Cases and authorities

CORPORATIONS — Winding up — Practice and procedure — Application to adjourn winding up application under Corporations Act 2001 (Cth) s 440A(2) — Where administrator appointed shortly before winding up proceedings — Where winding up application previously opposed on ground of solvency — Short adjournment sought for several purposes — Whether adjournment in creditors’ interest CORPORATIONS — Winding up — Failure to comply with creditor’s statutory demand — Presumption of insolvency — Where no solvency evidence led by Company

PRACTICE AND PROCEDURE – pleadings – amendment – application to amend statement of claim – where second plaintiff may not have been aware of the hearing – where proposed fourth defendant was not represented – whether there was sufficient explanation for the delay in bringing the motion – whether the delay was a result of a tactical decision – whether pleadings were defective or embarrassing. CIVIL PROCEDURE – parties – joinder CORPORATIONS – voluntary administration – Deed of company arrangement – whether leave required under s 444E(3)(c) of the Corporations Act 2001 (NSW) EQUITY – Trusts and Trustees – resulting trusts – Quistclose Trusts

COSTS — Security for costs — Costs of application — No question of principle

HIGH RISK OFFENDERS — Terrorism (High Risk Offenders) Act 2017 (NSW) — whether applicant poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under a continuing detention — no dispute regarding alternative of an extended supervision order — risks posed are unacceptable if he is not supervised under an extended supervision order rather than a continuing detention order — not persuaded that anything beyond containment is to be gained from a CDO — consideration of conditions HIGH RISK OFFENDERS — applicant associates with Aryan Terror Brigade, white supremacist and Nazism ideologies — adoption of Germanic persona — searches HIGH RISK OFFENDERS — index offending — manufacturing of homemade slam fire guns — possession of illegal weapons — child abuse material offending — grooming — soliciting child pornography HIGH RISK OFFENDERS — consideration of VERA-2R — consideration of Corner Report — experts did not apply VERA-2R as a predictive tool but as an aid to their clinical assessment — not satisfied that the Corner Report debunks VERA-2R on the evidence in this matter

COSTS – where notice of motion seeking leave to amend List Statement – where multiple iterations – where claims advanced and then withdrawn

CRIME – Murder – defence of mental health – fit to be tried – special verdict – acts constituting offence proved but accused not criminally responsible – orders made under s 31 and s 34 of Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) MENTAL HEALTH – criminal proceedings – person fit to be tried – agreement between Crown and legally-represented accused – facts proved but accused not criminally responsible for conduct

SUCCESSION – Contested probate – testamentary capacity – where testatrix was undergoing treatment for metastatic cancer – whether evidence revealed not of sound mind, memory or understanding and had sufficient testamentary capacity despite effect of treatments and physical condition SUCCESSION – Contested probate – knowledge and approval of testatrix– whether any evidence of suspicious circumstances surrounding execution of the will SUCCESSION – Conflict of laws – where testatrix executed will in Australia and then executed a will in Thailand three years later – where some differences between the two wills but deal substantially with the same property – where testatrix domiciled in Australia and Thai will is a valid testamentary instrument under NSW law – where in any event Thai will accords with formal validity requirements of Thai law SUCCESSION – Family provision claim – extension of time required – where evidence of plaintiff seeking family provision order did not divulge full extent of assets

Collateral attack – Frivolous and vexatious proceedings – Strike out pleadings – Abuse of process – No reasonable cause of action.

EVIDENCE — Privileges — Where privilege claims assessed by reference to a sample — Evidence necessary to establish a claim for privilege

CRIME – Murder – Trial by judge alone – Verdict – Where circumstantial Crown case – Accused invited to property of alleged deceased in 2016 – Alleged deceased disappeared four days later – Whether evidence establishes elements of murder beyond reasonable doubt – Whether reasonable possibility accused’s exculpatory account true – Whether reasonable possibility other persons involved in disappearance of alleged deceased

APPEALS — TORTS — DAMAGES — motor vehicle accident — successful plaintiff appealing judgment sum — application to adduce further evidence available at time of hearing in Court below — damages calculated based on actual earnings where plaintiff had not paid tax for several years — future economic loss based on past performance of business and unchallenged forensic evidence — whether future projections ought be accepted in an assessment of future economic loss

EQUITY – Proprietary estoppel – Estoppel by encouragement – Knowledge of detriment – Where the deceased promised to leave the property to a sharefarmer who had worked on the property for approximately 40 years – Where the deceased’s will did not do so – Where the sharefarmer continued to share farm on the property in reliance on the representation – Whether the deceased needed to have actual knowledge of detrimental reliance on the representation for estoppel to be established PROCEDURE – appeals – further evidence – evidence adduced at subsequent hearing before final orders made – whether such evidence “further evidence” for purposes of Supreme Court Act 1970 (NSW), s 75A – whether appellant should be permitted to rely on such evidence following first hearing to impugn findings made after first hearing

ADMINISTRATIVE LAW – error of law – error of jurisdiction – judicial review of decision to refuse application for post-conviction inquiry pursuant to Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) – where Applicant was convicted of conspiring to import a commercial quantity of a border controlled precursor drug

CRIMINAL PROCEDURE – costs – subpoena – issued by Crown to non-parties – non-parties are legal practitioners – client legal privilege asserted – non-parties seek costs of setting aside and complying with subpoenas – power of District Court in proceedings on indictment to order costs against the Crown in relation to subpoena – whether statutory power exists – whether implied power exists – distinction between compliance costs and litigation costs APPEALS – jurisdiction – Court of Criminal Appeal – where District Court awards costs to non-parties who received subpoenas issued by Crown in criminal proceedings – Criminal Appeal Act 1912 (NSW) s 5F – whether decision to grant application for costs of subpoena an interlocutory judgment or order – whether decision to grant application for costs of subpoena a decision made in the proceeding for the prosecution of the offender on indictment

CRIME – appeals – appeal against sentence – where report of forensic psychiatrist tendered at sentence hearing alleged applicant abused during childhood – where psychiatrist’s finding of abuse referred to notes of clinician who treated applicant as an adult – whether miscarriage of justice arose where representatives for applicant omitted to tender notes – notes containing more hearsay allegations of historical abuse of limited probative weight in the absence of firsthand evidence from applicant – sentencing judge’s rejection of fact of abuse not due to absence of notes – ultimately factual finding of abuse not of itself significant to applicant’s subjective case – no significant possibility of lesser sentence absent representative’s failure

CIVIL PROCEDURE – Alleged tort of good faith and fair dealing raised in the context of processing a worker’s compensation claim – application to dismiss proceedings – where plaintiff is unrepresented – plaintiff failed to comply with earlier Court orders to file amended pleading – causes of action untenable

CIVIL PROCEDURE – Dismissal of Proceedings – self executing orders previously made by consent – where plaintiff has not complied with prior self-executing orders – recording dismissal – no point of principle CIVIL PROCEDURE – Judgments and Orders – liberty to apply – not appropriate where liberty sought to vary substance of orders made

PRACTICE AND PROCEDURE — judgments and orders — proceedings dismissed for want of due despatch — no issue of principle

CIVIL PROCEDURE — notice of motion seeking summary dismissal, permanent stay, or strike out of cross-claim — Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28 — where the substantive proceedings principally concern the position of a common boundary between the plaintiff and the first defendant’s land — where the plaintiff submits that the cross-claim does not disclose a reasonable cause of action, seeks relief which is beyond the jurisdiction of the court and otherwise contrary to law, and is bound to fail — where the court must consider a pleading drafted by a litigant in person — HELD — leave to re-plead granted in part — balance of cross-claim summarily dismissed CIVIL PROCEDURE — notice of motion seeking to set aside notice to produce issued by the first defendant — Uniform Civil Procedure Rules 2005 (NSW) r 21.10 — where the first defendant submits that the production of documents is necessary for his defence and cross-claim — HELD — some documents relevant to a fact in issue — notice to produce set aside in part

CORPORATIONS — Receivers and managers — Appointment by court — Application by liquidator for declaration that company in liquidation holds certain property on trust, and for appointment as receiver and manager of the property, assets, and undertaking of that trust — Declaration not granted but order made that liquidator would be justified in treating property as trust asset — Liquidator appointed as receiver and manager

APPEALS — TORTS — Negligence — child killed by memorial headstone falling on her at bowling club — monument poorly constructed — whether club liable in negligence — whether club owed duty to undertake reasonable enquiries to ensure fixation of monument was sound — whether club failed to test stability of structure by pushing against it — whether scope of liability should extend to stonemason who constructed monument APPEAL — PRACTICE AND PROCEDURE — allegations admitted in defences by eighth respondent/cross-defendant — allegations purportedly withdrawn in further defences — application for leave to withdraw the admissions —whether primary judge erred in refusing to allow admissions to be withdrawn or to admit transcript of the motion

NEGLIGENCE – duty of care – duties owed by occupier of licensed premises and security contractor to patrons – breach – whether defendants had knowledge of aggressive character of particular patrons – whether defendants should have turned out particular patrons before plaintiff arrived –distinction between RSA marshals and licensed security guards – whether defendants breached duty by having no licensed security guards on premises – whether defendants should have separated plaintiff from particular patrons after altercation commenced – causation – whether plaintiff established that had defendants not breached their duties of care, particular patrons would have been excluded before his arrival – whether sufficient time between commencement of altercation and plaintiff being struck for licensed security guards to intervene – contributory negligence – extent of plaintiff's contribution to harm suffered when another patron struck him – statutory contribution – nature and extent of breaches of duty by occupier and security contractor – damages – economic loss – challenge to assessment – non-compliance with Civil Liability Act 2002 (NSW) s 13

MENTAL HEALTH – forensic patient subject to a limiting term and earlier extension order – defendant with intellectual disability and diagnosed paedophilia – question of further extension order – question of preliminary orders for appointment of experts to assess defendant and report to Court - whether making of extension justified on assumption matters alleged in supporting documentation proved – concession by defendant as to preliminary orders – orders for examination made – interim extension order made

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.

CRIME – murder – defence of mental health impairment – where parties agree defence available – court satisfied that evidence satisfies defence established – offence proven but the accused not criminally responsible

LAND LAW – possession of land – entitlement of trustees appointed pursuant to s 66G of the Conveyancing Act 1919 – where defence by other former registered proprietor discloses no defence to claim for possession - application by occupier claiming to have expended money on property – no interest shown to be joined as a defendant to possession proceedings – application dismissed – defence struck out

REAL PROPERTY – declaration sought for transfer of legal ownership of property to first plaintiff – property purchased with money held on trust for first plaintiff – trust created by siblings to protect first plaintiff from his gambling habits – beneficial ownership of the property – issue arising from prospective sale of the property

CIVIL PROCEDURE – separate determination of question – whether hearing of separate question should be ordered – where answer adverse to plaintiff would dispose of proceedings – where answer favourable to plaintiff would result in duplication of material considered on separate question and material considered at trial – likelihood of voluminous material

CORPORATIONS — Receivers and managers —Where trustee company of two trusts entered into liquidation — Trustee company owned properties in its capacity as trustee of one of those trusts — Appointment of liquidator as receiver and manager sought by way of enforcement of equitable charge securing trustee’s right of indemnity vested in liquidator — Sale orders opposed by beneficiary of one of the trusts, who proposed alternative course of being appointed as trustee in order to make cash gifts to trusts to be used for payment of trust debts and avoid the need for sale of the properties, and proffered some security for the liquidator’s remuneration — Where alternative course not appropriate — Application for liquidator to be appointed receiver granted.

CORPORATIONS – Liquidators of former trustee of unit trust apply to be appointed as receivers and managers of trust assets by way of enforcement of equitable charge security right to be indemnified out of trust assets – Current trustee opposes appointment on grounds that, inter alia, the costs of winding up the former trustee were occasioned by a breach of trust and the liquidators were therefore not entitled to have their remuneration paid out of trust assets – receivers and managers appointed. CIVIL PROCEDURE – Pleadings – Amendment – Late application for amendment – Where applications made late on first day and early on second day of two-day hearing – Where grant of leave would be inconsistent with overriding purpose and dictates of justice and just resolution of proceedings – Leave refused – No question of principle.

COSTS — Security for costs — Relevant factors — Whether applicant has discharged its onus to show that the respondent will be unable to meet an adverse costs order — Applicant failed to meet threshold requirement COSTS — Security for costs — Relevant factors — Timing — Where past orders for security — whether the delay in bringing the application for additional security should disentitle the Applicant from obtaining security for past costs — Applicant entitled to make further application — Past orders contemplated application for additional security

JUDGMENTS AND ORDERS — Amending, varying and setting aside – application to reopen and vary orders under UCPR r 36.16 after judgments published – where applicants sought to reagitate arguments – no basis for reopening – application dismissed DIRECTIONS – Teoh direction – Show cause direction – Where Teoh direction made to prevent an abuse of process

SENTENCING – Resentencing – Powers of appellate court to remit for resentencing – where High Court made orders remitting the matter to the Court of Criminal Appeal for resentencing pursuant to s 5D of the Criminal Appeals Act 1912 (NSW) – whether s 12(2) of the Criminal Appeals Act 1912 (NSW) requires that remittal only occur where there is a positive reason why the Court of Criminal Appeal could not do justice in resentencing or which makes a trial court better suited to the resentencing exercise

EVIDENCE – Tendency evidence – Significant probative value – Evidence of tendency of conduct and tendency of state of mind of the accused – Whether the tendency evidence has a significant probative value that substantially outweighs the risk of prejudice

APPEALS — CRIME — Crown appeal against sentence — manifest inadequacy — aggregate sentence in respect of 19 offences of indecent assault, aggravated sexual assault of daughter and common assault — two sentences for breach of Apprehended Domestic Violence Order and soliciting mother to ask complainant to withdraw complaint (doing an act with intent to pervert the course of justice) — whether sentences unreasonable or plainly unjust — determination of appropriate sentence — residual discretion

CRIME – appeals – appeal against sentence – applicant pleaded guilty to one count of dealing in money intending it to become an instrument of crime – parity – where co-offender received higher discount – where difference between starting point of sentences appropriate to differences in objective gravity of offending – applicant’s sentence not manifestly excessive

CIVIL PROCEUDRE — application for adjournment — employer’s claim for statutory indemnity from third party tortfeasor — worker’s injury alleged to have occurred during employment while on public road within defendant’s local government area — defendant has insufficient particulars as to notional damages and workers compensation payments

SUCCESSION — trusts and trustees — judicial advice, Trustee Act 1925 (NSW), s 63 — application for judicial advice by executors as to whether it is reasonable to continue to prosecute certain appeal proceedings — HELD — judicial advice given

EQUITY — Trusts and trustees — Construction of a managed investment scheme’s constitution — Where constitution adopts the mechanisms for the call of meetings from Part 2G.4 of the Corporations Act 2001 (Cth) — Where a minority of unitholders requested a meeting be called to consider a resolution to wind up the fund — Whether the proper construction of the constitution or the Corporations Act 2001 (Cth) requires the responsible entity to comply with the request.

CIVIL PROCEDURE – third party claims against insurer – where plaintiff suffered injury at tournament of a modified form of basketball– where corporate tournament host no longer registered and there is no prospect of recovery from it – leave sought for plaintiff to proceed against tournament host’s insurer – application not opposed by defendant – no prospect of recovery from tournament host – parties agree that it is arguable that insurer may be liable for injuries suffered by the plaintiff on proper construction of the tournament host’s insurance policy despite the insurer’s advised view – leave granted

APPEALS – leave to appeal – interlocutory decision – submission not made to primary judge – absence of any material error – absence of utility of appeal having regard to proximity of final hearing – leave refused

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – approval of supplementary disclosure.

CRIMINAL LAW – murder – evidence – Crown revisitation of a prior ruling – changed forensic landscape – evidence initially ruled inadmissible due to unfair prejudice – out of court statement about out of court statement potentially identifying accused as having sexual encounter with deceased in leadup to the murder – prejudice remains – workers compensation documents and accused’s medical history – Crown seeks to use for potential financial or interpersonal motive – where nexus between evidence and suggested motive rises no higher than speculation – witness statement of sexual partner of the deceased – out of court statements about out of court statements recounting conversations with the deceased

PRIVILEGE – notes prepared by expert for telephone call with solicitor – use of the notes during the call – whether content of the notes communicated to the solicitor – whether notes used in preparation of expert report

RESTITUTION – where monies paid in and out of Court by consent – whether first and second defendants entitled to interest on monies held by the plaintiff and received upon settlement – where no compulsion operated upon the first and second defendants and no erroneous judicial order made – where no judicial determination of rights and liabilities due to settlement JUDGMENTS AND ORDERS – double recovery – where plaintiff earlier settled part of claim with another intertwined party – where plaintiff alleges third defendant continues to owe money under loan – whether plaintiff already recovered monies owing by earlier settlement COSTS – application for costs where proceedings dismissed by consent – whether plaintiff capitulated on claims – where plaintiff earlier settled part of claim with another intertwined party – whether defendants achieved success across the claim and cross claims

COSTS — Party/Party — Bases of quantification — Indemnity basis — Where unreasonable conduct by plaintiffs — Where application for easement doomed to fail — Where statutory requirements for reasonable engagement with defendants not met COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers — Where solicitor conduct amounts to “serious dereliction of duty, serious misconduct or gross negligence” or unreasonable conduct without cause — Where solicitor conduct caused costs of entire proceedings — Where appropriate to exercise costs discretion against solicitor

CORPORATIONS – Winding up – Application for special leave under s 488(2) of the Corporations Act 2001 (Cth) to distribute surplus funds – Where company constitution provided for an application to the Court where a board determination as to the distribution of the company surplus did not occur prior to winding up – Whether special leave can be granted. CORPORATIONS – Winding up – Where company constitution permits distribution of surplus assets in a ‘Gift Fund’ to certain ‘ATO-Endorsed Entities’ at the board’s discretion – Whether the liquidators can exercise the discretion conferred upon the board to distribute the assets in the Gift Fund – Whether the Court can make a direction approving distribution of the Gift Fund and the surplus assets under s 90-15 of the Insolvency Practice Schedule (Corporations).

CIVIL PROCEDURE — Appearance — Non-appearance of plaintiff — Where orders sought lack legal foundation, seek the same or similar relief to previous motion dismissed by Court for abuse of process, seek leave to issue a subpoena which is a fishing expedition or lack a basis for costs or damages — Whether plaintiff should be prevented from taking any further steps in these proceedings without the leave of Court

CIVIL PROCEDURE — Notices to produce — At hearing — UCPR r 21.10 — Whether documents “referred to” in pleadings or affidavits — Whether “specific documents” clearly identified in notice — Where documents sought subject to claims of legal professional privilege — Where documents sought are categories which refer to unidentified email addresses and persons, any issue or topic and a period of 26 months OCCUPATIONS — Legal practitioners — Solicitors — Whether solicitors should be restrained or disqualified from representing the defendant in these proceedings — Where no evidence supports conclusion that a fair-minded, reasonably informed member of the public would consider that the proper administration of justice requires restraint on solicitors from acting for the defendant in these proceedings or that it is in the interests of the integrity of the judicial process and the due administration of justice

CIVIL PROCEDURE – pleadings – amendment of pleadings – plaintiffs seek leave to file a Further Amended Statement of Claim (the new pleading) which has been supplied to the Court into the defendant in draft – defendant objects to the filing of the new pleading on the grounds that it is embarrassing inform and liable to be struck out – whether a pleading which alleges that certain earlier pleaded conduct that is found to have been proved constitutes a representation is embarrassing in form – whether the pleading of fraud in the pleading of causation are adequate.