Cases and authorities

ADJOURNMENT – personal plaintiff obtained ex parte injunction restraining landlords from entering premises – alleged injunction obtained by presentation of fabricated letter – personal plaintiff seeks adjournment to obtain legal advice – serious accusation – adjournment granted but injunction dissolved.

EQUITY - Securities - Personal property securities - Personal property securities register - Amendment demand pursuant to s 178 of the Personal Property Securities Act 2009

SUCCESSION – PRACTICE & PROCEDURE – Claim for family provision order by son of the deceased – No grant of Probate sought by Defendant the named executrix and sole beneficiary of the deceased’s estate – Application for summary dismissal by Defendant – UCPR rule 13.4 – Whether there is any property that arguably could form part of the estate or notional estate of the deceased – If not, whether the proceedings are frivolous or vexatious – No assertion made by Plaintiff and supported by evidence that real property of which Defendant is, currently, and was for many decades, the registered proprietor, held by her in whole or in part on trust for the deceased – Other property held by company which was deregistered about two years prior to death of the deceased with negligible assets – Plaintiff unable to point to bases upon which any property held by the Defendant may be designated as the estate or notional estate of the deceased

CIVIL – settlement between parties outside of court – finalisation

EQUITY – funds misappropriated by defendant employee from plaintiff employer – whether particular funds used for plaintiff’s benefit; REMEDIES – whether plaintiff entitled to trace misappropriated monies into funds in court – whether funds in court should be paid out to plaintiff or to competing creditors of the defendant – whether defendant entitled to a credit in respect of GST input credits

DAMAGES – general principles – difficulty of assessing damages – where limited evidence as to damages. DAMAGES – measure and remoteness of damages in actions for breach of contract – orders made as to quantification of damages. DAMAGES – general principles – incidence of taxation as affecting damages – where plaintiff claimed tax gross-up on damages – where plaintiff received disability pension as only source of income – where no expert evidence led in support of this aspect of the claim – whether damages should be grossed-up to account for tax.

COSTS – whether there should be a departure from the usual rule that costs follow the event – costs ordered under the usual basis - certificate sought – Suitors' Fund Act 1951 – whether judicial review proceedings involved an “appeal” as defined in s 2 of the Suitors’ Fund Act – whether medical assessor or proper officer are a “court” under s 6 of the Suitors’ Fund Act – no power to issue certificate under s 6

APPEAL – leave to appeal against a costs order – NCAT decision – jurisdiction – appeal does not raise a question of law – costs – leave to appeal is refused

CONTRACT – Construction and interpretation - Implied agreement to negotiate lease in good faith – Whether term to negotiate in good faith can be implied into otherwise unenforceable agreement EQUITY – Equitable estoppel – Negotiation for lease between commercial parties – Whether estoppel available when all essential terms of legal relationship not agreed INTELLECTUAL PROPERTY – Confidential information – Compensation for improperly obtained list of future bookings of function centre

INSURANCE – fire and business interruption insurance – losses and claims – insurance policy – s 21 Insurance Contracts Act 1984 (Cth) – non-disclosure – brothel and escort agency – premises damaged by fire – insurer would not have insured if it was disclosed that sole director and manager were members of the Comancheros – insurer would not have insured if it was disclosed that business registration had lapsed – fraud not established – Jones v Dunkel inference – s 28 Insurance Contracts Act 1984 (Cth) – ability to reduce liability to nil EVIDENCE – admissibility and relevancy – opinion evidence – expert evidence – conduct of outlaw motorcycle gangs as a matter of common knowledge EVIDENCE – witnesses – application to call late evidence – application granted – reliability and credibility of evidence

PRIVATE INTERNATIONAL LAW – enforcement of foreign judgment – where plaintiff obtained judgment in the Court of First Instance in the Netherlands Antilles – where defendant exhausted all avenues of appeal available in that jurisdiction – common law enforcement of that judgment in New South Wales – requirement at common law that the primary judgment be for a sum certain in money – dispute between parties as to whether judgment interest calculable on a simple or compound basis – whether permissible to go behind the judgment to the background factual matrix to illuminate the basis of interest calculation contemplated by the judgment – where so to do would be to undo the final and conclusive nature of the primary judgment upon which common law enforcement depends – where the judgment itself makes no provision for compound interest – irrelevance of other considerations – result that simple interest only to be awarded

CRIMINAL LAW – SENTENCE – gangland violence – home invasion – multiple shooting offences – gun crime – contract killing –murder – whether most extreme case – whether maximum penalty appropriate – duress – assistance to authorities – subjective case – alienation – marginalised offender – tragic personal history – Taliban – oppression of Tajiks – impact of deprivation on moral culpability – impact of deprivation on general deterrence – aggregate sentence – victim impact statements – no application under relevant provision – commencement date where parole revoked – special circumstances

ADMINISTRATIVE LAW – appeal – finding of unsatisfactory conduct by Veterinary Practitioners Board of NSW – whether Civil and Administrative Tribunal required to find veterinarian guilty of “professional misconduct” – decision to set aside Board’s decision ‑ requirement that Tribunal take course set out in s 63(3) of the Administrative Decisions Review Act 1997 (NSW)

PROCEDURE – civil – proceeds of crime – application for stay of proceedings under the Proceeds of Crime Act 2002 (Cth) – concurrent criminal proceedings – orders requiring the provision of financial statements – whether accused is required to assist prosecution by providing statements – balancing objects of the Act against the Court’s obligation to maintain the legitimacy of the administration of criminal justice

CRIMINAL LAW – bail – release application – whether applicant is an unacceptable risk if released from custody – strength of Crown case – seriousness of offending and protection of community important considerations – need to balance those considerations against personal matters affecting applicant – unacceptable risk found to exist – release application refused.

CRIMINAL LAW – appeal against sentence – whether sentencing judge erred in applying principle of totality – concurrency or accumulation – manifest excess

CRIMINAL LAW – appeal – orders for production – legitimate forensic purpose – whether it is “on the cards” that documents will materially assist case – fresh evidence – Crown’s duty of disclosure – witness reward – public interest immunity PROCEDURE – application that trial judge recuse himself – whether apprehension of bias

CRIMINAL LAW – appeal against conviction – eight convictions for sexual offences – whether the convictions are unreasonable or unable to be supported by the evidence – whether the evidence given by the complainant at a subsequent trial amounts to fresh evidence – whether the convictions should be quashed and verdicts of acquittal entered

TORTS – negligence – where appellant injured jumping off 10 metre diving platform – whether occupier of pool owed duty of care to supervise and instruct individuals using platform – whether primary judge erred in finding as to instruction given – whether warning of risk of injury in using platform was given in accordance with s 5M of the Civil Liability Act 2002 (NSW) – whether that risk warning contradicted by instructions given by lifeguard – whether appellant’s injuries were suffered as a result of materialisation of an obvious risk of dangerous recreational activity within s 5L of the Civil Liability Act 2002 (NSW)

INSURANCE – whether vehicle stolen – trial judge not satisfied on balance of probabilities that vehicle stolen INSURANCE – Insurance Contracts Act 1984 (Cth) s 56 – dishonest intent to induce false belief in insurer for purpose of obtaining benefit INSURANCE – Insurance Contracts Act 1984 (Cth), s 56 – specific finding of fraud required PRACTICE AND PROCEDURE – pleadings – fraud to be clearly particularised – UCPR, r 14.14 PRACTICE AND PROCEDURE – where probabilities equal PROCEDURAL FAIRNESS – allegation of fraud – party to be fairly confronted with allegation of fraud

REAL PROPERTY - Torrens title - Powers of Court - s 138 Real Property Act 1900 (NSW) - Whether proceedings were proceedings for “recovery” of interest in land - whether certificate of title had not been or not likely to be produced - Order for issue of new certificate of title

PROCEDURE – costs – principal judgment found in favour of the defendant – defendant submits that the plaintiff should personally bear both parties’ costs – despite outcome of principal judgment, the plaintiff’s position was properly arguable – whether proceedings have been instituted for the plaintiff’s personal benefit rather than to properly administer the estate – plaintiff acted on the basis of legal advice of two senior counsel – held that the plaintiff acted properly as executor – order that both parties’ costs be paid out of the estate on the indemnity basis

FAMILY LAW AND CHILD WELFARE - exercise of parens patriae jurisdiction – where orders in place for parental responsibility and secure accommodation - continued availability of jurisdiction where child soon to attain 18 years of age but is not capable of managing her affairs - importance of ability to detain and restrain child to ensure proper care - where guardianship order does not include powers to detain and restrain - where guardianship order does not provide adequate safety net as alternative to parental responsibility and secured accommodation orders - unwillingness to discharge Court orders upon child's attaining 18 years of age until satisfied appropriate replacement orders in place.

PROCEDURE – case-management – failure to comply with directions for filing evidence – inadequate explanation for delay – evidence crucial to case on cross-claim – where prejudice to Plaintiff could be met – leave given to rely on evidence

COSTS – indemnity costs – where appropriate – whether exceptional circumstances – where adverse credit findings made – where proceedings conducted on false basis

EQUITY – trusts and trustees – plaintiff and defendant engaged to be married and purchased first property as joint tenants and joint mortgagors in 2005 – plaintiff paid deposit, stamp duty, conveyancing fees, all mortgage repayments and repaid mortgage debt – parties’ relationship ended – plaintiff claims defendant orally agreed to hold her interest in the property on trust for him – whether an express trust arose – no oral agreement as alleged – express trust not established – whether resulting trust arose in favour of plaintiff –whether presumption of advancement because first property purchased in contemplation of marriage – first property not purchased in contemplation of marriage – defendant did not rebut presumption of resulting trust – defendant held her joint interest in first property on trust for plaintiff EQUITY – trusts and trustees – plaintiff and defendant engaged to be married and plaintiff purchased second property in 2007 in sole name of defendant – purchase price paid by plaintiff – parties’ relationship ended – plaintiff claims defendant orally agreed to hold her interest in the property on trust for him – whether an express trust arose – no oral agreement as alleged – express trust not established – defendant claims that property was a gift – whether resulting trust arose in favour of plaintiff – whether presumption of advancement because second property purchased in contemplation of marriage – second property not purchased in contemplation of marriage – defendant bears onus of proving plaintiff’s intention at the time of purchase that she would hold beneficial ownership of the property– intention is the objective manifest intention of plaintiff – defendant successfully rebutted presumption of resulting trust – defendant not trustee of second property for plaintiff CONTRACTS – agreement entered into in 2011 that plaintiff relinquish all claims against second property, repay all debts associated with it, and that defendant transfer her joint interest in first property to plaintiff – plaintiff subsequently sold and received net proceeds of sale of first property – whether defendant acted in breach of trust in entering into agreement – whether defendant acted unconscionably in taking advantage of plaintiff’s desperate financial circumstances in entering into agreement – defendant held interest in first property but not second property on trust for plaintiff – defendant did not take illegitimate advantage of the situation or act unconscionably – effect of agreement was that defendant kept the property gifted to her and plaintiff obtained the interest which defendant held on trust for plaintiff – parties understood that both parties had rights to apply for orders for redistribution of property rights following the end of a de facto relationship pursuant to the Property (Relationships) Act 1984 (NSW) – 2011 agreement a compromise of parties’ rights under that Act – 2011 agreement not vitiated by any breach of trust or unconscionable conduct by the defendant – defendant provided consideration to support 2011 agreement – 2011 agreement enforceable – plaintiff obliged not to challenge defendant’s beneficial ownership of second property – plaintiff obliged to repay mortgage on second property

PROCEDURE – application for temporary stay of sentence proceedings – where judicial review proceedings pending in Court of Appeal – where applicant’s prospects of success are poor – where sentence already deferred for over a year - no proper basis established for grant of stay – application refused PROCEDURE – application for temporary stay of sentence proceedings – where applicant proposes to appeal against conviction but notice of appeal yet to be filed – unusual for conviction appeal to be heard prior to sentence – where sentence already deferred for over a year – no proper basis established for grant of stay – application refused PROCEDURE – application for expedition of judicial review proceedings – refusal by sentencing judge to recuse – reasonable apprehension of bias or prejudice – no arguable basis shown for reasonable apprehension of bias or prejudice – expedition application refused

DAMAGES – contract – whether promisee had an accrued right to payment in the future following termination for promisor’s repudiation – promisee’s right to payment in the future contingent upon his further performance of executory obligations – no unconditional right to payment vested as at date of termination – whether payment obligations survived termination – payment obligations not intended to survive termination – loss of bargain damages – absence of claim for wrongful dismissal does not preclude claim for damages for loss of bargain following termination PROCEDURE – pleadings – whether claim for loss of bargain damages pleaded – loss of bargain damages necessary and immediate consequence of claim for damages for breach where it is alleged that termination is in response to anticipatory breach CORPORATIONS – leave to proceed against company in liquidation – whether company under creditor’s voluntary winding up when deregistered is re-instated in same form – no order made that form of winding up upon reinstatement to differ from that before the company was deregistered

CORPORATIONS – voluntary administration – administrators – appointment of administrators by secured party – (CTH) Corporations Act 2001, s 436C – where validity of appointment dubious – where no order sought declaring appointment invalid but parties seek order that administration end under s 447A – relevance of company’s solvency where appointment made by several creditors – application under s 447D for confirmation that administrator was justified in accepting appointment and bringing proceedings – s 447D not appropriate to approve past acts of administrators – lack of necessity for such direction – held, administrations to end.

CIVIL LAW – orders relating to high risk violent offenders – extended supervision orders – conditions of extended supervision order – where extended supervision order is not opposed on terms sought

PRACTICE AND PROCEDURE – Application for adjournment – Where proceedings brought by three plaintiffs – Where one plaintiff appeared before the court seeking an adjournment of the hearing of the notice of motion – Where medical certificates tendered in support of application – Where certificates stated that all three plaintiffs were unable to attend court – Where remaining two plaintiffs were present in the Registry and refused to enter Court – Unsatisfactory medical evidence – Application refused PRACTICE AND PROCEDURE – Application to dismiss proceedings on the basis of no reasonable cause of action being disclosed – Alternative application to strike out pleadings – Where plaintiffs pleaded a case in negligence – Where but for one matter no pleading was made that the actions of the defendant were in bad faith – Where defendant entitled to statutory immunity – Where proceedings in respect of the majority of the causes of action brought by the plaintiffs dismissed – Where pleading in relation to one remaining cause of action struck out – Plaintiffs given an opportunity to re-plead their case in relation to that one cause of action

PROCEEDS OF CRIME – restraining order – orders pressed made

CRIMINAL LAW - pretrial ruling - admissibility of evidence - female genital mutilation (FGM) - persons charged with mutilating clitoris of child contrary to s.45(1)(a) Crimes Act 1900 - Crown seek to adduce expert opinion evidence concerning FGM in Dawoodi Bohra community - evidence held relevant under s.55 Evidence Act 1995 - defence objection to evidence of Crown witness - held witness has specialised knowledge based on training, study or experience - opinion evidence admissible under s.79 Evidence Act 1995 - whether evidence ought be excluded under s. 137 Evidence Act 1995 - evidence has probative value - no danger of unfair prejudice - evidence not excluded under s.137 - evidence admissible

PROCEDURE – costs – the defendants’ amended notice of motion seeking the plaintiff’s statement of claim be set aside was dismissed – however, plaintiff accepted it had misconceived part of his claims and accordingly amended his statement of claim – the court held that each party enjoyed an equal measure of success – each party to bear their own costs

CIVIL LAW – orders relating to high risk violent offenders – application for continuing detention order – application for extended supervision order – where extended supervision order is not opposed – whether extended supervision order would provide adequate supervision – factors relevant to exercise of discretion to order continuing detention

STRATA TITLE – application by lot owner to bring derivative action at general law on behalf of owners corporation – exceptions to rule in Foss v Harbottle – whether owners corporation acted ultra vires in making payment of legal fees from sinking fund – whether in the interests of justice that the plaintiff bring a derivative action – whether payment by lot owner to owners corporation appropriated to debt in respect of sinking fund levies – principles of appropriations of debts.

ADMINISTRATIVE LAW – judicial review – motor accident – referral of medical dispute – whether attendant care services was treatment provided under s 58 Motor Accidents Compensation Act 1999 (NSW) – jurisdiction of Medical Assessment Service STATUTORY INTERPRETATION – s 58(1)(a) and (b) Motor Accidents Compensation Act 1999 (NSW) – “treatment” – application of Kelly v the Queen WORDS & PHRASES – “treatment” – “attendant care services”

LEGAL PRACTITIONERS – application to remove name of practitioner from roll of persons admitted as lawyers – where practitioner pleaded guilty to 16 criminal charges in relation to dealings with nine clients over a three year period – where practitioner misappropriated clients’ funds, including funds in his practice trust account – where practitioner consents to relief sought – declaration that practitioner engaged in professional misconduct and not a fit and proper person to remain on roll

CORPORATIONS – insolvent trading – pleading – necessity to plead date of insolvency and date when debt incurred – presumption of insolvency under (CTH) Corporations Act 2001, s 588E(4) – failure to keep financial records under s 286 – bare assertion of liquidator insufficient to found presumption – proof of actual insolvency – whether claims for damages for disclaimed lease constitute “debts” – whether debt to Department of Employment in respect of claims of company’s former employees satisfied under FEG Scheme recoverable – whether Department is assignee of employees’ claims for purposes of s 588M(1)(b) – assessment of loss or damage suffered by creditor – credit to be given for probable dividend.

APPEAL – application for leave to withdraw representation – where plaintiff was unwilling or unable to properly instruct solicitors and counsel

PROCEDURE – interlocutory injunctions – where final relief sought determination of correct shareholder and director of companies – where interlocutory relief sought to restrain purported current director and shareholder of companies from restricting access to plaintiff to bank accounts of the companies – whether balance of convenience warrants grant of interlocutory relief.

PROFESSIONAL NEGLIGENCE – medical negligence - alleged failure to diagnose type 2 diabetes – alleged failure to diagnose acute cholecystitis – alleged failure to carry out cholecystectomy – breach of duty of care – causation - damages

PROCEDURE – subpoenae and notices to produce – application to set aside notice to produce – where documents sought pertain to issues no longer pressed by plaintiffs –applicability of principles from Anshun v Port of Melbourne Authority Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 to interlocutory applications –court’s discretion – where there has been a narrowing of issues in dispute – where situations created by plaintiff’s change of position of the earlier unsuccessful application – held, upholding second application inimical to administration of justice.

ASSET PRESERVATION ORDER – ex parte – no question of principle.

APPEAL – withdrawal of plaintiff’s legal representation – application by defence for summary dismissal

WILLS – construction – benefaction to newly ordained priests of Roman Catholic Church – identification of beneficiaries

CIVIL PROCEDURE – application for preliminary discovery – potential claim for interest under Insurance Contracts Act 1984 (Cth) s 57 – where insurer has paid insured under TPD life insurance policy – what evidence may assist in determining entitlement to a s 57 claim – whether or not the insured is unable to obtain sufficient information to decide whether to commence proceedings against the insurer – whether the insurer’s file will assist the insured to decide whether to commence proceedings

EQUITY – equitable remedies – plaintiff claims his father (the defendant) represented that he would devise to the plaintiff a property if the plaintiff helped construct a house on the property – the defendant/father disputed that he made to his son the representations alleged – whether the representations were made – whether the plaintiff relied on the alleged representations – whether the plaintiff suffered any detriment in reliance on the promises – HELD – representations were not made and were not relied upon.