Cases and authorities

COSTS – party/party – bases of quantification – application for indemnity costs – where Calderbank offer made to three defendants requiring payment of settlement sum on joint and several basis – where claim against third defendant withdrawn at hearing – whether reasonable for first and second defendants to not accept offer – indemnity costs in relation to the first and second defendants refused – Bullock and Sanderson orders in relation to third defendant refused

COSTS – No point of principle

HIGH RISK OFFENDERS – interim supervision order – high risk sex offender – orders consented to – offender with limited intellectual capacity – debate about terms of conditions – conditions consistent with offender’s current parole order imposed

ASSET PRESERVATION ORDER – no issue of principle.

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Where leave sought by officer or former officer of company — Whether leave should be granted to commence proceedings on behalf of company — Whether in best interests of the company that leave be granted — Whether proposed proceedings involve a serious question to be tried.

CRIMINAL LAW — Appeals — Appeal against conviction — Applicant pleaded guilty to recklessly dealing with the proceeds of crime — circumstance where the Crown put back to the applicant an offer she had made pre-committal — whether the applicant’s plea was entered and continued in circumstances that gave rise to a miscarriage of justice — the applicant’s trial counsel and solicitors were experienced, competent and diligent — agreed facts were as favourable to the applicant as they could have been — the applicant understood the nature of the charge and strength of the crown case — no evidence to support the submission that the prosecuting authorities induced the applicant to plead guilty by maintaining the charge against her children — highly significant that when the applicant made the offer pre-committal it was not dependent on the withdrawal of charges against her children — leave to appeal against conviction refused CRIMINAL LAW – Offences – Sentence – Dealing recklessly with the proceeds of crime – Whether failures on the part of counsel gave rise to a miscarriage of justice – Whether sentencing judge erred in assessing the objective criminality of the offending and gave disproportionate weight to agreed facts – Whether failure on the part of the sentencing judge to attribute appropriate weight to the applicant’s subjective circumstances – No such errors on the part of counsel – No such errors on the part of the sentencing judge CRIMINAL LAW – Sentence – Complaint of unjustified disparity – Where differences in sentences imposed upon the applicant and her co-offender explained by the differences in the objective circumstances of the offending the respective roles played – No unjustified disparity CRIMINAL LAW – Sentence – Complaint of manifest excess arising from the application of a 10% discount to reflect the applicant’s plea of guilty – Where the applicant had offered to plead guilty before being committed for trial – Where the Crown had rejected that plea – Where that plea was ultimately accepted – Applicant’s offer not recorded in case conference certificate – Requirement to do so overlooked – Consideration of legislative provisions creating the Early Appropriate Guilty Plea Scheme – Necessity to adopt a construction which did not result in manifest injustice being visited on the applicant – Where on a proper construction of the legislation a discount of 25% was warranted – Where the relevant negotiations had taken place prior to counsel who appeared on sentence being retained in the matter – Where Crown did not draw the attention of the sentencing judge to those negotiations – Error established in circumstances where the relevant issues were not raised by the Crown for the consideration of the sentencing judge – Applicant resentenced STATUTORY INTERPRETATION - Necessity to interpret legislation in a way which avoided manifest injustice and which produced less hardship to the applicant WORDS AND PHRASES – “offer recorded in a negotiations document”

CRIME – appeals – appeal against conviction – applicant charged with 11 offences - grooming child under 16, incite person under 16 to commit act of indecency, aggravated act of indecency with victim under 16, and aggravated sexual intercourse with person under 14 counts – applicant found guilty by jury of all counts charged - applicant was complainant’s foster carer at time of offences – whether the verdicts in respect of each count are unreasonable – where open to the jury to convict applicant on all counts given strong case and detail given by complainant CRIME – appeals – appeal against sentence - whether sentencing judge erred in failing to assess objective criminality of counts 2 to 11– where analysis of factors her Honour took into account does not allow objective seriousness to be clearly understood – where ground is made out – resentence – complainant vulnerable because of background - significant breach of trust by applicant – applicant has good prospects of rehabilitation and low prospects of re-offending – applicant re-sentenced to nine years’ imprisonment with non-parole period of five years and nine months

PRACTICE AND PROCEDURE – personal injury proceedings – CCTV and body cam footage of plaintiff – whether defendant should be excused from service on plaintiff – ex parte application – not heard by trial judge – confidentiality order re application

PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1) and 14.28 – Application for dismissal – Whether causes of action can be made out – Whether pleadings are defective – Application dismissed

EQUITY — Undue influence — Relationships giving rise to presumption of undue influence — Rebutting presumption of undue influence — Presumption not rebutted

PRACTICE AND PROCEDURE – whether these proceedings should be consolidated with other proceedings also involving the plaintiff – whether the two proceedings involved common questions

PLEADINGS – application to amend – no point of principle

SENTENCING – accessory after the fact to murder – principal stabbed victim to death – assistance provided to principal over 12 days following murder – offender and principal in intimate relationship – objective severity below middle of the range – guilty plea – discount for future assistance – disadvantageous upbringing – guarded prospects of rehabilitation – special circumstances – summary of similar cases – custodial sentence

LEGAL PROFESSION – civil liability – solicitor and client – incorporated legal practice – loans by plaintiff companies to individual principal of firm and company associated with him – borrowers unable to repay –purchase of interest in unit trust by way of equitable assignment – vendor remains registered owner of units and sells them for vendor’s own benefit – scope of retainer – duty of care – fiduciary duty – liability of individual principal – claim against professional indemnity underwriter – whether liabilities of corporate solicitor or individual principal arose in the course of legal practice

EQUITY — Trusts and trustees — Judicial advice — Proposal by trustee of private discretionary trust to transfer assets to charitable company — Declarations not appropriate

COSTS – security for costs – where sole director and shareholder of corporate plaintiff offered undertaking to meet any costs order – where liabilities of director exceeded assets of director – where assets unlikely to be easily realised

CONTRACTS — Termination — Repudiation of contract — Whether a direction to lie to clients during notice period constitutes a breach of implied duty of good faith — Whether this amounts to repudiation — Whether in the event of repudiation the employee had affirmed the contract by continuing to accept their salary and comply with employer directions CONTRACTS — Implied terms — Good faith — whether there is an implied duty of good faith in employment contracts EMPLOYMENT AND INDUSTRIAL LAW — Contract — Restraint of trade — Whether restraint unreasonable or against public policy — Whether period of restraint is reasonable where employee is senior and experienced — Whether notice period counts towards period of restraint COMMERCE — Restraint of trade — Enforcement and remedies — Injunction — Whether employee had solicited or attempted to solicit clients and staff from their employer — Whether employee misused or could misuse confidential information of their employer or clients — Whether employee should be restrained from undertaking these actions

ADMINISTRATIVE LAW – Judicial review – Jurisdictional error – Error of law on the face of the record – Remedies – Certiorari – Mandamus

APPEALS – Point not taken below – Whether new defence raised on appeal may be permitted CONTRACTS – Construction – Principles – Extrinsic Evidence – Implication of terms – Where terms in contractual deed are ambiguous – Whether terms of deed correctly construed given its commercial purpose

CIVIL PROCEDURE – pleadings – form and content of pleadings – strike-out application for amended statement of claim pursuant to UCPR r 14.28 – prior iteration of statement of claim struck out pursuant to r 14.28 – where failure to plead claim of vicarious liability – where failure to plead claim for pure economic loss - where plaintiffs wish to make claims beyond what appears in statement of claim – where plaintiffs must amend pleading – statement of claim struck out – plaintiff given leave to re-plead NEGLIGENCE – vicarious liability – persons in service of Crown – where plaintiff submitted that State of NSW vicariously liable for acts and omissions of Chief Commissioner of State Revenue and the Independent Liquor and Gaming Authority – where no pleading of material facts to show how State is vicariously liable NEGLIGENCE – duty of care – pure economic loss –necessity to plead facts regarding assumed responsibility of alleged tortfeasor and vulnerability of plaintiffs

COSTS – costs of mediation – whether defendant’s alleged failure to forewarn plaintiff’s legal representatives of its position in mediation would if proven contravene s 27 of Civil Procedure Act and justify that defendant pay costs of meditation – whether portions of affidavits sworn on behalf of plaintiff and his solicitor about the circumstances surrounding the mediation offend terms of s 30 of Civil Procedure Act – whether there is insufficient evidence that the defendant failed to participate in mediation in good faith – plaintiff provided opportunity to adduce additional evidence during hearing of principal proceedings with costs reserved to trial judge

EXPEDITION – funds in court – application for expedition of motion seeking payment out – no present entitlement to funds, paid into court as security for plaintiffs’ claims – where delays caused by plaintiffs’ failure to file evidence – where first defendant liable to suffer hardship if funds not released – expedite proceedings so as to bring forward competing claims

SENTENCING – Manslaughter – Substantial impairment – Where offender and deceased in domestic relationship – Where offender had history of being in abusive relationships – Where offender diagnosed with alcohol use disorder – Where offender diagnosed with complex post-traumatic stress disorder – Where offender and deceased intoxicated at time of offence – Whether degree of impairment was more than what was required to activate partial defence of substantial impairment SENTENCING – Manslaughter – Substantial impairment – Where offender pursued deceased with knife – Where offender called emergency services immediately after offence – Where offender could not remember the act – Whether offender had intention to kill given she could not remember the act – Whether intention to kill established from offender’s call to emergency services SENTENCING – Manslaughter – Substantial impairment – Where deceased accused offender of being unfaithful – Where deceased withdrew money from offender’s bank account – Where deceased graffitied local pub toilets and offender’s furniture – Where graffiti derogatory in nature – Whether deceased’s actions constituted provocation

PRACTICE AND PROCEDURE — summons – summary dismissal – whether no reasonable cause of action disclosed – where plaintiff seeking judicial review of decision of Judicial Commission to summarily dismiss complaint made by him – where plaintiff alleged excessive judicial intervention, denial of access to the court file, error in judgment and unknown changes to the judgment – where access to court file eventually granted and error in judgment corrected – where plaintiff had right of appeal in respect of alleged excessive intervention – Commission dismissed complaint due to available right of appeal – where Commission obliged to dismiss complaint if incapable of disclosing misconduct or conduct warranting removal – held, no reasonable cause of action disclosed – summons dismissed

PRACTICE AND PROCEDURE — summons – summary dismissal – whether no reasonable cause of action disclosed – where plaintiff seeking judicial review of decision of Judicial Commission to summarily dismiss complaint made by him – where presiding judge asked plaintiff which suburb he was living in – where plaintiff alleged “serious defamation”, “gratuitous denigration”, and innuendo that he was of no fixed abode – complaint dismissed due to triviality and inability to disclose judicial misconduct – where plaintiff alleged that decision was “perverse” or unreasonable – held, no reasonable cause of action disclosed – summons dismissed

CIVIL PROCEDURE – whether summons concerns any real issues in dispute between the parties – plaintiff seeking to relitigate proceedings not in accordance with the correct court rules and procedures – abuse of process – proceedings dismissed CIVIL PROCEDURE – where there are no identifiable common questions of law or fact – matter not properly constituted as a representative action – proceeding dismissed

CHILD WELFARE – care proceedings – statutory construction – interpretation – where guardian ad litem appointed for a child and young person in separate proceedings – where court found child and young person was incapable of giving proper instructions to a legal representative – whether appointment of guardian ad litem mandatory or discretionary – Children and Young Persons (Care and Protection) Act 1998 (NSW) – interaction between ss 98(2A) and 100 of the Act CHILD WELFARE – care proceedings – where guardian ad litem appointed for a young person by Supreme Court – whether young person incapable of giving proper instructions to a legal representative

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — Where appellant purchased properties in the name of the respondent pursuant to a power of attorney — Whether appellant contributed to the purchase price — Whether appellant manifested an intention inconsistent with beneficial ownership of properties — Where appellant provided to the respondent a will to sign which clearly acknowledged her ownership of the properties — Where appellant submitted tax returns on behalf of the respondent which were not trustee returns

COSTS — Costs assessment — Application for assessment — Timing — The ‘piggyback’ concept — Dismissed

CONTRACTS – Construction – Interpretation – where mortgagee exercised power of sale and recovered entire amount claimed – whether mortgagee retained from proceeds more than its entitlement – proper construction of facility deed and mortgages entered into as part of one transaction RESTRICTIVE TRADE PRACTICES – exclusive dealing – third line forcing – whether lender imposed condition that borrower enter deed of guarantee with named company – special federal matter – whether s 47(6) of Competition and Consumer Act 2010 (Cth) engaged – whether lender required use of discrete services – whether effect of any contravention of s 47 is that guarantee fee agreement void

ACQUISITION OF PROPERTY – judicial review – compulsory acquisition – validity of proposed acquisition notice – requirement for relevant authority to make a “genuine attempt” to acquire land by agreement for at least six months prior to issue of notice– jurisdictional precondition to issue of acquisition notice – time period over which genuine attempt to be assessed – meaning of genuine attempt – good faith – scope of negotiations – whether negotiations concern compensation payable for compulsory acquisition or are to be conducted on some other basis – urgent hearing – not shown that defendant did not make genuine attempt – proceedings dismissed

COSTS — party/party — court’s discretion — application for costs as a specified gross sum — whether factors warranting established PROCEDURE — judgments and orders — in general — application to reopen — whether factors warranting established

CONTRACTS — misleading conduct under statute — misleading or deceptive conduct EMPLOYMENT AND INDUSTRIAL LAW — contract — breach TORTS — economic torts — injurious falsehood EQUITY — breach of confidence — conduct constituting breach Locum appointment of psychiatrist plaintiff as a VMO by Health District, first defendant – appointment facilitated by employment agency, second defendant – conversation between clinical director and plaintiff – subsequent purported early termination – notification of concerns about plaintiff to professional and regulatory bodies – misdirected email of employee of employment agency – whether crucial conversation anodyne or sinister – whether breach of confidence – whether misleading or deceptive conduct – whether injurious falsehood – whether breach of contract – various primary and contingent analyses – all claims rejected against both defendants

CIVIL PROCEDURE – Pleadings – Striking out –Appeal against striking out of Statement of Claim in full – Where quantum of damages claimed identical to value of real property subject to family law proceedings – Whether proceedings brought for an improper or collateral purpose and thus an abuse of process – No sufficient basis for finding of abuse – Whether District Court erred in striking out applicant’s statement of claim as defective in form – Whether reasonable causes of action – Statement of claim not so defective as to justify striking out TORTS – Malicious prosecution – Damage – Where limitations on recoverability of costs in subject proceedings – Whether legal costs of defence and lost earnings are actionable damage TORTS – Malicious prosecution – Elements – Whether malice and absence of reasonable or probable cause adequately particularised – Whether necessary to show that prosecutor prejudiced by false information – Whether Apprehend Domestic Violence Order proceedings capable of founding malicious prosecution claim TORTS – Trespass to land – Damage – Whether distress to children of claimant actionable damage

LAND LAW – caveats – extension or removal of caveats – defendant lodged caveat over the plaintiffs’ property – claimed interest described as a charge – no evidence of any agreement creating a charge over the plaintiffs’ property – no serious question to be tried – plaintiffs entered into a contract for the sale of the property with third party purchaser – purchaser issued notice to complete – balance of convenience favours removal of caveat – order that the defendant withdraw caveat pursuant to section 74MA of the Real Property Act 1900 (NSW) COSTS – departure from the general rule – successful plaintiffs seek costs on indemnity basis – defendant’s caveat was lodged with consent or concurrence of first plaintiff – lodgement of caveat part of arrangement intended to hinder or undermine completion of contract for sale to which plaintiffs were bound – lodgement of caveat an abuse of caveat system – first plaintiff and defendant both responsible for abuse – cost of proceedings as much a product of arrangement between first plaintiff and defendant as a product of defendant’s refusal to withdraw caveat – appropriate to depart from the general rule – no order made as to costs to the intent that each party bear their own costs of the proceedings

SUCCESSION — Construction — General principles — Structure and scheme of will — Whether a provision of the will provided the plaintiffs with a testamentary option with respect to the disposition of property — Whether the plaintiffs validly exercised that testamentary option — Where the defendants contended for an alternative construction of the will which did not create a testamentary option — Where the Court found that there was a testamentary option and that the plaintiffs validly exercised it — Where the Court found that the construction for which the defendants contended would undermine the scheme intended by the testators

HIGH RISK OFFENDERS – Offenders – Convicted Commonwealth terrorist offender – Application for appointment of experts under the Criminal Code Act 1995 (Cth)

COSTS — Application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) — Plaintiff unsuccessful at final hearing and various pre-trial applications — Need for several directions hearings and notices of motion prior to final hearing arose because of plaintiff’s conduct — Reduction of gross sum to ensure plaintiff is not prejudiced by the application

PARTNERSHIPS – law firm – partner collects monies from client despite agreement with partners to write off fees charged in breach of Legal Profession Act – partnership dissolved by agreement – action against partner for misappropriated funds – partner keeps fees from clients – partner uses partnership monies without consent to pay for personal expenses and his wife’s salary – partner keeps monies from sale of premises – breach of fiduciary duties and failure to account.

SENTENCING – murder – in gaol – strangulation of cell mate – intent to kill – objective seriousness very grave – severe antisocial personality disorder – extensive and violent criminal history – tendency for unprovoked violence – long term of imprisonment – principle of totality – Crimes (Sentencing Procedure) Act 1999 (NSW), s 56(3) discretion to backdate sentence exercised

CHILD WELFARE – parens patriae jurisdiction – order sought by hospital to administer Hepatitis B vaccine and immunoglobulin injection to baby – where mother of child diagnosed with Hepatitis B – where parents withhold consent for treatment primarily on religious grounds – hospital authorised to carry out treatment

DEFAMATION — Remedies — Interlocutory injunctions — Freedom of expression

PRACTICE AND PROCEDURE – notice to produce served by plaintiff on defendant – where identical notice to produce served in context of notice of motion now resolved – where evidence not complete when subject of notice to produce served – where disclosure of document sought in notice to produce would not be ordered absent extraordinary circumstances – Practice Note SC Eq 11 – notice to produce drawn under a misapprehension as to the defendant’s financial year

BUILDING AND CONSTRUCTION – claim against builder and developer for building defects – claim settled on date of hearing – settlement agreement – provision that rectification works be effected in accordance with remedial contract – provision in settlement agreement that if default occurs judgment to be entered in accordance with pre-signed short minutes of order – whether parties obliged to refer alleged dispute about whether there had been such default to expert determination – whether settlement agreement or remedial contract frustrated

HIGH RISK TERRORISM OFFENDERS – preliminary hearing - whether interim supervision order should be made – whether matters alleged would if proved justify an ESO – whether offender poses an unacceptable risk of committing a serious terrorism offence – application refused

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.

CORPORATIONS – Scheme of arrangement – Application for order convening meeting of members to consider scheme of arrangement.

LEASES AND TENANCIES — Rent and outgoings — Failure to pay — Where sublessee agreed to indemnify head lessor in respect of outgoings — Where head lessor says sublessee’s failure to pay rent caused sublessor to breach head lease LEASES AND TENANCIES — Mesne profits — Where occupation continues after termination of lease pursuant to licence — Where sublessee says it would have been entitled to an order under s 130 of the Conveyancing Act 1919 (NSW) staying any proceeding by the plaintiff to enforce a right of re-entry — Whether entitlement to such an order affects calculation of award LEASES AND TENANCIES — Repairs, maintenance and alterations — Obligation to repair and maintain — “Good repair” — Whether premises “reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it”

CIVIL PROCEDURE — cross-claims — against plaintiff — application for leave to file cross-claim out of time by third defendant — where consent not given by plaintiff to the filing — where Court satisfied that explanation for delay in preparing cross-claim provided — delay due to unavailability of documents and impecuniosity of third defendant — where proceedings did not stall completely during period of defendant’s failure to comply with directions — prejudice to plaintiff was only for relatively short period — where sufficient nexus between issues on plaintiff’s claim and issues raised by cross-claim — leave given to file cross-claim

CIVIL PROCEDURE – Court of Appeal – Stay pending appeal – Judgment for monetary sum – Orders transferring proceedings for possession to NCAT – Whether arguable grounds of appeal – Whether orders already implemented amenable to stay – Whether failure to grant stay would render appeal nugatory – Monetary judgment stayed – Anti-suit injunction granted restraining prosecution of proceedings in NCAT – Conditional upon undertakings as to damages and expedition, and provision of security LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Termination – By landlord – Prohibition on recovery of possession – Whether prohibition deprives court of jurisdiction or is merely a defence LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – NSW Civil and Administrative Tribunal – Jurisdiction and powers – NCAT proceedings commenced by respondent after appeal filed but prior to applicant notifying NCAT of appeal – Whether NCAT retains jurisdiction – Whether Court of Appeal can stay NCAT proceedings