Cases and authorities

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – where multiple payment claims, adjudication applications and adjudication determinations – whether issue estoppel – whether abuse of process

PRACTICE AND PROCEDURE– Practice Note SC Eq 11 – exceptional circumstances made out – early disclosure justified by public interest in the early determination of whether resolution approving deed of company arrangement ought be set aside

CONTRACTS –– oral distribution agreement – whether an implied term that cross-defendant would ensure it obtained secure and reliable supply of stock and keep sufficient stock on hand to ensure that orders placed by cross-claimant were met; EVIDENCE – whether cross-claimant proved it had placed orders in excess of stock supplied

REAL PROPERTY – mortgages - claim for possession of land – parties settled proceedings prior to hearing – payment to mortgagee – part payment under protest to obtain discharge – mortgagor subsequently sought leave to file cross-claim – whether mortgagor’s causes of action would be doomed to fail and therefore futile – mortgagor claims that mortgagee did not roll over loan under Facility Agreement in breach of agreement – whether mortgagor has claim for breach of contract – mortgagor’s remedies confined to taking of accounts and claim for money had and received – in addition mortgagor seeks damages for breach of s 21 Australian Consumer Law – whether claim available MORTGAGES AND SECURITIES – redemption of mortgage - right of mortgagee to retain sufficient funds to meet disputed claims by mortgagor – acknowledgment signed by mortgagor at settlement notifying disputed amounts – whether additional claim available – whether mortgagee can demand further security for additional claim

PRACTICE AND PROCEDURE – discovery – whether there is a need for discovery – no question of principle

CIVIL PROCEDURE – mortgages and securities – possession – application for stay of writ of possession – hardship

CORPORATIONS – external administration – liquidation – corporate trustee – where trust deed contains ipso facto clause – application by liquidator to be appointed receiver of trust assets – where at least some liabilities of company incurred qua trustee - where some assets of company at least arguably trust property – where company’s assets apparently comfortably exceed liabilities – where company and directors have repeatedly failed to bring application for termination of winding up - held, receivers and managers of trust property appointed, with limited powers.

CIVIL PROCEDURE – pleadings – form and content of pleadings - whether pleadings sought to be filed complied with the judgment granting leave to file them – new claim sought to be raised – no reasonable explanation why claim not raised earlier – new claim disallowed

LIMITATION OF ACTIONS – motor accidents – action commenced more than four years after accident – whether a full and satisfactory explanation for delay provided – defendant consents to leave being granted – whether damages are likely to equal or exceed 25% of non-economic loss damages – leave granted

CONTRACTS — general contractual principles — construction and interpretation of contracts EQUITY — Breach of confidence — Necessary quality of confidence — Material in public domain TRADE AND COMMERCE — restraints of trade — reasonableness of restraint — cartel provisions

MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 – application for an extension order pursuant to Schedule 1 – forensic patient – interim proceedings – question of interim order – question of appointment of medical practitioners to examine the defendant – risk to the community – question of publication

LAND LAW – contract for sale – obligations of vendor – defect in title – where purchaser claimed that Aboriginal objects owned by the Crown constituted a defect in title – whether Aboriginal objects formed part of subject matter of sale – whether Aboriginal objects would give Crown an interest in the subject matter of sale – no defect in title LAND LAW – contract for sale – completion of contract for sale – vendor’s entitlement to interest – where vendor served notice to complete and settlement figures which included interest for delay in completion – whether completion date had been set – whether vendor repudiated contract for sale by continuing to demand interest – no repudiation established CONTRACTS – construction and interpretation – principles of construction – whether Aboriginal objects included in subject matter of contract for sale of land – relevance of legislative background to construction of contract – construction of contract to avoid commercially unexpected and inconvenient results – Aboriginal objects not part of subject matter of contract

ADMINISTRATIVE LAW – appeal – decision of the Civil and Administrative Tribunal that the plaintiff’s registration as a pharmacist be cancelled – regulatory system for registered pharmacists – regulatory system for pharmaceutical wholesalers – interaction of regulatory schemes – protective legislation and statutory objects – whether the finding of unsatisfactory professional conduct under s 139B(1)(a) constituted an error of law because the impugned conduct was undertaken by the plaintiff as the office holder of a licenced pharmaceutical wholesaler corporation and not in the practice of a pharmacy – whether impugned conduct in practice of practitioner’s profession – procedural fairness – hearing rule – whether the determination by the Tribunal to take into account matters not within the particulars of the complaints breach of procedural fairness – notice and litigation of non-particularised issues – a single stage process – relevant principles – orders – leave partially refused – appeal dismissed

BAIL – possess unauthorised firearm – intimidation – handle firearm while intoxicated – possess shortened firearm – strong Crown case – where weapon has not been located – whether risks to the community can be adequately addressed by bail conditions

APPEALS – application for leave – no question of principle – no question of general importance – no substantial injustice

DAMAGES – personal injury – quantification of past and future economic loss following injury – whether plaintiff had established an entitlement to any component of economic loss – whether error in using male Average Weekly Earnings as a starting point for past economic loss – whether material error in failing to allow for income tax – inconsistent approach applied for past and future economic loss – whether defendant should have approached trial judge to correct error – appeal allowed in part

LEAVE – Leave sought to appeal against a decision of the Land and Environment Court on a question of law – Council orders regulating the keeping of poultry on residential premises by council – Concession that Japanese quail is “poultry” – No question of law – No question warranting grant of leave – Leave refused

CRIMINAL LAW – appeals – appeal against conviction – aggravated indecent assault of child – whether jury’s verdict unreasonable or cannot be supported by the evidence – uncle of 11 year old complainant – uncle instigates tickling game - physical acts not in dispute – whether the contact was intentional or accidental –– whether complainant’s opinion about applicant’s intention relevant – whether complainant’s evidence unreliable - appeal dismissed

CRIMINAL LAW – appeals – application to withdraw plea – aggravated sexual intercourse without consent where victim under the authority of the applicant - applicant sexually abused stepdaughter – applicant pleaded guilty – applicant represented by solicitor and counsel when plea entered - whether stepdaughter under the applicant’s “authority” – whether applicant still in relationship with victim’s mother - nothing to impugn the plea – no miscarriage of justice demonstrated – application to withdraw plea refused CRIMINAL LAW – appeals – appeal against sentence – four counts of aggravated sexual intercourse without consent - applicant sentenced to aggregate term of 17 years’ imprisonment – whether sentencing judge failed to give adequate weight to applicant’s expression of remorse – whether sentencing judge failed to assess the level of objective seriousness of the offences – whether the sentencing judge erred in categorising charges as offences against a child – whether sentencing judge erred in finding that offences took place in victim’s home and that this was an aggravating factor – whether sentence is manifestly excessive – no error of law or principle demonstrated – appeal dismissed

COSTS – where interlocutory application resolved save as to costs – proper approach – undesirability of undertaking an analysis of the resolved contest in such detail as to remove the benefit of the settlement

EQUITY – adoption – whether adoption by the proposed applicants will promote the welfare of the child – whether dispensing with the birth parents’ consent is in the best interests of the child – whether the best interests of the child will be promoted by the making of an adoption order and preferable to any other action that could be taken by law in relation to their care – whether the Paternal and Maternal Adoption Plans should be registered – whether the court should order the child’s surname to be changed

ADMINISTRATIVE LAW - administrative tribunals - Civil and Administrative Tribunal (NSW) – appeal to Supreme Court against guardianship order – statutory stay pending appeal - Civil and Administrative Tribunal Act 2013 (NSW) Sch 6, cl 14(5)

EVIDENCE – subpoenas – motion to set aside subpoena – where applicant directs subpoena to law firm – where law firm claims privilege on behalf of client – where no privilege as between parties with common interest in subject matter of communications – where reasonable basis for supposing that sought material will likely add to relevant evidence – held, motion dismissed.

APPEAL – question of law alone – evidence of offence different from particulars of time of offence on Court Attendance Notice – operation of s 16 of the Criminal Procedure Act 1986 – dismissal of charges by Local Court on that basis involves error of law and ground of appeal involves error of law alone – appeal granted.

CRIMINAL LAW - murder trial - sick juror - medical certificate that juror until for jury service for one week - whether juror ought be discharged - whether trial should proceed with jury of 11 - sick juror discharged - order that trial proceed with jury of 11

EQUITY – claim by de facto partner of thirty years for a family provision order to be made pursuant to s 59 of the Succession Act 2006 (“the Act”) – where the defendants, the two adult children of the deceased, accepted that the will, by provision of a life estate to the de facto and a small legacy, was inadequate having regard to her financial position – extent of the provision to be made having regard to various factors, including the expressed consideration by the testator of the de facto’s claim on his bounty, the separation of their finances, the fact that both testator and de facto had previously been married and had children by those marriages, and the age and financial circumstances of the children of the testator – issues raised about the value of the properties – dispute as to ownership of certain assets of the deceased – whether a Crisp order should be made for the benefit of the de facto against a property of the deceased’s estate – whether a Crisp order should be made in circumstances where there is a poor relationship between the de facto and the defendants.

PRODEDURE - Costs - Scales of costs – Indemnity costs

PRACTICE AND PROCEDURE – approval of infant settlement of claims for damages for nervous shock and under Compensation to Relatives Act 1897 (NSW) arising from death of infant’s father at Villawood Detention Centre – appropriate for Court to grant approval PRACTICE AND PROCEDURE – extent of confidentiality required – limited order

No issue of principle – transfer to the Supreme Court pursuant s140 of the Civil Procedure Act

COSTS – Indemnity costs – Calderbank offer

TORTS – negligence – liability – respondent fell on a grape in appellant’s supermarket – whether finding as to length of time grape was on the floor was supported by the evidence – whether appellant required to establish that its staff were present in the produce area after the supermarket opened - whether primary judge entitled to draw Jones v Dunkel inference against appellant – where primary judge found appellant’s system of safety and inspection could not be improved – whether a casual act of negligence – whether appellant’s staff failed to keep a proper lookout for hazards on the floor – where primary judge made no finding consistent with negligence by appellant.

CORPORATIONS – external administration – voluntary administration – liquidation – deemed voluntary winding up – Corporations Act, s 449E(2) and s 504(1) – where applicant seeks review of defendants’ remuneration while acting as administrators and liquidators – where liquidators’ remuneration negotiated and not attended by clear disproportionality – where administrators’ remuneration attended by apparently striking disproportionality – held, dismiss application to review liquidators’ remuneration but order review of administrators’ remuneration.

CORPORATIONS — Winding up — Statutory demand — Application to set aside – whether Graywinter principle precludes Plaintiff from relying on matters that could not have been known to deponent of supporting affidavit when it was due to be filed

REPRESENTATIVE PROCEEDINGS – proceedings under Part 10 of the Civil Procedure Act 2005 commenced just prior to expiry of the limitation period – other representative proceedings concerning same flood event already on foot and listed for hearing – proceedings not prosecuted properly – failure to comply with agreed order for security – whether proceedings should be dismissed or no longer continue as representative proceedings

CORPORATIONS — Members’ rights and remedies — Oppression – whether Second Defendant’s involvement in business contrary to agreement between shareholders – whether First Plaintiff improperly excluded from business and information – whether Defendants’ conduct oppressive CORPORATIONS — Members’ rights and remedies — Oppression – Power of court to order remedy – where conduct has come to an end – where shares of no value – whether Defendants should indemnify Plaintiffs’ guarantee of company’s loan CORPORATIONS — Winding up — Grounds for winding up – whether relationship between shareholders broken down – whether just and equitable that company be wound up

EQUITY – partnership – CONTRACTS – construction – where partnership agreement gives each full partner a right to share equally in profits and losses – where the partnership agreement provides for a specified majority to pass a motion binding on the partnership to accept an offer to acquire all or part of the partnership business – where the majority resolves to accept an offer which includes a condition that they but not the plaintiff enter into employment with the new owner and receive consideration significantly in excess of that to be received by the plaintiff – HELD: on its proper construction the provision of the partnership agreement authorising the majority to accept an offer of acquisition did not empower it to determine, vary or reduce as between the partners the plaintiff’s one-seventh share in the partnership assets – the plaintiff is entitled to a one-seventh share of the surplus proceeds or value of the proceeds of the realisation.

FINANCIAL SERVICES - Australian Securities and Investments Commission Act 2001 (Cth) s 12CB(1), 12GF(1) - BANKER AND CUSTOMER - CONTRACT - breach of contract - unconscionable conduct - claim by plaintiffs for loss and damage said to have been caused by the defendant bank repudiating a provision for the release from its security of certain real property - claim that the bank’s conduct was unconscionable - HELD: bank repudiated provision - did not engage in unconscionable conduct - LOSS AND DAMAGE - plaintiffs did not establish that they suffered any loss or damage by the conduct complained of - GUARANTEE - third cross defendant claims an oral agreement that the bank would release him of his guarantee of payment of an amount less than the debt owed - HELD: oral agreement not established - HELD: no consideration given for alleged oral agreement - HELD: bank entitled to judgment in money sum against each cross-defendant and to orders for possession of real properties held as security.

EVIDENCE — Privilege — Public interest immunity

CONTEMPT – criminal contempt – whether contempt can be committed if impugned conduct occurred prior to commencement of proceedings PRACTICE AND PROCEDURE – abuse of process – deliberate deletion of electronic documents and records of electronic activity after commencement of proceedings – application to strike out parts of defence

CRIMINAL LAW - murder trial - directions to jury concerning joint criminal enterprise and extended joint criminal enterprise - reasons for trial ruling concerning directions

NEGLIGENCE – assessment of damages – non-economic loss – conflicting expert opinion evidence as to nature and extent of “pure mental harm” injury NEGLIGENCE – assessment of damages – future economic loss – conflicting expert opinion evidence as to causation of reduced “earning capacity” – distinction between working capacity and earning capacity NEGLIGENCE – assessment of damages – future economic loss – onus of establishing ability to exploit a residual working capacity

CONTEMPT – breach of undertaking to court – construction of undertaking – meaning of “direct dealing”

CRIMINAL LAW – appeal against conviction – offence of having sexual intercourse without consent contrary to s.61I Crimes Act 1900 – leave sought to contend that miscarriage of justice resulted from failure to direct jury concerning intoxication and claim of honest and reasonable but mistaken belief – reliance upon Queensland authority – jury properly directed in accordance with s.61HA and s.428D Crimes Act 1900 (NSW) – no error demonstrated – leave to rely upon this ground refused under Rule 4 Criminal Appeal Rules – whether verdict unreasonable – criticisms of aspects of Complainant’s evidence – held that it was open to jury to be satisfied beyond reasonable doubt of Applicant’s guilt – appeal against conviction dismissed CRIMINAL LAW – appeal against sentence – Applicant sentenced to imprisonment for five years and nine months – non-parole period of three years with a balance term of two years and nine months – whether sentence was manifestly excessive – held sentence not manifestly excessive – appeal against sentence dismissed

CRIMINAL LAW – appeals – appeal against sentence – applicant sentenced for supply large commercial quantity of methamphetamine – whether trial judge erred in finding offending above the mid-range of objective seriousness – whether low purity of drugs required a finding that offending was below the mid-range – extension of time required – where ground of appeal has little merit - leave to appeal refused

CRIMINAL LAW – Appeal – Sentence – Accumulation – Totality – Whether degree of accumulation of sentences was inadequate CRIMINAL LAW – Appeal – Sentence – Where applicant pleaded guilty to break and enter and commit a serious indictable offence in circumstances of aggravation – Where applicant indecently assaulted fifteen year old girl who was asleep in her own home – Where applicant’s criminal history included an instance of similar offending – Applicant sentenced to a non-parole period of four years imprisonment and an additional term of three years imprisonment – Whether sentence manifestly excessive – Use of sentencing statistics – Where Court asked to compare the sentence with those imposed in two other cases of what were said to be like offending – Sentence not manifestly excessive in all the circumstances

CRIMINAL LAW – evidence – hearsay evidence – evidence admissible – reasons for decision

Practice and procedure — Actions — Class actions — Deed of settlement

CIVIL PROCEDURE – Interlocutory applications – Interim supervision order – High risk sex offender – Whether current extended supervision order has expired – Meaning of “in lawful custody” in s 10(2) Crimes (High Risk Offenders) Act 2006 (NSW) – Held that time spent in custody bail refused was “lawful custody” – Whether the matters alleged, if proved, justify the making of a high risk sex offender extended supervision order – Interim supervision order granted

Interlocutory Motions – setting aside subpoenas – setting aside notice to produce – question of legitimate forensic purpose – legal professional privilege – question of waiver of legal professional privilege – s 117 – 126 Evidence Act 1995 (NSW)

COSTS – departing from the usual order as to costs – costs opposed because questions of statutory construction arose in proceedings – usual order as to costs made