Cases and authorities

BUILDING AND CONSTRUCTION – adjudication determination under section 22 of Building and Construction Industry Security of Payment Act 1999 (NSW) – whether determination void – jurisdictional error – whether adjudicator failed to afford natural justice and procedural fairness in reaching determination – whether denial of procedural fairness was substantial – whether entitled to recover in respect of unaffected part of claim

ADMINISTRATIVE LAW – judicial review – where plaintiff injured in motor vehicle accident – where plaintiff challenges decision of medical review panel – whether medical review panel erred by failing to medically examine plaintiff in accordance with her request that it do so – whether plaintiff denied procedural fairness – decision of medical review panel set aside

INSURANCE - Total and permanent disablement - Whether the insurer acted fairly and reasonably in assessing and determining the Member’s claim - Whether the insurer gave reasons for the determination - Whether there was an obligation for the insurer to give reasons for declining the Member’s claim - Whether the insurer was in breach of its duty and obligations - Whether separate letters sent by the insurer should be treated as separate declinatures.

CRIME – Appeal and review – Appeal from inclusion in Child Protection Register following conviction – no jurisdiction to hear appeal from inclusion in Register that followed from conviction for class 1 or class 2 offence – application dismissed

CRIMINAL LAW – Crown appeal against sentence – Criminal Appeal Act 1912 (NSW), s 5DA – discount on sentence due to undertaking to provide future assistance – assistance not provided – whether undertaking extended to assisting at sentencing of co-offender – effect of respondent being held in immigration detention after being entitled to be released on parole – where effect of discount was 78 days, of which 61 days had been served in immigration detention – where undertaking contributed to co-offender’s guilty plea – appeal dismissed

SENTENCING – Relevant factors on sentence – Parity of sentencing - Co-offenders – Joint criminal enterprise – murder – disparity in sentences of co-offenders - whether justifiable sense of grievance by reference to the notional starting point of sentence of appellant and sentence of co-offender– co-offenders sentenced on different evidentiary basis – sentencing judge found co-offender’s offence more serious than applicant – applicant had strong subjective circumstances unlike co-offender.

CRIMINAL LAW – sentencing – drug offences – aggregate sentencing – where Judge told of wrong maximum penalty – where Judge told of standard non-parole period that did not exist – error not picked up by applicant – error raised by counsel for respondent – error conceded and established – necessary to re-sentence – lesser aggregate sentence warranted CRIMINAL LAW – other grounds of appeal – grounds rejected – whether Judge erred in not providing 25% discount for plea – whether Judge erred in assessment of objective criminality – where no evidence available to establish precise role of offender

CRIMINAL LAW – appeal – appeal against sentence –aggravated break, enter and steal under s 112(2) of Crimes Act 1900 (NSW) – offences committed as part of joint criminal enterprise – whether effect of delay taken into account when fixing non-parole period – assessment of subjective case – leave to appeal out of time granted – leave to appeal granted – appeal upheld – applicant resentenced

PROCEDURE – notice of motion seeking determination of separate questions under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) – motion granted

SUCCESSION – Wills, Probate and Administration – Construction and effect of testamentary dispositions – Construction of particular Will – Rectification of Will under s 27 Succession Act 2006 (NSW) – Principles relevant to construction and to rectification SUCCESSION – Wills, Probate and Administration – Partition of particular property specified under Will of deceased – s 57 Probate and Administration Act 1898 (NSW)

COSTS – security for costs – where plaintiff did not lead evidence about the financial position of its director or shareholders – where plaintiff’s claim as currently pleaded is not strong – security for costs ordered in tranches

PROCEDURE – money paid into court – whether money should be paid out or retained pending outcome of substantive proceedings – interpretation of deed of settlement and other documents – whether varied by subsequent agreement and events – whether in interests of justice to retain money in court EVIDENCE – Privileges – Without prejudice privilege – section 131(1) of the Evidence Act 1995 (NSW) – whether correspondence written in context of attempt to negotiate settlement – whether exception in section 131(2)(f) of Evidence Act 1995 (NSW) applies

CIVIL PROCEDURE – application for leave to appeal – challenge to costs order made when dismissing plaintiffs’ proceedings – whether proceedings abandoned – late tender of evidence – plaintiffs not notified of hearings after solicitor ceased to act – failure to attend not evidence of abandonment of proceedings CORPORATIONS – application for leave to appeal – company in liquidation – leave granted in trial court – need for leave to proceed against company on appeal – challenge to company’s debt – leave granted nunc pro tunc

TORT – sale of residential property – special condition for provision of evidence concerning home warranty insurance and compliance with council requirements in relation to building works – implied fraudulent representations in relation to evidence referable to fulfilment of special condition – whether representations made and relied upon

CONTRACTS — Construction — Interpretation — Contract for sale of land — Special condition in contract required vendor to ensure all development conditions complied with prior to completion — Whether warranty had effect of requiring all works subject of development approval to be completed —Special condition contained disclosure that some works were carried out in conformity with development consent but lower staircase requires replacement — Whether disclosure amounts to warranty that all works subject of development approval have been completed — Where some but not all works the subject of development approval in fact completed —— Whether provision of interim occupation certificate capable of satisfying vendors’ obligation to provide an occupation certificate BUILDING AND CONSTRUCTION — Occupation certificates — Whether interim occupation certificate that certifies some but not all of works the subject of development approval means that whole premises cannot be lawfully occupied — Whether occupation certificate relates to entire property or merely part of property on which certified works situated — Meaning of “altered portion” of existing building

EQUITY – estoppel – rights arising out of deed of family arrangement – appellant provided capital to fund purchase of property in which she would live with respondents – appellant consented to subsequent move away from that property – respondents relied to their detriment on consent – appellant estopped from complaining of move

ENVIRONMENT AND PLANNING — consent —validity — conditions of consent to be approved by Crown instrumentality — compliance with Environmental Planning and Assessment Act 1979 (NSW), s 91A — whether consent unconditional ENVIRONMENT AND PLANNING — consent —construction — use of development application in construing development consent — use of environmental impact statement in construing development consent — significance of material being included on public register — when document or plan incorporated into consent — where reference necessary to describe development adequately ENVIRONMENT AND PLANNING — consent — breach of conditions of consent — consent conditioned by purpose of activity — whether quarry breached limiting purpose by use other than primarily for railway ballast — whether breach where quarrying outside area specified on plan — interference with amenity of neighbourhood — transport of greatly more than 30% of quarrying products by road ENVIRONMENT AND PLANNING — consent —modification, revocation or review — whether Council consented to change of conditions ENVIRONMENT AND PLANNING — existing use rights — enlargement, expansion or intensification — scope of existing use rights — date at which existing use rights are assessed — rights limited for railway undertaking on particular lands — effect of consent not negated by existing use rights ADMINISTRATIVE LAW — judicial review — validity of variation of licence issued by the Environment Protection Authority — jurisdictional facts — conditions under Protection of the Environment Operations Act 1997 (NSW), ss 50 and 58

WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission –validity of Deputy President of WCC’s re-determination of the Arbitrator’s decision – s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 considered WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission – only question raised before the Deputy President of WCC was whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the Workers Compensation Act – ground conceded by the appellant WORKERS COMPENSATION – cross-appeal – whether Deputy President of WCC erred in point of law – whether evidence the respondent was speeding – whether there was evidence the respondent was holding his mobile telephone - “no evidence” ground does not apply - Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 discussed

CRIME — Appeals — Application for leave to appeal against sentence and conviction — Primary judge imposed aggregate sentence in respect of offences including offences of unauthorised possession of prohibited firearms contrary to s 7(1) of the Firearms Act 1996 (NSW) to which applicant pleaded guilty — Where one such offence charged under s 7(1) related to possession of a shortened 20-gauge BOITO single-barrel shotgun — Common ground on appeal that agreed description of shotgun did not disclose offence against s 7(1) and that consequentially the relevant count on the indictment and aggregate sentence imposed thereon ought to be quashed — Whether applicant could be resentenced on appeal pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW) — No power for Court of Criminal Appeal to re-sentence where there was no other possible count on indictment on which a jury could have found applicant guilty — Proceedings remitted to District Court for re-sentencing

HIGH RISK OFFENDER – serious sex offender - extended supervision order – where parties have agreed that an ESO should be made – where the term of the ESO is in dispute – whether the court should impose a 2 year or 5 year ESO – what test the court should apply to fix the term of an ESO – whether there is a statutory obligation to impose the minimum necessary term for an ESO to be in place

CONTRACT – formation – acceptance of offer – where consideration was to be determined by a valuation mechanism – where offer stipulated payment for damages – where offer was purportedly accepted but denounced liability to pay damages – whether terms were certain and complete – whether parties entered into a binding agreement.

PROCEDURE – contempt – injunction to restrain further publication of defamatory material – criminal contempt – closed period of criminal breach of injunction alleged – whether wilful and contumacious – where defendant bankrupt – no penalty sought by plaintiff – criminal contempt found

COSTS — Party/Party — Payable out of a fund — Deceased estate — Scale costs of obtaining a new grant of probate to be paid out of the deceased’s estate — Effect of executor’s costs already having been paid from the deceased’s estate — Plaintiffs’ costs award to be limited to recovery of costs that it was reasonable for them to have incurred COSTS — Party/Party — Exceptions to general rule that costs follow the event — Party seeking indulgence or dispensation of the court — Whether an interim costs order or interim distribution should be made in a case in which the orders will be appealed COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Where figures in the Calderbank offer have been redacted — Where single offer made in Calderbank offer to settle four proceedings — Whether Calderbank offer was effective and, if so, whether costs should be paid on an indemnity basis

JUDGMENTS AND ORDERS — Consequential orders — First defendant transferred shares to third defendant for no consideration — Issue sufficiently litigated to justify a declaration to that effect – Parties did not contest the issue of whether the third defendant holds the shares on a resulting trust for the first defendant – No declaration to that effect COSTS — Party/Party — Bases of quantification — Ordinary vs indemnity basis — Ordinary basis appropriate because the defendants’ conduct the subject of the proceedings cannot of itself found an entitlement to indemnity costs, and the defence itself was not conducted with the requisite degree of delinquency to justify indemnity costs

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — Where plaintiff has discontinued the proceedings — Whether court should award costs on an indemnity basis — Indemnity costs awarded from the time at which the plaintiff had already formed the view that he would not prosecute the proceedings to hearing

CIVIL PROCEDURE – Jurisdiction – Transfer of proceedings from District Court of NSW – whether case management alongside existing proceedings in Supreme Court of NSW is appropriate – time and costs – differences between proceedings – whether risk of inconsistent outcomes

CONTRACTS – recovery of fee for services provided under contract CONTRACTS – Performance – defence to contract claim – whether plaintiff failed to substantially perform its obligations – defence not properly pleaded – taking plaintiff by surprise EQUITY – Fiduciary Duties – Fiduciary relationships – indicia – breach – scope – defence to contract claim – whether fiduciary unable to claim remuneration because of breach – whether fiduciary relationship and duties consistent with terms of contract – exclusion by contract – whether breach of fiduciary duty disentitled the plaintiff from recovering fees PROFESSIONS AND TRADES – Property, Stock and Business Agents Act 2002 (NSW) – no corporation licence – whether plaintiff not entitled to recover fee – whether plaintiff acted as ‘agent’ in connection with the sale of the land – Property, Stock and Business Agents Regulation 2014 (NSW) reg 46A – whether work amounted to ‘commercial property agency work’ – whether evidence of use or intended use of the land for agricultural activities

FAMILY LAW — Property — Application for property settlement orders under the Family Law Act 1975 (Cth) (“FLA”) to replace property settlement orders earlier made by consent and subsequently set aside under FLA, s 79A – whether wife’s contributions during the marriage gave rise to proprietary interest by common interest constructive trust or “unjust enrichment” – whether otherwise “just and equitable” under FLA s 79 to make further provision for the wife out of the property. FAMILY LAW — Property — Marriage — Adjustment of property interests – operation of FLA, ss 79 and 90AE - whether prior order under s 37A Conveyancing Act 1919 (NSW) that wife make property available to satisfy husband’s debts presents a bar to the cross-claim by way of Anshun estoppel – whether prior order could be set aside under s 79 FLA – whether prior order created security interest which cannot be displaced aside from exercise of the Court’s power under s 90AE - where prior order in effect equivalent in operation to security over the property or an order to charge the property with the liability – whether prior order could be set aside under r 36.16(3) Uniform Civil Procedure Rules 2005 (NSW) – whether prior order could be set aside under UCPR r 36.15 - where necessity to set order aside raised by the Court and no claim under FLA s 90AE pursued – where no application made to vary “make available” order under UCPR, r 36.16(3A). EQUITY — Trusts and trustees — Constructive trusts — Common intention – where at time property was acquired wife was bankrupt and made no contribution to the purchase – where no pooling of assets – where wife’s sole contribution homemaking and care of children – no Baumgartner constructive trust. FAMILY LAW — Property — Marriage — Adjustment of property interests – property adjustment order under FLA s 79 – whether costs of unsuccessful proceedings arising from husband’s business dealings should be included in the net family assets or solely attributed to husband – where proceedings arose out of husband’s business dealings from which the wife received financial benefit over extended period – where husband and wife physically separated but continue joint financial affairs – where no information available to the Court regarding husband’s assets and liabilities held in country of residence.

ADMINISTRATIVE LAW – Judicial review of decision to dismiss application for inquiry into conviction or sentence under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) – Whether jurisdictional error or error of law established – Whether applicant raised any matter that had not previously been fully considered – Summons dismissed

LEGAL PRACTITIONERS — Disciplinary proceedings — Appeal against decision of NSW Civil and Administrative Tribunal (“NCAT”) — Appellant failed to disclose to Law Society her suspension by the Migration Agents Registration Authority (“MARA”) from practising as a migration agent — Whether NCAT erred in finding nondisclosure of suspension amounted to professional misconduct within the meaning of s 297 of the Legal Profession Uniform Law (NSW) — Whether certain statements by member of NCAT during course of hearing sufficient to ground a reasonable apprehension of bias — Whether appellant denied procedural fairness in relation to NCAT’s use of the fact of the MARA finding ADMINISTRATIVE LAW – tribunals – proper role of NCAT in hearing professional conduct matters – not appropriate for Tribunal member to express “hope” as to what further investigations Law Society might undertake

SUCCESSION – family provision orders under Succession Act 2006 (NSW) – whether exercises of discretion miscarried and the amounts of additional provisions ordered should be reduced – whether exercise of discretion miscarried with respect to who should bear the burden of additional provisions APPEALS – nature of appeal – standard of review applicable to family provision orders under s 59(1)(c) of the Succession Act 2006 (NSW)

JUDICIAL REVIEW – Heritage Council – heritage listing of building occupying part of appellant’s land – prohibition upon carrying out any development in relation to the land on which the listing building was situated without Heritage Council approval – Heritage Act 1977 (NSW), s 57(1)(e) – appellant applied to redevelop the balance of its land – Heritage Council proceeded on basis that its approval was only required for proposed activities within the listed building – adjoining landowner sought judicial review, claiming Heritage Council had misdirected itself – whether prohibition required a nexus between development and heritage values of listed building – whether prohibition applied to development on any part of the lot on which the listed building was situated – significance of statutory text, context and purpose

CIVIL PROCEDURE – admissions – withdrawal – where leave sought to withdraw admission made in verified defence – where admission is of stated fact – where evidence led by individual defendant provides little justification for application to withdraw admission – where no prejudice to plaintiff in allowing admission to be withdrawn – whether leave to withdraw admission should be given.

CORPORATIONS – winding up – application to validate appointment of liquidator – where liquidator purported to be appointed by special resolution of members – where question as to whether a person was a member – where company has been in liquidation for a significant period of time – whether appointment should be validated under s 1322(4) of the Corporations Act 2001 (Cth).

SUCCESSION – Family Provision – The Plaintiff, a child of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) – The Defendant is also a child of the deceased – Deceased left Will – Some provision made for the Plaintiff, with balance left to the Defendant – Small estate – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made

CRIMINAL LAW – bail application – offences of violence – home invasion – threats to kill – criminal history of violence – history of breaching court orders – unacceptable risk – difficulty for aboriginal applicants in obtaining drug rehabilitation reports – unstructured proposal for rehabilitation – “angry people not always wise” – Jane Austen – wise forensic decision not to contest strength of prosecution case – gratitude expressed to Aboriginal Legal Service lawyer – bail refused

CIVIL – Crimes (High Risk Offenders) Act 2006 – preliminary hearing – application for appointment of psychiatrist and psychologist under s 7(4) – mandatory considerations – consideration of factors in s 9 – application for interim detention order pursuant to s 18A – alternative application for interim supervision order – order made

EQUITY – declaration – interpretation of s 45 of the Births, Deaths and Marriages Registration Act 1995 (NSW) – whether the court has jurisdiction to grant declaratory relief – order that the plaintiff is not the biological father of the first defendant

EQUITY – Equitable remedies – Injunctions – proper construction of conditions of a permit obtained from the Australian Pesticides & Veterinary Medicines Authority – whether injunctive relief should be granted as a matter of discretion

EVIDENCE — Documentary evidence — Whether draft documents pertaining to acquisition of property admissible EVIDENCE — Witness evidence — Whether inference available as to provenance and purpose of water licence enquiry

EVIDENCE — Hearsay — Exceptions — Business records EVIDENCE — Admissibility of admission made with authority

EVIDENCE — Relevance — Whether evidence as to the Noble House meeting, the discussion of Mr Macdonald’s future career at the meeting, and the agreement reached subject to that meeting, is relevant to facts in issue in the trial

EVIDENCE — Hearsay — Exceptions — Whether evidence admissible under ss 65(1) and (3) of the Evidence Act — Whether evidence should be excluded under s 135 of the Evidence Act — Evidence inadmissible

EVIDENCE – Documentary evidence – Admissibility of evidence of the conduct of one or more than one alleged co-conspirators after conspiracy had been executed against all conspirators in conspiracy trial

PROCEDURE – judgments and orders – application for stay of orders pending appeal – whether significant risk if money paid to respondent it will be unable to be recovered without delay or difficulty if appeal succeeds – where undertakings offered by respondent

CRIMINAL LAW – mental health defence – psychiatric evidence – accused suffered defect of reasoning – accused unable to reason wrongfulness – accused mentally ill at time of offence – special verdict of not guilty – order pursuant to s 39 of the Mental Health (Forensic Provisions) Act

CIVIL PROCEDURE — interlocutory application – security for costs – application to adjourn based on pending appeal to Legal Aid Review Committee – lengthy litigation history between the parties – existence of special circumstances – adjournment refused

EVIDENCE – affidavit evidence – where plaintiff sues defendants for negligence and misleading and deceptive conduct – where evidence previously excluded from plaintiff’s claim for negligence – whether evidence should be excluded from plaintiff’s claim for misleading and deceptive conduct – whether s 5D(3) of the Civil Liability Act extends to evidence in a claim for misleading and deceptive conduct

APPEALS – application for leave to appeal proceedings – stayed pursuant to inherent jurisdiction and s 67 of the Civil Procedure Act 2005 (NSW) as an abuse of process – whether any proper basis for the finding of abuse of process – whether proceedings properly stayed pursuant to s 17 of the Trans-Tasman Proceedings Act 2010 (Cth) – leave to appeal granted – orders not properly made – orders set aside CIVIL PROCEDURE – failure to file notice of appeal as ordered - application for leave to appeal treated as constituting notice of appeal

CRIMINAL LAW – appeal against sentence – attempting to procure fictitious child under 14 for unlawful sexual activity – travel with intention of meeting child under 14 whom applicant groomed for sexual purposes with intentions of procuring unlawful sexual activity with child and another person – Crimes Act 1900 (NSW) s 66EB – whether error in level of accumulation – whether total sentence manifestly excessive