Cases and authorities

CRIMINAL LAW – proceeds of crime – application for forfeiture under s 49 of the Proceeds of Crime Act 2002 (Cth) – whether the plaintiff has taken reasonable steps to notify the defendant of the proceedings – whether the matter should proceed ex parte

TORT – professional negligence – plaintiff purchased property from purportedly moribund vendor for reduced price - contract for sale permitted vendor to live in property as tenant until death or permanent vacation – tenant operated clandestine methylamphetamine laboratory on property – plaintiff required to remediate property – tenant refused to vacate – whether solicitor negligent for failure to include express term – whether alleged negligence caused or contributed to delay and expense in evicting tenant – whether plaintiff was contributorily negligent or failed to mitigate loss by failing to take urgent steps to evict tenant – no evidence to establish that solicitor was asked to include express term as alleged – solicitor not negligent – causation not established – apportionable claim - no loss attributable to solicitor LANDLORD AND TENANT – term implied by s 84 Conveyancing Act 1919 (NSW) CONTRACT – breach of retainer – Part 1 of Civil Liability Act 2005 (NSW) applies – apportionable claim – no breach of retainer

CRIMINAL LAW – evidence – hearsay evidence – witness examined by Crime Commission – witness overseas at trial – whether witness unavailable – whether reasonable steps taken to secure his attendance – steps first taken three days before trial due to commence – no explanation for delay – witness in Australia in weeks leading up to trial – whether probative value of evidence outweighed by unfair prejudice – tender of evidence rejected EVIDENCE – hearsay evidence – no notice given to rely on hearsay evidence – whether witness unavailable

CRIMINAL LAW - appeal against sentence - offender pleaded guilty to counts of sexual intercourse without consent and indecent assault - grounds of appeal conceded by Crown - whether inferences available to be drawn from statement of agreed facts - relevance of breach of trust by offender - Crown's concessions accepted by Court - offender resentenced

ADMINISTRATIVE LAW – Legal Profession Act 2004 (NSW), s 368(5) – where costs assessor certified assessment of party/party costs – where liability for costs order released by agreement – where costs assessor’s certificates filed in Local Court – where no amount of unpaid party/party costs at time of filing – whether Local Court had power to set aside judgment entered on filing of certificate, including under Uniform Civil Procedure Rules, r 36.15 or in exercise of implied power

PRACTICE AND PROCEDURE – application by consent for appointment of representative of deceased’s estate pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW)

COSTS – assessment – defendant successful overall but unsuccessful on some issues – whether costs order should reflect partial success – whether defendant has adduced sufficient evidence to warrant a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) – whether defendant should pay travel costs of a witness who was ultimately not required for cross-examination

REAL PROPERTY – application to stay execution of writ of possession – execution of writ stayed on previous occasions – no possibility of refinance – application refused EVIDENCE – whether documents tendered by defendant in Court were created dishonestly – whether defendant has attempted to pervert the course of justice – matter referred to authorities for proper consideration

PRACTICE AND PROCEDURE – application to set aside notice to produce and subpoena – whether too wide and oppressive – whether legitimate forensic purpose demonstrated – whether client legal privilege waived by recipient of subpoena

SUCCESSION – Intestacy – Rights of succession – Son and mother found dead at home some weeks after death – Whether uncertainty as to the order of their deaths – Degree of proof – Whether s 35 Conveyancing Act 1919 (NSW) is applicable – Whether evidence of survivorship – Balance of probabilities – Section 35 not applicable if evidence available from which court can be satisfied as to the order of deaths – Determination of questions in administration of estate

EQUITY – Trusts and trustees – Express trusts constituted inter vivos - Real property – Occupied land – Property held on trust - Right of residence given to a beneficiary by deed – Other trust land occupied by another beneficiary – Orders for winding up trust - Adjustment of rights as between beneficiaries

BAIL – release application – possession of a prohibited weapon without authorisation – perverting the course of justice – unacceptable risk test – unacceptable risk of interference with prosecution witness – unacceptable risk of potential serious offending – release application refused

JUDGMENTS – interest – money paid pursuant to court order set aside on appeal – whether interest payable on the amount to be repaid

EQUITY – trusts – trustees – breach of trust - construction of trust instrument – contract – construction - inconsistent clauses – whether a trust deed obliged the trustee to appoint a controller during the decision period WAIVER – whether appellant waived the respondent’s breach of trust EQUITY – trusts – contracts - construction – whether it was necessary for the appellant to establish negligence – whether the evidence demonstrated that the respondent was negligent in failing to appoint a controller – whether exception to liability was made out EQUITY – trusts – trustees – breach of trust – claim for breach of trust by beneficiary who is not the sole beneficiary of a trust – claim for breach of trust by a single beneficiary where a trust is subsisting with a number of beneficiaries EQUITY – trusts – trustees – breach of trust – contract – breach of contract - damages – equitable compensation - evidence of loss – whether appellant established causation and loss sufficient to warrant a quantification hearing EQUITY – trusts – trustees – breach of trust – contract - construction - where direction made in respect of voting for variation to a deed of company arrangement – whether trustee required to comply with the direction

DEFAMATION – pleadings – imputations – objections as to form – whether imputation ambiguous – whether imputations differ in substance

EVIDENCE – admissibility – discretion to exclude or limit the use of evidence – whether lay observational evidence adduced by plaintiff after cut-off date of “guillotine order” is evidence-in-chief or in reply – if in chief, whether leave should be given to adduce that evidence – whether defendants would be prejudiced if that evidence is admitted – whether use of evidence should be limited to exclude evidence of April 2015 storm event

CIVIL LAW - HIGH RISK SEX OFFENDER –applications pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) - preliminary hearing - application for preparation of mandatory expert reports - whether interim detention order or interim supervision order should be made - test to be applied

COSTS – vacation of hearing date by consent – whether costs should be reserved – whether costs should be costs in the cause

ADMINISTRATIVE LAW – Domestic tribunals – Whether Wednesbury unreasonableness applicable – Whether actual bias required - Whether reasonable apprehension of bias where Disciplinary Committee chairman moving force behind entire process

PROPERTY – bankruptcy – competing claims of ownership – whether property vested in trustee – possession – inference of ownership EVIDENCE – failure to call witness – whether Jones v Dunkel inference applicable EVIDENCE – witness – cross examination – rule in Browne v Dunn – whether failure to challenge evidence in cross-examination precluded reliance on contradictory claim – fairness – notice of alternative claim provided EVIDENCE – error of law – whether Magistrate relied on irrelevant material

PROCEDURE – proceedings against second defendant stayed as she is an undischarged bankrupt – leave to proceed against second defendant not obtained – second defendant sole director and shareholder of first defendant – first defendant could not retain legal representation – Silver Pinball Pty Ltd replacement trustee of Penshurst Property Trust – Silver Pinball joined as third defendant – first defendant’s cross claim dismissed – second defendant’s cross claim stayed DEEDS – cash loan made in favour of a person or persons associated with the first defendant – no written agreement – loan agreed to be repaid through joint venture property development – joint venture agreement between plaintiff, first defendant and a third party – deed executed provided that the plaintiff’s loan be repaid out of first defendant’s share of joint venture proceeds – proper construction of deed is that the first defendant is indebted to plaintiff and debt is to be paid from first defendant’s first available profit share – deed created an equitable charge over first defendant’s profit share – joint venture agreement and deed form part of the same transaction – obligation plaintiff undertook in joint venture agreement is consideration for first defendant’s promise in deed – Silver Pinball as trustee of the Penshurst Property Trust liable to repay loan and interest to plaintiff – plaintiff entitled to proceeds paid into this Court by prior interlocutory orders CONTRACTS – interim Federal Court orders required 25% of joint venture proceeds to be placed in a trust account – matter was settled – purpose of later 28 November 2013 agreement was in response to Federal Court proceedings – it did not vary earlier deed between plaintiff and first defendant – dealt only with the rights of parties under the joint venture agreement not plaintiff’s rights under the deed

CONTRACTS – general contractual principles – loan agreement – action to recovery money advanced by lender for the purpose of investing in agribusiness scheme – where borrower signed a power of attorney in favour of lender – whether money was advanced by the lender to the scheme on the borrower’s behalf – whether money advanced was paid in a way authorised by the loan agreement – whether loan agreement required money to be paid so that borrower would acquire a legal or equitable lease of the relevant land – where no legal or equitable lease was acquired RESTITUTION – restitution resulting from unenforceable, incomplete, illegal or void contracts – recovery of money paid or property transferred – where loan under which money was advanced was transferred to third party – whether loan transfer assigned right to recover money paid on basis of mistake

CRIMINAL LAW – Evidence – Where counsel for accused opened to jury raising good character of the accused – Where Crown sought leave to cross- examine the accused and lead evidence of bad character in reply – Where advance ruling sought – Whether evidence would unduly add to the length of the trial – Whether evidence important – Weight to be attached to the evidence – Whether unfair to the accused – Advance ruling made granting the Crown’s application for leave CRIMINAL LAW – Evidence – Where counsel for accused opened to jury raising good character of the accused – Where Crown sought leave to cross-examine the accused and lead evidence of bad character in reply - Where counsel for co-accused made application for leave to cross-examine on the same evidence – Where such application made independently of the application for leave made by the Crown – Whether evidence relevant and admissible – Advance ruling made refusing the application for leave WORDS AND PHRASES – “Unduly”

BAIL – variation application – offences of conspiracy to cause a benefit to be paid to a foreign public official – variation sought to permit applicants to travel to certain countries - where applicants have legitimate and established business interests overseas - Crown concession that relaxation of overseas travel restriction is appropriate – variation application granted

ARBITRATION – international commercial arbitration – enforcement of foreign award under the International Arbitration Act 1974 (Cth) s 8 – breach of rules of natural justice – severance – partial enforcement of award – whether part of the award was incapable of severance such that no part should be enforced

APPEAL – where plaintiff shot by police officer responding to home invasion – challenges to factual findings APPEAL – leave to raise claim not pleaded below – where claim raises additional factual and legal questions TORTS – trespass to the person – battery – whether liability of police officer precluded under common law by reason of honest belief based on reasonable grounds that force was necessary – TORTS – defences – self-defence at common law – correct test – role of proportionality TORTS – defences – self-defence pursuant to Civil Liability Act 2002 (NSW), s 52 – meaning of “unlawful” TORTS – defences – necessity – correct test TORTS – whether separate cause of action for damages for nervous shock pursuant to Johnson v The Commonwealth (1927) 27 SR (NSW) 133 STATUTORY INTERPRETATION – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), s 230 – meaning of “lawful” STATUTORY INTERPRETATION – extension of liability pursuant to Law Reform (Miscellaneous Provisions) Act 1944 (NSW) – meaning of “act, neglect or default” DAMAGES – general damages – test for appellate intervention – whether permissible to compare awards within single set of linked cases – exemplary damages – aggravated damages – damages for loss of wages

EQUITY – specific performance – deed of settlement – where first defendant has set-offs against plaintiffs’ claims – where deed of settlement may be amended to account for set-offs – whether enforcement of deed would require ongoing supervision of Court.

CORPORATIONS – winding up – liquidators – power of liquidator to enter into agreement with litigation funder – approval by Court under (CTH) Corporations Act 2001, s 477(2B) – whether agreement would unnecessarily and inappropriately protract liquidation – where liquidation likely to be protracted in any case – where relevant litigation already well-advanced – where agreement transfers risk to litigation funder – reflection of transfer of risk in liquidator’s remuneration – where Committee of Inspection unanimously rejected agreement – where notice of application for approval not given to Committee of Inspection – members of Committee given leave to apply to set aside Court’s order.

PROCEDURE – leave to adduce expert evidence in field not previously the subject of directions – where evidence not necessary – where adequate evidence may be alternatively obtained from experts already engaged in the proceedings – where timely directions not sought in relation to class of expert evidence – where trial impending.

DISABILITY – appointment of tutor – where alleged that defendant incapable of giving instructions in proceedings – where defendant has good understanding of the proceedings except for option of abandoning proceedings – inherent power of court to appoint tutor – held, not satisfied of necessity or desirability of appointing tutor.

REAL PROPERTY – possession of land – application to stay execution of writ of possession – defendant seeking special leave to appeal to High Court of Australia to set aside default judgment – grounds of appeal doomed to failure – no exceptional circumstances demonstrated – stay refused

PRACTICE AND PROCEDURE – application for continuation of ex parte injunction – dispute regarding appointment of trustee – continuation granted COSTS – question of costs unable to be properly adjudicated until substantive question has been resolved – whether costs should be reserved

PROCEDURE – civil – reliance on statement made by witness to New South Wales Trade and Investment Mine Safety Unit

CRIMINAL LAW – Practice and procedure – Jury trial – Necessity to ensure that there be no media publication of applications dealt with in the absence of the jury

DEFAMATION – pleadings – imputations – requirement of specificity

DEFAMATION – pleadings – imputations – requirement of specificity – permissibility of drawing an imputation from the terms of the matter complained of

ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – motor accident – challenge to validity of assessment and review decisions – whether application was brought within time – legislative scheme – whether assessors failed to give reasons – jurisdictional error – whether assessor failed to consider relevant material – proper officer’s alleged failures – decisions set aside – matter remitted

DEEDS – construction of clauses in Deed terminating commercial relationship – where obligation to return hard copies and delete electronic copies of documents – whether obligation to return documents created from copying parts of documents. CONFIDENTIAL INFORMATION – whether plaintiffs’ business manuals and other documents confidential – whether software and software manual confidential – whether confidential information copied and used by defendants in business competing with plaintiffs - whether instructions to computer consultant amounted to copying the plaintiffs’ software. DIRECTORS – duties owed to companies – where director of plaintiffs used plaintiffs’ documents and information to set up a business in competition with the plaintiffs whilst a director of the plaintiffs – whether breach of statutory and fiduciary duties.

CIVIL PROCEDURE – set aside subpoena – whether documents sought for a legitimate forensic purpose

CIVIL PROCEDURE – validity of credit agreement – application to file amended summons – security for costs – threshold issue – relevant considerations under UCPR 42.21(1A) – whether company incorporated in Singapore should be ordered to give security for costs

CIVIL PROCEDURE – possession of land - application to set aside default judgment – whether satisfactory explanation for delay – whether bona fide and arguable defence

APPLICATION FOR STAY – stay pending appeal – where judgment debtor may be at risk of liquidation – stay ordered with conditions

PROCEDURE – costs – security for costs – corporate impecuniosity – discretionary factors weighing against security for costs order – where plaintiff has strongly arguable case – whether plaintiff’s case is in truth defensive – existence of special relationship between plaintiff and defendant – whether order for security would stultify proceedings – where persons standing behind company unwilling, rather than unable, to contribute security – injustice of prosecuting proceedings on behalf of company when company unable to meet adverse costs order and shareholders shielded from liability.

EVIDENCE – application under the Evidence on Commission Act 1995 (NSW) – civil proceedings on foot in Republic of Korea – applicant seeking production of documents – leave to issue and serve subpoenas to produce – Registrar appointed as examiner

COSTS – whether plaintiff entitled to indemnity costs on the basis of a Calderbank offer – whether plaintiff entitled to indemnity costs for production of court book – plaintiff successful overall but unsuccessful in relation to one of two distinct bases of misconduct claim – whether plaintiff should be liable for travel costs of witness whose evidence predominantly related to basis upon which plaintiff was unsuccessful – whether costs order should reflect the defendant’s partial success in the proceedings

PROCEDURE – transcription error of answer given by defendant in cross-examination – error discovered and drawn to court’s attention after judgment delivered – erroneously recorded answer included as part of reasons in judgment but not determinative of the result – whether transcript should be amended - procedure to be adopted to reflect that amendment in judgment

PRACTICE AND PROCEDURE – application for leave to file cross-claim out of time – proposed cross-claim seeks relief against the plaintiff’s solicitors – application made almost three years after proceeding commenced – no satisfactory explanation given for the delay – at least two of the three proposed sets of claims are of dubious merit – further delays and expense would likely arise if leave were granted – application dismissed with costs

REAL PROPERTY – possession of land – application to stay execution of writ for possession – pending appeal to the New South Wales Court of Appeal – stay refused

CONTRACT – offer to settle litigation – time – where defendant made a ‘walk away’ offer, open for 28 days – where that offer accepted on 28th day – whether relevant that time of acceptance was later than time of offer – common law position on taking fractions of days into account CONTRACT – offer to settle litigation – counter-offers – where, before acceptance, plaintiff inquired of the defendant whether it might be able to get a better offer – whether that inquiry amounted to a counter-offer such that the initial offer was rejected CONTRACT – offer to settle litigation – where offer stated to be ‘on terms requiring each party to pay its own costs of the proceedings’ – whether the phrase ‘on terms’ incorporated an expectation that further terms were to be negotiated – where, after acceptance, defendant sought to require execution of a deed of release – where no mention of such a requirement in initial offer – usual expectation that a competent solicitor will specify in detail the terms on which an offer is made – result that a deed of release was not required

PROCEDURE – civil – application to amend statement of claim