Cases and authorities

CRIMINAL LAW – offences against the person – murder –

BUILDING AND CONSTRUCTION – EQUITY – UNJUST ENRICHMENT – total failure of consideration – Building and Construction Industry Security of Payment Act 1999 (NSW) s 13 (5), s 19, s 22, s 28, s 29 – where a claimant makes a payment claim and then applies for adjudication – where the respondent to the payment claim argues that it is invalid under s 13(5) because it is the second claim in relation to a reference date under a building contract – where the adjudication application is referred by the authorised nominating authority to an adjudicator who accepts appointment and then determines that the payment claim is invalid and as a result he has no jurisdiction to determine the claim – whether the fees paid to the nominating authority and adjudicator are recoverable by the claimant on the basis that there has been a total failure of consideration and the authority and the adjudicator will be unjustly enriched if they are entitled to retain the fees paid to them – HELD: the doctrine of total failure of consideration has no application in the circumstances - the authority and the adjudicator have not been enriched and it is not unjust for them to retain the fees – no claim for restitution lies

CONTRACT – Specific performance – parties agree on terms of settlement of proceedings by sub-dividing certain industrial land – specific performance of their agreement ordered in December 2013 – any consequential financial adjustments between the parties reserved for further consideration - Council requirements to be satisfied in the course of performance of the agreement - delay occurs in the performance of the agreement – each party alleges the other was responsible for the delay in performance – whether each party was in breach of an implied term to ensure that the other party had the benefit of the settlement agreement – what were the expenses of the subdivision – whether all rents received in respect of the property have been brought to account in the settlement – whether some expenses were incurred only on account of improvement of the land for the benefit of one or other of the parties, rather than in respect of the subdivision.

DEFAMATION – pleadings – alleged duplication of imputations by pleading publication of the same material in different forms – objections to imputations – imputation including the term “Captain’s Call” in the sense made notorious by the former Prime Minister – imputation including the term “Fine Cotton ring-in” – whether sufficiently precise

TORTS – negligence – personal injury – respondent tripped on pallet jack in appellant’s store – duty of care owed by appellant as occupier of store – whether primary judge erred in attributing insufficient weight to CCTV footage and preferring account given by respondent – Supreme Court Act 1970 (NSW), s 75A(6) – CCTV footage more consistent with respondent’s version of events – no error made by primary judge in preferring account given by respondent TORTS – negligence – breach of duty – whether error in finding of breach – Civil Liability Act 2002 (NSW), s 5B – causation – whether appellant’s negligence caused respondent’s injuries – Civil Liability Act 2002 (NSW), s 5D – contributory negligence – whether finding of 10 per cent contributory negligence erroneously inadequate – grounds of appeal against liability dismissed DAMAGES – non economic loss – whether assessment of non-economic loss manifestly excessive – extent to which respondent’s symptoms caused by injury in appellant’s store – pre-injury condition – Purkess v Crittenden [1965] HCA 34; 114 CLR 164 – assessment of non-economic loss not manifestly excessive DAMAGES – future out of pocket expenses – whether allowance excessive DAMAGES – future domestic assistance – award for future domestic assistance not supported by evidence and set aside – appeal allowed as to award of damages for future domestic assistance only

APPEAL – civil – whether primary judge erred in findings of fact – challenge to findings of fact without foundation – findings of fact supported by evidence – no material errors made DAMAGES – negligent medical treatment – injury to plaintiff’s right hand – liability admitted – past and future economic loss – diminution in earning capacity – whether attributable to hand injury or supervening back condition – onus of proof – challenges to findings of fact – finding that plaintiff manufactured back condition for ulterior purpose – unsubstantiated – failure of primary judge to undertake evidentiary analysis – power of Court of Appeal to make findings of fact – Supreme Court Act 1970 (NSW), 75A – loss of earning capacity attributable to hand injury APPEAL – civil – adequacy of reasons – whether primary judge failed to provide adequate reasons for quantification of economic loss – no submission that award was excessive or unsupported by evidence – Court of Appeal has powers and duties of court below – Supreme Court Act 1970 (NSW), s 75A(6) – inference drawn that earning capacity could be no more than $500 per week – absence of reasons not fatal to award DAMAGES – claim for damages for future medical expenses – unsupported by evidence – primary judge erred in making award – degree of probability of future medical treatment “so low as to be regarded as speculative” – Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 – appeal allowed as to award of damages for future medical expenses only

CRIMINAL LAW – sentence appeal – murder –sentencing judge erred in failing to quantify discount for assistance to authorities – offender resentenced – discounts to be applied for plea and for assistance – reduction where combined discount would produce sentence disproportionate to nature and circumstances of offending

CRIMINAL LAW – sentence – armed robbery – three co-offenders – parity – all offenders on conditional liberty at time of offences – offenders required to serve balance of parole for earlier offences – principle of totality in relation to earlier sentences – adjustment of commencement date for index offences to achieve parity – whether in the result any offender had a justifiable sense of grievance CRIMINAL LAW – armed robbery in circumstances of aggravation contrary to s 97(2) Crimes Act – robberies committed in company and with dangerous weapon – whether being armed with dangerous weapon aggravated the offence

CRIMINAL LAW - murder trial - shooting of environmental officer - defence objection to Crown re-examination of witness concerning findings made by the Land and Environment Court - held that proposed questions arose out of cross-examination of witness - re-examination allowed

CORPORATIONS — External administration — where voluntary administrator of company was not personally present at the second meeting of creditors in breach of s 439B of the Corporations Act 2001 (Cth) – where a resolution was passed at the second meeting of creditors to adjourn the meeting – whether the Court should make order pursuant to s 1322 of the Corporations Act 2001 (Cth) declaring that the second meeting of creditors and the resolution passed at that meeting are not invalid.

COST ORDERS – court considered the manner in which proceedings were conducted – whether defendants were entitled to indemnity costs sought – plaintiffs initially made baseless demands and threats against the defendants in which they ultimately sought no such relief – HELD plaintiffs’ conduct was unreasonable but it was not sufficiently connected with the litigation itself to justify indemnity costs – whether plaintiffs’ rejection of various attempts to settle the matter was unreasonable – in particular, court considered the Calderbank offer by the defendants – court found that the offer did not relate closely enough to the relief sought by the plaintiffs – HELD it was not unreasonable for the plaintiffs to reject the offer as it did not deal with the principal relief sought by the plaintiffs – whether there was misconduct involved on the part of the plaintiffs that justify a more onerous costs orders against them – court considered that plaintiffs’ misconduct in pressing baseless claims unnecessarily prolonged the hearing and increased costs – HELD plaintiffs to pay 85% of the defendants’ reasonable solicitor/client costs

LANDLORD AND TENANT – application for leave to appeal decision of Appeal Panel of Civil and Administrative Tribunal (NCAT) – application to stay termination of tenancy and order for possession pending appeal of decision of NCAT – periodic tenancy terminated under s 85 Residential Tenancies Act 2010 (NSW) – Appeal Panel refused stay notwithstanding substantive appeal yet to be determined – within discretion of Appeal Panel – no question of law identified – leave to appeal refused

PROCEDURE – application to set aside subpoena – subpoena complied with and documents are available – plaintiff has legitimate forensic purpose in the documents covered by the subpoena – issue of whether defendant posted comments on his blog personally – relevant to malice in context of injurious falsehood – concerns about confidentiality do not provide basis to set aside a subpoena – application dismissed

CORPORATIONS – Directors – Fiduciary and statutory duties – Whether breached – Turns on facts

PRACTICE AND PROCEDURE – application for interlocutory injunction – stay of termination of plaintiff’s membership of ACPET – balance of convenience – relief granted - expedition

CRIMINAL LAW - Crimes (High Risk Offenders) Act 2006 - application for an extended supervision order – order opposed – consideration of factors in s 9 – defendant maintains innocence and lacks insight into offending – defendant at high risk of re-offending – unacceptable risk – order imposed for maximum period of 5 years

SUCCESSION – Family Provision – application by adult daughter of second marriage – where estate left to longstanding third wife absolutely – where plaintiff in circumstances of clear and obvious need – where deceased did not meet obligations to plaintiff during his lifetime – where application made out of time – where defendant had represented that extension of time would be allowed and then resiled and distributed estate – whether time should be extended – whether plaintiff left with inadequate provision – whether family provision order should be made – whether designating order should be made – whether special circumstances established

REAL PROPERTY – equitable easements – creation of easements by acquiescence or estoppel – plaintiff given limited permission to use defendant’s driveway – acquiescence in lengthy period of use by plaintiff – not unconscientious of defendants to halt such use – no personal equity established – claim for equitable easement rejected REAL PROPERTY – statutory easements – Conveyancing Act 1919 (NSW) s 88K – whether right of way over part of defendants’ driveway reasonably necessary for effective use of plaintiff’s land –proposed easement would place significant and ongoing burden on defendants’ land – easement not shown to be reasonably necessary

PROCEDURE – notice of motion – order seeking to strike out defence – order sought for summary judgment – motion dismissed PROCEDURE – notice of motion – notice to produce – order seeking to set aside notice to produce – notice set aside in part PROCEDURE – notice of motion – order seeking to set aside subpoena to produce documents – subpoena set aside PROCEDURE – notice of motion – order seeking to strike out statement of claim – motion dismissed PROCEDURE – notice of motion – leave to file notice of produce and seeking to strike out application – motion dismissed PROCEDURE – notice of motion - order seeking to further amend defence – leave sought under s 63 of the Supreme Court Act 1970 (NSW) – leave granted to file a further defence PROCEDURE – notice of motion – order to strike out statement of claim – orders sought under the Crimes Act 1914 (NSW) – order to issue notices of quo warranto – motion dismissed

PROCEDURE – notice of motion – question of standing – orders sought refused – whether previous judgments were given in good faith – no case under Rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) – weak case under Rule 36.16 – orders made – costs

CONTRACTS - loan agreement - action to recover money advanced by lender - whether agreement was expressly or impliedly varied – whether there was an estoppel by convention – no issue of principle

PRACTICE AND PROCEDURE – application by defendant for separate hearing of liability issues – application consented to by plaintiff – liability and quantum issues quite separate – likelihood of final resolution of matter if liability decided – considerable savings in time and money – application granted.

PROCEDURE – application for a stay of execution of primary judgment and order releasing security for costs – whether likely respondent to appeal unable to repay judgment sum and interest or satisfy adverse costs order if appeal successful – where risk of difficulty or delay in repayment of those amounts – where undertakings offered by controllers of respondent and by associated entities to meet respondent’s obligations – where those individuals and entities shown to have significant assets – whether balance of convenience favours grant of a stay

ESTOPPEL - equitable estoppel - proprietary estoppel - estoppel by encouragement - when available – where director of respondent company initiated discussions with appellants regarding acquisition of land by appellant-co-owners and lease of portion of acquired land to respondent company - where appellant-co-owners allowed director of respondent company to oversee design and construction of purpose-built building to accommodate respondent’s manufacturing plant on the land and knew respondent installed expensive manufacturing plant and equipment which would be costly to dismantle and remove – where director of respondent had close familial connection to three of four co-owners of land – where appellants’ family practice was not to document leases - where parties agreed rent, term, option to renew and area to be occupied – respondent’s right of occupation not documented – whether respondent assumed that an interest would be granted – challenge to primary judge’s factual finding relating to the assumption made by the respondent ESTOPPEL - equitable estoppel - proprietary estoppel - estoppel by encouragement - when available – nature of assumption required to found a proprietary estoppel – DHJPM v Blackthorn distinguished – whether expectation of ‘a particular legal relationship’ (and that other party is not free to withdraw from negotiations) is required if parties had no intention to enter into a formal lease – distinction between assumption that an interest would be granted in land and assumption as to a particular legal relationship ESTOPPEL - equitable estoppel - proprietary estoppel - estoppel by encouragement - when available – consideration of categories of proprietary estoppel and effect of context – whether dichotomy between arms-length/commercial cases and domestic/family cases – reasonableness and certainty of respondent’s assumption – adequacy of appellants’ assurances – where close connection and no contemplation by parties of a formal contract – whether mere hope or confident expectation that the appellants would do the proper thing – where finding that respondent’s belief was as to a matter of likely fact – whether respondent could reasonably rely on honour of family to uphold what had been agreed ESTOPPEL - equitable estoppel - proprietary estoppel - estoppel by encouragement - when available – degree to which agreement lacked important commercial terms – whether respondent’s reliance on the assumption was reasonable and departure would be unconscionable

CRIMINAL LAW - murder trial - shooting of environmental officer - defence tender of email containing information provided to the Office of Environment and Heritage - tender rejected

CRIMINAL LAW – Evidence – Cross-examination – Evidence of gift given by one accused to the other – Gift of a pen bearing the names of three persons shot and killed by the accused in the line of duty as a police officer – Whether cross-examination as to gift should be permitted – Whether probative value of the evidence substantially outweighed by the danger of unfair prejudice – Cross-examination not permitted

PROTECTIVE JURISDICTION – Financial management order and tutorship order – Litigant in person – Incapable of managing affairs – Protected estate case management MENTAL HEALTH – Guardians, committees, administrators, managers and receivers – Appointment - Management of the estate – Tutor sought for District Court compensation proceedings – NSW Trustee to consider whether to consent to appointment as tutor

PRACTICE AND PROCEDURE — Application to set aside declarations and orders pursuant to UCPR r 36.15 — Declarations of constructive trust and equitable charge made over property co-owned by the plaintiff — Plaintiff not a party when declarations made — Whether judgment given or orders made irregularly — Whether declarations and orders made directly affecting rights and liabilities of a non-party — Whether declarations and orders to be set aside as of right —Declarations and orders set aside

APPEAL – Local Court – defendant denied insurance payout to plaintiff – defendant claimed damage to vehicle not covered by policy of insurance because it was caused intentionally – Magistrate gave verdict for defendant – Magistrate failed to give adequate reasons

SUCCESSION – Alteration and revocation of grants - Generally – Revocation and re-grant of administration – Breakdown of working relationships between executors - Removal of executor with no ongoing interest in due administration of the estate.

PROCEDURE – application for stay of execution of primary judgment until determination of proceedings in High Court – whether substantial prospect of success in special leave application – where question in appeal is one of fact, without general application and raises no question of principle – stay refused

ADMINISTRATIVE LAW – Proceeds of Crime Act 2002 (NSW) – compulsory examination – exercise of discretion to refuse to order examination – relevant factors – whether referable only to pendency of criminal proceedings on same subject matter ADMINISTRATIVE LAW – Proceeds of Crime Act 2002 (NSW) – compulsory examination – exercise of discretion to refuse to order examination – relevant factors – possibility of future criminal proceedings – multiplicity of examination proceedings CRIMINAL LAW – Criminal Code Act 1995 (Cth), s 400.9 – dealing with money reasonably suspected of being proceeds of crime – onus of proof

PROCEDURE – Felons (Civil Proceedings) Act 1981 – leave to appeal – no prima facie grounds for proceedings – not in the interests of justice to grant leave to appear

BAIL – nature of Court’s task in assessing bail concerns – where period of remand likely to exceed any custodial sentence that might be imposed

CRIMINAL LAW - murder trial - shooting of environmental officer - defence objection to Crown tender of part of judgment of Land and Environment Court and an attachment to the judgment - judgment related to remedial work to be undertaken on relevant property - evidence allowed

EQUITY — Equitable remedies — Application for extension of freezing orders — Application to amend freezing orders to increase amounts subject to the orders – whether there is good arguable case in respect of the amount sought to be subject to freezing orders – whether there is a danger of disposal of assets such that if applicants succeed they will not have their judgment satisfied — whether balance of convenience favours extending the freezing orders.

EVIDENCE ON COMMISSION – request from the District Court in the Czech Republic for orders under s 33 of the Evidence on Commission Act 1995 (NSW) – request for DNA testing to determine paternity of child – orders made

PRACTICE AND PROCEDURE – plaintiff assignee of first registered mortgage and mortgagee of second registered mortgage – defendant mortgagor of property – occupier guarantor of second registered mortgage – orders for possession made by consent between plaintiff and defendant – application made by occupier to be joined as defendant to proceedings after writ had been issued – application for stay of writ of possession – application dismissed

PRACTICE AND PROCEDURE – application for stay of writ of possession – no proper basis to defer execution of writ – application dismissed

PROCEDURE– costs – security for costs– plaintiff company not able to meet defendant’s costs – where no undertaken given for defendant’s costs PROCEDURE– costs of motion– where application was reasonable and necessary

PRACTICE AND PROCEDURE – application to have related defamation proceedings heard together – where proceedings involve differently drafted imputations but common questions of fact – delay – where each proceeding already listed for hearing on different dates – prejudice to plaintiffs in losing junior counsel long briefed in the matter – prejudice to defendant in related proceedings in losing usual right of an independent approach

PROCEDURE - defendant bank seeks summary judgment against plaintiff wife - whether proceedings should be dismissed under Uniform Civil Procedure Rules, r 13.4 - whether proceedings should be struck out under Uniform Civil Procedure Rules, r 14.28 - whether plaintiff wife should be granted leave to re-plead paragraphs in Statement of Claim that raise general allegations of knowledge against the defendant bank.

CRIMINAL LAW – this is not a judgment – recommendation relating to transport of accused – not binding – reluctance of courts to interfere with corrective services – commendation of certain officers – transportation of accused creating difficulties in conduct of trial – somnolence of accused – sleep deprivation – whether impacting on fairness of trial – lack of sustenance and refreshment of accused – Prison Fellowship of Australia – attempt by Court to provide sustenance – sugar hit – standard operating procedures – biscuit-gate

CRIMINAL LAW - application to vacate trial date and stay proceedings - Dietrich application - reliance on affidavit of solicitor on information and belief - no affidavit of Applicant - not established that Applicant is indigent - application to adjourn trial to obtain funds for legal representation - similar application previously refused - application to vacate trial refused

PROBATE – administration of estates - four applications - whether commission should be granted to former executors of deceased's estate under Probate and Administration Act 1898, s 86 - whether costs should be awarded to plaintiff's executrix for costs of strike out motion against statement of claim - whether costs should be awarded to plaintiff's executrix for costs of strike out motion against caveat - whether plaintiff should be awarded costs of proceedings.

PRACTICE & PROCEDURE – Self-represented Defendant at the hearing – Application by Defendant to have non-lawyer, who was a witness, to represent her at the hearing or appear as McKenzie friend – Duty of the Court to ensure fair hearing to both parties – Application refused. SUCCESSION – FAMILY PROVISION – Eligibility of Plaintiff as a child of the deceased disputed based on statement made by the deceased – Presumptions to be applied – whether rebutted - Court not satisfied presumptions rebutted – 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 wife of the deceased at the date of 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 – appeal – criminal procedure – permanent stay – sexual assault – delay in bringing proceedings – whether primary judge misapprehended intended use of Crown evidence – whether appropriate direction could overcome prejudice

PROCEDURE – contempt of court – where court ordered parties to take reasonable steps to cause all cash takings for businesses to be deposited into bank accounts subject to payments to creditors and employees in cash if required – whether appellant was guilty of contempt – whether appellant was an employee – whether payment in cash was “required”

CRIMINAL LAW – appeal – appeal against sentence – parity – whether offender can demonstrate that he has grounds for a justifiable sense of grievance

COSTS – where creditor’s statutory demand was set aside by plaintiff – where dispute to set aside demand was not genuine – where there was an offsetting claim by defendant