Cases and authorities

REAL PROPERTY – off the plan contract for sale – application by vendor for order permitting it to rescind off the plan contract for sale under a sunset clause pursuant to under s 66ZL of the Conveyancing Act 1919 (NSW) – where a previous developer sold land to the vendor – where vendor entered novation agreement assuming development and other obligations of the previous developer under existing off the plan contracts – whether rescission is just and equitable.

CIVIL – procedure – stay application pending appeals in NSW Civil and Administrative Tribunal – warrant for possession of real property – merits review not available – no relevant error of law

CRIMINAL LAW – serious sex offender – whether defendant a high risk sex offender – whether high risk sex offender extended supervision order should be made

PRACTICE AND PROCEDURE – preliminary discovery – whether reasonable cause to believe plaintiff may have right of action against defendants – whether plaintiff has made reasonable inquiries

FAMILY PROVISION – claim by adult children against estate of mother – mother made gifts to the proprietor of a complementary healing and training association and to a friend and carer immediately before her death – will made at that time left a little under half her estate to her children and the balance to the proprietor of that association – whether adequate provision made for the children – whether further provision should be made

STRATA TITLES – mixed residential, commercial, retail and car parking development – allocation of the costs of shared services – proper construction of strata management statement – whether allocation of costs of shared services under strata management statement fair and reasonable – whether strata management statement an unjust contract for the purposes of the Contracts Review Act 1980 – whether strata management statement should be re-written – whether any amendment to strata management statement should be retrospective; EQUITY – fiduciary duty – whether developer of building owed a fiduciary duty to owners corporation – whether developer in breach of fiduciary duty by reason of the registration of the strata management statement – whether there was informed consent – whether developer in breach of fiduciary duty by reason of decisions taken by meetings of the owners corporation after the strata plan and strata management statement registered; CONTRACT – whether building manager or strata manager liable to owners corporation in relation to allocation of costs of shared expenses – whether clauses in contract with strata manager limited quantum of damages and time during which proceedings to be commenced enlivened – whether owners corporation had shown damage arising from alleged breaches of contract; STRATA TITLES – whether owners corporation and owner of remaining lots were members entitled to vote at meeting of the building management committee which approved proposed relocation of shared facilities – whether owners corporation estopped by convention from asserting remaining lot owners not entitled to vote because of non-payment of interest on arrears of levies – whether owners corporation entitled to withhold consent to such proposed relocation following resolution of building management committee approving same – relationship of provisions in strata management statement concerning such resolution and provisions entitling owners corporation to withhold consent in certain circumstances – proper construction of strata management statement – whether owners corporation unreasonably withheld consent to proposed relocation of shared facilities; STRATA TITLES – levies – whether owners corporation in arrears – quantum of arrears – whether electricity recoveries properly charged to owners corporation

TRUSTS – CHARITIES – CHURCHES AND RELIGIOUS ORGANISATIONS – settling terms of cy-près scheme for administration of charitable trust – competing schemes proposed by plaintiffs and defendants – whether proposed terms accord with, and give effect to, earlier reasons for judgment – whether proposed terms would be productive of conflict TRUSTS – CHARITIES – indemnity out of trust assets for costs properly incurred – whether trustee should be deprived of its right of indemnity – trustee had obtained judicial advice that it would be justified in defending proceedings – trustee’s conduct of its defence was not open to criticism – where trustee had been found to have committed a breach of trust, but that finding did not affect the resolution of the real issues in dispute – held that there was no reason to deprive the trustee of its right of indemnity PRACTICE AND PROCEDURE – costs – whether defendants unreasonably declined to accept plaintiffs’ open offer of compromise – whether plaintiffs bettered their offer – issues at trial were distinct but not severable in terms of evidence – large measure of plaintiffs’ success was due to Attorney-General’s submissions PRACTICE AND PROCEDURE – application for a stay of orders pending an appeal – where orders will divest control of a monastery to a different religious organisation pursuant to a cy-près scheme –appeal raises arguable issues, and strong discretionary factors exist in favour of a stay – current religious organisation would suffer prejudice which would not be remedied by a successful appeal – whether the public interest in the administration of charitable trusts outweighs prejudice to the current religious organisation – stay granted

CORPORATIONS — Administration — Creditor’s meeting — Where administrators sought extension of convening period for second meeting of creditors — Whether the Court should grant application to extend time for a second meeting of creditors under s 439A(6) of the Corporations Act 2001 (Cth) – whether extension is in best interests of company’s creditors

ADMINISTRATIVE LAW – judicial review of decision of regulator of greyhound racing industry to suspend registration of greyhound trainer and breeder – whether jurisdictional error established – whether prerogative relief should be denied because of availability of appeal to specialised tribunal

PROTECTIVE JURISDICTION – Incapacity for self-management – Power of attorney – Financial management – Management of estate – Appointment of NSW Trustee and Guardian PROPERTY – Equitable estoppel – Whether daughter of protected persons has any interest in family home – Failure to prove promise made

CRIMINAL LAW – violent offender – whether offender a high risk violent offender – whether offender poses an unacceptable risk of committing a serious violence offence – where court not satisfied to a high degree of probability that offender poses an unacceptable risk of committing a serious violence offence if not kept under supervision

COSTS - application for specified gross sum costs order under Civil Procedure Act 2005, s 98(4)(c) - whether a specified gross sum costs order should be made - successful plaintiff entitled to ordinary costs up to 24 July 2014 and indemnity costs thereafter -what is the appropriate assessment of the plaintiff’s lump sum. INTEREST – claim for interest on judgment sum – appropriate rate of interest.

CONTRACTS – construction – conditions of development consent – contribution value – whether estimated contribution value was binding – whether quantity surveyor erred in determining contribution value of access road – scope of “construction of the road” WORDS AND PHRASES – “construction of the road” – “structures”

ADMINISTRATIVE LAW – judicial review – decision of Crime Commission to issue examination summons – application for copy of decision and statement of reasons – Uniform Civil Procedure Rules 2005 (NSW) r 59.9 – Crime Commission Act 2012 (NSW) s 24 – whether Crime Commission is required to provide copy of decision and reasons – secrecy provisions exempting production of document “in any court” – Crime Commission Act 2012 (NSW) s 80(3) – Court’s discretion to make order – confidential nature of examination – no requirement for administrative body to give reasons – procedural fairness – public interest immunity WORDS AND PHRASES – “to produce in any court” – Crime Commission Act 2012 (NSW) s 80(3) COSTS – prospects of success – merits of application

CRIMINAL LAW – appeal against dismissal by magistrate of charge of dangerous driving causing grievous bodily harm – consideration of Crimes Act, s 52A(3), s 52A(8), s 52AA(3B) – discretion to remit matter on terms

CONTRACT – guarantee – electronic signature – whether placed on document by alleged guarantor – whether estopped from concluding otherwise – ostensible authority – whether agreement ratified by guarantor.

CRIMINAL LAW – bail – detention application – whether accused had shown cause – alleged requirement to be at liberty for trial preparation

TORTS – assault – whether primary judge’s factual findings concerning alleged assaults by respondent erroneous – self-defence – whether primary judge correctly applied the test and onus for self-defence under s 52 of the Civil Liability Act 2002 (NSW) TORTS – malicious prosecution – whether respondents instigated prosecution by making deliberately false statements to police concerning alleged assaults by the appellants – conduct recorded on CCTV – whether respondents maintained prosecution by giving evidence which they knew to be false at the first appellant’s criminal trial DAMAGES – trespass – leave to appeal award of damages – whether primary judge erred in awarding general damages of $500 – whether primary judge’s assessment erroneous – whether there were circumstances justifying a substantial award of general damages – aggravated and exemplary damages – whether reasonably clear injustice arising from the refusal to award aggravated or exemplary damages

TORTS – negligence – injury suffered after fall caused by sunken area of footpath – whether Council liable for failure to repair TORTS – Civil Liability Act 2002 (NSW), s 45 – whether Council had “actual knowledge” of the particular risk the materialisation of which resulted in harm STATUTORY INTERPRETATION – Civil Liability Act 2002 (NSW), s 45 – meaning of “actual knowledge” of Council – whether required knowledge of particular class of persons – whether knowledge of those with authority to conduct repairs required – sufficiency of knowledge of those involved in system of inspection STATUTORY INTERPRETATION – Civil Liability Act 2002 (NSW), s 45 – whether protection extends to inspections carried out negligently COURTS – principles relating to departure from prior authority

HEALTH PRACTITIONERS – disciplinary proceedings – appellant administered experimental cancer therapy – appellant’s registration cancelled after findings of unsatisfactory professional conduct and professional misconduct – whether Occupational Division of the Civil and Administrative Tribunal applied subjective test to determine that the appellant was recklessly indifferent as to whether the medical practitioner supervising administration of the therapy was registered in New South Wales – whether allegations properly put to the appellant in cross-examination – whether denial of procedural fairness WORDS AND PHRASES – “reckless indifference”

COSTS – application for gross costs order – principles – application first made after final orders – whether party seeking order agreed to discount – whether costs relating to assessment disproportionate to recoverable costs – complexity of assessment – impecuniosity of party liable for costs

CRIMINAL LAW – appeal against conviction – manslaughter – whether verdict unreasonable or not supported by the evidence – inconsistencies between witness accounts – inconsistencies did not give rise to doubt about whether applicant responsible for delivering fatal blow – no witness saw deceased struck by another person – jurors advantage in seeing and hearing witnesses give evidence – verdict not unreasonable or unsupported CRIMINAL LAW – appeal against sentence – manslaughter – deceased died as a result of a single punch on leaving a hotel - whether sentence manifestly excessive – challenges to fact finding by primary judge – facts were open to be found – favourable subjective case – need for sentence to reflect objective serious of offence and need for general deterrence – sentence not unreasonable or unjust

FAMILY LAW AND CHILD WELFARE – adoption – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child – consent dispense order – application that birth father’s consent be dispensed with – whether application made by ‘authorised carers’ – where adoptive father is child’s step-father – where consent dispense order ultimately unnecessary as birth father’s consent given – expiry of consent revocation period without notice of expiry being given to birth father – (NSW) Adoption Act 2000, s 74 – whether s 74 applies to adoptions in which Secretary is not involved – whether absence of consent renders consent invalid.

ADMINISTRATIVE LAW – judicial review – decision of Appeal Panel constituted under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether finding that Approved Medical Specialist had considered all relevant material in assessing Whole Person Impairment was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”

CONTRACT – formation – where appellants entered into a deed with respondents to pay the latter a sum of money – whether that deed was entered into as a result of duress or unconscionability – where that question depends upon the lawfulness of the respondents’ conduct – where appellants had resisted paying money owing to respondents under an earlier agreement – where respondents had withheld performance of a term of the earlier agreement as a negotiating technique to ensure that payment – where earlier agreement contained no term, express or implied, that performance be given promptly – statutory illegality – whether, in the alternative, second respondent had acted unlawfully by breaching its statutory obligations as a ‘certifying authority’ under the Environmental Planning and Assessment Act 1979 (NSW) – where it was not proved that the second respondent had been appointed as a ‘certifying authority' APPEALS – adequacy of reasons – obligation of primary judge to make findings of primary fact – where a central argument depending upon finding that the contract contained an implied term – where primary judge made no findings at all as to terms of the contract – resultant difficulty for appellate court to make disputed findings – where, in any event, no substantial wrong or miscarriage

PRACTICE – application to set aside order – allegation order made irregularly, illegally or against good faith – UCPR r 36.15 – no basis for setting aside order demonstrated

COSTS – costs assessment under the Legal Profession Act 2004 (NSW) – appeal from determination of review panel to District Court pursuant to s 384 – question of law determined by Court of Appeal and remitted to District Court COSTS – costs of costs assessment – whether necessary to give a separate certificate in respect of each costs order subject of a costs assessment – whether parties’ costs of assessment included with certificate of costs or alternatively with certificate of costs of costs COSTS – outcome of proceedings unlikely to alter substantive liability – effect on order as to costs JUDGMENTS AND ORDERS – scope of remitter to District Court COURTS – powers of District Court on appeal as to question of law STATUTORY INTERPRETATION – Legal Profession Act 2004, s 384(2) – whether power enlivened on remittal to District Court after question of law determined by Court of Appeal

TORTS – negligence – injury suffered after fall in car park – fall caused by depression in bitumen patch in pavement – whether appellant carried out the negligent restoration work on the bitumen patch TORTS – negligence – causation – whether fall caused by negligent restoration work on bitumen patch – Civil Liability Act 2002 (NSW), s 5D APPEAL – whether trial judge erred in assessment of respondent’s credit DAMAGES – measure of damages in actions for tort – whether trial judge erred in assessment of severity of injury for purpose of non-economic loss DAMAGES – measure of damages in actions for tort – domestic assistance – whether trial judge erred in assessment of past domestic assistance – evidence required to demonstrate past domestic assistance – future domestic assistance on a commercial basis – extent of evidence required to demonstrate need for commercial assistance where gratuitous assistance currently provided

APPEAL – defamation – assessment of damages – amount in issue relatively small – unfavourable credit findings with respect to the plaintiff by the trial judge – whether remittal required – whether substantial miscarriage of justice if no new trial ordered – Uniform Civil Procedure Rules (NSW), r 51.53 – relevance of the costs of new trial and determining the matter of appeal – Civil Procedure Act 2005 (NSW), Pt 6 DEFAMATION – assessment of non-economic damages – mitigation of damages – effect on plaintiff’s reputation of imputations found to be true in whole or in part – whether judge impermissibly “netted” imputations – whether relevant findings not made – contextual imputation found not to be true by the jury – whether the trial judge impermissibly took contextual imputation into account COSTS – defamation – damages reduced on appeal – plaintiff’s offer rejected by defendants – where unfavourable findings made by trial judge about plaintiff’s conduct at trial – whether to order costs where lengthy trial resulted in low award

PROCEDURE – suppression orders – application to lift suppression order in respect of judgment of the Court of Criminal Appeal – whether order necessary to prevent prejudice to the proper administration of justice – Court Suppression and Non-publication Orders Act 2010 (NSW), s 8

REAL PROPERTY – possession of land – where occupant claiming constructive trust – whether registered proprietor entitled to possession forthwith TRUSTS – constructive trusts – where mother purchased house for occupation by her adult daughter – unanticipated breakdown in relationship – claim of constructive trust of Baumgartner v Baumgartner kind – whether parties were in joint relationship or endeavour – value of parties’ respective contributions

PRACTICE AND PROCEDURE – interlocutory injunction pending appeal – limited prospects of success

CRIMINAL LAW – appeal against conviction – sexual assault offences – victims aged under 16 years CRIMINAL LAW – whether trial judge erred in refusing permanent stay – effect of publicity on jury – effect of social media on jury CRIMINAL LAW – application for voir dire – application to cross-examine – whether trial judge properly accounted for risk of contamination and concoction – evidence of prior complaint CRIMINAL LAW – tendency evidence – significant probative value – whether trial judge erred in admitting tendency evidence – whether trial judge properly accounted for risk of contamination and concoction in assessing significant probative value – Evidence Act 1995 (NSW), s 97 – prejudicial effect of tendency evidence – Evidence Act 1995 (NSW), s 101 – whether directions to jury sufficient CRIMINAL LAW – miscarriage of justice – whether trial miscarried as a result of Crown prosecutor’s cross-examination and final address – whether directions to jury sufficient CRIMINAL LAW – appeal against sentence – whether sentence too severe – objective seriousness of offending – sentencing practices at time of offending – impact of extra curial punishment – effect of victim impact statements

CRIMINAL LAW – sentence appeal – breach of conditions of extended supervision order – additional criminal offences – possession of child abuse material – seriousness – extent of indicated accumulation – whether aggregate sentence manifestly excessive

CRIMINAL LAW - jury trial – discharge of one juror - s 53B(d) Jury Act – inadequacy of medical certificate

SUCCESSION – family provision – judicial advice – whether executor justified in compromising proceedings – where all parties consent to terms of compromise.

SUCCESSION – family provision – release of rights to apply for family provision order – (NSW) Succession Act 2006, s 95 – deed of release – where terms of deed provide for payment of provision in defendant’s personal capacity – where terms of deed provide for payment of provision out of plaintiff’s assets – approval to be given to release subject to formal notations of parties’ intent.

CORPORATIONS — Winding up — Replacement of liquidator – where orders sought to replace liquidator with a partner from the firm of the previous liquidator – whether Court has jurisdiction to make an order to fill the vacancies arising upon the resignation of a liquidator. CORPORATIONS – Administration – Replacement of administrator – where orders sought to replace administrator with a partner from the firm of the previous administrator – whether Court has jurisdiction to make an order to fill vacancies arising upon the resignation of an administrator.

CRIMINAL LAW – Application for trial judge to recuse himself – same judge allocated retrial – apprehension of bias – prejudgment – whether fair-minded lay observer might reasonably apprehend bias – trial by jury – summing-up – comment on facts – judicial balance

CORPORATIONS – winding up – application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up – where company in liquidation was trustee holding shares for other entities associated with the directors – where application brought by director of company – where application supported by assertions as to the company’s solvency by the directors and unverified financial statements – whether to terminate winding up.

PROCEDURE – discovery – application for discovery after commencement of suit – discovery required to determine whether statement of claim should be amended and if so to plead amendment properly – defendants do not oppose discovery for some categories, require variation of other categories, and oppose yet other categories – discovery ordered for certain categories of documents, others varied or rejected PROCEDURE – whether plaintiffs’ notice of motion seeking leave to file amended pleading be dismissed – plaintiffs should have opportunity to propound further draft pleading after the defendants’ discovery is provided – notice of motion stood over PROCEDURE – costs – two failed attempts by plaintiffs to amend pleading – plaintiffs should have previously sought discovery to properly amend pleadings – previous judgment found many flaws in plaintiffs’ draft pleadings not attributed to absence of discovery by defendants – plaintiffs to pay costs of the defendants concerning previous unsuccessful pleading amendment applications

CRIMINAL LAW – high risk sex offender – continuing detention order – interim supervision orders in place – psychiatric evidence - whether adequate supervision will be provided by an extended supervision order

SOLICITORS – costs – solicitors’ lien – conditional costs agreement entitling solicitors to be paid their costs from the judgment sum – where client purports to countermand an irrevocable authority directed to the unsuccessful defendant and to direct payment to herself – whether lien affected by alleged breaches of the Legal Profession Act 2004 – whether lien operates to secure payment of costs notwithstanding (unproved) breaches of the Act – whether lien entitles solicitors to beneficial receipt of costs and disbursements secured by lien in advance of the ascertainment by assessment or otherwise or the final amount of their costs

APPEAL – appeal from Local Court – judgment of Local Court based solely on figure in statement of claim – accepted to be unsupported by evidence and unexplained by reasons – extension of time for leave to appeal – relevant considerations - explanation for delay – prejudice occasioned by delay – no basis for conditional extension of time - leave to appeal - prospects of success - disproportionality between costs and amount in dispute – “just” resolution of proceedings weighs in favour of grant of leave in respect of specific grounds

PRACTICE AND PROCEDURE – discovery – plaintiff sought discovery against defendant in relation to matters that would tend to identify further putative defendants – relevance of material sought to facts in issue – discovery to find the identity of wrongdoer available to anyone against whom the plaintiff has a cause of action – interests of justice – discovery ordered PRACTICE AND PROCEDURE – notice to produce – production of hard drives - regime for production of hard drives to protect privacy of defendant

CRIME – application for restraining orders by NSW Crime Commission – where the interest in property the subject of the application is serious crime derived property of another person not the defendant – whether there are reasonable grounds for the authorised officer’s suspicion STATUTORY INTERPRETATION – s10A Criminal Assets Recovery Act 1990 (NSW) – whether there is scope for judicial discretion under that section for the making of orders

PRACTICE AND PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – whether proposed settlement is in the interests of the plaintiff

CRIMINAL LAW – evidence – admissibility of tendency evidence in a murder trial – accused not yet arraigned before a jury panel – alleged sexual assault and manual strangulation of the deceased – whether foreshadowed tendency evidence in the Crown case passes the test contained in s 101 of the Evidence Act 1995 (NSW) CRIMINAL LAW – evidence – mitochondrial DNA analysis of a hair said to have been located by police in 1983 in the boot of a motor vehicle owned by the accused – deficiencies in the chain of possession – whether the evidence of the hair analysis passes the test contained in s 137 of the Evidence Act 1995 (NSW)

CONTEMPT OF COURT – sentencing – seriousness of contempt proven – money order charges – court behaviour charges – subpoena charge – culpability – reason or motive for the contempt – whether contemnor has received or sought to receive a benefit or gain from the contempt – no expression of genuine contrition – character and antecedents of the contemnor – personal circumstances – deterrence – denunciation of contemptuous conduct – discretion not to convict – punishment – costs – warrant to be issued – term of imprisonment imposed

CONTRACT – where plaintiff rescinded contract for purchase of commercial property – where option sought – where individual defendant purports to sign option deed for company of which he is not a director – whether held out as company agent such that plaintiff entitled to make assumptions under s 129 of the Corporations Act 2001 – whether option valid – whether option validly extended – whether option validly exercised.