Cases and authorities

INSURANCE – life and disability insurance – where claim for total and permanent disablement – where definition required insured to be totally and permanently disabled after three month absence from “Own Occupation” – whether three month period must commence on date insured left employment – whether insured can satisfy definition due to psychological condition arising after initial three month absence from engaging in occupation INSURANCE – claims – proof – where claim for total and permanent disablement – whether medical evidence establishes insured unable and unlikely ever again to be able to engage in “Own Occupation”

JUDGMENTS AND ORDERS – amending, varying and setting aside – motion under UCPR r 36.16 to set aside previous judgment of Court refusing leave to appeal – arguments advanced by applicant plainly groundless and either previously addressed by the Court or not advanced on the previous occasion when the opportunity to do so existed – public interest in the finality of litigation – no change in circumstances or other good reason to permit further leave application to be made

CIVIL PROCEDURE – notices to admit – where formal admission made by the transferring party that transfer made with intent to defraud – whether admission binding on other parties to proceeding against whom intent to defraud must be proved CONVEYANCING – transfers in fraud of creditors – Conveyancing Act 1919 (NSW), s 37A – where partly encumbered properties transferred at undervalue – whether transferred with intent to defraud creditors – whether appellant a person prejudiced by transfers – whether transferee had notice of intent to defraud – meaning of “notice” in s 37A(3)

APPEALS — Nature of appeal — Appeal by way of rehearing — sentence appeal pursuant to ss 11 and 17 of the Crimes (Appeal and Review) Act 2001 — de novo hearing — requirement that judge engage in fresh sentencing task — where judge adopted lower court’s reasoning – whether judge failed to engage in task imposed by s 17 — whether constructive failure to exercise jurisdiction SENTENCING — Penalties — Intensive correction orders — where sentencing assessment reports indicated offender was a low risk of reoffending and was suitable for community service — whether community safety is a mandatory element for consideration under s 66(2) Crimes (Sentencing Procedure) Act — requirement for court to engage in assessment as to whether an ICO or full-time detention is more likely to address an offender’s risk of reoffending

OCCUPATIONS — Legal practitioners — Misconduct and discipline — where solicitor alleged to have deliberately misled statutory authority including by fraudulently altering a document in order to obtain a grant of funding for legal representation of a client — absence of any direct evidence that solicitor altered the document — whether circumstantial evidence capable of supporting allegations

SENTENCING – aggregate sentence – intended concurrency with prior sentence – error in fixing commencement – aggregate sentence to be partly accumulated on earlier sentence – sentence to commence 1 month after the expiry of the non-parole period imposed for the earlier offending SENTENCING – aggregate sentence – manifest excess – degree of concurrency of indicative sentences – one course of offending conduct –offence of intimidation subject to lower indicative sentence than the less serious offence of aggravated entry

SENTENCING — Appeal against sentence — whether miscarriage of justice occasioned by incompetence of applicant’s solicitor at sentence proceedings — where solicitor failed to obtain evidence from police about applicant’s assistance to authorities — where solicitor failed to obtain or tender evidence about applicant’s mental illness — where that evidence would have established mitigating factors relevant to the sentencing task OCCUPATIONS — Legal practitioners — Duties and liabilities — where appeal against sentence involves alleged incompetence of applicant’s solicitor at trial — where client legal privilege waived — where solicitor reluctant to provide information or affidavit concerning conduct at trial — obligation of a lawyer to assist the court where a ground of incompetence is raised — overriding duty to the Court APPEALS — Procedure — where new evidence tendered on appeal against sentence — where expiration of applicant’s non-parole period imminent — whether Court of Criminal Appeal should remit matter to District Court or allow evidence to be tested on appeal

CRIME – appeals – appeal against sentence – failure to take into account a relevant consideration – whether sentencing judge erred in his assessment of the significance of the death of Man Haron Monis – personal deterrence, future dangerousness and prospects of rehabilitation CRIME – appeals – appeal against sentence – facilitation of the administration of justice – s 22A Crimes (Sentencing Procedure) Act 1999 (NSW) – whether s 22A requires a two-stage approach or instinctive synthesis approach to sentencing –desirability of quantifying any discount imposed CRIME – appeals – appeal against sentence – re-sentence – objective seriousness of offence – comparable cases

Criminal law – Defences – Provocation – Where appellant killed his wife in circumstances that left it open to find he was angered by belief she had been unfaithful and planned to leave him – Where appellant pleaded not guilty to murder on basis that killing resulted from loss of self-control caused by provocation by deceased – Where appellant contended at trial that state of loss of self-control excited by deceased's conduct in grabbing knife, threatening him with it and cutting his right palm – Where s 304(3) of Criminal Code (Qld) excluded defence of provocation (save in circumstances of most extreme and exceptional character) in case of unlawful killing of accused's domestic partner where sudden provocation "based on" anything done, or believed to have been done, by deceased to end or change nature of relationship or indicate in any way that relationship may, should or will end or change ("to change relationship") – Whether exclusion of defence in s 304(3) confined (save in circumstances of most extreme and exceptional character) to cases where conduct of deceased relied upon as causative of accused's loss of self-control consists of thing done, or believed to have been done, by deceased to change relationship – Whether operation of s 304(3) to exclude defence question of law. Words and phrases – "based on", "causation simpliciter", "causative potency", "caused by", "domestic killing", "domestic relationship", "elements of the defence", "loss of self-control", "nominated conduct", "partial defence", "provocation", "provocative conduct", "question of law", "sudden provocation", "to change the nature of the relationship", "true defence", "wider connection". Criminal Code (Qld), s 304(1), (2), (3), (7).

Minister for Home Affairs v DUA16 Minister for Home Affairs v CHK16 Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where applicants engaged registered migration agent to provide submissions to Authority – Where agent fraudulently provided pro forma submissions – Where fraudulent submissions contained personal information relevant to a different person – Where Authority unaware of fraud but aware that submissions erroneously related to another individual – Where Authority disregarded information relating to another individual – Whether agent's fraud stultified Authority's review – Whether Authority's decision was vitiated by agent's fraud – Whether agent's fraud contributed in adverse way to exercise of any duty, function, or power by Authority – Whether Authority's failure to seek corrected submissions containing potentially new information legally unreasonable. Words and phrases – "agent", "fraud", "fraudulent submissions", "legal unreasonableness", "new information", "personal circumstances", "personal information", "practice direction", "statutory review function", "stultified", "submissions", "vitiate". Migration Act 1958 (Cth), Pt 7

Evidence – Admissibility – Trespass – Where appellant charged with breach of Domestic Violence Order ("DVO") – Where DVO included condition that appellant not remain in her partner's presence while intoxicated – Where police attended unit occupied by appellant and her partner for purpose of DVO check – Where police engaged in wider proactive policing operation – Where police knocked on front door and asked appellant to come to door for DVO check – Where police observed signs of intoxication and requested appellant submit to breath test – Where breath test positive for alcohol – Whether evidence of breath test lawfully obtained – Whether police trespassed – Whether common law implied licence permitted police to approach unit and knock – Whether lawful purpose to attend unit. Words and phrases – "breath test", "coercive powers", "common law implied licence", "Domestic Violence Order", "implied licence to enter private property", "interference with an occupier's possession", "lawful communication with an occupier", "lawful purpose", "police", "proactive policing", "trespass". Police Administration Act (NT), s 126(2A). Domestic and Family Violence Regulations (NT), reg 6.

CONTRACTS — Performance — Whether loan advance paid pursuant to loan agreement EQUITY — Trusts and trustees — Express trusts — Unit trusts — No intended unitholder had subscribed for their units — Whether trust in existence

CRIME — Appeals — Appeal against conviction — Property offences — Aggravated unlawful entry on inclosed lands — Defences — Necessity — Whether magistrate erred CRIME — Appeals — Appeal against sentence — Manifest excess SENTENCING — Appeal against sentence — Co-offenders — Disparity between sentences — Where same penalty imposed on all offenders — Alleged disparity due to differing financial circumstances of offenders

CIVIL PROCEDURE – service outside Australia – service in United States of America – application to set aside service CIVIL PROCEDURE – intervening application to amend process to substitute different plaintiff – whether proposed amendment futile because service of amended process would not be authorised by UCPR

CONSUMER LAW – misleading or deceptive conduct – whether defendants misrepresented effect of proposed changes to share purchase agreement – whether plaintiff misled by defendants’ communications about those amendments – whether plaintiff signed payment instruction under a mistake of fact

Paragraphs 57, 73, 110(a)-(b), 172(a)-(c) and 194 of Statement of Claim struck out with leave to replead consistent with judgment. Strike out application unsuccessful on other paragraphs.

CIVIL PROCEDURE – Proceedings brought by persons under legal incapacity – Settlement of proceedings – Court Approval – No points of principle

EQUITY — Unconscionable conduct — Whether parties’ “Real Estate Sale and Purchase Agreement” should be set aside for unconscionable conduct on the part of the defendant — Where plaintiff unwell and had poor eye sight — Where plaintiff told defendant about his poor health and financial predicament — Where agreement improvident from the plaintiff’s perspective — Where defendant has failed to make payments under the contract — Defendant found to have knowingly taken advantage of plaintiff so as to obtain a place to live rent free — Agreement set aside EQUITY — Unconscionable conduct — Whether the plaintiff should be required to compensate defendant for time and money spent improving the plaintiff’s property where parties’ “Real Estate Sale and Purchase Agreement” set aside — Where no consent or acquiescence on the part of the plaintiff — Where defendant found to have contrived the claim for money and time spent in order to create a set off that would enable him to avoid payment of the purchase price — Where no evidence provided to support assertions as to time and money spent CONTRACTS — Express terms — Implied terms — Formation — Whether parties’ “Real Estate Sale and Purchase Agreement” contained an express or implied term entitling the defendant to be reimbursed for monies spent on the subject property, or whether the parties made an oral agreement to that effect CONTRACTS — Breach of contract — Whether the defendant breached the parties’ “Real Estate Sale and Purchase Agreement” — Where defendant avoided paying monies due under the agreement on the basis that he was owed money for work done on the property LAND — Judgment for possession — Writ of possession — Where parties’ “Real Estate Sale and Purchase Agreement” set aside for unconscionable conduct on the part of the defendant

CONSUMER LAW – misleading or deceptive conduct – silence or non-disclosure – where third defendant engaged in misleading or deceptive conduct by not disclosing that he had caused the company of which he was sole director to grant two unrelated parties identical nomination rights

CONTRACTS – construction and interpretation – where agreement as to “commercial arrangements” to apply to radiology practice conducted through corporate trustee of unit trust – where units held by doctors’ discretionary trusts – whether doctors liable to pay shortfall in event business runs at loss – whether loss had to be based on audited financial accounts – no question of principle

CRIME - sentence appeal - accessory after manslaughter and related offence - 2 year 10 month aggregate sentence after substantial discounting of indicative sentences - starting point for indicative for accessory offence not excessive because serious example of serious offence and neutral subjective case - asserted grievance at disparity with principal offender later sentenced for assault causing death - not legitimate because principal offender's sentence inadequate - appeal dismissed

BAIL – release application – application for bail for purposes of appeal against conviction and sentence to be heard by Court of Criminal Appeal – applicant convicted of offences of robbery in company and attempted take and drive vehicle in circumstances of aggravation (being in company) – special or exceptional circumstances test – assessment of strength of grounds of appeal – consideration of factors relevant to bail – release application dismissed

LAND LAW — Restrictive covenants — Extinguishment of restrictive covenants — Extinguishment by order of court – in 1948 Woollahra Municipal Council (“the Council”) sold Lots 9 and 101 to Double Bay Bowling Club (“the Club”) and imposed as a condition of sale a Restrictive Covenant which prohibited the Club from using the lots for any purpose other than a recreational purpose connected with a bowling club (“the Covenant”). Lot 101 is used as a bowling club. Lot 9 had, until 2018, a cottage which was rented to the Club’s greenkeeper. The cottage has been demolished and two townhouses are now being constructed on Lot 9 pursuant to a development consent given by the Council in 2017 – the Club seeks to have the Covenant removed from Lot 9 on a number of grounds including obsolescence – town planning evidence that use of Lot 9 for recreational purposes is now prohibited under current zoning and use as a residence for a greenkeeper for the Club’s bowling club (at Lot 101) was in breach of the Covenant and was not a recreational purpose – Consideration of discretionary factors under s89(1) of the Conveyancing Act 1919 (NSW) (“the Conveyancing Act”) – Held: the Covenant imposed on Lot 9 should be extinguished pursuant to s 89(1)(a) and (c) of the Conveyancing Act because it was obsolete, impeded the reasonable use of the lot and because there was no practical benefit that would be lost or likelihood of harm to the Council if the Covenant were extinguished. CONTRACTS — Formation — Agreement – the Council asserts it and the Club entered into a binding agreement pursuant to which the Council agreed to removal of the Covenant and in return the Club agreed to a new restriction that would require the Club on sale of Lot 9 to pay to the Council an amount based on what was described as the “Before and After Method” of valuation – whether the parties entered into a binding agreement – whether a typed name in email constitutes a signature – Masters v Cameron categories of agreement considered and whether the parties intended to make a concluded bargain; whether the requirements of s 54A of the Conveyancing Act were met – Held: no binding agreement was entered into between the parties. Alternatively, if there was a binding agreement, that agreement was abandoned by the parties.

EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Whether report admissible — Nature of contents of report — Relevance

CORPORATIONS – winding up – liquidators – application for leave under Corporations Act 2001 (Cth), s 477(2B) – extension of vendor finance provided by liquidator – no delay to winding up – consent by all contributories – leave granted

PLEADINGS – strike out – solicitor resigns and establishes new law firm – former employer receives 146 file transfer requests to new firm – solicitor sued for breach of fiduciary duties – employee files cross-claim seeking work injury damages for bullying causing mental illness – workers compensation legislation not complied with – employee not presently entitled to bring cross-claim – whether workers compensation legislation applies to cross-claims – whether equitable set-off – cross-claim struck out.

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — Anshun estoppel — Whether unreasonable not to raise in prior proceedings — Where acts constituting oppression arose after judgment reserved in first of prior proceedings — Where second of prior proceedings was narrow in scope

CORPORATIONS - winding up - unreasonable director-related transaction - Corporations Act 2001 (Cth), s 588 FDA - transfer of unit in development project to company owned by sole director - consideration of $1 - whether disposition “for the benefit of” director - Vasudevan v Becon Constructions (Aust) Pty Ltd (2014) 41 VR 445; [2014] VSCA 14 applied

CRIMINAL LAW – murder – accused unfit to be tried – special hearing – judge alone – psychiatric diagnosis of treatment resistant schizophrenia – whether defence of mental illness established – M’Naghten rules – not guilty on the ground of mental illness

CIVIL PROCEDURE - pleadings - application for leave to file amended statement of claim - plaintiffs seek orders for court imposed easement pursuant to s 88K of the Conveyancing Act 1919 (NSW) - defendants oppose leave on the basis that it would be liable to be struck out where it discloses no reasonable cause of action - whether plaintiffs required to plead material facts relevant to matters in s 88K(2)(a)-(c) of the Conveyancing Act - held that matters in s 88K(2)(a)-(c) are preconditions to a claim for a court imposed easement - held that plaintiffs failure to plead facts relevant to whether the second defendant can be adequately compensated for loss or disadvantage and that all reasonable attempts have been (unsuccessfully) made to obtain easement otherwise would make amended statement of claim liable to be struck out - leave refused.

CIVIL PROCEDURE – implied undertaking – application for leave to use in other proceedings documents obtained under compulsion in present proceedings –release from undertaking for purpose of foreshadowed preservation application.

CORPORATIONS — Shares — Dealings in shares — Issues or transfers of shares to controlled entities — Crossing and special crossing transactions not covered by s 259C exception or ASIC exemption — Application for s 1322 validation — Honest mistake — No prejudice — Prejudice to subsequent acquirers if not validated.

CONTEMPT – Criminal contempt – Contumacious of the authority of the Court — Deliberately misleading the Court – Where the defendant provided the Court with false emails purporting to be from the owners of a property consenting to the stay of eviction orders against her Sentencing considerations – General and specific deterrence – No genuine contrition – Where defendant continued to advance false evidence in Court –Offence not out of character – History of offences involving deception – Impact of mental illness – Where defendant suffered long history of abuse and mental health problems Penalties – Discretion to impose term of imprisonment – No other penalty appropriate in the circumstances

CORPORATIONS – insolvent trading – claim against director under s 558G and 588M of the Corporations Act 2001 (Cth) for insolvent trading – whether companies were insolvent or became insolvent by incurring the debts – whether there were reasonable grounds to suspect that company was insolvent or may become insolvent by incurring the debt – whether director was aware that there were reasonable grounds to suspect insolvency or a reasonable person would have been aware – liquidator’s failure to obtain requisite approval for entry into assignment agreement imposing obligations on liquidator.

CRIME – murder – application for trial by judge alone – issues of mental illness and substantial impairment – credibility a neutral issue – mitigating coronavirus delays significant factor in interests of justice – application granted

CIVIL PROCEDURE – professional negligence and misleading and deceptive conduct – where purchase of land made by plaintiff retaining defendants as its solicitors on the transaction – where defendants retained to carry out due diligence analysis of property – where land adversely affected by flood control restrictions – where report indicated land unaffected – where plaintiff not made aware of flood control restrictions until after settlement – whether defendants allegedly engaged in misleading and deceptive conduct or breached their retainer – whether plaintiff suffered loss in any event – whether Potts v Miller indicated the correct method of calculating losses on a purchase of land for redevelopment and sale – no loss established

CRIMINAL LAW – appeal asserting error of law against decision of magistrate to commit for trial as opposed to sentence – “detain for advantage” – plaintiff conceded detention of complainant with intent to obtain an advantage, but disputed precise advantage alleged by prosecution – whether specific advantage sought to be obtained is an element or essential fact of the offence – statutory interpretation of offence-creating provision – reflection on other offences in the Crimes Act – discussion of authorities about classification of facts as elements, essential facts, or mere facts – appeal allowed in a practical sense, with draft consent orders to be brought in by parties in accordance with determinations

COSTS – no issue of principle

CRIMINAL LAW – appeal against sentence – manifest inadequacy – work health and safety – duty of persons undertaking business – construction work – fall from height through unprotected penetration resulting in death – penalty inadequate – appeal allowed

CRIMINAL LAW – appeal against sentence – drug manufacture and supply – possession of firearms – whether applicant a principal in drug offences – whether drug offences exacerbated by firearms offences – whether trial judge erred in failing to discount for assistance by surrender of additional firearms – whether sentence should be backdated for remand solely in respect of unrelated matter – leave to appeal granted – applicant resentenced

CRIMINAL LAW – appeal against sentence – possession of firearm with intent to intimidate – possession and discharge of firearm in a public place and while under the influence of alcohol – offer of plea to lesser charge – applicant found not guilty of more serious charge – applicant entitled to 25% discount – leave to appeal granted – applicant resentenced

CONTRACT – Construction – Where Binding Heads of Agreement made by the parties on 1 November 2019 contemplate the sale by the plaintiff to the defendant of its smash repairs business – Clause 7(b) under heading ‘Conditions Precedent’ required all necessary third party consents, authorisations and approvals being obtained (including the defendant’s Board Approval) – Whether on non-fulfilment of the condition there is no agreement for the sale and purchase of the plaintiff’s business – Whether the condition was operative – HELD – Non-fulfilment of the condition did not have the consequence that there is no binding agreement for sale – HELD – There is a binding agreement for sale – HELD – In any event, condition not operative because defendant’s Board Approval was not necessary – Order for specific performance.

CORPORATIONS – external administration – court-appointed receivers to trust assets – trustee being wound up – trustee ceased to be trustee of trading trust – no successor trustee appointed – entitlement of liquidator and receiver to have remuneration met out of trust assets – whether remuneration reasonable

COSTS – departure from the usual rule – application of Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 42.34 – where successful plaintiff received judgment in the sum of $10,000 for claims relating to trespass to plaintiff’s land – whether plaintiff’s claims for damages and injunctive relief for trespass to land and private nuisance could have been commenced in the District Court – whether such claims involve a question of title to land the value of which exceeds the jurisdictional threshold of the District Court – no evidence of value of relevant land – assuming District Court had jurisdiction, continuation of claims for trespass to land and private nuisance in the Supreme Court was warranted – defendant ordered to pay successful plaintiff’s costs COSTS – departure from the usual rule – apportionment of costs between claims or issues within the proceeding – whether appropriate – where plaintiff successful in obtaining judgment in the sum of $10,000 for claims relating to trespass to the plaintiff’s land but failed in respect of claim for injunctive relief and claim for damages in private nuisance – not appropriate to apportion costs in the circumstances of the case COSTS – departure from the usual rule – unreasonable conduct – where all parties engaged in unreasonable conduct which contributed to the commencement of the proceeding – not appropriate in those circumstances to depart from the usual rule COSTS – costs of proceedings for the imposition of an easement under Conveyancing Act 1919 (NSW), s 88K – whether putative servient owner engaged in unreasonable conduct in refusing to accept reasonable offers of compromise coupled with an unwavering attitude that it would not grant an easement on any terms – whether putative servient owner engaged in unreasonable conduct by maintaining various issues without reasonable cause – unreasonable conduct of putative servient tenement owner was at least partly responsive to unreasonable conduct of putative dominant tenement owner – costs order contrary to the position under s 88K(5) of the Conveyancing Act not warranted in the circumstances of the case PRACTICE AND PROCEDURE – jurisdiction – jurisdiction of the District Court of New South Wales – whether claim for trespass to land is an action in which “title to land…is in question” – consideration of the phrase “title to land…is in question” – District Court Act 1973 (NSW), s 48(2)

COSTS — Party/Party — Where matter not heard on the merits – Calderbank offer

PRACTICE AND PROCEDURE - proceedings commenced in Supreme Court - parties agree that transfer of proceedings to District Court is appropriate given quantum of claim - order made for transfer of proceedings to District Court

CRIMINAL LAW – murder – joint criminal enterprise - self-defence – excessive self-defence – audition video – use of swords and weapons – many weapons tendered on voir dire – defendant aspiring actor and model – skills in baton twirling – The Shannara Chronicles – dramatic music – effect of “cranky” face – probative value – potential prejudice

CORPORATIONS – OPPRESSION – principles at [217]-[224] – oppression of majority shareholder by minority shareholder – majority shareholder did not have control – minority shareholder with operational control excluded majority shareholder from management and obstructed efforts to remove capital on reasonable terms: at [247]-[248]. CORPORATIONS – Family engaged in hotel businesses – grandparents retire – grandparents fund land and construction of hotel in Wagga as gift to son and grandson – son is majority shareholder – grandson operates hotel, being his first hotel – son mentors and supervises grandson from Sydney – shareholders agreement – grandson to be general manager for 5 years in return for $1m and further 10% shares in operating company – grandson buys land to build hotel nearby without telling son – son issues buy-out notice – grandson rescinds shareholders agreement – CCTV feed relied on by son in Sydney is cut – sustained delay in implementing resolutions to sell land and business – grandson progresses own development over son’s protest – bad behaviour – police called – grandson resigns and claims $1.6m wages – deadlock – irretrievable breakdown of relations. CORRECT SHARE REGISTER – s175 Corporations Act – principles at [257]-[258] – not applicable where shares transferred under contract later repudiated when part-performed. OPPRESSION – remedies – principles at [259]-[261] – buy-outs at [268]-[270] – grandson offers to buy shares in operating company but not landholding company – won’t cure oppression – ample time to agree – won’t order buy-out but will stay winding up order for 14 days to permit buy out – amend share register. CORPORATIONS – winding up on just and equitable grounds – s 461(1)(k), s 467(4) Corporations Act – deadlock – irretrievable breakdown of relationship in family companies – companies are solvent – whether able to co-operate in one company but not the other – liquidator appointed to both companies. LIQUIDATORS – choice of liquidator – principles at [290]-[292] – no evidence that plaintiffs’ nominated liquidator lacked independence – cost advantages. RECEIVERS – ipso facto clause – trust constitution requires consent between deadlocked directors to appoint new trustee – interim receiver of assets of operating company appointed as receiver to assets of family trust.

CONTRACTS – oral agreement between first plaintiff and first defendant concerning proposed consolidation and possible development of three adjoining sites – where neither party made a note of the agreement – where neither party confirmed to the other in writing an understanding of the agreement – where no one else present when agreement made – where no dispute that a binding agreement was made concerning sharing expenses and profits of the venture – whether agreement was subject to the plaintiff finding buyer for the consolidated sites CONTRACTS – oral agreement between first plaintiff and first defendant concerning proposed consolidation and possible development of three adjoining sites – whether parties’ post contractual conduct casts light on true nature of the agreement

CORPORATIONS – Arrangements and reconstructions – Application under s 63 of the Trustee Act 1925 (NSW) for judicial advice with respect to the implementation of trust scheme – Whether scheme is fair and reasonable so that an intelligent and honest person who was a unitholder, properly informed and acting alone, might approve it – Whether issues resulting in small number of non-delivery of scheme materials were material – Where financial advisor related to Plaintiff engaged in communications to unitholders that were not disclosed to the Court at first hearing.