Cases and authorities

CORPORATIONS – shares – mother held 82% of shares in company – son/director held 9% of shares – mother died – son refuses to register transmission of shares – son lodges Form 484 with ASIC transferring mother’s shares to himself and issuing further shares to himself – order made correcting company’s share register, registering transmission of mother’s shares to administrator of the mother’s Estate and declarations that director’s actions were invalid.

COSTS – indemnity costs – whether plaintiffs maintained proceedings having no reasonable prospects of success

COSTS – security for costs – tranches which security to be provided – costs of application for security for costs

CIVIL PROCEDURE — application for variation of orders – where judgment provided for variation by consent – where no agreement reached – orders varied to give effect to findings of primary judgment COSTS — application for indemnity costs – whether plaintiff should have known that claim for possession could not reasonably succeed – offer of compromise – where offer made and refused pursuant to UCPR r 42.15A – indemnity costs granted

CONTRACTS –– mining tenements – royalty payable as percentage of net sales realisation – calculation of loss of bargain damages – whether damages should be calculated on basis that named mineral deposit would be developed from September 2023

ENVIRONMENT AND PLANNING – consent – application to modify consent – condition of consent requiring payment of monetary contribution – power to reduce contribution – no change to development – contribution paid in full – calculation of contribution – construction of “gross floor area”– loading areas excluded – only loading areas in approved plans excluded – no utility in modification

OCCUPATIONS – Medical practitioners – Qualifications and registration – Appeal – From dismissal of reinstatement application by NCAT – Whether appellant no longer suffering from mental impairment rendering her unfit to practise – Relevance of evidence of professional competence – Relevance of patient outcomes – Relevance of psychiatric evidence – Relevance of NCAT’s own observations – Appeal dismissed OCCUPATIONS – Medical practitioners – Qualifications and registration – Reinstatement application – Principles governing – Review body not permitted to review original deregistration decision

CRIME — accusatorial principle — admissions in civil proceedings sought to be used in subsequent criminal prosecution — plaintiff and prosecutor same legal person — admissions made voluntarily and on legal advice of counsel — admissions made in open court — applicant deposed he would not have made admissions if advised of possible criminal prosecution — use of admissions in subsequent criminal proceedings said to breach accusatorial principle — application for a stay distinguished — practical difficulties in restraining use of admissions ENVIRONMENT AND PLANNING — land clearing offence prosecuted in Land and Environment Court — Class 4 and Class 5 jurisdictions — proceedings based on same alleged acts commenced in both jurisdictions – admissions made disputing extent of civil contravention of Native Vegetation Act

CIVIL PROCEDURE – Stay – Solicitor’s practising certificate – Renewal refused and manager appointed to legal practice – Stay granted pending judicial review

CIVIL PROCEDURE – Hearings - Adjournment

CIVIL PROCEDURE – hearings – application for separate hearing – deferral of determination of form of relief – where the claim seeks both an account and damages – overriding purpose of Civil Procedure Act 2005 (NSW) – separate hearing granted COURTS AND JUDGES – application for recusal –alleged apparent pre-determination of interlocutory application concerning case-management – no impact on the substantive rights of the parties – application refused

SUCCESSION – administration of trusts – application for interpretation of a will which established trusts in favour of testator’s three grandchildren – inception of trusts – whether the will created three separate trusts – income derived from trusts – interpretation of charitable power of appointment – interpretation of power of maintenance, education and advancement

COSTS – security for costs – application by cross-defendant for security for the costs of the cross-claim – common ground that cross-claimant will be unable to pay costs if unsuccessful – whether cross-claim in substance defensive – where delay in bringing application

CONTRACTS – Formation – Oral agreement – Commercial purpose – Parties and terms CONTRACTS – Express term of written agreement – Guarantee by director who is not a party to contract – Whether director who executes agreement for company is personally bound by guarantee CONTRACTS – Unjust contracts – Contracts Review Act 1980 (NSW) – Business contracts – Whether agreements unfair – Whether interest rate involves a penalty CONTRACTS – Whether contract which cannot deliver bargain is enforceable – How interest is to be calculated CONTRACTS – Charge – Whether charge is valid – Whether charge is enforceable CONTRACTS – Termination – Repudiation of contract – Whether contract repudiated – Whether acceptance of repudiation affects a party’s rights – Whether charge survived termination

CIVIL PROCEDURE — Implied undertakings — Release from — Special circumstances — Where plaintiffs gave an express undertaking to the Court in respect of an application for search orders — Where the undertaking was similar to a Harman undertaking — Where the plaintiffs now seek partial release from or a variation of the undertaking in order to seek advice as to whether proceedings can be commenced against certain defendants in Germany — Where the active defendants have neither consented to nor opposed the making of the orders — Where the Court held that in the circumstances the needs of justice are served by varying the undertaking in the manner sought in the plaintiffs’ notice of motion

COSTS — Party/Party — Consent order

COSTS — Costs assessment — Gross Sum Costs Orders — Where the plaintiffs conduct has been so unreasonable as to be delinquent — Where the defendant has made attempts on multiple occasions to reasonably resolve the proceedings — Where the plaintiffs have failed to comply with numerous orders of the Court — Where there is no likelihood that the plaintiffs would cooperate in a cost assessment process — Where the Court orders the plaintiffs to pay to the defendant $48,000 assessed on a gross sum basis

CONTRACT – sale of goods – whether implied term of contract that credit to $1,400,000 would be available – whether vendor estopped from denying such credit – cross-claim against guarantors – assignment of guarantee – nature of interest assigned GUARANTEE AND INDEMNITY – cross-claim against guarantors – assignment of guarantee – nature of interest assigned

CHILD WELFARE — Care proceedings — Care order — Appeal from care order of Children’s Court — Application to stay or set side care order CHILD WELFARE — Jurisdiction — Supreme Court of New South Wales — Parens patriae

CRIMINAL PROCEDURE — Trial — Judge alone — application made by accused person and opposed by Crown – whether in interests of justice – where defendant relies on partial defence of substantial impairment – where defendant relies in the alternative on intoxication in relation to intention – where experts agree that defendant was suffering schizophrenia – where main issue is whether defendant’s actions were caused by intoxication or substantial abnormality of mind – application of community standards – COVID-19 restrictions – suspension of jury trials – relevance of s 365, Criminal Procedure Act – defendant likely to be held on remand for 3 years by the time a jury trial could proceed – application for trial by judge alone granted

CORPORATIONS — Voluntary administration — Application to set aside deed of company arrangement — Where proposal voted upon by related creditors — Whether resolution to enter deed of company arrangement contrary to interests of creditors — Whether winding up would allow more favourable outcome or better return to creditors than deed of company arrangement. CORPORATIONS — Voluntary administration — Application to set aside deed of company arrangement — Whether the deed of company arrangement should be terminated for “some other reason” under s 445D(1)(g) of the Corporations Act 2001 (Cth) — Whether deed of company arrangement oppressive, unfairly prejudicial to, or unfairly discriminatory against one more creditors — Where insufficient evidence that relevant resolution deprived creditors of the benefit of investigations as to causes of action in respect of breach of directors’ duties and insolvent transactions.

MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagee – power of sale – mortgagee’s duty to exercise power of sale in good faith – effect of contract of sale upon mortgagor’s rights – whether attempt to refinance and discharge mortgage prior to transfer of title can prevent sale – where mortgagor’s attempts to refinance accelerated the sale process MORTGAGES AND SECURITIES – mortgagee exercising right of sale – price higher if vacant possession given – requirement of vacant possession not communicated to occupant –damages awarded for failure to communicate occupation condition LAND LAW – Torrens title – exceptions to indefeasibility – fraud by mortgagee exercising power of sale – bid-rigging where alleged collaborator later acquired share in successful purchaser – whether collusion established LAND LAW – mortgages – mortgagee sale – where owner of the mortgagee financed the purchase and acquired option to control purchaser – honesty and independence of sale process – good faith exercise of power of sale – pre-existing relationship between parties acting on other projects – whether lack of independence in sale process indicative of fraud – burden of disproving fraud

CONTRACT – 2018 edition Law Society of New South Wales standard form contract for sale of land – construction – where additional clause 38 provided for payment of deposit in two instalments – where clause 2.3 made time for payment of second instalment “essential” – where deadline for payment not a business day – whether time for payment extended to next business day by clause 21.5 – whether exception to application of clause 21.5 “in the case of clauses 2 and 3.2” engaged

APPEAL – leave to appeal – where applicant’s claims summarily dismissed on ground that statute-barred – whether primary judge erred in being satisfied that there was no arguable case that applicant was under a “disability” within meaning of Limitation Act 1969 (NSW) s 52(1)

CRIME – driving offences – dangerous driving occasioning death – vehicle driven by applicant crossed unbroken centre line on country road and collided with vehicle travelling in opposite direction – driver of second vehicle died in collision – no evidence that applicant fell asleep – possibility of sleep raised for first time in defence counsel’s final address – whether defence of honest and reasonable mistake of fact that applicant believed he was fit to drive raised – trial judge directed jury to disregard submission – whether sleep possibility should have been left to jury – whether defence reasonably open on evidence – possibility that applicant fell asleep was a remote theoretical one – unfounded in any evidence – trial judge correct to decline to leave defence to jury CRIMINAL PROCEDURE – trial – closing address to jury by accused person – raising of defence for first time during closing – s 160 Criminal Procedure Act 1986 (NSW) – sub-s (2) could not have been used to permit Crown supplementary address – very late introduction of concept of defence apt to create unfairness to Crown – observations about need for criminal trial to be fair to both parties

CRIMINAL LAW – appeal against conviction – whether jury’s verdicts unreasonable – two counts of armed robbery left to jury – victims did not identify appellant – no objective evidence connecting appellant with offences – objective evidence connecting person other than appellant with offences – Crown case dependent on evidence of driver – driver’s evidence internally inconsistent – parts of driver’s evidence inconsistent with appellant’s involvement in offences – driver maintained his innocence despite having pleaded guilty – significance of driver’s evidence being given through translator – convictions quashed

CRIME – appeal against sentence – drug and firearms offences – possess prohibited firearm – assessment made of the objective gravity of the firearms offence – loaded prohibited pistol – applicant subject to s firearms prohibition order – applicant a member of a criminal gang – question of connection with drug supply offence - above mid-range seriousness – whether assessment reasonably open – question of manifest excess

CRIME – Appeal against sentence – manifest excess – street race between two motor vehicles – collision with innocent road user – manslaughter – no identifiable error by sentencing judge – sentence imposed while heavy was neither plainly unjust nor unreasonable – sentence within range and appropriate – appeal dismissed

CIVIL PROCEDURE – Subpoenas – Application to set aside – Relevance CIVIL PROCEDURE – Subpoenas – Objection to production of documents or things - Privilege

CORPORATIONS – winding up – statutory demand – application to set aside – demand not verified by affidavit – part of demand based on post-judgment interest – whether post-judgment interest a “judgment debt” – whether entitlement to post-judgment interest on Victorian judgments made decisions on New South Wales post-judgment interest distinguishable

CIVIL PROCEDURE — Jurisdiction — Transfer from Supreme Court to District Court — potentially interesting and possibly complex factual questions of causation and negligence — total damages claimed well within the jurisdictional limit of District Court

CIVIL PROCEDURE — Stay of proceedings — Pending appeal

CIVIL PROCEDURE — Parties — Person under legal incapacity — settlement approval CIVIL LIABILITY – claim brought by dependants against alleged tortfeasor following death of father - whether claim for services which would have been provided by deceased is maintainable under ss 15 and 15B of the Civil Liability Act 2002 (NSW) – not yet determined by Court of Appeal – uncertainty factored into settlement PERSONAL INJURY – difficulties in assessing claim for nervous shock suffered by disabled plaintiff – settlement approval

CIVIL PROCEDURE – purchaser of shares sues persons who negotiated the deal on behalf of 71 sellers – representative order sought under ss 56, 57, 58 Civil Procedure Act – principles and case law review at [45]-[61] – claim is for damages – allegation of fraud, wilful deceit or wilful concealment – claim depends on acts and knowledge of each seller – no substantial common issue – representative order refused. JOINDER – order sought under s 65(2)(b) Civil Procedure Act to correct a mistake – principles and case law review at [68]-[83] – plaintiff always intended to sue sellers – plaintiff mistakenly believed defendant could be sued as representative for sellers – mistake as to practice and procedure rather than substantive legal error – mistake obvious and quickly remedied.

LEASES AND TENANCIES - licences - occupancy fee - right to occupy pursuant to a Deed of Family Arrangement - whether there was a relevant default - whether acceptance of fee after default amounted to waiver - whether payments made by defendant to repair premises entitled her to offset amounts paid against weekly contributions - whether requirement in Notice of Termination that defendant continue to pay occupancy fee until property vacated waived the default – whether defendant entitled to relief against forfeiture – whether relief could be granted where defendant had no proprietary or possessory rights - where defendant’s payments were up to date by time of hearing – where no unconscionability shown - whether occupancy arrangement constituted a residential tenancy agreement – effect of s 119 of the Residential Tenancies Act CIVIL PROCEDURE – amendment – late application to amend defence – where change of counsel – where new defences raised points of law – where no further evidence required – where no need for adjournment – leave to amend granted

PRACTICE AND PROCEDURE — Review of Registrar’s decision under UCPR r 49.19 — Principles to apply — Nature of review SUCCESSION — Administration of estates — Persons entitled on intestacy — Letters of Administration

CIVIL PROCEDURE — Interlocutory applications — Application for leave to reopen — Where leave sought to lead new evidence in respect of indemnity for liquidator’s costs and as to costs of proceedings.

CIVIL PROCEDURE – notion of motion – application to further amend amended statement of claim – calling further evidence after decision reserved – nature of pleadings – lack of explanation for late application – delay – voluminous evidence – provisional relevance – purpose of amendment and evidence – motion dismissed – costs

Client legal privilege – no issue of principle.

SUCCESSION — Family Provision — Proper construction of orders made following settlement — Whether provision should be made for portable life estate based upon Crisp v Burns Philp Trustee Company Ltd

EQUITY – equitable remedies – rescission in aid of rights at law – equitable compensation – proprietary company – shareholders’ agreement with procedure for compulsory acquisition on default – director of company executes transfer purportedly on plaintiff’s behalf – compulsory acquisition procedure not properly followed – transfer executed without authority but registered – whether defendant had separate specifically enforceable entitlement to transfer of the shares – requirements for doing equity and restitutio in integrum – laches – value of shares for the purposes of equitable compensation PROCEDURE – standing to bring proceedings – alleged prior assignment of plaintiffs’ rights to a third party – requirements for valid assignment at law and in equity – whether proceedings defeated by misjoinder or non-joinder

INJUNCTION – interlocutory mandatory injunction – defendant licensee of the Caltex trade marks – sub-licence of such marks to plaintiff for use in its service stations – defendant’s entitlement to use Caltex marks to expire at end of 2022 – defendant contends it can compel plaintiff to rebadge its sites using Ampol marks – whether injunction should issue compelling plaintiff to allow defendant access to 87 of its sites to allow to effect such rebadging

PRACTICE AND PROCEDURE – appeal – stay pending hearing of application for leave to appeal – gross costs order – stay of enforcement

PRACTICE AND PROCEDURE – judicial review – refusal by District Court to state case to Court of Criminal Appeal – application to vacate hearing date – further charge pending in Local Court – stress – lack of medical evidence – no basis to delay hearing by several months

CHILD WELFARE – care proceedings – practice and procedure – application to vary final judgment – whether notice of motion should be transferred to Equity Division – motion dismissed

SENTENCING – importation of tobacco without payment of excise duty – two applicants – each recruited into conspiracy by undercover operative – custodial sentences imposed – each applicant raised parity ground concerning the sentence imposed on the other – rejected – Crimes Act 1914 (Cth) – s 16A(2)(fa)(ii) – whether sentencing judge found factor made out in relation to licensed customs broker – ground made out – no lesser sentence is warranted in law – appeals dismissed

CRIMINAL LAW – Appeal – Appeal against conviction – Appellants charged with an offence of contravening a condition of an approval issued under the Water Management Act 2000 (NSW) – Allegation contravention constituted by taking water from the Darling River when the flow of the river was equal to or less than a stipulated flow – Whether the primary judge erred in finding that all elements of the charge were established – Whether the trial judge reversed the onus of proof – Whether the trial judge erred in accepting evidence of a conversation between the first appellant and an officer of the respondent – No error established – Appeal dismissed EVIDENCE – Whether the trial judge erred in admitting evidence of measurements of flow rate of the Darling River which had been taken by officers of the respondent - Whether such evidence was properly regarded as opinion evidence – Distinction between evidence of opinion and evidence of observations – Where the evidence of recorded observations did not involve reaching any conclusion or forming any judgment by applying a process of reasoning from the facts observed – Evidence was not opinion evidence – No error established

CRIME – appeals – appeal against sentence – three co-offenders aged 16 and 17 at time of offending - robbery armed with a dangerous weapon, assault with intent to rob whilst armed and larceny – appeal by JC1 – where applicant was serving a sentence for later offending at time sentence imposed - whether sentencing judge erred in failing to take into account the other sentence - whether insufficient disparity between aggregate sentence imposed on applicant and co-offenders – where both co-offenders also serving sentences for later offending at time sentence imposed - where starting dates for co-offenders’ sentences took account of the other sentences imposed on them – where sentencing judge otherwise appropriately took into account similarities and differences between offenders and was conscious of parity issue – where the failure to take account of applicant’s earlier sentence resulted in an unfair disparity with co-offenders - applicant re-sentenced to same sentence commencing at earlier date to take account of time spent in custody on earlier sentence CRIME – appeals – appeal against sentence – appeal by GN – whether sentencing judge impermissibly used the Henry guideline judgment in sentencing – where two-stage process not engaged in and Henry guideline judgment appropriately taken into account – whether sentencing judge erred in not properly considering applicant’s youth – where appropriate consideration given to matters involved in sentencing young person – appeal dismissed

CRIME — Appeals — Appeal against sentence – whether sentencing judge fell into Muldrock error – where sentencing judge found “very high” objective gravity and observed that but for the applicant’s young age she would have considered the SNPP appropriate – where sentence imposed was significantly less than SNPP – where sentencing remarks read fairly and as a whole demonstrate that sentencing judge did not place determinative significance on SNPP – held, no error – whether sentencing judge erred in finding that applicant would not experience hardship in custody due to PTSD – where applicant was kidnapped at gunpoint three weeks prior to the offence – where applicant consulted psychologist for PTSD symptoms prior to offence – held, error established – applicant re-sentenced

CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt — Where dispute turns upon a claimed “acknowledgement” of indebtedness.