Cases and authorities

SUCCESSION — Construction — Gifts — Where gift of real property made under Will — Where testatrix did not have title to the property but company of which testatrix was the sole shareholder was registered proprietor — Validity of gift SUCCESSION — Probate and administration — Rectification of wills SUCCESSION — Family provision — Claim by adult child TAXES AND DUTIES — Income tax

APPEALS — Leave to appeal — question of principle — whether person who has instigated, if not formally commenced, legal proceedings liable for tort of abuse of process

CRIME – appeals – appeal against sentence – where applicant pleaded guilty in Local Court to robbery in company – discount for assistance – where another offender involved – where other offender identified by applicant - where alleged co-offender not prosecuted – whether sentencing judge erred in not having regard to all matters set out in s 23(2) in assessing value of applicant’s assistance – whether discount of 5% was open to sentencing judge CRIME – appeals – appeal against sentence – parity – where applicant’s 16-year-old sister was co-offender and was sentenced in Children’s Court – whether disparity between sentences imposed on applicant and young person gave rise to a justifiable sense of grievance – where parity not raised by the applicant before the sentencing judge – significant differences between applicant and co-offender – no justifiable sense of grievance

PROCEDURE – UCPR (NSW) r 17.7 – judgment on admissions – no issue of principle – HELD – clear admission of debt – judgment given in favour of the plaintiff.

CIVIL PROCEDURE – preliminary discovery – possession of a document that would assist plaintiff in determining whether they have an action – UCPR r 5.3 – limited stay pending full argument.

DAMAGES – defendant held liable in earlier hearing for loss and damage caused by its destruction in 2014 of such of plaintiff’s chattels as had survived a fire in 2013 – plaintiff sought damages for destruction of the logbooks for five aircraft – evidence suggesting some logbooks had been destroyed in fire and others had been removed shortly thereafter – evidence that plaintiff kept logbooks of other aircraft in the hangar – whether plaintiff had established that the logbooks for the five aircraft had survived the fire and were destroyed by the defendant DAMAGES – measure – appropriate measure for damages for destruction by bailee contrary to agreement with bailor – tortious or contractual – appropriate characterisation of loss of logbooks necessary to operate and maintain aircraft – significance of logbooks being unique items but of no intrinsic value aside from their use to operate and maintain aircraft – whether plaintiff entitled to cost of recreating the logbooks, or cost of acquiring replacement aircraft, or difference between value of aircraft with logbooks and without logbooks – whether plaintiff established case of consequential loss of business profits – plaintiff entitled to damages based on difference between value of aircraft with and without logbooks – claim for consequential loss not established on the evidence

PRACTICE AND PROCEDURE – Application for leave to adduce further expert evidence after hearing – Judgment reserved but not delivered – Where evidence seeks to address errors in the quantification of damages – Where further expert evidence confined to two issues – Whether in the interests of justice to grant application – Application allowed

REAL PROPERTY – caravan park with long-term cabin sites subject to company title – claim by purchasers of shares to equitable interests in cabin sites as well – whether purchase contracts included interests in land – specific performance – resulting trust – proprietary estoppel CORPORATIONS – oppression – company owning caravan park with long-term cabin sites subject to company title – ownership company’s finances and operations managed by separate company controlled by directors – ownership company placed in administration by directors following contested application by shareholders for access to company documents – land sold to another company controlled by directors following adoption of deed of company arrangement proposed by directors – whether oppressive conduct by directors – relief CONSUMER PROTECTION – misleading or deceptive conduct – unconscionable conduct – undue harassment or coercion – conduct “in trade or commerce” – contravention – loss and damage – purchase of company title shares in caravan park with long-term cabin sites – disappointment and distress CORPORATIONS – voluntary administration – caravan park with long-term cabin sites subject to company title – claim by shareholders against administrators for compensation for loss arising out of sale of land pursuant to deed of company arrangement – whether administrators owed common law duty of care to shareholders – whether administrators negligent in discharge of their duties – causation – Insolvency Practice Schedule s 90-15 – whether unconscionable conduct by administrators – whether administrators “involved in” oppressive conduct by directors

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Calderbank offer – whether “walk away” offer constituted a genuine offer of compromise – whether unreasonable not to accept

CONTRACTS — Breach of contract — Consequences of breach — Right to termination — Whether purportedly invalidly constituted board leads to inability to perform contract to requisite standard CORPORATIONS — Meeting of members — Voting — Election of board — Whether improper exclusion of candidate invalidated appointment of directors

CRIME — Appeals — Appeal against conviction – manslaughter – whether trial judge failed to properly put the defence case in the summing up – requirement for a fair and balanced identification of the issues and respective cases – Rule 4.15 of the Supreme Court (Criminal Appeal) Rules – no request for further directions at trial – whether miscarriage of justice – consideration of weight to be given to jury’s advantage of seeing and hearing witnesses – whether summing up raised consciousness of guilt – whether error to instruct jury as to entitlement to give less weight to exculpatory statements than admissions – Bench Book direction – whether verdict unreasonable

CRIMINAL PROCEDURE — prosecution for non-compliance with statutory notice — ruling that notice invalid — classification of ruling as interlocutory or final — whether leave to appeal could be granted under s 5F Criminal Procedure Act 1986 (NSW) ENVIRONMENT — validity of notice purportedly issued under s 191 Protection of the Environment Operations Act 1997 (NSW) requiring addressee to furnish information — whether the notice sufficiently identified the material required to be produced and whether it showed that the addressor was entitled to require that production COURTS AND JUDGES — jurisdiction — whether a judge presiding over a preliminary hearing convened in accordance with the case management provisions in the Criminal Procedure Act 1986 (NSW) has the power to summarily dismiss a summary prosecution prior to final hearing

CRIME — Appeals — Appeal against sentence – aggregate sentence for offences involving dishonesty – concession by the Crown that sentencing judge was mistaken as to the maximum term of imprisonment for three offences on a s 166 certificate and as to the backdating of sentence – appeal allowed – re-sentence – affidavits tendered on re-sentence – whether more favourable subjective findings should be made

CIVIL PROCEDURE – application for leave under Felons (Civil Proceedings) Act 1981 – claim for damages following alleged physical and sexual assault by officer in juvenile detention – leave granted

CIVIL PROCEDURE — Pleadings — Form and content of pleading — Malicious prosecution — Defects — Application to strike out

COSTS — Party/Party — Orders against non-parties — where a non-party is given leave to be heard under r 2.13 of the Supreme Court (Corporations) Rules 1999 (NSW) — whether the non-party should pay the additional costs incurred by the Plaintiff as a result of the non-party’s intervention — whether the non-party should pay the costs of another non-party

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.

CIVIL PROCEDURE – files from Local Court and District Court criminal proceedings produced to Court pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 33.13. – files include Crown Case Statement produced pursuant to ss 141 and 142 of the Criminal Procedure Act 1986 (NSW) – Crown Case Statement includes extracts or purported extracts of transcripts of telephone conversations recorded pursuant to warrant obtained under Telecommunications (Interception and Access) Act 1979 (Cth) or Surveillance Devices Act 2007 (NSW) – whether Crown Case Statement tendered in Local Court and District Court criminal proceedings – where transcripts of telephone conversations not tendered in those proceedings – where accused discharged prior to conclusion of criminal proceedings – where accused in criminal proceedings are defendants in civil proceedings in this Court – where substantial overlap between Crown case in the criminal proceedings and plaintiff’s allegations in civil proceedings in this Court – where plaintiff sought order permitting it to access the Crown Case Statement in the Local Court and District Court files – open justice principle – Practice Note SC Gen 2 – whether Court should exercise discretion to grant or refuse access to the plaintiff

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.

NEGLIGENCE — Breach — Standard of care — Professional negligence — Lawyer and client — Advice about settlement — Costs consequences

CORPORATIONS LAW – EQUITY – Corporations Act 2001 (Cth) ss 436A(1), 443A(1), and 443D – equitable lien – the principle in Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171 (the Universal principle) that a creditor who holds security which forms part of a winding up or insolvent administration and which is cared for, preserved, or realised at the expense of the liquidator or administrator cannot conscientiously take advantage of the efforts of the liquidator or administrator without meeting her or his expenses in so doing. Equity creates a charge over a fund created by the realisation of the security as a result of those efforts. – where voluntary administrators trade the company’s business at a loss, and earn renumeration on the asserted footing that they are doing so to protect the company’s asset in the form of goodwill to facilitate a sale of its business as a going concern – where the liquidators (previously voluntary administrators) assert an equitable lien over the proceeds of chattels belonging to secured creditors or securing their claims and in the possession of the company as security for their renumeration – where the company has a fund generated by the sale of secured assets not being the company’s business – whether the Universal principle applies – necessity for the costs and expenses to be incurred exclusively with respect to the property cared for, protected, or realised – limitation of the lien or equitable charge to creating security over that asset or the fund created by its realisation – necessity for the costs and expenses to be reasonably incurred – necessity for the costs and expenses to be adequately proved – HELD – the Universal principle does not apply and the claimants have in any event have not proved the quantum of the expenses alleged by them to have been incurred and renumeration earned for the exclusive benefit of the secured creditors. CORPORATIONS LAW – voluntary administration/liquidation – application for approval or renumeration – HELD – renumeration should be approved.

COSTS – proceedings promptly settled – no determination on the merits – consent orders include declaration as sought by plaintiff – plaintiff claims to be successful party – proceedings prompted by defendant’s service of lapsing notice in respect of caveat lodged by plaintiff – not unreasonable for defendant to serve lapsing notice – defendant did not act unreasonably in proceedings – appropriate that each party bear own costs of proceedings

HIGH RISK OFFENDERS — Interim supervision orders — Conditions — Test for imposition — Unacceptable risk of committing a serious offence — Relevance of conditions to risk

ADMINISTRATIVE LAW – Judicial Review – injury suffered from motor accident – degree of permanent impairment in issue – additional surveillance footage and medical reports provided – power to refer a party for further medical assessment under s 62 of the Motor Accidents Compensation Act 1999 (NSW) exercised – whether delegate failed to view surveillance or to assess it separately to the medical reports – whether delegate erred in concluding that reports were additional relevant information – whether delegate erred in concluding that the reports were additional relevant information capable of having a material effect on the previous assessment – whether delegate failed to exercise the residual discretion under s 62 – proper officer failed to exercise the residual discretion – jurisdictional error found

CIVIL PROCEDURE – proceedings on foot in District Court – earlier proceedings in Supreme Court involving different Plaintiff – parties in District Court proceedings seek to rely upon expert medical reports served in Supreme Court proceedings – leave granted

SUCCESSION – Claim by adult daughter of the deceased, for a family provision order pursuant to Chapter 3 of the Succession Act 2006 (NSW) – Question whether s 91 grant necessary to enable the Plaintiff's application to be dealt with – No dispute as to the Plaintiff's eligibility – Application not made within prescribed period – Deceased left a Will providing lengthy reasons for making only a bequest of $100 for the Plaintiff – Balance of estate left to the Defendants, the only other son and daughter of the deceased – Whether family provision order should be made for Plaintiff, and if so, the nature and quantum of the further provision to be made – Order for additional provision for Plaintiff not made – Summons dismissed

LEASES AND TENANCIES — Default and termination — Right to possession — whether plaintiff entitled to possession of land — where defendant had leased land pursuant to leases which were surrendered or expired — where plaintiff had issued notices to quit CIVIL PROCEDURE — Parties — Joinder — joinder of any occupier of land the subject of claim for possession — opportunity to provide evidence and submissions as to relief in relation to the land CONSUMER LAW — Misleading or deceptive conduct — Representations — whether pleaded representations were made — whether pleaded representations were misleading or deceptive — where pleaded representations either were not made or, if made, were not misleading or deceptive CONSUMER LAW — Unconscionable conduct — Unconscionable conduct within the meaning of the unwritten law — whether defendant / cross-claimant suffered from special disadvantage — no special disadvantage proved CONTRACTS — Express terms — Pre-contractual statements — Representations — whether pleaded representations made — where the pleaded representations either were not made or, if made, were reflected in the contract executed by the parties CONTRACTS — Formation — Agreement — Uncertainty and incompleteness — where arrangement negotiated by parties was subject to agreement and omitted essential matters — no contract in terms pleaded by cross-claimant for reason of incompleteness CONTRACTS — Remedies — Damages — Loss or damage — whether cross-claimant suffered compensable loss or damage — where cross-claimant alleges to have suffered loss through a “fire sale” of railway items below market value and loss of option to purchase land — loss not proved CONTRACTS — Remedies — Specific performance — where orders sought by cross-claimant would require continued superintendence by the Court — where specific performance of alleged agreement is contingent on matters dependent on the sole discretion of the cross-claimant — order for specific performance refused EQUITY — Unconscionable conduct — Special disability or disadvantage — whether defendant / cross-claimant suffered from special disadvantage — where defendant / cross-claimant did not obtain independent financial or legal advice where such advice was available to it — whether threat by plaintiff / cross-defendant to exercise contractual right under lease created a special disadvantage — special disadvantage not proved ESTOPPEL — Estoppel by convention — Mutual assumption — where parties undertook acts in performance of an executed agreement and conducted their affairs on the basis that the agreement was binding — defendant / cross-claimant estopped from denying that the agreement was binding ESTOPPEL — Promissory estoppel — whether cross-defendant estopped from denying that it would do certain acts in exchange for the cross-claimant surrendering its rights under a lease — where pleaded representations were not proved and insufficiently clear to support estoppel — cross-claimant did not act or refrain from acting on basis of belief induced by cross-defendant’s representations — estoppel not made out

CRIMINAL LAW – murder trial – significant public interest in the trial proper – Court Suppression and Non-publication Orders Act 2010 – applications by accused and Crown that all evidence and submissions be suppressed pending conclusion of accused’s District Court trial – whether the public interest in preventing prejudice to the proper administration of justice outweighs the public interest in open justice

CRIME – Appeals – Appeal against sentence – Commonwealth offences – Requirement to take into account offender’s contrition for offence – Distinction between rehabilitation and remorse – Whether offender “downplaying” criminality – Remorse does not require abandoning attempts to identify mitigating factors – Held that sentencing judge did not duly consider offender’s contrition – Sentence appeal allowed

CIVIL PROCEDURE — Arbitration — Appeal on question of law — Leave to appeal — where parties agreed to arbitrate under the Commercial Arbitration Act 2010 (NSW) — where Plaintiffs contend that the arbitration was expressed to be “subject to any right of appeal” — whether parties agreed that an appeal lies to the Court on a question of law arising out of the award pursuant to s 34A(1) of the Commercial Arbitration Act 2010 (NSW) AGENCY — Authority of agent — Ostensible authority — where parties engaged in an arbitration — whether solicitors had ostensible authority to agree that a substantive right of appeal arises where the parties’ substantive agreement did not so provide

FAMILY LAW – adoption – voluntary adoption – application to dispense with father’s consent prior to making of an application for adoption – whether placement of child for adoption would be impeded unless consent of father dispensed with – whether reasonable inquiries made as to whether child is an Aboriginal child

COSTS – costs of competing Notice of Motions concerning Heads of Agreement

SUCCESSION - Statutory Will – where minor suffered severe traumatic brain injury in a motor vehicle accident – where significant sum of damages awarded – where applicant seeks a statutory will – whether minor lacks testamentary capacity – whether the proposed will is reasonably likely to be one that would have been made by the minor if he had testamentary capacity

CONSUMER LAW – misleading or deceptive conduct – investment in trusts established to develop two properties in Western Sydney – whether defendant trustees through their director and alleged agent made representations concerning the level of investment of other parties – whether plaintiff misled by such representation – where true level of other parties’ investment revealed yet plaintiff maintained and increased its investment TRUSTS AND TRUSTEES – unit trusts established for purpose of proposed development of two properties in Western Sydney – whether unitholders failed to make required contributions – whether units had been issued at a discount – whether transactions entered without authority – whether proper accounting records maintained – whether trustees should be removed

SUCCESSION – Family provision – Provision from the deceased’s estate under the Succession Act 2006 (NSW), Ch 3 – Whether eligible person – Whether living together – Close friendship between the appellant and the deceased – Appellant regularly provided domestic support and personal care to the deceased

CRIMINAL PROCEDURE – order to produce – application to set aside by Commissioner – documents sought by respondent in relation to appeal against murder conviction – documents pertaining to the police investigation – onus on respondent to show legitimate forensic purpose – applicable approach after Blacktown and Waters – where many of the documents already produced or not in the Commissioner’s possession – onus not discharged – application granted – order set aside

CIVIL PROCEDURE – application for leave under Felons (Civil Proceedings) Act 1981 – claim for damages following alleged physical and sexual assault by officer in juvenile detention – leave granted

CIVIL LAW – high risk sex offender – interim supervision order – dispute as to conditions – assessment of risk – disturbing offences against children – condition regarding schedule of movements – “roadway line in front of the choo choo train” – no question of principle

CORPORATIONS — Managed investment scheme — whether thoroughbred racing horse investment schemes are managed investment schemes as defined in s 9 of the Corporations Act 2001 (Cth) — whether the schemes were required to be registered under s 601ED — whether the relevant contracts were voidable under s 601MB — whether a declaration should be made concerning an alleged contravention of s 911A of the Corporations Act 2001 (Cth)

CORPORATIONS – winding up – liquidator’s fiduciary and statutory duties – liquidator’s obligation of independence and impartiality – whether liquidator breached duties or acted to favour the interests of one group of creditors to the detriment of the company and creditors as a whole by conducting examinations under Part 5.9 of the Corporations Act 2001 (Cth) and by engaging solicitors to act for the liquidator in those examination proceedings who had acted for the groups of creditors whose interests were said to be served by the examinations – whether examinations included questions about topics that were “not legitimate” or “improper” – whether conduct of liquidator biased or gave rise to reasonable apprehension of bias – application for order removing liquidator dismissed

TRUSTS – trusts and trustees – estate planning in rural family property – as part of the estate planning transactions were entered into purporting to transfer a grazing property into a family discretionary trust – whether the grazing property was successfully beneficially transferred to the discretionary trust or whether it remained with the transferor – whether the vesting of the discretionary trust should be brought forward from 2035 by an application of Trustee Act 1925 s 86A

PROCEDURE – adjournment application – history of proceedings – interests of justice – concessions made by defendant – guillotine orders – hearing date vacated

CRIMINAL LAW – application for a judge alone trial – accused charged with murder – long delay in investigation and charging – “egregious” pre‑trial publicity – “Teacher’s Pet” podcast – podcast widely distributed – podcast directed to persuading listener of accused’s guilt – participation of public officials in podcast – “interests of justice” – differences between test for stay of prosecution and making of order for judge alone trial – ability to address prejudice by steps taken at time of empanelment – application granted

CRIME – appeals – appeal against sentence – alleged error in assessment of objective seriousness – parity – applicant sentenced on agreed facts different to co-offenders – other facts disclosed more serious criminality – applicant instigated and planned offending, co-offenders assisted – no error in assessment of objective seriousness – no disparity – appeal dismissed

CORPORATIONS — Statutory demand — Genuine dispute about existence or amount of debt — where the Plaintiff admits part of the debt claimed — whether there is a genuine dispute arising out of the Defendant’s invoicing practices

PRACTICE AND PROCEDURE – Judgment on admissions – No point of principle

PRACTICE AND PROCEDURE — Inherent jurisdiction — Abuse of process — Collateral allegations of fraud made by means of a Notice of Motion in long running proceedings.

CRIMINAL LAW – murder trial – significant public interest in the trial proper – Court Suppression and Non-publication Orders Act 2010 – application by accused for legal aid – whether in the public interest to suppress publication of the fact of such an application – whether there is a risk that publicity concerning that application might affect it adversely and hence the trial itself

CONTRACTS – construction and interpretation –partnership agreement – whether interest on funds provided to the partnership by one partner to be treated as a partnership expense or as an independent debt to be paid by the other partner – whether inconsistency between agreement’s recitals and operative provisions and how any such inconsistency to be resolved

CONVICTION APPEAL – applicant faced trial on 10 counts of child sexual assault involving two victims – convicted on one count involving one victim which was supported by evidence from other victim – Markuleski direction – trial judge told jury they could use any doubt about a victim’s evidence on one count in considering their evidence on other counts involving that victim but not in addressing any count concerning the other victim – effect of direction was to preclude jury from using any doubts about the evidence of one of the victims in the assessment of so much of their evidence that related to the count concerning the other victim – point not taken at trial – no forensic advantage to accused – miscarriage of justice – unreasonable verdict – whether verdicts inconsistent – whether evidence supporting conviction meant that it was unreasonable – whether commission of offence improbable because of risk of detection – ground rejected – verdict not unreasonable – appropriate order – retrial ordered