Cases and authorities

EQUITY — Equitable remedies — Injunctions — Whether an interlocutory injunction against the first and second defendants should be discharged or continued in circumstances where the 33 plaintiffs had contracted to buy off the plan, 19 apartments from the first defendant, which had an option to buy the land, but did not proceed with or protect that option and whereupon the second defendant (the alter ego of the first defendant), proceeded to purchase the land with the intention of selling off the plan, all apartments for a higher price than that which the first defendant had agreed – whether the plaintiffs established a prima facie case, based on an alleged breach of s 21 of the Australian Consumer Law (unconscionable conduct), to support the continuation of the injunction – whether there was utility in the injunction being continued– whether the injunction should be discharged because of an alleged lack of worth of value in the plaintiffs’ undertaking as to damages – whether, in providing the undertaking as to damages, the plaintiffs need to establish individually or collectively that they are able to meet a compensation order if they are unsuccessful at the final hearing.

Civil Procedure – pleadings – application to amend defence – prejudice – where plaintiffs filed all evidence prior to filing of original defence – whether amendments are necessary to expose factual issues Limitation of Actions – extension of time – mistake – onus

CORPORATIONS — Voluntary administration — Deed of company arrangement – Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to deed – whether residual equity in company – whether shareholders unfairly prejudiced.

CRIME – sentence – murder – victim attacked whilst bound and defenceless – weapon used to inflict severe blunt head injury – intended to kill – not within extreme category requiring life sentence, but very close CRIME – sentence – other offences – rural homes targeted at night when occupants most vulnerable – offender armed with weapon – one break enter and steal in circumstances of special aggravation close to the top of the range of objective seriousness and one well above the mid-range – former causing a fractured skull and bruising to the brain – three detain without consent to obtain advantage whilst in company (one also occasioning actual bodily harm) well above the mid-range CRIME – sentence – offender’s personal circumstances – link between Attention Deficit Hyperactivity Disorder and subsequent drug addiction – moral culpability reduced for breaking and entering to steal, but not for violence – no remorse – no mitigating factors in s 21A(3) Crimes (Sentencing Procedure) Act 1999 present – no special circumstances – aggregate sentence imposed

CIVIL PROCEDURE – Leave to proceed against insurer – Separate question – Onus of proof on question of limitation – Consideration of s 5 Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)

APPEALS – Local Court – whether grounds of appeal are satisfied contract – construction of oral contract – implied terms – failure to consider oral term – Browne v Dunn inference – no error in reasons of Magistrate – appeal dismissed – no point of principle

CIVIL PROCEDURE – application for leave to commence proceedings against insurer – discretion –whether common law requirements of s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 are satisfied –whether it is arguable the policy responds

INSURANCE – project specific indemnity policy – proper construction – whether insurers’ liability is in excess of insurance insureds obliged to effect and maintain under project documents

ADMINISTRATIVE LAW – prerogative writs and orders PROCEDURE – discontinuance of proceedings – whether leave should be granted – no point of principle CIVIL PROCEDURE – costs follow the event – parties consent to different order

ADMINISTRATIVE LAW – prerogative writs and orders – generally ADMINISTRATIVE LAW – standing – no interference with private right – no statutory right to bring action – whether the plaintiff has a “special interest” in the proceedings PROCEDURE – summary dismissal or striking out of proceedings – want of standing – vexatious and an abuse of process – satellite litigation CIVIL PROCEDURE – application to amend Summons on first day of hearing – no issue of principle

BUILDING AND CONSTRUCTION – contractor served claim under Building and Construction Security of Payment Act 1999 (NSW) – claim filed before reference date – whether claim valid – whether clause in building contract deemed claim to have been served on reference date

MENTAL HEALTH – determination by Mental Health Tribunal to grant conditional release of forensic patient – whether Tribunal misapplied ss 43(a) and (b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) PROCEDURE – whether Tribunal failed to set out reasons for determination – no express obligation to give reasons – obligation implicit in construction of s 77A – reasons adequate in this case PROCEDURE – whether Minister entitled to adduce fresh evidence on appeal by way of rehearing

NEGLIGENCE – damages – motor vehicle accident – whether primary judge erred in reducing appellant’s damages on the basis that, after a period of treatment, he would have residual earning capacity – whether primary judge erred in discounting damages by 35% for vicissitudes on the basis of consequences of appellant’s alcohol addiction – whether primary judge erred in declining to award damages for the cost of future commercial care where care currently provided for by family members

Civil Procedure – subpoenas – notices to produce – setting aside – scope of requested documents – relevance – expert’s opinion of relevance of documents

COMMERCIAL ARBITRATION – International Arbitration Act 1974 (Cth) s 7(2) – CONTRACT – construction – application by first defendant for an order that it and the plaintiffs be referred to arbitration in California – whether the plaintiffs and the first defendant are parties to an arbitration agreement under which they have undertaken to submit to arbitration the dispute to be quelled by the proceedings – whether a provision of their Letter Agreement for the production of the motion picture Mad Max-Fury Road includes an arbitration provision as a consequence of the incorporation of standard terms for “A” list directors and producers – whether the arbitration clause in Certificates of Employment executed by the first plaintiff, the first defendant and two directors of the first plaintiff covers the present dispute – whether the law of California is to be applied – application by the second plaintiff for a stay of the proceedings on forum non conveniens grounds – HELD: not established that the plaintiffs and the first defendant agreed to arbitration by the Letter Agreement – HELD: the arbitration clause in the Certificates of Employment does not cover the dispute – questions of stay on other grounds do not arise.

PRACTICE AND PROCEDURE – whether claim under (CTH) Corporations Act 2001, s 588F, validly made in the absence of leave under (NSW) Uniform Civil Procedure Rules 2005, r 6.19 – held, claim not invalid. PRACTICE AND PROCEDURE – whether if leave were granted under r 6.19, proceedings should be taken to have commenced outside limitation period – held, they should not be.

CORPORATIONS — members’ rights and remedies — oppression — whether conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory against minority – family-owned corporation in which plaintiff was director and employee – family shareholders derived benefit through employment rather than dividends – where plaintiff’s employment was terminated and plaintiff was removed as director due to irreconcilable differences – whether plaintiff should be denied relief on the basis that his conduct brought about the behaviour relied upon as oppression.

LEGAL PROFESSION – barrister continuing to practise without renewing practising certificate – barrister made false and misleading statements to clients, solicitors, courts and Legal Aid – application in inherent jurisdiction to remove barrister from roll – Court satisfied of unfitness to practise

COSTS - party/party – costs orders in interlocutory proceedings – motions resolved in substance by the course of events - plaintiffs and applicants on three motions unwilling to proceed – costs outcomes for two of the motions agreed - who should bear the costs of the remaining contempt motion – application of UCPR, r 42.7 - whether one or other party was certain to succeed on the contempt motion – whether one or other party conducted the contempt motion unreasonably.

CIVIL PROCEDURE – transfer of proceedings – transfer from District Court to Supreme Court – jurisdictional limit – where Respondent’s maximum estimate will likely exceed jurisdictional limit

SENTENCING – parity – applicant pleaded guilty to manufacture and supply large commercial quantity of prohibited drugs – co-offender pleaded guilty to importation of same drugs – applicant and co-offender received similar sentences even though applicant pleaded guilty at earlier stage – application of parity principle to offender charged with State offences and co-offender charged with Commonwealth offences – comparison of roles and position in hierarchy – no justifiable sense of grievance – appeal dismissed

EVIDENCE – Tendency evidence – Where asserted tendency of the deceased to be non-aggressive – Whether notice was reasonable – Whether tendency evidence has significant probative value – Whether danger of unfair prejudice outweighs probative value

CIVIL PROCEDURE – application for referral to pro bono legal panel – plaintiff’s ill health – long history of matter – plaintiff’s non-compliance with directions – referral would delay hearing – referral not in the interests of the administration of justice – application refused

CIVIL PROCEDURE – application to cross-vest proceeding to Supreme Court of Victoria – consent application – proceeding relates to earlier class action – pleaded defences also raised in similar proceedings before Supreme Court of Victoria – transfer clearly in the interests of justice

CIVIL LAW – Crimes (High Risk Offenders) Act 2006 – High risk violent offender – application for extended supervision order – whether unacceptable risk of committing a serious violence offence – history of violent offending – substance abuse and other risk factors recurring themes – history of parole breaches – compliant with interim supervision order – too soon to find risk diminished – substance use and mental health issues only partially treated – risk unacceptable – order made for three years

COSTS – Proceedings in which trustee in bankruptcy is a defendant – Ordinary rule or practice – Whether personal costs order should be capped by reference to the extent of the bankrupt’s assets vested in the trustee in bankruptcy in that capacity COSTS – Indemnity costs – Calderbank offers

COSTS – where plaintiff seeks an order staying the enforcement of costs orders made against her in separate proceedings – where plaintiff awaits a final costs decision in further proceedings – where plaintiff is concerned that enforcement of the current costs orders may frustrate her anticipated costs victory in the separate proceedings – where plaintiff’s reasonable prospects of success cannot be assessed in this Court – where defendant is entitled to the fruits of his judgment

PRACTICE AND PROCEDURE – where first plaintiff seeks time to refinance in order to avoid the forced sale of his property – where defendant opposes the current regime restraining the exercise of a purported power of sale of the property – whether first plaintiff is in a position to secure an alternative financier for the loan – where first plaintiff contends that the receiver was not properly appointed – where the debt owed to discharge the mortgage is in dispute

PRACTICE AND PROCEDURE – plaintiff's motion to administer further interrogatories – where plaintiff wishes to avoid an evidentiary hiatus – whether further interrogatories are necessary or justified under UCPR 22.1 – where defendant's position obviates the need for the proposed interrogatories

CONTRACTS - general contractual principles - offer and acceptance – intention to be legally binding

DAMAGES – certain matters not established – what allowance to be made

PRELIMINARY DISCOVERY – costs of compliance – whether the applicant should pay the costs of compliance up front - whether the costs of compliance should be paid only after compliance has taken place. COSTS – costs follow the event - applicant for preliminary discovery successful on some claims for relief but other claims for relief abandoned or applicant unsuccessful on those claims – what order for costs should be made based upon the degree of success the plaintiffs have achieved. PRACTICE AND PROCEDURE – dispute about form of orders after contested hearing – parties advance separate sets of contested orders to the Court – which orders better reflect the Court’s reasons in its principal judgment.

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – want of due dispatch – defendant applies for dismissal of proceedings for want of due dispatch - previous costs orders made against plaintiff and assessed in specific amounts for payment – under the previous costs orders the plaintiff’s right to continue the proceedings is made conditional on its compliance with previous costs orders – plaintiff does not pay previous costs orders – whether plaintiff likely to be able to meet previous costs orders in the future – whether proceedings should now be dismissed for want of due dispatch, if it is improbable that the past costs orders will be complied with in future – whether third party has conducted proceedings for his own benefit through an impecunious corporate plaintiff – whether any costs order made against the plaintiff should be made against the third party.

SUCCESSION – family provision – appellant claimed to be de facto partner of the deceased – primary judge rejected claim but found appellant was an “eligible person” under s 57(1) of the Succession Act 2006 (NSW) as he had been in a “close personal relationship with the deceased” – primary Judge awarded the appellant $85,000 out of estate valued at about $900,000 – whether any error in primary Judge’s findings of fact or evaluative judgments

PROCEDURE – leave to appeal – whether circumstances in favour of granting leave to appeal – where question of fact not decided on separate determination also arises on trial of remaining issues – where that question subject to limited evidence on separate determination – where findings of fraud made on separate question although not pleaded or relevant – leave to appeal refused

PROFESSIONS AND TRADES – allegations of criminal conduct against medical practitioner – medical practitioner suspended pursuant to s 159 of Health Practitioner Regulation National Law (NSW) – stay granted by Tribunal pursuant to s 43(3) of Civil and Administrative Tribunal Act 2013 (NSW) – whether Tribunal had power to grant stay – Tribunal not empowered by s 43(3) – National Law intended to be exhaustive – Tribunal not empowered by s 161B of National Law unless medical practitioner appeals against the suspension decision with respect to a point of law PROCEDURE – whether appellant’s failure to put argument to Tribunal precludes grant of leave – appellant concedes it should pay costs of appeal – interests of justice that appellant be permitted to rely on argument

EQUITY – Trusts – winning lottery syndicate arranged by first respondent – whether appellant was a member of the winning syndicate – no error in primary judge’s finding that appellant was not a member EQUITY – Tracing – whether moneys of another syndicate of which appellant was a member were used in purchase of winning ticket – no error in primary judge’s finding that the only moneys used were moneys collected from members of the winning syndicate – no question of principle

CORPORATIONS – whether leave should be granted under (CTH) Corporations Act 2001, s 500 to commence and continue proceedings against company – whether leave is required to sue liquidator personally – whether if leave were required it would be granted – held, all questions answered in the affirmative.

SUCCESSION – Wills, Probate and Administration – Statutory will – Minor nil capacity case – Statutory powers informed by protective jurisdiction – Consideration of benefit to, and interests of, incapacitated minor – Operation in context of statutory criteria – Discretion to approve “specific terms” of a will – How to be exercised

DEFAMATION – interrogatories – plaintiff’s entitlement to interrogate as to defendant’s belief in truth of imputations

Civil Procedure – recusal application – apprehended bias – where Judge as counsel made allegations of fraud against party in prior unrelated proceedings – where party is appearing as junior counsel in applications to be heard before Judge – no disqualification

CRIMINAL LAW – sentencing – attempted murder – provision of false alibi – “just in case” he murdered his father – accessory after fact to murder – offender the wife of principal offender – insurance policies taken out on life of deceased – where first attempt fails – second attempt successful – murder by samurai sword – where principal offences grave –whether offender acting under non-exculpatory duress – mixed motives – partially motivated by possibility of financial gain – misguided loyalty – reluctance to leave children without father – abusive relationship – impact on moral culpability and length of sentence CRIMINAL LAW – sentencing – mitigating features – discounts for plea of guilty – where offender offers to give evidence against co-offender – where prosecution declines offer – tissue of lies – impact on appropriate reduction in sentence – assessment of reliability and truthfulness of offender’s evidence – distinguish truth from fiction CRIMINAL LAW – sentencing – extreme hardship on third parties – offender has 4 children under 8 years of age – one child 9 months old – children with significant medical and behavioural issues – impact on sentence – Mothers and Children Program – rights of children – international covenant – wholly exceptional case – special circumstances – substantial reduction in length of non-parole period – attempt to impose lowest possible non-parole period – minimising separation of mother and children – minimising period children in custody with mother

COSTS – defendant claims that plaintiffs unreasonably refused to accept open offer at early stage of proceedings – plaintiffs did not act unreasonably – two issues remained at hearing of proceedings – defendant successful on one issue – other issue not determined on the merits – appropriate for plaintiffs to pay 50% of defendant’s costs

EQUITY – judicial review – certiorari - whether there is an error of law in the reasons given by the Racing Appeals Tribunal (“the Tribunal”) for the disqualification of the plaintiff, a jockey, for a period of 18 months for betting on a horse he was riding – construction of Australian Racing Rule AR196(5) imposing a mandatory minimum period of disqualification unless special circumstance established (here a plea of guilty) – whether on such a special circumstance being established, the mandatory minimum period of disqualification ceased to be relevant.

HIGH RISK OFFENDER – serious sex offences – third application for extended supervision orders – order made – terms of order – conditions of order

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW) s 94 – insurer’s challenge to the assessor’s reasons for assessments of past and future economic loss – held reasons for future economic loss insufficient – disparity between weekly amount to date of assessment and thereafter unexplained – higher weekly amount required explanation because of disparity as well as finding that the claimant would work less in the remaining 7 years until retirement – discussion of assessor’s obligation to give reasons

EQUITY – Trusts and trustees – Resulting trusts – Presumption of resulting trust – Unequal contributions to purchase price EQUITY – Trusts and trustees – Resulting trusts – Presumption of advancement EQUITY — Trusts and trustees — Express trusts — Intention to create

Succession – Intestacy – De facto spouse – Relationship as a couple living together – Multiple or Separate residences – Succession Act 2006 NSW, sections 104(b), 105(a) and 111 – Interpretation Act 1987 NSW, section 21C.

CRIMINAL LAW – Offences – Sentence – Conspiracy to do acts in preparation for a terrorist act or acts – Intentionally making documents connected with the preparation for a terrorist act knowing of that connection – Possessing firearms – Serious offending – Offending underpinned by an adherence to extremist ideology – Necessity to impose a sentence which would denounce the offending and protect the community - Necessity for general deterrence CRIMINAL LAW – Offences – Sentence – Conspiracy to do acts in preparation for a terrorist act or acts – Intentionally making documents connected with the preparation for a terrorist act knowing of that connection – Assessing prospects of rehabilitation in the absence of sworn evidence renouncing previously held extremist beliefs – Necessity to adopt a cautious approach to statements made to third parties which are not the subject of sworn evidence and thus not subject to cross-examination CRIMINAL LAW – Offences – Sentence – Conspiracy to do acts in preparation for a terrorist act or acts – Offender 14 years of age at the time of the offending – Serious offending involving acquisition of firearms as part of the conspiracy – Adult like behaviour – Evidence of immaturity on the part of the offender – Relevance of youth on sentence – Consideration of the extent of the mitigatory effect of youth in cases of serious offending

CIVIL PROCEDURE – case management directions