Cases and authorities

CORPORATIONS – parents lend $800,000 to son to buy ice cream business in Australia – parents live overseas – company formed – parents are shareholders and son is director – son runs business – son repays half of loan – son allotted 1,800 shares and becomes majority shareholder – son repays loan – son dies leaving shares to de facto husband – parents seek to correct register 14 years after shares allotted. SHARE ISSUE – power to allot shares – principles at [115]-[126] – allotment with knowledge and consent of parents. DIRECTORS – power to appoint director – whether director had power to appoint replacement director by a Will – cannot ‘hand down’ a directorship – power to appoint director ceased on death, at [154]-[159] – s201F Corporations Act 2001 at [170]-[171]. PROBATE – whether executor can exercise power to take appointment as director prior to grant of probate, considering Lockrey v Barnard James Fussell [2019] NSWCA 299 at [163]-[167] – appointment ineffective in any event – section 44 Probate and Administration Act does not cure invalid acts. CORPORATIONS – s 1322 Corporations Act – “just and equitable” at [176] – “substantial injustice” at [178]. EVIDENCE – events 16 to 20 years ago – reliance on what deceased said at [7] – forgery – onus and standard of proof at [8]-[9] – comparison of handwriting at [82] – Jones v Dunkel inference from failure to produce documents at [138] EQUITY – laches at [181]-[194] – estoppel at [195]-[199] – plaintiffs’ silence did not amount to a representation as no duty to inform the defacto husband

EQUITY – Interlocutory relief – where defendant seeks interlocutory injunction that the plaintiffs pay 40% of certain tax rebates received by the first plaintiff into a controlled monies account – where defendant established a serious question to be tried – whether balance of convenience favours the grant of an injunction – whether damages an adequate remedy –where the first plaintiff provided an undertaking not to reduce its cash levels beyond the amount claimed by the defendant, excepting payments incurred in the ordinary course of business – interlocutory injunction refused on basis of undertaking

CORPORATIONS – Winding up – Orders and directions in respect of past and future conduct of liquidations – Companies in liquidation did not carry on activities other than as trustees – Companies disqualified as trustees due to insolvency – Directions that all company assets and liabilities are trust assets and liabilities. CORPORATIONS – Winding up – Orders and directions in respect of past and future conduct of liquidations – Liquidators exceeded powers as bare trustee in selling trust property – Whether liquidators acted honestly and reasonably and should be excused for past breach of trust – Whether to grant direction permitting liquidators as bare trustees to sell assets – Liquidators permitted to sell trust assets in future where no present likelihood of new trustee being appointed – Priority of distribution of trust assets – Whether trust assets in trustee’s liquidation to be distributed in accordance with priorities set out in s 556 of Corporations Act 2001 (Cth). CORPORATIONS – Winding up – Liquidators’ costs and remuneration – Where all the companies’ assets were trust assets – Liquidators’ reasonable costs and remuneration may be met through trust assets .

SENTENCING – infliction of grievous bodily harm - relevant factors on sentence – totality with existing sentences - moral culpability – objective seriousness – aggravating factors – breach of conditional liberty – where plea of guilty entered at first opportunity – penalties – imprisonment

COSTS — Party/Party — General rule that costs follow the event — Proceedings dismissed without hearing on merits

CONTRACTS — Formation — Agreement — Intention to make concluded bargain — Where business partners (joint directors of company) splitting business — Where post contractual conduct demonstrates parties intended to enter legal relations CONTRACTS — Term — Where parties did not discuss any term as to duration — Contract for an indefinite period CONTRACTS — Termination — Repudiation or abandonment of contract — Where contract still being performed but with breaches by both parties COMMERCE — Restraint of trade — Validity and reasonableness — Legitimate interests — Where restraint intended to make business look different — Found to be anti-competitive — Restraint unreasonable to protect goodwill — Lack of evidence regarding goodwill — Refusal to grant injunctive relief

CRIMINAL LAW – application for permanent stay of indictment on individual and composite grounds – applicant charged with the murder of his wife in 1982 – ODPP’s decision to prosecute in 2018 reversing earlier decisions not to prosecute – extensive pre-trial publicity and commentary, including a podcast series in 2018 in which the applicant’s solicitor and Deputy State Coroner were interviewed – whether podcast caused irremediable prejudice justifying permanent stay of proceedings – whether apprehended unfair consequences of pre-trial publicity / commentary are capable of being relieved against by directions to jury and other orders – whether applicant is irremediably prejudiced by an unreasonable delay in initiating the prosecution – whether police misconduct has caused incurable prejudice – whether decision to prosecute was influenced by pre-trial publicity and commentary, including by NSW Commissioner of Police – whether that amounted to an abuse of process justifying a permanent stay of proceedings

CIVIL PROCEDURE – vexatious litigants – Vexatious Proceedings Act 2008 (NSW) – leave to institute proceedings – where defendant to possession proceedings issued summonses to amend defences in upcoming motions for summary judgment seeking possession against him – whether applications to amend are vexatious – where previous applications to amend refused - where applicant impliedly seeking to withdraw admissions he made at first instance – where amendments amount to challenges to judgment on earlier amendment applications – where leave refused to appeal against earlier judgment - where applications an abuse of process, instituted without reasonable ground and for a wrongful purpose – leave refused

CIVIL PROCEDURE – vexatious litigants – Vexatious Proceedings Act 2008 (NSW) – leave to institute proceedings – where applicant has issued two summonses for leave to file notices of motion in proceedings seeking summary judgment for possession against him – applicant seeks leave to cross-examine witnesses and to issue a Notice to Produce – where notice under r 35.2 UCPR does not require leave under the Vexatious Proceedings Act – whether there is a prima facie ground for Notice to Produce – whether documents sought to be produced are relevant to any issue on the summary judgment application – where no basis for claim – leave refused

CRIME – SENTENCE APPEAL – importation of commercial quantity of cocaine – characterisation of offender’s role in syndicate – manifest excess – offender was principal in Australia – “middle manager” – no error in characterisation – no manifest excess – if “crushing” sentence, then due to seriousness of offence at offender’s age – appeal dismissed

CRIME – SENTENCE APPEAL – serious domestic violence – choking of victim occasioning actual bodily harm – permissible and appropriate for sentencing judge to take account of acts leading up to choking – taken into account to show three offences part of one course of conduct for totality purposes – no De Simoni issue – no error in characterisation of objective seriousness – appeal dismissed

CRIMINAL LAW – appeal against sentence – distortion well beyond statutory ratio by pre-existing sentence structure – strong subjective case – intellectual disability – appeal allowed – applicant re-sentenced

CRIMINAL LAW – appeal against conviction and sentence – appellant found guilty of murder – whether verdict unreasonable – whether evidence capable of supporting verdict – sentence of 21 years with non-parole period of 15 years and 9 months – whether error in assessing objective criminality of offence – whether issue of delay properly considered – whether sentence manifestly excessive – appeal dismissed

CORPORATIONS – statutory derivative action – application to bring proceedings on behalf of company – where applicant is one of company’s two statutory directors – where applicant undertakes to indemnify company in respect of costs of conducting the proceedings – where defendant does not oppose grant of leave – whether the proposed proceedings are in the company’s best interests – whether leave should be granted to the applicant to commence proceedings in company’s name.

COSTS – List Response claiming privilege against self-incrimination - motion to strike out Response on basis that claim for privilege inadequately articulated – resolved on basis defendants circulate Amended Response – proposed Amended Response resolved shortcomings in original response – leave granted to file Amended Response

CRIMINAL LAW – subpoena – second time matter has been listed for trial – accused charged with murder – legitimate forensic purpose – whether material is, “on the cards”, found to be relevant – whether orders should be made as to first access to material – whether subpoena to be set aside in part

PRACTICE AND PROCEDURE – Application for further security for costs – No point of principle Application for discovery – Where the documents are not relevant to a fact in issue – No point of principle

CIVIL PROCEDURE — Parties — Joinder — Of defendants – proposed joinder of two further named defendants CIVIL PROCEDURE — Pleadings — Amendment - Form and content of pleading – whether the proposed Amended Statement of Claim properly pleads the causes of action alleged – whether the amended Statement of Claim articulates the risk of harm - leave to file amended Statement of Claim refused

HIGH RISK OFFENDERS — Continuing detention orders — Application – whether a continuing detention order or an extended supervision order is appropriate in the circumstances – serious sexual offender – whether the offender poses an unacceptable risk of committing another serious offence if not kept in detention - s5C(d) Crimes (High Risk Offenders) Act 2006

PROCEDURE – Parties – Commencement of proceedings by beneficiary of deceased estate without a grant of probate or administration – Proceedings a nullity – Availability of remedial orders in case management of proceedings. PROCEDURE – Parties – Claim on behalf of a deceased estate – Proper plaintiff is legal personal representative with grant of probate or administration – Availability of representative proceedings brought by beneficiary, with joinder of legal personal representative as a defendant. AGENCY – Enduring power of attorney – Donee possessed of actual authority to benefit self – Whether donee accountable, as a fiduciary, to donor for self dealing transactions – Conveyancing Act 1919 NSW, Part 16

EVIDENCE - evidence of admission in WeChat exchange - evidence admissible against one of six accused - application to refresh memory from statement - where statement made 27 months after “chat” - impressionistic recall of conversation - relevant considerations - leave to put document in hands of witness refused EVIDENCE - words and phrases - “fresh in the memory” - statutory construction - whether phrase should be construed wherever it appears in statute - where one section amended to define phrase - where section under consideration not amended

CRIME – bail – release application – show cause – unable to prepare for trial in prison – unacceptable risk – stringent bail conditions – conditional bail granted

CIVIL PROCEDURE — Pleadings — Where leave granted to defendant in related proceedings in this Court to withdraw claim for redundancy — Where defendant commenced proceedings in Federal Circuit Court seeking redundancy payment — Anti-suit injunction — Whether new claim has no merit — Whether vexatious and oppressive or with purpose of frustrating or obstructing proceedings in this Court — Nature of claim

EMPLOYMENT AND INDUSTRIAL LAW — Contract — Termination without notice — Whether original written contract applied or had been varied or discharged in ongoing relationship of employment — Objective assessment of parties' mutual intention — Necessity for implied term as to reasonable notice in new contract — Determination of reasonable notice period EMPLOYMENT AND INDUSTRIAL LAW — Contract — Remuneration — Discretionary bonuses — Employee's eligibility for payment of benefits under short and long term incentive plans — Nature and extent of employer's discretion to assess and pay bonuses — Limits on the exercise of a discretion CONTRACTS — Remedies — Damages — Loss of chance — Loss of opportunity to obtain commercial benefit — Effect of reasonable notice period on employee's entitlement to payment of benefits under incentive plans EMPLOYMENT AND INDUSTRIAL LAW — Contract — Repudiation — Acceptance of repudiation — Impracticality for employee to do other than accept repudiation — Party cannot benefit from its own wrong

APPEALS – leave – applicant injured thumb when opening overhead compartment on international airflight – whether occurrence of injury was an “accident” within meaning of Art 17, Montréal Convention 1999 – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 9E – no question of principle – proposed appeal wholly concerned with factual findings – whether findings glaringly improbable – leave to appeal refused

Immigration – Visas – Cancellation of visa – Revocation of cancellation – Where s 501(3A) of Migration Act 1958 (Cth) provides that Minister must cancel visa if satisfied person does not pass character test because they have substantial criminal record and person is serving sentence of imprisonment on full-time basis – Where s 501CA(4) provides that Minister may revoke decision to cancel visa if conditions in s 501CA(4)(a) and (b) are met – Where s 501CA(4)(a) requires that person makes representations in accordance with invitation from Minister – Where s 501CA(4)(b) requires that Minister is satisfied person passes character test or there is another reason why decision should be revoked – Where appellant held visa which was not protection visa – Where appellant's visa cancelled under s 501(3A) and Minister declined to revoke cancellation under s 501CA(4) – Whether Minister obliged to, and failed to, consider whether non-refoulement obligations were owed to appellant when exercising power under s 501CA(4). Words and phrases – "another reason", "cancellation", "discretion", "fear of persecution", "international law", "mandatory relevant consideration", "non-refoulement", "refugee", "revocation", "substantial criminal record", "sufficient evidence", "visa". Migration Act 1958 (Cth), ss 501(3A), 501

Private R v Cowen Constitutional law (Cth) – Defence – Military discipline – Where plaintiff charged with assault occasioning actual bodily harm – Where plaintiff and complainant members of Australian Defence Force at time of alleged conduct – Where neither plaintiff nor complainant on duty or in uniform – Where plaintiff charged under s 61(3) of Defence Force Discipline Act 1982 (Cth) – Where s 61(3) provided defence member guilty of offence if engaged in conduct outside Jervis Bay Territory and that conduct would constitute Territory offence if it took place in Jervis Bay Territory – Where plaintiff's conduct also constituted offence under ordinary criminal law and civil courts available – Where plaintiff challenged jurisdiction of Defence Force magistrate to hear charge – Whether s 51(vi) of Constitution supported conferral of jurisdiction by Defence Force Discipline Act upon service tribunal to hear charge. Words and phrases – "Ch III court", "Ch III protections", "concurrent jurisdiction", "conferral of jurisdiction", "courts martial", "defence force discipline", "defence force magistrate", "defence power", "judicial power of the Commonwealth", "maintaining or enforcing service discipline", "military discipline", "military jurisdiction", "naval and military defence", "pre-ordinate jurisdiction of the civil courts", "service connection test", "service offence", "service status test", "service tribunal", "sufficient connection". Constitution, ss 51(vi), 68, 71, 80, 106, Ch III. Crimes Act 1900 (ACT), s 24. Defence Force Discipline Act 1982 (Cth), ss 61(3), 63.

CORPORATIONS — Winding up — Liquidators — Receivers and managers — Application to court for directions — Remuneration from trust assets — Where outstanding issues of competing priority with creditor — Where remuneration sought for future examination — Whether court should indicate likelihood of indemnity from trust assets in future based on proposed questions for examination yet to be conducted.

CORPORATIONS – rights issues from 1962 to 1997 – dilution of shareholding – general equitable jurisdiction invoked – unclear how relief sought arises from pleaded facts between these parties.

COSTS – determination of a separately identifiable matter or a discrete aspect of the case COSTS – costs payable forthwith

COSTS — Party/Party — Court’s discretion — Factors relevant to exercise of discretion — Costs in Local Court proceedings and subsequent appeal to Supreme Court — Multiple Calderbank offers made by active parties in both proceedings — Conduct which prolonged proceedings

CORPORATIONS — Winding up — Application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up – Whether company is and will be solvent in future – Whether to terminate winding up.

CIVIL PROCEDURE — Separate determination of questions — final decision — whether powers of attorney forged — mortgages and loan agreements executed pursuant to forged powers of attorney LAND LAW — Torrens title — Indefeasibility of title — Effects of indefeasibility — Construction of third party mortgages — Whether indefeasibility extends to covenants contained in the mortgages and loan agreements — Identification of debt secured by mortgage representing charge on the land — Where no sum advanced to or at request of mortgagors — Whether acknowledgement of receipt or indebtedness — Meaning of "Secured Money" and "Collateral Documents" in mortgages GUARANTEE AND INDEMNITY — Factors affecting validity of guarantee — Forgery LAND LAW — Torrens title — The register — Correction of the register

JUDGMENTS AND ORDERS — amendment, variation or setting aside judgment or order — correction under slip rule – Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(1), 37.17 JUDGMENTS AND ORDERS — interest — pre-judgment interest — where difficulties in determining the period over which the plaintiff’s loss accrued – determination of applicable rate of interest over several years

SUCCESSION – Administration of estates – Persons entitled on intestacy – Distribution order – Multiple spouses – Where the deceased died intestate – The Plaintiff asserts that she was a “spouse” of the deceased upon the basis that she was in a de facto relationship with him that had been in existence for a continuous period of two years (or more) – Dispute about the nature of the relationship – Competing claim by the Defendant who was a de jure wife of the deceased although they had been separated for some years before his death – If more than one spouse, then question arises as to how the estate of the intestate should be distributed as no distribution agreement entered into between the spouses – Order sought that the property of the intestate should be distributed between the spouses in a way that the Court considers just and equitable pursuant to s 126 of the Succession Act 2006 (NSW) – Meaning of “just and equitable” – Further question arises, if more than one spouse, to whom should grant of administration on intestacy be made – Parties agree to appoint an independent person to be the administrator of the estate of the deceased, but before the appointment is made, they wish to consider whether grant should be made to one, or other, of them. WORDS AND PHRASES – “Just and equitable” – Succession Act 2006 (NSW), s 126(3)

JUDGMENTS AND ORDERS – Court of Appeal – bias – apprehended bias on the ground of prejudgment – where members of the Court sat on previous unsuccessful applications by the applicant

STATUTORY INTERPRETATION — jurisdiction – Mental Health Review Tribunal – Mental Health Act 2007 (NSW), s 38(4) – statutory construction – whether Mental Health Review Tribunal has power to order the transfer of an involuntary patient from one mental health facility to another mental health facility, either generally or so as to effect a transfer from one level of security facility to a lesser level of security facility

CRIME – sentencing – offence committed while offender on parole for previous federal offence – automatic revocation of parole order – operation of provisions of Subdivision B of Division 5 of Part 1B of the Crimes Act 1914 (Cth) addressing revocation of federal parole – impossibility for sentencing judges of imposing a sentence that does not involve some distortion of the common law and statutory principles that govern the sentencing task

EQUITY — Equitable remedies — Equitable compensation — where there is a dispute as to the final orders that should be made, including with respect to land and capital gains tax — where, in the circumstances, the Court will make final orders including some amendments to the proposed orders

EXPEDITION – Summons under s 32 of Evidence on Commission Act 1995 – Application for expedition – Whether factors warranting expedition – Whether disentitling delay or oppression – Hearing of summons expedited in the circumstances

CONSTITUTIONAL LAW — Judicial power — Whether decision of the NSW Civil and Administrative Tribunal as to its jurisdiction was an exercise of the judicial power of the Commonwealth – Nature of the anterior jurisdiction of the Tribunal to consider its authority to decide CONSTITUTIONAL LAW — Judicial power — Whether the Tribunal has power to order costs consequential on a dismissal or transfer of proceedings for want of Federal jurisdiction – Whether power to make such an order outside of the State’s legislative competence to confer on the Tribunal– Whether making such an order would occasion the Tribunal impermissibly exercising the judicial power of the Commonwealth

Service – statutory demands – express post – Google Maps pin – GPS coordinates – whether delivered to correct house – whether delivered at all – whether delivered the day before Coronavirus Economic Response Package Omnibus Act commenced

CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By person against whom an interlocutory order is made with leave on a question of law alone — whether leave should be granted

ADMINISTRATIVE LAW – Judicial review – Health Care Complaints Act 1993 (NSW) s 90B – Whether NCAT had jurisdiction to hear disciplinary proceedings against the plaintiff – Whether NCAT is a “disciplinary body” under s 4 – Application dismissed

COSTS – Bases of quantification – Where defendant did not consent to appointment of liquidator or provisional liquidator – Whether indemnity costs are appropriate.

JUDICIAL REVIEW – application for judicial review of orders that the applicant pay costs on an indemnity basis – appeal to the District Court against decision of Costs Review Panel – application for relief refused on discretionary grounds – proceedings extraordinarily protracted, amount in question not large and other discretionary reasons given for refusing relief CIVIL PROCEDURE – directions by primary judge concerning non-parties to notice of motion including legal representatives – directions required their conduct to be brought to attention of regulatory, prosecutorial and disciplinary authorities – relevant persons not given an opportunity to be heard – denial of procedural fairness – declaration made as to invalidity of the subject directions

EQUITY — Equitable interest in property – Family arrangement — Transferee pays off mortgage on property — Equity in property exceeds amount owing — Transferor permitted to remain in property – licence agreement not signed — Relationship breakdown – Baumgartner v Baumgartner equity — Equitable compensation granted. EQUITY — Equitable remedies — Specific performance — Estoppel — Determination of existence and content of underlying contractual terms. EQUITY — Equitable remedies — Equitable compensation — Assessment — Valuation of property for purposes of assessment.

LAND LAW – Conveyancing Act 1919 (NSW), s 66G – application for appointment of trustees for sale

CRIMINAL LAW – application by Crown for leave to cross-examine witness under s 38(1)(c) Evidence Act 1995 – prior inconsistent statement – common sense approach – s 192 considered – leave granted

PRACTICE AND PROCEDURE – applications – security for costs – discretionary considerations – relevance of delay – where delay has caused no prejudice – whether proceeding defensive in character – binary approach to characterisation of proceeding as defensive or otherwise not appropriate – defensive element not determinative – security ordered PRACTICE AND PROCEDURE – applications – security for costs – quantum – relevance of delay – security for costs awarded in respect of estimated future costs only