Cases and authorities

COSTS – no point of principle - costs of motion for proceedings to be heard together – separate proceedings currently in equity division and common law division – motion refused – whether the rule that costs follow the event should be departed from – whether indemnity costs should be granted – whether it was unreasonable for the plaintiff not to resolve the motion before hearing – whether the costs of the plaintiffs in the equity proceedings should be assessed forthwith – where proceedings no longer connected

APPEAL – appeal from NCAT – leave to appeal – s 60 of the Civil and Administrative Tribunal Act 2013 - Sahyoun v Owners Corporation Strata Plan 75123 (No 2) NSWCATAP 70

CRIMINAL LAW – remarks on sentence – offender found guilty of murder by jury – manual strangulation and suffocation of the deceased – intention to kill – premeditation – minimal criminal record – no evidence of mental illness – lack of remorse or insight – questionable prospects of rehabilitation – substantial harm to the community

BUILDING AND CONSTRUCTION – design and construct contract between developer and first defendant – plaintiff successor in title to developer – whether first defendant breached statutory warranties under s 18B(a), (b) and (f) of the Home Building Act 1989, as incorporated into the contract – whether facade was designed and constructed in accordance with the “Hyder Specification” as incorporated in the contract – proper construction of the Hyder Specification – whether a reasonable businessperson would construe the Hyder Specification as if the contractor had warranted that the facade would be fully weather tight when tested in accordance with AS 4284 for the building’s entire design life – the extent to which the building has been shown not to be weather tight – whether observational evidence of two lay witnesses demonstrates water ingress in window assemblies beyond those recognised by expert witnesses in joint report – whether first defendant’s failure to conduct prototype testing has any relevant consequence – whether prototype testing conducted on indistinguishable window assemblies at a different site indicates that the building would have passed prototype tests – whether plaintiff’s expert witness’s tests were appropriate to reveal any inadequacy in the design of the facade – whether the first defendant’s proposed remedial work to the facade is necessary and reasonable to compensate the plaintiff – whether replacement of the whole facade is out of all proportion to the benefit that would be obtained – whether plaintiff has established claims in respect to defects associated with mechanical services, bathrooms and ensuites, fire services and general internal defects; BUILDING AND CONSTRUCTION – design and construct sub-contract between first and fourth defendants – whether the developer was a “non-contracting owner” vis-à-vis the sub-contract for the purposes of s 18D(1A) of the Home Building Act– whether plaintiff as successor in title to developer entitled to enforce s 18B statutory warranties against the fourth defendant sub-contractor – whether, in any event, the plaintiff’s claim against the fourth defendant is statute barred – the relevant date of completion of the sub-contract under s 3B of the Home Building Act – whether the limitation period applicable to the s 18B warranties has expired; TORTS – strata titles – whether the first and third defendants owed a duty of care to the plaintiff –whether the plaintiff is relevantly vulnerable – whether case can be distinguished from Brookfield Multiplex Limited v Owners – Strata Plan No 61288 [2014] HCA 36 – whether the fact that the plaintiff has the benefit of statutory warranties under the Home Building Act against the first defendant is a reason to deny the existence of a duty of care

CONTRACTS; INSURANCE; SUPERANNUATION – total and permanent disability - disability under superannuation scheme funded by group insurance policies – whether takeover terms of replacement policy had effect of excluding cover – total and permanent disablement definition dependent on opinion of insurer – whether insurer in breach of duty of good faith – whether matter should be remitted to insurer for further consideration

REAL PROPERTY – possession of land – mortgages – default – Contracts Review Act – parents of borrowers gave guarantee and mortgage – transfer of banks by borrowers – parents become borrowers and mortgagors – whether parents knew of change of status – whether contract unjust APPEAL – earlier judgment successfully appealed against – wrong admission of evidence – error with regard to Jones v Dunkel inference – effect of errors on credibility findings – matter remitted for re-trial EVIDENCE – whether exclusion of wrongly admitted evidence affected credibility findings – whether Jones v Dunkel inference should be drawn – whether other evidence equivocal – no change to credibility findings

APPEAL - appeal from Magistrate - claim for damages for loss of use of damaged motor vehicle - whether plaintiff required to prove need for a replacement vehicle in order to recover damages for loss of use - where plaintiff failed to prove her case - application to re-open - application refused - whether plaintiff ambushed by defendants’ legal representatives by addressing Magistrate on an issue that had been conceded - whether Magistrate denied plaintiff procedural fairness by declining to permit plaintiff to re-open

PROPRIETARY ESTOPPEL – Alleged promise by former director of Defendant who is father of Plaintiff to reside in property indefinitely – Question of whether lease or licence granted to Plaintiff CONSTRUCTIVE TRUST – No consideration provided by Plaintiff – No joint endeavour between Plaintiff and Defendant for common benefit EQUITY – Defence of unclean hands

NEGLIGENCE – scope of advocates’ immunity – applicant advised to settle following court ordered mediation – whether advice led to a decision affecting conduct of case in court – judgment entered pursuant to settlement – sufficient connection between advice and conduct of case in court – leave to appeal refused

PROCEDURE – application for leave to appeal – no arguable error of primary judge – no question of principle – leave to appeal refused

SUMMONS - judicial review - seven District Court decisions - Supreme Court Act 1970 (NSW), s 69 - application out of time - Uniform Civil Procedure Rules, r 51.10 - no application for extension - no arguable grounds for judicial review - summons dismissed SUMMONS - leave to appeal - District Court Act 1973 (NSW), s 127 - costs orders - application out of time - no application for extension - no merit in proposed challenges to orders - summons dismissed NOTICE OF MOTION - application to set aside or vary orders - no legal or other basis proffered in support - summons dismissed

CONTRACT – construction – interrelationship of several agreements for the acquisition of strata titles and the carrying out of works – whether the respondent was entitled to require the first appellant to complete the purchase of the lots before the necessary consents and approvals for the works had been obtained – whether the principles in Flight v Booth (1834) 1 Bing (NC) 370 apply

SUMMONS - judicial review - Supreme Court Act 1970 (NSW), s 69 - application for judicial review of two decisions of Court of Appeal – no judicial review of orders of the same Court - Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 - Barton v Walker [1979] 2 NSWLR 740 - summons dismissed

SUMMONS - leave to appeal - asserted error in use of authorities by primary judge - costs ordered against director personally - no error disclosed - summons dismissed - whether primary judge erroneously had regard to conduct of related District Court proceedings - no error disclosed - summons dismissed - whether inconsistency between order for costs against director personally and Corporations Act 2001 (Cth), s 466 - section authorises “otherwise” order - no reasonably arguable ground brought by applicant - leave to appeal refused

AGENCY – agent's right of reimbursement from principal – freight forwarder appointed as customs agent by financier – contract providing no liability for duties and taxes – no claim available in contract or restitution – Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; 233 CLR 635 applied CUSTOMS – customs duty payable by owner of goods – definition of "owner" – freight forwarder entered goods for home consumption as agent for financier – freight forwarder and financier both "owners" and both primarily liable to pay customs duty JURISDICTION – District Court – whether restitutionary claim within jurisdiction – District Court Act 1973 (NSW), s 44(1)(a) TAXATION – GST – taxable importation – freight forwarder entered imported goods for home consumption as agent for financier – invoice and air waybill described financier as owner and consignee – whether financier "imported" the goods for purpose of making taxable importation

PRACTICE – pleadings – application for leave to appeal from decision striking out part of pleading – whether question of principle or public importance or reasonably clear case of injustice – whether respondent had acquiesced in pleading – whether non-compliance with procedural obligations by respondent – whether denial of procedural fairness – whether primary judge displayed bias – application for leave refused

PRACTICE – late application to adduce further evidence – no error of law disclosed in refusal of application by primary judge PRECEDENTS – precedential authority of decision on construction of identical words in different statute – precedential authority of Australian appeals to Privy Council VALUATION – methods of valuation – hypothetical fee simple of mine – minerals in fact reserved to Crown – whether land value to be determined on assumption that minerals privately owned – distinction between laws of general application and qualifications upon the particular grant – Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610 and Gollan v Randwick Municipal Council [1961] AC 82 considered – Crown reservation of minerals to be ignored in valuation of hypothetical fee simple

CRIMINAL LAW – appeal against quashing of two counts on an indictment – commonwealth drug offences – quashed counts charged offences of importing controlled drug, being a drug analogue of a listed border controlled drug – third count charge offence of trafficking same drug, being a listed controlled drug – whether s 301.9(2) of the Criminal Code (Cth) means that if a substance is listed as a controlled drug for the purposes of manufacturing and trafficking offences then it cannot be an analogue of a border controlled drug for the purposes of import and export offences STATUTORY INTERPRETATION – Criminal Code (Cth) s 301.9(2) – ordinary meaning of words WORDS AND PHRASES – “or” – whether should be read distributively

CRIMINAL LAW – appeal – appellant stabbed stranger – history of mental illness and subsequent diagnosis of schizophrenia – appellant found guilty of reckless wounding, contrary to the Crimes Act 1900, s 35(4) – found not guilty of wounding with intent to cause grievous bodily harm, contrary to the Crimes Act, s 33(1)(a) CRIMINAL LAW – directions to jury – whether trial judge erred in giving directions on defence of mental illness – whether direction in relation to whether appellant had capacity to know what he was doing was wrong required direction that such capacity did not turn on whether he knew his actions were illegal CRIMINAL LAW – sentencing – whether trial judge failed to take sufficient account of appellant’s mental illness – whether trial judge bound by jury verdict to consider impairment in capacity to know actions were wrong was not substantial CRIMINAL LAW – sentencing – whether trial judge failed to take sufficient account of applicant’s offer to plead guilty to charge of which he was ultimately convicted EVIDENCE – cross-examination – whether manner of cross-examination of appellant gave rise to unfairness – Evidence Act 1995, ss 41, 44

CRIMINAL LAW – Crown sentence appeal – armed robbery – whether sentence manifestly inadequate – whether sentencing judge erred in approach to guideline judgment – whether sentencing judge erred in failing properly to consider the offender’s conditional liberty status at time of offending

PROCEDURE – appointment of person to represent defendant in proceedings – where defendant has died – where both defendant’s will and plaintiff seek appointment of different persons to represent defendant – function of defendant in family provision proceedings – where plaintiff has no proper interest in identity of person representing defendant – where appropriate representative party is person nominated in defendant’s will.

PRACTICE AND PROCEDURE – interlocutory application – security for costs – three discretionary factors – first, whether the making of an order for security for costs would stultify the proceedings – second, whether the defendant is the cause of the plaintiff’s impecuniosity – where absence of full and frank disclosure again precludes that finding – where decline in financial resources of plaintiff in any event not apparently related to any actions on the bank, on the available evidence – third, the financial position of plaintiff’s director and shareholder who stands to benefit from any success it enjoys in the litigation – failure by the plaintiff to make full and frank disclosure – where plaintiff has onus of proof – resulting impossibility of being satisfied of any of the three discretionary factors in the plaintiff’s favour – result that security for costs should be given – quantum – evidence of costs experts

CRIMINAL LAW – appeal – application under Pt 7 Div 3 Crimes (Appeal and Review) Act 2001 (NSW) – second s 78 application – s 133 of the Justices Act 1902 (NSW) – doubt or question as to the convicted person’s guilt as to any mitigating circumstances in the case or as to any part of the evidence in the case

PRACTICE AND PROCEDURE – preliminary discovery – possible proceedings against prospective defendants for breach of deed of settlement of defamation proceedings – whether reasonable cause to believe plaintiffs may be entitled to make a claim for relief – whether plaintiffs unable to obtain sufficient information to decide whether or not to commence proceedings

REAL PROPERTY – strata title – management and control – where lot owner and Owners Corporation negotiated to settle existing proceedings between them – where ‘agreement in principle’ was reached in correspondence – where agreement was subject to formal resolutions being passed at general meeting – whether a binding agreement existed.

JUDICIAL REVIEW – application by prisoner for review of decisions relating to conditions of his incarceration – refusal to give prisoner special diet requested for reasons of health – where decision made overlooking clinical indications and without consultation with prisoner – decision not made in good faith PRACTICE AND PROCEDURE – recusal application – apprehension of bias – whether decision in previous unrelated criminal appeal proceedings demonstrated judicial officer was “right wing, pro-Crown judge”– whether previous decision in earlier interlocutory decision demonstrated judicial officer was “just another pro-Crown empty suit incapable of fairness and impartiality”

CIVIL LAW – high risk sex offender – final hearing under Crimes (High Risk Offenders) Act 2006 (NSW) – application for extended supervision order for 5 years – where defendant has long history of sexual offending – ongoing risk of committing further sexual offences – poor history of compliance with requirements of conditional liberty – necessary and appropriate to make an extended supervision order for 5 years

MENTAL HEALTH – Mental Health Review Tribunal – Appeal – Community Treatment Order – Forced medication by depot injection – Mental Health Act 2007 NSW ss 51, 53, 163, 164

APPEAL – leave to appeal – interlocutory decision dismissing application for summary dismissal - res judicata – whether denied proper hearing on question of res judicata estoppel - whether entry of consent judgment in Local Court proceedings had effect that claim for indemnity for subsequent worker’s compensation payments not maintainable as a res judicata

APPEAL – leave to appeal – separate determination of question – construction of joint venture agreement – delay – no point of principle – whether fairly arguable case APPEAL – leave to appeal – interlocutory decision – issue estoppel – orders made by consent – whether any arguable error in application of the principles of issue estoppel on the facts of the case CONTRACT – construction – joint venture agreement to conduct beach polo event – implied term – whether term should be implied to give business efficacy to clauses in joint venture agreement

CRIMINAL LAW – appeal – conviction for sexual and drug offences – evidence – whether verdict unreasonable or unsupportable on evidence CRIMINAL LAW – appeal – conviction for sexual and drug offences – whether charge brought outside of statutory time limit CRIMINAL LAW – appeal – conviction for sexual and drug offences – whether misdirection in summing up to jury

CRIMINAL LAW – procedure – interlocutory orders – application for permanent stay of proceedings – jurisdiction for granting a stay - whether case was foredoomed to fail on the basis of no duty of care existing between the accused and the deceased CRIMINAL LAW – involuntary manslaughter by criminal negligence – duty of care – duty of care of employer to employee – duty of care of employee to fellow employee - statutory duty of care - novel duty of care - whether a duty of care could exist between the director and employee of a bricklaying company to protect against the collapse of a freestanding wall

BAIL – show cause – unacceptable risk – where applicant seeks to traverse guilty pleas – where applicant faces sentencing two days hence

APPEALS – appeal from an associate judge – relevant principles – appeal by way of re-hearing – whether decision refusing to award security of costs to defendant against plaintiff miscarried – where two crucial findings of fact were wrongly made – first, that the person standing behind the plaintiff had no access to his super fund – second, that he was impecunious – where those wrong findings of fact vitiated the primary judge’s exercise of discretion – result that the discretion must be re-exercised

CRIMINAL LAW - Accused charged with murder - trial pending in Supreme Court - Accused seeks remittal to Local Court for committal proceedings - claim that Accused’s solicitor waived committal proceedings without consent of Accused - indictment filed in Supreme Court - Accused arraigned and trial fixed - no utility in remittal even if complaint is established - application refused - application by Accused to change venue of trial from Newcastle to Sydney - claim of adverse media publicity in Central Coast and Newcastle areas - whether fair or unprejudiced trial cannot otherwise be had - foundation for change of venue not established - application refused

PROCEDURE – costs – where Plaintiff successful in part – where three offers of compromise rejected by Plaintiff – where Plaintiff abandoned part of claim – where Defendants made unsuccessful ‘no case’ application during the hearing – whether to modify costs order to reflect particular matters.

PROCEDURE – amendment - proceedings for possession of land – matter fixed for hearing – late application by defendants to amend defence to rely on unjustness of contract – second defendant is a corporation – contract entered into for trade or business – no evidence of circumstances surrounding entry into loan contract – application dismissed

CONTEMPT – procedure – Local Court referral to Supreme Court – opportunity to be heard on whether referral should occur – procedural fairness

ADMINISTRATIVE LAW – judicial review – separate proceedings commenced against the Independent Commission Against Corruption and its officers claiming misfeasance in public office – application by plaintiffs to Commissioner for release of documents subject to restrictions from publication – whether release in the public interest - refusal by Commissioner – review of Commissioner’s decision - whether Commissioner asked the wrong question in determining the matter – whether plaintiffs denied procedural fairness - whether decision unreasonable – no legislative duty to give reasons - whether error in reasons invalidated decision – no error demonstrated

CRIMINAL PROCEDURE – application for separate trial – whether prejudice at a joint trial because of admissions made by co-accused in recorded interview – co-accused asserts substantial impairment – co-accused implicates herself and the applicant – whether prejudice can be cured by direction – applicant denies involvement – evidence and Crown case the same against both accused – issues in the trials different – separate trials ordered

TORTS – negligence – duty of care – breach of duty –child at day care centre was allowed to climb on balance beam with shoes on incorrect feet – beam exceeding height prescribed in regulations by 50 mm TORTS – negligence – common law causation – whether failure to detect incorrect footwear materially contributed to accident – whether height of beam materially contributed to accident – whether plaintiff sustained any head injury in the accident DAMAGES – past and future economic loss – buffer – whether finding plaintiff had suffered loss of earning capacity supported by evidence

CORPORATIONS — Winding up — Application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up — where evidence provided as to Company’s solvency – where undertakings to pay liquidator’s remuneration provided – where petitioning creditor’s debt to be paid – whether to terminate winding up.

HIGH RISK OFFENDER – application for extended supervision order – Crimes (High Risk Offenders) Act 2006 (NSW), s 9 – whether high risk sex offender – whether high degree of probability that offender poses unacceptable risk of committing serious sex offence – disputed conditions

CORPORATIONS - receivers, controllers and managers - termination of receivership – where receiver and manager of companies sought to be discharged from that role – where receiver and manager of companies sought dispensation from requirement to file accounts – where object of the receiver’s appointment has been implemented.

PRACTICE AND PROCEDURE – subpoenas – UCPR r 33.14

DEFAMATION – pleadings – imputations – form and capacity objections

COSTS – ordinary rule that costs follow the event – where issues determined involved a measure of complexity – where plaintiff unrepresented – where plaintiff propounded multiple pleadings in respect of which the defendants incurred costs

DEFAMATION – practice note SC CL 4 – second listing – discovery and interrogatories – whether necessary for resolution of real issues in dispute

COSTS – general rule that costs follow the event – application for stay of orders made pursuant to ss 39 and 180 of the Proceeds of Crime Act 2002 (Cth) – separation of issues where different outcomes

VEXATIOUS PROCEEDINGS – plaintiff required to show cause why his appeal should not be dismissed as incompetent – plaintiff seeking default judgment as no appearance or defence filed by defendants – no default judgment on appeals – failure of defendants to appear or file a defence does not make appeal competent APPEAL – source – grounded in statute – apprehended violence order appeal – right of appeal under s 84 Crimes (Domestic and Personal Violence) Act 2007 – procedure for appeal under Crimes (Appeal and Review) Act 2001 PROCEDURE – filing of documents