Cases and authorities

CIVIL PROCEDURE — Default judgment — Where second cross defendant failed to appear or file a defence — Whether cross claimant entitled to default judgment — Whether cross claimant adequately served second cross defendant — Whether cross claimant gave adequate evidence of service — Evidence of damages claimed by cross claimant.

CIVIL – Mental Health Forensic Provisions Act 1990 (NSW) – application for interim extension order – forensic patient – limiting term due to expire – whether unacceptable risk of causing serious harm if status as forensic patient ceases

CRIMINAL LAW - application for trial by Judge alone - Accused charged with two counts of murder - no issue that Accused shot dead each victim with intent to kill - trial issues involve defence of mental illness or partial defence of substantial impairment - issue concerning credibility of Accused’s account given to psychiatrists - substantial impairment involves quintessential jury issue - whether in interests of justice to make order for Judge-alone trial - application refused

CORPORATIONS — Winding up — Conduct of liquidation — Application for directions – where company entered agreements with all shareholders providing for cancellation of their shares – where agreements authorise issue of levies by company to shareholders for expenses of carrying on the company – whether liquidators should cause company to cancel its shares – whether further levy should be issued to shareholders – whether directions sought should be given.

HIGH RISK OFFENDER – serious sex offender – preliminary hearing – application for interim supervision order and for examination by court-appointment of psychiatrists – relationship between current conditions of parole and conditions to be imposed under the supervision order – specificity of conditions – alterations to standard form conditions – resolving disputes about the nature and wording of conditions

CIVIL LAW – proceeds of crime – whether to direct Official Trustee to sell property and distribute proceeds – priority of interests – where pecuniary penalty order exists – statutory charge – whether to grant a stay of proceedings – where appeal against pecuniary penalty order is contemplated – where time limit for appeal expired over a year ago – where application for special leave to appeal against conviction contemplated – where time limit long ago expired – reasons for delay in instituting appeals – serious medical conditions – where outstanding strata levies to the Owners Corporation exist

CONTRACT – avoidance of contract as sham – circumstances warranting characterisation of transaction as sham – HELD – executed contract which provided for transfer of property to sixth defendant did not reflect true intentions of the parties to become co-owners REAL PROPERTY – order for withdrawal of caveat made in respect of contract found to be a sham REAL PROPERTY – equitable mortgage – right of equitable mortgagee to sale and possession COSTS – provision for application for costs to be specified in gross sum

ADMINISTRATIVE LAW – Child Protection (Working with Children) Act 2012 – application for enabling order – applicant convicted of sexual assault against adult in 1973 – no offences since 1980 – seeks clearance certificate to care for step-granddaughter – application previously refused by NCAT but set aside on appeal – same Senior Member allocated to hear matter – apprehension of bias – Senior Member previously found applicant posed a risk to children – rejected applicant’s credit – declined to recuse himself – apprehended bias established – apprehension of bias affected NCAT decision as only two members made decision – NCAT referred to absence of applicant engaging in pro-social behaviours – alleged involved taking into account irrelevant considerations – failure to afford procedural fairness – no notice given of intention to rely on absence of pro-social behaviour –applicant could not reasonably anticipate it would be relied upon – alleged failure to provide adequate reasons – not established –decision set aside – attempt to separately appeal decision of Senior Member to refuse to disqualify themselves – appeal futile – relief refused

BAIL – charge of discharging a firearm with intention to cause grievous bodily harm – charge of knowingly participating in a criminal group – charge of shooting at a person with intent to commit murder – show cause requirement – assessment of strength of Crown case – where undesirable length in custody awaiting trial – bail refused

APPEAL – appeal from local court – where prosecutor withdrew all charges on first day of hearing – where plaintiff instead sought dismissal of charges and order for costs – where Magistrate refused to award costs following automatic dismissal – whether Magistrate’s orders were interlocutory or final – whether judicial review is available – whether Magistrate made an error of law or jurisdictional error

Succession – construction of will – deceased owned residential unit and car parking space on separate titles in apartment building – devise of “share and interest in Flat 20” – whether car parking space part of devise

PRACTICE AND PROCEDURE – Appeal – Application for an extension of time in which to seek leave to appeal against a decision of the NSW Civil and Administrative Tribunal – Necessity to consider the merits of the proposed appeal – Where Tribunal dismissed the proceedings brought by the plaintiff following a long series of procedural defaults and failures to comply with orders – No error on the part of the Tribunal – No miscarriage of discretion – Where appeal had no prospects of success – Application for an extension of time refused – Proceedings dismissed

EVIDENCE – Expert evidence – Proceedings alleging negligence by a Neurosurgeon – Where plaintiff sought to rely upon the evidence of a Neurologist – Whether Neurologist had the requisite specialised knowledge based upon training study and experience to express an opinion regarding surgery – Opinion admissible PRACTICE AND PROCEDURE – Rules governing the admissibility of expert reports – Whether the Court should dispense with the operation of those rules in the exercise of its discretion PRACTICE AND PROCEDURE – Service of expert medical report outside the terms of orders made by the Court – Failure on the part of solicitor to have proper regard to those orders – Where exclusion of the report would leave the plaintiffs in a position where they had no expert evidence from a Neurosurgeon – Where no demonstrated prejudice to the plaintiff if the report were admitted – Where the hearing would not be delayed if the report were admitted – Exceptional circumstances made out – Leave granted to admit the report

CIVIL PROCEDURE – application for stay of orders pending appeal – stay of declarations – leases of premises due to expire – claimed right of continuing occupation under separate Deeds rejected by trial judge – threat of immediate eviction – hardship or prejudice to applicants if stay not granted – merit of proposed appeal – discretionary considerations

OCCUPATIONS – legal practitioners – application to remove solicitor from roll – whether disbursements or “transit money” payable to third parties are “costs due to the practice” – whether such money therefore not trust money under statute – solicitor deposited payment from clients into office account rather than trust account – solicitor spent money for his own purposes, with result that barrister and expert witness were not paid – whether solicitor misappropriated trust moneys WORDS AND PHRASES – “legal costs” – “trust money” – Legal Profession Act 2004 (NSW), ss 4, 246(4)

TRADE PRACTICES – misleading and deceptive conduct – whether failure to disclose creditors’ unilateral right to convert debts to equity was misleading and deceptive – whether reasonable expectation on the part of the respondent as prospective investor that convertibility of loans to equity would be disclosed – where failure to disclose occurred before respondent acquired its shareholding in companies – where purported conversion of loans to equity diluted respondent’s shareholding significantly. TRADE PRACTICES – misleading and deceptive conduct – whether non-disclosure of convertibility of loans to equity was causative of respondent’s decision to acquire shares in companies. TRADE PRACTICES – misleading and deceptive conduct – whether primary judge erred in apportioning responsibility for misleading and deceptive conduct equally between appellants. APPEAL AND NEW TRIAL – application to adduce further evidence – whether substantial injustice to the appellants if unable to rely on further evidence – where evidence was available by reasonable diligence to be adduced at trial – where high degree of probability of a different result at trial.

ADMINISTRATIVE LAW – procedural fairness – bias – apprehended bias – whether primary judge should have recused herself EVIDENCE – whether primary judge erred in admitting evidence about unpaid rent and outgoings – letter of demand tendered by appellant for non-hearsay purpose – effect of s 60 of the Evidence Act – business record – s 69 of the Evidence Act CONTRACTS — guarantee - misleading or deceptive conduct – whether representations made – whether reliance on representations

SUCCESSION — family provision — appeals — deceased left estate to one of two daughters – both daughters were loving and attentive children – respondent had financial need – respondent had received early inheritance - whether primary judge erred in ordering that provision be made under s 59 of Succession Act 2006 (NSW) in favour of respondent — whether appellate intervention warranted — consideration of correctness of “two-stage” approach in application of s 59 of the Succession Act 2006 (NSW) — whether primary judge erred in assessment of appellant’s claim on estate - whether primary judge failed to give proper consideration to deceased’s assessment of what was the appropriate testamentary disposition

CIVIL PROCEDURE – Notice of motion to set aside or vary a judgment or order

SUCCESSION – family provision – application for family provision order under s 57(1)(d) of the Succession Act 2006 (NSW) by former spouse of deceased – primary judge awarded $750,000 legacy out of estate valued at about $5 million – whether factors warranted the respondent making the application within s 59(1)(b) of the Succession Act 2006 (NSW) – whether respondent a natural object of testamentary recognition in circumstances where marriage had ended 25 years previously and financial affairs resolved by final orders of Family Court

TORTS – negligence – occupier’s liability – causation – whether primary judge erred in finding that a reasonable person in the position of the appellant would have taken alleged precautions – whether primary judge adequately considered the matters required under s 5B(2) of the Civil Liability Act 2002 (NSW) – whether respondent’s injury caused by breach of duty by appellant – whether scope of appellant’s liability extended to harm suffered by respondent – where respondent challenged primary judge’s finding that the risk causing injury was obvious

CRIMINAL LAW – Sentence – Appeal – Asserted Muldrock error – Whether sentencing Court erroneously applied the decision in R v Way – Whether error evidence from the arithmetical neatness of the sentence imposed CRIMINAL LAW – Sentence – Appeal – Asserted Mudrock error – Whether sentencing Court erred in taking into account matters personal to the appellant when assessing the objective seriousness of the offending – Whether a distinction is to be drawn in this respect between an assessment of objective seriousness of an offence to which a standard non-parole period applies, and an assessment of objective seriousness of every other offence

EVIDENCE – tendency evidence – where accused assaulted his domestic partner on two separate and earlier occasions – whether evidence of assaults had significant probative value in relation to charges of sexual assault in circumstances of aggravation namely intentionally inflicted actual bodily harm immediately before the offence – whether probative value substantially outweighed prejudicial effect CRIME – sentencing – sexual offences – objective seriousness – where non-consensual digital penetration degrading and demeaning towards complainant – whether short duration and absence of sexual gratification diminished objective seriousness

CRIME – appeal – application for leave to appeal against conviction – charge of possession of unregistered and prohibited firearms under Firearms Act 1996 (NSW) – whether errors in admitting evidence at trial – whether errors in trial judge’s directions to the jury CRIMINAL PROCEDURE – jury directions – leave to appeal against trial judge’s directions required under Criminal Appeal Rules (NSW), r 4 – whether error in directions regarding jury’s consideration of sworn evidence of accused – whether error in directions regarding potential lies told by accused under oath CRIMINAL PROCEDURE – video of search – failure to edit out inadmissible evidence – whether replay stopped before prejudice realised – whether jury should have been discharged EVIDENCE – admissibility – relevance of machine gun construction manual found in premises of co-accused to firearm possession offences – whether “tendency evidence” under Evidence Act 1995 (NSW), s 97

SENTENCE APPEAL – offences of ongoing supply of a prohibited drug – further offence taken into account – offence taken into account against charge other than the principal offence – s 33 Crimes (Sentencing Procedure) Act considered – error conceded by Crown – re-sentence

CRIMINAL APPEAL – sentence appeal – question of leniency to be allowed – willingness to facilitate the course of justice – determination of non-parole period – whether non-parole period adequately reflects plea of guilty – ratio of sentence for Federal offences

CRIMINAL LAW - appeal against sentence - 16-year old applicant pleads guilty to discharging a (shortened) firearm with intent to cause grievous bodily harm - committed for sentence to District Court - applicant and Crown request District Court to pass sentence for related offences on certificate under s.166 Criminal Procedure Act 1986 - offences of possession of an unregistered firearm and failing to keep a prohibited firearm safely - sentences of imprisonment imposed for offences - argued on appeal that s.166 certificate procedure not available for related offences - held s.166 certificate procedure was available - whether sentences manifestly excessive - held sentences not manifestly excessive - appeal dismissed

CRIME – appeal against sentence – high degree of assistance to authorities – discount of 20% for assistance – total combined discount 45% for assistance and guilty plea – whether discount for assistance sufficient – limit in s 23(3) Crimes (Sentencing Procedure) Act 1999 – discount discretionary assessment – no error CRIME – appeal against sentence – specially aggravated enter dwelling with intend to commit robbery in company – specially aggravated break, enter and commit robbery in company – manifest excess – use of comparable cases – no meaningful range to be found – sentence not manifestly excessive

CRIME – appeal against conviction – where defence counsel opened to the jury that the accused would give evidence – where accused did not give evidence – whether combination of those events resulted in a miscarriage of justice – alleged incompetence of defence counsel in failing to seek a discharge of the jury or a specific direction – whether miscarriage of justice CRIME – appeal against conviction – obligation of trial judge to put fairly before the jury defence case – short trial run on single issue of complainant’s credibility – whether judge obliged to summarise submissions – whether miscarriage of justice

CORPORATIONS — Winding up – Statutory demand – offsetting claim – where funds frozen by proceeds of crime order – held, not a sufficient other reason under s459J(1)(b) – where there is an arguable and genuine offsetting claim under s 8AAZL of the (CTH) Taxation Administration Act 1953 ­– held, claim may be offset pursuant to (CTH) Corporations Act s 459H(4) CORPORATIONS — Winding up – Appointment of provisional liquidator – where prima facie case of insolvency and concern assets may be at risk –related proceeds of crime proceedings – held, it is fair and just to balance the competing interests to appoint a provisional liquidator be appointed with conditions. CORPORATIONS — Winding up –Application for stay – whether proceeding should be otherwise stayed until the conclusion of the pending committal proceedings – held proceedings should be stayed.

PRACTICE AND PROCEDURE – consolidation of proceedings

CORPORATIONS — Winding up — Statutory demand — Application to set aside –whether genuine dispute and quantum of offsetting claims sufficiently evidenced – whether demand should be set aside for substantial defect or some other reason.

JUDGMENTS – practice and procedure – whether judgment should be re-opened – whether unheralded and unbidden finding made concerning an aspect of the plaintiff’s claim for damages – whether that finding should be revisited – whether a different finding should be made – DAMAGES – whether plaintiff had failed to establish quantum of necessary deduction from its damages claim of damage to stock – whether entire damages claim for stock should be dismissed on that account

HIGH RISK OFFENDER – application for ISO – index offence murder – defendant on parole – statute requires reference to allegation not evidence but allegations must be reasonably based – allegations are reasonably based and, if proved, would warrant ESO – conditions imposed identical to parole conditions, necessary changes being made.

CONTEMPT - Contempt of court - improper pressure NATURAL JUSTICE - Rule against bias - Reasonable apprehension of bias - whether principles of apprehended bias applicable to defendants

CRIMINAL LAW – sentence - plea of guilty to manslaughter by unlawful and dangerous act - offender drove stolen vehicle through fence enclosing backyard of residential property to escape police - offender’s vehicle struck and killed 18-month old child in backyard - offender then drove dangerously in a park and on public streets in course of police pursuit - Form 1 offences of take and drive vehicle without consent, driving dangerously during a police pursuit and driving never having been licensed to be taken into account on sentence - offender 22 years old at time of offences - bad criminal history including dangerous driving during police pursuit - offender on bail at time of present offences - manslaughter offence of very high level of objective gravity - offender’s dysfunctional background - institutionalisation - application of principles in Bugmy v the Queen - issues of accumulation and totality given offender’s current sentences for unrelated matters - substantial sentence required with partial accumulation on existing sentences

COSTS – usual rule that costs follow the event – where plaintiff succeeded in action for damages for defamation but failed on later application for injunctive relief – defendants seeking costs of later application – complaint of inordinate delay by the defendants in removing defamatory matter from the internet – where court had previously accepted that any delay was adequately explained

PRACTICE AND PROCEDURE – representative proceedings – two overlapping shareholder open class actions against corporate defendant and in one case also against former officer of the corporate defendant – group members in each proceeding almost identical – claims made in both proceedings substantially the same – corporate defendant in administration – proceedings thus stayed against that defendant – no application in either proceedings for leave to proceed – administrators exploring means to deal within the external administration with claims of group members – whether common fund order should be made in one proceeding before those matters resolved and before decision made as to how in the best interests of group members the two cases are to proceed

PRACTICE AND PROCEDURE – application to remove proceedings in the Supreme Court to the District Court to avoid exposing plaintiff to risk of not obtaining his costs under Uniform Civil Procedure Rules 2005 (NSW), r 42.34 if judgment less than $500,000 – HELD – application refused – not satisfied that proceedings could properly have been commenced in the District Court – connection with this Court and complexity of the proceedings make transfer inappropriate

FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation - Application for the adoption of a child in favour of a married couple - Father of the child opposes orders - Mother of the child does not consent but did not appear at the hearing –– Whether consent of child’s birth parents should be dispensed with – Whether order for adoption of child should be made in favour of proposed adoptive parents – Whether proposed name change for child to include surname of proposed adoptive parents, and remove surname of the mother, should be approved

CONTRACTS – general contractual principles – construction and interpretation of contracts – whether later agreement superseded earlier agreements – whether entitlement to additional interest payments on principal sum if the first plaintiff’s visa application was declined – HELD – earlier Proposal Letter constituted separate agreement which entitled second plaintiff to additional 5% interest COSTS –when proceedings commenced prematurely before debt due and payable – whether costs ought be awarded for period before cause of action accrued when likely that they would have been incurred in any event – HELD – leave granted to apply for gross sum costs order to make allowance for costs unnecessarily incurred by premature commencement of proceedings JUDGMENT – plaintiffs’ claim not actively contested – defendants appeared but did not adduce evidence or challenge plaintiffs’ evidence

CONTRACT – the nature of the contract and its terms – implied terms – whether the defendants breached one or more of these terms – CONTRACT – whether the parties had a right to terminate – CONTRACT – whether the defendants repudiated or breached the contract – EQUITY – the nature and extent of the equitable and fiduciary duties owed – whether the defendants breached one or more of these duties – CONSUMER LAW – whether the defendants engaged in misleading or deceptive or unconscionable conduct – whether the plaintiff suffered loss or damage because of that conduct – EVIDENCE – affidavit evidence – evidence in reply – re-opening case – where admission into evidence would be unfair to the defendants – Evidence Act 1995 (NSW) s 135 – CIVIL PROCEDURE – pleadings – amendment – late application for amendment – where leave to amend would be unfair to the defendants

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Where plaintiff failed to provide a properly pleaded statement of claim. COSTS — Costs assessment — Determination — Application for gross sum costs order — Where plaintiff abandoned claim for relief sought in summons — Where plaintiff denied leave to file a statement of claim seeking alternate relief.

STATUTORY INTERPRETATION – principles of statutory interpretation – meaning of “a party to the deed” in Conveyancing Act 1919 (NSW), s 38(1) – where section amended after its introduction – whether amendment alters meaning of remaining provisions of section – whether context requires broad reading of “party” to include persons who sign for a party or are otherwise associated with a party – ordinary meaning of “party” preferred CONTRACTS – deeds – attestation of deeds – Conveyancing Act 1919 (NSW), s 38(1) – whether signatory for party is capable of attesting execution of deed – whether person associated with party is capable of attesting execution of deed – attestation valid CONTRACTS – deeds – attestation of deeds – Conveyancing Act 1919 (NSW), s 38(1) – whether s 38 applies to execution of deeds by corporations – held, it does not have general application to execution of deeds by corporations CONTRACTS – deeds – general principles of construction – where interest accrued monthly under deed of loan – whether borrower required to pay interest prior to repayment of principal – no obligation to pay interest prior to repayment of principal LIMITATION OF ACTIONS – multiple applicable limitation periods – whether cause of action is founded on a contract not a deed – whether plaintiff’s claim for principal under deed of loan barred – plaintiff’s claim not barred LIMITATION OF ACTIONS – mortgages – where claim founded on equitable mortgage and equitable charge – whether Limitation Act 1969 (NSW), s 40 applies so that claim is not affected by Limitation Act – held, s 40 only operates to exclude rights and remedies of a registered proprietor from the provisions of the Limitation Act LIMITATION OF ACTIONS – mortgages – interest secured by mortgage – effect of Limitation Act 1969 (NSW), s 43 – whether plaintiff able to claim interest prior to commencement of proceedings – plaintiff able to claim interest which accrued in six years prior to commencement of proceedings

CONTRACT – Construction – Words and phrases – Whether “management accounts” means “accounting records” – Whether information requested by plaintiffs falls within the phrase “management accounts” – Whether proposed expert is the appointed “Expert” for the purposes of a business sale agreement – Significance of proposed expert’s reference to “rescinding” his appointment – Whether terms of proposed appointment are reasonable

TORTS – Conversion and detinue – plaintiff/retail tenant wrongfully evicted by landlord/defendant – upon eviction landlord takes possession of tenant’s stock, plant and equipment – earlier hearings decide the tenant’s eviction was in breach of lease but neither determined whether the landlord converted the tenant’s plant and equipment, nor assessed damages for conversion – new trial ordered on these issues – whether the landlord converted the tenant’s plant and equipment – whether the director of the corporate landlord was involved in the commission of the tort - whether the tenant abandoned its plant and equipment – whether the plant and equipment should be valued on a going concern basis or on a liquidation sale basis – whether there is sufficient evidence of the market value of the plant and equipment - quantification of the market value of the plant and equipment. CIVIL PROCEDURE – Separate determination of questions – Consequences of - new trial ordered by Court of Appeal – new trial limited to the plaintiff’s claim for damages by reason of the defendants’ use of and failure to return the appellant’s plant and equipment

CIVIL PROCEDURE — Court of Appeal — stay of proceedings — summons for judicial review — review of primary judge’s decision to grant leave to reopen case — operation of District Court Act 1973 (NSW) s 142J and s 142N — whether judicial review available — whether applicant denied procedural fairness — jurisdictional error not established APPEAL AND NEW TRIAL — appeal — practice and procedure New South Wales — application for leave to appeal from decision of District Court in compensation jurisdiction — applicant will be entitled to appeal from final award if award is adverse to it — inappropriate to interfere with District Court proceeding

NEGLIGENCE – personal injury – child appellant injured after ingesting corrosive substance left in a glass – whether respondent responsible for presence of substance in glass – credit based findings led to primary judge’s rejection of appellant’s case – Fox v Percy (2003) 214 CLR 118 – whether primary judge’s findings were glaringly improbable EVIDENCE – reliability of hospital and other medical records – relevant factors – Container Terminals Australia Ltd v Huseyin considered

CRIME – appeal against sentence – three offences relating to cannabis cultivation and supply – enhanced indoor cultivation – commercial quantity – finding of special circumstances – insufficient reduction of non-parole period – sentencing discretion miscarried – re-sentence – reduction of non-parole period to give practical effect to finding of special circumstances – appeal allowed CRIME – appeal against sentence – parity – same sentence imposed on co-offender – whether justifiable sense of grievance – both co-offenders principals of enterprise – little to distinguish levels of co-operation – favourable findings made for both subjective cases – difficult to distinguish between co-offenders

CRIME – crown appeal against sentence – sexual offences – offending occurred in 1990 – no delay in complaint – lengthy delay in identification of offender – rehabilitation in years between offending and sentence – consideration of sentencing practice at the time of offending – role of denunciation and general deterrence – sentences manifestly inadequate CRIME – Crown appeal against sentence – non-parole period 20% of head sentence – error to consider objective gravity for head sentence and mitigating subjective factors for non-parole period – non-parole period must reflect criminality CRIME – crown appeal against sentence – patent error conceded – cannot re-sentence without finding manifest inadequacy