Cases and authorities

CIVIL PROCEDURE – Pleadings – Amendment – Form and content of pleading – Defects – Striking out – Tendency to cause prejudice, embarrassment or delay – Abuse of process – Exemplary damages – Whether the phrase “practice or pattern of conduct” is sufficiently specific as to clearly identify the case to be met by a defendant – Whether the absence of precision in a Statement of Claim where there is no pleading of material facts to clarify constitutes grounds to strike out a pleading or part of a pleading – No point of principle

LAND LAW – Strata title – Construction of poorly drafted by-law – Heading of by-law at least part of context in which terms to be construed whether or not part of by-law and whether or not by-law regarded legislative in character – By-law in question does not encompass approval of relevant works – By-law could not authorise strata committee to approve works that are not minor renovations LAND LAW – Strata title – No reason why special resolution referred to in s 108(2) authorising change to common property cannot take form of special resolution passing a by-law – Possible challenge of failure to pass such by-law under s 149 does not preclude application under s 126(2) – Tribunal has no power to make order under s 126(2) of the Strata Schemes Management Act 2015 (NSW) to retrospectively approve owner’s work on common property unless consent for work has been sought from owners corporation – Refusal of consent may be constructive LAND LAW – Strata title – Powers and obligations of owners corporation – Owners corporation may undertake repairs to common property without need for resolution at general meeting – Owners corporation may give approval to work already done on common property – Insofar as damages or compensation can be claimed under s 106(5) or other provisions for work by lot owner to repair common property then they cannot be claimed for works not approved in required manner by owners corporation or Tribunal

HIGH RISK OFFENDER – final hearing – application for extended supervision order (“ESO”) – where previous ESO was breached – dispute as to whether the Court should make an ESO – whether unacceptable risk of committing another serious sexual offence – dispute regarding the necessity of proposed ESO conditions – ESO imposed for two years with conditions

COSTS – Indemnity costs – Calderbank offer – where offer made between primary judgment and appeal hearing – whether rejection of offer unreasonable – whether to include post-judgment interest in determining whether offer is less favourable – whether post-judgment interest accrues from date of primary or appeal judgment

CIVIL PROCEDURE – Interpleader – Sheriff – whether interpleader required to be brought by Sheriff’s alternate – whether proceedings are one to which the Sheriff is a party for the purposes of s 6(1)(a) of the Sheriff Act 2005 (NSW) – whether contravention of s 6 of the Sheriff Act 2005 (NSW) requires mandatory dismissal of proceedings – Summons dismissed with costs STATUTORY INTERPRETATION – Construction of s 6(1) of the Sheriff Act 2005 (NSW) – whether reference to “the Sheriff’s functions in relation to” refers to the function of commencing or maintaining legal proceedings to which the Sheriff is a party

EQUITY - equitable charges and liens – where debtor emails creditor offering a pledge of units in trust – where creditor does not accept pledge – whether debtor conferred an equitable charge over units as security for repayment of loans – whether the claim for an equitable charge fails under the requirements for signed writing in s 23C(1)(c) of the Conveyancing Act 1919 (NSW) EQUITY - trusts and trustees - unit trusts - whether trustee obliged to process redemption request in amount claimed by appellants

COSTS – security for costs – relevant factors – where application made by defendant builder that plaintiff owners corporation provide security – whether reason to believe owners corporation could not meet adverse costs order – whether security should be ordered as a matter of discretion – where defendant builder contended that plaintiff owners corporation’s financial records were inaccurate as not having made provision for repair of defects necessary to ensure safety – whether implicit in that contention that such defects in fact exist COSTS – security for costs – owners corporation – factors relevant to determination of whether there is reason to believe an owners corporation could not meet an adverse costs order CORPORATIONS – corporate character – nature of an owners corporation – difference between owners corporation and ordinary corporations

CHILD WELFARE – Parens patriae jurisdiction – Application by Local Health Authority for orders authorising administration of blood products to child if necessary during surgical procedures for resection of brain tumour – Child’s parents consent to surgical procedures but withhold consent to the administration of blood products which is contrary to their faith – Best interests of child.

CONTRACTS – formation – acceptance of offer – agreement by defendant to purchase plaintiff’s units in unit trusts – agreements for the sale of the units for specified consideration - further deed expressed to provide additional consideration for the sale – whether defendant executed that deed – when defendant executed that deed – whether that deed is binding on the defendant

CIVIL PROCEDURE – expert evidence – negligence claim regarding treatment of stroke patient – leave sought to rely on an additional expert report – where multiple experts are already engaged – where expert has a ‘subspecialty’ – where concern about disruption, expense and delay is raised

CONTRACTS — Formation — Agreement — Whether plaintiff executed deed of agreement— Where plaintiff denies signing deed — Where expert evidence from forensic document examiner is that signature is authentic — Where lay and documentary evidence is that plaintiff signed deed CONTRACTS — Construction — Interpretation — Whether deed rescinded prior oral agreement by implication — Whether deed requires payment for goodwill CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Whether deed ought to be set aside — Whether compensation should be awarded — Whether reasonable expectation of disclosure arose for defendant to disclose to plaintiff payments where plaintiff and defendant are brothers and both directors of family company — Whether plaintiff misled by proposed valuation of business — Where same conduct said to be unconscionable VALUATION — Methods of valuation — Whether provisioning for capital gains tax appropriate — Whether valuation on asset or valuation on income approach preferrable — Where valuation made for purposes of separating interests in family company CORPORATIONS — Members’ rights and remedies — Oppression — Whether failure to disclose payments or failure to make particular payments equally to shareholders oppressive — Whether plaintiff has standing as a person who has ceased to be a member of company CORPORATIONS — Constitution — Whether alleged failure to pay distributions equally is a breach of company constitution

HIGH RISK OFFENDER – Interim Supervision Order – conditions – least intrusive conditions consistent with risk – what conditions are likely to be effective – interrelationship of conditions – Court should not impose conditions that have the effect of criminalising minor behavioural irregularities

APPEALS — application for leave to appeal — where applicant sought reduction of amount in payment claim served by respondent on account of an upfront payment made before the payment claim was served — whether defence alleging upfront payment as reduction was a defence prohibited by Building and Construction Industry Security of Payment Act 1999 (NSW), s 15(4)(b)(ii) or whether it raised a matter which was required to be taken into account to determine the unpaid portion of the claimed amount — leave, if required, refused — otherwise appeal dismissed

SENTENCING — appeal against sentence — general principles — instinctive synthesis — where sentencing judge failed to adopt the ‘instinctive synthesis’ approach to sentencing SENTENCING — appeal against sentence — where applicant sentenced in 2015 — extension of time to appeal — not opposed SENTENCING — relevant factors on sentence — objective seriousness — parity — hardship to applicant’s family SENTENCING — relevant factors on sentence — discount on sentence — plea of guilty — cooperation with law enforcement agencies in the investigation of the offence

CRIME – Appeals – appeal against sentence – plea of guilty – willingness to facilitate the course of justice – failure to address submission – expert evidence re relevance of ADHD not challenged – denial of procedural fairness in rejecting expert evidence – challenge to finding of role in hierarchy – error established – applicant re-sentenced

CRIME – appeals – appeal against sentence – whether there was a failure to consider hardship of incarceration – whether sentence manifestly excessive

CRIME – appeals – appeal against conviction – whether miscarriage of justice occasioned as applicant could not in law have been convicted of the common law offence of escaping from lawful custody – whether common law offence of escaping is a continuing offence – where applicant was in the process of escaping from police – whether there is a temporal limitation to the offence – whether R v Tommy Ryan should no longer be followed CRIME – appeals – appeal against sentence – whether error in commencement date of aggregate sentence CRIME – appeals – appeal against sentence – whether incorrect maximum penalty applied for driving whilst disqualified offences – where maximum penalty of the offences was reduced following amendments made to the Road Transport Act 2013 (NSW) in 2017 – where error conceded CRIME – appeals – appeal against sentence – whether leave should be granted to advance further ground of appeal – whether error in the judge finding that applicant was not sexually abused in juvenile detention – where fresh and new evidence on appeal of applicant’s sexual abuse – where absence of that material during sentencing proceedings deprived the judge of fully appreciating and considering applicant’s sexual abuse – whether miscarriage of justice

CRIME – appeal against convictions – judge only trial – dishonestly destroy property by fire – dishonestly obtaining financial advantage – dealing with proceeds of crime – applicant was convicted of destroying his own house by fire – applicant’s expert evidence not accepted – adverse credibility findings against applicant CRIME – appeal against convictions – incompetence of counsel – whether counsel unprepared and failed to obtain critical evidence – refusal to waive privilege CRIME – appeal against convictions – further expert evidence – motion to tender new evidence – whether applicant’s new evidence available at time of trial – application refused

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 – management and administration – orders sought for modification of operation of Corporations Act s 443A for limitation of administrators’ liability in respect of relevant borrowings – whether the funding arrangement is in the interests of the company’s creditors CORPORATIONS – charges, debentures and other borrowings – security interests – registration – extension of time – where the security agreements creating the security interests are to be entered on a date after the appointment of administrators – whether it is necessary to make an order under s 588FM – whether, in the absence of intermediate appellate authority determining this issue, it is just and equitable to make an order under s 588FM

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.

INSOLVENCY – Recognition of foreign proceedings under the Model Law.

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

COSTS – Party/Party – General rule that costs follow the event – Proceedings discontinued or dismissed – plaintiff brings proceedings for the production of documents by the defendants – plaintiff claims he needed the documents to discharge his duties as a director of two companies – defendants are alleged to have withheld documents and only produced them on a piecemeal basis after proceedings commenced – Court appoints receivers and managers to manage the affairs of both companies after the proceedings were commenced – plaintiff no longer wishes to pursue the relief in the proceedings as a result of the appointment of the receivers and managers – defendants accept that the proceedings should no longer be continued – defendants seek an order that each party should bear its own costs of the proceedings – plaintiff seeks an order that the defendant pay the plaintiff’s costs – whether one or other party conducted themselves unreasonably – whether one or other party was likely to have been successful in the proceedings.

REAL PROPERTY – Conveyancing – Section 37A of the Conveyancing Act 1919 (NSW) – Alienation of property – Intention to defraud creditors – where plaintiff advanced moneys to company – where director of company guaranteed company’s obligations in his own right and as trustee of trust – where only asset of trust was a block of land – where land was transferred by the director to his mother, the first defendant, on the same day that the company entered voluntary administration – where director became bankrupt and second defendant was appointed trustee in bankruptcy - whether property was transferred to first defendant for valuable consideration – whether property was transferred to first defendant with intent to defraud creditors – whether first defendant was a purchaser in good faith not having, at the time of the transfer, notice of any intent to defraud creditors EQUITY – Trusts and Trustees – Trust Instruments – Amendment – whether purported addendums to trust instrument appointed first defendant as trustee of the trust - whether purported addendum appointed third party as trustee of the trust

CONTRACT – construction – construction of agency agreement – standard form agreement – remuneration clause – option deed entered into during exclusive agency period – option exercised after expiry of exclusive agency period – whether agent entitled to remuneration

SUCCESSION – Family provision – Claim by adult son for further provision out of the estate of his deceased mother – Where the plaintiff had a close relationship with the deceased, but did not consistently maintain frequent contact with her throughout his adult life and made no contribution to the care of the deceased – Discerning the deceased’s testamentary intentions there was a material change in the assets that would form part of her estate after the making of her last will, and where the plaintiff and defendant gave conflicting evidence of her intentions said to have been expressed by the deceased in separate conversations that she had with each of them – Defendant executor’s exposure to risk of personal liability to restore to the estate funds paid to beneficiaries at a time when the executor was on notice of the plaintiff’s family provision claim.

CORPORATIONS – receivers and managers – appointment by court – appointment as receiver without security – where companies in liquidation did not operate any business other than in their capacity as trustees of their respective trusts – recourse for Receiver to assets of corporation for costs and expenses

CIVIL PROCEDURE – Approval of settlement of proceedings pursuant to s 76 of the Civil Procedure Act 2005 (NSW) – No issue of principle – Settlement approved

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Whether plaintiffs’ rejection of offer of compromise unreasonable SUCCESSION — Family provision — Nature of orders — Orders for provision – Right to occupy house until youngest child finishes school

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether there is a genuine dispute about the existence or amount of the debt

CONTRACT – Construction – Where the terms of a written Business and Asset Sale Agreement for a wine distribution business including in New Zealand make provision for the defendants or an affiliate to provide transitional distribution in Territories which must be identified in written notification given by the plaintiffs to the defendants – Whether, on the proper construction of the provision, New Zealand can be included in such a notice – HELD: it can

HIGH RISK OFFENDER – Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – s 5B(d) – whether parole conditions should be imposed under an Interim Supervision Order – disputed conditions

CRIME – appeals – appeal against sentence – where the applicant pleaded guilty to one count of sexual intercourse without consent – where the offence was aggravated by its occurrence in the victim’s home – where the sentencing judge incorrectly concluded that the applicant was on bail for other offences – re-sentence – whether a lesser sentence is warranted – where applicant comes from a deprived background – where applicant has low level cognitive intellectual capacity – where the applicant failed to express remorse – where prospects of rehabilitation are guarded – where there was a finding of special circumstances – where the original sentence was lenient – no lesser sentence imposed – appeal dismissed

CIVIL PROCEDURE – subpoena to produce documents or things – abuse of process – precipitous issue of subpoenas – subpoenas issued before pleadings filed and not justified by issues in interlocutory dispute

HIGH RISK OFFENDERS — Interim Supervision Order — Preliminary hearing

EQUITY – trusts and trustees – constructive trusts – property owned by respondent sold to the appellant trustee company controlled by respondent’s son – whether joint endeavour between respondent and son pursuant to which respondent could continue to reside at property after sale – where following sale respondent provided funds to cover costs associated with property and renovations – application of principles in Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 – challenges to findings as to existence of joint endeavour and end of joint endeavour without attributable blame of respondent EQUITY – remedies – constructive trust on basis of failed joint endeavour – constructive trust for sale of property and division of net proceeds – form of declaration – return of contributions – sharing of surplus

CRIME – Appeals – appeal against sentence – multiple prohibited drugs and firearms offences – aggregate sentence – manifest excess – totality

CRIME – Appeal – appeal against sentence – error in having regard to Form 1 in assessment of objective seriousness for principal offences – where error conceded - resentence

CRIME — appeals — appeal against conviction — application for leave to appeal — where applicant convicted of 3 sexual offences under authority — where application for complainant to give further evidence by way of cross-examination pursuant to s 306J of the Criminal Procedure Act 1986 (NSW) refused by trial judge — where further evidence only relevant to credibility of complainant — whether further cross-examination of complainant “could substantially affect the assessment of the witness” (s 103(1) Evidence Act 1995 (NSW)) CRIME — meaning of “good character” — positive (good works) and negative aspects (absence of prior convictions or lack of history of criminal or blameworthy conduct) — depends on context SENTENCING — appeals — appeal against sentence — application for leave to appeal — mitigating factors — good character — where applicant had prior criminal history but no convictions — where trial judge ruled applicant not entitled to leniency on sentence otherwise available to person of good character because of criminal history

CRIME — Appeals — Appeal against sentence — Manifest excess — whether failure to apply correct principle with respect to the quantification of a discount for the applicant’s pleas of guilty — s 16A(2)(f) of the Crimes Act 1914 (Cth) — contrition involving facilitation of the course of justice — no lesser sentence warranted

CRIME – appeals – appeal against sentence – manifest excess – where the applicant was sentenced for 2 counts of supplying not less than a large commercial quantity of lysergide (LSD) – whether sentence was unreasonable or plainly unjust

CIVIL PROCEDURE – Commencement of proceedings without leave – Whether leave required under Felons (Civil Proceedings) Act 2000 – Whether a plea of guilty amounts to an offender being “found to have committed” the offence – Where an offender has entered a plea of guilty and seeks leave to commence civil proceedings – meaning of “serious indictable offence”

CIVIL PROCEDURE – pleadings – amendment – late application for amendment – where plaintiff served evidence-in-chief concerning alleged defects based on inspection of some of likely affected units – where plaintiff adduced evidence that such defects likely to be systemic – where lengthy settlement negotiations followed but were not successful – where plaintiff, with consent of defendant, served extensive further evidence – whether plaintiff should have leave to amend its List Statement to reflect that evidence – whether adequate explanation for delay LIMITATION OF ACTIONS – where pleadings to be amended to incorporate further allegations of defect and causes of action – where amendments arise out of same or similar facts – whether Court should order that amendments take effect only from the date of application to amend

CRIME – manslaughter – retrial – plea to manslaughter on charge for murder CRIME – sentencing – apprehended bias – credibility of offender – disqualification from hearing and determining sentence

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 – application to set aside a notice to produce documents and a subpoena to produce documents – where parties have not served evidence ordered by court – where defendant claims that evidence is not materially relevant, lacks a legitimate forensic purpose and may breach confidentiality – application dismissed CIVIL PROCEDURE – costs – application for further security for costs – where material change in circumstances established – where considerably longer hearing fixed – where damages sought considerably increased – where defendant is in breach of the Court’s orders to serve evidence –further security ordered

HIGH RISK OFFENDER – Preliminary hearing – limited nature of the test to be applied at preliminary hearing – whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO – whether the matters alleged in the supporting documentation establish an unacceptable risk of commission of a serious violence offence as well as a serious sex offence – preconditions for the making of an order of appointing two qualified psychiatrists or psychologists established

CRIMINAL PROCEDURE – applications for a certificate pursuant to the Costs in Criminal Cases Act 1967 (NSW) – where each applicant acquitted of charges of murder and manslaughter by the jury – where the Crown case relied primarily on the evidence of one eyewitness – where in relation to one of the applicants the eyewitness had lied about his involvement – where the investigating police failed to properly investigate the eyewitness’s false account – whether if the prosecution had all relevant facts it would have been reasonable to institute proceedings – application granted with respect to one of the applicants – application dismissed in relation to the remaining applicants

RELEASE OF FUNDS HELD IN INTERLOCUTORY REGIME – dispute about sale of business – purchase price held in trust account under interim orders – contract binding – whether trust monies should be released to vendor. COSTS – defendant failed to comply with discovery obligations – whether “delinquency” – principles at [31] – Calderbank offers – principles at [33]-[34] – whether plaintiff achieved better outcome – too early to say – revisit after damages or account of profits determined.