Cases and authorities

CIVIL PROCEDURE – security for costs – plaintiff successful in obtaining judgment – application to have security released – where defendants foreshadowed appeal – whether appropriate to release security CIVIL PROCEDURE – application for stay of judgment pending determination of appeal

PROCEDURE – summary judgment – Uniform Civil Procedure Rules 2005 r 13.1 – where defendant accepts that at least a certain amount of money is owed to the plaintiff – where there can be no dispute that the plaintiffs are entitled to damages in that amount

DEFAMATION – defences – contextual truth

PRACTICE AND PROCEDURE – Motion before Duty Judge – appeal from Registrar – no urgency – matter to be dealt with in the ordinary course.

LEASES AND TENANCIES – appeal on question of law from Appeal Panel of Civil and Administrative Tribunal – whether Tribunal had lawfully terminated tenancy of social housing tenant ADMINISTRATIVE LAW – whether discretion properly exercised on the basis of contingent finding ADMINISTRATIVE LAW – the requirement to give reasons – Tribunal’s reasons insufficient to indicate that it had properly exercised discretion

PRACTICE AND PROCEDURE – Civil proceedings – interlocutory application for freezing order – whether plaintiff has a “good arguable case” – whether defendant’s conduct reveals an intention to frustrate the processes of the Court

APPEAL FROM THE LOCAL COURT – interlocutory orders – whether charges bad for duplicity – whether “rolled-up” charges permissible – question of unfairness to defendant – no point of principle

COSTS – security for costs – where alleged delay in bringing application – where no prejudice to the plaintiff

REPRESENTATIVE PROCEEDINGS – common questions – determination of common questions in representative proceedings – representative proceedings brought in relation to manufacture and installation of Takata airbags

CRIMINAL LAW – Offences – Sentence – Doing acts in preparation for a terrorist act – Offender arrested in possession of knives and camouflage clothing – Steps taken by offender in an effort to ensure that he could not be traced – Where offending motivated by an adherence to extremist ideology including a belief that the Australian Government was “evil” – Where actions of the offender were consistent with propaganda published by Islamic State – Where the commission of a terrorist act was imminent at the time of the offender’s arrest – Necessity to impose a sentence which would denounce the offending and protect the community - Necessity for general deterrence CRIMINAL LAW – Offences – Sentence – Doing acts in preparation for a terrorist act – Where offender 16 years of age at the time of the offending – Serious offending – Adult like behaviour – Relevance of youth on sentence – Consideration of the extent of the mitigatory effect of youth in cases of serious offending

OCCUPATIONS – health care professionals – medical practitioners – Health Practitioner Regulation National Law (NSW) - unsatisfactory professional conduct – professional misconduct – where respondent admitted unsatisfactory professional conduct - whether Tribunal erred in finding that professional misconduct had not been established – whether Tribunal failed to consider cumulative effect of findings of unsatisfactory professional conduct ADMINISTRATIVE LAW – judicial review – errors of law – whether Tribunal findings of fact unreasonable irrational or illogical – whether Tribunal failed to have regard to relevant evidence – whether Tribunal erred in failing to consider or make a finding in relation to admitted complaint – whether Tribunal failed to apply the correct legal test for professional misconduct

DEFAMATION – slander CIVIL PROCEDURE – hearings – adjournment – relevant factors – delay – professional commitments – professional difficulty – conflict of interest – competing interests of defendants – preparation unsatisfactory – adjournment granted COSTS – delay – whether costs should be thrown away forthwith – general rule – overriding purpose – relevance of evidence – confluence of circumstances justifies extraordinary order

CORPORATIONS – whether to dispense with r 7.1 of the Uniform Civil Procedure Rules 2005 (NSW) – where director and associated companies have previously applied to set aside creditor's statutory demands – where interests of the community and company’s creditors will be promoted by the independent judgment of a solicitor.

CIVIL PROCEDURE – application to set aside default judgment – where originating process served by substituted service – short period of delay between when defendant learned of proceedings and when default judgment entered – existence of arguable defences

PRACTICE AND PROCEDURE – Applications – Summary dismissal – application that the proceedings be dismissed on the basis that the plaintiff has no standing or the claim is not justiciable – application dismissed

COSTS — Party/party — Bases of quantification — Indemnity basis — specification as a gross sum

JUDGMENTS AND ORDERS – amending, varying and setting aside – correction under slip rule – where paragraph of earlier judgment does not reflect Court’s intended reasons CONTRACTS – construction – interpretation – further issues arising from earlier judgment

REAL PROPERTY – requirements of s 129 of the Conveyancing Act 1919 (NSW) – where lease required lessee to obtain all relevant development consents or approvals for specified use of land – where lessor issued notice to remedy breach of lease – where lessor issued notice of termination of lease 14 days after notice to remedy breach was issued – whether time given to remedy breach of lease was reasonable in the circumstances – whether requirements of s 129 of the Conveyancing Act have been satisfied.

CONTRACTS – Alleged oral contract formed in telephone conversation between plaintiff and defendant in March 2002 – Held the formation of an express agreement not established on the evidence –Claim for relief founded on the existence of such an agreement dismissed EVIDENCE – Business practice evidence – Evidence relevant as establishing a business practice which it is likely was put into practice in the particular case in the formation of an oral agreement – Evidence alternatively advanced as tendency or coincidence evidence – Relevant principles ESTOPPEL – Conventional estoppel – Whether a common assumption existed as to the entitlement of the agent to an ongoing commission – Held no such assumption was shared by the plaintiff and the defendant – Claim for relief based on conventional estoppel dismissed TORTS – Negligence – Whether literary agent breached duty of care and skill owed to client – Held there was a breach of the duty of care by failing to advise client as to the advantages and disadvantages of world rights deals LIMITATION OF ACTIONS – Claim in contract and tort – Whether bar postponed by fraudulent concealment – Held there was no fraudulent concealment

EQUITY – respondent is Toni, the wife of the first appellant’s brother – first appellant and his deceased brother held equal shares in a property as tenants in common – on brother’s death, title in the property was transmitted to the respondent – first appellant and respondent could not agree on sale of the property and first appellant brought proceedings under the Conveyancing Act 1919 (NSW), s 66G for the appointment of trustees for sale – trustees were appointed and property was sold at public auction to first appellant and his wife, the second appellant – dispute arose regarding entitlement to the proceeds of sale and the payment of mortgage and sale expenses – respondent claimed that sum in discharge of mortgage was impermissibly deducted from her sale proceeds – first appellant then brought claim relying on contract and promissory estoppel alleging that his deceased brother had promised that the property would pass to the first appellant’s sons, the third and fourth appellants, on his death – primary judge found that respondent’s claim was made out – primary judge dismissed the first appellant’s contract and estoppel claim – whether primary judge erred in certain factual findings

CIVIL PROCEDURE – application for further security for costs – security previously provided by consent – whether amount awarded should reflect assumption that senior counsel will be briefed – consideration of proportionality

CIVIL PROCEDURE — Stay of proceedings — Application for removal to High Court of Australia —Prospects of success — Balance of convenience — Stay refused. CIVIL PROCEDURE — Interlocutory applications — Application to transfer to an interstate or federal court — Application to set aside subpoena — Want of due despatch — Applicant refused to move on motion — Application dismissed. CIVIL PROCEDURE — Subpoenas — Objection to production of documents or things — Self-represented defendant in civil proceedings — Objection by defendant to subpoena addressed to NSW Police —Privilege against self-incrimination — Court expert appointed to identify privileged material.

RESTRICTED PREMISES – application for declaration of premises under the Restricted Premises Act – whether reasonable grounds exist for suspecting entertainment of a demoralising character takes place on the premises – meaning of the term “demoralising” – whether entertainment involving the use of a “stripper pole” has demoralising character within the meaning of the act – whether reasonable grounds exist for suspecting liquor unlawfully sold on the premises – whether reasonable grounds exist for suspecting reputed criminals resort to the premises

CORPORATIONS – application for directions that priority regime prescribed by the Corporations Act 2001 (Cth) does not apply to the payment of the debts of a partnership from partnership assets – where partners to a partnership are corporations that are in liquidation – whether s 561 of the Corporations Act applies in the winding up of a partnership – whether the priority regime prescribed by s 561 of the Corporations Act should be applied to the payment of the debts of a partnership by its terms or because equity follows the law.

LAND LAW — Caveats — Caveatable interest — What constitutes a caveatable interest — Oral agreement to purchase unit in proposed strata plan

CORPORATIONS – External Administration – Liquidation – liquidator’s applications – directions and judicial advice – where application made after 1 September 2017 in substantive proceedings commenced before that date – whether governed by Insolvency Practice Schedule or the “old Act” – held, the “old Act” applies – where, as a result of earlier proceedings, liquidators are on notice of potential damages claims by shareholders who have not proved – whether liquidators should admit such claims – held, they should – where potential claims are numerous and relatively small and applicants are better positioned than claimants to identify and quantify them – held, applicants would be justified in admitting claims as identified by them and notified to shareholders in the absence of timely objection - where schemes do not permit discretionary extension of time for claims by scheme administrators – held, applicants would be justified in distributing without making provision for any liability in respect of the shareholding of any current or former shareholder who does not have an Acknowledged Creditor Claim, save for such as make a timely application to Court under Corporations Act s 1322 for an extension of time. CORPORATIONS – Dissolution – whether claims for damages under (CTH) Trade Practices Act s 82 vests in ASIC or the Commonwealth under Corporations Act s 601AD – held, they do not – whether right to dividend in respect of lodged claims vest in ASIC or the Commonwealth under Corporations Act s 601AD – where claims not admitted prior to deregistration – held, they do not.

HIGH RISK OFFENDER – serious sex offender – application for continuing detention order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – ancillary order sought for extended supervision order – assessment of risk – community safety paramount concern – continuing detention order imposed

CIVIL LAW – practice and procedure – approval of settlement – s 76 Civil Procedure Act 2005 (NSW) – consideration of disparity between amount originally claimed and settlement proposal – confidential advice from senior counsel – settlement approved

CIVIL PROCEDURE – application for medical examination of Plaintiff and Plaintiff’s tutor (mother) – blood test for purposes of Whole Exome Sequencing/Next Generation Sequencing testing – consideration of principles to be applied on application under Rule 23.4 Uniform Civil Procedure Rules 2005 – test of adjectival relevance - whether genetic testing has capacity to shed light on issue of causation - order to be made with respect to Plaintiff – order declined with respect to Plaintiff’s tutor (mother)

TAXES AND DUTIES - taxation debt recovery proceedings - application for summary judgment - whether Defendant has arguable defence to claim in recovery proceedings - conclusive evidence of debt due to Commonwealth - matters relied upon by Defendant do not disclose arguable defence to claim in recovery proceedings - no discretionary reason to decline grant of summary judgment - summary judgment granted

CIVIL PROCEDURE – Cross Claim – applicant seeks to file a Cross Claim out-of-time against respondent – applicant and respondent are co-defendants in proceedings – respondent/defendant settles other proceedings with the plaintiffs – applicant/defendant not involved in settlement negotiations between respondent/defendant and plaintiffs – settlement performed – applicant subsequently commences new parallel proceedings – whether the Court should grant leave under UCPR, r 9.1 for the applicant to file the Cross Claim out-of-time – whether the new parallel proceedings should be stayed.

COSTS – offers of settlement – where appellant made offer of compromise – where offer not accepted – where outcome substantially similar to the offer made – whether proper basis for departure from the prima facie rule PROCEDURE – judgments and orders – setting aside judgment or order after entry – motion to set aside order filed more than 14 days after orders entered – whether court has jurisdiction to set aside or vary order where application made outside 14 day time limit – whether applicant notified court of motion within time limit – whether appropriate for court to dispense with rule prescribing form of notice for motion – Civil Procedure Act 2005 (NSW), s 14; Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Representative proceedings – answers to common questions – costs orders

CIVIL PROCEDURE — Application for leave to appeal — challenge to interlocutory decision setting aside a default judgment – whether the application raises an issue of principle – whether any significant injustice would be caused by a refusal of leave

CIVIL PROCEDURE — Summary disposal —Dismissal of proceedings — No reasonable cause of action disclosed — where primary Judge dismissed the proceedings — where respondent relied on estoppel by representation — where respondent did not adduce evidence to address several critical matters — whether a high degree of certainty about the ultimate outcome should the proceedings go to trial in the ordinary way – where the respondent may also have available arguments based on issue estoppel and conventional estoppel should the matter proceed to trial

CONTRACTS – Construction – Where parties entered into deeds of put and call option – Where vendor was paid a call option fee upon entry into deed – Where vendor failed to register the plan of subdivision as required by the contract – Whether meaning of “rescind” in the contract operated to rescind the contract from the beginning including the refund of the call option fee or terminate executory obligations – Appeal dismissed

SENTENCING – supply of a prohibited drug – sentence appeal – weight to be given to character – whether the sentencing judge determined weight given to character based on type of offence – whether the sentencing judge took an anterior step in sentencing – instinctive synthesis – whether sentence was manifestly excessive

CRIMINAL LAW – sentence appeal – one count of break enter and steal and one count of driving while disqualified – imprisonment for 5 years and 6 months with a non-parole period of 3 years – whether sentencing judge misapprehended the sentence imposed upon a co-offender – whether parity principle breached – whether sentencing judge took into account the totality principle – whether sentencing judge acted upon an erroneous maximum penalty in respect of the drive while disqualified offence – whether overall sentence manifestly excessive – error in the sentencing process made out – need to re-sentence – appeal allowed and sentence reduced.

CRIMINAL LAW – sentence appeal – applicant found guilty of manslaughter after trial – applicant stabbed deceased with a large knife after being sexually assaulted by him – intention of applicant to inflict grievous bodily harm not to kill – applicant aware that deceased had a terminally ill wife and a young daughter – whether aggravating factor that applicant’s action deprived ill wife of her carer and in due course would make the daughter an orphan – whether principle in R v Previtera applies – sentence appeal dismissed.

CRIMINAL LAW – appeal against sentence – causing grievous bodily harm with intent contrary to Crimes Act 1900 (NSW), s 33(1)(b) – assault upon fellow inmate in prison – late guilty plea – 5% discount in sentence for early plea – head sentence of 12 years 4 months imprisonment with non-parole period of 9 years – whether error in ratio of non-parole period to head sentence – whether sentencing judge did not properly consider applicant’s criminal record – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed

CRIMINAL LAW – application for extension of time to appeal against conviction – offences of aggravated indecent assault – circumstance of aggravation that complainant had a cognitive impairment – applicant pleaded guilty to offences in District Court – whether there has been a miscarriage of justice – principles to be applied on application for leave to withdraw pleas of guilty – integrity of pleas of guilty – evidence given by applicant and applicant’s former legal representatives at hearing in Court of Criminal Appeal – factual findings made – applicant’s pleas of guilty entered freely and voluntarily and with full knowledge of elements of offences – no miscarriage of justice – not in interests of justice to grant extension of time – application for extension of time refused

CRIME – appeal against sentence – aggregate sentence – firearms offences – concessions by the Crown – orders by consent – evidence not capable of establishing the firearms were “prohibited firearms” within the meaning of that expression in the Firearms Act 1996 (NSW) – consequences of quashing those the convictions – no lawful sentences exist for the remaining offences –leave to the applicant to appeal against the conviction – quash the aggregate sentence – remit the matter to the District Court for sentencing

CRIMINAL LAW – leave to appeal and appeal against sentence – whether sentencing judge erred in failing to have regard to standard non parole periods – error conceded – whether some other sentence warranted in law – objective seriousness of the offences – effect of evidence of prior good character and lack of record – how Form 1 offence to be taken into account –consideration of victim impact statement which deals with circumstances for which applicant was not responsible – special circumstances

CRIMINAL LAW – Offences – Sentence – Appeal – Robbery inflicting actual bodily harm – Where applicant and co-offender assaulted and robbed a member of the public – Serious injuries inflicted to the victim – Relevance of applicant’s mental state in determining sentence – Relevance of applicant’s youth – Objectively serious offending – Whether sentence manifestly excessive

CRIME – sentencing – aggravated sexual intercourse with a person between the age of 10 and 14 years – circumstance of aggravation that the victim was under the authority of the offender – assessment of objective seriousness of the offences – where the offender was a family friend and casual babysitter of the 12-year old victim and her 4-year old sister – development of relationship between victim and offender – whether the sentencing judge’s conclusion that the offences fell just below the mid-range of seriousness was reasonably open

DEFAMATION – trial by jury – jury’s findings on imputations – final determination in favour of defendant

CIVIL PROCEDURE – Application for temporary stay of proceedings brought by the plaintiff against the second defendant for damages for sexual assault – Where plaintiff’s allegations were the subject of criminal charges brought against the second defendant – Where second defendant awaiting trial on those charges – Whether position of the second defendant would be unfairly prejudiced if the plaintiff’s proceedings were not stayed pending the outcome of the criminal proceedings – Consideration of principles to be applied – Stay of proceedings granted

CIVIL PROCEDURE – Application for freezing order – Consideration of principles to be applied – Insufficient evidence of risk of dissipation of assets – Application dismissed

CONVEYANCING - appointment of trustees for sale – orders under s 66G of the Conveyancing Act 1919 (NSW)

CORPORATIONS – application to set aside a creditor's statutory demand – whether service of the application to set aside a creditor's statutory demand complied with the Corporations Act 2001 (Cth), s 459G – whether service of an application to set aside a creditor's statutory demand interstate must comply with the requirements of the Service and Execution of Process Act 1992 (Cth) within the 21 day period specified in the Corporations Act 2001 (Cth), s 459G(3)