Cases and authorities

CORPORATIONS – application to set aside creditors’ statutory demand under Corporations Act 2001 (Cth) s 459H and 459J – whether application and supporting affidavit were served within the statutory period – whether genuine dispute has been established – whether some other reason for statutory demand to be set aside – statutory demand set aside

CIVIL PROCEDURE – discontinuance – leave of the court – whether plaintiff should pay defendant’s costs – supervening event making proceedings futile – proceedings under the Criminal Assets Recovery Act 1990 – where defendant subsequently became insolvent – where defendant had no interests in property to enable the making of an unexplained wealth order – where proceedings properly instituted

COSTS — party/party — bases of quantification — indemnity basis — where proceedings dismissed without proceeding to final determination — whether plainly unreasonable conduct

CRIME – sentence – murder – son and mother party to a joint criminal enterprise to drive a Triton dual cab ute at the deceased and hit him from behind to exact revenge in context of ongoing feud – where the driver of the ute had intention to kill – where the passenger in the ute was a party to a joint criminal enterprise to cause grievous bodily harm or to kill the deceased – mitigating subjective circumstances – need for denunciation and general deterrence for revenge motivated offending

TAXES AND DUTIES — Administration — Tax garnishee notices — Notice issued to purchaser under contract of sale of land by taxpayer — Mortgagee requires payment of purchase moneys in full – whether purchaser bound to account to Commissioner for tax debt specified in notice – whether mortgagee would have equitable interest in proceeds which would defeat Commissioners – Taxation Administration Act 1953 Sch 1, s 260-5

ADMINISTRATIVE LAW – Judicial review – Local Council approval of development application – whether Council failed to consider the Development Control Plan in its terms as prescribed by the Environmental Planning and Assessment Act 1979 (NSW) – whether decision was unreasonable – no question of principle LAND LAW – Easements – Creation of easements – Creation by implication – implied easement for light – where apparent sale of adjoining lots by common vendor to separate purchasers – whether Wheeldon v Burrows easement as extended by Aldridge v Wright created – whether undertaking by purchaser of servient tenement to respect dominant tenements solar access and natural ventilation to create an in personam exception to indefeasibility LAND LAW – Easements – Creation of easements –Creation by court order – s 88K easement for light – whether easement is reasonably necessary – whether easement is in the public interest – whether reasonable attempts have been made to obtain the easement through negotiation LAND LAW – Easements – Creation of easements – Creation by court order – compensation – where concurrent expert evidence given on value of land – quantum of appropriate compensation ENVIRONMENT AND PLANNING – Environmental planning instrument – whether environment planning instrument would defeat the claimed implied easement – whether the claimed s 88K easement would be inherently defeasible given the operation of the environment planning instrument

NEGLIGENCE — non-delegable duty of care — liability — where appellant injured back during primary school long jump competition — where appellant felt feet hit hard surface — whether failure to take reasonable precautions to ensure adequate amount of properly raked sand in landing area — whether failure to take reasonable precautions was a necessary condition of occurrence of harm NEGLIGENCE — damages — assessment of damages — assessment of loss of earning capacity for injury negligently occasioned to child — whether injury likely to be productive of financial loss — assessment of damages for non‐economic loss — whether primary judge erred in assessing damages at 20% of a most extreme case

APPEALS — Leave to appeal — leave required — no issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable — leave refused

PRACTICE AND PROCEDURE – application for recusal – whether apprehended bias – application declined

EVIDENCE — certificate of conviction — where certificate of conviction is admissible to prove elements of offences for which the perpetrator was convicted — where primary judge misled a litigant in person as to the effect of the Evidence Act 1995 (NSW) — where primary judge denied appellant procedural fairness — whether Court of Appeal ought approach the matter as if the certificate of conviction had been tendered — where primary judge misapprehended the effect of ss 91, 92 and 178 of Evidence Act — where primary judge’s failure to appreciate the admissibility of certificate of conviction to prove elements of offences compromised assessment of the credibility and reliability of the appellant — Evidence Act 1995 (NSW), ss 91, 92, 178 EVIDENCE — tendency evidence — civil proceedings — tendency rule — whether certificate of conviction had significant probative value — Evidence Act 1995 (NSW), ss 97, 100, 135 NEGLIGENCE — duty of care — vicarious liability — whether the State breached its duty of care to the appellant by failing to apply for an adoption order — whether the State breached its duty of care to the appellant by placing her with the perpetrator — whether the State breached its duty of care to the appellant by failing to foster her relationships with her natural siblings — whether the State is vicariously liable for the conduct of the appellant’s former foster carers — whether third respondent breached her duty of care to the appellant by failing to prevent or report the abuse TORTS — trespass to the person — assault — battery — sexual assault — where appellant was physically and sexually abused by her foster carer while a ward of the State — where second respondent had been convicted of criminal offences against the appellant APPEALS — where appellate court has found error — whether court should resolve issue to avoid economic and emotional costs of re-trial — Supreme Court Act 1970 (NSW), s 75A TORTS — general principles –– damages –– aggravated damages –– buffer for past and future economic loss – earning capacity

ADMINISTRATIVE LAW — Appeals — judicial review — decision of medical assessor referred to review panel — whether primary judge erred in finding that review panel determined the question of causation according to law — where primary judge did not so err ADMINISTRATIVE LAW — Appeals — judicial review — decision of medical assessor referred to review panel — whether primary judge erred in finding that review panel exposed its actual path of reasoning — where primary judge did not so err

CRIME – appeals – appeal against sentence – whether sentencing judge erred by not providing reasons for how onerous bail conditions were taken into account – whether sentencing judge erred by not backdating the sentence to account for pre-sentence quasi-custody – whether the sentence imposed was manifestly excessive

CRIME — Appeals — Appeal against conviction — whether trial judge erred in failing to take into account evidence relevant to the issue of the date sexual intercourse occurred other than with respect to the credibility of the complainant — where trial judge did not so err CRIME — Appeals — Appeal against conviction — whether trial judge erred regarding application of burden and standard of proof — where trial judge was satisfied beyond reasonable doubt of the applicant’s guilt — where trial judge did not so err CRIME — Appeals — Appeal against conviction — Unreasonable verdict — whether verdict of guilty of one charge of carnal knowledge by a teacher following trial by judge alone was reasonable — where evidence as a whole sufficient in nature and quality to eliminate any reasonable doubt as to the applicant’s guilt — where verdict not unreasonable

CRIME – appeals – appeal against sentence – offence of supply prohibited drug not less than commercial quantity – offence of deal with property reasonably suspected to be proceeds of crime – self-represented applicant – complaints with respect to backdating, cumulation, parity – further issues – manifest excess – failure to specify non-parole period in indicative sentence for offence with standard non-parole period – grounds of appeal not established – leave to appeal granted – appeal dismissed

CRIME — Appeals — Appeal against sentence — Where applicant convicted of supply a large commercial quantity of methylamphetamine —Whether sentencing judge erred in assessing the seriousness of the applicant’s conduct — Whether assumptions about criminal organisations unrelated to the offence in question were made — Whether a denial of procedural fairness CRIME — Appeals — Appeal against sentence — Where applicant convicted of supply a large commercial quantity of methylamphetamine — Prospects of rehabilitation — Whether sentencing judge failed to take into account that applicant had good prospects of rehabilitation — Resentencing exercise

CONTRACTS — Breach of contract — Consequences of breach — Right to damages — Joint venture agreement EQUITY — Trusts and trustees — Breaches of trust — Remedies

CIVIL PROCEDURE — evidence — plaintiff tenders supplementary expert report at commencement of expert conclave — report served the day before — leave required — principles at [4]-[5] — no explanation — plaintiff earlier failed to produce the material in discovery — prejudice — leave refused.

CIVIL PROCEDURE – security for costs – where plaintiffs are ordinarily resident outside Australia – where plaintiffs have no significant assets within the jurisdiction – where plaintiffs contend that the reason for their lack of assets in Australia is due to second defendant’s conduct – where prima facie case of wrongdoing – whether costs orders can be enforced against plaintiffs assets in Hong Kong – security for costs granted – freezing order – where prima facie case that second defendant has dishonestly taken assets of the plaintiffs – where plaintiffs delayed in commencing application – where second defendant has not dissipated assets to date – where second defendant alleges plaintiffs would not be able to satisfy an undertaking as to damages – limited freezing order appropriate – security required to support undertaking as to damages.

CIVIL PROCEDURE – Administrative law – Judicial review – Interim relief – Request for adjournment – Discretion to make directions in context of extant proceedings concerned with what is required for a fair trial – Deference to Commissioner in terms of managing safety and security of inmates and correctional centres generally – Where prayer based on anticipated inadequacy of computing facilities at Lithgow – Difficulties in seeking to bring proceedings whilst incarcerated – Where Commissioner gave undertaking with respect to facilities to be provided to plaintiff – Undertaking sufficient to ensure plaintiff’s access to justice – No utility in adjourning proceedings – Application dismissed

APPEALS — leave to appeal — application for stay pending appeal — stay refused — Civil Procedure Act 2005 (NSW), s 67 — Uniform Civil Procedure Rules 2005 (NSW), r 50.7 — lack of utility of stay CIVIL PROCEDURE — parties — failure to join all necessary parties to proceedings — where trustees were necessary parties COURTS AND JUDGES — bias — apprehended bias — lack of utility in granting a stay of primary judge’s dismissal of application for recusal

CIVIL PROCEDURE — suppression and non-publication — interlocutory issues — suppression orders — transgender woman — targeted by activist — Binary Australia — order sought suppressing information concerning employment, occupation, residential address and financial position — whether order “necessary to protect the safety of any person” — whether order “necessary to prevent prejudice to the proper administration of justice” — Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8 COSTS — application for protective costs order — appellant seeking capped costs — protective costs order made — factors to consider in making protective costs order — whether first respondent brought application in the public interest — protective costs order made — Uniform Civil Procedure Rules 2005 (NSW), r 42.4(1)

CRIMINAL PROCEDURE – application to discharge the jury – where jury cautioned pursuant to s 165 Evidence Act 1995 (NSW) – where the witness was cross-examined in relation to crime scene photographs taken by other officers – where the witness had no direct knowledge of circumstances related to the photographs – hearsay evidence – whether the challenge to the hearsay evidence was the subject of agreement between counsel

COSTS – application for gross sum cost order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – where defendant seeks gross sum cost order following plaintiff seeking leave to discontinue proceedings – no issue of principle

COSTS — Party/Party — General rule that costs follow the event — Where application to set aside statutory demand did not proceed – Where no determination of proceedings on the merits.

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranty – proceedings for breach – whether proceedings were commenced by plaintiff owners corporation within the warranty period – whether effect of interim occupation certificate was to cause warranty period to commence – whether interim occupation certificate authorised “the occupation and use of the whole of the building” – whether the two blocks of units should be seen as “separate buildings” that have separate completion dates ESTOPPEL – promissory estoppel – where parties entered into deed of settlement containing a term allowing plaintiff owners corporation to rescind the deed in particular circumstances – whether plaintiff owners corporation estopped from rescinding deed – alleged representation by conduct inconsistent with express right of rescission – where defendant builder already in breach of contract and exposed to rescission before alleged representation made – no detrimental reliance established LAND LAW – strata title – owners corporation – whether owners corporation has standing to seek compensation for building defects within strata lots – no standing established

CRIME – appeals – appeals against sentence –Commonwealth offences of transmitting soliciting and possessing child pornography – alleged failure to assess objective seriousness – alleged statement of agreed facts – alleged as application of s 16A(2AAA) of the Crimes Act 1914 (Cth) concerning sentence of sufficient duration to permit a rehabilitation program – all grounds dismissed – no point of principle

LAND LAW – possession of land – where defendant re-entered land after execution of writ – where writ of restitution sought – where service of judgment with endorsement threatening committal or sequestration authorised

CORPORATIONS – Shares – Transfer – Whether estate of deceased company director entitled to one or two company shares – Where prior purported transfer of a share was not effective – Orders not made

CIVIL PROCEDURE – experts reports – service of experts reports – notice of motion to extend time to serve expert evidence and unsigned evidentiary statement – whether there are ‘exceptional circumstances’ that warrant a grant of leave to rely upon expert reports – where there is no explanation for extensive delay in serving expert evidence – where defendant has identified difficulties in witness adopting unsigned evidentiary statement CIVIL PROCEDURE – medical evidence – psychometric testing – notice of motion to require plaintiff undertake psychometric testing – where expert has expressed the opinion that plaintiff was ‘malingering’ – whether the proper purpose of the application is for a medical examination – where application is disguised as an attempt to impugn plaintiff’s credit

CIVIL PROCEDURE – cross-vesting – application to transfer the proceedings to Federal Circuit and Family Court of Australia – where the Supreme Court proceedings include claims by the plaintiffs for a declaration that the first and second defendant hold property on remedial constructive trust for their benefit – where the relevant property in the Supreme Court proceedings is the only asset of value in the FCFCA proceedings – where the FCFCA has jurisdiction to hear the matter – whether it is in the interests of justice to transfer the proceedings – balancing the interests of justice – proceedings transferred

PRACTICE AND PROCEDURE – stay of enforcement of judgment and orders pending appeal – consideration of terms and conditions of stay – where the fifth defendant has been served with bankruptcy notices issued by the second and fourth plaintiffs in respect of judgment debts arising from orders made by this Court – where an interim extension of time for compliance with those notices has been granted by the Federal Court of Australia pending determination of the fifth defendant’s application for an extension of time, which has been adjourned pending the determination of the fifth defendant’s present application for a stay – where the grant of a stay would adversely affect the second and fourth plaintiffs’ ability to oppose any further extension of time for compliance with the bankruptcy notices – where fifth defendant has offered an undertaking not to deal with his property for the period of any stay – whether it should be a condition of any stay that the fifth defendant grant the second and fourth plaintiffs a charge over his real property where judgment debts may already exceed value of the fifth defendant’s property – where risk of prejudice to second and fourth plaintiffs arises from the prospect that the fifth defendant’s liabilities will increase during the period of the stay – where no evidence of prejudice to the fifth defendant of the imposition of such a condition is adduced – where fifth defendant has given evidence that he has no other current creditors.

HEALTH — Burial and cremation — Burial – plaintiffs include the named executor of the estate of a deceased person, who was a member of the Jewish faith – the deceased survived her parents, who were Holocaust survivors – the deceased’s parents are buried in a part of the cemetery (Section 18E) reserved for Holocaust survivors and Orthodox members of the Jewish faith who observe the Sabbath – the first defendant is the cemetery operator responsible for managing this cemetery on Crown land – the function of the second defendant is to care for the burial needs of the Sydney Jewish community according to Jewish law – the deceased was not proven to be an observer of the Sabbath – the plaintiffs applied for the transfer of an existing interment right to the estate of the deceased enable the deceased to be buried with her parents in Section 18E – after consulting the second defendant, the first defendant declined to allow the transfer or the burial applied for – whether the plaintiffs can require the first defendant to issue an order for interment under Cemeteries and Crematoria Act 2013, s 65 to allow the deceased to be buried in section 18E – construction of the Cemeteries and Crematoria Act ss 46 and 58.

LAND LAW – specific performance – alleged competing interest – where off the plan sales and subsequent sale of entire Lot without disclosure of earlier off the plan contracts – whether off the plan purchasers have an interest in land prior to registration of subdivision sufficient to compete with later bona fide purchaser for value without notice – consideration of nature of interest of off the plan purchaser prior to registration of subdivision – question of principle LAND LAW – contract for the sale of land – proper construction of pre-sale contracts – whether pre-sale contracts are at an end after the expiry of Sunset Date – no question of principle LAND LAW – competing priorities – whether postponing conduct of holder of earlier interest – no question of principle LAND LAW – specific performance – whether purchaser ready, willing and able to perform – whether third parties would suffer hardship – no question of principle

SUCCESSION — Family provision — Costs — Statutory framework in which costs orders are made discussed — Purposive approach to costs orders in family provision proceedings discussed SUCCESSION — Family provision — Costs — Relevance of impecuniosity — Default rules in rr 42.1 and 42.20 UCPR applies to family provision proceedings, though its application remains subject to the Court exercising greater than usual “liberality and discrimination” in deciding whether to depart from it SUCCESSION — Family provision — Calderbank offers — Unusual deployment of offers by the parties — Unsuccessful applicant seeking to underpin a different costs outcome than provisionally foreshadowed following dismissal of claim notwithstanding the outcome achieved was worse than the offer made — Conversely the successful defendant not seeking indemnity costs notwithstanding the making of an offer giving the plaintiff substantial provision bettering the actual outcome (dismissal of her claim)

CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — Where juror has engaged in misconduct CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury — Whether to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice — Where strong inference that discharged juror was the dissident juror — Whether the accused has lost the sole voice standing against a conviction — Whether discharged juror’s misconduct has contaminated the remaining jurors

CRIMINAL PROCEDURE – applications for trial by judge alone – whether trial by judge alone in the interests of justice – where no evidence was led to explain delay in application – where context evidence of other offence necessary – where proposed expert evidence is not particularly complex – where courts proceed on the basis that juries are presumed to follow directions not to access internet materials relating to the event and the earlier trial – not in the interests of justice to order a trial by judge alone – applications refused

CIVIL PROCEDURE — Court of Appeal — objections to competency of appeal — where notice of appeal filed out of time — whether value of claim sufficient for purpose of s 101(2)(r) of the Supreme Court Act 1970 (NSW)

CIVIL PROCEDURE — Court of Appeal — stay pending appeal — whether the applicant has raised sufficiently serious issues to warrant stay — motion seeking stay of execution of writ of possession dismissed

SUCCESSION — Family provision — Claim by adult child of de facto partner of deceased— Whether claimant is an eligible person — Whether there are factors warranting the bringing of the application — Whether an order for further provision should be made — Where deceased held a right of residence in de facto partner’s property — Where claimant time and money repairing property SUCCESSION — Family provision — Notional estate — Where property of the estate already distributed — Whether order designating property as notional estate should be made

PRACTICE AND PROCEDURE – application for determination of separate questions – application for questions of liability to be determined separately and in advance of quantification of damages – whether there should be a departure from the ordinary position to hear and determine all issues concurrently – whether separate questions will facilitate the just, quick and cheap resolution of the real issues in the proceedings – where there would be a potential for overlapping evidence – no separate questions to be answered.

CIVIL PROCEDURE – summary disposal – judgment for plaintiff – where defendant admits allegations in list response

COSTS – general rule that costs follow the event – application of the rule and discretion – costs of motion seeking stay of judgment – where cross-claimant ultimately successful in having stay lifted but unsuccessful in relation to earlier hearing of motion – where unnecessary for plaintiff to be an active participant on the motion

APPEALS — Leave to appeal — Principles governing — Whether leave required — Whether questions of law are of sufficient public importance TAXES AND DUTIES — Land tax — Liability — Exemptions — Whether principal place of residence exemption applied to land where some areas reserved for commercial use only — Where plaintiff intended to leave the exclusively designated commercial areas vacant

SUCCESSION — Probate and administration — Informal document — Dispensing with requirements for execution of a will pursuant to Succession Act 2006 (NSW), s 8 — Intention to constitute a will

SUCCESSION — Family provision — Claims by adult children — Whether insufficient provision was made by deceased to plaintiffs SUCCESSION — Family provision — Notional estate — Whether estate was affected by relevant prescribed transactions

CORPORATIONS – Winding up – Public examination of director, officers and others – Interim orders previously made under s 1323(1) of the Corporations Act 2001 (Cth) for freezing of assets – Where liquidator’s examinations will shortly take place – Whether final orders should be made under s 1321(1) of the Corporations Act – Whether interim relief could be granted under UCPR r 25.11, 25.14 – Whether interim relief could be granted under s 1323 of the Act pending any appeal.

CRIMINAL LAW – release application – appeals bail – where previous applications dismissed by the Court of Criminal Appeal – statutory prohibition on multiple applications – whether grounds established for further application – whether material information to be presented that was not presented on earlier applications – whether circumstances relevant to the grant of bail had changed – self-represented applicant – indulgent approach to filing of evidence and submissions in contravention to Registrar’s directions and after the hearing – whether “more settled” grounds appeal amounted to grounds under s 74(3) of the Bail Act – changes to grounds cosmetic – whether imminence of applicant’s release a relevant change of circumstance – release date known on two previous release applications – provisional decision to grant parole – review hearing pending – relevance to release application where no outstanding charges – grounds for further release application not established – application dismissed – decision should not impact on decision of Parole Authority

CIVIL PROCEDURE – judicial review procedure – Uniform Civil Procedure Rule 59.7 – application to tender further evidence from defendant's expert – experts had produced joint and agreed reports – defendant granted time to ask both experts certain questions directly, overnight – plaintiff's expert unavailable; defendant's expert available, and produced answers not seen by plaintiff’s expert – leave refused

CIVIL PROCEDURE — proceedings commenced by person under legal incapacity — settlement of proceedings — Court approval – no point of principle

EQUITY – Equitable remedies – injunctions – where the plaintiff seeks leave to proceed pursuant to UCPR r 11.8AA – where the plaintiff seeks final relief by way of default judgment - where defendants’ names unknown but defendants involved in clearly identifiable acts – injunctive relief ordered against such “persons unknown” – non-publication and suppression orders.