Cases and authorities

CONTRACTS – Implied terms – Terms implied in law – Where 18 (originally 19) plaintiffs sued a sporting club from which they had been purportedly expelled, alleging that the expulsions lacked a proper basis and were not in accordance with the club’s constitution (which operates as a contract between the members) – Separate determination of two questions, namely whether the constitution contained two implied terms, the first being the “expulsion term” (which states that members can only be expelled for the reasons identified in cl 22 of the constitution, which are the grounds for making a complaint about a member) and the “fairness term” (which states that members will not be expelled without first being afforded procedural fairness) – The plaintiffs advanced three alternative bases for implying the terms: from the express words of the contract, from the nature of the contract, and because the terms are necessary to give business efficacy to the contract – The club contended that neither term was implied in the constitution, that the club was free to expel members for any reason and that the club was not required to afford members procedural fairness in expelling them – Held: both the expulsion term and the fairness term are implied in the constitution. The first is implied on the basis of the combined effect of the express words of the contract (namely cl 11(c), which specifies the consequences of expulsion, and cl 22, which specifies the grounds for making a complaint about a member). The second is implied based on the “nature” of the contract, because the authorities on clubs indicate that, where an expulsion power exists, procedural fairness (or natural justice) will be implied unless it is excluded expressly or by necessary implication. ASSOCIATIONS AND CLUBS – Domestic and private tribunals – Procedural fairness – Where the Court held that the constitution of a sporting club, which had purported to expel a number of its members, contained an implied term that members could not be expelled without first being afforded procedural fairness – Where the term was implied as a legal incident of the class of contract to which the club’s constitution belongs; the Court applied authority which holds that, where a club’s constitution contains an expulsion power, procedural fairness (or natural justice) will be implied unless it is excluded expressly or by necessary implication.

APPEALS — Appeal from Local Court to Supreme Court — damages for breach of contract — whether magistrate erred by awarding damages for a loss that was not particularised or relied on at hearing CONTRACTS — Remedies — Damages — where damages claimed for costs of rectifying defect in construction — whether magistrate erred in failing to award damages for rectification costs CONTRACTS — Remedies — Damages — Remoteness of damage — whether claimed loss was reasonably in the contemplation of the parties

BAIL — serious tax offences — fraud — flight risk — applicant extradited from New Zealand — risk factors — self-represented applicant — need for liberty in order to read Crown brief — Crown brief 220 volumes — access to laptops in custody — committal hearing

APPEALS – appeals to the Supreme Court – from the Local Court – questions of mixed fact and law – interlocutory ruling - need for leave - claim for debt under instalment contract for supply of a milk pasteurisation machine – defence and cross-claim asserting defect in the machine requiring rectification – rejection of defendant’s expert report by Magistrate – failure to serve expert report in accordance with court orders - no leave obtained to rely on expert evidence – failure of expert witness to acknowledge the expert witness code of conduct – failure to demonstrate opinion based on witness’s specialised knowledge - refusal of Magistrate to permit defendant to rely on contractual provision alleged to be a penalty – failure to plead defence of penalty – failure to adduce evidence that contractual provision was a penalty – no errors demonstrated EVIDENCE – opinion evidence – expert opinion – failure to serve expert report in accordance with court orders - no leave obtained to rely on expert evidence – failure of expert witness to acknowledge the code of conduct – failure to demonstrate opinion based on witness’s specialised knowledge CONTRACTS - performance - express terms – penalties – whether interest payable on default amounted to a penalty – where commercial contract subject to negotiation

CRIMINAL LAW – Dietrich application – accused charged with tax fraud and money laundering – complex and lengthy trial – assets frozen under Proceeds of Crime Act 2002 (Cth) – dispute about cost of representation – accused’s expenses – realistic likelihood accused “parked” funds in businesses – onus not discharged – stay refused

CRIMINAL LAW – Offences – Sentence – Murder – Constructive murder where armed robbery was the foundational offence – Aggravated taking of a motor vehicle with occupant on board – Where offender was 15 years of age at the time of the offending – Whether the imposition of a provisional sentence was appropriate – Consideration of the application of a provisional sentence – Relevance of youth in sentencing – Late pleas of guilty – Consideration of the extent of the mitigatory effect of youth in cases of extreme violence – Where the offender made genuine expressions of remorse – Where the offender had favourable prospects of rehabilitation – Special circumstances justifying adjustment of statutory ratio – Term of imprisonment to be served as a juvenile offender up to the age of 21 CRIMINAL LAW – Offences – Sentence – Murder – Armed robbery with wounding – Wounding with intent to cause grievous bodily harm – Aggravated taking of a motor vehicle with occupant on board – Where the offender intended to kill the victim – Where robbery planned – Series of aggravating factors including the vulnerability of the murder victim – Where offender was 16 years of age at the time of the offending – Relevance of youth in sentencing – Consideration of the extent of the mitigatory effect of youth in cases of extreme violence – Adult like behaviour – Mitigatory impact of offender’s deprived background – Where the offender did not make any genuine expressions of remorse – Where the offender suffered from a mental disorder at the time of the offending – Mitigatory impact of mental disorder on moral capability and general deterrence – Poor prospects of rehabilitation

CIVIL PROCEDURE — Court of Appeal — Procedure — Notice to produce — Application to restrain further notices to produce CIVIL PROCEDURE — Court of Appeal — Procedure — Application to remove a party from proceedings

CRIMINAL LAW – appeal – appeal against sentence – utilitarian value of plea – reasons for delay – principles of totality – aggregate sentences – principles in Parente – community safety – objective factors – general deterrence – parity – manifest excess – resentencing – orders

APPEAL – sentence – offences of aggravated kidnapping (causing actual bodily harm), driving whilst disqualified and damaging property – applicant forcibly detained victim in his car after she made a “000” call during an argument – applicant threw victim’s phone out of the car window and broke it – fearful victim leaped from moving car – offence of driving whilst disqualified the next day – whether sentencing Judge erred in not providing reasons as to objective seriousness of each offence – where sentencing Judge delivered ex tempore remarks on sentence – error not established – whether sentencing Judge erred, by taking into account an irrelevant consideration, in finding applicant to not be genuinely remorseful – where applicant’s history of intimate partner violence was an overlapping issue – error not established – whether sentencing Judge erred by failing to take into account a relevant consideration in deciding whether to find special circumstances – where sentencing Judge commenced aggregate sentence on incorrect date – error established – whether sentencing Judge erred in failing to afford the Applicant procedural fairness in whether to find special circumstances – error not established – whether sentencing Judge erred in finding that the driving whilst disqualified offence occurred on the night of the applicant’s other offences – error established – consideration of objective gravity of aggravated kidnapping offence – consideration of factors relevant to sentence for driving whilst disqualified – objective gravity of offence and history of driving whilst disqualified – applicant re-sentenced

CRIMINAL LAW – appeal against sentence –comparison between roles of co-offenders – whether error in assessment of objective seriousness – whether due consideration of specific deterrence – whether sentence manifestly excessive

CRIME – appeals – appeal against sentence – unorthodox procedural history – where s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) originally precluded the making of an intensive correction order (ICO) – Form 1 “withdrawn” – ICO ultimately imposed –whether judge erred in failing to find good prospects of rehabilitation and unlikelihood of reoffending – whether error made in assessment of the objective gravity of offences – whether sentence featuring ICO was manifestly excessive – analysis of aspects of procedure adopted

APPEAL – sentence – offences of aggravated dangerous driving causing grievous bodily harm and driving dangerously during a police pursuit – applicant’s vehicle in near collision with police vehicle – police pursued applicant’s vehicle over 8.1 kilometres on north coast country road – applicant drove up to 139 kilometres per hour with a blood alcohol content between 0.155 and 0.180 grammes per 100 millilitres of blood – applicant’s vehicle spun out of control and collided with tree – passenger in applicant’s vehicle ejected 39.5 metres away and suffered substantial injuries – aggregate sentence of imprisonment for four years and three months with non-parole period of two years and three months – whether aggregate sentence was manifestly excessive – where sentencing Judge had regard to the guideline judgment in R v Whyte – where there were two statutory aggravating factors under s.52A(7) Crimes Act 1900 of driving with prescribed concentration of alcohol and driving at a speed which exceeded the speed limit by 45 kph – substantial objective gravity of offences – where sentencing Judge had proper regard to the Applicant’s strong subjective case – aggregate sentence not manifestly excessive – appeal dismissed

PRACTICE AND PROCEDURE – leave to amend Commercial List Statement

EQUITY – trusts and trustees – unit trusts – distribution of entitlements – purported salary sacrifice arrangements – modification of trust accounts – repayment of unauthorised amounts

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Whether consent of birth mother ought to be dispensed with — Registration of amended maternal adoption plan — Change of name

BAIL – Conditional bail previously granted – Variation application – Reporting condition not varied

CIVIL PROCEDURE – Representation – Unrepresented litigant – Plaintiff refused to obtain legal assistance – Responsibility of the court to ensure fair hearing SUCCESSION – Claim for family provision order by Plaintiff who asserts she was a person with whom the deceased was living in a de facto relationship at the time of the deceased’s death – No reliance on any other category of eligibility until raised at the hearing – Then asserted that Plaintiff was a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time or at any other time, a member of the household of which the deceased was a member, and subsequently, that she was a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death – No reference to factors warranting the making of the application until submissions served on second day of the hearing – Whether to permit Plaintiff to rely upon other grounds of eligibility – Defendant denies Plaintiff was an eligible person within any category of eligibility – Whether factors which warrant the making of the Plaintiff’s application – In any event, Defendant submits that no provision should be made for the Plaintiff and that her Summons should be dismissed.

REVENUE — Stamp duties — whether declaration of trust dutiable transaction where only acknowledges statutory vesting REVENUE — Stamp duties — duty on declaration of trust — application of exemptions and nominal duty provisions

PRACTICE AND PROCEDURE – Application to file further amended statement of claim – Where application brought late with no real explanation for the delay – Where significance of absence of explanation for delay depends on circumstances – Where main consideration is whether amendments facilitate just, quick and cheap resolution of the proceedings under s 56(1) Civil Procedure Act 2006 (NSW) – Whether defendants would be unfairly prejudiced if amendments were allowed – Where defendants suffer no real prejudice for delay absence of explanation is of limited significance – Whether pleading sufficiently clear

CRIMINAL PROCEDURE – trial – separate trial application – prejudicial evidence implicating the applicant – separate trial granted

APPEAL — appeal from Local Court — contract dispute — terms of agreement — whether agreement breached waterproofing and rendering of basement — water leakage — shotcreting — whether error of law — terms of agreement as questions of fact — whether waterproofing negligent

HIGH RISK OFFENDER – serious sex offender – application for Interim Supervision Order – defendant has multiple convictions for sexual abuse of young girls – dispute as to conditions to be imposed – some conditions intrusive – identity of risk posed – community safety paramount – whether privilege against self-incrimination abrogated by statute.

CIVIL PROCEDURE - parties - identification - whether director entitled to commence and carry on proceedings for company - director joined as party to proceedings - whether director could only be a plaintiff if director had a personal cause of action against the defendant, separate from that of the company - Uniform Civil Procedure Rules 2005, r 7.1 TORTS - negligence - defences - advocates' immunity - scope

TORTS – malicious prosecution – whether absence of reasonable and probable cause – whether proceedings instituted or maintained on sufficient grounds – whether prosecutor had actual knowledge of falsity of allegations – distinction between whether complainant motivated by malice or made false allegations and whether investigating detective suspected so – where material before detective sufficient to show allegations neither improbable nor false – where material sufficient to put accused on trial – where no improper purpose in prosecution – whether further inquiries could have been made – proper place and function of investigating detective TORTS – malicious prosecution – whether complainants independently liable as prosecutors – where falsity of statements made by complainant to police not proved – where malice not established TORTS – malicious prosecution – malice – whether material capable of supporting finding that allegations made maliciously – whether investigating detective had genuine or reasonable belief in truth of allegations TORTS – malicious prosecution – damages – assessment at common law – where one party unrepresented – where complaints to medical practitioner in medical reports taken into account as if given in evidence – causation of loss – distinction between injury arising out of assault and injury arising out of other stressors – where party susceptible to suffer from certain conditions – whether assaults exacerbated conditions

EVIDENCE – tendency evidence – conduct – proof of tendency to have a particular state of mind – relevance to establishing motive – leave to lead certain ERISP evidence denied – leave to lead certain witness evidence granted

TORTS – Professional negligence – valuers – duty of care – valuation prepared for mortgage security purposes – where mortgage property sold for significantly less than valuation – accrual of cause of action – whether cause of action against valuer for negligent valuation accrues by no later than sale of mortgaged property or only when it becomes reasonably ascertainable that lender will not be able to recover from mortgagor under personal covenant. LIMITATION OF ACTIONS – Professional negligence – valuer – valuation obtained for mortgage security purposes – whether lender sustained loss or damage for the purpose of its claims against the valuer by the time of entering into contract for sale of mortgaged property or only when it became reasonably ascertainable that shortfall on loan secured by mortgage could not be recovered from borrower. MORTGAGES AND SECURITIES – Mortgages – valuation of property for mortgage valuation purposes – when causes of action in negligence and for damages for misleading or deceptive conduct arose against the valuer – whether or not any cause of action accrued prior to it becoming reasonably ascertainable that mortgagee would not be able to recover from mortgagor borrower under personal covenant. VALUERS – duty of care – valuation prepared for mortgage security purposes – where mortgage property sold for significantly less than valuation – accrual of cause of action – whether cause of action against valuer for negligent valuation accrues by no later than sale of mortgaged property or only when it becomes reasonably ascertainable that lender will not be able to recover from mortgagor under personal covenant.

APPEAL – application for leave to appeal – proposed appeal from appeal on question of law under Civil and Administrative Tribunal Act 2013 (NSW), s 83(1) – where appeal grounds without merit – where arguable errors by Tribunal not relied on in proposed grounds of appeal – where those errors not raised before Tribunal or likely to have been material to outcome – leave refused

ADMINISTRATIVE LAW – judicial review – application under s 78 Crimes (Appeal and Review) Act 2001 for an inquiry into the applicant’s convictions and sentences for child sexual offences – decision to refuse to consider or otherwise deal with the application – applicant seeking to contradict conclusions reached in exercising that power – whether decision entailed vitiating error

EQUITY — Trusts and trustees — Judicial advice — Interpretation of trust instrument — Where trust governed by Unitholders Agreement — Whether action proposed to be taken by the trustee is valid under the Unitholders Agreement

HIGH RISK OFFENDER – final hearing – application for continuing detention order or extended supervision order – interim supervision order previously made – whether unacceptable risk of committing another serious sexual offence – whether sufficient resources to maintain high level of supervision in the community – continuing detention order imposed

CIVIL PROCEDURE — registrars — review of Registrar’s decision EVIDENCE — privileges — settlement negotiations — where information disclosed in “without prejudice” letter is asserted to amount to alienation of property within s 37A of the Conveyancing Act — whether a fraud within s 131(2)(j) of the Evidence Act 1995 (NSW) - where concealment of a fraud can be in furtherance of the fraud CIVIL PROCEDURE — preliminary discovery —to identify potential cause of action - to determine whether applicant is entitled to make a claim for relief — where cause of action already identified – whether applicant had sufficient evidence to commence proceedings without any need for preliminary discovery – whether reasonable enquiries made - whether application is for the purpose of suing a third party — whether documents sought were likely to assist the decision

CRIMINAL LAW – indecent assault of 8 year old grandchild – allegations of kissing on or near vagina – sexual intercourse – cunnilingus – whether trial miscarried by failure of counsel to lead evidence of alibi – new evidence presented on appeal – whether evidence established alibi – where time not of the essence – where indictment specified range of dates – whether miscarriage of justice – whether verdict unreasonable – analysis of evidence – audio visual recordings – whether appellate court should review evidence played to jury – where transcripts referred to gestures – gestures significant in determining whether prosecution proved sexual intercourse – advantages enjoyed by jury – verdicts not unreasonable CRIMINAL LAW – sentence – hardship to third parties – extra-curial punishment – specific grounds not made out – whether sentence manifestly excessive – exceptional case – applicant’s contributions to community – relevance of good character – elderly offender – medical conditions – leave to re-open – COVID-19 – conditions of incarceration – vulnerability of offender – relevance to sentence – objective criminality – fleeting offence – applicant stopped when asked – sentence excessive – applicant re-sentenced

MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — possession — application for stay of execution of writ of restitution — where defendants retook possession contrary to court orders — prospect of refinancing and hardship — successive applications on similar grounds — where evidence that refinancing of loan would occur prior to mortgagee sale of property

APPEALS — Application for leave to appeal from Local Court to Supreme Court — interlocutory order — whether leave to appeal ought be granted — leave to appeal refused

FAMILY LAW – Children – Parens patriae jurisdiction – Mother’s appeal from decision of Children’s Court now the appropriate vehicle for mother’s attempts to recover child

INSURANCE — Life insurance — Accident and sickness — Exclusions CIVIL PROCEDURE – where party seeks leave to amend defence

SUCCESSION – Probate and administration – Entitlement to grant of Probate – Contested proceedings – Where parties reach agreement to pass over a later Will in favour of grant in solemn form of an earlier Will – Where there was some doubt as to the validity of the later Will – Grant of Probate a public act – Orders not to be made as a matter of course – Whether, and in what circumstances, the Court will make a grant of Probate based on the agreement of the parties

TORTS – interference with goods – conversion –whether cross-claimant had a right to possession – whether goods were abandoned – whether estoppel in pais applies – damages not awarded TORTS – interference with goods – detinue – whether cross-claimant had a right to possession – whether failure to comply with a demand – no damages awarded

CIVIL PROCEDURE – parties – vexatious litigant – leave to re-commence proceedings refused

CIVIL PROCEDURE – Commencement of appeal against order of the Court in a Division – Summons under Part 50 of the UCPR not appropriate – No point of principle

PRACTICE AND PROCEDURE – joint hearing orders under Uniform Civil Procedure Rules 2005 (NSW) r 28.5 – application by plaintiff in two separate proceedings for both proceedings to be heard together or, alternatively, that one proceeding be heard immediately after the other proceeding and that both proceedings be heard by the same judge – where there are no common issues of fact and law – where common witnesses but plaintiff failed to identify material common evidence between the two proceedings – where hearing both proceedings together may be convenient for plaintiff but costly for defendants – application dismissed.

TORTS - negligence – nature of duty of care – escape of fire – origin of fire – nature of duty owed by owners of rural property to adjoining landowner – property damaged after controlled burn conducted by Rural Fire Service on application of landowners – whether duty non-delegable –whether duty satisfied by arranging to have Rural Fire Service conduct burn – requirements of Rural Fires Act 1997- TORTS - negligence - breach of duty - foreseeability - whether defendants had actual or constructive knowledge of the risk of harm - precautions which a reasonable person would have taken in the circumstances – whether adequate precautions taken NUISANCE- – relationship between nuisance and negligence – whether nuisance established DAMAGES – whether damages established - concurrent wrongdoers – apportionment – contributory negligence EVIDENCE – expert opinion evidence – whether experts possessed specialised knowledge- whether opinions based on expertise

CIVIL PROCEDURE – injunctions – interlocutory injunction – first defendant engages second defendant to remove plaintiffs’ equipment from rural premises – equipment transported a long distance for storage and will be expensive to return– the first defendant’s claim of right to the equipment is disputed – injunctions granted on 9 April 2020 for first defendant to return the income earning part of the equipment taken and to retain the other part of the equipment – further facts emerge showing that the second, third, fourth and fifth defendants played roles in the removal of the equipment – but the evidence does not support an inference that the second to fifth defendants were aware that the first defendant’s claim of right to the equipment was disputed – all the equipment is incurring storage charges to the third defendant at its present location – the first defendant has no present use for the equipment – change of circumstances – what variations should be made to the Court’s original orders to accommodate the balance of convenience, as it now appears from these additional facts.

CRIME – evidence from multiple complainants of sexual offences – trial judge ruled evidence admissible but not cross-admissible for tendency purposes – whether an anti-tendency direction was required – whether trial miscarried as a result of the direction not being given – relevance of the conduct of defence counsel – r 4 Criminal Appeal Rules CRIME – character evidence – whether trial miscarried as a result of the admission and use of bad character evidence – evidence led by or with the concurrence of defence counsel – legitimate forensic decisions – r 4 Criminal Appeal Rules CRIME – appeals – appeal against conviction – unreasonable verdict – trial turned on the jury’s assessment of the credit of the principal witnesses – open to the jury to be satisfied of guilt beyond reasonable doubt

High Court – Original jurisdiction – Applications for constitutional or other writ – Determination without hearing – Abuse of process – Where plaintiff seeks orders inter alia to quash orders of superior court of record dismissing appeal from judgment dismissing application for judicial review of decision of administrative tribunal affirming decision by delegate of defendant Minister – Where plaintiff has not applied for special leave to appeal or provided explanation for departure from ordinary appellate process – Whether application is an abuse of process. Migration – Visas – Skilled visas – Criteria for grant – Proof of skills – Where primary criteria to be satisfied for grant of visa include that application be accompanied by evidence that applicant had applied for assessment of skills for nominated skilled occupation by relevant assessing authority – Where visa applicant had failed skills assessment and not applied for subsequent skills assessment at time of submitting application – Whether evidence provided to defendant Minister after that time relevant to satisfaction of criterion. Words and phrases – "abuse of process", "accompanied by", "constitutional writs", "determination without oral hearing", "discretion to refuse relief", "extraordinary relief", "less convenient, beneficial and effective", "ordinary appellate process", "original jurisdiction", "skills assessment", "unnecessary recourse". Constitution, s 75(v). Migration Regulations 1994 (Cth), Sch 2, cl 485.223.

Damages – Consumer guarantees – Personal injury – Where appellant booked holiday cruise tour supplied by respondent – Where holiday cruise tour severely disrupted by adverse weather conditions – Where respondent breached consumer guarantees in ss 60 and 61 of Australian Consumer Law ("ACL") – Where appellant claimed damages for disappointment and distress – Where s 275 of ACL provided that where failure to comply with consumer guarantee that applies to supply of services and State law proper law of contract, that law applies to limit or preclude liability for failure and recovery of liability as it would for breach of contract – Where New South Wales proper law of contract – Where s 16(1) of Civil Liability Act 2002 (NSW) ("CLA") precluded damages for non-economic loss in relation to personal injury cases unless non-economic loss at least 15% of most extreme case – Where threshold in s 16(1) not reached – Whether s 275 of ACL picked up and applied s 16 of CLA as surrogate federal law – Whether s 16 of CLA applied to preclude damages for disappointment and distress not consequential upon physical or psychiatric injury. Words and phrases – "breach of contract", "damages", "disappointment and distress", "enjoyment", "head of loss", "holiday cases", "impairment of a person's physical or mental condition", "loss of amenities of life", "non-economic loss", "pain and suffering", "peace of mind", "personal injury", "quantification of damages", "recovery", "recovery of that liability", "recreation", "surrogate federal law". Competition and Consumer Act 2010 (Cth), Sch 2, ss 60, 61, 267, 275. Civil Liability Act 2002 (NSW), ss 3, 11, 11A, 16.

Criminal practice – Accusatorial system of criminal justice – Companion rule – Where subpoena issued for employee to attend to give evidence at coronial inquest into manner and cause of another employee's death – Where employer and Commonwealth of Australia prosecuted for alleged failures to comply with duty to ensure worker health and safety – Where s 87(1)(b) of Evidence Act 2011 (ACT) relevantly entailed that representation by employee of party relating to matter within scope of employment taken as admission by that party – Whether invocation of investigative power to compel employee to give evidence about matter with respect to which employer stands charged amounts to compelling employer to give evidence contrary to rule that accused not required to assist Crown in proving its case. High Court – Appellate jurisdiction – Practice – Extension of time – Where first respondent sought leave to file notice of contention out of time alleging that compulsion of its employee to give evidence at coronial inquest would constitute contempt of court in parallel criminal proceedings by creating real risk of interference with justice according to law – Where criminal proceedings concluded and first respondent acquitted of offences – Whether extension of time should be granted to resolve question of whether compulsory examination of potential witness other than accused can amount to contempt of court. Words and phrases – "accusatorial system of criminal justice", "admissions made with authority", "attribution", "companion rule", "compulsory investigative powers", "compulsory pre-trial examination", "contempt of court", "coronial inquest", "extension of time", "hypothetical circumstances", "practical reality", "real risk of improper interference with criminal proceedings". Coroners Act 1997 (ACT), ss 36, 43, 58(6). Evidence Act 2011 (ACT), s 87(1)(b).

MORTGAGES AND SECURITIES – mortgagee in possession – dispute as to removal of personal items of mortgagor – no question of principle

CIVIL PROCEDURE – hearings – separate hearing application – validity and enforceability of deed of settlement

COSTS – substantive matter resolved in favour of defendant – plaintiff self-represented and indigent – plaintiff to pay costs of substantive proceedings – plaintiff to pay costs of majority of interlocturoy proceedings in which costs not previously determined