Cases and authorities

CIVIL PROCEDURE – cross-examination – leave to recall plaintiff for further cross-examination – medical negligence claim – plaintiff’s evidence completed – where plaintiff made multiple complaints about defendant to regulatory bodies during an adjournment of the proceedings – where plaintiff’s motivation in doing so in issue – where defendant sought to have plaintiff recalled for further cross-examination – fairness to plaintiff before adverse findings made CIVIL PROCEDURE – documents – where defendant sought to be released from Harman undertaking to answer plaintiff’s complaints to regulatory bodies – where application not opposed

CIVIL PROCEDURE — Stay of execution pending appeal — Judgment for possession — Where writs of possession issued in respect of two properties — Where interim stay granted for short period — Where one property scheduled for auction by mortgagee — Whether notice of appeal raises “serious issues” or “arguable grounds” — Balance of convenience or hardship — Whether postponing auction would be unfairly prejudicial to mortgagee — Whether enforcement of second writ of possession should be stayed

COSTS — Security for costs — Application for provision of security by corporate appellant — Corporations Act 2001 (Cth) s 1335 — Where only quantum of security in issue — Whether security sought by respondent excessive or unreasonable — Where competing solicitor’s estimates of parties’ actual costs — Whether quantum of security proportionate to importance and actual complexity of issues on appeal — application of the proportionality principle — Civil Procedure Act 2005 (NSW), s 60

PARTNERSHIPS AND JOINT VENTURES – partnership accounts – valuation of uncompleted insolvency administrations – where taking of account required hypothetical valuation of work in progress and residual goodwill of insolvency practice – whether lack of comparable transactions determinative – whether hypothetical vendor would pay a “discount” to hypothetical purchaser to acquire book of administrations – where impermissible for insolvency practitioner to require or accept a “discount” to take on book of administrations – where insolvency practitioner able to resign or seek leave to resign from unprofitable administrations.

EQUITY – trusts and trustees – beneficiary seeks order for removal of deadlocked corporate trustee – where trustee has ignored repeated requests for information and access to trust documents – where there is a risk of trustee not prosecuting causes of action worth $26.9 million on beneficiary’s behalf before becoming statute-barred – replacement of a trustee, principles at [57]–[60]. TRUSTS – vesting orders where new trustee is appointed – Trustee Act 1925 (NSW) s 71(1) – principles at [68]-[71].

CRIME – charges of attempted drowning with intent to murder and murder – defence of mental health impairment – judge alone hearing – where parties agree defence of mental health impairment established – whether physical acts of the charges proven – whether defence made out – special verdicts entered

LAND LAW – Caveats – Withdrawal of caveat under s 74MA of the Real Property Act 1900 (NSW) –Whether caveat failed to specify the nature of the equitable estate or interest claimed – Where interest on caveat was noted to be a “charge” – Whether there is a material difference between an “equitable charge” as opposed to an “equitable mortgage” BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Where loan agreement between first and second defendants purported to grant the first defendant a security interest over property in connection with construction works performed on property – Whether loan agreement was an “other agreement” under s 7D of the Home Building Act 1989 (NSW) – Whether caveat lodged by first defendant was invalid by reason of s 7D of the Home Building Act 1989 (NSW)

HIGH RISK OFFENDERS – final hearing – extended supervision order – dispute confined to conditions –statement by victim supporting order and conditions – no question of principle

EQUITY — Unconscionable conduct — Special disability or disadvantage – Undue influence — Actual undue influence — Relevant factors – plaintiff and his wife in a relationship of close trust and friendship with the first defendant and her husband – the first defendant and her husband execute a mortgage in 2010 recording an advance of $1.21 million from the plaintiff to them and securing repayment of the advance over their jointly owned real estate – first defendant’s husband becomes bankrupt – plaintiff sues the first defendant on the mortgage - the first defendant disputes that the advance alleged by the plaintiff was made pursuant to the mortgage and seeks to set the mortgage aside – after her husband’s bankruptcy, the first defendant also executed a guarantee in 2017 of certain alleged obligations of her then husband to the plaintiff arising out of deeds of loan in 2005 and 2009 and the 2010 mortgage – by her cross-claim the first defendant says both the 2010 mortgage and the 2017 guarantee were executed as result of the unconscionable conduct or undue influence of the plaintiff – what advance does the 2010 mortgage secure - whether the first defendant was in a position of special disadvantage in relation to the plaintiff in relation to the execution of the two documents – whether the first defendant was under the actual undue influence of the plaintiff – whether the 2010 mortgage or the 2017 guarantee should be set aside or otherwise modified. CONSUMER LAW – consumer credit – National Consumer Credit Code (Code) – Jurisdiction – first defendant seeks to set aside 2010 mortgage and 2017 guarantee for noncompliance with the Code – whether the Code applies – whether the relevant credit was provided by the plaintiff is “in the course of a business of providing credit”.

CIVIL PROCEDURE — Court of Appeal — Application to dismiss appeal as incompetent — Where plaintiff undischarged bankrupt — Where statement of claim dismissed on ground of lack of standing to sue — Bankruptcy Act 1966 (Cth) s 58 — Whether proceedings fall within exception in s 116(2)(g) — Whether matter for determination on appeal is a matter arising under an Act in the Schedule referred to in the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 7(4) — Whether Court of Appeal has jurisdiction to hear appeal

CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence — No issue of principle

COSTS – gross sum costs order – whether order should be made – quantum of gross sum costs.

SUCCESSION — Family provision — Claim by 69 year old only child — Principal asset left equally to plaintiff and his children — Whether adequate and proper provision not made for the plaintiff and, if not, the nature and quantum of the provision to be made

SUCCESSION – Intestacy – Burial Rights – Nature and purpose of Court’s jurisdiction – Determination of competing claims to have carriage of disposal of deceased person’s body – Burial versus cremation – Cultural division between biological family of the deceased and a person who claims to have been in a de facto relationship with the deceased CIVIL PROCEDURE — Jurisdiction — Inherent jurisdiction - Nature of “standing” in service of the Court’s inherent jurisdiction to determine a dispute about disposal of a dead body

ADMINISTRATIVE LAW — statutory construction — whether ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (NSW) apply to owner driver injured in single vehicle accident — “wholly or mostly” the fault of the injured person construed to include contributory negligence — error of law established ADMINISTRATIVE LAW — remedies — declaration — where error of law established — whether relief refused in exercise of Court’s discretion — utility of declaration — free standing basis for decision — no foreseeable consequences between parties — no legal controversy between parties

EXPERT DETERMINATION – dispute between landlord and tenant settled by Deed – landlord agrees to sell property to tenant on terms – rental valuation to be obtained on assumption that lease ongoing – purchase price to be average of two jointly instructed valuers provided with rental valuation – whether valuers performed assigned task – principles at [66]-[69] – adequacy of expert’s reasons, at [88]-[91]. FRUSTRATION – whether Contract for sale of land frustrated by valuer’s failure to perform assigned task – principles at [96]-[101] – expert bound to perform assigned task – no evidence expert unavailable.

EXPERT DETERMINATION – valuer engaged to determine “net assets” of corporation and trusts based on the “market value” of assets and after excluding specified liabilities – expert issues determination – expert volunteers that has made an error and re-issues determination – whether expert performed assigned task – whether can have regard to expert’s correspondence after determination – whether further expert evidence admissible on such an application, at [7] – principles at [44]-[54] – whether functus officio – principles at [107]-[112] – whether “manifest error” – principles at [123]-[129]. WORDS AND PHRASES – “net assets” at [60].

CIVIL PROCEDURE – Costs – Judgment in favour of applicant stayed pending assessment of respondent’s costs – Whether condition for operation of stay satisfied – Whether respondent’s costs set off against judgment debt – Application for review dismissed

CRIMINAL LAW – trial proceedings – murder – application for trial by judge alone – partial defence of substantial impairment – self-defence – prejudicial material relevant to expert evidence – prejudice inherent in evidence of lay witnesses – application of community standards – whether in the interests of justice to make trial by judge order

COSTS – plaintiffs sought specific performance of contract for sale of land against purchaser and guarantor – defendants accepted entitlement to specific performance against purchaser but not guarantor – plaintiffs’ construction of guarantee not accepted – costs should reflect guarantor’s success.

Disqualification application — Apprehended bias —Application refused.

CIVIL PROCEDURE – cross-vesting – transfer to another Supreme Court – relevant factors – more appropriate or convenient forum – transfer granted

EQUITY – Parens patriae jurisdiction – Orders for medical life support to continue for a short time to enable the parents of an injured young woman to attempt to facilitate her transfer to a hospital in China

COSTS – costs order – dissolution of partnership – general rule for costs in the dissolution of a partnership – Calderbank offer – where breakdown of partnership and history of proceedings favoured departure from usual order in partnership cases – no question of principle

LEASES AND TENANCIES – Claim by Landlord for unpaid rental and outgoings and loss of bargain damages as a result of termination of the Lease for the Tenant’s breach – Cross-claim by Tenant for abatement of rent from the commencement of the Lease on the basis that the Premises were damaged by ingress of water so that the Tenant’s use of the Premises were substantially affected – Landlord’s claim for rent partially predicated on the occurrence of a market rent review – Tenant claims an adjustment under a provision in the Lease entitling it to repayment of money overpaid by mistake – HELD Landlord has not established that the market rent review occurred – HELD the Tenant failed to establish that the damage to the building adversely affected its use – HELD Tenant not able to take advantage of the adjustment provision because it never pleaded it – HELD Landlord failed to establish an entitlement to various outgoings claimed

CRIMINAL PROCEDURE — Costs application for certificate pursuant to Costs in Criminal Cases Act 1967 – where applicant acquitted of charge of murder by a jury – whether if prosecution had all relevant facts it would have been reasonable to institute proceedings – application dismissed

BUILDING AND CONSTRUCTION — adjudication — construction contract — payment claim by defendant — adjudication determination stipulating payment of adjudicated amount — application by plaintiffs seeking declaratory relief, order quashing determination or order restraining enforcement — where defendant failed to prove service of payment claim — where defendant filed adjudication application prematurely — adjudicator’s findings as to timing of service and making of application — application of Brodyn v Davenport — HELD — determination not void merely by virtue of non-compliance with more detailed requirements of Building and Construction Industry Security of Payment Act 1999 (NSW) BUILDING AND CONSTRUCTION — adjudication — construction contract — application of Home Building Act 1989 (NSW) — contract for “residential building work” — whether ss 10 and/or 94 bar enforcement of right to progress payments under Building and Construction Industry Security of Payment Act 1999 (NSW) — consideration of phrase “right of action” — right of action does not encompass statutory remedy to receive progress payments under Building and Construction Industry Security of Payment Act 1999 (NSW) — HELD — defendant entitled to enforce adjudication determination

CIVIL PROCEDURE — stay of proceedings — pending proceedings in other court — where foreign judgments between the parties registered in this Court — where defendant applied for a set off order in relation to those judgments in England — where plaintiff failed to disclose set off application to registrar — whether these proceedings ought be stayed pending determination of the English set off application — overriding purpose of Civil Procedure Act 2005 (NSW), s 56 JUDGMENTS AND ORDERS — amending, varying and setting aside — statutory power to set aside order of registrar — where registrar ordered registration of multiple foreign judgments — whether foreign judgments were “enforceable money judgments” within the meaning of the Foreign Judgments Act 1991 (Cth) — issue to be resolved at later stage

APPEALS – failure to consider evidence – whether the primary judge failed to consider affidavit evidence filed by the Commissioner of Corrective Services as to arrangements made for the Respondent to access word processing and printing facilities – where orders were made by the primary judge requiring the Commissioner to provide the Respondent with a laptop with such facilities – whether there was a real controversy between the parties at the time the primary judge made those orders CIVIL PROCEDURE – court administration – court powers – control of proceedings – scope of the court’s powers to make orders to ensure effective access to civil proceedings – whether orders made by the primary judge were necessary to ensure the Respondent’s effective access to civil proceedings – where arrangements had been made for the Respondent to access a desktop computer with word processing and printing facilities – where the orders made by the primary judge would affect the operations of a correctional facility

APPEALS — application for leave to appeal — where applicant made payment claim relating to construction works — where respondent sought reduction of amount on account of payment to third-party supplier — whether respondent sought to “bring any cross-claim” in contravention of Building and Construction Industry Security of Payment Act 1999 (NSW), s 15(4)(b)(i) — leave refused

CIVIL PROCEDURE – Court of Appeal – Application to extend interlocutory injunction restraining possession – Injunction granted for short period to enable determination of a stay application

CORPORATIONS – Statutory derivative action – Application to bring proceedings on behalf of company – Whether leave to bring derivative action should be granted.

HIGH RISK OFFENDER – application for extended supervision order – final hearing – serious sex offences and offences of a sexual nature – whether satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision – consideration of expert evidence

Federal Court of Australia – Jurisdiction – Statutory construction – Where plaintiff brought proceedings in New South Wales Supreme Court – Where plaintiff relied on s 153 of Bankruptcy Act 1966 (Cth) – Whether Full Court of Federal Court of Australia had jurisdiction to hear and determine appeal involving matter arising under Bankruptcy Act – Whether s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) engaged – Whether s 24(1)(c) of Federal Court of Australia Act 1976 (Cth) engaged. Words and phrases – "appellate jurisdiction", "cross-vesting", "Federal Court of Australia", "federal jurisdiction", "jurisdiction", "matter arising under", "right of appeal", "right to appeal", "Scheduled Act", "writ of certiorari", "writ of mandamus". Acts Interpretation Act 1901 (Cth), ss 15AA, 15C. Bankruptcy Act 1966 (Cth), s 153. Federal Court of Australia Act 1976 (Cth), ss 19, 24. Judiciary Act 1903 (Cth), ss 39, 39B. Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 4, 7.

APPEALS — procedure — time limits — whether delay in filing appeal of two days is sufficient basis to dismiss an appeal as incompetent where no prejudice suffered by respondent — appellant provided opportunity to file an application for an extension of time APPEALS — procedure — notice of appeal — where notice of appeal does not comply with formal requirements of the Uniform Civil Procedure Rules concerning specificity of grounds of appeal — non-compliant notice of appeal struck out — appellant provided opportunity to file compliant notice of appeal

CRIMINAL PROCEDURE – evidence – evidence given by audio-visual link – where witness resides in Queensland – where witness recently given birth – whether witness to be directed to give evidence via audio-visual link

EVIDENCE – iPhone health app data – admissibility of hearsay evidence – where Cellebrite extraction report records iPhone activity sensor data – where extraction report purports to contain data showing number of steps taken at a particular time – whether evidence admissible as an exception to the hearsay rule – whether evidence is misleading – evidence excluded

APPEAL – NCAT – Appeal from decision of Appeal Panel not to extend time – substantial procedural history – question of law and leave required to bring appeal to this Court – whether any ground of appeal raised an error of law – no error of law demonstrated – summons dismissed

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Application under r 36.16 Uniform Civil procedure Act 2005 (NSW) — Whether jurisdiction enlivened — Whether power should be exercised to vary principal judgment to include order for pre-judgment interest

AGENCY — authority of agent — actual authority – where defendant’s subcontracts manager’s Job Description stated responsibilities to “manage”, “process” and “receive” payment claims – whether defendant’s subcontracts manager had actual authority to receive plaintiff’s payment claims on behalf of the defendant AGENCY — authority of agent — apparent authority – where defendant’s former subcontracts manager represented to employee of the plaintiff that he had authority to receive payment claims on behalf of the defendant – where new subcontracts manager played same role as former subcontracts manager – whether defendant’s subcontracts manager had apparent authority to receive plaintiff’s payment claims on behalf of the defendant BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – service of payment claims – where plaintiff and defendant were parties to construction contracts – where plaintiff’s payment claims were from time to time addressed to defendant’s nominated representative and defendant’s subcontracts manager via agreed electronic document management system – whether payment claims solely addressed to defendant’s subcontracts manager via agreed electronic document management system were effectively served – whether proper construction of the contracts required plaintiff to serve payment claims on defendant’s nominated representative BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – service of payment claims – where plaintiff’s employee sent updated payment claims to defendant’s subcontracts manager via agreed electronic document management system – whether those payment claims may be taken to have been served on that day, or the following day when defendant acknowledged receipt BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – withdrawal of payment claims – where plaintiff’s earlier payment claims were withdrawn at defendant’s suggestion – payment claims withdrawn by agreement CONTRACTS — construction — where on plaintiff’s construction of the contracts certain provisions would be void by reason of Building and Construction Industry Security of Payment Act 1999 (NSW), s 34 – where relevant contractual provisions are nonetheless available for the purpose of construing what the parties intended by the words used – contracts do not require plaintiff to serve payment claims on defendant’s nominated representative

TRAFFIC LAW AND TRANSPORT — Traffic law — Motor Accident Injuries Act 2017 (NSW) — Construction of s 1.6 — Meaning of “threshold injury”— Whether an injury to skin is a “threshold injury” — Whether skin falls within the statutory meaning of “soft tissue” — Where a review panel of the Personal Injury Commission found that skin lacerations sustained by the claimant were not “threshold injuries” — Where insurer contends that the construction of s 1.6 adopted by the Review Panel is contrary to the objects of the legislation — Where text of s 1.6 supports the construction adopted by the Review Panel ADMINISTRATIVE LAW — Judicial review — Summons seeking judicial review for error of law on the face of the record or a constructive failure to exercise jurisdiction

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – insurance – “last resort” home warranty insurance policy – where insurer denied liability under policy on basis insureds failed to satisfy requirements of s 103BB(3)(a) – whether s 103BB was itself incorporated as a term of policy – whether s 103BB alters the effect of the policy so as to engage s 54 of the Insurance Contracts Act 1984 (Cth) – whether operation of s 54 of Insurance Contracts Act 1984 (Cth) was attracted where a refusal to pay is premised upon effect of s 103BB(3) and not upon the policy CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – whether Home Building Act 1989 (NSW), s 103BB inconsistent with Insurance Contracts Act 1984 (Cth) COSTS – party/party – bases of quantification – indemnity basis – primary judge ordered costs on indemnity basis – where proceedings ongoing for some time when offer of compromise made – offer had necessary element of compromise – no error

TRUSTS – Whether declarations of trust over shares were binding – Whether there was an objective intention to create a trust. TRUSTS – Certainty of subject matter – Whether the trust extended to a trust over shares or only to benefits derived from shares.

BUILDING AND CONSTRUCTION – contract – damages – defects – where plaintiff builder and cross-claimant owners entered contract for construction of duplex – where plaintiff builder made claim for works and variations – where cross-claimant owners made cross-claim for defective works – where owners terminated building contract – where property with partly constructed duplex has been sold CIVIL PROCEDURE – summary disposal – judgment for cross-claimant owners – where plaintiff builder no longer legally represented – where plaintiff builder failed to comply with orders to serve evidence – where cross-claimant owners sought order striking out plaintiff builder’s claim and judgment on their cross-claim

CIVIL LAW – application by plaintiff for referral for pro bono legal representation – where defendant opposes application – relevant considerations – where plaintiff a barrister with a practising certificate – assertion of impecuniosity – Italian proverb – Lincoln – lawyer appearing for themself has a fool for a client – where proceedings languished for some years – sensitive allegations of sexual assault – “brilliant legal mind” – submission tinged with hyperbole or irony – desirability of detached and objective legal representation – referral made.

CORPORATIONS – charges, debentures and other borrowings – security interests – registration – extension of time –when the security agreements creating the security interests came into force – whether the delay in registering the security interests has been explained – whether any person prejudiced by delay in registration – whether extension should be granted

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

LAND LAW — Conveyancing — Contract for sale — Purchaser’s equitable interest — Transaction between husband and wife — Proof of terms of contract where only stamped 1976 transfer available which had never been registered.

COSTS – trustee seeks judicial advice – interested parties granted leave to appear – adversarial proceedings – whether interested parties entitled to be indemnified from trust fund – principles at [20]-[29] – repetition of arguments by multiple counsel – trustee’s submissions accepted – costs of interested parties unquantified despite request from the Court – requirement of interested parties to act reasonably, including avoiding duplication.

APPEALS – Leave to appeal required under s 101(2)(h) and (r) of Supreme Court Act 1970 (NSW) where no readily ascertainable monetary value – Granting of leave matter of discretion ultimately in interests of justice – Dispute substantially resolved prior to hearing below – Disproportional disputation must come to an end APPEALS – Procedure – Parties on appeal – Unrepresented litigants – Court’s function is to ensure fair trial for all parties and does not extend to giving judicial advice to unrepresented litigant JUDGMENTS AND ORDERS – Reasons – Reasons refusing leave to appeal need not be extensive