Cases and authorities

APPEAL – dust diseases –– appeal on point of law – whether primary judge erred in point of law by making factual errors – whether no evidence of exposure to asbestos dust or that employer knew or should have known of exposure TORTS – negligence – dust diseases – damages – whether compensation paid and payable to worker’s partially dependent widow pursuant to s 8(2B)(d) of the Workers’ Compensation (Dust Diseases) Act 1942 (NSW) (Dust Diseases Act) should be deducted from damages awarded to the Estate under s 15B of the Civil Liability Act 2002 (NSW) – whether general law rule against double recovery applies – whether s 12D of the Dust Diseases Act prohibits deduction of such compensation from s 15B damages – whether s 15B(6) of the Civil Liability Act prevented award of damages for gratuitous services rendered by deceased to dependent wife – whether s 15B damages reduced because the widow’s need for domestic services satisfied by family members after death of the worker STATUTORY INTERPRETATION – beneficial legislation not given constrained meaning – statutes of one legislature to be construed to achieve coherence – word appearing twice in one subsection presumed to have single meaning – statutes “always speaking” so as to apply to general law as in force from time to time – absurdity to be eschewed WORDS and PHRASES – “damages” – Civil Liability Act 2002 (NSW), s 3

CORPORATIONS – administration – creditor’s meeting – where administrators sought extension of convening period for second meeting of creditors – whether to grant extension to convene second meeting of creditors under Corporations Act 2001 (Cth) s 439A(6) – whether to adjourn winding up application.

CIVIL LAW – applications pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – appointment of psychiatrists

EQUITY - Succession - Will construction - Clauses which state that a legacy and residue are to go to the deceased’s son unless he “dies before attaining a vested interest” - Whether interest in property is vested - Meaning of “vest”

PROCEDURE - Vexatious Proceedings Act 2008 (NSW), ss 8(1)(a) and (b) - whether defendant has “frequently instituted or conducted vexatious proceedings in Australia” - whether defendant’s prior claims constitute “vexatious proceedings”, s 6 - discretion to make orders - defendant instituted and conducted vexatious proceedings frequently and over considerable period of time - orders granted PROCEDURE - “dual role” of Attorney General under s 8(4) Vexatious Proceedings Act 2008 (NSW) whether Attorney General should be precluded from seeking orders from which the NSW government would benefit - role analogous to any litigant under s 8(4)(d) - role of Attorney General to prevent unwarranted disruption to justice system EVIDENCE - admissibility - exclusion of evidence of judgments and convictions - Evidence Act 1995 (NSW), s 91 - whether judgments admissible as proof of facts in issue - Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 - Attorney General v Chan [2011] NSWSC 1315 - factual findings in judgment not capable of establishing existence of relevant facts for s 6 Vexatious Proceedings Act 2008 (NSW) - decision maker must make independent judgment on nature of prior proceedings - s 91 antithetical to object of Vexatious Proceedings Act 2008 (NSW)

MISLEADING OR DECEPTIVE CONDUCT – where plaintiffs purchased shares in racehorse – whether defendant made representations that the investment was safe and that it did not matter if the horse won a race or not because the bloodlines made it a valuable stud prospect. CONTRACT – where owners authorised the defendant to enter the horse in the Magic Millions auction – whether the defendant was authorised to sell the plaintiffs shares at a private sale without notice to the plaintiffs.

EQUITY – unconscionable conduct – guarantees and mortgages given by shareholders in support of debts of companies – whether special disability by reason of lack of involvement in management of companies and lack of knowledge or explanation of transactions – some of guarantees and mortgages executed under power of attorney – whether unconscionable of lender to enforce guarantees and mortgages BANKING AND FINANCE – unconscionable conduct in connection with financial services – guarantees and mortgages given by shareholders in support of debts of companies – whether conduct of lender unconscionable in circumstances due to lack of knowledge or explanation of transactions – some of guarantees and mortgages executed under power of attorney – Australian Securities and Investments Commission Act 2001 (Cth), s 12CB CONTRACTS – unjust contracts – guarantees and mortgages given by shareholders in support of debts of companies – whether contracts unjust in circumstances due to lack of knowledge or explanation of transactions – some of guarantees and mortgages executed under power of attorney – Contracts Review Act 1980 (NSW), ss 7,9

APPEAL – Costs – Stated case under s 5AE Criminal Appeal Act from Land and Environment Court of New South Wales – Principal proceedings initiated by appellant (the Environment Protection Authority) challenging rulings by that Court that Summons was duplicitous - Successful respondent sought costs of appeal and costs of proceedings in the Land and Environment Court - Respondent entitled to costs of appeal but costs of the proceedings below are in the discretion of the trial judge subject to the relevant statutory rules and not the Court of Criminal Appeal. APPEAL – Ancillary orders – The questions raised in the case stated having been answered by the Court of Criminal Appeal, an order remitting proceedings to the Land and Environment Court is not necessary – That court has sufficient trial management powers to resume proceedings after stated case resolved – However remittal order made in this case on the basis of agreement by both parties.

CRIMINAL LAW – appeal against sentence – offences of fraud and dishonesty and recruit a person to carry out a criminal activity – whether sentencing judge failed to apply discount for guilty plea – where discount referred to early in remarks and not repeated – mathematical precision not necessary when applying discount – no error – whether judge erred in application of general deterrence given applicant’ s mental condition – careful consideration given to mental condition – no error – whether error in failing to quantify discount for assistance to authorities – not mandatory under s 23 Crimes (Sentencing Procedure) Act that court apply discount on account of assistance – no error – appeal dismissed

APPEAL – nature of appeal under Crimes (High Risk Offenders) Act 2006 (NSW), s 22 – primary judge not satisfied that “adequate supervision” would not be provided by an extended supervision order – appellate review of evaluative judgment – necessity for State to show error of law or fact CRIMINAL LAW – high risk violent offender – primary judge made continuing supervision order, but refused to make a continuing detention order – appeal by State – nature of appeal – Crimes (High Risk Offenders) Act 2006 (NSW), ss 5E, 5F and 5G considered – whether primary judge erred in construing “adequate supervision” – whether failure to give primacy to legislative object – whether primary judge failed to conduct an evaluative judgment of unacceptable risk – whether no basis for finding that respondent would not re-offend suddenly and catastrophically within days of his supervised release - whether failure to give reasons – whether adverse inference available from offender’s failure to give evidence – whether failure to take into account mandatory relevant considerations – no error made out – appeal dismissed

SUCCESSION – family provision order – applicant claims a notional estate order from his mother’s estate – mother and applicant’s stepfather made mirror wills leaving their estates to each other and then to the applicant and four siblings equally – applicant has no immediate needs but claims that provision should have been made for his retirement – whether applicant should be precluded from claiming by reason of imprudent investment decisions – whether primary Judge erred in finding that there was little chance that the stepfather would change his will – whether primary Judge erred in rejecting the claim

PRACTICE AND PROCEDURE – dispute between owners corporation and builder – where defendant builder seeks to commence separate proceedings against the developer to rectify the contract pursuant to which the building was constructed – related application to amend list response in present proceedings to incorporate that defence – where it has been open to the defendant to agitate the question of rectification for three years – where substantial effort and expense has gone into the preparation of the case as currently pleaded – where a variation argument is in any event already provided for – consequence that it is not in the interests of justice to allow defendant the leave it seeks

PROCEEDS OF CRIME – forfeiture order – whether to proceed in absence of defendants’ personal appearance – proceeds of bank accounts – bank account balances reflect deposits structured in a way to avoid reporting under Anti-Money Laundering provisions – whether rights in respect of bank account proceeds of crime – application granted.

COSTS – departing from general rule that costs follow the event – application for family provision order – property transferred to claimant after commencement of proceedings – had transfer not occurred claimant would have succeeded in obtaining order for family provision – order that claimant pay costs of defendant incurred after the transfer

LEASES – claim by landlord under a sublease for vacant possession – where subleases over three warehouses contained options to renew – where defendant sublessees claim they exercised that option – failure to exercise option in writing as required by the contract – whether options exercised orally – absence of satisfactory evidence to that effect – where four principal witnesses found to be lacking in credibility – issues of fact to be determined on the probabilities regarded objectively – conclusion that options never exercised ESTOPPEL – whether plaintiff estopped from denying that options had been exercised or that new leases had been entered into – where that case depends upon uncorroborated and unreliable witness evidence – where in any circumstances no detriment – result that no estoppels arise

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – surrogacy – application for a parentage order and other related orders – whether parties satisfy requirements set out in Surrogacy Act 2010 (NSW) – child’s birth has not been registered in accordance with requirements of s 38 the Act – court finds exceptional circumstances allowing the court to make a parentage order without satisfaction of s 38 – finding does not create a general precedent regarding parentage orders – parentage orders sought made

COSTS – interpretation of costs order – where costs order entered against bankrupt after bankruptcy – where note to costs order that enforcement of order could only be made on application to the trustee in bankruptcy.

PROCEDURE – civil – security for costs – r42.21(1)(d) UCPR – s1335 Corporations Act – impecuniosity of plaintiff – conduct of defendant - delay

DEFAMATION – defences – defences of comment and honest opinion – adequacy of particulars as to truth of material identified as proper material for comment – relevance of timing of application

DEFAMATION – pleadings – defence of justification – striking out of particulars – whether particulars capable of sustaining defence of justification – whether particulars sufficiently put plaintiffs on notice of the case they are required to meet

CRIMINAL LAW – appeal – application under r 50C of the Criminal Appeal Rules – nature of the application – matters inappropriately raised under the rule – no error in principal judgment

Procedure – costs – s 98, Civil Procedure Act 2005 (NSW) – costs order against non-party – where plaintiff allegedly defamed in email sent from email address appearing to be defendant’s – where email in fact composed and sent by defendant’s husband –where plaintiff instructed solicitors to advise in relation to defamation proceedings – where plaintiff immediately saw email as work of defendant’s husband – where solicitors commenced defamation proceedings against defendant – where defendant denied publishing email – where plaintiff frequently sought advice from solicitors as to joining defendant’s husband – defendant’s husband not joined – where at trial defendant’s husband gave evidence he composed and sent email from email address appearing to be defendant’s – where trial judge found plaintiff failed to prove defendant published the email – where trial judge found defendant’s husband obvious alternative defendant – whether trial judge erred in exercising discretion to award non-party costs in ordering defendant’s husband to pay costs plaintiff was ordered to pay defendant and costs for which plaintiff liable to solicitors Procedure – costs order against non-party – principles for exercising discretion to award costs against non-party – relevant circumstances

COSTS - claim for damages for personal injury - wrongful rejection of expert evidence tendered by plaintiff (appellant) - judgment for defendant - new trial ordered - appellant entitled to costs of appeal - appeal against assessment of damages - assessment upheld - proportion of appeal time taken on unsuccessful appeal ground miniscule - where offer of compromise made by appellant and not accepted, Uniform Civil Procedure Rules 2005 (NSW) 20.26 - appellant’s award of damages contingent on outcome of retrial - costs awarded on an ordinary basis - decision on indemnity costs to await outcome of retrial COSTS - whether Court of Appeal should order costs of first trial - remit question of costs to second trial - erroneous rulings an ordinary hazard of litigation - costs of first trial to be at discretion of new trial judge COSTS - application for special costs orders - both parties achieved partial success - no order as to costs

PROCEDURE – judgments and orders – effect of judgments – where defendants ordered to pay plaintiffs’ costs – where plaintiffs allege that defendants have used company funds to pay defendants’ costs – whether further order can be made – held, fresh proceedings required.

CORPORATIONS – application for approval of calculation of a recovery charge – where recovery charge was an amount referable to the costs incurred by receivers and liquidators holding wine stock – where Supreme Court of New South Wales previously determined that a recovery charge was consistent with receivers’ and liquidators’ equitable lien – whether liquidators are justified in calculating the recovery charge in a specified amount.

CORPORATIONS – winding up – application to appoint liquidators as special purpose receivers of certain claims under s 283HB of the Corporations Act 2001 (Cth) – where appointment of receivers relates to rights and entitlements arising from proceedings in the Supreme Court of Victoria – whether to appoint liquidators as special purpose receivers and make other consequential orders.

CRIMINAL LAW – sentence – murder

CLASS ACTION – Hearing date vacated – no question of principle.

WILLS, PROBATE AND ADMINISTRATION – Executors – Review of Registrar’s moderation of fees executor paid to his solicitor out of estate – UCPR Pt 49 r 49.19 EQUITY – Whether arguable Barnes v Addy claim by beneficiaries against solicitor for fees paid by executor out of estate but subsequently disallowed on moderation – Whether proceedings against solicitor should be dismissed or stayed

Court of Disputed Returns – costs – leave granted to Petitioner to withdraw petition – power to order costs – interaction of sections 161(1)(ix) and 172 of Parliamentary Electorates and Elections Act 1912 – whether Petitioner who seeks leave to discontinue petition is “an unsuccessful party to the petition” for the purposes of s 172 – costs awarded against Petitioner – whether recommendation should be made that Crown pay any part of the costs awarded against the Petitioner.

EQUITY – claim for family provision – eligibility as de facto partner – eligibility due to close personal relationship – nature of plaintiff’s relationship with the deceased – equitable estoppel – whether statements were promissory or created expectations or assumptions on plaintiff’s part upon which deceased might anticipate that plaintiff would rely.

APPEAL – sentencing – manslaughter – use of comparable cases – relevance to determining manifest excess – whether concept of “available range” useful – whether cases not relied on before sentencing judge can be relied on for purposes of appeal CRIMINAL LAW – sentencing – manslaughter – reliance on violence as aggravating factor – whether violence an element of offence – possible double counting – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)

SENTENCE APPEAL – two offences of supplying a prohibited drug – pleas of guilty – MDMA and methylamphetamine – finding of drug trafficking “to a substantial degree” – strong subjective case – good prospects of rehabilitation – nevertheless custodial sentence inevitable – whether applicant’s strong subjective case properly taken into account – whether strong subjective case amounted to “exceptional circumstances” – whether sentence manifestly excessive – circumstances of offending required that effect be given to general deterrence – applicant’s strong subjective case did not amount to exceptional circumstances – proper exercise of sentencing discretion – appeal dismissed.

CONVICTION APPEAL – offences of murder and malicious wounding – whether verdict unreasonable and not supported by the evidence – need for the Court to make its own assessment of the sufficiency and quality of the evidence – assessment of witnesses essentially a jury question – open to jury to find beyond reasonable doubt that applicant guilty – whether direction as to circumstantial evidence misleading – whether direction as to how evidence of co-accused should be considered by the jury was adequate – no error disclosed – conviction appeal dismissed. SENTENCE APPEAL – whether applicant’s medical condition properly taken into account – whether applicant’s cognitive impairment properly taken into account – whether finding of special circumstances should have been made – whether sentence was manifestly excessive – grounds not made out – appeal dismissed.

APPEAL – criminal conviction – procedure – evidence of complainant child contained in two video recorded police interviews – inconsistencies in complainant’s evidence alleged – whether appropriate for appeal court to view video recordings – SKA v The Queen (2011) 243 CLR 400; SKA v R [2009] NSWCCA 186 considered APPEAL – criminal conviction – whether verdict unreasonable or cannot be supported on the evidence – whether appellate court entertained reasonable doubt – ability of jury to weigh complainant’s evidence and appellant’s denials CRIMINAL LAW – conviction appeal – sexual offences against a child – conviction on evidence of complainant child alone – evidence in chief constituted by two video recorded police interviews – victim cross-examined at trial – inconsistencies in complainant’s evidence given in the first and second interview alleged – failure to refer to alleged incidents in second interview – whether jury’s verdict unreasonable and not supported by evidence

CRIMINAL LAW – appeal against sentence – break, enter and steal offences – Form 1 offences taken into account – aggregate sentence imposed – whether the sentencing judge erred in concluding that the objective seriousness of the offences fell within the middle range – whether the sentencing judge misapplied the principles that are to be taken into account when sentencing by way of a Form 1 – whether the aggregate sentence is manifestly excessive – appeal allowed – applicant resentenced

CONTRACT – construction – construction of clause stating formula to be applied by expert in dispute resolution under commercial lease of vineyard APPEAL – civil – expert determination under dispute resolution clause – whether expert’s determination open to review by Court on the basis that the expert misconstrued the formula to be applied by him in making the determination

CORPORATIONS – voluntary administration – where appointment of provisional liquidator brought administration to an end – application for orders under (CTH) Corporations Act 2001, s 447A, that Pt 5.3A applies such that appointment of provisional liquidator did not operate to bring administration to an end – whether administration should be revived – whether unnecessary duplication of work should provisional liquidator take over – whether revival of administration preserves right of creditors to decide – whether administrators exposed to personal liability in liquidation – held, insufficient reasons to revive administration.

CORPORATIONS – creditor’s statutory demand — where the debt the subject of the statutory demand was a judgment debt – where applicants sought to provide evidence of grounds of appeal to substantiate application to set aside the demand – whether to set aside the demand pursuant to s 459J(1)(b) of the Corporations Act 2001 (Cth).

EQUITY - Corporations - Error perceived in reasons previously handed down - The position of parties who have filed submitting appearances - Whether a purchaser of property would be liable to meet liabilities in respect of Commercial Strata Management Scheme incurred by registered owner of property but subject to an unfulfilled condition precedent

INTERLOCUTORY ORDERS – application for leave to amend – where plaintiff admitted in its pleadings that a contract with the defendant had been formed from acceptance by conduct of a written offer – where it later sought to withdraw that admission and plead another mechanism of formation of the contract – application made after a four-day hearing – where defendant had no opportunity to muster evidence to meet the case sought to be put – where allowing the application so late in the day would not be just, quick or cheap – consequence of rejection of leave to withdraw the admission and to amend the pleadings

PROCEDURE – civil – pleadings – service – extension of time for service – substituted service

BUILDING AND CONSTRUCTION – whether payment claim was valid – whether two payment claims were made in respect of one reference date – whether adjudicator had jurisdiction to make determination – whether relief in the nature of certioriari should be denied on discretionary grounds – whether applicant for relief approbated and reprobated – whether respondent to adjudication application entitled to recover costs of preparing adjudication response; whether statements in a payment claim or adjudication application comprise representations – whether any such representations relied on; AUSTRALIAN CONSUMER LAW – misleading or deceptive conduct – whether statements in payment claim or adjudication application comprise representations which constitute misleading or deceptive conduct – whether any such representations relied on

NEGLIGENCE – Professional negligence - Misleading and deceptive conduct – Valuation of properties provided by first defendant and prepared by second defendant – Where plaintiff relied upon the valuation to advance funds to be secured by mortgage – Where default in the loan agreement – Where the valuation was outside the range which could properly have been arrived at by a competent valuer – Causes of action made out – Damages awarded in favour of the plaintiff

NEGLIGENCE – Professional negligence - Misleading and deceptive conduct – Valuation of property provided by first defendant and prepared by second defendant – Where plaintiff relied upon the valuation to advance funds to be secured by mortgage – Where default in the loan agreement – Where the valuation was outside the range which could properly have been arrived at by a competent valuer – Causes of action made out – Damages awarded in favour of the plaintiff

PRACTICE AND PROCEDURE – pleadings – defamation proceedings - application for leave to amend statement of claim - objections taken to form and capacity of proposed imputations – whether word “corruptly” makes proposed imputations bad in form

CONVEYANCING – Breach of contract for sale and remedies – Entitlement to deposit – Forfeiture to vendor – Termination of contract – Obligation of vendor to give vacant possession – Nature of vacant possession

PERSONAL INJURY – civil – carriage by air – carriers’ liability – Montreal Convention – whether the events constitute an “accident” - definition of “injury” – credibility of witnesses – demeanour of witnesses DAMAGES – general damages – whether pre-existing condition – use of expert evidence – rule in Watts v Rake

SUPPRESSION ORDER – Court heard proceedings in camera – interim orders made under s 10 of Court Suppression and Non-publication Orders Act 2010 – necessary to revisit orders once proceedings determined – final suppression order necessary to preserve process of mediation and confidentiality of settlement – interim order vacated – limited suppression order made.

COSTS – Calderbank letter – necessary to demonstrate refusal of offer unacceptable – no question of principle.