CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) – where trial judge directed a verdict of not guilty to the charge of murder – whether if prosecution had all relevant facts it would have been reasonable to institute proceedings – whether an issue of credibility or reliability – where evidence of key witness was unreliable and internally inconsistent – where Crown opposed cross-examination of the witness at committal hearing – where witness was suffering mental health issues – where witness made allegations about the conduct of the Crown Prosecutor – where witness not called at trial – whether Crown case significantly weakened by evidentiary rulings – whether verdict by direction wrong – certificate granted
SENTENCING – remarks on sentence – accessory after the fact to manslaughter by excessive self –defence – where offender was the victim of a home invasion – where deceased was killed by offender’s boyfriend as the deceased attempted to escape – where offender accompanied boyfriend for three days before going to police – strong subjective case – Community Corrections Order imposed
HIGH RISK TERRORISM OFFENDER – Final hearing – Application by the State for extended supervision order – Convicted NSW terrorism activity offender – Whether Court was satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the Terrorism (High Risk Offenders) Act 2017 – Where defendant convicted of whipping fellow Muslim to administer Sharia law – Where defendant refused to renounce his offending and stated only that he lacked authority to carry out the punishment – Defendant’s associations with persons who have engaged in terrorism offences and advocated support for violent extremism and terrorist organisations – Where defendant involved in conversion to Islam, as he understood it, of those with whom he came into contact – Where defendant was a guide and mentor with engaging personality capable of exerting significant influence over younger or vulnerable persons – Relevant risk of commission of serious terrorism offence established – ESO granted subject to conditions
CIVIL PROCEDURE – interim preservation – freezing orders – ambit and extent – where second defendant misdescribed as trustee for incorrect trust – whether property held by trustee company for the misdescribed trust caught by freezing order
SUCCESSION – Family Provision – Claims by two adult children of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – No provision made for adult son of the deceased and limited provision made for the adult daughter of the deceased – Reasons for the lack of, and for the limited, provision made for each Plaintiff stated in the Will of the deceased – Periods of lack of close contact between adult daughter and the deceased, and in the case of the adult son, complete estrangement for about 30 years – Reconciliation before death of the deceased - Significant competing claim of the Defendant, who is entitled to 50 per cent of the deceased’s estate – Balance of estate left to other son who predeceased the deceased, which share passes to grandchildren of the deceased – Whether each Plaintiff has been left without adequate provision for his, and her, proper maintenance and advancement in life – Whether an order for provision should be made for each Plaintiff’s proper maintenance and advancement in life and, if so, in what amount – Provision to be made for each Plaintiff and, in the case of the adult daughter, that provision in lieu of the provision made for her in the deceased’s Will
CRIMINAL LAW – sentencing following pleas of guilty – two counts of manslaughter – substantial impairment by abnormality of mind – Offender killed mother and father in family home – Offender experiencing severe depression and suicidal ideation – assessment of factors relevant on sentence for manslaughter – totality – aggregate sentence imposed
HIGH RISK OFFENDERS — Extended supervision orders — Unacceptable risk of committing a serious offence — defendant convicted of serious sexual and domestic violence offences — question of rehabilitation and treatment — concern for current intimate partner — question of duration of ESO — nature of conditions of supervision — order made
AGENCY – Type of agent – Lawyer – Ownership of documents – Whether former client entitled to seek file notes made in the course of representation – Whether solicitor is entitled to charge former client for the provision of client documents
SUCCESSION – Contested probate – Lack of testamentary capacity and lack of knowledge and approval asserted – Suspicious circumstances - Application of the test in Banks v Goodfellow – Where deceased suffered a stroke before making Will – Consideration of contemporaneous evidence of solicitor to whom instructions given SUCCESSION — Alternative claims for family provision order under the Succession Act 2006 (NSW), Ch 3 — Claim by adult daughters of the deceased — Whether adequate and proper provision not made in the Will of the deceased for each applicant and, if so, the nature and quantum of the provision to be made for her
LAND LAW — Conveyancing — Contract for sale — Rescission – in 2017 the Vendor and Purchaser entered into a contract for sale of a commercial property which was yet to be built (“the Contract”). Upon registration of the strata plan in February 2020 (“the February Strata Plan”) the Vendor issued a Completion Notice, an Occupation Certificate, and subsequently a Notice to Complete. The Contract included a car space for the commercial premises, however, the February Strata Plan did not include a car space allocated to the commercial lot of the Purchaser – the Purchaser sought to rescind the Contract in accordance with the Flight v Booth principle – the Vendor was not in the position to complete the Contract as at the date of the Notice to Complete as there was no car space on the registered plan allocated to the Purchaser’s lot – the Purchaser was entitled to draw the conclusion from the February Strata Plan, the Vendor’s Completion Notice and Notice to Complete that the Vendor was not proposing to convey a car space – the Purchaser was entitled to terminate the Contract and entitled to return of her deposit – the fact that the Vendor, almost three months after the Purchaser had commenced proceedings, registered a new strata plan and was by then in a position to complete did not assist the Vendor. CONTRACTS — Termination — Repudiation of contract — Readiness and willingness – by the February Strata Plan which did not include a car space and by issuing the Notice to Complete, the Vendor indicated an unwillingness to perform the Contract – the Court upheld the termination of the Contract on the basis of the Vendor’s repudiatory conduct. No affirmation of the Contract by the Purchaser with knowledge of the absence of a car space.
CIVIL PROCEDURE — Separate determination of questions— Where the application for an order for the determination of separate questions is no longer pressed by the relevant applicants — Where no order is made — No point of principle COSTS — Security for costs — Procedure and discretion — Where the defendants seek security for costs — Where the plaintiffs admit impecuniosity — Where the plaintiffs claimed that they are part of a solvent group of companies the holding company of which has the financial resources to meet any costs order made against the plaintiffs in favour of the defendants — Where the plaintiffs claimed that no order for security for costs should be made in the circumstances — Where the Court held that the available financial accounts of the holding company cast sufficient doubt on its financial viability to require that the plaintiffs provide security for the defendants’ costs COSTS — Security for costs — Quantum and form — Where the plaintiffs challenged the quantum and form of the security sought by the defendants — Where the Court determined that security should be provided in the sum of 90% of the amounts claimed by the defendants — Where the plaintiffs’ holding company had previously offered to provide security for costs in the form of a deed and personal undertakings by its directors to cause the holding company to perform its obligations under the deed — Where the plaintiffs’ holding company was formerly precluded from providing security for costs on a conventional basis because it was in breach of a covenant owed to its bank under finance facilities — Where the provision of security for costs by deed imposed a degree of financial uncertainty on the availability of the security for costs — Where the plaintiffs’ holding company is no longer inhibited by the breach of a banking covenant — Where it is determined that security for costs should be provided in the form of payment of money into court or the provision of a guarantee by an Australian authorised deposit-taking institution
CORPORATIONS – Winding up – Conduct of liquidation – Validity of proof of debt – Where plaintiff creditors undertake to seek leave to appeal defendant liquidator’s rejection of their proof of debt and fail to do so
REPRESENTATIVE ACTIONS – Queensland Floods – damage for physical inconvenience – joint owners – each owner entitled to damages – interest on damages – whether reduced by grant monies not taken into account in calculating damages
COSTS – appeal from NCAT – applicant successful on 1 out of 16 grounds – whether costs should follow the event – where ground on which applicant succeeded maintained throughout proceedings – where other grounds numerous and some were close to unarguable – no order as to costs
HIGH RISK OFFENDERS — application for continuing supervision order – defendant convicted of three serious homicide offences – long history of exposure to and participation in violence — history of violence against intimate partner — limited history in community as an adult — question as to whether the defendant poses an unacceptable risk to the community if not supervised — question of nature and conditions of supervision — limitations upon supervision — defendant identifies as transgender — question as to changes in appearance — order made
LAND LAW – Co-ownership – Statutory trust for sale – Application by trustee for possession of property – One co-owner failing to respond to notices to vacate issued by the trustees seeking possession of the property to effect its sale – Whether the co-owner in possession of the property is entitled to remain in the property until its sale – Whether the trustee is entitled to a writ of possession to effect a sale of the property
PRACTICE AND PROCEDURE – application for interlocutory injunction – plaintiff charged with obtaining property by deception and using a carriage service to make threats – search warrant executed –property seized – declaration sought that search warrant was executed unlawfully – whether seized property should be entered into the custody of the Supreme Court until proceedings determined
VALUATION – valuation of marina – valuation retainers – practice standards MISLEADING AND DECEPTIVE CONDUCT – s 52 of Trade Practices Act 1975 (Cth) – s 12DA of Australian Securities and Investment Commission Act 2001 (Cth) – s18 of the Australian Consumer Law – representations in valuation reports – failure to adopt appropriate valuation methodology – failure to explain and cross check methodology – gross overvaluation BREACH OF DUTY – duty of care – breach of duty of care – failure to take precautions against identified risks of harm – valuation not based on reasonable opinion of the value of marina – not product of reasonable care and skill – defendants knew or ought to have known if plaintiffs advanced monies in excess of value NEGLIGENCE – actual reliance – reasonableness CAUSATION – causation arising from breach of duty by misleading and deceptive conduct DEFENCES – statutory time limitations – mitigation – contributory negligence – proportional liability – s 601FS of the Corporations Act 2001 (Cth) DAMAGES – Martha Cove Property Monies – interest – costs
COSTS — Succession — Family provision — Deceased estate — Where orders made for further family provision in favour of the plaintiff — Where the plaintiff was given a total legacy of $100,000 — Where the Court made the conventional costs order that the plaintiff’s costs be paid out of the estate on the ordinary basis and that the defendant’s costs be paid out of the estate on the indemnity basis— Where the defendant had made an offer of compromise whereby the plaintiff would have received a legacy of $101,000 — Where the defendant made an application pursuant to UCPR 42.15 that the plaintiff be ordered to pay the defendant’s costs on the indemnity basis from the date of the offer of compromise — Where the defendant had introduced issues into the litigation after the date of the offer of compromise that substantially increased the parties’ costs — Where the defendant failed in respect of the issues so introduced — Where the plaintiff at the time the offer of compromise was made could not reasonably have estimated the final amount of the costs that would be ordered to be paid out of the estate — Where the Court would have made an order for further family provision in the nature of a legacy significantly greater than $100,000 if the costs payable out of the estate on the conventional basis had not been 60% of the value of the estate— Where the application for special costs order is dismissed
CORPORATIONS – insolvency – ss 477(2A) and 477(2B) of the Corporations Act 2001 (Cth) – application for approval nunc pro tunc for liquidators to enter into Deed of Variation not to be performed within three months – application for approval for liquidators to enter into Deed of Acknowledgement and Release – where uncertainty as to whether the deeds compromise of a debt owed to the Company.
HIGH RISK OFFENDERS — FORENSIC PATIENT – application for extension of status as forensic patient – approaching expiration of limiting term – question of risk of causing serious harm to others — defendant with a history of sexual offences against young females — defendant with an intellectual disability and other impairments - question of efficacy of rehabilitation and treatment — question of nature of accommodation if unsupervised — limitations upon supervision — question of the least restrictive option - order made
CIVIL PROCEDURE – Class action or representative proceedings – Court approval for settlement and discontinuance – Where proceedings no longer continuing as representative proceedings – Orders provide for sufficient notice to be given to group members that the proceedings will no longer continue as representative proceedings – Settlement approved
APPEALS – Procedure – Time limits – Appeal brought out of time – Where appeal filed in wrong court – Where appeal against interlocutory order of the Local Court – s 53(3)(b) Crimes (Appeal and Review) Act 2001 – Leave granted APPEALS – Leave to Appeal – Principles governing – Whether appeal an abuse of process – Whether Uniform Civil Procedure Rules governed the impugned decision in the Local Court – Adequacy of reasons given – Proper construction of s 26 of the Crimes (Domestic and Personal Violence) Act 2007 – Appeal dismissed
CIVIL PROCEDURE — Representative proceedings — Application for approval of settlement between all group members and the second and third defendants — Court approval CIVIL PROCEDURE — Hearings — Suppression and non-publication — Whether necessary to prevent publication of evidence in support of the application for approval of settlement — Future appeal proceedings and proceedings before the trial judge — Order “until further order”
SUMMARY JUDGMENT - application for summary dismissal under Uniform Civil Procedure Rules 2005, r 13.4 - solicitors act for clients on retainer between October 2016 and July 2017 – after the termination of the retainer a dispute arises between the solicitors and the former clients about quantum of fees charged by the solicitors for their legal services – the former clients engage new solicitors to conduct the costs dispute – a settlement deed is reached in December 2018 compromising the costs dispute – clients commence the present proceedings in November 2019 seeking relief to set aside the settlement deed – the clients allege in these proceedings that the settlement deed was procured by the former solicitors, in breach of their fiduciary duty, whilst the former clients were in a relationship of undue influence with the former solicitors, or as result of the former solicitors’ unconscionable conduct and economic duress – the former solicitors bring a Cross-Claim seeking judgment and interest due under the settlement deed – the former solicitors seek summary dismissal of the plaintiff’s claim and seek summary judgment on the Cross-Claim.
EQUITY – CONTRACT – equitable interests in real property – priorities – specific performance of a Deed of Settlement (the Deed) requiring the granting of a legal mortgage – construction – parties entered into the Deed settling earlier litigation which required the defendant in that litigation to pay certain amounts and secure its obligations by granting a mortgage over unencumbered real property owned by it – property was held in trust for another party – where the parties to the earlier litigation had agreed outside the terms of the Deed not to report or make any complaint about illegal conduct – construction of provisions of the Deed requiring payment and extent of the obligations secured – whether the Court should withhold specific performance of the Deed – who as between the plaintiff and the beneficial owner of the property has priority – claim by the owner of the land against its trustee for equitable compensation for breach of trust
MORTGAGES AND SECURITIES – Personal Property Securities Act 2009 (Cth) – Personal Property Securities Register – the plaintiff, a local council, seeks to remove the registration of certain security interests claimed by the first defendant from the Personal Properties Securities Register (“the PPS Register”) – whether collateral described in the registrations by the first defendant secures any obligation owed by any debtor to a secured party – the first defendant seeks unilaterally to present certain council rates he owes the plaintiff as a commercial debt instrument creating an equivalent financial obligation by the council to him, which he claims constitutes part of his income for US tax purposes – the plaintiff says the first defendant’s re-characterisation of the plaintiff’s rate notices is wholly artificial – the plaintiff seeks an order requiring the second defendant, the Registrar of the Personal Property Securities, to register a financing change statement removing the registration of the first defendant’s purported security interest from the PPS Register – the plaintiff seeks an injunction restraining the first defendant registering any further security interest in the personal property of the plaintiff.
CIVIL PROCEDURE – judgment entered against defendant after a hearing in the defendant’s absence – application to set aside under Uniform Civil Procedure Rules 2005 (NSW) rule 36.16(2)(b) – exercise of discretion – plaintiff acted entirely regularly in obtaining judgment and defendant took a deliberate decision not to defend – where defendant proffers an inconsistent explanation for a year’s delay in bringing the application HELD – application dismissed
CIVIL LAW – judicial review of decision of Coroner not to suppress details of Police Safe Driving Policy – jurisdictional error – urgent application for review – inquest listed for hearing – police pursuits – nature of coronial proceedings – therapeutic jurisprudence – open justice – public safety – whether error of law on the face of the record – whether Coroner applied wrong legal test – straw man argument – legal unreasonableness – whether coroner acted irrationally or illogically – implied powers – incidental powers –affidavits of Deputy Commissioners – whether expert evidence – possibly ambitious submission – Expert Code of Conduct not adopted – where parts of policy disclosed at press conference – where press conference on NSW Police Facebook page – whether Coroner disregarded gravity of consequences – inconceivable – whether reasons adequate – Coroner’s reasoning sound
CIVIL LAW - high risk offender - terrorism - violent extremism - whether offender should be subject to further extended supervision order - whether unacceptable risk offender will commit serious terrorism offence - where offender has committed no acts of terrorism - where offender has family members involved in such activities - offender susceptible to influence - calculus of risk - appropriate test - where offender made substantial progress on previous ESO - supportive family - attack on credibility of offender’s father - where senior politician describes father as community leader and man of courage - where offender rejected associates with connection to extremism - strong case of rehabilitation and network of positive influences
CIVIL PROCEDURE — Summary dismissal — Dismissal of the plaintiff’s claim against a defendant pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(b) and (c) — No reasonable cause of action disclosed and abuse of process
CIVIL PROCEDURE – interim preservation – freezing orders – shares purchased by Chinese investors in Australian mining companies with assistance of plaintiff – plaintiff sues in Hong Kong for 49% profits under contract – plaintiff seeks equitable relief in respect of shares, dividends and capital gains – ex parte freezing order in 2018 – freezing order extended by consent in 2019 until end of Hong Kong proceedings – $22.7M frozen – defendants hold further $1M dividends on their undertaking – plaintiff seeks to extend freezing order while defendants seek to have freezing order discharged and release from undertaking. FREEZING ORDERS – by consent after negotiation – whether freezing order in aid of foreign proceedings is final or interlocutory – whether exceptional circumstances or material change in circumstances sufficient – principles at -– exceptional circumstances required and not present. PRIVATE INTERNATIONAL LAW – foreign judgments and orders – whether an account of profits is a “money judgment” within s 3 Foreign Judgments Act 1991 (Cth) – see -.
EVIDENCE — Course of evidence — Re-opening case — Where the Court made an order that probate be granted of an informal will under s 8 of the Succession Act 2006 (NSW) — Where the Court consequently did not decide an alternative application for family provision orders under s 59 of the Succession Act — Where the Court of Appeal set aside the order granting probate of the informal will and remitted the proceedings to the trial judge to determine the application for family provision orders — Where the defendant sought orders permitting the parties to serve further updating evidence without formally applying to re-open his case — Where application to serve further updating evidence refused
CIVIL PROCEDURE — Subpoenas — Objection to production of documents or things — Objection on the basis of ss 467 and 468 of the Legal Profession Uniform Law (NSW) PRACTICE AND PROCEDURE — Determination of role in proceedings — Party never served COSTS — Party/Party — General rule that costs follow the event — Application of the rule
COSTS — Basis of quantification — Where judgment concluded that plaintiff is entitled to be paid its costs of the proceedings by the defendants — Where the plaintiff sought an order that its costs be paid on the indemnity basis following service of a Calderbank offer — Where alternatively the plaintiff claimed that the defences were unreasonably pursued — Where the unreasonable defences were only raised after the service of the Calderbank offer — Where the defendants ought reasonably to have accepted the Calderbank offer — Defendants ordered to pay the plaintiff’s costs on the ordinary basis to the date of the Calderbank offer and on the indemnity basis thereafter CIVIL PROCEDURE— Where monies were paid into court by the third defendant — Where those monies were the subject of a claim by the plaintiff under s 37A of the Conveyancing Act 1919 (NSW) — Where the third defendant disclaimed any interest in the monies —Whether the Court should order payment of those monies to the plaintiff under UCPR r 41.3 — Where the Court recognised the monies as being in effect the property of the first defendant prior to being paid into court — Where the Court determined that the monies are available to meet the judgment against the first defendant
CONTRACTS — Whether amount not payable on breach is a penalty — Whether interest rate claimed is a penalty – short-term unsecured bridging loan advanced by foreign investor PRACTICE AND PROCEDURE — Amount claimed in allegations made in statement of claim inconsistent with “relief claimed” section of the statement of claim COSTS — Party/Party — General rule that costs follow the event — Application of the rule
EQUITY – Equitable remedies – Injunction – Mandatory – Government contract to fund plaintiff’s training of apprentices purportedly terminated with only 3 months to run – Whether interlocutory mandatory inunction should be granted – No issue of principle
CHILD WELFARE – care proceedings – parens patriae jurisdiction – orders sought for secure accommodation and care for young person – where extensive mental health history, past contact with law enforcement and placement history – where currently remanded in juvenile detention – whether appropriate to make orders – orders necessary for young person’s care and protection and promotion of their welfare
WORKERS COMPENSATION – Limitation period – Leave sought for extension of time – s 151D of the Workers Compensation Act 1987 (NSW) – Where employer placed in receivership and later went into liquidation – Where claims pursued diligently - No prejudice flowing from grant of leave – Leave granted
PRIVATE INTERNATIONAL LAW — Application for registration of foreign forfeiture order made in the US — Whether registration would be contrary to the interests of justice within the meaning of s 34A of the Mutual Assistance in Criminal Matters Act 1987 (Cth)
LEASES AND TENANCIES – Default and termination - commercial lease of retail premises – claim for interlocutory relief to allow a corporate tenant to recover plant and equipment from premises from which it has been excluded – tenant/plaintiff defaults in the payment of rent – landlord/defendant excludes the tenant from premises – tenant commences proceedings – settlement of proceedings ending the lease but allowing the tenant to take up occupation for what would have been the remaining term of the lease – tenant defaults upon one of the terms of the settlement and the landlord excludes the tenant again – tenant commences fresh proceedings seeking the opportunity to retrieve its stock, plant and equipment from the premises – what terms of the lease relevant to vacation of the premises still apply between the parties – what is required in order for the tenant who seeks Equity to do Equity – what directions are appropriate to prepare the matter for final hearing.
PRACTICE AND PROCEDURE – funds in Court – interpleader – motion remitted from Court of Appeal – whether funds should be paid out to successful appellants – where garnishee order made directed to respondent – whether part of funds should remain in court pending proceedings commenced by appellants against judgment creditor
CONTRACT – claim for damages for breach of contract – written agreement in Mandarin Chinese prepared by non-lawyer (the Plaintiff) – whether terms of contract constituted loan agreement or shareholder investment agreement – proper construction of contract as a whole considered – claim dismissed
CIVIL PROCEDURE – application to vacate 3 day trial on medical grounds – principles at - – plaintiff in hospital – feeling sick, complaining of chest pains, elevated blood pressure – no report from GP or specialist that unable to attend Court – history of non-compliance with directions due to non-specific illness unsupported by medical evidence – application refused.
CORPORATIONS – winding up – application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up – where funds set aside to pay company’s debt to Commissioner of Taxation – where Deed of Settlement and Release will take effect on the winding-up being terminated, releasing other debts and removing underlying cause of the winding up order.
MENTAL HEALTH – Forensic patient – Application for interim extension order – Where defendant on the Child Protection Register and subject to Child Protection Prohibition Order – Consideration of statutory factors – Whether less restrictive measures available – Whether risk posed by the defendant could not be adequately managed by implementation of a guardianship order – Where a regime of guardianship orders would not be sufficient to mitigate unacceptable risk posed by the defendant to the community – Interim extension order justified in the circumstances – Interim extension order made
CRIMINAL LAW – application under s 78 of the Crimes (Appeal and Review) Act 2001 – whether doubt or question as to guilt of applicant – aggravated sexual intercourse without consent, and attempted sexual intercourse without consent – where Court of Criminal Appeal had dismissed applicant’s appeal – two prior applications under s 78 unsuccessful – where applicant put forward the same issues dealt with in two previous applications – where no special facts or special circumstances raised – refusal to consider or otherwise deal with the matter pursuant to s79(3) of the Act
ESTOPPEL – conventional estoppel – where alleged oral representations by lender that interest payments on mortgage debt would be treated as principal repayments and the date for repayment of principal would be extended – whether the parties conducted their relations on the basis of the assumed facts in the alleged oral representations – whether detrimental reliance by mortgagor EQUITY – estoppel by conduct – promissory estoppel – where alleged oral representations by lender that interest payments on mortgage debt would be treated as principal repayments and the date for repayment of principal would be extended – whether lender bound by alleged oral representations – whether detrimental reliance by mortgagor EQUITY – estoppel by conduct – promissory estoppel – where alleged oral representations by lender that principal sum not due until contingent conditions fulfilled – whether lender bound by alleged oral representations – whether detrimental reliance by borrower CONTRACTS – construction – loan agreement – where principal sum due one year after the making of the loan – where borrowers also obliged to pay lender net proceeds of monies received from costs orders in separate proceedings in reduction of principal sum – whether repayment of principal sum conditional on receipt of monies from the costs orders
CORPORATIONS – winding up – application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up – whether the conduct of the company was contrary to commercial morality – where all the company’s debts have been discharged – where applicant offered undertakings as to providing ongoing financial support to the company upon termination – no issue of principle
EQUITY — Trusts and trustees — Judicial advice – Where trust formed for purpose of making payments to creditors following administration of company – Where orders made under the Trustee Act 1925 (NSW) would allow trustees to administer the trust in the interests of creditor beneficiaries more practically than under trust deed.
COSTS – motion for determination of separate question – amendment to Commercial List Cross-Claim Statement made when motion part heard had effect that any answer to separate question would not be relevantly dispositive - whether motion for separate question would have been brought had the foreshadowed amendment been made earlier - whether separate question likely to have been ordered in any event
ADMINISTRATIVE LAW – Judicial Review – Review Committee under Health Services Act 1997 (NSW) determined no jurisdiction – jurisdictional error – also error of law on the face of the record – failure to exercise duty and jurisdiction – statutory construction – meaning of “re-appoint” – whether “position” was of the same kind; STATUTORY INTERPRETATION – Health Services Act 1997 (NSW) – plain and grammatical meaning – legislative intention – use of Second reading Speech – appeal against decision “not to re-appoint” – whether the subsequent position was “of the same kind” – whether re-appointment
OCCUPATIONS — Legal practitioners — Qualifications and admission — Practising certificates CIVIL PROCEDURE — Determination of separate question — Whether decision subject to appeal or review under s 100 of the Legal Profession Uniform Law (NSW) — Whether a designated local regulatory authority, by reason of s 464(3) of the Legal Profession Uniform Law (NSW), is taken to have refused an application to vary an Australian practicing certificate by not determining the application within 90 days
CIVIL PROCEDURE – direction sought for provision of contact details of witnesses subject to unserved subpoenas – tantamount to preliminary discovery – very late in proceedings – no worthwhile purpose in provision on material before the Court – application refused
CIVIL PROCEDURE – application for witness in Czech Republic to give evidence by audio visual link – where witness suffers from hereditary angioedema and has two young children – where witness’ credit will be in issue – whether in the interests of justice to make order – application granted
ASSOCIATIONS — Construction of association’s constitution – Whether group of individuals can constitute State Council for purposes of constitution – Implication of term(s) in constitution – Whether appointment of state delegate to Federal Council valid for purposes of constitution ASSOCIATIONS — Meeting of members — Annual general meeting — Conduct of meeting – Relevance of material provided to members, terms of constitution, and other relevant circumstances in determining what occurred at meeting
PROCEDURE – notices of motion – orders dismissing proceedings or striking out statement of claim sought – Rules 13.4 and 14.4 of the Uniform Civil Procedure Rules 2005 (NSW) – statement of claim not properly pleaded – required particulars of serious allegations not provided – whether proceedings time barred – no reasonable cause of action – abuse of process – motion granted – proceedings dismissed.
CONTRACTS — Construction — Interpretation — objective approach to construction CONTRACTS — Termination — Breach of term or repudiation CONTRACTS — Termination — exclusion of common law remedies — whether parties can exclude common law remedies for breach of contract without express words to that effect CONTRACTS — Termination — Breach of term — whether parties can justify termination of contract on alternative grounds to those given but which existed at time of purported termination
SUCCESSION – Executors and administrators – Proceedings against executors and administrators – Application for revocation of grant – Alleged contempt – Subpoenas and notices to produce in probate matters – Investigative function
CRIMINAL LAW – Offences – Sentence following a trial where offender found not guilty of murder but guilty of manslaughter on the basis of excessive self-defence – Where the offender intervened in an altercation between his father and the deceased – Where deceased used a knife to seriously injure the offender’s father – Where the offender then repeatedly stabbed the deceased – Offending aggravated by the use of a weapon and the fact that the offender was on conditional liberty at the time – Spontaneous offending initially followed by a response which was entirely excessive – Offender 18 years of age at the time – Guarded prospects of rehabilitation CRIMINAL LAW – Sentence – Finding facts following the verdict of a jury – Where Crown case of murder clearly rejected by jury – Where Crown submitted that it was open to reagitate factual issues on sentence based upon propositions denied by the offender and apparently rejected by the jury – Necessity to find facts consistent with the verdict of the jury – Necessity to interpret the jury’s verdict in accordance with the manner in which the cases were presented at trial – Facts found accordingly
PROCEDURE — Application to have hearing dates vacated — whether principles in ss 56–58 of the Civil Procedure Act 2005 (NSW) support the vacation of hearing dates. CORPORATIONS — Winding up on the just and equitable ground. CORPORATIONS — Directors and officers — Directors’ duties — Duty of care and diligence — Duty to act in good faith in the best interests of company and for proper purpose — Director’s involvement in transactions with companies he controls. EQUITY — Fiduciary duties — Conflict of interest and duty — Informed consent — Director’s involvement in transactions with companies he controls.
CORPORATIONS – winding up – application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up – where applicant offered undertakings as to providing for company’s solvency upon termination – whether company is and will be solvent in future – termination application dismissed
HIGH RISK OFFENDERS – final hearing – application for a continuing detention order – serious violent offender – whether Court satisfied to high degree of probability defendant poses unacceptable risk of committing another serious offence if not kept in detention – antisocial personality disorder – non-completion of Violent Offenders Treatment Program in custody – absence of suitable accommodation – Duration of orders so imposed – continuing detention order imposed
COSTS – exceptions to general rule that costs follow the event – offers of compromise – walk away offers made by defendant in early and late stages of proceedings – no real element of compromise in early offer – evidence available at date of later offer raised significant difficulties for plaintiff’s claim – indemnity costs awarded on basis of later offer under Uniform Civil Procedure Rules 2005 (NSW) r 42.15A
SUCCESSION – Contested Probate – Testamentary capacity – Cognitive impairment resulting from vascular dementia not necessarily inconsistent with a finding of capacity SUCCESSION – Contested Probate – Knowledge and approval – Suspicious circumstances – Testator suffering from dementia assisted in will preparation by interested persons – Need for close scrutiny of all circumstances SUCCESSION – Contested Probate – Undue influence – Will of testator of doubtful testamentary capacity overborne by incessant demands of interested person – Intervention of solicitor did not break nexus between coercion and execution of impugned codicil
CRIMINAL LAW — parole — statutory interpretation — application for direction to State Parole Authority that information relied upon is false, misleading or irrelevant — applicant a serious offender as defined — where applicant impugns decision of parole authority to refuse to bring forward consideration of parole on the asserted basis of manifest injustice — whether information from Serious Offenders Review Council (SORC) shown to be false, misleading or irrelevant — whether refusal to bring forward consideration of parole is refusal to grant parole — whether combined effect of Act and its Regulation permits early consideration of release to parole of serious offender on asserted basis of manifest injustice when SORC opposes release to parole
CIVIL PROCEDURE – Summary dismissal of appeal as incompetent – Where plaintiff seeks to appeal from judgment of District Court – Whether summons incompetent because it has been brought in the Common Law Division under Pt 50 of the UCPR and not by notice of appeal in the Court of Appeal in accordance with Pt 51 – Appeal not incompetent but irregular – Proceedings removed to Court of Appeal under s 51(1)(b) of the Supreme Court Act 1970 (NSW)
COSTS – where plaintiff succeeded against only one of two remaining defendants with commons legal representation – where plaintiff unreasonably failed to accept a genuine compromise offered by unsuccessful defendant prior to commencement of proceedings – no issue of principle INTEREST – pursuant to Civil Procedure Act 2005 (NSW) on sum payable under contract ordered to be specifically performed
PRACTICE AND PROCEDURE – notice to produce – whether seeks production of documents referred to in affidavits – whether seeks production of a specific document – whether seeks discovery – whether tends to subvert operation of Practice Note SC Eq 11
SUCCESSION – administration proceedings – judicial advice – declaration that letter of disclaimer was a valid and effective surrender of the interest of one of the legatees – proposal for appropriation of property to three of the four residuary beneficiaries – executors had power to make appropriation without an order from the court – proposal to retain a fund to meet potential claims by a beneficiary – executors had power to make an interim distribution out of the residue of the estate – amount of distribution not a matter for the court – no judicial advice given COSTS – party/party – executors propounded deed of administration, including a release, which one beneficiary refused to sign – executors joined beneficiary as defendant in subsequent administration proceedings – executors did not succeed on any issue in dispute with beneficiary at hearing – request for release unreasonable – executors liable for beneficiary’s costs inter partes
CONTRACT – commercial lease of premises used to conduct supermarket business – provision in lease concerning the charge or car parking fee for use of basement car park used by supermarket customers beyond the first hour – charge to be a reasonable charge or fee and an amount previously agreed between parties, both acting reasonably – where parties unable to agree on an hourly fee for the second hour – whether a fee of $0 could be a reasonable charge or fee for the second hour – where parties also negotiating for payment of an annual fee by lessee in exchange for lessor charging no fee to customers for second hour of parking
NEGLIGENCE - Occupiers’ Liability – Duty of Care of builder/occupier for hazard created during building works and causing damage to invitee after handover to Owners – relative liability of Owners, builder and contractor.
LAND LAW – fixtures – whether plant and equipment installed at a wind farm are fixtures – intention of parties – degree of annexation – where wind turbines very strongly affixed to land – purpose of annexation – whether wind turbines annexed for better enjoyment of land LAND LAW – fixtures – whether plant and equipment installed on leased land for the purposes of a wind farm are tenant’s fixtures TAXES AND DUTIES – land tax – liability – tax threshold – whether taxpayer a “landholder” for the purposes of Ch 4 of the Duties Act 1997 (NSW) – whether the value of the land holding is less than $2,000,000 TAXES AND DUTIES – land tax – liability – valuation – how interest in land is properly to be valued TAXES AND DUTIES – land tax – liability – whether entity owns goods which could be disregarded under s 163G of the Duties Act 1997 (NSW) – whether items characterised as “goods” are fixtures – items not “goods” – s 163G not applied
CORPORATIONS – application by liquidators for orders pursuant to Insolvency Practice Schedule Liquidators (Corporations) s 90-15 – whether liquidators acting properly and justified in defending appeal from judgment in favour of company in liquidation – whether liquidators acting properly and justified in not opposing a shareholder’s application for leave pursuant to Corporations Act 2001 (Cth), s 237 to commence a cross-appeal in the name of and on behalf of the company – whether liquidators acting properly and justified in engaging the same solicitors and counsel to defend the appeal who successfully prosecuted the proceedings on behalf of the Company at first instance – application by liquidators for approval pursuant to Corporations Act 2001 (Cth) of costs agreement with those solicitors
CONTRACTS – construction – interpretation – contract for sale of land – completion conditional upon building works requiring development approval – completion date to be extended if purchaser brought legal proceedings concerning development approval or if works delayed for reasons outside purchaser’s control or influence – whether extension applied to delays in obtaining development approval before commencement of proceedings – whether delay outside purchaser’s control or influence – whether vendor subsequently repudiated the contract – purchaser not entitled to extension – no repudiation by vendor
TORT – defamation – injurious falsehood – injunctions – whether final injunction should be granted – principles to be applied in the exercise of the Court’s discretion to grant a permanent injunction in defamation cases – freedom of speech – suppression order – permanent restraining order – final injunction granted
REPRESENTATIVE PROCEEDINGS – Civil Procedure Act 2005 (NSW) (the Act) pt 10 – motion for an order that the proceedings be declassed pursuant to s 161 of the Act – motion for a “Merck order” determining that certain questions are common for the purpose of the trial in accordance with s 175(1)(c) of the Act – plaintiff and group members are local councils in New South Wales which were parties with the defendant to a Deed establishing a scheme for the purposes of purchasing for the councils insurance for public liability (including personal injury, damage to property and product liability) and professional indemnity, and to provide for indemnity for them in respect of liability not covered by such insurance – the plaintiff claims that the defendant owed to it and the group members, and breached, duties at general law and in contract to recommend and arrange cover at the best premium rates that were reasonably available – the plaintiff claims that the defendant owed to it and to each group member, and breached, fiduciary duties to act in their best interests and not to prefer its own financial interests to theirs – the plaintiff sought a Merck order and the defendant declassing orders – whether there is at least one substantial common question of law or fact to which the claims of the plaintiff and the group members give rise HELD – that the declassing motion be dismissed – the proceedings are appropriate to continue as a class action – there are identifiable substantial common questions of law or fact – orders that certain questions contained in the Schedule are common to group members and are appropriate to go to trial
CIVIL PROCEDURE – Application for summary dismissal pursuant to UCPR rr 12.7 and 13.4 – Where proceedings commenced in 2002 in respect of conduct by police officers in 1997 and 2000 – Where prior judgments of the Court of Appeal, Hidden J and Beech-Jones J permitted the plaintiff to plead a cause of action of abuse of process in respect of conduct in 2000 – Where plaintiff largely complied with Registrar’s direction as to filing a further amended statement of claim giving effect to the decision of Beech-Jones J in Clark v State of New South Wales  NSWSC 83 – Where defendant did not submit that the statement of claim, in so far as it was within the scope of the leave granted by Beech-Jones J, failed to disclose a cause of action or was frivolous – Proceedings not vexatious or an abuse of process in the circumstances – Matter should be prepared for hearing as soon as possible – Notice of motion dismissed except for minor matter required to ensure the pleading complied with the previous decision by the Court of Appeal.
CORPORATIONS — Winding up — Statutory demand — Application to set aside CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt – Whether contractual breach amounts to total failure of consideration CORPORATIONS — Winding up — Statutory demand – Whether an offsetting claim has been established CORPORATIONS – Winding up – Statutory demand – Whether to set aside for some other reason – Where the contract between the parties contains a dispute resolution clause
CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — Cross-claim to set aside Deed of Assignment CONTRACTS — Undue influence — Actual undue influence – Whether influence amounts to undue influence in the relevant sense – Overlapping application at equity and under Contracts Review Act 1980 (NSW) CONTRACTS — Unconscionable conduct — Special disadvantage — Whether Deed of Assignment procured by undue influence – Whether embarrassment amounted to special disadvantage EQUITY — Trusts and trustees — Court’s supervision of — Appointment and removal of trustees — Whether exercise of powers of appointment and removal of trustee was improper — Whether expedient to appoint new trustee in the circumstances — Whether unpaid beneficiary entitlements amount to an interest in the trust property EQUITY — Equitable remedies — Restitution — Scope of company director’s authority — Whether unauthorised transactions support equitable claim for restitution — Whether amounts paid to solicitors recoverable
CRIMINAL LAW – proceedings after conviction – manslaughter verdict – public interest – trial proceedings – non-publication orders - media application – exhibits on voir dire – media – public interest in access to material – public interest in protecting vulnerable offender
CIVIL PROCEDURE - default judgment - default in filing defence - where defence filed after time limited by the Uniform Civil Procedure Rules but before notice of motion for default judgment filed - defendant not in default CIVIL PROCEDURE - summary disposal - where plaintiff seeks to strike out defendant’s motion for summary dismissal of proceedings - where no basis in the Uniform Civil Procedure Rules or otherwise for plaintiff’s application CIVIL PROCEDURE - summary disposal - dismissal of proceedings - no reasonable cause of action disclosed - plaintiff seeking to stop RAAF flights over her property - numerous causes of action asserted - whether plaintiff has a legal right and is entitled to an interlocutory injunction - where no legal right to prevent aircraft flying over plaintiff’s property - where even if plaintiff had rights s 72 Civil Liability Act is a complete answer to trespass or nuisance actions - where no contract between plaintiff and RAAF - where facts not capable of demonstrating negligence - where no cause of action based on alleged breach of Biosecurity Act - where no arguable claim for breach of privacy - where harassment is no basis for a claim for damages - plaintiff demonstrates no right to prevent RAAF aircraft flying over land - no case for interlocutory injunction - proceedings dismissed pursuant to r 13.4 TORTS - trespass and nuisance - rights of landowner - maxim cuius est solum ejus est utque ad coelum - whether airspace owned to the heavens - whether aircraft flying over plaintiff’s land constituted a trespass or nuisance CONTRACTS - formation - consideration - intention to create legal relations - where plaintiff landowner unilaterally required payment for alleged trespass on land - alleged acquiescence by trespasser - where alleged trespasser had statutory right to use airspace above plaintiff’s land - where no consideration provided by plaintiff - whether contract came into existence
COMMERCE — Restraint of trade — Enforcement and remedies — Interlocutory injunction – Grant of further specific interlocutory injunction where necessary to uphold existing interlocutory injunction CONTEMPT — Civil contempt — Breach of interlocutory injunction — Clarity of terms
EQUITY – estoppel – proprietary estoppel – promise to give continued use of swimming pool – to be satisfied by order requiring grant of easement – form of easement – whether order should be accompanied by injunction to secure use of pool pending registration of easement – equity regards as done that which ought to have been done – injunction granted EQUITY – equitable remedies – declaration – plaintiff alleges that notation on registered plan of subdivision is legally ineffective – plaintiff seeks declaration of right – issue not of sufficient immediate significance – declaration refused
CONTRACTS — Performance — deed of settlement — deed between owners corporation and owner as a result of water damage to property and resulting mould and related illnesses — whether Defendant had properly fulfilled obligations under the deed
CRIMINAL LAW – trial proceedings – murder – application for trial by judge alone – single factual issue in dispute – substantial impairment – application of community standards – importance of community participation
CONTRACT – formation and validity – proposal by owner of development lots to convert lots into non-strata blocks and build townhouses of specified height – cooperation of strata corporation required – development lot owner promised proposal would result in continuing access for strata owners to swimming pool on her land – resolution passed at general meeting – no contractual effect ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – whether lot owner’s promise made to strata corporation – whether reliance by corporation – corporation entitled to easement over pool land EQUITY – rectification – mistake – strata plan of subdivision included notation that pool structures formed part of common property – notation failed to include three-dimensional space around pool structures – inclusion of notation deliberate and mistake established but intended form of plan could not be determined – rectification refused
Crimes (High Risk Offenders) Act 2006 – preliminary hearing – application for interim supervision order – application for court-appointed psychiatrists and/or psychologists – Whether evidence would, if proved, justify the grant of an extended supervision order at final hearing – relevant test
EVIDENCE – Tendency evidence - Accused charged with murder – Defence of self-defence or defence of another – Where counsel for the accused sought to adduce evidence of previous instance of violence on the part of the deceased as tendency evidence – Objection by Crown – Whether evidence had significant probative value – Evidence admitted in part
ADMINISTRATIVE LAW – prisoner seeking damages for assault – assessment of permanent impairment under Civil Liability Act 2002 (NSW) to be performed under workers compensation regime – Approved Medical Specialist assesses WPI at 4% – Appeal Panel dismisses appeal – difficulty in applying PIRS examples to institutional environment – no error of law or jurisdiction – appeal dismissed
PROCEEDS OF CRIME – forfeiture proceedings – civil penalties – defendants perpetrated fraudulent childcare benefit scheme – whether licences to operate childcare centres or receive childcare benefit procured by fraud – whether childcare benefit procured by false data – satisfied offences committed – forfeiture order made – assessing value of the benefit derived from commission of offence – entire childcare business conducted for purpose of fraudulently obtaining childcare benefit
COSTS – security for costs – security hitherto given of $2.45 million – application for further security by director defendants – complex proceedings – set down for 60 days commencing 26 July 2021 – no dispute that further security should be given – dispute as to quantum – where further $17.4 million security sought – where ten director defendants represented by six separate law firms and counsel – where duplication of representation said to arise from potential conflicts of interest between director defendants – whether security should be provided for six sets of costs – where parties earlier entered agreement for security described in respect of three tranches of work – whether director defendants should have further security for those tranches of work – whether there has been change of circumstances warranting such further security – whether assumptions adopted by expert costs assessor unrealistic
CIVIL PROCEDURE – equity – trust administration proceedings – order appointing trustee on basis of undertakings not to bring legal proceedings without obtaining judicial advice – orders for “variation” of undertakings made on application of trustee – application to set variation orders aside – necessary parties – finality of undertakings – grounds upon which undertakings may be modified – whether “variation” (rather than discharge) of undertakings permissible
NEGLIGENCE — Duty of care — Public authorities — Statutory construction — Whether the Murray Darling Basin Authority, its delegates or the Commonwealth is a “public or other authority” within the meaning of s 41 of the Civil Liability Act 2002 (NSW) CIVIL PROCEDURE — Interlocutory proceedings — Summary determination of the question of statutory construction — Give effect to the overriding purpose of Civil Procedure Act 2005 (NSW), s 56 — Need to read general statements in judgments by reference to the circumstances of the case CIVIL PROCEDURE — Originating process — Pleading discloses no reasonable defence — Meaning of “no reasonable defence” — Order to strike out part of a pleading under the Uniform Civil Procedure Rules 2005 (NSW), r 14.28 CONSTITUTIONAL LAW — Commonwealth and State relations — Alleged inconsistency of laws — General principles – Unnecessary to decide
CRIMINAL PROCEDURE – trial – application to vacate trial date – where trial of four co-accused – where separate trial ordered for unrepresented accused – where evidence of forensic psychiatrists is that unrepresented accused incapable of adequately conducting his defence – where Crown consents to application to vacate trial date – order made
LAND LAW – contracts for the sale of land – deposit payable in two instalments – second instalment payable “on the 4th month after the contract date” – contract dated 4 April 2019 – whether second instalment required to be paid by 4 August 2019, or by 31 August 2019 – held that payment was required by 4 August 2019 – vendors held to be entitled to terminate contract on 5 August 2019 – Conveyancing Act 1919 (NSW) s 181(1)(d) definition of “month” as “calendar month” – Interpretation Act 1987 (NSW) s 21 definition of “calendar month” EQUITY – equitable remedies – relief in respect of exercise of legal rights – exercise of right to terminate contract for sale of land – breach giving rise to right of termination brought about by purchaser’s mistake – mistake not caused or contributed to by conduct of vendors – serious breach in failing to pay part of deposit within time agreed to be essential – no substantial loss or prejudice to vendors if contract ordered to be performed – not unconscientious of vendors to rely upon their termination – equitable relief declined – forfeiture of deposit of 5% of the price not unjust or inequitable in the circumstances – no order made for return of deposit under s 55(2A) of Conveyancing Act 1919 (NSW)
ADMINISTRATIVE LAW – judicial review – application for injunctive relief – plaintiff’s security classification – Corrective Services NSW Inmate Classification and Placement Policy – Commissioner of Corrective Services NSW made decision declining to approve the recommendation of the Serious Offenders Review Council – no proper basis for injunctive relief – consideration of Clark v Commissioner for Corrective Services  NSWCA 186 – application dismissed – no order for costs
SUCCESSION – family provision – adult child – past drug addiction and alcohol problems – last Will left house to defendant, noting plaintiff had own business and house – plaintiff’s business failed and house sold due to financial difficulty – future employment prospects slim – defendant spent father’s money left to siblings in the Will – suitable accommodation suggested by plaintiff’s counsel insufficient for plaintiff’s needs and inconsistent with testator’s statements – provision made.
ANTON PILLER – real estate agent obtains ex parte search order against former employee and new employer – alleged misuse of confidential information – relied on letters handed over by employee 2 years earlier, on joining new employer, terminating property management of 9 properties – letters provided by employee’s friends and family – not disclosed that the clients were the employee’s friends and family, and thus unlikely to have been approached using confidential information – principles at - – non-disclosure of material fact – does not matter whether search order may have been made anyway.
SUCCESSION – Wills, probate and administration - Caveat against grant in response to each of two applications for probate – Wrong form of caveat filed - Notice of motion filed by each of the applicants for order that caveat cease to be in force – No issue of due execution of each of the Will and Codicil - Caveator resists each application on the ground that last Will and Codicil was executed at time when the deceased lacked testamentary capacity - Whether the caveator has satisfied court of doubt as to whether the grant of the deceased’s Will and the Codicil ought to be made
COSTS – proceedings commenced alleging that a mortgage was an alienation of property with intent to defraud creditors – no letter of demand issued prior to commencement – mortgage discharged soon after commencement – proceedings discontinued – appropriate order for costs is that defendants pay two-thirds of plaintiff’s costs
ASSOCATIONS AND CLUBS – Jurisdiction of the Courts – Interference in internal management - Appointment of receiver and manager to conduct a court-supervised election – Court’s jurisdiction to appoint receiver to facilitate fresh election
CRIMINAL PROCEDURE – Election – Time limit – Where in the case of a plea of guilty the presentation of the facts relied on by the prosecution to prove the offence had already occurred – s263(3) of the Criminal Procedure Act 1986 (NSW) CRIMINAL PROCEDURE – Ex officio indictment
COSTS – costs thrown away by the adjournment – whether such costs confined to costs incurred prior to the adjournment – whether such costs include costs not yet incurred but which would not have been incurred but for the adjournment
ADMINISTRATIVE LAW – Workers Compensation – Medical Assessment and arguability of appeal ground – jurisdictional error and error of law on the face of the record – Psychiatric Impairment Rating Scale (PIRS) – wrong classification – irrelevant consideration – failure to disclose part of reasoning.
COSTS — Party/Party — Court’s discretion — whether there should be an order that each party pay their own costs or some apportionment SUCCESSION — Contested probate — Testamentary capacity — whether costs should be paid out of the estate or costs paid personally — if costs paid personally whether they should be on an ordinary or indemnity basis
PROFESSIONS AND TRADES – dentist’s application for reinstatement to register – application dismissed by NCAT – whether grounds of appeal were confined to questions of law – whether tribunal erred in not being satisfied appellant was fit and proper person – whether tribunal had power to impose conditions upon appellant’s registration – whether tribunal failed to consider whether risk of reoffending could be addressed by imposing conditions
CONTRACTS – construction – interpretation – whether force majeure clause relieved carrier from liability to indemnify consignor for damage to goods arising from train derailment – force majeure clause not engaged as liability to indemnify not owing to carrier’s delay or failure to fulfil obligations owing to the derailment
HIGH RISK OFFENDERS – Crimes (High Risk Offenders) Act 2006 – final hearing – application for extended supervision order – Court’s discretion to dismiss application – disputed conditions – no question of principle
CONTRACTS – construction and interpretation of contracts – terms of loan approval provided for payment of all fees, costs and outlays payable herein if loan not drawn down within 30 days – proposed loan did not proceed – whether fees payable included establishment fee referred to in another section of loan approval CONTRACTS – consideration – lack of consideration – illusory contracts – loan approval – lender given “absolute” discretion to decide whether valuation is satisfactory to it – lender subject to implied obligations including to honestly consider valuation – promises made by lender held not to be illusory MORTGAGES AND SECURITIES – charge – creation of charge – loan approval provides for charge over all property – whether charge is valid when it does not refer to specific property – charge claimed over identifiable property – equitable charge held to be validly created
NEGLIGENCE — alleged failure to repair forklift when fault identified four days previously — whether fault could be replicated — circumstances in which negligence can be proved although precise mechanism unknown — superior knowledge of employer not passed on to repairer of forklift NEGLIGENCE / TORTS — Defences — Contributory negligence — plaintiff’s conduct in applying brake to forklift reasonable and motivated by concern for other workers in vicinity NEGLIGENCE — Damages — Economic loss — Earning capacity — no residual earning capacity — no viable alternative occupation proposed or available TORTS — General principles — Damages LIMITATION OF ACTIONS — Discoverability — Personal injury — Knowledge of fault of defendant — evaluative judgment requiring legal advice — relationship between ss 50C and 50D of Limitation Act 1969 (NSW) and s 347 of Legal Profession Act 2004 (NSW) — provisions enacted by the same Parliament to be read harmoniously
INTEREST – successful plaintiff claims additional interest at “contractual rate” before accrual of cause of action – no contractual entitlement – claim not pleaded – claim refused COSTS – party/party – plaintiff successfully sues two defendants – first defendant unsuccessfully cross-claims back against plaintiff – issues overlap between action and cross-action and between plaintiff’s claims against defendants – allocation of costs between action and cross-action – allocation of costs of action between plaintiff’s claims against first defendant and plaintiff’s claims against second defendant – plaintiff entitled against second defendant to all costs except those solely referable to costs of claims against first defendant alone and of first defendant’s cross-claim – no reduction on account of plaintiff’s failure on specific issues arising on claims against first and second defendant but not affecting outcome of those claims – indemnity costs refused
CIVIL PROCEDURE – Application for summary dismissal – Second further amended statement of claim – Claim in tort of misfeasance in public office – Where police officers refused to release plaintiff from custody unless he signed Bail Acknowledgement Form – Where no evidence of other documents the plaintiff says he was compelled to sign – Where police officers advised plaintiff not to record interview – Whether an “aggressive tone” capable of constituting intimidation under the circumstances alleged – Reasonable cause of action disclosed – Application dismissed
CIVIL PROCEDURE – parties – identity of parties – non-publication of a party’s name or identity – where orders are necessary to protect the safety of the plaintiff – plaintiff permitted to commence and carry on proceedings using a pseudonym
BUILDING AND CONSTRUCTION – contract – damages – variation – where parties agreed that the Fit Out Agreement (FOA) Contract Price was $2.171 million – dispute as to the scope of work to be done for the FOA Contract Price – whether variations claimed by developer were in respect of work to be done for the FOA Contract Price
CIVIL PROCEDURE — Default judgment — Default in filing defence — (1) Notice of Motion filed by the Plaintiffs seeking summary or default judgment for failure to file a defence within the time prescribed by the UCPR; (2) Notice of Motion filed by the First Defendant approximately 10 months after the Amended Statement of Claim was filed and served seeking leave to file a defence and cross-claim — Held: (1) First Defendant failed to justify its delay in filing its proposed defence and cross-claim; (2) First Defendant’s proposed defence and cross-claim failed to disclose reasonable prospects of success — obiter discussion of penalties; (3) Leave for the First Defendant to file the proposed defence and cross-claim refused; (4) Judgment entered in favour of the Plaintiffs against the First Defendant in the sum of $1,601,340.85.
APPEAL – leave to appeal – stay ordered pending disposal of criminal charges – charges disposed of – utility of appeal – whether question of law – whether need to determine legal issue to prevent frustration of right of appeal TENANCY – residential tenancy agreement – termination – criminal conduct relied on by landlord – criminal charges laid – whether defence of termination proceeding would prejudice criminal defence
ADMINISTRATIVE LAW – workers compensation – judicial review of decision of Medical Appeal Panel of the Workers Compensation Commission – assessment of Whole Person Impairment – dysesthesia – whether Appeal Panel went beyond grounds of appeal – whether use of definition of dysesthesia was introduction of new material – whether Panel failed to afford procedural fairness – whether Panel was bound to reconsider every aspect of previous MAC in issuing new MAC – summons dismissed
CIVIL LAW – forensic patient – expiration of limiting term – whether status as forensic patient should be extended – preliminary hearing – interim order pending final hearing – assessment of risk – where defendant committed brutal murder 25 years earlier – risk factors – where current supervision minimises risk – where no evidence of ongoing support if defendant ceases to be a forensic patient – nature of legal test to be applied on preliminary hearing CIVIL PROCEDURE - preliminary hearing - excessive volumes of material - screaming into the void
ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – where relief sought includes an order in the nature of certiorari – where appeal panel found demonstrable error in decision-maker’s approach – where demonstrable error included applying the wrong test – where appeal panel proceeded to its own assessment – whether appeal panel erred in identifying error in decision-maker’s application of the wrong test – whether appeal panel itself applied the wrong test STATUTORY INTERPRETATION – subordinate legislation – scope of empowering provisions – where the primary legislation provides for a deduction for any proportion of an impairment that is due to a previous injury or pre-existing condition or abnormality – where the primary legislation provides that impairment is to be assessed in accordance with guidelines – where the application of the guidelines would require a nil deduction for a pre-existing but asymptomatic psychiatric injury or condition – whether the guidelines are inconsistent with the primary legislation – whether the guidelines are beyond power WORKERS COMPENSATION – medical assessment – assessment of degree of permanent impairment – deduction for pre-existing impairment – where claimant has suffered previous psychiatric injury – where condition related to previous psychiatric injury was asymptomatic at time of present injury – where asymptomatic condition contributed to impairment suffered as a result of present injury – whether any deduction should be made
CONTRACTS – contract of employment – breach of contract – consequences of breach – right to termination – where termination without notice – onus of demonstrating that termination was justified – where additional grounds available to justify termination EMPLOYMENT AND INDUSTRIAL LAW – contract – conditions of employment – whether plaintiff breached conditions of employment by failure to disclose pecuniary interests, engagement in external work, and “assorted misconduct” EMPLOYMENT AND INDUSTRIAL LAW – contract – termination – summary dismissal – whether the plaintiff engaged in serious or persistent breaches of his contract of employment which entitled the defendant summarily to dismiss the plaintiff without notice EMPLOYMENT AND INDUSTRIAL LAW – public sector – local government – General Manager of council – determinations as to allegations of serious breaches of contract of employment giving rise to summary dismissal LOCAL GOVERNMENT – public officers – disclosure of interests – Local Government Act 1993 (NSW) part 2, div 1 – whether plaintiff knew or ought reasonably to have known that disclosure was false or misleading in a material particular
PROCEDURE – courts and judges generally – judges – disqualification for bias – whether reasonable apprehension of bias – judge was a member of Legal Profession Admission Board that excluded party from Board’s legal course – application to recuse made after judgment given in principal proceedings and orders for costs made – successful party subsequently seeking specified gross sum costs order – no issue of credibility – recusal refused PROCEDURE – costs – maximum costs orders and capped costs – whether a gross sums costs order should be made – non-complex administrative law proceedings involving small sum claimed in Local Court – unrepresented party against whom cost orders made – likelihood of lengthy and protracted costs assessment – relevance of the manner in which the party conducted the proceedings – proportionality of costs PROCEDURE – application by party for release from undertaking as to costs – undertaking given to enable director to appear for plaintiff company – UCPR r 7.1 – where no change in circumstances from time of giving undertaking – whether interests of justice required release – whether party understood basis of undertaking
ADMINISTRATIVE LAW – prerogative relief – Local Court proceedings – default judgment set aside by Local Court of its own motion – UCPR r 36.17 – affidavit of service non-compliant with Rules and Corporations Act – whether entitlement to be heard – procedural fairness – no practical injustice – appeal rights under Local Court Act – whether appeal rights should be utilised before prerogative relief sought – discretionary grounds for refusing relief – summons dismissed CIVIL PROCEDURE - court administration – court powers - Supreme Court – general jurisdiction under s 23 Supreme Court Act CIVIL PROCEDURE – appearance - where plaintiff is a corporation – where director seeks leave to appear on company’s behalf – UCPR r 7.1 - need for director to be plaintiff – need for director to have cause of action against defendant – personal undertaking to Court by director
EVIDENCE – cross examination about evidence which accorded with statement previously made in Senate inquiry and sent to employer – whether evidence prohibited by s 16(3) Parliamentary Privileges Act 1987 (Cth) – purpose of questions asked - purpose not prohibited – s 128 Evidence Act 1995 (NSW) – whether evidence tended to prove an offence committed - certificate issued
CRIMINAL PROCEDURE — application to exclude evidence – s 137 Evidence Act 1995 (NSW) – where defence sought the exclusion of evidence based on unreliability – evidence of EFIMS records and statement of detective as to where certain items were found – held, reliability is a matter for the jury – evidence admissible
CRIMINAL PROCEDURE — application to exclude evidence – expert opinion under s 79 Evidence Act 1995 (NSW) – facts on which opinion is based – whether opinion within area of specialised knowledge – held, evidence inadmissible
CRIMINAL PROCEDURE — application to exclude evidence – s 137 Evidence Act 1995 (NSW) – re-enactment video – where locations and distances used in video are disputed – where re-enactment video used distances and locations selected by police – where jury will see relevant locations at a view – held, probative value outweighed by risk of unfair prejudice to the defendant
CRIMINAL PROCEDURE — Trial — Voir dire – pre-trial ruling on admissibility of hearsay statements EVIDENCE — Hearsay — Exceptions — First-hand hearsay exceptions – s 65(2) Evidence Act 1995 (NSW) – s 66A Evidence Act – meaning of “circumstances” – whether circumstances make it unlikely that representation is a fabrication – whether representation made in circumstances that make it highly probable that representation is reliable – contemporaneous representations about intention, knowledge, or state of mind – relationship evidence – hearsay representations made by deceased in spousal murder trial – statements made by deceased alleging financial and physical abuse by accused