Cases and authorities

CRIMINAL PROCEDURE — Withdrawal of plea — Manslaughter — Leave

DEFAMATION – determination of identity of publisher of material – material defamatory – damages awarded – need for injunctive relief – permanent injunction issued.

COMMERCIAL LIST – Procedure – Applications by plaintiff for amendment to Commercial List Statements – Certain amendments not originally, but then later opposed – No prejudice shown in granting amendments – Amendments granted – Application to amend by bringing a direct claim against a party previously only joined as a cross-defendant – Assessment of prejudice in light of fact that amendment brought not long before significant trial fixture – Amendment refused.

COSTS – solicitor acting in proceedings – client transfers instructions to new solicitor – dispute concerning handover of documents – summons claims delivery up of complete file – documents produced before hearing – whether costs order should be made against former solicitor

ENVIRONMENT AND PLANNING – development approval – variation of plans – formalities for approval of changes – whether requirement for written application – recording approval of certifying authority – notification of consent authority – effect of breach of regulations ENVIRONMENT AND PLANNING – enforcement proceedings – construction certificate – variation of development – whether construction certificate modified – whether work undertaken before approval by certifying authority – failure to notify consent authority – whether development unlawful

COSTS – no issue of principle

COSTS – application for indemnity costs – whether respondent’s opposition to motion had no reasonable prospects of success – where grounds of arguments rejected at hearing were not clearly articulated prior to hearing – application dismissed

JUDGMENTS and ORDERS – Amending, varying and setting aside – orders not manifesting intention of Court – rate of pre-judgment interest – motion dismissed.

CONTRACTS – construction – interpretation – co-location of refinery plant – owner’s obligation to make capital payments based on operator’s installation expenditure – later informal variation for further expenditure – whether effective – operator’s obligations to maintain expenditure records and submit to audit – whether complied with – expert determination of “written down value” – whether binding – whether owner entitled to leave plant behind on termination of contract – whether owner obliged to remove plant on termination of contract CONTRACTS – breach of contract – co-location of refinery plant – operator’s obligation to maintain co-located plant – whether obligation breached – whether owner’s obligation to pay tolling fees dependent on operator’s compliance – whether tolling fees already paid recoverable as damages – owner contractually entitled to remove plant – operator’s obligation to co-operate – whether obligation breached by interfering with owner’s contractors – operator’s obligation to manage refinery feedstock – whether obligation breached by mixing contaminated and non-contaminated feedstock TORTS – interference with goods – conversion – co-location of refinery plant – owner contractually entitled to remove plant – whether interference by operator with owner’s contractors would amount to conversion of plant EQUITY – equitable remedies – injunction – trespass – co-location of refinery plant – plant abandoned on land by owner after termination of contract – whether abandonment effective – whether damages an adequate remedy – mandatory injunction for removal GUARANTEE AND INDEMNITY – discharge of guarantor -– variation increasing principal’s liability to creditor – whether surety consented – whether creditor breached record-keeping duties and obligation to co-operate with principal – whether surety discharged by such breaches EVIDENCE – character evidence – tendency rule – application of rule to corporate entity – probative value

CHILD WELFARE – Care proceedings – parens patriae jurisdiction – Aboriginal young person under the parental responsibility of the Minister for all aspects except culture and religion – orders previously made authorising medical treatment and confinement of the young person as an inpatient in a medical facility for the purposes of undertaking the treatment, and later as an outpatient and for rehabilitation and recovery – young person has frequently absconded from secure premises – young person previously considered for possible admission to Sherwood House – young person is presently at large and her whereabouts have been uncertain – opportunity for admission to Sherwood House arises – whether a secure accommodation order should be made placing her at Sherwood House.

EQUITY – Trusts and trustees – Powers, duties, rights and liabilities – Indemnity of trustee – the plaintiffs and the defendant were registered proprietors as joint tenants of certain real property – the defendant held his one third interest as joint tenant in the property on trust for the plaintiffs – the property sold and the net proceeds held pending the outcome of these proceedings – pursuant to orders of the Court part of the proceeds were applied by the plaintiffs to acquire another property – the defendant incurs costs, expenses and tax liabilities as the trustee of his legal interest in the property – the maximum quantum of that indemnity in relation to the defendant’s costs and expenses are fixed – the defendant’s potential liability to capital gains tax and other taxes appears to be zero or very low – what orders should now be made with respect to the payment out of money which is held by an independent solicitor – should a cost assessment now take place or should a gross sum costs order be made – new issue raised as to whether Trustee Act 1925, s 100A may modify the amount paid out of the fund held by the independent solicitor. CIVIL PROCEDURE – Costs orders – Civil Procedure Act 2005, s 98(4)(c) – small trust estate – dispute about the quantum of costs – much of the estate already consumed by legal costs – whether a specified gross sum should be fixed instead of assessed costs.

CIVIL PROCEDURE – interim preservation – freezing orders – extension

ADMINISTRATIVE LAW – jurisdictional error – where multiple grounds propounded by the plaintiff - procedural fairness – where question about the “appropriateness” of the medical assessors - whether procedurally unfair to refer to medical literature not provided to the plaintiff – whether plaintiff was given a reasonable opportunity to respond to clinical inconsistencies – where question of failure to respond to substantial and clearly articulated arguments – whether Review Panel asked itself the correct test of causation – where jurisdictional error occasioned

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, approve a proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied CORPORATIONS – Managed investments – Judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – Whether to convene meetings of unitholders – Whether responsible entity would be justified in treating consequential constitution amendments as within power.

CRIME – mental illness – murder and attempted murder – accused killed grandmother and a member of the public – accused stabbed his grandfather – pleaded not guilty by reason of mental illness – Crown and accused’s psychiatrists diagnose schizophrenia – psychiatrist raised possibility of drug induced psychosis – Crown put accused to proof but later conceded defence made out – concession correctly made – mental illness defence proven

CIVIL PROCEDURE – application to set aside notices to produce by court appointed receivers authorised to defend certain proceedings – where first defendant seeks production of legal advice provided to receivers during their conduct of the proceedings – whether notices to produce specified the documents to be produced – whether the legal advice is likely to materially assist on the Court’s determination of the receivers’ remuneration – whether references to legal advice in receivers’ affidavit amounts to waiver of legal professional privilege

CIVIL PROCEDURE – Admissions – Admission of facts – Withdrawal of admissions – Uniform Civil Procedure Rules 2005, r 12.6 - defendant admits in his defence the terms of a loan made to him – defendant says he did not understand the allegation in the statement of claim to which his pleading was an answer – defendant brings motion for leave to withdraw the admission – plaintiff opposes withdrawal of the admission – defendant’s lack of understanding challenged – evidence has not yet been filed in the proceedings – whether leave should be granted to withdraw the admission.

COSTS – amendment application and application for leave pursuant to s 237 of the Corporations Act 2001 (Cth) – differing orders as to costs as to several issues.

COSTS – Bases of quantification – mixed result in interlocutory application

SUCCESSION - Administration of estates – the plaintiffs are executors of an estate – the defendant is a beneficiary of the estate – the plaintiffs and the defendant settled family provision litigation making consent orders for the sale of certain estate real property to the defendant – upon the expiry of orders restraining the plaintiffs from selling the subject real property, the plaintiffs were at liberty to sell the property on the open market – whether any orders should be made requiring the plaintiffs to sell the real estate to the defendant, and if so on what terms – what other ancillary orders should be made in performance of the terms of settlement and in the administration of the estate.

HIGH RISK OFFENDERS – Continuing detention orders – Unacceptable risk of committing a serious offence conceded – whether possible to make orders in terms permitting transfer to the Forensic Hospital – term of the order impacted in part by reports under s 19 of the Act not being provided to detainees or their lawyers

EVIDENCE — tendency evidence — criminal proceedings — accused charged with murder — tendency rule — whether the evidence has significant probative value — whether unfair prejudice is suffered by the accused— tendency evidence combined with other evidence to be adduced at trial has significant probative value — directions to be given regarding the use of tendency evidence at trial — application granted with exceptions

CRIMINAL PROCEDURE – trial – application to vacate trial date – where trial of four co-accused – where separate trial ordered for unrepresented accused – where evidence of forensic psychiatrists is that unrepresented accused incapable of adequately conducting his defence – where Crown consents to application to vacate trial date – order made

CONTRACTS – Construction – Interpretation of Notes Deed Poll and related terms and conditions – whether the transfer of Notes by first defendant to second defendant was a Permitted Transfer – whether first defendant was obliged to offer the right to purchase the notes to second to fourth plaintiffs - held transfer was a Permitted Transfer

EQUITY – Trusts and trustees – Where the Plaintiffs do not know whether they are beneficiaries or discretionary objects, or whether they are within a class of beneficiaries or discretionary objects, or whether they have an interest in the property subject to trusts – Doubtful beneficiaries – Whether entitled to access to trust documents – Where the Defendants read no evidence on the application for access to documents – Whether inferences should be drawn from the failure to give evidence – Whether Plaintiffs’ evidence sufficient to establish a prima facie case – Whether Plaintiffs entitled to access documents.

EVIDENCE – tendency evidence – criminal proceedings – murder – self-defence - tendency evidence concerning the deceased – evidence that deceased acted violently when under the influence of drugs – whether of significant probative value – whether link needs to be shown between facts concerning the defence and the prior behaviour of deceased – whether probative value outweighed by unfair prejudice

PRACTICE AND PROCEDURE – appeal – stay – medical practitioner – finding of professional misconduct – order suspending registration – period of suspension likely to expire before appeal determined – appeal reasonably arguable – misconduct involved single incident three years before order made – order the suspension not commence for 30 days – no evidence of immediate risk to patients or parents

DRIVER’S LICENSING – withdrawal of exemption from licensing for interstate driver – whether Local Court may vary decision of Plaintiff to withdraw exemption so as to permit driving for limited purposes.

ADMINISTRATIVE REVIEW – jurisdictional error – where the Local Court exceeded its statutory power – where the Local Court did not have power to deal with the offence summarily – where order in the nature of certiorari and mandamus made

EQUITY — Fiduciary duties — Breach — Rule in Barnes v Addy — Knowledge requirements — Where mother acted in breach of fiduciary duty — Receipts and assistance by children EQUITY — Vitiating factors — Undue influence — Unconscionable dealing — Where transactions undertaken by son — Mental incapacity of father AGENCY — Power of attorney — Effectiveness of — As part of transaction — Where transactions unauthorised by power — Spouse acting as enduring attorney

INTERLOCUTORY INJUNCTION – application to restrain dealing with real property – whether registered proprietor subject to equitable claim of which it had no notice – whether indefeasible title of registered proprietor vulnerable as a volunteer – whether serious question to be tried

COSTS — Party/Party — General rule that costs follow the event — Interlocutory proceedings — Where multiplicity of issues and partial success

COSTS — Party/Party — Costs orders in interlocutory proceedings — Wasted costs jurisdiction — Indemnity basis

COSTS – Indemnity costs – an application for indemnity costs is brought by the successful party following judgment delivered on 24 September 2020 – whether indemnity costs should be awarded on the basis of that judgment’s findings of significant misconduct against the unsuccessful parties.

NEGLIGENCE — Workplace accident — Plaintiff employed as security guard performing duties at premises of occupier defendant — Alleged to have fallen in ditch and sustained injury — Whether accident occurred as maintained — Whether reasonable precautions taken — Causation — Whether contributory negligence s— Whether any reduction for employer’s liability pursuant to Workers Compensation Act 1987 (NSW) s 151Z — Damages

LAND LAW — Caveats — Extension of operation of caveat — Whether caveator’s claim has or may have substance — Evidence of existence of constructive trust on principles of Baumgartner v Baumgartner

CIVIL PROCEDURE — Stay of proceedings — Pending appeal — Whether proper basis for a stay

CIVIL PROCEDURE — Interim preservation — Freezing orders — Extension CIVIL PROCEDURE — Implied undertakings — Release from — Special circumstances

CRIME — sentencing — murder — following pleas of guilty — where some facts of the offending are disputed — where disputed facts rest on the evidence of one witness — consideration of Murray direction — where reliability issues of witness — objective seriousness of offending — use of L-bar inflicting blunt force injuries — body dumped in forest — where offenders mutilated body — subjective factors — consideration of Bugmy principles — where finding made as to special circumstances

CIVIL PROCEDURE — Application for witness to give evidence by audio-visual link — Whether in the interests of justice to make order — Where witness giving evidence in first defendant’s case rather than in his capacity as second defendant

CIVIL PROCEDURE — Interim preservation — Freezing orders — Ex parte interlocutory application — Where unresponsive judgment debtor — Where possibility of attempt to dissipate funds from sale of property

CRIME — Serious crime prevention orders — Where consent orders agreed between parties — Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) s 5(1) — Evidence of escalating violence between Alameddine and Hamzy organised crime networks — Orders necessary to protect public by disrupting involvement in serious crime related activity — Discretion

TORTS – personal injury – assessment of damage – infant head and brain injury – damages awarded – payment into Court

CORPORATIONS — Take-over offers — Where various deficiencies and non-compliance asserted in relation to defeating conditions and otherwise CORPORATIONS — Shares — Acquisition of shares — Operation of s 650G and remedial consequences CIVIL PROCEDURE — Jurisdiction — Inherent jurisdiction — Abuse of process — Where earlier proceedings and processes

EXECUTORS – the two executors of the estate of their late mother cannot agree upon the form of service for her cremation – discussions have been unable to reconcile their differences – the deceased died approximately three weeks ago – insufficient time or opportunity during the Court vacation to appoint fresh executors or administrators to decide upon the form of service for the deceased’s cremation – the Court is asked to intervene.

ADMINISTRATIVE LAW — Whether reviewable error of law — Jurisdictional error — Error of law on the face of the record — Injured person assessed for degree of permanent impairment under Motor Accidents Compensation Act 1999 (NSW) — Whether assessor failed to give reasons — "Nguyen principle" — Whether assessor failed to assess in accordance with the guidelines — Whether assessor bound to raise inconsistencies observed in earlier medico-legal reports — Where assessor observed no inconsistency — Whether denial of procedural fairness — Whether proper officer of the Authority applied the incorrect statutory test — Extension of time

ANIMALS — prevention of cruelty to animals — private prosecution under Prevention of Cruelty to Animals Act — guilty verdict — charges subsequently dismissed under Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 TORTS — malicious prosecution — malicious criminal proceedings — elements of tort — application for summary dismissal — whether s 32 dismissal constitutes a termination of proceedings in favour of a plaintiff

BUILDING AND CONSTRUCTION – Contract – Home Building Act 1989 (NSW) – Statutory warranties – whether contract confined to negotiated scope of works or expanded to include other works by virtue of the implied statutory warranties – whether building in breach of statutory warranties CONTRACTS – Remedies – Damages – where loss claimed would have been suffered if contract had been properly performed

APPEALS – leave to appeal – utility – where substantive dispute concerns Greens list of nominees for election already held – whether any utility in considering whether list of nominees determined consistently with party constitution – whether dispute likely to recur – whether any errors sufficiently arguable to justify leave COSTS – party/party – exceptions to general rule that costs follow the event – public interest – where proceedings had a “public interest” element – whether arguable error in primary judge declining to make no order as to costs COSTS – party/party – multiple parties – whether arguable error in allowing multiple sets of costs to defendants with similar interests

CIVIL PROCEDURE — Separate determination of questions — Whether appropriate — Where defence pleads action statute-barred — Where separate determination of discrete issue likely to bring end to proceedings or narrow issues in dispute