Cases and authorities

COSTS — Party/Party — Application for indemnity costs – where successful party sues as assignee of contract in which unsuccessful party agreed to pay assignor’s costs of enforcing contract COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – whether unreasonable not to accept Calderbank offer

SUCCESSION – wills, probate and administration – making of a will – informal documents – dispensing with requirements for execution of a will pursuant to s 8 of the Succession Act 2006 (NSW)

Building and Construction – construction contracts – issuance of invoices for construction works – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 13 – construction – statutory right to progress payments – assignment of right to payment – availability of statutory procedure to seek adjudication determinations Building and Construction – construction contracts – issuance of invoices for construction works – dispute concerning progress payments – adjudication determination – natural justice – identification of relevant reference date

CONTRACT – damages – contract for the supply of plumbing articles – defendant liable for breach of supply agreement – parties agreed on loss of profits and loss in respect of completed stock – loss in respect of raw materials in issue – whether cost of mitigation of damages is recoverable – date at which damages should be assessed COSTS – whether costs should be awarded other than on the ordinary basis – Calderbank offer made by defendant – conditions attached to offer - plaintiff not unreasonable in rejecting offer – whether order under r 42.34 UCPR should be made – defendant is a foreign corporation – contractual term involving foreign jurisdiction - proceedings appropriately commenced in Supreme Court – proceedings thereafter appropriately continued in Supreme Court – whether s 60 Civil Procedure Act applies to costs orders - plaintiff’s conduct in the proceedings did not give rise to any issues of proportionality

ADMINISTRATIVE LAW – judicial review – whether the plaintiff was denied procedural fairness – Local Court proceedings - claim for damages for breach of implied term of contract to carry out work or alternatively breach of duty of care – truck fire caused by frayed battery lead and fuel hose – direction to parties to lodge written submissions at conclusion of hearing - Magistrate overlooked Plaintiff’s written submissions – Magistrate incorrectly stated that Plaintiff made oral submissions – Magistrate later affirmed his decision without altering his judgment or reasons – failure to respond to substantial, clearly articulated argument – denial of procedural fairness established – whether order in the nature of certiorari should be refused for discretionary reasons - decision quashed and remitted for determination by a different Magistrate

CONSUMER LAW – all-inclusive five-star luxury cruise along European rivers – where cruise substantially disrupted by flooding – whether breach of consumer guarantees CONSUMER LAW – meaning of “services” in particular factual context – whether breach a result of a cause independent of human control STATUTORY CONSTRUCTION –– whether Civil Liability Act (‘CLA’) picked up by s 80 Judiciary Act DAMAGES – compensation for reduction in value – assessment – whether amount recovered through insurance policy to be subtracted from total of compensation awardable STATUTORY CONSTRUCTION – damages for distress and disappointment – whether Pt 2 CLA applied by s 275 Australian Consumer Law – whether damages “personal injury” under Pt 2 CLA – whether damages meet Pt 2 CLA threshold – whether CLA operates extra-territorially DAMAGES – assessment – damages for distress and disappointment CONTRACTS – construction – whether terms and conditions permitted significant variation of itinerary

CONTRACTS – where dispute resolution clause provided for progression from senior executive negotiation, expert determination and litigation in relation to disputes between parties – where final and binding nature of expert determination qualified by a party having given notice of appeal within specified timeframe - where right to litigate in relation to the dispute if “the determination of the expert does not resolve the dispute” – whether “litigation” clause should be read as subject to a pre-condition that only an invalid expert determination will not “resolve” the dispute.

CRIME – trial for murder and aggravated sexual intercourse without consent – applications by Crown for leave to question Crown witnesses as though cross-examining them – where witnesses gave evidence inconsistent with their statements to police which tended to provide an innocent explanation for aspects of the Crown’s forensic evidence against the accused – where accused’s father gave evidence of alibi – Crown’s obligation to call the alibi witness in the Crown case – greater availability of cross-examination by the Crown in that circumstance – consideration of the need to constrain the manner and extent of cross-examination by the Crown

PRACTICE AND PROCEDURE – discovery – objections – privilege against exposure to penalties – self-incrimination – whether evidence may tend to prove person engaged in culpable conduct – proceedings concerning non-publication obligations – whether interests of justice require defendant to provide evidence – operation and effect of s 87 of Civil Procedure Act 2005 (NSW) PRACTICE AND PROCEDURE – interrogatories – whether necessary – consideration of material already available to plaintiff – whether answers would be relevant PRACTICE AND PROCEDURE – plaintiff was complainant in sexual offence proceedings – non-publication orders pursuant to s 578A of the Crimes Act 1900 (NSW) made in respect of aspects of plaintiff’s evidence at trial – defendants published an article that allegedly identifies or tends to identify the plaintiff – damages sought for breach of alleged statutory duty – breach of confidence and breach of non-publication order

Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) by son of the deceased from her first marriage – The Defendant, the executor of the Will and husband of the deceased at the date of death – Defendant also the sole beneficiary named in Will - Probate not sought as virtually no actual estate – Notional estate said to be deceased’s interest as joint tenant in real estate held with Defendant – Jointly held property transmitted to the Defendant following deceased’s death – Order sought designating deceased’s interest in jointly held property as notional estate – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Whether order designating property as notional estate should be made – Nature and quantum of provision, if any, that ought to be made for the Plaintiff.

CIVIL PROCEDURE – Notice of Motion seeking summary dismissal or strike out of Amended Summons – claim of vexatious proceedings made against entities – no grounds pleaded – no reasonable cause of action disclosed – issues raised already determined by a court – abuse of process – no point of principle

HIGH RISK SEX OFFENDER – application for extended supervision order – dispute as to risk of serious sex offence – meaning of serious sex offence

AVIATION – carriage by air – carriers’ liability – Arts 18(1), 18(2) and 20 of 1999 Montreal Convention relating to International Carriage by Air – meaning of “event” in Art 18(1) – whether “event” must be something unusual or unexpected – meaning of “defective packing” in Art 18(2) – apportionment of liability under Art 20

CRIMINAL LAW - appeal against sentence - ongoing supply of drugs - mental disorder - drug addiction - where primary Judge accepted uncontested evidence of psychologist - whether primary Judge erred in failing to reduce moral culpability - where no direct link between mental condition and offending - where offender relapsed into drug use - life issues - whether primary judge erred in failing to reduce weight to be afforded to general deterrence - no causal link required - moderate sentence imposed - no evidence that judge disregarded principle - reasons thoughtful balanced and compassionate - no error established

CRIME – appeal against sentence – murder – whether sentencing judge failed to have regard to subjective case – whether sentencing judge relied on absence of remorse as aggravating factor – whether sentence manifestly excessive – appeal allowed and offender resentenced

JUDGMENTS AND ORDERS – form of orders – plaintiff found to have validly exercised options to renew lease – plaintiff proposes detailed orders to facilitate rent review and preparation of new lease – whether making of orders would constitute impermissible re-writing of lease – inappropriate to make orders sought COSTS – costs of discrete and separate issues – where some defendants contested first issue and other defendants contested second issue – where first issue settled without determination on the merits – appropriate for each party to bear its own costs of first issue – appropriate for unsuccessful defendants to pay plaintiff’s costs of second issue

CORPORATIONS — Winding up — Application by sole shareholder and director for termination of winding up – where all undisputed debts paid or will be paid – where company apparently solvent and profitable – where liquidator consents. CORPORATIONS — Winding up — Liquidators — Remuneration – where company’s winding up will be terminated – where parties with continuing interest in company agree as to liquidator’s remuneration – where meeting of creditors would cause further delay and costs – whether remuneration claimed should be approved by the Court.

EVIDENCE – hearsay – maker unavailable – whether circumstances in which representations were made make it highly probably that representations are reliable – whether statements made against interest

CONTRACTS — Construction — Interpretation CONTRACTS — Rectification — Intention — Common intention ESTOPPEL — Estoppel by convention — Mutual assumption — Detriment

BUILDING AND CONSTRUCTION – whether quantification of defect rectification costs reasonable – whether plaintiff entitled to pre-judgment interest on quantification of defect rectification costs PRACTICE AND PROCEDURE – whether second defendant should have leave under UCPR r 31.28(3) to rely on expert report served by former cross-defendant – whether exceptional circumstances shown

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – creditors’ schemes approved by Court with material alterations from schemes considered at meetings – whether power under s 411(6) of the Corporations Act 2001 (Cth) extended to alterations which were material or substantial – whether power available where creditors’ approval was expressed to be limited to alterations which did not affect substance of scheme – primary judge correct to hold power available – appeal dismissed

CRIMINAL PROCEDURE – orders sought restricting movement of accused in respect of whom the Court has dispensed with bail – no evidence to support risk warranting interference; HUMAN RIGHTS – right of public (including accused) to gain access to public spaces unless good reason disclosed to restrict same.

CIVIL PROCEDURE — Discovery — Practice Note SC Eq 11 – whether affidavit adequately supports application for discovery – scope of proposed discovery categories

CIVIL PROCEDURE – Adjournment – Relevant factors – Adjournment granted

CRIMES (HIGH RISK OFFENDERS) ACT 2006 – high risk sex offender – offence against s 66A of the Crimes Act 1900 (NSW) – series of further sexual offences committed while defendant a minor – where interim detention order previously refused due to insufficient evidence that there is no suitable accommodation available for defendant post-release –emergency detention order sought – whether there are “altered circumstances” – HELD – where there has been passage of time and further avenues for suitable accommodation appear to have been exhausted this does constitute “altered circumstances” – possibility of defendant being homeless on release a consideration – protection of public is a principal purpose of the legislation – adequate supervision of defendant only possible under extended supervision order if there is suitable accommodation for the defendant – where there is a need to ensure that the defendant does not pose an imminent risk of committing a serious offence –emergency detention order granted for a period of 96 hours STATUTORY CONSTRUCTION – whether defendant is subject to an extended supervision order when he is in custody serving a sentence – HELD – distinction between an extended supervision order and obligations under an extended supervision order – person may be subject to an existing supervision order, although his obligations under that order are suspended by a custodial sentence

PRIVATE INTERNATIONAL LAW – conflict of laws – – whether statement of claim should be set aside – forum non conveniens – “default test” of whether Supreme Court of New South Wales is a clearly inappropriate forum for determination of dispute – impact of exclusive jurisdiction clause – modified test of whether the plaintiff has shown strong cause to displace the exclusive jurisdiction clause CONTRACTS – interpretation and construction – online contract – whether exclusive jurisdiction clause incorporated into terms of contract – by reference – by signature – Electronic Transactions Act 2000 (NSW), s 9(1) CONSUMER LAW – whether exclusive jurisdiction clause unfair contract term – whether statutory guarantees as to fitness for purpose apply

CORPORATIONS – membership, rights and remedies – class rights – where plaintiff’s shares in company constitute a class under Corporations Act, s 246B – where company proposes to resolve to convert land and building it owns from company title scheme to strata title scheme – where plaintiff seeks a quia timet injunction to enjoin resolution – where proposed injunction leaves considerable room for interpretational argument – where defendant undertakes not to register a strata scheme that violates s 246B – where strata scheme potentially consistent with plaintiff’s class rights – held, injunction refused.

APPEAL – application for leave to appeal against the decision of a judge of the District Court to proceed to hear evidence in a part-heard matter after reserving her decision on an application that she disqualify herself on the grounds of apprehended bias

BAIL – Crown application for detention – Where respondent charged with firing a firearm with reckless disregard for the safety of any person – Whether cause shown – Whether unacceptable risks – Crown application granted

CRIMINAL LAW – appeal and new trial – whether verdict unreasonable or insupportable having regard to evidence – whether certain utterances could constitute admissions pursuant to s 81 of the Evidence Act 1995 (NSW) – consideration of the course of trial

CRIMINAL LAW – sentence – where offender suffering from mental illness – where evidence as to mental illness unchallenged – whether sentencing judge confined consideration of the applicant’s mental health to an assessment of the objective criminality of the offending and hardship in custody

CRIMINAL LAW – appeals – appeal against sentence – possession of child pornography contrary to Crimes Act 1900 (NSW) – use carriage service to transmit or make available child pornography contrary to Criminal Code Act 1995 (Cth) – whether sentencing judge failed to assess the objective seriousness of each offence – whether sentencing judge erred in application of totality principle – sentencing judge dealt with Commonwealth offences collectively – whether sentences manifestly excessive - appeal allowed – appellant re-sentenced

CRIMINAL LAW – Appeal – Crown appeal against the exclusion of evidence by the trial judge – Where the respondent charged with multiple offences of assaulting and sexually assaulting his wife – Where the 10 year old daughter of the respondent and the victim gave an account to police of one particular incident the subject of three separate counts in the indictment – Where the trial judge determined that the evidence was not relevant – Where the trial judge further determined that even if relevant the evidence should be excluded on the basis that its probative value was substantially outweighed by the danger of unfair prejudice to the respondent – Where the trial judge failed to identify the facts in issue – Where the trial judge had regard to whether the evidence of the child might be rejected by a jury on the basis that it was confusing – Where the trial judge concluded that there was a danger of unfair prejudice because the respondent would be unable to properly test the evidence – Errors established – Evidence relevant and admissible – Crown appeal allowed – Determination of the trial judge set aside

APPEAL – appeal against sentence – where sentencing judge indicated a discount for a plea of ten percent – where comparable co-offenders sentenced to same term without benefit of discount – whether sentencing judge omitted to apply discount as indicated – whether similarity of sentences explicable by applicant’s differing subjective case

Application for revocation of examination orders made under the Proceeds of Crime Act 2002 (Cth)

POSSESSION – application to have defence struck out – single failure to comply with a direction of the court as to the filing of evidence – first listing after solicitor for the defendant ceased to act

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) – requirement for adjudicator to afford claimant and respondent natural justice (procedural fairness) – necessity for absence of real or apprehended bias.

CIVIL PROCEDURE – security for costs –inherent jurisdiction of the Court – principle of fairness

CIVIL – PRACTICE AND PROCEDURE – application for approval of settlement – personal injury proceedings commenced on behalf of a person under legal incapacity – allegation of negligence against medical staff with respect to birth of plaintiff - whether proposed settlement is in the interests of the plaintiff – settlement approved

CRIMES (HIGH RISK OFFENDERS) ACT 2006 – high risk sex offender – offence against s 66A of the Crimes Act 1900 (NSW) – series of further sexual offences committed while defendant a minor – interim detention order sought – release accommodation not yet identified for the defendant – HELD – experts appointed to assess defendant and report to Court – insufficient evidence that there is no suitable accommodation available for defendant post-release – interim detention order refused – existing extended supervision order adequate to manage risks posed by the defendant to the community

CIVIL PROCEDURE – originating process – validity for service – extension of time – originating process served when stale – default judgment obtained – application to extend time for service - whether judgment entered irregularly – whether extension of time for service could be obtained without setting aside judgment – application refused

UNFAIR CONTRACT – ex parte proceedings – claim for money orders – notice – humiliation, stress and reputation damage – interest – implications of settlement with co-defendant – directions

APPEAL – appeal from Local Court – question of law – precise grounds required – whether misapplied own findings – construction of pleadings – formation of contract – terms of contract – mutual assent – offer and acceptance – acceptance by conduct – express pleading required for implication of acceptance by conduct – whether parties agree to contest outside pleadings – discretion to permit case outside pleadings – failure to appeal refusal of amendment – questions raised by plaintiff answered in negative – single ground refused – appeal dismissed – costs reserved

BUILDING AND CONSTRUCTION - Building and Construction Industry (Security of Payment) Act 1999 (NSW) (the Act) – ss 13, 21(3), 29, 31 – Building and Construction Industry (Security of Payment) Regulation 2008 (NSW) (the Regulation) – whether the defendant’s payment claim dated 16 December 2016 complied with the requirements of ss 13(7) and (9) as being accompanied by a compliant supporting statement – whether the supporting statement which accompanied the claim complied with the requirements of ss13(7) and (9) and the Regulation – HELD: supporting statement did not comply because the declaration contained in it was made on a date earlier than the payment claim identified as the one it purported to support – HELD: the purported payment claim did not effectively invoke the procedures under the Act – HELD: the adjudication determination of the second defendant void – where notice of acceptance of appointment under s 21(3) was actually received by the plaintiff but in a manner not expressly provided for by s 31 – HELD: actual receipt was effective notification under s 21(3)(a) – HELD: adjudication determination out of time under s 21(3)(a) but not void – under s 29(4) adjudicator not entitled to be paid any fees and expenses.

TORTS – negligence – pedestrian tripped and fell while crossing an intersection – proper construction of the Roads Act 1993 (NSW) – proper construction of s 45 of the Civil Liability Act 2002 (NSW) – nature of Council’s duty of care – whether there was a trip hazard on the road which caused the plaintiff to fall – whether the Council had a defence under s 45 – whether the fall caused the plaintiff’s back injury – whether there was any contributory negligence – no duty of care breached – damages – costs EVIDENCE – witnesses – credibility and reliability of witnesses – Jones v Dunkel inferences

CIVIL LAW – application for security for costs – where plaintiff a trust company not trading except for the purpose of the current litigation – where plaintiff concedes it would be unable to meet a costs order – where delay in bringing application – whether delay justified – form of order

CIVIL PROCEDURE — Admissions — Withdrawal – Civil Procedure Act NSW (2005) ss 56, 58, 64 — where no evidence to explain why admissions were made — where applicant will suffer prejudice if the application is refused and respondent with suffer prejudice if the application is granted

REAL PROPERTY – Torrens title – leases CONTRACTS – general contractual principles – construction and interpretation of contracts – whether a contractual clause constituted a breach of an undertaking made pursuant to s 87B of the Competition and Consumer Act 2010 (Cth) EQUITY – general principles – priority and notice

PRIVATE INTERNATIONAL LAW – doctrine of indemnification under the common law of New York –dispute over distribution of settlement funds from proceedings determined in Pennsylvania PROCEDURE – case which was not pleaded or the subject of opening address identified for the first time in closing submissions – whether plaintiff permitted to rely on such a case