Cases and authorities

Criminal law – importing commercial quantity of methylamphetamine – limited assistance – 12 years including NPP 8 years not manifestly excessive

REAL PROPERTY – caveats – whether caveat should be extended pursuant to s 74K Real Property Act 1900 (NSW) – where contract for sale entered into for sale of matrimonial home by husband without knowledge of wife – where settlement of contracts imminent – where wife and children reside at the property

WILLS & ESTATES- construction of will – bequest to charitable institution connected with a Sydney hospital- where beneficiary ceased to exist after death of testatrix, alternative charitable institution CHARITIES – Charitable gifts and trusts- whether specifically named charitable purpose has ceased to be realizable since testatrix’s death- where alternative beneficiary clause cannot be utilised because association was in existence at the time of the testatrix’s death -whether terms of gift now impracticable – whether cy-pres scheme should be ordered-HELD: Charitable purpose of the advancement of education and for the assistance of nurses to continue their career remains capable of completion- residual gift should be applied cy-pres

PROCEDURE – service of pleading outside Australia – whether claim has insufficient prospects of success to warrant putting an overseas defendant to the trouble of defending the claim – where publication published by a subsidiary of the defendant – defendant obviously not liable as a publisher

CRIMINAL LAW – notice of motion – stay application – accused due to face fourth trial – first trial aborted due to fault of prosecution in not disclosing documents – second trial stayed until costs thrown away by first trial paid – costs paid – second trial aborted – third trial resulted in hung jury – whether fourth trial should be stayed – unfairness from prosecution’s non-disclosure not ongoing – redressed by payment – motion dismissed

BAIL – where previous application refused by the court – whether court to refuse to hear another release application – change of circumstances relevant to the grant of bail – where trial date vacated due to no fault of applicant – new trial date 11 months later – further release application not precluded BAIL – show cause offence – consideration of proper approach to show cause requirement where bail concerns able to be addressed by bail conditions – relevance of delay – three year delay between arrest and trial – importance of guarding against erosion of civil rights by normalisation of delay in a stretched criminal justice system

EVIDENCE – Re-examination – Whether question properly arise out of cross-examination

COSTS – Where defendant brought a motion to stay the proceedings incorrectly relying on an inapplicable section of the Corporations Act – no reason to depart from the usual rule that costs follow the event.

EVIDENCE – objection taken by wife of accused Younes to giving evidence at trial – whether likelihood that harm might be caused to wife of accused or her relationship if evidence given – whether harm outweighs desirability of having evidence given – balancing exercise undertaken - objection upheld

EVIDENCE – accessory after the fact to murder – application under s 138 of the Evidence Act 1900 (NSW) to exclude evidence said to be obtained improperly – where request made to owner of vehicle under s 14(1)(c) of LEPRA to disclose driver of vehicle – whether s 14(1)(c) permitted questions asked – whether accused ought to have been cautioned – evidence not obtained improperly – application refused EVIDENCE – application to exclude an admission under s 90 of the Evidence Act 1900 (NSW) – whether it would be unfair to accused to use the evidence having regard to the circumstances in which the admission was made – no unfairness – application dismissed WORDS AND PHRASES – “require”

PROFESSIONAL NEGLIGENCE – solicitor’s negligence – delay by plaintiff – application to dismiss proceedings for want of due despatch – UCPR 12.7(1) – where proceedings commenced in 2012 – where plaintiff has taken limited steps to progress the litigation – competing prejudice – whether plaintiff’s case viable – whether limitation defences fatal to plaintiff’s claim – whether cause of action otherwise vulnerable – where no application for summary dismissal – where dictates of justice require early disposition – whether hearing on merits to be preferred

INSURANCE – whether insured obliged to provide insurer with documents to enable insurer to determine whether conditions precedent to cover satisfied – insured claimed legal professional privilege in respect of documents – whether proceedings commenced prematurely EVIDENCE – further evidence – whether documents in respect of which legal professional privilege was claimed at trial may be tendered on appeal INSURANCE – double insurance – both policies contain “other insurance” clauses – whether s 45 of the Insurance Contracts Act 1984 (Cth) requires the insured to have “entered into” both contracts of insurance – whether insured has “entered into” both contracts of insurance INSURANCE – double insurance – whether insurer A entitled to resist providing indemnity on the basis that insured had already been indemnified by insurer B – effect of deed which purported to re-characterise indemnity provided by insurer B as a limited recourse loan CONTRACT – construction of the word “use” in indemnity clause in sale agreement – whether “use” has particular or special meaning under Virginian law – whether “use” encompassed leasing of aircraft or paying for maintenance pursuant to contractual obligation

PRODEDURE – costs – maximum costs orders and capped costs – Protective costs orders – unsuccessful motor vehicle accident claim against insurer for damages by brain-damaged child plaintiff – where tutor of child appellant removed on his own application – appeal stayed pending appointment of replacement tutor to child appellant – consent by independent solicitor to appointment as tutor contingent on protection against personal liability for costs – absence of alternative tutor willing to assume costs liability – whether order protecting independent solicitor tutor against personal liability for costs should be made – interests of justice having regard to parties’ respective rights and interests – stay otherwise effectively indefinite – purposes of appointment of tutor PRODEDURE – costs – interlocutory proceedings – source of power to make protective costs order – UCPR r 2.1 – incidental power under UCPR r 7.18 – inherent jurisdiction PRODEDURE – costs – protective costs order – Supreme Court Act 1970 s 46(2) – single Judge of Appeal – whether power available – whether protective costs order involves determination or decision of appeal

PRACTICE AND PROCEDURE – freezing order – defendant seeks order freezing part of amount held in escrow until cross-claim is determined – whether there is a danger that a prospective judgment will be unsatisfied – whether evidence supports such a finding –Uniform Civil Procedure Rules 2005 (NSW), r 25.11

PRACTICE AND PROCEDURE – freezing order – whether freezing order should be varied – where defendant wishes to sell asset and transfer funds to discharge liability to third party – where defendant’s net assets not affected – where defendant seeks access to credit card on terms to meet unexpected expenses

ADMINISTRATIVE LAW – judicial review of decisions of magistrate in committal proceedings – where relief sought would amount to a re-opening of committal proceedings – where Director of Public Prosecutions has found a bill of indictment – whether relief sought would lack any utility – relief refused on discretionary grounds ADMINISTRATIVE LAW – motion seeking summary dismissal of summonses seeking judicial review – whether vexatious, frivolous and an abuse of process – motion dismissed

CRIMINAL LAW – murder – trial by judge alone – accused alleged to have stabbed ex-girlfriend – cause of death blood loss from stab wound to the neck – accused immediately stabbed himself in chest and neck afterwards – accused contended that stabbing accidental – accused also raised defence of substantial impairment – Crown case circumstantial – necessary to consider all circumstances established by evidence – whether any reasonable inference or conclusion open that is inconsistent with the conclusion that the accused deliberately stabbed deceased – Crown established deceased broke relationship off with accused and accused distressed by breakup – Crown established stab and incised wounds to the neck and defensive wounds to deceased’s hand – given nature of wounds and other circumstances of killing no inference reasonably open other than accused deliberated stabbed the deceased in the neck – only rational inference is that accused intended to kill deceased – substantial impairment – accused affected by obsessive compulsive disorder and borderline personality disorder – established abnormality of mind due to underlying condition – failed to establish substantial impairment of capacity to understand events or judge whether his actions right or wrong – absence of reliable narrative from accused meant failed to establish substantial impairment of capacity to control himself – partial defence of substantial impairment failed – accused guilty of murder

PROCEDURE– appeal from interlocutory decision of local court

LAND AND ENVIRONMENT – appeal under Land and Environment Court Act 1979 (NSW), s 57(1) – compulsory acquisition of land under Land Acquisition (Just Terms Compensation) Act 1991 (NSW), Pt 2 Div 3 – compensation valuation – whether commissioners failed to consider evidence – whether conclusions supported by evidence – whether primary judge failed to deal with grounds of appeal STATUTORY INTERPRETATION – Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – whether legal costs incurred in establishing hardship are costs in “connection with the compulsory acquisition of land”, s 59(1)(a) – whether “need not be taken into account” confers discretion, s 26

ABORIGINAL LAND RIGHTS – “claimable Crown lands” – claim made in 2009 over land the subject of planning for residential subdivision – earlier claim over some of the land refused by Minister in 2004 – Minister refused claim on basis that land was likely to be needed for residential purposes – primary judge allowed appeal by land council – primary judge rejected Minister’s claims that land was needed for residential lands and for essential public purpose – whether error of law in finding by primary judge that Minister’s opinion in 2004 did not sustain subsequent decision – whether residential lands and essential public purpose limbs of definition of “claimable Crown lands” were mutually exclusive – appeal dismissed – Aboriginal Land Rights Act 1983 (NSW), subss 36(1)(b1) and (c), considered

Practice and procedure — Security for costs — Application for security for costs – where proceedings brought against defendants by company and liquidator of company – where company’s claim against defendants was distinct from the liquidator’s claim although the claims shared a substantially common factual basis – where defendants sought security for costs against the company – whether jurisdiction under s 1335 of the Corporations Act 2001 (Cth) or r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) established – whether security for costs should not be ordered in circumstances where there is a natural person plaintiff and corporate plaintiff in the proceedings – whether security for costs should not be ordered in circumstances that defending the company’s claim is likely to add little additional cost to the defendants beyond that which would be incurred in meeting liquidator’s claim – whether defendants’ conduct was causative of company’s impecuniosity – whether an order for security for costs would stultify the proceedings.

FAMILY LAW AND CHILD WELFARE – where injunction granted ex parte preventing publication of information that child is under parental responsibility of Minister – whether injunction should be continued on interlocutory basis – application of (NSW) Children and Young Persons (Care and Protection) Act 1998, s 105 – held, not sufficient to support injunction – parens patriae – scope –recognition that child entitled to keep private involvement in and association with care proceedings – best interests of the child – public interest – information already in public domain – held, there is a serious question to be tried – held, on balance of convenience injunction be continued on interlocutory basis until hearing

EVIDENCE – admissibility – whether document can rationally affect determination of a fact in issue

PROCEDURE– late service of expert material following making of joint report– whether appropriate to grant leave to adduce evidence– evidence rejected

COSTS – proceedings against company in liquidation – order sought against liquidators – whether conduct of liquidators unreasonable – whether proceedings brought about by conduct of liquidators – lapsing notices issued in respect of plaintiffs’ caveats – threat to sell properties COSTS – departing from general rule – Calderbank offer – whether failure to accept offer unreasonable

CORPORATIONS — Winding up — Application to set aside creditor’s statutory demand under ss 459H and 459J of the Corporations Act 2001 (Cth) – where there was a first and second mortgage held by the defendant over a property of the plaintiff – where debt specified in the creditor’s statutory demand related to the first mortgage – where plaintiff contended there was a genuine dispute as to the existence of the debt and an offsetting claim on the basis that the defendant was obliged to have applied proceeds of sale of the mortgaged property to the debt in respect of the first mortgage rather than the second mortgage – where plaintiff contended that the demand should be set aside on the basis that the affidavit accompanying the demand was sworn by the defendant’s solicitor – whether defendant’s solicitor had sufficient personal knowledge to swear the affidavit accompanying the demand – whether Graywinter principle applies to restrict matters that can be relied upon – whether creditor’s statutory demand ought to be set aside.

CONTRACTS — Existence of contract — where parties had entered into a joint venture under a “Heads of Agreement” for the purpose of conducting a financial planning business – where plaintiffs made various contractual claims against the defendants – whether contracts relied on by the plaintiffs fail for lack of sufficient certainty and intention to enter into contractual relations – where plaintiffs claimed first defendant engaged in unconscionable conduct under s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) – whether relevant conduct had a material connection with the supply or possible supply of financial services sufficient to support claim – where cross-claimants/defendants made various claims against the cross-defendants/plaintiffs under an alleged “Further Agreement” – whether existence of Further Agreement pleaded by cross-claimants established – whether cross-defendant was entitled to retain his clients and associated income upon termination of the joint venture under the Heads of Agreement – whether the cross-defendant was in breach of trust in diverting client income away from a trust. CORPORATIONS — Management and administration — duties and liabilities of officers of corporation – where parties had entered into a joint venture under a “Heads of Agreement” for the purpose of conducting a financial planning business – where Heads of Agreement provided each party would retain their own clients upon termination of joint venture – where cross-defendant/plaintiff was director of certain companies and caused payments to his associated interests and diverted client income upon termination of joint venture – where cross-claimant/defendant claimed cross-defendant’s conduct was in breach of director’s statutory duties – whether director’s duties were narrowed by the contractual terms and relationship between relevant parties – where cross-claimant claimed that the entity that received funds as a result of the cross-defendant’s alleged breaches of statutory fiduciary duties was liable as constructive trustee – whether claim under the first limb of Barnes v Addy established. CORPORATIONS — Management and administration — duties and liabilities of officers of corporation – where in the second proceedings the plaintiffs claimed breach of director’s statutory duties by the second defendant in facilitating payments to a third party without proper authority – where defendant contended payments were agreed between relevant parties or expressly contemplated by the terms of an employment agreement – whether breach of director’s duties established – whether plaintiffs have established the quantum of their loss in relation to the purported breach of director’s duties. EQUITY — constructive trustee — where in the second proceedings it was claimed that the first defendant diverted payments away from company to an associated entity in breach of the defendant’s obligations to the company – whether the associated entity is liable as constructive trustee in circumstances it was aware the funds were procured in breach of obligations to the company – whether restitutionary claim against associated entity established.

COSTS – personal injuries claim – occupiers liability – judgment for less than $100,000 – UCPR 42.34 – proceedings commenced in District Court – transferred to Supreme Court – transfer not opposed by Defendant – transfer reasonable on then state of medical evidence – joint reports of expert doctors received subsequently – reports unfavourable to plaintiff – whether reasonable to continue proceedings in Supreme Court – hearing date fixed – continuation in Supreme Court reasonable COSTS – offer of compromise and Calderbank offer by Defendant – offer not accepted – plaintiff recovered less than offer – form of offer of compromise – whether invalid for non-compliance with Rules - UCPR r 20.26 - whether offer included costs – whether reasonable for plaintiff to reject offer – whether reasonable period given for acceptance of offer – whether offer was a genuine compromise – plaintiff ordered to pay defendant’s costs on indemnity basis from day following offer COSTS – judgment for less than $100,000 – s 338 Legal Profession Act 2004 – effect of judgment on plaintiff’s costs LEGAL PRACTITIONERS – solicitors – solicitor’s lien over judgment obtained

PRACTICE AND PROCEDURE – whether to reopen appeal where misapprehension of fact was made – whether factual error was material to the Court’s reasoning – whether further misapprehensions of fact had been made

DEFAMATION – defence – contextual truth – Defamation Act 2005 (NSW) s 26 – appeal from primary judge’s refusal to strike out contextual imputation “the plaintiff is dishonest” – news item broadcast about plaintiff’s links to illegal investment schemes – reference to plaintiff as casualty of ICAC inquiry into Liberal Party finances – whether contextual imputation unarguably bad – whether general contextual imputation carried “in addition to” other specific imputations complained of – whether primary judge misunderstood the effect of Fairfax Media Publications v Zeccola [2015] NSWCA 329 –whether general imputation of dishonesty at least arguably capable of arising PROCEDURE – judgments and orders – interlocutory judgment – appeal against primary judge’s ruling on strike-out application relating to contextual imputation – distinction between strike-out application under UCPR 14.28(1)(a) and determination of a separate question under UCPR r 28.1 – whether correct test applied by primary judge

TORTS – negligence – bailment – respondent carrier transported goods from New South Wales to Germany – whether damage to the goods occurred whilst in possession of respondent – whether substances discovered on the goods were toxic and causative of injury to appellants PROCEDURAL FAIRNESS – respondent permitted to rely on report of different expert after initial expert became unavailable – whether procedural unfairness – no complaint made to primary judge – change did not prejudice appellants EVIDENCE – appeal – new evidence sought to be tendered – failure to establish “special grounds” pursuant to Supreme Court Act 1970 (NSW), s 75A(8)

PRACTICE AND PROCEDURE – whether to reopen appeal – whether error was made – whether court misapprehended facts about purported discrimination – whether costs of present application should be awarded against applicant

COSTS – costs of appeal and leave to appeal application – rule that costs follow the event – indemnity costs – costs of proceedings in District Court – whether Respondent acted reasonably in not accepting offers of compromise

CRIMINAL LAW – proceeds of crime – ss 18 and 19 of the Proceeds of Crime Act 2002 (Cth) – restraining orders – ex parte application

CRIMINAL LAW – Judge-alone trial for murder - Crown application to cross-examine Crown witness under s.38 Evidence Act 1995 - prior inconsistent statement - leave granted

EVIDENCE ON COMMISSION - s 32 of the Evidence on Commission Act 1995 (NSW) – ex-parte application

CIVIL PROCEDURE – settlement of proceedings commenced by or on behalf of person under legal in capacity - approval of resolution – s 76 of the Civil Procedure Act 2005 (NSW)

REAL PROPERTY - possession of land – rent to buy mortgage - mortgage default – whether s 88 notice properly executed – National Credit Code CONTRACTS - cross-claim – whether contract is unjust in all the circumstances – undue influence - Contracts Review Act 1980 (NSW)

EQUITY – application for rectification of two contracts for the sale of land by inserting the words “plus GST” after the statement of the purchase price – whether rectification should be allowed – communications surrounding the renegotiation of the purchase price considered – court considered factors including the fact that negotiations were previously conducted on a GST inclusive basis – conveyancer for the plaintiff was equivocal in her communication with the defendant – director of the plaintiff failed to correct the defendant’s understanding that the price was not GST inclusive when he had the opportunity – credibility of witnesses considered – held defendant’s witnesses were credible – alternatively, whether there was unilateral mistake – held no unilateral mistake established – held plaintiff’s summons dismissed – plaintiff to pay defendant’s costs CONTRACTS – warranty given by the plaintiff – whether the clause required the plaintiff to own copyright in the construction documents, and whether it was obliged to assign to the defendant copyright in those documents – construction of special condition – held pre-contractual negotiations cannot be taken into account in this instance – held in any event, communications did not assist with proper construction of the special condition – held proper construction required the plaintiff to own copyright in the documents

CORPORATIONS – winding up – statutory demand – whether genuine dispute as to existence of debt – whether defect in demand PROCEDURE – affidavits – affidavit in a foreign language – official supposedly administering affirmation has no language in common with supposed deponent – whether making of affirmation sufficiently proved by extrinsic evidence

FAMILY PROVISION – claim for additional provision by son and daughter-in-law of deceased – deceased died intestate FAMILY PROVISION – proceedings commenced out of time – whether sufficient cause for making an order extending the time for the making of the plaintiffs’ application – sufficient cause not established EQUITY – equitable estoppel by encouragement alleged – whether the plaintiffs acted to their detriment in reasonable reliance EVIDENCE – caution required when relying on uncorroborated statements said to have been made by the deceased

SUCCESSION - FAMILY PROVISION - The Plaintiff, the brother of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased and the executrix appointed under the Will to whom Probate granted – No provision for the Plaintiff made in deceased’s Will – Small actual estate in NSW and in Vanuatu – No competing financial claimants although widow and her children are beneficiaries named in the Will – Allegation of sexual abuse by deceased of the Plaintiff when members of the same household – Conduct of the deceased towards the Plaintiff - Whether the Plaintiff an eligible person - Whether wholly or partly dependant on the deceased – Whether factors warranting the making of the Plaintiff’s application – Unnecessary to decide whether adequate and proper provision not made in Will of the deceased for the Plaintiff because Court not satisfied that Plaintiff is an eligible person or that there are factors warranting the making of his application.

CONTEMPT OF COURT – sentence – subjective features – nature of contempt and culpability.

COSTS – indemnity costs – whether primary judge erred in dismissing application that respondents’ solicitors personally pay applicant’s costs on indemnity basis of proceedings commenced ex parte without authority – application for leave dismissed where amount in issue small and no question of principle

COSTS – proceedings for removal of caveat – consent order made for removal of caveat – agreement as to interim regime for proceeds of sale of property – interim regime not continued – offer of settlement not accepted by defendant – what is appropriate order for costs in the circumstances

CRIMINAL LAW – Judge-alone trial for murder - Crown seeks to rely upon two representations for the purpose of s.65(2) Evidence Act 1995 - maker of representations “not available” - hearsay rule applies to first representation but not to second representation

CIVIL LAW – high risk sex offender – application for renewal of interim supervision order – by consent

PROCEDURE – civil – transfer of proceedings from District Court to Supreme Court – separation of claims previously joined – appointment of tutor

PROCEDURE – summary dismissal – no reasonable cause of action

COSTS – plaintiff applied for order under s 8 of the Succession Act 2006 (NSW) – order granted – will handwritten by plaintiff and dictated by plaintiff’s partner who was a solicitor – partner was sole witness –unusual circumstances – defendant initially justified in testing validity of plaintiff’s claim – whether it was reasonable for the defendant to continue to contest the application after receiving the plaintiff’s evidence without being at risk as to payment of costs – held it was no longer reasonable for the defendant to contest the application without risk of costs upon receiving the two independent witnesses’ affidavits – whether indemnity costs should be allowed – plaintiff served Calderbank offer on the defendant – held Calderbank offer was not valid – held defendant’s cost up to the date of the service of affidavit of second independent witness be paid out of the estate of the deceased – held plaintiff’s cost of the proceedings thereafter be paid by the defendant on the ordinary basis