered against plaintiff on ordinary basis not including costs of cross-claim
CIVIL PROCEDURE – application for adjournment by defendant – new material served by the plaintiff – plaintiff’s claim re-particularised – interests of justice and interests of the administration of justice – no question of principle
LEGAL PRACTITIONERS – Court’s supervisory jurisdiction over solicitors – Solicitor’s undertaking – Court’s concern with honesty of its officers – Solicitor seeking recovery of fees for services rendered under a retainer accepted by the solicitor where his interests and those of the client were in actual and potential conflict – Where work done under the retainer benefitted solicitor and was capable of being used to his advantage in a dispute with his client – Where solicitor says retainer is enforceable because he obtained the client’s fully informed consent – Whether such consent, if obtained, would have been effective – Where solicitor gave an undertaking not to charge fees for work done and covered by the retainer – Where solicitor asserts that he is not bound by undertaking because no consideration was given for it and it was not given in a professional capacity – Whether undertaking was given in solicitor’s professional capacity – Whether Court should exercise supervisory jurisdiction to preclude solicitor from recovery of fees – HELD – Fees excessive, unfair and unreasonable – Undertaking should be complied with – Solicitor may not recover fees for work done while in a position of conflict.
CONSUMER LAW – Competition and Consumer Act 2010 (Cth) – Australian Securities and Investment Commission Act 2001 – misleading and deceptive conduct – persons involved in the contravention – contract for IT equipment, software and services – financing of contract by commercial lease - oral representations made about efficiency of IT system to be supplied – contract repudiated – hypothetical question of misrepresentation – misrepresentation a question of fact – measure of loss
CIVIL PROCEDURE — application for appointment of expert — judicial review proceedings — applicant refused legal aid — enquiry under Crimes (Appeal and Review) Act 2001 (NSW) — conviction for sexual intercourse without consent — applicant alleges tampering with court transcript — metadata — nature of judicial review — costs
SUCCESSION – Statutory wills, Succession Act 2006 (NSW), s 18, s 19, s 22 – Incapacitated person has never had capacity – Application seeking leave to apply for, and then, an order authorising, a will to be made on behalf of a person lacking testamentary capacity – Whether a will in accordance with that proposed by the Plaintiff who is the mother, and the principal beneficiary, named in the Will, with balance being divided between other family members is, or is reasonably likely to be, a will that would be made by the person who lacks testamentary capacity if she had that capacity – Whether it is appropriate for an order authorising such a will to be made – Financial manager of the person lacking testamentary capacity not a party to the proceedings but supports and approves of the terms of the proposed statutory Will as do all other family members
BUILDING AND CONSTRUCTION – Breach of statutory warranties in the Home Building Act 1989 (NSW), s 18B – Application s 48MA of the Home Building Act 1989 (NSW) to proceedings brought before the Supreme Court – Whether the Court will order specific performance of a building contract - Whether damages for loss of rent were in the parties’ reasonable contemplation at the time the contract was entered into – Distinction between difficulty of assessing damages and failure to take reasonable steps to prove damages suffered.
PRACTICE AND PROCEDURE - Specific performance – Whether Court should order specific performance of a settlement agreement where defendants agreed to pay sum of money – Consideration of the Court’s power to order specific performance of an obligation to make a monetary payment
FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Where sole consent to the adoption has been given by the child — Where parties no longer oppose adoption and agree to maternal adoption plan — Whether the Court should dispense with giving of notice to birth father — Where birth father has ceased contact with child and the Department — Change of name
CIVIL PROCEDURE – claim for possession of real property – mortgage default by company – receivers appointed to the entirety of the company assets – writ of possession issued by court – whether service of the claim for possession on the receivers was sufficient – whether any separate reason to postpone writ
CIVIL PROCEDURE – settlement of proceedings – enforcement of settlement – whether binding agreement to settle the proceedings was formed – whether Court should exercise its discretion not to enforce a settlement – whether legal representative was acting under a mistake, or misapprehension as to her authority
SUCCESSION – Probate and administration – Entitlement to grant of Probate – Contested proceedings – whether grant of Probate in solemn form be made – where parties reached agreement not to further contest an application to obtain a grant of Probate in solemn form - grant of Probate a public act not made as a matter of course – where balance of evidence supports the validity of the Will
CIVIL PROCEDURE - parties - misnomer or misdescription - application to amend - where owners corporation intended to sue builder for alleged defects but mistakenly named the incorrect entity in summons and list statement - whether builder prejudiced from loss of viable cross-claims - where builder on notice of mistake, defects and proceedings - no delay in making application to amend - prejudice to owners corporation if leave not granted - dictates of justice favour granting leave to amend
CRIMINAL PROCEDURE – break in jury deliberations between Christmas and New Year – break at request of jury – no party objected – no unfairness or appearance of unfairness – application rejected
CRIME – EVIDENCE – Admissibility of extra curial representations of persons called to give evidence – operation of s 66(3) of Evidence Act 1995 (NSW) discussed – subsection concerned with purpose of maker of representations – representations admitted
PRACTICE AND PROCEDURE – prima facie evidence and proceedings open to public – application for closed court – confidential affidavit – no significant prejudice to accused – application granted
EVIDENCE – criminal proceedings – evidence of pre-recorded statement by unavailable witness previously ruled admissible – objection on the basis of s 135 and s 137 of the Evidence Act 1995 (NSW) – allegedly incomprehensible or misleading – objection rejected
EVIDENCE – criminal proceedings – suggestion that witnesses whose names are suppressed should be protected further by AVL evidence – exercise of discretion discussed – possible unfairness – application refused
CRIME – accused application for view of alleged murder location – murder in prison – availability of video evidence – view of some utility – application granted
CIVIL PROCEDURE – service outside Australia – served in Papua New Guinea on Papua New Guinea corporation - whether service authorised by the UCPR – whether relevant contract made or entered into in Australia – whether contract to be partly performed in Australia – whether contract to be governed by Australian law – whether claims have insufficient prospects of success to warrant putting PNG defendant to time expense and trouble of defending claim in New South Wales
ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – proceedings resolved between parties following decision in Hunter Quarries Pty Limited v Mexon [2018] NSWCA 178 on meaning of permanent impairment within ss 65 and 66 of the Workers Compensation Act 1987 (NSW) – consent orders made
Security for costs – plaintiff is overseas executor of local deceased estate – deeming provision in s 97(1) of Probate and Administration Act 1898 – delay – impact on allowance for past costs – security ordered
CRIME – costs – application for certificate under s 2 of Costs in Criminal Cases Act 1967 (NSW) – murder – joint criminal enterprise – accessory before the fact
COSTS — Party/Party — Exceptions to general rule that costs follow the event – whether, in the circumstances, separable events can be identified – whether costs should be apportioned in a case where a number of parties have succeeded and failed on substantial issues – where discretion must be applied to obtain a ‘fair and just’ result – whether certain parties should be ordered to bear their own costs
COSTS — Party/Party — Orders when proceedings involve multiple parties — Bullock and Sanderson orders – where the circumstances indicate that a Sanderson order should not be made
COSTS — Security for costs – whether monies paid as security should be released
CIVIL PROCEDURE — whether an inquiry and account as between mortgagor and mortgagee should be ordered on the present state of the evidence – where there is a question as to whether in part the mortgagee or receivers and managers appointed by the mortgagee are the proper accounting parties
CIVIL PROCEDURE — Stay of proceedings — Inherent power – where an interim stay of proceedings is granted on a short-term basis notwithstanding risk that the successful plaintiff may not be able to recover judgment from unsuccessful defendants
JUDGMENTS AND ORDERS — Entry — entry of judgment for damages because there is no longer a need for an inquiry as to damages
JUDGMENTS AND ORDERS — Effect of – consideration of the extent to which an order should be made dismissing the balance of the claims for relief – where it would be premature to dismiss certain claims that underpin extant interlocutory orders
CIVIL PROCEDURE — Discontinuance of proceedings — where the Court makes an order that the balance of the proceedings be discontinued as opposed to dismissed to allow for the continuing possibility of the claim being revived
EQUITY — Trusts and trustees — Resulting trusts — Quistclose trusts – where the Quistclose principle is not applied because the purpose has been satisfied
COSTS — Party/Party — Court’s discretion – where the circumstances dictate that it should be made clear that the defendants are liable to pay the plaintiffs’ costs on the ordinary basis – where the Court initially made an order in respect of proceedings that had not yet been completed
CIVIL PROCEDURE – Summary disposal – Judgment for Plaintiffs
CORPORATIONS – Winding up – Voidable transactions – Whether payments from company to Defendant were uncommercial transactions under s 588FB of Corporations Act – Whether payments made while company insolvent – Deemed insolvency by failure to keep adequate financial books and records – Order under s 588FF of Corporations Act
CORPORATIONS – external administration – application to approve the remuneration of court appointed receivers for work already performed –whether the amount of remuneration claimed is reasonable and whether it is to be calculated on a time-charged basis.
CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Frivolous or vexatious proceedings – Statement of claim not abuse of process, frivolous or vexatious if properly amended
LAND LAW – leases and tenancies – lease of seabed for mooring of houseboat – removal of houseboat on termination of lease – claim for costs for removal – judgment for plaintiff
PRACTICE AND PROCEDURE – freezing orders – where plaintiffs previously obtained ex parte freezing orders against the first and second defendants – where ex parte freezing orders discharged by consent – where plaintiffs subsequently bring fresh application for freezing orders against the first and second defendants – whether subsequent application is an abuse of process – where first and second defendants concede that there is a good arguable case on the pleadings – where there is no evidence that the defendants would deal with their assets in a manner that would frustrate the court’s processes – application dismissed
PRIVATE INTERNATIONAL LAW - forum non conveniens - stay of proceedings - anti-suit injunction - one party to terminated de facto relationship sues in New South Wales under property adjustment legislation - other party sues in New Zealand under several statutes relevant to property rights after termination - each seeks to halt progress of the other's litigation - need to identify whole of controversy from both proceedings - first party seeks in New South Wales relief that court cannot effectively grant or unlikely to grant - that relief available in New Zealand - aspects of second party's claims in New Zealand not maintainable in New South Wales - New South Wales proceedings are in the particular circumstances oppressive and should be stayed
APPEALS — Application for leave to appeal from Local Court to Supreme Court — magistrate refused permanent stay of criminal proceedings in the Local Court — assurance given to accused person that he would not be charged — police officer who gave assurance unaware of separate charges relating to the taking and distribution of visual images of the complainant
APPEALS — magistrate applied correct principles — factual findings open — principles of promissory estoppel do not apply in this context — leave refused
SUCCESSION – Probate and administration – Rectification of wills – Where Will does not carry out the testator’s intentions because the will does not give effect to the testator’s instructions – Claim for rectification of Will under s 27 of the Succession Act 2006 (NSW) – Principles relevant to rectification –Where instructions for the Will given by deceased to his solicitor – Whether the Will does not give effect to the deceased’s instructions
MORTGAGES AND SECURITIES – mortgagee in possession – dispute as to removal of personal items of mortgagor – meaning of the words “all of their personal property, motor vehicles and other equipment”
Judgments earlier entered against defendants for varying amounts, with quantum of unpaid commissions to be determined – in the meantime, defendants divest themselves of assets and declare bankruptcy – judgment entered against corporate defendants for unpaid commissions – indemnity costs order made
INSURANCE – a corporate financial planner and holder of an Australian financial securities licence issued under the Corporations Act 2001, gave financial advice to the plaintiffs, who are four separate groups of its clients – based on this financial advice the plaintiffs advanced funds into a series of recommended investments, which failed as a result of the global financial crisis – the licenced entity was deregistered and its principal made bankrupt – the plaintiffs sued the licenced entity’s professional indemnity insurers pursuant to Corporations Act, s 601AG on the basis that the deregistered entity had a liability to the plaintiffs and that the professional indemnity insurance policies covered that liability immediately before its deregistration – whether the deregistered licenced entity had a liability to the plaintiffs at the time it was deregistered – whether the deregistered entity’s insurance policy with the defendants covered any liability that the deregistered entity had to the plaintiffs – whether exclusion clauses in the insurance contract excluded the defendants’ liability to the plaintiffs.
DISCOVERY – relevance to fact in issue – focus on pleadings – facts in affidavits may not be a fact in issue in the proceedings – discovery not ordered on matters going to credibility – [2]-[3], [58]
EVIDENCE — Privilege — joint privilege – ex-wife said to agree to waive privilege – husband did not agree – privilege not waived – [34]
EVIDENCE — Privilege — Client legal privilege — Whether issue waiver — earlier retainer of solicitor before drafting of documents in issue – plaintiff pleaded special disadvantage including lack of legal advice, ignorance of rights in relation to business and incapacity due to substance abuse – inconsistent and unfair to maintain privilege – privilege waived – [36]-[38], [43]
PROCEDURE – Notice to produce – rule 21.10(1)(a) Uniform Civil Procedure Rules 2005 (NSW) – implicitly assumes relevance of document referred to in pleading or affidavit – where production opposed, Court must consider whether relevant to fact in issue – production of laptop, hard drive, mobile phones, cloned hard drive and email password refused – [57]-[60]
SUBPOENA – application for leave to issue subpoena in New Zealand – material may be obtained by other means with less expenses – unnecessary to trouble proposed recipient with subpoena – leave refused – [69]-[75]
PARTNERSHIPS AND JOINT VENTURES — Partnerships — Terms of partnership agreement — Partnership agreement not in writing – Dissolution of partnership – Winding up partnership business – Sale of partnership assets – Entitlements to capital and profits.
CIVIL PROCEDURE — Dismissal of proceedings for ongoing non-compliance with court orders and directions – Whether non-compliance with discovery orders over substantial period warrants dismissal of proceedings – effect of late remediation of non-compliance.
CIVIL PROCEDURE — Discovery – Non-compliance with discovery orders – Ongoing non-compliance with orders to produce financial documents held in electronic form – late remediation of non-compliance.
COSTS – Bases of quantification – Whether indemnity costs are appropriate – Whether costs should be payable forthwith – Whether gross sum costs order appropriate
PRIVILEGE – waiver – express and implied waiver – notes of settlement conference preceding execution of settlement deed – dispute as to settlement deed extending to claims based on estoppel, rectification and mistake – whether privilege maintainable in relation to notes – dispute only involving one of a number of defendants – two other defendants bankrupt – whether common interest privilege available
CONTRACTS — Remedies — Damages — Assessment — Re-opening case — Assessment of damages upon further evidence adduced by parties — Delay to development project caused by breach — Whether plaintiff entitled to claim full period of delay for purposes of determining damages based on evidence — Calculation of land taxes incurred over period
CORPORATIONS — Formation — Pre-registration contracts — Whether evidence established that “a person” purported to enter a contract on behalf of or for the benefit of a company prior to registration — Whether conduct of company shareholders and director capable of ratifying purported agreements after registration — Requirements of Corporations Act 2001 (Cth), s 131
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — claim to ownership of lands by virtue of adverse possession – Defendant Council contends that claim is bound to fail because lands are public roads that vested in it pursuant to s 232 of the Local Government Act 1919 (NSW) and remain so vested pursuant to s 145(3) of the Roads Act 1993 (NSW) – whether roads closed in 1963 pursuant to Public Roads Act 1902 (NSW) – where evidence of historical ownership of lands not sufficient to show that Plaintiff’s claim will almost certainly fail – proceedings not appropriate for summary dismissal
CIVIL PROCEDURE – pleadings — striking out – plaintiff filed Statement of Claim claiming entitlement to lands by virtue of adverse possession – lands claimed not precisely identified or defined – lands in part owned by State of New South Wales – State not joined as a party to proceedings – Statement of Claim does not recite material facts to show how title by adverse possession came to be acquired by Plaintiff – Statement of Claim plainly inadequate for the purpose of identifying Plaintiff’s claims to ownership of lands by adverse possession – appropriate to order that Statement of Claim be struck out – leave granted to file amended Statement of Claim
COSTS — party/party — costs orders in interlocutory proceedings — plaintiffs filed Notice of Motion for extension of caveat — no final determination on central issue as Court made orders by consent — not a case where there has been an “event” decided in favour of one party and against another — not a case where one party was almost certain to succeed — no marked difference in the reasonableness of the actions taken by the parties — appropriate that each party bear its own costs of the motion
ADMINISTRATIVE LAW — Judicial review — Workers Compensation — Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where surveillance report sought to be relied on as additional relevant information before Appeal Panel — where report was commissioned after medical assessment certificate issued — whether Appeal Panel erred in rejecting the report
ADMINISTRATIVE LAW — Hearing rule — Hearing — Oral or written hearing — whether Appeal Panel must address submission seeking oral hearing before determining any ground of appeal
EQUITY — RESTRAINT OF TRADE — Employment – interlocutory injunction application against former director and regional manager - where confidentiality agreement included post-employment non-solicitation restraint - whether employee was employed by the plaintiff - whether serious question to be tried as to reasonableness of the restraint and whether employee is a party to the agreement – balance of convenience – discretionary factors – delay – injunction refused
CIVIL PROCEDURE — Cross-vesting — Transfer to Family Court of Australia — where proceedings commenced by wife against husband in Family Court of Australia — where money claims subsequently commenced by third party family members in Supreme Court on the basis of documented loan agreements — whether in the interests of justice to transfer money claims to Family Court of Australia – application for transfer refused
CIVIL PROCEDURE – Pleadings – Striking out – Where plaintiff company sued former employee (first defendant) alleging that he took the plaintiff’s confidential information and gave it to his new employer, a rival group of companies (second to fourth defendants) – The present hearing concerned the plaintiff’s motion to strike out the defendants’ defences on grounds that the first defendant allegedly deleted the confidential information (held on USB sticks) which he is said to have taken from the plaintiff, thereby causing impairment to the case the plaintiff aims to prove – Where the corporate defendants, upon being told by the plaintiff of its allegations against the first defendant, took steps that included: immediately suspending the first defendant and specifically instructing him to preserve all documents he may have taken from the plaintiff and not delete any of them, and, a week or so later, the corporate defendants terminated his employment and redeployed another of their employees (with whom the first defendant had had contact) to an unrelated part of the business – Held: the plaintiff’s strike out motion was rejected and the defendants’ defences should not be struck out because, in relation to the corporate defendants, they should not, in all the circumstances, be deprived of the opportunity to contend that they are not to be held responsible for the first defendant’s conduct and, further, in relation to all defendants, because it was not established on the evidence that the first defendant succeeded in permanently deleting any of the documents on his USBs (or that if he had permanently deleted some, that the plaintiff could not reproduce those documents in some way), and therefore the plaintiff had not established that its case was impaired by the first defendant’s actions.
PROCEDURE – leave to bring proceedings under section 444E(3) Corporations Act – leave sought by liquidators –principles at [6]-[7] – leave granted
PROCEDURE – application under section 445D Corporations Act to terminate deed of company arrangement (DOCA) – whether liquidator an “interested person” under section 445D(2)(c) – principles at [85] – liquidator was an “interested person”
CORPORATIONS – defendant companies subject to DOCAs executed in 2014 – appointment of voluntary liquidator in 2019 – whether appointment of liquidator valid – sections 440A(1), 444E, 446A and 446AA Corporations Act – transition to deemed creditors’ voluntary winding up – can appoint voluntary liquidator while DOCA on foot – principles at [42]-[52]
CORPORATIONS – construction of a DOCA – principles at [65]-[74] –
statutory construction appropriate – poses problems given DOCAs often poorly drafted – DOCA provided company must not appoint liquidator during period of the deed – resolving inconsistency – relevant clause should be construed as subject to the Corporations Act – right to appoint liquidator under Pt 5.5 remained but exercise of that right was an event giving rise to consequences specified in the DOCA – appointment of voluntary liquidator valid and effective
CORPORATIONS – TRUSTS – deed of company arrangement – need to act impartially between creditors – requirements for DOCA to establish a trust – principles at [96]-[107] – creditors’ trusts – principles at [108]-[112] – DOCAs did not create a trust – DOCAs should be terminated and funds remitted to liquidators
COSTS — Party/Party — Bases of quantification —Whether party represented by its own in-house lawyers entitled to recover costs after abolition of Chorley exception
EQUITY — Equitable remedies — Declaration — Whether issue hypothetical
TAXES AND DUTIES – Duties Act 1997 (NSW) s 63 – will of mother divided residuary estate equally between three siblings who were also executors
– executors agreed to appropriate one of four properties in residuary estate to plaintiff – where value of that property exceeded one third of the then value of estate – whether such appropriation was in or towards satisfaction of plaintiff’s entitlement under the will – whether the beneficiaries thereby agreed to vary the trusts in the will
COSTS — procedure and discretion — funds paid into court as security for costs — significant interest accrued — application pursuant to the UCPR for funds to be paid out — no entitlement to the funds paid into court — application dismissed.
CONTRACTS – Implied terms – Terms implied in law – Where 18 (originally 19) plaintiffs sued a sporting club from which they had been purportedly expelled, alleging that the expulsions lacked a proper basis and were not in accordance with the club’s constitution (which operates as a contract between the members) – Separate determination of two questions, namely whether the constitution contained two implied terms, the first being the “expulsion term” (which states that members can only be expelled for the reasons identified in cl 22 of the constitution, which are the grounds for making a complaint about a member) and the “fairness term” (which states that members will not be expelled without first being afforded procedural fairness) – The plaintiffs advanced three alternative bases for implying the terms: from the express words of the contract, from the nature of the contract, and because the terms are necessary to give business efficacy to the contract – The club contended that neither term was implied in the constitution, that the club was free to expel members for any reason and that the club was not required to afford members procedural fairness in expelling them – Held: both the expulsion term and the fairness term are implied in the constitution. The first is implied on the basis of the combined effect of the express words of the contract (namely cl 11(c), which specifies the consequences of expulsion, and cl 22, which specifies the grounds for making a complaint about a member). The second is implied based on the “nature” of the contract, because the authorities on clubs indicate that, where an expulsion power exists, procedural fairness (or natural justice) will be implied unless it is excluded expressly or by necessary implication.
ASSOCIATIONS AND CLUBS – Domestic and private tribunals – Procedural fairness – Where the Court held that the constitution of a sporting club, which had purported to expel a number of its members, contained an implied term that members could not be expelled without first being afforded procedural fairness – Where the term was implied as a legal incident of the class of contract to which the club’s constitution belongs; the Court applied authority which holds that, where a club’s constitution contains an expulsion power, procedural fairness (or natural justice) will be implied unless it is excluded expressly or by necessary implication.
HIGH RISK OFFENDER – sex offender – application for appointment of two psychiatrists/psychologists pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (the Act) – application for interim supervision order (ISO) pursuant to s 10A of the Act – where defendant bail refused on fresh charges – where application for ISO arguably wholly contingent – no controversy about application for psychiatric/psychological examinations – no controversy about application for ISO – consideration of contingent nature of proposed ISO – ISO imposed – discussion of disputed ISO conditions
CIVIL PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) r 31.24 – Conference between expert witnesses – Whether to direct that there be a single or separate joint liability conclaves split by expertise
ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Motor Accidents Compensation Act 1999 (NSW) s 92 – Whether the claims assessor failed to respond to the insurer’s substantial and clearly articulated arguments – Whether the claims assessor failed to set out lawful reasons
ADMINISTRATIVE LAW – Judicial review – Review of the decisions of a Local Court Magistrate and District Court Registrar – Civil and Administrative Tribunal Act 2013 (NSW) s 34B – Whether the Magistrate improperly granted leave to bring substituted proceedings in the Local Court – Whether the Registrar improperly dismissed a request that he disqualify himself for apprehended bias
CIVIL PROCEDURE – subpoenas – whether lawyer/client privilege applies to documents – whether second defendant entitled to costs of his motion for access and inspection – limited access granted
APPEAL — contracts — misleading or deceptive conduct — pre-contractual statements and representations — where one party enters into contract relying on certain representations made that presales condition would be removed
CIVIL PROCEDURE — cross-claims — against third party
CORPORATIONS — agency — type of agent — finance broker — liability of agent — for representations — where representations made by director of sub-agent of party to contract — where representations relied on — where party to contract bound by conduct of its agent
LAND LAW – conveyancing – contract for sale – off-the-plan purchase – purchase of home unit and carspace – where home unit constructed as an adaptable unit and carspace marked with symbol for disabled persons access – purchaser rescinds contract under rule in Flight v Booth – whether presence of symbol means that owner would not have exclusive use of carspace or gave rise to risk of unauthorised use – held that owner would have exclusive right to possess and enjoy carspace – held that owner would have right to remove or conceal the symbol – purchaser not entitled to rescind contract – contract remains on foot – no warrant for deposit to be returned to purchaser
MISLEADING OR DECEPTIVE CONDUCT – off-the-plan purchase of home unit and carspace – purchaser not informed that unit would be constructed as an adaptable unit and that carspace would be marked with symbol for disabled persons access – not shown that at time of contract vendor had that intention – no false or misleading representations made by vendor – conduct of vendor not misleading or deceptive or likely to mislead or deceive
EQUITY – subrogation – lender advances money on basis that it would receive registered mortgage over property – part of money advanced used to pay out existing registered mortgage over property – due to irregularities in transaction lender unable to have its mortgage registered – lender claims entitlement to be subrogated to existing mortgage – whether unconscionable for mortgagor to deny lender’s claim to have the existing mortgage kept alive for its benefit – claim not defeated by fact that there were no dealings between lender and mortgagor – any negligence on the part of lender not relevant where lender fails to obtained bargained for security – not necessary to show that mortgagor was guilty of any wrongdoing or misconduct – no arguable defence shown – appropriate case for summary judgment against mortgagor – Uniform Civil Procedure Rules 2005 (NSW), r 13.1
APPEAL – appeal from Local Court – appeal from costs – costs assessment under s 352(1) of the Legal Profession Act 2004 (NSW) – review decision – continued application of the Legal Profession Act 2004 (NSW) – costs order in Local Court – saving and transitional provisions of the Legal Profession Uniform Law Application Act – jurisdiction of Court – cost assessment and review appeal decision – whether amended summons brought out of time – application to extend time – refusal to extend time
MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — possession — application for stay of execution of writ of restitution — where defendants retook possession contrary to court orders — prospect of refinancing and hardship — successive applications on similar grounds — where evidence that refinancing of loan would occur prior to mortgagee sale of property
COSTS – Party/Party – Court’s discretion – Where the second/third defendants, having been found liable to the plaintiff, sought to vary the usual order that costs follow the event, so that they would only need to pay 80 per cent of the plaintiff’s costs (on the ordinary basis) – Where the basis for seeking such an order was that the plaintiff abandoned and/or failed on some of its claims at, or shortly before, the hearing – Held: the Court allowed the second/third defendants to offset their costs in relation to an expert report they had obtained to meet a claim which the plaintiff abandoned and a percentage of counsels’ fees relating to that claim, but the Court otherwise declined to vary the usual order that costs follow the event. Furthermore, the second/third defendants were ordered to pay only 75 per cent of the plaintiff’s costs (on the ordinary basis) of this application for costs, because the second/third defendants succeeded in relation to the costs of the expert report and a portion of counsels’ fees.
CONTRACTS – Breach of contract – Forms of breach – Non-performance – Where, in the Torok case, plaintiff contracted with first defendant to build a floating home – Defendant failed to complete project within the contracted period and refused to deliver the uncompleted floating home to the plaintiff without further payment beyond the contract price – Where, in the Gauci case, the plaintiff contracted with the second defendant (being the first defendant’s company) to build a floating home and second defendant failed to complete the project; plaintiff sued for return of her deposit – Held: in the Gauci case, during the hearing the second defendant consented to judgment against it in the amount of the deposit plus interest. In the Torok case, the Court made a declaration that the plaintiff is the legal owner of the floating home and is entitled to possession and control of it.
CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Rule in Hadley v Baxendale – Where, in the Torok case, plaintiff sued for damages for rental income that he would have earnt from leasing out the floating home, a bank loan and additional labour/repairs on the floating home that the plaintiff had to pay for as a result of the first defendant’s non-performance, as well as insurance and mooring fees – Held: plaintiff entitled to damages for lost rental income, as defendant knew this was what the plaintiff intended to do with the floating home when completed; plaintiff also entitled to damages for additional labour/repair costs, etc., and for the amount of the bank loan and interest paid on that loan; however, plaintiff not entitled to damages for cost of insurance and mooring fees because plaintiff would have had to pay those costs in order to rent out the floating home.
CRIMINAL LAW – Dietrich application – accused charged with tax fraud and money laundering – complex and lengthy trial – assets frozen under Proceeds of Crime Act 2002 (Cth) – dispute about cost of representation – accused’s expenses – realistic likelihood accused “parked” funds in businesses – onus not discharged – stay refused
HIGH RISK OFFENDER – interim supervision order – whether condition in s 10A(b) met – evidence persuasive – purpose of legislation – safety of the community and protection from serious offenders
BUILDING AND CONSTRUCTION – adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) – whether determination void – whether jurisdictional error – whether Adjudicator failed to consider the contract
APPEALS — Appeal from Local Court to Supreme Court — damages for breach of contract — whether magistrate erred by awarding damages for a loss that was not particularised or relied on at hearing
CONTRACTS — Remedies — Damages — where damages claimed for costs of rectifying defect in construction — whether magistrate erred in failing to award damages for rectification costs
CONTRACTS — Remedies — Damages — Remoteness of damage — whether claimed loss was reasonably in the contemplation of the parties
CRIMINAL LAW – Offences – Sentence – Murder – Constructive murder where armed robbery was the foundational offence – Aggravated taking of a motor vehicle with occupant on board – Where offender was 15 years of age at the time of the offending – Whether the imposition of a provisional sentence was appropriate – Consideration of the application of a provisional sentence – Relevance of youth in sentencing – Late pleas of guilty – Consideration of the extent of the mitigatory effect of youth in cases of extreme violence – Where the offender made genuine expressions of remorse – Where the offender had favourable prospects of rehabilitation – Special circumstances justifying adjustment of statutory ratio – Term of imprisonment to be served as a juvenile offender up to the age of 21
CRIMINAL LAW – Offences – Sentence – Murder – Armed robbery with wounding – Wounding with intent to cause grievous bodily harm – Aggravated taking of a motor vehicle with occupant on board – Where the offender intended to kill the victim – Where robbery planned – Series of aggravating factors including the vulnerability of the murder victim – Where offender was 16 years of age at the time of the offending – Relevance of youth in sentencing – Consideration of the extent of the mitigatory effect of youth in cases of extreme violence – Adult like behaviour – Mitigatory impact of offender’s deprived background – Where the offender did not make any genuine expressions of remorse – Where the offender suffered from a mental disorder at the time of the offending – Mitigatory impact of mental disorder on moral capability and general deterrence – Poor prospects of rehabilitation
APPEALS – appeals to the Supreme Court – from the Local Court – questions of mixed fact and law – interlocutory ruling - need for leave - claim for debt under instalment contract for supply of a milk pasteurisation machine – defence and cross-claim asserting defect in the machine requiring rectification – rejection of defendant’s expert report by Magistrate – failure to serve expert report in accordance with court orders - no leave obtained to rely on expert evidence – failure of expert witness to acknowledge the expert witness code of conduct – failure to demonstrate opinion based on witness’s specialised knowledge - refusal of Magistrate to permit defendant to rely on contractual provision alleged to be a penalty – failure to plead defence of penalty – failure to adduce evidence that contractual provision was a penalty – no errors demonstrated
EVIDENCE – opinion evidence – expert opinion – failure to serve expert report in accordance with court orders - no leave obtained to rely on expert evidence – failure of expert witness to acknowledge the code of conduct – failure to demonstrate opinion based on witness’s specialised knowledge
CONTRACTS - performance - express terms – penalties – whether interest payable on default amounted to a penalty – where commercial contract subject to negotiation
CIVIL PROCEDURE – Representation – Unrepresented litigant – Plaintiff refused to obtain legal assistance – Responsibility of the court to ensure fair hearing
SUCCESSION – Claim for family provision order by Plaintiff who asserts she was a person with whom the deceased was living in a de facto relationship at the time of the deceased’s death – No reliance on any other category of eligibility until raised at the hearing – Then asserted that Plaintiff was a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time or at any other time, a member of the household of which the deceased was a member, and subsequently, that she was a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death – No reference to factors warranting the making of the application until submissions served on second day of the hearing – Whether to permit Plaintiff to rely upon other grounds of eligibility – Defendant denies Plaintiff was an eligible person within any category of eligibility – Whether factors which warrant the making of the Plaintiff’s application – In any event, Defendant submits that no provision should be made for the Plaintiff and that her Summons should be dismissed.
APPEAL — appeal from Local Court — contract dispute — terms of agreement — whether agreement breached waterproofing and rendering of basement — water leakage — shotcreting — whether error of law — terms of agreement as questions of fact — whether waterproofing negligent
EQUITY – trusts and trustees – unit trusts – distribution of entitlements – purported salary sacrifice arrangements – modification of trust accounts – repayment of unauthorised amounts
REVENUE — Stamp duties — whether declaration of trust dutiable transaction where only acknowledges statutory vesting
REVENUE — Stamp duties — duty on declaration of trust — application of exemptions and nominal duty provisions
CIVIL PROCEDURE - parties - identification - whether director entitled to commence and carry on proceedings for company - director joined as party to proceedings - whether director could only be a plaintiff if director had a personal cause of action against the defendant, separate from that of the company - Uniform Civil Procedure Rules 2005, r 7.1
TORTS - negligence - defences - advocates' immunity - scope
TORTS - negligence – nature of duty of care – escape of fire – origin of fire – nature of duty owed by owners of rural property to adjoining landowner – property damaged after controlled burn conducted by Rural Fire Service on application of landowners – whether duty non-delegable –whether duty satisfied by arranging to have Rural Fire Service conduct burn – requirements of Rural Fires Act 1997-
TORTS - negligence - breach of duty - foreseeability - whether defendants had actual or constructive knowledge of the risk of harm - precautions which a reasonable person would have taken in the circumstances – whether adequate precautions taken
NUISANCE- – relationship between nuisance and negligence – whether nuisance established
DAMAGES – whether damages established - concurrent wrongdoers – apportionment – contributory negligence
EVIDENCE – expert opinion evidence – whether experts possessed specialised knowledge- whether opinions based on expertise
CONTRACTS — Terms — Classification of terms – where evidence required to demonstrate claim of interest in agreement
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – where an extraneous term is required in the Calderbank offer – where not unreasonable for a party to reject that offer
TORTS – malicious prosecution – whether absence of reasonable and probable cause – whether proceedings instituted or maintained on sufficient grounds – whether prosecutor had actual knowledge of falsity of allegations – distinction between whether complainant motivated by malice or made false allegations and whether investigating detective suspected so – where material before detective sufficient to show allegations neither improbable nor false – where material sufficient to put accused on trial – where no improper purpose in prosecution – whether further inquiries could have been made – proper place and function of investigating detective
TORTS – malicious prosecution – whether complainants independently liable as prosecutors – where falsity of statements made by complainant to police not proved – where malice not established
TORTS – malicious prosecution – malice – whether material capable of supporting finding that allegations made maliciously – whether investigating detective had genuine or reasonable belief in truth of allegations
TORTS – malicious prosecution – damages – assessment at common law – where one party unrepresented – where complaints to medical practitioner in medical reports taken into account as if given in evidence – causation of loss – distinction between injury arising out of assault and injury arising out of other stressors – where party susceptible to suffer from certain conditions – whether assaults exacerbated conditions
PRACTICE AND PROCEDURE – Application to file further amended statement of claim – Where application brought late with no real explanation for the delay – Where significance of absence of explanation for delay depends on circumstances – Where main consideration is whether amendments facilitate just, quick and cheap resolution of the proceedings under s 56(1) Civil Procedure Act 2006 (NSW) – Whether defendants would be unfairly prejudiced if amendments were allowed – Where defendants suffer no real prejudice for delay absence of explanation is of limited significance – Whether pleading sufficiently clear
HIGH RISK OFFENDER – serious sex offender – application for Interim Supervision Order – defendant has multiple convictions for sexual abuse of young girls – dispute as to conditions to be imposed – some conditions intrusive – identity of risk posed – community safety paramount – whether privilege against self-incrimination abrogated by statute.
SUCCESSION – Probate and administration – Entitlement to grant of Probate – Contested proceedings – Where parties reach agreement to pass over a later Will in favour of grant in solemn form of an earlier Will – Where there was some doubt as to the validity of the later Will – Grant of Probate a public act – Orders not to be made as a matter of course – Whether, and in what circumstances, the Court will make a grant of Probate based on the agreement of the parties
CRIMINAL LAW – Procedure – Accused charged with murder – Evidence given by accomplice – Where accomplice recently charged with conspiracy to extort money from accused – Where counsel for accused sought to cross-examine witness in relation to those allegations – Where witness objected to answering questions – Whether in the interests of justice that the evidence be given – Witness compelled to give the evidence
WORDS AND PHRASES – “interests of justice”
CRIMINAL LAW – Procedure – Accused charged with murder – Evidence given by accomplice – Where accomplice recently charged with conspiracy to extort money from accused – Where counsel for accused sought to cross-examine witness in relation to those allegations – Where witness objected to answering questions – Whether in the interests of justice that the evidence be given – Whether non-publication order should be made - Witness compelled to give the evidence
HIGH RISK OFFENDER – final hearing – application for continuing detention order or extended supervision order – interim supervision order previously made – whether unacceptable risk of committing another serious sexual offence – whether sufficient resources to maintain high level of supervision in the community – continuing detention order imposed
EQUITY — Trusts and trustees — Judicial advice — Interpretation of trust instrument — Where trust governed by Unitholders Agreement — Whether action proposed to be taken by the trustee is valid under the Unitholders Agreement
CIVIL PROCEDURE — registrars — review of Registrar’s decision
EVIDENCE — privileges — settlement negotiations — where information disclosed in “without prejudice” letter is asserted to amount to alienation of property within s 37A of the Conveyancing Act — whether a fraud within s 131(2)(j) of the Evidence Act 1995 (NSW) - where concealment of a fraud can be in furtherance of the fraud
CIVIL PROCEDURE — preliminary discovery —to identify potential cause of action - to determine whether applicant is entitled to make a claim for relief — where cause of action already identified – whether applicant had sufficient evidence to commence proceedings without any need for preliminary discovery – whether reasonable enquiries made - whether application is for the purpose of suing a third party — whether documents sought were likely to assist the decision
APPEALS — Application for leave to appeal from Local Court to Supreme Court — interlocutory order — whether leave to appeal ought be granted — leave to appeal refused
CIVIL PROCEDURE – Commencement of appeal against order of the Court in a Division – Summons under Part 50 of the UCPR not appropriate – No point of principle
FAMILY LAW – Children – Parens patriae jurisdiction – Mother’s appeal from decision of Children’s Court now the appropriate vehicle for mother’s attempts to recover child
TORTS – interference with goods – conversion –whether cross-claimant had a right to possession – whether goods were abandoned – whether estoppel in pais applies – damages not awarded
TORTS – interference with goods – detinue – whether cross-claimant had a right to possession – whether failure to comply with a demand – no damages awarded
PRACTICE AND PROCEDURE – joint hearing orders under Uniform Civil Procedure Rules 2005 (NSW) r 28.5 – application by plaintiff in two separate proceedings for both proceedings to be heard together or, alternatively, that one proceeding be heard immediately after the other proceeding and that both proceedings be heard by the same judge – where there are no common issues of fact and law – where common witnesses but plaintiff failed to identify material common evidence between the two proceedings – where hearing both proceedings together may be convenient for plaintiff but costly for defendants – application dismissed.
CONTEMPT — criminal contempt — breach of orders — application for discharge from contempt — evidence of change in circumstances — application granted — applicant to be released from correctional centre
CIVIL PROCEDURE – injunctions – interlocutory injunction – first defendant engages second defendant to remove plaintiffs’ equipment from rural premises – equipment transported a long distance for storage and will be expensive to return– the first defendant’s claim of right to the equipment is disputed – injunctions granted on 9 April 2020 for first defendant to return the income earning part of the equipment taken and to retain the other part of the equipment – further facts emerge showing that the second, third, fourth and fifth defendants played roles in the removal of the equipment – but the evidence does not support an inference that the second to fifth defendants were aware that the first defendant’s claim of right to the equipment was disputed – all the equipment is incurring storage charges to the third defendant at its present location – the first defendant has no present use for the equipment – change of circumstances – what variations should be made to the Court’s original orders to accommodate the balance of convenience, as it now appears from these additional facts.
LAND LAW – possession of land – mortgages – default – whether defence discloses any defence to the claim– dispute concerning the amount payable – where plaintiff seeks possession of land not monetary judgment – where money is owed on the loan agreement notwithstanding – where no defence to claim – summary judgment entered
CIVIL PROCEDURE – service – whether effected – where registered office not attended – where business runs own risk of not receiving notice
Artificial insemination - Removal of human semen - Transplantation of human tissue - Incapable person - Brain damage - Absence of consent - Parens patriae jurisdiction - Nature and limits - Court consents for incapable persons - Discretion
HIGH RISK OFFENDER – Application for ESO – agreement on making of order – Court still needs to be satisfied of jurisdiction – ESO made – 3 year duration – resolution of issues between parties as to terms of certain Conditions
COSTS – substantive matter resolved in favour of defendant – plaintiff self-represented and indigent – plaintiff to pay costs of substantive proceedings – plaintiff to pay costs of majority of interlocturoy proceedings in which costs not previously determined
ADMINISTRATIVE LAW — remedies — prohibition and certiorari — certiorari — where delegate and committee decisions the subject of application for judicial review were superseded by decisions of the Legal Profession Admission Board — whether relief in nature of certiorari available
ADMINISTRATIVE LAW — ground of review other than procedural fairness — irrelevant and relevant considerations — findings of fact — whether decision makers made wrong assumption as to facts
ADMINISTRATIVE LAW — bias rule — actual or apprehended — apprehended — whether alleged brevity of reasons provided can found an apprehension of bias or lack of impartiality
ADMINISTRATIVE LAW — procedural fairness — what proper exercise of procedural fairness required of decision makers
ADMINISTRATIVE LAW — whether reviewable error of law — error of law on the face of the record
CIVIL – PROCEDURE – application for transfer of proceedings from District Court of New South Wales to the Supreme Court of New South Wales – whether the claim for damages is likely to exceed jurisdictional limit of the District Court – discussion of test and its application – transfer ordered