Cases and authorities

CRIMINAL LAW – appeal against interlocutory judgment or order – whether a Basha inquiry is an interlocutory judgment or order – no interlocutory judgment or order made by trial judge – application for leave to appeal dismissed

CRIMINAL LAW – Appeal – disparity alleged between adult offender and juvenile – substantial difference in subjective circumstances – no arguable case; APPEALS – Criminal law – disparity not squarely put below – no arguable case – leave refused.

CRIMINAL LAW – conviction appeal – two counts of sexual intercourse with a child under the age of 10 (5 years) in circumstances of aggravation – whether verdict unreasonable or cannot be supported by the evidence – inconsistencies identified in complainant’s testimony – whether complainant’s testimony implausible – no corroboration – very much a jury question – significant advantage of jury hearing and seeing complainant – open to jury to find guilt beyond reasonable doubt – appeal dismissed.

APPEAL – Local Court – exclusion of expert report – discounting expert evidence - court timetable – cross claim – Local Court Act

POSSESSION OF LAND – no point of principle – loan agreements – Civil Procedure Act – debt – defaulted payment – possession of properties

SECURITY FOR COSTS – plaintiff company sues franchisor and vendor for damages for alleged misleading and deceptive conduct in its purchase of a franchised gym and fitness business – plaintiff may not have sufficient means to meet a costs order were it unsuccessful in the proceedings – whether an order for security for costs should be made and if so in what amount.

PROCEDURE – negligence – mycology – medical records affected by flooding and mould – alleged that remedial work carried out negligently – whether the plaintiff should be entitled to rely on the evidence of a third mycologist – the difference between mycology and medical mycology – consideration of the efficiency provisions of the Civil Procedure Act 2005 (NSW)

CORPORATIONS – TRADE PRACTICES – misleading and deceptive conduct – damages – shareholder class action - whether proceeds of sale of shares acquired and then on-sold during inflationary period should be taken into account in assessing damages – held, sales must be taken into account. PROCEDURE – judgments and orders – where plaintiff claims interest prescribed by Civil Procedure Act s 100 – where final judgment in proceedings will not be a money judgment – held, plaintiffs not entitled to sought interest. PROCEDURE – costs – allegation by unsuccessful party of costs thrown away in respect of certain matters – defendants not required to pay costs of plaintiff in respect of unnecessary tender bundles and hearing time caused by plaintiff’s omissions.

CORPORATIONS – Receivers, controllers and managers –whether Court has power to order delivery up of title documents to court-appointed receiver – whether anticipated challenge to sale of land by receiver is a reason to refuse to put the receiver in possession of certificates of title to the land. PROCEDURE – Costs – where Respondents’ conduct imprudent in frustrating performance of receiver’s duties, necessitating the application – where Respondents’ defence of the application proceeded on an avoidable misapprehension of the law – whether an indemnity costs order should be made – whether costs should be made payable forthwith.

PRACTICE AND PROCEDURE – total and permanent disability policy - application by insurer for separate determination of question of whether insurer’s decision to decline indemnity can be vitiated - whether separate determination would twice expose plaintiff to cross-examination - undertaking by insurer not to cross-examine plaintiff if called on hearing of separate question

CIVIL PROCEDURE – enforcement of a judgment – writ of sequestration – ex parte application for the issue of a writ of sequestration – held that application to be heard on an ex parte basis – usual undertaking as to damages – leave granted for the issue of a writ of sequestration

CIVIL PROCEDURE – cross-vesting – application to transfer proceedings from the Supreme Court of New South Wales to the Supreme Court of the Australian Capital Territory – medical negligence – whether it is in the interests of justice that the proceedings be determined by the Supreme Court of another State – held that the Supreme Court of the Australian Capital Territory the more appropriate venue

EQUITY – application for interlocutory injunction – landlord serves on tenant notices of breach of lease and notice of termination– tenant claims it is not in breach of the lease - balance of convenience – on what terms injunction should be granted.

CORPORATIONS – Winding up – Application to set aside creditor’s statutory demand under Corporations Act 2001 (Cth) s 459G – whether a genuine dispute is established – whether demand was served on the correct company – where debt said to arise under the Building and Construction Industry Security of Payment Act 1999 (NSW) s 14(4) – whether such a deemed debt is genuinely disputable where there is dispute as to the identity of the underlying debtor.

CONTRACT – construction – commercial lease – market review of rent – whether lessor’s notice of rent at review date must be served by that review date

HIGH RISK SEX OFFENDER – application for extended supervision order under the Crimes (High Risk Offenders) Act 2006 – finding that the defendant is a high risk sex offender – duration of order

PRACTICE AND PROCEDURE – costs – security for costs – offer of personal undertaking – exercise of discretion to order costs – whether security should be granted – whether undertaking is adequate security

REAL PROPERTY – mortgages – possession of land – default under loan agreement and mortgage – whether broker was agent of lender or borrower - economic duress – what constitutes – whether loan agreements entered into under economic duress – successive failures to adhere to conditions of loan agreements by borrower – bank extended deadlines at borrower’s request - execution of deed of acknowledgement of debt – whether estoppel by deed – where claim not based on deed – order for possession made

APPEAL AND NEW TRIAL – appeal – general principles – right of appeal – direction to file affidavit explaining amount in issue exceeded $100,000 – whether affidavit set out material facts showing that leave to appeal not required – UCPR r 51.22 TORTS – negligence – occupier’s liability – causation – purported failure of elevator to stop level with floor – plaintiff injured on stumbling when exiting lift – whether occupier liable for plaintiff’s injuries – whether trial judge erred in dispositive finding rejecting plaintiff’s evidence as to circumstances of injury – whether error in failure to consider alternative inferential reasoning TORTS – negligence – occupier’s liability – scope of duty of care – whether trial judge erred in finding duty of care did not extend to replacing lift mechanisms

CRIMINAL LAW – appeal against sentence – historical homosexual offence – where form 1 contravenes s 33(4) Crimes (Sentencing Procedure) Act 1999 – remittal to District Court

CIVIL PROCEDURE – default judgment – defendant in default on loan – claim for unliquidated damages – judgment for the plaintiff under r 16.7 Uniform Civil Procedure Rules 2005 (NSW)

FORENSIC PATIENTS – defendant found unfit to be tried – limiting term due to expire – application to extend status as a forensic patient – interim extension order – whether defendant poses unacceptable risk – whether risk cannot be adequately managed by other means

PROCEDURE – application for summary judgment in part – resistance to claim for possession doomed to failure – transfer of remainder of proceedings to Equity Division SUCCESSION – wills, probate and administration – appointment of administrator by power of attorney – discussion of role of administrator in those circumstances

PRACTICE AND PROCEDURE – whether first plaintiff should be given leave to amend – whether claim by first plaintiff should be dismissed; GUARANTEES – judgment entered against plaintiff under guarantees – whether fact of judgment precludes plaintiff from now raising impeachment of title claim or sale at undervalue claim; JUDGMENTS AND ORDERS – res judicata

EQUITY – development agreement – proper construction of terms – whether the plaintiff is entitled to have the first defendant provide an account in respect of his share of profits – whether there are implied terms in the development agreement

ADMINISTRATIVE LAW – summons for judicial review – medical assessment certificate pursuant to Workplace Injury Management Act 1998 – whether adequate reasons provided by decision maker – summons dismissed

DEFAMATION – pleadings – form of pleadings – where imputations amenable to more specific expression – whether the terms “colluded with” and “was complicit in” are substantially different such as to carry two distinct imputations – where slang terms add to the defamatory insult but not clarity of imputations – “bastardry and mongrel behaviour” – whether an imputation likening specific conduct of the complainant to the general behaviour of an identified politician is sufficiently clear and singular in meaning – “Putin-like”

EQUITY - trusts and trustees - whether defendant held property on constructive or resulting trust for plaintiff company – no agreement or common intention that property would be held on trust and no resulting trust - whether defendant owed plaintiff company moneys – debt not proven – whether cross-defendant made representations that property and profits from ventures would be shared equally with cross-claimant – representations not established – cross-defendant not required to account to cross-claimant – whether director of plaintiff-company and defendant were partners or parties to a joint venture – parties were not partners – parties did not enter into a joint venture - whether unconscionable for cross-defendant to deny that cross-claimant held a beneficial interest in assets – whether cross-defendant held property on constructive trust for cross-claimant – no constructive trust arose over property or profits.

LANDLORD AND TENANT – Rent – Set-Off – where debts owed by landlord to tenant – where landlord executed transfer of lease in favour of claimant – where delay in registration of transfer – claimant claiming arrears of rent for period prior to legal transfer of reversion – whether tenant entitled to set off against liability to pay rent the debts owed by original landlord – Civil Procedure Act 2005 (NSW) s 21 LANDLORD AND TENANT – Rent – Equitable set off – where claimant claiming arrears in rent for period subsequent to registration of lease - where lack of mutuality – where claim and counter-claim not directly connected – inequity in allowing claim without taking into account counter-claim

APPEAL AND REVIEW – judicial review – review of order in criminal jurisdiction of District Court under s 69 Supreme Court Act 1970 (NSW) – supervisory jurisdiction limited to review of jurisdictional error by s 176 District Court Act 1973 (NSW) – whether decision of District Court rejecting application for annulment of convictions in Local Court infected by procedural unfairness CRIME – conviction in absence of defendant – application to annul – whether defendant hindered by illness from attending – delay – whether annulment in interests of justice

ADMINISTRATIVE LAW – decision cancelling licences and security clearance under Explosives Act 2003 (NSW) – whether holders were fit and proper persons – external review by NCAT at first instance and on appeal to Appeal Panel – further appeal on question of law to Supreme Court – further appeal to Court of Appeal – nature and extent of appeal on question of law – whether error need be shown in decision of Appeal Panel – whether denial of procedural fairness – whether Briginshaw test applied to findings by NCAT – construction of Explosives Act 2003 s 6 – relevance of conduct of proceedings and evidence of licensees to determination of fitness and propriety – appeal dismissed

TRADE PRACTICES – misleading or deceptive conduct – appeal from decision of primary judge finding representations were made and relied upon – where appellant misrepresented operations of the business to potential investor – whether appellant engaged in misleading or deceptive conduct – where representations were made through a third party – whether the representations were relied upon by the plaintiff

CORPORATIONS – winding up – liquidators remuneration – whether error in failing to take into account the reasonableness of the work performed, the hourly rate and the time taken – whether error in applying considerations of proportionality – whether error in applying rates of ad valorem remuneration – whether failure to take into account that creditors had approved remuneration on the basis of time costing

DEEDS – Deed poll evidencing immediate gift – whether deed poll executed in escrow – whether gift subject to a condition that marriage take place – whether primary judge correct to find that the donor did not intend an immediate gift

PROCEDURE - Costs - whether party entitled to indemnity certificate in respect of appeal pursuant to s 6 of Suitors’ Fund Act 1951 (NSW) - principles governing application - where applicant played no role in causing court below to err - where applicant actively participated in appeal to defend primary judgment - where nothing in conduct in either court to warrant withholding of certificate - application granted.

INTERNATIONAL LAW – torts – personal injury - strict liability claim against air carrier for injuries sustained during aircraft accident – respondent suffered physical and psychiatric injuries including Post Traumatic Stress Disorder (“PTSD”) – whether PTSD constitutes a “bodily injury” - Article 17(1) of the Montreal Convention relating to International Carriage by Air – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) sections 9B and 9E - bodily injury includes physical damage to the brain – evidence that PTSD caused chemical changes in respondent’s brain but no evidence of physical damage to the brain DAMAGES – whether the respondent’s injuries excluding Post Traumatic Stress Disorder warranted an award for the costs of funds management – onus of proof discussed where loss partly caused by an injury for which the defendant does not bear legal responsibility – Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1; [2005] NSWCA 208 referred to DAMAGES – principles relevant to recovery of out-of-pocket expenses discussed – funds management costs – whether appointment of National Australia Trustee as funds manager was so unreasonable that it could not be regarded as a consequence of the injury – Gray v Richard (2014) 253 CLR 660; [2014] HCA 40 referred to – respondent/cross appellant entitled to recover costs for funds management calculated according to National Australia Trustee rates WORDS AND PHRASES – “bodily injury”

CRIMINAL LAW – applicants seeking leave pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal from refusal to grant a permanent stay of certain criminal proceedings brought against them – supplying prohibited drugs and weapon offences charged – convictions at first trial quashed by High Court and retrials ordered – additional proceeds of crime offences now charged – finding by primary judge that applicants had not demonstrated a fundamental defect giving rise to unfair consequences – applicants self-represented – some grounds of appeal misconceived – no unfairness in approach of primary judge – no basis for primary judge recusing himself on the basis of apprehended bias – applications for permanent stay refused ­– APPEALS BY ATTORNEY GENERAL pursuant to s 5F(2) of the Criminal Appeal Act 1912 – order prohibiting Brendan Pak from giving evidence in the prosecution of Seong Won Lee – order granting temporary stay of certain criminal proceedings pending payment of costs by DPP – no basis for finding by primary judge that Mr Pak changed his position in pre-trial interviews by NSW Crime Commission – no evidence that Mr Pak made aware of content of Seong Won Lee’s Crime Commission interviews – no proper basis for order prohibiting Brendan Pak from giving evidence in the prosecution of Seong Won Lee – appeal on that issue allowed and order quashed – in relation to temporary stay, failure by primary judge to take into account a relevant consideration – House v The King error established – fault on the part of DPP in original trials not of the kind to justify a temporary stay – appeal allowed and order granting temporary stay quashed – alternatively, a different temporary stay order should have been made – appeals by Attorney General allowed.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Applications under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and if thought fit to agree to proposed schemes of arrangement – where schemes of arrangement involve the Plaintiffs’ shareholders transferring their shares to another company for cash consideration – whether requirements to order scheme meetings are satisfied. CORPORATIONS – Managed investments – Application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – whether responsible entity would be justified in convening a meeting of unitholders to approve amendments to the trust constitution to give effect to a proposed scheme – whether proposed amendments are within the powers of alteration conferred by the constitution of the managed investment scheme and s 601GC of the Corporations Act 2001 (Cth).

CRIMINAL LAW – elements of offence of wilful misconduct in public office – mental element of misconduct ought be expressed in terms of substantial motivation rather than belief or intention – importance of consistency between criminal law and public law concepts of improper purpose or motivation – question of mixed motives CRIMINAL LAW – importance of distinction between motivation as an element of wilful misconduct in public office and motive as matter to be taken into account as part of a circumstantial case CRIMINAL LAW – elements of offence of wilful misconduct in public office – unnecessary and potentially duplicitous to express duty and breach where nature of office and misconduct alleged so well established as not to require it CRIMINAL LAW – elements of offence of wilful misconduct in public office – whether recklessness sufficient for wilfulness or whether knowledge of wrongdoing required CRIMINAL LAW AND PROCEDURE – accessorial liability – elements of offence – desirable that elements of offence with which accessory charged be self-contained – separate trials heard together CRIMINAL LAW AND PROCEDURE – accessorial liability – elements of offence – knowledge of future chance of commission of principal offence – “prospect” clearer than “possibility” CRIMINAL LAW – accessorial liability – wilful misconduct in public office – elements of offence – mental state required for element that misconduct must be so serious as to merit criminal punishment – only those facts known to alleged aider and abettor can be taken into account in jury’s assessment

CRIMINAL LAW – application by Crown Prosecutor to discharge jury – opening address by defence counsel – accused “sitting in gaol for two years waiting to be able to give you his account of what happened” – whether breach of statutory right to open – where Crown referred to fact that accused in custody – right of defence to respond – where response inappropriate – whether balance of address emotive or argumentative – meaning of expression “matters to be raised by the accused” – address otherwise appropriate – where directions capable of curing prejudice to prosecution – discharge of jury not justified – no high degree of necessity to abort trial

CIVIL PROCEDURE – motion seeking leave to rely on evidence served out of time – filing of medical reports described as “supplementary reports” – leave not required under the Uniform Civil Procedure Rules 2005 (NSW) if medical reports “merely update” previous reports – whether the motion ought to be dealt with by the trial judge – where no actual prejudice or injustice suffered by the defendant upon whom the material is served – held that motion to be heard by the trial judge

CIVIL PROCEDURE – security for costs – order for security for costs within the Court’s inherent jurisdiction – leave sought to appeal to the Supreme Court of New South Wales under s 81 Civil and Administrative Tribunal Act 2013 (NSW) – appeal on question of law from the Civil and Administrative Tribunal – consideration of “how, on the whole, justice will be best served” – retail lease – held that the plaintiff’s appeal raises fairly arguable questions of law – application for security for costs dismissed

PRACTICE AND PROCEDURE – transfer of proceedings – application to transfer proceedings to Family Court of Australia – cross-vesting legislation – whether more appropriate for Family Court to determine proceedings – whether Family Court would have accrued jurisdiction to determine the claims made in the proceedings – whether the interests of justice served by transfer– proceedings transferred

CRIMINAL LAW - murder trial - Accused charged with murder of 3 year old boy - Accused mother and stepfather of child - Crown tender of video and photographs of child before he came to live with Accused - objection to tender of video and photographs - relevant to issues in trial - evidence not excluded under s.137 Evidence Act 1995 - evidence allowed

CRIMINAL LAW – application for inquiry into conviction and sentence following conviction – Pt 7 of the Crimes (Appeal and Review) Act 2001 – s 78 of the Crimes (Appeal and Review) Act 2001 – application refused

LEGAL PRACTITIONERS - motion to restrain solicitor acting in litigation – main proceedings listed for hearing in less than two weeks after argument on the motion - solicitor had acted for two parties in the negotiation of a commercial agreement - the two parties were then in common ownership but are no longer – the commercial agreement being negotiated was also made with other parties - those parties are not parties to the current litigation - no current claim to rectify the commercial agreement - the main proceedings concern issues of construction of the commercial agreement and the implication of terms into the commercial agreement on various bases - conceded that the former common solicitor does not hold any confidential information that may be used against the applicant on the motion - whether in the exercise of the Court’s inherent jurisdiction over its officers and to control its processes that the proper administration of justice requires that the solicitor should be prevented from continuing to act.

COSTS – specified lump sum costs orders – the discretion to award costs in civil proceedings – the general rule that costs follow the event – onus of displacing the general rule as to costs lies with the defendant – held that the general rule as to costs is to be applied

APPEAL – crime – practice and procedure – miscarriage of justice – unedited transcript of police interview with complainant mistakenly provided to jury – acceptance by Director of Public Prosecutions that the proviso did not apply – by consent appeal allowed, convictions quashed, new trial ordered APPEAL – crime – practice and procedure – procedural error involving mixed question of law and fact – leave to appeal under s 5(1)(b) Criminal Appeal Act 1912 (NSW) required – leave granted

CORPORATIONS — Winding up — Conduct of liquidation — Application for directions – where cost of proceedings brought by company would be borne by priority creditor for potential benefit of general body of creditors – whether liquidators would be justified in paying security for costs – whether liquidators would be justified in using the company’s funds to pay costs of proceedings if litigation funding not available on reasonably appropriate terms

SUCCESSION - knowledge and approval - onus of proof - testamentary freedom - unequal distribution to children ESTOPPEL - conversations - reconstruction - unreliable - no corroboration - principles in Watson v Foxman (1995) 49 NSWLR 315 at 319 - reliance unreasonable