Cases and authorities

CIVIL PROCEDURE — Summons seeking mandatory injunction pursuant to the Privacy Act 1988 (Cth) and at law that the Law Society and College of Law allow inspection of the plaintiff’s personal information — Law Society bound by Privacy Act and was obliged to produce requested documents — Pursuant to sections 467 and 468 of the Legal Profession Uniform Law (NSW) the Law Society, the Council and its staff cannot be compelled to answer a subpoena or notice to produce — Absent a breach of the Law Society’s obligations under the Privacy Act, the plaintiff is not entitled to injunction under s 80W of the Privacy Act or under the general law OCCUPATIONS — Legal practitioners — Qualifications and admission — Practising certificates — Application for an order that the Law Society issue the plaintiff with a sole practitioner practising certificate — This Court’s inherent power does not extend to the issue, or variation, of practising certificates

CONTRACT – construction loan of $27.5M – suggested oral agreement to pay $500,000 commission – agreement not established – loan in default – guarantor agrees to pay $1m – agreement between guarantor and plaintiff to fund the $1m – only $800,000 paid – plaintiff says oral agreement that $800,000 would be held on trust – no such agreement – claims fail – no question of principle.

SUMMARY DISMISSAL – abuse of process – Anshun estoppel – plaintiff unsuccessful in probate proceedings – failed to show testator knew and approved of will making plaintiff sole beneficiary – defendant’s employed solicitor drafted and supervised execution of will – alleged defendant’s failures meant plaintiff lacked evidence to prove will approved – attempt to relitigate probate proceedings – statement of claim struck out

CIVIL PROCEDURE – Court of Appeal – Stay of orders for payment out of funds in Court – Where funds represent purchase money of real property – Whether judgment creditor entitled to payment out orders – Where outstanding claim to funds by second applicant – Where such claim not without merits – Stay granted – Stay conditional upon formal undertakings as to damages by applicants CIVIL PROCEDURE – Court of Appeal – Stay of costs orders – Where application out of time – Where no sufficient prospects of success demonstrated – Stay refused

APPEALS — Leave to appeal — Application arising from decision of the Appeal Panel of the NSW Civil and Administrative Tribunal — Appeal confined to a question of law — No question of law identified such as to warrant a grant of leave

CONTRACTS — Termination — Breach of term – Plaintiff and Defendant entered into an agreement concerning the rezoning and redevelopment of a property owned by the Defendant - the Defendant (on its case) terminated or (on the Plaintiff’s case) purported to terminate the agreement on the basis of breach of a clause requiring the Plaintiff to notify the Defendant if there is a “change in control including a change in the majority shareholding of [the Plaintiff] or its parent company without [the Defendant’s] approval not to be unreasonably withheld” – in September 2020 the sole shareholder (and sole director) transferred all of his shares to three different companies – consent was not sought prior to the transfer of shares or the appointment of a new director – the Plaintiff contended the Defendant was not entitled to terminate the agreement as on the proper construction of the clause it was not required to notify the Defendant of the change – the Court considered the three alternative constructions of the change in control clause advanced by the Plaintiff – the Court held the requirements of the clause were met and that the change in the majority shareholders without approval entitled the Defendant to terminate. CONTRACTS — Remedies — Liquidated damages — Penalty – in the alternative the Plaintiff contended the change in control clause constitutes a penalty – consideration of whether the provision is a primary or secondary obligation – whether the purpose of the clause was punish the borrower for breach then compel performance – consideration of the principles of Kay v Playup Australia Pty Ltd [2020] NSWCA 33 and Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 and the predominant purpose of the clause – the Court held the change in control clause was not a penalty. CONTRACTS — Termination — Relief against forfeiture – the Plaintiff contended that, if the Defendant was found to be have been entitled to terminate the contract, it should be granted relief against forfeiture – issue of whether the remedy is available in respect of a contractual breach which does not involve a proprietary interest – whilst there were significant consequences for termination for breach, the Court did not find the Defendant’s conduct was unconscientious or unconscionable – the Court held no relief against forfeiture should be granted.

CORPORATIONS — deed of company arrangement — scope of power under s 90-15 of the Insolvency Practice Schedule — application for orders to facilitate the deregistration of the company without any intervening winding up — orders refused CORPORATIONS — deed of company arrangement — orders terminating the deed of company arrangement — orders under s 447A of the Corporations Act 2001 (Cth) modifying the operation of the winding up regime created by s 446AA in relation to reporting to creditors CORPORATIONS — deed of company arrangement — remuneration of deed administrator – where the remuneration claimed exceeds the total creditors’ claims

HIGH RISK TERRORISM OFFENDER – Extended supervision order (ESO) – Convicted NSW terrorism activity offender subject to ESO – Conditions to be imposed under the ESO

ADMINISTRATIVE LAW – judicial review – certificate under s 11 of Farm Debt Mediation Act 1994 (NSW) – whether judicial review available CONTRACT – construction and interpretation of trust deed – express and implied terms – whether trust deed had an express power of unilateral retirement – whether trust deed had a lacuna to be filled by implying a power of unilateral retirement MORTGAGES AND SECURITIES – debt owed under financial facilities – when liability for debt incurred – whether liability for debt only arises once debt becomes payable MORTGAGES AND SECURITIES – proceedings for recovery of a debt secured by a mortgage – Farm Debt Mediation Act 1994 (NSW) – whether mortgagor was the only relevant “farmer” – whether a “satisfactory mediation” was undertaken for the purpose of s 11 MORTGAGES AND SECURITIES – proceedings for recovery of a debt secured by a mortgage – Farm Debt Mediation Act 1994 (NSW) – what constitutes “enforcement action” under s 10 – whether bank enforcing debt owed under financial facilities constituted “enforcement action”

SUCCESSION – family provision – claim by alleged long-term partner of deceased – whether alleged partner an “eligible person” – whether de facto relationship, close personal relationship or dependent household member relationship – Succession Act ss 57(1)(b), (e), and (f) – requirement of “living” together and need for some common residence APPEALS – from findings of fact – findings likely affected by impressions about credibility and reliability of witnesses – whether findings “glaringly improbable” – Fox v Percy test

APPEAL – security for costs – Uniform Civil Procedure Rules 2005 (NSW) r 51.50 – “special circumstances” not established

CIVIL PROCEDURE — proceedings in Equity Division dismissed by first judge — application to second judge to set aside dismissal — application refused as in substance simply an attempt to reargue first decision — leave to appeal against second decision refused

NEGLIGENCE — medical negligence — breach of duty — whether failure to advise the appellant that it was essential and urgent to organise orthopaedic review of injured shoulder constituted breach NEGLIGENCE — medical negligence — peer professional opinion – Civil Liability Act 2002 (NSW) s 5O – whether the respondents acted in a manner that was widely accepted by peer professional opinion as competent professional practice NEGLIGENCE — medical negligence — causation — factual causation — whether it was more probable than not that the appellant would have had a better outcome but for the negligence – whether the appellant would have consulted an orthopaedic surgeon – whether the appellant would have undergone surgery prior to her shoulder injury becoming inoperable

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant found guilty of one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether the sentencing judge erred in his findings as to the applicant’s involvement in the offending – Whether the sentencing judge was restricted to taking into account those acts of the applicant which centred upon the actual manufacturing process – Sentencing judge entitled to have regard to all acts undertaken in pursuit of the joint criminal enterprise when assessing the applicant’s role CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant found guilty of one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether the applicant had a justifiable sense of grievance having regard to the sentence imposed on his co-offender – Where co-offender had pleaded guilty to the same offence in circumstances where the applicant had elected to go to trial – Where there were a series of factors which distinguished the respective subjective cases including significant injuries sustained by the co-offender which amounted to extra-curial punishment – Significance of those injuries not reduced by the fact that they were sustained in the course of the offending – No unjustified disparity in the respective sentences imposed – No justifiable sense of grievance established CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant found guilty of one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether sentence manifestly excessive – Significant role played by applicant – Unremarkable subjective case – Serious offending – Need for general deterrence – Sentence not manifestly excessive

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether the applicant’s sentence was manifestly excessive – Serious offending – Substantial maximum penalty – Significant role played by the offender – Necessity for any sentence to reflect principles of general deterrence – Sentence not manifestly excessive CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Parity principle – Whether the applicant had a justifiable sense of grievance in light of the sentence imposed upon co-offender – Where the applicant was found by the sentencing judge to have been slightly less involved than his co-offender – Where the applicant suffered significant injuries as a consequence of an explosion during the course of the offending – Where those injuries constituted extra-curial punishment – Where those injuries would render the applicant’s period in custody more onerous – Other differentiating factors between the applicant’s subjective case and that of his co-offender – Applicant found to be remorseful and to have good prospects of rehabilitation – No such findings made in the case of the co-offender – Leave to appeal granted – Appeal allowed – Applicant re-sentenced

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Fraud, misrepresentation or suppressions of material fact – the Plaintiff and Defendants are siblings who disputed the ownership of a Property – in 2019 the Court held that the Plaintiff has a 40% interest in the Property which is registered in the name of the Defendant – the Defendant sought by way of Notice of Motion to have principal judgment and orders set aside and stay of an enforcement action and, in effect, of the costs assessment – where an application has been made to the Court of Appeal in respect of the same principal judgment and where a date to hear an application to extend the time for lodgement of an appeal has been set – the Defendant alleged fraud and “misconducts”, that there was no evidence to support the Court’s decision and made allegations against Plaintiff’s legal representatives – where the Defendant is self-represented – discussion of the requirements for a claim that a judgment has been obtained by fraud – the Court held that the Defendant’s Notice of Motion be dismissed and that it should not have been advanced by him COSTS — Costs assessment — Procedure – where application for leave filed - an undertaking was made by the Plaintiff to the Defendant to take steps to not sell the Property or otherwise enforce the costs order prior to the determination by the Court of Appeal of the Defendant’s application – the Court held that the party who has obtained a costs order should not be precluded from embarking upon having costs assessed prior to the hearing of an appeal or application to extend the time for the lodgement of an appeal, notwithstanding the risk that the costs order may be set aside and that there ought be no stay in respect of the costs assessment process (as opposed to enforcement)

SUCCESSION — Contested probate – Alleged lack of testamentary capacity - Lack of knowledge and approval - Suspicious circumstances - Whether deceased knew and approved the contents of the 2017 Will - Whether onus on the propounders of the 2017 Will has been discharged SUCCESSION - FAMILY PROVISION - Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 by Plaintiff - Claim by adult grandchild of the deceased - Whether wholly or partly dependent upon deceased at any particular time - Whether factors warranting the making of the application - Lack of any contact with the Plaintiff for some years - Limited telephone contact but it stopped about 9 years before death of the deceased - Some provision made for Plaintiff in the Will - Whether adequate and proper provision not made in the Will of the deceased for the Plaintiff and, if not, the nature and quantum of the provision to be made for her - Claim for relief dismissed

SUCCESSION – Family Provision – Claim by adult child – Deceased and former wife were legal guardians of plaintiff – No significant contact between plaintiff and deceased for 26 years – Whole estate left to RSPCA

EQUITY — Equitable remedies — Injunctions — Property sold pursuant to a purported first mortgage on the mistaken assumption that the mortgage secured amounts advanced — Proceeds of the sale of the property paid into Court — Previous hearing in this Court on a separate question, the outcome of which was that the purported first mortgage did not secure the amounts advanced — Agreement reached by the parties prior to the hearing of the separate question identifying to whom the proceeds of the sale of the property were to be paid following the Court’s judgment in respect of the separate question — In light of the Court’s judgment on the separate question, pursuant to the parties’ agreement, the amounts held in Court were to be paid to the former registered proprietor of the property — New claims made pursuant to a purported second mortgage — Purported second mortgagees sought an interlocutory injunction requiring the former registered proprietor to place the proceeds of sale of the property in a bank account and restraining the former registered proprietor from encumbering or making any withdrawal or transfer from that account — Held: The undertaking proffered by the Applicants on the Motion was ineffective — Consideration of the relative strengths and weaknesses of the parties respective claims and defences — Applicants did not have a strong case on estoppel and the Respondents had, at the very least, reasonable prospects on their case that the second mortgagees could not resile from their agreement in respect of the funds — Proceeds of sale of the property to be released to the former registered proprietor of the property, with a requirement that it give the Applicants on the Motion 14 days’ notice of its intention to disburse those funds to its unitholders

PRIVILEGE – Rulings on claims for privilege – No issue of principle

SUCCESSION — Contested probate — Testamentary capacity — Whether the deceased understood the extent of her estate of which she was disposing at the time she executed a will. SUCCESSION — Administration of estates — Whether defendant should bear liability for monies paid out for a discharge of mortgage and equitable charge on the title to the estate property — Whether defendant is required to account for monies received as an insurance payout for storm damage to property — Whether defendant is accountable for net rent receipts for letting out that part of the property formerly occupied by the deceased for the period before the deceased’s death as well as for the period after her death. SUCCESSION — Family provision — Claim by adult daughter – Further consideration of plaintiff’s claim reserved pending determination of size of deceased’s estate.

CONTRACT - damages - claim for consequential loss - construction works caused damage to neighbour’s land - claim for lost rent - trial judge found apartments unlettable in light of damage to stairway - finding based on evidence of landlord and letting agent - no reference in reasons to unchallenged engineering evidence that stairway safe - whether reasons of trial judge inadequate - inutility of inadequate reasons as a ground where appeal is by way of rehearing - whether trial judge misused evidence admitted on limited basis - no error made out APPEALS - requirement of leave - whether appellants required leave for separate challenge to costs order based on rejection of Calderbank offer in circumstances where there was an appeal as of right - construction of “an appeal from a judgment or order as to costs only” in District Court Act 1973 (NSW), s 127(2)(b) - history of s 127(2)(b) and s 101(2)(c) of Supreme Court Act 1970 (NSW) - history of United Kingdom antecedents - appellants entitled to challenge special costs order as of right COSTS - Calderbank letter - whether error in finding that appellants had unreasonably rejected offer - significance of factual error in letter - significance of offer being rejected before service of all evidence - no error made out

LAND LAW – Adverse possession – Actual possession – Old system title – Conversion to Torrens title – Limited title – Indefeasibility of title – Exceptions to indefeasibility – Where successful claim at trial in respect of adverse possession of small portion of a ‘dunny lane’ commencing before creation of limited folio – Whether statutory possessory application over Torrens title land able to be made – Alternatively, whether adverse possession claims preserved at common law by reason of possession for any length of time commencing prior to creation of folio – Whether wrong description of parcel or boundaries in circumstances where adverse possessory claim inchoate but not crystallised at time of conversion – Appeal dismissed LIMITATION OF ACTIONS – Actions to recover land – Adverse possession – Interaction of Limitation Act 1969 (NSW), ss 27 and 65, with Real Property Act 1900 (NSW), s 45C STATUTORY INTERPRETATION – Interpretation of Real Property Act 1900 (NSW) – Extrinsic materials – Explanatory memoranda and notes – Legislative history – Registrar-General’s guidelines – Second reading speeches MORTGAGES AND SECURITIES – Mortgages – Duties, rights and remedies of mortgagee – Right to notice of proceedings in which orders might be made affecting mortgagee’s interest – Where no notice given and no application by mortgagee to set aside orders below – Where application may not succeed – Where if successful, ultimate result unlikely to be different – Where impact on value of mortgagee’s security likely de minimis – Absence of notice not decisive of appeal APPEALS – Leave to appeal – Whether leave required – Monetary threshold – Whether threshold denotes value of whole parcel of land or disputed portion only – Where questions of principle and public importance as to Torrens system also raised – Leave granted

APPEAL – criminal appeal – sentencing – firearms offences – discount for assistance – whether sentencing judge misled as to significance of assistance and risks incurred – alleged incompetence of counsel

SENTENCING – appeal against sentence – where applicant pleaded guilty to offence of attempting to possess a border controlled drug – where Crown relied on facts which it said proved applicant was running a drug importation operation – where sentencing judge made findings that applicant was running the collection phase of a drug importation operation – whether sentencing judge impermissibly took into account the applicant’s complicity in importation by way of aggravation

PRACTICE AND PROCEDURE – High Risk Offender – Late tender of an affidavit – Evidence relevant to the defendant’s state of mind under stress – Delay – Affidavit admitted

CIVIL PROCEDURE – Subpoenas – Objection to production of documents – Client legal privilege EVIDENCE – Privileges – Client legal privilege – Waiver

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Residential building work — Consequences of failure to obtain contractor licence and insurance — Where the owner-builder defendant pleaded that the Act barred the plaintiff from being entitled to recover any money under a deed in respect of the residential building works because he did not have a contractor licence or insurance as required by the Act — Where the Court found that the Act did not prohibit the plaintiff from enforcing the deed if it was enforceable or from obtaining proper restitution if the deed was not unenforceable CONTRACTS — Remedies — Liquidated damages — Penalty — Where the defendant claimed that a term of the deed was a penalty and therefore unenforceable — Where the Court found that the provision was not a penalty because it could not properly be characterised as having the function of inducing performance of another provision of the deed CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — Unjust — Where the plaintiff sought to enforce a deed of acknowledgement of debt — Where there was a material inequality of bargaining power between the plaintiff and defendant — Where the plaintiff exercised unfair pressure or unfair tactics in causing the defendant to enter into the deed — Where the Court found that provisions of the deed were unjust at the time the deed was entered into within the meaning of s 7 of the Act EQUITY — Equitable remedies — Restitution — Contract unenforceable — Where the plaintiff claimed in the alternative that the defendant held the property on constructive trust in favour of the plaintiff in proportion to the plaintiff’s contributions to the renovation of the property — Where there was no joint endeavour between the parties in the sense of Muschinski v Dodds — Where the Court found that the plaintiff was not entitled to an equitable interest in the property on the basis of a partial constructive trust EQUITY — Unconscionable conduct — Special disability or disadvantage — Whether unconscientious advantage taken — Where the defendant claimed that her signature to a deed was the product of duress or undue influence or unconscionability, and that she signed the deed in reliance upon a representation by the plaintiff — Where the Court found that there was no relationship of influence between the plaintiff and defendant to establish undue influence — Where the Court found that the deed should be set aside in equity on the ground that it was procured by the plaintiff taking unconscionable advantage of the defendant’s special disadvantage LAND LAW — Caveats — Caveatable interest — Where the defendant claimed that a deed executed by her did not grant a charge over the property in favour of the plaintiff to secure the payment of monies under the deed so that the plaintiff did not have a caveatable interest to support the caveat that he lodged — Where the Court found that the defendant’s consent to the lodgement of the caveat demonstrated an intention that a charge would be created over the property by the lodgement RESTITUTION — Nature of restitutionary liability — Unjust enrichment — At the plaintiff’s expense — Where the plaintiff’s claim for the enforcement of a deed of acknowledgment of debt failed — Where the defendant disputed the amount claimed by the plaintiff — Where the defendant was not given an opportunity to verify the amount claimed — Where the plaintiff failed to provide proof at the hearing for the amount claimed — Where the defendant should not in principle enjoy the whole benefit of the renovation works for nothing — Where the Court found that the plaintiff may be entitled to restitution from the defendant for the reasonable costs of the residential building work done and materials supplied, and the value that his participation in the renovation added to the property

OCCUPATIONS — Legal practitioners — Application for an order pursuant to s 472(1)(b) of the Legal Profession Uniform Law (NSW) that the defendant deliver up all documents it holds which relate to the plaintiffs — Whether a valid authority for delivery up of the documents had been received — Meaning of “information” in the context of the authorities CORPORATIONS — Formalities — Whether, by reference to their articles of association, the companies could authorise the defendant to deliver up the documents — Gathering of directors for the purpose of authorising the delivery up of the companies’ information constituted a meeting for the purposes of the articles of association of the companies — Sole director entitled to appoint a director to fill the vacancy left by a director who became incapable — Resolution passed by sole director under s 248B of the Corporations Act 2001 (Cth) AGENCY — Duties of solicitor to client — Awareness of what is required of a solicitor as a fiduciary — A solicitor is bound to act in accordance with the instructions of the companies — The companies acted through their directors acting collectively as the board of each company CONTRACTS — Parties — Mental capacity to sign authorities and instruct new solicitors — Testamentary capacity — Reasonable steps taken by solicitors to ascertain capacity

CIVIL PROCEDURE – service outside Australia –plaintiffs sue on tort of intentional infliction of economic harm using unlawful means – unlawful means said to be registering trademarks in China contrary to Trademark Law of China – individual defendant resident in NSW and personally served –whether leave required to serve originating process on Hong Kong company – damage sustained in Australia – Hong Kong company a proper party – leave not required. PRIVATE INTERNATIONAL LAW – whether clearly inappropriate forum – trademark litigation on foot in China – territorial nature of intellectual property rights – separate proceedings will need to be commenced in China to recover compensation – lay witnesses in NSW – damage in NSW – foreign law – proceedings in China do not include all parties – whether insufficient prospects of success in Australia – whether abuse of process given earlier Hong Kong proceedings – proceedings temporarily stayed pending finalisation of trademark determination in China.

ADMINISTRATIVE LAW – Whether reviewable error of law – Error of law on the face of the record – Decision of a claims assessor TRAFFIC LAW AND TRANSPORT – Traffic Law – Motor accident legislation – Application of s 3.37 Motor Accident Injuries Act 2017 (NSW)

CONSUMER LAW — Misleading or deceptive conduct — Reliance upon misleading representations — Representation as to profit — Representation as to visa application. CORPORATIONS — Members’ rights and remedies — Oppression — Where director’s conduct amounted to “commercial unfairness”. EQUITY — Fiduciary duties — Breach — Rule in Barnes v Addy — Knowing involvement — Where director caused company to purchase asset from company controlled by his spouse — Whether relevant knowledge can be inferred — Whether knowledge can be imputed to company controlled by director’s spouse. EQUITY — Fiduciary duties — Conflict of interest and duty — Where director caused company to purchase asset from company controlled by his spouse — Inadequate disclosure of material facts. RESTITUTION — Ineffective transactions — General principles — Restitution of money paid — Failure of consideration — Total failure rule — Whether total failure of consideration established.

EVIDENCE – Expert evidence – Appointment of joint expert agreed upon by the parties – Plaintiff obtains report from another expert following receipt of joint expert report - Differences in opinion between appointed joint expert and proposed adversarial expert – Whether leave to adduce evidence from another expert on issue arising in proceedings if a parties' joint expert has been engaged – UCPR r 31.44 CIVIL PROCEDURE – Suppression and non-publication of the whole of contents of the adversarial expert report — Whether necessary to prevent disclosure of the contents and conclusions of the adversarial report – Whether order should be made until conclusion of the substantive proceedings and delivery of reasons for judgment delivered or until further order

CIVIL PROCEDURE — Stay of proceedings — Pending appeal

COSTS – Failed application by the defendant for an order that proceedings no longer continue as a class action – Heard together with an application for Merck orders – Declassing application fails – Court makes Merck orders identifying common questions – Whether the defendant should pay the costs of the declassing application – HELD – It should

CRIMINAL LAW – jury trial – sick juror – application to discharge juror – lost days – whether further delays would occur – application refused

INTERIM INJUNCTION – mandatory injunction – defendant operates water treatment facility for mines – defendant obliged to treat water regardless of quality – dispute as to water quality – dispute as to work on holding pond – defendant stores disputed water in disputed pond – defendant refuses to treat disputed water – no capacity to take more water – water from mine stopped – mines begin to flood – “step-in” notice issued – whether Court should determine question of law on interim application – principles at [67] – decline to decide complex question on duty judge application – serious question to be tried – balance of convenience favours making orders to treat water.

NOTICES TO PRODUCE – application to set aside one category of documents in notice to produce – whether legitimate forensic purpose – whether documents the subject of client legal privilege – whether privilege lost by disclosure of substance of legal advice or conduct inconsistent with the maintenance of confidentiality in the communications

CRIMINAL PROCEDURE – Application for Inquiry into Sentence – Crimes (Appeal and Review Act) 2001, Part 7 – plea of guilty – sentence imposed – appeal to CCA – matters fully ventilated – discretion under s 79(3) of the Act – no doubt or question appears to Court - refusal to consider or further deal with matter

APPEAL – application for leave to appeal – no issue of principle or question of public importance identified – where amount in issue substantially less than statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW)

APPEALS – leave to appeal – applicant’s notice of motion dismissed by Registrar – whether primary judge in error in refusing to set aside that dismissal – whether applicant’s amended summons was taken to be dismissed by operation of the Vexatious Proceedings Act – relevant vexatious proceedings order later set aside on appeal – arguable basis for challenging those orders demonstrated – leave to appeal granted on a limited basis COURTS AND JUDGES – bias – application for recusal – ground of apprehended bias – applicant unable to identify any reason why a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues arising on the application – judge declined to recuse herself

APPEALS – leave to appeal – applicant alleged assaults and batteries perpetrated on her by respondents – primary judge rejected applicant’s evidence and dismissed claims – need for applicant to show primary judge’s findings glaringly improbable or contrary to compelling inferences – no arguable basis for concluding applicant had a prospect of success on appeal if leave were granted COURTS AND JUDGES – bias – application for recusal – ground of apprehended bias – judge made adverse ruling against applicant in previous litigation – applicant unable to identify why that might cause a reasonable bystander to apprehend that the judge might not bring an impartial mind to the resolution of the issues – judge declined to recuse himself

CRIMINAL LAW – Appeal against conviction – Juries – Directions to jury – Where applicant was found guilty by a jury of robbery in company and attempting to take and drive a vehicle without consent – Where Crown case was based upon a joint criminal enterprise between the applicant and one other – Where trial judge provided written directions to the jury regarding the elements of each offence in the form of question trails – Where jury retired to the jury room to read the question trails after they were provided – No oral directions subsequently given to the jury in respect of the elements of the offences set out the question trails – No substantive reference to the question trails in the summing-up by the trial judge – Necessity for oral directions to be given – No issue taken by trial counsel – Miscarriage of justice – Error established PRACTICE AND PROCEDURE – Juries – Observations as to the practice of providing written directions to the jury – General necessity for oral directions to accompany written directions – Necessity for a trial judge to emphasise that written directions are supplementary to and not a substitute for oral directions – Observations as to the practice of allowing the jury to retire to the jury room part way through the summing-up to read the written directions for themselves – Practice not one to be encouraged – Necessity to ensure that the jury comprehend directions – Necessity to ensure that a trial be transparent and conducted in public CRIMINAL LAW – Appeal against conviction – Juries – Summing-up of trial judge – Whether trial judge adequately put the defence case to the jury – Where counsel for the accused made a number of substantive submissions to the jury regarding aspects of the evidence – Defence case not adequately put to the jury even giving full weight to the fact that the evidence in the trial had been completed in two days and where the summing-up to the jury followed immediately upon the final address of counsel for the accused – Summary of principles regarding the obligation of a trial judge to put the defence case – No issue taken by trial counsel – Matter going to the root of the proceedings justifying a grant of leave – Miscarriage of justice – Error established

CRIME – extradition application – whether order for extradition to Western Australia should be further stayed pending finalisation of criminal proceedings in NSW – interests of justice

CIVIL PROCEDURE – Stay of proceedings – Pending appeal – Partial stay granted

CONTRACTS – declaration as to effect of terms of settlement pursuant to Civil Procedure Act 2005 (NSW), s 73 - implied terms – implied obligation of good faith – implied obligation to do all things necessary to enable each party to have the benefit of the contract – whether Court’s power under Civil Procedure Act 2005 (NSW), s 73 extends to ordering one party to indemnify another party where contract did not include any indemnity

COSTS – party/party – claim based on alleged promises about future access to property – where plaintiff did not fully articulate a claim for proprietary estoppel before oral opening submissions and defendant obtained adjournment – where plaintiff ultimately succeeded on basis of proprietary estoppel – plaintiff ordered to pay costs thrown away by reason of the adjournment – defendant ordered to pay plaintiff’s general costs of the proceedings COSTS – party/party – claim by plaintiff for rectification of instrument by removal of notation – cross-claim by defendant for rectification of instrument – claim and cross-claim dismissed – Smith v Madden (1946) 73 CLR 129 – plaintiff ordered to pay defendant’s costs apart from those solely referable to bringing cross-claim – defendant ordered to pay plaintiff’s costs solely referable to defence of cross-claim

EQUITY – contribution – co-ordinate liabilities – where company in liquidation sued former directors and auditors – where auditors seek leave to bring Cross-Claim for equitable contribution from former directors – whether liabilities co-ordinate – whether obligations of auditors and directors to company are of the same nature and extent such as to warrant claim for equitable contribution PRACTICE AND PROCEDURE – pleadings – application to amend Commercial List Response – application to bring Cross-Claim Cross-Summons seeking equitable contribution

EQUITY – pleading and particulars – plaintiff claims to be entitled to a share of the two properties by way of common intention constructive trust under Muschinski v Dodds principle – pleading and particulars – form of prayers for relief required in statement of claim – particulars of quantum of plaintiff’s contributions to alleged common venture unnecessary – interlocutory orders – plaintiff seeks to remain in occupation of one of the properties and to have proceeds of second property held pending determination of her claim – plaintiff required to give undertakings to pay interest and occupation fee if required

PARTNERSHIP — oral partnership agreement — dissolution of partnership — winding up of partnership business — taking of partnership accounts — ordinary basis or wilful default — difficulty in identifying assets and liabilities of partnership due to lack of records and conduct of partners — claim for compound interest TRUSTS — application for general administration order — alternative application for appointment of new trustee — applicable principles