Cases and authorities

CONTRACT – voluntary professional association – terms governing corporate membership of association – terms governing relationship with persons accredited by the association as bushfire consultants – where association received complaint regarding services provided by accredited person – consideration of content of association’s obligation to afford procedural fairness during investigation of complaint – where corporate member and accredited person refused to produce documents pending provision of particulars of matters under investigation – whether refusal amounted to repudiatory breach of contract with association – suspension and termination of membership and accreditation – whether validly terminated CONSUMER LAW – where voluntary professional association represented that the board had determined to suspend a company’s membership and a practitioner’s accreditation – where board had not in fact met for that purpose – whether association engaged in misleading or deceptive conduct

COSTS – where plaintiffs and defendants had varying success at trial – whether indemnity costs should be awarded – where Calderbank offers made – whether offeror demonstrated it was unreasonable for offeree not to accept offer – where offers of compromise were made – whether Court should otherwise order (UCPR r 42.15A) – whether a Bullock or Sanderson order should be made – whether there should be a carve-out of particular costs

CONTRACT — Guarantee — Principles of construction — Contract signed by first defendant as company director — Contract included a term providing that the first defendant gave a personal guarantee by way of a charge — Whether by signing the agreement the first defendant indicated to a reasonable person that she personally granted a charge to secure payment of moneys owed by the company — Signature expressly stated to be given as an acceptance for and on behalf of the company — First defendant did not sign in her personal capacity — First defendant did not separately sign the guarantee clause — First defendant did not grant a charge to secure payment of moneys owed

PRACTICE AND PROCEDURE – Application for summary judgment pursuant to UCPR, r 13.4(1)(b) – claim in tort against the State of New South Wales for the conduct of several public authorities – whether the plaintiff’s pleadings disclose a cause of action – defendant/applicant brings motion to strike out plaintiff’s pleadings.

PARTNERSHIP — Taking of account — Plaintiff and defendant entered into an oral partnership agreement for the acquisition and development of a property — Partners agreed to contribute equally to the costs of the purchase and development of the property — Partners agreed that they would be entitled to share in the profits equally — Partners entered into a partition agreement — Partners dispute how the costs, expenses and profits of the partnership should be accounted for and divided between the parties on the final accounting — Whether payments made during the course of the partnership constituted advances or contributions of capital — Payments better characterised as advances not contributions to capital — Whether the values of distributed units should be determined according to their true market value or the values assigned in the partition agreement — Written partition agreement not intended by the parties to be a complete record of their agreement — Parties agreed orally that the values of the units would be reassessed on a final accounting —Oral agreement not inconsistent with the terms of the written agreement —Values of the distributed units to be determined according to their true market value — Whether the account should recognise a liability of the partnership to the defendant’s building company in respect of a margin on construction costs — The partners agreed that the builder would not be entitled to a margin on construction costs — No liability should be included on the taking of the account for a liability to pay a margin to the builder — Whether an adjustment is required in respect of the refund received by the defendant for GST paid by the partnership —Tax treatment of units distributed to individual partners does not affect an assessment of whether profits have been distributed equally — No adjustment to be made on the taking of accounts in respect of the GST issue identified by the plaintiff

SUCCESSION - FAMILY PROVISION – PARENTAGE TESTING - The Plaintiff, a person said to be the son of the deceased, applied for a family provision order under s 57(1)(c) of the Succession Act 2006 — Issue as to paternity - Defendant sought parentage testing under s 26 of the Status of Children Act 1996— Discretionary considerations - Power to order tests on family members - DNA test ordered.

EQUITY – fraudulent non-disclosure – claim to set aside deed and mortgage – rescission

PRACTICE AND PROCEDURE – court made orders for preparation and service of evidence in chief – respondents filed evidence referring to incorrect agreement – respondents discovered error prior to trial – whether primary judge erred in permitting respondents to tender agreement served late – whether the applicants suffered prejudice – whether primary judge erred in refusing to adjourn proceedings – whether primary judge erred in reserving the question of costs

CRIMINAL LAW – sentence appeal – aggravated enter a building with intent to commit an indictable offence and cause grievous bodily harm with intent to do so – early plea of guilty – two victims suffering serious injuries – offender unable to explain actions – offender person of good character with no previous offences showing genuine remorse – sentence imposed at top of statistical range – error in sentencing process identified – sentence manifestly excessive – offender re-sentenced.

Criminal law – sentence – availability of Local Court – sentence manifestly excessive Criminal law – sentence – protective custody – disadvantaged upbringing and mental health – accumulation of sentences

PRACTICE AND PROCEDURE — Judgments and orders — Freezing orders — Application to discharge freezing orders — Whether there is a serious question to be tried — Whether there is a risk of dissipation of assets — Whether plaintiff motivated by a collateral and improper purpose — Plaintiffs’ claim not strong — Evidence as to the risk of dissipation of assets reasonably strong — Plaintiff has used the making of the freezing orders for a collateral purpose — Freezing orders discharged

CORPORATIONS — voluntary administration — application by administrators of company under s 447A of the Corporations Act 2001 (Cth) – where administrators sought orders for modification of operation of Pt 5.3A of the Corporations Act to limit personal liability of administrators in respect of certain borrowings by company – where company was developing project that could provide increased returns to creditors if part of the project was completed – where completion of part of the project would not be possible without further borrowing by the company – where secured creditors committed to making the relevant advance to the company – whether interests of company’s creditors best served by proposed arrangement – whether creditors of company are prejudiced or disadvantaged by orders sought.

PRACTICE & PROCEDURE – where matter listed for judgment – where all parties seek deferral of delivery of judgment to enable pursuit of settlement discussions

CRIMINAL LAW – shooting murder – application by accused for verdict by direction

CRIMINAL LAW – sentence – murder – constructive murder – victim fatally stabbed during the course of aggravated robbery – where no proof of intention to kill or inflict serious injury – low level of planning – offences not premeditated – objective seriousness below mid-range – disparity between offenders appropriate – separate and different roles – contrition and remorse – significant criminal histories and drug addiction – limited prospects of rehabilitation – where reduced scope for general deterrence – appropriateness of punishment and retribution – no special circumstances shown

CRIMINAL – evidence – admissibility of evidence of identification of footwear years later from a black and white photograph – whether the evidence is relevant pursuant to s 55 of the Evidence Act 1995 (NSW) – evidence admissible

PRACTICE AND PROCEDURE – plaintiff mortgagee of property – defendant registered proprietor – proceedings for possession resolved by deed – consent judgment filed by plaintiff – application made by plaintiff for entry of consent judgment – undertaking by plaintiff not to enforce judgment for 8 weeks – application made by defendant for stay of entry of consent judgment – no evidence to challenge judgment – stay refused – consent judgment entered on basis of undertaking PRACTICE AND PROCEDURE – application for appointment of a tutor for defendant – no expert or other evidence provided regarding mental capacity – application adjourned

PRACTICE AND PROCEDURE – plaintiff mortgagee of property – defendants registered proprietors of property – applicants entered into a Rent-Buy arrangement with defendants – writ of possession executed in favour of plaintiff – second defendant commenced proceedings in Equity Division for order of sale of property pursuant to s 66G of Conveyancing Act 1919 (NSW) – notice of motion filed by applicants to be joined as defendants to proceedings and for stay of execution writ of possession – stay granted subject to applicants applying for expedition of Equity Proceedings

PRACTICE AND PROCEDURE – Adjournment of proceedings to allow parties to inspect documents produced shortly before the commencement of the hearing – No point of principle

COSTS – indemnity costs – Uniform Civil Procedure Rules, r 42.14 – plaintiff successful in family provision proceedings – unsuccessful third defendant holds property declared to be notional estate of the deceased for the purposes of Succession Act, Chapter 3 – plaintiff serves offer of compromise – whether the result of the proceedings was no less favourable to the plaintiff than the plaintiff’s offer of compromise – whether the Court should order indemnity costs – order for costs made on 24 June 2016 against the estate and notional estate of the deceased – motion for a special costs order filed on 19 September 2016 – whether the Court now has jurisdiction to make a special costs order, or is precluded from so doing by UCPR, r 36.16(3A).

CRIMINAL LAW – murder and attempted murder – judge alone trial – reasons for verdict – where three victims were residents in a nursing home at which the accused was an aged care worker – where each victim injected with insulin with an intention to kill – sole issue whether accused administered the injections – circumstantial case – possibility that someone other than a member of staff administered injections rejected as alternative hypothesis – evidence against accused distinguishes him from other members of staff – verdicts of guilty

PROCEDURE – application to vacate consent orders for specific performance – whether justice would be served by vacating the orders – whether prima facie case of breach of contract of sale PROCEDURE – whether appellants able to advance argument on appeal which was expressly abandoned by counsel before primary judge

EVIDENCE - discretion to exclude evidence pursuant to Evidence Act 1995 (NSW), s 135(a) - death of victim of alleged robbery prior to trial - statements of deceased admissible pursuant to Evidence Act 1995 (NSW), s 65(2) - whether probative value of evidence substantially outweighed by the danger that the evidence might be unfairly prejudicial - whether inability to cross-examine deceased gave rise to danger that statements would be unfairly prejudicial to the accused APPEAL - appeal against interlocutory decision by the Crown pursuant to Criminal Appeal Act 1912 (NSW), s 5F(3A) - appeal from discretionary decision of trial judge to exclude evidence pursuant to Evidence Act 1995 (NSW), s 135(a) - whether error established in the House v The King sense - whether trial judge impermissibly took into account “inadequacy of police investigation”

CRIMINAL LAW – conviction appeal – assault occasioning actual bodily harm and robbery using corporal violence – complaint as to admission of tendency evidence causing judge alone trial – complaint of prejudice arising from listing of other unrelated charges against appellant on same day as trial for present offences – whether complainant giving evidence via audio-visual link caused miscarriage of justice – whether verdicts unreasonable or insupportable having regard to evidence – conviction appeal dismissed CRIMINAL LAW – sentence appeal – complaint as to failure of parole officer to release applicant to parole – leave to appeal against sentence refused

CRIMINAL LAW – conviction appeal – dangerous driving causing grievous bodily harm – failing to stop after an impact which caused grievous bodily harm – whether the verdict of the jury was unreasonable and could not be supported by the evidence – whether the Crown established beyond reasonable doubt that the appellant was driving the vehicle at the time of impact – identification evidence – post-offence conduct – lies – consciousness of guilt

CORPORATIONS — Liquidation — Derivative action — where the defendants applied for grant of leave under Court’s inherent jurisdiction to represent company and its subsidiaries for purposes of bringing claims against various parties – whether proposed derivative action exhibits such a degree of merit as to be neither vexatious or oppressive – whether liquidator of company opposes commencement of derivative action – whether liquidator and company are financially protected by means of indemnity. PROCEDURE — Costs — Order for costs on indemnity basis – where plaintiffs sought indemnity costs in respect of paragraphs of defendants’ notice of motion in which defendants sought to bring claims against third parties with no connection to plaintiffs – where defendants were self-represented litigants – whether indemnity costs ought to be granted. PROCEDURE — Costs — where defendants’ amended notice of motion was dismissed – where plaintiffs sought an order for costs forthwith against defendants –whether costs should be payable forthwith in circumstances where delay in final determination of proceedings was in part due to plaintiffs’ amendment of their pleadings.

PRACTICE AND PROCEDURE – application to stay or decline to exercise jurisdiction to hear, or to dismiss summarily, proceedings – whether Court of its own motion should transfer proceedings to the Family Court of Australia – whether the Family Court is the more appropriate forum – whether it is in the interests of justice to do so – Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

PRACTICE AND PROCEDURE – application for transfer of proceedings from District Court to Supreme Court – if plaintiff successful amount awarded likely to exceed jurisdictional limit of District Court – order made

EVIDENCE – application by fifth defendant for evidence to be given by audio visual link – application opposed by plaintiff – consideration of factors in s 7 of Evidence (Audio and Audio Visual Links) Act 1998 – likely that fifth defendant will be cross-examined on credit – application refused

PRACTICE AND PROCEDURE – summons seeking declaration that costs of proceedings before Court of Appeal subsumed in costs order made by Magistrate in Local Court – notice of motion seeking dismissal of proceedings pursuant to UCPR r 13.4 – Local Court has no power to affect a costs order made by Court of Appeal – summons dismissed

ADMINISTRATIVE LAW — STATUTES — Independent Commission Against Corruption Act 1988 (NSW) (“the Act”) — inquiry into allegations of corruption — requirement to provide procedural fairness to potentially affected persons — claim by the plaintiffs for declaratory relief that they were denied procedural fairness by reason of the non-disclosure of a number of specified matters — HELD: denial of procedural fairness not established — the plaintiffs had an adequate opportunity to deal with the relevant subject matter — the plaintiffs were not deprived of the possibility of a successful outcome. TORT — Misfeasance in public office — requirements for liability — whether defendants held public office — whether they knowingly or recklessly exceeded powers — whether they were reckless as to whether plaintiffs would suffer damage — whether plaintiffs suffered damage — CLAIM that ICAC committed misfeasance by knowingly denying procedural fairness — HELD: plaintiffs not denied procedural fairness — damage not established — CLAIM that Commissioner committed misfeasance in public office by making a suppression order which he knew he had no power to make — HELD: not established that the Commissioner had no power — not established that the Commissioner knew he had no power — no damage established — CLAIM that Counsel Assisting committed misfeasance in public office by cross-examining on a knowingly false premise — HELD: Counsel Assisting did not occupy public office — existence of false premise not established — no damage established — Counsel Assisting entitled to barristers’ immunity — CLAIM that ICAC investigators who executed search warrant committed misfeasance in public office by causing videotaping of documents outside search warrant — HELD: investigators executing search warrant did not hold public office — held they did knowingly engage in conduct beyond power — knowledge or recklessness of damage to be suffered not established — no damage established.

EVIDENCE – Expert evidence – Whether witness appropriately qualified – Whether evidence should be excluded on the basis that its probative value was substantially outweighed by the danger of unfair prejudice – Evidence admitted

APPEAL – Local Court – sale of a power boat – procedural fairness – bailment – evidence of a handwriting expert – no error of law – appeal dismissed

PROCEDURE – Miscellaneous procedural matters – Other matters – separate question – whether appropriate to answer – whether question was an advisory opinion, not judicial determination – held, not inappropriate to answer CORPORATIONS – financial services and markets – financial markets – where cash cover for margin returned to market participant following appointment of administrators to participant (“Returned Collateral”) – whether, regardless of various unresolved issues, individual clients (“Relevant ETO Clients”) to whose account cover was credited in records of ASX at direction of participant exclusively entitled to Returned Collateral – whether received by administrators impressed with equitable obligation to pay to relevant clients – held, no such obligation arises from regulatory and contractual framework or correspondence – whether sourced only in funds provided by relevant clients – held, not possible to determine at this stage that sourced solely in funds provided by relevant clients – not possible to conclude that relevant clients entitled to Returned Collateral regardless of unresolved issues CORPORATIONS – financial services and markets – financial services providers – dealing with clients’ money – money related to derivatives – insolvency – where licensee in administration – where moneys “swept” from Relevant ETO Clients’ personal accounts into pre-administration client segregated account (“CSA”) pursuant to standing client authority after administrators appointed (“Erroneous Withdrawals”) – whether, regardless of various unresolved issues, Relevant ETO Clients entitled to return of Erroneous Withdrawals – where purpose of payments was to cover margin obligations of licensee – where purpose of payment failed as licensee did not meet its margin obligations and clients’ funds not used to cover those obligations – whether client moneys were paid into CSA “in error” – payment made in furtherance of payer’s purpose and in accordance with payer’s intention is not made in error – payment made on assumption that is later falsified is not made in error – amounts ought to have been paid into separate post-administration account and thus paid into CSA in error – whether reg 7.8.03(6) applies to moneys paid into account after insolvency event – held, it does not – held, relevant clients entitled to return of payments

PROFESSIONAL NEGLIGENCE – medical negligence – assessment of damages – psychiatric injury following death of plaintiff’s baby – post-traumatic stress disorder – depression and anxiety – whether plaintiff suffered organic brain damage – prospects of recovery – effect of resolution of court proceedings on recovery

INSURANCE – contracts of insurance – where insurer is liable to indemnify insured – whether relevant policy includes a limitation of liability – where there is limited evidence available due to the relevant date of the policy being 1967 – Workers Compensation Act 1926 (NSW)

CRIMINAL – application for trial by judge alone – whether in the interests of justice – where accused has limited access to funds – whether complexity of expert evidence will affect jury comprehension – whether the need for multiple directions will affect jury comprehension – potential prejudice of tendency evidence in a murder trial – application granted

PRACTICE AND PROCEDURE – summons seeking to appeal against seven separate decisions – notice of motion seeking dismissal of proceedings pursuant to UCPR r 13.4 – no jurisdiction to entertain appeal against any of decisions identified by plaintiff – summons dismissed

EVIDENCE - shooting murder – where call charge records and reverse call charge records indicate that accused was in the vicinity of the deceased’s home some weeks before the shooting – where deceased’s wife recalls seeing black Range Rover in vicinity of home four to six weeks before shooting – where dark blue Range Rover registered to accused - whether evidence capable of affecting the assessment of the probability of a fact in issue – evidence as to cell towers incomplete – evidence not relevant.

COSTS – indemnity costs – where plaintiff seeks and is granted leave to discontinue – where resolution of indemnity costs application would require resolution of the underlying issues – no question of principle

EVIDENCE – shooting murder – where accused received video message showing a news items about shooting shortly after it occurred – whether evidence relevant

CRIMINAL LAW – Judge-alone trial for murder - pretrial hearing - tender of evidence by Crown for tendency and non-tendency purposes - objection to tender of evidence - Accused charged with murder of ex-wife of Man Monis in April 2013 - Accused in relationship with Monis at the time of killing - Crown case that Accused killed deceased at behest of Monis - Crown tender of evidence of acts allegedly performed by Accused at behest of Monis during their relationship since 2008 - Accused appearing in extremist videos and communicating in offensive way with relatives of deceased Australian servicemen - Accused protesting at behest of Monis - Crown case that Accused and Monis wished to kill ex-wife to obtain custody of Monis’ children to permit creation of family unit - whether evidence relevant for non-tendency purposes including relationship between Monis and Accused, motive and state of mind of Accused - whether evidence may be used as tendency evidence - suggested tendency of Accused to act at behest of Monis in a variety of ways - assessment of prejudicial effect under ss.101(2) and 137 Evidence Act 1995 for the purpose of a Judge-alone trial - evidence allowed for non-tendency and tendency purposes

CIVIL – COSTS – successful application pursuant to s 350(1) of the Legal Profession Act 2004 (NSW)(repealed) – whether unsuccessful resisting party should have its costs – each party ordered to pay own costs

PRACTICE AND PROCEDURE – subpoenas – subpoena issued by self-represented litigant – cross-claim by self-represented litigant – leave granted to amend cross-claim – issues limited after contested hearing to amend - documents produced – challenge by motion to adequacy of documents produced – documents unrelated to issues in amended cross-claim for which leave granted – motion dismissed

PROCEDURE – notice of motion – application to cross-examine deponent of affidavit verifying discovery – whether reasonable ground for being fairly certain that there are other documents which ought to be disclosed – application granted

PRACTICE AND PROCEDURE – informal service – where third defendant not present in jurisdiction but had notice of proceedings – where service on third defendant permitted under UCPR Sch 6 – whether order can be made pursuant to UCPR r 10.14(3) for confirmation of informal service of summons and list statement effected on solicitors retained by third defendant –– where third defendant’s solicitors did not have instructions to accept service but had sworn an affidavit making specific reference to particular paragraphs of the documents served

REAL PROPERTY – possession of land – mortgages – default – whether default occurred - whether estoppel prevents mortgagee from enforcing mortgage – when detriment alleged – withdrawal of representation before detriment occurred – no reliance on representation – default established – mortgagee entitled to possession

PRACTICE AND PROCEDURE – notices to produce – where a judge of the Court has determined documents not privileged as a whole but may be redacted as to any parts containing legal advice or views as to prospects, strategy or tactics – whether basis made out for proposed redaction – whether Court to exercise power to inspect documents said to be privileged

CIVIL LAW – Crimes (High Risk Offenders) Act 2006 (NSW) – application for continuing detention order and extended supervision order – defendant bail refused on pending serious criminal charge – whether consent interim detention order is appropriate – interim detention order made