Cases and authorities

CIVIL PROCEDURE – summary dismissal – strike out – unincorporated association – mutual self-insurance scheme – indemnity under contracts of insurance – whether cause of action pleaded – proper person to sue – principal under the self-insurance scheme – parties to the self-insurance scheme – membership of the self-insurance scheme – join association by deed with moving party – contract with many parties – whether moving party has management and control of the self-insurance scheme – defects in pleadings – whether cure by legitimate amendment – action not untenable that cannot succeed – debatable questions of law – mixed questions of fact and law – costs – orders

SUCCESSION – FAMILY PROVISION - The Plaintiff, an adult child of the deceased, makes a claim for a family provision order - No dispute as to the Plaintiff’s eligibility as a child of the deceased - Written statement going to testamentary intention, which provided reasons for the lack of any provision being made for the Plaintiff made by the deceased - Contents of parts of the statement disputed by Plaintiff - Nature of relationship of the Plaintiff and the deceased - Modest actual estate (and property sought to be designated as notional estate) in value – Competing claim of the major beneficiaries, being the only two grandchildren of the deceased - Nature of the relationship of each of the major beneficiaries and the deceased – Whether a family provision order should be made, and if so, the nature and quantum of the provision to be made and how the burden of the provision, if any, made should be borne. NOTIONAL ESTATE – Whether a relevant property transaction – Whether part of the proceeds of sale of the deceased’s home given to the Defendant within 3 years before the date of the death of the deceased was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased for the maintenance, education or advancement in life of the Plaintiff.

CONTRACTS – formation – where commercial lease provided a landlord’s incentive for fit-out – whether tenant acted as agent of landlord in entering a contract with contractor to fit-out leased premises – where factoring arrangement provided financing to contractor – where creditor advanced funds to contractor in exchange for unpaid invoices being assigned to its special purpose vehicle – whether valid contract between tenant as agent for landlord and the contractor – whether contract ratified – whether landlord liable to pay creditor as disclosed agent for tenant CIVIL PROCEDURE – application by defendant for judgment for want of evidence – Uniform Civil Procedure Rules 2005 (NSW), r 29.10 – whether judgment for the creditor “could not be supported” – Hunt v Watkins (2000) 49 NSWLR 508; [2000] NSWCA 229 – no findings of credit

EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Entitlement to be repaid contribution — Entitlement to equitable charge over property to secure repayment of contribution EQUITY — Trusts and trustees — Constructive trusts — Family and domestic relationships — Failure of joint endeavour in acquisition or improvement of property, in circumstances of unconscionability and of no attributable blame — Whether the appropriate remedy involves return of contributions made or proportionate share of beneficial interest in property EQUITY — Trusts and trustees — Resulting trusts — Presumption of advancement — Whether the presumption applies when a mother gives moneys to her daughter and son-in-law jointly

CIVIL PROCEDURE – Re-opening – tender of further experts reports in response to leave granted to plaintiff to re-open – whether basis for allowing re-opening allows other parties to revisit decisions not to file evidence in response to plaintiff’s expert – tender disallowed.

CIVIL PROCEDURE – security for costs – whether primary judge’s discretion miscarried – relevance of delay in bringing application for security for costs where delay not shown to have caused prejudice – whether incurring of legal costs generates a presumption of prejudice – effect of Green v CGU Insurance Ltd [2008] NSWCA 148

PROCEDURE – separate question – terms of question unclear on their face – terms of question uncertain and disputed by parties – hearing of separate question conducted without evidence or agreed facts – whether question appropriate to answer – whether different question should be determined on appeal

LAND LAW — Easements — Whether easements created by conveyances in 1839 bind present-day registered proprietors CIVIL PROCEDURE — Court administration — Court powers — Whether successor in title can reopen ex parte proceedings in which orders were made that affect property succeeded to

MORTGAGES AND SECURITIES – mortgages – mortgagee’s duties, rights and remedies – entitlement to possession – whether default established – effect of requirement for notice under National Credit Code – whether mortgagee can rely on a default not referred to in default notice. CONTRACTS – terms – construction – whether “condition” was a condition of retaining possession or a contractual obligation. EVIDENCE – proof – evidentiary certificates – minimum requirements.

CIVIL PROCEDURE – Court of Appeal – leave to appeal – whether to revoke leave to appeal – application to set aside– application made outside the time prescribed by s 459G – Corporations Act 2001 (Cth)

CORPORATIONS – application for correction of company’s share register – where shares in company offered in lieu of payment for work – where resolution passed to issue shares – where steps taken to record the issue of new shares – whether there is an agreement to issue shares – whether an order should be made to correct the company’s share register nunc pro tunc under s 175 of the Corporations Act 2001 (Cth). COSTS – application for costs on an indemnity basis – where defendant’s conduct in defending proceedings is not unreasonable – whether indemnity costs should be ordered.

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed COSTS — Indemnity basis— Bases of quantification — No circumstances to justify special order for costs

COSTS — application for indemnity costs in respect of costs occasioned by non-compliance with court orders

CIVIL PROCEDURE – representative proceedings – representative parties – costs order against representative party for unsuccessful anti-suit injunction application COSTS – party/party – costs orders in interlocutory proceedings – plaintiff representative party applied for anti-suit injunction – application not pressed and ultimately dismissed by consent

WILLS AND ESTATES – Trusts and Trustees – Accounts – Disputed items - Rulings

COSTS – dismissal of contempt charges – where the party bringing the charges sought leave to have them dismissed – commencement of contempt charges entirely justified – charge abandoned after the publication of a related Court of Appeal judgment and further orders made restraining the subject of the charge - where the defendant acted reasonably in withdrawing contempt charge – where plaintiff had disobeyed court order on a large number of occasions - no costs order made to the intent that each party bear its own cost

JUDGMENTS AND ORDERS – foreign judgments registered as a judgment of the Court under the Foreign Judgments Act – application by the defendant/judgment debtor to have registration order set aside on multiple grounds – whether the defendant had agreed to submit to the jurisdiction of the courts of Singapore – whether the defendant received notice of the proceedings in Singapore in sufficient time to enable him to defend those proceedings – whether the foreign judgments were obtained by fraud – whether the proceedings in Singapore were an abuse of process – consideration of public policy ground for setting aside registration of a foreign judgment

PRACTICE AND PROCEDURE – Summary dismissal – plaintiffs file Amended Statement of Claim in February 2017 – defendants apply under Uniform Civil Procedure Rules 2005, r 14.28(1) to dismiss proceedings against them, on the basis that there is no real question to be tried – defendants propose to field a defence under Limitation Act 1969 – plaintiffs plead that the otherwise applicable limitation period was extended under Limitation Act, s 55 on the basis that the defendants concealed their cause of action from them until after the otherwise applicable limitation period expired – in reply, the defendants contend that uncontestable facts establish that the plaintiffs were well aware of the existence of their cause of action long before the applicable limitation period – whether or not the plaintiffs’ pleading raises a “real” issue for trial.

CRIMINAL LAW – appeal against sentence – dealing with money reasonably suspected of being proceeds of crime – Criminal Code (Cth) s 400.9(1) – whether sentencing judge failed to have regard to utilitarian benefit of guilty plea – whether error in determination of objective criminality – whether sentence manifestly excessive – appeal dismissed

CIVIL PROCEDURE – hearings – application for adjournment – where adjournment of hearing is sought to identify additional grounds to set aside creditor’s statutory demand – where plaintiffs are suffering health difficulties – where plaintiffs are not required to provide additional evidence or for cross-examination – whether hearing should be adjourned. CORPORATIONS – application to set aside a creditor’s statutory demand – where plaintiff concedes there are no arguments in support of the application – whether creditor’s statutory demand should be set aside under s 459G of the Corporations Act 2001 (Cth).

CIVIL PROCEDURE – review of decision of registrar – application to set aside decision of a registrar – where registrar ordered each party pay their own costs – where plaintiff seeks an order that the defendants pay the costs of the application before the registrar on an ordinary or indemnity basis – where the creditors’ statutory demands were not issued inappropriately – where a debt appeared to be owing to the defendants – where the creditors’ statutory demands were promptly withdrawn – whether there was error in the registrar’s decision.

Interim Supervision Order – eligible offender – supervision expiry before proceeding end – Commonwealth charges

MENTAL HEALTH — Intellectual disability – Mental Health (Forensic Provisions) Act 1900 (NSW) — Forensic patient — Extension order

BUILDING AND CONSTRUCTION – security of payment – where successive adjudicators expressed inconsistent findings as to proper construction of the building contract – subcontractor did not challenge second determination and instead resubmitted payment claim – contractor contended third determination void because construction issue determined by unchallenged second determination – subcontractor belatedly sought to challenge second determination by cross-summons

COSTS – whether plaintiffs entitled to all or part of their costs – effect of offer of compromise – whether plaintiffs should be entitled to partial costs order – whether parties should be indemnified by estate for any of their costs JUDGMENTS – calculation of judgment amounts – whether plaintiffs entitled to pre-judgment interest

SUPPRESSION AND NON-PUBLICATION ORDER – suppression orders necessary to protect the sensitive information in the interests of national security – orders necessary to protect the safety of members of the public – calculus of risk approach – orders made CLOSED COURT ORDERS – orders in the interests of Australia’s national security – orders made

HIGH RISK OFFENDER – preliminary hearing – application for Interim Supervision Order

BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – challenge to adjudication determination – entitlement to progress payment – whether payment claim supported by valid reference date – whether reference dates may arise following termination of the relevant contract – operation of ss 8(2)(a) and 8(2)(b) – whether existence of a reference date is a jurisdictional fact – whether validity of a termination is a jurisdictional fact – review of adjudication determination.

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

CRIMINAL LAW – evidence – nature of objections – grappling with smoke – controlled operation – whether “cross border” operation – where investigation entirely within New South Wales – police inadvertently obtain wrong authority – discretion to admit evidence in spite of unlawfulness – whether police misled issuing authority – whether authority authorised terrorist act – whether authority authorised interception of telephone calls – construction of statute – appropriate time limit – whether warrant exceed statutory time limit CRIMINAL LAW – evidence – electronically recorded interview – where suspect seeks to exercise right to silence – where police continue questioning – where accused seeks information as to why he is being charged – rule of practice – where police purport to continue “process” after accused exercised right – whether any such process exists – whether interview should be terminated – evidence obtained improperly – discretion to admit – evidence excluded CRIMINAL LAW – evidence – material extracted from accused’s smart ‘phone – evidence relevant to accused’s belief in radical Sunni Islam – whether prosecution need to establish that accused viewed material – binding authority to the contrary – prejudicial impact of evidence – executions and beheadings – selection of material admissible – most distressing evidence excluded

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

PUBLIC ASSEMBLY – proposed public protest against the Adani coal mine – application by Commissioner of Police under s 25(1) Summary Offences Act 1988 (NSW) – where the protest followed a major thoroughfare and would disrupt traffic and emergency services – where the proposed procession coincided with the heavily-attended Mardi Gras Fair Day – where the defendant refused to accept alternative routes offered by the Commissioner – prohibition order made COSTS – discretion – general principles – where the plaintiff was successful in its application – where the defendant argued for a costs order based on concepts of public interest – effect of public interest considerations generally

LAND LAW – possession of land – licence agreement between father and son – licence terminated – proceedings seeking possession – defence filed discloses no defence to the claim – defence struck out

LAND LAW – possession of land – implied licence agreement for defendant to occupy land – licence withdrawn – defence struck out and no further defence filed – plaintiff entitled to possession

EQUITY — Trusts and trustees — Court’s supervision of — Appointment and removal of trustees –– Circumstances where the original trustee wishes to retire and there will be adverse stamp duty consequences to the Trust if the alternate trustee named in the Will is appointed –– Order that defendant be appointed as trustee of the residuary estate under the Will in place of the original trustees

CONTRACTS – mistake – agreement as to amount of costs to be paid under orders for costs “as agreed or assessed” – where party in whose favour costs were awarded was under a mistake as to the total amount of costs incurred – agreed amount of costs paid “in full and final settlement” – whether common mistake or unilateral mistake – no unconscionable conduct and no sharp practice – no other basis for equitable intervention – agreement not liable to be set aside – relief not refused on discretionary grounds

CRIMINAL LAW – sentencing – manslaughter – where offender partner of principal offender – killing of ex-husband – principal seeking to extract confession of mistreatment of children – planned but chaotic joint criminal enterprise – brutal assault – victim dies of asphyxiation – body dumped by side of road – aggravating and mitigating features – parity of sentencing – offer of plea rejected – motivation unclear – something in the nature of love

ADMINISTRATIVE LAW – judicial review – decision of a delegate of the Registrar of the Workers Compensation Commission as to whether appeal to Appeal Panel should be allowed to proceed – whether error of law – whether jurisdictional error – whether delegate failed to consider submission that “Approved Medical Specialist” took into account irrelevant considerations and failed to take into account relevant considerations – whether delegate erred in deciding that which matters were relevant to the categories in the Psychiatric Impairment Rating Scale (PIRS) was a matter of discretion rather than an application of the Workers Compensation Guidelines

SUCCESSION – FAMILY PROVISION – Succession Act 2006 (NSW) ss 59(1), 59(2) and 60 – necessity for applicant to make full and frank disclosure of her financial and material circumstances – where applicant deliberately fails to make that disclosure – application to reopen to adduce evidence deliberately not led earlier – application to reopen refused – HELD: proceedings dismissed.

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

CIVIL PROCEDURE — Hearings — Adjournment application — Where party did not appear to press application — Adjournment application dismissed COSTS — Party/Party — General rule that costs follow the event — Whether costs should be ordered on an Indemnity basis COSTS — Party/Party — Orders when proceedings involve multiple parties — Interveners — Where applicant’s costs increased as the result of intervention

FAMILY LAW AND CHILD WELFARE – child welfare under state legislation – legal proceedings – appeal from Presidential Children’s Court – application by Barnardos to be joined to proceedings – application under s 98(3) of the Children and Young Persons (Care and Protection) Act 1998 – whether a corporation can be a ‘person’ under s 98(3) – whether Barnardos had a ‘genuine concern for the safety, welfare and well-being’ of the children – whether Court should exercise its discretion under s 98(3)

ADMINISTRATIVE LAW – Judicial review – Court Suppression and Non-publication Orders Act 1970 (NSW) – Violation of non-publication orders - Whether the Magistrate erred by not dismissing the charges against the plaintiff – Failure to provide evidence – Abuse of process – Interim order – Whether the interim non-publication order could not have been violated because it was expired

CIVIL PROCEDURE – Service outside Australia – whether service of originating process should be set aside – whether local proceedings should be stayed on ground that New South Wales is inappropriate forum CONTRACT – breach of contract – whether partnership agreement existed – whether dispute falls within schedule 6 of UCPR – whether leave to serve outside Australia should be granted CORPORATIONS – Directors – claim based on breach of duties said to be owed by persons who were shadow directors – whether leave to serve outside Australia should be granted EQUITY – Contribution – whether court should refuse to assume jurisdiction over claim for contribution

CRIMINAL PROCEDURE – suppression and non-publication orders – appeal against decision not to make non-publication order – leave granted on grounds that court below materially misconstrued s 8(1)(c) of Court Suppression and Non-Publication Orders Act 2010 (NSW) by adopting probable harm test – calculus of risk approach adopted CRIMINAL PROCEDURE – suppression and non-publication orders – rehearing under s 14(5) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) – evidence of risk of physical harm to the applicant – evidence of significant psychological harm to applicant and applicant’s family – order necessary to protect the safety of the applicant – circumstances of misreporting by media and threats to applicant – orders made

CRIMINAL LAW – sentence – sexual offences against children – vulnerability as an aggravating factor – whether the judge treated as an aggravating factor an element of the offences charged – whether factors of aggravation taken into account so that offender sentenced for offences not charged – whether abuse of trust and abuse of authority distinguished – The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 discussed CRIMINAL LAW – sentence – pleas of guilty – whether sentencing judge required to indicate the discount applicable to the aggregate sentence – whether judge erred in applying a uniform discount to indicative sentences – whether discount failed to allow for early offers to plead, but pleas entered later CRIMINAL LAW – sentence – whether individual indicative sentences manifestly excessive – whether aggregate sentence manifestly excessive

PRACTICE AND PROCEDURE – Application for referral to Pro Bono Panel for legal assistance – Application granted for referral on limited basis

FAMILY LAW — Children — Parens patriae — Whether orders setting aside interim care orders should be made — Orders refused

PARTNERSHIP – dissolution and winding up – by the court – just and equitable – scope of a partnership business uncertain – form of order – provisional appointment of receiver – directions required empowering receivers to prepare for sale of partnership assets and consequential accounting. PARTNERSHIP – costs of dissolution and winding up – proper approach to costs orders – distinction between costs of proceedings in the Court and costs of conducting accounts or otherwise winding up the affairs of the partnership. CORPORATIONS — Winding up – by the court – just and equitable – parties agreement that companies be dissolved – no prejudice caused by failure to comply with notice requirements – dispensation granted under Corporations Act ss 465A(1), 467(3). CORPORATIONS — Winding up — Practice and procedure — Costs and expenses – discretion of the Court under s 461 – alleged oppressive conduct of company affairs under s 461(f) – proper party against whom costs order ought be made not joined to proceedings – determination of costs orders. Quantification of costs order – gross sum costs order sought pursuant to UCPR s 98(4) – requirement for some good reason for Court to depart from usual practice – appropriate form of costs order.