Cases and authorities

LAND LAW – caveats – where the nature of the claimed interest is uncertain on its face – deficiency in caveat cannot be overcome by s 74L of the Real Property Act 1900 (NSW) or by orders permitting the amendment of the caveat – inappropriate to grant leave to lodge a further caveat under s 74O of the Real Property Act 1900 (NSW) where the interest to be claimed in a fresh caveat would not be in respect of the same estate, interest or right

CIVIL PROCEDURE – self-represented litigant – summons – appeal from Local Court – whether the plaintiff has complied with the Registrar’s orders – transcript not yet available but ordered – Uniform Civil Procedure Rules 2005 (NSW) – rule 50.14 – evidence before the lower court that the plaintiff wishes to be considered on appeal

CIVIL PROCEDURE – Application for leave to proceed - proceedings commenced in NSW - served overseas - arguable case - forum whether leave should be granted

CIVIL PROCEDURE – Interlocutory applications – ex parte hearing – Interim injunctive relief sought in identical form to that sought in Summons on a final basis – Where applicant previously commenced proceedings in the Common Law Division and in the Equity Division of the Supreme Court in respect of the same subject matter – Duty of disclosure of prior proceedings; HELD: Interim ex parte relief refused.

EVIDENCE – application by accused to strike out evidence-in-chief of a former police officer – Evidence Act 1995, s 33 not applicable – where it was asserted that witness refreshed his memory from documents without leave – Evidence Act 1995, s 32 not applicable – notice of motion dismissed

EVIDENCE – admissibility of plan drawn of crime scene – no question of principle

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court - “special federal matter” – application by trustee in bankruptcy for appointment of trustees for sale – whether transfer from bankrupt to his former wife is voidable as against trustee

MENTAL HEALTH - confinement and restraint of mentally ill persons and similar orders – where a declaration is sought that the plaintiff is not a mentally ill person – where the plaintiff contends that her detention under the Mental Health Act was unlawful

INSURANCE – Liability insurance – management liability policy – cover for employment practice breach – where employee made claim for constructive dismissal – where that claim settled at mediation – whether the settlement was reasonable – whether there has been a loss for the purposes of the policy – whether any exclusions enlivened

LAND LAW – leases – agreement for lease – whether oral agreement concluded – no agreement established – not necessary to consider whether acts of part performance give rise to enforceable right to grant of lease

ADMINISTRATIVE LAW – judicial review – validity of decision – whether deceased was entitled to compensation for permanent impairment pursuant to the Workers Compensation Act 1987 (NSW) in circumstances where death followed inevitably and within a few minutes of injury STATUTORY INTERPRETATION – meaning of “permanent impairment” – Workers Compensation Act 1987 (NSW), s 66 WORDS AND PHRASES – “permanent impairment” – Workers Compensation Act 1987 (NSW), s 66 WORKERS COMPENSATION – entitlement to compensation for permanent impairment – Workers Compensation Act 1987 (NSW), s 66

EVIDENCE – hearsay – criminal proceedings – exceptions – maker available – evidence fresh in witness’ memory

CIVIL PROCEDURE – Summons seeking order of restitution – freezing order of assets – strong prima facie case of fraud – “gross dishonesty” – exceptional category – necessary ingredients established – balance of convenience satisfied – undertaking as to damages

EVIDENCE – Admissibility – Where indication given by the Crown immediately prior to the close of the Crown case of an intention to tender additional material – Where such indication constituted the first notice to the accused of such intention – Whether evidence ought be excluded – Whether procedurally unfair – Procedural unfairness sufficient to create a danger of unfair prejudice – Evidence rejected

EQUITY – Trusts and trustees – Judicial advice EQUITY – Special administrator – Grant of additional powers to plaintiffs as special administrators of deceased estate

SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult adopted child of the deceased, makes a claim for a family provision order by way of additional provision out of the estate of the deceased – No dispute as to the Plaintiff’s eligibility as an adopted child of the deceased – Deceased divided estate into percentage shares – Plaintiff received 10 per cent under the deceased’s last Will – Modest estate in value, comprising cash – Only one of the other beneficiaries advanced competing financial claim – Other beneficiaries named in the Will of the deceased rely upon competing claim as chosen objects of testamentary bounty – Two different written and signed statements by the deceased providing reasons for the provision made for the Plaintiff – Plaintiff and deceased estranged at the date of death – Period of estrangement about 2 years – Whether estrangement, by itself, terminates obligation of parent towards a child in financial need – Plaintiff has limited income and no savings – Plaintiff suffers various health conditions – Some provision made by deceased in her lifetime for the Plaintiff – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made

LAND LAW – Torrens title – exceptions to indefeasibility – fraud – where purchasers seek specific performance of contract for sale of land – where vendor then transfers land to company of which his brother was sole director purportedly in accordance with consent judgment obtained by another, related company upon non-repayment of alleged secured loan – whether secured loan existed – whether fraud brought home to transferee company CIVIL PROCEDURE – Court of Appeal – application to receive additional evidence – where expert reports available at or could have obtained before trial

ENVIRONMENT AND PLANNING – Land and Environment Court – jurisdiction and powers – Commissioners – court constituted by a judge assisted by a Commissioner – language of judgment indicative of joint decision-making – Commissioners not to adjudicate – whether judgment invalid on basis that Commissioner adjudicated on matter ENVIRONMENT AND PLANNING – Land and Environment Court – practice and procedure – Commissioners advising and assisting judges – scope and limits of Commissioners’ role WORDS AND PHRASES – “may assist and advise the Court, but shall not adjudicate on any matter” – Land and Environment Court Act 1979 (NSW), s 37

CIVIL PROCEDURE – adjournment – hearing of appeal – appellants’ application – relevant factors – application made week before hearing – claimed ill health and competing responsibilities – appellant without legal representation – adjournment sought to brief counsel – whether means to pay for representation recently acquired – prejudice to respondents

TORTS – negligence – respondent slipped and fell on wet patch in shopping centre – whether probability theory supported finding that wet patch was present when cleaner approached the area TORTS – negligence – whether cleaning contract informed or determined scope of duty of care owed to patrons – whether a cleaner exercising reasonable care should have detected the wet patch EVIDENCE – events captured by CCTV footage – ability of appellate court to draw inferences from CCTV footage – consideration of the limitations of CCTV evidence

CRIME – Crown sentence appeal – possession and transmission of child abuse material – male applicant posed as 18 year old female to obtain explicit images from young teenage boys – applicant also in possession of over 500 child abuse files – applicant had good prior character and prospects of rehabilitation – sentenced to 17 months imprisonment with minimum period to serve of 8 months – whether sentencing judge erred in assessment of objective seriousness – judge’s specification of objective seriousness not indicative of error – whether judge failed to comply with s 19AC(1) Crimes Act 1914 (Cth) – judge did fail to comply with s 19AC but not apparent that failure affected sentence – ground upheld – whether sentences manifestly inadequate – sentence very lenient but not manifestly inadequate – appeal dismissed

CIVIL PROCEDURE - Application for further orders - previous orders for taking evidence “in the State” - interstate witnesses - question of interpretation - employees of business based in NSW – willingness to co-operate – evidence ordered to be taken by affidavit

CIVIL PROCEDURE – Application for order for payment by instalment of judgment debt – whether an instalment order should be made - court’s discretion – financial restructure – earning capacity – suspended builder’s licence – amount offered – interests of justice

PRACTICE AND PROCEDURE – pleadings – application for leave to file cross claim – leave to file cross claim refused because proposed claims untenable and bound to fail – clear that legal easements were validly created in 1839 – entitlement to set aside orders made ex parte resides in the person not given the opportunity to be heard – right is personal not proprietary in nature – cross-claimants lack standing to seek to set aside orders made in earlier proceedings

CIVIL PROCEDURE – pleadings – 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 pleading of defence adequate to avoid plaintiff being taken by surprise – presumption of regularity relieved defendant from having to set out compliance with statutory authority – UCPR r 14.11 – need for plaintiff to file Reply - whether s 42 Civil Liability Act 2002 (NSW) relevant to claim in nuisance

CONTRACTS — Construction — Interpretation — Whether the purchaser was required to pay the vendor the amount of GST payable by the vendor in respect of the taxable supply of the property — the meaning of “inclusive” and “exclusive” of GST in a contract for the sale of land — the proper construction of the contract does not require the purchaser to pay the GST payable by the vendor CONTRACTS — Particular parties — vendor and purchaser CONTRACTS — general contractual principles — construction and interpretation of contracts CONTRACTS — Construction — Extrinsic evidence — Prior negotiations CONTRACTS — Rectification — whether the plaintiff is entitled to rectification of the contract — the plaintiff is entitled to rectification of the contract CONTRACTS — Rectification — Intention — Common intention — whether the parties were shown to have had a "common intention" that was not reflected in the contract — whether the vendor and purchaser entered into the contract under a common mistake that the contract required the purchaser to pay the GST payable on the purchase price of the property

EQUITY – fiduciary duties – conflict of interest and duty – where two senior employees give notice of resignation – where employer subsequently agreed to novation of part of existing contract with client to company in which the two employees had an interest – whether employees preferred their personal interests to the interests of their employer – whether employees improperly diverted part of their employer’s business when in a position of conflict CORPORATIONS – Corporations Act 2001 (Cth), s 182 – whether employees improperly used their position to divert part of their employer’s business PRACTICE AND PROCEDURE – pleadings and particulars – whether the defence of informed consent was properly pleaded – whether new point could be raised on appeal EQUITY – fiduciary duties – breach – causation – whether sufficient causal relationship between the alleged breach of fiduciary duties and profit earned by employees in relation to new contract obtained after competitive tender process TORTS – liability in deceit – whether employee found liable in deceit in respect of representations that were not pleaded or raised at trial EQUITY – remedies – calculation of damages in deceit – whether errors in assessment of damages

CORPORATIONS – application for ASIC to reinstate registration of companies under s 601AH(2) of the Corporations Act 2001 (Cth) – where intent of reinstatement is to bring about stamp duty position which would have existed had transactions been implemented as originally intended – whether it is just that the companies’ registration be reinstated.

CORPORATIONS – winding up – application for appointment of provisional liquidator – whether sole director has standing to bring application for winding up order of company – where sole director of company no longer wishes to act in that capacity – where company is likely to be insolvent – where reasonable prospect that winding up order would be made – whether provisional liquidator should be appointed.

CORPORATIONS – application under s 588FM of the Corporations Act 2001 (Cth) to fix registration time for security interests registered in the register established under the Personal Property Securities Act 2009 (Cth) – whether failure to register security interest was accidental or due to inadvertence – whether failure to register interest earlier prejudiced the position of creditors or shareholders

COSTS – Party/Party – Exceptions to general rule that costs follow the event – court did not rule on alternative ground relied on by applicants for a stay of proceeding – whether “some other order” for costs ought to be made

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether consent of birth parents ought to be dispensed with – where child in care of approved carers with whom she has an established relationship – held, in child’s best interests to make consent dispense order so as to allow adoption order to be made. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plans – importance of birth family contact in mitigating risks of identity issues potentially associated with adoption. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent – dispensing with consent – where adoptive applicants are approved carers with whom child has an established relationship – where Children’s Court has allocated parental responsibility to Minister to age 18 – where adoption would promote child’s best interests and is clearly preferable to any other order that could be made with respect to care of child – held, in child’s best interests to make consent dispense orders so as to permit adoption order to be made. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – names – assumption of adoptive parents’ surname is a fundamental feature of adoption and a manifestation of its benefits – inclusion of former surnames as middle names is in child’s interests as means of preserving the child’s identity.

DEFAMATION – imputations – whether reasonably capable of being conveyed – no question of principle

CRIMINAL LAW – procedure – application for change of venue from regional centre to Sydney – whether balance of convenience falls towards Sydney – whether logistical impositions experienced by accused and defence legal team warrant change in venue – discussion of other relevant factors – trial date and venue confirmed – notice of motion dismissed

JURISDICTION – Parens patriae – Power of the Court to permit medical treatment of a minor diagnosed with kidney cancer – Where proposed treatment could well require blood transfusions during the course of surgery – Where parents of the child subscribe to tenets of Jehovah’s Witnesses religion and oppose the use of blood transfusions during surgery – Orders made in accordance with those sought by the Applicant.

CIVIL PROCEDURE – Pleadings – Fraud – Where Plaintiff claimed that a determination made following an adjudication (“the Determination”) was obtained in circumstances of fraud and sought to have the Determination set aside – Where Plaintiff advanced a different case to that articulated in its List Statement – Onus on the party alleging fraud to strictly articulate its claim – Consideration of the application of “pleadings” in the Technology and Construction List of the Supreme Court; HELD: Plaintiff failed to establish, in accordance with the onus placed upon it, that the Determination was obtained fraudulently by reason of the matters articulated in its List Statement, and the other grounds asserted had not been articulated in the List Statement.

JURISDICTION – Jurisdiction of the District Court – District Court Proceedings commenced in respect of fees said to be due pursuant to advertising contracts entered into by the parties – Defendant claimed District Court did not have jurisdiction to hear the matter as it arose from a “commercial transaction” – Plaintiffs sought a transfer of the Proceedings to the Supreme Court, and, once transferred, that it be remitted back to the District Court – District Court Proceedings fixed for hearing in September 2018; s 44 of the District Court Act 1973 (NSW) considered – Whether or not the Proceedings would have been assigned to the Common Law Division of the Supreme Court on 2 February 1998 – Whether or not the Proceedings arose from a “commercial transaction” within the meaning of Rule 14.2(1)(a) of the Supreme Court Rules as at 2 February 1998 – The NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd [2017] NSWSC 1194, considered and followed; HELD: Proceedings arose from a “commercial transaction” and would not have been assigned to the Common Law Division of the Supreme Court on 2 February 1998 – Pursuant to s 140 of the Civil Procedure Act 2005 (NSW) (“CPA”), Proceedings transferred to the Supreme Court – Proceedings could not be transferred back to the District Court pursuant to s 146(1) of the CPA. STATUTORY INTERPRETATION – The effect of disjunctive ‘or’ in Rule 14.2(1)(a) of the Supreme Court Rules as at 2 February 1998; HELD: “commercial transaction” not restricted or to be read down by “in trade or commerce” in Rule 14.2(1)(b) of the Supreme Court Rules as at 2 February 1998; discussion of principles of statutory interpretation.

CIVIL PROCEDURE – Application for further stay of a writ of possession – third appointment for eviction – first appointment misfired – chance of refinancing mortgage – query defence under Farm Debt Mediation Act 1994 (NSW) – whether the defendant has a fair and arguable defence – not addressed in affidavit – not very strong – whether debt is a farm debt and whether Reavill Farm Pty Ltd is a farmer as defined – not persuaded – bank not acting unreasonably – bank made undertaking

CIVIL PROCEDURE – pleadings – reasonable prospects of success – professional negligence claim - where plaintiff had two opportunities to plead a reasonable cause of action – proceedings dismissed

CRIMINAL LAW – conspiracy to defraud Commonwealth – false declaration of income – money transferred to foreign bank accounts in Vanuatu to avoid detection – sentencing considerations – need for general deterrence and punishment – relevance of amount of under-payment of tax of $2.6 million CRIMINAL LAW – conspiracy to deal with proceeds of crime – monies transferred under guise of sham loan agreement – additional criminality associated with dealing

PRACTICE & PROCEDURE – motion to strike out proceedings – exceptional to disentitle plaintiff to day in court – pleading embarrassing, frivolous, vexatious and an abuse of process – no proper cause of action – no possibility of success – proceedings struck out

MALICIOUS PROSECUTION – identity of prosecutors – “third party prosecutors” according to the principle in Brain – expert witness immunity – proof of the elements of the tort – application of the objective and subjective tests for proof of the absence of reasonable and probable cause – legal and ethical duties of a Crown Prosecutor – proof of malice – matters from which malice may be inferred ISSUE ESTOPPEL – identity of issue – identity of parties ABUSE OF PROCESS

CONTRACTS – formation – conditional promises – whether cut-off date under contract extended – whether agreement to extend cut-off date conditional on payments under an agreed budget being paid by a particular time - whether seller entitled to terminate on basis that payments not so paid EQUITY – equitable remedies – specific performance – share purchase agreement – where shares not freely or readily available on the open market – whether damages an adequate remedy – where parties have fallen out – where ongoing curial supervision likely – whether specific performance should be ordered

PROFESSIONS AND TRADES – lawyers – duties and liabilities – solicitor and client – retainer – existence of retainer – whether plaintiffs’ solicitors authorised to commence proceedings – whether proceedings should be dismissed by reason of want of authority CORPORATIONS – directors and officers – authority and powers – whether sole director entitled to give instructions to commence proceedings – whether there was an emergency for the purposes of the plaintiffs’ constitution COSTS – party/party – Court’s discretion – whether gross sum should be specified under s 98(4) of the Civil Procedure Act – where recovery of costs unlikely – where defendant now acting for himself - where assessment of costs likely to be vexed

CIVIL PROCEDURE – referral from District Court to Supreme Court for approval of settlement – personal injury proceedings on behalf of person under legal incapacity – whether proposed settlement is in the best interests of the incapacitated plaintiff – settlement approved

HIGH RISK OFFENDER – application for appointment of two psychiatrists/psychologists pursuant to s 15(4) of Crimes (High Risk Offenders) Act 2006 (NSW) – expiration of current custody unknown – whether highly limited preliminary order premature – order made

ADMINISTRATIVE LAW – judicial review – operation of s 5 of Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) – asserted error of Review Panel in failing to apply provisions of Motor Accidents Compensation Act 1999 (NSW) in assessing “equivalent impairment” under Lifetime Care and Support Guidelines – no legal error established – summons dismissed

CIVIL PROCEDURE – application for dismissal of proceedings – where one contract compels three of the four parties to this interlocutory application to litigate their substantive disputes only in England – where a second contract consisting of a different permutation of three of the four parties invokes the jurisdiction of this court – whether the English exclusive jurisdiction clause should be enforced to trump the substantive proceedings in this court – strong presumption that exclusive jurisdiction clauses be given effect as an aspect of the parties’ bargain – matters of cost and inconvenience to the direct parties irrelevant – necessary to point to detriment to third parties or public policy to invert this position – such strong cause not shown – proceedings dismissed as between the parties to the exclusive jurisdiction clause.

CIVIL PROCEDURE – judgments and orders – consent orders – approach of court in making consent orders – requirement that court be satisfied of grounds for and appropriateness of orders – consent orders for setting aside a decision of the Workers’ Compensation Commission Appeals Panel – error of law not conceded by first defendant – requirement that Court identify error of law – Panel erred in law by failing to advert to plaintiff’s request for medical re-examination and oral hearing – orders granted by consent

PARTNERSHIPS AND JOINT VENTURES – termination of partnership – date of termination – Partnership Act 1892 (NSW), s 32(b) - “single adventure or undertaking” defined by the agreement between the partners – partnership terminated following the sale of units in a property development according to a Joint Venture Agreement – termination date not affected by Deed of Settlement and Release PARTNERSHIPS AND JOINT VENTURES – valuation of property – date of valuation – whether property to be valued at the date of the Joint Venture Agreement