Cases and authorities

CIVIL PROCEDURE — commencement of proceedings — where proceedings wrongly commenced by summons — where plaintiff unable to apply for default judgment — court’s role in proceedings in absence of defendant CONTRACTS — remedies — liquidated damages — penalty — deed of loan — onus of proving contractual provision penalty — where provisions allowing indefinite application of certain fees unconscionable and out of all proportion to the loss that the failure to pay the interest under the deed could realistically cause the plaintiff to suffer

SUCCESSION — construction — conditional gifts — construction of ‘home-made’ will to determine if gift of real property absolute, or a right of residence with a remainder interest to later named beneficiaries — where language used by lay draughtsman idiosyncratic, but condition not uncertain

SUCCESSION — family provision — claim by adult children for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — where executors did not obtain grant of probate and independent solicitor appointed as representative of the estate for the purposes of the proceedings — where Federal Circuit Court orders that former wife of the deceased transfer real property to him unencumbered not complied with — where value of deceased’s estate may be negligible if Federal Circuit Court orders not complied with — where independent solicitor appointed as administrator pursuant to s 74 of the Probate and Administration Act 1898 (NSW) to enable enforcement of Federal Circuit Court orders — where declaration made that plaintiffs are each entitled to a proportion of the final value of the deceased’s estate COSTS — party/party — general rule that costs follow the event — proceedings discontinued or dismissed — where associated proceedings by former wife of deceased discontinued

HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – terrorism intelligence application – closed court – whether the Attorney General’s order sought a ‘pre-existing document’ of the kind prescribed by the regulation – consideration of the interaction between the Attorney General’s compulsory powers of documentary production by order under the Act and the Evidence Act 1995 (NSW) – terrorism intelligence application granted

JUDGMENTS AND ORDERS — effect of — where earlier judgment entitles plaintiff to elect to set aside or affirm agreement for buyback of legal practice — where referee engaged to prepare accounting report for various scenarios — where referee not instructed to assess value of certain aspects of plaintiff’s claim — where court makes findings of amount of compensation to which plaintiff is entitled under each scenario COSTS — Party/Party — costs orders made between parties in respect of interlocutory proceedings

COSTS — no issue of principle

PROCEDURE – adjournment application – tutor motion – insufficient medical evidence – non-compliance with UCPR requirements – stay motion – respondents entitled to fruits of success – no suggestion that appeal will be rendered nugatory – dismissal motion – Court’s reluctance to strike out appeals – security for costs – special circumstances – previous appeal dismissed for failure to pay security – no evidence that order for security would stultify proceedings

INSURANCE – life insurance – proper construction of life insurance contract – where made between life insurer and trustee of superannuation fund in respect of portfolio of fund members – where in relation to cover trustee has equitable and statutory obligations to act in best interests of members – whether in contracts providing for the payment of monthly premiums as a condition precedent to the continuation of cover trustee has promised to pay monthly premiums to life insurer

CIVIL PROCEDURE - Dismissal of proceedings - Abuse of process - Where the First Plaintiff has commenced two sets of proceedings in this Court seeking the same relief – Where the First Plaintiff purports to bring proceedings in the name of the Second Plaintiff without liquidator consent - whether proceedings should be dismissed as an abuse of process

EQUITY – Equitable Remedies – Injunctions – application for interlocutory relief – plaintiff and defendant are developers of real estate – the defendant brought previous proceedings in which he alleged serious misconduct by the present plaintiff – the previous proceedings were settled in a settlement deed on terms that required (1) the plaintiff and companies associated with him to pay $3.25 million to the defendant, and (2) entities associated with the plaintiff to provide nominated PPSA security to the defendant to secure the settlement payment under the settlement deed – the settlement payment was not made – in these proceedings the plaintiff seeks rectification of the settlement deed to remove the requirement to provide the PPSA security – the plaintiff seeks interlocutory relief lifting the PPSA security to permit the defendant to use the security to acquire further real estate for development purposes and an injunction restraining the defendant from registering further charges against the plaintiff – whether there is a serious question to be tried – what is the balance of convenience – whether a mandatory interlocutory injunction should be granted.

REAL PROPERTY – EASEMENTS – Conveyancing Act 1919 (NSW) s 88K – plaintiff owns property on which it has commenced development of a 308 room hotel which includes a commercial component – defendants own adjoining property – plaintiff requires access to airspace for crane swing and to the defendants’ property for the erection of a hoarding, installation of jump form and erection of scaffolding – plaintiff requires an easement over the defendants’ property to execute the development – plaintiff has sought to engage with defendants who have not participated in the process – orders were made for substituted service which have been complied with – HELD: the easement sought is not inconsistent with the public interest, that the defendants can be adequately compensated and that the plaintiff has made all reasonable attempts to obtain the easement – there should be an easement and the plaintiff must pay the defendants compensation

CHILD WELFARE – adoption – consent – dispensing with consent of a child to that child’s adoption

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) – where application to have adjudication determination quashed or declared void was refused – whether Brodyn/Grosvenor stay should be granted

EVIDENCE – client legal privilege – waiver of privilege – alleged inconsistency between allegations in Amended Commercial List Cross-Claim Statement and maintenance of privilege – where Cross-Claimants referred in their Amended Commercial List Cross-Claim Statement to giving email instructions to their solicitor concerning profit sharing arrangement to be included in share sale agreement – whether privilege over entire email chains thereby waived

CIVIL PROCEDURE – whether issues raised at hearing not addressed in principal judgment – whether Hungerfords interest should also be awarded against director of builder – whether Court should have examined individual invoices to determine rectification costs – where submission now sought to be developed was not developed at trial

ADMINISTRATIVE LAW – judicial review – application for further assessment under s 62 of the Motor Accidents Compensation Act 1999 (NSW) – where delegate correctly identified legal test to be applied – whether the reasons of the delegate indicate impermissible or incorrect analysis of the additional information – no error identified – summons dismissed

COSTS – general rule that costs follow the event – multiple claims by plaintiff – where plaintiff successful on some but not all claims – whether claims inter-related – defendant liable for one third of plaintiff’s costs

CIVIL PROCEDURE – Application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – Whether proposed settlement is beneficial to the interests of the plaintiff – Settlement approved

COSTS — motions to set aside subpoena — subpoenaed party seeks indemnity costs — plaintiff did not act unreasonably — subpoenaed party declines to produce confidential material and requires indemnity and guarantee from plaintiff – subpoenaed party suggests costs of compliance $550,000 — invites incredulity – importance of subpoenaed parties complying with obligations – subpoenaed party to pay costs of motion.

CRIME — appeals — appeals against sentence — drug offences — supply of large commercial quantity of prohibited drug — where offenders represented to undercover operatives they would supply 15 kilograms of cocaine – offenders in fact supplied sugar and wood disguised as cocaine but deemed to be a prohibited drug — objective seriousness — whether sentencing judge erred in assessing offending as objectively serious — objective seriousness is not lessened by proposed supply to undercover operatives – offenders’ criminality not analogous to fraud or conspiracy to defraud — COVID-19 — whether sentencing judge failed to take into account more onerous prison conditions beyond visitation restrictions — sentencing judge’s consideration not limited to visitation restrictions — manifest excess — Mr Moreno’s sentence not manifestly excess having regard to offending and the maximum sentence and standard non-parole period of offence — leave to appeal granted — appeals dismissed

CRIME — Appeals — Appeal against conviction — Whether jury was properly constituted — 15 jurors empanelled — Jury room did not meet government requirements for 15 jurors — Ballot was conducted to remove 3 of the 15 jurors — Whether power to remove jurors under s 53B(d) Jury Act 1977 (NSW) is confined to a reason pertaining to the individual juror personally — Whether a reason affecting the ability of each and all of the jurors to perform their functions as jurors falls within s 53B(d) CRIME — Appeals — Appeal against conviction — Application of proviso — Whether error is of a kind that cannot be cured because there was a failure to observe the requirements of the criminal process in a fundamental respect — Error at trial not of that kind — Applicant was tried by a representative and randomly selected jury — Each member of jury was eligible and properly summoned under the Jury Act 1977 (NSW) CRIME — Appeals — Appeal against sentence — Whether sentencing judge failed to take into account that the COVID-19 pandemic makes conditions of imprisonment more onerous — Whether sentencing judge erred by failing to take into account that the applicant was suffering from a mental illness at the time of offending — Whether sentencing judge erred by failing to take into account that the applicant was particularly vulnerable to safety in prison — Whether sentencing judge erred by punishing the applicant twice for the same conduct — Whether sentencing judge erred by punishing the applicant twice for the same conduct — Whether sentencing judge erred in his exercise of discretion in not including any of the balance of parole already served — Whether sentencing judge erred by making the order that the offender pay to the State of New South Wales a drug proceeds order

CRIME – Appeals – Appeal against sentence – Dangerous driving offences arising from fatal head-on vehicle collision – Where sentencing judge found matter was “not one of momentary inattention” – Whether purported factual errors caused sentencing discretion to miscarry – Whether error in assessments of objective seriousness and moral culpability

CRIME – appeal against sentence – offences of possessing a precursor intending it to be used in the manufacture of prohibited drug – other offences taken into account on sentence – joint sentence hearing of co-offenders at first instance – question of the use made by sentencing judge of evidentiary material relevant only to a co-offender – whether error in assessment of objective gravity

CRIME – release application – effect of s 15AAA Crimes Act 1914 (Cth) – disadvantaged Aboriginal applicant

LAND LAW – possession of land – unlawful occupation of plaintiff’s land by defendants and others – where no amended defence filed despite leave being granted – where evidence adduced of the plaintiff’s ownership and right to possession – summary judgment given

SUCCESSION – COSTS – Probate, trust claim, and family provision claims determined in dispute between siblings – In the allocation of costs, by reference to the issues, parties agree that costs are incurred in different proportions – No agreement regarding how costs should be borne – In probate claim, in which Cross-Claimants successful, whether circumstances reasonably warranted investigation and whether the litigation caused by the conduct of the deceased – Trust claim made in the alternative to Probate claim and as the Cross-Claimants successful, in Probate claim, will be dismissed - Family provision claim, by two Plaintiffs who brought trust claim, in the circumstances, will also be dismissed – The Plaintiff’s Probate claim and her defence of the trust claim and family provision claim, if successful would have benefitted other siblings – Relevance in circumstances where the Plaintiff did not seek any indemnity from those beneficiaries whose interests would have increased and who, otherwise, did not participate in the proceedings (other than as a witness)

LAND LAW – Co-ownership – second defendant has recently become the registered proprietor of certain residential real property occupied by the plaintiff and her former de facto partner – the second defendant has acquired title to the property consequent upon the making of orders under the Criminal Assets Recovery Act 1990 against the plaintiff’s former de facto partner – the Court of Appeal has declared that the plaintiff has a 25% interest in the property and the second defendant holds the other 75% – the second defendant now seeks to sell the property – whether the second defendant has an immediate right to possession of the property against the plaintiff, a co-owner in equity – whether the plaintiff occupies the property as a tenant at will of the second defendant – whether judgment for possession should be entered in favour of the second defendant against the plaintiff – whether the issue of a writ for possession should be stayed.

EXTENSION OF TIME FOR SERVICE — hospital defects dispute — maintenance manager commences proceedings against builder — related proceedings between hospital operator and builder — complex transaction documents — settlement discussions underway — ex parte application to extend time for service — principles at [80]-[83] —builder seeks to set aside orders. EX PARTE APPLICATIONS — failure to disclose arbitration agreement — material non-disclosure, principles at [72]-[79] — whether duty of candour extended to potential problem that, by time of extension application, arbitration may be time-barred — exercise discretion not to set aside orders for non-disclosure.

PRACTICE – application to vary costs order – no basis for variation made out

MISLEADING AND DECEPTIVE CONDUCT — cross-appeal — whether joint venturer engaged in misleading or deceptive conduct by failing to disclose negotiations for production of further series of television program, The Checkout — whether reasonable expectation of disclosure — whether execution of Share Sale Agreement induced by misleading or deceptive conduct — whether rescission of Share Sale Agreement an appropriate remedy COSTS — application for leave to appeal — Calderbank offers — whether primary judge erred in not awarding costs on indemnity basis — whether respondents would have been in a better position if they had accepted offer — circumstances in which costs discretion re-exercised on appeal DEFAMATION — application for leave to appeal — whether primary judge erred in application of test for defence of qualified privilege — whether express malice established

CRIMINAL PROCEDURE — Trial — Jury — Application to discharge jury – where Crown proposed not to call a witness – where co-accused made forensic decisions on basis that the witness would be made available for cross-examination – whether there is a substantial risk of miscarriage of justice if the jury is not discharged

MENTAL HEALTH – forensic patient – extension of status – availability of less restrictive means to manage risk – extension issued for 15 months

CRIME — Appeals — Appeal against sentence — applicant convicted for murder — whether lesser penalty should have been imposed having regard to applicant’s assistance to authorities — voluntary disclosure of applicant’s involvement in offence — Ellis factor — assistance to authorities in respect of co-offender’s case — whether sentencing judge failed to consider matters in each subparagraph of s 23(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) JUDGES — reasons — need to read reasons fairly and as a whole

CRIME – appeals – appeal against sentence – unlawful detention – contract enforcer – whether indicative sentence manifestly excessive – whether aggregate sentence manifestly excessive – use of statistics and comparative cases – objective criminality below mid-range – weight given to subjective factors matter for sentencing judge – notional accumulation – generous reduction of statutory ratio – appeal dismissed

BAIL — Aboriginal child — Multiple offences — Whether the unacceptable risks can be ameliorated by the proposed conditions — Where Youth Justice can provide “bail support” but not “bail supervision” because child has pleaded not guilty — Where a number of service providers are prepared to actively engage with the child — Multiple underlying issues that need to be addressed — Where it is necessary to ensure that a suitably qualified individual coordinates the various services — Bail granted

CIVIL PROCEDURE – judgments and orders – application for discovery and interrogatories – application to set aside notice to produce where notice was served prematurely – where notice sought production of material not relevant to the case

CONTRACT – implied terms – terms implied in fact – reasonable and equitable – rule in Renard Constructions – where an agreement existed to sell a business – where there was no written contract

CRIMINAL LAW – appeal and review – application to Supreme Court for inquiry under Part 7 Crimes (Appeal and Review) Act 2001 into five convictions of indecent assault of person under 16 – defended hearing in the Local Court – whether there were errors made by the applicant’s lawyer or the Magistrate - whether there is an appearance of a doubt or question as to the guilt of the applicant – no doubt or question - application refused

COSTS — Exceptions to general rule that costs follow the event — Misconduct of a party — abuse of process unsuccessfully defended on appeal — indemnity costs order made JUDGMENTS AND ORDERS — Amending, varying and setting aside — For alleged errors in judgment— no error found — order recalling judgment not made

HIGH RISK OFFENDERS – application for interim supervision orders – serious violence offence – interim supervision orders granted

LAND LAW — easements — application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway over adjacent land — whether easement reasonably necessary for effective use of plaintiff’s rural land — where plaintiff’s land has no direct access to public road system — where vehicle access between public road and plaintiff’s land only presently practically available over defendant’s land — where evidence of long-term past use — where track created in 2016 along path of proposed easement — whether easement substantially preferable to alternative access options through conservation area — whether plaintiff made all reasonable attempts to obtain easement or easement having same effect — whether discretion to impose easement should be exercised — easement imposed — determination of costs deferred

CONTRACTS — Remedies — Damages — Loss of chance — Chance to gain employment having obtained a qualification — Chance lost as a consequence of the defendant’s failure to provide training in accordance with their contracted obligations — Determination as to time that chance was lost — Determination that nature of breach did not affect assessment of damages — Determination that valuation of part performance did not depend on a proposition that the group members ought to have undertaken further training in the absence of a defence of failure to reasonably mitigate CONTRACTS — Remedies — Damages — Assessment — Assessment of claims by nine group members — Consideration of personal circumstances and evidence particular to those group members — Valuation of the lost chance based on likelihood of realising hypothetical lost earnings greater than actual earnings — Chance of realising hypothetical lost earnings affected by the group member’s aspirations and plans and other personal decisions such as those regarding place of residence and whether to adopt parenting obligations — Valuation discounted to account for the possibility that the chance would not be realised CIVIL PROCEDURE — Representative proceedings — Remedies — Damages — Assessment — Assessment of individual claims by group members who appeared with leave pursuant to ss 168 and 169 of the Civil Procedure Act 2005

CRIME — appeals — appeal against conviction — unreasonable verdict — 14 historical sexual offences over a period of five years — where applicant lived on same street as complainant and groomed him —whether verdicts were reasonably open to the jury having regard to the whole of the evidence — scope of the jury’s advantage in seeing and hearing the complainant give evidence and in considering his credibility was relatively wide — various attacks on the complainant’s credit did not “taint” his evidence when considered in context — leave to appeal allowed — appeal dismissed

CRIME — appeals — appeal against sentence — manifest excess — armed robbery offences — firearm offences — multiple robberies and victims involving a knife and firearms over a three-day period — where offender had an especially strong subjective case — finding of special circumstances — offending more serious than comparable cases and guidelines — aggregate sentence not manifestly excessive — leave to appeal granted — appeal dismissed

CRIME – appeals – appeal against conviction –child sexual offences – judge alone trial – requirements in relation to reasons of the trial judge – Liberato direction – good character direction – whether error in failing to apply all aspects of directions – whether failure to explain how the second limb of each of the Liberato direction and the good character direction were taken into account in reaching the conclusion that the appellant was guilty on each relevant count – whether verdicts of guilty unreasonable – convictions set aside – new trial ordered

CRIME – appeal against sentence – multiple property crimes – aggravated break and enter with intent – break enter steal – applicant with lengthy history of property offending – breach of conditional liberty – dysfunctional background – “Bugmy” features – question of manifest excess

CRIMINAL LAW – Crown appeal – domestic violence and sexual assault offences – single victim married to respondent – whether sentencing judge erred in assessment of objective seriousness – whether spontaneity and short duration of offending mitigating factors – whether relative youth a mitigating factor – whether sentencing judge erred in imposing convictions with no further penalty – s 10A of the Crimes (Sentencing Procedure) Act 1999 considered – whether aggregate sentence manifestly inadequate – whether indicative sentences manifestly inadequate – notional accumulation and concurrence – totality – diagnosis of schizophrenia – whether respondent’s mental health moderated moral culpability, general deterrence and denunciation – residual discretion – whether Court should intervene – re-sentence

HIGH RISK OFFENDER – application for interim supervision orders – serious violence offence – interim supervision orders granted – conditions imposed largely similar in effect to those provided by the parole order

CORPORATIONS – Winding up – Remuneration – Where liquidator of a Company and receiver and manager of trust property – Application for approval of incurred remuneration as liquidator– Application for incurred and future remuneration as receiver and manager of trust property – Whether remuneration claimed is fair and reasonable

PLEADINGS – allegations of professional breach of duty – adequacy of the pleadings – limitation of personal injury claim – leave to re-plead part of the claim