Cases and authorities

BUILDING AND CONSTRUCTION - claim of alleged defective work - limitation period - jurisdiction of Consumer, Trader and Tenancy Tribunal to hear and determine building claims - Home Building Act 1989, s48K(7) STATUTORY CONSTRUCTION - statutory warranties as to residential building work - whether landscaping work is "residential building work" - Home Building Act 1989, s 18B - whether evidence of other "residential building work" ADMINISTRATIVE LAW - judicial review of decision of District Court - error of law in reasons - application for order in nature of certiorari - orders unaffected by error

PRACTICE AND PROCEDURE- appellant, litigant in person, was not allowed to tender any evidence at trial as the expert evidence did not comply with UCPR r31.23- whether trial judge should have adjourned or otherwise ordered under r31.23(3)- r31.23(3) does not require "exceptional circumstances"- judge applied the wrong test- supplementary expert reports should have been admitted as no objection was made by the respondent until trial had commenced- alternatively adjournment should have been permitted to allow appellant to put on evidence- overriding duty of trial judge to ensure a fair trial- appellant's materials and case not considered- appeal allowed- retrial ordered.

REAL PROPERTY - loan agreement - where loan "rolled over" - whether roll over of loan creates new loan REAL PROPERTY - loan agreement - where mortgage assigned - whether secured debt also assigned REAL PROPERTY - loan agreement -whether notice given - whether notice effective - whether legal or equitable assignment - Conveyancing Act 1919 (NSW) s 12 GUARANTEE AND INDEMNITY - whether guarantee assigned with principal debt - whether notices of assignment given under s 12 Conveyancing Act 1919 (NSW) are sufficient evidence of assignment of guarantee

GUARDIANSHIP - application in parens patriae jurisdiction to set aside order to set aside orders of Guardianship Tribunal - inherent jurisdiction of Court preserved by s 8, Guardianship Act 1987 - approach exercise of parens patriae jurisdiction as if application were an appeal on a question of law or an application for leave - where no dispute that person in need of a guardian- where Public Guardian appointed as guardian - where family member available - errors of law and errors of process of decision-making of Guardianship Tribunal - Public Guardian should not be appointed in circumstances in which order can properly be made in favour of another person - s 15(3), Guardianship Act 1987 - Guardianship Tribunal failed to make necessary factual findings - Guardianship Tribunal's orders set aside - whether matter should be remitted to the Guardianship Tribunal - further hearing ordered before the court as to who should be appointed guardian - status quo maintained in the interim

DEFAMATION - interrogatories

MENTAL HEALTH - involuntary detention at mental health facility - appeal from Mental Health Review Tribunal - where plaintiff suffers from mental illness - whether plaintiff by reason of mental illness needs protection from "serious harm" - whether involuntary detention least restrictive care - where continued involuntary detention of the plaintiff is sought to be justified on ground that he might suffer financial harm as a result of his mental illness - involuntary detention is to be a measure of last resort to protect from harm - protection from financial harm could have been provided by a financial management order - plaintiff not found to be incapable of managing his affairs - necessary to consider the extent to which mental illness was a harm for plaintiff and assess its seriousness - appeal allowed - order that plaintiff be discharged from mental health facility

MENTAL HEALTH - involuntary detention at mental health facility - appeal from Mental Health Review Tribunal - question as to whether plaintiff instructed solicitors appearing on his behalf to commence proceedings - where plaintiff is a person under legal incapacity by virtue of being involuntary patient under Mental Health Act 2007 - requirement that plaintiff commence and carry on proceedings by a tutor dispensed with - necessary to be satisfied that plaintiff wished for proceedings to be commenced on his behalf - order pursuant to s 166, Mental Health Act 2007 or otherwise in inherent jurisdiction of the Court to require the plaintiff to be brought before the Court for examination

FAMILY LAW AND CHILD WELFARE - appeal against orders of the Children's Court - s 91, Children and Young Persons (Care and Protection) Act 1998 - where judgment given by President of Children's Court - where judge refused to make a contact order under s 86, Children and Young Persons (Care and Protection) Act 1998 - contact between the plaintiff and his children would pose an unacceptable risk of harm to the children - appeal dismissed

PRACTICE AND PROCEDURE - earlier Statement of Claim struck out - defective and embarrassing pleading - leave to replead granted - amended Statement of Claim defective and embarrassing - pleading struck out - whether leave to replead ought be again allowed - leave to replead refused - whether proceedings should be dismissed for want of prosecution - proceedings dismissed

CORPORATIONS - whether deed of company arrangement was in conformity with resolution passed at the second meeting of creditors and hence a binding instrument within the meaning of s 444B(6) of the Corporations Act 2001 (Cth) - whether second defendant voted by proxy for deed in circumstances where vote was carried "on the voices" and second defendant's proxy held multiple proxies - whether, if the deed is a binding instrument and second defendant is bound by it, the deed or part thereof should be terminated or second defendant granted relief against the operation of some or all of its terms - whether first and second defendants should be compelled pursuant to s 442C to deliver discharges of mortgages so contracts for sale entered into by deed administrators can be completed - HELD - deed is not a binding instrument within the meaning of s 444B(6) as it does not accord with the deed proposal the subject of the resolution on which creditors voted - second defendant not bound by deed since the manner in which a vote was taken at the meeting precludes finding that the holder of its proxy validly voted in favour of deed - accordingly, administration terminated by reason of s 446A and caused creditors voluntary winding up to arise - CIVIL PROCEDURE - application after close of submissions to amend plaintiffs' originating process to seek declaratory or other relief in relation to a claimed equitable charge or lien over land where Anshun raised - HELD - application dismissed

EQUITY - equitable remedies - receivership - where plaintiffs claim to be beneficially entitled to shares held by defendant - where defendant has no directors and its sole member has made no move to rectify that situation - appropriate for the shares in question to be put under the control of a receiver pending determination of plaintiffs' claims - no claim by plaintiffs for final relief - contemplated that receiver may determine beneficial entitlements - need for plaintiffs to amend to seek final relief so that court determines such entitlements

PROCEDURE - Security for costs - appeal from dismissal of motion by Associate Justice - caveat over interest in land by chargee under loan agreements - whether inference should be drawn that debt extant - refusal to answer notice to produce

ADMINISTRATIVE LAW - application for order in the nature of certiorari - jurisdictional error - error of law on the face of the record - irrelevant consideration - constructive failure to exercise jurisdiction - assessment by Review Panel of permanent impairment under Motor Accidents Compensation Act 1999 - Motor Accidents Authority Permanent Impairment Guidelines - measurement of impairment of injured shoulder using contralateral uninjured shoulder as baseline - adequacy of reasons - whether plaintiff denied procedural fairness due to insufficient transparency in clinical findings as to injury to cervical spine

CORPORATIONS - winding up - statutory demand - application for order setting aside - strata scheme owners corporation serves statutory demand in respect of various levy amounts said to be due by single proprietor of several lots - payment of part of total indebtedness made shortly before service of demand - proprietor says that that payment was effectively appropriated by it to identified debts in the levy notices - where payment was made at a post office held out by the owners corporation as a place at which payments could be made - where owners corporation allocated money otherwise than according to the appropriation the proprietor claims was made - whether plausible contention requiring further investigation regarding effective appropriation and authority of post office to receive communication thereof - held yes - whether in the overall context it was unconscionable for owners corporation to serve the statutory demand - held no - whether a "defect" in the demand - held no - amount of demand to be reduced

POSSESSION - order for possession of property - default of business and home loans - cross claim seeking declaration that company had not exceeded overdraft limit and was not otherwise in breach of its terms - whether bank's payment of money from overdraft facility was unauthorised

CRIMINAL APPEAL - provision of drugs to a person who dies or falls ill - meaning of cause a person to take a drug - insufficient evidence to constitute tendency - unreasonable verdicts - appeal upheld - convictions quashed and acquittals ordered.

CRIMINAL LAW - sentence - knowingly take part in supply of commercial quantity of ecstasy - related offenders sentenced by different judges - different findings made by different judges - parity principle - objective legitimate sense of grievance not demonstrated - claim of error in assessment of objective seriousness - no error established - appeal dismissed

CRIMINAL LAW - application for leave to appeal against sentence - sentencing for multiple offences - no complaint made about individual sentences - successive sentencing procedures - combined effect of sentences imposed - disproportionate non-parole period representing 93 percent of overall sentence - failure to advert to question of special circumstances in process of imposing cumulative sentences - failure to consider impact of sentences upon custodial circumstances - limited evidence concerning prospects of rehabilitation - offences reveal propensity for dishonesty - interests of the community - leave granted - sentences quashed - applicant re-sentenced

APPEAL - civil - distinction between a question of law and a question of fact - elements of causation in relation to a certified infirmity - "hurt on duty" - reasons provided for finding supported by evidence - failure to demonstrate error in point of law WORKERS COMPENSATION - infirmity for medical discharge from New South Wales Police not caused by being "hurt on duty" - whether failure to address evidence in determination of causation - requirement to identify the relevance of an individual's belief as to the cause of, and susceptibility to, an injury WORDS AND PHRASES - "hurt on duty"; Police Regulation (Superannuation) Act 1906 (NSW): s 1(2), hurt on duty

APPEAL - civil - interlocutory - leave required - appeal limited to decisions on question of law - leave refused

ADMINISTRATIVE LAW - review of decisions with respect to mining exploration licences - proper parties - challenge based on misuse of confidential information supplied by applicant - appeal from interlocutory orders

PROCEDURE - security for costs - pleading struck out but with leave to replead - security to be provided before claim repleaded - security ordered on basis that applicant acting for the benefit of a third person - appropriateness of order for security on basis that may not apply to repleaded claim - security sought by party which made decision possible for ulterior purpose

ADMINISTRATIVE LAW - power of Minister to grant authority under the Mining Act 1992 (NSW) - challenge to exercise of power of delegation - whether delegation affected by change in other provisions of Act or of identity of Minister - whether delegation to an office extends to a person acting in that office APPEAL - civil - interlocutory - leave required - whether reasonably arguable grounds

APPEAL - Land and Environment Court - class 8 jurisdiction - whether appeal from Commissioner to Supreme Court - whether appeal to judge of Land and Environment Court only

APPEAL - costs - right of appeal - jurisdiction of the Court of Appeal - Supreme Court Act 1970 s 101(2)(r) - whether leave to appeal required - where small sum involved, no question of principle and no issue of general public importance - whether reasonably clear that the judge's conclusion about liability was wrong - COSTS - UCPR 42.1 - costs follow the event - whether exception to general rule where costs have been incurred by reason of an error on the part of the court and that error has not been brought about by conduct of any party to the litigation - whether Notice of Motion to vary judgment is an indulgence where judgment does not determine all the claims before the court

PRACTICE AND PROCEDURE - Leave to call additional witness whose affidavit was not served in accordance with Court's directions

FAMILY LAW AND CHILD WELFARE - Parens patriae - Scope of power - Where 13-year-old child has a form of autism, developmental problems and an extensive history of physical aggression, violent and anti-social behaviour - Where Director-General and the Minister seek an order for the child to be placed in the care of a different institution to instigate a plan for his future care and also orders that include the ability to restrain and medicate the child whilst he is in the care of the new institution - Whether such order may be made in parens patriae jurisdiction

GUARANTEE AND INDEMNITY - purchaser's lien - subrogation - contribution

RESTRAINT OF TRADE - Employment contracts - Employer seeks enforcement of post-employment non-compete and non-solicitation restraints - application for interlocutory injunction - test whether plaintiff has a sufficiently serious arguable case for a final injunction having regard to balance of convenience - strength of plaintiff's case especially significant where outcome of interlocutory application will effectively determine claim for final relief - seriously arguable that defendant is or will be in breach of non-compete and non-solicitation restraints - validity of restraints - legitimate interest of employer and reasonableness of restraint - employer has legitimate interest in relation to non-compete and non-solicitation restraints - reasonableness adjudged at time of entrance into contract - restraint reasonable in geographical and temporal scope when contract entered into - discretionary considerations - negative contractual stipulations like restraints may be reasonable at date of contract but court may nonetheless decline to grant injunctive relief - employee made redundant and not author of his own misfortune - pre-contractual representations made to employee by employer that employment would be continuing subsequently falsified - representation that restraints would apply only to senior managers in cases of redundancy - significance of customer connection reduced by restructuring of employer's business - employee could have obtained employment in another industry that would not involve breach of restraint - balance of convenience really a question of balance of injustice - grant of injunction in relation to non-compete restraint will put employee out of current employment - grant of injunction in relation to non-solicit restraint will not have adverse consequences on employee.

CORPORATIONS - statutory demand - application to set aside statutory demand - offsetting claim - definition of "offsetting claim" in s 459H, Corporations Act 2001 (Cth) - offsetting claims include cross-demands that do not amount to a set-off - contractual agreement precluding set-off does not prevent company relying on the claim as offsetting claim under s 459H - Jem Developments Pty Ltd v Hansen Yuncken Pty Ltd [2006] NSWSC 1308 not followed - whether offsetting claim genuine - arguable basis for offsetting claim - not possible to calculate offsetting claim on evidence adduced by plaintiffs - proceedings adjourned to allow the plaintiffs opportunity to properly quantify offsetting claim to extent found to be genuine CORPORATIONS - statutory demand - application to set aside statutory demand - "some other reason" to aside statutory demand, s 459J(1)(b) Corporations Act 2001 (Cth) - reason must be good reason as to why presumption of insolvency should not arise from non-compliance with the statutory demand - possibility that funds may become available to pay debt provides no reason why presumption of insolvency should not arise from non-compliance

CONTRACT - termination - repudiation - conduct asserting alternative contentions as to nature of parties' rights in context of litigation in all the circumstances not repudiatory. CONTRACT - formation - joint venture agreement - no formal agreement executed - alternative contractual arrangements posited - primary judge in position of advantage to assess recollection of witnesses - no error shown in approach of primary judge as to governing arrangement. EVIDENCE - cross-examination - concessions - evidence as to events of many years past - no error in approach of primary judge in not giving weight to concessions in circumstances.

EQUITY - Equitable remedies - Mortgagee exercised power of sale - Surplus proceeds of sale paid into court - Motion for payment out of court - Whether applicant entitled to funds - Whether any competing claimants - Whether all interested parties served

SUCCESSION - testatrix left a will without a residuary clause - evidence shows that the testatrix had no living de facto partner, spouse, offspring or close relatives at the time of death - residue of the estate devolve upon the Crown bona vacantia pursuant to s 61B(7) of the Probate and Administration Act 1898 (NSW) PRACTICE AND PROCEDURE - admissibility of expert evidence in the absence of acknowledgement of the Code of Conduct pursuant to rule 31.23(3) of the Uniform Civil Procedure Rules 2005 (NSW)

EVIDENCE - Rejection of evidence - Late service of evidence - Relevance to pleaded issue - Prejudice-

COURTS AND JUDGES - Application for suppression order under (NSW) Court Suppression and Non-publication Orders Act 2010 - order applied for under s 8(1)(a) as necessary to prevent prejudice to administration of justice, and/or s 8(1)(e) as necessary in the public interest for the order and the public interest significantly outweighs public interest in open justice - test prescribed by Act more stringent than former common law test and that previously contained in (NSW) Civil Procedure Act (2005) s 72 - discussion of authorities - open justice principle liable to yield in circumstances where open justice would defeat the administration of justice - plaintiffs and defendant party to a deed requiring confidential alternative dispute resolution procedures to be adopted before institution of court proceedings - current proceedings arguably contrary to deed and arguably an abuse of process - publication of current proceedings will negate purpose of confidentiality provision - suppression order necessary to prevent prejudice to administration of justice and to uphold legal rights of litigants - balancing exercise required - weight accorded to public interest in open justice liable to vary according to nature and stage of proceedings - current proceedings concern family trust - private issues and interests concerned - public interest in vindicating private rights outweighs significantly public interest in open justice - fact proceedings may jeopardise commercial negotiations with third parties not a reason in and of itself to depart from principle of open justice - order to apply throughout the Commonwealth - order made at least until defendant's stay application dealt with.

COSTS - relevant event for purposes of general rule as to costs orders - exercise of discretion where mixed outcome on hearing - whether order should be made as to reserved costs of earlier adjourned hearing date - HELD - costs orders made to reflect mixed outcome in one set of proceedings - reserved costs to follow ordinary rule - CORPORATIONS - orders to be made on application for leave pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) to extend the time to bring claims in relation to voidable transactions under s 588FF(1) - consideration as to whether s 588FF(3) permits exercise of power of amendment under rules if voidable transaction claim otherwise out of time - HELD - not necessary to determine issue as to reasoning in Rodgers and New Cap applicable - orders should be framed to reflect applications as heard but not otherwise preclude any application for amendment under Rules in other proceedings or to preclude arguments Jasmic parties might seek to raise thereon

PRACTICE AND PROCEDURE - whether matters had previously been determined in proceedings - determination of matters necessary to orders previously made in proceedings - withdrawal of admissions - leave to withdraw admissions not granted.

CRIMINAL APPEAL - Section 5F Criminal Appeal Act 1912 - charge of murder - dismissal of application that evidence be excluded - and that proceedings be stayed - no right of appeal against ruling on evidence - should not be permitted to contest ruling in relation to appeal against refusal of stay - no arguable case of error in refusing stay - leave to appeal refused.

TORTS - Conversion - respondent leased equipment to appellant's tenant - tenant vacated premises - equipment left on premises - appellant leased premises to new tenant - whether respondent had right to immediate possession - lease agreements still on foot and no conduct by lessee wholly repugnant to or destructive of bailment - no right to immediate possession - whether appellant converted equipment by leasing premises to new tenant - no conversion as leasing did not prevent respondent from retaking equipment - whether appellant converted equipment by later refusals to return equipment - did not refuse. DAMAGES - equipment later retaken by respondent - if conversion, damages were diminution in value of equipment or loss to respondent through deprivation of profit-earning goods - whether damages proved - query whether diminution in value proved - loss through deprivation not proved.

CORPORATIONS - Winding up - validity and validation of resolution purporting to fix remuneration of liquidator - effect of resolution - rulings as to work within liquidator's functions - leave to appeal refused.

COURTS AND JUDGES - Application for proceedings to be conducted in the absence of the public and for suppression order - applicant relies on (NSW) Civil Procedure Act 2005 s 71(f) that proceedings be conducted in private in Equity Division if court thinks fit - no reason why proceedings should be conducted in private just because in Equity Division - Equity Division applies same rules of open justice as Common Law Division - applicant relies on Civil Procedure Act s 71(b) that public proceedings would defeat ends of justice - s 71(b) addresses situations where public proceedings would practically defeat or circumvent relief sought - not applicable where applicant not a party - (NSW) Court Suppression and Non-publication Orders Act (2010) imposes more stringent test for suppression and non-publication orders - application brought by non-party to proceedings who is referred to in evidence on grounds that scandalous material will occasion detriment to herself and her child - inevitable consequence that children of persons involved in proceedings may be subject to disadvantage when parents mentioned - of itself insufficient basis for intruding on principle of open justice - material of a scandalous nature about applicant is gratuitous and not pressed - administration of justice not prejudiced if case heard in open court

CORPORATIONS - securities - dealing in securities - ASIC suspects insider trading and has commenced investigation - certain persons submit to short term restraints including freezing and travel orders - one such person wishes to have exception to travel order to permit specific travel - nature of task before the court - balancing of interests

COSTS - application for indemnity costs - Offer of Compromise (Rule 20 UCPR) - Calderbank offers - whether offer contained real and genuine element of compromise - defendant offer - whether "walk away" offer a valid offer

COSTS - indemnity costs - whether plaintiffs had reasonable prospects of success - whether there was a trial issue COSTS - Bullock and Sanderson orders - indemnity of costs incurred by the withdrawal of the cross-claims - whether cross-claim reasonably brought - whether the factual and legal issues were identical in the cross-claim to the primary proceedings AGENCY - whether agents acted outside scope of authority

PROCEDURE - judgments and orders - application for stay of registered foreign judgment - parties involved in separate proceedings brought by judgment debtor - limited commonality between proceedings - judgment creditor entitled to select jurisdiction for registration and enforcement - offer of bank guarantee pending judgment in separate proceedings - extent of further delay - order for stay refused PROCEDURE - judgments and orders - application to set aside or vary freezing order - claim that proposed share purchase agreement intended to diminish asset value within jurisdiction in which foreign judgment has been registered - discharge of order inconsistent with refusal of stay - variation would result in depletion of assets below value of foreign judgment - orders refused

CRIMINAL LAW - application for leave to appeal against sentence - break and enter with intent to commit serious indictable offence in circumstances of special aggravation - common assault on Form 1 - applicant motivated by revenge for offensive treatment of his mother - whether sentencing judge should have found special circumstances - adequacy of discount for plea of guilty - whether motive properly taken into account - sentence reduced

CRIMINAL LAW - application for leave to appeal against sentence - drug supply offences - Form 1 offence possession of mobile telephone whilst in custody without reasonable excuse - offences committed whilst applicant serving prison sentence - plea of guilty - effective sentence backdated to commence at expiry of parole period of earlier sentence - no order for revocation of parole made - period of custody solely referrable to present offences - error established - inconsistency between individual sentences imposed - relative quantities involved in each count - sentences for affected individual counts wholly subsumed by other sentences - adjustments to individual sentences - parity - intervention of the Court not justified - leave granted - sentences quashed - applicant re-sentenced

COSTS- appellant declared bankrupt after filing notice of appeal and summons seeking leave to appeal from District Court judgment- no election by trustee to prosecute or discontinue therefore deemed to be abandoned under s 60(3) Bankruptcy Act- application by respondent for appeal and leave to appeal to be dismissed, and appellant to pay costs personally as fixed by the Court- whether an appeal and application for leave to appeal are "actions" under s 60- whether an appeal and application for leave to appeal that are abandoned under s 60 can be dismissed- possibility of bankrupt re-litigating question once bankruptcy discharged not a consideration in this situation- appeal and application for leave to appeal dismissed- costs payable by appellant personally- whilst Court has power to fix costs, it declines in circumstances to so order.