Cases and authorities

PRACTICE AND PROCEDURE – Subpoenas – Whether abuse of process to issue subpoena to obtain documents in advance of examination of judgment debtor – Application to postpone examination – UCPR Part 38 rr 38.1 and 38.3

CRIMINAL LAW – sentence – murder – guilty plea – murder of de facto partner – stabbing in deceased’s home – offender on bail – victim impact statement – evidence of the offender’s depression – offender intoxicated – domestic violence CRIMINAL LAW – sentence – wound person with intent to cause grievous bodily harm – guilty plea CRIMINAL LAW – sentence – breach AVO

PROCEDURE – civil – application for strike out or summary dismissal – whether proceedings were frivolous or vexatious – whether pleadings disclosed reasonable cause of action – no reasonable cause of action disclosed – proceedings summarily dismissed pursuant to UCPR r 13.4(1) SUPPRESSION ORDERS – previous judgment in proceedings suppressed until date of adjourned hearing under Courts Suppression and Non-Publication Orders Act 2010 – reasons for suppression – further suppression order under s 8 of the Act made to continue until further order – consideration of what interests of justice required in the circumstances of the case – the need to protect the interest of an under-aged person (a minor) against direct or indirect identification through publication of the proceedings constituted an interest that outweighed the open-justice-principle

CRIMINAL LAW – proceeds of crime – restraining orders

CONTRACTS – construction and interpretation – loan agreements entered into to facilitate participation in investment scheme – limited recourse provision – whether condition for operation of provision satisfied – whether provision operates when events of default have occurred.

COSTS – claim against first defendant – UCPR rule 42.34 – costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court – whether District Court had jurisdiction to hear the matter – whether Court should in any case exercise its residual discretion to award the plaintiff costs – where plaintiff made a Calderbank offer to settle on payment of $400,000 from the defendants – where the sum the subject of the proceedings was only $145,000 – consequence that offer was unreasonable – no reason to depart from the position set out in rule 42.34 – claim against second defendant – costs should follow the event COSTS – cross-claims – first defendant’s cross-claim against second defendant – contention that cross-claim was brought as a matter of necessity – not accepted – where cross-claim in any event misconceived – second defendant’s cross-claim against its managing agent – whether appropriate to make a Sanderson order – whether appropriate to make a Bullock order – where bringing of cross-claim was a reasonable response to claims made against second defendant – result that plaintiff and first defendant should indemnify the second defendant in respect of its cross-claim – refusal to accept offers of compromise not unreasonable

LOCAL COURT APPEAL – leave to appeal on a question of mixed fact and law – construction of a contract a question of law – whether Magistrate erred in her approach in determining whether a binding contract existed

CIVIL PROCEDURE – security for costs – jurisdictional threshold – discretionary matters – whether the claim is bona fide and has reasonable prospects of success – whether the plaintiff’s financial position was caused by the defendants’ actions – stultification – whether delay in commencing proceedings has caused prejudice – quantum

PRACTICE AND PROCEDURE – costs – offer of compromise – offer to forego costs – offer made before significant costs incurred – whether any element of compromise

PROCEDURE – application to rely on further evidence – previous guillotine order – explanation for delay – potential effect on hearing if evidence adduced – potential significance of evidence.

EVIDENCE – credibility rule – exception for making this could substantially affect the credibility of a witness – no question of principle.

INJUNCTIONS – Injunction to restrain dealing with lease and other assets – No issue of principle

REAL PROPERTY – possession of land – mortgages – judgment for possession - stay of execution – cross-claim by mortgagor for sale of other land at an under value – whether cross-claim amounts to a set-off – whether damages on cross-claim would payout debt on land the subject of judgment – stay refused EQUITY – set-off – claim for damages against mortgagee – whether claim impeaches title of mortgagee in claim for possession

CRIMINAL LAW - application by Crown for advance ruling on application for leave to cross-examine under s.38 Evidence Act 1995 - evidence unfavourable to Crown - prior inconsistent statements made by witness - final ruling to await evidence of witness at trial - discretionary factors under s.192 Evidence Act 1995 to be applied

PRIVATE INTERNATIONAL LAW – choice of law – administration and succession – construction and effect of testamentary dispositions – where testator domiciled in Australia devises Serbian realty on trusts – where Serbian courts assert exclusive jurisdiction over dispositions of immovables located within Serbian territory – held, Serbian law as lex situs governs will’s construction and effectiveness of disposition. EXECUTORS AND ADMINISTRATORS – applications to the court – judicial advice – construction and effect of testamentary dispositions – where realty in Serbia devised on trust for beneficiary for life and thereafter her children – where Serbian law as lex situs governs will’s construction and effectiveness of disposition – whether beneficiary may take realty absolutely – where conflicting evidence as to recognition of concept of trust in Serbian law – where Serbian courts assert exclusive jurisdiction over dispositions of immovables located within Serbian territory – where application to Serbian court inevitable – held, executor should cause probate to be obtained in Serbia.

CORPORATIONS – winding up – conduct and incidents of winding up – where liquidator rejected all or parts of proofs of debt lodged by Plaintiffs in the winding up – whether to set aside decision of liquidator under Corporations Act 2001 (Cth) s 1321 EQUITY – general principles – unjust enrichment – where liquidator cross-claimed that cross-defendants were unjustly enriched by certain repayments made by the liquidator – whether breach of fiduciary duty – whether breach of no conflict or no profit rule – whether basis for account of profits established – application of rule in Cherry v Boultbee – whether liquidator estopped from pursuing claims by Anshun estoppel.

CONVEYANCING – Breach of contract for sale and remedies – Purchaser’s remedies – Specific performance – Option deed – Construction of option – Exercise of option to purchase land by a nominee of the grantee of the option

SUCCESSION – Wills, probate and administration – The making of a will - Suspicious circumstances rule – Participation of beneficiaries in preparation of will – Onus to prove will that of a free and capable testatrix – Onus discharged

CRIMINAL LAW – appeals – Criminal Appeal Rules, r 50C – meaning of “any other power” in r 50C(5) CRIMINAL LAW – appeals – Criminal Appeal Rules, r 50C – whether material misapprehension of fact or law not due to applicant’s default ADMINISTRATIVE LAW – apprehension of bias – bias from sitting on previous cases involving applicant ADMINISTRATIVE LAW – procedural fairness – access to legal documents in custody – whether reviewable in r 50C application CRIMINAL LAW – adequacy of trial representation – complaints fully litigated in prior proceedings – no claim specifying alleged misapprehension of fact or law

CONTRACTS – whether binding agreement in existence – whether parties’ intention was to be bound prior to signature and execution of agreement – relevance of subsequent conduct of parties – relevance of parties’ previous dealings AGENCY – whether solicitor had actual authority to bind client to a contract – whether clear and cogent evidence indicating authority to bind AGENCY – whether solicitor had ostensible authority to bind client to a contract – whether agreement was in the context of litigation – whether potentially litigious dispute constituted in the context of litigation

PROCEDURE – adjournment of hearing – application to adjourn hearing made on day hearing due to commence – non-readiness of cross-defendants to proceed – potential conflict in legal representation of cross-defendants – non-disclosure of detail of conflict – weight to be ascribed to conflict in adjournment application – where cross-claimants served affidavit evidence late – whether late service of evidence prejudicial to cross-defendants.

CRIMINAL LAW – Practice and procedure – Application by media outlets for access to CCTV footage tendered by the Crown – Accused charged with murder – Trial before judge alone - Where Crown adduced evidence of CCTV footage of altercation between the deceased and the accused – Where CCTV footage depicted the last moments of the life of the deceased – Where Crown also adduced CCTV footage of the arrest of the accused in which the accused made disparaging comments about the deceased –– Where publication of the footage would be likely to cause further grief to the deceased’s family – Application for access denied – Where accused asserted that he was “embarrassed” by the statements made by him at the time of his arrest – Where that position was outweighed by principles of open justice – Application for access to that part of the footage granted.

CONTRACT – contracts for the purchase of units “off the plan” – completion subject to registration of draft strata documents – contractual obligation that before completion vendor must procure construction of building in a proper and workmanlike manner and generally in accordance with the development consent – further contractual provision that the defendants must use “reasonable endeavours” to register draft strata documents by a specified date for registration – proper construction of the contract – whether defendants’ failure to construct the building generally in accordance with terms of development consent necessarily constitutes a breach of their obligation to use “reasonable endeavours” – nature of the obligation to use “reasonable endeavours”; VENDOR and PURCHASER – whether defendants purported rescission of the contracts on the basis that strata documents were not registered by the specified dates for registration was valid – whether the defendants failed to use “reasonable endeavours” to register the draft strata documents by the relevant dates – whether the strata documents could have been registered by the relevant dates had the defendants used reasonable endeavours; EVIDENCE – whether Ferrcom inference should be drawn in circumstances where a matter was not addressed in affidavit material or evidence-in-chief, but witness was taken to the matter in cross-examination

CRIMINAL LAW – Offences – Breaches of load dimensional requirements by consignor and loader – Where combination loaded with scrap steel collided with an overhead beam in tunnel – Substantial damage occasioned to tunnel as a result - Necessity to close the tunnel to traffic following the incident - Consequent traffic congestion for a period – Where consignor had no direct control over or knowledge of the circumstances of the loading – Where loader’s safety measures at the time of loading were essentially limited to carrying out a visual check of the load by reference to the upper lip of the trailer bin – Culpability of loader greater than that of consignor – Mitigating factors in each case including early plea of guilty, expressed remorse, agreement to pay substantial compensation and substantial steps taken directed towards ensuring that there would be no future offending - Fine imposed in each case

APPEAL – interlocutory appeal – application for leave – issue of practice and procedure – access to defendant’s insurance policy and related documents – principle of restraint – factors relevant to grant of leave – leave required under Corporations Act 2001 (Cth), s 444E

DEFAMATION – whether leave to appeal/cross-appeal should be granted to applicant in relation to re striking out of pleaded imputation and to respondent in relation to refusal to strike out that imputation as subsequently re-pleaded and other pleaded imputations – whether matter complained of capable of giving rise to the imputations pleaded – objection as to form of particular imputations

ADMINISTRATIVE LAW – tenant’s appeal to the District Court from a decision of the Consumer, Trader and Tenancy Tribunal (Tribunal) on a question of law dismissed – tenant seeks judicial review of both the decision of the Tribunal and the District Court on a ground not put to either – whether Tribunal committed jurisdictional error – whether District Court decision has to be set aside before challenge to the Tribunal’s decision is determined – whether principle in Port of Melbourne Authority v Anshun applies to the challenge to the Tribunal’s decision – whether District Court committed error of law on the face of the record when the argument of law was not put to it

DEFAMATION – pleadings – imputations – capacity

DEFAMATION – pleadings – imputations – requirement for imputations to differ in substance – whether imputation is pleaded with requisite specificity

REAL PROPERTY – Torrens system – Caveats – Claim for family law property settlement not a caveatable interest – Summons for extension must include claim for final relief

DEFAMATION -

NEGLIGENCE – breach of contract, fiduciary duty and duty of care – solicitor and client relationship – applicability of Civil Liability Act 2002 – apportionment – contributory negligence

SUCCESSION – wills, probate and administration – probate and letters of administration – where executors sought grant of probate in solemn form – where some properties disposed of under the will were held in joint tenancy – whether the deceased lacked capacity – whether to grant probate in solemn form SUCCESSION – wills, probate and administration – construction and effect of testamentary dispositions – suspicious circumstances – where deceased’s adopted son assisted in giving instructions to solicitors – where the will was read to the deceased before he signed it – whether deceased knew legal effect of will – whether deceased had knowledge and approval of the will. SUCCESSION – wills, probate and administration – application for rectification of the will under Succession Act 2006 (NSW) s 27 – application under Protected Estates Act 1983 (NSW) s 48 and NSW Trustee and Guardian Act 2009 (NSW) s 83. SUCCESSION – family provision and maintenance – principles upon which relief granted – where eligible person suffers from disability – where eligible person failed to disclose full and frank financial position to the court – whether adequate provision was made under the will.

PROCEDURE – Civil – Interlocutory issues – Cross-vesting – Application to have proceedings transferred to Family Court of Australia under s 5(1)(b)(ii) Jurisdiction of Courts (Cross-vesting) Act 1987 – Possession claim by plaintiff lender/mortgagee in Supreme Court – Proceedings subsequently commenced in the Family Court by second defendant to set aside Binding Financial Agreement entered into under s 90UD Family Law Act 1975 (Cth) – Whether Family Court has jurisdiction in respect of the proceedings commenced by the plaintiff – Whether there existed only one justiciable controversy – Whether common substratum of facts – Held that the two proceedings involved two separate controversies – Supreme Court proceedings involved different parties, transactions and property to Family Court proceedings – Property securing certain of the loan facilities in respect of which the plaintiff sought an order for possession was not property of the de facto partners but was property of the first defendant, sister to the second defendant - Family Court did not have accrued jurisdiction to hear possession dispute involving multiple third parties to the Family Court proceedings – It would not be in the interests of justice to transfer the proceedings – Application for transfer dismissed

DEFAMATION – consideration of need for further interlocutory steps after pleadings closed – principle of proportionality – application of Defamation List Practice Note

CONTRACTS – contract for the sale of land – auction – whether defendant’s purported termination of the contract was valid due to the plaintiffs’ failure to pay the deposit – whether post-dated cheque is not a “cheque” for the purposes of the contract causing a breach of an essential term – construction of contract – definition of “cheque” – post-dated cheque is not a cheque but a bill of exchange – estate agent’s acceptance of non-compliant post-dated cheque was unauthorised and not an acceptance for the purposes of the contract – thus, the plaintiffs never gave deposit required by the contract – plaintiffs’ application is dismissed – obiter dictum that plaintiffs would succeed on their claim that they did not impose a condition on the delivery of the cheque, within the meaning of the relevant contractual term “unconditionally” – obiter dictum if the defendant’s termination of contract had been invalid - were plaintiffs ready, willing and able to complete – defendant did not allow plaintiffs to access property to prepare compulsory valuation for financing purposes – defendant cannot then rely on its own breach of contract to terminate

EQUITY - Succession - Construction and effect of testamentary dispositions - Whether on the true construction of the will the executor is directed to subdivide the property - Where the property cannot be subdivided in accordance with the testator’s direction - Whether inconsistent provisions can be reconciled where subdivision is not possible - Testator’s intention for the first defendant to remain residing in a dwelling - Whether property is to be sold

PRACTICE – NSW Trustee and Guardian Act – Managed person – Private managers – remuneration – Regulatory regime – Report of NSW Trustee and Guardian

PRACTICE AND PROCEDURE – Confidentiality or anonymisation order – Whether appropriate to make at outset of proceedings before material is tendered or otherwise deployed

POSSESSION – application for continuation of a stay of writ of possession pending appeal – whether defendant has prospects of success on appeal – where no grounds of appeal indicated – where defendant’s likelihood of success on appeal not otherwise demonstrated – where plaintiff prima facie entitled to fruits of the judgment

CIVIL LAW – proceeds of crime – forfeiture – notices of motion – applications for exclusion from forfeiture – whether interest in restrained money established – whether source of cash established – whether evidence established cash was not the proceeds of unlawful activity or the instrument of serious offences – not established – costs – referral – orders made PROCEDURE – application for motions to be heard together with forfeiture applications – refused EVIDENCE – witnesses – credibility – false evidence – referral made

PROCEDURE – summary dismissal – whether an arguable cause of action is disclosed – whether a collateral attack is sought to be made on exercises of judicial power, contrary to the principles of res judicata and issue estoppel

COSTS – application for indemnity costs – appeal abandoned the afternoon before the day fixed for hearing – whether the appeal had any prospects of success – conduct of applicant in the appeal in not complying with the Uniform Civil Procedure Rules 2005 (NSW) and court directions COSTS – application for order of specified gross sum of costs – whether the conduct of the applicant in the appeal contributed unnecessarily to the incurring of costs

PROCEDURE – application for dismissal of appeal as incompetent – application for extension of time – whether an argument raised in the appeal was available on the pleadings – whether that argument is precluded by a settlement agreement

BIAS – apprehended bias – application for disqualification of judge

PROCEDURE – subpoenas – principles relating to the scope of subpoenas – whether subpoenas constituted a “fishing expedition” – whether subpoenas served a legitimate forensic purpose – no defence alleging fraud – identifying scope of available challenges to plaintiff’s case APPEAL – interlocutory – application for leave – appeal from dismissal of application to set aside subpoenas – restraint in exercise of appellate review of decisions of practice and procedure – whether discretion miscarried

LEGAL PRACTITIONERS – Court’s inherent jurisdiction for control and discipline of local legal practitioners – application for removal from roll of local lawyers – whether respondent is guilty of professional misconduct – whether a fit and proper person to remain on the Supreme Court roll – whether a person of good fame and character – Legal Profession Uniform Law (NSW), s 22

APPEAL – application for leave to appeal – refusal of relief by way of judicial review – whether arguable case that refusal of respondent to investigate complaint unreasonable – whether arguable case of constructive failure to exercise jurisdiction – whether trial judge arguably erred in dismissing judicial review application on grounds not relied on by respondent – failure of applicant to place relevant material before appeal court – whether leave application should be referred for concurrent hearing on limited grounds BIAS – apprehended bias – judicial review of refusal by the Independent Commission Against Corruption to investigate complaint – allegations of conspiracy involving politicians and retired judicial officers to cover up corruption – application that all judges of the Supreme Court of New South Wales recuse themselves – whether fair-minded observer might entertain doubts about the ability of the Court as a whole to deal impartially with application for judicial review CONSTITUTIONAL LAW – notice of constitutional matter – no issue of operation or interpretation of Constitution arising – whether notices required in case of bias allegations – Judiciary Act 1903 (Cth), s 78B PRACTICE AND PROCEDURE – joinder of State Attorney General – orders sought relating to constitution of the Court – relief not granted

JUDGMENTS AND ORDERS – finding that planning consent for development partly invalid – determination of appropriate orders for ameliorative relief to protect privacy and amenity of land adjacent to development – disagreement between experts – matter remitted to Land and Environment Court for determination JUDGMENTS AND ORDERS – finding that planning consent for development partly invalid – whether order should be made suspending the operation of the consent – terms of termination of suspension – relief where terms substantially complied with – whether developer can seek lifting of suspension – Land and Environment Court Act 1979 (NSW), s 25B, s 25C COSTS – order for costs of trial varied to allow for result of appeal – whether to apportion costs by issue in complex litigation – whether global apportionment appropriate to settle disputation – whether liability of respondents to be joint and several – order for costs of appeal – appellant partly successful – assessment of overall degree of success

CONTRACT – construction – operation of dispute resolution clauses – provisions of long term contract as to when service provider entitled to variation of fee – where dispute as to whether variation provision applies and, if applies, as to whether and how service provider to be compensated – whether dispute to be referred to expert or subject to general dispute resolution provision – no question of principle