Cases and authorities

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

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

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

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.

HIGH RISK OFFENDERS – extended supervision order – interim order – order agreed – conditions agreed – orders made – conditions attached

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

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

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.

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

ENVIRONMENT AND PLANNING – offences – unlawful disposal of asbestos waste – summons wrongly stating date of commission of offence – stated date preceded date on which offence commenced – summons dismissed as not disclosing offence known to law – appeal – misconstruction and misapplication of applicable statutes APPEAL – dismissal of summons as not disclosing offence known to law – summons wrongly stated date of commission of offence – stated date preceded date on which offence commenced – misconstruction and misapplication of Criminal Procedure Act 1986 (NSW) – decision not to allow amendment of summons to correct date – misunderstanding of applicable power to amend - misunderstanding of prosecutor’s argument as to how offence committed

STATUTORY INTERPRETATION – proper construction of s 114(3)(d) of the Law Enforcement Conduct Commission Act 2016 (NSW) – whether Commissioner of Police can object to production of documents to the Law Enforcement Conduct Commission relating to a critical incident investigation on grounds of public interest immunity – whether public interest immunity abrogated by necessary intendment

CRIMINAL LAW - appeal against sentence - dishonestly obtaining financial advantage by deception - fresh evidence relied upon on appeal - heart condition - sentenced on expectation he wold receive particular level of medical care in custody - alleged failures by Justice Health - provision of medication - issues with heart transmission device - fresh evidence not indicative of a standard of medical care below expectation of sentencing judge - stable prognosis - appeal dismissed

CRIME – appeal – appeal against sentence – whether sentencing judge erred in failing to consider the effect of the applicant’s youth on the offending – relevance of youth – applicant’s age – multiple property and violence offences – strong subjective case – disadvantaged upbringing – where the applicant had received “little caregiver supervision during adolescence to positive[ly] guide his social and moral development” – Bugmy principles enlivened to a significant extent – youth and childhood deprivation are separate considerations – totality – complex sentencing exercise – instinctive synthesis – consideration of the Henry guideline – “indicia of adult behaviour” an unhelpful appellation – manifest excess – error found – sentencing discretion exercised afresh – re-sentence

CRIME – appeals – appeal against conviction – unreasonable verdict – whether verdict of not guilty on one count was inconsistent with verdict of guilty on the other count and thus the guilty verdict was unreasonable – whether verdict of not guilty only explicable on basis that the jury rejected or had at least a reasonable doubt about the complainant’s credibility – there was a rational explanation for the verdict of not guilty that did not depend on rejecting or having a reasonable doubt about the complainant’s credibility – appeal against conviction dismissed

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 – subpoenas – costs of compliance – whether costs were reasonably incurred

CIVIL PROCEDURE – discovery – affidavits of discovery – whether deponents of affidavits of discovery should be available for cross-examination

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

LAND LAW – possession of land – application to stay writ of execution – no point of principle

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

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.

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.

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

HIGH RISK OFFENDERS – application for interim supervision order – serious violence offences – interim orders made

APPEAL AND REVIEW – leave to appeal – proposed appeal from judgment dismissing judicial review proceedings – review of order by State Parole Authority revoking parole –– whether Authority satisfied of breach of parole condition – application of Crimes (Administration of Sentences) Act 1999 (NSW), s 170(1)(a) – whether order legally unreasonable

BAIL – Aboriginal juvenile – observations on the application of s 22C of the Bail Act 2013 (NSW) – bail granted

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.

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

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

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

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

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

LEGAL PRACTITIONERS – disciplinary proceedings – misappropriation of large sum from solicitors’ trust account – conduct extending over six years – failure to make full and frank disclosure when conduct exposed – practitioner convicted of fraud offences –sentenced of imprisonment served – whether fit and proper person to be on the Roll of Australian Lawyers

CRIME – appeals – appeal against sentence – aggregate sentence of 9 years imprisonment, with a non-parole period of 5 years and 4 months for 12 offences of dishonestly obtaining financial advantage by deception – whether sentence manifestly excessive – highly favourable subjective case – early plea of guilty – assistance to authorities – total fraud in excess of $3.3 million – offending took place over some 3½ years – many victims elderly – substantial financial harm and emotional distress inflicted on victims – consideration of comparable cases – appeal dismissed

CRIMINAL APPEALS – District Court convicting of summary or back up offence after trial – appeal under ss 5AD and 5AA Criminal Appeal Act – appeal in strict sense – where error of law must be established – amended grounds of appeal – where appellant convicted of negligent driving occasioning death – appellant a police officer involved in pursuit of motorbike – whether judge erred in failing to determine whether she took into account course of driving – where judge referred to earlier driving but found negligence at the time of the collision – no substance to ground of appeal – whether judge erred in finding negligence where there was no evidence that appellant failed to keep a safe distance – ample evidence to justify finding – whether primary judge took into account an irrelevant consideration – police safe driving policy – appellant’s knowledge of driving in breach of part of policy and pursuit guidelines – whether judge did not refer to other breaches of the policy – whether judge failed to provide adequate reasons – judgment brief but provided amply adequate reasons

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 – 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

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

CORPORATIONS — winding up — proceedings against company in liquidation — application under s 500(2) of the Corporations Act — where plaintiff asserts it paid company money for the express purpose of paying third party suppliers — where plaintiff asserts that money was held on trust —where plaintiff seeks leave to proceed against company and/or third parties for restitution — whether the claim as stated is proprietary or personal — whether the claim can be resolved through the proof of debt procedure — where the grant of leave would not prejudice the company’s creditors

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

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

EQUITY – Account – whether obligation to account released by clause contained in a deed of consent to transfer of a sublease – construction of releases.

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

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

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].

APPEALS – leave to appeal – orders under s 8 of the Vexatious Proceedings Act 2008 (NSW) – whether leave required – orders interlocutory – leave required under Supreme Court Act 1970 (NSW), s 101(2)(e) APPEALS – leave to appeal – whether appeal involves issue of principle, question of public importance or reasonably clear injustice – no issue of principle or question of public importance raised – no arguable errors

APPEALS – leave to appeal – where none of proposed grounds identifies arguable error and no issue of principle or question of public importance – leave refused APPEALS – practice and procedure – appeal dismissed by judge of appeal as “incompetent” – application for review under Supreme Court Act 1970 (NSW), s 46(4) – where applicant had sought to file summons seeking leave to appeal but did not make judge aware of that fact – order dismissing appeal not “plainly wrong” on facts as disclosed – no utility in setting aside order where no material difference between notice of appeal dismissed as “incompetent” and proposed appeal for which leave refused