Cases and authorities

CRIMINAL LAW - murder trial - shooting of environmental officer - Crown objection to defence cross-examination - questions seek to adduce evidence of conversation where Accused’s solicitor expressed opinions - objection upheld

CORPORATIONS — Injunctions — Application to restrain Defendant from taking actions in relation to certain land – whether Court should grant interim injunction under s 1324(4) of the Corporations Act 2001 (Cth) in circumstances where a final injunction would not be granted. REAL PROPERTY — Torrens title — Caveats — Application to extend operation of caveat — where caveat lodged with Registrar-General was framed wider than the Applicant’s purported proprietary interest – whether caveat should be extended in circumstances where it was framed wider than Applicant’s purported proprietary interest – whether a seriously arguable case giving rise to proprietary interest in property established — whether balance of convenience favours extension of caveat.

CRIMINAL LAW – sentencing – whether Muldrock-error – whether Kentwell error

CRIMINAL LAW – high risk sex offender – primary judge made continuing detention order – whether primary judge erred in failing to have regard to relevant matters – whether primary judge erred in failing to consider whether to exercise his discretion not to make a continuing detention order – where primary judge found that there was a high risk of the offender committing further offences on release – no errors demonstrated – appeal dismissed

APPEAL AND NEW TRIAL - appeal - general principles – leave to appeal –discretion - slip and fall case – challenges to factual findings of primary judge concerning slip hazard – challenge to finding as to precautions which a reasonable person in the applicant’s position would have taken to avoid the risk of harm – challenges to assessment of damages – whether errors of law – where no issue of principle or question of general public importance – whether more shown than that the primary judge was arguably wrong – whether reasonably clear that injustice beyond merely arguable error occurred

TORTS – negligence – personal injury – respondent injured when tripped on wires under desk – whether primary judge erred by failing to determine liability by reference to s 5B Civil Liability Act 2002 (NSW) – no reference to Civil Liability Act at trial by parties – no contested issues under Civil Liability Act – no error by primary judge in failing to address issues not presented for determination TORTS – negligence – contributory negligence – whether primary judge erred in finding no contributory negligence – no basis established for overturning finding of primary judge DAMAGES – assessment of damages – whether non-economic loss assessment excessive – whether past economic loss assessment excessive – whether future economic loss assessment excessive – whether award for past domestic assistance excessive – whether award for future domestic assistance excessive – whether award for future medical expenses excessive - damages reassessed for past economic loss, past domestic assistance, future domestic assistance and future medical expenses – appeal allowed as to quantum of damages

CONVEYANCING – option deed – construction of option – purported exercise by nominee of grantee – whether nominee of grantee entitled to benefit of credit towards purchase price of options fees previously paid – whether irrevocable offer excluded contractual provisions for crediting option fees

CORPORATIONS – voluntary administration – leave to continue proceedings against company – where defendant company went into voluntary administration days before hearing of proceedings due to commence

PRACTICE AND PROCEDURE – professional negligence - claim by plaintiffs for nervous shock - dispute as to whether expert conclave should be given access to DVD depicting birth of plaintiff – question of prejudice to defendants – ability of experts to consider and report upon additional evidence at a late stage – necessity of further examination of plaintiffs - copies of the DVD to be made available to all experts COSTS – costs in the cause

CRIMINAL ASSETS – proceeds of crime – application for exclusion from forfeiture – Commissioner must have opportunity to conduct examinations – non-attendance by applicant at examination and at hearing – application dismissed

EVIDENCE – tendency evidence – murder – death of domestic partner of accused – circumstantial case – evidence of accused’s alleged tendency to treat former domestic partners in a violent, obsessive and controlling manner – whether significant probative value – whether probative value of evidence substantially outweighs possible prejudicial effect upon accused

COSTS

PRACTICE AND PROCEDURE – appeal from interlocutory decision of Local Court refusing to set aside default judgment – defendant in Local Court gave explanation for failure to file defence and asserted a bona fide defence in sworn affidavit – Magistrate disregard of sworn evidence caused discretion to miscarry – default judgment set aside PRACTICE AND PROCEDURE – plaintiff named in statement of claim unregistered business name – lack of legal personality of plaintiff constitutes “substantial irregularity” – judgment given irregularly

BUILDING AND CONSTRUCTION – breaches of statutory warranties in s 18B of Home Building Act 1989 (NSW) – adoption of referee’s report under Uniform Civil Procedure Rules 2005 (NSW), r 20.24 – where contract required building work comply with provisions of Building Code of Australia – where Code complied with by work in accordance with deemed-to-satisfy provision or alternative solution – where experts agreed that alternative solutions capable of achieving compliance with Code – where referee allowed additional damages to reflect possibility that alternative solution not accepted by certifying authority – whether referee erred in adopting as measure of damages the amount required to pursue alternative solution – whether referee’s finding that real possibility alternative solution not be accepted justified by evidence

CONTRACT – plaintiff migrates to Australia from Macedonia and lives with her parents-in-law in a property in Port Kembla – plaintiff alleges that she and her husband, the second defendant, agreed to make contributions to household expenses and to support the welfare of the plaintiff’s parents-in-law in exchange for a promise that the survivor of the parents-in-law would leave the property to the plaintiff and her husband by will – whether an intention to create legal relations – whether the alleged bargain is sufficiently certain to constitute an agreement– plaintiff’s father-in-law deceased - plaintiff’s mother-in-law, the first defendant, places the property on the market for sale and demands that the plaintiff vacate the property to facilitate its sale – whether the second defendant is in breach of the contract alleged. ESTOPPEL – promissory estoppel– plaintiff performs household duties pays household bills, borrows money to pay for renovations and nurses her father-in-law during ill-health – acts allegedly done on the faith of promises made to her or on the faith of an expectation created in her that she would inherit the property herself, or would have the benefit of her husband inheriting it – whether the first defendant or her husband intended the plaintiff to rely on the promises allegedly made or the expectation allegedly created – whether the plaintiff relied upon the promises or expectation alleged – whether it would be unconscionable for the first defendant now not to fulfil the promises or the expectation alleged – what form of relief, if any, should be granted in favour of the plaintiff and/or the second defendant. CONSTRUCTIVE TRUSTS – failed joint venture - plaintiff alleges she and the first defendant entered into a joint venture with the second defendant and her late husband for the maintenance and development of the Port Kembla property, which joint venture has now failed – failure of the joint venture is not said to be due to the fault of any one party – whether it would be unconscionable for the first defendant to retain the benefit of the plaintiff’s contributions to the alleged failed joint-venture – whether a constructive trust thereby arises over the property to enable the plaintiff to recover her contributions to the joint venture – if a constructive trust is found over the property, what form of relief should be granted.

PROCEDURE – dismissal without hearing – proceedings in Court of Appeal in respect of decision of Fair Work Commission – no jurisdiction in Court of appeal – dismissal ordered

LEGAL PRACTITIONERS – where Civil and Administrative Appeal Tribunal ordered removal of practitioner’s name from the roll – appeal by practitioner – application for stay of Tribunal’s order if not executed or, if executed, restoration of name pending determination of appeal – whether single Judge of Appeal can make such order – whether arguable grounds of appeal shown – whether balance of convenience favours making of order – whether as a matter of discretion order should be made

PROCEDURE – application for leave to appeal from decision of Associate Judge – Associate Judge rejected applicant’s claim for relief in the nature of certiorari to review decision of Consumer, Trader and Tenancy Tribunal (CTTT) ordering applicant to pay damages to respondent – where applicant not present at hearing – whether Associate Judge erred in making factual findings concerning notification of hearing date to applicant – whether Associate Judge erred in holding that there had been no denial of procedural fairness in CTTT hearing case in applicant’s absence – whether Associate Judge erred in declining to hold CTTT had no jurisdiction to make the order against applicant – no arguable case warranting leave to appeal PROCEDURE – costs – where error in Court of Appeal registry led to notice of hearing date for leave application not being received by respondent’s solicitors – where leave application adjourned in consequence – appropriate order as to costs

CRIMINAL LAW - sentence – perverting the course of justice – barrister making false statements to courts – judge-shopping – removal of matters from one court to another on the basis of false statements – statements made to achieve better outcome for client – five counts with five other charges on Form 1 – admissions made to ICAC inquiry – effect of High Court decision in ICAC v Cunneen on jurisdiction of ICAC to pursue inquiry involving applicant – whether Ellis discount should have been given – whether subjective matters accorded proper weight – whether issue of parity with comparative case – whether fixed term should have been imposed – whether discount for late plea adequate

CRIMINAL LAW – appeal – conspiracy to import commercial quantity of MDMA – appeal against both conviction and sentence – application by appellant to adjourn appeal – unrepresented appellant in custody – need for further time for preparation of submissions – appeal brought years out of time – judicial case management of appeal – refusal of adjournment

CRIMINAL LAW – sentencing – application for extension of time within which to appeal – alleged appearance of bias – whether judge’s expression of distaste for the offending conduct revealed bias – role of denunciation in sentencing proceedings – protection of the community – whether judge misapplied the principles stated in Veen No 2 – disparity – where applicant received the same sentence for child sex offences as the father of two of the victims – whether sentences imposed gave rise to a justifiable sense of grievance on the part of the applicant

CRIMINAL PRACTICE – application for adjournment of sentencing – constitutional issue raised and application for vacation of sentencing hearing – no arguable point – matter previously unsuccessfully raised, appeal lodged and withdrawn – adjournment refused.

CRIMINAL LAW - murder trial - shooting of environmental officer - defence tender of letter to Accused from his solicitor - letter predated events giving rise to charge - letter contains opinions of solicitor - letter not admissible - tender rejected

EQUITY – application by plaintiff for supplementary orders to extend scope of injunction - defendants edited documentary removing enjoined footage and replacing with blackouts and text that is said to provide context to the footage not subject to injunction - defendants have published and distributed documentary to persons in Canada for Hot Docs film festival – documentary not yet exhibited - whether current version of documentary contains material that was derived from or is descriptive of material the subject of the injunction – whether supplementary orders should be made.

PROCEDURE – notice of motion – leave sought to continue cross-claim and amend pleadings – leave granted

REAL PROPERTY – possession of land – self-represented defendants – earlier defence and cross-claim struck out as not disclosing any defence nor cause of action – failure to serve further defence and cross-claim in accordance with directions – leave sought out of time to file and rely on defence and cross-claim – no defence pleaded – no cause of action pleaded – leave to file documents refused

COSTS – security for costs – order made – security not paid – motion to dismiss – security paid before motion finally determined – appropriate costs order

REAL PROPERTY – possession of land – where mortgagor deceased – no legal personal representative of the mortgagor’s estate – no defence by NSW Trustee and Guardian – where plaintiff notified those interested in mortgagor’s estate – consent to orders sought – order for possession made

CRIMINAL LAW – sentence – guilty verdict after trial – accused charged with seven counts of obtaining financial advantage by deception contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth) – filing of deliberately understated tax returns – determination of amounts understated and benefit obtained – sentence imposed.

CORPORATIONS — Winding up — Liquidators — Deed of assignment — Application for approval of deed of assignment under s 477(2B) of the Corporations Act 2001 (Cth) – where liquidators by way of deed assigned certain causes of action of company on basis that assignee would pay a percentage of recoveries upon successful litigation to the company – where there were no other alternatives available to liquidators that offered prospects of return to creditors – whether the Court should approve entry into deed – whether the Court should assess assignability of causes of action before granting approval – whether the Court should refuse approval given insufficiency of evidence as to assignee’s ability to prosecute proceedings to completion – whether assignment will result in vexatious and improper litigation – whether liquidators should have assessed merits of relevant claims prior to entry into deed in circumstances of unfunded liquidation – whether the Court should give approval nunc pro tunc where liquidators failed to obtain approval prior to entry into deed – whether leave should be granted under s 477(2B) of the Corporations Act 2001 (Cth).

LEGAL PRACTITIONERS – Court’s supervisory jurisdiction – Ex parte injunction in the nature of the writ of ne exeat colonia obtained by material misstatement – Whether counsel and solicitors should subsequently be restrained from acting PRACTICE AND PROCEDURE – Correspondence and submissions contain serious allegations of misconduct – Ultimately not pursued – Whether should be removed from Court file – UPCR Part 4 r 4.15

ADMINISTRATIVE LAW - appeal from decision of medical assessors review panel under the Motor Accidents Compensation Act 1999 - appeal from referral decision of proper officer – principles in Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351 – review panel found impairment to be result of referred pain from injury caused by the motor vehicle accident – no error established

COSTS – plaintiff successful on one claim in the proceedings, but otherwise had all claims dismissed against the first, fourth and fifth defendants – whether the plaintiff or those defendants should pay the costs of the proceedings – court satisfied that there should be an apportionment of costs in favour of the defendants – HELD defendants entitled to 75% of the costs of the proceedings against them; a 25% reduction in the amount of costs payable should be made to account for plaintiff’s costs of obtaining interlocutory and permanent injunctions for passing off – HELD director of the plaintiff company to be personally liable for costs payable by the plaintiff to the first, fourth and fifth defendants by reason of an undertaking given by the director to pay those costs COSTS – indemnity costs – whether there was a valid Calderbank offer from the second and third defendants – HELD defendants made a reasonable offer at a relatively early stage of the proceedings – whether the rejection of the Calderbank offer by the plaintiff was reasonable – court considered vitiating factors propounded by the plaintiff – HELD none of the factors identified by the plaintiff justified the rejection of the offer – HELD plaintiff to pay defendants ordinary costs up to the date of Calderbank offer, and thereafter on the indemnity basis

INSURANCE – life insurance – plaintiff was member of superannuation fund – trustee of fund effected insurance policies with second defendant (insurer) – totally and permanently disabled (TPD) benefit payable if insured proved to the satisfaction of insurer that he or she was so incapacitated as to be “unlikely ever” to return to employment for which he or she was reasonably qualified by education, training or experience – plaintiff sought declarations that the insurer constructively denied her claims under policies by not having made any decision until certain dates, and that decisions themselves were void and of no effect - insurer conducted investigations and commissioned medical reports – plaintiff had little opportunity to put forward evidence and had no access to materials gathered by the insurer until a procedural fairness letter was sent – whether rejection of plaintiff’s claim reasonable – consideration of evidence until date of determination necessary – reasonableness in weight given to varied opinions of medical experts considered – HELD Insurer failed to act reasonably and accordingly, rejection of claim invalid – whether there was breach of good faith and fair dealing by the insurer – considered insurer’s refusal to share materials gathered on the plaintiff with her – considered unnecessary delay by the insurer in determining claim and inadequate opportunity for plaintiff to put her case forward despite onus on her to prove satisfaction of TPD definitions – HELD constructive denial by insurer established – court to determine whether the insured entitled to TPD claim – assessment of varied opinions in multiple expert medical reports as to significance of plaintiff’s disabilities – consideration of alcohol abuse and marital breakdown – HELD neither were intervening factors - HELD plaintiff satisfied definition of TPD in policies and entitled to receive TPD benefits WORDS AND PHRASES – proper construction of the words “unlikely ever”

CONTRACT — Contract for the sale of land — Vendor’s consent required prior to purchaser assigning, novating or otherwise disposing of its interest in the agreement or the property — Sub-sale contract entered into without vendor’s consent — Vendor terminated contract for breach — Whether sub-sale a breach of contract – whether an essential breach – no evidence of vendor’s suffering damage – purchaser entitled to order for specific performance – vendor entitled to nominal damages

PRACTICE AND PROCEDURE – defendants’ application for adjournment on the last day of hearing – purpose to call evidence from treating geriatrician – doctor’s statement served on second last day of hearing – plaintiff’s case closed – cross-examination of medico-legal experts completed – doctor had been given copies of medico legal reports before statement prepared – whether the doctor should be qualified as an expert witness – discretionary power of the court – case management principles considered – court considered factors including unfairness to the plaintiff due to the need for a new hearing and for experts to be re-qualified to deal with a fundamental change in the defendants’ evidentiary case – consideration of substantial cost and delay – consideration that the doctor’s evidence will not be conclusive to the determination of the deceased’s testamentary capacity in any event – HELD on balance, prejudicial effect outweighs probative value of allowing the doctor’s evidence – HELD defendants’ application for an adjournment rejected

CONTRACTS - construction of lease – dispute as to when rent became due and payable – HELD upon proper construction of the lease agreement, payment should be made in advance on the 28th day of each month – dispute as to whether defendant, as transferee of the reversion, was entitled to exercise right of forfeiture of the lease upon event of default by non-payment of rent – defendant had acquired reversion on earlier completion of contract of sale – transferor had attorned to plaintiff – HELD defendant had acquired rights and entitled to income under s 117(1) of the Conveyancing Act 1919 (NSW), and was entitled to terminate lease WAIVER – whether the defendant waived the plaintiff’s breach by way of acceptance of late payment of rent – HELD defendant did not waive the breach – whether the plaintiff waived its entitlement to seek relief against forfeiture by agreeing to continue to occupy the premises on a monthly tenancy – HELD plaintiff reserved its legal right to apply for relief against forfeiture and did not waive that right EQUITY – equitable remedies – relief against forfeiture – consideration of principles and factual circumstances, including no prior warning from defendant and immediate repayment by plaintiff upon notice – defendant had not suffered loss and would not do so if lease assigned to new lessee - HELD assignment to new lessee will not disadvantage the defendant – whether defendant entitled to withhold consent for the assignment of lease – defendant did not dispute the ability of assignee to abide by terms of the lease – HELD defendant obliged to consent to assignment of lease – HELD in all circumstances relief against forfeiture should be granted

PROCEDURE – costs – general rule – costs follow the event – multiple issues – whether to apportion costs of separate issues – offer of compromise – whether proper particulars given – whether prior amendment changed case substantially – Set-off – prior interlocutory costs orders PROCEDURE – stay – whether interests of justice require stay PROCEDURE – security for costs – undertaking as substitute for security – release of security ESTOPPEL – by judgment – Issue estoppel – whether previous interlocutory order binding

PUBLIC INTEREST IMMUNITY – Cabinet documents – Ministerial correspondence – Cabinet advice – criminal proceedings – wilful misconduct in public office – alleged corruption of government processes by Legislative Councillor – balancing exercise – access to some documents granted – some refused.

COSTS – application for indemnity costs following discontinuance without explanation of appeal proceedings and history of non-compliance with Court directions – whether offer of compromise/Calderbank offer involved genuine element of compromise

CONTRACT – occupation agreement – right to occupy site in holiday park – moveable dwelling on site – whether Holiday Parks (Long-Term Casual Occupation) Act 2002 (NSW) applies to agreement – whether occupant has a principal place of residence somewhere other than the site under s 5(1)(a) – whether requirement (a) applies at date agreement entered into – whether requirement that occupant has been an occupant on a casual basis for at least 12 months under s 5(1)(d)(ii) applies to agreement entered into after commencement of Act – whether requirement satisfied

TORTS – negligence – workplace injury – second respondent employed by appellant as cleaner – second respondent injured in fall from ladder on premises of first respondent – contributory negligence – whether different assessments of the second respondent’s contributory negligence ought to have been made with respect to the claims brought against the appellant and the first respondent WORKERS COMPENSATION – whether appellant entitled to indemnity pursuant to Workers Compensation Act 1987, s 151Z DAMAGES – interest COSTS – costs of cross claim brought by appellant against first respondent

APPEAL AND NEW TRIAL – whether denial of procedural fairness as a result of excessive judicial intervention in course of trial – whether reasonable apprehension of bias arising from conduct of trial and/or private communication by primary judge with counsel for the respondents during the course of the trial – matter remitted for re-trial APPEAL – allegations of apprehended bias and procedural unfairness – whether to be addressed first – whether retrial required – whether other grounds should be addressed – addressing other grounds involving credibility findings

CRIMINAL LAW – murder which occurred on 21 April 2008 – referral to Court of Criminal Appeal under s 79 Crimes (Appeal and Review) Act 2001 – concession by Crown that appeal must succeed and conviction be quashed – whether verdict of acquittal or retrial should be ordered – undertaking by Crown not to call a compromised witness on retrial – evidence of that witness very important in original trial – whether remaining evidence capable of proving applicant guilty of murder – detailed analysis of evidence likely to be called at retrial – evidence unlikely to establish guilt of applicant – verdict of acquittal entered.

CRIMINAL LAW – conviction appeal – attempt to possess an unlawfully imported substance – defence of duress primary issue in trial – evidence of duress given by accused and other witnesses – interaction of ss 10.2 and 13.3 of Criminal Code Act 1995 (Cth) – whether accused satisfied evidentiary onus – issue of duress taken from jury – error established – re-trial ordered.

CRIMINAL LAW – sentencing – challenge to sentencing judge’s characterisation of offending and assessment of objective seriousness – whether sentence manifestly excessive

CRIMINAL LAW – procedure – application pursuant to s 108 of the Evidence Act 1995 (NSW) – objection taken by defence counsel – whether the Crown should be permitted to lead prior consistent statement in re-examination – objection upheld

CHARITY – Beneficiary an unincorporated fund – Fund a special purpose fund equivalent to a trust fund administered by corporate hospital – Fund misnamed – Hospital takes gift on trust

SUCCESSION - informal testamentary document - no dispute that 2012 document not executed in accordance with s 6 Succession Act 2006 - Dispute that the 2012 document purports to state the testamentary intentions of a deceased - Whether Court satisfied that the deceased intended the 2012 document to form a Will, an alteration of a Will or a full or partial revocation of a Will – Court not satisfied.

EQUITY – rectification – assignment of chose in action – whether deed of assignment failed to give effect to common intention of parties – whether requisite common intention sufficiently proved