Cases and authorities

PROCEDURE – costs – departing from the general rule – order for costs on indemnity basis – offers of compromise – whether offer was invalid – whether offer was to operate as Calderbank offer – rejection of offer was unreasonable – orders sought made

PROCEDURE – costs – departing from the general rule – interest – interest up to – costs – final orders

SUCCESSION – wills, probate and administration – executor – judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) sought – judicial advice not given – summons amended as issues raised more apt for resolution by contested suit between interested parties based upon evidence SUCCESSION – wills, probate and administration – determination of burden of deceased’s debts owed to bank secured by some only of the properties owned by the deceased – deed of forbearance executed by NSW Trustee and Guardian with bank, on behalf of deceased – whether the deed of forbearance signifies contrary intention regarding debt repayments, pursuant to s 145 REAL PROPERTY – Torrens title – mortgages, charges and encumbrances – whether a charge was created by the deed of forbearance – charge only created by agreement that the creditor be paid out of an asset and will have a proprietary right in the asset to cause it or its value to be applied in reduction of debt – the deed was contingent and left the deceased with discretion in method of debt reduction – no charge created – NSW Trustee and Guardian did not retain proceeds of sale as a separate fund – however, if charge was created, it would bear the burden of deceased’s debt proportionally with the properties mortgaged to the bank – s 83 of the NSW Trustee and Guardian Act 2009 (NSW) would not affect this position

SUCCESSION – Wills, probate and administration – Construction and effect of testamentary dispositions – General principles for construction of a will – Will written in a foreign language – Whether it is open to the Court to receive expert evidence regarding the correct meaning of the will where an English translation is annexed to the Letters of Administration – Where better copy of the will made available to the Court during the course of the hearing

PRACTICE AND PROCEDURE – pleading of publication in a defamation case struck out for the second time and proceedings dismissed – application for leave to appeal – whether application involves any point of principle – no significant injustice as proceedings will continue against other defendants.

CRIMINAL LAW – bail – release application – applicant 14 years of age – charged with robbery offences – bail breached – risk not unacceptable – bail granted

PROCEDURE – costs – security for costs – where misstatement of plaintiff’s address in originating process – whether intention to mislead – whether security should be ordered against corporate plaintiff where there is a natural plaintiff within the jurisdiction.

EQUITY – equitable remedies – injunctions – injunction in aid of restraint of trade – whether evidence discloses breach of contractual restraint of trade – whether adverse inference to be drawn from refusal to give undertaking as to compliance with contractual restraint – held, case not sufficiently serious to warrant interim relief.

PROCEDURE – proceedings settled – whether there was an implied term of the settlement that the plaintiff would cooperate with the third defendant concerning the taxation implications of the settlement

CRIMINAL LAW – forensic patient – application for interim extension order – limiting term due to expire – preliminary hearing – whether unacceptable risk of causing serious harm to others if status as forensic patient ceases – whether risk can be adequately managed by less restrictive means – meaning of “high degree of probability” – interim extension order granted – one qualified psychiatrist and one registered psychologist appointed to examine defendant

INJUNCTIONS – Purported lease of business and land – Lessor had no title to assets of business – Whether ex parte injunction should be continued – Whether damages an adequate remedy

CONTRACT – large sums of money borrowed by defendant whilst being defrauded by a third party – whether it would be unconscionable for the plaintiff to receive payment of interest on each loan – whether relief under the Contracts Review Act 1980 (NSW) is available – whether payment of interest should be disallowed on the basis that it is an unlawful penalty REAL PROPERTY – possession of land – default under mortgage – whether mortgage should be enforced prior to payment of judgment debt

EQUITABLE COMPENSATION – where enquiry referred by consent to referee – whether Court imposed a restriction on the referee in respect of the date of the assessment – general rule in relation to assessment of equitable compensation for breach of fiduciary duty in selling and knowing receipt of shares at an undervalue – applicability of general rule in particular case. REFERENCE – nature of process – limit of challenge – whether referee’s report to the Court should be adopted.

TAXES AND DUTIES – payroll tax – exemption from payroll tax of employer superannuation contributions paid “in respect of services performed by an employee before 1 July 1996” under the Payroll Tax Act 2007 (NSW) Schedule 6, clause 4(1) and the Pay-Roll Tax Act 1971 (NSW) s 3AA(6A) – apportionment of contributions to a defined benefits scheme by reference to pre and post 1 July 1996 services – taxpayer paid contributions while the fund was in surplus – surplus was not used to reduce size of contributions – contributions paid at a higher “normal cost” level rather than an “adjusted normal cost“ level – whether contributions could be apportioned – whether CSR Ltd v Chief Commissioner of State Revenue [2006] NSWSC 1380; (2006) 68 NSWLR 440 was correctly decided that top-up contributions could be apportioned notwithstanding the fund was not in deficit as at 30 June 1996 – whether record-keeping requirements were met by the taxpayer where calculations of payments were not recorded contemporaneously with payments – held, allowing the appeal in part and remitting the matter to the Chief Commissioner: (1) CSR Ltd v Chief Commissioner of State Revenue was correctly decided; (2) the taxpayer was entitled to refunds in respect of top-up contributions and in respect of amounts paid in excess of the adjusted normal cost level; (3) the taxpayer did not prove that any part of the adjusted normal cost level contributions could be apportioned because a simple ratio of pre and post 1 July 1996 services could not be applied to these contributions

INSURANCE – duty of disclosure – concealment – waiver – fraudulent misrepresentation – claim by insured against insurer for damages – insured alleges that the insurer wrongfully repudiated two policies of insurance – whether insured’s answers to pre-contractual proposal form questions were knowingly false – whether insured’s answers breached his duty of disclosure – whether insurer waived compliance with the duty of disclosure – whether insurer was put on notice by a fair presentation of risk – held that: (1) the insured fraudulently misrepresented his medical history; (2) the insured fraudulently breached his duty of disclosure by failing to disclose his regular and extended use of strong opioid medication which were obtained from different doctors without advising any of them that he obtained medication from the others; (3) the insurer did not waive the duty of disclosure by failing to make further inquiries; (4) the insurer validly avoided the policies of insurance

BAIL – detention application – show cause offence – where respondent committed present offences whilst on parole – respondent accepted into residential rehabilitation program – respondent has appalling criminal record and history of poor compliance with bail and parole – failure to establish why detention not justified – application granted – bail refused

CRIMINAL LAW – appeal against sentence – three offences of aggravated sexual intercourse without consent – whether sentencing judge erred in failing to allow separate discount for voluntary disclosure of guilt – consideration of “Ellis discount” principles – ground upheld – applicant resentenced

APPEAL - conviction - attempt to possess a marketable quantity of a border controlled drug, cocaine - Criminal Code (Cth), s 11.1 and s 307.6 - whether trial judge left to the jury a factual basis for conviction different to that alleged by Crown - no change of direction in Crown case - ground based on a false premise APPEAL - conviction - whether verdict unreasonable and not supported by evidence - open to the jury to convict the appellant - appeal dismissed

CRIMINAL LAW – appeal against sentence – armed robbery – carried in conveyance – whether sentencing judge erred in approach to issue of mental illness – relevance of general deterrence – whether specific deterrence, prospects of rehabilitation, custodial conditions and protection of the community properly weighed – where applicant has extensive criminal history and drug and alcohol abuse issues – applicant from deprived and dysfunctional background – where rehabilitation important but applicant’s prospects poor – no error established in approach of sentencing judge CRIMINAL LAW - appeal against sentence – armed robbery – carried in conveyance – whether sentencing judge erred in principle in refusing deferral of sentence pursuant to s 11 Crimes (Sentencing Procedure Act) 1999 (NSW) – no error in principle – not an appropriate case for deferral of sentence CRIMINAL LAW – appeal against sentence - fresh evidence – new evidence – general principles – whether applicant can rely on material as fresh evidence - proper grounds not established – material only relevant in event of re-sentencing CRIMINAL LAW - appeal against sentence – armed robbery – carried in conveyance – whether sentence manifestly excessive – where applicant in company – where offence planned – applicant on parole and with extensive criminal history including offences of violence – sentence not unreasonable or unjust – lesser sentence not warranted

TRADE AND COMMERCE – Australian Consumer Law – conduct “in trade or commerce” – whether representations made on behalf of vendors to prospective purchasers of a residential property constituted conduct “in trade or commerce” – relevance of the fact of prior renovation of the property, with the intention to sell it at a profit TRADE AND COMMERCE – proportionate liability – whether Pt VIA of the Competition and Consumer Act 2010 (Cth) applies to a claim for damages caused by conduct done in contravention of a provision of the Australian Consumer Law other than s 18 TRADE AND COMMERCE – proportionate liability – definition of “concurrent wrongdoer”, s 87CB(3) – whether that term applies to a single act committed by two or more persons jointly TRADE AND COMMERCE – proportionate liability – apportionment, s 87CD(1) – whether that provision requires that the sum of the judgment sums against each of the concurrent wrongdoers not exceed 100 per cent DAMAGES – measure of damages – whether the market value of a property can be determined by reference to the cost of rectification of defects that involve breaches of statutory warranties WORDS AND PHRASES – “in trade or commerce” – Australian Consumer Law, ss 18, 30

MOTOR ACCIDENTS COMPENSATION – failure to commence proceedings for damages within three years of accident – requirement of leave – Motor Accidents Compensation Act 1999 (NSW), s 66(2) and s 109(3) – whether evidence established a “full and satisfactory” explanation for the delay – whether monetary threshold likely to be met – primary judge erred in concluding otherwise

CORPORATIONS – Winding up – Application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up

PROCEDURE – freezing orders – whether to grant freezing orders without exceptions for legal and living expenses.

PROCEDURE – medical examination – examination of non-party – power to make order under (NSW) Uniform Civil Procedure Rules 2005, r 23.4 – provision that costs of examination be covered by defendant.

EQUITY – equitable remedies – relief against forfeiture – relief under (NSW) Conveyancing Act 1919, s 129 – whether s 129 applies – where lease provides for termination upon appointment of administrator – whether appointment of administrator constituted breach of lease – held, s 129 applies – whether relief available – relevance of general law considerations to statutory power to grant relief – primary purpose of agreement – where provisions of lease designed to relieve lessor of insolvent tenant – where tenant able to meet payments – where tenant company no longer insolvent – where no damage sustained to lessor by breach of lease – where lessee would suffer loss of fit-out and establishment expenditure – whether grant of relief would resurrect non-party’s obligations as guarantor – whether lessee would be in breach of other obligations under lease upon reinstatement warranting forfeiture. CORPORATIONS – relief against forfeiture – orders preventing lessor from taking possession of premises under (CTH) Corporations Act 2001, s 444F – whether taking possession by lessor would have material adverse impact on deed of company administration – whether lessor’s interests can be adequately protected – lessor’s interests qua lessor under lease only relevant interests to be protected. PROCEDURE – costs – where relief against forfeiture granted – whether opposition to grant of relief necessary – where costs borne out of opposition to grant of relief – where relief also sought in relation to breaches to which lessor had no obligation to consent – held, no order as to costs.

PRACTICE AND PROCEDURE – application for referral for Court appointed legal assistance – interests of the administration of justice include potential burden on members of Pro Bono panel – application refused

PROCEDURE – judgments and orders – enforcement of judgments and orders – where proposed final orders to extend interlocutory orders are in substance a stay application – whether to extend or discharge interlocutory orders.

PROFESSIONAL NEGLIGENCE – medical negligence – three separate proceedings brought and maintained by plaintiff – application for relief – entry of judgment sought on issue of breach of duty – issues of breach of duty and causation – matter for consideration by trial Judge

WILLS, PROBATE AND ADMINISTRATION – application by consent for the making of a will for a person lacking testamentary capacity – where that person had previously made a will in 2011 – whether it is reasonably likely that the proposed will would have been made if the person had testamentary capacity – application dismissed, with the parties to bear their own costs

APPEAL – appeal pursuant to s 56 of Crimes (Appeal and Review) Act – Magistrate dismissed case following Prasad direction – denial of procedural fairness by not allowing prosecutor to make submissions opposing Prasad direction – appeal allowed

CONTRACT – construction of Heads of Agreement designed to resolve commercial dispute – one party purchased property from trustees for sale appointed as part of the resolution of an earlier dispute – contract of sale provided for the purchaser to pay interest if the sale was not completed on the Completion date – the trustees for sale parties to the Heads of Agreement – whether the Heads of Agreement modified the purchaser’s obligation to pay interest.

COSTS – gross sum costs order - parties involved in extensive history of litigation in relation to costs – whether gross sum costs order should be made pursuant to Civil Procedure Act 2005 (NSW), s 98(4)(c) – whether costs order should be inclusive of GST PROCEDURE – order for interest on costs pursuant to Civil Procedure Act 2005 (NSW), s 101 when gross sum costs order made – appropriate form of order

DEFAMATION – publication – mass media article – whether plaintiff entitled to discovery and interrogatories directed to establishing extent of republication on other platforms – likelihood of syndication

PROCEDURE – application to have proceedings dismissed for want of due despatch – where plaintiffs well on notice of importance of preventing further delay due to previous application – where further delay due to failure of solicitor to attend to simple administrative steps – further delay not due to any fault of the plaintiffs personally

CRIMINAL LAW – proceedings against a contemnor – charges brought by the Court – application to presiding judge to disqualify herself – allegation of actual and apprehended bias – tests to be applied

DEFAMATION – procedure – interrogatories – application of Practice Note (SC CL 4) – whether interrogatories necessary for the resolution of the real issues in dispute in the proceedings – interrogatories in the form approved in Assaf v Skalkos where identification of plaintiff not in issue – necessity to prevent surprise to counsel at trial not sufficient to meet test of necessity in practice note and UCPR

CIVIL – Mental Health Forensic Provisions Act 1990 (NSW) – application for interim extension order – forensic patient – limiting term due to expire – whether unacceptable risk of causing serious harm if status as forensic patient ceases – differences between forensic patients and involuntary patients – role of the Mental Health Review Tribunal – risk posed cannot be managed by less restrictive means – interim extension order granted – two qualified psychiatrists appointed to examine defendant

PROCEDURE – summary disposal – whether proceedings should be dismissed for want of due despatch pursuant to Uniform Civil Procedure Rules r 12.7

APPEAL – appeal from Local Court – question of law – whether Magistrate provided adequate reasons for decision – legal test applied – misuse of terminology – repudiation or rescission of contract

PROCEDURE – judgment and orders – enforcement – whether undertaking to “restore” funds released is available to enforce judgment

WILLS PROBATE AND ADMINISTRATION – Intestate succession – Administrator uncertain as to whether all siblings or children identified – Administrator seeks order giving liberty to distribute estate on particular basis – Benjamin order

DEFAMATION – pleadings – fourth application to amend – self-represented litigant – whether further amendment should be refused on grounds of number of prior applications – whether imputations capable of being conveyed

INJUNCTIONS – freezing orders – claim that first defendant has beneficial interest in property owned by third party – first defendant has no other assets of substance – property listed for sale at auction – order to restrain third party from dealing with net proceeds of sale

CRIME – accused’s first trial aborted on 55th day – trial continued against co-accused – co-accused convicted and sentenced to significant term of imprisonment – accused privately funded defence at first trial – trial aborted because of Crown’s failure to disclose email chain and circumstance revealed that Crown had access to documents held by the Australian Taxation Office but accused did not – Crown intends to proceed to second trial – application for a stay based on Dietrich v The Queen – application for stay pending the payment by the Crown of costs thrown away at first trial – Crown case complex – accused unable to represent himself – first trial aborted because of fault of the Crown – accused’s assets frozen in proceedings under the Proceeds of Crime Act 2002 (Cth) – accused’s funds exhausted – accused not properly pursued application for legal aid – Dietrich not satisfied – applicant’s circumstances and fault of the Crown justified stay pending payment of costs – form of order and quantification of costs HELD: Application for stay based on Dietrich refused. Application for stay pending payment by Crown of reasonable costs of first trial thrown away granted.

COSTS – indemnity costs – where offer of compromise made by plaintiff – where offer not accepted and judgment no less favourable to plaintiff – whether Court should “otherwise order” – whether reasonable opportunity for defendants to consider plaintiff’s case during period which offer was open – principal expert report served by plaintiff after time for acceptance of offer had expired – appropriate to “otherwise order” – no order for indemnity costs – order for costs on ordinary basis – COSTS – where partial success of defendant – whether reduction in costs to reflect defendant’s partial success – no reduction in costs

MOTOR ACCIDENTS – refusal by proper officer of Motor Accidents Authority to refer a medical dispute for further assessment – Motor Accidents Compensation Act s 62 – additional relevant information – decision in Singh v Motor Accidents Authority of NSW (No 2) doubted – whether information not in possession of party at time of assessment but available with exercise of reasonable diligence is “additional” information. HELD – information not in possession of party and MAS Assessor is additional – proceedings dismissed.

COMMERCIAL ARBITRATION – COSTS – indemnity costs – failed challenge to an arbitral award under Commercial Arbitration Act 2010 (Cth), s 34(2)(b)(ii) – whether there is a presumption in favour of indemnity costs absent exceptional circumstances - HELD – there is no such presumption – indemnity costs warranted anyway.

PROCEDURE – civil – limitation of actions – extension of time – application to determine limitation issues at final hearing – multiple plaintiffs with disabilities – whether separate hearing prejudicial to plaintiffs – whether in interests of justice to determine issues separately – defendant wiling to bear cost of evidence taken on commission – minimal prejudice to plaintiffs if separate hearings and evidence taken on commission – overriding purpose of the Civil Procedure Act furthered by separate determination of issues

PROTECTIVE JURISDICTION – Incapacity for self- management – Assessment - Financial management – Appointment of manager – Private manager – Terms of appointment – Provision for review of protected estate management orders MENTAL HEALTH – Guardians, committees, administrators, managers and receivers - Appointment – Management of estate– Relationship with common law compensation proceedings PRACTICE – NSW Trustee and Guardian Act – Protected estate manager – Relationship with common law compensation proceedings - Appointment of manager

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – referral for further medical assessment – application of s 62 Motor Accidents Compensation Act 1999 – additional information