Cases and authorities

EQUITY – Whether solicitor on record should be restrained from acting for the First and Second Defendants in proceedings alleging undue influence and oppressive conduct on the part of the First Defendant – Whether solicitor in possession of confidential information of the Plaintiffs – Whether solicitor possessed knowledge of Plaintiffs’ character and tendencies – Whether a fair-minded reasonably informed member of the public would regard proper administration of justice as requiring the solicitor to be restrained from acting; HELD: Solicitor restrained from continuing to act for the First and Second Defendants.

PRACTICE AND PROCEDURE – seeking order for examination of the plaintiff – ill health and undergoing treatment – facility not in agreement – application – whether the facility manager should be required by the court to give evidence to explain the change in attitude – inappropriate – facility not a party to the proceedings – informal letter or approach is irregular – common sense – plaintiff need to do all that they can – overriding purpose in civil procedure – solicitor to attend – provide explanation of compliance with orders

EVIDENCE – voir dire – evidence taken on voir dire to be admitted as evidence in the trial – judge alone trial – no point of principle

HIGH RISK OFFENDER – serious sex offender – extended supervision orders – whether Court satisfied to high degree of probability that offender poses unacceptable risk of committing another serious offence if not kept under supervision under order – where defendant diagnosed with Asperger’s syndrome – where defendant had sexual assault and indecent assault convictions – where defendant of well above average risk of reoffending – extended supervision order granted for period of four years.

CIVIL PROCEDURE — Subpoenas — Objection to production of documents or things — Client legal privilege — Whether to permit inspection of documents over which privilege is claimed

COSTS – appropriate principles and considerations – lump sum or gross costs order – whether lump sum costs order should be made – reasonableness of costs incurred – appropriate discount to lump sum or gross costs order

LAND LAW — Caveats — Caveatable interest — What constitutes a caveatable interest — Interest in proceeds of sale not an interest in land

COSTS – claim of oppression – plaintiffs establish oppression but fail on relief because they failed to establish any economic consequences from the conduct complained of – whether costs should follow the event or an apportionment made – offers of compromise made at an early stage that there be judgment for the defendants with no order as to costs; HELD costs should follow the event – no order for indemnity costs based on the offers of compromise because they did not involve a genuine offer of compromise

BUILDING AND CONSTRUCTION – ss 18B, 18D of the Home Building Act 1989 (NSW) – statutory warranties as to quality of home building work – where plasterboarding, air conditioning and acoustic installation work in apartments is defective – whether the defendant builder did defective building work – the defendant suspended building work under the Building and Construction Industry (Security of Payment) Act 1999 (NSW) before being excluded from the site and not being allowed to complete the work – whether the defects are ‘temporary disconformities’ and therefore not in breach of the implied warranties contained in s 18B – loss or damage occasioned by defective building work is to be assessed by reference to established contractual principles of breach and causation – whether the plaintiffs’ loss was caused by the defendant’s building work – STATUTORY CONSTRUCTION – s 18D(1) – meaning of the phrase ‘the same rights as the person’s predecessor in title in respect of the statutory warranty’ – whether s 18D gives a successor in title no rights where loss was not suffered by the predecessor in title caused by breaches of s 18B – DAMAGES – rule against double compensation – the plaintiffs entered into a Deed of Settlement with the developer’s home building insurer and received payment in respect of defective work to the apartments – concurrent claim – claims made against the defendant were made in the same terms as those against the developer’s insurer – whether plaintiffs have already been compensated for the loss which they allege was caused by the defendant; HELD plaintiffs failed to establish that defective work the subject of their claim was done by the defendant and the extent of the defects attributable to the defendant – defective work was not a temporary disconformity – the developer suffered no loss because it broke the chain of causation between any defective work done by the defendant and damage suffered by the developer, by taking the work out of the hands of the defendant – the right of the plaintiffs to sue the defendant for breach of the implied warranties is unaffected by the position between the developer and the defendant under their building contract

CRIME – sentencing – murder – where prisoner killed cellmate during lock-down – fourth murder committed by same offender – offender already serving two life sentences for previous murders – assessment of level of culpability – whether so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum penalty – relevance of previous offences – absence of any significant mitigating factors

DEED – proper construction – contractual restriction on rights and remedies

APPEALS – summons seeking leave to appeal dismissed – no issue of principle

CIVIL PROCEDURE – application for leave or extension of time to file and serve defence to first cross-claim – application for leave to file a proposed third cross-claim in the proceedings – whether pleadings precluded by way of issue estoppel or Anshun estoppel – whether withdrawal of admissions made in pleadings filed in relation to a 247A Corporations Acts 2001 (Cth) application – whether allowing the application would cause prejudice by wasted costs – whether the applicants lack bona fides – whether it amounts to an abuse of process

CIVIL PROCEDURE – Discovery – Objection to inspection – Legal professional privilege – Joint privilege – Implied waiver – Where proceedings commenced in respect of an agreement resolving proceedings commenced in 2006 (“the Agreement”) – Where Second Defendant claims that the partners of the law firm responsible for drafting the Agreement breached their duty towards her – Whether Second Defendant has waived her claim of privilege over documents held by her former solicitor; HELD: Claims advanced found to be inconsistent with the claim of privilege over documents held by her former solicitor, but that privilege was a joint privilege (of both defendants) and was not implicitly waived by the First Defendant. CIVIL PROCEDURE – Discovery – Objection to inspection – Legal professional privilege – Specific documents – Whether documents over which privilege has been claimed are privileged – Where documents are file notes of conversations between solicitors for the Defendants on the one hand, and the solicitor for the Plaintiff in earlier proceedings or a third person on the other; HELD: Such documents are not the subject of legal professional privilege.

CRIMINAL LAW – proceeds of crime – restraining orders

MENTAL HEALTH – forensic patient – application for interim extension order – defendant with schizoaffective disorder – grandiose delusions regarding attractiveness to women – threshold requirements – unacceptable risk of causing serious harm to others

CRIME – proceeds of crime – consent order for forfeiture of restrained property – where six month period has not elapsed – where person served with proceedings has made no application in respect of property – whether order can be made without that person’s consent

COMMON LAW – contempt of court – sentence – scurrilous conduct in the face of the court – deliberate breaches of court orders by publication of material the subject of non-publication orders – material published on a website – offending material remains on website following prosecution and finding of guilt – contemnor claims a right to publish material because of asserted “invalidity” of non-publication orders – claimed right to publish material as “political communication” - prior convictions for contempt of court – limited subjective case – no remorse or contrition – need for specific deterrence - importance of principle of general deterrence – importance of denunciation

EQUITY – Equitable interests in property – Claim by plaintiff to a one-half beneficial interest in real property and other assets pursuant to a document purportedly executed as a deed – Finding that defendants’ execution of the purported deed was not witnessed by the person who later signed the document as a witness – Held the document was not validly executed as a deed CONTRACTS – Formation – Whether the purported deed was enforceable as a contract entered into between the plaintiff and the defendants for good consideration – Held that the only consideration for the agreement recorded in the purported deed was past consideration and that the defendants’ subsequent conduct did not otherwise amount to acceptance of the purported deed – Held there was no implicit acceptance by the taking of a benefit under the purported deed DEEDS – Whether valid attestation of purported deed where person present at time of signing later attests in affidavit to the witnessing of the execution of the deed – Held it was a requirement for the valid execution of a deed that the attesting witness be present at the time of signing and sign as witness at that time AGENCY – Ostensible authority – Whether the plaintiff by his conduct held others out as authorised to negotiate or make representations on his behalf in relation to the use to be made of the document purportedly executed as a deed CONSUMER LAW – Cross-claim for relief in respect of alleged misleading or deceptive conduct by representation, made through the plaintiff’s agent(s), that document purportedly executed as a deed would be put “in a drawer” and used only as “security” – Alternatively, cross-claim for relief on the basis of unconscionable conduct in plaintiff now seeking to enforce the purported deed

CRIMINAL LAW – conviction appeal – five counts of non-consensual sexual intercourse – applicants acquitted of four counts but convicted of one – Crown case depended on finding of joint criminal enterprise – complainant’s evidence affected by her intoxicated state – Crown case dependent upon evidence of co-offender – conversation between witness and complainant unlawfully recorded – recorded conversation used in cross-examination of complainant – Crown provided copy of recorded conversation to complainant during her cross-examination – whether Crown’s conduct caused a substantial miscarriage of justice – whether failure to discharge jury gave rise to a substantial miscarriage of justice – whether trial judge erred in failing to grant a permanent stay of proceedings – whether verdict of jury unreasonable and cannot be supported having regard to the evidence – whether insufficient evidence to establish joint criminal enterprise – appeals dismissed.

CRIME – Crown sentence appeal – drugs and firearms supply offences – s 25A of Drug Misuse and Trafficking Act does apply to offences where offender did not actually obtain financial or material reward – s 25A does apply to offences where actual financial or material reward did not occur – whether judge erred in assessment of objective seriousness of ongoing drug supply offences – not necessary to determine – whether sentence manifestly inadequate – gross criminality inherent in offending could not be reflected in sentence imposed – subjective circumstances did not warrant such leniency – ground upheld – appeal allowed

CIVIL PROCEDURE – settlement approval – no point of principle – orders made

CIVIL PROCEDURE — Stay of proceedings — Pending appeal — Multiple applications — No issue of principle

BUILDING AND CONSTRUCTION – agreement to develop property at Terrigal - agreement to share any profit – whether any profit yet achieved – whether like agreement exists in relation to further property at East Gosford CONTRACTS — formation — consideration – where parties entered oral agreement to develop property and share profit – where agreement confirmed by email – where parties subsequently executed formal building contract – whether formal contract is binding – whether formal contract is a sham COMMERCE – misleading or deceptive conduct —whether directors of builder made representations that were misleading or deceptive – whether representee understood those representations were made on behalf of company of which representor a director –whether representations relied on

CIVIL PROCEDURE – separate determination of questions – where appropriate – provisional liquidator of defendant sought control of assets subject to restraining orders obtained by plaintiff – order sought by defendant but resisted by plaintiff – where inconsistency asserted between Proceeds of Crime Act (Cth) and Corporations Act (Cth) - several factual inquiries necessarily anterior to determination of proposed separate question – duplication of issues at separate and final hearings – novelty of issues made appeal probable – separate determination refused

CIVIL PROCEDURE – application to set aside default judgment – where hearing complete – where applicant aware of proceedings at time of hearing – unexplained delay

CIVIL PROCEDURE – application for adjournment – delay – where affidavit unsworn – where material provided between 3am and 4am on the morning of the hearing

CORPORATIONS – winding up – order for termination of a winding up where company subject to a deed of company arrangement – where undertaking made to contribute further capital to the company – where entry into deed of company arrangement would result in better return to creditors than a liquidation – whether winding up should be terminated.

CONTRACTS – Construction and interpretation – Parol evidence rule – Prior negotiations – Subsequent conduct CONTRACTS – Termination – Election – Where a party’s conduct is consistent with both an election to affirm the contract and the reservation of a right to terminate CONTRACTS – Construction – Interpretation – Implicit limitation on contractual right that right be exercised within a reasonable time CONTRACTS – Termination – Consequences of termination – Whether claim for liquidated damages released by contractual provision CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – Opinions – Predictions – Whether the impugned conduct was misleading or deceptive – Causation and reliance

CORPORATIONS – Winding up – Practice and procedure – Application for stay – Where satisfactory explanation for why winding up order made in absence of company – Where, however, company not solvent – Where no prospects of disturbing costs orders which constitute part of company’s debts – Where other causes of action available to the company are highly speculative – Application refused CORPORATIONS – Winding up – Statutory demand – Defect in demand – Defect in address for service – No utility in setting aside when company plainly insolvent

JUDGMENTS AND ORDERS – no issue of principle

PROCEDURE – competence of appeal – applicant refused to seek leave to appeal – notice of appeal dismissed

SENTENCING – slip rule – applicant bailed after sentence imposed by sentencing judge – incorrect calculation of expiry date by Court after dismissing appeal – sentence corrected

CIVIL PROCEDURE – substituted service – where defendant on notice of prospect of proceedings being commenced and apparently ignoring communications as to service

CIVIL PROCEDURE – Optus alleges that it is a victim of a fraud perpetrated by the defendant – Optus wishes to consult its carrier records to obtain information regarding the defendant’s whereabouts – Telecommunications Act prohibits Optus from adopting that course and using or disclosing the information in its records – statutory exception applies where that use or disclosure is authorised by or under law – where those records are in the custody of the court pursuant to a subpoena – whether leave of the court granted to inspect documents produced under subpoena amounts to use by or under law – application to inspect granted.

EVIDENCE – relevance – police running sheet – no question of principle

EVIDENCE – admissibility of paper evidence bag – no question of principle

EVIDENCE – admissibility of photographs and cardboard from crime scene – no question of principle

EVIDENCE – relevance – provisional relevance – certificate relating to carpet and cardboard taken from crime scene – admitted provisionally pursuant to Evidence Act 1995, s 57

COSTS – proceedings between co-owners of property – application for appointment of trustee for sale – proceedings settled save as to costs – failure to reach agreement prior to proceedings not result of unreasonable conduct – much of evidence in support of application unnecessary – appropriate to order each party to bear own costs

PRACTICE & PROCEDURE – disposition of appeal proceedings – whether the proceedings before the Supreme Court should be determined conclusively by the making of consent orders – whether the proceedings should proceed in the Equity Division of the Supreme Court – the appropriate course is to treat the existing proceedings constituting an appeal from the NSW Civil and Administrative Tribunal as spent – question of costs – directions

PRACTICE AND PROCEDURE – application for strike out – r 14.28 Uniform Civil Procedure Rules 2005 (NSW) – whether a reasonable defence is disclosed – whether the defence has a tendency to cause prejudice, embarrassment or delay in the proceedings – whether the court may strike out pleadings – defences in defamation proceedings – whether the court should permit the defendant to re-plead the defence – defence of absolute privilege – defence of qualified privilege – defence of truth – defence of triviality – defence of honest opinion – absence of viable defence – whether it is inappropriate to make orders for discovery or interrogatories prior to the pleadings closing – defence struck out – defendant not permitted to re-plead

CONTRACT – Formation – offer and acceptance - agreement – remedies – debt – lawful termination – no service of default notice – express right to possession GUARANTEE AND INDEMNITY – guarantee agreement – maximum liability – whether the right to realise security is engaged – mortgage – finance agreement – terms and conditions – banks discretion – no obligation to loan If borrowers financial position has changed – act of default – winding up company – absence of financial default is irrelevant – without notice – bills matured account – obligation for borrowers to pay interest – banks remedies – amount due and payable and taking possession of property LAND LAW – Seeking possession of rural properties – company liquidated – default – mortgaged to the bank – bank enforcing security – cross-claim – guarantee – alterations – maximum liability – extension MEDIATION – Farm Debt Mediation Act 1994 (NSW) – loan was not in default – enforcement action – heads of agreement – no application to cross-claim

CIVIL PROCEDURE – Court of Appeal – Review of order of single judge of appeal – appellant seeks variation of orders made in relation to it providing security for the respondent’s costs of the 2017 Judicial Review Proceedings – appellant seeks variation on the basis of alleged changed circumstances since the making of the security for costs orders.

NEGLIGENCE – occupier’s liability – customer slipped and fell on wet surface of supermarket carpark – whether risk of harm was foreseeable – where store manager had described wet carpark as incident waiting to happen – whether risk of harm could be identified by reference to injury sustained NEGLIGENCE – contributory negligence – plaintiff slipped and fell when attending to his mobile phone – primary judge found no contributory negligence – challenge to findings that responding to mobile phone was momentary inattention with no causal connection to slip – appeal allowed in part and finding of 25% contributory negligence made

LIMITATION OF ACTIONS – applicant seeks extension of time to commence proceedings against a hospital claiming damages for personal injury – alleged negligence occurred in Western Australia – application governed by s 39 of the Limitation Act 2005 (WA) – whether solicitor’s knowledge of matters going to causation can be imputed to the applicant – whether primary Judge was correct to find that the applicant satisfied s 39(3) because she was not aware at the expiration of the limitation period that her injury was attributable to the conduct of the hospital – whether the period for which an extension was sought was no later than three years from when the applicant became aware or ought reasonably have become aware that her injury was attributable to the conduct of the hospital as required by s 39(4)

SENTENCING – mitigating factors – plea of guilty – aggravated break and enter – reckless wounding in company – aggregate sentence - whether the sentencing judge erred by failing to apply 5% discount for late plea – error apparent when indicative sentences were compared to those of co-offenders who did not plead – whether sentence manifestly excessive – applicant re-sentenced SENTENCING – appeal against sentence – break and enter – accessory after the fact to reckless wounding in company – whether aggregate sentence manifestly excessive - co-offenders – disparity between sentences – whether differences in reduction of statutory ratio resulted in justifiable grievance – whether differences in notional accumulation of indicative sentences evinced disparity

SENTENCING – appeal against sentence – aggravated dangerous driving occasioning grievous bodily harm – mitigating factors – no record of previous convictions – Crimes (Sentencing Procedure) Act s 21A(3)(e) – whether sentencing judge erred by failing to advert to the applicant’s record – whether sentencing judge erred in finding that the applicant’s conduct amounted to an “abandonment of responsibility” – moral culpability not mitigated by identification of absent aggravating factors – whether applicant suffered extra-curial punishment as a result of injuries sustained by applicant and his friends who were passengers in the vehicle – applicant re-sentenced

CRIME – sentence appeal – aggravated break and enter and commit serious indictable offence – sentenced to 3 years imprisonment with 1 year 9 months non-parole period –extensive criminal history and substance abuse problem – on bail at time of offence – sentence reduced for early guilty plea – whether judge erred by failing to adjourn pursuant to Crimes Sentencing Procedure Act 1999 (NSW) s 11 – clearly open to judge to decline to adjourn pursuant to s 11 – whether sentence manifestly excessive – sentencing statistics consistent with appellant’s sentence – cannot be said that sentence manifestly excessive

CORPORATIONS – managed investments – judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – where responsible entity sought judicial advice that it would be justified in distributing supplementary explanatory memorandum to unitholders – where responsible entity sought judicial advice that it would be justified in adjourning meeting of unitholders – whether advice sought should be given.