Cases and authorities

TORTS – negligence – scope and breach of duty – motor vehicle accident – the first respondent was driving a prime mover with trailer attached, on which was a container loaded with heavy coils – the appellant manufactured the coils and produced guidelines for their secure loading by the second respondent – the appellant began manufacturing coils with an extra timber runner, which affected their method of secure loading, without informing the second respondent – whether the appellant breached its duty to the first respondent TORTS – negligence – causation – whether the accident was caused by the excessive speed of the first respondent – whether the primary judge erred in failing to make a finding as to the speed at which the vehicle was travelling at the time of the accident

LANDLORD AND TENANT - residential tenancy agreement - public housing - tenant convicted and sentenced to a term of two years and three months imprisonment - after eight months landlord serves a notice of termination of the agreement on the ground that the tenant had ceased “personally to occupy” the premises - whether Appeal Panel erred in holding that the tenant breached the residential tenancy agreement by ceasing personally to occupy the premises

COSTS – Calderbank offer – whether offer to consent to dismissal of notice of motion with no order as to costs a substantial compromise – whether different costs order warranted by reason of appellants succeeding on points not run at first instance

ADMINISTRATIVE LAW – judicial review – whether the primary judge erred in construing and applying the Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 19, in making an apprehended personal violence order – whether the primary judge misconceived the object of the Act – whether the primary judge failed to provide adequate reasons

PROCEDURE – civil – adjournment, application for – seeking further expert evidence

CORPORATIONS – winding up – stay of winding up – where stay sought to prevent deregistration by ASIC and permit appointment of special purpose liquidator – inappropriateness of appointing special purpose liquidator – inappropriateness of stay. CORPORATIONS – extend administration – winding up – production of company books – Corporations Act, s 486 – where order sought against former company director – held, power to order production applies only to books in possession of liquidator

CORPORATIONS – winding up – liquidators – liquidators’ remuneration – application for order fixing liquidators’ remuneration – appropriateness of quantum – source of court’s power to fix liquidators’ remuneration – where creditors have fixed remuneration – held, (Cth) Corporations Act 2001, s 504, more appropriate

CORPORATIONS – winding up – winding up in insolvency where no application to set aside creditor’s statutory demand – where statutory demand fails to specify correct address for service of creditor – whether failure invalidates statutory demand – where other options for service available – held, not invalid – where defence founded on purported “affidavit/commercial lien” – held, spurious legal nonsense

PRACTICE AND PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – whether proposed settlement is in the interests of the plaintiff

PRACTICE AND PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – whether proposed settlement is in the interests of the plaintiff

CRIMINAL LAW - importation of commercial and marketable quantities of border controlled drugs and precursors - indictment containing five charges - whether evidence relevant to counts 1, 2, 3 and 5 properly admitted as tendency or coincidence evidence with respect to count 4 - whether evidence significantly probative - relevance of dissimilarities - whether open to trial judge to deal with coincidence rule and tendency rule together CRIMINAL LAW - importation of commercial and marketable quantities of border controlled drugs - meaning of "import" in s 300.2 of the Criminal Code 1995 (Cth) - "import" defined to include "deal with the substance in connection with its importation" - commercial quantity of heroin imported in container and held by freight forwarders in Sydney - whether inquiries made by appellant as to fees payable in order to release goods sufficient to amount to dealing - whether inquiries together with assertions of ownership sufficient to amount to dealing

EVIDENCE – admissibility – hearsay evidence – civil proceedings if maker available – whether document made by witness tendered after witness has given evidence is admissible EVIDENCE – admissibility – judicial discretion to exclude evidence – probative value

Motor Accidents Compensation Act – admission of liability under s 81 – affect – inability to amend or withdraw – whether prevents later denial of indemnity – exemption from administrative process

MEETINGS - public meetings and assemblies - unlawful assembly - application for order under s 25 Summary Offences Act 1988 (NSW) – application granted

PROCEDURE – Claim for family provision order – Proceedings out of time – Procedure under rules of Court – Summary Disposal – Want of due despatch – No steps taken by Plaintiff following Notice of Ceasing to Act filed by his solicitors – Plaintiff unable to be located despite numerous searches – Estate likely to be insolvent or near insolvent after payment of debts funeral and testamentary expenses – Uniform Civil Procedure Rules 2005 (NSW), rule 12.7(1) – Judgment and orders

BANKING – Standby Letters of Credit - International Chamber of Commerce Publication Number 590 - International Standby Practices (ISP98) – proper construction of rules 1.09 and 3.13 which provide for extension of date for timely presentation where the last day for presentation is not a business day of the issuer or nominated person – where the letters of credit contain a further definition of business day – which definition applies to extension of date – meaning of the expression banks open for general business in Singapore and Australia – where letters of credit require declaration that amount is due and payable and delivery of drafts – whether drafts can be dated on a date later than delivery – meaning of due and payable – construction of underlying agreement – determination of whether amount is due and payable

CONTRACT – General contractual principles – Compromise agreement – Consent orders – Application to set aside – Neither agreement nor orders attended by irregularity, illegality or bad faith – No unconscionable conduct – No unjust contract – Fully informed consent given to agreement and orders – Application dismissed. JUDGMENTS AND ORDERS – Consent orders – Application to set aside – Orders not attended by irregularity, illegality or bad faith – Application dismissed. PRACTICE – Procedure – Judgments and orders – Amending, varying and setting aside – Consent orders – Compromise agreement – Civil Procedure Act 2005 NSW, s 73 – Uniform Civil Procedure Rules 2005 NSW, r 36.15(1).

PROCEDURE – civil – interlocutory issues – application by plaintiff for leave to reopen its case to admit additional evidence – prejudice to defendants opposing application in circumstances where new evidence will make fundamental changes to basis of plaintiff’s case – evidence that plaintiff unable to compensate defendant for costs of responding to new evidence if plaintiff ordered to do so – no explanation for failure to tender evidence at earlier stage

PRACTICE and Procedure – Application for adjournment of hearing – no issue of principle

EVIDENCE – admissibility – privilege – client legal privilege over document created by witness – whether privilege has been waived

EVIDENCE – admissibility – privilege – client legal privilege over document created by witness – whether privilege has been waived

EQUITY - interests - equitable mortgage over real property arising from guarantee - where property is owned by joint tenants - where only one joint tenant was a guarantor - validity of a caveat lodged by the equitable mortgagee against the legal interest of that joint tenant only - whether nature of interest properly described - whether balance of convenience favours extending the caveat - effect of section 211 of the Duties Act on quantum of the mortgage

PROCEDURE –– new solicitor for defendants instructed and notice of appearance filed day before hearing –– adjournment application –– former solicitors did not file notice of appearance –– costs thrown away –– costs ordered as specified gross sum under Civil Procedure Act 2005 (NSW), s 98(4) –– costs payable into court. SUCCESSION –– representation of deceased –– named executor had not applied for probate when these proceedings commenced on behalf of estate –– executor seeks orders under Uniform Civil Procedure Rules 2005 (NSW), r 7.10(1)(b), to represent estate while applying for probate.

CRIMINAL LAW – practice and procedure – juror absent for two days due to illness – whether juror should be discharged

CRIMINAL LAW – particular offences – offences against the person – murder – trial by judge alone – consideration of the affirmative defence of mental illness – accused did physical act – accused suffering from disease of the mind that led to a defect of reason – accused did not appreciate the moral wrongfulness of his act – verdict not guilty on the ground of mental illness

CLASS ACTIONS - discovery - whether should be ordered if might lead to disproportionate costs being incurred. CLASS ACTIONS – class closure orders – whether claimants who do not register should be removed from class – differentiation between overseas passengers and crew and Australian passengers and crew. CLASS ACTIONS – whether potential class members should be ordered to provide basic particulars of loss – mediation – need to facilitate. CLASS ACTIONS – defective Opt Out Notice – need to reissue.

PROCEDURE – civil – judgments and orders – application to set aside consent orders that owners corporation indemnify plaintiff lot owners in proceedings and pay costs of defendants in those proceedings – where second defendant appointed as strata managing agent under Strata Schemes Management Act 1996 (NSW), s 162 with all powers of executive committee of owners corporation – where executive committee resolutions appointing legal representative and instructing it to sign consent orders on behalf of owners corporation invalid because only second defendant as strata managing agent had authority to exercise functions of executive committee – rule in Harvey v Phillips – UCPR, r 36.16(2)(b) – where appearance of owners corporation ineffective at hearing during which consent orders were made because legal representatives for owners corporation had no valid retainer

CRIMINAL LAW – sentencing – appeal against sentence – whether sentence manifestly excessive – whether principle of accumulation and totality correctly applied CRIMINAL LAW – sentencing – appeal against sentence – whether maximum two year sentence in the Local Court a limit on the maximum prescribed sentence CRIMINAL LAW – sentencing – appeal against sentence – leniency – whether delay in prosecution caused by offender entitles to leniency – whether an earlier conviction for a later in time offence can diminish leniency

CRIMINAL LAW - conviction appeal – murder – jury direction – whether direction on alternative manslaughter verdict misleading – failure to expressly identify all circumstances in which manslaughter available – whether miscarriage of justice when part of direction complained of viewed in context CRIMINAL LAW – conviction appeal – whether conviction unreasonable or not supported by evidence – evidence that use of gun taken to the scene contemplated by participant – gun discharged in course of attack CRIMINAL LAW – sentencing – appeal against sentence – joint criminal enterprise murder - whether the judge err in accepting equal culpability of participants – whether the appellant less culpable than co-offender directly responsible for victim’s death

APPEAL – application for leave to appeal – failure of applicants to attend hearing before Land and Environment Court – refusal of judge to reopen final orders – appeal limited to errors of law – arguable error of approach – case presented before primary judge not shown to justify reopening PRACTICE AND PROCEDURE – application to reopen final orders – party served with originating process failed to attend hearing – no satisfactory explanation for non-attendance – whether material supported different outcome – orders partly effected – prejudice to other party

COSTS – application for order against legal practitioner – whether costs incurred by the misconduct of applicant’s solicitor – obligation of legal practitioner in conducting litigation – Civil Procedure Act 2005 (NSW), ss 56 and 99 COSTS – application for order against legal practitioner – supervisory jurisdiction of Supreme Court over legal practitioners – scope of jurisdiction under Supreme Court Act 1970 (NSW), s 23 – whether limited by Civil Procedure Act 2005, s 99 STATUTORY INTERPRETATION – construing statutory language involving related concepts holistically – application of “overriding purpose” under Civil Procedure Act 2005, s 56 – power of court to award costs against practitioner WORDS AND PHRASES – “serious misconduct”; incurring costs “without reasonable cause” – Civil Procedure Act 2005, s 99

ASSAULT AND BATTERY - dental treatment - whether patient's consent invalid because sole purpose was non-therapeutic - whether onus lay on patient or practitioner - whether absence of consent of the gist of assault and battery DAMAGES - exemplary damages - whether Civil Liability Act 2002 (NSW), s 3B applied - requirement to determine compensatory damages before considering whether to order exemplary damages - whether other decisions comparable EVIDENCE - tendency evidence - whether evidence of other malpractice by practitioner wrongly admitted - whether evidence able to be used for purpose different from that for which it was tendered - whether evidence of malpractice significantly probative of performing work with no therapeutic purpose MEDICAL PRACTITIONERS - consent to treatment - whether consent to dental treatment invalid because of wholly non-therapeutic purpose - onus of proof

CRIMINAL LAW – bail application – Bail Act 2013 (NSW)

CORPORATIONS – winding up – winding up in insolvency – leave to oppose winding up – where no application made for setting aside of statutory demand – whether serious question to be tried – whether genuine dispute as to existence or amount of debt – whether existence of debt disputable under Retail Leases Act 2003 – held, sufficiently arguable case available – where solvency absent the debt marginal – held, existence of debt material to solvency - offsetting claims – where claims are for unliquidated damages – held, not material to solvency – where prior failure to apply for setting aside of statutory demand – sufficiency of explanation for failure – where four days provided to prepare response – held, explanation sufficient

CORPORATIONS – management and administration – meetings – orders sought for s 1322 declaration that resolutions were valid notwithstanding procedural irregularity – where meeting of members conducted with lack of quorum – whether an order under s 249G required to convene a meeting of members because of impracticability.

BAIL -

BAIL – release application – show cause requirement

GUARANTEES AND INDEMNITIES – proceedings remitted by Court of Appeal to determine the amount of damages to be awarded to Perpetual following successful appeal – claim under indemnity for legal costs alleged to arise from breach of deed – no requirement to establish costs reasonably incurred – adequacy of evidence relied upon to establish costs arising from breach

CHILDREN - parens patriae jurisdiction - secure accommodation orders - balancing exercise between competing considerations - where orders would amount to serious limitation of personal liberty - where child at high risk of harm if released into the community - no evidence of appropriate alternatives - where proposed program offers a real prospect of stabilisation and recovery

TAXES AND DUTIES – landholder duty – appeal to the Supreme Court from a decision of the Chief Commissioner not to grant an exemption under s 163H of the Duties Act 1997 (NSW) – whether exemption ought to be granted where company acquires shares in an object of a discretionary trust – consideration of circumstances in which it is “not just and reasonable” under s 163H that duty should be charged on a relevant acquisition – discretion exercised favourably to taxpayer

PROCEDURE - interlocutory issues - injunctions - order in the nature of a writ of ne exeat colonia - whether to restrain plaintiff from leaving the country - where plaintiff may be required to recompense defendant in satisfaction of an equitable demand if successful in related proceedings - where plaintiff has no significant assets in Australia - risk of absconding from jurisdiction without giving security - where plaintiff has engaged in conduct that could be regarded as deceptive

DEFAMATION - application to strike out imputations on the ground that they do not differ in substance - application for leave to appeal – whether application gives rise to any issue of principle or risk of injustice if refused – application for leave to appeal refused

PROCEDURE – Contempt of court – construction of court orders – first court order requiring land owners to “within ninety days to…obtain development consent” to allow a building to remain on certain land – where land owners obtained such development consent in 2012 but did not carry out the works that consent required within ninety days – where “ninety days” subsequently varied by second order to “4 July 2013” – where land owners did not carry out the works by that date – where land owners charged with contempt of court – whether on proper construction of first order 2012 development consent constituted compliance – whether contempt charge ambiguous

EXPERT EVIDENCE – expertise in finance, banking and loan origination – ascertainment of normal course of insured’s business as mortgage and finance broker – report admitted – consideration of whether private borrower departed from appropriate standard – report rejected.

CRIMINAL LAW – procedure – application to vacate trial date – counsel unavailable – toxicologist and forensic pathologist had not been qualified for defence – trial date confirmed

EQUITY – trustees - indemnity for litigation costs - where solicitor for trustee and executor brought proceedings in District Court to recover costs owing from both - where default judgment obtained and garnishee order issued against trust assets - where plaintiff asserts beneficial interest arising from agreement in those trust assets - whether judgment debt can trump the plaintiff’s asserted beneficial entitlement to trust assets - where separate proceedings allege that the trustee and executor had acted improperly in their execution of trust obligations - whether appropriate to restrain enforcement of the garnishee order while those proceedings pending - where possible outcome of those proceedings that trustee and executor will be denied recourse to trust funds - relevance of trust deed clause granting trustees a right of indemnity PROCEDURE – judgments and orders - contempt - where bank faced with risk of being required to simultaneously obey inconsistent orders from District Court and Supreme Court - where likely outcome that it will be in contempt of one of those courts - whether alternative order available that will maintain status quo while avoiding risk of contempt

COSTS - general rule that costs follow event - whether conduct of first defendant provided exception to the general rule - ordinary consequences follow for first defendant - where second defendant could also have taken action to mitigate the issues giving rise to proceedings - whether that disentitled second defendant to have its costs

EQUITY – Offer of compromise made pursuant to rule 20.26 of the Uniform Civil Procedure Rules- Offer not expressly stated to be costs to the time of the offer being made- Issue as to whether the offer should be taken to be to pay costs up to the time of making the offer or rather to the time of acceptance of the offer

EVIDENCE – admissibility – hearsay evidence – exceptions – civil proceedings where maker is available

CRIMINAL LAW – evidence – where police unsuccessful in serving a subpoena on a witness – where Crown sought to tender passages of the statement of the witness in her absence – no prior notice given to accused until the day on which the application was made – where counsel for the accused had instructions to cross-examine the witness as to credit – where opportunity to cross-examine would be lost – evidence excluded