Cases and authorities

TRADE MARKS – claim for damages for infringement against prior registered trade mark owner – pleading embarrassing and disclosed no reasonable cause of action – orders made

CIVIL PROCEDURE – case management – directions – extension to timetable and view sought following recent change of plaintiff’s solicitors – open-ended right to serve further evidence and view not conducive to just, quick and cheap resolution of real issues – orders made to give plaintiff opportunity to serve refresher medical expert evidence and provide for mediation

PRACTICE AND PROCEDURE – variation of non-publication order to permit disclosure in criminal trial and bail application

PRACTICE AND PROCEDURE – unrepresented litigant sought to file three notices of motion for summary judgment because hearing date thought to be too far into the future – whether plaintiff ought be prohibited from making further applications within specified time period without leave – orders made as sought

CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — No defence save the claim for costs on an indemnity basis – where the defendant while in the employment of the plaintiff misappropriated moneys

CIVIL PROCEDURE – parties – vexatious litigants –variation of orders made under Vexatious Proceedings Act 2008 (NSW) – defining category of cases the subject of proceedings not practical in particular circumstances of case – blanket order made CIVIL PROCEDURE – summary disposal – dismissal of proceedings – frivolous or vexatious proceedings – no jurisdiction – proceedings dismissed

SUCCESSION – intestacy – whether plaintiff in a domestic partnership with deceased – de facto relationship – “relationship as a couple living together” – “living together” – where plaintiff divided time between deceased’s house in the city and a country property where he spent time by himself – alternative claim for provision from estate

NEGLIGENCE – Severe personal injury – gas explosion at place of work – second stage gas regulator negligently installed – gasfitting at school – Dangerous Goods (Gas Installations) Regulation 1998 (NSW) (Repealed) CIVIL LIABILITY – Common Law duty – whether duty of principal contractor can give rise to a non-delegable duty – whether duty will always be discharged by appointment of independent contractor – requirement of certain factors – held circumstances can exist between principal contractor and plaintiff giving rise to non-delegable duty. CIVIL LIABILITY – Statutory duty – whether breach gives rise to private right of action – whether contrary to legislative purpose of Regulation – whether clause is penal in nature – whether plaintiff included in class of individuals to whom a duty is owed – statutory breach made out. DAMAGES – Joint liability – law of negligence – proceedings for recovery of damages for personal injury – multiple parties – action may be brought against each tortfeasor – subject to statutory modifications – not to recover more than full satisfaction for loss against one or more of the tortfeasors – whether any of the active parties legally responsible for Mr Hossain’s injuries.

CIVIL PROCEDURE – pleadings – application to strike out – whether reasonable cause of action disclosed – whether particulars can be provided to remedy deficiencies in statement of claim

ENVIRONMENT AND PLANNING – building control – council consent and approval – whether the Council’s processes in determining whether to amend a Local Environmental Plan are of a political and policy nature only, precluding the Land and Environment Court from intervening – whether there was a reasonable apprehension of bias that should preclude the Council from proceeding with the Planning Proposal for the amendment of the Local Environmental Plan APPEALS – whether the primary judge demonstrated any error in failing to make an order requiring the Council to withdraw the Planning Proposal for the amendment of the Local Environmental Plan – whether the proceedings in the Land and Environment Court have been the subject of final disposition

EVIDENCE — records of prior communications concerning FOS complaint – admissibility – hearsay – prior consistent statement. EVIDENCE — Opinion evidence — Expert opinion –economist’s opinion about conduct of bank towards customers – admissibility – Makita principles. CONTRACTS – Performance – Variation of Terms –variation of loan repayment terms – need for consideration – assumption of risk that variation may benefit either party. CONTRACTS — Misleading conduct under statute —variation of loan terms purportedly without customer’s knowledge and approval – misleading or deceptive conduct - unconscionable conduct - estoppel. BANKING AND FINANCE — Banks – Statutory unconscionability – two year commercial loan – “asset lending” – breach of term of contract incorporating Banking Code of Practice. BANKING AND FINANCE — Banks – breach of term of contract incorporating Banking Code of Practice cll 25.2 and 2.2 – requirement under term for co-operation between the customer and Bank – no breach by fixing final date for repayment after period of forbearance. BANKING AND FINANCE — Banks — Bank accounts — Interest – entitlement to charge interest at contractual rates following expiry of loan – entitlement to interest on amounts paid and set aside for costs – repudiation – termination.

CRIMINAL LAW – trial by judge alone – murder – allegation of accused running over deceased in a car with the requisite intent – circumstantial case

CIVIL PROCEDURE – PLEADINGS – Striking out – application to strike out Statement of Claim – defendants contend on a motion to strike out that a Statement of Claim is defective in form under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 14.28(1)(b) – defendants also contend that proceeding should be dismissed on the grounds that they fail to disclose a reasonable cause of action and are an abuse of process under UCPR, r 14.28(1)(a) and (c) – whether proceedings should be struck out – whether proceedings should be dismissed on other grounds – what consequential orders should be made.

LAND LAW – easements – creation of easements – creation by prescription – long use of land from late 1880’s and from 1981 – whether doctrine of lost modern grant applies where identity of owners of land unknown from 1880s to 2008 – held that easement by prescription could still arise – use sufficiently open that a diligent owner would have been aware of it LAND LAW – easements – creation of easements – creation under statute – applications under s 88K Conveyancing Act 1919 (NSW) – easements for overhang and encroaching structures to remain and for repair and services considered reasonably necessary – where elements of first plaintiff’s heritage building intrude on to defendants’ land – compensation awarded under s 88K Conveyancing Act 1919 (NSW) – easements for drainage of sewerage and water and for light and air refused –– first plaintiff failed to establish easements for light and air were reasonably necessary LAND LAW – easements – creation of easements – creation by express grant or implication in old system deeds of conveyance – held that general words in 1871 deed created rights of way to benefit of landlocked plots over private lane where only access to public road via that lane – where rights of way no longer accommodate the second plaintiff’s land – held that second plaintiff does not have the benefit of any existing rights of way LAND LAW – easements — where owner of dominant tenement purported to transfer benefit of rights of way to other land – held that purported transfer invalid – held that easements are not ‘extended’ upon consolidation of landholdings

CHILDREN AND YOUNG PERSONS – appeal to the Supreme Court under the Children (Care and Protection) Act 1998 (“the Care Act”), s 91 against an order of the Children’s Court allocating parental responsibility of two children to the Minister, the first defendant, under Care Act, s 79 – the two children were removed from the care of their father, the plaintiff, who had adopted them in an overseas country – the removal of the children from the plaintiff took place under authority conferred by the Care Act – children under the care of the Minster – grounds for removal were the plaintiff’s violence and alleged sexual abuse towards them – plaintiff admits a non-sexual assault on one child and is indicted for trial for an alleged sexual assault on the other child – the Presidential Children’s Court proceedings confirmed the removal of the two children and ordered that they be kept under the care and control of the Minister until the age of eighteen – the plaintiff brings an appeal from the President of the Children’s Court to this Court – plaintiff’s appeal does not challenge the finding of the Children’s Court allocating parental responsibility of two children to the Minister – plaintiff confines his appeal to grounds that an early foster carer of the children (“the first carer”) was unsuitable for the future care of the children and that the children’s permanency planning is inadequate in part because it does not exclude the risk that the children may have future contact with the first foster carer – the defendants have since replaced the first carer with new carers (“the second carers”) – the plaintiff does not challenge the continuation of the children’s care by the second carers – whether the plaintiff’s appeal is competent – whether permanency planning in respect of the children has been addressed – whether the Court should direct that a new care plan and a new permanency plan be filed – whether the plaintiff’s appeal should be dismissed.

TORTS – negligence – personal injury – plaintiff slipped on wet tiles – content of duty of care – Civil Liability Act 2002 (NSW) – identification of risk of harm – breach of duty and causation established – finding of contributory negligence – verdict in favour of plaintiff – assessment of damages – identification of injuries caused by fall – whether plaintiff’s symptoms caused by fall – verdict and judgment in favour of the plaintiff.

CIVIL PROCEDURE – stay of proceedings – pending appeal – no issue of principle

CRIMINAL LAW – appeal against sentence - kidnapping and attempted arson – bizarre offending - offender with mental illness - relevance to sentencing - reduction in moral culpability - error in failing to take into account - offences committed during change of drug regime - failure to follow doctor’s orders - where no history of violent or bizarre behaviour - correct approach to sentencing - prospects of rehabilitation - failure to make finding - error in sentencing process - applicant re-sentenced

COSTS – party/party – determination as to costs of hearing – where prayers of originating process divided over two separate hearings – where plaintiffs had success at first hearing – whether plaintiffs should be awarded their costs of first hearing. COSTS – party/party – determination as to costs of hearing – where prayers of originating process divided over two separate hearings – where plaintiffs were unsuccessful at second hearing – whether plaintiffs should pay costs of first defendant at second hearing. COSTS – party/party – general rule that costs follow the event – where interlocutory process and notice of motion need not be determined – whether filing party should be ordered to pay costs. COSTS – application for costs on an indemnity basis – where offer of compromise/Calderbank offer made – where offer addressed to multiple parties – where offer sent during holiday period and open for acceptance until soon after end of holiday period – whether it was unreasonable for offers to not be accepted.

PARTNERSHIPS AND JOINT VENTURES – dissolution – receiver directed to prepare report as to parties’ entitlements – determination of parties’ entitlements by Court – no question of principle CONTRACTS – construction – interpretation – whether clause imposed cap on recoverable contributions for construction costs – no question of principle

ADMINISTRATIVE LAW – judicial review – Property, Stock and Business Agents Act 2002 (NSW) ss 118(2) and 222 – where a delegate of the Commissioner for NSW Fair Trading had power to issue a direction to freeze an account – whether form of direction complied with the requirements of the Act – whether there was a requirement to afford procedural fairness before or after giving the direction – whether the direction was invalid because it was unreasonable; HELD: direction valid

FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Adoption — Whether adoption order clearly preferable to any other order that could be made with respect to care of child FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Adoption — Whether consent of birth parents should be dispensed with FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Adoption — Whether the child’s name should be changed

SUCCESSION — Wills, probate and administration — Proper construction and effect of testamentary dispositions SUCCESSION — Wills, probate and administration — Construction and effect of testamentary dispositions — Admissibility of extrinsic evidence — Ambiguity at common law — Ambiguity under s 32 of the Succession Act — Ambiguity vs equivocation — No relevant ambiguity found

ADMINISTRATIVE LAW – statutory construction – whether statutory benefits under Motor Accident Injuries Act 2017 (NSW) are payable beyond 26 weeks – where fault in causing motor accident is criterion for termination of statutory benefits at 26 weeks – where accident not caused by fault of driver for purposes of ss 3.11 and 3.28 of Act – difficulty reconciling ss 5.1 and 5.6 – s 5.2(1) distinction between fault in causation of injury and fault in causation of accident – no error of law in assessor’s determination

EQUITY- unconscionable conduct – special disadvantage- whether unconscientious advantage taken- undue influence EQUITY- fiduciary duties- breach- rule in Barnes v Addy

COSTS – indemnity costs – Calderbank offer issued before trial – the Calderbank letter offered the same outcome as was achieved in the proceedings – whether a Calderbank offer was a basis for awarding indemnity costs in the plaintiff/cross-defendant’s favour.

PROCEDURE — judgments and orders — amending, varying and setting aside — notice of motion to set aside judgment— motion dismissed with costs.

SUCCESSSION – claim for family provision – deceased dies without spouse or issue – deceased’s will gives his estate in varying percentages to his surviving siblings, his nieces and his nephews – the plaintiff, one of the brothers of the deceased, receives 5 per cent of the deceased’s estate – the plaintiff claims he is an “eligible person” under Succession Act, s 57(e) on the grounds that he was dependent upon the deceased and lived in the deceased’s household – in the event that the plaintiff is found to be an eligible person under s 57(e), whether there are “factors warranting” the making of the plaintiff’s application – whether adequate provision was not made for the plaintiff’s proper maintenance, education and advancement in life under the deceased’s will – what would an appropriate provision be for the plaintiff’s proper maintenance, education and advancement in life.

NEGLIGENCE — dangerous premises — where property belonging to licensee on sufferance damaged and destroyed by fire in hangar — whether fire caused by defective wiring — whether licensor liable for failure to repair defective wiring where licensee had contractually assumed liability for defects in hangar BAILMENT — duties of bailee — duty of care — duty to take reasonable care of property left on premises — whether duty required landlord to remedy defective wiring BAILMENT — gratuitous bailment — whether landlord liable for the disposing without bailee’s consent of property which survived hangar fire

TORTS – negligence – where plaintiff alleges hospital was negligent by failing to transfer her to appropriate hospital for birth of son – where plaintiff alleges hospital failed appropriately to care for son after his birth – where plaintiff sues for nervous shock – whether hospital acted in a manner that was widely accepted by peer professional opinion as competent professional practice – standard of care met by hospital LIMITATION OF ACTIONS – torts – where statement of claim filed 7 years and 2 months after events giving rise to cause of action – whether cause of action was undiscoverable until later date – whether plaintiff under a disability such that limitation period suspended – cause of action not maintainable

CRIME – sentence appeal – maliciously inflict grievous bodily harm – attempted sexual intercourse without consent in circumstances of aggravation – convictions in 2015 for offences committed in 1996 –failure to accept evidence of rehabilitation – failure to accept evidence of mental illness – manifest excess

CRIME – appeals – leave to appeal against conviction – supply large commercial quantity of prohibited drug and possess prohibited weapon – where applicant’s counsel did not object to summing up or directions at trial – whether trial judge erroneously confined applicant’s evidence on possession as relevant to the Carey defence – whether directions on joint possession misled the jury – whether the applicant’s case on possession fairly put to the jury in the summing up and directions

CRIME – appeals – appeal against conviction – accessorial liability – Crimes Act 1900 (NSW), s 61J – where basis of Crown case unclear – whether trial judge conflated concepts from joint criminal enterprise to directions to the jury on proof of accessorial liability – recklessness insufficient for accessorial liability

CRIMINAL LAW – sentence appeal – two offences of aggravated sexual assault in company, one count of aggravated indecent assault, one count of produce child abuse material – sexual assault by two school boys on female fellow student – whether unjustified disparity in sentences imposed – moral culpability of one offender greater than other – unexplained inconsistency in indicated sentences – disparity established – need to re-sentence.

CRIME – appeals – appeal against sentence –whether sentencing judge failed to assess objective seriousness of offences properly – offending occurred when applicant was 13, 14 or 15 years old – causative mental disorder – appeal allowed – applicant re-sentenced

ADOPTION - FAMILY LAW AND CHILD WELFARE –Adoption- whether adoption in the child’s best interests- whether adoption clearly preferable

CIVIL LAW – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk sex offender – preliminary hearing – appointment of experts to conduct psychiatric examination

CIVIL PROCEDURE – application for summary dismissal – no reasonable cause of action

COSTS – Calderbank letter – No reference to seeking indemnity costs in letter – Whether unreasonable to refuse offer – Indemnity costs not ordered

RESTRICTED PREMISES ACT 1943 – application for declaration – suspicion on reasonable grounds – effect of reputed criminals living on premises – matters germane to exercise of discretion – hardship to defendant irrelevant – declaration made

CIVIL PROCEDURE – interim preservation – detention, custody or preservation of property – freezing order – whether danger that costs order will be unsatisfied by reason of assets of debtor being diminished in value

EQUITY — Trusts and trustees —Trust powers —Powers of appointment – whether trustee validly appointed – whether appointment complied with trust deed – where email gave notice of appointment and foreshadowed further formal notice – whether formal notice sent – whether appointment invalid as an abuse of power – where appointor appointed as trustee a company under his control – power to appoint trustee not fiduciary in nature nor fraud on the trust power in issue – consideration of Re Skeats’ and Montevento Holdings Pty Ltd v Scaffidi. EQUITY — Trusts and trustees — Trust instruments – breach of trust deed where transfer of units registered and notice procedure not followed – no estoppel by party’s failure to take issue with transfer at mediation – no relief sought against the transfer. EQUITY — Trusts and trustees — Termination of trust – appointment of receiver sought to secure winding up of the Trust – form of orders inappropriate to effect relief sought – inappropriate to terminate trust where business remains profitable and no oppression made out. EQUITY — Trusts and trustees — Unit trusts – Distribution of entitlements – salary sacrifice arrangement in breach of Income Tax provisions - unit holders to repay entitlements received in addition to salary.

EQUITY – trusts and trustees – breaches of trust –professional trustee – pine plantation investment scheme – whether trustee acted in breach of trust by surrendering security without receiving amount due to covenantholders or alternative security – what equitable compensation should be awarded EQUITY – equitable remedies – equitable compensation – causation – whether retainer of solicitors by trustee an answer to claim for breach of trust – nature of advice given to trustee by solicitors – whether a reasonable trustee would have relied on the advice given CONTRACTS – solicitors – retained by trustee to advise whether transaction documents contained onerous or unusual provisions and whether documents in order for execution – whether such advice was an adequate response to the retainer – whether trustee would have entered transaction in any event

CIVIL PROCEDURE – where defendant granted right of occupation of property on certain conditions by her mother’s will – where defendant allegedly failed to comply with conditions – where trustee of deceased’s estate obtained writ of possession against defendant – where defendant remained in possession of land – where trustee now applies for assessment of damages against defendant – where no appearance from defendant – whether court should proceed in absence of defendant

APPEAL – Misleading or deceptive conduct – accessorial liability – representation as to future conduct – determination of liability where applicant held liable for causes of action not pleaded against him – whether failure to accept offer of insurance was a failure to mitigate loss – apportionment of liability – variation of costs orders – joint and several liability

JUDICIAL REVIEW – decision of Appeal Panel of Civil and Administrative Tribunal – dispute between tenant and subtenant as to the use of a shower – subtenant seeking compensation after being wrongfully locked out premises – where claims rejected largely on factual findings – no question of law arising such as to warrant a grant of leave to appeal

CIVIL PROCEDURE – originating process – statement of claim for damages – expiry before valid service on defendants – whether service of stale statement of claim on second defendant subsequently authorised – whether service a procedural irregularity within s 63 of Civil Procedure Act 2005 (NSW) – where time for service extended but personal service never effected on first defendant – whether proceeding should be set aside, the time for service be extended or first defendant be taken to have been served – leave to amend pleadings CIVIL PROCEDURE – registrars – power of District Court registrar – extension of time to serve originating process under UCPR, r 1.12 – where assistant registrar lacked delegated power to dispense with requirement to serve notice of motion on affected party – effect of purported order under UCPR, r 1.12 – consideration of procedural irregularities under s 63 of the Civil Procedure Act 2005 (NSW) – whether order extending time for service should be set aside or varied under UCPR, r 36.16(2)(b)

CIVIL PROCEDURE – effect of grant of “liberty to apply” – whether costs order final – time limit for applying to vary a final order – dispensing with filing of notice of motion under s 14 Civil Procedure Act COSTS – offer of compromise – whether judgment “no more favourable” than offer – when order “otherwise” appropriate

CRIME — appeals — appeal against conviction — applicant convicted on three counts of various child sexual assault offences — whether jury verdicts unreasonable given conflicts in evidence as to peripheral matters — whether jury verdicts unreasonable given acquittals on other counts over uncertainty as to date of offence — probative value of tendency evidence where conduct separated by large gap in time — use of tendency evidence retrospectively — whether primary judge gave inadequate R v Markuleski (2001) 52 NSWLR 82 direction — whether trial miscarried because cross-examination did not comply with Evidence Act 1995 (NSW) s 44(3) CRIME — appeals — appeal against sentence — manifest excess — whether sentencing judge’s assessment of objective seriousness of offending exaggerated