Cases and authorities

CORPORATIONS – Debt – Application to set aside a creditor’s statutory demand – Whether a genuine dispute or offsetting claim exists – Where terms of contract between parties are contested. CORPORATIONS – Statutory demand – Application to set aside – whether “Graywinter principle” applies.

CIVIL PROCEDURE – possession – application for stay of possession – application dismissed

COSTS — party/party — general rule that costs follow the event — application of the rule and discretion — application for alternative order to reflect partial success — application dismissed

COSTS – party/party – exceptions to general rule that costs follow the event – Calderbank offers – whether it was unreasonable for the defendants/cross-claimants not to have accepted the offers – whether the offers ought to have specified why the defendants’/cross-claimants’ cross-claim was without merit COSTS – party/party – exceptions to general rule that costs follow the event – offer of compromise – where an offer of compromise was made by plaintiff and cross defendants pursuant to UCPR r 20.26 to settle the claim and cross-claim for $200,000 – where the plaintiff completely successful on claim and cross-defendants were substantially successful on the cross-claim – whether the offer was to compromise “any” claim in the proceedings – whether the offer identified the claim to which it related – whether offer capable of acceptance – whether possible to ascertain whether the result was no less favourable than the offer

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.

CONTRACTS – Application to set aside deed of settlement under Pt 1C of the Civil Liability Act 2002 (NSW) – Where plaintiff previously entered into deed of settlement in relation to historical sexual abuse claim – Where parties agree that the deed of settlement is an affected agreement – Whether it is just and reasonable to set aside deed of settlement – Where plaintiff was advised not to settle his claim – Where legal barriers were not material to plaintiff’s decision to settle his claim STAUTORY INTERPRETATION – Legislative purpose – Remedial legislation – Extrinsic materials – Second reading speeches – Retrospective legislative amendment removing barriers to child abuse claims – Determining purpose and effect of legislative amendments – Consideration of similar legislation in other jurisdictions – Whether it is just and reasonable to set aside deed of settlement – Whether requirement to certify reasonable prospects of success under s 347 of the Legal Profession Act 2004 (NSW) is a legal barrier under Pt 1C of the Civil Liability Act 2002 (NSW)

EQUITY – remedies – declaration of express trust over half interest in shares, units in unit trust and properties – consequential orders – transfer of shares and units – appointment of trustees for sale of properties – accounts and inquiries – income derived from trust assets – potential for tracing – form of orders for account and inquiry JUDGMENTS AND ORDERS – variation – slip rule – reasons for judgment – form of declaration of trust – starting date for calculation of pre-judgment interest on unpaid distributions from discretionary trust CIVIL PROCEDURE – injunctions – consequential on final orders – order for transfer of shares and units in unit trust – injunction against dealing with shares and units pending transfer – order for payment of monies – asset preservation order pending satisfaction – stay pending appeal

HIGH RISK OFFENDER – interim supervision order – where no issue is taken with the making of the order – the Court is required to be independently satisfied of the statutory preconditions – dispute as to appropriate conditions – balancing the intrusion on a defendant’s liberty and privacy with the safety of the community, which must be given primacy – order made – conditions amended

ADMINISTRATIVE LAW — Whether applicant denied procedural fairness — Where nothing in transcript of hearing under review demonstrates that applicant was unable to put what he wished before the Court — Summons dismissed.

PRACTICE – application for adjournment – separate proceedings challenging separate decisions of District Court concerning apprehended domestic violence orders – one decision refused an order sought by husband against estranged wife – other decision granted an order sought by wife against estranged husband – husband sought judicial review of both decisions – whether proceeding set down for hearing months earlier should be vacated so as to be heard together with other proceeding which did not have a hearing date – despite parties to proceedings being same, each raised different issues and turned on different evidence – application refused

EVIDENCE – privileges – client legal privilege – legal professional privilege – legal advice – litigation – action by client against former solicitors – where there would be an inconsistency between the tender of the document and maintenance of privilege – privilege over some but not all documents waived

CORPORATIONS – Unfair preferences – Two creditors paid by company- A third creditor paid by third party – Whether payment received “from the company” within s 588FA(1)(b) of the Corporations Act 2001 (Cth).

CIVIL PROCEDURE – discovery – objection to inspection of documents by court – s 133 Evidence Act – court’s power to inspect engaged where a question relating to a document arises under Part 10 Evidence Act – primary purpose of court’s inspection is to ascertain whether privilege claim is established

CORPORATIONS – Winding up – Application by interested party – Order sought that the Australian Securities and Investment Commission deregister the company on a specified future date under s 509(2) of the Corporations Act 2001 (Cth) – Where the interests of interested party will be adversely affected if deregistration is not delayed – Where the liquidators appointed to the company had previously given notice that they had ceased to hold office.

CIVIL PROCEDURE – parties – identity of parties – non-publication of a parties' name or identity – where orders are necessary to protect the safety of the plaintiff – plaintiffs permitted to commence and carry on proceedings using a pseudonym

PRACTICE AND PROCEDURE – interim preservation – ex parte application for freezing order – where Court satisfied of prima face case or good arguable case so as to grant a freezing order

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

PRACTICE AND PROCEDURE – reagitation of issues already determined by Court.

HIGH RISK OFFENDERS — Extended Supervision Orders — Preliminary hearing

CORPORATIONS — winding up — creditor’s statutory demand — application to set aside statutory demand — Corporations Act 2001 (Cth) ss 459H and 459J — whether there is a defect in the statutory demand — whether the defect causes substantial injustice — whether there are genuine offsetting claims — whether there is a genuine dispute about the existence or amount of debt — HELD — no grounds to set aside the statutory demand

TORTS – malicious prosecution – institution of proceedings – circumstances in which a private person may be considered a prosecutor – whether defendants instigated the prosecutions against the plaintiff by providing false statements to police – whether defendants maintained the prosecutions by giving false evidence and procuring witnesses to do the same TORTS – malicious prosecution – damages – heads of damages – where plaintiff claims he suffered anxiety and major depression as a result of his incarceration – whether an award of aggravated and exemplary damages would have been appropriate

CORPORATIONS – winding up – application for leave to proceed against company in liquidation – where unlikely that liquidators will be in a position to declare a dividend and accordingly adjudicate on any proofs of debt lodged in winding up – where liquidators have received and are considering offers for the purchase of the assignment of the company’s chose against a third party – whether in these circumstances there is good reason to grant leave to proceed

COSTS - two long-running proceedings between solicitors and a former client – the “active” (in which the substantive issues were argued) phase of the two proceedings concluded many years ago – the active phase concluded with orders for costs against the solicitors on the ordinary basis – since then the Court has considered issues in relation to costs, including whether indemnity costs are payable by the former client, whether the recovery of costs by the solicitors is precluded by reason of the operation of the principles in Bell Lawyers Pty Ltd v Pentelow , and whether the solicitors could prove the costs owing to them on the materials provided – these issues determined in a judgment given in November 2022 – the solicitors had considerable success in the November 2022 judgement – but the solicitors had presented and organised their case in the most haphazard, prolix, repetitive fashion – what is the appropriate costs order in respect of the inactive phase of the proceedings – what other directions should be made.

LEASES AND TENANCIES — use of premises — permitted use — whether use of premises within scope of development consent LEASES AND TENANCIES — default and termination — repudiation CONTRACTS — remedies — damages — proof of loss or damage

CIVIL PROCEDURE — Summons seeking leave to appeal — Summons abandoned and dismissed CIVIL PROCEDURE — Parties — Persons allegedly under legal incapacity — Tutors — Notice of motion seeking appointment of tutor — Notice of motion not pressed and dismissed

CIVIL PROCEDURE — appeal — whether appeal should be dismissed as incompetent — Uniform Civil Procedure Rules 2005 (NSW) r 51.41 — whether leave to appeal required — whether appeal involves a matter at issue amounting to $100,000 or more — Supreme Court Act 1970 (NSW) s 101(2)(r) — where appeal does not disclose claim for damages or breach that is capable of being valued

CRIME – sentence – appeal against sentence – denial of procedural fairness –– aggravated break and enter and larceny in company – unchallenged evidence of psychiatrist of causal link between psychiatric disorders and cognitive impairment and offending – evidence admitted without objection – psychiatrist not cross-examined – failure to give offender an opportunity to address on dismissal of evidence – relevance to offender’s moral culpability – relevance to general deterrence

CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – settlement approved

PRIVATE INTERNATIONAL LAW – foreign judgments and orders – recognition or enforcement at common law – Fourth Judicial District Court of Utah County, USA – decree of divorce – spousal support and property division orders – judgment recognised and enforced

PRACTICE AND PROCEDURE – interim preservation – ex parte application – freezing order – where Court satisfied of requisite elements to grant a freezing order – where not appropriate to make order against purchasers of first defendant

PRACTICE AND PROCEDURE – enforcement of subpoenas – where no response to subpoenas – where plaintiffs seek orders pursuant to Civil Procedure Act 2005 (NSW) ss 68 and 108 for examination – whether appropriate for Court to exercise its discretion to order an examination

CORPORATIONS – Service of statutory demand – Whether effective service by email – Time at which email taken to have been received – Whether application to set aside statutory demand and supporting affidavit filed and served under s 459G of the Corporations Act 2001 (Cth) within 21-day statutory period after service of statutory demand

COSTS — Party/Party — Bases of quantification — Ordinary basis — Assessed as a gross sum — No issue of principle

BAILMENT — Personal Property Securities Act 2009 (Cth) — where administrators of corporation contend there is a “PPS lease” pursuant to s 13(1)(b) (repealed) — where administrators contend the PPS lease is an unperfected security interest that vested in the corporation pursuant to ss 267(1)(a)(ii) and (2) PPSA — where the time at which the bailment arose is material — application of ss 13(2)(b) and (3) PPSA — HELD — the bailment is not a PPS lease CORPORATIONS — voluntary administration — third party property in possession of company — whether s 441F of the Corporations Act 2001 (Cth) applies — where the third party has exercised a power in relation to the property — HELD — s 441F applies and leave under s 440(2)(b) of the Corporations Act would otherwise be granted

CRIME – proceeds of crime – where proceedings brought by the Australian Federal Police under the Proceeds of Crime Act 2002 (Cth) – monies held in various accounts with Australian banks – where those monies are proceeds of crime – organised crime syndicate - complex international investment scam – Operation Wickham – scam conducted online – where contributors to the accounts appear to have been victims of the same fraud CRIME – proceeds of crime - restraining orders made – where applicants seek recompense – various orders sought – forfeiture – exclusion – compensation – question as to the form relief should take – question as to how to treat the claims – whether as claims against the defendants’ property generally, or as claims on particular accounts – where a large number of contributors to the accounts did not come forward to participate in the proceedings – question as to how the contributions of non-participants to the proceedings should be treated – consideration of the case of Robb – consideration of alternative methodologies for the division of funds – the discussion in Caron – the rule in Clayton’s case – pari passu approach – ‘pro rata’ is still not English – lowest intermediate balance rule – layers of fiction – proposal at hearing of a hybrid method of distribution – where ultimately what is sought is the ‘least unfair’ outcome – most appropriate methodology applied to each account – orders made – orders stayed for 28 days

CORPORATIONS – Service of application to set aside statutory demand under s 459G of the Corporations Act 2001 (Cth) – Where plaintiff initiated proceedings in Supreme Court of Queensland to set aside statutory demand – Where statutory demand nominated an address of solicitors in New South Wales as the address for service on the creditor of any s 459G application - Where plaintiff’s solicitors sent an email to the email address of those solicitors attaching a copy of the initiating process together with the supporting affidavit and notice under s 16 of the Service and Execution of Process Act 1992 (Cth) – Where email sent and received shortly before midnight on the last day of the 21-day statutory period under s 459G – Whether email constituted effective service of statutory demand – Whether s 600G of the Corporations Act 2001 (Cth), as in force at the time, applied to service of applications under s 459G of that Act – Whether service by electronic communication permissible under Service and Execution of Process Act 1992 (Cth) STATUTORY INTERPRETATION – Corporations Act 2001 (Cth), s 600G - Service and Execution of Process Act 1992 (Cth), s 15(3) and s 9

PARTNERSHIPS AND JOINT VENTURES — Relationship of partners to persons dealing with them — Liabilities of partner — Retirement — where partnership agreement contains clauses allowing for continuing partners to purchase share of retiring partner or require the share be offered for sale — where option to purchase or require sale not exercised — whether retiring partner entitled to be paid its partnership share of the enterprise value of partnership or whether any such payment should be discounted for lack of marketability and lack of control — whether resultant payment should be treated as a debt or the subject of a Syers order

CIVIL PROCEDURE – adjournment application – where mediation unsuccessful – where applicant experiencing health problems

CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity and under Compensation to Relatives Act 1897 (NSW) – settlement approval application – Court to consider the best interests of plaintiffs – settlements approved

CIVIL PROCEDURE – amendment – possession proceedings – where secured land subdivided – where amendment required to take account of the subdivision – where amendment opposed by defendant acting for himself – amendment allowed

COSTS — party/party – ancillary applications — documents produced to court later disclosed — cross-applications for authorisation of disclosure and enforcement of obligation to court not to use documents except for the purposes of the proceedings — prima facie breach established but order authorising disclosure made nunc pro tunc — costs follow the event — what constitutes the “event” — disentitling conduct — application for indulgence — parties to bear their own costs

PRACTICE AND PROCEDURE – jurisdiction – application to transfer proceedings to the Supreme Court – where defendant in Local Court proceedings claimed unfair contract terms – where defendant seeks declaration that terms are void – whether matter can be dealt with in the Local Court – Civil Procedure Act 2005 (NSW), s 140(1)

FAMILY LAW AND CHILD WELFARE – Parens patriae jurisdiction of the Supreme Court – Grandfather of child in care simultaneously lodges an appeal to the District Court of NSW from orders of the Children’s Court of NSW and applies to the Supreme Court for parens patriae orders - Supreme Court proceedings summarily dismissed as vexatious and an abuse of process – Best interests of child favour expedited determination of District Court appeal

COSTS — party/party — appeals — exceptions to general rule that costs follow the event — apportionment of costs — unsuccessful appeal on liability — where reduction of damages on appeal COSTS — party/party — exceptions to general rule that costs follow the event — offers of compromise/Calderbank offers — whether reasonable to reject offers of compromise/Calderbank offers

APPEALS — Leave to appeal — subpoena and notice to produce — correctly set aside — no legitimate forensic purpose — leave to appeal refused CONTEMPT — power of arrest — Notice of Motion seeking arrest — application dismissed — no evidence justifying issue of warrant for arrest

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Sexual offences – Sexual touching – Whether CCTV footage demonstrated the particularised act of sexual touching – Where complainant alleged to have demonstrated affectionate behaviour towards applicant – Whether jury should have had reasonable doubt as to consent

CRIME — Drug offences — Commonwealth offence — Attempted possession of unlawfully imported drug — Where offender attempted possession of cocaine concealed in mail consignment SENTENCING — Appeal against sentence — Application for leave to appeal — Sentence by State court for offence against Commonwealth law — Whether sentencing judge misapplied principles relating to utilitarian discount for guilty plea — Whether sentencing judge failed to consider relevant factors — Whether sentencing judge erred in findings concerning prospects of rehabilitation and likelihood of reoffending APPEALS — Power to receive further evidence — Whether court should admit new or fresh evidence — Whether new evidence relating to alleged incomplete or inaccurate pre-sentence report admissible — Where alleged incompetent legal representation — Whether new evidence of reasons for guilty plea admissible — Where no challenge to conviction SENTENCING — Appeal against sentence — Manifest excess — Relevance of comparative sentences — Whether sentence imposed exceeds the bounds of proper sentencing discretion SENTENCING — Appeal against sentence — Powers of court — Power to adjust sentence to account for time spent on bail pending appeal — Where appeal dismissed and original sentence upheld

JUDICIAL REVIEW – Psychological injury – Errors of law – Failure to provide adequate reasons – Failure to exercise statutory jurisdiction – Statutory interpretation – Imported words – Matter remitted to the Personal Injury Commission.

EQUITY – trusts and trustees – proceedings between trustees and beneficiaries – whether trustee has mismanaged trust and behaved partially – whether provisional liquidator and receiver should be appointed to the trustee COSTS – party/party – court’s discretion – where proceeding has settled without adjudication on the merits of the application – where application to appoint provisional liquidators to trustee company settled following hearing – whether plaintiff would almost certainly have succeeded so as to warrant a costs order notwithstanding the fact that its claim was not adjudicated on – whether second defendant acted unreasonably such as to warrant a costs order against it notwithstanding the fact that the plaintiff’s claim was not adjudicated on

BAIL – Aboriginal youth – multiple offences – whether unacceptable risks can be ameliorated by proposed conditions – a number of services actively engaged with by RB – close to age 18 – application for some of his other offences (part heard) to be dealt with under s 31(3) of the Children (Criminal Proceedings) Act 1987 (NSW) – s 22C commenced 3 April 2024 – applicability to the offending – Bail and Crimes Amendment Act 2024 (NSW) – tension with Children (Criminal Proceedings) Act – unfairly discriminatory against a class of children accused of crimes – police letters – expressed in generalities rather than facts – police letters expressing opinions as to whether a person should be released – Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [33]-[34] and [38]-[39] – s 22C does not apply as all alleged offending before s 22C commenced so no further relevant offence committed whilst on bail