Cases and authorities

STATUTORY INTERPRETATION – s 55 of the Property, Stock and Business Agents Act 2002 (NSW) – sch 8 Property, Stock and Business Agents Regulations (2003) – whether an agency agreement provides for the property to be offered for sale by private treaty when method of sale left to agent by agreement – whether an agency agreement “specifies the date” vendor was provided with approved guide by identifying the period in which the guide was provided – whether commission payable where no sales inspection report included in agency agreement - meaning of “any” sales inspection report prepared by the agent and given to the principal CONTRACT – interpretation – whether it was open to the appellant to fix a completion date that was more than one month after the day it notified the purchaser the strata plan for the Development had been registered – whether appellant under no obligation to replace or substitute any of the purchasers because conditions imposed by another clause of the agreement not satisfied

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Asserted failure on the part of the sentencing judge to observe principles of parity – Where all offenders sentenced by the same judge – Where differences in sentences explicable by reference to the differing levels of criminality and the differing subjective circumstances of the offenders – No error established

COMMERCIAL LAW – Personal Property Securities – (CTH) Personal Property Securities Act 2009 – extension of registration time for PMSIs pursuant to PPSA, s 293 – relevant considerations – whether need for extension is due to inadvertence or other sufficient cause – where there was a timely but defective registration – held, it is just and equitable to extend the time referred to in s 62(3)(b), under s293(1)(a) – where late registration – where delay before and after registration is substantial and unexplained – where during delay another secured party registered – held, not just and equitable to make an order extending the time under s 62(3)(b. CORPORATIONS – charges, debentures and other borrowings – security interests – registration – extension of time – application pursuant to (CTH) Corporations Act 2001, s 588FM – prejudice – where delay does not prejudice the interests of creditors or shareholders

BAIL – appeal pending in the Court of Criminal Appeal – significant portion of short sentence likely to be served before appeal heard – grounds of appeal arguable – applicant 14 year old child – accepted into new school – will miss start of school if bail refused – special or exceptional circumstances established

CIVIL PROCEDURE – Interim preservation – Freezing orders

ORDERS – suppression and non-publication orders – orders sought under s 7 – final issue as to orders regarding the naming of schools – orders sought by applicant granted COSTS – whether an Intervenor is subject to costs orders – principles regarding costs in case of intervention – conduct of proceedings – directions

LAND LAW – easements – creation of easements – creation by order of court – temporary easement for underground rock anchors – where plaintiffs propose deep excavation of dominant tenement – where easement will temporarily restrict development of servient tenement – whether easement reasonably necessary for effective use or development of plaintiffs’ land – easement imposed LAND LAW – easements – validity of easements – whether easement capable of forming subject matter of grant – temporary easement for underground rock anchors – whether easement amounts to a grant of exclusive possession – whether easement would deprive servient owners of proprietorship and possession – easement capable of forming subject matter of grant

BUILDING CONTROL – order to do work to place land in safe condition – retaining wall at imminent risk of collapse – retaining wall straddling common boundary – power to issue order – whether lower land not in safe condition – whether order can require work on upper land owned by another person – if any part of order invalid, whether severable – whether order uncertain – whether order issued for improper purpose – order not invalid in ways challenged – claim for compensation if order invalid – source of power to award compensation

BAIL – unacceptable risk test –Aboriginal juvenile - bad criminal record – alleged breach of bail – strength of prosecution case – overrepresentation of Aboriginal youths in custody – where child appears to be at turning point – positive influence of youth worker – presumption of innocence – stringent conditions proposed by ALS lawyer – conditional bail granted – no point of principle

Civil procedure – deceased estate – dispute as to value of the estate – executors with interest in estate – potential claims arising out of transactions between deceased and executors during deceased’s lifetime – whether Court should appoint referee or administrator – preliminary discovery – application by beneficiary for documents relating to potential claims – whether preliminary discovery procedure appropriate

FAMILY LAW AND CHILD WELFARE – Surrogacy – application for parentage order under Surrogacy Act 2010, s18 – applicants resident in NSW at the time of application – application compliant with all Surrogacy Act mandatory preconditions for a parentage order – but application not compliant at hearing with Surrogacy Act, s 32 - consideration of exceptional circumstances to justify making the parentage order under Surrogacy Act 2010, s 18(2)(b) - whether subsequent relocation of applicants whilst the proceedings awaiting hearing may qualify as exceptional circumstances – consideration that the best interests of the child are paramount.

REAL PROPERTY – application for non-party costs order – order sought against unsuccessful plaintiff’s director and sole shareholder – question of plaintiff’s assets – claim of “straw man”

CIVIL LAW – TORTS – NEGLIGENCE – occupiers liability – slip and fall in supermarket car park – where occupier was lessee of car park

CONTRACT – Interpretation – Whether “urgent” in “urgent injunctive or declaratory relief” is to be read distributively so as also to qualify “declaratory relief” ESTOPPEL – Equitable estoppels – Promissory estoppel – Relief

CRIMINAL LAW – bail – release application – show cause offences – where multiple previous release applications – consideration of s 74 Bail Act 2013 (NSW) – release application dismissed WORDS AND PHRASES – “material” – s 74 Bail Act 2013 (NSW) – Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to

DEFAMATION – interlocutory injunctions – where defamatory publication apparently indefensible – consideration of nature and quality of evidence required to show prospect of viable defence – defendant admittedly repeating unsubstantiated rumours from an unnamed source NON-PUBLICATION ORDERS – where sought in aid of interlocutory injunctions to restrain apparently indefensible defamation – narrowness of orders sought – whether necessary in the public interest for the order to be made

VEXATIOUS PROCEEDINGS – application by an individual for vexatious proceedings orders – where defendant had brought multiple proceedings against plaintiff in multiple courts – incomprehensible pleadings – where defendant, having lost, believed he had won – possibility of cognitive impairment – appropriateness of making vexatious proceedings orders

COSTS – specified gross sum costs order – Civil Procedure Act, s 98(4)(c) – specified gross sum costs order made – quantification of specified gross sum costs order to be completed – whether the defendant’s actual costs should be discounted for the purposes of making the specified gross sum costs order by a discount in the range of 60% to 75%.

Succession – family provision claims by three children of deceased – modest estate with property as main asset – January 2014 will in favour of five children and one grandchild as beneficiaries – September 2015 will distributing whole of estate to third wife whom deceased first met in September 2014 – change in testamentary intentions – provision which ought to be made – proper provision for maintenance, education and advancement of child who is a minor – proper provision for advancement of adult children – charge on property for legacies in favour of beneficiaries

Contracts – contract for sale of shares in company – construction – alleged failure to do things required at settlement of sale – whether breaches of contract – whether “completion” occurred Contracts – contract for sale of shares in company – construction – obligation to provide assistance reasonably required for the purpose of responding to claimed adjustment of purchase price – alleged breach Evidence – “without prejudice” – discussions between parties to contract concerning claims against third party – whether privileged Equity – estoppel – contract for sale of shares in company – alleged promise not to rely on time limit in contract for responding to claimed adjustment of purchase price – whether requirement of clarity satisfied Equity – specific performance – contract for sale of shares in company – assignment to third party of payments for debts owed to company – company not party to contract and in liquidation – whether purchaser can be compelled by vendor to cause company to pay third party – relief

CONTRACTS – Construction – Interpretation – Termination clause – How termination clause should be interpreted – Requirement that clause be given sensible and businesslike interpretation CONTRACTS – Formation – Variation – Whether work for which plaintiff claims can be properly characterised as variations CONTRACTS – Termination – Repudiation of contract – Wrongful termination – Whether defendant was entitled to terminate contract – Whether defendant’s notice of termination constituted wrongful repudiation

CIVIL PROCEDURE – application for stay of orders pending appeal – loan to respondents under financing agreement – loan secured by mortgage – respondents unable to meet commitments – appellant’s application for possession of property dismissed – stay of orders providing for discharge of mortgage and security deeds pending appeal – whether refusal of stay likely to result in loss of subject matter of appeal CIVIL PROCEDURE – security for costs pending appeal – power to order security under Corporations Act 2001 (Cth), s 1335 and Uniform Civil Procedure Rules 2005 (NSW), r 51.50 and r 42.21 – whether sufficient doubt regarding appellant’s ability to pay respondents’ costs if unsuccessful on appeal

ADMINISTRATIVE LAW – bias – apprehended bias – applicant sought order that primary judge disqualify herself on the basis of apprehended bias – applicant submitted witness was bullied by primary judge and that witness feared he had committed perjury as a result – whether primary judge erred in declining to disqualify herself – no ground for concluding that a fair-minded lay observer might reasonably apprehend that primary judge might not bring an impartial mind to the resolution of the issues in the case – primary judge’s interventions designed to clarify whether witness was a factual or expert witness – no complaint made by counsel at the time conduct occurred APPEAL – whether applicant required leave to appeal – whether primary judge’s refusal to disqualify herself constituted a judgment or order – whether failure to seek leave to appeal against disqualification decision precluded the issue being pressed on appeal against final judgment

CRIMINAL LAW – conviction appeal – whether trial judge erred in admitting context evidence – whether evidence relevant – whether evidence ought to have been excluded under s 137 of the Evidence Act 1995 (NSW)

CRIME – work health and safety – application for withdrawal of plea of guilty and appeal against sentence – relevant principles of withdrawal of plea after sentence discussed – agreed facts below, if accurate, would require conviction – plea insufficiently impugned to warrant withdrawal – application for withdrawal of plea refused – fact findings on sentence open to primary judge – sentence within range – appeal dismissed

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts

Civil Procedure – interpleader – sum paid into court – two claimant parties to sum – claimed equitable lien over fruits of litigation – incidence of costs – plaintiff’s costs paid out of sum in court – whether costs order for reimbursement of plaintiff’s costs should be made against unsuccessful claimant

HIGH RISK SEX OFFENDER – interim supervision order sought – amendment Act – amended provisions apply – preliminary hearing – mandatory factors – determination under s 5B(d) – extended supervision order – appointment of psychiatrists – conditions – directions

CRIME – procedure – joint or separate trials of accused – evidence in case of co-accused inadmissible in case of accused may bolster credibility of crucial witnesses – capacity of jury directions to ameliorate prejudice

COSTS – civil – appeal from the NSW Civil and Administrative Tribunal Appeal Panel – defendant sought lump sum costs order – plaintiff agreed with lump sum costs order

COSTS – clarification of orders – slip rule – no point of principle

COSTS – application by an accused person for review of the decision of a Magistrate refusing to direct witnesses to attend committal proceedings to give oral evidence – application dismissed – whether costs should follow the event

EVIDENCE – admissibility – criminal proceedings –tendency evidence – coincidence evidence – two murders – both deceased close relatives of accused – accused under financial pressure in relation to each – circumstances of both killings indicative of being premeditated – evidence in relation to each that accused arranged the killings – coincidence evidence admissible – tendency evidence inadmissible – severance of counts refused

EVIDENCE – admissibility – criminal proceedings – two murders – hearsay – maker unavailable – representations to a friend – admissibility of various representations made by deceased wife said to be relevant to husband's involvement in the murder of herself and the earlier murder of her brother – Evidence Act 1995 (NSW), ss 65, 66A, 137

REAL PROPERTY – Interest in property pursuant to deed of agreement – Whether undue influence or unconscionable conduct vitiated the deed – Whether the deed was unjust in the circumstances in which it was entered into – Whether the deed was repudiated by a failure to make payments required by the deed

DEFAMATION – defences – fair comment at common law – where journalist plaintiff wrote articles published in The Sun Herald reporting cover-up of discovery of toxic substances at levels above health limits on land used by children as a playground – where articles illustrated by photographs of children in playground – where no tests conducted in playground area – where no discovery of such toxic substances on nearby land – where articles criticised by Media Watch programme – where plaintiff pleaded imputations of trickery and irresponsible journalism – whether Media Watch opinion based on proper material for comment DEFAMATION – defences – honest opinion – s 31, Defamation Act 2005 (NSW) DEFAMATION – defences – justification – whether imputations of trickery and irresponsible journalism substantially true – s 25, Defamation Act 2005 (NSW) DEFAMATION – defences – contextual truth – whether plaintiff’s reputation not further harmed by her defamatory imputations because of substantial truth of contextual imputations – s 26, Defamation Act 2005 (NSW)

BUILDING AND CONSTRUCTION – claims for progress payments under Building and Construction Industry Security of Payment Act 1999 – underlying contractual debts assigned – whether payment claims valid – whether adjudication determinations valid

CONTRACTS – anticipatory breach – where vendor repudiated contract for sale of development land and purchaser elected to terminate – where purchaser brings action in damages for loss of bargain – whether purchaser satisfied requirement that it was not substantially incapacitated from performance at time of termination – whether primary judge erred in formulation of that test of readiness and willingness – whether purchaser also required to prove on balance of probabilities that it would have proceeded to completion but for repudiation VALUATION – development land – evidence of informal and unaccepted offers – whether primary judge erred in giving no significant weight to that evidence

APPEAL – application for leave – primary judge refused lengthy extension of time to bring application for judicial review – whether leave should be granted to raise points not raised before primary judge – whether application raised question of principle or matter of general importance or injustice going beyond what was merely arguable – leave refused

COSTS – abandonment of application for stay of execution – no reason for costs not to follow the event

MALICIOUS PROSECUTION – civil proceedings brought by accused following failed prosecution for murder – challenge to failure to find malice – no appellable error – application of principle in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 – challenge to failure to find absence of reasonable and probable cause – appeal dismissed POLICE – arrest – claim of wrongful arrest – test of reasonable suspicion – whether primary judge applied wrong test – whether defendant established reasonable suspicion that plaintiff had committed an offence – cross-respondent not permitted to run new case on appeal – cross-appeal allowed

GUARDIANSHIP – Plaintiff seeks judicial review of orders of the Guardianship Tribunal of the Civil and Administrative Tribunal – no question of principle

Land Law – extension of caveat pending trial – alleged security interest arising out of solicitor/client costs agreements – prima facie case – balance of convenience

CONTRACTS – construction of settlement deed – no question of principle

CRIMES (HIGH RISK OFFENDERS) ACT 2006 – application for extended supervision order – final hearing – whether unacceptable risk of defendant committing another serious violence offence – index offence wounding with intent to cause grievous bodily harm – very lengthy history of violent offences – most involving no or relatively minor injuries – index offence only serious violence offence – use of weapons considered – anger management problems – alcohol abuse – risk of further violent offending posed – low prospect of further offences becoming serious – supervision highly desirable – extended supervision orders not substitute for parole – application dismissed

CRIMINAL LAW – SENTENCE – murder – s 18 Crimes Act 1900 (NSW) – multiple stab wounds causing death – sexual offences – kidnapping - pleas of guilty – 21 other offences taken into account against offence of murder – question of whether a sentence of life imprisonment should be imposed –relevance and extent of drug use - breach of trust

CIVIL PROCEDURE- Court administration – case management – Practice Notes - interest – interest up to judgment – Civil Procedure Act 2005, s 100 – whether compound interest applicable – application of Practice Note SC Gen 16.

INJUNCTIONS – freezing order obtained ex parte in aid of proceedings at NCAT – whether material matters not disclosed – whether freezing order should be set aside

Churches and Religious Associations – association conducting Buddhist Monastery with connections to Laotian community – dispute as to governance and membership of association – appointment of receiver with power to admit lay members