Cases and authorities

CORPORATIONS – Insolvency – Winding-up – Adjournment – Costs

DEFAMATION – damages – assessment of damages – where serious imputations made against family dispute resolution practitioner including matters concerning paedophilia and fraudulent behaviour – grapevine effect – aggravated damages awarded DEFAMATION – remedies – injunctions – where twelve individual publications published on defendant’s blog and social media – whether mandatory and permanent injunctive relief appropriate – mandatory and permanent injunctions granted COSTS – party/party – application made by party entitled to costs under judgment for gross sum costs order – where counsel appointed for plaintiff under pro-bono scheme – where costs orders made by Court of Appeal in interlocutory appeal proceedings – whether jurisdiction to make gross sum costs order inclusive of costs of interlocutory appeal – gross sum costs order made

LEASES AND TENANCIES — tenancies — agreement to grant a lease over a warehouse property — subject property was held on trust — lease was never registered pursuant to the agreement — whether subsequent owners were bound by the agreement — whether agreement gave rise to an equitable lease — whether a legal tenancy arose under s 127 Conveyancing Act 1919 — whether parties to the agreement repudiated — claims for unpaid rent — claims against individual guarantor for indemnity under the agreement CONTRACTS — parties — privity — privity of estate — where a lease was never registered despite agreement to do so — whether a legal tenancy arose under s 127 Conveyancing Act 1919 — whether s 117 Conveyancing Act 1919 applies to unregistered legal tenancies COSTS — party/party — orders when proceedings involve multiple parties — how parties liable — multiple claims in multiple matters, with mixed success by plaintiffs and cross-claimants — costs follow the event on a claim-by-claim basis — incidence of general costs

DAMAGES – historical child sexual abuse –– where defendant did not respond to calculation of damages or proposed orders – where plaintiff’s calculations revised after order for recalculation of damages for future care –– plaintiffs recalculations and proposed orders accepted including in relation to an application for a gross costs order and continuation of a freezing order

COSTS – indemnity costs order – where offer of compromise made – no question of principle COSTS – gross sum costs order – where insufficient information before the Court to enable a gross sum costs order – no question of principle

PRACTICE AND PROCEDURE – discontinuance – whether term should be imposed as a condition of grant of leave preventing commencement of fresh proceedings COSTS – appropriate costs orders as condition of grant of leave to discontinue – no question of principle

CORPORATIONS – Voluntary administration – whether Court could or should appoint voluntary administrators or require liquidators to do so.

SUCCESSION — Charitable trusts — Administrative schemes — Where testator directed trustees to use residuary estate to set up trust for certain objects —Whether purposes identified in the proposed scheme are charitable purposes

CONTRACTS — Terms — Classification of terms — Where parties disagree on quantum and interest under loan agreement — Where written contract drafted seven months after first funds extended ESTOPPEL — Proprietary estoppel — Detrimental reliance — Whether it was unconscionable for defendant to resile from promise to grant plaintiff security in her property LAND LAW — Caveats — Caveatable interest —Where pleading sought a declaration that plaintiff has a caveatable interest in defendant’s property

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants – where the Plaintiff seeks a negative declaration – a Bond Replacement Product – proper construction of s 23 of the Residential Tenancies Act 2010 (NSW) – whether the Bond Replacement Product would contravene s 23 of the Residential Tenancies Act 2010 (NSW) – where there is a prohibition in relation to requiring or receiving payment from a tenant – whether the phrase “before or when” is to be given a temporal construction. LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants – where the Plaintiff seeks a negative declaration – a Bond Reversal Product – whether the Bond Reversal Product contravenes s 32 of the Residential Tenancies Act 2010 (NSW) – kinds of payments a tenant may be required to pay for a residential tenancy agreement – where the section has the express words of connection “for or in relation to”. STATUTORY INTERPRETATION – literal meaning – natural and ordinary meaning – promoting the legislative purpose or object underlying the Act –Interpretation Act 1987 (NSW).

CONTRACTS – Construction and interpretation – express terms – implied terms – whether the express terms of the letter of offer require the payment of the fees – whether there is an implied term in the letter of offer that has the effect that the fees cannot be recovered – whether the fees are penalties and unrecoverable – where no claimed fees are payable under the express terms of the letter of offer.

CHILD WELFARE – adoption – order – whether the making of an adoption order is in the best interests of the child – whether a guardianship order should be made as an alternative to an adoption order – whether an adoption order is the clearly preferable option – whether the Court has jurisdiction to make a guardianship order – where the Court can exercise its parens patriae jurisdiction to grant a guardianship order if it is the clearly preferable option. CHILD WELFARE – adoption – order – where the birth parents oppose the adoption – whether the consent of the birth parents should be dispensed with to make an adoption order – where the birth mother seeks restoration. CHILD WELFARE – adoption – adoption plans – where it is in the child’s best interests for an adoption order and declaration of parentage to be made – where the applicant seeks registration of the adoption plans to facilitate future contact with the child’s birth family post-adoption – whether the adoption plans are in the child’s best interests and proper in all of the circumstances – where the birth mother has not signed the adoption plan.

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Where leave sought by member/director — Leave granted CORPORATIONS — Members’ rights and remedies — Oppression — ss 232-233 Corporations Act 2001 (Cth) — Where conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory — Where sole member is a holding company CORPORATIONS — Directors and officers — Directors’ duties — ss 180-181 Corporations Act 2001 (Cth) — Duty of care and diligence — Duty to act in good faith in the best interests of company and for proper purpose — Where first defendant entered contracts without consent — Where first defendant charged company for personal expenses

CRIME – appeals – appeal against sentence – statutory aggravating factors – where the sentencing judge found that the offence was aggravated by reason of being committed “without regard for public safety” – where such a finding was not pursued by the Crown, conceded by the defence or foreshadowed by the sentencing judge – procedural fairness – threshold of materiality – where finding inevitable – no practical injustice – appeal dismissed CRIME – appeals – appeal against sentence – manifest excess – whether sufficient weight given to subjective case – where sentence “stern” but not unreasonable nor unjust – sentence within range of available sentences – appeal dismissed

CRIME – appeals – appeal against sentence – cultivation of prohibited plants by enhanced indoor means – pervert the course of justice – whether denial of procedural fairness – where sentencing judge rejected evidence in psychologist’s report – where no indication issue taken – psychologist’s conclusion a matter of speculation – inherently implausible – no practical injustice – leave to appeal granted – appeal dismissed

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Offences of sexual intercourse with children outside Australia and possessing child abuse material – Whether the sentencing process miscarried – Whether the sentencing judge erred in her consideration of the age of the victims – Whether the sentencing judge mistook the statutory age limit of an offence provision – Whether the sentencing judge erred in incorrectly stating an offence provision – No point of principle

CONTRACT – LANDLORD AND TENANT – Lease of commercial premises under which the lessor pays all outgoings – Where option for extension of the lease provides for the determination of market rental by a valuer – Where valuer makes the following determination “$195,000 p.a. exclusive of GST with outgoings paid by the tenant” – Whether the determination is in accordance with the terms of the lease – HELD – Determination not in accordance with the lease because the amount it assesses takes into account non-defined outgoings to which is attributed a non-disclosed amount, on the assumption that outgoings are paid by the Lessee, which under the Lease they are not; and the Valuer has not determined current market value of the rent if, as is the case, outgoings are not paid by the Lessee.

COSTS – Party/party – bases of quantification – indemnity basis – where a Calderbank offer was made by Defendant – where the Plaintiff capitulated – where the Plaintiff had no prospects of success – whether Calderbank principles apply where there has been no hearing on the merits – where the Plaintiff is to pay the Defendant’s costs – where the Plaintiff is to pay the Defendant’s costs on an indemnity basis from date of Calderbank offer.

COSTS – Security for costs – Where defendants (applicants) and plaintiff (respondent) have competing claims in the proceedings for substantive relief – Where each party’s defence of the other’s claim is inextricably bound up in its prosecution of its own claim – Where the defendants’ costs of defending the plaintiff’s claim cannot be separated from the costs of prosecuting the cross-claim – Where the defendants filed application for security for costs three weeks prior to commencement of 7-day final hearing seeking security in an amount reflective of their estimated costs of defending the plaintiff’s claim and prosecuting the cross-claim in the period from the date of filing of the security for costs application until the conclusion of the final hearing – Where defendants seek an order that plaintiff’s claim is stayed if any security ordered is not paid, but cross-claim will proceed – Whether reason to believe that plaintiff will be unable to pay the defendants’ costs if ordered to do so – Discretionary factors.

COSTS – Whether costs should be ordered against plaintiffs seeking to invoke the Court’s parens patriae jurisdiction – HELD: Plaintiffs ordered to pay first defendant’s costs

MENTAL HEALTH – Community treatment order – Proceedings by plaintiff seeking to appeal community treatment order authorising compulsory treatment of her in the community – Where the plaintiff has a diagnosis of bipolar affective disorder and displays grandiose delusions, examples of which were demonstrated throughout the hearing – Where plaintiff has a demonstrated history of resisting or not complying with previous treatment plans, which leads to worsening of her condition, and has history evidencing she is a risk of harm to herself and others – HELD: the community treatment order should be continued

SUCCESSION – Probate and administration – Missing will – Presumption of revocation by destruction – Rebuttal of the presumption – Where the will makes a careful and complete disposition of the testator’s property – Where the codicil nonetheless revives the will – Succession Act s 8(2) – HELD –The presumption of revocation does not apply – The codicil forms an alteration of the will – Probate granted to the plaintiff

CIVIL PROCEDURE – costs – application for order against non-party – director of company with carriage of proceedings for company – director granted leave to appear – company unsuccessful – conduct not improper or unreasonable – no evidence that company insolvent – no evidence that director funded proceeding – application refused

CORPORATIONS – Statutory derivative action – Application to bring proceedings on behalf of company – Whether leave to bring derivative action should be granted.

SUCCESSION — Contested probate — Lack of knowledge and approval — Suspicious circumstances — Where sole beneficiary drafted will in English — Whether deceased understood English SUCCESSION — Contested probate — Testamentary capacity — Memory issues — Dementia — Where deceased suffered from depression — Where later will’s bequests consistent with earlier will SUCCESSION — Family provision — Claim by adult child — Whether inadequate provision — Operation of law of intestacy — Where insufficient evidence of financial and material circumstances — Where claimant lived with deceased — Where insufficient evidence led by claimant

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.

CONTRACTS – construction – interpretation – proper construction of a written commercial lease agreement for a petrol station – objective theory of contract –emergency repairs clause CONTRACTS – breach of contract – lease agreement – where alleged breach for non-payment of rent – where no breach for non-payment of rent as lessee entitled to deduct cost of repairs CONTRACTS – construction – correction of drafting mistakes by construction – where the literal meaning of the words used would result in an absurdity, inconsistency, palpable or obvious mistakes – where absence of a comma between “damage” and “disruption” LEASES AND TENANCIES – covenants – covenant for quiet enjoyment – disturbance – breach of the covenant by a lessor from acts of omission – where lessor failed to repair potholes LEASES AND TENANCIES – default and termination – non-payment of rent – invalid notice of default –where lessee entitled to deduct cost of repairs from payment of rent LEASES AND TENANCIES – repairs, maintenance and alterations – obligation to repair and maintain – obligations under the Roads Act 1993 (NSW) – where potholes outside landlord’s property – where landlord liable to pay costs of repairing the potholes – where lessee entitled to deduct repair costs from rent payable to landlord

LAND LAW – possession – possession sought by registered proprietor – where defendants did not attend hearing - judgment entered

ADMINISTRATIVE LAW – judicial review – jurisdictional error – disposal of property on application to court – forfeiture of property to the Crown – construction of s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

CRIMINAL LAW – appeal against conviction – lengthy delay in instituting appeal – where applicant accused of complicity with father in murder of wife’s lover – “honour killing” – whether conduct of Prosecutor led to a “miscarriage of justice” – religious and cultural stereotypes – cross-examination as to applicant’s religious beliefs – conduct not necessary but not improper – issue raised squarely at the commencement of prosecution opening statement – no objection taken – different approaches to “miscarriage” – where High Court reserved on issue – presumptuous and barren exercise to predict outcome – befuddling – alternative approaches considered – strength of prosecution case – application of proviso – whether no substantial miscarriage actually occurred CRIMINAL LAW – “Shepherd” direction – whether motive or “honour killing” theory required proof beyond reasonable doubt – directions on circumstantial evidence orthodox and correct – specific direction not sought at trial – no merit in ground – leave to appeal on specific ground refused CRIMINAL LAW – conditions of incarceration – ground asserting transport and conditions establishing a miscarriage – where trial Judge sympathetic and granted adjournments when requested – serious issue raised but no miscarriage established

CIVIL PROCEDURE – recusal application – application dismissed – reasons for refusal

COSTS – Party/Party – Payable out of a fund – deceased estate – Uniform Civil Procedure Rule (UCPR) r 42.20 – deceased leaves five children, four of his first wife and one of his second wife – his will appoints the child of his second wife, the plaintiff, as executrix of his will – disagreement arises about construction of the will and whether Powers of Attorney Act 2003 s 22 applies to certain transactions using a power of attorney during the deceased’s lifetime – plaintiff commences proceedings joining the children of the first marriage as defendants – proceedings resolve subject to the consent of the second wife – but the second wife is a person under a legal incapacity and needs to be joined before the settlement can be perfected – the proceedings are dismissed by consent, subject to an extent contest about costs – the first to fourth defendants contend that the plaintiff executor’s costs of commencing and maintaining the proceedings were not properly and reasonably incurred and she should bear them herself and pay the costs associated with the jointer and advising of the second wife - the plaintiff and the second wife dispute these contentions.

CIVIL PROCEDURE – discovery – Practice Note SC Eq 11 – whether exceptional circumstances warrant disclosure before evidence exchanged – where plaintiff seeks leave for pre-evidence discovery and to issue subpoenas – where plaintiff seeks to make out case of misleading or deceptive conduct based upon inference

CIVIL PROCEDURE – separate determination of questions – where appropriate – whether issue of liability should be heard separately and before quantum – where four of five defendants in effect admit liability – where remaining defendant does not actively dispute liability – where second hearing inevitable even if liability heard first – where separate hearing on liability might enable plaintiff to elect between damages and account of profits – where overall costs likely to be borne by defendants – where preferable course is to direct plaintiff to serve its evidence in chief on liability and reconsider separate question thereafter

CHILD WELFARE – adoption – adoption plan – where birth mother opposes the adoption but has disengaged from proceedings – where birth mother has not signed the adoption plan – whether the proposed adoption plan is in the child’s best interests and proper in the circumstances. CHILD WELFARE – adoption – adoption plan – sibling adoption plan – where the parties have not sought for sibling adoption plan to be registered – whether the sibling adoption plan should be registered. CHILD WELFARE – adoption – whether the making of an adoption order is in the best interests of the child – whether an adoption order is the clearly preferable option. CHILD WELFARE – adoption – order – where the birth parents do not consent – whether the consent of the birth parents should be dispensed with to make an adoption order – where the birth mother seeks restoration.

CORPORATIONS – general meetings – meeting convened by notice given to members – business of meeting was to consider resolutions to remove and replace directors – directors knew that sufficient proxies cast for resolutions to be carried – directors resolved to appoint a voluntary administrator on the evening before the meeting – chairperson, who was a director, opened the meeting and purported to adjourn the meeting sine die without putting any resolutions to shareholders – following purported adjournment, shareholders present at meeting purported to elect new chairperson who put resolutions to a vote – whether purported adjournment sine die was within power – whether purported adjournment was for a proper purpose – whether meeting continued following purported adjournment – whether resolutions were passed CORPORATIONS - voluntary administration – whether there was a proper basis for directors to form the opinion that the company was insolvent or likely to become insolvent – whether the administrator was appointed for an improper purpose – whether, if the appointment was valid, the Court should order that the administration is to end

CHILD WELFARE — adoption — where proposed adoptive parents are child’s current foster parents —whether adoption order is in child’s best interests — whether birth parents’ consent should be dispensed with — whether change of name should be approved

EVIDENCE – Privileges – Public interest immunity – Judicial decisions – Matters of state – Application of section 130 of the Evidence Act 1995 (NSW) – Whether the disclosure of redacted documents would be injurious to the public interest to disclose in the proceedings – Whether information disclosing or tending to disclose the identity of a confidential source of information provided to Community Corrections is subject to public interest immunity – Protection of confidential sources in a law enforcement context – Where the Court is tasked with the balancing process of assessing the public interest in disclosing or not disclosing materials to an opposing party in proceedings – General principle that the identity of police informers may not be disclosed in a civil action – Whether public interest considerations are available with respect to the operations of Community Corrections in relation to the supervision, investigation and monitoring of compliance with an Extended Supervision Order CIVIL PROCEDURE – Discovery – Objection to inspection – Public interest immunity

CIVIL PROCEDURE – transfer of proceedings – other proceedings on foot in Federal Court and District Courts – application to have District Court proceedings transferred to Supreme Court and then for both State proceedings to be transferred to Federal Court –transfer ordered CIVIL PROCEDURE – pleadings – application to strike out late filed defence and entry of default judgment– application dismissed

EQUITY — fiduciary duties — solicitor — claim against solicitor personally by other side in litigation — whether client gave informed consent to solicitor continuing to act — solicitor subsequently in breach of duty by putting forward settlement deed in which solicitor received a benefit — whether error in finding by primary judge that breach not dishonest — whether primary judge could accept concession that liability in equity depended on finding of dishonesty — whether claim statute-barred absent dishonesty RECEIVERS — instrument appointing receivers expressed to be signed, sealed and delivered — whether a deed — whether primary judge erred in finding instrument was not a deed and therefore six year limitation period applicable — whether receivers breached fiduciary duties or were knowingly involved in breach of duty by solicitor — whether any breach was dishonest — whether any claim against receivers statute-barred PROCEDURE — appeals — notice of appeal — failure to identify grounds briefly and specifically — failure to comply with statement as to challenge to findings of fact — failure to comply with page limit — unnecessary to address numerous subgrounds of appeal and submissions

CRIME – appeals – appeal against sentence –appeal out of time – extension granted – significant volume of child abuse material – bestiality material – prohibited firearms – prohibited weapons – State and federal offences – whether error in accumulation of State aggregate sentence on federal aggregate sentence – whether State aggregate sentence manifestly excessive – special circumstances – recognizance release order SENTENCING – aggregate sentences – State and federal offences – cumulation – complexity – frustration and unnecessary public cost – punishment exacted should reflect what an offender has done – effect of other offences on appropriate penalty

CRIME – appeals – appeal against sentence – where the applicant pleaded guilty to one count of intentionally causing grievous bodily harm at a super call-over – where the applicant struck the victim in the eye causing permanent damage – where the sentencing judge combined discounts under ss 22A and 25D of the Crimes (Sentencing Procedure) Act 1999 – whether the sentencing judge erred in rounding down the discount to even months – where the rounding down of the discount reduced the discount – where the sentencing judge was obliged to provide the stipulated discount in s 25D – ground of appeal upheld – where it was still necessary to resentence the applicant – error not an arithmetical or date error CRIME – appeals – appeal against sentence – objective seriousness – whether the sentencing judge erred in assessing objective seriousness – where the onus was on the applicant to show that a lack of planning should be a mitigating factor – where the offence was typified by jealousy – where there was a history of domestic violence – where the lack of planning was insignificant – ground rejected CRIME – appeals – appeal against sentence – where the applicant was diagnosed with PTSD and alcohol/substance abuse disorder – where submission made that applicant was not a suitable vehicle for general deterrence - where the sentencing judge did not engage with the effect of the mental health issues on deterrence – where the sentencing judge erred by not referencing general deterrence – ground upheld

GUARANTEE AND INDEMNITY — Contract of guarantee — Enforcement — No issue of principle

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.

CIVIL PROCEDURE — appearance — no appearance at hearing — where defendant afforded ample opportunity to attend and be heard — whether appropriate to proceed with hearing CONTRACTS — construction — where contract for the sale and purchase of units in unit trust — where parties required to use “all reasonable efforts” within capacity to procure written consent of financier as condition precedent — whether purchaser failed to use all reasonable efforts CONTRACTS — remedies — damages — assessment — whether damages assessed at the date of breach or some other date — circumstances in which it is appropriate to measure damages at some other date

OCCUPATIONS — legal practitioners — misconduct and discipline — client brings proceedings concerning alleging loan to former solicitor and solicitor’s wife — solicitor’s wife purportedly unrepresented in proceedings — affidavit from wife prepared by unqualified paralegal employed by solicitor — affidavit copied from solicitor’s own affidavit — proceedings settled — unresolved questions of conflict of interest, “shadow” representation of purportedly unrepresented litigant, employment of unqualified persons, and use of one witness’ affidavit to prepare another’s — papers referred to Law Society

CONTRACT – adviser’s exit from financial services business – whether breach of contract established – whether loss established. OPPRESSION – Whether oppression established – whether compensable loss established.

CIVIL LAW – high risk offender – application for further extended supervision order – 3 year order in force for a period of 7 years – repeated minor breaches resulting in incarceration – positive drug test – smoking cannabis – consuming half a beer – breaching curfew – being with intimate partner – where no evidence to suggest escalation of risk of violence – where two serious violence offences committed 14 and 10 years ago – counterproductive to rehabilitation and social stability – where no offence of any significant violence for 10 years – where risk of defendant committing a serious violence offence not unacceptable – unreasonable exercise of Community Corrections’ discretion to exercise reasonable discretion in prosecuting breaches of ESO – further ESO of no benefit to community or defendant

TORTS — false imprisonment — whether power to arrest lawfully exercised under s 99, Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — whether police officers suspected on reasonable grounds that the person committed offences — where suspected offences comprised breaches of an ambiguous order — “reasonably necessary” criterion — whether arresting officer’s satisfaction that the arrest was reasonably necessary was manifestly unreasonable, or arbitrary, capricious, irrational or not bona fide CIVIL PROCEDURE — Court of Appeal — competency of appeal — whether appeal involves matter at issue amounting to or of the value of $100,000 or more — need for party seeking to appeal to demonstrate that the appeal is not limited by monetary sum

INTEREST – whether plaintiff entitled to pre-judgment interest where no final determination for relief necessary – no question of principle COSTS – appropriate costs order where no final determination of relief necessary – each party to pay their own costs - no question of principle