Cases and authorities

FAMILY PROVISION – Claim made by boarder living in the same property as the deceased – Whether eligible person under s 57(1)(b), (e) and (f) – Whether there are factors warranting the making of the application – Quantum of provision to be made for Plaintiff

CIVIL PROCEDURE – Application for summary dismissal (pursuant to UCPR 13.4) or strike out of Statement of Claim (pursuant to UCPR 14.28) – whether Statement of Claim disclosed reasonable cause of action against either first defendant (an accounting firm) or second defendant (an investment bank) in relation to certain property and loan transactions – argued by defendants that they could not identify the case they were to answer – pleadings were defective and lacked specificity – whether losses of plaintiff were reflective losses of a company of which he was a shareholder – proceedings against Bank untenable because no specific relationship pleaded or advice pleaded as having been given by the Bank and no loss claimed to which the reflective loss principle did not apply – proceedings against Bank dismissed – pleadings against accountants embarrassing and struck out – leave granted to plaintiff to replead against accountants

NEGLIGENCE – plaintiff seriously injured when bucked off horse – plaintiff rendered tetraplegic - plaintiff riding horse on first defendant’s rural property in South Australia – no claim pressed against first defendant – second defendant owned horse – plaintiff staying as a guest on property – whether horse had propensity to buck or “pig-root” – whether second defendant falsely assured plaintiff that horse was a “gentleman” – whether paddock for horse riding was unsuitable for horse riding – whether second defendant encouraged plaintiff to loosen reins of horse too much – whether second defendant negligent in using “western style” saddle with one girth strap – whether alleged failings causative of accident – proceedings governed by Civil Liability Act 1936 (SA) – whether section 18 excludes operation of Part 6 and Part 7 in the case of personal injury caused by animals – identifying risk of harm. CROSS CLAIM – claim for indemnity by second defendant against insurer of first defendant – first defendant did not take out contents insurance which restricted scope of liability insurance – no indemnity for claim – dealings between first defendant and insurance agent acting on behalf of insurer – whether first defendant placed trust and confidence in cross defendant agent or merely instructed him to obtain minimal insurance necessary to satisfy financier – whether insurer estopped from denying indemnity because of actions of agent – whether insurance agent engaged in misleading conduct – whether first defendant would have sought further insurance if advised as alleged.

ENCROACHMENT OF BUILDING – Whether encroachment constitutes trespass or nuisance – Issue as to when the encroachment should be removed

DUTIES AND TAXES – mortgage duty – whether a charge created by solicitors’ costs agreement secured an “advance” within s 206 of the Duties Act – whether a forbearance to require payment was a “constructive” provision or obtaining of funds, and therefore an advance – consideration of Bondi Beachside Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCA 6; (2014) 85 NSWLR 443 – held that the forbearance was not an advance because it did not result in the provision or obtaining of funds in a real or effective sense

CRIMINAL LAW – Evidence – Where police obtained two search warrants – Where warrants were directed to a nominated officer – Where that officer purported to “sign over” each warrant to another officer – Where officers failed to comply with relevant statutory provision in doing so – Whether statute reflected an intention on the part of the Parliament that there be strict compliance with such provision – Whether statute reflected an intention on the part of the Parliament that the warrant would be invalid in the event that there was non-compliance with such provision – Necessity to strictly construe legislation governing the issue of search warrants – Where evidence did not permit a finding of agency existing between one officer and another CRIMINAL LAW – Evidence – Where police found documents in the course of execution of a search warrant – Where warrant was found to be illegal in light of failure of police to comply with a relevant statutory provision – Where illegality arose from ignorance on the part of police of such provision – Where no mala fides on the part of police – Where failure to comply with the statute was neither conscious nor reckless – Accused charged with a serious offence of being in possession of documents connected with the preparation for a terrorist act knowing of that connection – Evidence obtained in the execution of the warrant important to the Crown case – Probative value of the evidence high – Where failure to comply with statute had no effect on the cogency or reliability of the evidence – Evidence admitted CRIMINAL LAW – Evidence – Where accused charged with being in possession of documents connected with preparation for a terrorist act knowing of that connection – Where Crown sought to lead evidence of a television program in which the accused expressed certain ideology – Where Crown also sought to lead evidence of a video prepared by the accused in which he expressed similar ideology – Whether evidence relevant – Whether probative value was outweighed by the danger of danger of unfair prejudice – Evidence admitted

FAMILY PROVISION – Claim by two daughters and a grandson – Estate insufficiently large to make adequate and proper provision for all claimants – Issue of credibility of parties – Extension of time for making application

ADMINISTRATIVE LAW – Judicial Review – Review of the decision of medical panel – Where error conceded – Where statutory provision provided a mechanism to correct error – Whether such provision gave the plaintiff an equally convenient and beneficial remedy – Whether court should exercise discretion to refuse the relief sought in those circumstances

PRACTICE AND PROCEDURE – Where proceedings brought for possession following default under loan agreement – Where Deed of Forbearance entered into and orders made by consent granting plaintiff possession of property and monetary judgement – Writ of possession issued – Defendant obtained a stay of proceedings pending the sale of the property by auction – Defendant then cancelled the auction and commenced proceedings seeking to set aside the loan agreement, Deed of Forbearance and consent orders on the basis that they were (inter alia) unjust – Where defendant also filed a motion seeking a stay of the consent orders – Evidence that the defendant had the benefit of independent legal advice both as to the loan agreement and the Deed of Forbearance – No serious issue to be tried – Balance of convenience in favour of the plaintiff – Notice of Motion seeking a stay dismissed

BUILDING AND CONSTRUCTION – claims by lender against firm of expert quantity surveyors in contract, tort and Trade Practices Act 1974 (Cth) s 52 – implied contractual obligation to provide services with reasonable care and skill – alleged duty of care in relation to economic loss caused by negligent valuation of works TORTS – negligence – apportionment of responsibility and damages – whether claim apportionable – whether the borrower was a concurrent wrongdoer within meaning of the Civil Liability Act 2002 (NSW) s 34 – whether plaintiff guilty of contributory negligence DAMAGES – measure and remoteness of damages in actions for tort – remoteness and causation – where money advanced by lender on the basis of negligent valuation and misleading or deceptive conduct – lender entitled to recover difference between what was lent and what would have been lent had defendant’s wrongful conduct not

ADMINISTRATIVE LAW – judicial review – plaintiff injured in motor accident – pre-existing condition - whole person impairment – review of assessment – challenge to review panel’s assessment – panel assessed that no permanent injuries caused by accident - whether error of law in assessing causation – whether permanent impairment resulted from injury caused by accident - whether plaintiff denied procedural fairness when not examined by panel – offer of examination not taken up by plaintiff – whether failure to follow permanent impairment guidelines – adequacy of reasons – no errors demonstrated

PRECEDENT – review of previous decision by same court – whether previous decision was wrong APPEAL – unreasonable verdict – causation – whether proved beyond reasonable doubt that applicant caused HIV infection – consideration of circumstantial evidence APPEAL – whether trial judge erred by directing jury that recklessness constituted foresight of possibility of some harm – grievous bodily harm – malice – possibility or probability WORDS AND PHRASES – “inflict” grievous bodily harm – Crimes Act 1900 (NSW) s 35(1)(b) – “malicious” – “possibility”

REAL PROPERTY – statutory trust for sale – co-ownership - application by Official Trustee in Bankruptcy under s 66G of the Conveyancing Act 1919 (NSW) – proceedings on foot in the Federal Court of Australia under s 179 of the Bankruptcy Act 1966 (Cth) that could render orders exorbitant or otiose – whether primary judge should have exercised discretion against making orders whilst the decision in the Federal Court proceedings was still pending

CONTRACT – letters of credit – whether a misdescription of the beneficiary of a bank guarantee entitled the bank to refuse to pay out the credit – whether regard could be had to the underlying contract to confirm the correct description of the beneficiary – discussion of the scope of the autonomy principle and of the principle of strict compliance, as they apply to letters of credit

CONTRACTS – penalties – relief against penalties – compromise of claim for money had and received – compromise resulted in acknowledgement of debt, to be released if ongoing obligations to supply medical services performed, failing which debt was immediately recoverable – whether provisions penal – whether nature of claim which was compromised relevant to penalties doctrine – whether penalties doctrine applied in circumstances where there were no obligations to repay acknowledged debt – provisions enforceable – appeal dismissed

LEGAL PRACTITIONERS – application under Legal Profession Uniform Law (NSW), s 23(1)(b), for removal of practitioner from Roll of Lawyers – where practitioner has history of criminal conduct, principally traffic offences, between 1999 and 2013 – where practitioner failed to make full and frank disclosures to Legal Profession Admission Board, Law Society and Bar Association of that record and circumstances of offences – whether practitioner appreciates content and importance of obligation of candour – whether reformation of character justifying conclusion practitioner is presently a fit and proper person to practise, despite past misconduct

CRIMINAL LAW – sentencing – Applicant pleaded guilty to a number of drug supply offences and sentenced to aggregate term of imprisonment for five years with a non-parole period of three years – Applicant suffers from significant physical disabilities and depression – whether sentencing Judge failed to sufficiently take into account Applicant’s physical disabilities or depression – open to sentencing Judge to take into account Applicant’s physical and mental conditions in the way that he did – whether sentencing process miscarried as a result of an incorrect understanding of the extent and future physical effects of the Applicant’s physical condition at time of sentence – additional evidence sought to be admitted on appeal – whether miscarriage of justice occasioned by absence of additional evidence at first instance – tender of additional evidence rejected – whether sentence manifestly excessive – sentence not unreasonable or plainly unjust – appeal dismissed

CRIMINAL LAW – appeal – application under s 5F of the Criminal Appeal Act 1912 (NSW) – separate trials – admission of tendency evidence – offences committed between ages 11 and 28 years old – whether evidence of charges admissible as tendency evidence – whether charges should be tried separately CRIMINAL LAW – appeal – application under s 5F of the Criminal Appeal Act 1912 (NSW) – tendency evidence – complainants are sisters – possibility of concoction – relevance of concoction in assessing probative value under s 101(2) of the Evidence Act 1995 (NSW) – whether probative value of evidence outweighed by prejudicial effect

CRIMINAL LAW – applications for leave to appeal against sentences – applicants were co-offenders convicted of conspiracy to import cocaine and dealing with proceeds of crime – whether sentences were manifestly excessive – whether the sentencing judge erred in assessing objective seriousness of offending – whether leave to appeal should be granted to the applicant Rusu to argue that his role in the criminal conspiracy was less than his co-offender when no issue on that question was raised before the sentencing judge – whether sentencing judge erred in degree of accumulation of sentences or application of principle of totality – additional criminality in the ‘proceeds’ offences concerning monies received from the cocaine importations over and above the conspiracy offences – whether principle of parity required sentencing judge to impose equal sentences where one applicant had dealt with a larger amount of money than the other but the other had a less favourable criminal history – held that sentences were not manifestly excessive – held that no errors made in relation to totality, accumulation or parity – appeals dismissed

CRIMINAL LAW – appeal against conviction – Applicant charged with a large number of sexual offences against four female complainants under 16 years, child pornography offences and an offence of perverting the course of justice – convicted by jury of 44 out of 52 counts – Applicant submits that verdict with respect to one count (Count 16) is unreasonable and cannot be supported by the evidence – Count 16 alleged offence of aggravated sexual intercourse without consent contrary to s.61J Crimes Act 1900 – suggested inconsistency with verdicts on certain other counts – verdict on Count 16 reasonably open to jury – verdict on Count 16 logical and reasonable – appeal dismissed

CRIMINAL LAW – application to vacate hearing of appeal – Applicant convicted by jury of a number of sexual offences and sentenced to an aggregate term of imprisonment – Applicant first lodged Notice of Intention to Appeal in February 2013 and was subsequently granted a number of extensions – Applicant’s solicitor informed Court in July 2015 that appeal ready to proceed on single ground of appeal – Notice of Appeal filed in August 2015 and listed for hearing in November 2015 – application to vacate the hearing made and refused by Registrar in early November 2015 – application heard by Court on date fixed for hearing of appeal – Applicant submits that vacation of hearing is required to further investigate a potential additional ground of appeal – interests of justice test applied – Applicant already provided substantial latitude – public interest in avoiding delay – relevance of Part 7 Crimes (Appeal and Review) Act 2001 – application refused (by majority)

CRIMINAL LAW – conviction appeal – whether prosecution evidence improperly obtained or manufactured – whether conduct of prosecution case abuse of process – whether trial miscarried because prosecution witnesses not called – no impropriety on the part of police or prosecution established in relation to conduct of trial – no miscarriage of justice CRIMINAL LAW – sentence appeal – whether error of the kind identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 established

CRIMINAL LAW – Appeal against conviction – Applicant convicted of break and enter – Crown case of joint criminal enterprise between the applicant and his brother – Where Crown case circumstantial - Whether verdict unreasonable –– Necessity to view Crown case as a whole – Open to jury to find offence established beyond reasonable doubt CRIMINAL LAW – Appeal against conviction – Where Crown case circumstantial – Whether part of the evidence relied upon by the Crown constituted evidence of an essential intermediate fact – Whether trial judge erred in failing to the direct the jury accordingly – Where remaining evidence relied upon by the Crown did not reveal an empty shell – No error established CRIMINAL LAW – Appeal against conviction – Practice and procedure – Joint trial of two accused on charges including break and enter – Crown case of joint criminal enterprise – Where both accused initially pleaded not guilty and the trial proceeded – Where one accused pleaded guilty following the close of the Crown case – Where that plea of guilty was taken before the jury in the presence of the co-accused – Where the co-accused maintained his plea of not guilty – Where application made on behalf of the co-accused to discharge the jury – Where trial judge refused that application and directed the jury that the plea of guilty was not be taken into account in determining whether the Crown had proved its cased against the co-accused – Whether it was appropriate for the plea of guilty to be entered before the jury - Whether a miscarriage of justice arose as a consequence – Necessity for a trial judge to give appropriate directions to the jury in such circumstances – Where such directions were given – Although preferable course may have been to have the plea taken in the absence of the jury no miscarriage of justice established – Appeal dismissed

Criminal law – sentencing – specification of discounts for past and future assistance – denial of natural justice

BAIL – show cause offence – bail granted after verdict of guilty at trial up to sentence proceedings – detention application – unacceptably long adjournment of sentence proceedings for four months – acquiescence of Crown in grant of bail and length of adjournment

PROCEDURE – application by liquidator for approval of compromise of proceedings – Court not required to go behind liquidator’s commercial judgment, particularly where acting on legal advice – whether there is a ‘debt’ under (CTH) Corporations Act 2001, s 477(2A) – Court should treat claim as debt rather than declining relief due to possible lack of jurisdiction – where compromise entered into with no lack of good faith and not on erroneous view of law or principle – where no good reason to doubt prudence of compromise.

DEFAMATION – injunctions – balance of freedom of speech and protection of reputational damage – where alleged publisher professes no interest in publishing – where matter complained of grossly defamatory of the plaintiff and such as to cause him irreparable harm

PROCEDURE – costs – application for “otherwise order” requiring defendant to pay plaintiffs’ costs – whether defendant’s conduct in settling proceedings on eve of hearing constituted capitulation – whether defendant responsible for the institution of proceedings by plaintiff – whether defendant’s conduct was consequent upon being bound by constitution and therefore unable to accede to plaintiffs’ requests – whether plaintiff had reasonable cause for instituting proceedings.

Criminal Law – application to stay criminal proceedings pending application for special leave to appeal from Obeid v R [2015] NSWCCA 309 – effect of stay would be to cause significant delay in criminal trial – approach to application – same approach as that of intermediate court of criminal appeal considering stay pending application for special leave – factors – R v Elliot – delay in criminal trial as a result of interlocutory appeal is per se prejudicial – assessment of prospects of special leave – proposed questions concern jurisdiction and whether parliamentarian is a public officer for purposes of common law offence of wilful misconduct in public office - nevertheless prospects of special leave being granted very low – applicant unlikely to be successful in appeal – points available if applicant convicted – prejudice to applicant if application not granted – no substantial effect on legal rights – will endure stress and potential reputational damage – less weight attributed to that effect compared with delay to trial – application dismissed

“Discovery” against third party – “Sabre” order – Principles to be considered

CIVIL PROCEDURE – separation of issues of liability and quantification of damages – parties agree that the issues should remain separated to allow the defendant to appeal on the question of liability – where question of construction not previously determined by superior court – where parties not in a position to adduce evidence as to damages – where other cases in the Court awaiting determination of question of law – false economy in proceeding to assess damages

CIVIL – Mental Health (Forensic Provisions) Act 1990 (NSW) – application for extension of an interim extension order

MENTAL HEALTH – community treatment order – remitter from Court of Appeal – Court of Appeal allowed an appeal from a judge of the division dismissing an appeal from the Mental Health Tribunal – community treatment order expired shortly after decision of Court of Appeal – utility of further consideration of the appeal – whether such utility exists because Court might determine community treatment order made by Mental Health Tribunal not “properly” made – nature of an appeal under the Mental Health Act 2007 (NSW)

DAMAGES – damages for lost opportunity – basis for calculation of damages – where breach of a restraint covenant – where company lost business as a consequence – where former director assisted rival business – where liability admitted – appropriate discount for vicissitudes – nature of business lost – nature of market

PROCEDURE – notice of motion – pleadings – orders sought to dismiss latest statement of claim – Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) – current pleading does not comply with the Uniform Civil Procedures Rules 2005 (NSW) – leave to file amended statement of claim – proceedings have not in 7 years produced a properly pleaded statement of claim – amended statement of claim dismissed – costs

SUMMARY DISMISSAL – prisons – where smoking in prisons banned by regulation – whether ban contrary to alleged human right to smoke – whether contrary to international law – whether ban cruel – where plaintiff on parole – whether standing to commence or continue proceedings – whether plaintiff has sufficient standing – whether proceedings should be dismissed

COSTS – indemnity costs – basis for awarding indemnity costs – conduct of proceedings – whether reasonable basis for making and maintaining certain claims – where claims abandoned during hearing PRACTICE AND PROCEDURE – monies paid into Court – status of monies paid into Court – whether payment out should be made – whether monies subject to pre-existing trust – whether monies trust asset subject to a charge – where multiple parties claiming interest in monies in Court – priority of interests

PROCEDURE – costs – whether to order owners corporation to indemnify plaintiffs for their costs – plaintiffs members of executive committee – NCAT orders vesting all functions of owners corporation in strata manager – apparent inability of owners corporation to appeal – rule in Foss v Harbottle applies to owners corporations – whether interests of justice exception to the proper plaintiff rule satisfied – owners corporation ordered to indemnify plaintiffs but not for costs incurred in pursuit of plaintiffs’ own interests PROCEDURE – costs – whether plaintiffs should pay the third defendant’s costs – not appropriate to order plaintiffs to pay third defendant’s costs – third defendant effectively appointed as the contradictor by the court – provisionally, the third defendant entitled to an indemnity from the owners corporation - owners corporation given leave to make submissions on whether it should be ordered to indemnify third defendant

CORPORATIONS – external administration – application for termination of winding up of two companies – no opposition from liquidators whose costs and expenses have been paid – no indication of opposition from Australian Securities and Investments Commission – settlement of claims made by Australian Taxation Office – proofs of debt lodged by other creditors withdrawn – pro forma balance sheets show companies have no assets and no liabilities – no evidence that companies’ debts legally extinguished – no evidence of proposed use of companies – no evidence of future funding of companies’ operations – some evidence of commercial immorality in prior activities of companies – order terminating winding up not made on present evidence – opportunity given to tender additional evidence

CORPORATIONS – winding up – statutory demand – application for order setting aside – whether genuine dispute as to existence of the debt – whether due to defect in statutory demand, substantial injustice will be caused unless the demand is set aside – whether the debt the subject of the statutory demand arose under a contract between the plaintiff and the defendant or between another company, controlled by the same persons as the plaintiff, and the defendant – on the evidence the plaintiff was probably not party to the contract –genuine dispute regarding existence of the debt – debt claimed by defendant in statutory demand not misdescribed – no defect in statutory demand – statutory demand set aside because of genuine dispute as to the existence of the debt

COSTS – interest on costs orders – indemnity costs – lump sum costs – legal costs and counsel’s fees charged by plaintiff’s lawyers – generous to a fault – conduct of the proceedings requiring adjustment to usual costs orders – refusal of Calderbank offers by defendant not unreasonable – question marks over costs claimed under application for specified lump sum costs award – no question of principle.

WILL CONSTRUCTION – Which beneficiary takes shares in private company – Turns on own facts COSTS – Whether to be borne by the residual estate or otherwise

ANSHUN ESTOPPEL – Possible for Plaintiff in second action to have cross-claimed against another Defendant – Second action not barred CONFIDENTIALITY AGREEMENT – Whether Court should consider document covered by agreement PROCEDURE – Application to strike out claim for delay or obtain security for costs

CIVIL LAW – application for proceedings commenced in the Local Court of NSW to be transferred to the Supreme Court of NSW – whether there is sufficient reason for hearing proceedings in a higher court – whether pleading incomprehensible – whether fraud sufficiently pleaded

SUCCESSION – Making of a will – Testamentary Instruments – Undue Influence – Evidence – Interlocutory application - Consideration of operation and potential interaction of undue influence in probate and equity – Governing purpose of probate jurisdiction – Due and proper administration of an estate PROCEDURE – Discovery and interrogatories – Discovery of documents – Production and inspection – Grounds for resisting production – Client legal privilege - Probate - Application for documents produced on subpoena by attesting witness to be “re-privileged” – “Rule in Re Fuld” - Case management principles applicable to contested probate proceedings – Due and proper administration of estate – Claim for documents to be “re-privileged” dismissed – Notices to Produce further documents set aside

PROCEDURE – documents produced through voluntary disclosure – whether implied undertaking in Harman v Secretary of State for the Home Department [1983] 1 AC 280 applies to documents produced in absence of order for discovery or other compulsory process – scope of implied undertaking – relevance of compulsion – attachment of undertaking where disclosure could have been obtained by compulsory process had it not been voluntarily provided – release from undertaking – implied undertaking subject to positive obligations to provide discovery or to answer subpoena – whether undertaking attaches to affidavits – whether affidavits sufficiently analogous to witness statements so as to attract undertaking – leave to use documents subject to undertaking for extraneous purposes – whether “special circumstances” or some good reasons warrant relief from undertaking.

CORPORATIONS — Winding up — Application to set aside creditor’s statutory demand under ss 459H and 459J of the Corporations Act 2001 (Cth) – where demand was for multiple debts – whether defect causes substantial injustice – whether there is a genuine offsetting claim – whether there is some other reason to set aside demand.

CORPORATIONS – winding up – application for special leave under Corporations Act 2001 (Cth) s 488(2) to distribute surplus – where distribution to occur partly by in-specie distribution and partly in cash – whether to grant special leave to liquidator to make distribution.

PROCEDURE – costs – lump sum costs order – where dispute arose as to costs incurred and the reasonableness of those costs – where costs were not assessed – whether to grant lump sum costs order.

PROCEDURE – costs – successful defendant ordered to pay costs of vacated hearing caused by late change of position – no order as to costs of proceedings before vacation of hearing – successful defendant unsuccessful on separable issue – plaintiff and defendant should bear costs of issues for which they were unsuccessful – single order for costs made for proceedings after vacation of hearing