Cases and authorities

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — Whether it was reasonable for the plaintiffs to commence the proceedings when they did COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — Significance of a failure to give the defendant an opportunity to respond to an appropriately worded letter of demand prior to commencing the proceedings

REAL PROPERTY – equitable mortgage – discharge of mortgages – three properties owned by the defendants – defendants enter into loan agreement with plaintiff bank for a line of credit – loan agreement secured by three mortgages over the three properties – defendants request plaintiff to discharge one mortgage, so one of the properties can be sold – plaintiff delivers a Discharge of Mortgage for that property to the defendants – plaintiff also mistakenly delivers to the defendants the two other Discharges of Mortgages – defendants register all three Discharges of Mortgages – one of the properties is sold by the defendants without the plaintiff’s knowledge or consent – whether the plaintiff is entitled to equitable relief to have the mortgage reinstated over the remaining property owned by the defendants.

CRIME – manslaughter – excessive self-defence – deceased stabbed after struggle – confrontation initiated by deceased – weapon introduced by deceased - body of deceased concealed for four years - accessory after manslaughter – cleaning of crime scene – disposal of deceased’s property – concealing a serious offence

FAMILY PROVISION – testator died in December 2016 – plaintiff is one of three children of the testator – testator’s will gave her whole estate in equal shares to the defendants, the plaintiff’s two siblings, and made them her executors – plaintiff and the testator were estranged for a period of eight years before her death – plaintiff contends that he tried to reconcile with his mother, but his efforts were either not reciprocated or were thwarted by his siblings – but siblings say an AVO against the plaintiff and his other conduct justified keeping the deceased away from the plaintiff – whether adequate provision was made in the testator’s will for the plaintiff’s maintenance, education and advancement in life – if adequate provision was not made, what provision should be made for the plaintiff out of his mother’s estate – whether, given the period of estrangement between the plaintiff and the testator, any discount should be made to any provision made in the plaintiff’s favour.

CONSTITUTIONAL LAW – separation of powers –acquisition of property – whether common fund order contrary to separation of powers – whether common fund order acquisition of property other than on just terms – consideration of additional considerations in challenge to order made by Supreme Court pursuant to State legislation REPRESENTATIVE PROCEEDINGS – common fund order – whether power to make interlocutory order binding group members and presumptively entitling funder to 25% of any judgment or compromise – power available

ENVIRONMENTAL LAW – stated case – Criminal Appeal Act 1912 (NSW), s 5BA – asserted error of law in approach to purpose to the extent that it informs use of land – asserted reversal of onus –– no error of law established – one question inappropriate to answer as not pertaining to pure question of law – questions answered accordingly

CRIMINAL LAW — Appeal against sentence — Commonwealth offence — Importation of large commercial quantity — guilty plea — utilitarian value of guilty plea not explicitly taken into account at first instance — principle in Xiao v R (2018) 96 NSWLR 1 — Crown conceded error — Court exercised sentencing discretion afresh — utilitarian value of guilty plea taken into account upon resentence — lesser sentence warranted in law

CRIMINAL LAW – sentence appeal – two counts of supplying a prohibited drug – sentence of imprisonment of 4 years with a non-parole period of 2 years – whether sentence manifestly excessive – whether applicant denied procedural fairness – appeal dismissed.

CRIME – CRIMINAL APPEAL – sentence appeal – four co-offenders, three of whom charged with more serious offences than applicant – applicant’s sentence significantly less than co-offenders – applicant claims justifiable sense of grievance and that difference between offenders not adequately reflected in the differentiation in sentence – different sentences rationally reflect difference between offence and offenders – differentiation not plainly unjust or unreasonable – appeal refused.

Contract – Breach of building contract – No appearance by the defendant – failure by defendant to provide certificates necessary for certification of building works – quantum of loss

APPEAL – appeal from Local Court – ss 39 and 40 of the Local Court Act 2007 (NSW) – grounds of appeal – costs assessment under s 352(1) of the Legal Profession Act 2004 (NSW) – application of the Legal Profession Act 2004 (NSW) – construction of s 355 of Legal Profession Act 2004 (NSW) – questions of law – commence or maintain – whether cost assessment render no jurisdiction – defence of payment – appeal as to the determination of costs – application of r 42.14 of the Uniform Civil Procedure Rules 2005 (NSW) – discretion to award costs pursuant to s 98 of the Civil Procedure Act 2005 (NSW) – principles of finality – indemnity costs – question of leave – mixed question of fact and law – disclosure – whether application brought out of time – general principles as to an extension of time application in Currabubula – orders CROSS-APPEAL – appeal from Local Court – cross-summons – appeal as of right – s 39 of the Local Court Act 2007 (NSW) – form of cross-summons – s 63 of the Civil Procedure Act 2005 (NSW) – irregularities which do not invalidate the proceedings – operation of ss 127 and 129 of the Corporations Act 2001(Cth) – legal capacity to execute contract on behalf of company – without common seal – error of law – cross-appeal upheld

COSTS – defamation – actions for defamation – indemnity costs – where the defendant seeks indemnity costs – where the defendant early in the litigation made an offer of settlement in writing – where at the time of the offer of settlement, there was no Defence filed – where the plaintiff unreasonably failed to accept a settlement offer made by the defendant – where the counterproposal amounts to a relevant matter to be considered in exercising the discretion to order indemnity costs PROCEDURE – discovery of documents not admitted into evidence – use of documents – where defendant seeks leave to use documents obtained in present proceedings – use of documents obtained for collateral purpose of making complaints to regulatory authorities about the plaintiff – whether leave should be granted

TORTS – miscellaneous torts – deceit – loan agreement – whether loan advance representations were false – whether reliance placed on false representations – whether damage suffered because of false representations – tort of deceit made out

CRIMINAL LAW – application for stay of proceedings due to lack of legal representation – Dietrich principles – whether the applicant is indigent – whether the applicant is without fault – where a grant of legal aid has expired – where 50% of legal title to property is in the name of the applicant – whether the trial would be unfair without legal representation – trial is stayed to provide applicant with further opportunity to obtain legal aid grant

SUCCESSION – executors and administrators – administration – next-of-kin-enquiry – Re Benjamin application – deceased and descendants domiciled overseas – trustee obtained grant of letters of administration of deceased’s intestate estate – trustee conducted searches concerning the deceased’s heirs – trustee seeks directions permitting distribution of intestate estate –monetary sum representing proceeds of share of land – choice of law regarding administration of estate – application of common law rule – succession to immovable property determined by lex situs – property located in New South Wales – choice of law regarding validity of will – whether testate or intestate – application of common law rule – validity of will determined by lex situs – consideration of change of lex situs over time – lex situs applicable as at deceased’s death – conversion of property by sale of share of land – whether proceeds of sale of land treated as an immovable – proceeds substituted for an immovable by the lex situs subject to the same rights as an immovable – succession to proceeds determined by law of New South Wales – distribution of estate according to intestacy provisions of Wills, Probate and Administration Act 1898 (NSW) – distribution of estate according to the provision of certain heirs’ wills found compliant with New South Wales law.

INJUNCTIONS – Injunction to restrain mortgagee’s power of sale – application brought the afternoon before scheduled auction – where notice of default had been issued under s 57(2)(b) Real Property Act 1900 (NSW) and s 92 Conveyancing Act 1919 (NSW) – whether the notice had been properly served – whether the notice was misleading or invalid – where the notice did not express an immediate intention to exercise mortgagee’s power of sale – notice neither misleading nor invalid – whether the lender waived its rights by earlier representations – doctrine of election – no evidence of inconsistent rights – no waiver – balance of convenience – injunction refused MORTGAGES AND SECURITIES – mortgages - duties, rights and remedies of mortgagee - power of sale – scope of application of National Credit Code – whether notice should have been given under s 88 National Credit Code – debtor not a natural person nor strata corporation – mortgage a genuine commercial arrangement – no notice required under s 88

AGENCY – actual authority – ostensible authority – facility agreement – no drawdown notice given – whether borrower’s husband had actual authority to request drawdown – whether husband’s associate had ostensible authority to request advance – whether written authorisation required CONTRACT – condition precedent – appellant entered into facility agreement with respondents – agreement required borrower to provide drawdown notice to lenders – no drawdown notice given – whether obligation to provide drawdown notice capable of being waived by lenders

TAXES AND DUTIES — land tax — exemptions — Duties Act 1997 (NSW) s 163D — whether third party was a primary producer within meaning of s 163D at time respondent acquired all issued shares in third party — construction of s 163D(2) — approach to be taken in determining whether a party’s landholdings wholly or predominantly comprise land used for primary production — whether a quantitative approach based on land area or land value should be taken or whether a qualitative or evaluative approach should be preferred

COSTS — application by plaintiff for judgment in terms of an “in-principle” agreement ––s 73 of the Civil Procedure Act 2005 (NSW) application –– where matter has not been heard on the merits –– whether conduct of defendants so unreasonable as to warrant costs orders against them –– whether conduct of the defendants’ solicitor a serious dereliction of duty, serious misconduct or gross negligence to warrant a personal costs order

CORPORATIONS — Winding up — Liquidators — Replacement — Resolution to replace liquidator at second meeting of creditors — Resolution not passed where majority by value in favour but majority by number against — Administrator purported to exercise casting vote — Insolvency Practice Rules (Corporations) 2016 r 75-115(5)(a) applied — Application dismissed.

COSTS — application by plaintiff for dismissal or discontinuance of proceedings –– preliminary discovery application –– where matter has not been heard on the merits –– whether defendant’s conduct warrants a costs order against defendant –– defendant’s deliberate deletion of documents –– costs awarded against the defendant

ADMINSTRATIVE LAW – Judicial Review – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 327 – demonstrable error – whether there was a failure by the Approved Medical Specialist to consider evidence – whether there was a failure by the Registrar of the Workers Compensation Commission to consider ground of appeal

LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of drug supply offences – sentence of imprisonment – whether fit and proper person to be on roll – relief – order removing name from roll of Australian lawyers – whether declaration of professional misconduct should be made – whether declaration that person no longer of good fame and character should be made

CRIMINAL LAW – sentence appeal – one charge of armed robbery and one charge of attempt aggravated taking of motor vehicle – applicant already serving sentence as a result of revocation of parole – whether sentencing judge took totality into account – considerable delay between arrest of applicant and sentence proceedings – delay not due to any fault on the part of applicant – whether sentencing judge erred in choosing as the commencement date for sentence the date on which sentence was imposed – error in sentencing judge failing to make allowance for delay in sentencing – need to re-sentence – commencement date of sentence backdated.

CRIMINAL LAW – conviction appeal – extension of time – whether verdict unreasonable or not available on the evidence – inconsistent verdicts – admissibility of evidence of surveillance recordings – obligation to present material evidence – failure to raise issues at trial – discharge of jury on prejudicial event – fairness of Crown submissions – fairness or appropriateness of summing-up and jury directions – evidence of bad character – fresh evidence – perversion of the course of justice – conduct of Crown in submissions – extension of time granted – appeal dismissed CRIMINAL LAW – sentencing appeal – role of appellant – totality – parity – extension of time granted – leave to appeal granted – appeal dismissed

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Offence under s 32 Work Health and Safety Act 2011 (NSW) – Objective seriousness of the offence – Whether offence fell into the mid-range of objective seriousness – Whether proper account taken of mitigating matters – Whether sentence manifestly excessive – Increase in maximum penalty for a statutory offence – Developing sentencing practices – Errors not established – Leave to appeal granted – Appeal dismissed

LAND LAW — Caveats — Formal requirements — Obligations of licensed conveyancer who certifies electronically lodged caveat — Failure to make any proper inquiries to ascertain whether caveator had an interest in the subject land — Whether Court should of its own motion refer licensed conveyancer to Secretary, NSW Fair Trading for consideration of disciplinary action

CIVIL PROCEDURE – representative proceedings – group members – costs orders – whether power to make costs order against group members COSTS – party/party – orders against non-parties – court’s discretion – costs order against litigation funder

LOCAL COURT – appeals – whether findings of offer and acceptance and terms of contract available on the evidence – whether on proper construction of contract commencement date different from the date in the written documentation – whether new point not raised at first instance should be allowed to be raised on appeal – whether leave to appeal should be granted

LAND LAW – strata title – validity of by-laws – by-law granted exclusive rights to certain lot owners to use parts of common property for car parking – by-law purportedly repealed in 1999 by special resolution of Owners Corporation – no written consent obtained from lot owners concerned prior to repealing the by-law as required by Strata Schemes Management Act 1996 (NSW) (“SSM Act”), s 52(1)(a) – Change of By-Laws recorded on title within two years – proceedings commenced in 2018 to challenge validity of repeal – effect of SSM Act, s 52(3) – conclusive presumption after two years that all conditions and preliminary steps precedent to the making of a repealing by-law have been complied with and performed – requisite consent of owners is a condition or preliminary step precedent to the making of a repealing by-law – proceedings dismissed

CONTRACTS – remedies – damages – difficulty of assessment – how indirect costs should be calculated – whether indirect costs can be calculated by reference to bus numbers – whether indirect costs includes other categories of costs PROCEDURE – miscellaneous procedural matters – submissions – where court made enquiry following further oral submissions – where written submissions proffered beyond scope of those required to answer the enquiry without leave

EMPLOYMENT LAW — rights and liabilities as between employer and third persons — liabilities of employer — whether employer can be vicariously liable in contract for fraudulent conduct of employee — where issue of vicarious liability not raised in pleadings ESTOPPEL — estoppel by convention — mutual assumption — course of dealing — whether course of business dealings between appellant and respondent clothed employee with ostensible authority — whether appellant estopped from denying employee had authority — whether respondent relied on relevant representation of authority to its detriment — whether respondent’s reliance on relevant representation of authority reasonable

INSURANCE — Claims — Property Damage – Limitation period – whether claim statute barred – interpretation of insurance policy – time at which insured’s cause of action for damages for breach of contract under an indemnity policy of property insurance arose – whether cause of action for damages arose at the time of the property damage – existence of an implied term requiring performance within a reasonable time

TORTS – trespass to person – police powers to arrest – for breach of the peace – whether reasonable grounds for belief – whether force used limited to that reasonably necessary to prevent breach of the peace

APPEAL – appeal against Land and Environment Court judge’s decision on questions of law upholding Commissioner’s decision – appeal against consent authority’s refusal of development application – Commissioner made interim findings, allowed amendment of development application and granted consent to amended development application – whether Commissioner acted outside power – whether Commissioner failed to exercise jurisdiction by not finally disposing of appeal in first judgment – merits review jurisdiction – whether exercise of administrative or judicial power – whether ‘amber light approach’ outside power

SENTENCING – appeal against sentence – whether primary judge failed to have regard to maximum penalty and legislative increase in maximum penalty – whether primary judge erred in assessment of objective seriousness – whether penalty imposed was manifestly inadequate – whether, in any event, Court should exercise residual discretion not to intervene

SENTENCING – appeal against sentence – whether primary judge failed to have regard to maximum penalty and legislative increase in maximum penalty – whether primary judge erred in assessment of objective seriousness – whether penalty imposed was manifestly inadequate – whether, in any event, Court should exercise residual discretion not to intervene

SENTENCING – appeal by Attorney General against inadequacy of sentence – failure by corporation to comply with duty under Work Health and Safety Act to ensure the safety of workers under its direction – category 2 offence – whether fine imposed manifestly inadequate – where worker suffered fatal injury – whether sentencing judge erred in his assessment of the objective seriousness of the offence – whether sentencing judge failed to apply maximum penalty or pay due regard to recent increase – whether sentencing judge failed to place due weight on general deterrence

CRIMINAL LAW – identity of witnesses – applications to protect identities – undercover police officer – informant witness – pseudonyms and other orders – open justice – confidential affidavit – no opposition to orders sought

EQUITY – Trusts and trustees – Court’s supervision of – Appointment of receivers and managers of trust property where management of corporate trustee deadlocked pending determination of competing entitlements to disputed share in trustee corporation.

CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious violence offence – application for extended supervision order – whether the defendant is a supervised offender – whether the defendant poses an unacceptable risk of committing another serious offence – consideration of factors in s 9 – extended supervision order made for 2 years – conditions imposed – orders

EQUITY – priorities – competing equitable interests – postponing conduct – real property subject to first registered mortgage – invoice financier obtains charge over property – practice of invoice financiers not to lodge caveats until facility is in default – subsequent lender obtains mortgage over property – whether in the circumstances the failure to caveat causes first lender to lose priority – subsequent lender acted in reliance upon results of title searches – reasonably safe for subsequent lender to assume that no equitable mortgage or charge existed – priority of first lender postponed

CONTRACTS – Joint Venture – Rights and duties of Joint Venturers inter se – Failure of joint venture – Accounting between joint venturers

PROCEDURE – grant leave – whether to extend time for commencing proceedings ADMINISTRATIVE LAW – Motor Accidents Compensation Act 1999 – judicial review – procedural fairness – failure to provide adequate reasons - failure to engage with the evidence regarding causation – whether the medical assessor applied the wrong test of causation – whether the medical assessor erroneously found there was no evidence of specific injury - Wednesbury unreasonableness – whether the proper officer applied the wrong test under s 63(3) of the Act

DEFAMATION – defamatory meaning – whether matters complained of capable of defaming the plaintiff – publication – liability of source as primary publisher of newspaper article – consideration of principles stated in Webb v Bloch – rulings as to capacity and form of imputations

COSTS – discontinuance of proceedings – application for alternative cost order made by plaintiff under UCPR r 42.19(2) – whether circumstances warrant departure from usual position that discontinuing party pay other party’s costs – whether respondent had acted unreasonably

ENVIRONMENT AND PLANNING — Consent — Duration or lapsing of — Onus of proof for establishing criteria preventing lapse of consent ENVIRONMENT AND PLANNING — Consent — Duration or lapsing of — Whether work consisting of clearing trees and shrubs prevented lapse of consent — Whether work related to building or work on land to which consent applied — Whether work in compliance or not prohibited by consent ENVIRONMENT AND PLANNING — Land and Environment Court — Jurisdiction and powers — Discretionary powers — Whether power to make orders extends to sanctioning and authorising breaches of Act

LAND LAW — Easements — Whether appellant granted easement that bound his successors in title — Whether instrument granting easement “clearly indicates” the land to which easement is appurtenant for the purpose of s 88(1) of the Conveyancing Act 1919 (NSW) LAND LAW — Easements — Construction of deed providing for grant of easement — Extrinsic evidence — Whether extrinsic evidence not admissible to construe a registered instrument granting easement can be used to construe deed CONTRACTS — Remedies — Specific performance — Whether appellant agreed to grant easement — Meaning of “easement”

SUPPRESSION AND NON-PUBLICATION ORDERS – where in earlier judgment Court determined that a limited order prohibiting publication of references identifying certain third parties in first instance judgments was necessary – where late application made for general pseudonym order – where medical evidence in support of that application wholly inadequate – limited order made and application for general pseudonym order dismissed

CRIMINAL LAW – appeals – appeal against conviction – principal offender – 2 counts of wilful misconduct in public office – common law offence CRIMINAL LAW – appeals – appeal against conviction – accessory – 2 counts accessory before the fact to wilful misconduct in public office CRIMINAL LAW – appeals – appeal against conviction – directions to jury – misdirection – mental element of offence of misconduct in public office CRIMINAL LAW – appeals – appeal against conviction – unreasonable verdict CRIMINAL LAW – appeals – appeal against conviction – miscarriage of justice CRIMINAL LAW – appeals – appeal against sentence – application for leave to appeal