Cases and authorities

CIVIL PROCEDURE – discovery – objection to inspection – client legal privilege – implied waiver on grounds of fairness – disclosure ordered

EQUITY – adoption – whether adoption proposed will promote the best interests of the child – whether dispensing with consent of maternal grandmother and birth parents is in the best interests of the child – whether the best interests of the child will be promoted by the making of an adoption order and preferable to any other action– whether the Paternal and Maternal Adoption Plans should be registered– whether the court should order the child’s surname to be changed

HIGH RISK TERRORISM OFFENDER – application for extended supervision order (ESO) – Sovereign Citizen Movement – discussion of statutory preconditions for making an ESO – combination of factors – consideration of discretion not to impose ESO – discussion of disputed conditions – ESO imposed

HIGH RISK OFFENDER – application for Extended Supervision Order – serious sex offence – Interim Supervision Order already issued – no opposition to order – duration – no issues of principle

HIGH RISK OFFENDER – application for Interim Supervision Order – index offence serious sex offence – allegations of fact are reasonably based and, if proved, would warrant Extended Supervision Order –conditions imposed

MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — possession – land already encumbered by mortgage to secure prior debt – no triable issue raised that may deny plaintiff judgment for possession CONTRACTS — unjust contracts — under statute – s 7(1)(b) Contracts Review Act – whether guarantors to mortgage correctly understood transaction – no special disadvantage proved on facts – no unjust or unconscionable advantage

CORPORATIONS – external administration – receivers – remuneration – functions and scope of appointment of interim receivers – expenses

FAMILY LAW — Children — Adoption

CORPORATIONS – members’ rights and remedies – application for the appointment of receivers and managers – whether the appointment of receivers and managers would be appropriate relief.

PRACTICE – stay pending application for leave to appeal – whether sufficiently arguable error of primary judge in exercise of discretion to justify stay of execution of writs for possession – no question of principle

PRACTICE – appeal – security for costs – corporate appellant – Corporations Act 2001 s 1335 – where reason to believe appellant unable to pay costs – where no reason not to grant security – no question of principle

CRIME – appeal against sentence – supply of a commercial quantity of cocaine – whether error in assessment of objective seriousness of offence – whether failure to take into account remorse – re-sentence

CRIMINAL LAW – leave to appeal – sentencing appeal – offences of aggravated kidnapping, intimidation and assault occasioning actual bodily harm – where offences occurred in domestic situation – where applicant under influence of crystal methylamphetamine– whether sentencing process miscarried – where no evidence or submission at sentencing hearing that applicant suffering mental illness at time of the offending CRIMINAL LAW – leave to appeal – sentencing appeal – whether sentence should be mitigated on grounds of character – whether sentencing judge failed to take into account applicant’s otherwise good character CRIMINAL LAW – leave to appeal – sentencing appeal – whether sentencing judge erred in assessment of objective seriousness of intimidation offence and assault occasioning actual bodily harm offence – where related findings not challenged CRIMINAL LAW – leave to appeal – sentencing appeal – whether aggregate sentence imposed was unreasonable or plainly unjust – limited utility of sentencing statistics and case law involving similar offending where such material reflects a range of different factual circumstances and subjective features

CRIME — appeals — appeal against conviction — sexual offences — whether convictions unreasonable — whether open to jury to convict on the basis of video footage of the incidents — whether acquittals including a charge of drugging victim inconsistent with guilty verdicts on other charges SENTENCING — Crown appeal against inadequacy of sentence — sexual assault and indecent assault offences — elderly victim — offences committed while victim incapacitated — offences video recorded and used to humiliate victim — prior relationship of friendship not a mitigating factor — error in not regarding victim as vulnerable due to old age — assessment of objective seriousness of offences open — errors in referring to principles and statutory provisions but no reasoning as to application — victim impact statement ignored — error in application of totality principle — aggregate sentence manifestly inadequate — discretion to intervene exercised — respondent re-sentenced

CRIMINAL PROCEDURE –Trial – Self-represented accused – judge alone trial on application of self-represented accused – duty of the trial judge to self-represented accused – obligation to ensure a fair trial CRIME – Appeals – Appeal against conviction –whether primary judge erred in failing to consider whether recorded telephone conversations were unlawfully recorded under the Surveillance Devices Act 2007 (NSW) – whether, if the recorded telephone conversations contravened the Act, the primary judge erred in failing to explain their potential admissibility under s 138 of the Evidence Act 1995 (NSW) – whether failure to do so denied the accused a fair trial – whether miscarriage of justice CRIME – Appeals – Appeal against conviction – whether Crown case shifted during the trial such that the applicant was denied the ability to deal with an issue – whether miscarriage of justice CRIME – Appeals – Appeal against conviction – whether primary judge failed to scrutinise the complainant’s evidence with care – whether finding that inconsistencies between the complainant’s first and second accounts of the offending did not affect the complainant’s credibility was correct – whether finding that the complainant was not manipulated to make accusations was correct CRIME – Appeals – Appeal against sentence – whether, on sentencing, primary judge failed to consider the accused’s “pre-existent symptoms of depression and anxiety” – no evidence that mental illness played a causative role in the offending

CORPORATIONS – winding up – application for directions that liquidators are justified in entering into deeds of settlement and release – where liquidators’ claim was strongly arguable – where risk and significant costs in pursuing litigation – where litigation is unlikely to result in greater return to creditors than settlement – whether directions sought should be made.

BAIL – show cause requirements – cause to take intoxicating substance with intent to commit indictable offence – indecent assault – flight risk – delay before trial

CIVIL PROCEDURE – Whether stay should be granted when proceedings are still being heard in the NSW Civil and Administrative Tribunal – notices of motion filed in Supreme Court seeking stay of proceedings – consolidation of proceedings in NCAT – join party to proceedings

PRACTICE AND PROCEDURE - application for stay of writ of execution - no proper basis to defer execution of writ – application dismissed

CONTRACTS – written terms – oral terms – construction – whether plaintiff contractually obliged to carry out and complete certain works – whether joint venture agreement or contract caught by Home Building Act 1989 (NSW) CONTRACTS – interpretation – ambiguity – evidence of surrounding circumstances – evidence of prior negotiations – evidence of subsequent conduct STATUTORY INTERPRETATION – definitions – Home Building Act 1989 (NSW) – meaning of “residential building work” – contract to do sub-division works including construction of a driveway, retention tank and drainage works – whether preparatory works under contract constituted “residential building works”

COSTS – party/party – costs orders in interlocutory proceedings – whether costs should be payable forthwith

CONTRACTS – construction and interpretation – whether fees stipulated in agreement are payable where loan did not proceed – whether fees stipulated for payment constitute a penalty – Andrews v Australia and New Zealand Banking Group Limited (2012) 247 CLR 205 applied CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – where defendant chose not to read document – where defendant not a sophisticated businessperson LAND LAW – caveats – whether caveatable interest arose before fees became due and payable – extension of operation of caveat

CONTEMPT – guilt established in previous judgment – opportunity given to contemnor to make submissions on sentence – no submissions made – sentence for criminal contempt derived – not imposed because of absence of contemnor – bench warrant issued – fine imposed for civil contempt

ESTOPPEL – equitable estoppel – proprietary estoppel – company associated with the defendant held a five year lease with an option to renew for a further five years over a property owned by the plaintiff – defendant carried out renovation works on the property – whether plaintiff had assured the defendant that a further five year lease with a five year option would be granted if renovation works to the property were undertaken – assurance held not to have been made – estoppel claim dismissed LAND LAW – leases – claim by landlord for possession of property – defendant continued to occupy property following the termination of a lease –defendant continued to pay rent to the plaintiff whilst negotiations for a new lease were on foot – plaintiff commenced proceedings for possession of property – whether defendant occupied property under a tenancy at will or a periodic tenancy – defendant held to occupy property under tenancy at will – tenancy terminated by commencement of proceedings – judgment for possession entered against the defendant

CRIMINAL LAW – sentence – manslaughter by excessive self-defence, defence of others – late plea of guilty – offender found guilty at trial of two related offences of discharge firearm with intent to cause GBH – incident involving discharge of pistol in a public street

CORPORATIONS – Statutory Demand – application to set aside – whether application to set aside was made “within 21 days” – genuine dispute – offsetting claim

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Self-represented litigant — Appeal against decision to dismiss summarily application for issue of writ of habeas corpus — Whether appellant denied procedural fairness — Whether primary judge’s remarks on earlier occasion regarding merits of application gave rise to reasonable apprehension of bias — Whether primary judge acted under dictation — Whether primary judge erred in admitting hearsay evidence — Whether primary judge bound to accept as true appellant’s allegation that appellant is subject to surveillance and monitoring by way of electronic microchip implanted in appellant’s body

CORPORATIONS – application for winding up – where company has not traded for over a year – where there is deadlock between shareholders.

CORPORATIONS – winding up – conduct of voluntary administration – meeting of creditors – application to extend convening period for second meeting of creditors under Corporations Act 2001 (Cth) ss 439A and 447A – whether extension would be in best interests of creditors.

ADMINISTRATIVE LAW – judicial review – compensation for alleged workplace injury pursuant to s 9 of the Workers Compensation Act 1987 (NSW) – appeal panel found error in certificate issued by approved medical specialist – appeal panel assessed claim afresh – appeal panel made adverse finding about percentage of whole person injury – whether appeal panel denied procedural fairness by considering certain material without giving the plaintiff notice of that material – whether appeal panel’s decision was unreasonable

INSURANCE — Double insurance and contribution — Exclusion of liability — Competing ‘other insurance’ provisions — Where one policy contains an ‘excess’ clause and the other an ‘escape’ clause — Whether rule in Weddell v Road Transport and General Insurance [1932] 2 KB 563 applicable — Whether, on construction of each policy, there is double insurance — No double insurance.

ADMINISTRATIVE LAW – Judicial review – decision by Appeal Panel – workers compensation – grounds for medical appeal – whether Appeal Panel exceeded limitation imposed upon powers – whether committed error of reasoning – did Appeal Panel pose the wrong question – was there denial of procedural fairness – grounds not made out – plaintiff pay costs of defendant

JUDGMENTS AND ORDERS — Interest— Award of as damages — Statutory power to award pre-judgment interest – discretion under s 100 of the Civil Procedure Act 2005 (NSW) –– where there has been no judicial determination of the merits of the claim –– where unable to conclude on the material when the cause of action for repayment first accrued –– no pre-judgment interest awarded COSTS –– application by the plaintiff for costs of the proceedings on the ordinary basis –– where the general position is that each party pay his, her or its own costs when there has been no final hearing on the merits –– whether defendant made express or implied admission or mixed admission of fact and law that the payment was due and payable –– whether defendants’ conduct so unreasonable as to warrant departure from the usual costs order

LAND LAW – contract for sale of land – claim by vendor for specific performance – construction – special condition in contract stipulated that the vendor agrees to replace lower staircase in the property in accordance with a Development Approval prior to settlement – special condition further stipulated that “the vendor warrants that all Development Consent Conditions will be satisfied on or before completion” and will provide an occupation certificate prior to settlement – where not all works permitted by Development Approval had been carried out – whether special condition required the vendor to complete all the works the subject of the Development Approval – special condition held to require only the replacement of lower staircase and provision of an occupation certificate in respect of that work – vendor held to have complied with special condition – specific performance ordered

PRACTICE AND PROCEDURE – where plaintiff is self-represented – where defendants seek orders that the proceedings be dismissed or struck out – where day before the hearing of the defendants’ motions the plaintiff indicated she would be unable to attend the hearing due to a medical condition – whether proceedings should be dismissed in the absence of the plaintiff – hearing of defendants’ notices of motion adjourned.

EVIDENCE – demonstration – relevance

EVIDENCE – whether telephone intercept evidence relevant – telephone conversation between the deceased’s mother and the former partner of the accused, Bernhard Webber – Mr Webber deceased – exceptions to the rule against hearsay – evidence relevant

EVIDENCE – hearsay – maker unavailable – whether circumstances in which representations were made make it highly probable that representations are reliable – whether representations made shortly after the asserted fact occurred – whether circumstances make it unlikely that the representations are a fabrication

LAND LAW – Co-ownership – Nature of joint tenancy – Contrast with office of co-executors of deceased estate SUCCESSION – Executors and administrators – Co-executors – Nature of office – “Joint tenants” without right of survivorship.

TRAFFIC LAW AND TRANSPORT — Traffic law — Motor accident legislation — Claim for damages — principles concerning cases where defendant is Nominal Defendant — approach to evidence in such cases — whether primary judge exercised sufficient care in evaluating evidence — no error in primary judge’s approach APPEAL AND NEW TRIAL — appeal — general principles — interference with discretion of court below — whether primary judge’s findings of fact were demonstrated to be wrong by incontrovertible facts or uncontested testimony or are glaringly improbable or contrary to compelling inference — appellate intervention not justified COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — UCPR r 42.14 — whether reasonableness of unsuccessful party’s conduct of litigation determinative of whether indemnity costs order to be made against them —reasonableness of conduct is not determinative — primary judge’s indemnity costs order upheld

CRIME – Property offences – Enter dwelling-house with intent to commit serious indictable offence – Circumstances of aggravation – knowledge of person inside dwelling CRIME – Domestic violence – Stalking or intimidation with intent to cause fear of physical or mental harm – Form 1 offence. SENTENCING – Appeal against sentence – Severity – Sentence manifestly excessive - background of significant hardship and disadvantage SENTENCING – Appeal against sentence – special circumstances – no reasons for finding of special circumstances - whether sentencing judge erred in failing to take into account risk of institutionalisation –considerable portion of life spent in custody - SENTENCING – Appeal against sentence - relevant factors on sentence – objective seriousness - whether sentencing judge erred in assessment of objective seriousness – whether the sentencing judge took into account that applicant was on parole at time of offending and criminal record in assessing objective seriousness.

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Defendants conduct of proceedings unreasonable notwithstanding settlement at hearing GUARANTEE AND INDEMNITY — Indemnities — Construction — Whether liability “as a result of” specified contract

LAND LAW — Caveats — Caveatable interest — No arguable case for an interest in land

CORPORATIONS – members’ rights and remedies – oppression – admission of applicants to membership of a social club – where board of the club has rejected many applicants for admission to membership – whether the conduct resulting in the rejection of those applications constituted oppression – whether a declaration should be made to that effect if that conduct was oppressive – whether a receiver should be appointed if the conduct constituted oppression. CORPORATIONS – members’ rights and remedies – oppression – conduct of general meeting – where members were excluded from general meeting – whether exclusion of members from meeting was oppressive – whether resolution passed at general meeting should be set aside. CORPORATIONS – members’ rights and remedies – oppression – whether the appointment of a court-appointed receiver would be appropriate relief.

COSTS – security for costs – where plaintiff is resident in Ireland and has no assets in NSW – where defendant’s motion for security for costs was filed almost eleven months after proceedings commenced by plaintiff – whether there is material to enhance the value of the presumption of prejudice flowing from the defendant’s delay in brining security for costs application – whether the balance of competing factors weights in favour of the defendant – plaintiff to provide security for costs.

CRIMINAL LAW – jury trials – whether jury should have been given unsupervised and unrestricted access to video of the complainant’s evidence-in-chief and cross-examination - whether video should have been treated as an exhibit CRIMINAL LAW – jury trials – warnings – whether the trial judge should have given the jury a “repetition warning” before giving it access to a video of the complainant’s evidence – R v NZ (2005) 63 NSWLR 628 considered

CRIME – murder – mental element – intention to inflict grievous bodily harm – whether open to the jury to find the requisite intent given degree of intoxication. CRIME – murder – specific intent – effect of intoxication.

CIVIL PROCEDURE – parties – application for joinder – where common issue of insolvency – where common questions of fact – whether several plaintiffs and defendants should be joined.

CRIMINAL LAW – Directions to jury – Where accused charged with committing a terrorist act – Plea of not guilty on the grounds of mental illness – Terms of directions to jury regarding the accused’s knowledge of the wrongfulness of his actions

CORPORATIONS — Dissolution — Reinstatement — Where company twice deregistered administratively for non-payment of fees — Company holds real property — Company solvent — Corporations Act 2001 (Cth) s 601AH(3)(d) — Scope of Court’s power — Orders made for re-organisation of shareholding and officeholding to reflect parties’ dealings.