Cases and authorities

CIVIL PROCEDURE – where plaintiff injured after diving from houseboat into shallow water – where proceedings commenced against owner of houseboat – where defendant owner impecunious – where plaintiff files motion to join insurers to proceedings – where leave to proceed against proposed defendants refused CIVIL PROCEDURE – proposed second defendant – home and contents insurer – whether arguable claim of failure to warn of obvious risk – whether policy responds to plaintiff’s claim – where incident occurred away from home or site to which policy responds – where policy contains exclusion for liability arising from use of watercraft – whether houseboat used as watercraft CIVIL PROCEDURE – proposed third defendant – business insurer – whether houseboat covered under policy – whether plaintiff’s injuries connected to sand extraction business – where exclusion for watercraft exceeding 10 metres in length – where houseboat over 10 metres

COSTS - Where proceedings dismissed - Where no determination on the merits - Default provision for costs in UCPR r 42.20 - Whether to depart from ordinary position – Where Plaintiff put on notice of grounds of opposition to winding up COSTS — Party/Party — Exceptions to general rule that costs follow the event — Company not wound up only because of Defendant’s actions after proceedings commenced — Calderbank offers — Not unreasonable not to accept offer — Grounds of opposition to winding up asserted but not self-evident from evidence available to Plaintiff

CIVIL PROCEDURE – ex parte proceedings – human tissue – application by spouse for declaration of possession of sperm – application for sperm retrieval – jurisdiction and power of court to declare extraction lawful – oral consent provided by coroner – order made authorising extraction and retention of sample by medical practitioner pending further order of the Court

PRACTICE AND PROCEDURE – Application for security for costs – Where applicant failed to file the necessary evidence detailing the costs that would be incurred – Where applicant asserted that he had “not yet engaged full legal representation" – Failure to explain the delay in bringing the application – Application dismissed PRACTICE AND PROCEDURE – Application to set aside default judgment – Failure to adequately explain the delay of eleven months in bringing the application – Failure to establish a bona fide defence – Adverse credit findings made against the applicant – Prejudice to the plaintiff – Application to set aside default judgement dismissed

APPEALS — Leave to appeal – where applicant sought judicial review of decisions that were not the operative decisions – where primary judge found no error in original decisions – whether injustice that is reasonably clear – whether issue of principle – whether question of general public importance – application for leave to appeal dismissed

CRIMINAL LAW – murder – joint criminal enterprise - self-defence – excessive self-defence – leave to cross-examine witness under s 38 Evidence Act – question of whether witness heard a man or woman scream – whether evidence unreliable – leave refused

EQUITY — Trusts and trustees — Judicial advice

EQUITY – Equitable remedies – Injunctions – serious question to be tried – balance of convenience – plaintiff builder executes building work under a building contract with the defendant upon land owned by the defendant – plaintiff’s building work does not reach practical completion – disputes break out about allegedly defective work and the rate of completion of the work – defendant purports to terminate the contract and to exclude the builder from the site – the plaintiff commences proceedings in the NSW Civil and Administrative Tribunal (NCAT) seeking remedies under the Home Building Act 1989 – NCAT gives directions, allowing both parties access to the site with their experts to prepare for a hearing before NCAT – the defendant seeks possession of the site on the basis that the plaintiff’s license to be on the site has been terminated – whether the defendant should be let into possession – whether the parties should both be excluded from the site pending resolution of the NCAT proceedings.

EVIDENCE – Legal professional privilege – Waiver – No issue of principle

EQUITY – tracing – mixed funds used to acquire property – equitable charge – charge includes interest on traceable amount COSTS – party/party – Calderbank offer – whether rejection unreasonable – plaintiff against separately represented defendants – form of costs order

EVIDENCE – Expert opinion evidence – Opinions of medical practitioners in reports sought to be tendered in proceedings for damages arising from a workplace accident – Whether reasoning process exposed

CONVEYANCING – vendor and purchaser – whether council stormwater pipe under property would have given rise to a right of rescission under rule in Flight v Booth – whether the pipe so affected the subject matter that it might reasonably be supposed that the purchaser might not have contracted at all TORTS – negligent misstatement – breach of duty by local council issuing certificate under s 149 Environmental Planning and Assessment Act – misstatement as to council policy resolution for acquisition of easements over property – purchaser’s reliance on certificate – defences under s 43A of the Civil Liability Act and s 733 of the Local Government Act TORTS – negligent misstatement – vendor’s breach of duty in answering requisitions about existence of council stormwater pipe under property – reliance by purchaser through conveyancing solicitor – whether plaintiff would have been entitled to rescind if correct answers given TORTS – professional negligence – whether solicitor exercised reasonable care and skill in obtaining instructions for answers to requisitions – negligence not established TORTS – private nuisance by public authority – interference with use and enjoyment of land – property flooded by overland flows of stormwater – “good faith” – necessity to prove negligence of council – defence under s 733 Local Government Act 1993 – nuisance established – damages VALUATION – land – value impaired by local council stormwater pipe – necessity to create an easement and relocate pipe – necessity to alter pipe connections external to the land – difficulty and uncertainty of dealing with council

CONTRACTS – construction – whether Election Notice under Option Holder deed effective to cause plaintiffs’ options to be assigned to second defendant

CIVIL PROCEDURE – separate question – whether there should be a separate determination of the merits of the plaintiff’s claim under the Building and Construction Industry Security of Payment Act BUILDING AND CONSTRUCTION – whether by reason of s 16(4) of the Building and Construction Industry Security of Payment Act the defendant would not be able to bring a cross claim against the plaintiff

BAIL – where a detention application is brought by the Crown following a grant of bail pending appeal – jurisdiction of the Supreme Court – whether special or exceptional circumstances have been established under s 22 of the Bail Act 2013 (NSW) – relevant principles – arguability test is only enlivened upon the Court being satisfied that an additional factor of substance has been established to support the finding of special or exceptional circumstances – youth – period in custody – delay – prior bail granted – proposed grounds of appeal – assessment of merits – detention application granted

CRIMINAL LAW – Sentence – Appeal – Where applicant pleaded guilty to one count of producing child abuse material, two counts of using a child under 14 years of age to produce child abuse material and one count of possessing child abuse material – Where sentencing judge erred in applying a non-existent standard non-parole period to two of the offences – Error established – Necessity to re-sentence the applicant in the fresh exercise of the sentencing discretion – Consideration of factors relevant to sentence for this kind of offending – General deterrence and denunciation of paramount importance – Where the applicant pleaded guilty at the first available opportunity – Where the material was produced or possessed for the applicant’s own use – Where the applicant was not acting in a collaborative network of like-minded individuals – Where the offending was unsophisticated – Where the applicant’s use of children was limited to superimposing photos of the faces of two children onto images and videos – Where the offending involved a serious breach of trust – Where prospects of rehabilitation were guarded – Where there were special circumstances justifying adjustment of statutory ratio – Applicant re-sentenced

CRIME – appeals – appeal against sentence – manifest excess – accumulation – totality principle – objective seriousness of offences CRIME – appeals – appeal against sentence – whether sentencing judge erred in his treatment of the applicant’s youth – principles relevant to terrorism offences

CRIMINAL LAW – appeal against conviction – inconsistent verdicts – applicant acquitted of entry with intent to commit larceny but convicted of assault with intent to rob – whether jury’s verdicts reconcilable – applicant did in fact steal from victim's premises – open to jury to find that applicant formed intention to steal during attack on victim – appeal dismissed CRIMINAL LAW – appeal against sentence – failure to have regard to principles in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 – no reference to the case by name – extensive reference to applicant’s disadvantaged background – question one of substance rather than form – whether error in failing to backdate sentence to earlier than end of previous sentence – discretion in Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 exercised – offending committed soon after release on parole – applicant returned to custody and parole revoked – sentence imposed reflected substantial alteration of statutory ratio – series of prison infringements throughout balance of term of previous sentence – no appellable error

CRIMINAL LAW – Offences – Sentence – Appeal – Using an offensive weapon (a motor vehicle) with intent to prevent lawful apprehension – Driving a conveyance taken without the consent of the owner – Driving whilst disqualified – Driving with the presence of an illicit drug in his oral fluid – Finding by the sentencing judge that the principal offending of using an offensive weapon with intent to avoid lawful apprehension was spontaneous – Where sentencing judge concluded that this was not a mitigating factor –Error established – Necessity to re-sentence the applicant in the fresh exercise of the sentencing discretion – General deterrence of particular significance – Where prospects of rehabilitation largely dependent on drug rehabilitation – Special circumstances justifying adjustment of statutory ratio – Applicant re-sentenced

EVIDENCE — documentary evidence — tender of documents — admissibility — late service — forensic purpose for withholding

EVIDENCE — privileges — client legal privilege — litigation — waiver — loss of

EVIDENCE — relevance — expert evidence

MAREVA ORDER – alleged $3M fraud by employee – freezing order – exception for $20,000 legal expenses – related criminal proceedings – deed executed to permit sale of property with proceeds paid into Court - $726,000 paid into Court – plaintiff seeks tracing remedies – risk of injustice to plaintiff outweighs potential injustice to defendant – orders refused.

STAY – principles at [9]-[12] – judgment and costs orders in plaintiff’s favour – plaintiff has substantial assets and income – $270,000 paid into court in respect of judgment – application to set aside judgment failed – appeal – costs estimated to be $133,000 – stay granted on further $100,000 being paid into court, else payment out to plaintiff.

CRIME – confiscations – restraining order – property instrument of a serious offence – where money property held in a controlled monies account - where order also sought to take custody and control of the funds

EQUITY – Trusts and trustees – Evidence of trust – Requirement of writing in s 23C(1)(b) of the Conveyancing Act 1919 (NSW) – Where the plaintiff, being a member of the Chase family, sought a declaration that a deregistered company held certain real estate on trust for himself and other members of the family in equal shares (the father of the family having set up the trust structure in 1981) – Where no written document establishing the trust could be located and the plaintiff sought to rely on secondary evidence to prove the existence and terms of the missing trust deed – The secondary evidence included affidavit evidence of oral statements by the father as to the trust’s existence and its terms, as well as certain records of the company which indicated that the company held land on trust – Held: the secondary evidence was contradictory and unclear and did not amount to “clear and convincing proof” of the terms of the missing trust deed. The lack of proof as to the trust’s terms resulted in a lack of certainty as to the property the subject of the trust, the identity of the beneficiaries and whether the trust was fixed or discretionary, such that the Court was unable to make the declaration sought by the plaintiff. EVIDENCE – Presumptions – Presumption of regularity – The plaintiff sought to rely on the presumption of regularity to overcome the absence of a written document establishing the trust – Held: the presumption of regularity is concerned with formal requirements (such as the absence of a signature on a document), not with substantive issues of the kind that needed to be determined in these proceedings.

CONTRACT – Construction – Provision in a co-owners agreement, being one of a suite of agreements entered into for the purposes of a large construction project, requiring partition of land representing the residential component and commercial component of the project respectively between the first defendant (joint vehicle) and the second defendant, and requiring the second defendant to pay to the first defendant Expenses incurred in connection with the commercial component – whether the land partition is conditional upon or interdependent with payment of the Expenses – HELD – it is not.

HIGH RISK – Offender – Preliminary hearing – No issue that statutory preconditions to the making of an order were made out – Issues as to conditions – No point of principle

OCCUPATIONS — Legal practitioners — Qualifications and admission — Compliance certificates — Conditional admission — Appeal against defendant’s refusal to issue a compliance certificate — Where plaintiff has one outstanding academic prerequisite for admission — Whether plaintiff ought be admitted on the condition that he complete the outstanding academic prerequisite after admission CONSUMER LAW — Allegation of false representation — Claim for damages — Where claim not pleaded — Where no evidence of loss adduced — Claim not maintainable CONSTITUTIONAL LAW — Notice of constitutional matter — Freedom of interstate trade, commerce and intercourse — Whether issue is real and substantial — No real constitutional issue

INSURANCE – annual construction insurance policy – where hailstorm caused damage to residential development being constructed by plaintiff – whether one deductible payable for plaintiff’s claim for cover or whether a deductible is payable in respect of each building works contract – meaning of “one event” and “claim” – held that hailstorm was the one event that gave rise to the plaintiff’s claim and one deductible payable INSURANCE – calculation of interest under s 57 of the Insurance Contracts Act 1984 (Cth) – where defendant rejected plaintiff’s claim for cover to replace damaged tiled roofs until second day of hearing – date from which it was unreasonable for defendant to withhold payment – held that 13 month period to investigate claim and determine position was reasonable and interest payable from 29 March 2018

PRACTICE AND PROCEDURE – Separate determination – Uniform Civil Procedure Rules 2005 (NSW), r 28.2 – Application to consider liability in relation to two defendants before other issues – Where there are significant disputes of fact – Where plaintiff’s credibility is likely to be in issue both on liability and damages – Motion dismissed

NEGLIGENCE — Skiing accident — Collision on slope between plaintiff and ski instructor who was employee of defendant — Vicarious liability — Whether ski instructor was negligent — Circumstances of the collision — Reasonable precautions — Whether contributory negligence NEGLIGENCE — Dangerous recreational activity — Whether skiing is a dangerous recreational activity — Whether skiing involves a significant risk of harm — Application of statistics on incidence and nature of accidents at resort — Whether harm suffered was a result of the materialisation of an obvious risk — Characterisation of the risk asserted to be an obvious risk — Relevance of personal characteristics of plaintiff and of ski instructor NEGLIGENCE — Risk warning — Content of the risk warning — Whether risk warning sufficiently identified the risk that eventuated CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill — Effect of statutory defences under the Civil Liability Act 2002 (NSW) — Identification of services supplied to plaintiff — Whether those services not rendered with due care and skill — Where ski instructor was not providing instruction to plaintiff at time of collision — Whether s 139A of the Competition and Consumer Act 2010 (Cth) would otherwise apply to prevent voiding by s 64 of the Australian Consumer Law of the contract's exclusion of liability — Whether plaintiff suffered significant personal injury caused by reckless conduct of supplier — Meaning of "reckless conduct"

CRIMINAL LAW – application for inquiry into sentence – Part 7 of the Crimes (Appeal and Review) Act 2001 – federal offences of using a carriage service to menace, harass or offend, or doing so to procure or groom a child under the age of 16 years for sex – appeal rights exhausted – consideration of possible Xiao error – referral made

SUCCESSION – Construction and effect – testator gives to two nominated daughters of her 11 children (a) a right of occupation for life in certain residential property in her estate, and (b) a right to income for life from the balance of her estate – both rights were subject to defeasance, “upon the remarriage of either of my aforementioned daughters” such that “the other daughter shall be entitled” to exclusive use of the property and the said income “until her death or remarriage” – and upon death or remarriage “of both my said daughters” the testator authorised the trustee “to divide the residue of my estate amongst my surviving children equally” – after the death of the testator one of the daughters given a life interest remarried and later the other daughter given a life interest dies – two of the testator’s 11 children survive at the time one of the daughters given a life interest dies – whether on the true construction of the Will, the residue of the testator’s estate should be distributed equally to the two of her children, who survive the death of one of the daughters given a life interest when the other daughter given a life interest has remarried – the two surviving children of the testator are signatories to a deed of family arrangement – whether an opportunity should be given to the parties to the deed of family arrangement to pursue its possible enforcement before the distribution of the estate.

CIVIL PROCEDURE – Court of Appeal – Application for leave to amend notice of appeal to add additional ground alleging invalid appointment of trustee – Where issue not raised before primary judge – Where no practical utility in agitating ground in circumstances where validity of subsequent appointment of same trustee unchallenged – Where application not made until day of hearing – Leave refused

NEGLIGENCE – duty of care to avoid economic loss – whether vulnerability required – applicants pleaded vulnerability as an essential element of duty – no obligation on primary judge to consider alternatives to that position – no relevant vulnerability due to applicants’ ability to protect themselves from consequences of liquidators’ actions CONSUMER LAW – misleading or deceptive conduct – whether reliance on accuracy of recitals to deed – clear inference from evidence that person knew of true position CONSUMER LAW – misleading or deceptive conduct – whether conduct “in trade or commerce” – court-appointed liquidators performing statutory functions – assignment of property with view to facilitating business interests of purchaser arguably had an essentially trading or commercial character CORPORATIONS – leave to commence action against court-appointed liquidators – governing principles – relevance of lengthy and inadequately explained delay

COSTS — Party/Party — General rule that costs follow the event — Discretion – No presumption or default rule as to the basis of the award of costs STATUTORY INTERPRETATION – r 42.2 of Uniform Civil Procedure Rules 2005 (NSW) – whether s 98(1) of Civil Procedure Act 2005 (NSW) confines the judicial discretion in awarding costs – whether a judge must take as a starting point that costs are to be assessed on the ordinary basis and justify any departure from that position

SENTENCING — Sentencing procedure — offender sentenced for offences against laws of the State — where offender asked the sentencing court to take federal offences into account on a “Form 1” — whether State legislation permitted the sentencing court to take federal offences into account — whether “Form 1” provisions picked up and applied as federal law by s 68(1) or s 79 of the Judiciary Act 1903 (Cth) — whether Form 1 provisions inconsistent with federal sentencing law

EVIDENCE — witness evidence — requests to call witnesses — expert witnesses

EVIDENCE — witness evidence — requests to call witnesses — request to recall witness for further re-examination CIVIL PROCEDURE — service of evidence — late service

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Professional negligence claim — Failure to serve experts’ reports CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch

HIGH RISK TERRORISM OFFENDER – application for extended supervision order – preliminary proceedings – question of whether experts should be appointed to examine the defendant – question of whether an interim supervision order should be made – State’s reliance upon evidence relating to events prior to defendant’s incarceration together with more recent evidence of risk – evidence of completion by defendant of rehabilitative programmes in custody – whether evidence sufficient for Court to be satisfied to necessary standard of risk in light of evidence of participation in programmes and change in defendant’s ideology

PROCEDURE – additional evidence on appeal – fresh and further evidence – requirement that evidence could not have been obtained with reasonable diligence at trial – application in substance refused

APPEAL AND REVIEW – District Court – criminal jurisdiction – sentence appeal from Local Court – judicial review of appeal judgment – privative provision – need to establish jurisdictional error – procedural unfairness – refusal of adjournment application in district Court – existence of application for review of refusal of legal aid APPEAL AND REVIEW – District Court – criminal jurisdiction – appeal from Local Court – whether appeal against conviction – form of notice of appeal – Crime (Appeal and Review) Act 2001 (NSW), s 14 APPEAL AND REVIEW – District Court – criminal jurisdiction – sentence appeal from Local Court – procedural unfairness – alleged incompetence of legal representative – failure to obtain psychologist’s report for application under Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 APPEAL AND REVIEW – District Court – criminal jurisdiction – sentence appeal from Local Court – pre-sentence custody – failure to take into account under Crimes (Sentencing Procedure) Act 1999 (NSW), s 24

JUDICIAL REVIEW – adjournment – criminal proceedings – review of sentence appeal – applicant on bail – protracted procedural history – requirement for finality in criminal proceedings – claim to have lodged internal appeal from refusal of legal aid – bona fides of attempts to obtain legal representation – circumstances in which court may vacate hearing – Legal Aid Commission Act 1979 (NSW), s 57

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Applications under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of creditors and members to consider and if thought fit to agree to proposed schemes of arrangement Single member schemes to obtain ancillary relief under s 413 of the Corporations Act – Basis for assumptions in explanatory memorandum – Where certain creditors wrote letters of objection but did not appear – Where objections to terms of scheme reserved for second Court hearing

CIVIL PROCEDURE – parties – joinder – of plaintiffs – where mother of deceased substituted as appropriate plaintiff in circumstances of a survivor action

CIVIL PROCEDURE – Registrars – review of Registrar’s decision – where Registrar refused leave to issue subpoena – where no legitimate forensic purpose to issue subpoena – whether plaintiff was required to join additional parties as defendants – where parties are not necessary parties to the proceedings

COSTS – security for costs – where developer and builder made cross claims against each other – where builder’s cross claim based on deed of indemnity – where developer’s cross claim sought to impugn that deed – where developer sought security for costs of builder’s cross claim – where security sought was in substance for costs of developer’s cross claim

COSTS – Timing of payments of costs – Gross sum costs order – Costs payable forthwith