Cases and authorities

ADMINISTRATIVE LAW – judicial review – motor accidents compensation – assessor’s obligation to give reasons – inadequacy of reasons – past loss of earnings – future economic loss – compliance with s 126 of the Motor Accidents Compensation Act 1999 (NSW) – declaratory relief – certiorari – orders

PROCEDURE – application to transfer into and out of the Supreme Court to overcome the jurisdictional limit of the District Court – abuse of process – in the alternative transfer application from the District Court to the Supreme Court – explanation for delay – discretionary factors – summons dismissed

CRIME – sentence – murder – whether offence so grave as to warrant imposition of maximum prescribed penalty – discretion to impose determinate sentence – consideration of youth of offender CRIME – sentence – aggravated sexual assault – whether offence so grave as to warrant imposition of maximum prescribed penalty – where acts constituting sexual intercourse also contributed to cause of death – need to avoid double punishment

COSTS – where plaintiff accepts offer of compromise made by defendant for $375,000 and no provision for costs is made in the offer – whether UCPR 42.34 applies – HELD – UCPR 42.34 applies – matter of discretion whether order for costs in favour of plaintiff ought be made – evidence required to satisfy the Court that the commencement and continuation of the proceedings in this Court was warranted – pleadings sufficient in circumstances of present case

CORPORATIONS — Receivers and managers — Appointment by court — Application for approval of remuneration – whether remuneration claimed is fair and reasonable. CORPORATIONS — Receivers and managers — Appointment by court – Application for discharge – where receiver continues to hold proceeds of receivership – where receiver proposes to hold funds in trust for parties to litigation in which entitlement to those funds is in contest.

APPEAL – civil – appeal from the NSW Civil and Administrative Appeal Panel – Appointment of Administrator – subsequent voluntary liquidation – whether Appeal Panel omitted to deal with issue of Tribunal’s lack of jurisdiction per s 500 – whether the Appeal Panel erred in law in concluding that it was not necessary to determine whether s 440D of the Corporations Act applied to proceedings in the Tribunal – whether the Appeal Panel erred in law in concluding the consent provided by the Administrator was valid for the purposes of s 440D – whether the Appeal Panel erred in law refusing otherwise to grant leave to appeal from a costs order made in circumstances where the Senor Member was proceeding under a material error of fact – Appeal Panel erred in law in failing to deal with “jurisdiction question” raised regarding s 500 – in effect, the Appeal Panel erroneously found the Tribunal had jurisdiction – failure to determine application of s 440D – limited or qualified consent given by the Administrator in Tribunal proceedings invalid for the purposes of s 440D – leave to appeal granted

CIVIL LAW – medical negligence – application to amend statement of claim – where no prejudice to the defendant – notice to produce – whether documents sought relevant to issues – “special reasons” – relevant considerations – whether amendment calculated to justify notice to produce – whether the tail is wagging the dog – costs – where success on notion dependant on amendment of statement of claim – where application to amend came after filing of notice of motion – where plaintiff largely succeeds on motion – in spite of success the plaintiff should bear the costs of the motion

COSTS - partly unsuccessful application by plaintiff for summary judgment – Uniform Civil Procedure Rules 2005 r 42.1 – application for some other order to be made – asserted central issue to defence not previously pleaded or notified to plaintiff but raised at hearing of application – no order as to costs – no question of principle

APPEALS – prosecution appeal – whether magistrate erred by excluding all prosecution evidence of defendant resisting arrest and assaulting officers – decision to exclude was in error – dismissal of charges set aside – remitted to Local Court EVIDENCE – defendant arrested on outstanding warrant – failure to caution – police officers’ evidence of defendant’s conduct post-arrest at issue – charged with resist arrest and assault police officer – s 138 Evidence Act 1995 – whether improperly obtained or in consequence of impropriety – “good practice” to caution irrespective of questioning – not an obligatory duty – not an impropriety for purposes of s 138 – further question of causation – lack of caution unconnected to evidence of defendant’s conduct EVIDENCE – unclear on what basis evidence excluded – s 139 Evidence Act 1995 – no questioning – s 139 had no application

BUILDING AND CONSTRUCTION – Home Building Act 1989 – Statutory warranties – Breach – Calculation of damages for cost of rectification of defects – Calculation of delay costs CONSUMER LAW – Australian Consumer Law s 18 – Misleading or deceptive conduct – Whether defendants made representations – Whether representations were misleading or deceptive – Whether plaintiffs relied on representations CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Whether plaintiff entitled to costs of rectifying defects in building or cost of demolition and rebuild CONTRACTS – Building and construction – Formation – Whether first defendant entered into contract with plaintiffs – Whether contract varied by agreement CONTRACTS – Remedies – Damages – Remoteness of damage – Whether plaintiff’s impecuniosity must be taken into account in determining what loss is reasonably foreseeable CONTRACTS – Termination of contract – Repudiation – Whether first defendant repudiated contract – Whether plaintiffs accepted repudiation NEGLIGENCE – Duty of care – Breach – Whether third defendant breached duty of care in issuing construction certificates – Whether plaintiffs suffered loss as consequence of defendants’ breach

LIMITATION OF ACTIONS – retainer – claim for payment of legal fees – whether claim extinguished under Limitation Act 1969, s 63 - whether proceedings for recovery of fees brought by solicitor – whether client pleaded the limitation issue – whether client estopped from relying on limitation issue. COSTS – solicitor/client – recovery – bill of costs – whether solicitor provided bill of costs – whether bill of costs sent for assessment – whether assessment is an “action” for the purposes of the Limitation Act.

DEFAMATION – defences – application to strike out truth defences – significance of “liking” a post on Facebook – whether capable of establishing responsibility for post – contextual imputations – whether different in substance from plaintiff’s

CONTRACT – construction – construction contracts – performance bonds – injunction – serious question to be tried – balance of convenience INTERNATIONAL ARBITRATION – interlocutory relief where underlying dispute to be determined by arbitral tribunal

EVIDENCE – urgent appeal from ruling in criminal trial – conduct leading to previous conviction tendered as tendency evidence – dispute as to whether admissions in previous offence proceedings admissible as tendency – question was were admissions made – Remarks on Sentence of previous proceedings admissible in voir dire in present proceedings to prove existence of agreement in previous proceedings and thereby the admissions made.

CRIME – manslaughter – conviction appeal – whether verdict unreasonable and unsupported on evidence – differences in witnesses’ accounts of fatal assault. CRIME – manslaughter – sentence appeal – utilitarian discount – whether discount available where plea offer rejected by prosecutor – where offer made subject to facts to be agreed and not particularised – where applicant’s case at trial and on appeal inconsistent with plea - whether sentencing judge made unsustainable findings on sentence – whether remorse demonstrated – finding of remorse precluded by continued denial of gravamen of crime.

Judicial Advice

COSTS – further consideration

CONTRACTS - general contractual principles - construction and interpretation of contracts INSURANCE - general - Policies of insurance – duty to act in utmost good faith

GUARANTEE AND INDEMNITY – where plaintiff and defendant were related companies – where defendant’s general ledger showed debt owing to plaintiff – whether presumption arising from s 1305 of the Corporations Act 2001 displaced - where defendant provided security for plaintiff’s indebtedness to a lender - where lender appropriated security in partial satisfaction of plaintiff’s indebtedness – where such appropriation not reflected in defendant’s general ledger – where defendant in effect acted as surety for plaintiff’s indebtedness to lender – whether defendant entitled to indemnity from plaintiff

CORPORATIONS — Winding up — Conduct of liquidation — Application for directions – where liquidators of two companies propose to settle claims between companies – where claims complex and expensive to litigate – where companies share many common creditors – whether settlement reasonable – whether liquidators justified in entering into and performing obligations under settlement deed.

COSTS – Party/Party – General rule that costs follow the event – Proceedings discontinued or dismissed – No issue of principle

TORTS – false imprisonment – respondent stopped by transport police and requested to produce evidence of Opal card concession entitlement – respondent detained while his details were verified – nature of detention – whether consensual TORTS – false imprisonment – Passenger Transport Regulation 2007 (NSW), cl 77C – whether transport police entitled to direct production of photo identification as “evidence” of concession entitlement – whether implied power to stop and detain for purpose of determining entitlement – whether detention justified

CRIMINAL LAW – appeal – conceded error in taking Form 1 offences into account on each charge instead of specifying the count – principles of parity discussed in re-sentencing – appeal allowed – sentence reduced.

CRIMINAL LAW – appeal against conviction and sentence – truck collision at intersection – whether collision the result of dangerous driving – brake failure – whether sentence was manifestly excessive – whether appellant was wrongly convicted – admission of expert evidence based on assumptions – whether reasons given were inadequate – unsafe, unsatisfactory or unreasonable verdict – leave to appeal granted – conviction appeal upheld – convictions quashed – appellant released forthwith

CIVIL – representative action – common issues – answers – no point of principle.

COSTS – where plaintiff sought declaration that proposed conduct not unlawful – where court declined to make declaration as a matter of discretion – where only active defendant not a disinterested contradictor

DEFAMATION – defamatory meaning – Facebook posts – whether imputations conveyed DEFAMATION – defences – statutory defence of honest opinion – whether defamatory sense of matters complained of would be understood as opinion or fact DEFAMATION – damages – where plaintiff did not give evidence – no entitlement to damages for hurt feelings or aggravated damages – vindication – where plaintiff a highly esteemed religious leader – likelihood that defamatory statements would be dismissed as having no foundation

COSTS – indemnity costs order sought – offers of compromise – Calderbank offers – no departure from usual costs order

LEGAL PROFESSION – application to remove a solicitor from roll of Australian lawyers – solicitor engaged in dishonest and unlawful conduct – court’s inherent jurisdiction – necessity to consider and evaluate totality of conduct – whether solicitor guilty of professional misconduct – whether solicitor not a person of good fame and character – whether solicitor not a fit and proper person to remain on the Roll of Australian lawyers

CRIMINAL LAW – appeal against conviction – hearsay evidence of co-accused admitted pursuant to exception to hearsay rule in s 65(2)(d) – where decision of trial judge made before the decision of the High Court in Sio v The Queen – miscarriage of justice conceded by Crown – whether to apply proviso – whether to order new trial or enter verdicts of acquittal

CRIMINAL LAW – appeal against sentence – two counts of supply of not less than the large commercial quantity of a prohibited drug – whether judge erred in failing to take into account the early pleas of guilty – whether judge erred in postulating a theoretical ‘street level purity’ of methylamphetamine without an evidential basis – whether there was a denial of procedural fairness – whether judge in error in the characterisation of the objective seriousness of the offences – whether failure to have proper regard to a finding of special circumstances – whether lesser sentence warranted

PROCEDURE – Summary dismissal – Want of prosecution with due despatch

CORPORATIONS – application for order under (CTH) Corporations Act 2001, s 1322, requiring company or defendant to establish register of members – whether company is in contravention – where company has insufficient directors to act – whether order rectifying contravention should be made against first defendant or company – enforcement of order against director.

CIVIL LAW – summary judgment – whether failure of defendant to put on evidence on notice of motion fatal – whether defendant can rely on verified pleadings – where plaintiffs advanced money under loan agreement – where repayment fell due and money not repaid – where defendant relies on cross-claim asserted deceptive and misleading conduct – whether failure to assert set off in cross-claim fatal

CIVIL PROCEDURE – late adjournment – appropriate having regard to particular circumstances – no point of principle

COMPROMISE – settlement of proceedings – judgment in favour of defendant – plaintiff under a disability – settlement approved – where there are no reasonable prospects of plaintiff establishing defendant’s negligence – where proposed settlement is in plaintiff’s best interests

CORPORATIONS – application to set aside a statutory demand – whether “some other reason” to set aside the demand under Corporations Act 2001, s 459J(1)(b) – where demand was served accompanied by a Service and Execution of Process Act 1992 (SEPA) notice – where applicant company not misled by the unnecessary SEPA notice and brought and served application to set aside the demand within 21 day period – whether unnecessary SEPA notice constitutes an “other reason” to set aside demand. CORPORATIONS – application to set aside a statutory demand – whether “some other reason” to set aside demand under s 459J(1)(b) includes that the debt the subject of the demand is not presently due and payable – where common ground that a “standstill” agreement was entered into between the creditor and the company precluding the enforcement of judgment debt if the debtor expeditiously pursued litigation against a third party – where dispute as to whether company had expeditiously pursued such litigation – whether applicant discharged onus of showing plausible contention requiring investigation that the debt was not presently due and payable by reason of the “standstill” agreement – consideration of standard of proof to set aside a demand for an “other reason” within meaning of s 459J(1)(b).

SUMMARY DISMISSAL – proceedings dismissed pursuant to UCPR 13.4 – where plaintiff’s statement of claim does not articulate a reasonable cause of action known to the law – where defendants have demonstrated that the case against them is so obviously untenable or manifestly groundless as to be utterly hopeless – where plaintiff has no reasonable prospect of establishing any cause of action against each defendant

CIVIL LAW – Summary Offences Act – marriage equality plebiscite – yes – Reclaim the Streets – where group notified Commissioner of Police of intention to assemble in Darlinghurst – whether prohibition order appropriate – proposed closure of Oxford Street – balancing of rights – historical significance of Oxford Street and Taylor Square – where parties negotiated alternative event - yes

CIVIL LAW – application to stay writ of possession – relevant considerations – where value of property exceeds amount of debt – where applicant has “in principle” loan agreement to re-finance family home left to her in her mother’s estate – where previous stay by agreement and agreement breached – stay granted

CORPORATIONS – deregistration and reinstatement – where applicant seeks reinstatement in order to obtain judgment against company and then enforce against guarantor – whether applicant a person aggrieved – whether just to order reinstatement – held, it is.

LAND LAW – conveyancing – the contract for sale – rescission – “off the plan” purchases – whether vendors complied with Conveyancing Act 1919 (NSW), s 66ZL– rescissions by vendors ineffective – specific performance ordered

COSTS – application for indemnity costs order and non – party costs order following abandonment of action – principal claim was that defendant executed deed of loan, guarantee and mortgage – defendant contended that his signature was forged – non-party is sole director and shareholder of plaintiff – described herself as “professional director” – Court does not decide case that was abandoned – contended that non-party swore false affidavit as to date when documents executed – finding made – non-party conducted litigation having sworn false affidavit – indemnity costs and non-party costs order made

CIVIL PROCEDURE – Court of Appeal – judgments and orders of – setting aside own orders – UCPR r 36.16 – application seeking direction that court’s own orders not be entered and seeking declaration that there was a miscarriage of justice in earlier hearing by court as constituted – need for finality of litigation – court did not fail to consider applicant’s submissions – court did not fail to consider applicant’s materials and evidence – orders to be entered – application refused

CIVIL PROCEDURE — Court of Appeal — Stay of proceedings — interlocutory relief sought to stay orders made by primary judge pending application for leave to appeal — orders appointing NSW Trustee & Guardian as manager of part of applicant’s estate under s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW) — mere filing of application for leave to appeal is not a basis to grant stay — no demonstrable basis for staying orders CIVIL PROCEDURE — Parties — Joinder — application to substitute tutor — appropriate to join solicitors of current tutor to proceedings — leave granted to amend notice of motion

ADMINISTRATIVE LAW – supervisory jurisdiction – review of decision of District Court confirming convictions, penalties, and disqualification from holding driver licence made by Local Court CRIMINAL LAW – procedure – whether disqualification from holding driver licence is stayed by application to review judgment and order of District Court – operation of s 69C of the Supreme Court Act 1970 (NSW)

CORPORATIONS – (CTH) Corporations Act 2001, s 459G – setting aside creditor’s statutory demand – whether there is a defect in the demand productive of substantial injustice – where demand does not identify each of multiple debts claimed – whether there is a genuine dispute as to the existence of the debts in the demand – where dispute as to identity of lender.

Civil Procedure – Application for hearing of issue as separate question – Whether plaintiff entitled to total permanent disability benefits – First stage of inquiry – Wording of separate question should follow Statement of Claim

GUARDIANSHIP – Appeal from NCAT – Civil and Administrative Tribunal Act 2013, Schedule 6, clause 14(1)(b) – Summary Dismissal – Abuse of Process – Failure to identify question of law or ground relied on for broader appeal – Failure to comply with court rules and orders – Proceedings maintained for collateral purpose – Appeal dismissed