Cases and authorities

COSTS – departing from general rule – first defendant successful on issues determined at hearing – prior to hearing first defendant capitulated to plaintiffs on other issues – costs order made to reflect success of respective parties on particular issues

CIVIL PROCEDURE – whether proceedings should be transferred to the Commercial Court of the Supreme Court of Victoria – whether that court a more appropriate forum – where plaintiff incorporated in Hong Kong – where defendant lives in Melbourne – where subject of proceedings has no apparent connection to New South Wales CIVIL PROCEDURE – whether proceedings should be transferred to the Commercial Court of the Supreme Court of Victoria – whether matter likely to progress more quickly in the Commercial List than in Victorian Commercial Court

JUDGMENTS AND ORDERS – Amending, varying and setting aside – changing and recalling, a paragraph of reasons for judgment – jurisdiction of Court – principles to be applied – misapprehension of law – for other reasons, no alteration effected – effect of existence of appeal.

SUCCESSION – contested probate – testamentary capacity – soundness of mind, memory and understanding – litigious dispute between testator and family members concerning restructuring of family investments – testamentary provisions giving control of family companies, unit trust and discretionary trusts – testamentary provisions for claw-back of monies from bequests to beneficiaries – knowledge and approval

CONTEMPT — Criminal contempt — Abuse of process — Contumacious breach of orders — Penalties — Imprisonment CIVIL PROCEDURE — Pleadings — Striking out — Abuse of process — Where disproportionate to strike out defence and cross-claim — Alternatives to striking out

CONSUMER LAW - enforcement and remedies - compensation orders - proceedings brought by Commissioner on behalf of consumers - consumers purchased moveable dwellings and entered into occupation agreements with respondents - appellants represented that terms of agreements preventing permanent residence would not be enforced - permanent residence precluded by development consent - no challenge to findings of misleading or deceptive conduct and unconscionable conduct by corporate appellants - whether primary judge erred in making orders requiring payment of purchase price 85% of cost of improvements plus interest on terms that consumers reconvey title to moveable homes - whether need to quantify loss or damage before power to make orders under s 72 of Fair Trading Act or s 237 of Australian Consumer Law available - consideration of distinction between such orders and damages - consideration of relationship between such orders and orders for rescission in equity for fraudulent representation - whether primary judge erred in finding unconscionable conduct by director of corporate appellants - appeal dismissed

CONTRACTS – breach of contract – whether force majeure clause excused the appellant’s breaches – appellant bore the onus of establishing the applicability of the clause – clause provided an exception to, rather than a qualification of, the appellant’s promises CONTRACTS – damages – whether damages for wasted expenditure or reliance damages can only be awarded where it is impossible to quantify expectation damages – Amann Aviation 174 CLR 64 – Court may award reliance damages where the evidence does not establish any loss of profits – evidence not sufficient to discharge appellant’s onus of proving it unlikely respondent would have earned sufficient revenue to cover its costs over the term of the contract CONTRACTS – cross-claim for breach of separate contract – whether two contracts were interdependent such that appellant precluded from recovering amounts due under one if it did not fulfil its obligations under the other – two sets of agreements inextricably linked

SUCCESSION – family provision – claim by adult child – judgment in favour of appellant for provision from notional estate – whether adequate provision for the proper maintenance, education or advancement of the appellant

EMPLOYMENT AND INDUSTRIAL LAW – work health and safety – statutory duty of person conducting a business or undertaking to ensure health and safety of workers so far as reasonably practicable – painter at worksite fell 6 metres through a void between building and platform attached to jumpform screen system – design, installation and operation of system subcontracted to appellant – whether primary judge considered the reasonable practicability of appellant taking particularised steps – Baiada Poultry 246 CLR 92 and Kirk v Industrial Court 239 CLR 1 considered

CRIMINAL LAW – appeal against sentence – domestic violence offences – offences of aggravated break enter commit assault occasioning actual bodily harm and contravention of an apprehended domestic violence order – history of domestic violence offences against same victim – use made on sentence of applicant’s criminal record – assessment of objective seriousness – question of manifest excess

CIVIL PROCEDURE – Application for transfer from District Court to Supreme Court under Civil Procedure Act 2005 (NSW) s 140 – Realistic chance of plaintiff if successful recovering sum in excess of jurisdictional limit of the District Court – Order for transfer made

SUCCESSION – PRACTICE AND PROCEDURE – succession – Filing, verification and passing of accounts – Power of Registrar to moderate accounts – Nature and extent of power to moderate costs –Relevance of UCPR r 42.5(a) - Review of Registrar’s moderation of legal costs and disbursements paid to Administrators’ solicitors out of the deceased’s estate in circumstances where order for costs, calculated on indemnity basis, of proceedings made

CIVIL PROCEDURE – interim preservation – freezing orders – defendant a natural person resident in Australia – defendant lives in home owned by company (not a party) as trustee for family trust – company enters into contract for sale of home – freezing orders refused against defendant and company – costs – order for payment of sum to company on account of costs of application

CRIMINAL LAW - evidence - credibility evidence - evidence of false denial of possession of drug - where accused denied gun supply in the same interview - whether leave required - where accused admits possession of drug - whether prior inconsistent statement - whether evidence could substantially affect assessment of credibility - probative value of evidence - danger of unfair prejudice - brazen lies - caught red handed - jury leaping to conclusion of guilt - evidence receiving undue weight - jury losing focus on evidence tendered to prove guilt - possible directions - axiom that juries obey directions not holy writ - evidence excluded

EQUITY – unconscionable bargains – elderly person, since deceased, gives power of attorney to his eldest daughter – she uses the power of attorney to transfer the deceased’s home to her own daughter, either for no consideration, or for named consideration of $900,000 – no formal security was given after the transfer of the property for the payment of the purchase price – deceased’s eldest daughter also transfers money out of the deceased's bank accounts – these transactions left the deceased without the capacity to meet his nursing home outgoings – the deceased’s estate now seeks recovery of the property and an account of moneys transferred from his accounts – whether transactions were in breach of fiduciary duty, or unconscionable, or beyond the authority conferred by the deceased’s power of attorney to his eldest daughter. FAMILY PROVISION – a mother of five children leaves a will which failed to make any provision for her eldest daughter, the plaintiff – after the death of the mother the plaintiff claims that she has been left without adequate provision from the estate of the deceased for her proper maintenance, education or advancement in life – whether the plaintiff has received money during the lifetime of the deceased – whether the plaintiff by her conduct has disentitled herself from making a claim upon her deceased mother's estate – whether the plaintiff has been left without adequate provision from the estate of the deceased for her education, maintenance and advancement in life.

ADMINISTRATIVE LAW — administrative tribunals – scope of authority of the NSW Civil and Administrative Tribunal to dismiss proceedings as vexatious – where respondent sought review of a decision determining his application for access to information held by a government agency – where respondent persisted in allegations of misconduct against officers of the agency after those allegations had been dismissed by the Tribunal – relevance of history of making similar allegations in other proceedings – where Tribunal’s decision dismissing proceedings as vexatious overturned by Appeal Panel – whether Appeal Panel erred in regarding persistence in claims that were bad in law as being outside the scope of the collateral purpose principle – whether Appeal Panel erred in declining to have regard to previous litigation brought by the respondent

APPLICATION FOR LEAVE TO APPEAL – COSTS — security for costs – Uniform Civil Procedure Rules 2005 (NSW), r 42.21 – inherent jurisdiction of Supreme Court – reluctance to make orders against natural person – delay in making application – applicant bankrupt – evidence of funds transferred to overseas bank account in applicant’s name – applicant evasive and untruthful about transferred funds – applicant’s history of non-payment of court orders – where applicant has a history of failure to comply with costs orders

CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Representations — Loss — Causation and remoteness CONTRACTS — Misleading conduct under statute — Remedies — Measure of damages — Where loss of opportunity

CRIMINAL LAW — appeal against conviction — whether miscarriage of justice occasioned by admission of evidence of the complainant — whether complainant competent to give evidence CRIMINAL LAW — appeal against conviction — whether evidence capable of supporting guilty verdict

APPEAL – Local Court – Debt due – No point of principle

COSTS — Costs assessment — Order for gross sum costs

INSURANCE – reinsurance – reinsurance treaty – where reinsurer apprehends insurer may have sold or transferred reinsured policies in breach of term of treaty – where reinsurer seeks to exercise rights to call for documents under treaty – where reinsurer did not tender documents provided to it by insurer likely to cast light on whether any such breach occurred – where request must be reasonable – whether reasonableness of request could be assessed without seeing such documents – whether other bases to resist production made out PRACTICE AND PROCEDURE – discovery – preliminary discovery – whether it appears that applicant may have a cause of action – whether it appears applicant has made reasonable inquiries

APPEAL – costs assessment – costs awarded by Court of Appeal – prolonged proceedings – appeal from decision of costs assessment Review Panel – jurisdiction to hear the appeal – applicable legislation when District Court proceedings commenced in 2012 – requirement of leave to appeal - whether costs fair and reasonable

CORPORATIONS — Meeting of members of listed scheme called by members —– Requirement of s 252D Corporations Act that a meeting be called “in the same way - so far as is possible - in which meetings of the scheme's members may be called by the responsible entity” – whether notice of meeting required to identify members calling the meeting CORPORATIONS — Meeting of members — Notice — whether proper notice given to directors and auditor of incumbent responsible entity – where some unitholders not given proper notice – whether defects substantive or procedural irregularities CORPORATIONS — Meeting of members — Effect of defect or irregularity ––– whether procedural irregularity causing substantial injustice – requirements for the making of orders under ss 1322(2) and 1322(4) Corporations Act CORPORATIONS — Misleading or deceptive conduct — whether explanatory memorandum accompanying notice of meeting misleading by omission – whether reasonable expectation to disclose matters of suspicion

EQUITY – trusts and trustees – resulting trusts – purchase money trusts – where de facto partners purchased commercial property as tenants in common in equal shares – whether presumption of resulting trust rebutted – where contemporaneous deed evidencing actual intention of parties to hold property beneficially in equal shares – appropriate division of net sale proceeds of the commercial property EQUITY – trusts and trustees – resulting trusts – purchase money trusts – where de facto partners purchased residential property as joint tenants – whether presumption of resulting trust rebutted – whether constructive trust arising after purchase of property – significance of conduct of parties after purchase

PROFESSIONS AND TRADES – legal practitioner – where disciplinary application against practitioner in New South Wales Civil and Administrative Tribunal – where Law Society did not first comply with Legal Profession Act 2004 (NSW) ss 537(2) and s 540 – whether Tribunal lacked jurisdiction to hear complaints – where no objection to new point being raised on appeal – where parties seek consent orders – whether desirable to make anonymisation order relating to the Tribunal’s decisions

CRIMINAL LAW – conviction appeal – found guilty by a jury of causing grievous bodily harm while reckless as to the causing of actual bodily harm by way of stomping or kicking the victim’s hip – acquitted of an assault occasioning actual bodily harm – sentenced to imprisonment for 3 years and 6 months with a non-parole period of 1 year and 9 months – appeal asserting that verdict of jury unreasonable or cannot be supported having regard to evidence – Crown case relied on a single witness – challenge to reliability of that witness – apparent discrepancy between initial complaint and texts sent to applicant – failure to adequately explain discrepancy – problems with complaint evidence – unexplained failure on the part of Crown to call an important witness – medical evidence supported claim – availability of reasonable alternate hypothesis explaining injury – leave to appeal granted but appeal dismissed.

EMPLOYMENT LAW — contract — interlocutory restraint of trade — enforcement and remedies — restraint against employment with competing business — junior level employee — no entitlement to payment — whether to protect the legitimate interest of plaintiff — defendant provided undertaking to record dealings with customers — delay in plaintiff’s application EMPLOYMENT LAW — contract — interlocutory restraint of trade — enforcement and remedies — restraint on solicitation — defendant provided undertaking not to solicit former customers — relief sought extended to any vendors, buyers and counter-parties whom defendant had no dealings — delay in plaintiff’s application CIVIL PROCEDURE — preliminary discovery — to identify potential cause of action — whether defendant should be required to submit his electronic devices to allow plaintiff to search for confidential information — defendant provided affidavit evidence that no confidential information was on devices – no evidence to challenge reliability of evidence

CIVIL PROCEDURE – interlocutory applications –notices of motion to limit number of plaintiff expert witnesses

EQUITY – Trusts and trustees – Express trusts – Intention to create – where plaintiffs invested funds to enable first defendant to engage in private placement program arbitrage transactions – intention to create an express trust over principal funds established – damages awarded limited to agreed rate of return described in investment agreement

FAMILY AND CHILD WELFARE – parens patriae jurisdiction – Aboriginal young person under the parental responsibility of the Minister for all aspects except culture and religion – where orders previously made authorising medical treatment and confinement of the young person as an inpatient in a medical facility for the purposes of undertaking that treatment – where orders now sought to authorise the confinement of the young person to secure premises outside the medical facility for the purposes of continuing medical treatment as an outpatient and rehabilitation and recovery and to protect the young person from risk to their safety – whether it is appropriate to make such orders – appropriate to make orders subject to ongoing review by the Court

CIVIL PROCEDURE — Harman undertaking — where it is in the interests of the proper administration of justice that the Court should facilitate the making of legitimate disciplinary complaints — release granted COSTS — Party/Party — Costs orders in interlocutory proceedings — where, in the circumstances, it is just that the defendants’ costs should be paid on and from the first return date

BUILDING AND CONSTRUCTION – contractual rights preserved by s 32 of the Building and Construction Industry Security of Payment Act 1999 (NSW) – party seeking final relief in relation to contractual rights while adjudication determination remains unsatisfied CIVIL PROCEDURE – abuse of process – whether it is an abuse of process for a party to commence and prosecute proceedings seeking to enforce contractual rights – where adjudication determination made under s 22 of the Act – where judgment has been entered against it under s 25 of the Act – where party does not seek to stay or set aside judgment under s 25(1) of the Act – where party does not pay amount of judgment debt into court

CRIMINAL LAW – proceeds of crime – examination of defendants’ affairs

EVIDENCE – evidence on commission – letters of request issued from New Jersey court in USA – evidence for use in USA proceedings – foreign proceedings are civil – examiner appointed – documents to be produced and deposition evidence obtained by subpoena

TORTS – fraudulent conspiracy – appellant alleged multiple parties fraudulently conspired to procure him to obtain a short-term loan he was unable to repay – case entirely circumstantial with no direct evidence – matters relied upon fell well short of proving allegations to the relevant Briginshaw standard – findings by primary judge credit-based and not shown to be in error

JUDGMENTS AND ORDERS – orders concerning interim indemnification of previous trustee for costs of delivery of trust documents to new trustee – whether orders final or interlocutory – orders expressly stated to be subject to any further order – exercise of discretion by primary judge in case management and the working out of earlier orders – no final determination of the issues by primary judge – no utility in granting leave to appeal

EVIDENCE — witness evidence — reviving memory — in court — application for witness to revive memory by reference to a statement made to police by the witness — statement made proximate to the event — whether an accurate account given in evidence — whether there is a difficulty in recollection — credibility — application granted

CORPORATIONS – not for profit – distribution of surplus on winding up – aged care home – sanction – loss of accreditation – buyer sought – representation will pay surplus to buyer – buyer increases bid – funds needed to improve facility – directions to liquidator, principles at [10]-[14] – requirements of constitution – recipient must prohibit directors’ fees – directors’ fees, principles at [41]-[49] – one interested recipient does not meet criteria – approach to distributing surplus of charity at [61]-[64].

CIVIL PROCEDURE – cross-vesting – transfer of proceedings from Supreme Court of NSW to Federal Court of Australia – special federal matter – review of decision falling under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – limitation of Supreme Court’s jurisdiction – proceedings transferred

CIVIL PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – whether proposed settlement is in the interests of the plaintiff

TORTS – private nuisance – assessment of damages

PRACTICE AND PROCEDURE – application for interlocutory restraining order pending hearing of appeal – judicial review proceedings – determination of separate question – review of determination by adjudicator under Building and Construction Industry Security of Payments Act 1999 (NSW) – appeal fixed for hearing in 5 weeks – concurrent unresolved claim under Australian Consumer Law (Cth), s 18

PRACTICE AND PROCEDURE – interlocutory appeal – refusal of trial judge to permit the administration of interrogatories – judicial review proceeding – stay of trial sought pending determination of appeal – judgment below reserved – interrogatories directed to one ground of review – likelihood of grant of leave

PRACTICE AND PROCEDURE – application for stay – stay of orders of primary judge – application to reopen judgment dismissing appeal – application to rely on evidence not proffered at trial or on appeal relating to credibility of respondent PRACTICE AND PROCEDURE – application for stay – stay of orders of primary judge – application for special leave to appeal to High Court of Australia – whether stay necessary to protect subject-matter of proposed appeal – whether substantial prospect that special leave to appeal will be granted

ESTOPPEL – Proprietary estoppel – Encouragement – Where claim of encouragement not based on specific words – Where primary judge emphasised defendant’s knowledge of plaintiffs’ expectation – Whether estoppel as found properly characterised as estoppel by encouragement or acquiescence ESTOPPEL – Proprietary estoppel – Nature of promise – Where relief encompassed property acquired after encouragement and initial reliance – Where detrimental reliance by plaintiffs continuing – Whether necessary for all property the subject of relief to have been identified and owned by defendant at the time of encouragement and initial reliance ESTOPPEL – Proprietary estoppel – Detrimental reliance – Where plaintiffs found to have made “life-changing” decisions – Whether error in giving significant weight to plaintiff’s “hypothetical” evidence of counterfactual behaviour in making finding of reliance – Whether “countervailing benefits” received by plaintiffs by reason of reliance relevant to assessment of detriment – Whether plaintiffs would suffer substantial detriment if expectation departed from ESTOPPEL – Proprietary estoppel – Relief – Where relief involved “acceleration” of the encouraged expectation – Where constructive trust declared by primary judge – Whether to impose conditions on relief – Whether conditions necessary to “do equity” – Whether condition for payment of rent “conceptually inconsistent” with recognition of constructive trust

NEGLIGENCE — General principles — where appellant injured while climbing down from top of load haul dump machine (“LHD”) — whether employer created an unnecessary risk of injury by modifying LHD prior to the injury — where modification required appellant to climb to top of LHD to refuel where previously refuelling was done from the ground — where no evidence that any form of risk assessment was carried out — where rungs and handholds used for climbing already attached to LHD and considered adequate safeguards by employer TORTS — General principles — Contributory negligence — where employer relied on fact that appellant had climb to top of machine without incident numerous times prior to injury — where employer alleged that injury would not have occurred if appellant had been exercising sufficient care for his own safety — where appellant gave evidence that he had been firmly gripping the handholds when descending from top of LHD

SENTENCE – application for leave to appeal against sentence – offences of participating in a criminal group and dealing with identification information – pleas of guilty – sentence imposed partially accumulated on sentence previously imposed – single ground of appeal advanced – whether finding of special circumstances reflected by sentence imposed – relevance of earlier sentence – principle of totality

CRIMINAL PROCEDURE — trial — witnesses — examination of witness — application for witness to have a support person present whilst giving evidence — eyewitness to alleged offence — witness nervous about giving evidence — no medical evidence available — witness does not fall into category prescribed by the Criminal Procedure Act 1986 (NSW) — application refused

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 – Length of exclusivity period – Whether appropriate to consider break fee as percentage of enterprise value rather than equity value.