Cases and authorities

APPEAL – leave to proceed under Felons (Civil Proceedings) Act 1981 (NSW) – criteria for grant of leave – meaning of “there is prima facie ground for the proceedings”. APPEAL – security for costs – where security for costs sought against an individual appellant – where appellant was defendant at first instance – where appellant currently incarcerated – whether special circumstances existed warranting the grant of security for costs – where, irrespective of the outcome of the appeal, the appellant would still be liable to the respondent in a significant sum.

CRIMINAL PROCEDURE – suppression and non-publication orders – whether orders should be made to protect witnesses

CONTRACTS — Remedies — Specific performance – where settlement agreement has not been performed by defendant – agreement not terminated by plaintiff – plaintiff not seeking damages - order for specific performance COSTS — Party/Party — General rule that costs follow the event

LAND LAW - Adverse possession – Actual possession – Claim to remnant of “dunny lane” incorporated into plaintiff’s garden – Land converted from old system title to limited title during period of possession but before limitation period expired – Whether plaintiff’s rights survived conversion – Whether possessory title provisions of Real Property Act applicable to limited title land – Limitation Act 1969 (NSW), s 27(2), s 65(1) – Real Property Act 1900 (NSW), s 28T(8), s 45C(2)

BANKRUPTCY – Effect of bankruptcy on proceedings commenced by Plaintiff seeking various forms of relief to do with the estate of her father, the deceased –Action by the Defendant, by way of Cross-Summons for family provision order under Succession Act 2006 (NSW), Ch 3 – The Defendant made bankrupt following the commencement of the proceedings – Summons and Cross-Summons filed before endorsement of the debtor’s petition – Whether claim by Defendant is automatically stayed – Whether trustee in bankruptcy is deemed to have abandoned the claim raised in the Cross-Summons – Whether Cross-Summons was stayed and should be dismissed SUCCESSION – Family provision – Practice – Application for summary dismissal of claim – Where Cross-Claimant is declared bankrupt – Whether claim made in Cross-Summons for family provision order should be summarily dismissed – No evidence of the Defendant referred to on notice of motion for dismissal – Reference only to defence filed by Defendant

SENTENCING — appeal against sentence — co-offenders — disparity between sentences — where applicant pleaded guilty to two counts of supplying greater than a commercial quantity of cannabis — where assertion of disparity is contrary to submission made by applicant on sentence — whether justifiable sense of grievance

CRIME — appeals — appeal against conviction — whether trial judge erred in directing jury in relation to weighting of evidence of applicant — whether cross-examination of witness was conducted contrary to s 44 of the Evidence Act 1995 (NSW) — where conceded that one part of cross-examination infringed s 44 — whether miscarriage of justice occasioned

CRIMINAL LAW – application for leave to appeal against conviction – applicant convicted of supply of prohibited drug offence – s 25(1) Drug Misuse and Trafficking Act 1985 (NSW) – argument available on the evidence that he possessed drugs “otherwise than for purpose of supply” because he received them from the true owner and intended to return them to him – R v Carey (1990) 20 NSWLR 292 – trial judge and Crown informed jury of potential availability of Carey defence – whether trial miscarried because defence counsel failed to put Carey defence to jury CRIMINAL LAW – trial judge’s summing up – trial judge made comments disparaging applicant’s case – whether summing up was unbalanced and unfair in a way that constituted a miscarriage of justice – appeal allowed and new trial ordered

CRIMINAL LAW – applications for leave to appeal against sentence – attempted possession of commercial quantity of unlawfully imported border controlled drug (cocaine) – early pleas of guilty – utilitarian value of the pleas not taken into account – applicants sentenced before decision in Xiao v R – error found, applicants resentenced

FAMILY LAW – Children – Adoption – Whether the child is an Aboriginal child pursuant to s 4(2) of the Adoption Act FAMILY LAW – Children – Adoption – Whether a declaration should be made to the effect that the Secretary holds parental responsibility for the child pursuant to s 75 of the Adoption Act – Where an interim order had been made in favour of the plaintiff pursuant to s 84 but was soon to expire – Discussion as to interplay between ss 75, 79, 84 and 85 of the Adoption Act and whether s 75 could be satisfied notwithstanding the earlier order under s 84 – Whether the plaintiff was “a person whose consent to the adoption of the child is required” for the purposes of s 75(1)(a)

CIVIL PROCEDURE – Summary judgment – defendants’ own material shows no arguable defence – pleadings incompetent – action to moneys owing – debt not disputed – judgment granted

JUDGMENT AND ORDERS – Judgment Debt –whether an examination order should be set aside due to change of circumstances – does the granting of an application to pay by instalments on an existing judgment debt constitute a significant change in circumstances

COSTS — Party/Party — Costs orders in interlocutory proceedings — where there was an absence of full and frank disclosure by the plaintiff in an application for ex parte interlocutory orders in the Duty List — where it follows that the costs of and incidental to the injunction application are to be paid on the indemnity basis COSTS — Party/Party — Bases of quantification — where the Court has no rational basis for apportioning a proper amount of the total costs claimed by the defendant to the applications for which it will be required to bear its own costs — where it is not appropriate for the Court to make a gross sum costs order COSTS — Party/Party — Timing — Costs payable forthwith — where the subject matter of the plaintiff’s interlocutory application was not discrete, in the relevant sense, from the issues that will be determined at the final hearing — where the delinquent behaviour of the plaintiff has been relevantly addressed by being required to pay costs on the indemnity basis — no obligation to pay the costs forthwith COSTS — Party/Party — Court’s discretion — where the defendant is not entitled to an order that the plaintiff pay the difference between the legal costs incurred and the amount that is recovered under the costs order

CONTRACT – Whether parties compromised or settled proceedings between them – One of the plaintiffs sued the first defendant house builder in the NSW Civil & Administrative Tribunal (NCAT) for damages, alleging defective construction of their house – The first defendant alleged that on 29 July 2019 when the proceedings were before NCAT, a binding compromise or settlement of the claims of both plaintiffs was entered into – HELD – No binding compromise or settlement was entered into because the other plaintiff was not a party to any arrangement and, in any event, the objective intention of the parties was that there would be no binding arrangement until the terms of it were embodied in a formal deed signed by all of them.

CRIME — appeal and review — application to Supreme Court under Part 7 — application for inquiry into conviction — discretion for summary disposition of application — whether Court should consider or otherwise deal with application — where applicant relies only on matters previously raised at trial and on appeal

RELIEF HEARING – contest concerning consequential relief after judgment – what amount is due to the plaintiff from each of two defendants, one a natural person and the other a corporation – what costs orders should be made against the natural person defendant and the corporate defendant – what costs orders should be made against the natural person defendant and the corporate defendant in respect of the period after the Court’s first judgment – what costs order should be made as a result of the plaintiff’s withdrawal of her claim for damages – whether interest can be awarded under Civil Procedure Act 2005 despite the parties apparently agreeing that the loans were made on an interest-free basis.

COSTS – where family provision claim unsuccessful –– whether overall justice of case warrants departure from the usual rule that costs follow the event – where plaintiff has limited financial reserves – where plaintiff found not to be an eligible person and claims not borderline – where undistributed estate available to pay some of the defendant’s costs – unsuccessful plaintiff ordered to pay defendant’s costs not otherwise paid out of the deceased’s undistributed estate

JUDGMENTS AND ORDERS – Court of Appeal – Whether order staying the giving up of vacant possession pending the resolution of appeal proceedings should be discharged – Whether undertakings proffered in support of the stay have been breached – Stay discharged

BUILDING AND CONSTRUCTION — progress payments — whether right to a progress payment arose before suspension — whether adjudicator determined amount of progress payment — whether adjudicator committed jurisdictional error — whether contractor entitled to withdraw adjudication application under s 26 and file new adjudication application — whether necessary first to obtain declaratory relief –Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 9, 13, 22, 26.

CIVIL PROCEDURE – Harman undertaking – express undertaking concerning use of documents – where applicants propose to commence proceedings – where applicants in possession of documents for purpose of these proceedings that they wish to use in contemplated proceedings – whether special circumstances shown

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act – motor vehicle accident – medical review panel – medical assessments – review panel decision – Motor Accident Permanent Impairment Guidelines – legal consequences non-adherence to guidelines – findings of inconsistencies – inconsistencies not brought to first defendant’s attention – inconsistencies contemplated by guidelines – duty to provide procedural fairness – materiality – reasons for determination – whether review panel failed to set out lawful reasons – whether decision was vitiated by legal unreasonableness – errors of law – whether jurisdictional error – whether constructive failure to exercise jurisdiction – appeal upheld – costs follow the event – orders COSTS – Suitors' Fund Act 1951 – eligibility to be granted indemnity certificate – indemnity certificate – certificate granted

CONTRACTS – building contract – construction – conditions precedent – whether conditions precedent were to formation of contract or parties’ performance of their obligations under the contract – whether defendant contractor obliged to commence work under contract – whether failure by defendant to provide bank guarantees and evidence of home warranty insurance caused plaintiff to suffer damage CONTRACTS – ambit of exclusion clause – whether exclusion clause survived consensual termination of contract CONTRACTS – remedies – damages – whether plaintiff principal proved it had suffered damage by reason of defendant’s conduct CONSUMER LAW – misleading or deceptive conduct – where director of defendant represented guarantee was genuine – where bank guarantee was not genuine – where plaintiff general manager saw at once that bank guarantee was not genuine – whether plaintiff has suffered any loss by director’s conduct

EVIDENCE — Discretions — Exclusion of evidence — Improperly or illegally obtained evidence

CIVIL PROCEDURE – summary dismissal – no reasonable cause of action – UCPR r 13.4 – orders

LIMITATION OF ACTIONS – torts – medical negligence – extension of time – when the cause of action was discoverable by the plaintiff – whether just and reasonable to extend the 12 year long-stop limitation period – absence of prejudice – whether the plaintiff ought to have known the requisite facts of discoverability – knowledge of causation could only be attained through expert medical opinion CIVIL PROCEDURE – time – extension of time – orders LEGAL PROFESSIONAL – privilege – waiver

CRIME – appeals – appeal against conviction – unreasonable verdict – multiple charges of sexual offences against same child complainant – where only direct evidence of offending was complainant’s complaint and testimony – where jury acquitted applicant of 3 counts and convicted of 3 counts – whether acquittals necessarily diminished the overall credibility of the complainant’s evidence such that remaining convictions could not reasonably be supported and accordingly were not “open” to the jury.

CRIMINAL LAW – Crown appeal – whether aggregate sentence manifestly inadequate – pleas of guilty to aggravated kidnapping, aggravated sexual assault and possession of child abuse material – whether undiscounted starting points of indicative sentences failed to reflect findings of objective seriousness – whether reference by judge as to offending being in worst case category was inconsistent with individual assessments of objective seriousness – consideration of respondent’s subjective case – consideration of respondent’s offences – whether failure to adequately accumulate sentences – appeal dismissed

CRIMINAL LAW – Sentencing – appeal against sentencing – offences of recklessly causing grievous bodily harm and aggravated kidnapping – offences involving significant violence – traumatic upbringing – whether a denial of procedural fairness – whether assessment of objective gravity open – question of manifest excess

COURTS AND TRIBUNALS – jurisdiction – jurisdiction of Supreme Court and NSW Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 5(3) – where proceeding commenced in NSW Civil and Administrative Tribunal (“NCAT”) concerning the validity of an annual general meeting called by the managing agent of a strata scheme – where another proceeding is subsequently commenced in the Supreme Court raising substantially the same issues – whether the Court has jurisdiction to hear and determine those issues in light of the previously commenced NCAT proceeding – no jurisdiction to hear and determine those issues PRACTICE AND PROCEDURE – transfer – transfer from Supreme Court to NSW Civil and Administrative Tribunal (“NCAT”) – where prayer for relief in summons claims an order for the managing agent of a strata scheme to deliver up to the chairman of the strata committee a list of owners and their contact details – where NCAT has jurisdiction to determine such claim – whether appropriate to transfer claim to NCAT for determination – proceeding transferred

COSTS – plaintiff’s claim and defendant’s cross-claim dismissed – evidence and time taken at hearing was divided approximately equally between the claim and the cross-claim – late amendments by plaintiff resulted in additional hearing time being required – whether plaintiff should bear all of those additional costs – whether appropriate to order that each party bear its own costs of proceedings

ADMINISTRATIVE LAW – Judicial review – Decision under the Motor Accidents Compensation Act 1999 –Whether medical assessor’s decision affected by error of law on the face of the record – Principles to be applied in determining causation under the Motor Accidents Permanent Impairment Guidelines – Where subsequent unrelated incident leads to injury from previous motor accident being symptomatic – Relevant legal principles derived from State Government Insurance Commission v Oakley – Failure to give adequate reasons for decision – Certificates set aside and matter remitted for reassessment

BUILDING AND CONSTRUCTION – Where damages for work done but not invoiced sought to be proved on a quantum meruit basis – Damages for delay – Where loss not established – Where loss too remote – Breach of statutory warranties in the Home Building Act 1989 (NSW), s 18B. CONTRACT – Whether contract validly terminated – Where liquidated damages clause provides for nominal amount – Whether provision relating to liquidated damages provided an exclusive remedy for delay and, if it did, whether it was rendered void by the Home Building Act 1989 (NSW), s 18G.

ADMINISTRATIVE LAW – reviewability – justiciability – whether decision amenable to orders in the nature of certiorari and mandamus – jurisdictional error – bias rule – actual or apprehended - ground of review other than procedural fairness – irrelevant and relevant considerations – unreasonableness – where consideration of grounds of review not relevant to primary decision

APPEALS – notice of motion seeking to set aside orders refusing application for leave to appeal – impermissible attempt to re-agitate matters previously determined – vexatious and an abuse of process

CRIMINAL LAW – appeal – appeal against sentence – intimidating witness – revealing informer status – applicant in custody at time of offending – intimidation carried out via Instagram post “Sydneyinformant” – #supergrass – commencement of sentence – sentencing principles – irrelevant considerations – related offences

CORPORATIONS – External administration – Co-operative under Co-operatives National Law (NSW) – Application of Pt 5.3A Corporations Act 2001 (Cth) to a co-operative – application for directions under Insolvency Practice Schedule (Corporations) s 90-15 – Where prior case law has addressed applicability of certain portions of Insolvency Practice Schedule (Corporations) and Insolvency Practice Rules (Corporations) to cooperatives – Directions not required because case law is clear CORPORATIONS – External administration – Whether operation of Pt 5.3A should be modified in relation to the administration of a co-operative – Whether new provisions of Insolvency Practice Schedule and Insolvency Practice Rules should apply to administration of co-operative

COMMERCIAL ARBITRATION – Order sought under International Arbitration Act 1974 (Cth), s 8 – No issues of principle

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — whether proceedings are an abuse of process – whether plaintiff seeks to re-litigate issues decided in earlier proceedings in this Court CIVIL PROCEDURE — pleadings — form and content of pleading — defects — striking out the amended statement of claim — whether no reasonable cause of action or defence disclosed

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order – most orders sought by the state not opposed – relevant statutory factors – disputed condition of proposed order

COSTS – party/party – basis of quantification – Calderbank offers – offers of compromise – where parties to related family provision proceedings served multiple offers of compromise and Calderbank offers throughout the course of the proceeding – no offer accepted by the unsuccessful parties – where offers of compromise relied upon by the successful parties do not comply with Uniform Civil Procedure Rules 2005 (NSW) r 20.26 – where offers treated as Calderbank offers – whether unreasonable for unsuccessful parties not to accept offers

CRIMINAL LAW – murder – trial by judge alone – plea of not guilty to murder but guilty of manslaughter – whether intention to kill or intention to inflict grievous bodily harm established beyond reasonable doubt – self-induced intoxication – expert evidence from three witnesses – consideration of large number of established circumstantial facts – rejection of alternative hypotheses – intention to inflict grievous bodily harm established to the criminal standard

ADMINSITRATIVE LAW — Judicial review — Motor Accidents Compensation Act 1999 (NSW) s 92(1)(b) Decision to refuse an application for exemption from statutory assessment process — Whether claims assessor misconstrued the scope and power of the statutory test — Whether claims assessor took into account irrelevant considerations — Review dismissed

CIVIL PROCEDURE – medical negligence – where plaintiff developed post-operative venous thromboembolism – issue of whether defendant attended personally upon plaintiff in hospital in days following surgery – where plaintiff’s liability evidence in chief completed – whether plaintiff should be permitted to rely upon additional medical specialists concerning specialist inpatient billing practices

CIVIL PROCEDURE - vacation of hearing date - negligence - storage of railways sleepers on rural property - sleepers destroyed by fire - insurance policy - quantum of damages - further evidence required

CORPORATIONS – oppression – remedies – compulsory buy-out or winding up – many instances of oppressive conduct over many years – companies not actively trading – principal assets real estate and loans – primary judge ordered compulsory buy-out – appellant required to pay $66 million within 30 days – appellant elderly and unwell – relevance of inability to pay – forensic decision not to adduce evidence of financial circumstances – subject to pecuniary orders remedying particular items of oppression, winding up ordered

PRACTICE AND PROCEDURE – slip rule – variation of orders

Damages – Misleading or deceptive conduct – Where first appellant induced to give up agreement by respondent's misleading or deceptive conduct in contravention of s 52 of Trade Practices Act 1974 (Cth) – Where appellants sought damages pursuant to s 82 of Trade Practices Act referable to amounts payable had agreement not been terminated – Whether respondent entitled to contend that but for its misleading or deceptive conduct it would have lawfully terminated agreement – Whether presumption against wrongdoers applied – Whether evidence established real (not negligible) possibility that respondent would have terminated agreement by lawful means. Words and phrases – "balance of probabilities", "counterfactual lawful termination", "deliberate contravention", "evidential burden", "lawful means alternative", "legal burden", "misleading or deceptive conduct", "notice of termination", "presumption against wrongdoers", "real (not negligible) possibility", "recovery of damages for lost commercial opportunities", "reversal of onus of proof". Trade Practices Act 1974 (Cth), ss 52, 82.

Appeals – Criminal appeal – Death of appellant – Where appellant died after appeal heard – Where appellant sought order quashing conviction and ordering retrial – Whether possible to make order sought – Whether other order appropriate.

COSTS – security for costs – assessment of quantum – where security provided in tranches – method of assessment – shareholder class action – litigation funder – whether discount from estimated party-party costs appropriate