JUDGMENTS AND ORDERS — Amending, varying and setting aside — Fraud, misrepresentation or suppressions of material fact – the Plaintiff and Defendants are siblings who disputed the ownership of a Property – in 2019 the Court held that the Plaintiff has a 40% interest in the Property which is registered in the name of the Defendant – the Defendant sought by way of Notice of Motion to have principal judgment and orders set aside and stay of an enforcement action and, in effect, of the costs assessment – where an application has been made to the Court of Appeal in respect of the same principal judgment and where a date to hear an application to extend the time for lodgement of an appeal has been set – the Defendant alleged fraud and “misconducts”, that there was no evidence to support the Court’s decision and made allegations against Plaintiff’s legal representatives – where the Defendant is self-represented – discussion of the requirements for a claim that a judgment has been obtained by fraud – the Court held that the Defendant’s Notice of Motion be dismissed and that it should not have been advanced by him COSTS — Costs assessment — Procedure – where application for leave filed - an undertaking was made by the Plaintiff to the Defendant to take steps to not sell the Property or otherwise enforce the costs order prior to the determination by the Court of Appeal of the Defendant’s application – the Court held that the party who has obtained a costs order should not be precluded from embarking upon having costs assessed prior to the hearing of an appeal or application to extend the time for the lodgement of an appeal, notwithstanding the risk that the costs order may be set aside and that there ought be no stay in respect of the costs assessment process (as opposed to enforcement)
SUCCESSION – Forfeiture under public policy rule – where husband of deceased convicted of dangerous driving offences – where settlement reached in these and related proceedings – whether forfeiture modification order should be made
PERSONAL INJURY – judgments – set off against costs orders – interest on costs orders -when interest runs from – workers compensation entitlements – whether written agreement entered into under s 66A of Worker Compensation Act 1987 – no agreement found – plaintiff declined opportunity to enter into agreement or apply for compensation – relief granted
SUCCESSION – probate and administration – deceased executed two wills – whether evidence sufficient to establish due execution of later will – original of later will not in evidence – due execution of later will established – grant of probate under earlier will revoked – presumption of destruction with intent to revoke – presumption rebutted – grant of probate made under later will
COSTS – Costs orders sought by and against executors – costs orders after review of the Registrar’s decision under Uniform Civil Procedure Rules 2005, r 49.19 - claim for executors’ commission – the Registrar awards commission under Probate and Administration Act 1898, s 86 – the beneficiaries allege maladministration of two estates by the executors, disentitling the executors to any award of commission – upon review of the Registrar’s decision the beneficiaries contend the decision should be overturned – in the Court’s first judgment the Registrar’s decision substantially upheld in both estates but with minor variations in favour of the executors – various costs issues raised as to the allocation of the costs of the proceedings before the Registrar and in these proceedings as between the beneficiaries and the executors in both estates. EQUITY – Trusts and trustees – powers, duties, rights and liabilities – indemnity – right of indemnity from the trust estate – whether executors and trustees should be indemnified out of the estates and associated testamentary trusts for their costs of various litigated contests with the beneficiaries associated with the passing of estate accounts and awards of commission.
COSTS – assessment of costs – specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – the plaintiff, a local council, brings proceedings against an owner of land within the council district – plaintiff council successful against the first defendant land owner – findings made in the first judgment that the normal procedures of an assessment of costs may be likely to provide the first defendant the opportunity to engage in vexatious conduct – whether the Court should exercise its jurisdiction under Civil Procedure Act 2005, s 98(4)(c) to fix a specified gross sum instead of assessed costs.
CRIME – Sentencing – Manslaughter – Early plea of guilty to manslaughter – trial for murder – not guilty to murder – Operation of Part 3, Division 1A of Crimes (Sentencing Procedure) Act – 25% discount applied – subjective circumstances – Bugmy principles – social exclusion – sentence imposed
COSTS – where plaintiff sought payment for variations – where defendant had made payment to plaintiff on account of variations following an adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) – where plaintiff sought damages for variations in amount exceeding amount so paid – where plaintiff established entitlement to variations less than amount so paid – where costs should follow the event – whether plaintiff in substance successful
HIGH RISK OFFENDER – non-publication order sought by State of NSW – order sought in relation to identification of members of High Risk Offenders Assessment Committee - where provisions of Crimes (High Risk Offenders) Act point against orders being made – where no evidence of threats or risk of harm to members of Committee – where open discussion not inhibited – where nothing in CHRO Act or Government Information (Public Access) Act provides for confidentiality – plaintiff’s notice of motion dismissed
HIGH RISK OFFENDER – extended supervision order – preliminary hearing – past conviction for manslaughter – convicted of index offences of take and detain, and attempted choke – offence of indecent assault taken into account on a Form 1 - extensive criminal record – defendant has psychotic illness and substance abuse disorder as well as antisocial personality disorder – whether requirements under ss 5B and 5I requiring defendant to be a supervised offender are satisfied – where sentence being served at time of application was not served consecutively with sentence for manslaughter - where defendant not serving a sentence of imprisonment for an offence taken into account on a Form 1 – defendant not a supervised offender – where otherwise an ESO would have been justified – summons dismissed STATUTORY INTERPRETATION – whether defendant was a “supervised offender” under the Crimes (High Risk Offenders) Act 2006 - words and phrases - meaning of “consecutively”
COSTS — Two proceedings heard together – Probate and family provision proceedings – Agreement reached following determination of the family provision proceedings that the Plaintiff’s costs and disbursements of those proceedings, being a specified gross sum instead of assessed costs, of $97,500 (including GST), be paid out of the estate of the deceased – Also agreed that the Defendants’ costs, calculated on the indemnity basis of the family provision proceedings and the Probate proceedings be paid out of the deceased’s estate – Only outstanding issue for determination is whether the Plaintiff’s costs of the Probate proceedings, in which her claim was unsuccessful, should be paid out of the estate of the deceased - Application by Plaintiff that her costs be paid, calculated on the indemnity, rather than on the ordinary basis, or in the alternative, calculated on the ordinary basis, be paid out of the deceased’s estate – Defendants’ seek order that Plaintiff should bear her own costs of the Probate proceedings – Form of orders in both proceedings otherwise agreed and orders made
COSTS – security for costs – where no dispute that Court’s jurisdiction to order security enlivened – whether plaintiff’s claim should be seen as defensive – where defendant foreshadowed possible cross-claim but eschews current intention to bring a cross-claim
CIVIL PROCEDURE – cross-vesting – special federal matter – motion for an order under s 6(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) that the proceeding be determined by this Court – requirement under s 6(3) that there be special reasons for doing so in the particular circumstances of the proceeding – this requires some pertinent non-trivial consideration or circumstance which takes the case of out the run of the mill and which warrants the case being held in this Court despite involving a special federal matter – HELD – there are special reasons warranting that the matter be determined by this Court
SUCCESSION - Letters of administration with will annexed - Application for revocation of the grant - Where due and proper administration of estate prevented by continuation of one of three co-administrators acting as administrator – Defendant a non-active party who does not appear at the hearing - Form of orders - Order for revocation of grant, with fresh grant to continuing administrators with consequential orders made
SUBPOENAS – where document produced in redacted form – where redactions made in respect of material said to be the subject of client legal privilege – where further redactions made on the basis of material said to be confidential and irrelevant and not called for by the subpoena – where documents produced in redacted form without leave – circumstances where leave should be sought before producing documents in redacted form – whether it is common practice to produce documents in redacted form and later seek leave CONTEMPT – where party produced documents in response to subpoenas in redacted form – whether party that produced documents in response to subpoenas in redacted form in contempt of court – where declaration sought that such party was in contempt of court – where no punishment sought for the alleged contempt – whether any utility in making a declaration – whether the making of a declaration would be disproportionate to the conduct in question
NEGLIGENCE — Application for settlement approval — Plaintiff claimed damages against defendant — Injuries sustained by the plaintiff when he fell from a racehorse — Whether settlement would be in the plaintiff’s interests turns on the existence of reasonable prospects of success of the plaintiff’s action — Injuries caused by the materialisation of an obvious risk of a dangerous recreational activity — The defendant would not be found liable — Settlement approved and judgment for the defendant ordered
CIVIL PROCEDURE – Harman undertaking – implied undertaking concerning use of documents – where applicants propose to commence proceedings in the Defamation List – applicants seek to rely in those proceedings on document produced on subpoena by a third party in these proceedings – where that document had been adduced in evidence in these proceedings – whether Harman undertaking extends to that document – whether special circumstances exist justifying use in the proposed proceedings
FAMILY LAW AND CHILD WELFARE – adoption – interim order – application for interim order allocating parental responsibility to Secretary under s 84(2) of the Adoption Act 2000 (NSW) – where temporary care arrangement expiring imminently – where Secretary will not have parental responsibility under s 75 of the Adoption Act 2000 (NSW) on expiry of temporary care arrangement – whether s 84(2) applies where no existing application for adoption order – whether orders should be made in exercise of parens patriae jurisdiction where s 84(2) does not apply. FAMILY LAW AND CHILD WELFARE – adoption – consent – consent dispense order under Adoption Act 2000 (NSW), s 67(1)(a) – application for order dispensing with the consent of the birth father – where birth father cannot, after reasonable inquiries, be found or identified – where in best interests of child to make consent dispense order
COSTS — Where solicitor activated an enduring power of attorney on behalf of former client who had since become incompetent — Whether solicitor ought be entitled to costs in respect of abandoned claim
CIVIL PROCEDURE — Commencement of proceedings — Summons — Prejudice to defendant arising from an extension of time for filing would not be substantial — No significant delay — Time for filing the further amended summons extended pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 59.10 ADMINISTRATIVE LAW — Judicial review — Relief sought pursuant to s 69 of the Supreme Court Act 1970 (NSW) — Whether the impounding and sale of the plaintiff’s alpacas complied with the relevant statutory provisions — Alpacas located unattended on a public road, impounded, held and sold by the defendant on two occasions — Framework for the impounding, holding and sale of animals provided in the Local Land Services Act 2013 (NSW) and Impounding Act 1993 (NSW) — The defendant is an impounding authority and the defendant’s officers were impounding officers who has written authority on their possession and were authorised to exercise power under s 116(3) of the Local Land Services Act 2013 (NSW) — Power to impound animals is not constrained by knowledge of the identity of the animal’s owner — The impounding officer need only suspect that the animals are on a public road — Power under s 116(3) does not depend on the commencement, or result, of criminal proceedings — Proceedings in the Local Court and NCAT do not operate as an automatic injunction restraining the defendant from exercising its statutory powers against the plaintiff’s alpacas — Filing a summons in this Court does not prevent the sale of the plaintiff’s alpacas — Further amended summons dismissed
CONSUMER LAW — Misleading or deceptive conduct - Causation or reliance — Unconscionable conduct CONTRACTS — Breach of contract - Failure to complete on time - Damages ESTOPPEL — Res judicata/Cause of action estoppel – whether merger of cause of action in consent judgment MORTGAGES AND SECURITIES — Charges - Floating - Creation and nature — Mortgages —Assignment - Equitable mortgage of legal interest — Personal Property Securities Act 2009 (Cth) – Enforcement - Disposal of collateral — Security interest - Exceptions PERSONAL PROPERTY — Assignment of choses in action RESTITUTION — Compulsion — Contribution and recoupment — Action for money paid to the defendant’s use
CIVIL PROCEDURE — stay of proceedings – injurious falsehood – where alleged falsehoods arose from allegations of sexual misconduct on the part of the plaintiff – allegations made by the defendant’s daughter – where defendant sent emails to board members regarding alleged of sexual misconduct – whether proceedings for injurious falsehood should be stayed pending the resolution of civil proceedings brought by the complainant against the plaintiff – similarity of issues in proceedings – undesirability of same evidence being given in both proceedings – whether stay would just, quick and cheap resolution of both proceedings – notice of motion dismissed
CIVIL PROCEDURE – application challenging an interlocutory decision of the Children’s Court – oral application to stay proceedings in the Children’s Court – where the effect of the interlocutory decision was that the plaintiff was unable to subpoena documents from NSW Police – whether the Court’s parens patriae jurisdiction is engaged – whether the Court’s prerogative relief jurisdiction under the Supreme Court Act 1970 (NSW) is engaged – no grounds to justify intervention in the Children’s Court proceedings – application dismissed with costs
CIVIL PROCEDURE – interlocutory application – where proceedings had been stayed – where the order for a stay has been overtaken by subsequent orders of the Court – where the proceedings have been settled and a valid notice of discontinuance was filed – where plaintiff applied to lift the stay – where plaintiff also sought to pursue an unrelated constitutional matter – no utility in lifting the stay because the proceedings have been resolved – application dismissed with costs
CONFIDENTIAL INFORMATION – the plaintiffs are members of a group of companies providing information security services to the IT industry – the plaintiffs claim the first and third defendants each diverted and misused the plaintiffs’ confidential information – the plaintiffs seek a permanent injunction to restrain further misuse – whether the information was confidential – whether the information was misused – whether a permanent injunction should be granted against the first and third defendants in the absence of the plaintiffs seeking relief against other persons to prevent the misuse of the plaintiffs’ confidential information obtained through the first and third defendants. PRACTICE AND PROCEDURE – judgments and orders – the plaintiffs' confidential information is transferred to the first defendant’s personal laptop and associated hard drive – the Court considers making orders for the production of the personal laptop and hard drive – first defendant destroys the personal laptop and hard drive before the orders are perfected and notified to him – what did the first defendant know of the Court’s prospective orders of the time that he destroyed the personal laptop and hard drive – whether the first defendant’s conduct was designed to frustrate the making of future Court orders for production of the personal laptop and hard drive – what inferences should be drawn about the information on the personal laptop and hard drive at the time he destroyed the hard drive. CONTRACTS – Construction – employment contract made between the third plaintiff and the first defendant – whether the employment contract is wholly in writing – whether the full terms of a written contract bind the first defendant and the second plaintiff, a subsidiary of the first plaintiff, or whether only certain numbers recorded in the written form of contract were binding between them – whether the first defendant is entitled to a non-discretionary allowance under the employment contract. CONSUMER LAW – MISLEADING AND DECEPTIVE CONDUCT – whether the plaintiffs/cross-defendants made representations as to the financial benefits the first defendant/cross-claimant would be likely to derive from taking employment with the plaintiffs’ group – whether the representations were made – whether they were representations as to future matters – whether they were misleading or deceptive – whether the first defendant/cross-claimant relied upon the representations and whether he suffered any loss or damage as a result. EVIDENCE – Admission – Improperly obtained evidence – whether employer contravened Workplace Surveillance Act 2005, s 19 by authorising covert surveillance of employee’s work and personal laptops – whether evidence gathered by employer from employee’s laptops was illegally obtained under Evidence Act 1995, s 138 – whether such evidence is now inadmissible – whether employer’s conduct also contravened Criminal Code Act 1995 (Cth), s 478.1 for unauthorised access of restricted data.
CORPORATIONS — Receivers, controllers and managers — Duties and liabilities — Whether sale process co8ntemplated by earlier consent orders would result in assets being sold at undervalue — Whether receiver has taken reasonable steps to obtain market value for company assets. JUDGMENTS AND ORDERS — Amending, varying and setting aside — Inherent jurisdiction —Whether substitute order should be made altering the process of sale of company assets provided for in earlier consent orders of the Court.
CRIMINAL PROCEDURE – Trial – separate trial application – whether injustice to applicant from inability to compel co-accused – where evidence proposed to be called from co-accused in part not material – where accused able to give evidence on matters for which co-accused would be called – where co-accused’s credit in issue
NEGLIGENCE – Duty of care – Foreseeability – psychiatric injury – plaintiff witnessed physical injury to employees of a sub-contractor on site NEGLIGENCE – Vicarious liability of sub-contractor for employees’ tort of negligence
PROCEDURE – civil – circumstances in which court may strike out pleadings or dismiss proceedings at an interlocutory stage – where defendant contends plaintiff allegedly used criminal conduct to prevent or hinder him from defending claim and prosecuting cross-claim – where defendant fails to establish that plaintiff stole unspecified documents relevant to proceedings during course of committing offences for which she has been found guilty – where defendant argues that plaintiff’s delays cause him significant prejudice – where unclear connection between allegedly stolen documents and defendant’s forensic position – where defendant’s reliance on UCPR 14.28 is misplaced – where no evidence of inexcusable or substantial delay
CORPORATIONS – Directors and officers – Directors’ duties – Duty of care and diligence – Where executive directors alleged to have adopted a “rebate maximisation policy” – Whether policy led to buy stock irrespective of consumer demand – Whether non-executive directors failed to put in place internal controls to monitor procurement activities CORPORATIONS – Shares – Dividends – Where dividend allegedly declared in breach of section 254T Corporations Act 2001 (Cth) – Where dividend allegedly declared in breach of directors’ duties – Whether directors can act in breach of duty when declaring a dividend even without contravening section 254T – Whether reference to “creditor” in section 254T includes future creditors –– Meaning of “materially prejudice” expression in s 254T – Whether business judgment rule applies to decision to declare dividends CONSUMER LAW – Misleading and deceptive conduct – Whether executive directors made misleading and deceptive statements when negotiating credit facilities – Where executive director made statements concerning matters within his area of responsibility and about which he had personal knowledge – Where statements misleading or incomplete – Executive director found to have personally engaged in misleading and deceptive conduct on the facts DAMAGES – Damages caused by misleading and deceptive conduct – Proof – Where misled party acquired something of value as result of misleading conduct by way of security over loan – Held misled party’s onus of proof is discharged by showing value of security lower than value of loan DAMAGES – Damages caused by misleading and deceptive conduct – Quantification – Held damages to be assessed as the difference between the amount lent and the amount actually received in the receivership – Whether payment by receivers of creditors’ legal costs amounts of a distribution in the creditors’ favour
CRIMINAL PROCEDURE — Indictment — Application for severance — Indictment charging five accused as being party to one, or both, of two separate conspiracies, in different locations, between different people and relating to different countries, with no overlap in time — Counts 1 and 2 are to be tried separately EVIDENCE — Alleged cross-admissibility of evidence relating to one conspiracy to proof of the other —Relevance other than to the state of mind of alleged common conspirator not established — Ruling made
LAND LAW — Conveyancing — Options — Call options — Whether on proper construction option could be validly exercised if purchase price had not yet been determined in accordance with terms of agreement — No issue of principle
CIVIL – high risk offender – application for extended supervision order – s 5B(d) – unacceptable risk – assessment must be absent the existence of “protective measures” – the Court is to take into account that which would be applicable in the absence of an ISO or ESO – National Disability Insurance Scheme support package applicable to defendant – NDIS support package as an “indirect” means of risk management – imposition of extended supervision order – duration – conditions – directions
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Termination – By landlord – Where tenant has caused soil contaminated with asbestos to be placed on the property – Whether there has been a valid termination of the tenancy agreement – Significant credibility issues relating to the tenant
CONTRACTS – construction – mining tenements – royalty payable as percentage of net sales realisation – proper construction of that expression – whether defendant repudiated contract – whether plaintiff entitled to terminate – accrued rights – calculation of loss of bargain damages
HIGH RISK OFFENDER – application for interim detention order – where offender opposes interim detention order – jurisdiction or power to make or continue an interim detention order - proper approach to determination of interim orders
COSTS – plaintiffs filed a Notice of Motion to amend their Statement of Claim – defendant initially opposed the motion but eventually consented to the amendments – leave granted to file Amended Statement of Claim – plaintiffs seek their costs of the motion – merits of the motion not determined – parties did not act unreasonably in the litigation – defendant’s change of position not merely a belated surrender or capitulation – appropriate to make no order as to costs
CRIMINAL LAW – bail – show cause – recidivist offender – psychiatric illness – custodial conditions – where schizophrenic locked in cell 23 hours per day – conditions of bail – awesome – diligence
EMPLOYMENT AND INDUSTRIAL LAW — Contract — Restraint of trade — Application for interlocutory injunction — whether plaintiff has a sufficiently serious arguable case for a final injunction having regard to the balance of convenience
CRIMINAL LAW - sentence - murder - premeditated shooting - 12 gauge shotgun discharged at close range - assessment of objective criminality - aggravating and mitigating factors - whether intention to kill - planning - disregard for public safety - placing another person’s life at risk - where offender the victim of earlier stabbing - where deceased and offender friends - where deceased committed home invasion on offender - knife used - post-traumatic stress disorder - impact on moral culpability - facilitation of course of justice
CRIMINAL LAW - evidence - admissions - lies as admissions - consciousness of guilt - application of Evidence Act - clumsy - whether accused intoxicated at time of making admissions - brown liquor - diazepam - droopy - dispute between witnesses - police officers evidence inconsistent with video recordings - body worn video - electronically recorded interview - accused received legal advice - accused stated he did not wish to be interviewed - continuing questioning calculated to have accused bear witness against himself - objection on various bases CRIMINAL LAW - evidence - reliability of admissions - whether truth of admissions unlikely to be affected - lies - whether untruth affected - circumstances in which lies were told - evidence admissible on this basis CRIMINAL LAW - evidence - admissions - lies - where accused seeks to exercise right to silence - continued questioning by police - accused drowsy and affected by drugs - evidence obtained improperly - discretion to admit in spite of impropriety - where impropriety deliberate - systemic - evidence excluded on this basis CRIMINAL LAW - evidence - admissions - lies - unfairness discretion - onus on accused - onus discharged - evidence excluded on this basis
EQUITY – contribution – co-ordinate liabilities – where company in liquidation sued former directors and auditors – where auditors seek leave to bring Cross-Claim for equitable contribution from former directors – whether liabilities co-ordinate – whether obligations of auditors and directors to company are of the same nature and extent such as to warrant claim for equitable contribution PRACTICE AND PROCEDURE – pleadings – application to amend Commercial List Response – application to bring Cross-Claim Cross-Summons seeking equitable contribution
SUCCESSION – family provision – claim by second husband – disparity of assets on marriage – couple agreed to leave assets to their respective children – re-executed Wills on marriage to that effect – maintained separate finances – husband lived in wife’s property and paid half market rent and household expenses – wife diagnosed with melanoma – 10 year battle with disease – daughter and husband support wife in medical treatment – wife pays medical expenses and carers – daughter and husband provide some care – husband presses wife to change Will – wife makes Will leaving husband less than requested – marriage sours – husband makes Will leaving everything to his child – separation likely save for wife’s terminal illness – wife insists husband is “not my carer” – after wife’s death, husband retires and changes lifestyle – no evidence his assets insufficient – provision made adequate in the circumstances – no primacy ‘in fact’ – no issue of principle.
COSTS – offer of compromise – offer served 1.39pm Christmas Eve – offer open till noon 21 January 2020 – whether closing date “no less than 28 days after the date on which the offer is made” – r 20.26(5)(a) UCPR – principles for reckoning of time at [21]-[25] – offer not compliant. COSTS – family provision – executor offered $1M – plaintiff’s claim dismissed – whether plaintiff should pay indemnity costs or bear his own costs – where adverse costs order would alter the basis on which provision was refused – plaintiff to bear own costs.
CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts – transfer from District Court to Supreme Court under s 140, Civil Procedure Act 2005 (NSW) – whether damages likely to exceed $750,000 – where plaintiff claims total loss of capacity to work – whether prejudice to first defendant due to delayed hearing – transfer of proceedings ordered
SUCCESSION — Family provision — Claims by partner and niece — Deceased’s partner received substantial insurance and superannuation payout and niece received estate — No issues of principle
CIVIL PROCEDURE – interlocutory applications – where plaintiff brought a claim against insurers for total and permanent disability benefits – where plaintiff lacked capacity to conduct litigation – where NSW Trustee was appointed to act on her behalf – where NSW Trustee settled the proceedings and a notice of discontinuance was filed – where plaintiff applied to set aside the discontinuance – where plaintiff challenged the validity of the steps taken on her behalf by the NSW Trustee – where plaintiff sought an adjournment of the application to obtain funding and allow her to prosecute a constitutional matter – constitutional matter unrelated to present application – adjournment refused – NSW Trustee had power to conduct and settle the proceedings – application to set aside discontinuance dismissed with costs
CRIMINAL LAW – Indonesian accused charged with murder – Issue of whether accused was substantially impaired within s 23A of the Crimes Act 1900 (NSW) raised – Defence application to vacate trial date – Vacation said to be required so as to allow proper investigation and consideration of issues, including transcultural psychiatric issues, raised in report of an Indonesian psychiatrist – Vacation said to be required so as to allow proper investigation and consideration of whether MRI should be obtained to: (a) determine whether the accused suffered a traumatic brain injury as a result of a motor vehicle accident leaving her in a coma for two weeks when she was six years old; and (b), if so, the extent to which this was relevant to the issue of substantial impairment within s 23A of the Crimes Act – Application to vacate trial granted
CRIMINAL PROCEDURE — Sentence proceedings — Reasons for sentence — Pronouncement of sentence SENTENCING — Federal offences — Three offences of conspiracy to cause an offer of a bribe to a foreign official contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code Act 1995 (Cth) — Relevant factors on sentence — Objectively serious and within the mid-range — Damage caused by corruption of public officials — Past and future assistance given by the company to authorities — Need for general and specific deterrence — General deterrence achieved by rewarding a self-reporting company who assists investigating and prosecuting authorities — The company’s self-reporting and its response to the offending suggests remorse and contrition, and a desire to set about its own rehabilitation — Consideration of delay SENTENCING — Penalty for body corporate — Determination of the maximum penalty — The meaning of “benefit” in s 70.2(5)(b) of the Criminal Code Act 1995 (Cth) — Consistent with the legislative intention, benefit means net benefit — Discount for guilty plea, past assistance and an undertaking to provide future assistance
REPRESENTATIVE PROCEEDINGS – Civil Procedure Act 2005 (NSW) Part 10 – Merck order – observations on what is not permissible in the Merck order process and final articulation of certain questions
CIVIL PROCEDURE – Parties – Representative order – Judgment entered for plaintiff against unrepresented estate of deceased with liberty reserved for any party interested in the estate to apply for judgment to be set aside or varied CIVIL PROCEDURE – Parties – Representative order – Judgment entered against deceased estate in circumstances where persons interested in the estate failed to obtain a formal grant of representation or consent to a representative order
EMPLOYMENT LAW – Contracts of employment – EQUITY – Fiduciary duties – CORPORATIONS LAW – Corporations Act 2001 (Cth) ss 181(1), 182(1), and 183(1) – Duties of officers and employees – COMPETITION AND CONSUMER LAW – Australian Consumer Law ss 18 and 31 – TORT – Interference with contractual relations – REMEDIES – Availability of declarations – One company (the first company) entices employees of a competitor company (the second company) to leave and join the first company – Some of the employees recant and return – Allegations that two individuals employed by the second company who became employed by the first company breached their contracts of employment, fiduciary duties, and statutory obligations by assisting the first company in its recruitment campaign – Allegations that the first company induced them to breach or knowingly participated in their breaches – First company sues the employees who recanted for breach of contract – The six employees who recanted allege that one of the two individuals misled them into entering employment agreements with the first company – The six employees who recanted seek orders for rescission of their employment contracts – HELD – Individuals breached their employment agreements and equitable duties and one of them his statutory duties – HELD – Employment contract of one individual validly terminated for breach by second company – HELD – Declaratory relief refused as against the other individual – HELD – Interference with contractual relations and participation in breaches not established – HELD – Six employees who recanted not entitled to relief – HELD – Employment contracts not to be rescinded – HELD – The six employees who recanted breached their employment contracts to the first company
ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Unreasonableness – Decision of State Parole Authority to revoke parole where offender had been charged with offences – Application of s170A Crimes (Administration of Sentences) Act 1999 (NSW) ADMINISTRATIVE LAW – Threshold test for procedural fairness – Regular practice – Requirements of State Parole Authority when revoking parole
CORPORATIONS — winding up — voidable transactions — unfair preferences — insolvent transactions — payments to Deputy Commissioner of Taxation to reduce running balance account deficit —Corporations Act 2001 (Cth), s 588FA — where plaintiff liquidator’s investigations into company’s assets incomplete at time of final hearing — where evidence adduced by the plaintiffs does not provide an appropriate basis on which the Court can reach a reasonable decision about whether the defendant received more from the relevant payments than it would receive from the company in respect of the debt if those payments were set aside and the defendant were to prove as an unsecured creditor in the winding up of the company — whether the company was insolvent at the time that each of the relevant payments was made
COSTS – whether costs follow the event – whether the plaintiff was successful in the proceedings against the first defendant – whether the Court ought to make a costs order against the fourth defendant who filed a submitting appearance shortly before the commencement of the hearing – whether the fourth defendant took an active part in the proceedings.
CIVIL PROCEDURE — Stay of proceedings — Pending appeal — Whether reasons to grant stay of proceedings. COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise. COSTS — Party/Party — Exceptions to general rule that costs follow the event —Calderbank offers — Whether unreasonable not to have accepted Calderbank offer.
HIGH RISK OFFENDERS – Extended Supervision Order – Application – Separate questions – Interpretation of s 5B(b) – Whether defendant is a supervised offender under s 5B(b) – Court has no power to make orders
CONTRACTS — Termination — Breach of term – Plaintiff and Defendant entered into an agreement concerning the rezoning and redevelopment of a property owned by the Defendant - the Defendant (on its case) terminated or (on the Plaintiff’s case) purported to terminate the agreement on the basis of breach of a clause requiring the Plaintiff to notify the Defendant if there is a “change in control including a change in the majority shareholding of [the Plaintiff] or its parent company without [the Defendant’s] approval not to be unreasonably withheld” – in September 2020 the sole shareholder (and sole director) transferred all of his shares to three different companies – consent was not sought prior to the transfer of shares or the appointment of a new director – the Plaintiff contended the Defendant was not entitled to terminate the agreement as on the proper construction of the clause it was not required to notify the Defendant of the change – the Court considered the three alternative constructions of the change in control clause advanced by the Plaintiff – the Court held the requirements of the clause were met and that the change in the majority shareholders without approval entitled the Defendant to terminate. CONTRACTS — Remedies — Liquidated damages — Penalty – in the alternative the Plaintiff contended the change in control clause constitutes a penalty – consideration of whether the provision is a primary or secondary obligation – whether the purpose of the clause was punish the borrower for breach then compel performance – consideration of the principles of Kay v Playup Australia Pty Ltd [2020] NSWCA 33 and Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 and the predominant purpose of the clause – the Court held the change in control clause was not a penalty. CONTRACTS — Termination — Relief against forfeiture – the Plaintiff contended that, if the Defendant was found to be have been entitled to terminate the contract, it should be granted relief against forfeiture – issue of whether the remedy is available in respect of a contractual breach which does not involve a proprietary interest – whilst there were significant consequences for termination for breach, the Court did not find the Defendant’s conduct was unconscientious or unconscionable – the Court held no relief against forfeiture should be granted.
CORPORATIONS – applications in three proceedings for orders setting aside statutory demands – where entities that issued the statutory demands have been deregistered between the issuing of the demands and the filing of the originating processes to have the demands set aside – where applications to have the statutory demands set aside cannot be made in accordance with s 459G because person on whom each application and supporting affidavit must be served has ceased to exist – plaintiff sought declarations that the statutory demands ceased to have effect upon deregistration of issuing entities.
COSTS – where plaintiffs seek order for costs in respect of defendants’ failure to serve valuation evidence by requisite date – where defendants unable to offer satisfactory explanation for default – defendants to pay costs
CIVIL PROCEDURE — notice of motion seeking to set aside order under slip rule – where judgment referred to the plaintiff’s submission – where this submission was not in fact made by counsel for the plaintiff – whether case advanced by plaintiff had been determined – notice of motion dismissed
CIVIL PROCEDURE — Interim preservation — Freezing orders – release of funds paid into court – whether necessary for second defendant’s living expenses and funding of defence – where second defendant restrained from selling property – limited release of funds ordered
COSTS — Discontinuance — Power to make an order other than that the plaintiff pay the defendant’s costs — Where plaintiff discontinued after receiving new information from the decision-maker shortly before the hearing — Where defendant could have provided similar information in response to earlier requests — Whether parties should bear their own costs
ESTOPPEL – estoppel by judgment – Anshun estoppel – unreasonableness of conduct – where plaintiff commenced proceedings seeking declaration that contract with defendant not terminated – where Robb J made such a declaration – where plaintiff now brings second proceeding under the same contract seeking damages – whether it was unreasonable for plaintiff not to have brought damages claim in earlier proceedings – whether second proceedings should be stayed
LIMITATION ACT – lender advances loan 14 years ago – fraudulent broker mis-directs funds to girlfriend – fraud discovered 12 years ago – broker imprisoned – plaintiffs repay lender 9 years ago – equitable claim against lender for unconscionable conduct – s 12GF(2), ASIC Act applies by analogy – whether unjust to apply – not unjust if applied from when plaintiffs aware of fraud.
CORPORATIONS — capital raising — disclosure — shares to be issued to sophisticated and professional investors who acquire them for re-sale — cleansing notice lodged by issuer invalid because issuer’s shares not quoted continuously for three months and cleansing notice issued earlier than time permitted under s 708A(6)(a) — order sought to validate cleansing notice under s 1322(4) — order sought to relieve acquirers from liability for re-sale of shares without disclosure — where issuer and acquirers acted honestly — where no substantial injustice caused
CORPORATIONS — Winding up — Statutory demand — Affidavit in support of application — Scope and application of Graywinter principle — Where reply affidavit went beyond scope of earlier affidavit. CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt. CORPORATIONS — Winding up — Statutory demand — Offsetting claim. CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether demand amounts to an abuse of process — Whether defect in the demand — Where parallel proceedings brought against guarantors
CIVIL PROCEDURE – Approval of settlement – Legal incapacity – Plaintiff of an advanced age – Where shares in wound up company held on trust by defendant on condition he care for the plaintiff – Whether settlement in plaintiff’s best interests – No question of principle – Approval granted
COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Whether unreasonable not to have accepted Calderbank offer. COSTS – Party/Party – Exceptions to general rule that costs follow the event – Where claim was without substance.
PRACTICE AND PROCEDURE – CROSS VESTING – Whether Supreme Court of Western Australia is more appropriate forum – evidence as to connection of transaction with New South Wales and Western Australia and location of parties, witnesses and legal representatives neutral – such considerations not making it possible to say one court is more appropriate than the other – agreed governing law and jurisdiction clause must be considered – that it is more appropriate that the proceedings be determined by the West Australian Supreme Court not established.
ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – where approved medical specialist made assessment in accordance with guideline issued under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where appeal panel revoked initial assessment inferentially on basis that guideline inconsistent with requirements of s 323(1) of Act – whether guideline inconsistent with Act – effect of inconsistency with Act – whether appeal panel made error of law STATUTORY INTERPRETATION – subordinate legislation – scope of empowering provisions – where primary legislation provides for a deduction for any proportion of an impairment due to a previous injury or pre-existing condition or abnormality – where primary legislation provides that impairment is to be assessed in accordance with guidelines – where the application of guidelines would require nil deduction for pre-existing but asymptomatic psychiatric injury or condition – whether guidelines inconsistent with primary legislation – whether guidelines beyond power WORKERS COMPENSATION – medical assessment – assessment of degree of permanent impairment – deduction for pre-existing impairment – where claimant suffered previous psychiatric injury – where condition related to previous psychiatric injury asymptomatic at time of present injury – where asymptomatic condition contributed to impairment suffered as a result of present injury – whether any deduction should be made
ADMINISTRATIVE LAW – judicial review – jurisdictional error – error of law on the face of the record – Motor Accidents Compensation Act 1999 (NSW), s 69(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment - whether decision maker exceeded statutory role by determining asserted error on the merits
COSTS — proceedings resolved by consent orders made against first defendant after first defendant capitulated to plaintiff’s claims — no substantive order made against second defendant — plaintiff sought costs orders against both defendants — general rule that costs follow the event — where no determination on merits but capitulation by first defendant — where the plaintiff is a member of the first defendant company — whether appropriate to make a costs order against the second defendant who is the sole director of the first defendant company
CONSUMER LAW — Misleading or deceptive conduct — Reliance upon misleading representations — Representation as to acquisition and contribution of assets into the company — Where representation not falsified. EQUITY — Fiduciary duties — Conflict of interest and duty — Where director alleged to have burnt down the business premises — Where such finding was a necessary step to finding breach of fiduciary duties.
CONSUMER LAW — Misleading or deceptive conduct — Reliance upon misleading representations — Representation as to profit — Representation as to visa application. CORPORATIONS — Members’ rights and remedies — Oppression — Where director’s conduct amounted to “commercial unfairness”. EQUITY — Fiduciary duties — Breach — Rule in Barnes v Addy — Knowing involvement — Where director caused company to purchase asset from company controlled by his spouse — Whether relevant knowledge can be inferred — Whether knowledge can be imputed to company controlled by director’s spouse. EQUITY — Fiduciary duties — Conflict of interest and duty — Where director caused company to purchase asset from company controlled by his spouse — Inadequate disclosure of material facts. RESTITUTION — Ineffective transactions — General principles — Restitution of money paid — Failure of consideration — Total failure rule — Whether total failure of consideration established.
ADMINISTRATIVE LAW — Medical assessment under the Motor Accidents Compensation Act 1999 (NSW) — Review of medical assessment by a review panel — Review panel decided that injury sustained by medical treatment not caused by motor vehicle accident – Issue of causation — Original injury carries some risk that medical treatment administered by reason of it will cause further harm — An indirect, but foreseeable, consequence is sufficient to establish causation — Application of incorrect legal test amounts to an error on the face of the record
COSTS – security for costs – security hitherto given of $2.45 million – application for further security by director defendants – complex proceedings – set down for 60 days commencing 26 July 2021 – no dispute that further security should be given – dispute as to quantum – where further $17.4 million security sought – where ten director defendants represented by six separate law firms and counsel – where duplication of representation said to arise from potential conflicts of interest between director defendants – whether security should be provided for six sets of costs – where parties earlier entered agreement for security described in respect of three tranches of work – whether director defendants should have further security for those tranches of work – whether there has been change of circumstances warranting such further security – whether assumptions adopted by expert costs assessor unrealistic
HIGH RISK OFFENDER – application for renewal of Interim Supervision Order – where ISO made 12 months earlier – where defendant incarcerated since ISO first made – whether sufficient evidence at time renewal was sought to justify renewal of the ISO – where final hearing was imminent
CONSUMER LAW — Consumer credit — National Credit Code — Application — Application for a loan by an individual yet issued to a company owned and controlled by the individual — Loan agreement entered into by the company as borrower — Mortgage given by the individual applicant’s de facto wife to the lender to secure the amount loaned pursuant to the loan agreement — Guarantees given by the individual applicant and the individual applicant’s de facto wife pursuant to the loan agreement — Whether the individual applicant and his de facto wife are “debtors” under the National Credit Code so as to enliven its provisions — Whether the individual applicant and his de facto wife have incurred primary liabilities to pay or repay a deferred debt — Held: individual applicant and his de facto wife are “debtors” within the meaning of the National Credit Code as they have incurred primary liabilities to pay or repay a deferred debt pursuant to the loan agreement — Loan agreement set aside CONTRACTS — Construction — Interpretation —Issue of whether, on the terms of the loan agreement, the individual applicant and his de facto wife have incurred primary liabilities to pay or repay a deferred debt — Loan agreement to be given a businesslike interpretation, yet also to be interpreted in light of the presumption mandated by s 13(1) of the National Credit Code — Onus on the Plaintiff to prove that the loan agreement is one to which the National Credit Code does not apply — Held: pursuant to the terms of the loan agreement, the individual applicant and his de facto wife have incurred primary liabilities to pay or repay a deferred debt — Alternatively, the Plaintiff has not discharged its onus of establishing that the National Credit Code does not apply to the loan agreement CONSUMER LAW — Unconscionable conduct — In connection with goods or services — Unconscionability under the Australian Securities and Investments Commission Act 2001 (Cth) — Asset-based lending — Failure by lender to obtain financial statements of the borrower — Attempt by lender to preclude the operation of the National Credit Code — Interest rates applicable under the loan agreement exceptionally high — Substantial fees payable upfront — Lack of financial advice — Held: the conduct of the lender was, in the circumstances, unconscionable — Loan agreement set aside to prevent or reduce loss or damage pursuant to s 12GM(1) of the Australian Securities and Investments Commission Act 2001 (Cth)
MEDICAL NEGLIGENCE – 18 year old plaintiff with undiagnosed congenital pars defect – where radiologist failed to report on the existence of the defect in mid-2012 – where radiologist admitted breach of duty – where plaintiff alleges that she complained of symptoms to orthopaedic specialist that were indicative of her congenital condition – where orthopaedic surgeon denies any such complaint – where plaintiff not thereafter treated conservatively – where plaintiff subsequently required spinal surgery in mid-2013 – whether plaintiff’s loss and damage caused by radiologist’s breach – whether conservative management of the condition during intervening 12 months would have avoided deterioration of her condition or the need for surgery with severe consequences or whether the outcome was unavoidable even if correctly treated and managed – standard of proof – whether plaintiff established loss and damage on balance of probabilities or merely a statistical chance that her condition could have been successfully managed without surgery if diagnosed earlier
CRIMINAL PROCEDURE – Suppression and non-publication orders – suppression of details pertaining to a surveillance device – orders necessary to prevent prejudice to the interests of the Commonwealth in relation to national security –national interest substantially outweighs confined derogation from open justice – orders made
CORPORATIONS — winding up — application for adjournment of winding up application under Corporations Act 2001 (Cth) s 440A(2) — where administrators appointed on eve of hearing of application to wind up company in insolvency — where administrators have formed the view that the company is obviously insolvent — where administrators refer to prospect of deed of company arrangement utilising loan funds, but lender has failed to provide loan funds in accordance with relevant loan agreement for previous two years — prospect of deed of company arrangement raised by company director in very vague terms — whether sufficient evidentiary basis to conclude that continuation of administration to allow administrators to investigate deed prospects is in the interests of creditors — adjournment application refused — company wound up in insolvency
CIVIL PROCEDURE – Subpoenas – Application to set aside – Abuse of process – Whether subpoena for production of document is an abuse of process seeking impermissible discovery CIVIL PROCEDURE – Subpoenas – Objection to production of documents or things – Client legal privilege – Whether privilege has been waived
CONTRACTS – formation of contracts – intention to make concluded bargain – lessee sought to negotiate new five-year lease with lessor – retail shop premises – parties reached consensus as to terms necessary for a new lease but did not execute a lease document – previous lease dealt comprehensively with the parties’ obligations to each other – no discussion of a number of important matters including insurance, bank guarantee and guarantee of lessee’s obligations – requirements of Retail Leases Act 1994 (NSW) not met – not implicit that the parties intended to be bound on the terms of previous lease save for changes to accommodate the matters agreed upon in negotiations – held that the parties did not intend to be bound immediately – no binding agreement reached LAND LAW – leases – Retail Leases Act 1994 (NSW) (“the Act”) – “retail shop lease” – necessary that there be a concluded agreement intended to be binding whereby a right of occupation is granted – no such agreement concluded for a right of occupation for a 5 year term with an option for a further term of 5 years – section 8 of the Act is concerned with when a retail shop lease is deemed to have commenced or been entered into not whether a retail shop lease has come into existence – no retail shop lease came into existence
CIVIL PROCEDURE – judgments and orders – application to set aside consent judgment on the ground of illegality – dispute concerning loan agreement – where money originally came from China – where lender first transferred money to borrower in China – where borrower then used an internet business to transfer money to Australia – where internet business was not an approved foreign exchange bank in China – whether transfers to Australia were contrary to Chinese foreign exchange laws – consideration of principle in Foster v Driscoll and Regazzoni v KC Sethia – evidence did not establish a breach of Chinese law – transfer of money via internet business did not involve foreign exchange trading – transactions did not result in “serious” interference with market order – even if an offence had been committed, it was doubtful whether that meant the loan was illegal under Australian law – application was too late in any event – consent judgment had been regularly and legally entered by consent – application dismissed
EQUITY — Equitable remedies — Injunctions — Property sold pursuant to a purported first mortgage on the mistaken assumption that the mortgage secured amounts advanced — Proceeds of the sale of the property paid into Court — Previous hearing in this Court on a separate question, the outcome of which was that the purported first mortgage did not secure the amounts advanced — Agreement reached by the parties prior to the hearing of the separate question identifying to whom the proceeds of the sale of the property were to be paid following the Court’s judgment in respect of the separate question — In light of the Court’s judgment on the separate question, pursuant to the parties’ agreement, the amounts held in Court were to be paid to the former registered proprietor of the property — New claims made pursuant to a purported second mortgage — Purported second mortgagees sought an interlocutory injunction requiring the former registered proprietor to place the proceeds of sale of the property in a bank account and restraining the former registered proprietor from encumbering or making any withdrawal or transfer from that account — Held: The undertaking proffered by the Applicants on the Motion was ineffective — Consideration of the relative strengths and weaknesses of the parties respective claims and defences — Applicants did not have a strong case on estoppel and the Respondents had, at the very least, reasonable prospects on their case that the second mortgagees could not resile from their agreement in respect of the funds — Proceeds of sale of the property to be released to the former registered proprietor of the property, with a requirement that it give the Applicants on the Motion 14 days’ notice of its intention to disburse those funds to its unitholders
CIVIL PROCEDURE – jurisdiction – transfer to and from other courts – District Court – where District Court proceedings concerned similar claims against the same defendant in proceedings in the Supreme Court
CIVIL PROCEDURE — Summons seeking mandatory injunction pursuant to the Privacy Act 1988 (Cth) and at law that the Law Society and College of Law allow inspection of the plaintiff’s personal information — Law Society bound by Privacy Act and was obliged to produce requested documents — Pursuant to sections 467 and 468 of the Legal Profession Uniform Law (NSW) the Law Society, the Council and its staff cannot be compelled to answer a subpoena or notice to produce — Absent a breach of the Law Society’s obligations under the Privacy Act, the plaintiff is not entitled to injunction under s 80W of the Privacy Act or under the general law OCCUPATIONS — Legal practitioners — Qualifications and admission — Practising certificates — Application for an order that the Law Society issue the plaintiff with a sole practitioner practising certificate — This Court’s inherent power does not extend to the issue, or variation, of practising certificates
HIGH RISK TERRORISM OFFENDER – Extended supervision order (ESO) – Convicted NSW terrorism activity offender subject to ESO – Conditions to be imposed under the ESO
CONTRACT – construction loan of $27.5M – suggested oral agreement to pay $500,000 commission – agreement not established – loan in default – guarantor agrees to pay $1m – agreement between guarantor and plaintiff to fund the $1m – only $800,000 paid – plaintiff says oral agreement that $800,000 would be held on trust – no such agreement – claims fail – no question of principle.
SUMMARY DISMISSAL – abuse of process – Anshun estoppel – plaintiff unsuccessful in probate proceedings – failed to show testator knew and approved of will making plaintiff sole beneficiary – defendant’s employed solicitor drafted and supervised execution of will – alleged defendant’s failures meant plaintiff lacked evidence to prove will approved – attempt to relitigate probate proceedings – statement of claim struck out
CORPORATIONS – winding up – where company in liquidation – where company hired aircraft from creditor – where payment made by company to creditor after commencement of winding up – whether payment a void disposition – Corporations Act 2001 (Cth) s 468(1) – whether exemption in s 468(2)(b) applied – whether Court should exercise discretion to declare payment is not void
CORPORATIONS — deed of company arrangement — scope of power under s 90-15 of the Insolvency Practice Schedule — application for orders to facilitate the deregistration of the company without any intervening winding up — orders refused CORPORATIONS — deed of company arrangement — orders terminating the deed of company arrangement — orders under s 447A of the Corporations Act 2001 (Cth) modifying the operation of the winding up regime created by s 446AA in relation to reporting to creditors CORPORATIONS — deed of company arrangement — remuneration of deed administrator – where the remuneration claimed exceeds the total creditors’ claims
PRACTICE AND PROCEDURE – High Risk Offender – Late tender of an affidavit – Evidence relevant to the defendant’s state of mind under stress – Delay – Affidavit admitted
PRACTICE AND PROCEDURE – High Risk Offender – Late tender of an affidavit – Time limited legislative scheme – Forensic prejudice to one of the parties – Affidavit rejected
SUCCESSION — Contested probate – Alleged lack of testamentary capacity - Lack of knowledge and approval - Suspicious circumstances - Whether deceased knew and approved the contents of the 2017 Will - Whether onus on the propounders of the 2017 Will has been discharged SUCCESSION - FAMILY PROVISION - Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 by Plaintiff - Claim by adult grandchild of the deceased - Whether wholly or partly dependent upon deceased at any particular time - Whether factors warranting the making of the application - Lack of any contact with the Plaintiff for some years - Limited telephone contact but it stopped about 9 years before death of the deceased - Some provision made for Plaintiff in the Will - Whether adequate and proper provision not made in the Will of the deceased for the Plaintiff and, if not, the nature and quantum of the provision to be made for her - Claim for relief dismissed
PRACTICE AND PROCEDURE – Application for adjournment to obtain further evidence – Where evidence goes to point conceded by defendant – Nothing to be gained from adjournment – Application refused
PRACTICE AND PROCEDURE – Application to separate the issue of quantum from liability – Where psychiatric condition of child plaintiffs not yet stabilised – Whether application fair in the circumstances – Application granted
SUCCESSION – Family Provision – Claim by adult child – Deceased and former wife were legal guardians of plaintiff – No significant contact between plaintiff and deceased for 26 years – Whole estate left to RSPCA
CRIMINAL LAW - application under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”) for an inquiry into the applicant’s conviction – no doubt or question raised about the applicant’s guilt
EVIDENCE – Expert evidence – Appointment of joint expert agreed upon by the parties – Plaintiff obtains report from another expert following receipt of joint expert report - Differences in opinion between appointed joint expert and proposed adversarial expert – Whether leave to adduce evidence from another expert on issue arising in proceedings if a parties' joint expert has been engaged – UCPR r 31.44 CIVIL PROCEDURE – Suppression and non-publication of the whole of contents of the adversarial expert report — Whether necessary to prevent disclosure of the contents and conclusions of the adversarial report – Whether order should be made until conclusion of the substantive proceedings and delivery of reasons for judgment delivered or until further order
SUCCESSION — Contested probate — Testamentary capacity — Whether the deceased understood the extent of her estate of which she was disposing at the time she executed a will. SUCCESSION — Administration of estates — Whether defendant should bear liability for monies paid out for a discharge of mortgage and equitable charge on the title to the estate property — Whether defendant is required to account for monies received as an insurance payout for storm damage to property — Whether defendant is accountable for net rent receipts for letting out that part of the property formerly occupied by the deceased for the period before the deceased’s death as well as for the period after her death. SUCCESSION — Family provision — Claim by adult daughter – Further consideration of plaintiff’s claim reserved pending determination of size of deceased’s estate.
APPEALS – Procedure – Time limits – Appeal brought out of time – Where appeal filed in wrong court – Where appeal against interlocutory order of the Local Court – s 53(3)(b) Crimes (Appeal and Review) Act 2001 – Leave granted APPEALS – Leave to Appeal – Principles governing – Whether appeal an abuse of process – Whether Uniform Civil Procedure Rules governed the impugned decision in the Local Court – Adequacy of reasons given – Proper construction of s 26 of the Crimes (Domestic and Personal Violence) Act 2007 – Appeal dismissed
OCCUPATIONS — Legal practitioners — Application for an order pursuant to s 472(1)(b) of the Legal Profession Uniform Law (NSW) that the defendant deliver up all documents it holds which relate to the plaintiffs — Whether a valid authority for delivery up of the documents had been received — Meaning of “information” in the context of the authorities CORPORATIONS — Formalities — Whether, by reference to their articles of association, the companies could authorise the defendant to deliver up the documents — Gathering of directors for the purpose of authorising the delivery up of the companies’ information constituted a meeting for the purposes of the articles of association of the companies — Sole director entitled to appoint a director to fill the vacancy left by a director who became incapable — Resolution passed by sole director under s 248B of the Corporations Act 2001 (Cth) AGENCY — Duties of solicitor to client — Awareness of what is required of a solicitor as a fiduciary — A solicitor is bound to act in accordance with the instructions of the companies — The companies acted through their directors acting collectively as the board of each company CONTRACTS — Parties — Mental capacity to sign authorities and instruct new solicitors — Testamentary capacity — Reasonable steps taken by solicitors to ascertain capacity
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Residential building work — Consequences of failure to obtain contractor licence and insurance — Where the owner-builder defendant pleaded that the Act barred the plaintiff from being entitled to recover any money under a deed in respect of the residential building works because he did not have a contractor licence or insurance as required by the Act — Where the Court found that the Act did not prohibit the plaintiff from enforcing the deed if it was enforceable or from obtaining proper restitution if the deed was not unenforceable CONTRACTS — Remedies — Liquidated damages — Penalty — Where the defendant claimed that a term of the deed was a penalty and therefore unenforceable — Where the Court found that the provision was not a penalty because it could not properly be characterised as having the function of inducing performance of another provision of the deed CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — Unjust — Where the plaintiff sought to enforce a deed of acknowledgement of debt — Where there was a material inequality of bargaining power between the plaintiff and defendant — Where the plaintiff exercised unfair pressure or unfair tactics in causing the defendant to enter into the deed — Where the Court found that provisions of the deed were unjust at the time the deed was entered into within the meaning of s 7 of the Act EQUITY — Equitable remedies — Restitution — Contract unenforceable — Where the plaintiff claimed in the alternative that the defendant held the property on constructive trust in favour of the plaintiff in proportion to the plaintiff’s contributions to the renovation of the property — Where there was no joint endeavour between the parties in the sense of Muschinski v Dodds — Where the Court found that the plaintiff was not entitled to an equitable interest in the property on the basis of a partial constructive trust EQUITY — Unconscionable conduct — Special disability or disadvantage — Whether unconscientious advantage taken — Where the defendant claimed that her signature to a deed was the product of duress or undue influence or unconscionability, and that she signed the deed in reliance upon a representation by the plaintiff — Where the Court found that there was no relationship of influence between the plaintiff and defendant to establish undue influence — Where the Court found that the deed should be set aside in equity on the ground that it was procured by the plaintiff taking unconscionable advantage of the defendant’s special disadvantage LAND LAW — Caveats — Caveatable interest — Where the defendant claimed that a deed executed by her did not grant a charge over the property in favour of the plaintiff to secure the payment of monies under the deed so that the plaintiff did not have a caveatable interest to support the caveat that he lodged — Where the Court found that the defendant’s consent to the lodgement of the caveat demonstrated an intention that a charge would be created over the property by the lodgement RESTITUTION — Nature of restitutionary liability — Unjust enrichment — At the plaintiff’s expense — Where the plaintiff’s claim for the enforcement of a deed of acknowledgment of debt failed — Where the defendant disputed the amount claimed by the plaintiff — Where the defendant was not given an opportunity to verify the amount claimed — Where the plaintiff failed to provide proof at the hearing for the amount claimed — Where the defendant should not in principle enjoy the whole benefit of the renovation works for nothing — Where the Court found that the plaintiff may be entitled to restitution from the defendant for the reasonable costs of the residential building work done and materials supplied, and the value that his participation in the renovation added to the property
CIVIL PROCEDURE – service outside Australia –plaintiffs sue on tort of intentional infliction of economic harm using unlawful means – unlawful means said to be registering trademarks in China contrary to Trademark Law of China – individual defendant resident in NSW and personally served –whether leave required to serve originating process on Hong Kong company – damage sustained in Australia – Hong Kong company a proper party – leave not required. PRIVATE INTERNATIONAL LAW – whether clearly inappropriate forum – trademark litigation on foot in China – territorial nature of intellectual property rights – separate proceedings will need to be commenced in China to recover compensation – lay witnesses in NSW – damage in NSW – foreign law – proceedings in China do not include all parties – whether insufficient prospects of success in Australia – whether abuse of process given earlier Hong Kong proceedings – proceedings temporarily stayed pending finalisation of trademark determination in China.
ADMINISTRATIVE LAW – Whether reviewable error of law – Error of law on the face of the record – Decision of a claims assessor TRAFFIC LAW AND TRANSPORT – Traffic Law – Motor accident legislation – Application of s 3.37 Motor Accident Injuries Act 2017 (NSW)
CONTRACTS – implied terms – good faith – where subcontract provided for an extension of time regime including a power for the contractor to extend time “in its absolute discretion” and with “no obligation to extend, or to consider whether it should extend” – contractor not obliged to act reasonably with regard to the prevention principle or in good faith due to contractual scheme and language used CONTRACTS – remedies – liquidated damages – penalty – where residential building subcontract provided for delay damages at a rate of $3,500 per day – stipulated rate not penal in character
PARTNERSHIP — oral partnership agreement — dissolution of partnership — winding up of partnership business — taking of partnership accounts — ordinary basis or wilful default — difficulty in identifying assets and liabilities of partnership due to lack of records and conduct of partners — claim for compound interest TRUSTS — application for general administration order — alternative application for appointment of new trustee — applicable principles
ADMINISTRATIVE LAW – Reviewability – Justiciability – Subject matter of power or decision – Prosecutorial decision CRIMINAL PROCEDURE – Private prosecutions – Power of Director of Public Prosecutions to take over and withdraw a private prosecution – Application of s 9 Director of Public Prosecutions Act 1986 (NSW)
INTERIM INJUNCTION – mandatory injunction – defendant operates water treatment facility for mines – defendant obliged to treat water regardless of quality – dispute as to water quality – dispute as to work on holding pond – defendant stores disputed water in disputed pond – defendant refuses to treat disputed water – no capacity to take more water – water from mine stopped – mines begin to flood – “step-in” notice issued – whether Court should determine question of law on interim application – principles at [67] – decline to decide complex question on duty judge application – serious question to be tried – balance of convenience favours making orders to treat water.
ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – where relief sought includes an order in the nature of certiorari – where appeal panel found demonstrable error in decision-maker’s approach – where demonstrable error included applying the wrong test – where appeal panel proceeded to its own assessment – whether appeal panel erred in identifying error in decision-maker’s application of the wrong test – whether appeal panel itself applied the wrong test STATUTORY INTERPRETATION – subordinate legislation – scope of empowering provisions – where the primary legislation provides for a deduction for any proportion of an impairment that is due to a previous injury or pre-existing condition or abnormality – where the primary legislation provides that impairment is to be assessed in accordance with guidelines – where the application of the guidelines would require a nil deduction for a pre-existing but asymptomatic psychiatric injury or condition – whether the guidelines are inconsistent with the primary legislation – whether the guidelines are beyond power WORKERS COMPENSATION – medical assessment – assessment of degree of permanent impairment – deduction for pre-existing impairment – where claimant has suffered previous psychiatric injury – where condition related to previous psychiatric injury was asymptomatic at time of present injury – where asymptomatic condition contributed to impairment suffered as a result of present injury – whether any deduction should be made
COSTS – Failed application by the defendant for an order that proceedings no longer continue as a class action – Heard together with an application for Merck orders – Declassing application fails – Court makes Merck orders identifying common questions – Whether the defendant should pay the costs of the declassing application – HELD – It should
BUILDING AND CONSTRUCTION – interim relief –applicant claims no construction contract – similar contention made to adjudicator, but withdrawn – adjudicator determined had jurisdiction – jurisdictional challenge now revived in this Court – respondent alleged to be insolvent – interim relief refused.
CRIMINAL PROCEDURE – Application for Inquiry into Sentence – Crimes (Appeal and Review Act) 2001, Part 7 – plea of guilty – sentence imposed – appeal to CCA – matters fully ventilated – discretion under s 79(3) of the Act – no doubt or question appears to Court - refusal to consider or further deal with matter
CRIME – sentencing – manslaughter – where offender did not have the actual specific intent of killing the victim – guilty plea – discount to be applied – whether utilitarian discount under s 25E(1)(b) is available where offer to plead guilty to an offence made but not formally entered in committal proceedings – statutory construction – whether alternative less serious offence is a “different offence” the subject of the proceedings
NOTICES TO PRODUCE – application to set aside one category of documents in notice to produce – whether legitimate forensic purpose – whether documents the subject of client legal privilege – whether privilege lost by disclosure of substance of legal advice or conduct inconsistent with the maintenance of confidentiality in the communications
CONTRACTS – declaration as to effect of terms of settlement pursuant to Civil Procedure Act 2005 (NSW), s 73 - implied terms – implied obligation of good faith – implied obligation to do all things necessary to enable each party to have the benefit of the contract – whether Court’s power under Civil Procedure Act 2005 (NSW), s 73 extends to ordering one party to indemnify another party where contract did not include any indemnity
COSTS – party/party – claim based on alleged promises about future access to property – where plaintiff did not fully articulate a claim for proprietary estoppel before oral opening submissions and defendant obtained adjournment – where plaintiff ultimately succeeded on basis of proprietary estoppel – plaintiff ordered to pay costs thrown away by reason of the adjournment – defendant ordered to pay plaintiff’s general costs of the proceedings COSTS – party/party – claim by plaintiff for rectification of instrument by removal of notation – cross-claim by defendant for rectification of instrument – claim and cross-claim dismissed – Smith v Madden (1946) 73 CLR 129 – plaintiff ordered to pay defendant’s costs apart from those solely referable to bringing cross-claim – defendant ordered to pay plaintiff’s costs solely referable to defence of cross-claim
COSTS – determination of costs issues following final hearing of civil claim – Defendants succeed on merits – earlier significant breaches by Defendants of statutory duty under s.56(3) Civil Procedure Act 2005 – interlocutory indemnity costs order made in favour of Plaintiff – whether appropriate order to resolve all costs issues is that Plaintiff should pay 50% of costs of Defendants on ordinary basis – held order to that effect just and proportionate – order made
CRIME – sentencing – verdict of manslaughter following trial – offender administered pentobarbitone to her 92 year old mother – jury verdict consistent with manslaughter by unlawful and dangerous act or substantial impairment – found offender intended to kill – offender substantially impaired – mentally ill offender – whether s 5(1) of Crimes (Sentencing Procedure) Act 1999 satisfied – non custodial sentence imposed
EQUITY – pleading and particulars – plaintiff claims to be entitled to a share of the two properties by way of common intention constructive trust under Muschinski v Dodds principle – pleading and particulars – form of prayers for relief required in statement of claim – particulars of quantum of plaintiff’s contributions to alleged common venture unnecessary – interlocutory orders – plaintiff seeks to remain in occupation of one of the properties and to have proceeds of second property held pending determination of her claim – plaintiff required to give undertakings to pay interest and occupation fee if required
PRACTICE AND PROCEDURE – Pleadings – Whether reasonable cause of action disclosed – Whether proceedings constituted an abuse of process – Where plaintiff commenced had proceedings in the District Court – Where those proceedings were dismissed – Where plaintiff did not seek to appeal against that decision – Where plaintiff then commenced proceedings in this Court – Where the effect of those proceedings was to re-agitate the determination of the District Court in the guise of an action in negligence – Where the plaintiff complained of discrimination in the conduct of the proceedings in the District Court – Review of transcript of those proceedings at odds with a complaint of discrimination and at odds with a complaint of a denial of procedural fairness – Where statement of claim did not disclose a cause of action against any defendant – Where proceedings were otherwise an abuse of process – Proceedings dismissed
PRACTICE AND PROCEDURE – motion for strike out of proceedings – cross application for leave to file further amended statement of claim – professional negligence – question of negligence of solicitors acting on property purchase – where solicitors acted for both parties in a complex purchase arrangement – where contractual matters already determined in previous proceedings – factual findings foundational to current action – Anshun estoppel – abuse of process – orders made
CIVIL PROCEDURE – plaintiff company without legal representation – director of the plaintiff company sought leave to represent it in the proceedings – leave refused and further proceedings stayed until plaintiff legally represented COURTS AND JUDGES – apprehended bias – strike-out and summary judgment application – where judge had made previous decision to summarily dismiss previous separate proceedings in which director’s de facto wife was the plaintiff – application for recusal refused CIVIL PROCEDURE – interlocutory applications – claims in tort for contamination of business premises – claims purportedly assigned to new trustee – statement of claim did not plead material facts – summary dismissal refused – statement of claim struck out with liberty to apply to re-plead – plaintiff ordered to pay a lump sum on account of costs of application
CORPORATIONS — Financial reporting — Relief from reporting obligations — Application for relief under s 1322 of the Corporations Act — Extension of time sought to lodge notice with Australian Securities and Investments Commission seeking application of certain provisions of the former Corporations Law — “Grandfathered proprietary company” exemption — Whether substantial injustice. CORPORATIONS — Directors and officers — Application for relief under s 1322 of the Corporations Act — Relief from civil liability in respect of failure to lodge (a) relevant notice with Australian Securities and Investments Commission; and (b) financial accounts
CORPORATIONS — Winding up — Application based on failure to comply with creditor’s statutory demand — Where debt the subject of the statutory demand was a judgment debt
ADMINISTRATIVE LAW – Motor accident legislation – Review of Medical Assessment Service Review Panel decision – Jurisdictional error – Ground of review other than procedural fairness – Failure to properly exercise jurisdiction – Failure to discharge statutory function to ascertain causation – Where absence of contemporaneous clinical record of left shoulder injury complaint treated as decisive – Jurisdictional error established – Orders in the nature of certiorari and mandamus granted ADMINISTRATIVE LAW – Remedies – Materiality – Whether plaintiff able to surmount 10% threshold of degree of permanent impairment – Application of permanent impairment guidelines – Reliance on range of motion measurements – Where possibility of exceeding 10% threshold existent – Materiality established ADMINISTRATIVE LAW – Discretionary factors – Futility – Where materiality established – Where relief in any event not futile where assessment of injury a matter for fresh consideration by differently constituted review panel
EQUITY — trusts and trustees — beneficiaries — standing to bring proceedings — derivative suit in name of trustee — one group of beneficiaries seeking leave to sue another group in the name of trustee — special or exceptional circumstances — trustee refuses to cross-claim but received judicial advice that defending claims justified — whether proposed action is meritorious CORPORATIONS — members’ rights and remedies — oppression — where conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory against minority — dilution of shareholding via rights issues
PERSONAL PROPERTY — Co-ownership — Joint tenancy — Severance — whether unilateral severance of a joint tenancy by alienation to oneself is effective in relation to chose in action PERSONAL PROPERTY — Co-ownership — Statutory trust for partition — Appointment of trustees — whether a debt is “property” within the meaning of s 66G of the Conveyancing Act or whether it is a “chattel” within the meaning of s 36A of the Conveyancing Act
HIGH RISK OFFENDER – preliminary application – serious sex and violence offender – application for Interim Supervision Order (ISO) – defendant has multiple convictions for serious sexual and violent abuse of women – dispute as to conditions to be imposed by ISO – some conditions too intrusive – community safety paramount.
CIVIL PROCEDURE – pleadings – leave to amend to raise new defence, withdraw other defences and cross claim – where defendant recently became aware of matters giving rise to new defence – where amendments would necessitate vacation of hearing – whether reasonable prospects of success – whether delay adequately explained – leave to amend granted
CIVIL PROCEDURE – Interlocutory applications – Defendants seeking access to plaintiff’s Centrelink records – Power of court to order plaintiff to provide an authority to allow the defendants to access Centrelink records – Social Security (Administration) Act 1999 (Cth)
SUCCESSION – Family Provision – Claims by two adult children of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – No provision made for adult son of the deceased and limited provision made for the adult daughter of the deceased – Reasons for the lack of, and for the limited, provision made for each Plaintiff stated in the Will of the deceased – Periods of lack of close contact between adult daughter and the deceased, and in the case of the adult son, complete estrangement for about 30 years – Reconciliation before death of the deceased - Significant competing claim of the Defendant, who is entitled to 50 per cent of the deceased’s estate – Balance of estate left to other son who predeceased the deceased, which share passes to grandchildren of the deceased – Whether each Plaintiff has been left without adequate provision for his, and her, proper maintenance and advancement in life – Whether an order for provision should be made for each Plaintiff’s proper maintenance and advancement in life and, if so, in what amount – Provision to be made for each Plaintiff and, in the case of the adult daughter, that provision in lieu of the provision made for her in the deceased’s Will
JUDGEMENTS AND ORDERS – declarations – where finding made that plaintiff entitled to be paid for variations – where no amount owing to plaintiff because of payment made by defendant following a determination pursuant to the Building and Construction Industry Security of Payment Act 1999 – whether utility in declaring amount allowed for variations
HIGH RISK OFFENDERS – Interim Supervision Order – application – consent – matters to be considered – unacceptable risk of committing a serious offence – Interim Supervision Order issued
COSTS – offers of compromise – plaintiff made offer to defendant to settle plaintiff’s claim – offer conditional upon acceptance of another offer in relation to defendant’s cross-claim – defendant failed to accept offers – plaintiff obtained judgment on its claim that was no less favourable than the terms of its offer – Uniform Civil Procedure Rules 2005 r 42.14 applied so that unless the Court orders otherwise the plaintiff is entitled to ordinary costs up to the date of the offer and indemnity costs thereafter – no good reason to order otherwise COSTS – offers of compromise – cross-defendants made offer to cross claimant to settle cross-claimant’s claim – term of offer that judgment be entered for cross-defendants – cross-claim discontinued following a narrowing of plaintiff’s case – cross-claim would have failed had it continued – cross-defendants entitled to order for costs on the ordinary basis – no entitlement to indemnity costs because cross-defendants did not obtain an order on the cross-claim no less favourable to them than the terms of the offer
EQUITY – trusts and trustees – powers, duties, rights and liabilities – powers of trustees – statutory jurisdiction of the court to confer powers on trustees pursuant to Trustee Act 1925 (NSW), s 81 – where trustees seek orders authorising advances of capital and income to residual beneficiaries under cl 5 of will – where one remaining beneficiary to receive capital at specified ages – where substantial trustee fees and holding costs likely incurred before specified ages reached – expedient in the management and administration of the trust to grant additional powers sought
CONTRACTS – construction and interpretation – contract for sale of land – condition precedent that purchaser obtain a development approval by 31 March 2020 – Council approved development on 17 March 2020 – development approval informally notified to purchaser by following day – signed development approval documents not sent to purchaser until 2 April 2020 – held that purchaser did not obtain development approval by 31 March 2020 – condition precedent not satisfied CONTRACTS – termination – principle that a party cannot exercise contractual right in reliance upon event resulting from its own default – purchaser required to use all reasonable endeavours to obtain development approval – purchaser terminated contract due to lack of development approval –substantial chance that purchaser would have obtained development approval had they used reasonable endeavours – held that purchaser not entitled to terminate contract LAND LAW – deposits – contract for sale of land – purchaser paid $100,000 deposit – purchaser’s wrongful termination constituted repudiation – vendor accepted repudiation and terminated contract – vendor entitled to deposit
PRACTICE AND PROCEDURE — summons – summary dismissal – whether no reasonable cause of action is disclosed – plaintiff seeking judicial review of Prothonotary’s decision to decline fee relief application – where alleged error relates to events subsequent to relevant decision – where plaintiff alleged that judicial review proceedings were a monetary claim – whether denial of procedural fairness – whether State’s notice of motion “illegal” – summons dismissed
MENTAL HEALTH – forensic patient – application for extension of status as forensic patient – unacceptable risk posed by defendant – question whether less restrictive means available that could manage risk – unavailability of less restrictive means to be proved with high degree of probability – possibility but still high degree – more time on conditional release may raise real possibility – extension granted for short duration
CIVIL PROCEDURE – summary disposal – plaintiff claims title by adverse possession over parcels of land said to be owned by the Crown – parcels of land vested in local Council as public roads – plaintiff’s claim against second defendant State of New South Wales bound to fail – proceedings summarily dismissed against second defendant
CRIMINAL LAW – sentencing following pleas of guilty – murder and wound with intent to cause grievous bodily harm – gravity of offences – whether sentence of life imprisonment should be imposed for murder – relevance of mental condition of Offender on sentence – life sentence not appropriate – very substantial aggregate term of imprisonment warranted – aggregate sentence of imprisonment for 44 years with non-parole period of 33 years
ASSOCIATIONS AND CLUBS – jurisdiction of courts – intervention in internal decisions – appointment of receiver and manager to convene annual general meeting for committee elections – where irregularities as to administrator’s appointment – whether administrator or some other person should be appointed as receiver and manager
CONTRACTS – Expert determination regarding contract to perform road widening works on Pacific Motorway – where expert determined issue adversely to plaintiff – where plaintiff commenced proceeding to reagitate that issue – whether plaintiff precluded by the terms of the contract from litigating that issue– whether an expert determination that no further compensation is payable is a determination that does not involve paying a sum of money CONTRACTS – provision for expert determination – whether there was a deficiency or error in determination that disclosed expert did not make a determination in accordance with the contract PRACTICE AND PROCEDURE – expert determination as to part of the claim the subject of the proceedings – whether proceedings commenced in the face of an expert determination should be stayed in part
PRACTICE AND PROCEDURE – application to amend List Response to allege proceedings out of time – whether building contract made date in Certificate of Practical Completion conclusive as to when completion took place
EQUITY – interlocutory injunctions – application to restrain members’ meeting of unit trustee and other proposed actions of trustee – whether serious question to be tried as to validity of share and unit transfers, removal of director of trustee and replacement of trustee – whether balance of convenience in favour of imposition of restraints –serious questions to be tried established but claims not strong – risk of losing commercially favourable refinance – questions about adequacy of undertaking as to damages – interlocutory injunctions refused
ADMINISTRATIVE LAW – plaintiff subject to investigation by stewards of Racing NSW because the horses of one of his clients were found to contain cobalt – alleged unreasonableness in finding lack of co-operation by plaintiff who gave no evidence of what inquiries he had made following his undertaking to the stewards to make inquiries as to the identity of his supplier ADMINISTRATIVE LAW – whether denial of procedural fairness for Racing Appeals Tribunal to take into account that the plaintiff did not give or adduce evidence of what inquiries he had made to ascertain details of his supplier
CRIME – sentencing – murder – where guilty plea entered at late stage – contract killing – where shooting of teenage boy asleep in his bedroom – where offence planned and deliberate – where offender recruited for reward – where conduct objectively in worst category of cases – where history of childhood disruption and social deprivation – where offender acted out of loyalty and fear – where genuine expression of remorse
CRIMINAL PROCEDURE — Application for suppression and non-publication orders — Grounds — Whether the order is necessary to prevent prejudice to the proper administration of justice — Administration of justice includes the public interest in open justice and the right of an accused person to a fair trial by an impartial jury — Whether accused person is prejudiced by being identified in publicity relating to the plea of the Company or the statement of agreed facts signed by the Company and the Crown for the sentence proceedings of the Company CRIMINAL LAW — Attribution by Company of its acts and intention to individuals who are co-accused — Prejudicial effect on individuals if Company’s plea is published — Particular prejudice arising from statement of agreed facts between the Company and the Crown on co-accused referred to in statement
APPEALS – from Local Court – appeal as of right on question of law and by leave on mixed law and fact – no appeal on question of fact – no evidence ground is question of law – no evidence relates to conclusion of fact not each evidentiary fact – appeal dismissed
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.
CRIME – sentence – murder – objective seriousness of offending – judge alone trial – offender pleaded guilty to manslaughter – offender claimed self-defence – found guilty of murder – question of remorse – relevance of drug use – where offender mutilated body
APPEALS – Leave to appeal – From Local Court – From committal proceedings – Where parties in agreement that magistrate erred in setting aside subpoena – Where documents have been produced to applicant – Where no practical utility in granting relief – Whether need to correct manifest error – Where not clear that subpoena had legitimate forensic purpose in context of committal proceedings – Where not clear whether Supreme Court able to grant relief sought – Leave refused STATUTORY INTERPRETATION – Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(a) – Whether setting aside subpoena within the meaning of “order” – Meaning of “any person” – Meaning of “against” – Meaning of “in relation to the person” – Use of extrinsic materials – Explanatory note and second reading speech CRIMINAL PROCEDURE – Committal proceedings – Whether legitimate forensic purpose in issuing subpoena in committal proceedings under new legislative scheme where no facility for defendant to adduce evidence APPEALS – Leave to appeal – Remedies – Scope of Crimes (Appeal and Review) Act 2001 (NSW), s 55(3)(a) – Whether orders for production to Supreme Court available APPEALS – Leave to appeal – Remedies – Alternative relief sought – Certiorari refused for discretionary reasons mirroring reasons for refusing leave to appeal – Declaration refused on basis that such relief would be an advisory opinion APPEALS – Procedure – Time limits – Extension of time – Where not opposed – Extension granted
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise compliant with Uniform Civil Procedure Rules 2005 (NSW), r 20.26 — No reason to depart from consequence provided for by Uniform Civil Procedure Rules 2005 (NSW), r 42.14 — Public interest in early and efficient disposal of proceedings COSTS — Cross-claim — Whether first defendant ought bear costs of second defendant — Order made
CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) – where trial judge directed a verdict of not guilty to the charge of murder – whether if prosecution had all relevant facts it would have been reasonable to institute proceedings – whether an issue of credibility or reliability – where evidence of key witness was unreliable and internally inconsistent – where Crown opposed cross-examination of the witness at committal hearing – where witness was suffering mental health issues – where witness made allegations about the conduct of the Crown Prosecutor – where witness not called at trial – whether Crown case significantly weakened by evidentiary rulings – whether verdict by direction wrong – certificate granted
SENTENCING – remarks on sentence – accessory after the fact to manslaughter by excessive self –defence – where offender was the victim of a home invasion – where deceased was killed by offender’s boyfriend as the deceased attempted to escape – where offender accompanied boyfriend for three days before going to police – strong subjective case – Community Corrections Order imposed
ADMINISTRATIVE LAW – judicial review – decision of principal claims assessor under Motor Accidents Compensation Act 1999 (NSW) not to refer claim for assessment – whether extant claim – whether existence of claim a jurisdictional fact or fact to be determined by claims assessor TORTS – negligence – motor vehicle accident – claim deemed to have been withdrawn – reinstatement refused – whether deemed withdrawal prevented further pursuit of claim – whether claimant could re-lodge claim
CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae — party seeking restoration of parental responsibility of children pursuant to the parens patriae jurisdiction — no exceptional circumstances arising to invoke jurisdiction CIVIL PROCEDURE — Stay of proceedings — Inherent power — Abuse of process — seeking same potential outcome in multiple courts
PROCEDURE – Costs – Where amount claimed by Plaintiff was paid and winding up application did not proceed – Gross sum costs order – Whether gross sum costs order should be made under Civil Procedure Act 2005 (NSW) s 98(4)(c).