Cases and authorities

CONTRACT – guarantee – offer – whether acceptance by conduct, namely the continued supply of goods – intention to be bound ESTOPPEL – promissory estoppel – representation –reasonableness of reliance by representee DEEDS – formal requirements – whether document intended to operate as a deed – conflicting indications – sealing – Conveyancing Act 1919 (NSW), s 38

SUPERANNUATION – change to superannuation deed to delete rule granting discretion to confer long service retirement benefits – consideration of power to amend trust deeds of regulated superannuation funds –whether rule change contrary to interests of members at general law – whether rule change in breach of the Superannuation Industry Supervision Act (Cth) 1993 – consideration of scope of superannuation fund trustees’ discretion – actuarial expert evidence. CONTRACT – consideration of principles of construction of superannuation fund deeds – consideration of duties of good faith in contracts of employment. EQUITY – equitable estoppel – where representation made that power of termination in employment contract would not be exercised without good cause – unconscionable conduct.

CRIMINAL LAW – sentence appeal – conspiracy to import a commercial quantity of a border controlled drug – whether failure to make proper allowance for applicant’s subjective case – appeal allowed – applicant re-sentenced.

CRIMINAL LAW – conviction appeal – sexual assault and sexual intercourse with a person under the age of 16 – applicant convicted of some offences but acquitted of others – whether the jury verdicts were inconsistent – a reasonable basis for the different verdicts established – no inconsistency – whether conviction verdicts unreasonable and incapable of being supported by the evidence – open to jury to be satisfied beyond reasonable doubt as to guilt – appeal dismissed.

CRIMINAL LAW – appeal – Crown appeal against sentence – unauthorised possession of firearms in aggravated circumstances – Firearms Act 1996 (NSW) s 51D(2) – whether sentence imposed manifestly inadequate – whether sentence imposed erroneously lenient in view of the maximum sentence and standard non-parole period for the offence – whether youth dominated matters relevant to sentence – residual discretion to dismiss Crown appeal not exercised

CRIMINAL LAW - Crown appeal - sentencing - Respondent pleaded guilty to one count of aggravated filming of a person engaged in a private act (s.91K(3) Crimes Act 1900) and three counts of aggravated indecent assault (s.61M(2) Crimes Act 1900) - victim eight year old girl - Respondent was supervisor at victim’s child care centre - all offences committed by Respondent against victim at child care centre over a six-month period - Respondents prior good character not a mitigating factor by operation of s.21A(5A) Crimes (Sentencing Procedure) Act 1999 - aggregate sentence of 16 months imposed with non-parole period of eight months - offending aggravated by Respondent’s position of trust and authority - aggregate sentence failed to reflect total criminality - sentence manifestly inadequate - residual discretion to resentence the Respondent exercised - appeal allowed - Respondent resentenced to aggregate head sentence of four years with non-parole period of two years and six months

CRIMINAL LAW – sentence appeal – error in having regard to non-conviction criminal record – parity principle – whether erroneous sentences imposed upon co-offenders give rise to a justified sense of grievance – whether intervention of appellate court is justified – question of proper reflection of objective and subjective criminality

CRIMINAL LAW – appeal against sentence – Muldrock error – application of principles on extension of time to appeal following High Court in Kentwell v The Queen – extension of time granted as reasons for delay explained and in the interests of justice – appeal dismissed as no lesser sentence warranted in law.

CORPORATIONS – application for leave under s 444E(3) of the Corporations Act 2001 (Cth) to bring appeal – where applicant’s only interest in outcome of appeal said to be to preserve a claim against the company for specific performance of an agreement to purchase and redevelop land – whether there is a sufficiently serious question to be tried in relation to that underlying claim to justify a grant of leave – leave refused

HIGHWAYS – car park used to pass from one street to another – whether car park a “public road” – whether owner council a “roads authority” – legislative history in relation to opening public roads in NSW area not a road under the common law – whether user sufficient basis to establish existence of public road under statute – whether the Roads Act 1993 (NSW), s 249 a separate test of what is a public road or evidentiary provision only – effect of the Conveyancing Act 1919 (NSW), 178 – Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 not followed NEGLIGENCE – customer injured in car park of shopping centre – whether council as owner of car park a “roads authority” protected from liability under the Civil Liability Act 2002 (NSW), s 45 REAL PROPERTY – Torrens title – indefeasibility of title – dispute whether car park a public road where certificate of title not relied on – inference that no disclosure of public road on the certificate of title – Real Property Act 1900 (NSW), s 46B STATUTORY INTERPRETATION – whether case law on the meaning of “public street” in the Motor Traffic Act 1989 (NSW) and “road” in the Traffic Act 1919 (WA) relevant to interpretation of “public road” under the Roads Act 1993 (NSW), s 249 WORDS AND PHRASES – “roads authority” – “public road”

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – application to prevent removal of child from plaintiff’s care – where allegations of mistreatment – where statutory obligation on department to remove child – whether Court can make orders inconsistent with statute – parens patriae jurisdiction – parens patriae power not capable of dispensing with statutory obligations – residual parens patriae power to remove child from Minister’s care in aid of statutory care responsibilities – held, Court has power to make child ward of Court – whether Court should exercise parens patriae jurisdiction – best interests of child – where removal would undermine child’s bonds with plaintiff – where need to protect child from risk of harm – where exercising jurisdiction would circumvent statutory child protection regime – held, Court should not exercise parens patriae jurisdiction. ADMINISTRATIVE LAW – judicial review – grounds of review – procedural fairness – whether rules of procedural fairness apply to decision of Children’s Guardian to impose interim bar on plaintiff’s performance of child-related work under (NSW) Child Protection (Working with Children) Act 2012 – where review mechanism specifically prescribed under Act through New South Wales Civil and Administrative Tribunal – held, decision not subject to rules of procedural fairness.

CRIMINAL LAW – Sentence – Conspiracy to import a precursor

PROPERTY – motion seeking immediate possession of property – evidence established that defendant failed to complete contract at designated time and place – plaintiff entitled to terminate contract – plaintiff entitled to possession of property

CRIMINAL LAW – ex parte - application for criminal assets restraining order

CIVIL LAW – applications pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – whether interim detention order should be made – interim detention order made

CIVIL LAW – applications pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – final extended supervision order sought for a period of 5 years – whether extended supervision order should be for a 5 year or 3 year term – whether there should be an employment condition – orders made

PRACTICE AND PROCEDURE – claim in negligence and breach of contract against defendant in Singapore – whether statement of claim should be set aside – whether Supreme Court of New South Wales is a clearly inappropriate forum for determination of the dispute – whether proceedings fall within schedule 6 of the Uniform Civil Procedure Rules 2005 (NSW)

CRIMINAL LAW – scope of power to re-open sentence proceedings to amend penalty – original order not “contrary to law” – Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 – application to set aside or quash order of Local Court – error of law – Crimes (Appeal and Review) Act 2001 (NSW), s 56 – Supreme Court Act 1970 (NSW), s 69 STATUTORY INTERPRETATION – “existing disqualification” – Road Transport (Driver Licensing) Act 1998 (NSW), s 25A – Road Transport Act 2013 (NSW), s 53 – whether automatic disqualification periods for multiple offences concurrent or cumulative

CONTRACT - performance - plaintiff lending institution - loan to company guaranteed by first and second defendants - third party guarantors - mortgage - where plaintiff seeks to enforce personal guarantees and rights under mortgage CIVIL LAW - whether plaintiff engaged in misleading and deceptive conduct, Competition and Consumer Act 2010 (Cth); Australian Securities and Investments Commission Act 2001 (Cth) - conduct not misleading or deceptive - claim against first defendant made out CONTRACT - obligation to explain purport and effect of transaction - Garcia v National Australia Bank Ltd [1998] HCA 48; 194 CLR 395 - third party guarantor not given competent, independent or objective advice - obligation of solicitor undertaking role of giving advice to third party guarantor - conflict of interest - lender aware of conflict of interest - lender complicit in inadequate advice being given - unconscionable to enforce guarantee against second defendant - unconscionable contracts are unjust and ought not be enforced, Contracts Review Act 1980 (NSW), s 9

PROCEDURE – funds paid into Court by plaintiff mortgagee – funds represent surplus proceeds after mortgagee sale of property – two applications for payment out of Court – two competing equitable interests in land – first notice of motion adjourned and second notice of motion heard – whether applicant entitled to funds on the basis of a charge over the property sold – registered proprietors of property not named as parties to deed – signed deed as directors/secretary – whether registered proprietors parties – proper construction of deed – registered proprietors parties to deed – guaranteed repayment by debtor – despite ambiguity, the deed allowed applicant to lodge a caveat over the property – deed allowed applicant to create a charge over property by lodgement of the caveat – the issue of priority between the two competing interests must be determined – hearing of both notices of motion to be relisted for balance of issues to be determined

CRIMINAL LAW - Crown appeals - sentencing - Respondent pleaded guilty to using a carriage service to access child pornography material (s.474.19(1)(a)(i) Criminal Code (Cth)), possession of child abuse material (s.91H(2) Crimes Act 1900 (NSW)) and possession of a prohibited weapon (s. 7(1) Weapons Prohibition Act 1988 (NSW)) - Respondent possessed more than 34,000 items of child abuse material - concurrent terms of 18 months’ imprisonment for each offence to be served by way of Intensive Correction Order - consideration of sentencing principles applicable to child pornography offences - importance of general deterrence and denunciation - failure to assess objective seriousness of the offending - failure to explain how the sentences were arrived at - failure to give principled consideration to questions of concurrency and accumulation - impermissible approach to the use of an Intensive Correction Order - sentences for child pornography offences manifestly inadequate - residual discretion to resentence the Respondent exercised - appeals allowed - Respondent sentenced to terms of fulltime imprisonment for child pornography offences - some accumulation appropriate as between State and Commonwealth child pornography offences

ORDERS – ENFORCEMENT – Where costs orders made in appeal in 2010 in which re-trial on limited issue ordered – where appeal from orders dismissed in High Court – where outcome of re-trial favourable to parties against whom costs orders were made – whether party in whose favour costs orders were made should be prohibited from enforcing them

MENTAL HEALTH – guardians, committees, administrators, managers and receivers – application for appointment as “guardian” – whether (NSW) Guardianship Act 1987 confers jurisdiction to appoint guardian over mentally ill adults – held, s 8 does not confer jurisdiction – parens patriae or inherent jurisdiction of Court to appoint “committee of person”.

REAL PROPERTY – Torrens title – caveats against dealings – application to extend caveats – where alleged interest in property under constructive trust by virtue of second defendant’s breach of fiduciary duties – strongly arguable case as to breach of fiduciary duties – whether present interest, while property in title of first defendant, caveatable – held, leave granted to lodge further caveats to take effect following transfer of property.

PROCEDURE – application to reopen plaintiffs’ case – where additional affidavit and exhibits sought to be adduced – where plaintiffs aware of existence and availability of additional evidence before hearing – where evidence relevant only in broad sense – where significant reformulation of plaintiffs’ case involved – where reopening hearing would open issues not explored at initial hearing – application not merely to remediate failure to adduce evidence at hearing – where evidence not sufficiently probative – held, leave to reopen refused.

BAIL – application to vary conditions – variation to allow applicant to attend mosque during Ramadan – application granted

PRACTICE AND PROCEDURE - suppression and non-publication orders – orders necessary to protect plaintiff’s safety – pseudonym order made - orders made for duration of plaintiff’s life

EVIDENCE – claim of legal professional privilege – investigation implemented by solicitors following incident at mine – privilege claim over investigation reports upheld – analysis of “diary note” of meeting with solicitors following incident and its privilege – privilege claim over diary note upheld

PROCEDURE – interlocutory injunction – whether serious question be tried that first and second defendants not entitled to call on performance bond issued by the third defendant in respect of the plaintiff’s performance under a sub-contract with the first and second defendants - whether balance of convenience favours granting interlocutory injunction

INFANT SETTLEMENT – no question of principle – settlement approved

BAIL – applicant charged with murder – show cause offence – assessment of strength of Crown case – applicant has terminal liver cancer – likely to die either before trial or shortly thereafter – cause shown – bail granted.

PRACTICE AND PROCEDURE - application for summary dismissal – no arguable cause of action disclosed – proceedings dismissed – alleged status of plaintiff as Messiah no exception to indefeasibility

EQUITY - trusts - where payment to a unitholder a pre-condition to payment to other potential objects upon vesting - breach of trust - where payment made by trustees to a third party out of trust assets to settle separate proceedings against the trustees personally for misapplication of trust assets - whether the unitholder consented to the payment out of trust assets - whether consent fully informed- knowing receipt - first limb of Barnes v Addy - whether the defendant who received trust property had knowledge of the breach of trust - whether the first defendant's knowledge is to be treated as the knowledge of the corporate defendants which received trust property - whether rescission necessary in a claim in personam for knowing receipt of trust property- release - whether a trustee who has agreed to pay out trust money to a third party in breach of trust for its own benefit can give an effective release to the third party recipient - whether successor trustees bound by deed of release granted by original trustees to a third party - where releases contained in two separate deeds - whether rescission of both deeds a precondition to relief - whether defences of laches, acquiescence and delay can be established

COSTS – plaintiff sought costs of successful appeal – s 60 Civil Procedure Act 2005 (NSW) not applicable to proceedings under Pt 5 Crimes (Appeal and Review) Act 2001 (NSW) – purpose of certificate under Suitors’ Fund Act 1951 (NSW) – conduct of defendant relevant to exercise of discretion – defendant’s application for certificate declined

LEGAL PRACTITIONERS – practising certificate – failure to disclose certain prior criminal convictions – whether prior convictions were adequately disclosed – whether solicitor considered a fit and proper person notwithstanding non-disclosure – imposition of practising certificate with strict conditions ADMINISTRATIVE LAW – hearing de novo – refusal of Law Society to grant practising certificate – where failure to provide full disclosure of prior convictions – whether prior convictions were adequately disclosed – whether solicitor considered a fit and proper person notwithstanding non-disclosure

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – validity of payment claim – whether a second payment claim served in respect of a reference date under contract – whether adjudicator denied procedural fairness to plaintiff

ADMINISTRATIVE LAW – judicial review – decision of member of the Consumer, Trader and Tenancy Tribunal – operation of CTTT Tribunal notice of hearing provisions – when proceedings may be held in absence of party

CONTRACTS – General contractual principles – Construction and interpretation of contracts – Construction of directors and officers insurance policy – Where coverage is sought for legal expenses arising from formal investigation – Whether cover available under insuring clause is available in respect of each insured person or in respect of all persons incurring legal expenses with respect to a formal investigation in the aggregate – Whether construction limiting insurer’s liability to aggregate of insured persons with respect to each formal investigation is uncommercial

CRIMINAL LAW – sentence – murder – where offender and deceased married but separated at time of death – where offender admitted the acts that killed the deceased – plea of guilty to manslaughter rejected by Crown – where self-defence and provocation only substantial issues at trial – death caused by stabbing in frenzied attack – absence of mitigating factors – no remorse or contrition – above the middle of the range of objective seriousness

CONTRACTS – breach admitted – failure to implement redemption request – causation – novus actus interveniens – whether failure to lodge a fresh redemption request broke the chain of causation – whether free and informed decision CONTRACTS – breach – mitigation – whether appellant acted unreasonably DAMAGES – assessment of damages – contract – where no actual loss suffered at date of breach – where loss suffered was prospective

NEGLIGENCE - vicarious liability of State - teacher injured at school - young pupil with history of disruptive behaviour - challenges to trial judge’s findings of breach and causation - where primary judge failed to address all relevant documentary evidence - findings of breach and causation set aside - errors in assessment of damages - proceedings remitted for retrial

PRIVATE INTERNATIONAL LAW – jurisdiction – service of originating process – where proceedings purportedly initiated by notice of motion when defendant in jurisdiction – where defendant was outside jurisdiction when proceedings properly commenced by statement of claim – whether exception to personal service by substituted service in Laurie v Carroll (1958) 98 CLR 310 applies –commencement by motion an irregularity – availability of substituted service under extraterritorial jurisdiction in (NSW) Uniform Civil Procedure Rules 2005, sch 6 – held, statement of claim taken to have been properly served; PROCEDURE – judgments and orders – default judgment – where it appears on statement of claim that plaintiff is entitled to a liquidated sum – where plaintiff claims greater amount as damages – plaintiff required to elect between default judgment for liquidated sum or default judgment for damages to be assessed.

CRIMINAL LAW – ex parte - application for criminal assets restraining order

CRIMINAL LAW – ex parte - application for criminal assets restraining order

CRIMINAL LAW – ex parte - application for criminal assets restraining order

Costs – stay of execution of judgment pending outcome of appeal – balance between plaintiff’s entitlement to damages and preservation of status quo – stay granted on condition defendants pay $25,000 to plaintiff

INJUNCTIONS – Injunction to restrain mortgagee’s power of sale – Application brought at last possible moment – Discretionary considerations militated against relief even if serious questions to be tried made out – Real Property Act 1900, s 57(2)(b) – Conveyancing Act 1919, s 92

PROCEDURE – applications by Third and Fourth Defendants for leave to file a new cross-claim and amended cross-claim – where cross-defendants opposed applications and sought better particulars – whether leave to file a new cross-claim and amended cross-claim PROCEDURE – costs – application by cross-defendants for security for costs against Third and Fourth Defendants – where security for costs application contingent on granting leave to file a new cross-claim and amended cross-claim – where claims not defensive in nature – where Third and Fourth Defendants are trustee companies and do not trade – whether to grant security for costs PROCEDURE – joinder – where Third and Fourth Defendants seek leave to join Plaintiffs’ solicitor as cross-defendant when proceedings substantially advanced toward hearing – where solicitor is investor in impugned project – where joinder would require the solicitor to withdraw under the Solicitor’s Rules – whether application to join inconsistent with overriding purpose under s 56 of the Civil Procedure Act 2005 (NSW)

APPEAL – appeal from decision of Local Court Magistrate pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW) – motor vehicle accident involving ambulance driver – whether Magistrate failed to determine the pleaded issues of negligence and contributory negligence – adequacy of reasons – whether Magistrate misinterpreted the Road Rules 2008 (NSW) – whether Magistrate made a finding of fact against the preponderance of evidence