Cases and authorities

COSTS – leave to appeal under s 385 of the Legal Profession Act 2004 – appeal two years and seven months out of time – exhausted right of appeal under s 384 – delay not satisfactorily explained, excused or justified – summons dismissed

CRIMINAL LAW – murder trial – unfavourable witness – whether leave to cross-examine should be granted

CORPORATIONS — Financial services — Misleading or deceptive conduct — Where claims relate to representations said to have been made as to the security or safety of investment in certain financial products — Where plaintiffs plead several representations as to safety, existence of mortgages, rate of return, existence of guarantees, and the extent and nature of the due diligence process — Whether there was a further representation that the relevant fund was “very safe” —Where representations made orally in Mandarin and in written Chinese — Whether the representations were misleading and deceptive and causative of loss suffered by the plaintiffs. CORPORATIONS — Financial services — Unconscionable conduct — Statutory unconscionability — Whether conduct of the defendants “unconscionable” in the circumstances — Where allegations of vulnerability or relationship of dependence.

EQUITY – SUCCESSION – Executors and administrators – Removal of administrator – Court acting of its own motion EQUITY – Trusts and trustees – Powers, rights, duties and liabilities – Power to provide for maintenance and advancement of minor beneficiaries – Administration of trusts – Court’s supervision of – Appointment and removal of trustees OCCUPATIONS — Legal practitioners — Barristers — Duty to court

APPEALS – appeal under UCPR r 49.4 – whether the appellant was released from his obligation to repay a partial and permanent disability benefit – construction of Deed of Release – appellant’s obligation to repay cannot be said to fall within “the matters the subject of this Deed” – failure to raise the matter in previous District Court and Court of Appeal proceedings – Anshun estoppel

PARTNERSHIPS AND JOINT VENTURES – joint venture agreement to develop commercial property – part of proceeds of sale held in trust account – contract provides for expert determination of dispute – expert determination leaves final balance of account undetermined – second expert determination sought after proceedings commenced – parties’ proprietary interest in sale proceeds prior to final determination of amount due – amendment of summons – costs

LAND LAW – transfer of title – right of possession CONTRACTS – collateral contract – transfer as condition precedent to obligations – “essential term” – repudiation – right to damages only CIVIL PROCEDURE – summary judgment – granted but stayed pending cross-claim or other appropriate order

LAND LAW – leases – obligation to make good – where roof of demised premises in state of disrepair and prone to leaking – where roof damaged by hailstorm – where lessor obliged to make good, including by rectifying roof pursuant to an insurance claim to be made by lessor - where lessee claims obligation to make good requires complete replacement of roof – where lessor claims obligation to make good may be discharged by works of lesser scope – held that obligation to make good requires complete replacement of roof – damages not an adequate remedy – held that declarations and orders should be made compelling replacement of roof

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — where plaintiff described grievances without reference to cause of action known to law — where proceedings dismissed CIVIL PROCEDURE — Parties — Removal of parties — where potential claim against company — where defendant joined was director of company — separate legal personalities — where defendant removed from proceedings

COSTS — Apportionment of costs on an issue-by-issue basis

CONSUMER LAW – Alleged misleading or deceptive conduct – Accessorial lability GUARANTEE AND INDEMNITY – Contract of guarantee – Deeds – Fraud – Whether second defendant signed deed – Whether fourth defendant falsely attested signing of deed NEGLIGENCE – Duty of care where claim for pure economic loss – Whether witness owed duty of care – Loss of opportunity case – Issues as to reliance and causation – Defences – Proportionate liability, concurrent wrongdoers, contributory negligence

PRACTICE AND PROCEDURE – Statement of claim purporting to plead multiple causes of action including allegations of conspiracy and misfeasance in public office – Where case put by the plaintiff in the course of the hearing of the notices of motion was different to and narrower than the pleadings – Where the proceedings had been commenced against a background of numerous other proceedings in which similar allegations had been made – Where all previous proceedings had been dismissed – No reasonable cause of action disclosed – Proceedings statute barred in any event – Proceedings dismissed

CIVIL PROCEDURE – Notices to produce – where notice to produce requires disclosure to a party of protected information under s 355-30 of the Taxation Administration Act 1953 (Cth) – whether party can obtain protected information by compulsion where exception in s 355-75 to disclosure to a court not engaged

CRIME – appeal against conviction – applicant convicted of 13 assaults, acts of indecency, indecent assault and aggravated sexual intercourse against three complainants – applicant challenged jury's verdicts on 7 counts – challenged counts involved all offences with one complainant and some offences involving a second complainant – whether convictions were unreasonable – inconsistencies in complainants’ evidence – absence of record of complaint of assault in contemporaneous notes taken by police officer – weaknesses in Crown case at forefront of addresses to jury – no challenge to other convictions, nor to the applicant’s history of domestic violence – having regard to advantages of jury, no basis for setting aside guilty verdicts – leave granted but appeal dismissed

COSTS — Indemnity costs — Refusal of offer of compromise

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for sexual abuse by teacher – leave granted nunc pro tunc - costs

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 NSW – leave to commence proceedings sought – claim for damages for sexual abuse by teacher – leave granted nunc pro tunc - costs

CRIMINAL LAW – sentence – murder – offender found guilty at trial – no major depressive disorder causally related to offending – intention to kill – middle of range of relative seriousness

CIVIL PROCEDURE – abuse of process – permanent stay sought because of abuse of process – dismissal for abuse of process – dismissal on terms – stay of proceedings until costs paid COSTS – gross sum costs order – costs payable forthwith

CIVIL PROCEDURE – Parties – Vexatious litigants – Declaration of – orders under the Vexatious Proceedings Act 2008 (NSW)

CIVIL LAW – application for summary dismissal – plaintiff sues on guarantee – defence of unconscionable conduct – defence and facts disputed – where third defendant relies on uncritical acceptance of her own version of events – contradicted by earlier “statement of truth” – not a proper case for summary disposal CIVIL LAW – indemnity costs – application for summary dismissal devoid of merit – flaws in application brought to defendant’s attention – Calderbank offer

EQUITY –Trusts and trustees – Judicial advice under s 63 of the Trustee Act 1925 (NSW) – Where proposed amendment to Trust Deed to give trustee power to insert trustee remuneration clause – Where application responds to recent changes to legal and regulatory environment and is sought to enable trustee to meet potential liabilities against it and its directors – Where trustee is not-for-profit company with nominal capital – Whether proposed amendments consistent with recent amendments to ss 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and duties of the trustee. SUPERANNUATION – Private Sector Funds – Amendment of Trust Deed

EVIDENCE – application of Practice Note SC CL 7 – where defendants seek orders in the nature of discovery – whether discovery is necessary

CONTRACTS — Remedies — Specific performance LAND LAW — Conveyancing — Options — Call options

CIVIL PROCEDURE – proceedings instituted on behalf of the plaintiff by a tutor on the basis that she was a person under legal incapacity – proceedings settled – whether approval of settlement required under s 76 Civil Procedure Act 2005 – whether plaintiff remains a person under legal incapacity – application for removal of tutor Rule 7.18 Uniform Civil Procedure Rules 2005 – consideration of legal incapacity under Division 4 Civil Procedure Act 2005 and Rules 7.13-7.16 Uniform Civil Procedure Rules – consideration of whether applicant incapable of managing own affairs – plaintiff no longer a person under legal incapacity so as to require a tutor – order under Rule 7.18 removing tutor from the proceedings – approval of settlement under s 76 not required

COSTS – Security for costs – On appeal – Whether appellant should provide security for the respondent’s costs of the appeal – “Special circumstances” – Whether the appeal is reasonably arguable – Whether the appeal might be stifled if an order for security were made.

CRIMINAL LAW – prosecution appeal – asserted inadequacy of sentence – totality – delay in sentencing – community corrections order – where respondent served earlier gaol sentences for similar offending against children – offences committed at around the same time – rehabilitation – lengthy period of non-offending – whether sentence of imprisonment only alternative – where previous sentence fully served – where additional punishment would have been appropriate had offences been dealt with at the same time – not necessary to “reverse engineer” earlier sentence – correct approach to totality – sentence not inadequate

CRIME — Appeals — Appeal against sentence – child sexual assault – whether error in taking into account abuse of a position of trust where for offences under s 66C(2) the victim being under the authority of the offender was an element of the offence – whether error in failing to explain abuse of trust and abuse of authority – relationship between father and daughter – where reasons provided by judge for finding breach of trust as an aggravating factor – whether sentence manifestly excessive – need for general deterrence in child sexual assault

CIVIL PROCEDURE – Motion to determine issues on a preliminary basis that are part of substantive proceedings – Motion to re-open previous interlocutory judgment – Motion to amend Summons to appeal judgment of Local Court to include substantive relief other than determination of appeal – Motion dismissed

CIVIL PROCEDURE – pleadings and evidence – amendment – plaintiff seeks leave to amend pleadings and rely upon further expert evidence – where proposed amendments sought after significant delay – whether delay adequately explained – where new claim would significantly broaden the factual issues and scope of evidence – where previous application brought for leave to amend refused – where arguable but difficult case – plaintiff seeks leave to rely upon further evidence – where plaintiff previously granted leave to rely on evidence and faced a guillotine order – application to amend granted in part – leave granted to rely upon further evidence on conditions

SUCCESSION — Family provision — Nature of orders — Orders for provision COSTS — Indemnity costs — Unreasonable refusal of Calderbank offer

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for sexual abuse by teacher – leave granted nunc pro tunc – costs

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for sexual abuse by teacher – leave granted nunc pro tunc – costs

CORPORATIONS – winding up in insolvency – presumed insolvency from failure to comply with statutory demand – discretion to dismiss or adjourn winding up application – whether discretion should be exercised to allow insolvent company to pursue litigation – winding up order made

CIVIL PROCEDURE – late application to rely on irrelevant expert evidence – two and a half weeks before hearing date – professional negligence proceedings regarding events in 2011 - unexplained delay – no point of principle

ADMINISTRATIVE LAW – Judicial Review – Workplace Injury Management and Worker’s Compensation Act 1998 – Rejection of additional relevant evidence – Error in PIRS Assessment of concentration, persistence, pace and employability – Matter remitted to President of Personal Injury Commission

COSTS – no issue of principle

COSTS — where plaintiff successfully appealed from conviction in Local Court — whether Court has power under the Crimes (Appeal and Review) Act 2001 (NSW) to award costs of Local Court proceedings — whether power is express or implied

COSTS – Party/Party – Bases of quantification – Calderbank offer – No issue of principle LAND LAW – Co-ownership – One owner bare trustee for other – Account for rent – Terms of reference to determine amount owed (if any)

CRIMINAL PROCEDURE — Trial — Jury — Application to discharge jury — where evidence inadvertently adduced — any possible prejudice sufficiently addressed by jury direction CRIMINAL PROCEDURE — Trial — Separate trial application — where evidence inadvertently adduced affecting one of five co-accused — any possible prejudice sufficiently addressed by jury direction

LEAVE TO APPEAL – whether extension of time should be granted – where significant delay of 10 months – where applicant had legal advice – where applicant’s earlier notice of appeal challenging principal judgment and costs orders dismissed as incompetent – where applicant now sought extension of time to challenge only costs orders – whether fairly arguable case for leave to appeal

CRIME — appeal against conviction — whether jury’s verdicts unreasonable — one count of armed robbery and one count of assault with intent to rob — victims did not identify appellant — no objective evidence connecting appellant with offences — Crown case dependent on evidence of a co-accused who was the driver of the vehicle — driver’s evidence unsatisfactory — not open to jury to accept driver’s evidence as proving appellant’s guilt beyond reasonable doubt — convictions quashed and verdicts of acquittal entered

CRIME — Appeals — Appeal against conviction — whether trial judge reversed onus of proof — where trial judge stated Ewen and Murray directions — where no incorrect statement of principle CRIME — Appeals — Appeal against conviction — whether inconsistencies in evidence were not taken into account by trial judge — whether reasons adequately addressed inconsistencies in evidence CRIME — Appeals — Appeal against conviction — whether evidence of sexualised conduct taken into account by trial judge in the absence of findings — whether all evidence needs to be addressed irrespective of significance CRIME — Appeals — Appeal against conviction — Unreasonable verdict

CRIME – appeals – appeal against sentence – two offences of doing an act intending to pervert the course of justice – forging letters for use in bail application – sentencing judge rejected applicant’s evidence in psychological report – no indication to applicant that issue was to be taken – denial of procedural fairness – error in assessment of objective seriousness – “typical” case not necessarily a mid-range case – cumulation not warranted – resentence

CRIMINAL LAW – sentence appeal – whether parity principle applied – whether offenders were co-offenders in a common criminal enterprise – whether there was a marked disparity – justifiable sense of grievance – applicant re-sentenced

CRIMINAL PROCEDURE – murder – application for trial by judge alone – consent – application granted

Family law and child welfare – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 98(3) – application by paternal aunt for leave to appear in person in care proceedings – whether leave should be granted – approach to be taken to applications for the grant of leave – HELD – leave refused

TORTS – negligence – personal injury – liability – pleading of slip – duty of care – breach of duty – causation – damages – pre-accident conditions – evidence of injuries sustained by the incident – surveillance evidence – non-economic loss – economic loss – out of pocket expenses – future treatment – care of another – direction for short minutes

BUILDING AND CONSTRUCTION – Design and Building Practitioners Act 2020 (NSW) – proper construction of definition of “construction work” – proper construction of “otherwise having substantive control over the carrying out of any work” – proper construction of s 37(1) – whether “person” includes the “owner of the land in relation to which the construction work is carried out”

COSTS — Costs assessment — appeal from review panel — Legal Profession Uniform Law Application Act 2014 (NSW), s 89 — whether leave required — whether amount in dispute less than $100,000 — leave not required but if it were leave would be granted COSTS — Costs assessment — appeal from review panel — adequacy of reasons — consent referral to referee under Uniform Civil Procedure Rules 2005 — Rule 20.24 — whether referee’s report should be adopted or “noted” and appeal dismissed — report adopted COSTS — Interest — whether to calculate from date of costs order or later cost assessment — Civil Procedure Act, s 101 — interest to be calculated from date of order