Cases and authorities

CORPORATIONS – external administration – application to limit administrators’ personal liability – where proposal for the company to enter into a loan agreement to fully pay employee entitlements – where lenders be subrogated to position of the employees in a liquidation under s 560 of the Corporations Act 2001 (Cth) – whether entry into loan agreement is in the best interests of creditors – whether the application advances the interests of Pt 5.3A of the Corporations Act 2001 (Cth).

MORTGAGES AND SECURITIES – personal property security interests – Personal Property Securities Act 2009 (Cth) (“PPSA”) – Purchase Money Security Interests (“PMSI”) – registration of financing statements – extension of time under PPSA, s 293 – relevant considerations – prejudice to other persons holding security interests – extension granted, reserving liberty to apply to set the order aside within a reasonable time

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 — Proceedings commenced within time prescribed by Act — Nature of relationship of the Plaintiff and the deceased — Lengthy estrangement and lack of any contact between the Plaintiff and the deceased for over 25 years — Estate comprises, at the date of hearing, primarily of the deceased’s home in which one son of the deceased has lived for many years — Right of residence given to that son for as long as he wishes to reside therein, or until his death, and thereafter, the estate divided between 5 of the deceased’s 6 children — No provision made for Plaintiff — Competing claim of each of the beneficiaries — Plaintiff, at the hearing, does not seek immediate provision but provision after right of residence is terminated — Reasonably large estate in value — Whether family provision order should be made, and if so, the nature and quantum of the provision to be made — Order that claim for family provision order be dismissed COSTS — Offer of Compromise served about 7 months prior to the date for hearing — Defendant obtained order no less favourable than offer made — Whether Court’s discretion should be exercised to depart from UCPR and order the Plaintiff to pay the Defendant’s costs, calculated on the indemnity basis, from the day after the date of service of the Offer of Compromise — Whether overall justice of the case warrants exercise of the Court’s discretion

REAL PROPERTY – possession of land – writ of possession – stay of writ – third application by defendants for stay on the basis of refinancing – reliance on same letter from broker as in previous application – no certainty that refinance will be forthcoming – prejudice to plaintiffs – delay in marketing of the land – application refused

CORPORATIONS – voidable transactions – determination of separate question as to solvency of company – where the borrowing capacity of the company was never enough to meet all of its debts – where the company was not generating significant cash flow surpluses from which debts could be paid during the relevant period – whether company was insolvent during the relevant period.

CIVIL PROCEDURE – pleadings – amendment – late application for amendment to third further amended cross-claim – hearing date at commencement of new law term - where proposed amendments raise new factual matters that are not clearly articulated and include claim for relief under different statutory regime – where no adequate explanation for late application EVIDENCE – affidavit evidence in reply – whether evidence was responsive to evidence of cross-defendants – whether late admission of evidence would prejudice cross-defendants

NUISANCE – where the defendant obstructed the plaintiff’s ability to exercise a right of way over an access road appurtenant to her property – where common ground that the defendant’s conduct constituted actionable nuisance – DAMAGES – particular damage to the plaintiff as a consequence of the nuisance – damages awarded for inconvenience and stress

RESTITUTION – unjust enrichment – defence of change of position – third defendant allows fraudster to use her identity to set up a bank account in a company name – fraudster arranges for funds stolen from the plaintiff to be paid into the bank account – fraudster directs the third defendant to pay monies out of the bank account to third parties and the third defendant complies – injunctions obtained to prevent further distribution of funds from the bank account – the funds paid to third parties are lost – plaintiff seeks restitution from the third defendant for the monies paid to the third parties – whether the third defendant has been unjustly enriched at the plaintiff’s expense by the funds into the bank account – whether as a result of paying the funds out of the bank account the third defendant can avail herself of a defence of change of position – whether any change of position defence is unavailable due to the third defendant’s participation in and knowledge of the fraudster’s illegality. DECEIT – tort of deceit – whether the third defendant participated in conduct together with the fraudster which misled the plaintiff in circumstances amounting to the tort of deceit – what parts of the fraudster’s activities was the plaintiff aware.

TORT – negligence – breach of duty of care – where appellant tripped outside entrance to aged care facility operated by respondent – where 10-20mm height difference between edge of concrete slab and brick pavers – where height difference likely present since 2000 without incident or complaint prior to appellant’s accident in 2015 – whether primary judge erred in treatment of evidence – whether risk “not insignificant” – whether risk obvious – whether reasonable person in occupier’s position would have taken action to reduce the unevenness in question

APPEALS – nature – right of appeal conferred by Terrorism (High Risk Offenders) Act 2017 (NSW), s 53 – whether primary judge erred in not being satisfied respondent posed unacceptable risk of committing serious terrorism offence if not kept under supervision – applicable standard of appellate review – standard of correctness CRIMINAL LAW – extended supervision order – Terrorism (High Risk Offenders) Act 2017 (NSW) – whether primary judge erred in dismissing State’s application – construction of legislation and of term “terrorist act” considered WORDS and PHRASES – “terrorist act” – “convicted NSW terrorism activity offender” – “high degree of probability” – “unacceptable risk”

COSTS – application for indemnity costs and gross sum costs orders – whether application was to vary or set aside existing costs orders – whether application made in time – requirement to file notice of motion within 14 days – whether sufficient evidence to ground a well-informed exercise of discretion – absence of expert evidence – costs substantially too high – applications refused

PRACTICE – extension of time – judicial review proceedings – proceedings commenced years after decision – no basis for extension of time made out

CIVIL PROCEDURE – leave to amend summons – where amendment will enable judicial advice under s 55 of the James Hardie Former Subsidiaries (Winding Up and Administration) Act 2005 (NSW) CIVIL PROCEDURE — Stay of proceedings — Stay pending application for special leave to appeal to High Court – whether exceptional circumstances – where the order does not create rights and obligations – where the evidence does not establish that a stay is required to preserve the subject matter of the appeal

APPEAL – challenges to findings of primary fact – whether adequate cross-examination to permit rejection of parties’ and witnesses’ evidence – whether primary judge grappled with competing evidence – challenges to findings of primary fact rejected EQUITY – breach of fiduciary duty – enduring attorney instructed solicitor to make inter vivos gift of principal’s main asset to four of five children – attorney found to have done so on basis of what she considered to be “fair” – whether breach of duty – whether solicitor had knowledge of breach of fiduciary duty – whether solicitor’s knowledge imputed to four children – whether four children were knowing recipients of property – whether fraud exception to indefeasibility made out – whether children required to provide equitable compensation to estate – four children were knowing recipients of property for the value of which they had to account, but indefeasibility meant that the property was not held on constructive trust for estate LEGAL PRACTITIONERS – solicitor – retainer – solicitor retained by enduring attorney on behalf of incapable principal – solicitor instructed to convey property to four of five children without consideration – whether solicitor acting for children – whether knowledge of solicitor imputed to children for purposes of Barnes v Addy liability of children – knowledge of solicitor imputed to children NEGLIGENCE – duty of care – duty of solicitors retained by enduring attorney of incapable principal – attorney instructed solicitor to convey principal’s main asset to four children without consideration – whether duty of care owed by solicitor to testamentary beneficiary disappointed by inter vivos transaction – significance of testator being incapable – significance of retainer extending to estate planning – whether duty breached by solicitor – whether breach caused loss – duty, breach and causation established PROCEDURE – whether appeal commenced within time – where issues as to liability and damages remained for determination – whether cross-appeals required leave – requisite extension of time and leave granted SUCCESSION – wills – rectification – professionally drafted will – obvious error in failing to specify beneficiary of testator’s main asset – whether error by primary judge in rectifying will – challenge to rectification of will rejected

COSTS – Calderbank offer made by successful appellants – where declaratory relief given as to distribution of fund – fund not distributed – quantum of future distribution uncertain – unresolved dispute about extent of priority creditors – receivers’ fees not determined – where offer related to only a small proportion of successful parties’ total costs – where unsuccessful respondent submitted that uncertainty should result in ordinary order as to costs – application remitted to single Judge of Appeal with a view to hearing parties further and awaiting further steps in distribution of fund

MEDIA AND COMMUNICATIONS – applications by media for access to pleadings prior to conclusion of proceedings – whether there are exceptional circumstances warranting departure from Supreme Court’s usual practice

CIVIL LAW – Crimes (High Risk Offenders) Act 2006 – preliminary hearing – application for appointment of psychiatrist and psychologist under s 7(4) – orders made

BANKRUPTCY – Undervalued transactions – Transfer of property pursuant to consent order of the Family Court – Consent order subsequently set aside – Held transfer void against the transferor’s trustee in bankruptcy – Declaration and consequential orders made

DEFAMATION – defamatory meaning – court proceedings – where journalist obtained access to pleadings in civil proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.12(2) – where pleadings alleged breach of duties and cruelty by horse trainers – where newspaper published articles based on both parties’ pleadings — where truth of allegations in pleadings yet to be curially determined — capacity of articles to convey guilt imputations DEFAMATION – publication – republication – liability for republication — whether republication natural and probable consequence of the original publication DEFAMATION – defences – defence of publication of fair summary of public documents – where journalist obtained access to pleadings in civil proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.12(2) – where newspaper published articles based on pleadings – whether pleadings deployed in court at a directions hearing prior to publication of matters complained of – whether pleadings “public documents” – Defamation Act 2005 (NSW), s 28(1) – whether matters complained of fair summary of “public documents” – Defamation Act 2005 (NSW), s 28(1) – whether matters complained of published honestly for the “information of the public” – whether matters of defeasance proven – Defamation Act 2005 (NSW), s 28(3) DEFAMATION – defences – statutory qualified privilege – where plaintiffs horse trainers – where newspaper published report of cruelty allegations made in civil proceedings – where poster advertising newspaper article stated “Cummings Fighting Cruelty Claims” – whether poster published pursuant to statutory qualified privilege – Defamation Act 2005 (NSW), s 30 DEFAMATION – identification – whether poster defamatory in its natural and ordinary meaning or by reason of extrinsic facts – where poster advertising newspaper article stated “Cummings Fighting Cruelty Claims” – whether poster identified plaintiff – whether “defamatory nature” of poster limited to people who would identify poster as referring to Anthony Cummings and not Bart Cummings WORDS AND PHRASES – “public document” – “open to inspection by the public” – Defamation Act 2005 (NSW), s 28(4)(e)

ADMINISTRATIVE LAW – jurisdictional error – where appellant worker suffered lower back injury – dispute about degree of permanent impairment – where approved medical specialist (AMS) made no deduction for any proportion of impairment due to prior injury and pre-existing condition – appeal by employer on ground of demonstrable error – Appeal Panel revoked certificate and issued new certificate – where 50 percent deduction for proportion of impairment due to prior injury and pre-existing condition – appellant claimed Panel substituted decision of AMS without finding the certificate of assessment contained demonstrable error – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 327(3)(d) – whether primary judge erred in finding that Panel identified demonstrable error contained in certificate of AMS – whether Panel needed to expressly say certificate contained demonstrable error – whether error found by Panel was “demonstrable error”

COSTS – Party/party – Recovery of legal costs – Whether costs of defending criminal proceedings can be recovered as damages in subsequent civil proceedings for wrongful arrest – Whether State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 wrongly decided DAMAGES – General principles – Exemplary, punitive and aggravated damages – Where primary judge made a single award for aggravated and exemplary damages – Where respondent engaged in provocative conduct – Whether primary judge erred in the award of aggravated and exemplary damages TORTS – False imprisonment – Wrongful arrest – Causation – Whether costs of defending criminal proceedings natural and probable consequence of tort of wrongful arrest

PRACTICE AND PROCEDURE – costs – application for indemnity costs by successful Defendant – unmeritorious arguments advanced by Plaintiff – failure by Plaintiff to comply with obligations under s.56 Civil Procedure Act 2005 – unreasonable conduct of Plaintiff – costs awarded on indemnity basis

CIVIL PROCEDURE — Parties — Persons under legal capacity – Tutors — need for appointment of tutor to carry on the defence of a claim and cross-claim CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance — Court approval — Civil Procedure Act 2005 (NSW), ss. 75, 76 CIVIL PROCEDURE — Probate and administration of estates — grant of probate in solemn form

CRIMINAL LAW – evidence – admissions – Criminal Procedure Act 1986 (NSW) s 281 - unrecorded statements made to police – whether statement made in the course of official questioning – whether reasonable excuse for statement not being recorded CRIMINAL LAW – evidence – tendency evidence to be adduced by the accused – whether the evidence has significant probative value – whether the evidence has the capacity to rationally affect, to a significant degree, proof of the identity of the assailant EVIDENCE – Witness evidence – Unsworn evidence – whether witness’s recorded interview may form the witness’s evidence in chief – whether admissible under s 66 of the Evidence Act 1995 (NSW) – whether admissible under ss 289 or 306 of the Criminal Procedure Act 1986 (NSW) EVIDENCE – hearsay – exceptions – criminal proceedings where maker of a previous representation is available to give evidence

PRACTICE AND PROCEDURE – Application for leave to file proposed Amended Statement of Claim – whether the claims made in the amendments are liable to be summarily dismissed or struck out.

DEFAMATION – publication – threshold of seriousness – proportionality – plaintiff suing on Facebook posts – where claim as originally pleaded rested on unlikely inference that posts were downloaded by at least one reader – plaintiff subsequently providing particulars asserting that the same three people read each of six matters complained of on the same date – appropriateness of requiring affidavits explaining circumstances in which that occurred

PRACTICE AND PROCEDURE – directions balancing need for preparation and difficulty with time of year in order to have matter ready for trial on February 2019

CORPORATIONS – leave to proceed against companies in liquidation pursuant to s 500(2) of the Corporations Act 2001 (Cth) – where leave is being sought to continue representative proceeding – not opposed by liquidators – leave granted

CORPORATIONS – external administration – application to appoint person within the same firm as liquidator of companies upon resignation of liquidator – where no question as to propriety of certain transactions under investigation extends beyond presently appointed liquidator – where costs will be reduced where another liquidator from the same firm is appointed – whether it is in the interests of creditors of the companies to appoint a liquidator within the same firm.

CIVIL PROCEDURE – interlocutory applications – continuation of injunction originally granted ex parte – where defendant initially sought and obtained adjournment to adduce evidence to resist continuation of injunction – where members then resolved to cause defendant to be wound up – where no evidence adduced to resist continuation of injunction CORPORATIONS - members voluntary winding up – whether plaintiffs should have leave to proceed under s 500(2) of the Corporations Act 2001(NSW)

PROCEDURE – Representative Proceedings – Publication of Notices – Dispensation – where no claim for damages – where no conceivable basis on which informed group member would wish to opt out – where highly desirable that large administration be finalised without further complexity – notice dispensed with

LIMITATION OF ACTIONS – general – application of statutes of limitation – action for defamation – imputation that the plaintiff is a convicted paedophile – where plaintiff facing criminal charges for sexual offences against children at time of publication – advice obtained from senior and junior counsel that no defamation claim should be pursued prior to conclusion of criminal proceedings – whether “not reasonable test” satisfied

LAND LAW – Caveats – Removal of caveat - application to remove caveat lodged by first defendant on plaintiff’s property pursuant to s 74MA of the Real Property Act 1900 (NSW) – common ground there is serious question to be tried that first defendant has caveatable interest – balance of convenience – danger that plaintiff’s registered mortgagee would commence recovery action if caveat not removed – director of plaintiff and his mother offered charge over jointly owned alternate property with adequate equity – no evidence of value of undertaking as to damages proffered by caveator

SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Chapter 3 of the Succession Act 2006 (NSW) – Consideration of whether the application of s 59 of the Succession Act involves a one-stage or two-stage process in the light of relevant authorities, and matters relevant to how those processes may be applied – Where a capable testator has with knowledge that he is suffering from a terminal illness made a new will on the basis of the apparently careful consideration of his testamentary obligations to relevant parties – Where the testator gives his actual estate equally to his wife and two daughters – Claim for family provision order dismissed

EQUITY – constructive trust – where payments were made from partnership account to account of corporate partner to partnership immediately prior to it being placed in voluntary administration – whether payments were made by partners to partnership in breach of duty to partnership – whether constructive trust is an appropriate remedy. PERSONAL PROPERTY – priority of security interests – where bank registered security interest against all property of each company to partnership but not against the partnership – where third party later registered security against all receivables of the partnership – whether bank’s security has priority over third party’s security in respect of funds wrongly transferred out of partnership account.

CONTRACT – contract for sale of land – where completion conditional on achievement of conditions precedent by sunset date – where conditions precedent not achieved by sunset date – where vendor and purchaser entitled to rescind if conditions precedent not so achieved – where purchaser entitled to step in and itself seek to achieve conditions precedent if they were not so achieved – whether purchaser’s entitlement to step in qualified vendor’s entitlement to rescind – whether purchaser entitled to reasonable time to elect to step in – where day following sunset day not a business day – where vendor purported to terminate on that non-business day – whether vendor entitled to terminate on non-business day – whether contract in any event frustrated – ambit of purchaser’s step in rights – whether assuming contract not rescinded it should be specifically performed – whether assuming contract not rescinded vendor should be restrained from purporting further to rescind for 12 months from judgment

BAIL – variation of conditions – house arrest sought to be deleted and electronic monitoring imposed – discussion of Bail Act – application refused.

CIVIL PROCEDURE – strike out application – claim for unclaimed lotteries prize from 1997 – claims in contract, tort, misleading and deceptive conduct, trust and restitution – defence under the Limitation Act – relevant principles to strike out applications – relevant principles relating to the Limitation Act – terms of contract found in Oz Lotto Rules – plaintiff unable to satisfy the Rules – claim in contract doomed to fail – claim in trust rose no higher than claim in contract – claim for restitution inconsistent with contract – alternative, whether the limitation period for the claims in contract, negligence, trust and restitution was suspended by ss 52 and 56 of the Limitation Act – claims in contract, negligence, trust and restitution also time barred by Limitation Act – claim for misleading or deceptive conduct time barred by limitation period in s 82 of Trade Practices Act and s 68 of Fair Trading Act – whether pleadings may be struck out as a result of a limitation defence – claims in contract, negligence, trust and restitution may be struck out – claim for misleading or deceptive may not be struck out as a result of a limitation defence only – absence of framing strike out application as abuse of process – leave not granted to re-plead with respect to claims in contract, negligence, trust and restitution – part of the second amended statement of claim struck out

CRIME – conspiracy to import commercial quantity of border controlled drugs – multiple offenders – multiple counts – large scale importations planned

ADMINISTRATIVE LAW - judicial review - motor vehicle accident - assessment of damages for past economic loss and future economic loss - certificate issued by Claims Assessor under s.94 Motor Accidents Compensation Act 1999 - whether failure to give reasons as required by s.94(5) and s.126 of the Act - whether path of reasoning of Claims Assessor sufficiently exposed - whether Claims Assessor used buffer in assessment for future economic loss - held failure to give reasons as required by law - relief granted

EQUITY – equitable fraud – fourth category of Earl of Chesterfield v Janssen (1751) 2 Ves Sen 125; 28 ER 82 – relief against “underhand bargains” – general principles – need for a transaction – equitable intervention only where remedies at law are unavailable or inadequate PRACTICE AND PROCEDURE – applications – summary dismissal – claim for equitable fraud – no reasonable cause of action disclosed

TERRORISM HIGH RISK OFFENDER – Application for extended supervision order (“ESO”) sought by the State of NSW under the Terrorism (High Risk Offenders) Act (“THRO Act”) – where defendant had associations with right wing extremist groups, skinhead culture and Odinism – where index offence involved burning down the Destiny Church of Australian Christian Churches shortly after handing out Right Wing Revolution pamphlets – where defendant had committed previous offence by making phone calls involving anti-Semitic threats of extreme violence and sexual assault to the Sydney Jewish Museum – whether statutory pre-conditions for the making of an ESO under s 20 of the THRO Act are made out – whether defendant poses unacceptable risk of committing a serious terrorism offence if not supervised under an ESO

CIVIL PROCEDURE – pleadings – amended reply – striking out – tendency to cause prejudice, embarrassment or delay – UCPR r 14.14 – action in damages for public and private nuisance – onus of proof – where defendant relies on statutory authority and nuisance as inevitable consequence – whether pleadings were in accordance with previous judgment in respect of reply – where plaintiff did not seek to have previous judgment varied or overturned – where pleadings were so general that the defendant would not know in advance the case it had to meet – leave to re-plead granted

INSURANCE – professional indemnity insurance – construction of exclusion clause – where insurer denied indemnity to defendants – where prudent lender provision not inserted in valuation report – whether insurer only entitled to decline indemnity if the absence of the prudent lender clause caused the loss PROCEDURE – separate determination of question

CONTRACT – construction of good faith negotiation provisions – where contract protects sight lines between existing planned developments and the Sydney Harbour Bridge and Sydney Opera House – consideration of the scope of such protection – where the Sight Lines Clauses are activated by an “application” providing for development different to an approved Concept Plan – meaning of the word “application” – whether defendant’s obligation to negotiate in good faith had been enlivened – consideration of the content of such negotiation – whether negotiations are required to commence from the position that the sight lines are to be retained – defendant did not comply with the negotiation process as required by the contract – appropriate declarations made.

BAIL – release application – show cause offences – aggravated indecent assault – aggravated sexual assault in company – sexual intercourse without consent – where previous application refused by this Court – where change in circumstances – where significant risk of flight – where cause not shown – bail refused

CHILD WELFARE – parens patriae jurisdiction – application for injunction restraining the Minister from allowing the child to visit her father in New Zealand – application dismissed

COSTS – party/party – basis of quantification – indemnity costs orders sought – whether liquidators of Fourth Defendant should be liable for indemnity costs personally JUDGMENTS AND ORDERS – effect of – appropriate form of orders sought – whether orders should be made against the Fourth Defendant

LAND LAW – easements – creation of easements – imposition of easements by Court – whether easement reasonably necessary – remitted proceedings to determine easement – where remitted proceedings involve determination of precise terms of easement and whether reasonably necessary

CRIMINAL LAW – Offences – Sentence – Murder – Where deceased was the partner of the offender – History of domestic violence – Offending aggravated by a series of factors including the offender’s record which included previous breaches of apprehended violence orders – Finding that the offender acted with an intention to kill the deceased – Necessity for sentence to incorporate considerations of both general deterrence and specific deterrence CRIMINAL LAW – Offences – Sentence – Murder – Whether offender’s intoxication was an aggravating factor – Where the offender had a history of alcohol related offending including offending of a domestic violence nature – Where offender must have been aware of the connection between his consumption of alcohol and violence – Offender found to be reckless – Offending aggravated by intoxication CRIMINAL LAW – Offences – Sentence – Murder – Whether the offending was aggravated by gratuitous cruelty perpetrated by the offender on the deceased – Evidence of widespread bruising to the deceased in addition to the stab wounds which caused her death – Where the offender admitted to the police that he had “choked out” the deceased and caused her to lose consciousness – Offending aggravated by gratuitous cruelty