Cases and authorities

TORTS – miscellaneous torts – right of support – application of s 177 of the Conveyancing Act 1919 (NSW) – whether loss of support caused damage to adjoining property NEGLIGENCE – essentials of action for negligence – whether there was a failure to take reasonable care – whether any failure caused damage NEGLIGENCE – apportionment of responsibility and damages – onus of proof CIVIL PROCEDURE – pleadings – amendment – joinder of plaintiffs who are otherwise statute barred

ADMINISTRATIVE LAW – legal effect of proposed acquisition notice – statutory authority of Roads and Maritime Service to acquire land under s 177 of Roads Act – source of RMS’s legal authority to acquire land. STATUTORY INTERPRETATION – Roads Act 1993 – meaning of s 177 – construed to favour private property rights – statutory power only enlivened after identification of objective purpose of Act – purpose of the Act are to be found in all the provisions of the statute – s 64 marker of a statutory purpose of Roads Act – carry out functions of road authority with respect to proposed tollway – s 71 – road works widely defined – carry out roadwork – s 63 ministerial directions – all functions of road authority, to the fullest extent possible to become responsibility of RMS – proposed acquisition notice authorised by law.

LIMITATION PERIODS – negligence – when causes of action first accrued – developer incurred material wasted expense, but only sued for lost profit – wasted expense incurred more than six years before proceedings commenced, at time when profit was prospective – significance of plaintiff confining claim to lost profits – significance of interest sought to be protected by common law – cause of action on first representation statute barred – defendant failed to establish plaintiff incurred material loss from second representation prior to six years before proceedings commenced – cause of action on second representation not statute-barred NEGLIGENCE – duty – novel duty of care – pure economic loss to developer from negligent misstatement by statutory authority to council – significance of assumption of responsibility, reliance and vulnerability – whether duty inconsistent with or sat ill with statutory obligations applicable to authority – no duty found in relation to second representation NEGLIGENCE – duty – scope of duty – first representation made directly by statutory authority to developer – whether representation went beyond question asked – whether representation outside scope of duty of care – first representation within scope of duty of care NEGLIGENCE – breach – whether at time representations were made there was extant proposal to widen or realign road – significance of historical documents – significance of failure to give testimonial evidence – significance of concession that proposal had at some stage been abandoned – breach made out NEGLIGENCE – causation – whether developer had established it would have acted differently had there been no breach – causation not established NEGLIGENCE – special statutory power – whether statutory authority was exercising special statutory power when responding to council – Civil Liability Act 2002 (NSW) s 43A considered – s 43A inapplicable NEGLIGENCE – damages – plaintiff’s case depended on “Desired Development” being built – damages calculated by reference to hypothetical profit calculations of Desired Development and actual development – whether plaintiff established any chance of Desired Development being approved – no fall-back case for wasted expenditure – damages case not made out

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion

COSTS — Payable out of a fund — Deceased estate — Relevant principles SUCCESSION — Family provision and maintenance — Consideration of issues requiring determination before final orders can be made — Uncertainty regarding value of estate — Impact of Greek taxation law on value of Greek estate — Effect of new evidence concerning same after principal judgment already handed down — Case management SUCCESSION — Family provision and maintenance — Consideration of issues requiring determination before final orders can be made — Significance of costs orders for the terms of available family provision orders — Case management

EQUITY — Trusts and trustees — Resulting trusts — Quistclose trusts — Obligation to return monies when purpose for which trust was set up has failed EQUITY — Trusts and trustees — Breaches of trust — Misappropriation of trust property — Actual knowledge of breach EQUITY — Trusts and trustees — Liability — Circumstances in which Equity will find a person liable as if they were the trustee

CIVIL PROCEDURE — Hearings — reopened hearing on question of relief –– whether making good of the plaintiffs’ expectations would be inequitably harsh in all the circumstances –– whether imposition of conditions of the kind proposed in the principal judgment would be financially ruinous for the parties –– whether capital gains tax liability flowing from the relief granted would render the relief otherwise proposed to be granted wholly disproportionate or out of all proportion to the detriment suffered ESTOPPEL – Proprietary estoppel – whether to grant declaratory relief recognising the existence of a constructive trust over properties and shares –– whether acceleration of the expectation would be appropriate in order to do equity and effect a clean break –– whether declared constructive trust arises at the time it becomes unconscientious or unconscionable for the promisor to resile from the promise

DEFAMATION – Remedies – Aggravated damages – malice – damage to reputation – compensatory – special damages – buffer in absence of precise calculation – compensatory and special damages awarded

LIMITATION OF ACTIONS – discoverability – claim for damages for workplace injury – orders for summary dismissal sought on basis that proceedings are abuse of process and time barred – where plaintiff sued companies A and B within limitations period – where claim against company B discontinued – where default judgment obtained against company A – where company A was not insured and judgment remains unsatisfied – where company B was insured and present proceedings commenced against it out of time – whether cause of action discoverable by plaintiff on first date he knew or ought to have known the fact that injury was caused by the fault of company B – whether plaintiff could “unknow” earlier fact that injury was caused by the fault of company B – Limitation Act 1969 (NSW), s 50D(1)(b) – whether doctrine of res judicata applies to default judgment

APPEAL – leave to appeal – summary dismissal of defamation proceedings – question of principle arising in obiter passage of reasons of primary judge – no question of principle arising on principal basis of decision – insufficient prospects of challenging orders made by primary judge – leave refused

JUDICIAL REVIEW – late application to quash orders of Land and Environment Court granting development consent – substantial unexplained delay – weakness of case sought to be advanced – application to extend time refused PRACTICE – parties – appeal against refusal of development consent – where development contemplated obtaining access across neighbouring land – whether neighbouring landowner a necessary party to appeal – whether Land and Environment Court lacked jurisdiction to impose easement in separate proceedings commenced while appeal was pending – Land and Environment Court Act 1979 (NSW), s 40, considered PRACTICE – parties – whether lot owners of land subject to Community Land Development Act 1989 (NSW) necessary parties to application for easement over Community Association’s land – whether other persons with registered easements over the land sought to be burdened by the proposed easement were necessary or proper parties – effect of non-joinder in circumstances where third parties were informed of application and requested not to be joined – UCPR r 6.23 and Land and Environment Court Act 1979 (NSW), s 40(3), considered REAL PROPERTY – easements – power of court to impose easement – whether easement reasonably necessary for effective use and development of dominant tenement – whether error of law in formulation or application of test – whether Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 qualified Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 – whether error of law in imposing condition upon number of daily truck movements – Conveyancing Act 1919 (NSW), s 88K – Land and Environment Court Act 1979 (NSW), s 40

APPEAL – dismissal of proceedings for want of prosecution – appeal by leave – whether exercise of discretion miscarried

APPEALS – Appeal from interlocutory decision of associate Judge – Effect of commencing proceedings in Court of Appeal – Supreme Court Act 1970 (NSW), s 51(2) applied – Whether appellable error in refusal to order preliminary discovery – No error established – Leave refused

TAXES AND DUTIES – penalty proceedings under s 269-20 of Taxation Administration Act 1953 (Cth) – obligation to remit amounts withheld from wages and salaries paid to employee – Taxation Administration Act 1953 (Cth) Schedule 1 s 12-35 – whether trial judge erred in finding appellant’s company had paid wages and salaries – appeal dismissed

CRIMINAL LAW – application for leave to appeal against sentence – possession of loaded firearm in a public place – applicant obtained firearm after drive-by shooting at his home – obtained for defence of himself and his family – not involved in criminal activity – whether his motive for obtaining the firearm relevant to assessment of objective gravity, moral culpability

CORPORATIONS – winding up – liquidators – application for approval of a deed of funding and indemnity nunc pro tunc under s 477(2B) of the Corporations Act 2001 (Cth). CORPORATIONS – winding up – liquidators – application for approval of compromise of debt under s 477(2A) of the Corporations Act 2001 (Cth) – where settlement will not generate any or any substantial further return to creditors – where largest creditor favours compromise.

LAND LAW – Caveats – Application for extension of caveat

CORPORATIONS – scheme of arrangement – application for orders approving a scheme booklet and to convene scheme meeting – whether requirements to order scheme meeting are satisfied. CORPORATIONS – scheme of arrangement – application for orders approving scheme of arrangement – where scheme of arrangement passed by all members – whether court should exercise its discretion in approving the scheme of arrangement.

INTESTACY- burial rights- dispute between de facto spouse and mother- significance of Aboriginal cultural, spiritual and religious beliefs

PRACTICE AND PROCEDURE - proceedings - transfer of proceedings from District Court to Supreme Court - order made

ADMINISTRATIVE LAW – Domestic tribunals – Disciplinary Hearing – Not a merits review – Wednesbury unreasonableness – Actual bias

TORTS - Negligence– Liability for others’ negligence – Apportionment of responsibility – occupier’s liability – joint occupation – whether effective control over part of building site containing hazard – whether negligence attributable to occupier through agency – whether tortfeasor a “true agent” or “agent properly so called” for attribution of tortious acts to putative principal– failure adequately to safeguard hazard or warn – dual vicarious liability impossible – tortfeasors equally in breach of respective duties WORKERS' COMPENSATION – recovery of benefits paid - apportionment and contribution between employers – s 151Z workers compensation claim – equal apportionment of contribution by tortfeasors

CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Silence — Sale of shares in company — Vendor represented to purchaser that company was good and profitable investment — Vendor disillusioned with management of company — Vendor aware of risk of litigation against company — Whether primary judge erred in finding vendor’s failure to disclose was misleading or deceptive conduct

TRADE AND COMMERCE – Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18 – whether conduct misleading or deceptive – common ground that letters contained incorrect representations – whether the letters had tendency to lead the recipient Ministers into error – inquiry to be conducted by reference to objective characteristics of recipient – inquiry to be conducted prospectively – no likelihood that the letter would lead Ministers into error TRADE AND COMMERCE – Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18 – whether conduct in trade and commerce – where letters sent to government Ministers informing them of electrical cable safety concerns – where body making impugned representations is a representative group for Australian cable manufacturers – where impugned representations relate to electrical cable safety standards CIVIL PROCEDURE – Court of Appeal – where issues not raised at trial sought to be agitated – appellant not permitted to reframe its case not put below – Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 and Metwally v University of Wollongong (No 2) [1985] HCA 28; 59 ALJR 481 applied

APPEAL – 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

TORTS — negligence — duty of care — duty of care owed by operator of waste disposal tip — escape of fire – whether class to whom duty owed indeterminate TORTS — negligence — standard of care — whether Council exercising special statutory power under Civil Liability Act 2002 (NSW), s 43A TORTS — negligence — breach of duty — whether adequate precautions taken to prevent escape of fire – allocation of resources by local council — application of Civil Liability Act, s 42 — whether inaction of local council unreasonable — whether financial resources available to take precautions TORTS — negligence — causation — where multiple possible causes of fire — whether probable causes arising from breaches of duty were sufficient to establish causation — whether precautions would have prevented damage to the plaintiff

CRIME – Appeal against conviction – Applicant convicted of 19 sexual offences against children – Apprehended bias – Trial judge’s consideration of applicant’s criminal history – Trial judge’s treatment of one complainant during cross-examination – No apprehension arises – Incompetence of Counsel – Failure to subpoena and “track down” witnesses – No miscarriage of justice – Fresh evidence – Request for Court to issue summonses to witnesses – Whether anticipated evidence admissible – Evidence of past medical procedure – Whether anticipated evidence cast doubt on conviction – No evidence casting doubt on guilt of applicant – Appeal against sentence – Sentence not manifestly excessive.

CRIME – lies as consciousness of guilt – rulings made

CIVIL PROCEDURE – Courts power to award costs – application for gross sum costs order – s 98(4)(c) relevant in cases where amount involved easily ascertained by the Court – interests of justice to be considered in circumstances of case

TERRORISM HIGH RISK OFFENDER – application for a continuing detention order and an extended supervision order – defendant affected by schizophrenia – question of basis of past dangerous conduct – whether defendant holds extreme beliefs or whether those beliefs are an expression of psychosis - need for medical treatment - question of whether threatening behaviour can be adequately managed by medical treatment – evidence capable of establishing that defendant poses a risk

INSURANCE – substantive proceedings suit for professional negligence – separate question determined as to construction of insurance documents – Proposal from Broker on letterhead of Insurer – express provision in Policy wording that Policy include Proposal – whether Proposal includes only document completed by insured or entire document sent to insured – insured returned document but accidentally omitted p 2, being a typewritten pro-forma – held Proposal was whole document – included p 2 whether or not it was returned – if not, then contract document should be rectified

LAND LAW — Strata title — Common property — Maintenance and repair of common property - Strata Schemes Management Act 1996 (NSW) ss 62, 65A - whether proposed works present repairs, replacement or renewal, or amount to improvements under the Act - construction and operation of ss 62, 65A - appeal from decision of New South Wales Civil and Administrative Tribunal.

COSTS – party/party – exceptions to general rule that costs follow the event – conduct of hearings – where plaintiff pursued a significant number of arguments at hearing – where plaintiff has only had limited success – whether order as to costs should be made.

COSTS – where misconceived summons for declaratory relief dismissed – order for plaintiff to pay defendant’s costs confirmed – order to grant plaintiff 4 months to bring an application rejected

EQUITY – estoppel – debtors raised, as a defence to admitted debts, an equitable estoppel based on a disputed oral conversation in which it alleged that the plaintiffs agreed, on certain conditions, not to claim payment – debtors claimed that they suffered prejudice in buying goods from the plaintiff and in procuring another party not to sue the plaintiffs on a different claim – approach to be taken to factual findings where the terms of an oral conversation are relied upon; HELD: conversation not established – no sufficient basis to ground an estoppel in equity; EQUITY – alleged breaches of statutory and equitable duties on the part of a de facto director and knowing participation by his company in the alleged breaches – alleged breaches consist of procuring payment to another party of monies due to the plaintiff object of the duties – where the recipient lent money to the plaintiff and the payments were made in reduction of the loan; HELD: no breach established and in any event no loss caused to the plaintiff – claim dismissed

COSTS – Security for costs – From the plaintiff – Relevant factors – whether cross-claim is defensive – plaintiff’s prospects of success – other factors

HIGH RISK OFFENDER – where defendant sentenced for State sex offences – where, whilst on parole for State sex offences, defendant also sentenced for Commonwealth offence of using a carriage service to access child pornography – where defendant sentenced for Commonwealth offence to a term of imprisonment of 2 years and 3 months – where sentencing judge ordered defendant to be released at the expiration of 15 months of sentence to be placed upon a recognizance release order for 18 months – where plaintiff seeks an order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act – whether the period of 9 months referred to in s 6(1) of the Crimes (High Risk Offenders) Act is measured by reference to the expiration of the head sentence or the expiration of the recognizance release order – defendant remains a supervised offender only during the currency of head sentence.

ADMINISTRATIVE LAW LIST – complaint against solicitor – complaint out of time – refusal of Legal Services Commissioner to conduct an internal review – absolute discretion – whether orders in the nature of certiorari and mandamus lie – summons dismissed – no point of principle

COSTS – Costs on an indemnity basis – alleged wilful disregard of known facts or clearly established law – whether case unduly prolonged by groundless contentions – offers of compromise – whether maximum sum should be specified

TORTS – negligence – breach of duty – where risk of harm obvious – where not established that risk not insignificant – whether content of duty required precaution of removing steel cable EVIDENCE – opinion evidence – expert opinion – where expert “civil engineer” and “building consultant” – where opinion as to human visual perception – whether expert has “specialised knowledge” – whether opinion wholly or substantially based on such specialised knowledge EVIDENCE – photographic evidence – where witness testifies photographs accurately show accident scene, including conditions of light and shade at time of accident – whether photographs evidence of light and shade conditions as affected visibility of objects shown DAMAGES – gratuitous domestic assistance – where provider of assistance already in receipt of carer’s pension – adequacy of reasons explaining quantification – no question of principle

CIVIL PROCEDURE – appeal – evidence – application to adduce further evidence on appeal – adverse inference drawn by trial judge from failure to call witness – whether application should be adjourned and heard concurrently with appeal –special grounds – whether conduct of legal representative binds party – whether high degree of probability of different result if further evidence adduced – credibility of further evidence

TAXES AND DUTIES – Duties Act 1997 (NSW), s 163H – where appellant taxpayer liable for duty at “general rate” in respect of acquisition of 50% shareholding interest in a private landholder company – where Chief Commissioner of State Revenue declined to grant exemption – whether application of Ch 4 of the Duties Act 1997 (NSW) to acquisition not just and reasonable

CRIMINAL LAW – evidence – interlocutory appeal against ruling on evidence – sexual assault – pictures of penis – where complainant draws picture of respondent’s penis – frenulum – “abnormal skin flap” – where trial Judge excludes police photographs of penis – whether admissible – expert evidence – where no evidence that frenulum abnormal – relevance – probative value – unfair prejudice – trial Judge correct

CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence of debt — Defendant claims to have been subrogated to mortgagee’s rights on discharge of plaintiff’s mortgage — Plaintiff disputes defendant’s involvement in transaction — Plaintiff disputes entitlement to subrogation — Genuine dispute made out — Demand set aside. EVIDENCE — Hearsay — Transcript of liquidator’s examination — Application of s 591(14) of the Corporations Act 2001 (Cth) — Rule does not exclude admissibility through the Evidence Act 1995 (NSW). EVIDENCE — Hearsay — Applicability of hearsay rule in application to set aside statutory demand — Admissibility of second-hand hearsay — Identification of the fact in issue as the existence of a genuine dispute. EVIDENCE — Inferences — Rule in Jones v Dunkel (1959) 101 CLR 298 — Applicability of rule in application to set aside statutory demand.

CIVIL PROCEDURE — Subpoenas — Application to set aside — Abuse of process –– subpoena issued for the production of documents from the National Australia Bank –– whether a legitimate forensic purpose for production –– whether merely a fishing expedition –– whether the issuing of the subpoena subverts the operation of Practice Note SC Eq 11

SUCCESSION – Statutory Wills – Assessment of actual, or presumed, intention of person lacking testamentary capacity – No clear intention – Application for statutory will dismissed.

Notice of Motion – Security for Costs – Special Circumstances – Impecuniosity – Stultification

CRIMINAL LAW - bail - detention application - Respondent charged with multiple counts of assault and assault law officer - offences against staff members in juvenile detention centres - assessment of bail concerns - unacceptable risk that Respondent would fail to appear, commit a serious offence and endanger the safety of the community - unacceptable risks not mitigated by terms of conditional bail - detention application granted - bail refused

CORPORATIONS – application for winding up – where employee claims have not been controverted by company.