Cases and authorities

CONTRACT – contract for sale of land – termination for breach – measure of the vendors’ loss – whether the primary judge erred in finding that the measure of loss was the difference between the price payable under the contract and the net amount attributable to the land under a resale contract 13 months later – whether the prima facie rule governing damages for breach of a contract for sale of land should give way where there was no “available market” at the time of breach – no evidence before the primary judge as to the market value of the land at the date of breach

PROCEDURE - pleadings - notice of motion - ex parte hearing - orders sought under Rule 13.4 of the Uniform Civil Procedure Rules 2005 - alternative orders sought for claim to be struck out and dismissed for want of prosecution - statement of claim not particularised in accordance with Rules - statement of claim struck out - aspects of the claim statute barred - malicious prosecution alleged - elements of malicious prosecution - cause of action untenable - proceedings dismissed - costs

APPEAL - application for leave to appeal from summary judgment - test for summary judgment - whether relevant to consider unpleaded allegations and defences - whether estoppel from Federal Court judgment - whether necessary to serve proposed defence, discovery and evidence - leave granted and appeal allowed PRACTICE - abuse of process - whether application for leave to appeal itself an abuse of process unless security for judgment debt first provided and where it was said a Court undertaking had been breached - abuse of process not established

JUDICIAL REVIEW - whether Minister failed to comply with a mandatory requirement - whether decision manifestly unreasonable - misleading information provided to Minister - consequences of failure to adopt a particular method of establishing socio-economic impact of a decision - Water Management Act 2000 (NSW), s 50 LAND & ENVIRONMENT - where water sharing plan reduces water extraction entitlements - whether water sharing plan valid - where plan based on flawed groundwater management model - whether Minister obliged to consider recharge and sustainable yield - whether sound and reliable numerical groundwater model required to determine recharge and sustainable yield - whether adoption of flawed groundwater model manifestly unreasonable or irrational - whether misleading information invalidates Minister's decision - whether obligation to consider socio-economic impacts of proposals considered for inclusion in plan requires formal socio-economic study - Water Management Act 2000 (NSW), ss 3, 5, 9, 18, 50

PROCEDURE - civil - court approval of settlement where plaintiff suffers legal incapacity - where more beneficial for plaintiff to remain on worker's compensation benefits than to pursue common law action - whether court can perfect orders made irregularly nunc pro tunc

CRIMINAL LAW - application for bail - murder and other related offences - Crown case not overly strong - circumstantial case with regard to crimes allegedly committed over 40 years ago - no scientific evidence - applicant has a lengthy criminal record - no prior serious offences of violence - applicant suffering from serious health issues - risk that applicant will fail to appear - whether strict bail conditions sufficiently mitigate that risk

BANKING - a bank advanced money to a company for the purchase of a business and took mortgage security over the domestic residence of the company's principal and his wife to support their guarantees of the bank's advance to the company - the company defaulted on the loan - the guarantors sold their residence partially to satisfy the Bank's claims on the guarantees - whether the Bank engaged in misleading and deceptive conduct or unconscionable conduct in relation to the guarantees and the mortgage - whether these securities are unjust under the Contracts Review Act 1980 - whether these securities should be declared void, varied or their provisions not enforced.

EVIDENCE - application to adduce evidence pursuant to s 63(2) where witness unavailable by reason of death - whether applicant should have anticipated the death - whether failure to call witness amounted to conduct that disentitled reliance upon the provision - whether the death of witness during the hearing was to be distinguished from a witness who predeceased the commencement of proceedings

PROCEDURE - orders sought under the Vexatious Proceedings Act 2008 (NSW) - procedural requirements satisfied - litigious history established by evidence and admissions - vexatious proceedings established - defendant frequently involved in vexatious proceedings - whether orders should extend to cross-claim - orders made EVIDENCE - documentary evidence - documents in dispute - judgments and transcripts of proceedings - relevance - admissibility - s 91 Evidence Act 1995 (NSW) - proof - s 157 Evidence Act 1995 (NSW) - judgments - whether reasons for judgment are a public document - proof of reasons for judgment pursuant to s 48 of the Evidence Act 1995 (NSW) - hearsay - s 64 of the Evidence Act 1995 (NSW) - judges not compellable to give evidence - s 69 application of business records exception to judgments and reasons EVIDENCE - application under s 67 of the Evidence Act 1995 (NSW) - direction given

PROCEDURE - subpoenas - application for subpoena to be set aside - where subpoena issued sought production of all documents maintained by third party in respect of company during relevant period - whether subpoena issued for legitimate forensic purpose - whether subpoena should be set aside. PROCEDURE - notices to produce - application for notices to produce to be set aside - whether notices to produce issued for legitimate forensic purpose - whether documents sought relevant to issues in proceedings - whether notices to produce are inconsistent with SC Eq Practice Note 11 - whether notices to produce should be set aside.

PROCEDURE - discovery and interrogatories - discovery and inspection of documents - not usual to order discovery in applications to set aside statutory demand - whether exceptional circumstances exist

CONTRACT LAW - breach - defective goods - indemnity - damages arising from 3rd party suffering personal injury

CORPORATIONS - External administration - winding up - winding up of joint stock company incorporated under private Act of 1863 - liquidator's applications - application for directions - whether liquidator entitled to distribute surplus on basis that the interests of all but one shareholder had ceased or could be disregarded - held, not entitled to so proceed - whether liquidator entitled to be released - held, liquidator has not yet settled list of contributories or determined to whom surplus is properly payable

ADMINISTRATIVE LAW - declaratory relief - proper construction of the Work Health and Safety Act 2011 (NSW) - order sought restraining inspectors appointed under the Mine Health and Safety Act 2004 (NSW) and/or Work Health and Safety (Mines) Act 2013 (NSW) from obtaining information by exercise of powers granted under s 171 of the Work Health and Safety Act - competing constructions of the Work Health and Safety Act - how s 155 and s 171 of the Work Health and Safety Act must be constructed - relevant rules of statutory construction - relief sought not granted - summons dismissed

PROCEDURE - affidavits - leave sought to rely on affidavits served late - application out of time to adduce expert evidence - proportionality - two claims where amount in issue less than $5000 - expert evidence establishes damage at $339 - application refused - whether matters should be transferred to the Local Court - legal issues relevant to a number of other cases on similar facts - need for a binding ruling - hearing date already fixed

PROPERTY LAW - application for stay of a writ of possession - where investment properties - where applicant attempting to refinance

CONTRACT - interlocutory application - shareholders agreement - proper construction - whether fourth and fifth defendants are restrained from selling their company shares

CORPORATIONS – winding up – orders sought for termination of voluntary winding up of company – whether solvency established – interests of creditors, liquidator and contributories – notice of application to regulator – whether winding up should be terminated.

PROCEDURE - civil - garnishee orders - where failure to pay judgment debt - application to garnish funds held on trust for judgment debtor

FAMILY LAW AND CHILD WELFARE - surrogacy arrangement - application for parentage order under Surrogacy Act 2010 (NSW) - whether preconditions in Division 4 of Part 3 of the Act are satisfied - parentage order made

CIVIL LAW - Contributory negligence - where plaintiff travels with driver who was under the influence of alcohol - defendant's negligence admitted - extent of impairment where relatively low blood alcohol concentration - whether reasonable person ought to have known driver was impaired - where driver deliberately drove off the roadway to scare passengers - whether foreseeable or significant risk - plaintiff a minor - where plaintiff forced to leave remote premises due to aggressive conduct of host - just and equitable apportionment

CRIMINAL LAW – appeals against conviction – murder, specially aggravated kidnapping – basis of complicity as a principal in the second degree in specially aggravated kidnapping, constructive murder – element of “in company” in specially aggravated kidnapping – whether direction as to malice required for constructive murder

CRIMINAL LAW - appeal against sentence - supply not less than commercial quantity of methylamphetamine - sentencing judge did not erroneously take into account pre-charge supply activity - no legitimate basis for grievance regarding sentences imposed upon co-offenders - sentencing judge did not give inadequate weight to ill health and hardship in custody

CRIMINAL LAW - appeal against sentence - accessory before the fact to robbery in company - Form 1 procedure - totality not applicable - criminal history of co-offender did not warrant greater disparity in sentence

APPEAL - Crown appeal against manifest inadequacy - money laundering - seriousness of offending evidenced in particular by large amount of money and repeated acts of the respondent - offending motivated by the prospect of financial gain - necessity to have proper regard to general deterrence - Crown appeal upheld - sentence manifestly inadequate - respondent re-sentenced

CRIMINAL LAW - conspiracy to money launder - money laundering - receiving corrupt benefits - sentence - executive of Woolworths - elaborate scheme involving off-shore companies - benefits received over 18 month period - offender unrepresented at sentence hearing - offender with serious health issues - refusal of second adjournment - offender lodged detailed written submissions with Sentencing Judge - whether procedural unfairness in refusing adjournment - whether sentence manifestly excessive

PROPERTY LAW - writ of possession - summary judgment - where defendant refinanced loan - whether plaintiff entitled to summary judgment for portion of the loan amount - subrogation - whether refinance led to subrogation in the event mortgagee's title infected by claim under Contracts Review Act

APPEAL AND NEW TRIAL - application for leave to appeal - leave sought in respect of order setting cross-claims down for trial at same time as other aspects of the proceedings - whether manifest injustice - application dismissed

TORTS - negligence - appellant injured when workbox in which he was standing fell to the ground while suspended from crane - whether evidence established cause of accident - whether primary judge erred in favouring hypothesis of one expert over the other - whether accident could have been avoided by exercise of reasonable care - causative negligence not proved PRACTICE AND PROCEDURE - pleadings - application to amend particulars of negligence on third day of trial by alleging operator error - report prepared by appellant's expert prior to hearing disclaimed causal operator error - whether primary judge erred in rejecting application - whether proposed particulars supported by evidence - appeal dismissed

TAXES AND DUTIES - land tax - exemptions - where appeal lay from Appeal Panel of Administrative Decisions Tribunal on a question of law - whether rural land exempt from taxation as land the dominant use of which was for primary production - Land Tax Management Act 1956 (NSW) s 10AA(1) - where land subject to different uses - whether appropriate to treat portions of land used for different uses separately and apart - whether Tribunal required to have regard to subjective purpose and intention of users of land in determining whether dominant use of land was for primary production

CORPORATIONS – winding up – termination

CORPORATIONS - winding up - winding up in insolvency - setting aside creditors statutory demand – where founded on judgment debt – alleged intention to appeal but not application for a stay or leave to appeal filed – insufficient grounds to establish “some other reason” PROCEDURE – representation – ceasing to act – necessity for notice of intention to cease to act

CRIMINAL LAW – discharge of jury – late provision of material – material copied by Australian Taxation office – whether in possession of Crown – accused not granted same level of access as Crown – effect on trial – separate trial – observations in R v Darby – whether any evidence in trial only admissible against one accused.

COSTS – security for costs – inherent jurisdiction of the costs to order security for costs – exercise of jurisdiction only in exceptional cases – proof of impecuniosity insufficient for exercise of jurisdiction – requirement that proceedings be harassing or vexatious unless an order for costs is made – where proceedings pursued by nominal plaintiff against whom an order for security would be futile – whether number of plaintiffs increases difficulty of enforcing prospective costs orders – where plaintiffs’ claims pursued by litigation funders or solicitors acting on a contingency basis – held that there was no reasonable apprehension that a costs order would not be capable of enforcement

ADMINISTRATIVE LAW - judicial review - decisions of Independent Commission Against Corruption to conduct an investigation and conduct a public hearing - application by Plaintiffs for Statement of Reasons pursuant to r 59.9 Uniform Civil Procedure Rules (UCPR) - refusal by ICAC to give reasons - interrelation of s 111 of the ICAC Act with r 59.9 UCPR whether ICAC's decision to conduct investigation beyond jurisdiction - interpretation of s 8(2) of ICAC Act - application of principle of legality - whether allegations in ICAC Summons capable of establishing corrupt conduct as defined by s 8(2) ICAC Act - whether ICAC's decision to conduct a public hearing invalid - challenge by Plaintiffs to whether ICAC was or could be satisfied that decision to hold a public hearing was in the public interest - relevant tests - challenges to ICAC decisions not made out - Summons dismissed.

CORPORATIONS - managed investments - meetings - orders sought under s 63 Trustee Act 1925 (NSW) in respect of a proposed trust scheme - where there is a mechanism for scheme members to enforce the right to entitlements that are to be received under the proposed scheme.

CRIMINAL LAW - Law Enforcement (Powers and Responsibilities) Act s 219 - application by plaintiff that property seized and detained by police be delivered to him - whether plaintiff has established that he is lawfully entitled to the property TORTS - trespass to goods - detinue and conversion - whether declaration should be made

CONTRACTS - general contractual principles - construction and interpretation of contracts - construing a commercial contract in its context - no matter of principle - PROCEDURE - set-off - equitable set-off - entitlement to money judgments established by one party against another party and by an associated entity of the second against an associated entity of the first - whether primary judge correctly allowed equitable set-off - need for one right to impeach the other - whether rights and their sources so closely connected that equitable set-off should be ordered - lack of mutuality and separateness of sources held to be such as not to permit set-off - COSTS - challenges to aspects of costs orders at first instance - no matter of principle

PROCEDURE - application for summary dismissal or strike - out - whether to grant summary dismissal in whole or in part - where plaintiff puts it case in two ways - whether plaintiff owed any duty of care -whether proposition that plaintiff's case is one of "indirect reliance" is bad in law and cannot be sustained - whether plaintiff has suffered any loss - where overlap between issues arising under the separate ways in which the case is pleaded - where overlap likely to be extensive - where all evidence is not yet before the court

PROCEDURE - interlocutory issues - plaintiffs seek to extend a caveat over real property owned by the defendant - plaintiffs claim an equitable interest by way of charge over the property - whether extended caveat based on the same facts as the first caveat under Real Property Act s 74O - whether plaintiffs should be granted leave to file a further caveat over the property.

PROCEDURE - interlocutory applications - application for order for specified gross sum of costs PROCEDURE - costs - application for indemnity costs - compliance of offers of compromise with the UCPR

BANKING AND FINANCE - default by borrowers under loan and overdraft agreements - financier seeking to realise security under mortgage - effect of complaint to Financial Ombudsman Service - effect of agreement terminating complaint - Corporations Act 2001 (Cth), ss 912A and 913B JUDGMENTS - default judgment - power to set aside once executed - principle of finality - Uniform Civil Procedure Rules 2005 (NSW), rr 36.11, 36.15, 36.16 PRACTICE AND PROCEDURE - setting aside default judgment -writ of possession issued and executed - whether default judgment can be set aside once order for possession executed - whether notice of application for default judgment required PRACTICE AND PROCEDURE - setting aside default judgment - whether circumstances required that judgment be set aside - failure by mortgagee to abide by conditions of dispute resolution agreement - whether mortgagors had breached dispute resolution agreement - delay by mortgagors - whether mortgagee could proceed on statement of claim issued before complaint resolution agreement REAL PROPERTY - possession of land - default judgment - writ of possession issued and executed - whether default judgment may be set aside after possession obtained

APPEAL - application for leave to appeal from interlocutory decisions on practice and procedure - primary judge did not err in striking out the pleadings and dismissing the proceedings

PROCEDURE - civil - application to set aside subpoena - whether the subpoena amounts to fishing - whether particulars of proof may be relied upon in support of the imputations - whether the subpoena is necessary for a truth defence - whether the documents sought go directly to the substantive issues in the proceedings - whether the subpoena is oppressive

EQUITY - Interlocutory application - motion for summary dismissal - where an order for security for costs has been made - where the plaintiff has failed to pay security - where the plaintiff is an overseas resident and provided no evidence of ability to provide security - where there is prejudice to the defendant

PROCEDURE - where plaintiff disrupting the orderly hearing of his claim - power under s 62 of the Civil Procedure Act to give directions as to the conduct of a hearing - direction to resume cross-examination - direction to stop singing - appropriate sanction where plaintiff refusing to engage with the processes of the court - proceedings dismissed

PROCEDURE – civil – summary disposal – strike out statement of claim; application to - Uniform Civil Procedure Rules 2005, r 14.28 - representative proceedings – negligence – pleading - Civil Liability Act 2005 (Qld), s 9 – risk of harm – requirement to specifically plead – erroneous references in pleading – group members – closed class – geographically defined - pleading of group members deficient, whether – need to be more specifically pleaded as to geography and time, whether – proof of damage – common question of fact properly determined at hearing – pleading of foreseeability – defective, whether – greater specificity needed as to time at which damage was foreseeable and to whom, whether – not required – causation a matter for factual proof - breaches of duty – particulars – acts and omissions - acting unreasonably – failure to act reasonably – causation - pleading afforded defendants a fair opportunity to meet the case, whether – need to specify minimum available capacity by reference to dam height level – greater precision required in phrase ‘greater flooding’, whether – greater specificity in geography of flooding required – formulaic and repetitive allegations, whether – matter of convenience – claim extends over six weeks – many possible combinations of breach of duty – re-pleading

PROCEDURE - costs - judgment against guarantor - whether costs payable on an indemnity basis - term of the guarantee requiring payment on an indemnity basis - where borrower seeks indulgence to file amended defence - costs payable by borrower

SUCCESSION - whether informal document made after will stated testamentary intention of deceased - whether informal document intended to be will at time when written - section 8 Succession Act

LANDLORD AND TENANT - assignment, severance and sublease - assignment of lease - whether there was an agreement for assignment of lease in equity - where duly executed and stamped Transfer of Lease provided to landlord for registration - where landlord agreed to attend to registration of transfer "ASAP" - where no provision for landlord's consent to be signified on transfer of lease form - whether executed and stamped transfer of lease sufficient evidence in writing for s 54 of the Conveyancing Act 1919 (NSW) LANDLORD AND TENANT - assignment, severance and sublease - assignment of lease - consent - whether the landlord consented to the assignment of lease - where landlord would have had no objection to the assignment of lease - where landlord knew that it was the operator who was in actual occupation of the premises - where landlord prepared to attend to registration of lease - is the consent to assignment of lease required to be evidenced in writing - was the agreement for assignment of the lease evidenced in writing CONTRACT - whether consensus intended to constitute a binding contract -where agreement to procure registration of transfer of lease reached - whether intention, as it appears from the terms of the document, was that the agreement would not be binding until formal documents were prepared, signed and exchanged - where parties saw agreement as achieving resolution of their disputes - where parties intended that a formal document later be prepared - where landlord was to attend to registration "ASAP" - where some matters left to be determined later by the parties EQUITY - equitable remedies - estoppel - whether landlord estopped from denying the lease was assigned with its consent - whether evidence that plaintiff relied on the representation to their detriment