Cases and authorities

CONTRACT – wholly written contract – dispute as to identity of builder to perform residential building – whether regard may be had to post-contractual conduct – where contract identified one company as builder but gave another company’s licence and insurance details – parties taken to have agreed to a contract which was lawful and enforceable

CIVIL – PROCEDURE – transfer of proceedings – application for transfer of proceedings from District Court of NSW to Supreme Court of New South Wales and thence the Supreme Court of Queensland – where substantive claim concerns damages pursuant to Sales of Goods Act 1896 (QLD) and the Australian Consumer Law – whether application in the interests of justice – discussion of operative test in s 5(2)(b)(ii)(A) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) – no connection to NSW except qualification of expert in NSW after filing of summons seeking transfer – application granted

ADMINISTRATIVE LAW – judicial review – appeal from decision of New South Wales Civil and Administrative Tribunal – Working with Children Clearance – principles to be applied by Tribunal in considering risk – whether failure to apply principles in M v M – whether failure to properly consider risk in relation to allegations – whether failure to assess cumulative weight of allegations – whether inadequate reasons provided by the Tribunal – directions

CIVIL PROCEDURE – interlocutory applications – application for secured undertakings as to costs of the derivative suit in one proceeding – in the alternative applications for security for costs in one or both of the respective proceedings – pursuant to ss 237 and 242, 1335(1) of the Corporations Act 2001 (Cth) and/or r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) and/or the Court’s inherent jurisdiction

Judicial review – application to set aside decision of Medical Appeal Panel – need to make out jurisdictional error or error of law on face of record – significance of distinction – whether Panel empowered to rely on medical examination by one of its members – significance of “clinical judgment” – whether Panel failed to make findings or give reasons – whether Panel failed to address substantial argument – whether Panel misapplied Guidelines – application dismissed

PROCEEDS OF CRIME – application to exclude property from restraining orders – whether interest is the proceeds of an indictable offence or instrument of any serious offence under s.29(2)(d) Proceeds of Crime Act 2002 (Cth) – whether property ceases to be proceeds or an instrument – whether acquisition of property was by a third party for sufficient consideration under s.330(4)(a) Proceeds of Crime Act 2002 – application of Lordianto v Commissioner of the Australian Federal Police (2018) 337 FLR 17; [2018] NSWCA 199 – where Applicant was not a third party – where Applicant did not acquire interest for sufficient consideration – where Applicant was wilfully blind – application dismissed

COSTS – Security for costs – representative proceedings - application by the defendant – costs of discovery

CONTRACTS – breach of contract – consequences of breach – right to damages – contract for sale of timber mill – warranty about volume of unprocessed stock – provision for adjustment of purchase price if volume less than warranted – whether contract varied to postpone date on which such adjustment to be made – what volume of unprocessed stock was present – purchaser to assume liability for long service leave entitlements of mill employees – asserted understatement of those liabilities – whether vendor agreed to account for the difference – agreement that vendor had access to information on server at the mill after completion – where effective access to that server denied for a week – whether vendor thereby suffered damage

ADMINISTRATIVE LAW – ground of review other than procedural fairness – improper exercise of power – plaintiffs issued with notices from defendant on behalf of the National Resources Access Regulator – notices issued under s 338A Water Management Act 2000 (NSW) – notices required the provision of stipulated information and documents – notices said to be issued as part of an investigation by NRAR into the plaintiffs’ water access and use at their two farms – notices said to be issued for the purpose of determining whether there had been compliance with or contravention of identified conditions of the access licence for each of the properties – whether the defendant was entitled to require the plaintiffs to furnish the stipulated information/documents – whether the information/documents were required for the purpose of ascertaining whether the plaintiffs had contravened identified conditions of the respective access licences – notices set aside

TRUSTS – resulting trust – plaintiff is the grandson of the second defendant and the son of the first defendant and of her deceased husband – second defendant alleges she supplied all the purchase money to acquire real property in Cootamundra that she purchased as a joint tenant with the first defendant and with the deceased – plaintiff alleges the second defendant agreed to loan the purchase money for the Cootamundra property to the deceased and to the first defendant and that they held the Cootamundra property beneficially, owing only a liability in debt to the second defendant – whether the first defendant and the deceased held their respective shares in the Cootamundra property on resulting trust for the second defendant – Cootamundra property sold and the proceeds applied to purchase another property, the Emerald Drive property, in the names of the second defendant, the deceased and the plaintiff – at about the time of the sale of the Cootamundra property, the deceased and the first defendant separate and reach a property settlement under the Family Law Act but are not divorced – the Emerald Drive property in turn was sold and its proceeds applied to purchase the final property, which was held in the name of the second defendant – final property sold to provide an accommodation deposit, so the second defendant can have secure accommodation in an aged care facility – whether the second defendant is the beneficial owner of 100% of the final property and in turn of the accommodation deposit. CONTRACTS – Contracts Review Act 1980 – unconscionable conduct – the Emerald Drive property held in the name of the plaintiff, the deceased and the second defendant as joint tenants – plaintiff alleges the deceased and the second defendant pressured him into surrendering to them his joint tenancy in the Emerald Drive property for no consideration and without legal advice – second defendant claims no pressure was applied to the plaintiff and that the Emerald Drive property was always owned by her beneficially – whether the surrender of the plaintiff’s joint tenancy should be set aside under the Contracts Review Act or in equity. SUCCESSION – family provision – plaintiff one of three children of the deceased, who left his residuary estate under his will to them in equal shares – estate of the deceased was fully distributed to the first defendant, the deceased’s wife, before trial – whether the plaintiff was left under the will of the deceased without adequate provision for his education maintenance or advancement in life – whether further provision should be made out of the estate or notional estate of the deceased for the plaintiff. NOTIONAL ESTATE – family provision Succession Act Part 3.3 – the deceased’s estate is fully distributed – at time of his death, the Emerald Drive property was held in the name of the deceased and the second defendant as joint tenants – the Emerald Drive property sold and the final property purchased in the second defendant’s name – the final property was sold to provide an aged care facility accommodation deposit for the second defendant – deceased fails before his death to sever the joint tenancy in the Emerald Drive property – whether final property’s proceeds, in the form of the accommodation bond, may be designated as notional estate – whether designation of the final property’s proceeds as notional estate would interfere with the second defendant’s reasonable expectations in relation to that property.

COSTS – Calderbank letter – whether unsuccessful respondent unreasonably rejected offer

MOTOR ACCIDENTS – where collision between two vehicles – where plaintiff injured and sought compensation under Motor Accidents Compensation Act 1999 (NSW) – whether plaintiff’s car parked kerbside or executing a U-turn or right turn at time of collision – where primary judge found plaintiff’s car was performing a U-turn or right turn at time of collision – no error in fact finding by primary judge

CHILD WELFARE – parental responsibility allocated to Minister – final orders in Children’s Court – appeal to District Court – whether jurisdictional error or error of law on the face of the record of District Court –procedural unfairness – failure to tender evidence – relevant considerations CIVIL PROCEDURE – parties – supervisory jurisdiction – children as necessary parties – representation – role of representative

COSTS – ex parte interlocutory injunction application

PRACTICE AND PROCEDURE – Application for dismissal of proceedings on the basis that no cause of action was disclosed – Where proceedings were previously dismissed on that basis – Where plaintiff was granted leave to appeal on a discreet ground based upon the absence of relevant documents – Where appellate court otherwise found no fault in the decision of the primary judge – Appeal conceded and the matter remitted – Where documents which were not before the primary judge were tendered on the further hearing of the motion – Documents inspected – Conclusion reached that they had no material bearing upon the issues to be determined – No reason to depart from the previous determination with which the Court of Appeal found no fault – Proceedings dismissed

FAMILY LAW – Children – Parens patriae jurisdiction – Whether Court should set aside care orders made by Children’s Court

SUCCESSION – wills and estates – construction and effect of testamentary disposition - gift of interest in property subject to conditions – non-fulfilment of conditions – no lapsing of gift – equitable obligations to perform – scope of repair and maintenance condition – purpose of fund created to defray costs associated with trusts

CIVIL LAW – declaratory relief sought concerning qualifications of a psychologist to furnish a report in support of a s.32 Mental Health (Forensic Provisions) Act 1990 application – where report rejected by Magistrate as it was not a psychiatric report – report later accepted by different Magistrate – application under s.32 later successful – whether live controversy exists for grant of declaratory relief – lack of utility or real interest – Plaintiff seeks advisory opinion without reference to concrete facts – appropriate to make general observations concerning construction and operation of s.32 – no bright line test as to areas where a psychological report can or cannot be received on a s.32 application – application for declaratory relief refused

ESTOPPEL – proprietary estoppel – estoppel by representation – where plaintiff provided accommodation for niece and family including defendant husband – whether representation that defendant would have accommodation for life – after passing of niece defendant relocated to a second property owned by plaintiff – plaintiff claiming possession of second property – defendant claiming alteration of position – surrender of lease of assisted accommodation – representation not proved – occupation of second property permissive and terminable on reasonable notice

CONTRACTS – Construction – Interpretation – determination of market rent by an expert valuer – construction of provision of sub-lease requiring the valuer to “have regard to” certain matters in determining the market rent for a sub-lease of premises located at King Street Wharf, Sydney – interpretation of requirement to “have regard to” “comparable premises in the vicinity of the Premises” – whether matters listed exhaustive – meaning of “have regard to” VALUATION – expert determination – whether the trial judge erred in finding that the valuer did not have regard to market rents in the manner prescribed by the sub-lease – whether the trial judge erred in finding that the determination of market rent by the valuer was not binding on the appellant and the respondent as parties to the sub-lease – whether the valuer erroneously had regard to the physical configuration of the premises or tenant’s property – appeal dismissed with costs VALUATION – nature of valuation – meaning of “acting as an expert and not as an arbitrator”

CRIMINAL LAW – application for leave to appeal against sentence – assault occasioning actual bodily harm in company – wounding with intent to cause grievous bodily harm – aggregate sentence - whether applicant’s representation in the District Court was incompetent – whether discount for late pleas of guilty inadequate - whether sentence excessive

CRIMINAL LAW – appeal by Director of Public Prosecutions (NSW) under s.56(1)(c) Crimes (Appeal and Review) Act 2001 – charge of resist police officer while in execution of his duty contrary to s.58 Crimes Act 1900 dismissed in Local Court – primary evidence recorded on body-worn video camera – Defendant does not oppose orders sought on appeal – whether Magistrate failed to provide reasons as required by law for decision to dismiss the charge – whether Magistrate erred by failing to afford procedural fairness to the prosecutor – error of law demonstrated on each ground – appeal allowed – matter remitted to Local Court for determination by a different Magistrate

CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court — Relevant factors

APPEAL – appeal from NCAT on question of law – application for victims support under Victims Rights and Support Act 2013 (NSW) – applicant claimed he had suffered from an “act of violence” following his arrest by police – whether error of law in rejecting that claim – whether error of law in failing to make findings or give reasons concerning unreasonable use of force when no point had been raised in NCAT – distinction between lawfulness of conduct established by s 230 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and need for applicant to establish commission of offence – significance of applicant’s failure following final hearing in District Court of civil proceedings – leave refused

PRIVILEGE– privileges – client legal privilege – waiver – before the hearing of the proceedings commenced, the plaintiffs waived privilege over a communication with their solicitor dated 29 March 2016 – the principal officer of the plaintiffs was cross-examined on this communication and said he had forwarded some emails to the plaintiffs’ solicitor, for the solicitor to advise about the communication of 29 March 2016 – but the plaintiffs’ principal officer denied receiving any advice from his solicitor prior to 29 March 2016 – cross-examiner called for any pre-29 March 2016 advice – documents were produced and client legal privilege was claimed over them – whether client legal privilege waived.

PRACTICE – application for adjournment of hearing of leave application – application to quash guilty pleas entered in Local Court and confirmed by District Court – application to single Judge of Appeal to quash decision of District Court in civil proceedings – absence of jurisdiction – application dismissed

CRIMINAL PROCEDURE – trial – jury – application by accused for discharge – jury question answered informally by contact between the court officer and the Crown’s solicitor – undermined directions given – potential to create false impression that Crown in favoured position – prejudice to the accused could not be remedied by directions – application consented to by Crown

COSTS – where plaintiff successful on motion – where little of substance achieved

PRACTICE AND PROCEDURE – Costs – Where the plaintiff was unsuccessful in judicial review proceedings – Where the plaintiff sought a certificate pursuant to the Suitors’ Fund Act 1951 – Where that Act grants power to issue a certificate to the respondent to a successful appeal – Whether the plaintiff was in the position of a “respondent” – Where her “appeal” had not been successful – Threshold requirements for the issue of a certificate not met – Application for certificate refused – Usual costs order made

CIVIL PROCEDURE – dismissal of proceedings – where order granting extension of time to appeal conditional – where conditions not met – where applicant fails to show cause to proceed

CRIMINAL LAW – appeal against sentence – robbery armed with knife – whether error in failing to find intellectual disability mitigated moral culpability – whether error in failing to take into account intellectual disability when considering general deterrence – whether sentence manifestly excessive

CRIMINAL LAW – sentencing – appeal against sentence – unrepresented applicant – question of commencement date of sentence – assessment of prospects of rehabilitation – asserted manifest excess

CRIME - appeals - appeal against sentence – whether sentence manifestly excessive - applicant pleaded guilty to a number of sexual offences - three further offences taken into account on a Form 1 - offending occurred when the applicant was 15 and 16 years of age - complainant was the applicant’s stepbrother aged 10 and 11 years at the time - approximately 16 year delay in prosecuting the offences - whether the sentencing judge gave sufficient weight to the offender's youth and the delay - where the offending was significant - where the offences charged were representative offences - where the offending involved threats and a degree of coercion - consideration of how the offender would have been sentenced but for the delay - sentence not unreasonable or plainly unjust - appeal dismissed

APPEAL - Crown appeal - manifest inadequacy of aggregate sentence - sentence after trial - Respondent convicted of three offences under s.27 Crimes Act 1900 - wounding with intent to murder, cause grievous bodily harm with intent to murder and attempt to wound with intent to murder - Respondent armed with large axe and knife - Respondent randomly attacked victims with axe in a convenience store without provocation - initial attack on two victims captured on CCTV footage - attack on third victim on street outside convenience store - significant impact of offences upon all three victims - Respondent had powerful subjective case - consideration of sentencing decisions for s.27 Crimes Act 1900 offences - aggregate sentence manifestly inadequate - appropriate case for Court to resentence Respondent - finding of special circumstances - Respondent resentenced to aggregate term of imprisonment of 14 years with a non-parole period of eight years

CRIMINAL LAW – sentence – foreign incursion offence – offender pleaded guilty on first day of trial to an offence against s 119.4 Criminal Code (Cth) – offender committed acts in preparation for incursion into a foreign country for the purpose of engaging in hostile activities – offender travelled to Turkey with the intention of crossing into Syria – stayed in an Islamic State safe house in Turkey – sought assistance to cross into Syria and to make contact with persons associated with IS – obtained military equipment – offender ultimately deported from Turkey back to Australia and subsequently arrested – offender had taken serious steps in the commission of the offence – accumulation of military equipment suggested intent to take an active part in hostilities – offender’s contacts and connections in Turkey demonstrated at least a moderate degree of planning – offending fell slightly below the mid-range of objective seriousness – whether the offender had changed his extreme views – where the offender did not give evidence at the sentence hearing – where the offender refused to stand – available evidence did not suggest that the offender had changed his views – assessment of remorse and prospects of rehabilitation and reoffending – where a letter from the offender expressing regret was provided to the Court – without evidence from the offender that was capable of being tested the Court did not find remorse – prospects of rehabilitation only fair – offender’s criminal antecedents afforded him no leniency – regard had to both general and specific deterrence – discount given for guilty plea SENTENCING – backdating of sentence – following arrest in 2016 the offender has been remanded in custody awaiting trial – whilst in custody the offender was convicted of assaulting two corrective services officers – sentenced to 8 months’ and 6 months’ imprisonment to be served concurrently – whether the time served for those assault offences should be included in the period of pre-trial custody for the present offence – s 16E Crimes Act 1914 (Cth) and ss 24 and 47 Crimes (Sentencing Procedure) Act 1999 (NSW) – issue to be resolved applying the principle of totality – adjustment made to the commencement date to take into account the sentence imposed for the assault offences

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

PRACTICE AND PROCEDURE - claim for possession of land following mortgage default - order for possession - writ of execution issued - application for write of execution to be stayed - health issues - stay refused

CRIMINAL LAW – application for stay of proceedings due to lack of legal representation – where trial commenced in 2017 – where a grant of legal aid has been revoked and solicitor and counsel withdrew – whether the applicant has acted reasonably and is without fault in being unrepresented at the continuation of his trial - whether lawyers were at fault – where trial has previously been adjourned –dispute between applicant and lawyers as to the remaining witnesses to be called - whether it was unreasonable that the applicant sought written advice in relation to that question

EVIDENCE – detective’s notes from an unrecorded interview with the accused in 1999 – whether evidence excluded by operation of s 281 of the Criminal Procedure Act 1986 – no reasonable excuse for not conducting a recorded interview confirming the admission – evidence rejected

CRIMINAL PROCEDURE – fitness to be tried – Mental Health Forensic Provisions Act 1990 s 8(1) fitness inquiry – whether the accused meets the Presser criteria – whether persecutory delusions and a schizoaffective disorder render the accused unfit to stand trial – accused fit to be tried

COSTS – party/party – percentage apportionment of costs – where plaintiff has had success in a modest amount – where proceedings could have been conducted in a significantly shorter and cheaper manner – determination of apportionment of costs.

CIVIL PROCEDURE — application for dismissal of proceedings – r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) – application for strike out of the statement of claim – r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) – whether the plaintiffs lack a special interest sufficient to give them standing to seek the relief claimed – whether the plaintiffs are seeking declarations that the defendants committed a criminal offence – whether the commencement of the proceedings was an abuse of process – whether the commencement of the proceedings was based on confidential information of the defendants CIVIL PROCEDURE — Discovery — Practice Note SC Eq 11 — Exceptional circumstances warranting early disclosure – whether preliminary discovery application more appropriate

CONTRACT – construction – whether the parties entered into a binding joint venture agreement or bound themselves only to negotiate in good faith a further formal joint venture instrument – whether if they entered into a binding joint venture agreement the first defendant brought it to an end – whether declaration that a binding joint venture agreement entered into is of utility; HELD: the parties entered into a binding joint venture agreement – the first defendant did not bring it to an end – appropriate to order declaratory relief

CRIMINAL LAW – sentence – murder – heroin injection – mercy killing – impairment by abnormality of mind but not so substantial as to reduce murder to manslaughter

GAMING AND WAGERING – prohibition of interactive gambling services – meaning of ‘bet’ – meaning of ‘game’ STATUTORY INTERPRETATION – Literal meaning – Natural and ordinary meaning – extrinsic materials

CIVIL PROCEDURE – Leave to proceed against insurer – defendant in liquidation – third party claims against insurers – arguable case that policy responds to liability – construction of insurance contracts – whether insurer has validly disclaimed liability – held arguable case against defendant – held arguable case that insurance policy responds to liability – held insurer has not discharged onus disclaiming liability – held leave to proceed against insurer granted. CONTRACT LAW – Interpretation of insurance contracts – exclusion and limitation clauses – construing ambiguous words – whether general expression “spark producing equipment” should be read down – held general expressions to be read in context – held expression confined to include only specified equipment – held general expression to be read down.

COSTS – reinstatement of costs order at trial – offer of compromise in relation to appeal – early ‘walk away’ offer – no evidence of costs incurred – whether genuine compromise – whether appeal doomed to fail – offerors’ position not explained – Uniform Civil Procedure Rules 2005 (NSW), r 20.26