Cases and authorities

GUARANTEE AND INDEMNITY – Actions to enforce guarantee – no issue of principle CIVIL PROCEDURE – Hearings – Adjournment – whether filing of debtor’s petition seeking to be made bankrupt sufficient to warrant adjournment – whether evidence of defence to claim – whether evidence that bankruptcy order had been made

CIVIL PROCEDURE — pleadings — particulars

CIVIL PROCEDURE – interim preservation – detention, custody or preservation of property – freezing order – whether danger of abuse of process – whether danger of dissipation of assets with a view to avoiding judgment debt

CIVIL PROCEDURE – stay of proceedings – concurrent civil and criminal proceedings – consent to stay in relation to individual defendant facing 58 charges under Crimes Act 1900 (NSW) – whether stay should be ordered in relation to other defendant, a company – whether company’s defence in civil proceedings risks prejudice to second defendant’s right to silence in criminal proceedings – where factual issues in civil and criminal proceedings overlap – where second defendant is the sole shareholder, director and company secretary of defendant company – whether NAB should be permitted to use Court processes to obtain documents in aid of tracing remedy

CIVIL PROCEDURE – pleadings – strike-out application – proceedings for judicial review and misfeasance in public office – same causes of action determined in earlier proceedings between the same parties – attempt to re-litigate issues previously determined by the court with additional evidence – plaintiff bound by manner in which his lawyers conducted previous case JUDICIAL REVIEW – application out of time for review of decision no longer having any operation – whether proceedings inutile

CRIME – appeals – appeals against sentence – sentenced for dealing with proceeds of crime – sentenced for knowing participation in a criminal group – whether sentencing judge imposed a manifestly excessive sentence – leave to appeal refused

PRACTICE AND PROCEDURE – application on notice to file Amended Statement of Claim for malicious prosecution and stay pending outcome of criminal appeal – defendant’s application to strike out and dismiss proceedings – cause of action not yet arisen – delay – no relevant time constraint – proceedings dismissed

CRIMINAL PROCEDURE – trial – jury – offences related to conspiracy to import border controlled drugs – three conspiracies alleged – Crown opening address to jury – proposed use of documents by Crown as aide-mémoires – whether documents would prejudice the trial – use of visual and documentary aid in jury trials generally – documents amended and provided to jury

CIVIL PROCEDURE — Probate and administration of estates — determination as to Construction of Will – s 41 of the Succession Act 2006 (NSW) – where named beneficiary dies leaving only one issue – whether the issue is entitled to the beneficiaries portion of the estate

COSTS – Gross sum costs order – Parties agree amount – No issue of principle

CRIMINAL PROCEDURE – application for orders preserving anonymity of undercover operative (UCO) – proposed orders for UCO evidence to be given by audio-visual link, or in-court with screens to prevent accused from identifying him – consideration of fairness of trial and interests of justice – disputed proposed orders not made – all other proposed orders made

EQUITY – Equitable charges and liens – Solicitor’s lien – plaintiff terminated retainer of solicitors, the defendants (“the solicitors”), in respect of Land and Environment Court proceedings – plaintiff disputes memoranda of fees claimed by the solicitors – solicitors claim lien over their file to secure payment of their fees – solicitors decline to transfer their file to new solicitors – plaintiff offering first mortgage security over property owned by another company also controlled by the principals of the plaintiff – solicitors dispute terms and conditions of the first mortgage

WORKERS’ COMPENSATION – plaintiff injured at work – claim for compensation for permanent impairment – whether permanent impairment necessarily from work injury – medical assessment certificate issued by approved medical specialist – appeal to Appeal Panel – determination of causation ADMINISTRATIVE LAW – review under s 69 of the Supreme Court Act 1970 (NSW) – failure to address plaintiff’s argument – whether jurisdictional error – whether error of law on the face of the record – whether constructive failure to exercise jurisdiction by Appeal Panel

PROFESSIONS – lawyers – barristers – practising certificates – plaintiff admitted as legal practitioner in the Supreme Court of NSW – plaintiff completed Bar Practice Course and has applied to the defendant for a practising certificate – defendant has not issued a practising certificate and continues to conduct investigations into the plaintiff’s fitness to practice as a barrister – plaintiff seeks forthwith the grant of practising certificate as a barrister – defendant resists the grant of relief – Court denies relief sought by plaintiff.

LEASES AND TENANCIES – residential communities – where defendant purchased demountable home located on site within caravan park owned by plaintiff – absence of written site agreement – lengthy period of permanent residence and acceptance of rent – whether the Appeal Panel of the Civil and Administrative Tribunal erred in holding that the parties had entered into a site agreement within the meaning of the transitional provisions of the Residential (Land Lease) Communities Act

COSTS – party/party – exceptions to general rule that costs follow the event – Land and Environment Court – Class 3 compensation proceedings – where UCPR r 42.1 does not apply and offer of compromise rejected and judgment obtained for less than amount of offer – application of UCPR r 42.15(2) – principles relevant to exercise of discretion to “order otherwise” – whether primary judge erred in applying those principles ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure – costs –Class 3 compensation proceedings – where presumption that costs follow the event does not apply – whether primary judge erred in applying UCPR r 42.15

CRIMINAL PROCEDURE – Admissibility of evidence – whether to permit refreshing of memory with contemporaneous document – fresh in the memory – importance of witness – judicial function to ensure fairness in trial – refuse leave

CIVIL PROCEDURE – possession proceedings – application by defendant for appointment of tutor to act in place of defendant – no evidence that defendant is a person under legal incapacity – application dismissed

CIVIL PROCEDURE — Parties — Interveners — intervention by Minister pursuant to s 86A of the Coroners Act 2009 (NSW)

CORPORATIONS – whether appropriate to wind up on just and equitable ground – where irretrievable breakdown between directors and shareholders of company and affairs of company are deadlocked – where solvency of company is doubtful – appointment of independent liquidator

COSTS – where interlocutory application resolved without a hearing on the merits – where parties consented to final orders – where winding up order made – whether one party’s conduct unreasonable or whether clear that one party would have succeeded on interlocutory application – need for robust approach to end satellite litigation as to costs

CORPORATIONS – statutory demand – application to set aside a statutory demand – where demand based on judgment arising upon filing of adjudication certificate – whether offsetting claims arising from delays, overpayments, defective, incomplete and damaged works – whether a serious question or issue deserving of a hearing

CIVIL PROCEDURE – application for pro bono assistance – where pro bono assistance granted in immediately preceding three years

CIVIL PROCEDURE – subpoenas – application to set aside – where subpoena sought documents demonstrating respondent’s place of practice – whether subpoena lacks legitimate forensic purpose

CIVIL PROCEDURE – Court of Appeal – application for stay pending appeal – payment of judgment sum below into Court

CIVIL PROCEDURE – registrars – review of registrar’s decision – court of appeal – no issue of principle

CIVIL PROCEDURE – application under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) for referral to Pro Bono Panel – no issue of principle

CIVIL PROCEDURE – approval of settlement – by consent – whether the Court is satisfied that the settlement is beneficial to the person under legal incapacity – settlement approved

PROCEDURE – Contempt, attachment and sequestration – Contempt – What constitutes – Injunctions to restrain contempt

BUILDING AND CONSTRUCTION – payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) – application for summary judgment – whether validity of payment claim is a triable issue – whether email constitutes payment schedule – where email fails to specify the claims to which it objects and the grounds for objection COSTS – security for costs – relevance of personal undertaking by director – discretion to order – no issue of principle

HIGH RISK OFFENDER – final hearing – application for extended supervision order – Court not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision – no extended supervision order made

ADMINISTRATIVE LAW – claim under Motor Accidents Compensation Act 1999 (NSW) following motor accident – assessment by medical review panel of degree of permanent impairment – application for judicial review – whether error of law on the face of the record – whether jurisdictional error – no error of law on the face of the record or jurisdictional error made out

CIVIL PROCEDURE – Interlocutory applications – plaintiff supplies furniture and bedding to retail stores – plaintiff seeks interlocutory relief for the removal of certain stock from premises leased to the second defendant – defendants resist the relief sought – plaintiff signed Management Agreement with third defendant – third defendant now deregistered –evidence that the plaintiff has accepted second defendant as the active counterparty to the Management Agreement after the deregistration of the third defendant – first defendant controls second defendant – Management Agreement authorises plaintiff to conduct the operation of the third defendant’s then the second defendant’s business – second defendant terminates Management Agreement – issue as to who owns the stock at the premises leased by the second defendant – is there a serious question to be tried – what is the balance of convenience.

COSTS – Whether the unsuccessful first defendant should be ordered to pay the costs of the fourth defendant

PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) 5.10 – Order for particulars – No point of principle

COSTS – Indemnity costs – Where the plaintiff acted unreasonably as executor in ordering the defendant to vacate a property under the estate – No point of principle

PRACTICE AND PROCEDURE – Leave – Whether to grant leave to withdraw admissions – Whether to grant leave to file an amended defence

ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Jurisdictional error – Review of a certificate of a medical Review Panel – Failure to respond to substantial and clearly articulated arguments –– Where the plaintiff had a history of impairment in in the same location as the subject injury

CIVIL PROCEDURE – jurisdiction of Supreme Court to hear appeal from decision of single member of NCAT – whether Supreme Court should decline to exercise jurisdiction when no right of appeal pursued at NCAT first – right of internal appeal at NCAT available – Court declines to exercise jurisdiction to hear appeal

TORTS — negligence — labourer fell from raised wet plywood platform — whether expert evidence necessary to support finding that surface was slippery — whether primary judge erred in assessment of evidence and consequent factual findings — contributory negligence — whether worker contributorily negligent in following employer’s direction to work on wet platform DAMAGES — assessment of damages for economic loss — whether evidence supported finding of residual earning capacity — application of principles in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

APPEALS – civil procedure – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – whether trial judge erred in dismissing proceedings – whether instituting criminal proceedings to vex the accused is within the lawful scope of the criminal process – non-publication order – Court Suppression and Non-Publication Orders Act 1998 (NSW) – whether order an interim order TORTS – tort of collateral abuse of process – distinguished from abuse of process justifying a stay of proceedings – elements of the tort

LAND LAW – Compulsory acquisition of land – Compensation – Objection to amount of compensation APPEALS – Right of appeal conferred by s 57 of the Land and Environment Court Act 1979 (NSW) limited to questions of law – Whether adjustments made by primary judge when considering comparable sale constitute errors of law – Whether primary judge erred in concluding acquisition of appellants’ land was for a purpose intrinsically connected with the draft Parramatta Road Urban Transformation Strategy (PRUTS) – Whether primary judge erred in disregarding prospect of rezoning the appellants’ land apart from the draft PRUTS APPEALS – General principles – Admission of fresh evidence

CRIME – APPEALS – appeal against sentence –firearm offences contrary to s 93G(1)(a)(i) of the Crimes Act 1900 (NSW) and s 7(1) of the Firearms Act 1996 (NSW) – drug supply contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) – whether error in assessment of culpability with regard to firearm offences – whether error in assessment of objective gravity of drug offence – whether sentence manifestly excessive – discussion of particularisation of firearm offence on Court Attendance Notice – discussion of period of possession of firearm – consideration of double punishment and imposition of identical wholly concurrent sentences for the firearm offences – consideration of indicative sentence for the drug offence – aggregate head sentence manifestly excessive – resentence

CRIMINAL LAW – sentence appeal – making documents connected with preparation for a terrorist act – error in failing to have regard to the utilitarian value of the plea of guilty – need to independently re-exercise the sentencing discretion – need for such re-sentence to reflect considerations of general deterrence, protection of the community and denunciation of the offence – appeal allowed and applicant re-sentenced.

CRIMINAL PROCEDURE – Evidence taken by Audio Visual Link – importance of witness – question of unfairness – balancing administration of justice

CORPORATIONS – winding up – Corporations Act 2001 (Cth) Pt 5.3A and ss 436B(2G), 436B(2)(g), 438A and 477(2B) – where company placed under winding up for deadlock, liquidators wish to appoint themselves as voluntary administrators to further the interests of the company by raising levies to carry out strata conversion and necessary building repairs – where Court refused earlier stay of the winding up pending a proposed appeal – present desirability of making orders sought

CONTRACTS – formation – where lessee is granted first right of refusal to purchase property under a lease of such property – where lessor makes offer to plaintiff to purchase property pursuant to first right of refusal – offer stated to be open for 14 day period – where during the period the lessee indicates that it “would offer” to purchase the property on different terms – where lessee subsequently attempted to accept lessors’ offer – whether the lessee had made a counter-offer which operated as a rejection of the lessors’ offer – held no counter-offer made – lessee entitled to order for specific performance

Civil Law – Application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – High Risk Sex Offender – Final Hearing

MENTAL HEALTH – forensic patient – Mental Health (Forensic Provisions) Act 1990 – extension order application – final hearing – issue as to length of order – schizophrenia comorbid with intellectual disability, substance use disorder and anti-social personality disorder – need for high level support and monitoring – risk would not be adequately managed by civil patient status under Mental Health Act 2007, a guardianship order or good behaviour bonds – two years found to be minimum period for treatment and stabilisation – extension order made for two years

LEASES AND TENANCIES – application for leave to appeal – where residential premises uninhabitable – where tenant refused landlord access to carry out repairs – where tenant given notice of termination under Residential Tenancies Act 2010 (NSW), s 109 – where Civil and Administrative Tribunal made orders terminating tenancy agreement and for vacant possession – where tenant appealed to Appeal Panel – where Appeal Panel refused tenant’s adjournment application and dismissed appeal – where tenant applied for leave to appeal to the Supreme Court – where primary judge summarily dismissed proceeding due to “negligible prospects of success” – no question of principle