Cases and authorities

EQUITY – Trusts and trustees – Court’s supervision of trustees – Appointment and removal of trustees – Where trustee company deadlocked – Order for payment of plaintiff’s costs out of the trust estate on the ordinary basis CIVIL PROCEDURE – Cross-vesting – Application to transfer proceedings from Supreme Court to Family Court of Australia pursuant to s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) – Application refused

CRIMINAL LAW – tendency evidence – evidence of former partner of accused – evidence of domestic violence – where accused charged with murder – where allegation that accused detained victim and committed acts of violence on him – defence case that accused helping victim dry out from alcoholism – whether evidence has significant probative value – general allegations of violence not admissible – allegations involving detention and violence admissible CRIMINAL LAW – uncharged acts of violence on alleged co-offender – evidence not admissible as tendency evidence – admissible to establish nature of relationship and explain conduct of the co-offender – order made limiting use of evidence CRIMINAL LAW – whether witness should be permitted to give evidence by audio visual link – where witness alleged victim of violence – opinion of psychologist that procedure will minimise impact of trauma – where accused opposes direction – onus on prosecution – interests of administration of justice – relevant considerations – direction made

ADMINISTRATIVE LAW – Judicial review – Where a legal firm sought costs assessment under the Legal Profession Act 2004 (NSW) and filed the resulting certificate in the Local Court to obtain judgment against the client – Where the company to which the firm provided legal services was not the company nominated in the costs agreement – Whether legal error on the face of the record –Whether there was a failure to give reasons – Whether there was procedural unfairness

EVIDENCE – admissibility – Evidence Act 1995 s 65 – evidence of representations made by two witnesses who are unavailable – witnesses deceased – representations contained in transcripts of coronial inquests and police interviews – where admissibility opposed by the accused – where accused submitted that outstanding subpoenas may affect the evidentiary position – where accused may make his own application to admit any further material – evidence admitted

COSTS – Plaintiff successful in obtaining order for specific performance – Defendant also partly successful on cross-claim – Whether costs should be apportioned – Application by plaintiff for gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW)

EQUITY – equitable estoppel – proprietary estoppel – where promisor made representations to give property to promisee – whether promisee acted to detriment in reliance on representations – whether wills in favour of Defendant overcame representations – conduct of Defendant

CRIMINAL LAW – sentence – guilty plea – intentionally possess a thing, a revolver, connected with the preparation for a terrorist act being reckless to the connection of the revolver to the preparation for a terrorist act contrary to s.101.4(2) Crimes Act 1914 (Cth) – supply pistol offence contrary to s.51(1A) Firearms Act 1996 (NSW)–Form 1 firearm offences - fatal shooting of Curtis Cheng outside New South Wales Police Headquarters –15 year old killer armed with a revolver by Raban Alou – Offender supplied firearm to Raban Alou – 15 year old killer and Raban Alou both supporters of Islamic State– Offender’s motive for offending - moral culpability of Offender – Offender sympathetic to Islamic State - factors relevant to sentence – importance of denunciation, community protection, general deterrence and specific deterrence – sentence for Commonwealth and State offences – accumulation of sentences – substantial sentences of imprisonment required

CIVIL PROCEDURE – Default judgment – Payment by instalment order granted by registrar – Objection – Whether instalment order should remain on foot – Whether full satisfaction of judgment debt more likely through instalment payments

Administrative Law – Judicial Review – Application for leave to appeal against a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal – Necessity to establish a question of law in order to justify a grant of leave – Where plaintiff held a number of firearm licenses and permits – Where first defendant determined that all such licenses and permits should be revoked – Where the plaintiff appealed to the Tribunal constituted by a single member – Evidence of numerous transgressions by the plaintiff in relation to his various licenses – Where Tribunal upheld the first defendant’s determinations in all but three cases – Where the first defendant appealed to Appeal Panel – Where Appeal Panel upheld the appeal and affirmed the first defendant’s determination in respect of those three cases – Where plaintiff sought leave to appeal against the decision of the Appeal Panel on a question of law – Whether Appeal Panel erred in law in concluding that the Tribunal had erred – Whether Appeal Panel erred in failing to remit the matter to the Tribunal having found error – Whether the decision of the Appeal Panel was unreasonable – Leave to appeal refused

CIVIL PROCEDURE – whether party can give evidence while face covered by veil – discretionary decision of trial judge to refuse to allow witness to give evidence with face covered

APPEAL – stay pending appeal – no issue of principle

REAL PROPERTY – Where transfer of the Plaintiff’s half-interest in a property was lodged with Land Titles in 1992 – Claim that Plaintiff never signed or agreed to the transfer of his half-interest in the property – Where Plaintiff lodged a caveat over the property asserting fraud – Whether impugned signature on the transfer was established not to be that of the Plaintiff – Onus of proof in relation to a claim of fraud – Reference to indefeasibility provisions of the Real Property Act 1900 (NSW) – Obiter, whether any claim not based on fraud would be statute barred under the Limitation Act 1969 (NSW). EVIDENCE – Where Plaintiff produced no forensic evidence to support his contention that the impugned signature on the transfer is not his – Whether the Court can make its own comparison between disputed and admitted handwriting in absence of forensic evidence.

CIVIL PROCEDURE – Strike out application pursuant to rule 13.1 or rule 14.15(3) of the UCPR – summary judgment – leave to issue a writ of possession CIVIL PROCEDURE – Adjournment sought – application for adverse possession – adjournment granted

PRACTICE AND PROCEDURE – application for examination under the Proceeds of Crime Act 2002 (Cth) – application granted

PRACTICE AND PROCEDURE – leave to rely on report of second expert with same specialty to that of expert whose report already served – leave granted because of plaintiff’s acquiescence in the defendant’s solicitor’s conduct PRACTICE AND PROCEDURE – application for leave to amend defence to add limitation defence – no explanation for delay – leave granted as time sufficient for evidence to be prepared for trial

PROCEEDS OF CRIME – application for forfeiture order in respect of cash found in automotive garage premises – lessee of garage disavowed ownership – public canvassing to ascertain true owner unsuccessful despite overwhelming response to Facebook and Twitter releases – order for forfeiture made

CORPORATIONS – unregistered managed investment schemes — where order sought under s 601EE(2) of the Corporations Act 2001 (Cth) for release of Court-appointed liquidators of unregistered managed investment schemes – whether Court should make the orders releasing the Court-appointed liquidators in respect of the specified schemes – where Court-appointed receivers of specified assets sought approval under s 601EE(2) of the Corporations Act for remuneration – whether the Court should approve remuneration and prospective remuneration sought by the liquidators – where liquidators sought directions that they would be justified in distributing assets of scheme on a basis giving liquidators’ claims first priority – whether liquidators’ claims in respect of their remuneration and costs of and in connection with the winding up of that scheme should be given first priority.

TORTS – negligence – personal injury – plaintiff struck by nail from nail gun fired through wall at construction site – no warning given prior to shot – whether risk “not insignificant” within meaning of Civil Liability Act 2002 (NSW) (“CLA”), s 5B(1)(f) – whether risk “obvious” within meaning of CLA, s 5F – scope of exemption from duty to warn of obvious risk under CLA, s 5H – whether risk “inherent” within meaning of CLA, s 5I – whether plaintiff contributorily negligent – whether breach of duty by employer in failing to warn plaintiff – whether injury and incapacity to work would have materialised due to pre-existing conditions in any event – judgment for plaintiff

CORPORATIONS LAW – breaches of directors’ duties – Corporations Act 2001 (Cth), ss 180, 181 and 182 – payment of company moneys to related companies – where directors of company also directors of recipient companies – liability of recipient companies – knowing receipt within Barnes v Addy (1864) LR 9 Ch App 244 JUDGMENTS AND ORDERS – double recovery – liability of recipient to repay money paid in breach of fiduciary duty – liability of director for compensation - concurrency EQUITY – equitable compensation – breach of duty resulting in payment out of money – potential recovery from recipients – compensation awarded for full amount but on terms

COSTS – party/party – general rule that costs follow the event – where primary judge upheld claims against one defendant, dismissed claims against other defendant and awarded costs against both defendants – where appellate court allowed appeal by unsuccessful defendant joining successful defendant as a respondent and seeking order dismissing statement of claim with costs – whether appellate court has power to order plaintiff to pay costs at first instance and on appeal of defendant successful at first instance – whether that power should not be exercised – no question of principle

CRIMINAL LAW – evidence – whether relevant – evidence of recorded conversation between witness and co-conspirator – where evidence establishes connection between those people – where Crown case is that co-conspirator attempted to obtain heroin from witness as part of conspiracy to murder another witness – discussion of other drug deals – whether prejudicial – Judge alone trial – evidence admissible on issue of relationship between witness and co-conspirator

PRACTICE AND PROCEDURE – repeated failure by defendants to respond to request for particulars of their defence – defendants’ solicitor ceased to act – defence struck out for want of due despatch

PRACTICE AND PROCEDURE – purported service in a courtroom by a litigant in person who was unaware of the impropriety of such conduct – declaration that service invalid – order for substituted service made to avoid impasse between the parties COSTS – application for costs on an indemnity basis refused

DEFAMATION – Practice and procedure - application for judge to recuse himself - grounded on apprehended bias - raised voice to Counsel - refusal of an application made by defendants to require the plaintiff to make admissions regarding expressions - alleged heated exchange in relation to whether a document had been admitted into evidence before or after lunch - ordinary by-stander test - Ebner v Official Trustee in Bankruptcy - apology at first available opportunity - failure to demonstrate judge should disqualify himself

CRIMINAL LAW – Practice and procedure – Where accused indicted for committing a terrorist act – Alternative count of attempted murder – Where accused pleaded not guilty to both counts on the grounds of mental illness – Where issue of the accused’s fitness to stand trial arose during the course of the trial – Inconclusive preliminary medical opinion as to fitness – Consideration of legislative scheme where issue of fitness raised – Necessity to conduct fitness hearing – Jury discharged and matter adjourned for further directions WORDS AND PHRASES – “raising question of fitness”

CONTRACTS – Formation - written contract - oral contract - intention to create legal relations – promises made - performance of work - clerical assistance presumptions - Family Court proceedings - nature of friendship - reasonable person - damages

CONTRACT – particular parties – franchisee and franchisor - where franchise agreement breached by denying franchisor the opportunity to exercise option to purchase business assets – where assets sold to a third party without franchisor knowledge – whether franchisor suffered loss – where resultant loss equal to the difference between the price paid by the third party and the price to be paid under exercise of option – no such difference proved. EQUITY – equitable remedies – account of profits – equitable compensation - where deceit and fraud by the franchisee – where third party induced breach - whether assets held on trust for the franchisor – whether otherwise the franchisor had an equitable interest in the business assets – no trust established – no fiduciary duty shown – no basis for award of account of profits or equitable compensation. PROCEDURE – where certain claims reserved by trial judge for future consideration – whether Court of Appeal should determine those claims.

INSURANCE – legal liability insurance – scope of cover – scope of exclusions – appellant contracted to refurbish semi-autogenous grinding mill – refurbished mill failed after a short period of normal operation when a circumferential weld disintegrated – mill owner brought arbitration proceedings against appellant on causes of action in contract and for misleading or deceptive conduct – the parties to the arbitration entered into a “cap and collar” agreement the operation of which depended on the outcome of the arbitration – arbitration resulted in a finding of no liability of appellant – appellant nevertheless liable to pay contracted “collar” amount and for its own costs – whether these liabilities are within the insurance cover under a broadform liability policy – whether appellant legally liable to make “collar” payment by way of “compensation” for “property damage” suffered by mill owner – meaning of “occurrence” in liability policy – distinction between “occurrence” and damage – whether disintegration of the weld was an “occurrence” – whether cyclic loading in normal operation of the mill was an “occurrence” – whether faulty work by appellant was an “occurrence” – policy exclusion for professional services – whether faulty welding work within scope of professional services – whether making of actionable representations within scope of professional services – policy exclusion for product defect – whether applicable – WORDS AND PHRASES – “compensation” – “occurrence” – “continuous or repeated exposure to substantially the same general conditions” – “professional advice or service” – “product”

CRIMINAL LAW – evidence – tendency evidence – whether evidence has significant probative value – where accused charged with murder – allegation that deceased detained against his will – tendency asserted in notice “to detain persons and to intimidate and physically assault them” – where proposed tendency evidence does not establish detention of witness – eccentrically articulated tendencies – evidence establishes no more than a tendency towards violence – complex interpersonal relationships – consideration of issues in the trial

CORPORATIONS – membership, rights and remedies – derivative action – application for grant of leave by former officer to bring proceedings in name of company under Corporations Act 2001 (Cth) s 237 – whether in the best interests of company that applicant be granted leave

EVIDENCE – provisional relevance – Evidence Act 1995 – issue of authentication to be determined at a later stage – file admitted as an exhibit

COSTS – application for stay or suspension of costs assessment affirmed by Review Panel – application refused

PRACTICE AND PROCEDURE – application for defendant to amend defence to add defence under s 5M of the Civil Liability Act 2002 (NSW) – factual issues already the subject of evidence – no prejudice to the plaintiff demonstrated – amendment necessary to permit reliance on s 5M at the trial COSTS – no reason to depart from general rule that costs ought follow the event

EVIDENCE ON COMMISSION – request from court in Poland for evidence relating to bank account of deceased – orders made for subpoena to be issued to Westpac and affidavit to be sworn by officer of Westpac

JUDGMENTS AND ORDERS — suppression and non-publication orders — application for non-publication order to prevent publication of Crown opening address in criminal trial — whether non-publication order is necessary to prevent prejudice to the proper administration of justice — whether order is necessary to protect the safety of the accused and his family — public interest in publication of criminal proceedings — open justice — no prejudice to proper administration of justice — no evidence of rational fear of risks to safety — application refused

COSTS – costs following dismissal of interlocutory process – where successful third party sought indemnity costs payable forthwith – where special costs order relied upon Calderbank offer and the defendant’s allegedly hopeless interlocutory application – whether costs should be awarded on the ordinary basis or on an indemnity basis – whether costs orders should not be entered pending the determination of winding up proceedings COSTS – interest on costs – where successful third party sought order for interest on costs from date(s) costs paid – Civil Procedure Act 2005 (NSW) ss 101(4), (5) – where application not protracted and no evidence of costs arrangements or that costs had been paid – whether departure from default provision under the rules appropriate

FUNDS - IN - COURT - surplus funds paid into Court after sale of real property by mortgagee - Trustee Act, 1925, s 95 - Uniform Civil Procedure Rules 2005, r 55.11 - mortgagor/registered proprietor cannot be found - orders for substituted service upon mortgagor/registered proprietor made - mortgagor/registered proprietor primarily entitled to fund in Court - orders made for additional notice to be given to mortgagor/registered proprietor - three groups of unsecured creditors apply for payment out of the funds in Court - one has a judgment against the mortgagor/proprietor and the others have unresolved claims - whether payment out of Court should be ordered and if so on what basis - what steps should be taken to determine he unresolved claims.

PRACTICE AND PROCEDURE – judgments and orders – application under Uniform Civil Procedure Rules 2005 (NSW) r 36.17 – slip rule – where error was caused or contributed to by incorrect information provided to the Registry when the proceedings were electronically filed – whether, if the error had been drawn to the attention of the Court or the parties at a relevant time, it would have been corrected as a matter of course – whether error identified may properly be corrected under slip rule.

CRIMINAL LAW – procedure – witnesses – evidence by audio visual link – where accused opposes use of technology – interests of administration of justice – onus on party seeking to use technology – where witness suffers mental health issues

CRIMINAL PROCEDURE – pre-trial Motion filed by the accused – application to defer Crown opening address until after application for permanent stay or directed verdict of acquittal heard – considerations of adverse publicity – judge alone trial – balance struck between rights of accused to a fair trial and public interest in disposition of the criminal proceedings – benefit to the accused in knowing the Crown case

PRACTICE AND PROCEDURE – application for stay of execution refused on the grounds of delay – restitution possible if plaintiff’s appeal to this Court successful

ORDERS – possession of property and orders pursuant to s 138 of the Real Property Act 1900 (NSW) to cancel certificate and issue a new certificate of title where bankrupt refuses to relinquish certificate to trustee in bankruptcy

TORTS – representative proceedings – negligence – plaintiff suffered injury through fire – determination of liability – no claim for pure economic loss – ignition of fire – origins – causation – spread or escape of fire – common law principles – existence and scope of duty of care – novelty of duty –salient features relevant to duty of care – reasonably foreseeability – knowledge of defendant significance of harm – relationship – vulnerability indeterminacy – breach – statutory conditions regarding breach of duty –s 5B Civil Liability Act 2002 – risk not insignificant – whether reasonable person would take precautions – probability of harm – likely seriousness of harm – burden of taking precautions – social utility – s 42 Civil Liability Act 2002 – statutory defence –general v specific allocation – specific resource allocation for waste management – no defence made out - whether precautions were reasonable – defendant should have adopted and implemented specific fire precautions – breach found – causation – whether precautions would have prevented the injury caused by fire spread – failure to prove factual causation – negligence not established by plaintiff – nuisance – proprietary rights over affected land – unreasonable interference – in absence of negligence defendant not liable in nuisance – claim by plaintiff dismissed – directions regarding common questions and costs

COSTS – whether costs should be reserved given appeal foreshadowed – application for costs to be paid in a specified gross sum – appropriate in circumstances of the case

PROCEDURE – judgments and orders – short minutes of order to give effect to reasons – pre-judgment interest awarded COSTS – solicitor/client basis

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

CIVIL PROCEDURE – Whether leave is required to re-open to make further submissions as to relief and/or adduce further evidence after reasons published but before entry of final orders – whether, if leave is required such leave should be granted

COSTS – statutory demand – where demand set aside subject to payment condition – whether costs should be awarded on indemnity or ordinary basis – whether company’s offer more favourable to defendant than result of Court’s order – where company’s offer of compromise open for acceptance for just under two hours – whether unreasonable for defendant not to accept company’s offer

EQUITY – Fiduciary duties – Fiduciary relationships – Solicitor and client – Duty of loyalty – Circumstances in which the duty continues following termination of a retainer EQUITY – Fiduciary duties – Fiduciary relationships – Solicitor and client – Duty to protect confidential information – Modification of the duty by contract – Whether there is a real risk of disclosure of confidential information – Quality of evidence necessary to make a finding EQUITY – Fiduciary duties – Jurisdiction of the Court – Whether a fair-minded, reasonably informed member of the public would conclude that a prohibitive injunction is required for the proper administration of justice

APPEALS – appeal from Local Court – appeal against decision under s 219 Law Enforcement (Powers and Responsibilities) Act 2002 for delivery of property – question of which party lawfully entitled to possession of vehicle – where vehicle stolen from second defendant and sold to plaintiff by a third party – application of nemo dat principle – whether exceptions to nemo dat under s 27 Sale of Goods Act 1923 and Personal Property Securities Act 2009 applied – where plaintiff did not seek leave to appeal on grounds disclosing mixed questions of fact and law – where interest of second defendant in the vehicle was not a security interest – where interest of second defendant instead derives from her being a residuary beneficiary under the Succession Act 2006 – where Magistrate was not satisfied that plaintiff did not have notice of any defect in title of the vendor – no inconsistency pursuant to s 109 of the Constitution where Commonwealth legislation does not apply to the factual circumstances – neither exception made out – no other errors demonstrated – proceedings dismissed