Cases and authorities

PRACTICE AND PROCEDURE – pleading – claim by assignee under a guarantee – whether necessary to plead all advances made to debtors – application to strike out or dismiss proceedings refused LIMITATION OF ACTIONS – question of date from which amendment to take effect reserved – inappropriate that it be determined in the course of an interlocutory hearing

COSTS – Party/Party – where principal defendant did not resist relief – where second party assumed role of contradictor and actively resisted plaintiff’s claim - where principal defendant surrendered

COSTS – party/party – costs of successful judicial review application – general rule that costs follow the event – where costs likely to be disproportionate to the amount claimed – where costs limited

CIVIL PROCEDURE – Application for security for costs – Relevant considerations – Where cross-claimant corporation admitted it would be unable to pay costs of cross-defendant but undertakings provided by two individuals to be responsible for costs of cross-defendant – Held not an appropriate case for the exercise of the discretion to order security – Application dismissed

ENVIRONMENT AND PLANNING – consent – owner of lot constructed road on adjoining lot – owner of adjoining lot sought relief for trespass and breaches of Environmental Planning and Assessment Act 1979 (NSW) – whether road constructed without development consent – whether road constructed otherwise than in accordance with development consent – whether entry onto land for purpose of construction authorised by general right of access – Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1)(a), 76A(1)(b), 124. ENVIRONMENT AND PLANNING – erection of buildings – whether roadway following natural lie of land a “building” – whether construction certificate required – Environmental Planning and Assessment Act 1979 (NSW), ss 4, 81A(2). LAND LAW – easements – section 88B instruments – right of access – description of “right of access” in s 88B instrument did not include right to construct trafficable surface – whether instrument’s express terms varied statutory short form meaning of “right of access” – whether construction a trespass – Environmental Planning and Assessment Act 1979 (NSW), Sch 8, Pt 14. STATUTORY INTERPRETATION – contextual construction – use of dictionaries WORDS AND PHRASES – “building” – “erection” – “includes any structure” – “pass over”

REPRESENTATIVE PROCEEDINGS – representative proceedings brought by Plaintiff on behalf of passengers (Group Members) who paid for and travelled on European river cruises supplied by the defendant – a number of the cruises were seriously disrupted by high water levels on the rivers – Plaintiff seeks compensation for loss of value and damages for disappointment and distress for himself and Group Members – whether proceedings satisfactorily identified common questions of law or fact CONSUMER PROTECTION – Plaintiff relies on the Defendant’s failure to comply with the Consumer Guarantees in ss 60 and 61 of the Australian Consumer Law (ACL) – whether the “services” to be provided by the Defendant for the purposes of the Consumer Guarantees were co-extensive with the defendant’s contractual obligations – whether services included provision of pre-embarkation information to passengers as to river conditions – whether the services provided by the defendant on the cruises were fit for the particular purpose for which Plaintiff and Group Members acquired them (ACL s 61(1)) – whether the services were not of a nature and quality as could reasonably be expected to achieve the result Plaintiff and Group Members wished the services to achieve (ACL s 61(2)) – whether primary Judge correctly applied the test for assessing compensation for lost value (ACL s 267(3)(b)) DAMAGES – whether Plaintiff and Group Members precluded from claiming damages for disappointment and distress by s 16 of the Civil Liability Act 2002 (NSW) (Civil Liability Act) – effect of s 275 of the ACL in picking up and applying the Civil Liability Act as a surrogate federal law – whether s 16 of the Civil Liability Act capable of applying to claims for non-economic loss where the claims arise from conduct outside Australia

CRIMINAL LAW – sentence – appeal – assault occasioning actual bodily harm – assault on taxi driver where applicant failed to pay fare – supplying a prohibited drug – street level dealer – where aggregate sentence of 19 months imposed to be served by way of intensive correction order – challenge by self-represented applicant to evidence relied upon by sentencing judge – assertions that applicant was a changed person now – challenge to ICO condition imposed by Community Corrections – whether length of ICO was manifestly excessive

SENTENCING – Sentencing procedure – Procedural fairness – Crown representative not heard on appropriateness of sentence imposed by sentencing judge – whether denial of procedural fairness to the Crown

CRIMINAL LAW – appeal – appeal against sentence – aggravated dangerous driving occasioning death – aggravated dangerous driving occasioning grievous bodily harm – manifest excess- objective seriousness – special circumstances

CORPORATIONS – voluntary administration – deed of company arrangement - application by deed administrators for leave to transfer shares in company under Corporations Act 2001 (Cth), s 444GA – whether transfer of shares would unfairly prejudice the interests of members of the company – where shares have no current residual value and there is no realistic prospect of the shares having any value in the future

CIVIL PROCEDURE – class action or representative proceedings – separate determination of question – separate determination of question of whether Supreme Court has power to make a common fund order in representative proceedings – removal of separate question to the Court of Appeal – whether removal of separate question to the Court of Appeal appropriate in the circumstances

APPEAL – appeal from the Local Court – claim for money advanced pursuant to a loan agreement – judgment ordered on the basis of restitution of money had and received – leave required for questions of mixed law and fact and interlocutory orders – no error demonstrated

CIVIL PROCEDURE – transfer of proceedings – application to transfer proceedings from the District Court to the Supreme Court – where notice of motion not finally determined – where pleadings in these proceedings may be deficient – where leave granted to file a further amended statement of claim – notice of motion stood over

CRIMINAL LAW – particular offences – offences against the person – homicide – murder – victim killed while driving motorcycle when accused struck victim in car from behind at high speed – where accused exhibited symptoms of psychosis – paranoid delusions and auditory hallucinations – where accused acted under delusions – special verdict of not guilty by reason of mental illness CRIMINAL LAW – general matters – criminal liability and capacity – defences – insanity or mental impairment – delusions concerning victim and control of actions of accused – whether accused so mentally impaired that she did not understand the quality and nature of her actions – whether criminally responsible – Mental Health (Forensic Provisions) Act 1990 (NSW), s 38(1)

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 not commenced within time prescribed by Act — No consent to extension of time — Whether sufficient cause shown — Deceased made statements in her Will, and otherwise, providing reasons for making no provision for the Plaintiff — Nature of relationship of the Plaintiff and the deceased — Estate comprises, at the date of hearing, only the deceased’s home in which the Defendant, the sole beneficiary, lived for many years — Competing claim of the Defendant — 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

CIVIL PROCEDURE — Parties — Necessary and proper — Whether joinder necessary — Rectification — Existing parties to contract do not wish to be joined — Existing parties to contract consent to be bound by orders — Joinder not necessary.

CONTRACT - Construction – Interpretation – profit distribution clause – whether obligation to distribute profit in excess of 12% EBIT to cost enlivened – whether first defendant has calculated its profit on the same basis as in the relevant bid template - whether distribution of profit would have caused adjustment of integer relevant to income entitlement from government

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Where a costs order reflecting the ultimate outcome of the case would not be more desirable than a fair apportionment of costs in light of the success and failure of particular issues

WORKERS COMPENSATION – Administrative Law – whether error in Medical Assessment Certificate – whether Medical Appeal Panel asked itself the wrong question – whether Medical Appeal Panel acted beyond jurisdiction – no error disclosed – Summons dismissed.

EQUITY – Trusts and trustees – Breaches of trust – Misappropriation of trust property COSTS – Party/Party – General rule that costs follow the event – Application of the rule and discretion – Where the claim succeeded against one defendant on a point that was not raised until the hearing

CIVIL PROCEDURE – Representative proceedings – Settlement or discontinuance – Court approval – Reasonableness of total amounts – Reasonableness of legal costs – Reasonableness of funding fee – Reasonableness between group members – Group members’ objections to class definition – Confidentiality of material supporting settlement approval application

DEFAMATION – defences – justification – application at close of evidence to have defence taken from the jury – whether the determination of such an application should be deferred and a verdict taken first – consideration of r 29.11 of the UCPR – whether evidence reasonably capable of establishing the substantial truth of plaintiff’s imputations DEFAMATION – defences – contextual truth – application to have defence taken from the jury after rulings given as to defence of justification and after special verdict taken on questions as to defamatory meaning and defence of justification – whether evidence capable of satisfying the statutory test in those circumstances

PRACTICE AND PROCEDURE – whether separate question ought be ordered – second defendant admits liability subject to limitation defence – question not yet formulated – directions made

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW) – alleged error of law on the face of the record – whether chain of reasoning sufficiently exposed – whether s 126 complied with – amended summons dismissed

COSTS – costs reserved

POSSESSION – commercial lease – agreement to lease – child care statutory framework – approvals for child care services – credibility of witness – whether a valid lease existed – pre-conditions within agreement to lease – construction of clauses within agreement to lease – principles regarding construction of a commercial contract – words within clause may be corrected to avoid absurdity – pre-conditions of the agreement to lease were satisfied – alternative submission – the defendant waived its right to insist on satisfactions of pre-conditions in agreement to lease before the lease was registered – the defendant breached the agreement to lease – no verbal agreement found regarding no payment of rent until approval was received – a valid lease existed which was operative from the date of registration – breaches of the lease by the defendant – failure to pay rent – breach of covenants as to use – failure to comply with laws regarding use of the premises – the plaintiff’s entitlement to relief – plaintiff entitled to possession of the premises – plaintiff entitled to rental arrears – plaintiff entitled to mesne profits – plaintiff claimed further damages – claims by the defendant – defendant not entitled to damages nor compensation for fit-out expenses – nature of child care operation did not permit the defendant to occupy the premises without paying rent – directions – costs are reserved

CRIMINAL LAW – application to discharge jury – evidence upon which inferences could be drawn that the defendant had committed a prior criminal act – whether evidence relevant – whether evidence adduced for tendency reason – whether evidence should be excluded under s 137 for being unfairly prejudicial – whether any risk of unfair prejudice can be sufficiently cured by jury direction

CRIMINAL LAW – appeal from the Local Court – commencement of summary proceedings – no leave of Registrar sought to file Court Attendance Notices in registry other than listed registry – whether failure to comply with rule 8.7 of the Local Court Rules 2009 (NSW) leads to invalidation of the commencement of proceedings – relevance of limitation period – appeal dismissed

HIGH RISK OFFENDER – Terrorism Allegation – Factual Analysis – no issue of principle – ESO issued

LAND & ENVIRONMENT – where respondent issued appellants with notice preventing appellants from keeping more than two dogs on property – where respondent issued appellants with orders requiring removal of certain structures and advertisements – where respondent brought proceedings against appellants for failure to comply with notice and orders – where primary judge ordered compliance within 60 days – where appellants appealed primary judge’s decision – whether respondent had jurisdiction to issue notice and orders – whether respondent had standing to bring enforcement proceedings – whether evidence before primary judge supported the respondent’s claims – whether primary judge failed to consider appellants’ evidence

CRIME – evidence – hearsay – accused giving evidence in chief as to his understanding of certain events outside his direct knowledge in order to explain his later acts – application by Crown to limit the use of the evidence – consideration of direction that would have to be given to the jury if ruling made – prejudice to accused

DEFAMATION – pleading – where publication pleaded as a collection of separate publications published over a period of time on the internet – no presumption of publication to a single reader

CIVIL PROCEDURE – default judgment

CHARITABLE TRUSTS – application for approval of the settlement of charitable trust proceedings – Attorney General consents to proposed settlement – whether or not the settlement should be approved.

PRACTICE AND PROCEDURE – the same plaintiffs bring two sets of proceedings against the same defendants – proceedings are prima facie vexatious – plaintiffs agree to stay of the earlier proceedings – whether any determinations should take place in the first proceedings before the stay is imposed. DECLARATIONS – issues as to whether one of the defendants has been served in the earlier proceedings – admission made by the plaintiffs that he was not served – whether a declaration he was not served should be made. LOCUS STANDI – whether unserved defendants have a right of appearance on applications to extend time for service process.

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (“SOP Act”) – payment claims – validity of payment claim – supporting statement under SOP Act, s 13(7) and (9) – whether validity of payment claim requires that the supporting statement be “made” on the same day as the payment claim – whether validity of payment claim requires that the supporting statement declare that all subcontractors have been paid up to the date on which the payment claim is “served” BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (“SOP Act”) – adjudication of payment claims – scope and parameter of payment claim – allowances made by adjudicator that were not raised in the payment claim – whether the adjudicator erred in making allowances not raised in payment claim – whether the adjudicator exceeded their jurisdiction in making allowances

COSTS — specified gross sum costs order sought by defendant instead of assessed costs — Civil Procedure Act 2005, s 98(4)(c) — where cost and delay of assessment would not be warranted — reasonable amount sought — gross sum costs order made

CIVIL PROCEDURE – interim preservation – search orders – circumstances in which leave may be given to inspect documents seized pursuant to search orders – whether to grant access to plaintiffs to documents obtained on execution of search orders – whether Court’s discretion to grant access to such documents governed by nature and purpose of search orders – whether permitting access to documents would subvert the purpose of a search order to that of an investigatory tool

COSTS – appropriate principles and considerations – lump sum or gross costs order – whether lump sum costs order should be made – whether unnecessary ex parte application for freezing orders should affect appropriate discount to lump sum or gross costs order

EQUITY – knowing receipt of property to which fiduciary obligations attached – test of Barnes v Addy or test of knew or ought to have known – requisite content of knowledge – whether Second Defendant knew or ought to have known of First Defendant’s fraud or bank accounts

COSTS — party/party — bases of quantification — costs on an ordinary basis up to and including date of valid offer of compromise — costs on an indemnity basis after that date — no point of principle

SUCCESSION – Family provision and maintenance – Whether adequate provision for proper maintenance, education and advancement in life had not been made for the plaintiff by the deceased in her will – Held that adequate provision had been made – Application dismissed

COSTS — party/party — bases of quantification — indemnity basis — application by successful defendants for indemnity costs — not unreasonable for plaintiff to continue proceedings — offers of compromise made by defendants were vague and unclear — no basis for award of exemplary damages — indemnity costs not awarded

SUCCESSION – Contested probate – Testamentary capacity – Joint hearing of challenges to respective wills of a married couple – Where each will-maker suffered some form of mental illness - Testamentary capacity found to exist at time of execution of each will SUCCESSION – Contested probate – Testamentary capacity – Whether deceased was able to comprehend and appreciate claims to which deceased ought to have given effect – Extent of knowledge of estate property required for testamentary capacity – Testatrix not actively involved in the operation of family business – Will a rational, measured response to testatrix’s perspective of family tensions – Testatrix found to have testamentary capacity SUCCESSION – Contested probate – Testamentary capacity – Whether deceased suffering from insane delusions that affected provisions of will – Where testator suffered from or hallucinations –– Will showed rational, measured response to testator’s perspective of family tensions – Testator found to have testamentary capacity

ESTOPPEL – Estoppel by convention – Mutual assumption as to the manner in which dividends distributed and accounted for in books of account CIVIL PROCEDURE – Summary judgment – Whether primary judge erred in rejecting that there was an arguable defence of conventional estoppel – Whether high degree of certainty about ultimate outcome of the proceeding CIVIL PROCEDURE – Court of Appeal – Leave to appeal

SENTENCE – applicant entered plea of guilty to an offence contrary to ss 25(2) and 26 of the Drug Misuse and Trafficking Act 1985 (NSW) – applicant entered plea of guilty to s 7(1) of the Firearms Act 1996 (NSW) – whether the sentencing judge erred in application of the standard non-parole period – whether the sentencing judge erred in his finding of the objective seriousness of the offending – whether the sentencing judge failed to have regard to the parity principle

CRIMINAL LAW – sentence appeal – supply greater than indictable quantity offences – dealing with property suspected of being proceeds of crime – whether the sentencing judge erred by failing to appropriately regard and allow a sufficient discount – applicant’s childhood disadvantage – whether the sentencing judge erred by failing to have appropriate regard to prospects of rehabilitation – whether the sentence is unreasonably or plainly unjust – circumstances of offending – personal circumstances – loss of father and mother – migration to Australia – straightened financial circumstances – no genuine remorse – no profound childhood deprivation – findings open to sentencing judge

CRIME – conviction appeal – applicant convicted of being armed with weapon with intent to commit indictable offence of intimidation – applicant suspected of having attempted a break and enter at the victim’s premises – applicant relied on self-defence – whether conviction inconsistent with acquittal for break and enter – whether verdict unreasonable

CRIMINAL LAW – Crown appeal against sentence – 19 domestic violence offences committed against wife and daughter over six year period – whether sentence manifestly inadequate – objective seriousness of offending high – offender’s strong subjective case – indicative sentences suggestive of error – Crown appeal allowed – offender resentenced.

CRIMINAL LAW – Sentence – Appeal – Where sentence was accumulated on existing sentence served following a revocation of parole – Whether sentencing judge erred in imposing a non-parole period of 77.2% of the total effective sentence as opposed to 75% – Whether the sentencing judge failed to consider totality – Whether sentencing judge was required to give reasons for the imposition of a non-parole period greater than 75% of the total sentence – Where sentencing judge specifically referred to the need to have regard to totality – Where sentencing judge was aware of the relevant custodial history – Where there had been an exchange between the sentencing judge and counsel regarding the commencement date of any sentence to be imposed – Clear inference that the non-parole period which was imposed was intended – No error established – Appeal dismissed.