Cases and authorities

COSTS – departure from the usual rule – application by the plaintiffs’ for indemnity costs – Calderbank letters – whether the plaintiffs’ Calderbank offer represented a genuine compromise – whether it was unreasonable for the defendants not to accept offer – indemnity costs awarded

COSTS - Party/Party - Payable out of a fund - Deceased estate - Proceedings to remove executor and for judicial advice as to whether executor should defend - Proceedings resolved without a hearing on the merits - Whether executor entitled to costs of both proceedings on the indemnity basis from the estate

COSTS — Application for indemnity costs — Where application to set aside statutory demand without merit — Where defendant averted to weakness of plaintiff’s claim in correspondence before proceedings commenced — Where plaintiff reserved right to claim imdemnity costs — Application audacious and without proper basis — Appropriate to order costs on the indemnity basis. COSTS — Application to fix costs in a gross sum — Summary application — Amount in issue relatively small — Where plaintiff may be unable to pay costs — Order fixing indemnity costs in a gross sum.

COSTS — Where plaintiff sought declarations that defendant not validly appointed as responsible entity of managed fund — Plaintiff obtained relief sought — whether defendant’s offer to remain neutral in proceedings should preclude costs order against it —whether defendant ‘forced’ to litigate — Use of submitting appearance save as to costs — Defendant sought apportionment of costs — Where several issues put by plaintiff unsuccessful — Large proportion of evidence, hearing and judgment referable to unsuccessful issues — Appropriate to depart from usual rule — Plaintiff awarded 65% of their costs.

COSTS – party/party – general rule that costs follow the event – whether refusal to transfer proceedings to Queensland was unreasonable – whether indemnity costs should be ordered

CORPORATIONS – receivers and managers – appeal from adjudication of proofs of debt – where receivers consider that rejected proofs of debt had inadequate or no substantiating documentation – where alleged creditor is also director of company – lack of authority to enter into transactions on behalf of company – whether claims subject of proofs of debt are true liability of company and enforceable by law. RESTITUTION – unjust enrichment – quantum meruit – where alleged creditor is also director of company – where director had no authority to request services on behalf of company – where no evidence of acceptance of benefit by company – where benefits conferred voluntarily – whether claim available for quantum meruit.

APPEALS – appeal from Local Court – claim by elderly widow to recover amounts withdrawn from her bank account by a neighbour who had authority to operate the account – where claim confused common law and equitable causes of action – proper characterisation of magistrate’s decision – jurisdiction of Local Court to determine common money count

SUBPOENAS – decision of Registrar to set aside subpoenas – UCPR 49.19 – application for review of the Registrar’s decision – whether documents produced in response to subpoenas directed to non-parties demonstrate existence of a legitimate forensic purpose – Registrar’s orders set aside

PLEADING – statement of claim – application to amend – whether proposed amended statement of claim in proper form – where first defendant requested particulars to enable the preparation of a defence – where leave to amend granted subject to earlier provision of answers to particulars

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – filed out of time – no prospects of success – application dismissed

APPEALS – nature – entitlement of parties to appeal orders and not reasons – changed circumstances – no operative order which may be the subject of an appeal CRIMINAL LAW – Terrorism (High Risk Offenders) Act 2017 (NSW) – interim supervision orders revoked

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – appeal from an interlocutory order – no question of principle – application dismissed

CRIMINAL LAW – Evidence – Evidence to establish that a person may have access to knowledge about the existence of publications from which techniques involving explosives could be found – balancing exercise in s137 Evidence Act

CRIMINAL LAW – Evidence – Whether evidence to establish that a person may have access to knowledge about explosives is admissible – relevance

CORPORATIONS — Statutory demand — Application to set aside — Whether application properly served —“effective informal service” — Where address for service was that of defendant’s solicitors — defendant’s solicitors thus authorised by the company — Post, DX, facsimile and telephone provided but not email — Plaintiff asked by email whether service by email would be accepted — defendant’s solicitors responded that email service not accepted — Plaintiff purported to serve by email at 4.04 pm that day — No response — No evidence of non-receipt — Reasonable inference that city solicitors received email during business hours in ‘time critical’ matter

COSTS — Plaintiffs applies for its costs after dismissal by consent — Where application brought under reg. 5.6.53 of the Corporations Regulations 2001 (Cth) for decision in respect of proofs of debt — Where plaintiffs had previously participated in procedure established by this Court for admission of proofs of debt — Plaintiffs sought to depart from this procedure by relying on reg. 5.6.53 — Whether reasonable to commence proceedings under Regulations where decision imminent — Whether r 42.20(1) of the UCPR displaced by any discretionary considerations — Relationship between r 42.20(1) and Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 considered — Australiawide Airlines Ltd trading as Regional Express v Aspirion Pty Limited [2006] NSWCA 365 applied — Proceedings “wholly unnecessary” — r 42.20(1) not displaced — Plaintiffs to pay defendants costs.

COSTS — Security for costs — Determination of quantum where amendment to pleadings — Dispute as to the complexity of issues in dispute and hearing length — Security ordered in amount between plaintiffs’ and defendants’ estimates.

COSTS – whether order should be made that costs thrown away by vacation of hearing date be payable forthwith – fourth defendant’s preparation wasted as new pleadings and evidence required – fourth defendant an individual – plaintiff a financial organisation and in better position to bear ongoing costs – order relevant to discrete aspect of the proceedings – order made

ADMINISTRATIVE LAW – Judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Jurisdictional error – Review of a certificate of a Medical Appeal Panel – Failure to respond to substantial and clearly articulated arguments – Failure to set out lawful reasons – Whether the Appeal Panel was required to re-examine the plaintiff – Where the plaintiff suffered a fall from a ladder and developed consequent carpal tunnel syndrome

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – Whether adjudicator’s determination should be quashed where the adjudicator refused to consider the plaintiff’s submissions in respect of an extension of time claim on the basis that the plaintiff had not advanced the claim in its payment schedule when in fact it had done so, and the adjudicator referred, in part, to that claim being part of the payment schedule elsewhere in his determination – Whether adjudicator made an error in respect of a carry over claim and, if so, whether it was a jurisdictional error. BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – Adjudicator’s fees – Where the adjudicator had determined that the plaintiff should pay all of the adjudicator’s fees, but the adjudicator’s determination is set aside due to jurisdictional error involving part of the determination, and the Court uses its discretion to impose a condition on the successful plaintiff that it will accept liability for half of the adjudicator’s fees.

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

HIGH RISK OFFENDER – Preliminary hearing – Application for interim supervision order – Order not opposed – No point of principle

CRIMINAL LAW – Preliminary applications – application for separate hearing – evidence of admissions by co-accused not admissible against accused – prejudice can be adequately mitigated by appropriate directions – not a weak case against accused made immeasurably stronger by evidence inadmissible against accused but admissible against co-accused – interests of justice do not require matters to be tried separately CRIMINAL LAW – Preliminary applications – application for trial by judge order – evidence of bad character likely to lead to risk of prejudice in front of a jury and risk jury may reason impermissibly – risk adequately mitigated by appropriate directions – media coverage and nature of alleged crime no so egregious as to require judge alone trial provided appropriate directions are given – court should proceed on the basis that jury will comply with directions – balancing all factors, not in the interests of justice to make a trial by judge order

EVIDENCE – previous out of court representations concerning past joint criminal enterprise not made in the presence of the party – whether such representations relevant – whether exceptions to the hearsay rule apply as representations are admissions or admissible for a non-hearsay purpose

EVIDENCE – criminal procedure – admissions – objection made under ss 84, 85 and 90 of the Evidence Act 1995 – accused suffers from a schizoaffective disorder manifesting in paranoia and persecutory delusions – accused perceived violent threats from outlaw motorcycle gangs over the course of 16 years – threats not made but accused believed they had been – accused believed he needed to confess to avoid harm to himself and others – beliefs delusional – discussion of common law “voluntariness” and the history of the Evidence Act 1995 – whether s 84 is engaged without “actual” threats – whether personal characteristics, including mental illness, of the accused are relevant in assessing the “circumstances” of the admission under s 85 – whether “unfairness” under s 90 is met without impropriety from interviewing officials and only the possibility of unreliability – jury to assess reliability of admissions in light of mental illness – evidence of admissions admitted.

CORPORATIONS – winding up – application for directions that liquidators are justified in determining claims of individuals claiming to be employees – where agreement evinces intention to exclude employment relationship – where other persons exercised practical control of activities of workers – whether workers were employees of companies – whether directions sought should be made.

CORPORATIONS — Statutory demand — Application to set aside — Offsetting claim — Whether “affidavit in support of the application” — Application of “Graywinter principle” to 21-day affidavit — Affidavit made on information and belief from unnamed source — Affidavit merely annexed unsigned, unverified and unfiled Statement of Claim — Bare assertion that quantum of claim would exceed debt the subject of the demand — Affidavit falls short of statutory description in s 459G — No possibility to supplement by further evidence — Application dismissed.

CONSUMER LAW – Australian Consumer Law sections 2, 18 and 236 – misleading or deceptive conduct in trade or commerce – person involved in contravention – where plaintiffs make an investment by way of share subscription relying on information provided by first defendant which is false because revenue is overstated – knowing involvement of the second defendant in the contravention – damages – assessment – where plaintiffs investment is worthless; HELD: plaintiffs entitled to damages against first and second defendants; LEGAL PRACTITIONERS – requirement not to communicate contentious material to a judge of the Court other than in open Court –Solicitors’ Conduct Rules – where solicitors for the first and second defendants send without leave or consent contentious material prior to a motion being heard at which they do not intend to appear – impropriety of same – reiterated that legal practitioners should not communicate in this fashion

BUILDING AND CONSTRUCTION LAW – CONTRACT – DAMAGES – Contract to design a sewerage system for a subdivision and submit it for approval – alleged breach consisting of failure to create and submit a design acceptable to the approval authority allegedly having the effect of delaying completion of the subdivision – whether breach established – whether damages established – programming experts called on question of delay – appropriate method of delay analysis – requirement to have regard to evidence – requirement for the plaintiff to establish damages. HELD – no breach established – damages not established.

POSSESSION – writ of possession – application to stay execution – where mortgagor concedes that security property should be sold – no utility in restraining the sale of the security property

COSTS- costs in context of offer of compromise – r 20.27(3) Uniform Civil Procedure Rules 2005 (NSW)- r 42.13A Uniform Civil Procedure Rules 2005 (NSW) CIVIL PROCEDURE- offer of compromise- offer and acceptance – terms of offer- proceedings be otherwise dismissed

HIGH RISK OFFENDER – final hearing – application for continuing detention order or alternatively an extended supervision order under Crimes (High Risk Offenders) Act 2006 (NSW) – whether defendant posed an unacceptable risk of committing another serious offence if not detained under continuing detention order – meaning of "unacceptable risk" – where risk of some sexual offence if not detained is high – where no record of any violence for 30 years – where level of risk significantly reduced by extended supervision order for 5 years – application for continuing detention order refused – order for conditional extended supervision order granted

PRACTICE AND PROCEDURE – whether defence should be struck out – defence struck out

RESTITUTION — Ineffective transactions — General principles — Restitution of money paid — Failure of consideration — Total failure rule — In context of joint venture or partnership — Where partner’s intention and behaviour such that the joint venture had no real existence CONTRACTS — Misleading conduct under statute —Misleading or deceptive conduct within the meaning of s 18 of the Australian Consumer Law — Representations and course of conduct with no intention to make good on the promises made — Damages CONTRACTS — Breach of contract — Breach of loan agreement/s — No repayments made to date — Damages CONTRACTS — Breach of contract — Breach of express term of deed of agreement for sale of business — Failure of condition subsequent — No repayment of amount advanced — Damages

CONTRACT – Breach of Contract – where Principal sought order that Contractor complete penetration schedule and provide copies of subcontracts – whether Principal’s take-out notice valid – whether Contractor entitled to suspend works by non-payment of interest on progress claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether Contractor failed to proceed with due diligence in a competent manner and failed to comply with principal certifier’s occupation certificate requirements – whether Contractor otherwise validly suspended works with “reasonable cause”. BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – whether Contractor entitled to suspend works by Principal’s non-payment of interest on progress payment – whether interest accrued under s 11 forms part of “scheduled amount” under s 27(1) – “scheduled amount” comprises amount respondent “proposes to make” identified in payment schedule but excludes interest under s 11 - need to quantify interest in final way - accrual of interest to be interpreted consistently with statutory entitlement under Civil Procedure Act 2005 (NSW), s 100. CONTRACT – Breach of Contract – whether Contractor entitled to suspend contract with “reasonable cause” by acting reasonably and in good faith – whether “reasonable cause” determined subjectively or objectively – suspension without “reasonable cause”. CONTRACT – Breach of Contract – whether Contractor failed to proceed with due diligence in a competent manner and failed to comply with principle certifier’s occupation certificate requirements – whether error by PCA deprives its determination of contractual effect – Legal & General v A Hudson – erroneous view taken by PCA no answer to Contractor’s failure to satisfy preconditions to issue of occupation certificate – foreshadowed claim for extension no answer to Contractor’s failure to proceed with works in diligent manner. CONTRACT – Breach of Contract – whether default notice valid – whether notice “issued” by Principal’s Representative – whether Principal’s Representative gave adequate or proper consideration to whether notice should be issued – notice “issued” where Principal’s Representative authorised release of notice without taking active role in preparation – notice acts as precursor to rights to terminate and not invalidated by technical deficiencies where commercial purpose achieved. CONTRACT – Breach of Contract – whether Principal’s show-cause and take-out notices valid – whether power to take work out of Contractor’s hands subject to implied obligations of good faith and reasonableness – determination by Principal’s Representative closely connected with Principal’s exercise of power to terminate – Principal’s Representative validly formed determination. EVIDENCE — Privileges — Without prejudice privilege – whether under contractual procedure Principal’s Representative entitled to consider discussions during “without prejudice” meeting when determining whether Contractor failed to comply with preconditions to issue of occupation certificate – privilege does not extend to non-curial proceedings. CONTRACT – Interpretation – where Principal takes work out of Contractor’s hands prior to practical completion and contract does not expressly provide for return of security – whether Contractor entitled to the return of contractual security - where completion of works will necessarily be put in hands of further contractors – whether security extends to Principal’s claim for unliquidated damages - security to ensure performance of Contractor’s obligations extends post-termination.

CIVIL PROCEDURE – Discovery – Further and better discovery – Sabre order

CIVIL PROCEDURE – Pleadings – Striking out – No reasonable cause of action or defence – Tendency to cause prejudice, embarrassment or delay – Abuse of process

CIVIL PROCEDURE – parties – joinder – of cross-defendant – where an order made by the Court may affect the rights and liabilities of a non-party

TAXES AND DUTIES – income tax – collection and recovery of tax – where judgment given in favour of Commissioner for recovery of income tax, penalties and interest charges – where appellant asserts that he was denied “right” to be represented by a person with no legal qualifications – where appellant contends Supreme Court has no authority to determine question of tax debt without his consent – where appellant contends taxation laws do not apply to him without his consent – where appellant asserts debt discharged by delivery of self-described “promissory note” – appeal dismissed – no question of principle

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Intellectual disability and moral culpability — No error in not taking into account intellectual disability when assessing moral culpability and objective seriousness when no causal connection between the disability and the offending established — Finding of special circumstances discretionary — No error in failing to finding special circumstances — Sentence not manifestly excessive

CRIMINAL LAW – appeal against sentence – multiple sexual offences committed against Applicant’s niece – sole ground of appeal that aggregate sentence was manifestly excessive – Applicant suffers from rare genetic disorder – reliance on bare statistics without analysis unhelpful – aggregate sentence not unreasonable or plainly unjust – appeal dismissed

CRIME – conviction appeal – where applicant convicted of indecent assault and sexual assault – whether trial miscarried because of defence counsel’s failure to adduce evidence of applicant’s prior good character – whether verdict is unreasonable – whether trial miscarried because of the admission of prejudicial evidence

CORPORATIONS – application to set aside a creditor’s statutory demand – timing of service – where demand originally sent by registered post – where demand returned to sender by Australia Post – where demand later purportedly left at company’s registered office address – where company’s registered office address contained in block of units – where affidavit of service did not adequately specify where demand was left – where defendant concedes that if application to set aside demand was made within time then demand should be set aside – whether application was made within time.

CRIME – Suppression Orders for name of witness’ employer in circumstances where publication has been shown to have detrimental effect on employment of, or future prospects of employment of, witness – necessary in the interests of the administration of justice – balance with open justice not problematic because the name of employer does not impact on public hearing of all relevant issues

CORPORATIONS – winding up – liquidators – application to be released as liquidator – where remaining steps in liquidation relate to distribution of surplus – where no utility in deferring an order for release – whether court should order that liquidator be released.

CORPORATIONS — Oppression — Real estate business — Members contributed equal capital but had 70/30 shareholdings — Shareholders’ Agreement provided for all members to be directors — Removal of director by majority shareholder under replaceable rules — Wage and back-pay to majority shareholder’s wife — Removal of access to books, records and bank accounts — sale of company’s principal asset — irreconcilable differences — Whether fair offer to buy out minority interest — Oppression made out — Compulsory buy-out ordered. CORPORATIONS — Constitution and replaceable rules — Where no constitution in evidence — Where shareholders’ agreement between all members of company — No express provision displacing replaceable rules — Whether replaceable rules displaced to the extent of inconsistency — Whether the principle in Re Duomatic applicable — Not necessary to decide in oppression suit.

COSTS – where an unnecessary appeal to this Court has been generated as the result of conduct by both plaintiff and defendant – no order as to costs

ADMINISTRATIVE LAW – Judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Jurisdictional error – Review of a certificate of a Medical Appeal Panel – Failure to respond to substantial and clearly articulated arguments – Failure to set out lawful reasons – Where the plaintiff suffered injury to the cervical spine

CORPORATIONS – company in administration – stay of proceedings – s 440D Corporations Act 2001 (Cth) – application for leave to appeal to Court of Appeal – separate “proceeding” from proceedings at first instance – no written consent by administrator to proceedings in Court of Appeal and leave not granted by Court – proceedings dismissed as incompetent

SUCCESSION – testamentary capacity – weight to be given to conclusory expert medical evidence on the legal issue of whether deceased had testamentary capacity – weight to be given to solicitor’s evidence of practice concerning clients’ execution of wills EVIDENCE – weight to be given to solicitor’s evidence of practice concerning clients’ execution of wills – Connor v Blacktown District Hospital [1971] 1 NSWLR 713 and other authorities referred to