Cases and authorities

PRACTICE & PROCEDURE – Interrogatories – personal injury claim – plaintiff with short term memory loss – meaning of necessary – special reasons disclosed.

DEFAMATION – pleadings – objections to imputations

DEFAMATION – pleadings – application to have particulars of truth struck out

REAL PROPERTY – allegation of trespass – allegation that road constructed on property by defendant – adjournment application opposed by defendant – claim advanced by plaintiff cannot succeed – application refused – leave granted to plaintiff to discontinue proceedings

COSTS - gross sum costs order – assessed costs

PROCEDURE — Judgments and orders — Application for stay of orders pending proposed appeal – whether there are reasonably arguable questions for determination of appellate court – whether applicant will suffer irreparable harm is a stay is refused.

DEFAMATION – imputations – objections as to form and capacity – no question of principle

PROCEDURE — Costs — Order sought for costs on indemnity basis — where plaintiff was successful in substantive application to set aside creditor’s statutory demand – where plaintiff sought indemnity costs on basis of defendant’s rejection of purported Calderbank letter – where purported Calderbank letter did not specify the basis on which the debt specified in the creditor’s statutory demand was genuinely disputed – whether Court should order indemnity costs.

CRIMINAL ASSETS – proceeds of crime – application for compensation order in respect of property forfeited to the Commonwealth – bank loan to purchase property obtained as a result of knowingly false representations by defendant – onus of proving interest in property was neither derived from offence nor instrument of offence within meaning of Proceeds of Crime Act not discharged – application dismissed

PRACTICE AND PROCEDURE – application for discovery before service of affidavit evidence – whether it is in interests of justice and consistent with the just, quick and cheap resolution of the real issues in the proceedings – application dismissed

CRIMINAL LAW – procedure – appeal against forensic procedure order made in Local Court under Crimes (Forensic Procedures) Act (CFP Act) – historic sex offence matched to DNA of accused – accused has twin brother who he claims is identical and therefore has same DNA profile – whether plaintiff is a suspect within meaning of CFP Act – consideration of requirements of ss 24 and 26 of CFP Act – whether reasonable grounds to believe suspect has committed an offence – whether reasonable grounds to believe forensic procedure will produce evidence tending to confirm or disprove that the suspect committed an offence – potential for forensic procedure to either confirm suspect’s DNA matches profile of alleged offender or exculpate suspect – no error established in decision of Magistrate – summons dismissed CRIMINAL LAW – second application for forensic procedure following refusal of first application – requirements for additional information

PROCEDURE – civil – UCPR r12.6 – whether consent or leave required to withdraw admission made in a commercial list response – principles that apply where admission of mixed question of fact and law

CONTRACTS – general contractual principles – existence of contract – implication of contractual terms PROCEDURE – application of the principle in Jones v Dunkel – operation of the rule in Browne v Dunn ESTOPPEL – by conduct – promissory Estoppel – Estoppel by convention

CRIMINAL LAW – sentence – insider trading offences – guilty pleas – offences assessed below the midrange of seriousness – offender as tippee – offending over a five month period – three different target companies – substantial investments - early pleas and co-operation with law enforcement agencies – effect of sentence on family of offender - exceptional circumstances demonstrated – wife’s serious mental health issues – offender not an Australian citizen and liable to deportation – remorse demonstrated – strong subjective case - sentence of imprisonment warranted

PROCEDURE– personal injury– mental harm damages– consent judgment PROCEDURE– compensation to relatives–approval of structure of settlement– where not contested– where different apportionment to recipients – where one child is still a minor– where one child has passed away

PROCEDURE– transfer of primary and related proceedings from local court to supreme court– where cross-claim is in respect of same facts as primary proceedings– where cross-claim can only be brought in a superior court and cannot be severed from primary proceedings

COSTS – proceedings brought between the parties as to an insolvent property development joint venture – fully contested trial takes place to allocate the burden of losses – but property market improves and as a result of recent sales the joint venture becomes solvent – proceedings are no longer pursued by either party - proceedings discontinued – claim and cross-claim dismissed by consent in February 2016 – parties cannot agree on the proper costs order in the circumstances – contest as to the burden of costs in the period after the Court notified that a final settlement is likely.

CRIMINAL LAW – Jury – Discretionary discharge of juror

PROCEDURE- Costs- unsuccessful plaintiff seeks an order that successful defendant pay plaintiff’s costs by reason of the 1st defendant succeeding on a point not previously pleaded- Held- the 1st defendant should have pleaded the defence but its failure to do so ought not to deprive it of its entitlement to costs, or either of the other defendants to theirs.

PRODEDURE – Interlocutory proceedings – interim payments – where agreed between the parties TRUSTEE AND GUARDIANSHIP – provision of necessary authority for manager of estate by NSW Trustee and Guardian

CRIMINAL LAW – imposition of limiting term – found guilty on the limited available evidence – chronic alcohol/drug disorder – impact of the disorder on cognitive processes – relevant to the assessment of moral culpability – refer to Mental Health Review Tribunal

PRACTICE AND PROCEDURE – interlocutory issues – protection against revelation of culpable conduct – order for service of any affidavit on which the party wishes to rely – whether such order requires revelation of incriminating material – whether court can grant s 87 Civil Procedure Act certificate in circumstances where party chooses to rely on evidence which may tend to prove the person has engaged in culpable conduct; PRACTICE AND PROCEDURE – subpoena – application to set aside –whether legitimate forensic purpose to be served by production of documents sought – whether reason to expect documents sought might be relevant to proceedings

CONTRACT – franchise agreement – where option to purchase business assets of franchisee if agreement “terminated for any reason” – whether option only available where termination occurs pursuant to express entitlement – whether option void for uncertainty – whether franchisor entitled to specific performance of purchase agreements arising from exercise of option CONTRACT – franchise agreement – where franchisees purported to terminate agreements – whether franchisor engaged in repudiatory conduct entitling franchisees to terminate – whether breaches of essential terms by franchisor – whether franchisor engaged in unconscionable conduct

SUCCESSION – FAMILY PROVISION – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) – The Defendant, the executor of the Will of the deceased and the person with whom the deceased person was living in a de facto relationship at the time of his death – Probate granted – Defendant the sole beneficiary named in Will – Actual estate consisting of small amount of cash – Notional estate said to be deceased’s interest as joint tenant in real estate and in joint bank accounts held with Defendant – Jointly held property transmitted to the Defendant – Order sought designating deceased’s interest in jointly held property as notional estate – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Whether order designating property as notional estate should be made – Nature and quantum of provision, if any, that ought to be made for the Plaintiff.

CRIMINAL LAW – sentencing – aggravated indecent assault and aggravated sexual intercourse without consent – victim was applicant’s eldest daughter – victim aged between 11 and 13 during offences – Ellis discount – disclosure by applicant of aspects of offending not complained of by victim – remorse undermined by victim-blaming – victim impact statements – how used by sentencing judge – whether sentence manifestly excessive – aggregate sentence – use of statistics – special circumstances found – adjustment of ratio

CRIMINAL LAW – application for leave to appeal against decision of trial judge to vacate trial date – unavailability of expert witness – challenge to exercise of discretion

CRIMINAL LAW – sentencing appeal – applicant sentenced in respect of offences of aggravated break, enter and commit larceny and assault with intent to rob armed with offensive weapon – early pleas of guilty – sentence imposed in respect of offence of armed robbery was appropriate notwithstanding sentencing judge’s misstatement as to the discount on the basis of a late plea incorporated in the Henry criteria – special circumstances found on the basis of applicant’s need for drug rehabilitation – failure to appropriately adjust statutory ratio in relation to total effective sentence – where judge found special circumstances other than on basis of accumulation – limited intervention warranted – no error in determining the head sentences in respect of the offences – the sentences were not manifestly excessive

CRIMINAL LAW – Crown appeal against sentence –whether sentence manifestly inadequate – sexual intercourse with a child under the age of 10 years – s 66A Crimes Act 1900 (NSW) – whether sentencing Judge correctly assessed the objective seriousness of the offence – role of general deterrence, specific deterrence and denunciation

CRIMINAL LAW – appeal against conviction – aggravated break, enter and steal – where juror(s) perceived accused to threaten witness from the dock – where judge directed jury not to take perceived threat into account – judge refused application to discharge jury – fair-minded and informed observer would have apprehend lack of impartiality by juror(s) – direction given inadequate – failure to discharge jury erroneous CRIMINAL LAW – appeal against conviction – identification evidence – where case against appellant depends upon that evidence – evidence problematic for several reasons – verdict unreasonable or not supported by the evidence – appeal allowed – conviction quashed

CORPORATIONS — Creditor’s statutory demand — Application to set aside creditor’s statutory demand – where creditor contended that application to set aside the creditor’s statutory demand was not served within the statutory 21 day period and that the Court did not have jurisdiction to determine the application to set aside the demand – where there was a dispute between the parties as to when the demand was served on the debtor company – where creditor company relied on a tracking receipt issued by Australia Post as evidence of service on a particular date – whether the Court has jurisdiction to determine the application to set aside the demand.

CHILDREN - Care and Protection – whether there is a realistic possibility of restoration to mother- whether there is a realistic possibility of restoration to the father- contact- allocation of parental responsibility- intention of department to place the child with the father-previous orders opposed by mother- PROCEDURE- Appeal from the decision of the President of the Children’s Court

CONTRACT – proper construction of contract for the sale of land – whether vendor entitled to rescind – whether purchasers entitled to specific performance – whether any tension between standard term and special condition concerning rescission – how any such tension should be resolved – whether words should be read into special condition in the contract for reasons of business efficacy or as a matter of construction

COSTS – consent order – first defendant consented to orders after plaintiff had prepared for hearing – Court satisfied of jurisdictional error on basis of first ground in summons – amended summons did not substantially alter grounds of review – usual order as to costs

APPELLATE REVIEW – Criminal Law – Application for Leave to Appeal against interlocutory orders of the Local Court – interlocutory order made refusing application for separate trials – order infected by error as to evidence – error of law – error conceded by first defendant - no point of principle

CONTRACT – interpretation - construction of deed –dispute arising under deed referred for expert determination - whether determination by expert was an expert determination in accordance with deed – whether expert determination affected by manifest error

PRACTICE AND PROCEDURE – third defendant’s notice of motion to strike out plaintiffs’ statement of claim – notice of motion resolved by agreement between parties that further draft pleading could stand COSTS – general rule that pleading party pay costs associated with amending its pleading – plaintiffs to pay costs of the motion

PROCEDURE– costs – whether Calderbank offer was unreasonably refused – whether the successful party should have its costs reduced because certain evidence was rejected or not relied upon.

PROCEDURE– interest and costs – where defendant paid the amount claimed by the plaintiff shortly after proceedings commenced – s 100(2) of the Civil Procedure Act (NSW) 2005

PROCEEDS OF CRIME – application for adjournment of defendants’ applications for exclusion orders and for stay of forfeiture proceedings pending criminal trial – whether defendants’ evidence in proceeds of crime proceedings would prejudice defence case in criminal trial – whether potential prejudice could be overcome by means other than a stay – consideration of amendments to Proceeds of Crime Act 2002 (Cth) after decision in Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; 225 CLR 46 – consideration of factors in s 319 of Proceeds of Crime Act – whether it is in interests of justice to order a stay – stay granted

PROCEDURE – civil – summary disposal – default judgment – setting aside default judgment – irregularity – statement of claim in Supreme Court proceedings based on default judgment in District Court proceedings – District Court default judgment set aside – orders to return pleadings to orthodoxy

CONTEMPT – defendant disobeyed court orders – whether bar to relief – whether defendant should be heard – no absolute rule SOLICITORS – plaintiffs’ solicitor retained without authority – whether proceedings a nullity COSTS – whether plaintiffs’ solicitor should be ordered to pay defendant’s costs of proceedings – discretion and s98 Civil Procedure Act (NSW) 2005

CRIMINAL LAW – application for adjournment of commencement of trial – accused without legal representation – appeal against decision of the Legal Aid Commission refusing legal aid – onus of proof of the Legal Aid Commission Act 1979 (NSW) – fairness to the accused – doubt as to whether the accused is truly impecunious – short adjournment granted

TRUSTS – Creation of Trusts - Whether a Constructive Trust Exists – Common Intention – Whether a Resulting Trust Exists - Trust Property and Bankruptcy EQUITY- Mistake and Restitution – Estoppel

ADMINISTRATIVE LAW – judicial review – decision of Appeal Panel - Civil and Administrative Tribunal of New South Wales – ss 59 and 81 of the Civil and Administrative Tribunal Act 2013 (NSW) - question of jurisdiction – orders by consent

COSTS – applications for interlocutory relief – each party achieving some degree of success – parts of evidence will be relevant on final hearing – order that the costs be costs in the cause

CRIMINAL LAW – client legal privilege – requirement to advise witness of right to object – whether privilege lost by misconduct – whether privilege lost by voluntary disclose of evidence – lack of cogent evidence – objection upheld

CRIMINAL LAW – telephone intercepts – evidence of calls between accused and target of shootings – where self-defence is raised – evidence relevant to relationship between the two gang leaders – evidence relevant to self-defence – initially no transcript or translation prepared – parts of conversations in Arabic – السجن – references to accused being in prison – p-prejudicial material – potential to derail trial – relevance of conversations between third parties in relation to debt collection – whether hearsay – first hand hearsay – statements as to Witness’s state of mind and intention – relevant and admissible – other conversations of limited probative value – undue waste of time

CONTRACTS – general contractual principles – construction and interpretation of contracts – whether PAYG instalments a tax

PRACTICE AND PROCEDURE – judgment – orders – error – correction – slip rule

CORPORATIONS – winding up – winding up in insolvency – whether effective service of creditor’s statutory demand and originating process – process not delivered personally to director pursuant to (CTH) Corporations Act 2001, s 109X(1)(b) – demand was returned with handwritten markings “return to sender” and “RTS left address” – “fair notice” doctrine – held, service of demand established as markings do not prove letter did not reach relevant address – service of process not established – proceedings adjourned with directions for further service.