Cases and authorities

CONTRACTS – construction – mining tenements – royalty payable as percentage of net sales realisation – proper construction of that expression – whether defendant repudiated contract – whether plaintiff entitled to terminate – accrued rights – calculation of loss of bargain damages

CORPORATIONS — Receivers, controllers and managers — Duties and liabilities — Whether sale process co8ntemplated by earlier consent orders would result in assets being sold at undervalue — Whether receiver has taken reasonable steps to obtain market value for company assets. JUDGMENTS AND ORDERS — Amending, varying and setting aside — Inherent jurisdiction —Whether substitute order should be made altering the process of sale of company assets provided for in earlier consent orders of the Court.

CIVIL PROCEDURE — Stay of proceedings — Pending appeal — Whether reasons to grant stay of proceedings. COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise. COSTS — Party/Party — Exceptions to general rule that costs follow the event —Calderbank offers — Whether unreasonable not to have accepted Calderbank offer.

PRACTICE AND PROCEDURE – CROSS VESTING – Whether Supreme Court of Western Australia is more appropriate forum – evidence as to connection of transaction with New South Wales and Western Australia and location of parties, witnesses and legal representatives neutral – such considerations not making it possible to say one court is more appropriate than the other – agreed governing law and jurisdiction clause must be considered – that it is more appropriate that the proceedings be determined by the West Australian Supreme Court not established.

CORPORATIONS — Winding up — Statutory demand — Affidavit in support of application — Scope and application of Graywinter principle — Where reply affidavit went beyond scope of earlier affidavit. CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt. CORPORATIONS — Winding up — Statutory demand — Offsetting claim. CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether demand amounts to an abuse of process — Whether defect in the demand — Where parallel proceedings brought against guarantors

LIMITATION ACT – lender advances loan 14 years ago – fraudulent broker mis-directs funds to girlfriend – fraud discovered 12 years ago – broker imprisoned – plaintiffs repay lender 9 years ago – equitable claim against lender for unconscionable conduct – s 12GF(2), ASIC Act applies by analogy – whether unjust to apply – not unjust if applied from when plaintiffs aware of fraud.

ADMINISTRATIVE LAW – judicial review – jurisdictional error – error of law on the face of the record – Motor Accidents Compensation Act 1999 (NSW), s 69(3) – power requiring decision maker to consider whether there was reasonable cause to suspect material error in medical assessment - whether decision maker exceeded statutory role by determining asserted error on the merits

ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – where approved medical specialist made assessment in accordance with guideline issued under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where appeal panel revoked initial assessment inferentially on basis that guideline inconsistent with requirements of s 323(1) of Act – whether guideline inconsistent with Act – effect of inconsistency with Act – whether appeal panel made error of law STATUTORY INTERPRETATION – subordinate legislation – scope of empowering provisions – where primary legislation provides for a deduction for any proportion of an impairment due to a previous injury or pre-existing condition or abnormality – where primary legislation provides that impairment is to be assessed in accordance with guidelines – where the application of guidelines would require nil deduction for pre-existing but asymptomatic psychiatric injury or condition – whether guidelines inconsistent with primary legislation – whether guidelines beyond power WORKERS COMPENSATION – medical assessment – assessment of degree of permanent impairment – deduction for pre-existing impairment – where claimant suffered previous psychiatric injury – where condition related to previous psychiatric injury asymptomatic at time of present injury – where asymptomatic condition contributed to impairment suffered as a result of present injury – whether any deduction should be made

SUCCESSION – appropriate substitute for specific devise – property subject of specific devise sold by administrator to pay debt – need to put specific devisees in materially the same position that they would have been in if the sale had not occurred – how rights of beneficiaries should be adjusted –whether substitution of specific property from residuary real estate appropriate – need for equivalence in value VALUATION – courts and tribunals – appeals – whether judge erred in discounting value of property for contingencies – acceptance of expert evidence required evaluative conclusions to be made – standard of appellate review analogous to that described in House v The King SUCCESSION – trusts and trustees – judicial advice, Trustee Act 1925 (NSW), s 63 – whether judicial advice given – parties concurred in primary judge himself determining the issue of what adjustment of the rights of the beneficiaries should be made – broad powers of the Court under UCPR r 54.3

ESTOPPEL — estoppel by representation — detrimental reliance — whether terms of representation proved — whether claimant actually relied upon alleged representation SUCCESSION — family provision — claim by member of household for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — whether factors warranting —provision of household care to deceased — conscious misuse of special disadvantage of deceased — significance of reliance upon alleged agreement to leave real estate in will EQUITY — fiduciary duties — unauthorised profit — bank cards and personal identification number entrusted for certain purposes — retention of excess cash for fiduciary’s personal use EQUITY — unconscionable conduct — special disability or disadvantage — whether unconscientious advantage taken

SENTENCING – application for leave to appeal out of time – applicant seeks consideration of time spent in custody on other charges that were later withdrawn – time was considered by sentencing judge – Bugmy – tender of additional evidence to show dysfunctional family background – before sentencing judge applicant contended had strong family support – additional evidence inconsistent with case run before sentencing judge – tender of evidence rejected –leave refused

CRIMINAL LAW – appeal against sentence - single ground - manifest excess - drug supply - ongoing supply of cocaine - supplying a commercial quantity MDMA - more than a street dealer - strong subjective case - rehabilitation - death of cousins leading to downward spiral - substantial adjustment to standard non-parole period - sentencing discretion - whether sentence plainly wrong or unjust - appeal dismissed

EVIDENCE – expert evidence – whether opinion within expert’s specialised knowledge – whether answer elicited in expert report a mere ipse dixit – discretion to exclude or limit the use of evidence – answer admitted

CIVIL PROCEDURE — stay of proceedings – injurious falsehood – where alleged falsehoods arose from allegations of sexual misconduct on the part of the plaintiff – allegations made by the defendant’s daughter – where defendant sent emails to board members regarding alleged of sexual misconduct – whether proceedings for injurious falsehood should be stayed pending the resolution of civil proceedings brought by the complainant against the plaintiff – similarity of issues in proceedings – undesirability of same evidence being given in both proceedings – whether stay would just, quick and cheap resolution of both proceedings – notice of motion dismissed

EMPLOYMENT AND INDUSTRIAL LAW — Contract — Restraint of trade — Application for interlocutory injunction — whether plaintiff has a sufficiently serious arguable case for a final injunction having regard to the balance of convenience

PERSONAL INJURY – judgments – set off against costs orders – interest on costs orders -when interest runs from – workers compensation entitlements – whether written agreement entered into under s 66A of Worker Compensation Act 1987 – no agreement found – plaintiff declined opportunity to enter into agreement or apply for compensation – relief granted

COSTS — Discontinuance — Power to make an order other than that the plaintiff pay the defendant’s costs — Where plaintiff discontinued after receiving new information from the decision-maker shortly before the hearing — Where defendant could have provided similar information in response to earlier requests — Whether parties should bear their own costs

CIVIL PROCEDURE – Approval of settlement – Legal incapacity – Plaintiff of an advanced age – Where shares in wound up company held on trust by defendant on condition he care for the plaintiff – Whether settlement in plaintiff’s best interests – No question of principle – Approval granted

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Whether unreasonable not to have accepted Calderbank offer. COSTS – Party/Party – Exceptions to general rule that costs follow the event – Where claim was without substance.

CORPORATIONS – Scheme of arrangement – Application for order convening meeting of members to consider scheme of arrangement.

CORPORATIONS — capital raising — disclosure — shares to be issued to sophisticated and professional investors who acquire them for re-sale — cleansing notice lodged by issuer invalid because issuer’s shares not quoted continuously for three months and cleansing notice issued earlier than time permitted under s 708A(6)(a) — order sought to validate cleansing notice under s 1322(4) — order sought to relieve acquirers from liability for re-sale of shares without disclosure — where issuer and acquirers acted honestly — where no substantial injustice caused

COSTS — proceedings resolved by consent orders made against first defendant after first defendant capitulated to plaintiff’s claims — no substantive order made against second defendant — plaintiff sought costs orders against both defendants — general rule that costs follow the event — where no determination on merits but capitulation by first defendant — where the plaintiff is a member of the first defendant company — whether appropriate to make a costs order against the second defendant who is the sole director of the first defendant company

COSTS – interlocutory proceedings – costs to follow the event – no issue of principle

NEGLIGENCE – breach of duty – motor vehicle accident – failure to keep a proper lookout and slow vehicle NEGLIGENCE – causation – factual causation – motor vehicle accident – whether expert opinion was necessary to establish causation – whether evidence of time and distance was too imprecise to support a finding of causation EVIDENCE – witness evidence – cross-examination – procedural fairness – Browne v Dunn – substance of the case allegedly not put to respondent in cross-examination – whether prior notice had nevertheless been given to respondent of cross-examining party’s case

COSTS – where successful appellant succeeds on appeal on a point different to that made orally at first instance – where departure from argument made orally (but not in writing) at first instance justifies a partial departure from usual rule that costs follow the event – question of discretion in all the circumstances of the case.

PRACTICE AND PROCEDURE – joinder – appeal against refusal of application to modify development consent – parties agree on terms of a decision to dispose of appeal – intervenor raising jurisdictional issue that court has no power to so dispose of the appeal – source of power to join intervenor – whether s 8.15(2) Environmental Planning and Assessment Act available power for joinder – section 8.15(2) not an available power of joinder for this appeal – whether r 6.24 Uniform Civil Procedure Rules alternative source of power for joinder – whether joinder as a party necessary to determine all matters in dispute - whether power to amend modification application – whether error in exercise of discretion to join intervenor – whether joinder legally unreasonable

EVIDENCE – relevance – ambiguous use of descriptor – opinion of a layperson

EVIDENCE – business record – where plaintiff’s father made representations on a form contrary to plaintiff’s present case – whether father had or reasonably be supposed to have had knowledge of asserted fact – whether knowledge directly or indirectly supplied to father – no evidence to support contention EVIDENCE – admissions – whether son adopted his father’s statements by signing the form – where son had no recollection of events – whether it is reasonably open to find the son made the admission – form admitted

EVIDENCE – relevance – work order the subject of a subpoena relates to work carried out on a roadway after the motor vehicle accident – wide scope of subpoena – cause of loss of control of vehicle a fact in issue – documents admitted

CIVIL PROCEDURE – interlocutory applications – where plaintiff brought a claim against insurers for total and permanent disability benefits – where plaintiff lacked capacity to conduct litigation – where NSW Trustee was appointed to act on her behalf – where NSW Trustee settled the proceedings and a notice of discontinuance was filed – where plaintiff applied to set aside the discontinuance – where plaintiff challenged the validity of the steps taken on her behalf by the NSW Trustee – where plaintiff sought an adjournment of the application to obtain funding and allow her to prosecute a constitutional matter – constitutional matter unrelated to present application – adjournment refused – NSW Trustee had power to conduct and settle the proceedings – application to set aside discontinuance dismissed with costs

APPEALS – Damages – Negligence – Vehicle accident – Vicarious liability – Abuse of process – Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1) – Dismissal of statement of claim – Appeal dismissed

MENTAL HEALTH – application for an interim order extending status as a forensic patient – no question of principle

ADMINISTRATIVE LAW — Medical assessment under the Motor Accidents Compensation Act 1999 (NSW) — Review of medical assessment by a review panel — Review panel decided that injury sustained by medical treatment not caused by motor vehicle accident – Issue of causation — Original injury carries some risk that medical treatment administered by reason of it will cause further harm — An indirect, but foreseeable, consequence is sufficient to establish causation — Application of incorrect legal test amounts to an error on the face of the record

HIGH RISK OFFENDER – application for renewal of Interim Supervision Order – where ISO made 12 months earlier – where defendant incarcerated since ISO first made – whether sufficient evidence at time renewal was sought to justify renewal of the ISO – where final hearing was imminent

CIVIL PROCEDURE – Subpoenas – Application to set aside – Abuse of process – Whether subpoena for production of document is an abuse of process seeking impermissible discovery CIVIL PROCEDURE – Subpoenas – Objection to production of documents or things – Client legal privilege – Whether privilege has been waived

CORPORATIONS — winding up — application for adjournment of winding up application under Corporations Act 2001 (Cth) s 440A(2) — where administrators appointed on eve of hearing of application to wind up company in insolvency — where administrators have formed the view that the company is obviously insolvent — where administrators refer to prospect of deed of company arrangement utilising loan funds, but lender has failed to provide loan funds in accordance with relevant loan agreement for previous two years — prospect of deed of company arrangement raised by company director in very vague terms — whether sufficient evidentiary basis to conclude that continuation of administration to allow administrators to investigate deed prospects is in the interests of creditors — adjournment application refused — company wound up in insolvency

APPEALS – procedure – stay pending appeal

SENTENCING – life sentences – mandatory life sentences for certain offences – murder – whether sentencing judge adopted a two-stage approach to sentencing – Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1) SENTENCING – appeal against sentence – informers – sentence reduced because of assistance to enforcement authorities – where sentencing judge did not distinguish between past and future assistance – Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 SENTENCING – appeal against sentence – by Crown against reduced sentence for assistance to authorities – post-sentence conduct – where past assistance given – where failed to fulfil undertaking to give evidence – whether Crown received utilitarian benefit notwithstanding failure to fulfil undertaking – Criminal Appeal Act 1912 (NSW), s 5DA

CRIMINAL PROCEDURE – Suppression and non-publication orders – existing material online said to be prejudicial to the accused – content of about 100 internet articles unclear – identified articles are old – orders futile and not necessary – application for take down orders dismissed

CRIMINAL PROCEDURE – Suppression and non-publication orders – suppression of details pertaining to a surveillance device – orders necessary to prevent prejudice to the interests of the Commonwealth in relation to national security –national interest substantially outweighs confined derogation from open justice – orders made

CONTRACTS – formation of contracts – intention to make concluded bargain – lessee sought to negotiate new five-year lease with lessor – retail shop premises – parties reached consensus as to terms necessary for a new lease but did not execute a lease document – previous lease dealt comprehensively with the parties’ obligations to each other – no discussion of a number of important matters including insurance, bank guarantee and guarantee of lessee’s obligations – requirements of Retail Leases Act 1994 (NSW) not met – not implicit that the parties intended to be bound on the terms of previous lease save for changes to accommodate the matters agreed upon in negotiations – held that the parties did not intend to be bound immediately – no binding agreement reached LAND LAW – leases – Retail Leases Act 1994 (NSW) (“the Act”) – “retail shop lease” – necessary that there be a concluded agreement intended to be binding whereby a right of occupation is granted – no such agreement concluded for a right of occupation for a 5 year term with an option for a further term of 5 years – section 8 of the Act is concerned with when a retail shop lease is deemed to have commenced or been entered into not whether a retail shop lease has come into existence – no retail shop lease came into existence

JUDGMENTS AND ORDERS – Court of Appeal – Stay of execution of writ for possession – Further stay – Where little progress made since initial stay – Where pro bono referral unavailing – Where applicant did not have published reasons for judgment regarding previous stay – Where original document constituting fresh evidence with indicia of authenticity raising serious question of miscarriage of justice in decision below said to have been sent to Court – Stay extended – Where any further extension will require very prompt steps to progress proceedings CIVIL PROCEDURE – Representation – Unrepresented litigant – Pro bono referral – Second referral – Special reasons – Where barrister on first referral did not have benefit of published reasons for judgment regarding previous stay – Referral made

CIVIL PROCEDURE – Court of Appeal – leave to appeal – notice to produce – no issue of principle

UNCONSCIONABLE CONDUCT — Where appellant excluded from negotiations after admission to hospital — Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA, 12CB — Whether respondents took unconscientious advantage of the appellant’s disabling condition — Australian Securities and Investments Commission Act 2001 (Cth), s 12GM(7) — Whether appellant suffered any compensable loss

EQUITY — Trusts and trustees — Judicial advice — Where trust formed for purpose of making payments to creditors following administration of company — Where orders made under Trustee Act 1925 (NSW) would allow trustees more practically to administer the trust in the interests of beneficiaries.

CIVIL PROCEDURE — Interim preservation — Freezing orders – release of funds paid into court – whether necessary for second defendant’s living expenses and funding of defence – where second defendant restrained from selling property – limited release of funds ordered

CIVIL PROCEDURE – judgments and orders – application to set aside consent judgment on the ground of illegality – dispute concerning loan agreement – where money originally came from China – where lender first transferred money to borrower in China – where borrower then used an internet business to transfer money to Australia – where internet business was not an approved foreign exchange bank in China – whether transfers to Australia were contrary to Chinese foreign exchange laws – consideration of principle in Foster v Driscoll and Regazzoni v KC Sethia – evidence did not establish a breach of Chinese law – transfer of money via internet business did not involve foreign exchange trading – transactions did not result in “serious” interference with market order – even if an offence had been committed, it was doubtful whether that meant the loan was illegal under Australian law – application was too late in any event – consent judgment had been regularly and legally entered by consent – application dismissed

CONSUMER LAW — Misleading or deceptive conduct — Reliance upon misleading representations — Representation as to acquisition and contribution of assets into the company — Where representation not falsified. EQUITY — Fiduciary duties — Conflict of interest and duty — Where director alleged to have burnt down the business premises — Where such finding was a necessary step to finding breach of fiduciary duties.