Cases and authorities

APPEALS – leave to appeal – interlocutory orders – pleading dispute – striking out part of cross-claim – refusal of leave to amend statement of claim – whether arguable causal connection pleaded – whether questions reasonably arguable – whether injustice CIVIL PROCEDURE – pleadings – strike out application – amendment application – claims under Superannuation Industry (Supervision) Act 1993 (Cth), s 55(3) – causal requirement in statutory norm – causal connection between contravening conduct and loss – whether literal construction untenable – whether material facts plead arguable causal connection between contravening conduct and loss – whether pleading has tendency to cause prejudice, embarrassment or delay in proceedings

CIVIL PROCEDURE – Hearings – order sought that separate proceedings be heard together – where there is a common witness – where there is a common factual matrix CIVIL PROCEDURE – Hearings – order sought for expedition – where there is an attenuated financial position of a defendant

COSTS – Party/Party – Costs orders in interlocutory proceedings – where application made by judgment debtor for gross sum costs orders following interpleader motion – whether interpleader entitled to complete indemnity of costs from funds in court – no issue of principle – gross sum costs order made COSTS – Party/Party – whether delay occasioned in bringing interpleader motion – lengthy email correspondence between parties – persistent correspondence from plaintiff’s former tutor to judgment debtor requesting delay of filing of interpleader motion – “disentitling conduct” – whether judgment debtor promptly brought interpleader motion – no finding of disentitling conduct by judgment debtor – both respondents responsible for unreasonable incurrence of costs – apportionment of judgment debtor’s costs between respondents – respondents found equally and severally liable for judgment debtor’s costs

COSTS – security for costs – common ground that threshold question of whether there is reason to believe plaintiff will be unable to meet an adverse costs order satisfied – whether plaintiff in substance in the position of a defendant – whether order for security should be deferred until defendant pays earlier costs order

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — No reasonable cause of action disclosed

CHILD WELFARE – adoption – Aboriginal placement principles – reasonable inquiries – where children placed with non-Aboriginal carers at a time when not aware that children may be Aboriginal – where birth mother and children strongly identify as Aboriginal –where carers are raising children as Aboriginal – where Secretary of view that children are not Aboriginal – whether Secretary has made reasonable inquiries as to whether the children are Aboriginal children – whether children are Aboriginal children

CORPORATIONS – Winding up – Statutory Demand – Application to set aside – Whether there is a genuine dispute about the existence or amount of the debt – Where the statutory demands make claims in restitution based on mistake or failure of consideration in circumstances where there were no dealings or discussions between the parties – Where the factual and legal matters on which the statutory demands are based are the subject of another proceeding pending in this Court

COSTS – party/party – general rule that costs follow event – multiple discrete issues – whether decision on costs should be deferred pending reference of remaining issues COSTS – party/party – bases of quantification – indemnity basis – where offer of compromise made before hearing – defendants entitled to indemnity costs thereafter

CIVIL PROCEDURE – subpoenas – application to set aside subpoenas issued for production of large data storage devices – where production of devices to Court neither practicable nor intended by issuer of subpoenas – where access to and inspection of devices intended to occur in the United States of America – where more appropriate course was to seek preservation order under UCPR r 25.3 – subpoenas set aside and order made for preservation of property

PRACTICE AND PROCEDURE – s 134 of the Civil Procedure Act 2005 provides that certain enforcement steps not permissible after 12 years without leave of the Court – fresh action on a judgment debt – whether action an abuse of process – proceedings dismissed.

CRIME – appeals – appeal against sentence – armed robbery – where co-offender’s sentence successfully appealed – parity – where disparity between applicant and co-offender – whether justifiable sense of grievance – appeal dismissed

CRIME – appeals – appeal against sentence – by Crown against inadequacy – where the respondent pleaded guilty to an offence of dangerous driving occasioning death – where the bus driven by the respondent collided with a kerb and continued forward in an area with school children – where the bus collided with a tree and struck a student before coming to a standstill – whether the sentencing judge erred in his assessment of objective seriousness – where there was no misapplication of principle – where a custodial sentence was appropriate – where the sentence imposed bears out the finding of objective seriousness CRIME – appeals – appeal against sentence – by Crown against inadequacy – whether the sentencing judge erred in finding that the respondent “mistakenly put her foot on the accelerator instead of the brake and grappled to no avail with the handbrake” – where CCTV footage and the respondent’s evidence meant the finding was open to the sentencing judge CRIME – appeals – appeal against sentence – by Crown against inadequacy – whether the sentence pronounced is manifestly inadequate – where the sentence fell within the range of sentences contemplated in the guideline judgment – where nothing suggested a sentence within the guideline judgment was not appropriate – where the offender did not have a high level of moral culpability – where the respondent’s subjective case was strong – where there was a finding of special circumstances – where it cannot be said that the sentence lies so far outside the range of appropriate sentences that there must have been an error – appeal dismissed

CIVIL PROCEDURE – Commencement of proceedings without leave – Whether leave required under Felons (Civil Proceedings) Act 2000 – Whether a plaintiff in custody requires leave to commence civil proceedings – Where section 4 of the Felons (Civil Proceedings) Act 2000 has been incorrectly applied to a plaintiff in custody

CIVIL PROCEDURE – Commencement of proceedings without leave – Whether leave required under Felons (Civil Proceedings) Act 2000 – Whether a plaintiff incarcerated on remand requires leave to commence civil proceedings – Where a plaintiff on remand seeks to commence civil proceedings – Where an offender has previously been convicted of and served time for an offence and seeks to commence civil proceedings – Where section 4 of the Felons (Civil Proceedings) Act 2000 has been incorrectly applied to a plaintiff on remand – Whether remand is a form a custody as a result of having been convicted of, or found to have committed, any offence at all

EQUITY – Interlocutory injunctions – Interlocutory mandatory injunction for delivery up and inspection of devices EQUITY – Interlocutory injunctions – Interlocutory injunction preventing the destruction of information contained on devices of former employee EQUITY – Interlocutory injunctions – Interlocutory injunction restraining the disclosure of confidential information obtained in the course of employment following termination

CHILDREN AND YOUNG PERSONS – PARENS PATRIAE – Proceedings by plaintiffs to have children restored to their care and allocation of parental responsibility for the children to them – Where the subject children were removed from the care of the plaintiffs following receipt of allegations of sexual abuse perpetrated by the first plaintiff against another child previously in the care of the plaintiffs of which the second plaintiff was allegedly made aware but took no steps – Where those allegations have been investigated and considered to have been substantiated, and there is an extant “interim bar” placed by the third defendant preventing the plaintiffs from working with children – HELD: Not an appropriate occasion for the Court to exercise its parens patriae jurisdiction

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

SUCCESSION – Family provision – Nature of Orders

HIGH RISK OFFENDERS — Final hearing — Application for extended supervision order — Whether the defendant poses an unacceptable risk of committing a serious violence offence — Whether residual discretion should be exercised — Where there is indication the defendant will ignore conditions — Supervision order made

EQUITY – Trusts – Constructive trust – Joint endeavour – De facto relationship – Breakdown in relationship – Investment property – Purchased in co-ownership as joint tenants – nature and scope of joint endeavour – Determination of beneficial entitlements

APPEAL — question of law — Civil and Administrative Tribunal — proceedings for breach of statutory warranties implied by Home Building Act 1989 (NSW) in residential building work — six year warranty period — Owners Corporation commenced proceedings four months after expiry of six year period — whether proceeding commenced in time — Senior Member found Owners Corporation commenced within further six month period authorised by s 18E(1)(e) because breaches only became apparent in last six months of warranty period — internal appeal — Appeal Panel overturned findings of fact and found proceedings not commenced in time — whether inconsistency on the face of Senior Member’s reasons was a slip — whether Appeal Panel’s construction of reasons involved error of law BUILDING AND CONSTRUCTION — residential building work — Home Building Act 1989 (NSW), s 18E — construction of provision authorising commencement of proceedings in six months after expiry of six year warranty period — whether plaintiff bears onus of establishing facts so as to fall within s 18E(1)(e) — nature of awareness needed to be established in order to fall within section — significance of commencement of proceedings being jurisdictional

APPEALS – leave to appeal – where respondent granted summary judgment at first instance under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) – where appeal has limited practical utility – appellant identified reference to issue of costs – monetary threshold – not satisfied

BAIL – release application – break enter and steal – taking and driving a motor vehicle – driving unlicensed – offences committed whilst on bail – young person – 14 years old – s 22C test – unacceptable risk test – positive conduct in custody – motivation to address issues – strength of bail proposal – bail granted with conditions

EVIDENCE – DNA – application for an inquiry into conviction pursuant to s 78(1) of the Crimes (Appeal and Review) Act – whether s 97(1A) Crimes (Forensic Procedures) Act 2000 precludes or prevents NSW FASS from using information obtained from another jurisdiction for the purpose of DNA testing – order sought pursuant to s 97 of the Crimes (Appeal and Review) Act 2001 – retained biological material – meaning of “DNA testing”

PROTECTIVE JURISDICTION – Interplay with Equity jurisdiction – Rectification of enduring power of attorney after principal becomes mentally incapacitated – standing of applicant for rectification EQUITY – Rectification - Enduring power of attorney – Application for rectification after principal becomes mentally incapacitated – standing of applicant for rectification

APPEALS – procedure – application for stay of proceedings pending hearing of summons seeking leave to appeal – where proceedings commenced in Local Court – motor vehicle accident – where respondent admits liability – whether damages exceed the jurisdictional limit of the Local Court – whether merit in the appellant’s appeal – whether failure to grant a stay will render the appeal nugatory – consideration of the competing interests of the parties – whether grant of stay least likely to lead to an injustice

CRIME – meaning of the phrase “mental illness within the civil law of the State or Territory” in s 20BQ of the Crimes Act 1914 (Cth) – whether this is to be determined with reference only to the definition of "mental illness" in s 4 of the Mental Health Act 2007 (NSW)

CRIME — fraud — dishonestly cause financial disadvantage by deception — directions as to elements of offence — whether a further mental element applies to financial disadvantage outcome element — where point not raised below CRIMINAL PROCEDURE — trial — judge alone — character evidence — whether sufficient consideration given to own directions about character evidence — impact of prior good character on likelihood of offending CRIMINAL PROCEDURE — trial — judge alone — witness evidence — warnings — unreliable evidence — whether trial judge had proper regard to own directions as to reliability of witnesses — where witnesses may have been involved or culpable in offending conduct CRIME — appeals — appeal against conviction — unreasonable verdict — whether crown proved elements of offence beyond reasonable doubt CRIME — appeals — appeal against conviction — miscarriage of justice — whether charged conduct described differently in indictment, crown case, and trial judge’s directions — whether applicant “submitted” falsified documents to bank — whether sufficient that applicant caused falsified documents to be submitted to bank CRIME — appeals — appeal against sentence — taking into account an irrelevant consideration — misapplication of principle — fraud — whether corollary deception and breach of trust relevant CRIME — appeals — appeal against sentence — misapplication of principle — specific deterrence — whether error in conclusion that specific deterrence not mitigated by prior good character and lack of subsequent offending

SENTENCING – Appeal against sentence – Severity – Sentence manifestly excessive – Relevant factors on sentence – Objective seriousness – Sentencing statistics – Aggravating factors – Where actual bodily harm is inflicted – Where the aggregate sentence falls within the discretionary range allowed to a sentencing Judge CRIMINAL PROCEDURE – Sentencing proceedings – Whether comparable cases are relevant in determining duration of imprisonment and non-parole period – Whether comparable sentences fix an outer limit for the imposition of rational sentences

EQUITY — Trusts and trustees — Judicial advice — Application by trustee for sale for advice on construing court orders — Where orders were made by consent between parties and directed trustee on how to distribute proceeds of sale

CHARITABLE TRUSTS — Whether a charitable trust was created — Clause 2 of the deceased’s Will disclosed an initial purpose of “providing respite care for Wesley Mission and staff and those in need under the care of Wesley Mission” and a subsequent purpose of “maintaining and providing for homeless people under the care of Wesley Mission” — Declaration made that the clause created a “charitable trust” within the meaning of the Charitable Trusts Act 1993 (NSW) — Spirit of the trust — Held the spirit of the trust as a whole was to provide for those in need, including homeless people under the care of Wesley Mission WILL CONSTRUCTION — Approach to Will construction — Discussion of identification of the party appointed by the deceased to be trustee of a trust — Finding, contrary to assumption of executor, that the plaintiff was intended by the deceased to be trustee of the trust TRUSTEES — Removal of trustee — To the extent that there is any doubt that a person holds trust property as trustee, an order for removal may be made, for more abundant caution, and another party be appointed as sole trustee of the same in his stead — Order made for removal of first defendant as trustee — Not for any untoward reason but to give effect to the Will as construed, and to facilitate the trust purposes and the proper execution of the administration of the trust CHARITABLE TRUSTS — Whether the original purposes of the trust have, wholly or in part, ceased to provide a suitable and effective method of using the property, having regard to the spirit of the trust — Declaration made pursuant to section 9 of the Charitable Trusts Act 1993 (NSW) that the original purposes of the trust have wholly or in part ceased to provide a suitable and effective method of using the trust property having regard to the spirit of the trust CHARITABLE TRUSTS — Whether the Court should establish a cy-près scheme in terms of a proposed scheme — Held cy-près scheme should be ordered WILL CONSTRUCTION — Sole arbiter provision — Discussion regarding provision that (my trustees) “shall be the sole arbiters in ensuring that the spirit of this bequest is honoured and maintained throughout” (the trust period) WORDS AND PHRASES — “respite care” EXECUTORS — Completion of executorial duties —Whether named executor holding property as an express trustee or trustee de son tort/constructive trustee COSTS — Whether it is appropriate to make an award for costs in favour of the Attorney General — Further issues as to the basis of costs and the fund out of which costs is to be paid — Held the Court was assisted by the submissions on behalf of the Attorney General and in the circumstances of the case costs of all parties should be paid on an indemnity basis out of the subject matter of the dispute being, consequent upon the other orders made, the proceeds of sale of the property in question rather than out of residue

PRACTICE AND PROCEDURE – application by plaintiff’s former wife for leave to appear for him as lay representative in appeal from Local Court – plaintiff in need of representation by reason of medical condition and written language limitation – no suggestion that plaintiff cannot afford representation by a lawyer – plaintiff does not have faith in lawyers – application dismissed

CORPORATIONS – charges, debentures and other borrowings – security interests – where a portion of payout figure for release of securities was disputed – where applicants proposed to pay the undisputed portion to the secured creditor and the disputed portion into court - whether secured creditor should be required to release securities on those payments being made – whether Registrar should be appointed to execute documents in the event of secured creditor’s non-compliance

COSTS – security for costs – legal nature of the plaintiff – where co-plaintiff is an individual, but company is the true plaintiff – where plaintiff did not in substance address the defendant’s application – where stay of proceeding if security is not provided

CIVIL PROCEDURE – default judgment – where the Plaintiff brings a claim against the Second Defendant for restitution – whether Part 16 of the Uniform Civil Procedure Rules 2005 (NSW) can be applied by analogy. COSTS – party/party – costs orders in interlocutory proceedings – where the Fifth Defendant filed a notice of motion but took no steps to progress - whether the motion should be dismissed with costs.

CRIME – sentencing – manslaughter – unlawful and dangerous act – where offender homeless and itinerant – where deceased not previously known to the offender – whether offender appreciated his actions posed a risk of serious injury – whether offender left the deceased in need of medical assistance – offer to plead guilty before committal – significant background of deprivation and disadvantage – effect of background on moral culpability – moral culpability and requirement for general and specific deterrence diminished – genuine remorse

EQUITY — Trusts and trustees — Breaches of trust EQUITY — Fiduciary duties — Breach — Conflict of interest and duty SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for removal SUCCESSION — Executors and administrators — Rights, powers and duties

CIVIL PROCEDURE – negligence proceedings – historical sex abuse – cross-claim by State for contribution or indemnity from former school teacher – leave sought to rely upon supplementary witness statement not served in accordance with case management directions – whether late service of statement causes ‘unfair prejudice’

CONTRACTS – Interpretation – Commercial lease – No question of principle.

COSTS – the plaintiff, an equal beneficiary of a deceased estate with four other beneficiaries, brings proceedings for further provision out of the estate under Succession Act 2006 – the defendant/executor is successful in setting aside a gift of $200,000 made by the deceased to the plaintiff shortly before the deceased’s death – the plaintiff’s claim for further provision is successful only in compensating the plaintiff for the value of the estate’s chose in action to set aside the $200,000 gift but otherwise fails – costs were reserved – the plaintiff now seeks payment of her legal costs of the proceedings out of the estate – whether any costs order should be made in favour of the plaintiff – whether a costs order should be made in favour of the defendant – whether the plaintiff should bear her own costs of the proceedings.

EQUITY – assignment – of causes of action – where liquidator of company associated with the defendants entered deed of assignment with plaintiff – where plaintiff as assignee seeks to recover from defendants on various bases – whether causes of action regarding voidable transactions, fiduciary duties, statutory directors’ duties, and general law directors’ duties capable of assignment CORPORATIONS – directors and officers – de facto directors – where first and second defendants were directors of company but played no role in company’s affairs – where plaintiff contends third, fourth, and fifth defendants acted in the position of directors of the company – where defendants admitted that third and fourth defendants were directors – whether fifth defendant acted in the position of director CORPORATIONS – winding up – voidable transactions – where plaintiff contends payments to defendants and related parties from company were unfair preferences or unreasonable director-related transactions or otherwise voidable – where defendants contend payments were loans

CRIME – APPEALS – Crown appeal against sentence – persistent sexual abuse of a child – s 66EA of the Crimes Act – particularisation of individual incidents during the course of a sexually abusive “relationship” – where sentencing judge misapprehended that he had to be satisfied of each incident beyond reasonable doubt – resentencing where sentencing judge did not make an express finding as to reliability of a witness – remittal to sentencing judge

CRIME – Appeals – Appeal against sentence – error by primary judge when backdating the commencement date of the sentence to the expiration of a non-parole period imposed for a separate sentence – whether error could be remedied by simple adjustment or whether the error required the court to re-exercise the sentencing discretion – whether error constituted a Kentwell error – principle of totality – re-sentencing required – Court not satisfied a lesser sentence warranted at law – sentence backdated to correct date of expiration of the non-parole period of the separate sentence

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.

CIVIL PROCEDURE — Discovery — General discovery — Documents relevant to a fact in issue — Preferable to discovery categories in some cases — Overzealous argument over multiple categories and their application inconsistent with achieving overriding purpose — Practice Note SC Eq 11

EQUITY – subrogation – lender advances money on basis that it would receive registered mortgage over property – due to irregularities in transaction lender unable to have its mortgage registered – lender claims entitlement to be subrogated to existing mortgage – appropriate case for subrogation orders to be made – no question of principle

CRIMINAL LAW – murder – fitness inquiry – fitness to be tried – orders made under s 49(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) – referral to Mental Health Review Tribunal

COSTS – costs order – whether proceedings in substance adversarial or in relation to administration of a trust - where plaintiff’s claim has failed – no question of principle

EQUITY – unconscionable conduct – recovery of monies paid from elderly mother’s account to carer son – whether mother was under a special disadvantage – whether this impacted her ability to make a judgment that is in her best interests – whether son took unconscionable advantage – whether transactions were fair, just and reasonable – no question of principle CONTRACTS – unjust contract – whether agreement supported by consideration - whether agreement voidable at general law or under Contracts Review Act 1980 (NSW) – agreement between elderly mother and carer son to transfer funds – funds then used to pay refundable accommodation deposit in nursing home – deposit then refunded to son upon mother’s death via estate – finding that the agreement was an unjust contract EQUITY – breach of fiduciary duty – son appointed enduring power of attorney – various transactions carried out purportedly by elderly mother – whether son was subject to usual fiduciary duties having accepted power of attorney – whether breach of fiduciary duties by obtaining unauthorised benefit and being in a position of conflict

EVIDENCE – murder – various evidentiary rulings – category of evidence relating to the asserted “familiarity and affinity” of the accused with the murder weapon – prejudicial nature of the evidence – hearsay evidence of the deceased – whether the evidence is based on representations made by the accused – whether the representations involve admissions – second-hand hearsay – consideration of the preconditions to admission of evidence under s 65 – whether the evidence of debts owed to the accused are relevant – whether probative value of the evidence is outweighed by the danger of unfair prejudice