Cases and authorities

PRACTICE AND PROCEDURE – summary dismissal – whether statement of claim pleaded any cause of action – whether proceedings are frivolous and vexatious – plaintiff self-represented – whether pleaded claim was manifestly hopeless – loan agreement between plaintiff and another and one of three defendants – borrower is undischarged bankrupt – plaintiff and other lender obtained judgment against borrower on loan agreement in Local Court – claim by plaintiff for interest in two properties where loan monies were said to be expended – one property owned jointly by borrower and another defendant – one property owned by two defendants but not borrower – whether any basis for equitable tracing – other lender not a party to proceedings – claim manifestly hopeless – summary dismissal order made PRACTICE AND PROCEDURE – pleadings – second attempt at pleading - irrelevant material pleaded – pleading contained evidence – difficulty discerning cause of action – whether pleading embarrassing – whether further opportunity to plead should be given

CRIMINAL LAW – high risk offenders – previous orders made – Crown Solicitor subsequently ascertained that Defendant was serving a sentence that expired more than six months after filing Summons – need to discontinue and recommence proceedings

CRIMINAL LAW – sentence – murder – conceal serious indictable offence – accessory after the fact to murder –guilty pleas – where provocation relied on in mitigation – where mental health relied on in mitigation – obligation of the Crown in sentence proceeding

COSTS – where adjudication of a single issue ultimately determines the outcome of proceedings and cross-claims are not pressed – HELD – no reason to depart from the primary rule that costs follow the event.

SUMMARY DISPOSAL – UCPR 13.4 – where plaintiff alleges signature on mortgage procured by fraud of wife – where monies advanced by Bank on security of mortgage paid into joint account of plaintiff and wife – whether Bank and attesting witness to plaintiff’s signature on mortgage implicated in the alleged fraud of wife – whether claims pleaded in fraud disclose a reasonable cause of action against either the Bank or the attesting witness – whether Bank’s mortgage registered with notice of fraud – whether fraud can be brought home to the Bank – whether claims in fraud otherwise properly pleaded or particularised – whether attesting witness negligent in signing mortgage in absence of plaintiff – where plaintiff’s claim in negligence against attesting witness not clearly articulated – whether claim in negligence against attesting witness barred by operation of Limitation Act – whether plaintiff suffered loss having regard to his receipt and enjoyment of the monies advanced by the Bank

Equity – purchase of real property – payment by third party to discharge existing mortgage – condition of payment that third party be put on title – failed joint endeavour equity – purchaser’s lien – proprietary estoppel – resulting trust – gift on condition of forfeiture Civil Procedure – adjournment – legal representation

REAL PROPERTY – possession of land – consent orders as between the plaintiff and second defendant – reasons for making of orders which first plaintiff did not appear to oppose

PROCEDURE – costs – departing from the general rule – indemnity costs – Calderbank offers – orders sought made

CORPORATIONS — Receivers and managers – Application to permit receivers and managers to make final distribution to creditors – Application to pass receivership accounts and for discharge and release – where costs of continued receivership likely to exceed realisations and need for further action by receivers can be avoided – where creditors consent to orders sought CORPORATIONS — Receivers and managers — Appointment by court — Application for approval of costs, disbursements and expenses and remuneration – whether remuneration and expenses claimed are fair and reasonable

PRACTICE AND PROCEDURE – claim for possession of land – application for summary judgment – application for leave to file amended defence and cross-claim – whether proposed defence manifestly hopeless – leave granted in part CONTRACTS – defendant seeks specific performance of deed – agreement reached at mediation – parties to be immediately bound but enter deed at later time - whether execution of deed a condition precedent to settlement of dispute – construction of agreement - Contracts Review Act defence pleaded – mortgage with no underlying loan agreement - relationship between ss 7 and 19 Contracts Review Act ESTOPPEL – promissory estoppel - request by mortgagor to extend time for payment – mortgagee’s solicitor says he will obtain instructions – no further advice regarding request – time for settlement passes – whether arguable case of promissory estoppel

CRIMINAL LAW – appeal against sentence – offences of aggravated sexual intercourse with a child between 10 and 14 years – offences of aggravated indecent assault on a child under the age of 16 years – child with both deaf and limited vocal abilities - legal error – where sentencing judgment had misapplied its own determination of accumulation – appeal allowed - applicant resentenced – aggregate sentence

CRIMINAL LAW – appeal against conviction – sexual offences against three cognitively impaired complainants – thirteen counts – whether evidence of complainants was unreliable - whether conduct of trial was unfair – tendency evidence – implied admission - no error in trial judge’s analysis of the evidence, findings of fact or application of the law – appeal dismissed

BAIL – applicant charged with a show cause offence – both of applicant’s sons seriously injured in motor vehicle accident – cause shown – whether any unacceptable risks – bail granted on conditions

CRIMINAL LAW – application for leave to appeal against sentence – where applicant sentenced on the basis of brief agreed facts – whether sentencing judge erred in failing to make any finding about the extent of applicant’s involvement in supply of prohibited drugs – whether sentencing judge erred in failing to have regard to where quantity of drug fell in possible range – whether sentence manifestly excessive

MEDICAL NEGLIGENCE – application for interim payment – whether if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant – application supported by cogent expert opinion evidence

EVIDENCE — Hearsay — Exceptions — Non-hearsay purpose – admissibility of hearsay to prove existence of genuine dispute on application to set aside creditor’s statutory demand

CORPORATIONS – financial services and markets – financial products – warrants purchased on Australian Stock Exchange – whether arguable that defendant cancelled plaintiffs’ warrants before expiration date – where warrant unambiguously expired on date of cancellation – where statutory contract under Corporations Act, s 793B, did not contain contrary term – where arguable case, not currently pleaded, that collateral contract contained contrary term, or that defendant made contrary representation – held, if proceedings continue, plaintiff to prepare statement of claim with reformulated case.

LEASES AND TENANCIES – options to renew lease – validity of exercise of options – where tenant served notice of exercise of option on solicitor who had acted for lessors – whether solicitor had authority to receive notice on behalf of all lessors – where tenant served second notice of exercise of option by email – whether provisions of lease incorporating Conveyancing Act 1919 (NSW), s 170 are facultative or mandatory – options validly exercised

SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, applies for additional provision out of the deceased’s estate under Chapter 3 of the Succession Act 2006 (NSW) – Estate not large - No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant, a grandchild of the deceased and the sole executrix and principal beneficiary in the Will - Proceedings not commenced within time - Whether sufficient cause shown to extend time - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made.

Mortgages and Securities – sale of property by mortgagee – surplus paid into court – competing claims to surplus – priority – Real Property Act 1900 (NSW), s 58(3) – statutory and equitable obligations of mortgagee holding surplus to account Limitation of Actions – Real Property Act 1900 (NSW), s 58(3) – relevant date for accrual of claim – “then” entitled – exception to limitation defence – acknowledgment by payment – onus of proof Civil Procedure – competing claims to surplus paid into court – proceedings brought under Trustee Act 1925 (NSW), Pt 4 – availability of interpleader procedure Judgments and Orders – pre-judgment interest – interpleader – monies paid into court Costs – competing claims to surplus paid into court – successful claimant’s entitlement to interest – payment of interest and costs out of surplus

Equity – power of court to approve advantageous dealings – discretionary family trust – extension of vesting date – Trustee Act 1925 (NSW), s 81 – “transaction” – generality of orders sought – “in the administration or management of the trust” – objectives of the trust – “expedient”

BAIL – detention application – where respondent required to show cause why his continued detention is not justified – very strong Crown case – whether respondent’s severe depressive illness amounts to satisfaction of the show cause requirement

APPEAL – appeal against sentence – plea of guilty –armed robbery contrary to s 97(1) Crimes Act 1900 –whether incompetence of counsel led sentencing proceedings to miscarry APPEAL – criminal – evidence – challenge to competence of counsel – admissibility of evidence as to instructions – role of counsel – whether test of miscarriage depends on objective circumstances

PRACTICE AND PROCEDURE - subpoena

POSSESSION – application for stay of execution of a writ of possession – no question of principle

EQUITY – application by plaintiffs to extend stay of NCAT orders that terminated lease between plaintiffs and defendant for unpaid rent – whether stay should be extended given the previous extensions of time and conduct of the plaintiffs in this Court, their failure to seek expedition, and the inherent weakness of the procedural unfairness claim in the substantive matter, i.e. the setting aside of the NCAT orders

EVIDENCE – experts – application for leave to rely on a report served late – where plaintiff had served the report of an engineer years earlier and defendants had served no report in reply – where defendant served report of an expert engineer just over two months before the hearing date – requirement to establish exceptional circumstances

CIVIL PROCEDURE — Pleadings — Amendment – where one Defendant against whom amendments to pleadings are sought to be made not served with amendment application – where amendment would require Defendants to address events many years after they occurred – where amendment would prolong proceedings.

REAL PROPERTY – mortgages - possession of land – Defence pleads general issue – no defence shown to the claim – defence struck out with leave to re-plead

APPEALS – appeal from Local Court – debt claim in family context – issues before the Magistrate went outside the pleadings – loan found to be a binding legal agreement – post-contractual acknowledgements of loan by Defendant – whether Magistrate failed to refer to relevant evidence and give adequate reasons – whether loan a moral obligation or legal obligation – whether there is a “rebuttable presumption” in domestic contexts that arrangements are not intended to have legal consequences – no error of law demonstrated – leave to appeal refused on mixed questions of fact and law

PROCEDURE – leave to appeal – where application for leave to appeal from interlocutory orders made in course of case management of remitted proceedings – no arguable error or substantial injustice – no question of principle

CIVIL PROCEDURE – Court of Appeal – stay of costs order pending appeal – where judgment is reserved

CHILD WELFARE – applicant appealed from NCAT decision affirming refusal of Children’s Guardian to grant working with children check clearance – applicant previously charged with disqualifying offences in circumstances where proceedings discontinued – whether applicant subject to assessment requirement within meaning of Child Protection (Working with Children) Act 2012 (NSW) s 14 – whether NCAT applied incorrect legal test and reversed onus of proof in determining whether satisfied that applicant posed risk to safety of children under s 18(2) WORDS AND PHRASES – Child Protection (Working with Children) Act 2012 (NSW) Sch 1 cl 1(1) – whether “proceedings have been commenced” against applicant for purposes of determining whether applicant subject to assessment requirement

CRIMINAL LAW – Crown appeal against sentence – recklessly cause grievous bodily harm – “glassing” incident in hotel – 2 year Intensive Correction Order imposed – whether sentence manifestly inadequate – whether sentence adequately reflected objective seriousness of offending – whether proper weight given to the standard non-parole period – whether general deterrence properly considered – very strong subjective case – use of glass not deliberate – genuine remorse – development of mental health condition since offence – sentence manifestly inadequate but residual discretion applied – Crown appeal dismissed.

CRIMINAL LAW – judge alone trial –defence of mental illness – special verdict – not guilty by reason of mental illness

POSSESSION – application for stay pending appeal – where no notice of appeal filed – self-represented litigant – usual practice of granting short stay following final determination of bank’s right to possession where the security property is the defendant’s home.

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining orders – ancillary orders – ex parte – orders made

PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining orders – ex parte – orders made

COMMON LAW – application for leave to appeal decision of the Local Court – relevant decision dismissed an appeal to the Local Court against a decision of the Roads and Maritime Service NSW to withdraw visiting driver privileges – basis upon which the application brought – question of jurisdiction to hear application – nature of magistrate’s task in the Local Court – application misconceived – no point of principal

WILLS & TRUST – gift of interest in property subject to conditions – non-fulfilment of conditions – no lapsing of gift – equitable obligation to perform

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime - restraining orders – ancillary orders – ex parte - orders made

COSTS — Party/Party — Bases of quantification — Indemnity basis – Application by Defendants for indemnity costs – whether Plaintiff alleged fraud unnecessarily and without notice – whether Plaintiff’s claims lacked a proper basis – whether Plaintiff’s issue of subpoenas and notices to produce caused undue costs – whether Plaintiff’s evidence and cross-examination excessively broad in scope COSTS — Party/Party – Application for gross sum costs order – where Court lacks requisite evidence to quantify costs in gross sum – where hearing on gross sum may incur further wasted costs

LEGAL PRACTITIONER – appeal from decision of the Council of the Law Society of New South Wales to refuse plaintiff a practising certificate – plaintiff misappropriated trust monies – whether fit and proper person – onus of establishing fit and proper person not discharged – appeal dismissed

PRACTICE AND PROCEDURE – Local Court appeal – leave to file a further amended defence – appeal dismissed

LOCAL COURT APPEAL – jointly and severally liable - duty of care – duty of care to subsequent purchaser – vulnerability – assumption of reliance – appeal upheld

MEDIA AND COMMUNICATIONS — Publication — Non-publication order — Children and Young Persons (Care and Protection) Act 1998 (NSW) – These proceedings concern the publication of material concerning a child who was removed from the care of his parents in 2017. The Defendants published material concerning the child (including on Facebook) which identified the child as well as caseworkers and medical practitioners involved in the child’s treatment – the Court considered whether the material published by the Defendants breached s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and breached orders made by the Children’s Court prohibiting publication of information that would identify the child, whether the Defendants failed to remove the material after being requested to do so, and whether this Court has the power to order the Defendants to remove the offending material and if it should exercise that power – Held: this Court has the power to order removal of the material and the Defendants were ordered to remove the offending material and were injuncted from any further publication.

CONSUMER LAW – misleading or deceptive conduct – where aircraft purchased in reliance upon misleading estimate of transportation cost – where value of aircraft exceeded purchase and transportation cost – whether loss suffered PROCEDURE – leave to appeal – where application for leave to appeal from appeal on question of law – whether costs of proceedings at first and second instance included to satisfy threshold in Supreme Court Act 1970 (NSW), s 101(2)(r) – no question of principle

TORTS – negligence – whether appellant established on balance of probabilities that driver of vehicle responsible for collision was conscious and in control of vehicle at time of collision

DEFAMATION – pleadings – objections to imputations – capacity – form – self-referentiality of imputations which confuse the meaning of the words with their likely or possible impact on the reader