Cases and authorities

CRIMINAL LAW – trial by judge alone – application out of time – whether leave should be granted – appearance of judge shopping – unedifying spectacle – no judge shopping in present case – leave granted – “interests of justice” – factors to be taken into account – whether the issue of intention requires the application of objective community standards – whether jury has advantage over judge in assessing issues of credibility – jury as “the lamp that shows that freedom lives” – prejudicial evidence – where accused required to introduce evidence to conduct his defence – whether direction to jury capable of curing prejudice – “judicial wishful thinking” – application granted

APPEAL FROM LOCAL COURT – dispute regarding payment of legal fees – costs agreement between solicitor and barrister – bills of costs – whether Magistrate made an error of law by misinterpreting the requirements of Pt 11 of the Legal Profession Act 1987 (NSW) – cross-appeal – whether Magistrate made an error of law in refusing to order interest up to commencement of proceedings in favour of the barrister

EQUITY - Equitable estoppel by encouragement alleged - Family relationship - Assertion that conversation with father, in about 1983, that Plaintiff son would effectively receive, by Will, one third of certain identified real property amounted to an irrevocable promise or assurance - Where that real property held jointly by father and mother - Alleged silence by mother who was present at time of alleged promise or assurance - Whether court satisfied that any promise or assurance to give property to son - Whether promise or assurance given by mother by silence - Whether son or company acted to his or its detriment in reasonable reliance on alleged promise or assurance - Whether detriment proved - Whether father and/or mother knew of alleged reliance by son or company - Whether any unconscionable conduct by father and/or mother - Revocability of alleged promise or assurance - Subsequent conduct of parties - Onus of proof on son to prove reliance - Son’s alleged reliance upon promise or assurance by both father and mother inconsistent with his and the company’s conduct, years later, and before death of father and mother - Relevance of such conduct - Whether estate of mother bound to give effect to alleged irrevocable promise or assurance TRUSTS - Common intention constructive trust - Whether elements necessary to be established proved EVIDENCE - Principles requiring caution when relying on uncorroborated statements said to have been made by deceased person - Father and mother both deceased prior to commencement of proceedings - Relevance of contemporaneous or near contemporaneous documents - Credibility of son’s evidence when events alleged to have taken place many years before claim made - Relevance of conduct of parents inconsistent with alleged promise or assurance that son and company relied upon FIDUCIARY DUTIES - alleged breach of director’s duties - whether the transfer of real property from company to Governing Director and wife, who was a director, made in breach of director’s duties - Memorandum of Association provided that assets could be used to benefit the company’s employees and their families - Wide powers of Governing Director - Sale of real estate by company to parents - Whether to knowledge of son, also a director of the company LIMITATION PERIOD - whether 6-year limitation period prescribed by the Limitation Act 1969 (NSW) and the Corporations Act 2001 (Cth) applies by analogy to equitable claim - Unnecessary to decide

CONTRACT - employment - termination - arising from takeover of employer by consortium - where employer’s redundancy policy required making of severance payments and of giving good faith consideration to making of bonus payments - whether redundancy policy expressly incorporated into contract of employment - effect of contractual term stating that employee is bound by a policy containing bilateral obligations - whether redundancy policy alternatively incorporated into contract of employment by course of dealing CONTRACT - deed of release - whether redundancy policy permitted requiring a deed of release as a precondition to making of severance or bonus payments - whether legitimate for deed of release to be unilateral and broad in its terms CONTRACT - unilateral contracts - whether representations that redundancy policy would remain in place amounted to a contractual offer - where no clear and unequivocal mode of acceptance of such offer - where no evidence of reliance on offer in any event - whether representations that new chief executive officer would be selected through a fair appointment process based on merit amounted to a contractual offer - representations not promissory in nature - where not shown in any event that the appointment process lacked fairness or transparency ESTOPPEL - estoppel by convention - whether parties conducted relations on a mutual understanding that redundancy procedures would be applied - requirements of detriment and unconscionability ESTOPPEL - promissory estoppel - whether employee was entitled to rely on statement by human resources staff that policies would be applied in a particular way - where employee knew that staff member did not have authority to bind the company - where detriment not proved

ADMINISTRATIVE LAW – judicial review – application for review of the decision of the District Court in its criminal jurisdiction on appeal from the Local Court – jurisdictional error – complaint of apprehended bias – where judge gave a “Parker warning” following which appeals were withdrawn – no ground for reasonable apprehension of bias established

COSTS – application for lump sum costs order – no evidentiary basis for exercising discretion to make order – application dismissed.

APPEAL – new trial – denial of procedural fairness – second trial of respondents’ proceedings seeking to set aside deed of loan and mortgage as unjust and unconscionable – court takes into account material not in evidence without notice to parties – whether substantial wrong or miscarriage of justice requiring new trial – EVIDENCE – failure to call respondents’ son for whose benefit monies advanced – whether appellant established conditions necessary for application of rule in Jones v Dunkel – determination of which party bore onus of calling missing witness – APPEAL – new trial – scope – what conditions court should impose for purposes of retrial – PROCEDURE – judgments and orders – power to reopen – error in material matter in determination of case – neither party at fault –

APPEAL – leave to appeal decision of Costs Assessor – application made five years after decision of Costs Assessor – no explanation for delay – summons commencing appeal dismissed – proceedings dismissed - whether costs on usual or indemnity basis – no question of principle

CIVIL PROCEDURE – motion for release of funds held in Court – proceeds of sale by first mortgagee of property – surplus proceeds of sale paid into Court – amount in Court less than amount due on second mortgage - allegation of forgery of second registered mortgage – allegation not maintained – adequate notice of proceedings given to former registered proprietor of property alleging forgery – no appearance from former registered proprietor – no other claimants on funds – funds paid out to applicant.

PROCEDURE - interlocutory issues - injunctions - where the New South Wales Civil and Administrative Tribunal (NCAT) had made a ‘procedural direction’ restraining landlord under a retail lease from locking tenant out of premises - where that direction or injunction was conditioned on the tenant paying the landlord a weekly sum - where payments made neither in full nor on time – NCAT proceedings transferred to Supreme Court - application by landlord to set aside the directions of NCAT - whether discrepancies in evidence sufficient to account for shortfall in repayments by tenant - whether retail lease agreement as varied provided any reason to deviate from the directions of NCAT - whether tenant should be allowed equitable relief against the consequences of its own failure to do equity

PROCEDURE – costs – general rule costs follow the event – multiple issues in complex proceedings – whether no order as to costs should be made – whether global costs order.

PROFESSIONS AND TRADES – lawyers – duties and liabilities – duty of loyalty – duty of confidentiality – whether duty of loyalty extended beyond termination of the retainer – whether risk of a breach of the duty of confidentiality. PROFESSIONS AND TRADES – lawyers – application under Court’s inherent jurisdiction to restrain solicitors from acting – where proceedings progressed significantly prior to application for restraint was brought – whether interests of justice now influenced by progression of proceedings – warranted declining to make order restraining solicitors from acting.

CORPORATIONS – voluntary administration – administrator – where administrators seek remuneration following administration – whether director sought to appoint administrators for improper purpose – whether administrators appointed in good faith CORPORATIONS – voluntary administration – administrator – where the companies were no longer in administration – whether s 449E of the Corporations Act 2001 (Cth) extends to former administrators

APPEALS - appeal confined to question of law - scope of appeal - no error of law in failing to address GST treatment of comparable sales where point not taken at trial STATUTORY CONSTRUCTION - primacy of legislative text - relevance of principles of planning law VALUATION - land value - unimproved value of fee-simple - highest and best use - s 6A(2) of Valuation of Land Act 1916 (NSW) - mandatory assumption as to existing uses and improvements - building exceeded maximum floor space ratio permitted under local environmental plan - actual use was highest and best use - whether s 6A(2) required regard to be had to maximum floor space permitted under local environmental plan or to actual floor space in building

DAMAGES – measurement of loss or damages – tax consequences of restructure – whether primary judge erred in the relevant comparison in determining loss – difference in tax consequences of restructure as implemented compared to structure that respondent would have pursued “but for” the negligent advice – difference between respondent’s financial position under the restructure and the “but for” scenario – benefit of restructure as implemented – whether benefit from paying dividends later under the restructure rather than earlier under the “but for” scenario is permanent or temporary – measurement of benefit – valuation of deduction in franking credits from franking account – whether primary judge erred in evaluating the loss to the respondent due to the forfeiture of franking credits INTEREST – recoverable pre-judgment interest – character of benefits of restructure and actual payments made on settlement due to negligent advice APPEAL – new point of appeal not relied upon at trial – whether appellant bound by conduct of case at trial

PRACTICE AND PROCEDURE – setting aside orders of trial judge – where orders allegedly made irregularly, illegally or against good faith – whether necessary for application to be made in separate proceedings – discretion to alter, vary or set aside orders under UCPR, r 36.16 – circumstances informing discretion – fresh evidence – where application would require re-opening of hearing – absence of explanation as to failure to adduce evidence at hearing – held, orders of trial judge not set aside.

CIVIL PROCEDURE – application to appoint tutor under UCPR, r 7.18(1)(a) – applicant seeks to appoint tutor for respondent – respondent a person under legal incapacity – no friends or family available to act as tutor – urgent proceedings unable to continue without appointment of tutor – President of the NSW Law Society requested to nominate an independent solicitor to act as tutor – who to bear cost of solicitor-tutor -- applicant to indemnify tutor for expenses and costs pending final orders – management of inherent conflicts of duty and interest of solicitor-tutor – Court’s supervisory jurisdiction over appointed tutors sufficient protection from such conflicts.

PRACTICE AND PROCEDURE – notice of motion – whether notice of motion finalised

LANDLORD AND TENANT – Rent – Commercial lease – Whether rent review by valuer made in accordance with contract – Whether express contractual definition of “Fitout Work” includes “fitout” – Directions to parties if rent review set aside

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (the Act) – s 25(4)(b) of the Act requires a person who commences proceedings to have a judgment based on an adjudication certificate set aside to pay into Court as security the unpaid portion of the adjudicated amount – where a person commences proceedings seeking to challenge an adjudication where there is no judgment – whether an order should be made requiring the person to pay money into Court – approach to be taken HELD: In the present circumstances the amount should be paid into Court pending the challenge

CORPORATIONS – Membership, rights and remedies – Members’ remedies and internal disputes – Management and administration – Meetings – Meetings of members – Proceedings at meeting – Voting – Company limited by guarantee – Registered club – Registered Clubs Act 1976 NSW, s 41J – Corporations Act 2001 Cth, s 1322

PROCEDURE – appeal from a decision of Associate Judge pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 49.4 – where default judgment entered against defendants set aside pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 36.16(2) – appeals challenging exercise of discretion – whether Associate Judge acted on a wrong principle – whether proposed defence invoking s 12GM of the ASIC Act available to a person other than the recipient of the financial services PROCEDURE – pleadings – where leave sought to amend defence – new legal argument based on same facts

CONTRACT – agency – no relationship of agency between lender or manager and mortgage originator – originator acting on its own behalf when filling out loan application for borrower and including false statements of borrower’s income and employment – borrower authorised lender to pay funds to originator’s sole director – lender not liable for alleged misappropriation CONTRACT – Contracts Review Act 1980 (NSW) – no basis for relief made out in pleading – importance of pleadings and particulars to inform lender of case it has to meet – cross-claim statute-barred in any event – relief under Act intended to be used as a shield not a sword – subs 16(c) of the Contracts Review Act UNCONSCIONABLE CONDUCT – requirement of moral obloquy not present – lender unaware of dishonest conduct by mortgage originator

COSTS - indemnity costs - Calderbank letters - whether an offer to walk away amounts to a genuine offer to compromise - whether non-acceptance was unreasonable - relevance of whether evidence had been served - where plaintiffs indicated willingness to agree to offer, then changed their minds - whether court should draw inferences as to why they changed their minds - where, even without the benefit of hindsight, the plaintiffs’ case was very weak - whether indemnity costs should run from the date of offer or the date of expiry.

CRIMINAL LAW – appeal – appeal under s 5F Criminal Appeal Act – where complainant found to be vulnerable person – whether decision of District Court judge that evidence of complainant be given by pre-recorded interview pursuant to Ch 6 Pt 6 Criminal Procedure Act an interlocutory judgment or order per s 5F(3) – not a ruling on the admissibility of evidence – where ruling lacks finality – not an interlocutory judgment or order – appeal incompetent

APPEAL – general principles – appeal from summary dismissal – interlocutory decision - requirement of leave to appeal – incompetency COSTS – general rule that costs follow the event

PRACTICE – slip rule – application to vary judgment to include copies of documents supplied by appellant – application refused

PROCEDURE – request for referral to solicitor or barrister on the Pro Bono Panel – Uniform Civil Procedure Rules 2005 (NSW), r 7.36

COSTS – indemnity costs – effects of offers of compromise – whether offer including “costs as agreed or assessed” complies with UCPR, r 20.26 – whether offer of compromise was genuine – whether refusal of offer was reasonable – whether order other than as provided for by UCPR, r 42.14 should be made COSTS – indemnity costs – whether offer that is not compliant with UCPR, r 20.26 can have effect as Calderbank offer – where party making non-compliant offer seeks exercise of discretion to order indemnity costs pursuant to Civil Procedure Act 2005, s 98 and UCPR, r 42.2

TORTS – negligence – duty of care – the respondent was employed by a road maintenance and repair subcontractor of the appellant – the respondent was injured as a result of a direction given by an employee of the appellant – whether the primary judge erred in finding that the appellant owed a duty of care to the respondent – whether the primary judge erred in finding that the appellant was negligent TORTS – negligence – causation – whether the primary judge erred in finding that the appellant’s negligence was a cause of the respondent’s injury TORTS – negligence – whether the primary judge erred in the apportionment of responsibility between the principal/appellant and the subcontractor employer

CORPORATIONS – creditor’s statutory demand – setting aside creditor’s statutory demand – grounds for application confined to those raised by s 459G application – whether genuine dispute as to the existence or amount of debt – where review proceedings before NSW Civil and Administrative Tribunal settled reducing applicant’s indebtedness – held, statutory demand to be varied to reflect reduced indebtedness.

CORPORATIONS – winding up – winding up in insolvency – failure to comply with creditor’s statutory demand – application for substitution – where existence of debt is disputed – onus of demonstrating status of debt on application for substitution – whether applicant has standing as creditor – effect of (NSW) Building and Construction Industry Security of Payment Act 1999 on status of debt – whether debt arising from unanswered payment claim may be disputed – if not, when such debt arises.

CIVIL PROCEDURE – settlement of proceedings applying for release of body from NSW State Coroner’s Office and arrangements for burial – settlement occasioned on day of hearing – application for award of costs of proceedings – whether plaintiff acted so unreasonably that the other party should obtain the costs of the action – miscommunications between parties prior to and during proceedings – degree of miscommunication to be expected so shortly after deceased’s death – costs likely to be incurred in the proceedings by time of alleged unreasonable conduct – no costs order made – short minutes of order made as to declaration of senior next of kin under Coroners Act 2009 and funeral arrangements.

TORTS – detinue – where plaintiffs’ cars towed to defendant repairer’s premises following motor vehicle accident – whether repairer can exercise lien over cars or otherwise withhold them pending payment of towing and storage fees claimed by repairer – assessment of damages in detinue

EQUITY – undue influence – whether deed discharging debts owed by son to elderly (now deceased) mother procured by undue influence of son and daughter in law – whether actual undue influence based on alleged misrepresentations – whether presumed undue influence based on a special relationship of influence, dominion or ascendency

SUCCESSION – family provision order – application by de facto wife of testator SUCCESSION – family provision order – importance of freedom of testamentary disposition SUCCESSION – family provision order – factors to be taken into account when making family provision order – appropriate order

CRIMINAL LAW – Crown appeal – interlocutory judgment - exclusion of tendency evidence – right of appeal; whether – error demonstrated; whether - appeal upheld

CRIMINAL LAW – leave to appeal - appeal – against interlocutory decision refusing application for separate trials – leave granted – appeal dismissed

CRIMINAL LAW – appeal against sentence – specially aggravated break, enter and steal and commit serious indictable offence – whether sentence manifestly excessive – whether sentencing judge made erroneous finding of offending in worst category

ADMINISTRATIVE LAW – judicial review – appeal to District Court from decision of Consumer, Trader and Tenancy Tribunal – decision on a question with respect to a matter of law – whether the district Court erred in law in identifying error on part of Tribunal – whether failure by Tribunal to use precise statutory language demonstrated error of law – whether District Court exceeded jurisdiction in making findings of fact – Consumer, Trader and Tenancy Act 2001 (NSW), s 67 APPEAL – decision on a question with respect to a matter of law – whether party bearing onus can rely on ‘no evidence’ ground - Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 applied INSURANCE – comprehensive motor vehicle policy – insured’s duty of disclosure – whether insurer clearly informed insured about general nature and the effect of duty before contract entered into – whether obtaining signed insurance proposal sufficient compliance by insurer – whether insurer able to rely on alleged non-disclosure to avoid liability under policy WORDS AND PHRASES – “matter relevant to the decision of the insurer” – “clearly inform” – Insurance Contracts Act 1984 (Cth), ss 21, 21A and 22

COSTS – general rule that costs follow the event – whether there should be departure from general rule

TORTS – employer negligence – “work injury claim” under Motor Accidents Compensation Act 1999 (NSW) – whether primary judge erred in finding no negligence by employer – whether failed to take account of objective evidence – whether erred in his findings as to credibility – no question of general principle

ADMINISTRATIVE LAW – judicial review – Local Court grants application for apprehended personal violence order – defendant unsuccessful in appeal to District Court – function of District Court on appeal by way of rehearing from making apprehended personal violence order – ADMINISTRATIVE LAW – judicial review – jurisdictional error – whether District Court misapprehended scope of jurisdiction – whether District Court determined whether statutory preconditions for making apprehended personal violence order were satisfied – ADMINISTRATIVE LAW – judicial review – jurisdictional error – whether Court of Appeal can review judgments of both District and Local Courts –

PRACTICE AND PROCEDURE – orders under Vexatious Proceedings Act 2008 (NSW) – primary judge made “blanket” order against applicant – errors in assessment whether vexatious proceedings had been frequently instituted conceded by Attorney – narrower order made – consideration of definition of “vexatious proceedings”

COSTS – Indemnity costs – Offer of compromise – UCPR r 20.26 – Reasonableness of rejection – Where respondent achieved better outcome than offer of compromise COSTS – Party to party – Ordinary basis – Where respondent unsuccessful on main issue on appeal but partially successful on other issues COSTS – Appeal costs – Suitor’s fund – Suitor’s Fund Act 1951 (NSW) s 6(1) – Where respondent unsuccessful on cross-appeal on the issue also the subject of the appellant’s successful appeal – Where erroneous decision of primary judge is made in context where the respondent persuaded the primary judge to act on a basis for decision overturned on appeal – Where respondent’s fabricated complaint formed the basis for civil proceedings – Where respondent defended the claim at trial on evidence found to be inherently untrue – Certificate refused PROCEDURE – Where funds paid into District Court by respondents until further order – Where proceedings determined in District Court and on appeal – Where potential dispute as to ownership of funds paid into court – Whether proceedings to be remitted to District Court – No such order necessary

EVIDENCE – subpoenae – objection to production of documents the subject of subpoenae – notes of solicitor-client-administrator meeting – legal professional privilege – waiver – where administrator’s notes already disclosed – relevance – where issue as to administrator’s independence – costs agreements – whether costs agreements subject to legal professional privilege – whether costs agreements relevant to proceedings.

COSTS – reasonableness of application for interlocutory relief – where application required to be made due to respondent’s refusal to comply with notice to produce – held, costs to be paid by respondent.

PROCEDURE – notice to produce – where failure to comply with notice to produce – where allegedly no documents to be produced – where objectively unlikely that there are no such documents.

PROCEDURE – notices to produce and subpoenae – setting aside notices to produce and subpoenae – relevance.