Cases and authorities

WILLS, PROBATE AND ADMINISTRATION – three plaintiffs, deceased’s daughter and two granddaughters, are beneficiaries of deceased’s estate – probate of deceased’s estate originally granted to deceased’s brother-in-law, Ronald Caldwell, who has since died – Ronald Caldwell remains the registered proprietor of estate’s principal asset, a property in Caringbah – plaintiffs make reasonable attempts to search for, but cannot find, Ronald Caldwell’s executor – whether plaintiffs or another suitable person should be appointed as administrators of the deceased’s estate.

CIVIL – Crimes (High Risk Offenders) Act 2006 (NSW) – application for continuing detention order – final hearing – high risk violent offender – whether an extended supervision order would be adequate – whether appropriate accommodation is available – continuing detention order made

PROCEEDS OF CRIME – Proceeds of Crime Act 2002 – Forfeiture on conviction of a serious offence – automatic forfeiture provisions (s 92 of the Act) – forfeiture at end of six month period starting on conviction day or the extended period – application for extension order made day prior to expiration of six month period – no extension order made prior to expiration of the six month period – property subject to a forfeiture order was forfeited as expiration of the six month period – s 94(2) of the Act – application for extension order and exclusion order dismissed

BANKING AND FINANCE – where capital raising by Accelerated Renounceable Entitlement Offer (AREO) underwritten by three underwriters/joint lead managers – where contract between underwriters and publicly listed company – whether underwriters or publicly listed company owed obligations to particular shareholders and/or investors in AREO process. NEGLIGENCE – where novel claim for imposition of duty of care – identification of particular class – salient features to be considered – whether duty of care to be imposed – if duty of care imposed success of claims dependent upon whether evidence leads to a conclusion that plaintiff would have acted in a particular manner. MISLEADING OR DECEPTIVE CONDUCT – where plaintiff claims that defendants failure to provide it with notice that it could make contact with the joint lead managers to ask to be included in an aspect of the AREO led it to believe that it was not qualified for inclusion – where outcome dependent upon acceptance of plaintiff’s witness evidence as to what it would have done if given such notice.

CRIMINAL LAW – appeal against sentence – drug (ephedrine) importation and possession – judge erred by giving weight to the likely deportation of the applicant so as to deny him a period of parole or equivalent – error in failure to give effect to a finding of special circumstances – applicant resentenced

CRIMINAL LAW – conviction appeal – offence of taking a motor vehicle with assault – whether verdict was unreasonable, or cannot be supported, having regard to the evidence – where complainant admitted lying to police – assessment of coherence of his account – consideration of jury’s advantage in hearing the evidence

CRIMINAL LAW – appeal – sentencing – dangerous driving – whether error in taking into account previous unrelated criminal history – whether error in not finding moral culpability at lower end of range – whether error in finding applicant was driving at excessive speeds – whether error in finding length of journey was an aggravating factor – whether error in not finding accident was result of momentary inattention – whether error in finding specific and general deterrence were relevant factors – whether error in aggregation – whether manifestly excessive

CRIMINAL LAW – Crown appeal against sentence – offender convicted after trial of five historical indecent assault offences – three victims being young women aged between 10 and 12 – offender was a dentist who touched victims while they were affected by nitrous oxide gas – offender elderly and suffering significant ill health – application of sentencing practices prevalent at time of offending – whether sentence manifestly inadequate – Crown appeal dismissed.

CRIMINAL LAW – interfering with a prosecution witness with the intention of procuring an acquittal on serious indictable offences – Crimes Act 1900, ss 323(a), 324 – where offender made numerous telephone calls to prosecution witness to persuade her to give false evidence – where prosecution witness was the victim of the serious indictable offences with which the offender was charged – whether the sentencing judge erred in assessing the objective seriousness of the offending – whether the sentencing judge took irrelevant material into account – whether the sentence was manifestly excessive

CRIMINAL LAW – suppression of name or anything that would identify a witness – witness provided statement to Police under inducement and promise for protection of identity and security of him and his family – Court satisfied witnesses name and identity should be supressed.

CRIMINAL ASSETS – exclusion order application pursuant to s 25 of the Criminal Assets Recovery Act 1990 – two properties and other assets the subject of a forfeiture order made under s 22 – business of the applicant’s company source of living expenses and of loan repayments in respect of properties the subject of the application – evidence of sale of prohibited substances (anabolic steroids) and prohibited drugs (cocaine) in the course of the business activities of the applicant’s company – absence of evidence based on primary source records of the business or any expert analysis as to the income and expenses derived from lawful and/or crime related activity or activities – failure to discharge the onus of proof by the applicant – proceeds assessment order application pursuant to s 27 – defendant sentenced in relation to drug supply offences – expenditure to acquire cocaine and anabolic steroids – drug proceeds expended – expenditure on acquiring properties and mortgage payments – failure on behalf of the defendant to prove the extent of lawful income to be set against the expenditure – evidence established the basis for an order in accordance with s 27(2)

SUCCESSION — Family provision — Application for family provision order under Pt 3.2 of the Succession Act 2006 (NSW)— Whether adequate and proper provision not made in will of the deceased for the plaintiff — Plaintiff an adopted child of the deceased — No provision made for the plaintiff under the will of the deceased — Notional estate of deceased significant — Plaintiff and deceased estranged — Estrangement by itself does not terminate moral obligation of parent towards a child in financial need — Plaintiff has limited income and no savings — Plaintiff suffers various health conditions — Provision made by deceased in his lifetime for the plaintiff modest — No competing claims — Provision made for the plaintiff out of the notional estate of the deceased

PRACTICE AND PROCEDURE – notice of motion seeking orders that documents produced on subpoena protected by client legal privilege – whether defendant waived privilege – consideration of s 122 of Evidence Act 1995 (NSW) – defendant’s conduct not inconsistent with claim for privilege – omission to claim privilege obviously the result of inadvertent oversight – no loss of privilege

PRACTICE – NSW Trustee and Guardian Act – Managed person – Private managers – remuneration – Regulatory regime – Report of NSW Trustee and Guardian

PROCEDURE — Costs — where plaintiffs/cross-defendants in the first proceedings failed in respect of its statement of claim but succeeded in defending cross-claim brought against them – where plaintiffs/cross-defendants sought orders for costs on the basis that given the nature of the cross-claim the plaintiffs were in effect defendants that were substantially successful in defending the proceedings – where plaintiffs/cross-defendants sought costs on an indemnity basis on the basis of a Calderbank offer notwithstanding the plaintiffs’ claims against the defendants were unsuccessful – whether costs should follow the event in respect of the statement of claim and the cross-claim – whether it was unreasonable for the cross-claimants to reject Calderbank offer. PROCEDURE — Costs — where the plaintiffs in the second proceedings sought costs against defendant in circumstances where the plaintiffs succeeded in establishing breach of director’s duty against the defendant but failed to establish any claim for loss – whether plaintiffs should be awarded costs in circumstances where the plaintiffs failed to establish any claim for loss. PROCEDURE — Judgments and orders — Disputed issues remaining before orders can be made to give effect to primary judgment in proceedings — where plaintiffs in the second proceedings sought a declaration that the defendant was in breach of director’s duty – whether declaration ought not be made in circumstances that it would lack utility and was prefatory to claim for damages.

TORT – negligence – breach of duty of care – plaintiff ingested corrosive chemical at a barbeque – whether defendant used caustic soda to clear drain in kitchen – whether defendant left glass containing caustic soda residue in kitchen – issues of credit in plaintiff’s camp – verdict for the defendant

REAL PROPERTY – claim for possession following default on mortgage – whether advanced sum a loan or a gift– advance from father to son to allow purchase of property – property acquired by son and then wife as co-owners – mortgage payable on demand with only son liable for the sum but both to possession – where mortgage not registered at time of purchase but many years later – demand for sum made when marriage between son and then spouse broke down – no interest or regular repayments made – whether mortgage secured anything – whether spouse’s claim to possession affected by mortgage CONTRACTS – unjust or unfair contract – contracts review act or at equity – whether contract was unjust in the circumstances– whether co-owner suffered from a special disability when signing mortgage

CONTRACT – formation – offer and acceptance – email correspondence regarding settlement of dispute – whether the parties reached a binding agreement to settle the dispute – no issue of principle

CONTRACTS – restraint of trade – whether conduct complained of ‘restrained conduct’ – CONTRACTS – general contractual principles – construction and interpretation of contracts – words interpreted consistently with one another each time they appear – parol evidence – whether evidence of precontractual negotiations admissible

LANDLORD AND TENANT – construction of lease – whether lessee obliged to pay the cost of replacing the main electrical switchboard (MSB) servicing the leasehold premises – whether lessee liable for deterioration of MSB during the period preceding commencement of the lease LANDLORD AND TENANT – lessee covenants to pay “land tax assessed on a single holding basis” – leasehold premises held in a “special trust” – lessor not entitled to take advantage of tax free threshold usually available – whether lessor entitled to recover from lessee actual amount of land tax paid in respect of the premises LANDLORD AND TENANT – covenant to repair – whether primary Judge erred in finding that repairs to the premises were required by reason of “reasonable wear and tear”

PROCEDURE – civil – Notice of Motion seeking stay of Local Court judgment refusing to set aside default judgment – where application seeking leave to appeal Local Court judgment has been made to the Supreme Court – whether appeal is reasonably arguable – whether balance of convenience favours the grant of a stay

CRIMINAL LAW – innocent son of accused mentioned in evidence – infant not witness or accused – suppression order of infants’ names issued.

CRIMINAL – evidence – whether proposed evidence is credibility evidence – whether evidence relevant only to credibility

PRACTICE AND PROCEDURE – interlocutory relief – freezing order – where prima facie case established that defendant has misappropriated property and failed to account for sale proceeds pursuant to joint-venture agreement – where evidence shows defendants moved assets within jurisdiction

CRIME – sentencing hearing – Crown application for adjournment – no question of principle

PRACTICE AND PROCEDURE – Amendment of pleadings – Delay – Prejudice to defendant – Where the shortcomings in pleadings giving rise to the application for amendment had been specifically drawn to the attention of plaintiffs’ solicitor – Application to amend the pleadings refused

EVIDENCE – Relevance – Whether evidence relevant to any pleaded issue

CIVIL LAW – professional negligence – medical – patient suffered neurological symptoms – whether cardiologist breached duty of care by failing adequately to investigate patient’s heart – requirements of reasonable care and skill in the circumstances – whether a cerebral vascular event had occurred – whether cardiologist would have advised treatment if patent foramen ovale had been identified in the heart – distinction between primary prevention and secondary prevention of stroke DAMAGES – assessment of physical and cognitive disabilities – non-economic loss – 70% of most extreme case – out-of-pocket expenses – domestic assistance – aids and equipment – life expectancy

CHURCHES AND RELIGIOUS ORGANISATIONS – Constitution, management and powers – Management Committee – Nature and extent of Honorary President’s right of veto ASSOCATIONS AND CLUBS – Jurisdiction of the Courts – Interference in internal management - Application for winding up dismissed - Appointment of receiver and manager to conduct a court-supervised election – Court’s jurisdiction to appoint receiver CHARITIES – Jurisdiction of the Court under Charitable Trusts Act – Charitable trust proceedings – Religious charitable institution – Receipt of public donations - Leave to maintain proceedings granted under section 6

ADMINISTRATIVE LAW – judicial review – appeal from decision of New South Wales Civil and Administrative Tribunal – Working with Children clearance – whether Tribunal misapplied the statutory test in s 18(2) of the Child Protection (Working with Children) Act – whether Tribunal failed to take into account mandatory relevant considerations – possibility defendant had engaged in relevant criminal or inappropriate conduct – possibility the defendant had intentionally sought out child pornography – whether failure to take into account could have materially affected the decision

REAL PROPERTY – leasehold – implied covenants & principle of non-derogation of grant – lease granted by local council as registered proprietor of land – local council subsequently approved subdivision and creation of easement burdening leased land – whether landlord local council had derogated from the rights granted under the lease ENVIRONMENT AND PLANNING – suspension of laws and regulatory instruments by environmental planning instruments and development consents – Environmental Planning and Assessment Act 1979 (NSW), s 28 – local environment plan providing for non-application of covenants, agreements or similar instruments purporting to restrict or prohibit the carrying out of development – development consent imposing requirement for “onsite” parking – whether lease conferring entitlement to exclusive possession constitutes covenant or agreement purporting to restrict or prohibit the carrying out of development CONTRACT – licence agreement for use of certain land for car parking – obligation of licencee to pay annual licence fee – provision for “a fair and reasonable sum considering all relevant circumstances” to be determined by agreement or arbitration – agreement by parties for determination to be made by primary judge – whether error demonstrated in treatment of expert evidence APPEALS – principles of appellate review – assessment of licence fee – matter of estimation and not precise mathematical calculation – whether error established in primary judge’s assessment

CRIMINAL LAW – appeal against sentence – aggravated break, enter and commit serious indictable offence – where applicant was a child at the time of the offence – conceded failure of sentencing judge to apply provisions of the Children (Criminal Proceedings) Act 1987 – matter remitted

CRIMINAL LAW – appeal against sentence – Crimes (Sentencing Procedure) Act 1999 (NSW) s 5 – whether imprisonment only appropriate penalty – where applicant entered guilty plea in 2004 to charge of maliciously inflicting grievous bodily harm – s 35(b) Crimes Act 1900 – maximum penalty 7 years imprisonment – unprovoked punch to victim requiring jaw reconstruction – where applicant failed to appear on sentence and warrant issued – where applicant apprehended by chance in 2015 and sentenced to 2 years imprisonment with 12 month non-parole period – whether primary judge considered alternatives to full-time custodial sentence – where finding by primary judge that full-time custodial sentence only appropriate option – whether primary judge considered applicant’s rehabilitation during delay in sentencing – distinction between delay arising from circumstances outside offender’s control and delay caused by offender – whether full-time custodial sentence manifestly excessive or unjust – objective seriousness of offence

CRIMINAL LAW – conviction appeal – murder – whether trial judge failed to give appropriate directions where jury informed of co-offender’s plea of guilty to murder and where Crown submitted in closing address that appellant downplayed his involvement in admissions to undercover police – whether conduct of Crown prosecutor in making sotto voce comments and smiling during defence counsel’s closing submissions prejudiced jury – whether verdict unreasonable and unsupported by evidence – appeal dismissed

CRIMINAL LAW – Sentence – Crown appeal against inadequacy – Where respondent pleaded guilty to charges of administering poison and assault - Where the victim of the offending was the respondent’s 9 year old child –Where sentencing judge imposed terms of imprisonment to be served by way of an intensive corrections order – Where all grounds of appeal asserting error on the part of the sentencing judge were established – Where sentence imposed was found to be manifestly inadequate – Where court took into account the rehabilitation undergone by the respondent since being sentenced and the re-establishment of a relationship with her children – Residual discretion exercised – Crown appeal against inadequacy dismissed

EVIDENCE – Expert opinion evidence – Admissibility of expert report – Whether witness appropriately qualified to express opinions – Whether the reasoning process leading to those opinions was exposed in the report – Evidence excluded

SEX OFFENDER – interim supervision order – no question of principle

PRACTICE AND PROCEDURE – interlocutory relief – order for the preservation of property UCPR r 25.3 – whether serious question to be tried as to the existence of a contract for sale of a second hand vehicle – whether serious question to be tried that plaintiff will obtain specific performance of that contract

EVIDENCE – Hearsay – Whether evidence led for a non-hearsay purpose

CRIMINAL LAW – jury request for transcripts of addresses and summing up – no provision in Jury Act – discretion to provide – long and complex trial – careful and thorough addresses – where summing up canvassed many legal issues – discretion exercised to comply with jury request

PRACTICE AND PROCEDURE – costs – application by a defendant for plaintiffs to pay costs on an indemnity basis forthwith – considerable delay in proceedings – delay fault of plaintiffs – some costs to be paid on an indemnity basis – not appropriate to order that costs be paid forthwith.

CRIMINAL LAW – Offences – Selling electrical articles without model approval – Where defendants sold mobile telephone chargers and an electrical travel adaptor which did not have model approval – Where the construction of the items in the present case was such that approval would never have been forthcoming even if sought – Where expert evidence established that the users of the items were at risk of severe or fatal electric shock – Where the scheme of the relevant legislation was directed to ensuring public safety – Responsibility on the part of sellers to ensure that such items have the requisite regulatory approval and are therefore safe to use – Entitlement of the public to expect that items which are offered for sale will be safe – Where the offending was motivated by financial gain – Where offending committed without regard to the safety of the public – No evidence of remorse – Necessity to have regard to general deterrence

EVIDENCE – where matter had been remitted to primary judge to reconsider findings following a successful appeal – whether primary judge erroneously repeated error in relying on certain evidence – whether failure to draw Jones v Dunkel inference adverse to respondents

CRIMINAL LAW – admissibility of recorded conversation – alleged impropriety in obtaining recording in circumstances where it is alleged that one participant was an agent of the Police and no warning was given – submission that accused was under influence of self-induced drugs at time and, pursuant to s 85 of the Evidence Act 1995, the conversation should not be admitted – examination of the terms of the recording – conversation admitted except in certain respects.

CONTRACTS- Whether contract “unjust”- where the defendant seeks pursuant to the Contracts Review Act 1980 (NSW) to set aside a Settlement Agreement on the basis of a claimed mental condition. HELD- The defendant failed to establish that she was suffering from a mental condition; HELD- Even if the defendant was suffering from the mental condition claimed in all the circumstances the Settlement Agreement was not unjust within the meaning of s.9 of the Act. HELD- Even if contrary to the above conclusions the Settlement Agreement was unjust within the meaning of the Act the Court would not exercise its discretion to set aside the contract- the plaintiffs had no knowledge of defendant’s condition-there was nothing harsh, unconscionable or unfair about Settlement Agreement and the defendant was throughout the process of negotiation and settlement legally represented.

CRIMINAL LAW – ex parte – application for criminal assets restraining order

PRACTICE AND PROCEDURE – documents produced in response to notice to produce – where judge of the Court has authorised specified redactions of those documents – where prima facie case for redaction established – whether on inspection of documents proposed redactions justified

CORPORATIONS – management and administration – duties and liabilities of officers of corporation – directors – other officers – duty of care – duty of good faith and proper purpose - whether director and general manager in breach of duties in authorising and making payments – where payments made otherwise than in accordance with usual procedures and controls but in furtherance of strategy instigated and endorsed by sole shareholder – relevance of role and status of employee to content of duties – relevance of shareholder approval to content of duties – held, no breach established

COSTS – appeal – application for leave to appeal decision of NSW Civil and Administrative Tribunal – no error of law identified in decision of Tribunal – application dismissed

SUCCESSION – FAMILY PROVISION – claim for provision by widow – widow given only life interest in properties – lengthy and happy marriage – common ground such provision not adequate – what further provision should be made – claim for provision by adult daughter from earlier marriage – whether daughter has shown that provision from will of interest in properties in Cyprus as affected by Cypriot/Turkish law not adequate