REPRESENTATIVE PROCEEDINGS – Civil Procedure Act 2005 (NSW) pt 10 – where duplicate sets of representative proceedings (class actions) are commenced in the Court against the same defendants with different solicitors on the record – whether the Court should relax the one solicitor for plaintiffs rule and permit joint solicitors on the record – procedure to be adopted for determining the question which solicitor should be on the record – HELD – the rule should not be relaxed – HELD FURTHER – If the question which solicitor should be on the record cannot be agreed between the parties, an expeditious abbreviated procedure of the type used to resolve forum non conveniens disputes should be adopted to resolve the question.
CRIMINAL LAW – sentence – offender found guilty of murder after trial by jury – offender relied upon partial defence of substantial impairment – jury rejected partial defence – diminution for culpability for murder by reason of mental state still available – discussion of objective and subjective features – sentence imposed
EVIDENCE – privilege – client legal privilege – where documents previously produced to liquidators of former trustee under s 530B of the Corporations Act 2001 (Cth) – whether current trustee can claim privilege.
CORPORATIONS – winding up – public examination of directors, officers and others – where solicitor acting for major creditor also acts for liquidators – where liquidators will retain independent solicitor to instruct counsel for purposes of conducting examinations – whether examination summonses should be set aside.
CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By person convicted or sentenced on a question of law alone – alleged failure to apply rule of statutory construction regarding immunity in respect of words used in judicial proceedings – validity of conviction under s 192G of Crimes Act 1900 (NSW) for false statements to Local Court that statements of claim were served – statements made to obtain default judgment
CRIME — Fraud — intention to defraud by false or misleading statement – whether applies to statements in judicial proceedings
CRIMINAL PROCEDURE – unsuitability of injunctive relief to restrain laying of further charges
PRACTICE AND PROCEDURE — Applications — Summary dismissal — Abuse of process — Where the plaintiff has filed three notices of motion seeking summary judgment
ADMINISTRATIVE LAW – Judicial review – Civil and Administrative Tribunal of NSW – Decisions of an Appeal Panel and Senior Member of the New South Wales Civil and Administrative Tribunal – Refusal to conduct judicial review under s 34 of the Civil and Administrative Tribunal Act 2013 (NSW)
PRACTICE AND PROCEDURE – Civil procedure – Application for leave to appeal from the decisions of an Appeal Panel and Senior Member of the New South Wales Civil and Administrative Tribunal as to costs – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Where the decision of the Senior Member does not involve an “external or internal appeal” – Inappropriate exercise of discretion – Failure to provide adequate reasons – Failure to afford procedural fairness
CORPORATIONS — Voluntary administration — Administrator — Right to indemnity – whether Administrators’ remuneration and disbursements takes priority over secured and unsecured creditors – Corporations Act 2001 (Cth), ss 443D, 443E(3)(c) – whether Administrators otherwise entitled to equitable lien – no determination sought on quantum.
EQUITY — Equitable charges and liens — Lender’s lien – Whether deposit of certificates of title in context of debtor-creditor relationship gives rise to equitable security over mortgagor’s rights – priority between mortgagor’s equitable security interest and earlier grant of security over funds advanced – postponing conduct – later equitable security prevails over earlier legal charge.
CORPORATIONS — Debentures, charges and mortgages — defectively drafted and incomplete loan documentation – no distinct security interest created where deed drafted “in aid” of separate mortgage instrument.
CIVIL PROCEDURE — Originating process — Amendment – Whether proposed amendment statute barred
CIVIL PROCEDURE — Parties — Addition of defendant — Date when addition takes effect – Civil Procedure Act 2005 (NSW), s 65(2)(c), s 65(3)
LIMITATION OF ACTIONS — Operation of bar — Joinder of defendant out of time
CORPORATIONS – winding up – public examination of directors, officers and others – where shareholders propose to examine former director of company – where shareholders investigating potential class action – whether proposed examination is to be conducted for an improper purpose – whether proposed examination is an abuse of process.
COSTS – security for costs – order for production – where liquidators and creditors of company would bear costs of production – where significant difference in costs estimates – whether production should be ordered on condition that persons seeking disclosure fund costs of such disclosure.
CONTRACTS – Construction and interpretation – general principles – ambiguity – surrounding circumstances and commercial objects of contract – interpretation in context of contract as a whole – redundancy of terms – whether redundancy appropriate in these circumstances – whether alternative construction of words inconsistent with other provisions or commercial purpose of contract – standard form contract to which terms have been added – greater weight given to added terms in event of inconsistency
ADMINISTRATIVE LAW – jurisdictional error – judicial review of Determinations of Compensation issued by the Valuer-General under s 47 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – whether the Determinations with respect to underlying zoning and development standards lacked probative evidence and were legally unreasonable – whether the Determinations with respect to the comparable sales method of valuation were legally unreasonable – not legally unreasonable – impermissible merits review – no jurisdictional error
ADMINISTRATIVE LAW – jurisdictional error – whether there was power to award certain disturbance costs under s 59(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – where the Valuer-General misdirected himself to the date from which disturbance costs were claimable in accordance with Hoy v Coffs Harbour City Council [2016] NSWCA 257 – whether the legal error made by the Valuer-General in making the Determinations has the consequence that the Determinations are liable to be set aside for jurisdictional error – jurisdictional error – Determinations set aside – declaration made
CIVIL PROCEDURE – stay – orders made by consent staying the legal effect of the Valuer-General’s Determinations until the final disposition of the proceedings – whether the Court can stay the operation of an Act
COSTS – party/party – issues severable – first and second defendants successful on 70 per cent of issues in the case – plaintiff to pay 30 per cent of the first and second defendants’ costs
COSTS — Security for costs — Relevant factors – r 42.21(1A) of the Uniform Civil Procedure Rules 2005 (NSW) – consideration of prospects of success or merits of the proceedings (r 42.21(1A)(a)) and whether the cross-claim is defensive in nature (r 42.21(1A)(e)) – security for costs ordered by way of an unconditional bank guarantee or payment into court.
CIVIL PROCEDURE — Parties — Joinder — Of cross-defendant – application for joinder of Lawcover by cross-claimants – where Lawcover is the insurer of a law firm under a “run-off” professional indemnity insurance policy – where the law firm was instructed by the applicant to draft the relevant trust deed and to act on the conveyance of the relevant property – whether the solicitors allegedly failed to give certain advice to the applicants including to lodge with the Land Titles Office a copy of the relevant trust deed or to lodge a caveat over the relevant property – whether discretion under s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) enlivened to permit the joinder of Lawcover – held that the proposed third cross-claim does not adequately establish the existence of a reasonably arguable cause of action against Lawcover – notice of motion dismissed
HIGH RISK OFFENDER – final hearing – application for extended supervision order – Court satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision – defendant conceded the order should be made – parties agreed on form of conditions – Court satisfied that conditions are appropriate to manage the defendant’s risk – extended supervision order of five years duration made
CRIME — murder — trial by judge alone — no dispute that elements of the offence established
MENTAL HEALTH — criminal proceedings — defence of mental illness — special verdict of not guilty by reason of mental illness
CORPORATIONS — Shareholders’ rights and remedies — Access to books and records — Shareholder sought access to completed proxy forms in advance of AGM — Sought to influence votes to assist the election of their candidate — Whether “books and records of the company” for the purposes of s 247A — Section does not apply to books in the company’s possession but not belonging to it — Proxy forms are not books “of the company” — Whether common law right of access to proxy forms — Application of Edman v Ross (1922) 22 SR (NSW) 351 — Whether “necessary with reference to some specific dispute or question in which the shareholder is interested” — Inspection unnecessary having regard to the rights granted by the Corporations Act — Judgment for the defendant.
COSTS – security for costs – where cross-claim is primarily defensive in nature – no security for costs to be ordered
COSTS – security for costs – procedure and discretion – further security sought from the plaintiff for future costs – broad brush approach – further security ordered
HIGH RISK OFFENDER – preliminary hearing – application for appointment of two psychiatrists – application for interim supervision order – orders made – conditions imposed
ADMINISTRATIVE LAW – procedural fairness – notice not given by Registrar General when primary application made by neighbour to bring land under Real Property Act 1900 (NSW) – relief granted
EMPLOYMENT AND INDUSTRIAL LAW — Contract — Termination — Termination on notice – whether the plaintiff was justified in terminating the employment contract of the defendant (its former managing director) – whether the plaintiff would have been justified in terminating summarily the defendant’s employment contract on the ground of serious misconduct – where information regarding unauthorised directions and payments made by the defendant were discovered after the termination – whether the contract was for a fixed term – held that the contract was not for a fixed term and the plaintiff was justified in terminating the employment contract and would have been justified in terminating summarily the defendant.
EQUITY — Equitable remedies — Restitution – Unjust enrichment – whether the plaintiff could recover the notice payment paid to the defendant – whether there was a factor rendering retention of the notice payment unjust – held that the payment was made voluntarily in circumstances where the plaintiff chose not to investigate further but to bring the employment to an end immediately.
CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Silence – whether necessary to establish reasonable expectation of disclosure,
EQUITY —Trusts and trustees — Resulting trusts –moneys misappropriated by the defendant held on presumed or resulting trust by the defendant for the benefit of the plaintiff – unauthorised profits in breach of the defendant’s fiduciary duties held by the defendant subject to a constructive trust in the plaintiff’s favour.
EMPLOYMENT AND INDUSTRIAL LAW — Leave — Long service leave – s 4(2)(a)(ii) of the Long Service Leave Act 1955 (NSW) – whether the defendant had been wrongly denied long service leave accruals on termination of his employment – held that the defendant was entitled to long service leave on the basis that his employment was terminated in lieu of notice and not for misconduct.
COSTS – multiple defendants and cross-claims – unsuccessful cross-claims by defendants – whether costs of cross-claims should be borne by unsuccessful plaintiffs – whether plaintiffs’ claim was catalyst for cross-claims – whether reasonable for defendants to have joined cross-defendants – whether cross-claims raised issues private to the parties to them
SUCCESSION — Family Provision — Claim by adult child for provision from the deceased’s estate — Proceedings not commenced within time — Whether sufficient cause shown to extend time — Principles upon which relief granted
SUCCESSION — Wills and Estates — Notional estate — Restrictions on out of time or additional applications — Where property of the estate distributed — Whether order designating property as notional estate should be made
SUCCESSION – Family Provision – Claim by adult child of the deceased for provision from the deceased’s estate under Ch 3 of Succession Act 2006 (NSW) – Small estate – No notional estate – Competing claim of sole beneficiary named in Will – Clause in deceased’s Will setting out reasons for no provision being made for adult child – Whether facts asserted in the Will as to Plaintiff’s conduct are accurate – Whether adequate and proper provision not made for the Plaintiff – Nature and quantum of provision, if any, that ought to be made for the Plaintiff
CRIMINAL LAW – guilty plea – sentence – murder – victim impact statement – objective features – objective seriousness – intention to kill – short period of premeditation and planning – subjective features – criminal history – protection of community – remorse – moral culpability and mental disorder – prospects of rehabilitation – general deterrence – maximum penalty – standard non-parole period – special circumstances – orders
HIGH RISK OFFENDER – preliminary hearing – Terrorism (High Risk Offenders) Act 2017 – application for an interim supervision order – interim supervision order granted
COSTS – contract dispute – indemnity costs – Calderbank letters – whether genuine offer of compromise – whether proceedings conducted unreasonably – continued requests to clarify case – passage of two and a half years – relevance of delay
COSTS – indemnity costs – summary dismissal – claim statute-barred – whether should have been apparent to plaintiff that proceedings had no real prospects of success – whether delinquency or unreasonableness on behalf of plaintiff – whether proceedings an abuse of process
APPEAL – security for costs – appeal from NCAT to Supreme Court – 106 grounds of appeal – decision of an Associate Justice – 30 grounds of appeal – whether appeal or judicial review – whether error of law – House v The King error
ASSOCIATIONS AND CLUBS — Racing clubs and associations — Validity of appointment of an administrator under s 24(1)(j) of the Greyhound Racing Act 2017 (NSW) — Powers of administrator appointed pursuant to same – Interlocutory regime pending determination of validity of appointment
PRACTICE AND PROCEDURE – stay of proceedings under Civil Procedure Act 2005, s 67 – the plaintiffs and the defendant are registered proprietors as joint tenants of real estate held under Real Property Act 1900 – defendant concedes that he holds his interest as joint tenant on trust for the plaintiffs – plaintiffs seek transfer of the defendant’s interests as joint tenant to them – plaintiffs and defendant accept that the plaintiff must indemnify the defendant in respect of his holding of the trust property – transfer of the trust property by the defendant to the plaintiffs may cause the defendant to incur capital gains tax (“CGT”) liability – defendant seeks private binding ruling from Commissioner of Taxation and seeks a stay of proceedings until the ruling is available – plaintiffs say proceedings should continue and that trust property be transferred to them – whether or not the proceedings should be stayed pending receipt of the private binding ruling.
CIVIL PROCEDURE – Security for costs – capacity to pay adverse costs order – whether moving party is in substance defendant or plaintiff – financial position of plaintiff
CRIMINAL LAW – SENTENCE – MURDER – offender found guilty following trial by jury – victim shot six times in the head and once in chest – victim and offender’s wife involved in a relationship – where offender’s motive related to his outrage at the relationship between the victim and the offender’s wife and his sense of cultural dishonour – planned offence committed with intent to kill – whether offender provoked by victim attracting operation of s.21A(3)(c) Crimes (Sentencing Procedure) Act 1999 – characterisation as an “honour killing” unhelpful to offender – no “honour” in murder – offence fell markedly above mid-range of objective seriousness – general and specific deterrence important factors on sentence – absence of remorse – consideration of totality arising from accumulation of sentence on pre-existing sentence – limited finding of special circumstances – offender sentenced to imprisonment for 32 years with a non-parole period of 23 years.
CIVIL PROCEDURE – jurisdiction – Commissioner of Police – power to cause medically unfit police officer to be retired – whether decision “dismissal” – whether decision subject to review in Industrial Relations Commission – whether contrariety between Police Act 1990 (NSW) and Industrial Relations Act 1996 (NSW) – whether review in Industrial Relations Commission incompatible with provisions of Police Act – Industrial Relations Commission’s power to deal with industrial matters covering police officers – whether Police Act evinces a legislative intention to exclude the jurisdiction of the Industrial Relations Commission
TORTS – injurious falsehood – application for interlocutory injunction to prevent further publications pending final hearing where the first defendant is a media company and the second defendant is an employee and radio broadcaster for the first defendant – where the second defendant made a number of representations about the plaintiff’s business on his radio show – representations were also made in articles published on the first defendant’s website – whether there is a prima facie case that the representations were made maliciously – where the defendants made allegations about the plaintiff with reckless indifference to the truth of the allegations or without any belief in the truth of the allegations – absence of evidence to support a number of statements made by the defendants – prima facie case made out – balance of convenience strongly favours the plaintiff
UNCONSCIONABLE CONDUCT – causation of loss –findings in principal judgment that the defendant/first cross-claimant deprived of the opportunity to purchase three of six properties by the first cross-defendant’s misleading, deceptive and unconscionable conduct – wrongdoer deters an associate of the defendant/cross-claimants from sharing in the purchase of two of the six properties – on what basis should damages be assessed against the cross-defendants: on the basis that the cross-claimants would have purchased a single additional property or an additional three properties.
TRUSTS AND TRUSTEES – reimbursement and indemnity under Trust Deeds for trustees’ trust-related expenditure – principal judgment makes a finding that the defendants/cross-claimants are trustees for the cross-defendants in the acquisition and development of certain properties – defendants/cross-claimants seek to set aside the Trust Deeds – defendants/cross claimants claim reimbursement and indemnity under the Trust Deeds for trustees’ trust-related expenditure – whether their expenditure is recoverable.
DAMAGES – General principles – Incidence of taxation as affecting damages – Whether interest on award of mesne profits should be grossed up for taxation
Practice and procedure — Proceedings — Transfer of proceedings — Forum – application for summary dismissal or stay of proceedings – application for disclosure of details recorded on strata roll per Strata Schemes Management Act 2015 (NSW), ss 187, 188 and 232 – whether appropriate proceedings be transferred to NCAT – jurisdiction of Tribunal.
LAND LAW — Strata title — Owners corporation —Strata roll – application for production from building manager of contact details of owners recorded on strata roll – Schemes Management Act 2015 (NSW), ss 187, 188 and 232 – jurisdiction of Tribunal.
ADMINISTRATIVE LAW — Judicial Review — Motor Accidents Compensation Act 1999 (NSW) s 92(1)(b) — Where plaintiff sought that the claim be exempt from informal assessment process on the grounds that it was not suitable due to the first defendant’s false and misleading statements — Whether there was error of law or jurisdictional error on the part of the assessor — Whether the assessor asked the correct question — Errors established — Matter remitted for determination according to law
CORPORATIONS - statutory demand - offsetting claim - whether debtor confined to legal formulation of claim - where application included all material facts relied on, and quantified the claim - statutory demand set aside - Graywinter principle, considered.
LIMITATION OF ACTIONS – debt – payable immediately or on demand – usual rule of construction that time runs from date of advance for loan repayable on demand – whether displaced by clear language
APPEALS – failure by magistrate to address limitation defence – whether Supreme Court can determine proceedings or whether remitter required
CORPORATIONS — Directors and officers — Authority and powers – appointment of managing director by purported resolution of sole director - articles did not provide for sole director – appointment not valid – resolution approving of director’s remuneration not valid – payment of legal fees on behalf of company not valid.
CONTRACTS — Formation — Agreement – informal oral agreement for sale of Company property – parties contemplated later execution of formal documents – oral agreement not enforceable.
CONTRACTS — Formation — Agreement – informal written agreements contemplated later execution of formal document but otherwise unqualified and specific in terms – immediately binding if entered with authority.
CORPORATIONS — Directors and officers — Authority – Unanimous Assent – where one share held on trust by estate and transfer not registered until some time later – application of doctrine – informed consent.
CORPORATIONS — Directors and officers — Authority – entry into agreements for sale of land absent proper authority – party likely unaware he lacked proper authority – party a solicitor and likely aware Company’s articles must be changed to facilitate sole directorship – validation of agreement to sell Company’s share of property under s 1322 refused.
CORPORATIONS — Membership — Register — Rectification of register – rectification of share register – share held on trust – transfer from beneficiary’s estate belatedly recorded in Company’s register – transfer recorded as occurring on date omission discovered not prior date of intended transfer – evidentiary purpose of Company register – rectification granted to accord with parties’ intent to transfer all shares from beneficiary’s estate.
CIVIL PROCEDURE — Subpoenas — Application to set aside and a notice to produce – whether or not there has been an implied waiver of legal professional privilege in the documents sought to be produced under the subpoena and the notice to produce – notice to produce allowed in its entirety – access to subpoena documents allowed but limited
CRIMINAL LAW – trial date vacated - proceedings against the accused stayed until DPP pays to accused his reasonable costs thrown away by the trial date being vacated – whether the quantum of the legal costs thrown away by the trial date being vacated is reasonable – what amount is payable by the DPP
CRIMINAL LAW – murder trial vacated – application for stay of indictment until payment by Crown of accused’s costs thrown away – whether circumstances leading to need for adjournment the fault of the Crown – whether unfairness to accused
CIVIL PROCEDURE – amendment – application to amend defence where notice given in June 2019 and hearing date set for June 2020 – whether Court should exercise discretion to grant leave to amend – whether amendments are important – whether there was a delay in making amendments – whether there is prejudicial effect on the plaintiffs if the Court grants leave to amend – amendments important – amendments not futile – amendments do not compromise hearing date
PRACTICE AND PROCEDURE — Application to vary
asset preservation orders and orders restraining party dealing with proceeds of sale of property – variation sought to permit sale of property and use proceeds to fund legal representation in proceedings – whether party in breach by dealing with alleged traceable proceeds of property – “rule” against hearing a party where prima facie in contempt – whether “rule” discretionary – Civil Procedure Act 2005 (NSW), ss 55-64.
CHILDREN AND YOUNG PERSONS – parens patriae jurisdiction – discharge of secure accommodation order – Court required to be satisfied that appropriate alternative transitional arrangements are in place –interaction of guardianship function of the Public Guardian and the Court’s parens patriae jurisdiction – observations on the progress of the young person in the Sherwood House program upon discharge of the secure accommodation order.
LIMITATION OF ACTIONS – discoverability – claim for damages for workplace injury – orders for summary dismissal sought on basis that proceedings are abuse of process and time barred – where plaintiff sued companies A and B within limitations period – where claim against company B discontinued – where default judgment obtained against company A – where company A was not insured and judgment remains unsatisfied – where company B was insured and present proceedings commenced against it out of time – whether cause of action discoverable by plaintiff on first date he knew or ought to have known the fact that injury was caused by the fault of company B – whether plaintiff could “unknow” earlier fact that injury was caused by the fault of company B – Limitation Act 1969 (NSW), s 50D(1)(b) – whether doctrine of res judicata applies to default judgment
SUCCESSION – Application for family provision orders under Ch 3 of the Succession Act 2006 (NSW) – Factors warranting the making of the applications – Whether sufficient cause has been shown under s 58(2) of the Succession Act 2006 (NSW) – Whether there are special circumstances that justify the making of a notional estate order under s 79 of the Act.
BUILDING AND CONSTRUCTION – Contract – Builder reported asbestos contaminated material found on site; variations for removal of the contaminated fill, as well as other variations; owner claims that the person acting as superintendent on the job was not the person contractually agreed to be the superintendent and denies the efficacy of certification and approvals given by that person – Whether owner in breach of contract for failing to ensure the named superintendent acted in that role – Whether variations had to be in writing – Effect of instructions from the owner’s representative to the builder in the presence of the superintendent.
BUILDING AND CONSTRUCTION – Quantum meruit – Where owner instructed builder to remove contaminated fill from the site and builder did so.
ESTOPPEL – Estoppel by convention – Mutual assumption – Whether owner estopped from denying that the person acting as superintendent was the superintendent for the purposes of the contract.
CONTRACT – Misleading conduct under statute — Misleading or deceptive conduct – claim under s 18 of the Australian Consumer Law – Where owner claims that the builder engaged in misleading or deceptive conduct in relation to the need to excavate and remove contaminated fill from site; the builder was instructed to remove the fill and to do so in accordance with the advice of an authorised subcontractor approved by the owner.
COSTS — Party/Party —General rule that costs follow the event – second cross-defendant succeeded on first cross-claimant’s cross-claim but not on first cross-claim – relevant adjustment to general rule – costs referrable to relevant cross-claims where defendants commonly represented - Dimos v Willetts.
LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees for sale pursuant to Property Law Act 1958 (Vic), Part IV, s 225 – property purchased but not formally transferred – “land” per s 225 encompasses equitable interests held in title – trustee appointed for sale of estate and relevant interest held – stamp duty to be paid out of proceeds of sale.
CIVIL PROCEDURE — Stay of proceedings — Pending prospective appeal and removal of proceedings to High Court – no evidence of outcome of application for removal of proceedings – no evidence of prospective grounds for appeal – stay refused.
LAND – judgment for possession – father is registered proprietor of land – seeks possession of land from son who is in occupation – father acts by another son (and the other son’s wife) as attorneys – notice to quite given – whether son is trespasser – defences to action for possession – whether defences made out – discussion of the issue of a writ for possession.
PRACTICE AND PROCEDURE – the Court’s first
judgment directed the parties to bring in short minutes
of order to give effect to the Court's reasons in the first
judgment – short minutes of order were prepared and
made by consent – plaintiffs/cross-defendants
consented to the short minutes of order under a
misapprehension as to the effect of the directions of
the Court – orders made include declarations as to the
liability of the second, third and fourth cross-
defendants – Uniform Civil Procedure Rules 2005, rr
36.15 and 36.16(3) – whether the declaratory orders
can and should be set aside – whether consequential
relief can be claimed based on declaratory orders.
DAMAGES – assessment of the quantum of various
claims for damages for trespass or nuisance – no
question of principle.
ADMINISTRATIVE LAW – workers compensation – decision of Approved Medical Specialist – decision of Medical Appeal Panel of the Workers Compensation Commission – decision of Arbitrator of the Workers Compensation Commission – where Arbitrator found error but did not set aside Panel decision – 15 grounds of review – procedural fairness – whether error of law on the face of the record – whether jurisdictional error – whether an extension of time should be granted
CIVIL PROCEDURE — Parties — Joinder — Of defendants – whether a third-party seeking to be joined as the fourth defendant is a necessary party to the proceedings – whether the third party had an interest potentially affected by the monetary judgment or declaratory relief that had been granted – application dismissed
CIVIL PROCEDURE — Subpoenas — application by defendants for access to documents produced on subpoena by tenth cross-defendant’s former solicitors – legal professional privilege claimed – whether implied waiver of privilege – orders made for access to certain documents on basis that affidavits filed in the proceedings by tenth cross-defendant disclose communications giving rise to implied waiver
CONSTITUTIONAL LAW – Kable principle – whether the Terrorism (High Risk Offenders) Act 2017 (NSW) undermines the institutional integrity of the New South Wales Supreme Court
MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee – default on mortgage – whether mortgagee entitled to possession of land – leave granted to issue writ of execution
CONTRACTS —cross-claim — general contractual principles — harsh, unconscionable or oppressive contracts and statutory remedies – whether higher interest rate under loan agreement amounted to a contractual penalty – whether contract unjust for purposes of s 9(1) of the Contracts Review Act– no relief granted
COSTS — Security for costs — Relevant factors – application for security for costs of motion by judgment debtors to set aside consent orders made in October 2018 for the entry of judgment in favour of the plaintiffs and other relief – applications for payment into court or for security to be provided for the judgment debt and indemnity costs orders – jurisdiction to make orders sought – consideration of discretionary factors raised against the grant of security – security for the costs of the set aside motion ordered to be provided – otherwise applications in relation to judgment debt and security for costs orders deferred to the hearing of the set aside motion.
EVIDENCE — Privilege — Client legal privilege — Documents produced in answer to Notice to Produce shortly before hearing — Admissibility of affidavit evidence in support of privilege claim — Applicability of s 75 of the Evidence Act — Leave to adduce further evidence in support appropriate in circumstances — Whether Court should inspect documents — Whether issue waiver — Relevance of statutory requirement of good faith in s 237 of the Corporations Act — No issue waiver — Claim upheld.
CRIMINAL LAW – sentence – aggravated dangerous driving occasioning death – plea of guilty – driving with high range blood alcohol concentration – collision with pedestrian – failed to stop or render assistance – driving over considerable distance
HIGH RISK OFFENDER – where Defendant does not oppose making of ESO – question as to duration of ESO – question as to conditions attaching to ESO – Defendant has previous convictions for five serious sex offences – offender intoxicated by alcohol or use of methamphetamine at time of offending – aggravated sexual assault index offence – consideration of factors under s.9(3) Crimes (High Risk Offenders) Act 2006 – expert assessments of risk provide cogent foundation for the making of an ESO –ESO made for period of five years subject to conditions as sought by Plaintiff
CIVIL PROCEDURE – expert reports – late filing and service of expert reports – whether determination of admissibility of expert reports should be made prior to, or at, trial – not appropriate to give a ruling or make a finding about the admissibility of first report – plaintiff not entitled to use second report without obtaining leave from trial judge
CORPORATIONS — Members’ rights and remedies — Oppression — Where conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory
against minority — No issue of principle
CORPORATIONS — Voluntary administration — General matters — Whether administrators validly appointed
EQUITY – trusts and trustees – application by plaintiffs for an order that the trustees of a statutory trust for sale under s 66G of the Conveyancing Act 1919 (NSW) be directed to distribute proceeds of sale in a particular manner by making various adjustments – where the orders recording the terms of the statutory trust for sale required the trustees to distribute the proceeds of sale to the plaintiffs and the defendant in equal shares, subject to any adjustments that should be made in favour of either side – held that the orders should not be construed so as to require the trustees to make the adjustments sought by the plaintiffs – trustees not bound to decide that the adjustments should be made – proposed adjustments not adjustments between the plaintiffs and defendant in their capacity as co-owners – inappropriate to direct trustees to make distribution as sought by the plaintiffs
EQUITY – trusts and trustees – judicial advice – application for judicial advice brought by trustees of a statutory trust for sale under s 66G of the Conveyancing Act 1919 (NSW) – where plaintiffs and defendant are beneficiaries under the statutory trust for sale – where the defendant previously entered into contract with trustees to purchase the property – where that contract was terminated by trustees – where property subsequently sold to third party – where defendant foreshadows potential claims against trustees in relation to the termination of the contract – whether trustees are justified in retaining some or all of the proceeds of sale to protect their right of indemnity in relation to the potential claims – trustees justified in retaining some of the proceeds of sale – judicial advice given
CRIME – confiscation – forfeiture order – application to exclude interest in property from forfeiture order – application to exclude value of innocent interests from forfeiture order – whether plaintiff has “interest” in forfeited property – question of statutory construction – plaintiff’s “interest” in property has not been forfeited by forfeiture order – applications dismissed on the basis of incompetence
CRIME – confiscation – forfeiture order – application for payment of amount from proceeds of sale of interest on basis of hardship – whether plaintiff is a dependent of the person whose interest has been forfeited – neither plaintiff nor children were dependents at the time that forfeiture orders first sought and made – hardship that can be ameliorated by payment not made out on the evidence
ADOPTION - FAMILY LAW AND CHILD WELFARE –Adoption- whether adoption in the child’s best interests- whether adoption clearly preferable – shared parenting arrangement
LAND LAW – Caveats – Caveatable interest – What constitutes a caveatable interest – Whether a constructive trust not yet declared by a court is a caveatable interest – Plaintiff seeking an extension of the caveat in circumstances where the only proceeding currently on foot is the plaintiff’s application for preliminary discovery.
LAND LAW – Caveats – Formal requirements – Requirement to specify particulars of estate or interest claimed – Where defendants assert that the plaintiff has not sufficiently articulated the basis of the claimed interest; described in the caveat as a “beneficial interest in trust” arising from the defendants’ breach of fiduciary, contractual and other duties, rather than specifically as a “constructive trust”.
HIGH RISK OFFENDERS – application for interim supervision orders – where the defendant is a high risk terrorist offender – convicted NSW underlying terrorism offender – where the defendant has made threats of violence to advance cause of legalising prohibited drug use – no history of violence – where the defendant has failed to comply with conditional liberty – interim supervision order granted
CRIMINAL LAW – Evidence – Witnesses – Application to the court to recall a witness - Power of the Court to order the Crown to call witnesses – Principles for recalling witnesses in The Queen v Apostilides – Court is not required to compel Crown to call witnesses - Court is not required to compel Crown to give reasons – Not “exceptional circumstances
requiring court to order calling of witnesses
CRIMINAL LAW – Evidence – Where the Crown seeks to tender photocopies of an original document – Whether the Crown has to prove the authenticity of the documents – On the balance of probabilities, whether the photocopies are authentic replicas of the original
HIGH RISK OFFENDER – interim supervision order – whether condition in s 10A(b) met – evidence persuasive – purpose of legislation – safety of the community and protection from serious offenders
CRIMINAL PROCEDURE - Admissibility of evidence - unavailability of witness to give evidence - exceptions to the hearsay rule – probative value substantially outweighed by risk evidence is misleading or confusing.
CRIMINAL PROCEDURE – Admissibility of evidence – whether to permit refreshing of memory with contemporaneous document – fresh in the memory – importance of witness – judicial function to ensure fairness in trial – refuse leave
LAND LAW – Mortgages – equitable mortgage – judicial sale – default of loan agreement – no issue of principle
GUARANTEE AND INDEMNITY – Actions to enforce – no issue of principle
CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court – application by the defendants for transfer of the proceedings to the Federal Court – in circumstances where the proceedings engage the jurisdiction in bankruptcy within the meaning of s 27 of the Bankruptcy Act 1966 (Cth) – whether there are “special reasons” under s 6(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) for the proceedings to be determined in the Supreme Court – held that the financial position of the plaintiff and her difficult financial circumstances constitute special reasons for the matter to be determined in the Supreme Court
PRACTICE AND PROCEDURE – application for summary judgment – r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) – construction and purchase of a horse trailer – summary judgment ordered against the first defendant
PRACTICE AND PROCEDURE – costs dispute – whether successful plaintiff entitled to costs where amount recovered did not exceed $500,000 – factors relevant to consideration – conclusion that commencement and continuation of proceedings in the Supreme Court was warranted – plaintiff entitled to an order for costs.
CORPORATIONS – winding up – appointment of liquidators as administrators – where liquidators seek leave to appoint themselves administrators – where matters to be addressed to implement deed of company arrangement proposal – where no conflict of interest or duty – whether leave should be granted to liquidators for their additional appointment as administrators.
CORPORATIONS – administration – application to dispense with first meeting of creditors and to abridge time for convening of second meeting of creditors – where creditors already well-informed of matters – whether such order should be made.
CORPORATIONS – administration – application to dispense with convening meeting of eligible employee creditors – where return under deed of company arrangement proposal is same or better than likely outcome under a liquidation – where proposal will likely facilitate more prompt payment – where proposal maximises prospect of continued operation of organisation and employees’ continued employment – whether requirement to convene meeting of eligible employee creditors should be dispensed with.
COSTS – party/party – percentage apportionment of costs – where plaintiff has had ultimate success in the application – where plaintiff had success on less than half of arguments advanced – where proceedings could have been conducted in a quicker and cheaper manner – determination of apportionment of costs.
CORPORATIONS – winding up – disposition of property – application for payment of fair market value of assets previously owned and possessed by company – where sole director of company has not delivered possession of assets to liquidator of company – whether an order should be made for payment to company of fair market value of assets.
CONTRACTS – formation – agreement – enforceability – uncertainty and incompleteness – where parties entered into heads of agreement at mediation – where heads of agreement provided for entry into settlement deed and transfer documents – where agreement provided for parties to have regard to taxation and structuring advice prior to entry into settlement deed and transfer documents – where dispute as to settlement deed and transfer documents – where settlement deed and transfer documents not entered into – whether heads of agreement are certain and complete and enforceable – whether other ancillary orders should be made.
CORPORATIONS – application to set aside a creditor’s statutory demand – separate question – identification of date of service of statutory demand – where chief financial officer received statutory demand day after the delivery date recorded in tracking receipt – whether application to set aside statutory demand was filed and served within time.
COSTS – application for costs on an indemnity basis – whether indemnity costs should be ordered.
CORPORATIONS – application to set aside a creditor’s statutory demand – timing of service – where demand originally sent by registered post – where demand returned to sender by Australia Post – where demand later purportedly left at company’s registered office address – where company’s registered office address contained in block of units – where affidavit of service did not adequately specify where demand was left – where defendant concedes that if application to set aside demand was made within time then demand should be set aside – whether application was made within time.
CORPORATIONS – practice and procedure – security for costs – where one plaintiff company has modest assets – where another plaintiff company has no assets – where plaintiffs claim that defendants caused their impecuniosity – whether plaintiffs should provide security for costs.
CIVIL PROCEDURE – Court administration – Court powers – control of proceedings – young person under the parental responsibility of the Minister residing in the Sherwood House program – young person has already turned eighteen – Court’s parens patriae jurisdiction continues over the young person, not by reason of her age but by reason of her disability – full funding assessment through the National Disability Insurance Scheme (NDIS) for the young person to have support and independent living outside the Sherwood House program has been assessed but the full financial package has not yet been approved – Court adjourns the matter for a further short period to allow the NDIS issue to resolve – observations made concerning the need for early resolution of the young person’s situation.
CRIMINAL LAW – Evidence – Evidence to establish that a person may have access to knowledge about the existence of publications from which techniques involving explosives could be found – balancing exercise in s137 Evidence Act
CRIMINAL LAW – application for stay of proceedings due to lack of legal representation – finalisation of evidence before hearing on notice of motion – directions
DEFAMATION – defamatory matter – where defendant admitted publication of defamatory material – where all imputations alleged were found to have been conveyed –justification not pleaded – no defence of absolute privilege – where defence of qualified privilege pleaded – whether conduct of defendant in publishing material was reasonable in circumstances – Defamation Act s 30 subs (1)(c) – where no attempt to verify information before publication – behaviour unreasonable in circumstances – defence of qualified privilege fails – where defendant likely to repost defamatory material – non-publication order made – permanent injunction granted – defendant to pay costs on indemnity basis
CIVIL PROCEDURE - cross-vesting - transfer to other Supreme Court – medical negligence claim – both plaintiff and defendant residing in Victoria – cross-vesting order made
CORPORATIONS – take-over offers – off-market bid – application for extension of time for compliance with s 625(3)(c)(i) of the Corporations Act 2001 (Cth) – where transaction timetable specified time for lodgement of application for quotation of additional securities as within 7 days of commencement of offer period – where time specified for lodgement of application should have been within 7 days of commencement of bid period – whether extension of time sought should be granted.
CORPORATIONS – take-over offers – bidder’s statement – application for extension of time for dispatch of bidder’s statement – where bidder’s statement dispatched to shareholders of shares quoted on NZX six days after dispatch to shareholders of shares quoted on ASX due to communication error – where persons concerned acted honestly and without improper intent – where no substantial injustice has been or is likely to be caused to any person – whether an order should be made under ss 1322(4)(a) or 1325A of the Corporations Act 2001 (Cth).
CORPORATIONS – take-over offers – off-market bid – application for extension of time for compliance with s 625(3)(c)(i) of the Corporations Act 2001 (Cth) – where transaction timetable specified time for lodgement of application for quotation of additional securities as within 7 days of commencement of offer period – where time specified for lodgement of application should have been within 7 days of commencement of bid period – whether extension of time sought should be granted.
CORPORATIONS – winding up – application for winding up – where receivers and managers were appointed under power contained in instrument relating to circulating security interest in property of company – where appointment occurred within three month period before day winding up application was made – where no evidence of solvency led – whether company should be wound up.
CORPORATIONS – scheme of arrangement – application for orders approving scheme of arrangement – where scheme of arrangement involves shareholders in target company transferring their shares to acquirer – where votes cast satisfy statutory majorities – whether scheme of arrangement should be approved.
CORPORATIONS – scheme of arrangement – application for orders approving scheme of arrangement – where scheme of arrangement involves shareholders in target company transferring their shares to acquirer – where votes cast satisfy statutory majorities – whether scheme of arrangement should be approved.
CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, to agree to proposed scheme of arrangement – whether requirements to order scheme meeting is satisfied.
CRIMINAL LAW – Evidence – Witness evidence – Hearsay – Expert evidence – whether the witness is an expert – whether it is hearsay when it is based on the witness’s own knowledge and observations
CRIMINAL LAW – Evidence – Witness evidence – unavailable witnesses – where witnesses are unavailable by reason of a physical or mental incapacity – whether the Crown has demonstrated that it was not reasonably practicable to overcome any inability to give evidence
COSTS – notice of motion to vacate hearing date resolved shortly before hearing – issues raised required response by the plaintiff – whether costs should be costs in the cause – whether defendant should pay plaintiff’s costs – notice of motion dismissed – defendant to pay plaintiff’s costs of the notice of motion
PARTNERSHIPS AND JOINT VENTURES — Rights and duties between partners — Actions between partners — Declaration and calculation of amounts outstanding owed by each party to failed partnership — partnership accounting — Principles governing adoption of referees’ reports
PARTNERSHIPS AND JOINT VENTURES — Rights and duties between partners — Actions between partners — Maintenance of charge over property to secure debt owed under prior consent orders
CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — Form and content – Application seeking an adjournment of the argument on adequacy of proposed amended statement of claim
COMMERCE – Restraint of Trade – Enforcement and remedies – Injunction – question as to extent to which restraint is reasonably necessary – enforcement of express negative stipulation in employment contract – likely strength of case for entitlement to final injunction – balance of convenience – delay in bringing application – damage likely to be suffered if injunction not granted – possible hardship in event injunction is granted
EVIDENCE – whether question in cross examination within the ambit of pleadings – where specific terms of announcement not pleaded – where specific terms of announcement not objected to in other statements
TORTS – negligence – where plaintiff was competing in a campdraft competition – where there is dispute about the defendant’s Rules required by way of ground preparation – where plaintiff’s horse fell to the ground causing the plaintiff serious injury – whether the defendant breached any duty of care owed to the plaintiff – whether the plaintiff’s injuries were due to the materialisation of an obvious risk of a dangerous recreational activity – whether the plaintiff’s injuries were the result of the materialisation of an obvious risk – whether the risk of injury was the subject of a risk warning given to the plaintiff by the defendant – effects of ss 5M and 5N of the Civil Liability Act in the context of a signed waiver – volunteers defence under s 60 of the Civil Liability Act
CONTRACT – whether there was a contract between the plaintiff and the defendant – whether statutory guarantees should be imported into the alleged contract – the effect of s 275 of the Australian Consumer Law and s 139A of the Competition and Consumer Act in circumstances where the defendant has established a defence under ss 5L, 5H and 5M of the Civil Liability Act
HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for interim supervision order – extremist ideology developed while in custody – serious threats of extremist violence against law enforcement officers and others – no evidence of violent extremism in the community – order granted
APPLICATION TO RE-OPEN – defendants seek to rely upon evidence adduced in a further hearing since the 19 September judgment and with that evidence to re-open the application for the approval of receivers’ fees decided in the 19 September judgment (“the 19 September judgment”) – whether any part of the 19 September judgment can now be re-opened.
RECEIVERS – Court appointed receivers – remuneration – previous application for approval by the Court of receivers’ remuneration – approvals given in the September 2019 judgment to most of the receivers claims for fees and disbursements up to 14 May 2019 – further application by receivers made for approval of receivers’ fees and disbursements incurred after 14 May 2019 – whether further fees and disbursements should be allowed, and if so, in what amount.
SLIP RULE – Court’s calculation of approval of fees and disbursements under the slip rule is said to fail to bring to account a sum for legal costs which by reason of the mathematical logic of the Court’s decision should have been included in the calculation brought to account – whether the 19 September judgment should be amended under the slip rule.
CORPORATIONS — Winding up — Termination — Company wound up in insolvency — Whether solvency demonstrated — Substantial real property assets — Unverified cash flow projections — Liquidator unable to reach concluded view on books and records provided — Payments of rent unsupported by primary documents — Failure to pay trade creditors when due — Solvency not adequately supported — Application dismissed.
CORPORATIONS — Winding up — Termination — Commercial morality — Relevant factors — Inadequate explanation of breaches or changes to be made — Failure of director to cooperate with liquidator of another company — History of non-payment of trade creditors — Failure to keep proper books and records — Significant and unexplained cash transactions — Not appropriate to terminate winding up — Application dismissed.
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – offer not accepted by plaintiff – whether warrants a departure from the ordinary rule as to costs – offer did not sufficiently identify reliance on Calderbank principles - held that the plaintiff’s failure to accept the offer was not unreasonable
COSTS — Party/Party — Bases of quantification — Indemnity basis – where costs thrown away by amendments to the third further amended statement of claim by the plaintiff – where serious allegations of improper purpose and bad faith abandoned on the first day of the hearing – policy consideration that serious allegations of this kind should not lightly be made – plaintiff ordered to pay costs thrown away by the amendments made in the fourth further amended statement of claim and the costs thrown away by the making and subsequent abandonment of the allegations in the third further amended statement of claim
CORPORATIONS – directors and officers – statutory and fiduciary duties – where plaintiffs claim that director of company formulated terms of and provided assistance to counterparty to supply agreement to cause counterparty to terminate and have supply agreement awarded to new company – where counterparty terminated contract – where new supply agreement entered into with new company – whether director’s acts were in breach of ss 181, 182 and 183 of the Corporations Act 2001 (Cth) – whether director’s acts were in breach of fiduciary duties.
CORPORATIONS – accessorial liability for breach of statutory and fiduciary duties – where plaintiffs claim that shareholders of company and others caused director to divert supply agreement to another company – where those individuals had interest in the other company – where counterparty terminated supply agreement – where new supply agreement entered into with the other company – whether individuals involved in contravention of statutory duties by s 79 of the Corporations Act 2001 (Cth) – whether individuals liable for knowing assistance or knowing receipt for breach of fiduciary duties.
COSTS – proceedings commenced by plaintiff lessee seeking injunctive and declaratory relief in relation to lease – defendant lessor filed cross-claim seeking injunctive and declaratory relief and damages – remaining term of lease was less than ten months – where lease expired during the course of proceedings – where all claims other than damages rendered otiose – where defendant seeks to transfer the proceedings to the Local Court – whether defendant’s conduct unnecessarily prolonged proceedings which resulted in the plaintiff incurring wasted costs – not appropriate to order the defendant to pay the plaintiff’s costs – each party ordered to pay its own costs of the proceedings to date apart from costs attributable to damages claim
PRACTICE AND PROCEDURE – transfer of proceedings – application by defendant to transfer proceedings to Local Court – where only remaining claim is defendant’s damages claim – where the defendant’s damages claim is less than $100,000 – proceedings transferred to Local Court
CORPORATIONS — Winding up — Statutory demand — Application to set aside on grounds of genuine dispute — Contract for consulting services — Factual dispute as to time worked — Genuine dispute made out — Dispute as to construction of termination clause — Not appropriate to determine competing constructions on a s 459G application — Whether defendant entitled to substantial “success fee” — Genuine dispute conceded shortly before hearing — Not necessary to determine s 459J contentions in the alternative — Demand set aside.
CORPORATIONS — Voluntary administration — Administrators appointed after judgment reserved on company’s application to set aside statutory demand — Whether s 440D of the Corporations Act effects stay of proceedings — Not proceedings “against the company” where it is plaintiff — Application does not affect property of the company — No stay.
COSTS – Offers of compromise – Where plaintiff brought proceedings against the defendant in negligence – Where the proceedings failed and a verdict and judgment were entered in favour of the defendant – Where the defendant sought special costs order on the basis of three offers of compromise served on the plaintiff – Where defendant had defaulted in respect of a number of earlier orders for the service of expert evidence – Where plaintiff asserted that she was not in a position to consider any of the offers in light of the repeated defaults on the part of the defendant – Where the issues were defined by the pleadings – Two of the three offers substantial – Nothing preventing the plaintiff from giving proper consideration to each offer – Orders sought by the defendant made
APPEAL – leave requirement – Legal Profession Uniform Law – Legal Profession Uniform Law Application Act – Interpretation of Legislation Act 1984 (Vic) – disclosure obligation – construction of s 174(3) – principles for leave – application for additional evidence – Civil Procedure Act 2005 – absence of error of principle, matter of public importance, or injustice – lack of merit of disclosure and disapplication grounds – small amount claim – remedy as of right to the District Court – leave refused
ADMINISTRATIVE LAW – claim under Motor Accidents Compensation Act 1999 (NSW) following motor accident – assessment by medical review panel of degree of permanent impairment – application for judicial review – whether error of law on the face of the record due to “no evidence” – whether jurisdictional error – no error of law on the face of the record or jurisdictional error made out – summons dismissed
CIVIL PROCEDURE – Cross-vesting – whether proceedings should be transferred from NSW District Court to NSW Supreme Court to then be transferred to WA Supreme Court – Court not persuaded it is in the interests of justice to transfer the proceedings to WA – amended summons dismissed
APPEAL – Civil – Extension of time – When appeal filed one day out of time
APPEAL — Civil — Leave to appeal – Whether the Magistrate failed to consider evidence – Where no House v The King error identified – Where the cost of the appeal exceeds the amount of the claim
FAMILY LAW AND CHILD WELFARE – adoption- whether adoption clearly preferable to any other order for all children – whether adoption in best interests of all children - evidence admissible in adoption proceedings – whether proposed adoptive parents are fit and proper for the purposes of the act –health and financial circumstances of the proposed adoptive parents – age of proposed adoptive parents
COSTS – Bases of quantification – Ordinary basis – Indemnity basis – Whether costs incurred following amendment of plaintiff’s pleadings to incorporate conventional estoppel claim (which was unsuccessful) should be excluded
BUILDING AND CONSTRUCTION – Expert determination – Where, on the defendant’s case, four issues were referred to the expert for determination, but on the plaintiff’s case only one of those issues was validly referred, such that the expert’s determination ought to be void for want of a mandate – Where the contractual provisions governing expert determination allowed the parties to raise before the expert “any” cross claim, set-off or defence once an initial issue had been referred.
CIVIL PROCEDURE – Separate determination of questions
CONTRACTS – Termination – Consequences of termination – Where the plaintiff seeks return of two bank guarantees given to the defendant pursuant to a contract related to a building project since abandoned – Where, on the plaintiff’s case, the contract between the parties had been validly terminated for insolvency and, although the contract did not explicitly require return of the bank guarantees, the defendant can demonstrate no right to retain them – Defendant disputes that the contract was validly terminated due to the plaintiff’s alleged non-compliance with notice provisions – Where, in any case, the contract has clearly been frustrated and cannot be performed due to the land having been sold, with the consequence that the bank guarantees should be returned.
CIVIL PROCEDURE – Jurisdiction – Where the defendants sought by notice of motion to invoke the Court’s jurisdiction to determine, pursuant to s 73 of the Civil Procedure Act 2005 (NSW), the terms of an agreement to settle proceedings in this Court concerning the sale of a business – Where no document was prepared to reflect the terms of the settlement and neither party made a contemporaneous record of what was agreed.
CONTRACTS – Construction – Context – Whether the oral agreement to settle the proceedings on payment of $65,000 by the defendants was inclusive of the $20,000 deposit – Where, in negotiating the final settlement amount of $65,000, the plaintiff explicitly referred to its earlier Offer of Compromise in which the settlement amount included the deposit, such that it was clear from the context that the later offer of $65,000 was made on the same terms with respect to the deposit as the earlier Offer of Compromise.
REAL PROPERTY – farm debt – possession of land –default under farm mortgage – Farm Debt Mediation Act – MEDIATION – whether s 11 certificate valid – whether satisfactory mediation – construction of s 4(1A) – was mediation in good faith – did mediator provide summary of mediation at end of mediation – was notice provided by bank that it had agreed to a mediation – was bank required to mediate with farmer in personal capacity and in capacity as trustee – whether subsequent mediation invalid –ENFORCEMENT ACTION – whether proceedings void pursuant to s 6 of the Farm Debt Mediation Act – whether enforcement action prior to mediation – scope of enforcement action under the Farm Debt Mediation Act – was notice of cancellation of overdraft a farm mortgage – whether bank entitled to withdraw reliance on default notices – whether bank engaged in continuation of enforcement action – TRUST LAW – was property held by trust – is trust liable to pay the loans rather than individual – whether joint trustee – whether individual validly resigned as trustee – whether individual indemnified under trust deed – SERVICE – was cancellation notice required to be served – was cancellation notice served – was default notice served – CONSUMER LAW – misleading or deceptive conduct – whether representation made by bank that facilities would be extended – ADMINISTRATIVE LAW – judicial review – error of law – procedural fairness – application for extension of time to bring proceedings – application dismissed
CORPORATIONS – winding up – public examination of directors, officers and others – application for access to affidavit in support of examination summonses – where affidavit in support of examination summonses also includes detail supporting orders for production – whether access to affidavit should be ordered under r 11.3(7) of the Supreme Court (Corporations) Rules 1999 (NSW).
COSTS – specified gross sum costs order – where proceedings resolved by consent – costs of proceedings referred for assessment – where parties incurred further costs which were not the subject of the previous costs assessment – whether specified gross sum costs order should be made in relation to the further costs – specified gross sum costs order made
CONTRACTS –– motion for determination of separate question – r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) claim in respect of alleged childhood sexual abuse – where limitations period defeated claim without determination of its merits – where claimant signed deed of release releasing defendant from any liability in respect of his claims – where claimant received payment – where relevant limitations periods subsequently repealed – whether claim for damages maintainable following repeal of limitations periods notwithstanding deed releasing all liability – Contracts Review Act – unconscionability
ADMINISTRATIVE LAW – judicial review of decision of Medical Assessor and Proper Officer of SIRA – where Insurer alleges that an unlawful direction was given to claimant by Medical Assessor concerning assessment of range of movement during clinical examination – whether decision of Proper Officer infected by error – whether any practical difference between “pain” and “discomfort” –– no error or illegality demonstrated – summons dismissed - claim for indemnity costs arising from offer of compromise - costs ordered on indemnity basis on and from 16 October 2019
NEGLIGENCE – Severe personal injury – gas explosion at place of work – second stage gas regulator negligently installed – gasfitting at school – Dangerous Goods (Gas Installations) Regulation 1998 (NSW) (Repealed)
CIVIL LIABILITY – Common Law duty – whether duty of principal contractor can give rise to a non-delegable duty – whether duty will always be discharged by appointment of independent contractor – requirement of certain factors – held circumstances can exist between principal contractor and plaintiff giving rise to non-delegable duty.
CIVIL LIABILITY – Statutory duty – whether breach gives rise to private right of action – whether contrary to legislative purpose of Regulation – whether clause is penal in nature – whether plaintiff included in class of individuals to whom a duty is owed – statutory breach made out.
DAMAGES – Joint liability – law of negligence – proceedings for recovery of damages for personal injury – multiple parties – action may be brought against each tortfeasor – subject to statutory modifications – not to recover more than full
satisfaction for loss against one or more of the tortfeasors – whether any of the active parties legally responsible for Mr Hossain’s injuries.
CRIMINAL LAW – appeal – appeal against sentence – where appellant convicted of nine offences against s 200A of the District Court Act – whether appellant denied procedural fairness by sentencing magistrate –– re-sentence – whether appellant should receive a s 10 order – appeal dismissed
CRIMINAL LAW – application under Part 7 of the Crimes (Appeal and Review) Act 2001 for inquiry into three convictions for murder – where applicant had already appealed unsuccessfully to the Court of Criminal Appeal and made a previous application for a Part 7 inquiry – appropriateness of determining second application – applicant representing himself – misunderstanding of reasons given in respect of previous application – applicant believing judge found new exculpatory evidence – consideration of alleged prejudicial conduct of Crown prosecutor and alleged incompetence of defence counsel – no doubt or question as to applicant’s guilt
COSTS – defendant successful on notice of motion – plaintiff given opportunity to make submissions as to costs – no submissions received – costs order made in favour of the defendant
PRACTICE AND PROCEDURE – subpoenas – claims for privilege – whether waiver imputed
PRACTICE AND PROCEDURE – review of earlier ruling of court’s own motion
BANKING AND FINANCE – banks – liabilities – negligence – nature of joint accounts – joint account usually operated by husband – sale of shares and withdrawal of proceeds by wife – whether CommSec and bank obliged to prevent transaction – relationship governed by terms of contract – no duty of care imposed
CIVIL PROCEDURE – implied undertakings – release – where documents the subject of release from implied undertaking are limited to use in settlement discussions with Commissioner of Taxation – whether leave should be granted releasing applicants from the implied undertaking.
CORPORATIONS – winding up – liquidators – application for appointment of special purpose liquidators – where special purpose liquidators to be appointed for sole purpose of lodging objection under Pt IVC of Taxation Administration Act 1953 (Cth) – where no merits assessment as to whether objection should be lodged to be made by special purpose liquidators – where funding inadequate for proper merits assessment – whether special purpose liquidators should be appointed.
ADMINISTRATIVE LAW – Procedural fairness – apprehended bias – objective test – reasonable grounds for apprehension of deviation from the proper course of justice – factual foundation – deviation from lawful decision making – grounds not satisfied in this case
CONTRACTS – formation – defendant the owner of site of former coal mine – land includes a railway corridor – proposal for separation of defendant’s railway activities from its museum activities – where plaintiffs were incorporated to take over the defendant’s railway operations – proposal to subdivide the defendant’s land so as to create a new lot with respect to the railway corridor and to convey that lot to the first plaintiff for nominal consideration – agreement in principle followed by co-operation over a lengthy period in obtaining approval for and effecting completion of subdivision – where defendant subsequently refused to convey railway corridor lot – whether binding agreement reached – binding agreement held to exist – defendant obliged to transfer rail corridor lot to first plaintiff – orders to be made for specific performance of agreement
CONTRACTS – extent to which defendant has been overpaid for work that had been completed before the Lump Sum Contract was terminated – whether the Lump Sum Contract was wrongly terminated by the plaintiffs or whether it was repudiated by the defendant.
DAMAGES – quantification of damages to which the plaintiffs or defendant would be entitled – differences in opinion evidence of expert witnesses – resolving differences without detailed cross-examination.
CIVIL PROCEDURE — Funds in Court —Security for costs paid into Court in 2000 by plaintiffs — proceedings settled with releases and no costs order made — Plaintiff company deregistered — Liquidator of plaintiff no longer in practice, and cannot be contacted — Other shareholders of plaintiff company cannot be contacted — purpose for which monies paid into court did not extend to paying the monies to the defendants in the absence of a costs order — Unique circumstances — Appropriate for funds to be paid to first defendant where he is only person claiming to be entitled to the funds.
CORPORATIONS — Winding up — Directions to liquidator — Corporate trustee — Where company trustee of two family trusts identified by different ABNs — Company removed as trustee of second trust on winding up by ipso facto clause in deed — No deed of first trust — Property held by company, apparently as trustee of the first trust — Issue as to source of funds — Declaration that company remains trustee of first trust — Direction to enable liquidator to sell property.
CONTRACTS — Construction — Put and call option agreements over land – exercise of put option conditional on fulfilment of conditions precedent comprising rezoning of land, surrender of certain rights under mining lease and construction of access ramp to nearby highway – satisfaction of conditions precedent and associated notice requirements – direct inconsistency between clauses concerning mechanism for rescission – repugnancy.
ENERGY AND RESOURCES — MINING — Mining Act 1992 (NSW), s 126 – cancellation of rights under mining lease – notice sent indirectly to responsible officer effective under s 126(4).
CONTRACTS — Termination — Repudiation of contract – Purported termination of put and call agreements – allegedly repudiatory conduct prior to and following commencement of proceedings which sought specific performance of option agreement – whether insistence on erroneous construction of agreement in context of commencement of proceedings repudiatory – entitlement to terminate.
CONTRACTS — Remedies — Damages — Loss of bargain – call option fees which grantor would have received on rescission of option agreement.
CORPORATIONS – application to set aside creditor’s statutory demand – where contract for sale of property entered into – where deed of rescission later entered into – where defendant claims deed not validly executed by company – where a signature on deed not witnessed – where second director did not sign deed – where plaintiff paid amounts to company pursuant to deed – where company accepted and retained payment – whether there is a genuine dispute.
CORPORATIONS – application to set aside creditor’s statutory demand – identification of proper debtor – whether there is a defect giving rise to substantial injustice.
MENTAL HEALTH – forensic patient – application for extension order pursuant to Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) – whether the defendant poses an unacceptable risk of serious harm to others if he ceases to be a forensic patient – Court not satisfied that defendant poses unacceptable risk – defendant’s risk can be managed under child protection legislation – summons dismissed
COSTS – party/party costs – solicitors’ lien – substitute security ordered – plaintiff (client) seeks party/party costs, on the basis that the security ultimately ordered was offered prior to the commencement of proceedings – defendant (solicitors) opposes award of costs on various bases – what costs orders should be made – whether the urgency of the commencement of the proceedings was a result of the plaintiff’s unexplained delay – whether either party conducted itself unreasonably – whether the defendants’ failure initially to agree to the alternative security offered was reasonable – whether the plaintiff should have authorised some uncontested disbursements to be paid.
EQUITY – Trusts and trustees – Where former trustee ordered by Court to deliver up to new trustee all documents of the trust within her possession, custody or control – where parties seeking further orders in relation to implementation of those orders – whether further orders sought amounted to an application for judicial advice – whether there was power to give a former trustee judicial advice – whether relief sought precluded by the principles of res judicata, issue estoppel or Anshun estoppel – whether further orders amounted to “working out” orders
CIVIL PROCEDURE — Subpoenas — Notices to Produce – Issued during hearing – Application to set aside subpoena and notice to produce — where subpoena/notice to produce sought production of transcripts of examination of the first defendant in other proceedings – whether a legitimate forensic purpose – held to amount to a fishing expedition
CIVIL PROCEDURE – Notice of Motion – application temporary dispensation from orders – whether application should be finally determined at this stage – whether principles of Anshun estoppel apply
CONTRACT – wholly written contract – dispute as to identity of builder to perform residential building – whether regard may be had to post-contractual conduct – where contract identified one company as builder but gave another company’s licence and insurance details – parties taken to have agreed to a contract which was lawful and enforceable
CRIMINAL LAW - murder - jury trial - application for trial by judge order - adverse publicity - where some increased cost and delay likely - where pre-trial publicity following committal arguably prejudicial to the accused - where accused’s involvement with drugs and firearms said to be likely to cause additional prejudice - whether in the interests of justice for trial by judge alone
CRIMINAL PROCEDURE – where accused charged with murder – where counsel for accused requested a direction to the jury on the issue of extreme provocation – whether there is evidence that the act that caused the deceased’s death was in response to extreme provocation – whether there is evidence that the accused lost self-control when he killed the deceased – application rejected
CRIMINAL PROCEDURE – where accused charged with murder – where on first day of trial Crown seeks leave to rely upon expert report – where expert report served late – whether receipt of the report would cause unfair prejudice to the accused – application to rely on expert report rejected
CRIMIMAL PROCEDURE – discharge of individual juror – where juror has become so ill or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict
CRIME – joint criminal enterprise – extended joint criminal enterprise – self-defence – whether self-defence should be left to the jury in relation to accused who did not commit the act which caused death
CRIME – extended joint criminal enterprise – whether jury should be directed that the Crown must establish that each accused must be aware that an extendable baton was to taken to the premises – where cause of death unknown
CRIME – constructive murder – whether constructive murder should be left to the jury
CRIMINAL PROCEDURE – no case to answer application – specially aggravated kidnapping – whether accused had intention to kidnap – whether victim was dead or alive – application refused
EVIDENCE – relevance – exclusion of evidence – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused – photographs of tattoo on accused’s torso – where tattoo is not offensive and does not show a predisposition to violence
EVIDENCE – exclusion of evidence – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused –text messages between witness and accused
EVIDENCE – tendency evidence – murder – where alleged tendency to use violence, or the threat of violence, to collect drug debts or advance a drug supply business – where no significant probative value – where evidence only shows a tendency to make unfulfilled threats of violence
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — r 13.4 – Self-represented litigant – Dispute over exclusion from PhD program at university – Initial proceeding filed 2015 – Three additional sets of proceedings commenced in 2017, 2018, and 2019 – No reasonable cause of action disclosed – Abuse of process
CIVIL PROCEDURE — Application for orders preventing further proceedings – Orders made preventing plaintiff from making applications in existing proceedings – Whether to grant orders restraining plaintiff from commencing new proceedings in relation to same subject matter – Consideration of principles – Court has inherent power to prevent abuse of its processes – Orders made where abuse of process by relitigation – Whether orders available where abuse of process by multiplication of proceedings
CORPORATIONS — Winding up — Statutory demand — Application to set aside demand because of genuine dispute — Dispute involving family companies — Prior proceedings settled by Deed of Settlement — Deed provided for payment of sum by sunset date to defendant from proceeds of sale of real property — “Best endeavours” clause — Property not sold — Demands served on eight family companies — Recovery proceedings simultaneously commenced against individual family members — Whether genuine dispute as to construction of Deed — Whether deed voidable or rescindable for misleading and deceptive conduct or misrepresentation — Genuine dispute made out — Demands set aside.