Cases and authorities

COSTS - claim and cross-claim dismissed - defendant /cross-claimant makes Calderbank Offer on the Friday preceding the commencement of the trial offering dismissal of the claim and $50,000 to be set off against a pre-existing costs order in its favour, the offer to be open until 10.00am on the day of the trial HELD - in substance there is no event because both parties won and lost and plaintiff/cross-defendant did not act unreasonably in not accepting the Calderbank Offer - No order as to costs

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Fraud, misrepresentation or suppression of material facts — Plaintiff applies to set aside judgment after 30 years for alleged fraud

EQUITY — trusts and trustees — resulting trusts —where purchase money provided entirely by female de facto partner — no presumption of advancement — Calverley v Green (1984) 155 CLR 242 applied

COSTS — party/party — costs awarded where notices of motion resolved — costs payable forthwith — application refused where litigant self-represented — costs thrown away — “double accounting” where costs order granted on the usual basis

HIGH RISK OFFENDER – serious sex offender – preliminary hearing - application for interim supervision order

CRIMINAL LAW – sentence – murder – victim aged 2 years – sustained physical abuse in days preceding death – whether imprisonment for life appropriate – high-range objective seriousness however not in worst case category – subjective circumstances do not attract leniency – no remorse – primacy of considerations in respect of denunciation, deterrence and community protection

CRIMINAL LAW – sentence – offender found guilty of murder after trial by judge alone – offender very close to establishing partial defence of substantial impairment – discussion of objective and subjective features – intention to kill – offender suffering from schizophrenia – balancing of objective gravity with substantial reduction in moral culpability – sentence imposed

BAIL – release application – variation – removal of condition of house arrest – bail concerns and risks which applicant poses – significant custodial sentence to be imposed if convicted – strength of Crown case – weight to be given to letter written to Court – where applicant refuses to give evidence or be cross-examined – letter given no weight – application for variation refused

HIGH RISK OFFENDER – preliminary hearing – where the State seeks an order that the defendant be subject to an extended supervision order – orders opposed – whether matters alleged in the supporting documentation would, if proved, justify the making of extended supervision order – summons dismissed

ADMINISTRATIVE LAW – judicial review – assessment of damages under Motor Accidents Compensation Act 1999 (NSW) – adequacy of reasons – whether finding of loss of earning capacity unsupported by medical evidence – whether assessor failed to engage with insurer’s argument

BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – application for recovery of “claimed amount” as a debt due – validity of payment claims - whether payment claims sufficiently identified contract work - whether email sufficiently identified contract works to constitute a payment schedule – validity of service of payment claims - service by email pursuant to s 31(1)(c) - where no direct evidence of time of receipt . BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – cross-claim for breach of contract and set off for damages – contractual effect of consent orders - whether agreement by consent bore contractual force such that application for judgment could not be sought in advance of determination of cross-claim - whether notwithstanding agreement cross-claim may be used as a defence pursuant to s 15(4) - whether s 34 would otherwise invalidate an agreement purporting to contract out of the jurisdiction of the Act.

COSTS – interlocutory costs - application for immediate assessment and payment of costs thrown away – extensive amendments to plaintiff’s pleaded and evidentiary case – appropriateness of order that costs awarded against the plaintiff be assessable forthwith – order for payment of lump sum by plaintiff on account of costs to be ordered by the Court – utility of such order in facilitating ultimate ascertainment of precise amount payable.

APPEAL – application for leave – primary judge dismissed proceedings following non-compliance with orders requiring payment of previous costs – no dispute that orders had not been complied with – no reasons sought – leave refused

CIVIL PROCEDURE – summons seeking leave to appeal against decision refusing application for disclosure of documents and leave to issue subpoenas – whether documents were necessary for the resolution of the real issues in dispute – finding by primary judge that the need for disclosure was obviated by a concession made by the respondent – no error or injustice established

ENVIRONMENT AND PLANNING – judicial review of decision by the Minister for Planning to grant consent to a concept development application (Concept DA) to redevelop the Sydney Football Stadium – Concept DA proposal included Stage 1 works involving the demolition of the existing Stadium to ground level – whether the Minister’s consent granted in contravention of mandatory requirements of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) ENVIRONMENT AND PLANNING – whether Concept DA had to be placed on public exhibition for a minimum of 28 days or 30 days – whether the repealed s 89F of the EPA Act providing for a minimum of 30 days was a “relocated” provision within the meaning of cl 4A(2) of the Environmental Planning and Assessment (Savings, Transitional and other Provisions) Regulation 2017 (NSW) – whether applicant discharged its onus of establishing that the Minister failed to form an opinion as to the design excellence of the proposal as required by cl 6.21(3) of the Sydney Local Environmental Plan – whether the applicant discharged the onus of establishing that the Minister failed to comply with cl 7 of SEPP 55, which prevents development on contaminated land unless the Minister is satisfied or certain matters

COSTS – each side having partial success at trial and on appeal – order for partial costs warranted.

ENVIRONMENT AND PLANNING – environmental planning instruments – local environmental plan –proposal to rezone land – review of rejection by planning panel – power of panel to consider proposal – power of panel to recommend replacement of local council as relevant planning authority – no recommendation made – whether panel obliged to have regard to a local strategy endorsed by the Department – whether panel obliged to consider requirements of Secretary with respect to determination of planning proposal JUDICIAL REVIEW – availability of judicial review – whether power to review an administrative decision not to make recommendation at a preliminary stage of decision-making process – whether failure to take a particular matter into account could have affected legal interests – whether matter not taken into account COSTS – party/party – orders when proceedings involve multiple parties – parties with same interests –whether party inappropriately joined to primary proceeding and appeal should be awarded costs – whether improper for decision-maker to take an active role in proceedings where no other party with interest

APPEALS – leave to appeal – no points of general public interest – no likely injustice – new point, which could have been met by calling evidence below, should not be allowed to be raised on appeal – no basis for leave made out – leave to appeal refused CIVIL PROCEDURE – abuse of process – plaintiff acquitted by District Court in different proceedings – defendant not seeking to raise issue already determined against him in those proceedings – broad, merits-based judgment in all the circumstances – no abuse of process

EQUITY – equitable remedies – injunctions – interlocutory injunction – whether defendant should be restrained from calling on security surety bonds – whether serious question to be tried that bonds should be returned – whether serious question to be tried that neither first nor second defendants entitled to have recourse to surety bond CONTRACTS – construction – purpose of security bonds – whether a risk allocation device – whether recourse to security bonds available before dispute under contract determined

DEFAMATION – practice and procedure – pleadings – application by plaintiff for leave to amend pleadings so as to include defendant’s contextual imputations as one of the imputations of which the plaintiff complains – whether an abuse of process – discretionary considerations – application to amend refused.

CORPORATIONS — Receivers and managers — Powers — Application to court for directions regarding a proposed final distribution to beneficiaries –– section 424 of the Corporations Act 2001 (Cth) –– whether could treat noteholders who would receive a distribution of less than $25 as having no entitlement –– whether could distribute the remaining funds only to those noteholders who responded ––whether any residual funds after the distribution could be paid to the NSW Trustee and Guardian or to the Company’s liquidator

CIVIL PROCEDURE – Pleadings – Striking out – whether pleadings defective – whether claim pleaded with sufficient specificity

ADMINISTRATIVE LAW – judicial review – decision of Motor Accidents Authority review panel – where only two of review panel’s three members physically examined plaintiff – whether process of review vitiated because application for review is “to a panel of at least 3 medical assessors” – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – whether review panel erred in assessing cervical spine and shoulder impairments – whether review panel failed to provide adequate reasons

APPEAL — grounds — apprehended bias — conduct of judge before the jury – judge read evidence of one witness to later witness — whether a reasonable fair-minded observer might apprehend bias – whether conduct indicated that judge might have accepted the evidence as true APPEAL – defendant’s submission on point of law not contradicted – whether reasonable opportunity for plaintiffs to challenge submission – challenge raised but not pursued – whether party bound by counsel’s conduct at trial – whether substantial miscarriage warranting retrial DEFAMATION — defences — honest opinion — Defamation Act 2005 (NSW) s 31 – whether “public interest” element satisfied — whether judgement entered before that element determined – element to be determined by judge – whether element in dispute – later judgment gave reasons for upholding element DEFAMATION — defences — honest opinion — Defamation Act 2005 (NSW) s 31 – whether opinion provided defence to whole of defamatory matter — finding by trial judge that opinion not a complete defence not applied – whether substantial miscarriage warranting retrial DEFAMATION — damages — mitigation of damages for prior award — whether damages aggravated by knowledge of falsity of defamatory statements – whether judge erred in making no award of damages for defamatory imputations

CIVIL PROCEDURE – Summons – Application to amend second further amended summons

CRIMINAL LAW – expert evidence to be called by accused – failure to serve report – failure to cross-examine prosecution witness – fairness to the accused – limited applicability of the rule in Browne v Dunn – whether witness qualified to provide opinion evidence – evidence concerning practice of Islam and practices of Islamic State or ISIS – witness qualified to provide evidence concerning Islam but limited evidence of Islamic State – rulings made accordingly

GUARANTEE AND INDEMNITY – enforcement of guarantee – no issue of principle

CIVIL PROCEDURE – application for leave to appeal – applicant effectively seeking variation of interlocutory orders – absence of material change of circumstances CIVIL PROCEDURE – application for leave to appeal – where grounds of appeal directly challenge findings of fact by primary judge – no isolation of error of principle – no demonstration that exercise of discretion miscarried – no clear injustice where statutory review and appeal from guardianship orders imminent CIVIL PROCEDURE – pseudonym orders – when appropriate – guardianship matters – interrelationship between Court Suppression and Non-publication Orders Act 2010 (NSW) and s 65 of the Civil and Administrative Tribunal Act 2013 (NSW)

EQUITY – Trusts and trustees – appointment of trustee – where former trustee of trust deregistered – whether new trustee of the trust should be appointed under s 70 of the Trustee Act 1925 (NSW) – where vesting order under s 71 of the Trustee Act sought in respect of mortgages held by previous trustee upon trust – whether vesting order should be made CORPORATIONS – deregistration – application to reinstate company which was former trustee – Unnecessary to decide as new trustee appointed and property vested in new trustee

MEDIA AND COMMUNICATIONS – Open justice – access to court files – application for access – restricting access does not prevent accurate reporting in an open court

COSTS — Application for judicial advice –– whether executor’s costs to be borne out of defendants’ shares of proceeds of sale of main asset of the estate.

CORPORATIONS – external administration – application for direction that liquidators of company are justified in acting in accordance with remuneration approvals given by committee of inspection – where remuneration claimed amounts to a large proportion of amounts recovered due to complexity of liquidation – whether liquidators are justified in acting in accordance with remuneration approvals – where company is trustee of a trading trust and has no other activities – whether liquidators should be permitted to recover remuneration from trust assets.

HIGH RISK OFFENDERS – preliminary hearing – application for interim supervision order – application not opposed – order made – conditions

CIVIL PROCEDURE – earlier order dismissing Notice of Motion filed by defendant – plaintiff seeks specific sum costs payable forthwith – affidavit evidence of party/party costs – reasonableness of sum disputed by defendant – order for costs in the cause – no point of principle

CIVIL PROCEDURE – Summary disposal – whether leave to amend pleadings should be granted – whether reasonable cause of action disclosed CIVIL PROCEDURE – Form and content of pleading – Defects EQUITY – Assignment – Of cause of action – whether capable of assignment

ASSOCIATIONS AND CLUBS – racing clubs and associations – rules and by-laws - Stewards’ inquiry – Investigation in aid of inquiry – Direction to a third party to produce mobile phone for forensic examination – Limits on power – Procedures for working out competing rights and obligations GAMING AND WAGERING – racing, racecourses and totalisators – stewards and committees of race clubs - Stewards’ inquiry – Investigation in aid of inquiry – Direction to a third party to produce mobile phone for forensic examination – Limits on power - Procedures for working out competing rights and obligations

CORPORATIONS – application to vary deed of company arrangement – where application to vary is made to compromise application to set aside deed of company arrangement.

EQUITY – equitable estoppel – proprietary estoppel – cross-claim – oral promise – father deceased – mother incapacitated – successsorship – whether personal equity enforceable against mother – credibility of witnesses – whether promise made – reliance – whether departure from promise would be unconscionable – significance of terms of wills on non-testamentary disposition – constructive trust – alternative relief – costs – orders

ADMINISTRATIVE LAW - Judicial Review - first defendant sought damages for injuries sustained in a motor vehicle accident – application by plaintiff that the claim be exempt from informal assessment process on the grounds that first defendant made false and misleading statements – question of error of law or jurisdictional error on the part of the Assessor - whether Assessor asked the correct question - errors established - matter remitted for determination according to law

DEEDS – what amounts to a deed – whether document intended to be a deed – competing indications of intention – sublease negotiated and drafted by solicitors – where a clause stipulated that the sublease is a deed – where execution pages do not use language associated with deeds – sublease held to be intended to operate as a deed DEEDS – execution – execution of deeds by corporations – where a clause stipulated that the sublease is a deed – whether sublease executed as a deed in accordance with Corporations Act 2001 (Cth) s 127(3) – whether sublease expressed to be executed as a deed – sublease held to be executed as a deed in accordance with s 127(3) DEEDS – delivery – intention to deliver – parties entered into non-binding heads of agreement prior to executing sublease – clause in heads of agreement stated that proposed sublease is subject to “satisfactory legal documentation being entered into by the parties” – where the parties decided to use a deed – where sublessee executed deed and provided it to sublessor – where sublessee requested sublessor to execute deed and have it registered – conduct of sublessee evinced an intention to be immediately bound – sublessee held to have delivered deed CONTRACTS – formation – agreement – acceptance of offers – where offer by sublessor prescribed a particular mode of acceptance – where sublessor required the sublessee to provide certain certificates of currency to accept offer – where sublessee did not provide all certificates of currency – no agreement reached between the parties CONTRACTS – formation – agreement – revocation or withdrawal of offers – where sublessee made an offer by sending executed sublease to sublessor – where sublessee subsequently sent letter to sublessor asking sublessor not to execute sublease “at this stage” pending further communication – letter not effective to withdraw or revoke offer – offer accepted by sublessor executing sublease – agreement reached between the parties PRINCIPAL AND AGENT – contract by agent – ratification – where the holder of a power of attorney acting for sublessor executed sublease – attorney not shown to have executed in accordance with requirements of power – where acts of attorney subsequently ratified by principal – where the sublessee had in the meantime withdrawn from the sublease – ratification held to relate back to time of execution of sublease

PERSONAL PROPERTY – co-ownership – statutory trust for sale – application under Conveyancing Act 1919 (NSW), s 66G(1) for appointment of trustees for sale by co-owner of shares in a home unit company – whether shares are “property” for the purposes of s 66G – whether shares held in “co-ownership” for the purposes of s 66G – whether ownership is “in possession” – appropriate for orders to be made appointing trustees for sale COSTS – proceedings for appointment of trustees for sale of property under Conveyancing Act 1919 (NSW), s 66G – departure from the usual rule – defendant resisted appointment of trustees for sale based on unsubstantiated allegations of impropriety or fraud – whether defendant’s conduct unreasonable – defendant’s conduct resulted in plaintiff incurring unnecessary legal costs – half of the plaintiff’s costs ordered to be paid out of the defendant’s share of the proceeds of sale WORDS AND PHRASES – “property” – “in possession”

CIVIL PROCEDURE — Discontinuance of proceedings — Leave of court — Leave Granted — Court administration — Case management — Remaining matters adjourned for case management

BUILDING AND CONSTRUCTION – CONTRACT – where each party sues for damages for breach of contract – where each asserts a different contract – HELD: no contract established by either

CIVIL PROCEDURE – interim preservation – detention, custody or preservation of property – freezing order – whether risk of dissipation exists – whether prospective judgment will be unsatisfied by reason of assets of debtor being diminished in value

CRIMINAL PROCEDURE – trial of three accused persons for conspiracy to import border controlled drugs- application for separate trial – whether evidence against one accused significantly different to, and weaker than that against co-accused – question of prejudice to accused in joint trial – evidence to prove conspiracy – co-conspirators’ rule - question of cost and convenience of separate trials – application refused

CIVIL PROCEDURE – Interim Preservation – Freezing orders – application to extend freezing order

CONSUMER LAW – Misleading or deceptive conduct – Parties were engaged in a joint venture – Parties subsequently entered into deed of settlement – Whether deed of settlement was entered into by reason of conduct which was misleading or deceptive or likely to mislead or deceive – Misapprehension as to availability of GST input tax credits at the time deed of settlement was entered into – Representation by the defendant relating to GST input credits contributed to misapprehension – Defendant was aware of plaintiff’s misapprehension – Failure by to defendant to inform the plaintiff that refunds of GST input tax credits had been paid to a company of which the defendant was a director and the sole shareholder – Quantum of loss – Whether project would have been completed under the Joint Venture agreed absent the misapprehension

Civil procedure – approval of settlement of proceedings – proceedings brought on behalf of persons under legal incapacity – whether settlement beneficial to interests – Civil Procedure Act 2005 (NSW), s 76

EVIDENCE – admissibility of evidence – DVEC recording – hearsay – maker not available – interaction between s 289F(5) Criminal Procedure Act 1986 (NSW) and s 65 Evidence Act 1995 (NSW)

CIVIL – appeal against a decision of the Civil and Administrative Tribunal New South Wales – health practitioner – question of jurisdiction to appeal against a recommendation of an AC of the Dental Council of NSW – held that no error made by the Tribunal