Cases and authorities

ADMINISTRATIVE LAW – Judicial review – Construction of Home Building Act 1989 (NSW), s 48K – Jurisdiction of Civil and Administrative Tribunal of NSW – Whether the Tribunal had jurisdiction to deal with claim for an amount exceeding $500,000 – Whether the Appeal Panel fell into error in refusing the plaintiff's application to transfer proceedings to the Supreme Court – Refusal to conduct judicial review under s 34 of the Civil and Administrative Tribunal Act 2013 (NSW) PRACTICE AND PROCEDURE – Civil procedure – Application for leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Test to be applied by the Tribunal when considering a transfer application based on jurisdiction – Test to be applied by the Tribunal when granting leave – Considerations relevant to an application for adjournment – Whether the Tribunal failed to properly consider cl 6(1) Sch 4 of the Act

PRACTICE AND PROCEDURE — Costs — Security costs — Application for security for costs — UCPR 42.21 — Where there is reason to believe the plaintiff will be unable to pay costs if so ordered

COSTS – where respondents validly assert a lien over file of plaintiff as security for unpaid costs – where there is no evidence that the plaintiff could not pay the amount claimed by the respondents – whether current litigation would be stultified if plaintiff required to provide security to the respondents beyond an offer to pay the claimed costs at a later time – whether the security that the plaintiff should furnish as a condition of the provision of the file by the respondents is reasonable – whether respondents’ alleged failure to comply with Legal Profession Uniform Law s 174(1) affects their right to claim a lien – plaintiff to pay by way of security for the release of the file a proportion of the costs claimed by respondent

TORTS – Negligence – Where plaintiff was “warming up” riding a horse at an agricultural show prior to competing in an event – Where children were playing nearby – Where noise created by children caused a horse nearby to be startled – Where plaintiff’s horse fell to the ground causing the plaintiff serious injury – Whether the defendant breached any duty of care owed to the plaintiff – Whether the plaintiff’s injuries were due to the materialisation of an obvious risk of a dangerous recreational activity – Whether the plaintiff’s injuries were the result of the materialisation of an obvious risk – Whether the plaintiff’s injuries were the materialisation of an inherent risk – Whether the risk of injury was the subject of a risk warning given to the plaintiff by the defendant

REFERRALS – case management – matter listed for hearing CIVIL PROCEDURE – Court of Appeal – stay of orders – stay refused – Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681; [1986] HCA 84 applied

TORTS – motor vehicle accident – notice of claim – Motor Accidents Compensation Act 1999 (NSW), s 73 – where claim not made within six months of accident – where applicant seriously injured and had no knowledge of claims process – whether applicant had “full and satisfactory explanation” for delay

CORPORATIONS – Members’ rights and remedies – Oppression – Where conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory - primary judge found affairs of Canberra Eye Hospital Pty Ltd carried on in a manner oppressive to and unfairly prejudicial to appellants. VALUATION – Types of property – Shares – Oppression –– primary judge found oppressive conduct - primary judge dismissed claim for relief under s 233 Corporations Act 2001 (Cth) – appellants claimed that as a consequence of oppressive conduct, appellants sold their shares to interests associated with respondents at less than their fair value – appellants sought order that respondents pay the appellants compensation, representing difference between the fair value of shares and sale price – whether primary judge erred in method of valuation of shares sold by the appellants - whether primary judge erred in failure to include hypothetical income in valuation of shares – whether primary judge erred in taking into account death of surgeon in valuation of shares.

CRIME – appeals – Mental Health (Forensic Provisions) Act 1990 (NSW) – appeal against nominated limiting terms – drug supply offences and direct activities of criminal group offence – applicant suffered stroke after arrest – Mental Health Review Tribunal assessed applicant as unfit to be tried – no error in finding applicant an inappropriate medium for general deterrence – error in taking into account specific deterrence – no likelihood of applicant reoffending due to mental condition – appeal allowed – reapplication of totality principle – lower total effective limiting term nominated – referral to Mental Health Review Tribunal confirmed

CRIME – Bail – Release Application – Applicant and co-accused convicted at same hearing – Co-accused successfully appealed conviction – Whether Crown concession given in respect of applicant’s own conviction appeal special or exceptional circumstance justifying grant of bail – Release application and bail granted

EVIDENCE – Privilege – Where plaintiff a legal practitioner charged with serious criminal offences – Where search warrants were executed by police in the course of their investigation resulting in the seizure of electronic devices containing large numbers of documents – Where “blanket” claim for client legal privilege was made over those documents at the time of their seizure – Question of appropriate protocol to be adopted to determine if any claims for privilege were to be pursued – Necessity to balance the interests of the plaintiff and those who may wish to make a claim for privilege against the interests of the police in reviewing and assessing the material for the purposes of finalising a brief of evidence – Orders made setting out procedure to be adopted.

HIGH RISK OFFENDER – sex offender – final hearing – criminal history involves sexual offences of opportunistic nature with young persons and children unknown to the defendant – fluctuating compliance – revocation of parole following breach of parole conditions in December 2018 after 20 months of compliance – whether two or three year ESO appropriate – whether electronic monitoring should have time limit

HIGH RISK OFFENDERS – application for a continuing detention order – final hearing – serious violent offender – whether Court satisfied to high degree of probability defendant poses unacceptable risk of committing another serious offence if not kept in detention – history of non-compliance with supervision – significant history of violence – antisocial personality disorder – expert evidence of high risk of re-offending – continuing detention order imposed

EVIDENCE — Privileges — Client legal privilege — Loss of — Whether communication prepared in furtherance of a fraud — Evidence Act 1995 (NSW), s125

ALTERNATIVE DISPUTE RESOLUTION – EXPERT DETERMINATION – CONTRACT – construction of expert determination provision requiring an expert to make a determination ‘according to law’ – whether expert required to make a determination free of legal error affecting the result – whether expert determination susceptible to review for alleged legal error on its face; HELD: ‘according to law’ did not require the determination to be free of legal error to be binding – expert determination not susceptible to review for legal error on its face – expert determination binding

COSTS- Cost Assessment – Costs under s 88K(5) of Conveyancing Act 1919 (NSW)

CIVIL PROCEDURE – Preliminary discovery – To identify cause of action – Discovery of documents from prospective defendant – Insufficiency of information to decide whether or not to commence proceedings against prospective defendant – Documents going to quantum of relief claimed, and whether prospective defendant held documents inconsistent with representations – Preliminary discovery available on conditions.

HIGH RISK OFFENDER – serious sex offender - extended supervision order and continuing detention order preliminary hearing - limited nature of the test to be undertaken at preliminary hearing – whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or CDO – pre-conditions for the making of an interim detention order established

CRIMINAL LAW – sentence – manslaughter by excessive self-defence – death caused by single stab wound to the chest – offender and deceased both heavily intoxicated by illicit drugs – previously harmonious friendship between offender and deceased – offender provides bizarre account of circumstances leading up to stabbing – offender believed it was necessary to do what he did in self-defence – grossly disproportionate and unreasonable response – offender formed intention to kill – previous good character – no prior criminal record – good prospects of rehabilitation – unlikely to reoffend – expressions of remorse sit uncomfortably with outright acquittal sought at trial – offender has not accepted full responsibility for the killing – no discount for efficient trial – no special circumstances

CONTRACT – alleged oral variation of contract –contractual clause providing for no variation other than in writing – factual finding of no oral variation APPEAL – challenge to finding of fact in relation to disputed conversation – principles applicable to such a challenge

SUCCESSION – family provision – claim by widow who was second wife – where estate substantial – where will left annuity to widow and balance of estate to children of first marriage – relevance of testamentary freedom – guidelines relating to widows’ claims – annuities – adequate provision for proper maintenance and advancement

APPEAL – appeal and cross-appeal – application for leave to proceed against respondent company in liquidation – Corporations Act 2001 (Cth), s 471B – choice between ordinary litigation or proof of debt procedure APPEAL – appeal and cross-appeal – application for substituted service on respondent – where initiating process to be served in another state – where service is likely to bring proceedings to the attention of the intended recipient

CONTRACTS – remedies – damages – time of assessment – whether the primary judge erred in finding that the measure of loss was the difference between the price payable under the contract and the amount attributable to the land under a resale contract 9 months later – whether the prima facie rule governing damages for breach of a contract for sale of land should give way where the purchasers did not accept the repudiation of the contract and promptly sought an order for specific performance – whether damages should be assessed at the date the remedy of specific performance was no longer available and the contract was lost – whether the best evidence of the market value of the land at that date was the purchasers’ offer of sale 7 months later or the amount attributable to the land under a resale contract 9 months later – where there was no evidence of the terms of the offer CONTRACTS – remedies – damages – whether the primary judge erred in assessing damages for increased building costs – whether damages for increased building costs were too remote – where the purchasers bought a different kind of property which necessitated a different kind of home – where there was no evidence CONTRACTS – remedies – damages – whether the primary judge erred in assessing damages for rental payments – whether loss was proven – whether damages for rental payments were too remote – where the purchasers had to continue to rent when they would otherwise have occupied the land after construction of a house on the land was completed – where there was no evidence CONTRACTS – remedies – damages – whether the primary judge erred in assessing damages for interest on a loan – whether loss was proven – whether damages for interest on a loan were too remote – where there was no sufficient evidence

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Misapplication of principle — Commencement date of sentence — Offence committed while on day release

JUDGMENTS AND ORDERS — Enforcement — Writ for possession of land

CRIMINAL LAW – murder – alternatively, causing grievous bodily harm with intent to murder – assaulting a police constable in the execution of her duties – stealing – defence raised of mental illness –schizophrenia or schizoaffective disorder disease of the mind – unanimous opinion of experts that accused did not know actions wrong because of defect of reason from a disease of the mind – verdicts of not guilty on the ground of mental illness CRIMINAL LAW – murder – alternatively, causing grievous bodily harm with intent to murder – causation of death – whether injuries and consequent tetraplegia caused death almost two years later

HIGH RISK OFFENDERS – application for extended supervision order – preliminary hearing – whether high degree of probability that offender posed unacceptable risk of committing another serious offence on assumption that allegations in supporting documentation proved – interim supervision order and examination order made – no point of principle

LAND LAW — Torrens title — Compensation for loss of interest in land — Torrens assurance fund — Whether “breach of trust” exemption from compensation includes fraudulent breach of trust or applies only where sole cause of loss or damage is breach of trust — Real Property Act 1900 (NSW), s 129(2)(f)(i)

ADMINISTRATIVE LAW – Judicial review – appeal against determination of Motor Accident Medical Assessment Service – whether jurisdictional error – whether error of law on the face of the record – whether failure to refer to particular evidence constitutes a failure to take into account relevant considerations – whether there was a failure to refer to evidence – whether evidence admitted of one lawful outcome only – overriding function of review panel – case not made out – dismiss proceedings

COSTS – party/party – general rule that costs follow the event – where quantum determined by referee prior to hearing on liability – where plaintiffs unsuccessful at hearing on liability – whether successful defendants should pay plaintiffs’ costs of the reference – whether successful defendants’ costs should include costs of the reference COSTS – party/party – bases of quantification – indemnity basis – whether defendants entitled to indemnity costs by reason of offers of compromise COSTS – party/party – interest on costs – whether there should be interest on costs

LAND LAW – contract for sale of land – claim for specific performance – doctrine of part performance – plaintiffs and defendants own adjoining properties – plaintiffs entered into oral agreement with defendants to purchase part of the defendants’ property – requisite boundary adjustment to be effected by means of two separate subdivisions – where the parties completed the first subdivision but first defendant refused to proceed with the second subdivision – whether sufficient acts of part performance – sufficient acts of part performance established – specific performance granted

ADMINISTRATIVE LAW – Judicial Review – orders sought under s 69 of the Supreme Court Act 1970 (NSW), quashing orders made by the Local Court under s 221B of the Road Transport Act 2013 (NSW), removing licence disqualifications – whether defendants were entitled to make an application for removal of licence disqualification given s 221D of the Road Transport Act 2013 (NSW) – whether the Local Court had power to order the removal of defendants’ license disqualifications – Local Court acted without jurisdiction – whether reasons given inadequate - whether the Court’s discretion to refrain from making orders under s 69 of the Supreme Court Act 1970 (NSW) should be exercised - orders made by the Local Court removing licence disqualifications are quashed TRAFFIC LAW AND TRANSPORT — Traffic law — Offences – Licence disqualifications COSTS — Party/Party — Appeals — Suitors’ Fund - costs as agreed or assessed – certificate granted under the Suitors' Fund Act 1951 (NSW) in relation to the costs of the proceedings, if qualified

CIVIL PROCEDURE – claims for expedition and allocation of hearing date – proceedings not ready for hearing – claims refused CIVIL PROCEDURE – application for gross sum costs order – no evidence adduced of amounts paid – order declined CIVIL PROCEDURE – plaintiff’s application for apology regarding first defendant’s withdrawal of notice of motion for appointment of tutor – application refused CIVIL PROCEDURE – application for joinder of Medical Council – statutory scheme provided for scheme of review as precondition to seeking judicial review – application dismissed CIVIL PROCEDURE – application to set aside notices to produce – notices oppressive and amount to “fishing”

FAMILY LAW - Children – Parens patriae jurisdiction – No further need for extraordinary medical intervention

CORPORATIONS – winding up – application for directions that liquidator of several companies would be justified in admitting several proofs of debt – where liquidator both lodges and is required to adjudicate proofs of debt – where liquidator is in a position of conflict – where external expert engaged to assess the proofs of debt – whether directions sought should be made.

COSTS – Party/Party – General rule that costs follow the event – Proceedings discontinued or dismissed – conduct of parties – whether parties should pay bear their own costs – whether parties effectively capitulated or acted unreasonably

SUCCESSION – PRACTICE AND PROCEDURE –notice of motion seeking leave to file statement of claim replacing summons – continuation of matter on pleading – whether plaintiff should be appointed to represent interests of estate – plaintiff has personal interest in outcome of proceedings

CIVIL PROCEDURE — Pleadings — Fraud — Appellant alleged judgment founded on adjudication certificate under Building and Construction Industry Security of Payment Act 1999 (NSW) procured by fraud — Substance of fraud allegation not dealt with at first instance due to finding of deficient pleading —Whether fraud sufficiently pleaded — Whether appellant departed from its pleaded case — Whether primary judge erred in dismissing claim without addressing substance of case — Proceedings remitted to Equity Division for further hearing or redetermination

APPEAL – leave to appeal – judicial immunity –whether State vicariously liable for conduct of a judge and registrar– proceedings dismissed as having no prospect of success

PRACTICE and PROCEDURE – Adjournment – Prosecutor’s application – contempt proceedings – multiple adjournment – motion to strike out – Legal Aid – Appeal – adjournment refused

COSTS — Gross sum costs order — Successful defendant — Risk that plaintiffs unable to meet costs order — Modest costs in issue — Jurisdictional issue ought to have been taken by defendant — Discount warranted — Gross sum costs of 40% of solicitor party costs ordered.

POSSESSION PROCEEDINGS – Where defendant filed appearance submitting to the orders of the Court – Order for possession granted STAY OF PROCEEDINGS – Where defendant did not oppose order for possession – Where defendant then sought a stay of such order for a period of six to eight weeks – Evidence that the defendant had been on notice of the possession proceedings for almost 5 months – Where the defendant had repeatedly refused to vacate the property when requested to do so – Submission made that it is “usual” to make an order for a stay – Necessity to take into account all relevant circumstances in the exercise of the discretion to grant a stay – Application for a stay refused

COSTS – Party/Party – General rule that costs follow the event – costs of application to amend pleadings to be granted in event of success of claims introduced by amendments – contested application subject of special fixture – whether plaintiffs substantially successful on the application – other conduct of parties – relevance of indulgence principle

CIVIL PROCEDURE – Stay of proceedings – Concurrent civil and criminal proceedings – whether stay necessary to achieve justice between competing rights of parties – whether issues and evidence relevant to both sets of proceedings – prejudice to parties – admissions already made by defendant

JUDICIAL REVIEW – stay of decision below – public interest – triable issue – serious prejudice – economic loss – vulnerability to criminal process in absence of stay – stay granted

CORPORATIONS — Winding up — Statutory demand — Where demand issued for running account balance — Where payment processed after preparation of demand but on same day — No dispute that payment made — No dispute as to underlying indebtedness —Whether offsetting claim — Whether defect in demand — No basis for varying or setting aside demand — Application dismissed.

COSTS — Indemnity basis — Where appropriate — Defendant’s misleading conduct — Indemnity costs order made.

PRACTICE AND PROCEDURE – motion to set aside judgment and rehear application for judicial review – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) – application dismissed

CIVIL PROCEDURE – appeal – judgments and orders – representative action – orders of trial judge a to plaintiff’s personal claim set aside – further order setting aside answers to common questions sought – whether judge made orders

CONTRACTS – construction and interpretation – variation of terms – where parties agreed to jointly provide project management training services to third parties – where appellant provided course materials and issued completion certificates – where client dissatisfied – whether parties agreed to vary their agreement – where first respondent subsequently delivered training courses using its own materials and certification services – whether variation agreement required payment of royalty fee to the appellant in such circumstances – whether first respondent bound to engage appellant to provide certification services CONTRACTS – breach – where first respondent developed and used its own course materials – whether first respondent breached agreement as varied by not engaging appellant to provide certification services CONTRACTS – termination – repudiation of contract – where first respondent ceased paying royalty fees to the appellant for courses provided to clients using its own materials and certification services – whether contract was repudiated by conduct – whether primary judge erred in inferring parties’ conduct consistent with mutual agreement to terminate their contractual relationship

HIGH RISK OFFENDER – Application for ESO – agreement on making of order – Court still needs to be satisfied of jurisdiction – ESO made – 3 year duration – resolution of issues between parties as to terms of certain Conditions