Cases and authorities

CRIMINAL LAW – appeal against sentence – drug importation syndicate – importing a commercial quantity of border controlled drugs – two counts on indictment with three more imports on s 16BA Schedule - whether sentencing judge erred in characterising applicant’s role – discount for assistance – late offer of assistance – assessed as low to medium value – applicant’s youth and dysfunctional background – whether considered - concurrency and accumulation – totality principle – all imports part of a course of offending over short period of time – whether the extent of accumulation produced a crushing sentence – error demonstrated in extent of accumulation – need to re-sentence – parity considerations

SEX OFFENDER - interim detention orders - high-risk sex offender - conditions proposed to mitigate risk

CONTRACT – expert determination clause – construction – process to be applied by parties to appoint an expert to determine fair value of shareholding CONTRACT – expert determination clause – construction – whether the person engaged by company for the purpose of seeking to reach agreement with shareholder can also be appointed as the ‘expert’ to determine the fair value of the shareholding CONTRACT – construction – meaning and effect of clause providing for successive mechanisms for determining ‘fair value’

REAL PROPERTY – caveats – whether caveat should be removed to allow refinance – where registered proprietor claims her purported signature on instrument said to create caveatable interest is forged – where registered proprietor’s equity will be reduced by reason of the refinance but likely to be sufficient equity in property to protect alleged caveatable interest – where registered proprietor will consent to further caveat being lodged with same priority

SUCCESSION – FAMILY PROVISION – Claim for family provision order by daughter of the deceased – Proceedings commenced outside time prescribed by the Act - The Defendant, a son of the deceased – Deceased died intestate - Administration not granted – No actual estate at the date of the hearing – No provision for the Plaintiff on intestacy - Only property that is sought to be designated as notional estate, held by Defendant as the sole registered proprietor – Defendant the proper person to represent the estate and notional estate for the purpose of the proceedings - Whether transaction that took effect within 3 years before the date of the death of the deceased was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased for the maintenance, education or advancement in life of the Plaintiff – Whether order designating property as notional estate should be made - Whether other special circumstances - Designating order not able to be made with the result that there is no actual or notional estate out of which order for provision may be made.

PROCEDURE – application to strike out amended defence – whether amended defence doomed to failure – judicial consideration of “conscious maladministration in process of assessment” – combined effect of s 175 of the Income Tax Assessment Act 1936 (Cth) and s 350-10(1) of Sch 1 of the Taxation Administration Act 1953 (Cth) – defence struck out

CROSS-VESTING – tort in Queensland – personal injuries – defendant and possible cross-defendant resident in Queensland – plaintiffs and treating doctors in NSW – Queensland law different from NSW – transfer granted on undertaking from defendant that no costs sought as consequence.

TAXATION – PAYG withholding amounts – director penalty – whether director penalty notice served on defendant – whether defendant lost opportunity to wind up company in order to remit penalty – judgment for the plaintiff

PROCEDURE – notice of motion – order seeking to strike out plaintiff’s statement of claim – statement of claim too wide – struck out

PROTECTIVE JURISDICTION – Claim for compensation under Motor Accidents Compensation Act 1999 NSW - Claimant unable to manage own affairs – “Person under a legal incapacity” within meaning of clauses 1.6.27 and 8.11.3 of Claims Assessment Guidelines – Claim by incapable person not “suitable” for administrative assessment within meaning of section 92(1)(b) of Motor Accidents Compensation Act – Court determination of claim required – Claim of incapable person “settled” without court approval or appointment of a protected estate (or financial) manager – Lawyers appropriated “settlement” moneys to costs without due authority or assessment – Regulatory procedures explained

BAIL – assessing bail concern of committing a serious offence – meaning of serious offence – s 18(2) of the Bail Act 2013 (NSW) – driving offences in the circumstances amount to a serious offence – application refused

PRACTICE – Cross-claim struck out – Defendant fails to propound proposed amended cross-claim after extended opportunities to do so – Plaintiffs entitled to have proceedings fixed for hearing

EQUITY – CHARITIES – Trusts and trustee – Where Plaintiff trustee is a local council – Where council held land on trust for the purposes of a public park, public reserve or public recreation area – Land compulsorily acquired with result that the charitable purposes for which the land was held will no longer be fulfilled – Charitable purposes – Other purposes beneficial to public – Where original purposes have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust – Cy-près scheme proposed taking into consideration practicalities – Approved by Attorney General in amended form – Cy-près scheme as proposed, with amendments, ordered.

APPEAL – Local Court – whether payments made pursuant to loan – no error in reasons of Magistrate – appeal dismissed – no point of principle

COSTS – where separate questions ordered – where number of questions reduced to a single question at hearing – whether successful parties should have their costs – whether successful parties’ costs should be reduced by reason of the reduction in the number of questions to be determined SEPARATE QUESTIONS – expectation that the Court will be cautious – need for precise formulation of questions and agreed facts – prospect that the Court may decline to answer questions if inappropriate to do so

PRACTICE AND PROCEDURE ‑ notice of motion seeking an urgent stay of a Writ of Possession – where writ already executed – motion dismissed

CRIMINAL LAW – appeal – conviction – deemed supply of prohibited drugs pursuant to s 29 of the Drug Misuse and Trafficking Act 1985 (NSW) – whether evidence concerning drugs not the subject of the charges should have been admitted – whether evidence of police officer as to method of consumption of LSD in cardboard form should have been admitted – whether misdirection that the cardboard and liquid containing LSD should be included in the overall weight of the LSD pursuant to s 4 of the Act – whether primary judge erred in failing to direct the jury to determine whether appellant was in possession of drugs found in different locations or packages separately – whether primary judge erred in not leaving to the jury alternative charges – whether appellant was unable to receive a fair trial without Crown witness and informant being called to give evidence – whether verdict unreasonable or unsupported by the evidence – whether defence counsel at trial incompetent – forensic decisions of counsel

PROCEDURE – notice of motion – pleadings – request for further particulars – notice of motion dismissed

ESTOPPEL – Whether representations made – No issue of principle EVIDENCE – Affidavit evidence – Further application to use parts of affidavits excluded due to deponent’s lack of mental capacity – Evidence said to be corroborated by other evidence already admitted – UCPR Pt 35, r 35.2(3) EVIDENCE – General matters – Inferences – Jones v Dunkel inference drawn for failure to call solicitor in relation to matters where client legal privilege had been waived EVIDENCE – Inspection – Late application to have access to videotape for expert to examine authenticity – Evidence Act 1995, s 169 – UCPR Pt 23r 23.8 FAMILY LAW – Adjustment of property interests – Whether a close personal relationship between father-in-law and daughter-in-law – Where domestic support provided to whole multi-generational family including defendant – Whether domestic support and personal care provided “for fee or reward” – How property interests to be adjusted where a close personal relationship rather than de facto relationship – Property (Relationships) Act 1984, ss 5, 14, 20 MORTGAGES – General principles – Mortgage of no force or effect where mortgagee fails to prove recited advance actually made – No collateral or other agreement proven to give mortgage effect PRACTICE – Pleadings – Amendment at close of lengthy hearing to conform pleading to evidence given in witness box – No issue of principle – Civil Procedure Act 2005, s 64

PROCEDURE – interlocutory orders – freezing order – variation of freezing order – where freezing order required disclosure of assets within Australia and world wide – where plaintiff proposes to commence proceedings against defendants in People’s Republic of China and if successful enforce judgment in Australia – where freezing order obtained on basis of concern that defendants will move or dispose of assets within Australia – whether freezing order should be varied to require disclosure only of Australian and not world wide assets – whether standard ancillary asset disclosure order requires disclosure of world wide assets

PRACTICE AND PROCEDURE – injunctions – freezing orders – freezing order made ex parte – whether limit of freezing order should be varied from $28.4 million to $2.25 million – assessment of likelihood of plaintiffs making out “no transaction” case – assessment of likely damages recoverable by plaintiffs

CRIMINAL LAW – Practice and Procedure – Application by accused for adjournment of trial – Accused charged with murder – Where alleged offence took place almost 7 years ago – Application brought on the basis of the availability of particular counsel and on the basis of a late disclosure of relevant material by the Crown – No evidence before the Court as to the availability of other counsel – Where Crown conceded that the accused was entitled to a short adjournment to allow consideration of material recently served – Lengthy procedural history where accused’s trial was originally listed to take place in August 2014 – Relevant discretionary considerations – Application refused – Adjournment of 2 weeks granted

PROTECTIVE JURISDICTION – Incapable person – Financial management – Contested proceedings – Costs – Principles applicable – In all the circumstances, what is proper order for costs? PROTECTIVE JURSIDICTION – Incapable person – Financial Management – Fiduciary obligations – Liability to account – Application for breaches of duty to be excused – Principles applicable

CONTRACTS – hire purchase contracts – whether terms and conditions booklet incorporated into contract – whether binding guarantee and indemnity exists APPEAL – whether leave is required – where two matters heard together – where no consolidation order made – where the combined value of the two claims is an amount more than $100,000

CORPORATIONS – winding up – insolvency – creditors statutory demand – application to set aside – where claimed debt is manifestly disputable – whether proceedings should be adjourned – held, adjournment refused and demand set aside

Mental Health Fitness Hearing – Accused now fit to stand trial

SEX OFFENDER - interim detention order - approach to making an order - suitability of accommodation - suggested secure accommodation facility only just commenced - interim detention order made

PROCEDURE – pleading – amendment – application for leave to amend – whether amendment futile – where statement of claim discloses no reasonable cause of action – summary dismissal – UCPR Schedule 6 – whether statement of claim properly served outside Australia

ADMINISTRATIVE LAW – judicial review – construction of s 17 of the Workers Compensation Act 1987 and s 319(c) of the Workplace Injury Management and Workers Compensation Act 1998 – industrial deafness

OPTIONS – where option to purchase share in partnership is validly exercised – whether performance frustrated – whether plaintiff acted inconsistently with his obligations under the Option Agreement to transfer the share in the partnership to the defendant – whether repudiation – whether defendant accepted repudiation – whether parties abandoned Option Agreement

CRIMINAL LAW – conviction appeal – supply prohibited drug (heroin) in an amount not less than the commercial quantity – Crown conceded that trial judge failed to direct jury in relation to an essential element of the offence, namely knowledge of the quantity of drugs in the appellant’s possession – appeal allowed and conviction quashed – substituted conviction on statutory alternative charge – remaining grounds of appeal not pressed – appellant sentenced on count of supplying an indictable quantity of a prohibited drug on the basis that the amount was close to but not exceeding the commercial quantity

CRIMINAL LAW – appeal against sentence – poor health – whether decision to confine applicant’s poor health to considerations of special circumstances and not to the head sentence was erroneous – concession made by applicant’s senior counsel before sentencing judge – whether leave to appeal should be granted

PROCEDURE- Second defendant (President and director of the Club) joined by consent to proceedings after a successful appeal by the plaintiffs to the High Court, restoration of the Trial Judge’s determination in favour of the plaintiffs that they had a lease of the premises and remitter of matter by High Court back to Equity Division to determine compensation payable by the Club to plaintiffs by reason of an undertaking given by the Club to the plaintiffs following the Court of Appeal’s decision; whether determination of matters specified in Statement of Claim against the second defendant would be inconsistent with the remitter from the High Court- discussions as to whether the Court has, in the absence of consent, power to join a third party to proceedings after judgment given against another party.

EQUITY- Injunction- Plaintiff seeks permanent injunction to stop the defendants from exhibiting in public, as part of a documentary, film footage taken of the plaintiff with her knowledge and agreement CONTRACT: Plaintiff asserts a binding contract made prior to the first filmed interview and an implied term of that contract that the first defendant will not use the footage obtained for any purpose other than as a student assignment documentary- HELD: The arrangement made shortly before 7 March 2012 in relation to the interview by the first defendant of the plaintiff and its filming did not give rise to a legally enforceable agreement EQUITY: Unconscionable Conduct- Plaintiff asserts that the first defendant obtained the footage on the basis it was for a student assignment documentary and that the defendants’ use of the footage for a documentary for public release on a topic different to that which was originally contemplated amounts to unconscionable conduct on the part of the first defendant (and hence all defendants)- special disadvantage asserted- HELD: the first defendant made the plaintiff aware on 7 March 2012 and onwards by conversations, SMS messages and emails that she wished to make a documentary for public release and informed the plaintiff of the change in focus of the documentary as events transpired often with the encouragement of, or as a result of the actions of the plaintiff- the plaintiff was not vulnerable or under a disadvantage viz a viz the first defendant, and the first defendant did not therefore take advantage of the plaintiff or act in any way unconscionably towards the plaintiff.

VOLUNTARY ASSOCIATIONS – whether requisition of general meeting under Associations Incorporation Act 1964 (TAS) effective to requisition meeting of Federal Congress of cross claimant – whether meeting of Federal Congress is a general meeting for purposes of that statute – whether resolutions purportedly passed at such meeting effective to remove executive officers

CONTRACTS – licence to use part of primary school premises for before and after school care – exercise of option – whether notice exercising option given to school principal – whether service on school principal was service on Minister for purpose of licence – nature of licensee’s entitlement assuming option was exercised

APPEAL – Local Court – criminal proceedings – interlocutory decision – refusal to grant leave to withdraw pleas of guilty – Magistrate did not err in considering no evidence to support pleas – appeal dismissed

CONTRACT – confidential information – whether confidential information has been identified with requisite specificity – whether defendants entered into confidentiality agreements – whether information has become part of a person’s general skill, knowledge and experience EQUITY – confidential information – whether such information as is confidential warrants equitable protection – whether such confidential information was received by the defendants in circumstances importing an obligation of confidence EQUITY – injunctions – whether undertakings provided by defendants are sufficient to protect such information as is confidential

APPEAL – application for leave to appeal – claim against State for damages for harm said to arise from judgment of Land and Environment Court – damages said to flow from order of superior court of record – claim misconceived PROCEDURE – civil – extension of time – short delay – absence of prejudice to respondent from delay – whether case hopeless – need to consider substance of application to determine prospects

APPEAL – application for leave to appeal – judgment below involved application to review an interlocutory decision made in the course of a trial in the Equity Division – trial followed by unsuccessful appeal – appeal followed by unsuccessful application for “judicial review” – second application for “judicial review” rejected – proceedings misconceived

REAL PROPERTY – lease agreement included option to renew and option to purchase – whether lease void for uncertainty – whether land subject of the lease was identified or capable of identification – whether “right of use” required to be granted as part of option to purchase was an easement or a contractual licence – whether “right of use” was capable of being an easement

CRIMINAL LAW – appeal pursuant to s 5G Criminal Appeal Act 1912 (NSW) – application for leave – contact between accused and two jurors outside court - discharge of two jurors by trial judge – discharge of remaining jurors by trial judge pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW) – whether decision to discharge remaining jurors erroneous

COSTS – application for freezing order withdrawn by plaintiff – withdrawal followed receipt of information from defendant – whether information contained misrepresentations concerning defendant’s financial position – whether application would have succeeded if pursued

SUCCESSION – family provision order – application by 60 year old son of testator – plaintiff already given legacy of $1.5 million under will of deceased SUCCESSION – family provision order – freedom of testamentary disposition – relevance of statement from testator under s 100 of the Succession Act SUCCESSION – family provision order – factors to be taken into account when making a family provision order – court not satisfied of inadequacy of provision made for the plaintiff SUCCESSION – family provision order – how burden of costs of the proceedings to be borne – fact specific – discretion to allow unsuccessful plaintiff to have his costs out of the estate

COSTS – where proceedings commenced in CTTT and transferred to this Court and plaintiff obtains judgment for less than $500,000 – whether commencement and continuation of proceedings in this Court was warranted (UCPR r 42.34) – whether costs should follow the event of the plaintiff’s success (UCPR r 42.1)

LANDLORD AND TENANT – leases and tenancy agreements – construction and interpretation – lease provides that unless otherwise specified, landlord not to unreasonably or arbitrarily withhold consent or approval where consent or approval required under lease – lease grants landlord absolute discretion to require tenant to amend Fitout Work prior to giving approval – whether landlord obliged to consent to tenant’s proposed application under Environmental Planning and Assessment Act 1979 (NSW), s 96, where content of application modifies previously approved Fitout Work

CONVEYANCING – completion of contract – claim for reduction of purchase price owing to damage to land – whether damage to land through removal of fixtures – whether damage to land because of substantial quantity of rubbish on land – Conveyancing Act 1919 (NSW), s 66M REAL PROPERTY – fixtures to land – dealings with and affecting fixtures – whether dishwasher fixture or chattel – whether incomplete kitchen cabinet fixture or chattel – whether large free standing wardrobes fixtures or chattels CONVEYANCING – contract for sale – clause provided for purchase price to increase if completion occurred after nominated completion date, except where “actual completion is delayed because of vendor’s default” – whether completion delayed because of vendor’s default EQUITY – trusts and trustees – powers, duties, rights and liabilities of trustees – statutory trustees for sale –duty of care in respect of trust property – whether breach of duty by failing to levy occupation fee – whether breach of duty to act impartially by permitting one beneficiary to remain in occupation without fee WORDS AND PHRASES – “vendor’s default”

PRACTICE AND PROCEDURE – application to re-open proceedings after reasons for judgment had issued but before entry of judgment – whether economic loss for breach of warranty of authority is apportionable claim under Civil Liability Act – application to re-open granted – economic loss not able to be apportioned.

INSURANCE – public liability policy – exclusion – construction – whether injury to worker performing work for benefit of insured – whether business of employer included supply of labour – whether work performed in part under the care, control, direction or supervision of the insured TORTS – negligence – personal injury – plaintiff injured when emptying bins in Penrith local council area – plaintiff employed by independent contractor which had contract with Penrith City Council to empty bins in municipality – negligence claims brought by plaintiff against Council and insurer of company associated with employer company – challenge to findings of fact – finding that plaintiff’s injuries “mainly” caused by damaged bins unsubstantiated – not possible on medical evidence to differentiate effect of lifting damaged bins from effect of lifting heavy bins TORTS – negligence – scope of duty of care of principal for employee of contractor – principal under a duty to repair damaged bins – duty to ensure rubbish collection was in hands of competent contractors – whether Council owed duty of care to ensure safe work conditions – no relevant breach of duty by Council – Council’s appeal allowed TORTS – negligence – proceedings against insurer of deregistered company under Corporations Act 2001 (Cth), s 601AG – alleged negligence by deregistered company – whether insurer liable directly to the plaintiff under s 601AG – whether deregistered company had liability to pay compensation to plaintiff for personal injury suffered during relevant period despite change of employer – whether liability fell within cover afforded by policy – applicability of exclusions under policy – insurer’s appeal allowed

CRIMINAL LAW – murder – guilty plea to lesser charge of manslaughter not on indictment – whether verdict of “not guilty” still returnable – significance of guilty plea otherwise