Cases and authorities

PROCEDURE – implied undertaking – use of documents produced on subpoena for purposes of fresh proceedings – whether special circumstances warrant release from undertaking – where no objection by or prejudice to documents’ author – where some documents contain potentially sensitive information – where documents likely to achieve justice in fresh proceedings – where material could be obtained on subpoena in fresh proceedings

TORTS –joint and several liability – tortfeasor – contribution – liability in respect of the same damage – on the facts no tortious liability for same damage – no point of principle

CORPORATIONS — Financial reporting — Relief from reporting obligations — Application for relief under s 1322 of the Corporations Act — Extension of time to take specified steps — Whether substantial injustice. CORPORATIONS — Directors and officers — Application for relief under s 1322 of the Corporations Act — Relief from civil liability in respect of failure to take specified steps.

CIVIL PROCEDURE – Amendment to Statement of Claim – Statutory Duty – Limitation – Confined to particular of negligence by amendment permitted – Substituted service on Defendant allowed.

CIVIL PROCEDURE – Summons for Judicial Review and Appeal of Refusal of Parole – Joinder of cause of action in negligence – consequential joinder of parties – Removal of party – overriding purpose – case management – joinder refused – party removed

NEGLIGENCE – vicarious liability – employer and employee – whether employees of company were working for company or director of company – whether work being performed formed part of company’s business – representative proceedings - where plaintiff and group members seeking damages for losses caused by Carwoola Bushfire – where employees of company used a power cutting tool which emitted sparks and caused the bushfire – where employees and company breached their duty of care to plaintiff and group members INSURANCE – liability insurance – legal liability insurance – conditions and warranties – exclusions – whether work formed part of the insured’s business - whether reasonable precautions were taken – failure to comply with statutory obligations - specific exclusions in endorsement to the policy – whether the use of a power cutter to cut steel constituted using spark producing equipment - noscitur a sociis maxim - ejusdem generis principle

EQUITY — Trusts and trustees — Judicial advice — Variation of trusts — Whether trustee can amend vesting day — Whether objects of the powers to appoint income and capital of the trust estate can be extended — Whether the terms of the Trust Estate may be amended so that successor trustees cannot benefit for the purposes of s 54(3) of the Duties Act — Whether trustee can define the term “income” to include statutory income such as capital gains

PRACTICE AND PROCEDURE – application for payment of settlement funds to plaintiff’s financial administrator – s 77(4) Civil Procedure Act 2005 (NSW) – funds previously paid into the Court

CONTRACTS — Construction — Interpretation — Use of recital in construction of deed — Relevance of the deeds being signed as settlement for a probate dispute CONTRACTS — Termination — Repudiation of contract — Whether in the event of repudiation the plaintiffs had elected to affirm the contract by seeking specific performance CONTRACTS — Damages — Whether plaintiffs suffered loss as a result of defendants’ breach

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Whether the consent of the birth mother ought to be dispensed with — Change of name — Registration of adoption plans

CORPORATIONS – application to set aside examination summonses and orders for production – summonses issued under Corporations Act 2001 (Cth), s 596A to former administrators and liquidators of company in liquidation on the application of former director and shareholder and claimed creditor of the company to whom eligible applicant status had been granted – where applicants’ stated purpose of the examinations is to investigate potential claims against former administrators and liquidators in relation to (a) the sale of the company’s business and (b) their failure to investigate potential claims of the company against its secured lender – whether stated purpose genuinely held – whether examination summonses issued for the predominant purpose of former director attempting to secure commercial leverage against liquidators in relation to claims foreshadowed by the liquidators against the former director – where liquidators unfunded – whether examinations and orders for production unjustifiably oppressive.

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW)

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW) – leave sought subsequent to commencement of proceedings

CIVIL PROCEDURE – vexatious proceedings – application to commence proceedings – where proposed proceedings raised the same issues as previous dismissed proceedings – application refused

PRIVATE INTERNATIONAL LAW — jurisdiction — non-exercise of jurisdiction — forum non conveniens — proceedings permanently stayed

CORPORATIONS — oppression — special purpose company to acquire development site — agreement to contribute equally to acquisition of property – equal shareholders – plaintiff lends his half of purchase price to the company – defendant raises his half by loan secured over the property, which he guarantees — plaintiff ceases to be director and shareholder to ensure not liable for loan guaranteed by defendant — plaintiff controls bank accounts — defendant fails to service loan – plaintiff provides further working capital — plaintiff requests resumption of shareholding and directorship – defendant opens secret bank account — scramble for control — odd payments from secret bank account to defendant’s company – breakdown of relationship – defendant holds invalid meeting of members where resolved to issue shares – defendant subscribes for shares and uses capital to repay his loan to the company – property sold. OPPRESSION — s 233(1)(g) Corporations Act, at [165]-[168] — principles at [169]-[173] — relief from oppression at [187]-[189] — plaintiff authorised to bring proceedings in name of the company — set aside share issue – defendant to compensate company for odd payments. CORPORATIONS — winding up on just and equitable grounds — s 461(1)(k) Corporations Act — principles at [204]-[207] – oppression — irretrievable breakdown of relationship — sole director unsuited to deal with substantial proceeds of sale — liquidator appointed. EQUITY — specific performance — defendant undertakes to repay plaintiff’s loan from deposit —specific performance refused as plaintiff entitled to interest and will be repaid shortly. EVIDENCE — principal witnesses unreliable and little documentary evidence — onus and inferences.

BAIL – Where respondent was convicted in the Local Court and sentenced to a term of full time imprisonment – Where an appeal to the District Court was dismissed – Where the respondent then commenced proceedings seeking judicial review of the decision of the District Court – Where the respondent was granted conditional bail – Where respondent’s visa had been cancelled resulting in his being taken into the custody of the Australian Border Force on his release – Agreed between the parties that there had been a relevant change in circumstances which had a material and potentially adverse effect on the applicant’s prospects of success in the judicial review proceedings – Where Crown made an application for the respondent’s detention – Agreed between the parties that the application should succeed and that the respondent should be returned to the custody of Corrective Services NSW – Orders made – No point of principle

CRIME – Conviction Appeal – Inconsistent verdicts – unreasonable verdicts – alleged confusion in case presented to jury – clear and unambiguous directions – no confusion as to factual basis of different counts – difference in verdicts accounted for by degree of independent corroborating evidence – no reasonable doubt – appeal dismissed

CONTEMPT – Civil contempt – Breach of undertaking – Clarity of terms – Nature of ambiguity required to render undertaking unenforceable by punishment for contempt

COSTS – proceedings seeking the withdrawal of a caveat – caveator amenable to withdrawal of caveat provided proceeds of sale of property are protected – no agreement reached between the parties – proceedings commenced by plaintiffs – caveator takes steps to have caveat withdrawn and seeks relief in respect of proceeds of sale in Federal Circuit and Family Court – caveat withdrawn shortly before consent order made for its removal – caveator successful in obtaining interim relief in respect of proceeds of sale in Federal Circuit and Family Court – order made that each party bear its own costs of the proceedings

CIVIL PROCEDURE — appeal and review — appeal from Local Court CONTRACTS — formation — identification of parties to an agreement — post-contractual conduct

PROCEDURE – contempt, attachment and sequestration – contempt of court – where court makes freezing order and orders disclosure affidavits – contest as to extent to which Defendant understands English – whether First Defendant had requisite knowledge of orders.

CIVIL PROCEDURE — Jurisdiction — Transfer from District Court — Whether appeal is competent? — Whether proceedings are an ‘action’ for the purposes of s 127 of the District Court Act 1973 (NSW)? — Dismissed

CRIME – Appeal and review – Application to Supreme Court for inquiry into conviction under Part 7 Crimes (Appeal and Review) Act 2001 – applicant convicted of murder – where appeal against conviction and sentence previously dismissed by Court of Criminal Appeal – where second appeal against sentence dismissed by Court of Criminal Appeal – whether doubt or question as to guilt

APPEALS – leave to appeal – principles governing – public importance – regulation of legal practitioners’ dealings with clients – where costs two-thirds of judgment amount LEGAL PRACTITIONERS – costs – personal injury claims – statutory cap on costs – removal of cap on solicitor/client costs – removal by entering into costs agreement – disclosure requirements – disclosures to give effect to statutory purpose – client to be informed of statutory protection and effect of costs agreement – disclosures to be read in context of documents provided – importance of independent legal advice – Legal Profession Act 2004 (NSW), ss 338, 339 – Legal Profession Regulation 2005 (NSW), cl 116

SUCCESSION — contested probate application —whether the deceased had testamentary capacity at the time she gave instructions for and executed the will — whether the deceased knew and approved of the terms of the will — whether deceased’s statement that she was not agreeable to one of her daughters getting any money was a reference to a testamentary gift — whether any “suspicious circumstances”

PROCEDURE – application to reopen judgment – no basis shown – application dismissed

CRIMINAL PROCEDURE — Trial — Directions to jury — application by accused for distorted memory direction — whether direction appropriate given way case run — application granted

INJUNCTIONS – freezing order – whether order should be made pending delivery of judgment in main proceedings restraining first plaintiff from reducing the balance in its bank account below a level to which defendants may be entitled if successful in proceedings – whether existing undertakings given by first plaintiff adequately protects defendants’ interests

CRIMINAL PROCEDURE — Trial — Murder - Jury — Discharge of whole jury

CIVIL PROCEDURE – notices to produce set aside

REAL PROPERTY – easements – unreasonable interference with an easement – where the plaintiffs seek declaratory and injunctive relief to restrain the defendants from building above right of carriageway – where proposed construction would impose a height limit of 2.8 metres over the right of carriageway – where height limit would preclude certain types of vehicles from using right of carriageway – held that the proposed interference with the right of carriageway was a real and substantial interference – held that the easement should not be modified under section 89(1) of the Conveyancing Act 1919 (NSW) to effect a height limitation – injunctive relief granted to prevent the defendants’ proposed development

PRACTICE AND PROCEDURE – application for referral for pro bono assistance – previous applications – one in unrelated matter – one where assistance not obtained – lack of obvious merit – nature of discretion

PRACTICE AND PROCEDURE – vexatious proceedings order – prohibition on commencement of fresh proceedings in specified matters – judicial review application dismissed in a specified matter – fresh claim for damages based on unlawfulness of same conduct – claim dismissed under vexatious proceedings order – notice of appeal dismissed as incompetent under vexatious proceedings order

LAND LAW - possession of land – where estate of registered proprietor sequestrated – claim for possession by bankruptcy trustee – where bankrupt has no standing to appear – where no defence demonstrated

CORPORATIONS — Winding up — Liquidators — Equitable lien — CORPORATIONS — Winding up — Priorities — Priorities in winding up — TAXES AND DUTIES — Income tax – MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — Circulating asset — Circulating security interest — where company under administration was entitled to research and development tax offsets under the Income Tax Assessment Act 1997 (Cth) — whether research and development tax incentive refunds are subject to a circulating security interest — identifying the true employer for the purposes of Pt 5.6 Div 6 of the Corporations Act 2001 (Cth)

COSTS – Party/Party – General rule that costs follow the event – Application of the rule and discretion

COSTS – Party/Party – General rule that costs follow the event – Application of the rule and discretion

CRIME – appeal and review – judicial review – Supreme Court Act s 69 – juvenile offender convicted of three counts of possession of child abuse material under Crimes Act s 91H(2) – given notice under Child Protection (Offenders Registration) Act 2000 (NSW) s 4 that a “registrable person” – whether plaintiff a “registrable person” under s 3A of that Act – scope of exemption in s 3A(2)(c)(ii) as affected by ss 3A(5) and 3(3) – plaintiff covered by exemption – jurisdictional error – plaintiff not a “registrable person” – declaratory relief – decisions of Local Court quashed STATUTORY INTERPRETATION – approaches – definitions – purposive approach – incoherent results – inadvertence or omission by Parliament – permissible extent of repair by Court WORDS AND PHRASES – offence “committed against” a person – Child Protection (Offenders Registration) Act 2000 (NSW) s 3(3) – whether possession of child abuse material “committed against” a person

REAL PROPERTY – Torrens title – caveats – application to remove caveats – Real Property Act 1900, s 74MA(2) – real property development joint venture conducted through trustee company as trustee of a unit trust – plaintiff a 50% interest holder in the units in the unit trust – agreement to distribute the profits in specie in the form of lots of the development – distribution commenced but not completed – building under development the subject of defect proceedings – trust faced with unexpected external liabilities – further distribution suspended but plaintiff’s permitted to mortgage undistributed lots – freezing orders made by consent against lots to be distributed to second defendant – lots distributed to the third defendant – caveats placed on all lots respect parties – plaintiff seeks removal of caveats to enable distribution – whether caveats bad in form – what if any ancillary relief should be granted if caveats are removed.

INSURANCE – Liability insurance – Motor vehicle – Compulsory third party insurance – Dispute as to percentage of impairment caused by motor vehicle accident given pre-existing condition – Finding by medical assessor that surgery was not necessitated by accident – Insured’s application for review of medical assessor’s decision by President of Personal Injury Commission dismissed – Judicial review of medical assessor’s decision and dismissal of review application – Finding that assessor failed to respond to substantial and clearly articulated argument, provide lawful reasons, and evaluate evidence as required – Quashing of medical assessor’s decision and President’s delegate’s dismissal of review application – Remittal to Personal Injury Commission for medical assessment by different assessor

TORTS – professional negligence – legal advice relating to accepting or rejecting offers to compromise proceedings for recovery of employee entitlements and damages – advice to bring proceedings involving fraud and related issues – plaintiffs ultimately successful at trial on limited issues – judgment entered less than offers made – adverse costs orders where fraud claims unfounded – whether advice accorded with standard of reasonable care – quantum of loss – loss of opportunity

TORTS – professional negligence – legal advice relating to accepting or rejecting offers to compromise proceedings for recovery of employee entitlements and damages – advice to bring proceedings involving fraud and related issues – plaintiffs ultimately successful at trial on limited issues – judgment entered less than offers made – adverse costs orders where fraud claims unfounded – whether advice accorded with standard of reasonable care – quantum of loss – loss of opportunity

TORTS – professional negligence – legal advice relating to accepting or rejecting offers to compromise proceedings for recovery of employee entitlements and damages – advice to bring proceedings involving fraud and related issues – plaintiffs ultimately successful at trial on limited issues – judgment entered less than offers made – adverse costs orders where fraud claims unfounded – whether advice accorded with standard of reasonable care – quantum of loss – loss of opportunity

TORTS – professional negligence – legal advice relating to accepting or rejecting offers to compromise proceedings for recovery of employee entitlements and damages – advice to bring proceedings involving fraud and related issues – plaintiffs ultimately successful at trial on limited issues – judgment entered less than offers made – adverse costs orders where fraud claims unfounded – whether advice accorded with standard of reasonable care – quantum of loss – loss of opportunity

TORTS – professional negligence – legal advice relating to accepting or rejecting offers to compromise proceedings for recovery of employee entitlements and damages – advice to bring proceedings involving fraud and related issues – plaintiffs ultimately successful at trial on limited issues – judgment entered less than offers made – adverse costs orders where fraud claims unfounded – whether advice accorded with standard of reasonable care – quantum of loss – loss of opportunity

JUDGMENTS AND ORDERS – Orders to give effect to reasons in principal judgment

CRIME – appeal – sexual offences against a child – no question of principle

CRIME — appeals — appeal against conviction — whether guilty verdicts unreasonable by reason of inconsistency with not guilty verdicts

CRIMINAL LAW – Sentence – Appeal – Crown appeal on the basis of specific error – Respondent found guilty by a jury of multiple counts of indecent assault committed on his stepdaughter who was aged between 13 and 15 years at the relevant time – Where sentencing judge found that the requirement of the respondent to register under the Child Protection (Offenders Registration) Act 2000 (2000) was a form of extra-curial punishment and thus a mitigating factor on sentence – Error made out CRIMINAL LAW – Sentence – Appeal – Crown appeal on the basis of manifest inadequacy of sentence – Respondent found guilty by a jury of multiple counts of indecent assault committed on his stepdaughter who was aged between 13 and 15 years at the relevant time – Where a Community Corrections Order was imposed by the sentencing judge in respect of each offence – Absence of remorse and no acceptance of responsibility on the part of the respondent – Little basis in those circumstances to find that the respondent had excellent prospects of rehabilitation – Error in finding that the respondent’s motivation for the offending was not purely sexual – Error in finding that the offending was impulsive – Displacement between other findings and the sentence which was imposed – Respondent re-sentenced to a term of imprisonment CRIMINAL LAW – Practice and procedure – Sentence – Appeal – Crown appeal – Where submission made that the Crown had not assisted the sentencing judge other than by making a “bald assertion” that a sentence of imprisonment was appropriate – Where submission made that conduct of the Crown on sentence had contributed to the imposition of a manifestly inadequate sentence – Suggestion that the Crown had played a part in the imposition of a manifestly inadequate sentence rejected – Where submission made that the Crown should have specifically put to the sentencing judge what the appropriate indicative sentences were – Conclusion that such an approach would have been contrary to authority – No failure on the part of the Crown to properly assist the sentencing judge CRIMINAL LAW – Practice and procedure – Observations as to the obligations imposed by s 15A(1)(a) of the Children Criminal Proceedings Act 1987 (NSW) and the effect on general deterrence of restrictions on publication of an offender’s name