CORPORATIONS — voluntary administration — legal proceedings against company — application under s 440D(1) of the Corporations Act — where plaintiffs seek leave to proceed against company for summary judgment and gross sum costs — where administrators of the company neither consent to nor oppose the application — where grant of leave would occasion no prejudice to administrators — where proof of debt procedure would be more costly and less efficient — HELD — leave to proceed granted.
CRIME – sentence – manslaughter by excessive self-defence – affray – juvenile offenders – offences of lower objective seriousness – reduced moral culpability on account of background and immaturity
SUCCESSION – informal wills – s 8(2)(a), Succession Act 2006 (NSW) – principles at [143]-[153] – businessman makes will leaving $13.5M estate to defacto wife – couple separate in 2019 – both amend wills, leaving estate to their children instead – businessman amends will on computer only but not printed or signed – tells defacto wife, new executor and family law solicitor – emails Microsoft Word document to new executor – settles protracted family law proceedings including mutual release of claims on estates – difficult post-separation relationship with former defacto – happy in new relationship – dies in boating accident in 2023 – former defacto seeks probate of earlier signed will – whether businessman intended Microsoft Word document “to form his … will” – so satisfied.
HIGH RISK OFFENDER – high risk sex offender – application for extended supervision order – defendant with history of sexual offences against children and women - preliminary proceedings – without admissions dispute confined to appropriateness of some conditions
COSTS – proceedings travel to Court of Appeal, application for special leave and back – plaintiff get $500,000 – apart from curious damages claim pitched at its peak at $72 million, case should have been brought in District Court – defendants spend $2.5 million defending proceedings – 80% of trial occupied by issues on which plaintiffs failed – apportionment – principles at [21]-[23] – plaintiffs entitled to 50% of their costs on a party-party basis. CALDERBANK OFFER – defendants offer $2 million for damages and costs of three proceedings – plaintiffs contend unable to ascertain whether they did better than the offer where their costs are not known (nor disclosed) – principles at [38]-[40] –assuming plaintiffs incurred same costs as the defendants (which was obviously not the case), the offer was better than the outcome achieved – unreasonable to reject offer in the circumstances.
COSTS – costs assessment Uniform Law costs – determination of review panel – appeal to Supreme Court – where delay in instituting appeal – where second plaintiff later joined to proceedings – whether second plaintiff entered into client-solicitor relationship or was contractually bound as a third party payer and liable to pay costs – question of jurisdictional fact for review panel
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — appeal from Associate Justice — No reasonable cause of action disclosed — reflective loss — whether reflective loss principle applies to indirect shareholders — abuse of process — where multiple prior proceedings brought on behalf of related party — proceedings dismissed
EQUITY – interlocutory application for interim relief pending final hearing – injunction sought to restrain defendant from dealing with property – whether serious question to be tried – where extreme generality of evidence means assessment of strength of prima facie case is unclear – where significant delay in seeking interim relief does not favour the balance of convenience EQUITY – interlocutory application for interim relief to preserve material brought into existence while executing search orders – where search orders are discharged – where defendant consents to documentation and collection of information after stay of search orders
REAL PROPERTY — caveat — equitable charge on defendant’s property as security for guarantee obligations recognised by earlier judgement of this Court — lapsing notice issued — plaintiff seeking to enforce “charge” — interpretation of extraordinarily badly drafted Deed containing guarantee and indemnity — Roberts v Investwell Pty Ltd [2012] NSWCA 134 — plaintiff, under Deed, did have an interest in defendant’s property capable of supporting caveat — equitable charge recognised — final orders made in favour of plaintiff
CIVIL PROCEDURE – interim preservation – freezing orders – where prima facie or good arguable case – where not a substantially significant risk of dissipation of assets – application for freezing orders dismissed – no question of principle
EVIDENCE — PRACTICE AND PROCEDURE — affidavit evidence — Harman undertaking — implied obligation — affidavits filed and served but not read in previous proceedings — where plaintiffs seek to use relevant affidavits in present proceedings — application of implied obligation to affidavits prepared and filed pursuant to court-ordered timetable — consideration of statement of principle in Hearne v Street and subsequent interpretation — where requisite element of compulsion absent — HELD — affidavits not subject to implied obligation but if they were then release would be granted
CRIME – proceeds of crime – where proceedings brought by the Australian Federal Police under the Proceeds of Crime Act 2002 (Cth) – monies held in various accounts with Australian banks – where those monies are proceeds of crime – restraining orders made – where applicants sought recompense – exclusion orders – where this Court has previously considered the alternative methodologies for the division of funds –where most appropriate methodology was applied to each account CRIME – proceeds of crime – where subsequent to hearing but prior to judgment further applicants came forward claiming an interest in the restrained funds – where previous orders had been stayed for 28 days – where orders sought by new applicants will affect previous orders made – further hearing dispensed with by agreement of the parties – new applications determined on the papers – interest determined by application of same method of distribution determined to be appropriate for each particular account in previous judgment – stay of orders discharged – orders made in favour of new applicants – orders previously made varied to adjust the interests of original applicants
CRIME – proceeds of crime – where proceedings brought by the Australian Federal Police under the Proceeds of Crime Act 2002 (Cth) – monies held in various accounts with Australian banks – where those monies are proceeds of crime – organised crime syndicate - complex international investment scam – Operation Wickham – scam conducted online – where contributors to the accounts appear to have been victims of the same fraud CRIME – proceeds of crime - restraining orders made – where applicants seek recompense – various orders sought – forfeiture – exclusion – compensation – question as to the form relief should take – question as to how to treat the claims – whether as claims against the defendants’ property generally, or as claims on particular accounts – where a large number of contributors to the accounts did not come forward to participate in the proceedings – question as to how the contributions of non-participants to the proceedings should be treated – consideration of the case of Robb – consideration of alternative methodologies for the division of funds – the discussion in Caron – the rule in Clayton’s case – pari passu approach – ‘pro rata’ is still not English – lowest intermediate balance rule – layers of fiction – proposal at hearing of a hybrid method of distribution – where ultimately what is sought is the ‘least unfair’ outcome – most appropriate methodology applied to each account – orders made – orders stayed for 28 days
CRIME – proceeds of crime – Proceeds of Crime Act 2002 (Cth) – application for a forfeiture order – whether real property and monies in bank accounts is proceeds of crime – chose in action – whether chose in action is proceeds of crime or instrument of serious offence
CRIME — proceeds of crime — Proceeds of Crime Act 2002 (Cth) — application to exclude property from restraining orders — whether Official Trustee was negligent in the management of the property
APPEALS – civil - appeal from Local Court – where matter commenced in Small Claims Division – where matter transferred to General Division – where appeal arises from prosaic event – motor vehicle accident – damages – costs – where respondent accepts liability – where applicant seeks to litigate asserted errors but does not press any entitlement to his original claim – where appeal with respect to damages and interest concerns a very small amount – amount dwarfed by costs involved in continuing litigation – fantastical quality to at least one of applicant’s claims – several claims without merit or substance – leave to appeal granted – appeal dismissed EVIDENCE – expert evidence – competing opinions of respective experts – conclave – joint experts report – issue as to legitimacy of invoice for repairs to vehicle – whether invoice can be deemed a “starting point” or benchmark for cost of repairs – “broad axe” approach - where it is unclear “who actually repaired the van, or who that person worked for” CIVIL PROCEDURE – adjournment application – adjournment refused – where counsel withdrew and plaintiff unrepresented – an unusual turn – the solicitor for the applicant appeared
REAL PROPERTY – caveats – application for leave to lodge a caveat – whether lapsing notice was served – whether clause of contract gives rise to caveatable interest or non-monetary obligations – whether Registrar-General has a duty to determine the validity or correctness of material evidencing service of a lapsing notice
COSTS — Costs assessment — specified gross sum costs order – Civil Procedure Act, s 98(4)(c) – specified gross sum costs order made – application for assessed costs rejected — discount applied.
HIGH RISK OFFENDER – application for extended supervision order – where defendant subject to previous supervision order – history of sexual offending against children – where supervision orders breached by further offending in the past – determination of risk – whether unacceptable risk of committing another serious sex offence if not kept under supervision – where extended supervision order opposed – where defendant argues rehabilitative prospects hindered by imposition of extended supervision order – safety and protection of the community – expert evidence of high risk that the defendant might commit a further serious sex offence – extended supervision order imposed – dispute about conditions resolved
LAND LAW — Conveyancing — Contract for sale — Notice to complete — Where vendor failed to serve notice of attornment — Where vendor allegedly failed to provide documentation for calculation of adjustment figures — Where vendor allegedly failed to notify purchaser of breach of lease — Whether vendor’s conduct prevented issuance of valid notice to complete — Whether termination based on failure to comply with notice to complete valid
NEGLIGENCE – solicitors – plaintiffs retained the defendant to advise and appear in respect of claims against them in the District Court – plaintiffs failed in all proceedings – whether the defendant should have advised that the defences were hopeless and doomed to fail prior to their filing –effect of “no oral variation” clauses in Australia OCCUPATIONS – legal practitioners – solicitors –advising client – obligation of solicitor to advise client that defence has no reasonable prospects of success – effect of Legal Profession Uniform Law Application Act 2014 (NSW) sch 2 NEGLIGENCE – damages – where plaintiffs’ claim limited to costs paid for legal services and ordered costs in the District Court proceedings – where portion of these costs paid by companies unrelated to the proceedings but under the control of one of the plaintiffs – whether plaintiffs entitled to claim portion of costs paid by these “related entities”
EVIDENCE – Documentary evidence – Business records – where plaintiffs sought to admit resolutions of companies under the control of one of the plaintiffs to prove a continuing obligation on behalf of the plaintiffs to repay monies to these “related entities” –whether these resolutions were produced for the purposes of or in connection with the present litigation
CIVIL PROCEDURE – Pleadings – Inconsistency with previous pleadings – dispute between the parties as to an amended statement of issues – whether the amended statement of issues accurately reflects the plaintiffs’ pleaded case
CRIME – appeal and review – judicial review – committal proceedings – “old system” applicable despite statutory abolition in 2018 – indictment found and presented in District Court after impugned proceedings in Local Court – futility of attack on committal in those circumstances – contingent analysis of asserted errors in committal – none established CRIME – appeal and review – judicial review – pending trial in District Court – separate application for “dismissal” of proceedings by Supreme Court – no basis for doing so – amended summons dismissed
CORPORATIONS – Directors and officers – Appointment, removal and retirement of directors – Whether director was validly appointed – Where director purported to exercise casting vote of board chairperson to effect appointment of another director. CORPORATIONS – Whether share held by subsidiary in holding company could be voted – Application of exception for shares held in trust. CORPORATIONS – Whether relief should be granted under s 1322 of the Corporations Act 2001 (Cth) to validate members’ resolutions – Where member excluded from voting on resolution purportedly passed by written resolution executed by majority shareholder.
LAND LAW – possession of land – default under mortgage – where defence does not disclose a defence to the claim – defence struck out – default judgment for possession
CIVIL PROCEDURE — Procedural requirements under Practice Note SC Eq 3 and UCPR — where applicant seeks dispensation in limine from requirements to file and serve response or other defence, plead matters specifically, provide particulars, serve certain evidence and provide certain disclosure in the substantive proceedings — where substantive proceedings involve damages claims by plaintiff company against applicant and other company officers for breaches of Corporations Act 2001 (Cth) — where applicant is the subject of parallel criminal proceedings involving significant factual and temporal overlap with present proceedings — privilege against self-incrimination — general rule that a party to non-penalty civil proceedings will not be excused from discovery or interrogatories — rare exception where exemption from disclosure is only means of maintaining the privilege and there is a real and appreciable risk of prosecution — exact overlap of events and allegations not required — HELD — applicant incapable of responding to allegations in civil proceedings without exposing himself to liability in criminal proceedings — dispensation and cognate orders granted
MORTGAGES — mortgage contract — registration of mortgage — whether email communications constitute an agreement to change the terms of the mortgage — whether email communications satisfy writing requirements under s 23C of the Conveyancing Act 1919 (NSW) — rights and remedies of mortgagee upon default of loan — order for possession of land LAND LAW — Torrens title — indefeasibility of title upon registration — effects of indefeasibility — exceptions to indefeasibility — unconscionability and fraud — to rights of registered mortgagee under ss 41 and 42 of Real Property Act 1900 (NSW) — s 56 of Real Property Act irrelevant
ADMINISTRATIVE LAW – judicial review– error of law on the face of the record or jurisdictional error – decisions of the Racing Appeals Tribunal – challenge to the Racing Appeals Tribunal’s construction of Australian Harness Racing Rules (AHRR) in relation to the exemption in r 188A(3) of altrenogest when administered to fillies and mares – whether exemption in r 188A(3) operates so as to exempt epitrenbolone and trendione from being “prohibited substances” under r 188A or r 190A(2) or from being anabolic androgen steroids within r 190AA – factual premise for grounds of review not made out – no misconstruction of r 188A(3) – no other error of law on the face of the record or jurisdictional error – summons dismissed GAMING AND RACING – harness racing – disciplinary offences – presenting a horse for a race not free from prohibited substances – evidentiary certificates under AHRR r 191 as to presence of prohibited substances – challenge to reliance on certificates when “materially flawed” within r 191(7) – whether certificates materially flawed – no misconstruction of r 191 or other error in relation to finding that certificates not materially flawed –summons dismissed
DEEDS — Construction of deed poll —Application of Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 — Whether amount claimed by liquidators of company falls within the definition of a ‘debt’ for the purposes of a Letter of Comfort CORPORATIONS — Winding up — Liquidators — Duties — Application of Duke Group Ltd (in liq) v Arthur Young (Reg) (No 2) (1991) 4 ACSR 355 — Whether adjudicative process undertaken by liquidators creates a debt of the company — Whether the admission of a proof of debt is binding on the company or third parties
BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) — Adjudication — Adjudicated amount — Whether Adjudicator had jurisdiction to award amount in excess of adjudication application — When payment claim quantum exceeds that of adjudication application BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) — Adjudication — Judicial review — Whether adjudicator afforded parties procedural fairness under the Building and Construction Industry Security of Payment Act 1999 (NSW)
CIVIL PROCEDURE – pleadings – amendment – late application for amendment – late briefing of new counsel – proceedings commenced in 2020 – loss of ten hearing days in October 2022 – proposed amendment essentially the same as the case propounded in June 2023 – no forensic prejudice – imperative the matter proceed – leave granted
CIVIL PROCEDURE – Application under s 76 of Civil Procedure Act 2005 (NSW) for approval of settlement with defendants – settlement for the benefit of the protected persons – consent orders made
ADMINISTRATIVE LAW – motor vehicle accident – application for compensation – medical dispute referred to medical assessor – no compensable whole person impairment found – application to have assessment referred for review – application refused – application for judicial review of decisions of both assessor and delegate – assessor and delegate both fell into legal error – decisions of assessor and delegate set aside – matter remitted to President of Personal Injury Commission to be decided according to law
CIVIL PROCEDURE – notice of motion – adjournment - application to vacate hearing – adjournment sought on the basis that counsel has not had time to prepare reply submissions – unsatisfactory reason for adjournment – motion dismissed
ADMINISTRATIVE LAW – Summons seeking judicial review of decision made under the Australian Harness Racing Rules – Plaintiff presents a horse to race with a prohibited substance in its system – Plaintiff found guilty by stewards of Harness Racing New South Wales of breaching rule 190(1) – Plaintiff contends he was blameless – Whether decision is affected by jurisdictional error – Whether decision is affected by error on the face of the record – Whether Tribunal has erred in directing itself as to question of culpability and to standard of proof – Whether the Tribunal’s fact finding process was illogical, irrational or legally unreasonable – Whether Tribunal has impermissibly fettered the exercise of its discretion on penalty and erred in finding that no other penalty other than disqualification was available – Application of categories discussed in McDonough
COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — Effect of contractual right to indemnification for costs — No issue of principle
CIVIL PROCEDURE – subpoenas – application for review of Registrar’s decision to refuse leave to issue subpoenas – UCPR 49.19 – where subpoenas proposed to be issued in proceedings seeking revocation of an extended supervision order pursuant to s 13 Crimes (High Risk Offenders) Act 2006 (NSW) – where claim not yet sufficiently pleaded to permit principled decision concerning legitimate forensic purpose
LAND LAW — Easements — Creation of easements — Creation by order of court — Application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway — Where no other practical means of vehicular access to plaintiffs’ garaging at rear of property — Whether easement reasonably necessary for effective use and development of plaintiffs’ land where plaintiffs obtained development consent for garaging at front of property — Where effects of proposed easement relatively minor— Whether impact can be adequately compensated — Whether discretion to impose easement should be exercised — Determination of adequate compensation for imposition of easement — Easement imposed — Determination of costs deferred
CRIME – murder – specially aggravated kidnapping – judge alone trial –extremely violent bashing of 16-year-old in two phases by multiple assailants – multiple bases of liability alleged – witness credibility issues – consistent theme supported by objective evidence – murder proved for one accused and conceded by other – defence of substantial impairment by cognitive impairment not established
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. CORPORATIONS – Arrangements and reconstructions – Application under s 63 of the Trustee Act 1925 (NSW) for judicial advice with respect to the implementation of trust scheme.
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.
CORPORATIONS – winding up – liquidators and receivers of trust assets – remuneration – application for approval of remuneration – whether remuneration claimed by provisional liquidators is proportionate to complexities of the matter.
CORPORATIONS – Liquidation – Application for directions – ownership of assets realised in liquidation of a corporate group – which company is true employer of employees in a corporate group status of intercompany loan.
PROCEDURE – costs – general rule that costs follow the event – whether reason shown to depart from general rule – where creditor opposed distribution by liquidator.
CIVIL PROCEDURE – subpoenas – review of Registrar’s decision to set aside – subpoena issued in administrative law proceedings – review of decisions to place plaintiff in protective and segregated custody whilst on remand – legal unreasonableness – where decision-makers provided statements of reasons – where subpoena sought documents relating to the preparation of those reasons – where plaintiff seeks to challenge credit of decision-makers through cross-examination – misapprehension of administrative law proceedings – credibility not in issue – not a merits-based inquiry – except in two instances decisions-makers have appropriately annexed documents they relied on – legitimate forensic purpose in seeking documents referred to but not annexed – remainder of subpoena goes beyond what is needed for proper conduct of proceedings – subpoena set aside except for two paragraphs
CRIME – child sex offences – registration under s 19 of the Child Protection (Offenders Registration) Act 2000 (NSW) – registrable person – whether a person dealt with under s 20(1)(a) of the Crimes Act 1914 (Cth) is “sentenced” for purpose of s 3A of the Child Protection (Offenders Registration) Act – meaning of “sentenced” in s 3A of the Child Protection (Offenders Registration) Act – a person dealt with under s 20(1)(a) of the Crimes Act 1914 (Cth) is “sentenced” for purpose of s 3A – summons dismissed STATUTORY INTERPRETATION – definitions – interpretation of definition by reference to term defined – meaning of “sentence” in s 3A of the Child Protection (Offenders Registration) Act – immediate context – consistency of operation – a person dealt with under s 20(1)(a) of the Crimes Act 1914 (Cth) is “sentenced” for purpose of s 3A – summons dismissed
CRIME – sentencing – murder – bashing of child – offenders found guilty of murder on various bases of liability following judge alone trial – premediated and violent assault captured on video and posted to social media – rejection of submission that life sentence appropriate for one offender – reduced moral culpability on accounts of early disadvantage and cognitive impairment – significant criminal histories taken into account – issues of parity – special circumstances considered
CIVIL PROCEDURE – interrogatories – application for – cause of action in malicious prosecution, misfeasance in public office and false imprisonment – whether claim is for damages arising out of “bodily injury” requiring demonstration of special reasons under r 22.1(3) of the Uniform Civil Procedure Rules 2005 (NSW) – whether administration of interrogatories is “necessary” within r 22.1(4) of the UCPR – application to administer interrogatories granted
CIVIL LAW – proceeds of crime – restraining orders against 20 defendants – one defendant brings a motion alleging negligence by the Official Trustee in the management of restrained real property – failure to make mortgage repayments – default in mortgage – penalties charged – where mortgagee seeks to exercise right of sale – separate negligence proceedings – motions to stay or adjourn negligence proceedings and negligence motion – whether duplication of proceedings – where Judge ordered or suggested proceedings should be brought by separate proceedings – whether cause of action proceeds of crime – whether any damages for negligence would inevitably be subject of restraining orders – where forfeiture orders to be determined in the future – where Judge who made ex parte restraining orders allocated motion to stay proceedings – unfortunate happenstance
BAIL – juvenile applicant– whether bail concerns give rise to an unacceptable risk– risk of failing to appear – risk of serious offences – strong Crown case – protective factors – Bail Casework 22C plan – long criminal history for similar offences – history of non-compliance with bail – breaches of bail occurred at proposed bail address – observations on s 22C of the Bail Act – relevant offence – motor theft offence – relevant young person – meaning of a high degree of confidence – release application refused
EQUITY – interlocutory application for interim relief pending final hearing – injunction sought to restrain defendant from dealing with property or acting on notice of termination of lease until further order – whether serious question to be tried – whether balance of convenience favours interim relief to be granted – where director of plaintiff gives personal undertaking as to damages
COMMERCIAL — Claim for monies due arising out of historic commercial arrangements — Between 1997 and April 2001 the parties negotiated a proposed merger of P1’s business into D’s business and employment of P2 (P1’s sole director) — An Income (Non-Capital) Redeemable Preference Share Agreement (“RPS Agreement”) and attached Employment Agreement were prepared by solicitors and arrangements proposed for a settlement and exchange of executed agreements in early April 2001 — D attended by its then sole director — Dispute regarding whether anyone on the part of the plaintiffs attended — P2 subsequently employed in D’s business — Part payments made by D referable to an initial $200,000 Redemption Amount over a 15 year period — Dispute as to whether D liable for non-payment of Redemption Amount in full, dividends during the redemption period and interest on dividend sum under the RPS Agreement — D disputes liability and claims alternative oral arrangements were made in November 2003 (“Oral Agreement”) and the parties conducted their business affairs on the basis of assumptions consistent with the Oral Agreement (“estoppel claim”) — D further asserts that the plaintiffs’ claims are statute barred (“limitation claim”) — Held plaintiffs’ claims succeed and defences rejected EVIDENCE — Competence to give evidence — Witness in giving evidence exhibits a form of dysphasia — Whether witness competent to continue to be cross-examined CONTRACTS — Exchange of counterparts — Issue regarding when parties intend to be bound by contractual arrangements CORPORATIONS — Share capital — Classes of shares — Requirements for issuing redeemable preference shares CORPORATIONS — Directors — Means of passing and recording of resolutions ESTOPPEL — Conventional estoppel — No issue of principle LIMITATION DEFENCES — Whether claim for breach of contract barred as being out of time by operation of s 14(1)(a) Limitation Act 1969 (NSW) — Requirements for confirmation of cause of action under s 54 Limitation Act 1969 (NSW) WORDS AND PHRASES — Occam’s razor
SUCCESSION — Family provision — Claim by adult child — where young adult children of the deceased — where no provision made — where one child severely disabled — where one school age child – where defendant accepts some provision should be made — amount of provision to be made SUCCESSION — Family provision — Notional estate — where estate likely to be insolvent — where deceased’s real property transferred into joint tenancy immediately before death – where deceased’s real property transferred to defendant on his death as surviving joint tenant — where deceased directed large sums of cash from insurance and superannuation to defendant prior to his death — whether notional estate order should be made in relation to cash and real property – identification of cash and real property to be designated as notional estate
COSTS — Party/Party — Payable out of a fund — Deceased estate — where indemnity costs sought following delinquency in defendant’s carriage of the case — whether indemnity costs should be ordered — no question of principle
COSTS – costs assessment – costs agreement between solicitor and principal of corporate client – associated third party payor – effect of non-disclosure – costs agreement void – whether solicitor nonetheless entitled to be paid for legal services provided to the client – Legal Profession Uniform Law 2014 (NSW) s 171(1); s 178(1) COSTS – costs assessment – time to appeal to the Court under UCPR 50.3 – material date for determination by costs review panel under UCPR 50.2 – extension of time
SUCCESSION — will — construction — testamentary grant of right to occupy property — property expenses payable by “my Estate” — whether a reference to deceased estate or trust estate — superannuation entitlements — whether separate gift or estate residue — deceased submits redemption application before death — ademption
SUCCESSION — Funeral arrangements and disposal of deceased’s remains — Dispute between the plaintiff (an estranged daughter of the deceased) and the defendant (her mother, the deceased’s long-separated wife being the nominated executrix under a distant Will) in relation to funeral arrangements and disposal of the deceased’s remains by cremation after being held by the coroner — Plaintiff brought urgent application before the Court seeking, amongst other relief, release of the deceased’s body for immediate cremation, in circumstances where there was little clarity as to who had control or possession of the body or its the precise location — Subsequently, the plaintiff and the Court were informed by the funeral director that the deceased’s body had been cremated shortly before the plaintiff’s initial approach to the Court — After initial listings, it became apparent that the plaintiff’s claims could be separated between issues relating to the distribution of the deceased’s ashes (“ashes issues”) and other issues relating to probate and administration of the deceased’s estate (“probate and other issues”) — Given the need for the orderly disposal of the deceased’s remains with respect and without undue delay, it was appropriate to resolve the ashes issues in the first instance as a separate question — Following discussion with the parties and funeral director, an arrangement was made by consent in relation to the ashes issues, leaving the probate and other issues to be subsequently dealt with by the Court if the plaintiff still wished to agitate them HEALTH — Burial and cremation — Sources of law — Discussion of the various provisions of legislation and the general law which bear upon burial law in NSW, including in the Coroners Act 2009 (NSW) (“Coroners Act”) and the Supreme Court’s inherent jurisdiction — In light of the extensive statutory provisions and general law which bear upon this area, the precise nature and extent of the authority of a person to arrange for the disposal of a deceased body, as well as any cognate issues which may arise, will necessarily be fact and issue specific — Discussion of issues that have previously arisen in caselaw CORONIAL LAW — Jurisdiction — Discussion of the coroner’s role and jurisdiction in relation to reportable deaths and practice where there are disputes between interested parties as to the release and disposal of the deceased’s body — Discussion of the meaning of “inquest” and “senior next of kin” as those terms are used in the Coroners Act SUCCESSION — Burial law — Discussion of the nature and purpose of the Court’s inherent jurisdiction to deal with the disposal of a deceased person’s remains — Discussion of main types of disputes dealt with under the jurisdiction and the Court’s approach to resolving them — Discussion of circumstances in which such applications are made to the Court and the (often informal) nature of information and materials that are available to the Court to determine the matter ALTERNATIVE DISPUTE RESOLUTION — Burial law — Discussion of merits of mediation and Court explored consensual outcomes CIVIL PROCEDURE — Separate determination of questions — The imperative of the orderly disposal of the deceased’s remains with respect and without undue delay justified determination of the ashes issues in the first instance as a separate question
CIVIL PROCEDURE — federal jurisdiction — special federal matters — Bankruptcy Act 1966 (Cth) — personal insolvency agreement — debtor a co-owner of five properties subject to orders appointing statutory trustee for sale — debtor assigns interest in three of the properties to PIA trustee — PIA trustee assigns debtor’s interest to purchasers — proceedings by purchasers against sale trustee and other co-owner to obtain registration — whether jurisdiction “in bankruptcy” CIVIL PROCEDURE — application for injunction in nature of stay of previously made orders creating statutory trust for sale pending appeal — prima facie case — failure to join necessary party — application to vary substantive orders —Woods v Sheriff of Queensland (1895) 6 QLJ 163 — discretion — balance of convenience — order for sale of property by trustee — application refused
CIVIL PROCEDURE – proceeds of crime – where Commissioner has utilised production order power in s 202 of the Proceeds of Crime Act 2002 (Cth) to obtain property-tracking documents following the commencement of proceedings – where fourth defendant is disputing the use of the documents obtained – whether the Commissioner used the production order power for the sole or dominant purpose to obtain documents for use in the proceedings – whether use of the s 202 power by the Commissioner gave an unfair advantage to the Commissioner amounting to a contempt of court – requisite sole or dominant purpose not established – no relevant advantage secured by Commissioner, or disadvantage occasioned to the fourth defendant, by use of s 202 power to amount to contempt of court – fourth defendant’s cross summons dismissed
COSTS – party/party – whether there should be a departure from the general rule that costs follow the event – orders made under the Limitation Act extending the time for plaintiff to commence proceedings – defendant unsuccessfully resisted extension application on basis that delay precluded a fair trial – defendant bear plaintiff’s costs of the extension application
CRIME – evidence – murder – application to release evidence given before the NSW Crime Commission – s 45(5) application to make evidence available to the applicant’s solicitors and the Crown – whether disclosure in the interests of justice
CRIME – sentence – three guilty pleas – accessory after the fact to murder, participate in a criminal group, proceeds of crime – where offender had known links to Comanchero Outlaw Motorcycle Gang (OMCG) – subject murder connected to ongoing feud between the OMCG and a family Organised Crime Network – two unknown shooters – offender responsible for affixing cloned number plates and positioning three getaway cars – murder unknown to him at the time – mid-range objective seriousness – offender later provided access to underground carpark to hide getaway car until it was subsequently removed and destroyed – by this time offender knew shooters had murdered the deceased – shooters not yet apprehended – low end of mid-range – over $500,000 found in offender’s possession – offender was collecting and counting cash for OMCG – objective seriousness high in the mid-range – psychological report details childhood characterised by domestic and sexual violence – PTSD, persistent depressive disorder and various drug use disorder diagnoses – offender’s account to the psychologist somewhat incomplete – limited criminal record – finding of remorse – good prospects of rehabilitation and low risk of reoffending – offender remained drug free in custody – general deterrence and retribution substantial considerations – special circumstances found given offender’s pre-custody drug addiction – aggregate sentence imposed SENTENCING – plea of guilty – where offender offered to plead to accessory after the fact, participate in criminal group and proceeds of crime before committal – where Crown rejected and later accepted such an offer – complicated history given multiple changes to the indictment – offender entitled to 25% discount to accessory offence under s 25E(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – where criminal group charge was originally certified as an alternative to murder – appears on indictment ex-officio – exception in s 25D(3)(a) and (4) disentitles offender to 25% discount – facts and evidence establishing criminal group charge same as those contained in the brief of evidence – 10% discount – where three separate proceeds of crime offences totalling $561,450 were originally charged – no provision in Division 1A for where an offender offers to plead offer is rejected then accepted after committal – lacuna in Division 1A – inconsistent with EAPG system – offender entitled to 10% discount under s 25D(2)(b)(i) – pleas and agreed statement of facts otherwise demonstrate willingness to facilitate the course of justice
PRIVATE INTERNATIONAL LAW – jurisdiction –exclusive foreign jurisdiction clause – whether strong reasons to set exclusive foreign jurisdiction clause aside – where crane purchased from Netherlands and delivered to Australia
CORPORATIONS — Winding up — Liquidators — Grant of leave to distribute a surplus — application of rule in Cherry v Boultbee — order for release of liquidator and deregistration of company.
CIVIL PROCEDURE – cross-vesting – transfer to other Supreme Court – by consent – weighing of respective benefits and disadvantages – interests of justice – appropriate forum – proceedings transferred COSTS – party/party – exception to general rule that costs follow the event – order reflects a substantial capitulation by one party – costs thrown away order made
EQUITY — trusts and trustees — two couples who are family purchased property with view to developing duplex — tenants in common in equal one-third shares (plaintiff’s partner not included on legal title) — single mortgage over property agreed between the parties to be paid off in proportion to 50:50 contribution between couples — couples occupy duplex after construction — property subdivided but ownership and mortgage proportions unchanged — plaintiff claims beneficial ownership in half of property on the basis of constructive trust — determination of appropriate species of constructive trust — failed joint endeavour constructive trust and common intention constructive trust — whether joint endeavour was ever completed — whether common intention constructive trust, as pleaded, was sufficient to deal with continuing mortgage and loan obligations — held, failed joint endeavour constructive trust rather than common intention constructive trust
EQUITY — remedies — constructive trust — failed joint endeavour — declaration that joint endeavour property held on trust for sale and division of proceeds — form of declaration — indemnity against capital gains tax liabilities — appointment of independent trustee to effect sale — vesting order —former joint endeavour participants remaining in occupation — mode of sale — trustee’s responsibilities and discretions
COSTS — application by plaintiff for lump sum costs order and indemnity costs — factors relevant to the court’s discretion when quantifying costs — contractual entitlement to indemnity costs — unreasonable conduct in opposing winding up application — HELD — gross sum costs awarded on indemnity basis
CIVIL PROCEDURE — federal jurisdiction — special federal matters — Bankruptcy Act 1966 (Cth) — personal insolvency agreement — debtor a co-owner of five properties subject to orders appointing statutory trustee for sale — debtor assigns interest in three of the properties to PIA trustee — PIA trustee assigns debtor’s interest to purchasers — proceedings by purchasers against sale trustee and other co-owner to obtain registration — whether jurisdiction “in bankruptcy” REAL PROPERTY — statutory trust for sale — Torrens title — properties remain registered in names of co-owners following order appointing sale trustee — co-owner assigns shares of properties to purchasers — claim by assignees to require sale trustee and other co-owner to assist in obtaining registration refused — nature of assigning co-owner’s interest — nature of assignees’ entitlements — whether a “statutory trust” rather than a trust in the strict sense — Property Law Act 1958 (Vic), Part IV — claim refused — application by assignees to vary sale orders — orders substantive or mechanical — Woods v Sheriff of Queensland (1895) 6 QLJ 163 — discretion — failure to join assigning co-owner — standing — application refused
Client legal privilege – Whether privilege in legal advice lost by client giving evidence about state of mind concerning the issues about which the legal advice was given – Held: privilege lost.
BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Building and Construction Industry Security of Payment Act 1999 (NSW), s 19, s 21, s 22 BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Whether jurisdictional error to fail to consider documents provided to the Adjudicator — Where those documents include report produced relying on material subject to ‘without prejudice’ communications BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Whether jurisdictional error for Adjudicator to rely on grounds allegedly not advanced by either party
CORPORATIONS — winding up — just and equitable ground — where the relationship between members of the corporation has irretrievably broken down — appointment of liquidators with consent — COSTS — indemnity costs — conduct of defendants not unreasonable — HELD — costs ordered on ordinary basis
CORPORATIONS — Scheme of arrangement — Application for approval of supplementary disclosure in respect of financial results and following other communications to shareholders.
CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether there is a genuine dispute about the existence or amount of the debt — Whether the plaintiff’s construction of the contract is patently feeble and without merit.
CRIME – charge of murder – defence of mental health impairment – judge alone trial – parties agree defence of mental health impairment established – evidence by forensic psychiatrists – s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – special verdict – orders under s 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – consequential orders – victims impact statement
SUCCESSION — Administration of estates — dispute in relation to whether money is owed to the estate of Nelly Mary Aston by the estate of Riley Davis Aston or vice versa – dispute has persisted throughout various attempts to pass estate accounts – Court has power under Uniform Civil Procedure Rule, 54.3 to grant relief on any question arising in the administration of an estate without general administration proceedings being commenced – dispute about debts owing to or by an estate could be determined in general administration proceedings – the need for finality in the estate administration favours the determination of the issue – whether a debt is owed to the estate or by the estate of Nelly Mary Aston.
EQUITY – equitable remedies – specific delivery of chattels – specific delivery of rare and unique items – war medals in the possession of the deceased not disposed of specifically by his will – the applicant who is entitled to the residue of the deceased’s estate, requests delivery of the war medals to her by the respondent, the executor of the estate – the respondent refuses to deliver the war medals claiming that they were gifted to him by the deceased during the deceased’s lifetime – whether the deceased gifted the war medals to the respondent – whether the war medals form part of the residue of the deceased’s estate.
EQUITY – Fiduciary duties – Where Cross-Claimant company gives authority to Second Cross-Defendant to be a signatory on its bank account and he signs cheques in favour of himself, his wife and a company associated with him in circumstances where no money is owed and the Company derives no benefit from the payments – Cross-Claimant claims the amount of the payments from the Second Cross-Defendant and also the other recipients on the basis of knowing participation in his breach of trust – HELD: He had fiduciary duties to the company not to do this and is liable to compensate the company for its loss – Requisite knowledge on the part of the other recipients not established.
LEASES AND TENANCIES — Tenancies — Week to week tenancy — Plaintiffs, together with granddaughter and assistance cat, resided in studio apartment in hotel accommodation above public bar for several years on week to week tenancy — Hotel management gave first plaintiff a written notice to vacate the studio apartment in seven weeks’ time —Plaintiffs accepted that there was no notice to vacate required under the tenancy, nor was there a requirement of notice to leave — Plaintiffs accepted that neither the Residential Tenancies Act 2010 (NSW) nor the Boarding Houses Act 2012 (NSW) applied to the tenancy — Nonetheless, plaintiffs sought urgent interim order restraining enforcement of the notice to vacate, which required apartment to be vacated the following day HUMAN RIGHTS — Discrimination — Grounds — Age and disability discrimination — Second plaintiff was an 83-year-old grandmother suffering visual impairment and deafness, along with other “complex medical needs” — Plaintiffs claimed that notice to vacate studio apartment discriminated against second plaintiff in failing to consider her disabilities, age and assistance cat — Plaintiffs sought interim order pursuant to s 105 Anti-Discrimination Act 1977 (NSW) preserving status quo HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) — Whether Supreme Court has power to make an interim order under s 105 — Discussion of role of NCAT in regulatory scheme — Held power to make interim order under s 105 is given to NCAT and Supreme Court has no power to make such an order CIVIL PROCEDURE — Parties — Appropriate defendants — Whether defendants named by plaintiffs in summons are the appropriate defendants to the claim — No formal proof or evidence that named defendants were the registered proprietors of the hotel or otherwise the actual party with whom the plaintiffs have had an arrangement for occupation of the apartment — No indication that named defendants had any knowledge of the notice to vacate
JUDGMENTS AND ORDERS – amending, varying and setting aside – where orders made in 2019 for appointment of trustee to sell co-owned property under Property Law Act 1958 (Vic) – ability to vary orders concerning sale – application of Woods v Sherriff of Queensland – variations made COSTS – solicitor/client – ability for sale trustee to recover costs – where delay in seeking extension of date for sale – where application had to be brought – sale trustee costs limited to those would have incurred in bringing application at relevant time
FAMILY LAW AND CHILD WELFARE — Adoption of child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent to an adoption gives his or her sole “consent” — Whether a birth father’s consent is necessary for such an adoption — Whether s 30(1)(c) Adoption Act 2000 (NSW) (“Adoption Act”) creates a separate consent requirement independent of Pt 5 Div 1, including s 54(2), Adoption Act — Review of Law Reform Commission Report, legislative history, subsequent amendments of ss 30, 52, 54 Adoption Act — Held child’s sole consent is sufficient and there is no requirement for a birth father’s consent FAMILY LAW AND CHILD WELFARE — Consideration of dispensation with the requirement of notice to the birth father pursuant to s 54(3)(b) Adoption Act — The Adoption Act does not specify grounds which the Court must consider when determining whether to dispense with the requirement of notice pursuant to s 54(3)(b) — Consideration of matters relevant to dispensation with the requirement of notice FAMILY LAW AND CHILD WELFARE — Consideration of the provisions dealing with consideration of alternatives to adoption, being ss 8(2)(k), 29(c), 30(1)(d), 36, 90(3) and 106(2)(b) Adoption Act — Discussion of the provisions of ss 30(1)(d) and 90(3) in respect of adoption by a step parent and comment regarding the differences between those provisions FAMILY LAW AND CHILD WELFARE — Consideration of the nature of evidence on adoption applications and in particular the rationale for the particular form of evidence required from referees CONSENT — Consent conceptualised — Discussion of what is consent — Discussion of common characteristics regarding consent — Discussion of the consequences of consent — In adoption cases the consequences of consent are so significant and far-reaching that the law requires that it be filtered through a rigorous process to ensure that the consent is well-informed, well-considered and enduring — Discussion of the means by which that rigour is achieved by the Adoption Act PRACTICE — Practice Notes — Status and purpose discussed STATUTES — Construction — Discussion of principles of construction
CORPORATIONS — winding up — application under s 482 of the Corporations Act 2001 (Cth) to terminate the winding up — where original winding up order and order appointing liquidators stayed and only to take effect upon company’s failure to pay amount of debt to plaintiff by certain date — where payment by defendant failed and winding up order automatically took effect on stipulated date — where the company has taken steps to pay all creditors and reduce or transfer liabilities — where remaining creditors support the application — where the company will likely be solvent on returning to trading — where the company is engaged in a speculative business endeavour and its future financial performance cannot be accurately predicted — where the interests of the public, creditors and commercial morality favour the termination
FAMILY LAW AND CHILD WELFARE – application for adoption of child in favour of step-father – where child has lived with step-father and birth mother for the past five years – where child is 16 years old and gives consent to own adoption – where adoption and name change is clearly in the best interests of the child
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CORPORATIONS — Voluntary administration — Deed of company arrangement — Terminating deed of company arrangement under s 445D of the Corporations Act 2001 (Cth) — Where Deed disadvantageous to one creditor — Where Deed provided for third party releases — Whether deed of company arrangement an abuse of process of Pt 5.3A of the Corporations Act 2001 (Cth).
CRIME – murder – wounding with intent to cause grievous bodily harm – Judge alone trial – question as to whether the Court should be closed – where accused was a child at the time of the alleged offending – where accused no longer a child – little in the way of authority on the question – bound by a decision of a superior court – Court to be open
CORPORATIONS — winding up — competing measures to wind up company — where plaintiff creditor applied to have the defendant company wound up in insolvency for failure to comply with statutory demand — where subsequent resolution passed to voluntarily wind up the company and appoint applicant as liquidator — where applicant unaware of plaintiff’s application and undertook work in liquidation — liquidator applies for leave nunc pro tunc for the company to be wound up voluntarily — where plaintiff creditor supports present application — HELD — leave granted
EQUITY – Fiduciary duties – Breach – Stolen funds – Trust attaches to stolen funds – Equitable compensation available remedy. EVIDENCE – Burden of Proof – Civil Proceedings – Claim for recovery of misappropriated funds – Plaintiff bears the onus of proving funds were misappropriated – Defendant bears the onus of proving repayment, set off or Cross claim.
COSTS – Party/Party – Exceptions to general rule that costs follow the event – Late amendment by the plaintiff on cause of action which succeeds and other causes of action would have failed – Whether the plaintiff should pay the defendants’ costs up to the date of the amendment – Plaintiff failed in respect of some travel costs – Whether the claim for those travel costs is separable such that an order should be made for the plaintiff to pay the defendants’ costs of that failed claim – Whether the proceedings should properly have been brought in the District Court and the plaintiff deprived of costs on that account – Whether the defendants should have the benefit of unaccepted Calderbank letters – Calculation of the quantum of the plaintiff’s claim
HIGH RISK OFFENDER – high risk sex offender – application for extended supervision order – preliminary proceedings – concession as to statutory basis to make interim order without admissions as to final disposition of application – dispute confined to appropriateness of some conditions
CIVIL PROCEDURE — Interim preservation — Search orders — Subsequent ancillary arrangements — Plaintiffs obtained search orders pursuant to which certain property was seized and held by independent solicitors — Independent solicitors no longer wished to hold the property — Certain of the property, which included medical imaging equipment, may be property in respect of which fourth defendant has a claim — Plaintiffs’ proposed regime for release or transfer of property to a secure storage site agreed between actives parties presented as a sensible, balanced and fair arrangement CIVIL PROCEDURE — Parties — Fourth defendant did not file any notice of appearance since the proceedings were commenced, nor take any active part in the proceedings — In the circumstances, the proposed regime for release or transfer of the property to a secure storage site, which requires prior notice to be given to the fourth defendant, gave him an opportunity to make whatever claim he may wish to make
CRIMINAL LAW – sentence – manslaughter – objective features – objective seriousness – moral culpability – causal connection not necessary – social deprivation – contribution to mental health and tendency to violence – explain recourse to violence when frustrated – aggravating features – absence of planning – vulnerability of victim – hatred for prejudice against a group of people – criminal history – mitigation – plea of guilty – subjective circumstances – rehabilitation and remorse – general deterrence – s 166 matters – totality – special circumstances – aggregate sentence
SPECIFIC PERFORMANCE – contracts for sale of land and businesses for $61M – director of corporate purchasers gives guarantee – purchasers fail to complete – portion of deposit also unpaid – orders for specific performance made against purchasers –whether specific performance should be ordered against guarantor as well – authorities considered at [57]-[66] – whether concurrent liability of purchasers and guarantor exists – whether guarantor directly liable to vendors – decline to order specific performance by guarantor until after date for specific performance by purchasers – adjourn proceedings.
CORPORATIONS — winding up — failure to comply with statutory demand — presumption of insolvency — evidence as to defendant’s solvency filed at various times including day before hearing — plaintiff then sought leave to discontinue the substantive proceedings — COSTS — UCPR r 42.19 — plaintiff seeks departure from ordinary position in r 42.19 — question of costs not to be determined by conducting hypothetical hearing of the merits — outcome on merits not capable of prediction — parties acted reasonably in commencing and defending the proceedings — defendant seeks indemnity costs on basis of Calderbank offer — no basis for indemnity costs as Calderbank offer not made to plaintiff and could not be unreasonably declined — costs lie where they fall — HELD — no order as to costs
USUAL UNDERTAKING AS TO DAMAGES – shareholder dispute resolved by consent orders, including sale of apartment building ‘in one line’ to maximise sale price – director alleged to have circumvented consent orders by arrangement with another developer and mortgagee – interlocutory injunction to restrain mortgagee sale of 3 apartments only – plaintiffs pay $2M into court as security under Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 – apartment building sold ‘in one line’ for higher price – mortgagee paid out – director seeks compensation of $980,000 for mortgagee’s higher payout figure. COMPENSATION – whether to enforce undertaking where no final determination of the merits –defendants concede injunction properly granted – principles and case law review at [61]-[78] – mere discharge of interlocutory injunction before trial does not establish that it ought not to have been ordered – defendants fail to establish circumstances warranting exercise of court’s discretion to enforce undertaking.
REAL PROPERTY — Caveats — Plaintiff sought extension of caveat on property auctioned by defendant, who was joint tenant and sole trustee to act on the sale — Other joint tenant of property borrowed funds from plaintiff pursuant to personal loan agreement — Borrower’s only obligation under loan agreement was to repay principal balance — Whether mere borrowing of money gives rise to a caveatable interest — Ordinarily, mere fact that a caveator is a creditor of the registered proprietor does not give rise to a caveatable interest in land, as a caveat cannot be lodged to protect a mere contractual or personal right CIVIL PROCEDURE — Representation — Unrepresented litigants — In correspondence with Court, plaintiff sought some form of legal assistance in circumstances where solicitor who filed summons on plaintiff’s behalf appeared to no longer represent him — Whether order should be made pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) to refer the plaintiff to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance — Held that a referral should be made in favour of the plaintiff
CONTRACTS – Claim to enforce a settlement reached at mediation – Whether there was an immediately binding agreement reached at mediation – Intention of the parties.
TORTS – economic torts – injurious falsehood – injunctions – application for interlocutory injunction restraining publication – asserted tort of injurious falsehood – plaintiff company asserts article published by defendant falsely states that plaintiff and its officers engaged in criminality – discussion of elements of tort – discussion of the matters needing to be established in order for injunction to be granted – arguable case with regard to many elements of tort – no sufficiently good case for element of malice – application for injunction dismissed – ancillary orders
CIVIL PROCEDURE – suppression and non-publication orders – whether orders necessary to protect safety of the plaintiff – publication even in redacted form will likely exacerbate serious psychiatric condition – orders made
CONTRACTS — Terms — Where terms of agreement between parties are inferred by parties’ conduct — Where parties disagree on scope of agreement — Where parties seek declarations concerning terms of the agreement EQUITY — Trusts and trustees — Court’s supervision of — Appointment and removal of trustees — Application of section 70 of Trustee Act 1925 (NSW) — Application of Miller v Cameron (1936) 54 CLR 572 — Where circumstances of trust management do not justify removal of trustees
CONTRACTS – construction – proper construction of a Share Purchase Deed – purchase of an online hamper and gift business – dispute as to what principles the expert must apply in calculating earnings and earn out amount – whether expert must take into account changes in manner in which purchaser has conducted the business following purchase
COSTS — whether Uniform Civil Procedure Rules 2005 (NSW) r 42.34 applies — where plaintiff recovers less than $500,000 — considerations in reaching a fair and just result caters to both parties — Calderbank offer made by plaintiff — indemnity costs — indemnity costs awarded to plaintiff after date of Calderbank offer
CRIMINAL LAW – proceeds of crime – production of documents – where proper officer suspects defendant engaged in serious crime – suspicion reasonably held – production order made
CRIMINAL LAW – proceeds of crime – production of documents – where proper officer suspects person engaged in serious crime – suspicion reasonably held – production order made
EQUITY — Equitable remedies — Receivers – Supreme Court Act 1970, s 67 deceased estate conducts a hotel business and a related holiday park business through companies of which he was the sole shareholder – the plaintiffs, being a son of the deceased and his wife, conduct the holiday park business interim administrator appointed to estate – the defendant, another son of the deceased, conducts the hotel business – a registered liquidator appointed with a supervisory role only over the operations of the hotel business after cash deficiencies discovered in the accounts of the hotel business consequent upon a search order – after conducting investigations into the hotel business the supervisor moves for more direct powers to conduct the hotel business as a receiver – whether the receiver is impartial and should be appointed as receiver – whether the appointment of different receiver would be more cost-effective – whether the receivership should extend to the holiday park business.
STATUTORY INTERPRETATION – text and context of Part 5.3A of Corporations Act 2001 (Cth) – Corporations Act, s 443B(2) – whether “so much of … other amounts payable by the company … as is attributable to a period” misconstrued – no relevant misconstruction of s 443B(2) of the Corporations Act – appeal dismissed CORPORATIONS – external administration – administrator under Part 5.3A – personal liability of administrator – use or occupation of leased premises by administrator – whether personally liable for damages by way of makegood costs and lost rent – administrator not liable
CONTRACTS — Breach of contract — Where party seeks contract be set aside under Contracts Review Act 1980 (NSW) — Party unable to establish that circumstances at time contracts were entered were unjust — Relief not granted EQUITY — Equitable Fraud — Where invoice discounting facility used to perpetrate fraud EQUITY — Tracing — Mixed funds — Where misappropriated funds can be traced into property owned by a Defendant — Plaintiff awarded proprietary relief TORTS — Miscellaneous torts — Deceit — Elements — Application and satisfaction of Magill v Magill (2006) 226 CLR 551 — Whether parties had knowledge of, or were reckless to, the falsity of representations
CRIMINAL LAW – murder – wounding with intent to inflict grievous bodily harm – trial by judge alone – where the accused a young person at the time of the alleged offences – stabbing – Beef Week – melee at a KFC restaurant – numerous young persons involved – where the event is captured by CCTV and mobile phone – where the deceased exhibited significant animus towards the accused – where the accused suffers from a cognitive impairment – Foetal Alcohol Spectrum Disorder (FASD) – defence of substantial impairment – self-defence – knuckledusters – guitar capo – whether the accused believed his conduct was necessary in order to defend himself – whether the conduct of the accused was a reasonable response to the circumstances as he perceived them – excessive self-defence – accused not guilty of murder but guilty of manslaughter on the basis of excessive self-defence – accused not guilty of wounding with intent to cause grievous bodily harm – orders made
CRIME – murder – wounding with intent to cause grievous bodily harm – Judge alone trial – accused a young person at the time of alleged offences EVIDENCE – objection by the accused - relevance – video evidence – file taken from accused’s phone as a result of a Cellebrite examination – failure by Crown to disclose this evidence – evidence relevant to provide further background with respect to issues relating to the accused’s state of mind – significant evidence already available – evidence excluded and not admitted
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
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.
CORPORATIONS — Voluntary administration — Deed of company arrangement — Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to DOCA — Whether residual equity in company — Whether shareholders unfairly prejudiced.
ADMINISTRATIVE LAW – judicial review – jurisdictional error – Appeal Panel of Personal Injury Commission – whether Appeal Panel failed to give substantive consideration to the plaintiff’s ground of appeal – fair reading of Appeal Panel’s reasons – no constructive failure to exercise jurisdiction WORKERS COMPENSATION – medical assessment – proper construction of Medical Assessor’s Certificate – application of Workers Compensation Guidelines – proper construction of “social and recreational activities” scale – whether distinction between activities that occur within or outside of the home – no distinction – focus is on the social and recreational character of an activity
CIVIL PROCEDURE – application by defendant for permanent stay – whether res judicata or issue estoppel where claims in earlier proceedings dismissed by consent without adjudication on the merits – whether Anshun estoppel or abuse of process – whether claim for loss is a claim for reflective loss which should be summarily dismissed or struck out – whether proposed amendment discloses a reasonable cause of action – permanent stay granted
POSSESSION OF LAND – Claim for mesne profits – Where the defendant remained in possession of the property following notices to vacate – No issue of principle – Mesne profits and interest awarded.
TRUSTS AND TRUSTEES – STATUTORY INTERPRETATION – Application for judicial advice –Trustee Act 1925 (NSW) s 63(1) – Proper construction of words “any question respecting the management or administration of the trust property” – Whether Court has power to give judicial advice to Court-appointed administrator/constructive trustee to defend proceedings brought against him for breach of trust – Whether Court-appointed administrator/constructive trustee should have recourse to the trust assets to defend proceedings – HELD – Section has wide operation and the questions asked are in respect of the management or administration of the trust property – No warrant for reading section down – Control of wide operation resides in the Court having discretion whether to give or not to give judicial advice – Administrator properly entitled to have recourse to trust assets to defend proceedings
EVIDENCE – Evidence on commission – Application for examination of a witness under s 32 of the Evidence on Commission Act 1995 – Request from the Labour Court of Montevideo.
CIVIL PROCEDURE – Parties – Person under legal incapacity – Whether the plaintiff is of an adequate capacity to give instructions and make decisions with respect to this litigation and with respect to the financial management of moneys to which he is entitled – Whether the moneys held in Court to which he is entitled should be paid out of Court to the plaintiff.
CIVIL PROCEDURE – guillotine orders – expert reports served late in face of guillotine order – whether leave to rely on late served reports should be granted – where evidence is of importance to plaintiff’s case – where no specific prejudice to the defendant – where no suggestion that the plaintiff itself is responsible for the delay – where solicitor to show cause why he should not pay costs of the application and not charge plaintiff for work done in relation to the application
APPEAL — Appeal from ex tempore judgment of Local Court Magistrate — Right to reasons — Inadequacy of reasons — Nature of judicial duty to give reasons — Failure to deal with substantial and clearly articulated argument — Failure to consider reasonableness of mitigation — Reasons inadequate — Constructive failure to exercise jurisdiction TORTS — Damages — Mitigation — Damage to non-income producing chattel — Motor vehicle collision — Damaged vehicle unavailable while undergoing repairs — Owner’s need for replacement vehicle — Whether rental charges were reasonably incurred — Relevance of range of market rates in determining reasonableness of claimant’s conduct
CORPORATIONS – voluntary administration – deed of company arrangement – application under s 445D(1) of the Corporations Act 2001 (Cth) to set aside deed of company arrangement – where significant delay in making application – where false and misleading information was material to voting composition – termination of deed of company arrangement COSTS – determination of costs – ordinary basis – indemnity basis – no question of principle
CHILD WELFARE – adoption – whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether consent of father should be dispensed with – whether change of name should be approved
COSTS – apportionment of costs where there has been mixed success in proceedings – class action brought by individual and corporate plaintiffs for public and private nuisance arising from Sydney Light Rail construction – individual plaintiffs failed to establish a claim in public nuisance – plaintiffs unsuccessful with respect to common questions 10 and 11, which were subject to separate hearing – appropriate basis for apportioning costs
LEGAL AID – pro bono assistance – pro bono assistance previously provided for advice and the drafting of pleadings – further referral for continuing assistance – special reasons demonstrated – pro bono referral made
COSTS — party/party — costs follow the event — multiple claims — plaintiff claims orders appointing trustee for sale of co-owned property — defendant cross-claims for declaration that plaintiff held her portion of property on trust for him — cross-claim rejected – property sold by mortgagee and appointment of trustee rendered unnecessary — costs of cross-claim to be paid by unsuccessful defendant – costs of plaintiff’s claim to be borne by the parties — whether common costs to follow the claim or the cross-claim
UNDERTAKINGS TO THE COURT – elderly mother sues only son and his wife – settled – son and wife give undertaking to the court not to contact the mother – court informed undertakings interim measure intended to restore family relationships – not fit for purpose – implications on procedural fairness in subsequent legal proceedings – need for clear drafting at [73] – acceptance of undertaking in settlement context does not represent Court’s endorsement at [74]-[75] – Court’s discretion to accept undertakings at [76]-[77]. COURTS AND TRIBUNALS – whether NCAT has power to permanently stay proceedings – caselaw review at [96]-[107] – unnecessary to determine given express power to dismiss vexatious proceedings – s 55(1)(b), Civil and Administrative Tribunal Act 2013 (No 2) (NSW). PARENS PATRIAE – principles at [107]-[109] – elderly mother seeks orders prohibiting son and his wife from instituting any proceedings concerning her – cites stress and anxiety caused by further NCAT proceedings – whether “exceptional circumstances” exist – NCAT is a specialist tribunal best suited to consider the matter – mother is competent and able to give instructions – query whether orders sought are suitable where circumstances of elderly person may change – discretion to exercise jurisdiction not enlivened. VEXATIOUS PROCEEDINGS – s 8, Vexatious Proceedings Act 2008 (NSW) – principles at [116]ff – elderly mother sues, and is sued by, her son in relatively equal measure – son seeks guardianship and financial management orders in NCAT and fails – unsuccessful appeal to this Court – son files second NCAT application citing fresh evidence – whether the various proceedings were “vexatious” – whether son and wife had “frequently” instituted such proceedings – requisite elements not established.
JUDGMENTS AND ORDERS — Enforcement — Garnishee orders — Application by judgment creditors seeking garnishee order against solicitors of judgment debtor, in context where freezing order made over funds in their trust account from proceeds of sale of judgment debtor’s property — Whether garnishee order was apt in the context of moneys that had been paid into a trust account, and which may relate to a debt as between the proposed garnishee and the judgment debtor JUDGMENTS AND ORDERS — Enforcement — Garnishee orders — Whether garnishee order appropriate in context where solicitors claimed lien over funds in trust account — Lack of details or evidence of any moneys over which solicitors had at least claimed to have a lien — Lack of details or materials referable to costs agreement between judgment debtor and his solicitors to establish nature of any purported lien — Whether claims for legal fees were brought to the attention of the Court in making freezing order over the funds JUDGMENTS AND ORDERS — Payment of funds into Court — Whether funds in judgment debtor’s solicitors’ trust account ought to be paid into Court, in context where there are claims by both judgment creditors and judgment debtor’s solicitors — Held payment of funds into Court should be made, so as to ensure that the funds are held in a way such that the respective claims can be properly ventilated and not prejudice any rightful claim in respect of any lien
LAND LAW – strata title – duties of owners corporation – duty to maintain and repair common property – claims for rectification works and damages by lot owner under Strata Schemes Management Act 2015 (NSW), s 106(5) and 232(1) following breach of duty – whether entitlement of owners corporation to apply for orders to inspect and perform works on lot owner’s property an answer to resistance by lot owner to accessing her property – whether open to owners corporation to rely on unreasonable conduct by lot owner in failing to mitigate her loss in partial defence to claim for damages – consideration of nature of duty owed by owners corporation and statutory right to damages under s 106
COSTS – Application by trustee for judicial advice that it is justified in terminating a trading trust – Where trustee relies on counsel’s opinion to seek judicial advice but where, at the time of first bringing the application, opposition by unitholders to terminate the trust was not yet clear, although it became clear within a short period of time and the trustee nevertheless persisted in the application over opposition – Where trustee and those unitholders are locked in litigation concerning, amongst others, whether the trustee has previously breached trust and the trial is imminently to be heard – HELD – Trustee’s costs to be costs in the cause for the period up to the unitholders’ opposition to the application being made clear, and thereafter, each party to bear their own – Appropriate to order that the trustee not recover those costs up to opposition to the application being made clear from the trust fund unless and until it finally succeeds in the principal proceedings
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
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.
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.
REPRESENTATIVE PROCEEDINGS – shareholder class action – approval of settlement – consideration of legal costs, funding commission, payments to lead plaintiffs and costs of administering settlement scheme – consideration of proposed distribution methodology – no objection from any group member – common fund order made – settlement approved
CIVIL PROCEDURE – parties – representative order – where plaintiff died prior to conclusion of the proceedings – whether plaintiff should be removed as a party pursuant to r 6.29 of the UCPR – whether representative of the plaintiff’s estate should be appointed and named as party – representative appointed pursuant to r 7.10 of the UCPR
EQUITY — Equitable remedies — Injunctions — Whether damages not an adequate remedy – Whether to restrain first defendant from completing contract for sale of land
LEASES AND TENANCIES — Retail leases — Demolition, damage and relocation — Construction of s 34 Retails Leases Act 1994 (NSW) — Where market stall holders issued relocation notices — Whether sufficient detail of development proposal provided — Whether “alternative shop” must be “commercially similar” — Whether alternative premises are commercially similar
CONFISCATION - ancillary orders - alleged non-compliance with previous orders for statement of asset and liabilities - whether ancillary orders can require specificity - whether compliance requires disclosure of value of assets - orders requiring provision of further details made
CIVIL LAW – application for mandatory psychiatric examination pursuant to s 7(4) of Crimes (High Risk Offenders) Act 2006 – test arising from combined effect of s 5E and s 7(4) of the Act
PROCEEDS OF CRIME – where restraining order made – extension order sought extending the period before property is irrevocably forfeited – whether applications for extension made without undue delay and diligently followed up on
PRACTICE AND PROCEDURE – application for interlocutory injunction – plaintiff charged with obtaining property by deception and using a carriage service to make threats – search warrant executed –property seized – declaration sought that search warrant was executed unlawfully – whether seized property should be entered into the custody of the Supreme Court until proceedings determined
CORPORATIONS — winding up — creditor’s statutory demand — application to set aside statutory demand — Corporations Act 2001 (Cth) ss 459H and 459M — admissibility of document — where Graywinter principle does not prevent plaintiff from supplementing evidence — where plaintiff can elect between equitable compensation and an account of profits and need not do so until point of judgment — whether there is a genuine offsetting claim arising from breach of director’s statutory and/or fiduciary duties — where the offsetting claim is seriously arguable and bona fide and delay in bringing it is explicable — where the poor financial position of the plaintiff does not undermine the genuineness of the claim — where appropriate for court to impose condition pursuant to s 459M — HELD — genuine offsetting claim — statutory demand set aside subject to condition
SUCCESSION – family law – property – whether de facto relationship existed – factors in determining the existence of a de facto relationship – where plaintiff seeks Letters of Administration as de facto spouse – where estate in jurisdiction is essentially insolvent SUCCESSION – jurisdiction – where court has jurisdiction to grant administration – whether deceased was domiciled in jurisdiction at time of death – no matter how far or wide he roamed he still called Portugal home SUCCESSION – probate and administration – where distrust in relationship between de facto spouse and children of deceased – where necessary to appoint independent person as administrator
LIMITATION OF ACTIONS – whether discretion to extend limitation period to be exercised pursuant to ss 60F, 60J of the Limitation Act 1969 (NSW) – whether pleaded case is weak – whether failure to call evidence from former legal representatives relevant – whether there can be a fair trial – extension granted
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) s 119 – Where landlord commences proceedings in the Local Court to obtain recovery of residential premises subject to a residential tenancy agreement and the statement of claim includes a claim for rent – Whether the proceedings can continue with respect to the claim for rent – HELD: They cannot, the proceedings constitute one suit and were unlawfully instituted and the inclusion of the rent claim which might have been able to be brought separately and lawfully does not change this – The lawfulness of the commencement of the proceedings must be tested at the point of commencement
CIVIL PROCEDURE — Pleadings — Amendment — Repeated attempts to plead case — Previous pleading struck out with indication that likely only one further chance would be given — Leave not granted where proposed further pleading liable to be struck out as abuse of process
COSTS — costs assessment — late application for costs assessment made by a law practice — refusal by first defendant to accept filing of a late application — whether in accordance with applicable legislation and regulations — costs between plaintiff and second defendant where second defendant not involved in refusal by first defendant to accept filing — costs as between plaintiff and second defendant
CHILD WELFARE – adoption – consent dispense order – where consent dispense order sought before application for adoption order – where father not identified – where reasonable enquiries made to identify and locate the father
CIVIL PROCEDURE – guillotine orders – expert reports served late in face of guillotine order – whether leave to rely on late served reports should be granted – whether explanation for delay adequate, comprehensive, and candid
BAIL – bail review application – s 74(3)(c) of the Bail Act – further release application – change of circumstance – fixing of a trial date – delay – show cause –AN0M – strength of Crown case AN0M – lawful reason for release – whether unacceptable risk – risk of failing to appear – risk of serious offence – release application granted on bail conditions
CIVIL PROCEDURE – discontinuance – leave of court – whether plaintiff should pay defendant’s costs of the proceedings – possession proceedings – proceedings discontinued after filing of defence – supervening event making proceedings futile – principles regarding costs orders and discontinuance – where plaintiff had not acted unreasonably
COSTS – Whether indemnity costs should be awarded against Defendants on basis of Calderbank principles – Whether unreasonable not to accept Calderbank offer – Where offer made prior to late amendment of Plaintiffs’ pleadings. COSTS – Whether to make a gross sum costs order – Where differing scope of cases again Defendants are not fairly addressed by a gross sum assessment – Where Court cannot be satisfied that only recoverable costs are claimed.
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
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.
EQUITY — application for appointment of trustees for sale — defendant denies plaintiff’s ownership of half share of property — whether plaintiff holds property on constructive trust for defendant — plaintiff inherited interest in property from son who predeceased her — treatment of evidence where maker is not available (deceased)
FAMILY LAW — children — adoption — application by step-parent — where proposed adoptive parent is the child’s step-mother — where child has lived with birth father and step-mother since she was three years old — where child has no meaningful relationship with birth mother — where child is now 15 years old and gives sole consent to own adoption — where adoption is clearly preferable in child’s best interests
CRIME – sentence – extended joint criminal enterprise – use of a loaded firearm to rob the deceased – foresight as to the use of the firearm with an intention to kill or cause grievous bodily harm – where evidence cannot establish identity of shooter – profound deprived backgrounds – abject neglect and abuse suffered by the offenders during childhood – reduction in moral culpability
SUCCESSION — Family provision — Practice — Interim orders — Requirement for court to be satisfied plaintiff will receive no less than proposed interim provision — Difficulty in identifying correct basis for comparison — Injunction granted in lieu of interim provision order — Succession Act 2006 (NSW), s 62
COSTS — party/party — general rule that costs follow the event — application of the rule and discretion — application for alternative order to reflect partial success — application dismissed
ADMINISTRATIVE LAW – judicial review – whether Minister's decision pursuant to s 10(1) Kosciuszko Wild Horse Heritage Act 2018 (NSW) involves jurisdictional error – application for interlocutory injunction to prevent culling of wild horses – whether plaintiff has standing – whether serious issue to be tried – where delay in commencing proceedings – where plaintiff has not proffered an undertaking as to damages – adequacy of damages as a remedy if injunction not granted – balance of convenience
COSTS - two long-running proceedings between solicitors and a former client – the “active” (in which the substantive issues were argued) phase of the two proceedings concluded many years ago – the active phase concluded with orders for costs against the solicitors on the ordinary basis – since then the Court has considered issues in relation to costs, including whether indemnity costs are payable by the former client, whether the recovery of costs by the solicitors is precluded by reason of the operation of the principles in Bell Lawyers Pty Ltd v Pentelow , and whether the solicitors could prove the costs owing to them on the materials provided – these issues determined in a judgment given in November 2022 – the solicitors had considerable success in the November 2022 judgement – but the solicitors had presented and organised their case in the most haphazard, prolix, repetitive fashion – what is the appropriate costs order in respect of the inactive phase of the proceedings – what other directions should be made.
SENTENCE – Manslaughter – unlawful and dangerous act – accidental shooting – late guilty plea – extensive criminal history – aggravating factor of committing offence whilst on parole – much of offender’s adult life spent in custody – offence committed whilst offender on parole – genuine remorse established – difficult childhood with family mental health issues – both parents committed suicide – moral culpability reduced – history of illicit substance abuse – totality principle
COURTS AND JUDGES – Application for limited suppression order to protect identify of plaintiff – principle of open justice primary consideration – prejudice to administration of justice – safety of the plaintiff – suppression order made on limited terms
SUCCESSION – family provision – claim by adult stepchildren as alleged members of household and dependents of the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – where plaintiffs ceased contact with deceased after allegations of sexual abuse – deceased found not guilty of sexual abuse at trial – whether eligible persons – whether “factors warranting” the making of orders for provision out of the estate – whether deceased had moral duty to make provision for plaintiffs despite no contact SUCCESSION – family provision – claim by de facto spouse under Succession Act 2006 (NSW), Ch 3 –where de facto spouse has been dependent on the deceased – where provision for de facto spouse inadequate
CORPORATIONS — winding up — application by creditor seeking declaratory relief — dispute between creditor and liquidator as to perfected status of security interest — charge in favour of plaintiff over company’s property — where charge secured loans made by plaintiff to company — where the security interest is a dual transitional security interest and migrated security interest under the Personal Property Securities Act 2009 (Cth) — whether the security interest was perfected at all relevant times — whether seriously misleading defects in registration rendered it ineffective — whether the security interest otherwise vested in the company upon its winding up — HELD — the security interest was continuously perfected under the legislation and did not vest in the company
CONTRACTS – construction – interpretation – heads of agreement concerning shareholding in family business – whether heads of agreement confer on son an option to purchase the shareholding of his mother and brother
EQUITY — Trusts and trustees — Judicial advice — judicial advice sought about appeal against decision holding that Estate owes a debt — where judicial advice not sought as to proceedings below — where judicial advice not sought on appeal until after appeal has progressed — whether advice should be given
SUCCESSION – Application to review decision of a Registrar not to grant Letters of Administration to the Plaintiff – A niece of the Deceased who died intestate – Registrar declined on the basis that the Plaintiff had not established that the Deceased was not in a domestic partnership immediately before his death – Where 18 months has now passed since the death of the Deceased, affidavit evidence establishes enquiries made to find out whether the Deceased was in such relationship – No such person has come forward – No record of any registration of any de facto relationship – HELD – Court satisfied that there was no such relationship at the date of death – Order for the grant of Letters of Administration
REMITTAL FOR ASSESSMENT OF DAMAGES – share purchase agreement – plaintiffs to receive $500,000 worth of shares in publicly listed company on satisfaction of earnout – contract varied to change earnout to $1M revenue in 2016 – industry recession – prolonged share trading halt – defendants breach contract by denying variation – parties disagree whether revenue more or less than $1M – in 2019 plaintiffs raise revenue item on which they ultimately succeed – in 2023 Court of Appeal determines revenue threshold met – whether plaintiffs entitled to shares plus compensation for increase in share price and dividends over intervening 8 years. DAMAGES – contract – principles at [87]-[90] – considering counterfactual – loss of chance [102] – 50:50 chance plaintiffs would have established $1M revenue at the time – not satisfied plaintiffs would have held the shares if issued – more likely to have sold in the short term. FRUSTRATION – defendants to issue number of shares “equal to $500,000 divided by VWAP Price” calculated on share trades “on the ASX over the 30 days on which trading in PPK Shares took place immediately preceding” the share issue date – clause frustrated due to share trading halt – partial frustration [105]-[106] – frustration did not discharge accrued rights [109]. SPECIFIC PERFORMANCE – whether damages an adequate remedy in contract for share issue – principles at [83]-[86] – not just to confine to damages – whether specific performance can be back-dated [114]-[115] – retrospective award of specific performance is anomalous – specific performance operates prospectively – specific performance compels $500,000 of shares to be issued now. EQUITABLE DAMAGES – Lord Cairns’ Act – where damages sought in substitution or addition to specific performance – whether pleading required [117] – principles at [117]-[126] – where damages sought in aid of legal right, common law damages generally awarded. LACHES – plaintiffs delay in claim for share issue in publicly listed company – multiple share trades, buybacks and rights issues since – principles at [133]-[135].