Cases and authorities

PRACTICE AND PROCEDURE – slip rule – error in consent orders – amended orders to be made

CONTRACT – assignment – deed purported to assign rights, title and interest in a car stacker to the plaintiff – at date of execution of deed, the defendant had no right, title or interest in the car stacker – deed of assignment expressed in present tense and not as an assignment of future property – assignment of car stacker ineffective. EQUITY – assignment of future interest – only enforceable in equity if consideration paid or executed – no such consideration paid or executed in full – no assignment in equity.

COSTS – proceedings for removal of caveats – caveators claim interests in the nature of charges – no evidence to support existence of charges – caveats maintained despite requests for removal – caveats withdrawn shortly after proceedings commenced – caveators’ conduct unreasonable – indemnity costs ordered

APPEAL – application for leave to appeal against costs order made in Local Court after application withdrawn – no error demonstrated – result not unreasonable or plainly unjust – leave refused

COSTS – application for leave pursuant to s 237 of the Corporations Act 2001 (Cth) – where successful applicants offered personal indemnities for the companies’ costs of the proceedings at a late stage in the application – whether Court will depart from general rule that costs follow the event – order stayed until final determination of derivative proceedings.

CORPORATIONS – application under s 75-41(3)(d) or s 75-43(4) of the Insolvency Practice Schedule (Corporations) for order that resolution to remove liquidator be treated as passed at meeting of creditors of company – where failure to pass that resolution was adverse to the interests of the creditors of the company as a whole – where failure to pass the resolution prejudiced, or is reasonably likely to prejudice, the interests of the creditor which voted against the proposal to an unreasonable extent – whether that resolution to remove liquidator should be treated as passed and order made for replacement liquidators to be appointed.

LAND LAW – leases – option to renew lease – alleged breaches of lease by lessee –prescribed notice under s 133E of Conveyancing Act not served – lessee seeks specific performance of obligations to grant new lease – lessor complains of continuing breaches by lessee – discretion to grant or withhold specific performance – specific performance granted LAND LAW – leases – rent – provision for review of rent – appointment of valuer to determine current market rent – valuer suggests procedure that departs from provisions of lease – parties agree to procedure and agree to be bound by valuer’s determination – variation of lease – estoppel by convention – valuer’s determination binding

INTEREST – interest up to judgment – Civil Procedure Act 2005, s 100 – whether interest up to judgment should run on any amount outstanding during the period from November 2013 to February 2015 when the proceedings were stayed as a result of non-payment by the plaintiff of a costs order in the first defendant’s favour – principles governing the award of interest up to judgment. COSTS – whether an order for costs should be made in favour of the second defendant – what order for costs should be made overall between the plaintiff and the first defendant – should the first defendant be ordered to pay the plaintiff’s costs on the party/party basis – should any order for costs be discounted on account of parts of the plaintiff’s claim covered by a Calderbank offer, and on account of parts of the plaintiff’s claim upon which it lost and which are severable from issues upon which the plaintiff was successful.

COSTS – party / party – indemnity costs – offers of compromise or Calderbank Offers – whether a genuine offer of compromise – whether unreasonable not to accept offer COSTS – appropriate principles and considerations –lump sum or gross costs order – appropriate discount to lump sum or gross costs order

COSTS – party / party – exceptions to general rule that costs follow the event – offers of compromise or Calderbank Offers – whether a genuine offer of compromise – whether unreasonable not to accept offer – whether unreasonable to refuse offers when factual issues still in dispute

CRIME – suppression and non-publication orders – where respondent pleaded guilty to historical sex offences – where Children (Criminal Proceedings) Act 1987 (NSW), s 15A prohibits identification of respondent in connection with criminal proceedings involving certain offences – where complainants consent to the publication of their names for the purposes of that Act – whether order under Court Suppression and Non-publication Orders Act 2010 (NSW), s 8 necessary because s 15A prohibition apparently not complied with – whether order necessary to protect the safety of respondent or his family – order not necessary

CRIMINAL LAW – evidence – hearsay – tender of witnesses’ statements – witnesses deceased – where conversation recorded in statement a reconstruction – identification of “asserted fact” – where statement contains evidence of what another witness told her – whether first or second-hand hearsay – where witness’s account a reconstruction of what the accused told him

CRIMINAL LAW – where witness required for further cross-examination – witness with mental health issues – witness not excused on subpoena – witness fails to appear for the further cross-examination – medical certificate indicating her difficulties – where Crown withdraws evidence – evidence to be disregarded

COSTS – Assessment of costs – Departure from ordinary rule that costs follow the event – Where costs ordered against a Plaintiff that has been successful in respect of one issue but unsuccessful in respect of another that was clearly dominant and severable – Consideration of “events” for the purposes of costs – Whether concern that the principle of Anshun estoppel might operate caused the Plaintiff to run the issue on which it was unsuccessful was relevant to the issue of what costs order should be made.

PRACTICE AND PROCEDURE – application for orders setting aside Originating Process and service of Originating Process by reason of non-compliance with r 2.7 of the Supreme Court (Corporations) Rules 1999 (NSW) – where delay in serving Originating Process – whether r 2.7 of the Supreme Court (Corporations) Rules applies to the exclusion of Uniform Civil Procedure Rules 2005 (NSW) r 6.2(4) – whether delay in serving Originating Process by reason of delay in securing litigation funding will result in exercise of the Court’s discretion to set aside service of Originating Process – whether service of Originating Process should be set aside or the proceedings dismissed.

CRIMINAL LAW – limits on re-examination – whether evidence an admission – whether reasonable excuse for failure to record – where no evidence of conversation given in evidence in chief or through other police officer present – where counsel cross-examined on different conversation – other conversation did not contain an admission – matter did not arise out of evidence given in cross-examination – whether leave should be granted – relevant considerations under s 192 – where trial proceeding well beyond estimate – inefficient conduct of proceedings – every conceivable bunny – every possible rabbit hole – leave would extend length of proceedings – evidence not important in context of the case – leave refused

COMMERCIAL ARBITRATION – Commercial Arbitration Act 2010 (NSW) – application for an order that the plaintiff and first defendant be referred to arbitration – arbitration agreement – whether there is an operative agreement between the parties to submit to arbitration – the meaning of inoperative – where the person prescribed in the contract to nominate an arbitrator does not exist – whether non-existence of person prescribed to nominate an arbitrator renders the agreement inoperative; HELD – the parties’ arbitration agreement is operative – plaintiff and first defendant referred to arbitration

TAXES AND DUTIES – pay-roll tax – employment agency contracts – interpretation of s 37(1) of the Payroll Tax Act 2007 (NSW) – meaning of “under which” – meaning of “procures the services of another person” – meaning of “for a client” TAXES AND DUTIES – pay-roll tax – employment agency contracts – amounts taken to be wages – interpretation of s 40(1)(a) of the Payroll Tax Act 2007 (NSW) TAXES AND DUTIES – pay-roll tax – penalty tax – whether taxpayer took “reasonable care to comply with the taxation law” within the meaning of s 27(3)(a) of the Taxation Administration Act 1996 (NSW)

CORPORATIONS – application for approval of remuneration under s 473(2) of the Corporations Act 2001 (Cth) – where remuneration claimed is substantial – where provisional liquidation involves multiple companies and investigative complexities – whether remuneration claimed by provisional liquidators is reasonable and proportionate to the complexities of the matter. CORPORATIONS – application for approval for provisional liquidators to enter deed of indemnity nunc pro tunc under s 477(2B) of the Corporations Act – where entry into the deed of indemnity will not delay completion of the provisional liquidation – where creditors’ interests are promoted by entry into the deed of indemnity – whether entry into deed of indemnity should be approved nunc pro tunc.

CIVIL PROCEDURE – dismissal of proceedings – proceedings inactive for over 5 months as per Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 12.8(2) – application to set aside order dismissing proceedings – UCPR, r 36.16(2)(b) – where solicitors for plaintiff unaware of warning from court of impending dismissal – where defendant unresponsive to statement of claim served – prior order dismissing proceedings set aside CIVIL PROCEDURE – service – notice of motion – application to dispense with requirement to serve – where defendant a foreign state, viz the Republic of Lebanon – where prior service of originating process previously effected in accordance with Foreign States Immunities Act 1985 (Cth) – where defendant unresponsive to service – where no appearance for defendant – application granted CIVIL PROCEDURE – summary disposal – judgment for plaintiff – claim for indemnification for workers compensation payments – payments made to consulate staff member in Sydney employed by Republic of Lebanon – employer uninsured – where no appearance for defendant

REAL PROPERTY – Easements – construction of agreement – plaintiff and defendants make agreement during a mediation – parties agree for consideration payable by the defendants to the plaintiff for the grant to the defendants of certain rights of access over the plaintiff’s land – easement registered burdening the plaintiff’s land – whether the mediation agreement grants an easement over plaintiff’s land or whether it confers a mere personal right of access over the land to the defendants but not to the defendants’ successors in title – whether the mediation agreement has been specifically performed and carried into effect through the recording of the easement on the Register – whether the recording of the easement on the Register over the plaintiff’s land should now be cancelled.

CRIMINAL PROCEDURE – interlocutory appeal – rejection of application for stay of trial – evidence gathered under telecommunication interception warrants formed major part of prosecution case against applicant – applicant sought disclosure of documents relied upon by Australian Federal Police when seeking warrant – documents not disclosed – whether prosecutor’s general law obligation of disclosure extended to documents underlying warrants – whether trial should have been stayed pending disclosure of documents – whether stay necessary to avoid unfair trial CRIMINAL PROCEDURE – interlocutory appeal – collateral challenge to validity of telecommunication interception warrants – whether challenge limited to invalidity on the face of the warrant – Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 applied CRIMINAL PROCEDURE – prosecutor’s pre-trial disclosure obligation – scope of obligation – whether obligation broader than legitimate forensic purpose test for evidence sought under subpoena EVIDENCE – discretionary exclusion of evidence – improperly or illegally obtained evidence – scope of potential challenge to evidence gathered under interception warrant on basis of impropriety – Evidence Act 1995 (NSW), s138

CRIME – appeal – sentence – single ground of appeal that parity principles apply where offender sentenced for offence which is taken into account on Form 1 for co-offenders – parity principles inapplicable – no justifiable sense of grievance – prosecutor’s discretion to include charges on Form 1 not reviewable

STATUTORY INTERPRETATION – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(1)(d)(iii) – whether reports made to Department of Family and Community Services admissible in criminal proceedings in Supreme Court STATUTORY INTERPRETATION – principle of legality – accused’s right to a fair trial – whether Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(1)(d) was intended to abrogate the accused’s right to a fair trial APPEALS – precedent – circumstances in which Court of Criminal Appeal will depart from previous decisions – whether The Application of the Attorney-General dated 4 April 2014 [2014] NSWCCA 251 ought to be followed

CORPORATIONS — management and administration — meetings of directors — where constitutional quorum requirement for directors’ meeting was satisfied — where shareholder agreement quorum requirement for directors’ meeting was not satisfied — where company is insolvent — whether resolution passed at directors’ meeting to appoint voluntary administrators to the company should be declared invalid.

CRIMINAL LAW – Terrorism trial – Application for suppression orders and pseudonym orders – Orders necessary to prevent prejudice to the proper administration of justice and to the interests of the Commonwealth in relation to national or international security and to protect the safety of a witness – Application granted

COSTS – application for costs thrown away by reason of amendment – no question of principle

CRIME – prosecution appeal against dismissal of charges – possession and supply of prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1) – drugs found in vehicle stopped for random breath test – driver subject to firearms prohibition order – vehicle searched pursuant to Firearms Act 1996 (NSW), s 74A(2) – where no actual suspicion by searching officer of contravention of Firearms Act, s 74 – where evidence excluded pursuant to Evidence Act 1995 (NSW), s 138 and charges dismissed – whether error in requiring actual suspicion for lawful search under Firearms Act, s 74A – appeal upheld WORDS AND PHRASES – “reasonably required” – Firearms Act 1996 (NSW), s 74A(1) – whether subjective suspicion required

EVIDENCE – Criminal Proceedings – Admissibility - Electronically recorded roadside interview – Caution given to accused – Whether question from the police officer undermined caution and created an impropriety – Whether evidence should be excluded under s 138 of the Evidence Act 1995 (NSW)

PRACTICE AND PROCEDURE – Discovery – Application for further discovery – General principles – Balancing exercise to be conducted in face of assertions by the plaintiff that compliance with an order for further discovery would be unduly onerous PRACTICE AND PROCEDURE – Evidence – Privilege – Where claims for privilege made over documents which would otherwise be discoverable – List of documents to properly set out the basis of any claim made – Necessity for the evidence relied upon in support of a claim for privilege to be fulsome, focused and specific – Verbal formulae and conclusory assertions not sufficient – Necessity for evidence to be adequate and compelling – Necessity for evidence to address the purpose for which documents were created or communications were made – Whether discretion should be exercised in favour of inspection of the documents over which privilege was claimed

TAXES AND DUTIES – Chief Commissioner of State Revenue declined to grant exemption under s 163H of the Duties Act 1997 (NSW) – whether application of Ch 4 of the Duties Act 1997 (NSW) would not be just and reasonable TAXES AND DUTIES – Chief Commissioner of State Revenue declined to remit interest under s 25 of the Taxation Administration Act 1996 (NSW) – whether appropriate case to remit the market component of the interest for defined period – whether appropriate case to remit premium component of interest

PRACTICE AND PROCEDURE – Application to set aside judgment on the basis of irregularity – Where proceedings had been brought in the this court by the applicant – Where those proceedings were summarily dismissed following a contested hearing – Where the applicant was given a full opportunity to be heard on that hearing – Where the applicant brought a motion seeking that the order dismissing the proceedings be set aside on the basis of irregularity – Where no irregularity or bad faith demonstrated – Motion dismissed

TORTS – negligence – motor vehicle accident – fatal collision – where multiple conflicting witness accounts – whether appellant or respondent at fault – Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 – whether primary judge erred in analysis of witness accounts TORTS – negligence – contributory negligence – motor vehicle accident – collision of two vehicles – where both vehicles exceeding speed limit – apportionment of liability

CRIME – appeal against convictions – aggravated sexual assault against child under 16 years – whether conviction on eight counts inconsistent with acquittal on further counts – whether convictions unsafe or unsupported by the evidence CRIMINAL PROCEDURE – jury directions –complainant’s evidence regarding multiple charged acts of aggravated sexual assault –evidence on each count as tendency and context evidence on others –IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 considered EVIDENCE – significant forensic disadvantage caused by delay – no direction sought – whether absence of direction caused substantial miscarriage of justice – Evidence Act 1995 (NSW), s 165B EVIDENCE – sexual assault proceeding – sexual assault communications privilege – complaint to general practitioner – applicant refused access to evidence produced under subpoena recording counselling communication between doctor and complainant – leave to lead evidence regarding surrounding circumstances of complaint refused –Criminal Procedure Act 1986 (NSW), ss 298, 299D

CRIMINAL LAW – appeal against conviction – expert evidence – whether evidence admissible as expert opinion under s 79 of the Evidence Act 1995 (NSW) – whether expert possesses necessary specialised knowledge – whether opinion evidence of expert should be excluded under ss 135 or 137 of Evidence Act where credibility, reliability and accuracy of evidence challenged CRIMINAL LAW – appeal against conviction – expert evidence – expert witness code of conduct – whether evidence is inadmissible where provisions of Part 75 r 3J of Supreme Court Rules 1970 (NSW) relating to expert witness code of conduct not complied with – whether evidence of expert who is not aware of expert witness code of conduct should be excluded under ss 135 or 137 of the Evidence Act 1995 (NSW) CRIMINAL LAW – appeal against conviction – jury directions– expert evidence – where translations of intercepted telephone calls challenged – whether judge failed to give jury necessary directions following Crown address alleged to have suggested a reversed onus of proof STATUTORY INTERPRETATION – proper construction of s 79 Evidence Act 1995 (NSW) – proper construction of s 124 Supreme Court Act 1970 (NSW) – proper construction of s 171D District Court Act 1973 (NSW) – proper construction of Part 75 r 3J Supreme Court Rules 1970 (NSW)

CRIMINAL LAW – conviction appeal – recklessly causing grievous bodily harm – victim two year old daughter of applicant – whether evidence of admissions wrongly admitted – ss 90 and 137 of Evidence Act 1995 (NSW) – whether conviction unreasonable and not supported by the evidence – medical evidence that injuries deliberately inflicted – issue whether applicant committed offence – circumstantial case – reasonable hypothesis consistent with innocence excluded – appeal dismissed.

DEFAMATION – interlocutory steps – no question of principle

CIVIL PROCEDURE – whether due dispatch in complying with orders for security for costs – dissolve stay of proceedings – appeal dismissed

CIVIL PROCEDURE – application for dismissal for want of due despatch – where plaintiff does not appear – application granted – proceedings dismissed

COSTS — Party/Party — Costs orders in interlocutory proceedings — Plaintiff sought to recover confidential information taken by the Defendant — Final orders uncontested — whether costs incurred by plaintiff were proportionate

CIVIL PROCEDURE — Parties — Joinder — Of defendants — Of beneficiary of trust — Applicant joined as Seventh Defendant — Applicant joined at own risk as to costs — Applicant joined on condition that he not file any pleading without leave of court

EQUITY – trusts and trustees – where unitholder of a unit trust requisitioned a meeting of unitholders – where trustee failed to call such meeting – where trustee has offered no explanation for its inaction COSTS – where defendant is a trustee – whether defendant entitled to be paid its costs of the proceedings from the assets of the trust

CORPORATIONS – statutory demand – application to set aside creditor’s statutory demand – demand based on judgment arising upon filing of adjudication certificate under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether genuine dispute as to the existence of the debt – whether debt is subject to offsetting claim – whether “some other reason” to set aside demand – whether foreshadowed curial proceedings to quash the adjudicator’s determination for jurisdictional error of law amounts to a “genuine dispute” or “some other reason” to set aside demand

REAL PROPERTY - option deed - option over real property - option exercised - whether requirements for exercise of option met - option deed required the completion date for the contract for sale of land provided with the notice of exercise of option “to be specified on the front page of the contract” and for it to “be the date 192 days from the date of the contract”, except in certain defined circumstances - the plaintiff’s covering letter with the exercise of option enclosing the necessary documents requested the insertion of a completion date of 192 days from the date of the contract - the requested date was not the correct completion date, as calculated according to the proper construction of the applicable clause in the option deed - what are the requirements for the valid exercise of the option under the option deed - whether the option was validly exercised in accordance with the option deed.

NEGLIGENCE – personal injury - duty of care – breach admitted - ceiling panelling collapsed onto plaintiff - C6-7 disc protrusion - chronic pain - chronic adjustment disorder with mixed anxiety and depressed mood – joint expert report - discord between expert’s opinion of appropriate treatment for chronic pain - concurrent expert evidence - disc injury - not contradicted by surveillance or by academic performance - substantially corroboration by lay witnesses - treatment undergone - ongoing pain management - CT scan - MRI’s - physiotherapy - facet joint injections - future treatment - surgical intervention - economic loss - past out of pocket expenses - superannuation loss - domestic assistance - interstate work aspirations

APPEAL – No point of principle – Costs Assessor – Review Panel – ordered costs – leave to appeal – whether leave to appeal should be allowed under s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) – whether there is an error of principle, matter of public importance or injustice that is reasonably clear – modest amount in dispute – Local Court Practice Note Civ 1, Part G – whether maximum costs cap in the Practice Note applies

ADMINISTRATIVE LAW – judicial review ­– appeal against decision of the NSW Civil and Administrative Tribunal – Child Protection (Working with Children) Act 2012 (NSW) – working with children check clearance – whether the Tribunal erred in the use it made of evidence of prior representations that had been admitted for a non-hearsay purpose only – whether the Tribunal erred in its application of s 30(1)(j) of the Child Protection (Working with Children) Act 2012 (NSW) – whether the Tribunal provided adequate reasons – appeal dismissed

EVIDENCE – Credibility – whether witness is giving truthful evidence – Whether evidence is corroborated by other witnesses, contemporaneous records or reflects the most logical version of events CONTRACTS – Formation – Agreement – whether the parties formed an oral agreement – Variation of agreement – Express Terms – Implied terms – whether terms are necessary for the effective or reasonable operation of the contract – Breach of contract – Right to damages CONTRACT – Misleading conduct under statute – Misleading or deceptive conduct – Representations – Whether representation was made ESTOPPEL – Estoppel by representation – Detrimental reliance – Whether representation was made EQUITY – Unjust enrichment – Whether defendants were unjustly enriched at the expense of the plaintiff

APPEAL - points not taken at trial - challenge on appeal to authority of officers signing Sale Notices offering to assign certain loans - whether could have been met by evidence - appellant not permitted to rely on new points on appeal. EQUITY - assignment of choses in action - distinction between deed permitting sale of loans by issuing Sale Notices and assignment of loan - distinction between assignment and offer to assign.

CRIMINAL PROCEDURE – application to set aside one paragraph of a subpoena issued to Commissioner of NSW Police – where subpoena sought documents relating to 53 possible suspects – whether subpoena amounted to discovery and was a fishing expedition – where a legitimate forensic purpose existed in respect of 10 individuals – no oppression – paragraph set aside – amended version of paragraph permitted