Cases and authorities

EQUITY - Succession - Claim for family provision order under Succession Act s 59 - Where applicant is an adult child of deceased - Where deceased made a provision of fifty percent for applicant in will - Whether adequate provision made for proper maintenance, education and advancement in life of applicant - Consideration of matters under Succession Act s 60(2) - Where the applicant was bankrupt at the time of the testatrix’s death

PROCEDURE – civil – parties – where plaintiff asserts need for a tutor but fails to appoint one – whether plaintiff under legal incapacity – proceedings stayed pending appointment of tutor – self-executing order made dismissing proceedings for want of due despatch if plaintiff fails to appoint tutor within four months

CRIMINAL LAW – evidence – execution of search warrant – evidence illegally obtained – illegality neither deliberate nor reckless – illegality relatively trivial - serious nature of offences charged – probative value and importance of evidence considered – desirability of admitting evidence substantially outweighs undesirability of evidence obtained where technical non-compliance with statutory provision

APPEAL – statutory appeal – application for leave to appeal against a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – whether there are errors of law contained in the reasons for decision of the Appeal Panel – dispute regarding timber flooring ADMINISTRATIVE LAW – judicial review – whether the plaintiff is entitled to relief in the nature of prerogative writs – appeal dismissed

PRACTICE AND PROCEDURE – application for use of documents produced for other proceedings – documents provided to Court according to statutory regime – Crimes (High Risk Offenders) Act 2006 (NSW) PRACTICE AND PROCEDURE – application for release from implied undertaking to use documents produced for another proceedings – implied undertaking – documents produced by strangers to proceedings – public domain – whether special circumstances warrant release – public interest

PRACTICE AND PROCEDURE – claim for damages in tort and contract – application to amend statement of claim – no hearing date set – whether the proposed amendment would be contrary to the interests of justice – whether the proposed amendment can be sustained on the evidence – whether the defendant would be unduly prejudiced by the proposed amendment

CONTEMPT OF COURT – application for punishment for contempt of Court – construction of undertakings – undertakings noted by the Court but not expressed to be made either to the Court or inter partes – relevance of the Judge’s asking the party’s solicitor whether the undertakings were given – undertakings prevented defendant from dealing with certain funds, subject to exceptions – where undertakings were implicitly given on an interlocutory basis until further order, but no cross-undertaking as to damages was given – held, dismissing the application, that the undertakings were made inter partes and not to the Court PRACTICE AND PROCEDURE – costs – variation of costs orders – plaintiff seeks variation of earlier costs order made by consent – where defendant breached undertakings given inter partes – where plaintiff knew that those undertakings may have been breached at the time that the costs order was made – held, dismissing the application, and assuming, without deciding, that the Court has power to vary such a costs order, that it would not be appropriate on these facts to vary the costs order

LANDLORD AND TENANT – options to renew – plaintiff purportedly exercised option to renew a sublease with the defendant – sublease option was conditional upon the defendant’s exercising an option to renew the head lease with a third party – plaintiff sought orders to compel the defendant to exercise the head lease option – whether defendant was estopped from denying that it would exercise the head lease option, or whether it had engaged in misleading or deceptive conduct or unconscionable conduct – whether orders sought were interlocutory or final – held, dismissing the application, that: (1) the plaintiff must have known of the terms of the sublease, at least after it was varied following a prior exercise of the option to renew; (2) the defendant did not induce any expectation in the plaintiff, and did not know of any such expectation; and (3) the defendant did not engage in misleading or deceptive conduct, or in unconscionable conduct

COSTS – where defendant opposes plaintiff filing notice of discontinuance with no order as to costs – whether plaintiff should have leave – assessment of appropriate gross sum costs order

COSTS – application for leave to appeal against interlocutory orders in the Local Court – subsequent development renders proceedings futile – summons dismissed – issue of costs of the proceedings

APPEALS – Appeal to Court from Guardianship Division of NSW Civil and Administrative Tribunal – Appeal from dismissal of application for financial management order - Construction and operation of Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14 – Appeal limited to questions of law - Appeal dismissed PRACTICE – Guardianship and Protected Estate Management Appeal to Court from dismissal of application for financial management order - Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14

PROTECTIVE JURISDICTION – Financial management order and tutorship order – Litigant in person – Incapable of managing affairs – Application for the Applicant, revocation of orders – Application dismissed MENTAL HEALTH – Guardians, committees, administrators, managers and receivers - Appointment – Management of estate– Tutor in common law compensation proceedings – Meaning of incapacity for self-management PRACTICE – NSW Trustee and Guardian Act – Protected estate manager – Tutor in common law compensation proceedings- Litigant in person – Incapable of managing affairs - Appointment of NSW Trustee as manager and tutor

PROCEDURE – application for leave to appeal against order refusing applicant leave to prosecute respondent for perjury under Crimes Act 1900 (NSW), s 338(1)(c) – where false statement said to have been made on oath in connection with proceedings before primary judge not identified with sufficient precision – whether arguable error in primary judge’s decision to refuse leave – application for leave to appeal dismissed

APPEAL – application for leave to appeal – where primary judge dismissed application to set aside default judgment

CRIMINAL LAW – appeal against sentence – conspiracy to commit an act with intent to pervert the course of justice – co-offenders – principle of parity – whether the sentence imposed on the applicant demonstrates erroneous disparity when compared with the sentence imposed upon his co-offender

CRIMINAL LAW – appeals – sentencing – whether uncharged criminal conduct treated as an aggravating factor – whether unfair disparity between applicant’s and co-offender’s sentences

CRIMINAL LAW – appeal – sentence not manifestly excessive – objective seriousness – referral to Drug Court – drug treatment order

Indecent assault – offences taken into account – mental disorder – acute psychotic state – sentence not inadequate

CORPORATIONS – winding up – application to strike out Amended Grounds of Opposition to Winding Up – where application brought in the Court’s inherent jurisdiction and under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) – whether to strike out Amended Grounds of Opposition.

CLASS ACTION – application to amend Statement of Claim – whether amendment reflects new case – whether allegation of knowledge adequately particularised – whether subgroups should be appointed – whether orders for “class closure” should be made.

CRIMINAL LAW – Procedure – Application for a criminal justice stay warrant under s 151 Migration Act 1958 (Cth) – Whether Court has jurisdiction under s 151 to issue stay warrant on its own motion – Court has no jurisdiction to issue stay warrant without an application made – Plaintiff accepted he has no standing to make application – Whether Court has power to issue stay warrant pursuant to s 23 Supreme Court Act 1970 – Plaintiff has not shown that the exercise of jurisdiction under s 23 is necessary for the administration of justice – Application dismissed

Foreign judgments registration – debtor having no connection with jurisdiction of registration

CONTRACT – respondent seeks to enforce alleged building work debt – identity of contracting entity in dispute – whether primary judge erred in finding that the appellant had contracted with Architectural Collections Pty Ltd (ACPL) – whether use of post-contractual conduct permissible - whether debt validly assigned by ACPL to the respondent PROCEDURE – whether primary judge erred by not allowing the appellant to tender email correspondence

PROCEDURE – application for a stay granted subject to undertakings to the Court - form of undertakings

CONTRACT – construction – Bond Deed Poll –whether primary judge erred in construction of the term “market value” where used in the context of a mandatory exchange procedure in the deed – whether primary judge erred in concluding that respondent’s valuer did not deliver a binding valuation – whether primary judge erred in determining that the respondent was entitled to request a subsequent alternative valuation under the deed – consequence, as a matter of construction of the deed, where each party appointed an independent valuer but only one of the two determinations was binding on the parties – whether appropriate for Court to undertake valuation process itself or to appoint a referee WORDS AND PHRASES – “market value”

ADMINISTRATIVE LAW – Legal Profession Act 2004 (NSW) – Appeal under s 108 Legal Profession Act 2004 from deemed refusal by the defendant of the plaintiff’s application for a barrister’s practising certificate – Whether plaintiff meets requirements for grant of practising certificate – Whether plaintiff is of good fame and character – Serious allegations made by the Bar Association of breach of undertaking given to this Court by the plaintiff and breach of an order made by this Court against the plaintiff prohibiting him from communicating with former clients – Two instances of communication relied upon by the defendant as amounting to breach - Whether evidence establishes communications by plaintiff in breach of undertaking or order – Held that evidence not capable of establishing any breach by the plaintiff of either the undertaking or order – Deemed refusal of plaintiff’s application for practising certificate set aside – Order made that the defendant grant the plaintiff a barrister’s practising certificate for the year finishing 30 June 2016. ADMINISTRATIVE LAW – Legal Profession Act 2004 (NSW) – Appeal under s 108 Legal Profession Act 2004 from deemed refusal by the defendant of the plaintiff’s application for a barrister’s practising certificate – Whether plaintiff failed to discharge his duty of candour during the application process – Responses given to Notice seeking information issued under s 660 Legal Profession Act were incomplete but not wilfully misleading or false.

CRIMINAL LAW – forensic patient – application for interim extension order – preliminary hearing – whether unacceptable risk – whether less restrictive means available – interim extension order not opposed PRACTICE AND PROCEDURE – section 162 of the Mental Health Act 2007 (NSW) does not apply to proceedings - anonymisation of the defendant’s name not required by statute - question whether “person” includes court considered but not determined – not appropriate in the circumstances to anonymise defendant’s name under Court’s inherent jurisdiction

REAL PROPERTY – mortgages – possession of land – defence by first defendant not signed nor sworn – no defence by second defendant – failure of first defendant to comply with directions to serve affidavit about defences raised – two extensions not complied with – defence struck out

PRACTICE AND PROCEDURE – application to amend Statement of Claim – where amendments sought to extend the period within which unfair preferences, insolvent transactions and voidable transactions were pleaded – where amendments affected by Corporations Act 2001 (Cth) s 588FF(3) – whether to allow amendments pursuant to Civil Procedure Act 2005 (NSW) CORPORATIONS – winding up – interpretation of ‘transaction’ under Corporations Act 2001 (Cth) s 588FF(1).

JUDGMENTS AND ORDERS – Amending, varying and setting aside – Whether third party has standing to set aside judgment – Whether submissions amounted to fraudulent misrepresentations – First instance judge setting aside Court of Appeal orders – UCPR Pt 36; r 36.15 COMPANIES – Dissolution – Reinstatement of registration – Who may apply – Person aggrieved – Whether any utility in reinstatement – Company would remain insolvent - Corporations Act 2001 (Cth), s 601AH(2)

CRIMINAL LAW – sentencing – murder – plea of guilty – murder of father and stepmother – other offences on Form 1 – whether life sentences should be imposed – various aggravating factors – offender still young – reasonable prospects of rehabilitation – offences not planned in advance – otherwise very high level of culpability – no reduction in sentence for plea of guilty

APPEAL – application for leave to appeal – dismissal of proceedings – defamation proceedings dismissed at show cause hearing after plaintiff failed to file and serve amended statement of claim – application to call fresh evidence – whether proposed fresh evidence could have affected outcome – exercise of discretion – Civil Procedure Act 2005 (NSW), s 61 – whether issue of principle

APPEAL – application for leave to appeal – motion to set aside default judgements dismissed – decision not to defend proceedings – whether adequate explanation for delay – allegation that respondent not owner of debt – allegations of misleading and deceptive conduct by respondent – whether prejudice to applicants if orders not set aside

APPEAL – application for leave to appeal from a number of interlocutory orders made against solicitor – non-attendance by applicant at hearing – proceedings dismissed COSTS – where applicant sought adjournment of hearing of application for leave to appeal on the day of hearing – proceedings dismissed – whether indemnity costs should be awarded

CRIMINAL LAW – Appeal against conviction – Whether trial judge erred by failing to discharge the jury – Jury concerned photo had been taken of them by person in the back of the courtroom – Trial judge investigated incident and determined no photograph had been taken – Trial judge gave direction to the jury – Jury indicated that they had no further requests or concerns in relation to the incident – Trial judge held that there was no prejudice to the accused in those circumstances such as to warrant a discharge of the jury – Principles relating to discharge of jury – Held that finding of trial judge that no prejudice had resulted was sound – No error of fact or law established – Appeal dismissed

SENTENCING – violent rampage – multiple victims – one victim stabbed 33 times and lost an eye – multiple offences including wounding with intention to cause grievous bodily harm – applicant suffered from mental illness – aggregate sentence of twelve years imprisonment including non-parole period of seven years and six months imprisonment – whether sentence manifestly excessive – relevance of mental illness – factors that arise in relation to mentally ill offenders can negate each other – Veen (No 2) – leave to appeal granted but appeal dismissed.

PROCEDURE – costs – indemnity costs – where costs order already made but indemnity costs not sought at time – whether application can be made after conclusion of proceedings – where order not yet subject of costs assessment – effect of (NSW) Uniform Civil Procedure Rules 2005, r 42.2 – whether r 42.2 varies order already made or establishes basis of liability without affecting liability under order – operation of r 42.2 in empowering Court to make or reconsider costs orders before referral for assessment – reluctance of Court to entertain application altering previous orders where already subject of contest on same principles and where no change of circumstances – where defendants substantively entitled to indemnity costs.

DEBT RECOVERY – lessor seeks recovery from lessee for amounts payable under registered lease in respect of retail premises – defendants absent at hearing – procedure under rule 29.7 Uniform Civil Procedure Rules 2005 (NSW) – COSTS – offer of compromise made

PRACTICE AND PROCEDURE – application for stay pending appeal – conditional stay – whether in the interests of justice to stay judgment – whether appropriate to stay orders relating to costs and disbursements PRACTICE AND PROCEDURE – call for documents to establish limit of indemnity of defendants’ insurance policy – direction made to answer call because of potential relevance to stay and to possible resolution of the proceedings

JOINT TENANCY – severance – equitable estoppel EQUITABLE ESTOPPEL – necessity for representation that is sufficiently clear and unambiguous to make it reasonable to rely on FAMILY PROVISION ORDER – contest between first wife and younger woman with infant children

CRIMINAL LAW – bail – application for bail – show cause obligation – applicant type 1 diabetic – management of illness in custody – cause shown – bail concerns and unacceptable risks – bail granted with strict conditions

FAMILY LAW AND CHILD WELFARE – Adoption – Adoption of an adult – No jurisdiction where applicant had only known putative son as adult – Adoption Act 2000 (NSW), s 24

CORPORATIONS – winding up – application in the Court’s inherent jurisdiction by shareholder for leave to bring derivative proceedings – where liquidator did not oppose leave provided a capped indemnity and security for that indemnity was provided – where shareholder and its directors offered indemnity in a higher capped amount than that proposed by the liquidator – where indemnity expressed to be limited to costs of claims prosecuted by the company pursuant to the leave – whether to grant leave on those terms PRACTICE AND PROCEDURE – application to amend Originating Process – where amendments were as to relief sought in Originating Process to conform it to Points of Claim – whether to allow the amendments under r 19.1 of the Uniform Civil Procedure Rules 2005 (NSW).

APPEAL – appeal against Local Court decision – whether proceedings ought not to have been dismissed – inadequate reasons – wrongly disallowing evidence – failing to apply relevant tests under the Evidence Act 1995 (NSW) - failing to apply the s 82 of the Crimes (Forensic Procedures) Act 2000 (NSW) – certificate under the Suitors’ Fund Act 1951 (NSW) – appeal allowed – decision set aside – matter remitted – costs – orders made

SHOW CAUSE - where plaintiffs have repeatedly failed to comply with court orders - where peremptory dismissal of proceedings may create an injustice - whether an order for the payment of defendants’ costs sufficient to balance prejudice to them - where plaintiffs should put on terms for future conduct of proceedings

COMMERCIAL CONTRACT – Construction – No general principle

FAMILY PROVISION – Nieces – Whether factors warrant making of Application

TRESPASS - from dam construction - large dam built on land close to the boundary of lower lying rural neighbouring property - batter from dam construction placed onto lower-side neighbour’s land - whether a trespass - whether a continuing trespass - where defendant’s conduct permanently altered the plaintiff’s land - defence to trespass - whether adjoining lower-side neighbour gave permission for dam to be built and batter to be placed on lower-side neighbour’s land - what amounts to consent – where injunctive relief sought to prevent trespass to land. TRESPASS - from table drain construction - table drains built near boundary along the “battle-axe handle” of two subdivided rural properties - whether the table drains concentrate surface water into channels causing erosion of the plaintiff’s property. NUISANCE - from dam leaking water onto lower land of neighbour - whether leakage amounts to a nuisance - from table drain - whether leakage causes nuisance to plaintiff’s land by erosion. EQUITY – proprietary estoppel – where Torrens title land transferred after alleged equitable interest arose - personal equities exception to indefeasibilty. EQUITY – equitable relief – injunctive relief – relief to be granted upon conditions as to the sharing of the cost burden of the relief. ENCROACHMENT OF BUILDINGS - whether an easement can and should be granted under the Encroachment of Building Act 1922 s 3 to authorise the maintenance of batter on the lower-side neighbour’s land – whether an earthen dam wall is a ‘building’ under the Act. CIVIL PROCEDURE - discretion to admit tender of evidence at late stage in proceedings - where evidence tendered after oral evidence given and final written submissions served

PRACTICE AND PROCEDURE – disclosure of documents – where defences raise a large issue as to the financial status of a bank during the period before it was acquired by another bank – agreement that expert evidence will assist the court to determine the appropriate scope of discovery – single expert to be appointed by the court – determination of dispute as to the questions for the expert