Cases and authorities

CRIMINAL LAW – conviction appeal – one count of sexual intercourse without consent – New Year’s Eve party – heavy alcohol consumption and cocaine use – whether complainant consented the only issue – Crown case that complainant asleep when intercourse commenced – defence case that complainant was an active and willing participant – gaps in complainant’s memory as a result of alcohol and cocaine ingestion – whether open to jury to find beyond reasonable doubt that there was lack of consent – appeal dismissed.

CIVIL PROCEDURE – hearings – adjournment – order that proceedings be heard together

CIVIL PROCEDURE — approval of settlement by consent — whether the Court is satisfied that the settlement is beneficial to the person under the legal incapacity — settlement approved

LAND LAW — Caveats — Caveatable interest — What constitutes a caveatable interest — Interest described as an “equitable interest”

HIGH RISK OFFENDERS – Extended supervision orders – Conditions - serious sex offender – where parties have agreed that an ESO should be made – where the conditions of the ESO is in dispute – whether the court should impose a condition concerning the employment of the defendant – whether the court should impose a condition concerning the defendant’s medical information

CIVIL PROCEDURE – separate question – whether the questions of liability and damages should be heard and determined in advance and separately – where plaintiff seeks to defer preparing and serving its expert evidence on quantum

SUCCESSION – Family Provision – Claim by adult child of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – Gift of personal effects and pecuniary legacy of $30,000 made for Plaintiff in the Will of the deceased – Reasons for the limited provision made for the Plaintiff stated in the Will of the deceased – Significant competing claim of the Defendant on the deceased’s estate – Whether Plaintiff has been left without adequate provision for her proper maintenance and advancement in life – Whether an order for provision should be made for the Plaintiff’s proper maintenance and advancement in life and, if so, in what amount

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

CIVIL PROCEDURE – Interim preservation – Freezing order –Where dividend allegedly declared in breach of section 254T Corporations Act 2001 (Cth) – Where dividend allegedly declared in breach of directors’ duty – Where declaration of dividend allegedly voidable under section 588FE Corporations Act 2001 (Cth) – Where dividend allegedly voidable under section 37A Conveyancing Act 1919 (NSW) – Where third party allegedly liable to account for payment of dividends CORPORATIONS – Whether a dividend declared in breach of section 254T Corporations Act 2001 (Cth) is void or voidable – Whether a director can act in breach of duty when declaring a dividend even without contravening section 254T – Whether reference to “creditor” in section 254T includes a contingent creditor

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed

CORPORATIONS — directors and officers —unauthorised transfer by director of company’s share of real property to himself – liability of director as trustee – liability as recipient to make restitution – liability for breach of director’s duties RESTITUTION – ineffective transaction – transfer of company’s share of real property – void for want of authority but registered – whether company entitled to share of increase in value in property and share of net income from property since date of transfer – equitable proprietary relief EQUITY – jurisdiction in aid of rights at law – transfer of company’s share of real property – void for want of authority but registered – rescission – account of value of property and income derived from it – interest CORPORATIONS – director and officers – invalid resolution by director to pay director’s fees to himself – liability as recipient to make restitution – whether director entitled to counter-restitution by way of quantum meruit – whether incontrovertible benefit CORPORATIONS – director and officers –unauthorised payment by director to himself as solicitor – liability as recipient to make restitution – whether director-solicitor entitled to counter-restitution by way of quantum meruit – whether incontrovertible benefit

CORPORATIONS – Winding up – Public examinations of directors, officers and others – Application to set aside summons to attend court and be examined - Whether the purpose for which the examination was sought was foreign to the purpose for which powers to order an examination and production of documents were conferred.

LAND LAW – mortgages – possession of land – default under loan agreement and mortgage – application for summary judgment – where defence admitted to debt – where only dispute raised was amount owing to mortgagee – summary judgment for possession granted

CIVIL PROCEDURE — Interlocutory applications — Application to restrain further prosecution of the Tribunal proceedings — Application to restrain dealings in real property — Whether an agreement was for tenancy or equitable interest — Transfer of proceedings to the Supreme Court

LAND LAW – contract for sale of land – plaintiffs enter into contract with first defendant to purchase lot in an unregistered subdivision – access to proposed lot to be by rights of way over vendor’s land – road already constructed over proposed right of way – whether contract contains term that obliges vendor to construct road on right of way to standard set by development consent to be issued – held that contract contains no express or implied term to that effect EQUITY – remedies – specific performance – condition of contract for sale of land required vendor to install cattle grids at various locations along right of way – vendor fails to do so – purchasers seek specific performance – purchasers fail to show that damages are an inadequate remedy – not shown that installation of grids would serve any useful purpose for purchasers – specific performance refused – nominal damages awarded

COURTS AND JUDGES – principle of open justice – Departures – safety of defendant – impeding the rehabilitation of the defendant – Court Suppression and Non-publication Orders Act 2010 (NSW) – suppression of name, identity and workplace and orders prohibiting publication SUPRESSION ORDERS – Court Suppression and Non-publication Act 2010 (NSW) – primary objective of open justice – whether suppression order necessary – meaning of “necessary” – effect of suppression order on open justice – evaluation of balance – limitations on Interim Suppression Orders under s 10.

CRIMINAL LAW – murder and attempted murder – drug deal gone wrong – a glitch or two – informant witnesses – suppression orders – application for court to be closed – whether orders necessary – statutory test – whether witnesses to give evidence by AVL – deficiencies in evidence – coronavirus – COVID-19 – restricted numbers in courtroom – special provisions in legislation

COSTS – application for indemnity costs by successful respondent - application for leave to appeal from Local Court in civil proceedings - proceedings on foot in District Court raising same issue - unnecessary duplication of proceedings by appellants - proportionality of costs under s.60 Civil Procedure Act 2005 - duty of parties under s.56 Civil Procedure Act 2005 - unreasonable conduct by appellants established - costs awarded on indemnity basis

CIVIL PROCEDURE - separate determination of questions - where appropriate - where former director requested liquidators to continue trading - former director provides indemnity for losses - Deed of Indemnity - whether unpaid liquidator’s professional fees and expenses and unpaid cash surplus are indemnified - whether a question of construction of the Deed - where no further evidence is required for the determination of proposed separate questions - where answers likely to provide finality by judgment or settlement – where costs savings likely - separate determination approved

CRIMINAL PROCEDURE - trial - application for trial by judge alone pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) - where case relies on circumstantial evidence - where press has reported on circumstances and witnesses surrounding this trial – where directions to a jury would have ameliorated any prejudice which this material posed for the accused - where circumstances arising out of current COVID-19 pandemic - where trial has already experienced significant delay - where the risk of further delay is unacceptable - order made for judge alone trial

CRIME – sentence appeal – application under r 50C Criminal Appeal Rules to set aside judgment and orders – jurisdiction to reconsider appeal – application misconceived – applicant seeks to have dissenting judgment replace majority judgment on appeal – leave refused

CRIME – SENTENCE APPEAL – application for extension of time – application for leave to appeal against sentence – offence of sexual intercourse with a child under 10 years – child 19 months old – applicant in a position of trust – whether sentencing judge took into account an irrelevant feature and failed to take into account a relevant feature – whether sentence is manifestly excessive

CRIME — appeals — appeal against conviction —miscarriage of justice — directions to jury — failure to give full Markuleski direction CRIME — appeals — appeal against conviction — miscarriage of justice — where jury hung on several counts at initial trial — where applicant sought stay of all hung counts — where retrial on certain counts occurred — where evidence of complainants in second trial was edited to remove evidence relating to stayed counts and counts in respect of which accused was acquitted at first trial — whether continued prosecution constituted abuse of process occasioning miscarriage of justice EVIDENCE — tendency evidence — criminal proceedings — evidence of tendency witness relating to uncharged acts — whether evidence has substantial probative value CRIME — appeals — appeal against conviction — unreasonable verdict

CIVIL PROCEDURE – infant settlement approval – compromise - where settlement in best interests of infant

CIVIL PROCEDURE – hearings – ex parte – suppression and non-publication – where application made to dispense with the requirements of the UCPR – where non-compliance is in the interests of the elucidation of the truth – where there is a legitimate forensic purpose

CIVIL PROCEDURE – Cross-vesting – Transfer to other Supreme Court – where joint venture between parties to develop land in Queensland – where plaintiff alleged defendant breached loan agreement – where defendant purported to terminate joint venture agreement – where plaintiff seeks declaration of an equitable interest and possession of land in Queensland and rectification of loan agreement – where majority of likely witnesses located in Queensland – where joint venture and loan agreements contains choice of forum clauses in favour of Queensland courts – whether it is in the interests of justice to transfer proceedings – proceedings transferred to Supreme Court of Queensland

CIVIL PROCEDURE – discovery in advance of the parties having served their evidence CIVIL PROCEDURE – discovery – Practice Note SC Eq 11 – whether “exceptional circumstances”

CIVIL PROCEDURE – application for approval of settlements of personal injury and medical negligence proceedings commenced on behalf of person under legal incapacity – whether proposed settlements are in the interest of the plaintiff

CIVIL PROCEDURE – cross-vesting – transfer to Federal Court – where plaintiff is member of a class action in the Federal Court – whether it is more appropriate and in the interests of justice for the proceedings to be determined by the Federal Court

COSTS — Party/Party — Costs orders in interlocutory proceedings — where the plaintiff had established a right to an order for preliminary discovery — where the parties disagreed as to the order for costs that the Court should make — where there is no general rule in relation to orders for costs for preliminary discovery applications — where there should be no order as to costs

CONTRACTS — Formation — Agreement — Intention to make concluded bargain — where there was a purported acceptance of a Calderbank offer of settlement — where there was uncertainty, in the insurance context, as to what was intended by the reference to ‘stages’ and the associated costs — where the evidence militates toward the conclusion that there was no intention to create an immediately binding contract — where there was an additional party that was not included in the agreement — held that the proper effect of the objective circumstances was merely that a provisional agreement was made

SUCCESSION – Administration of estates – The deceased died intestate in 2012 – Executor to determine persons entitled on intestacy – Administrator uncertain as to identity of deceased’s paternal grandfather – Determination of matters in doubt to enable distribution – Administrator seeking order giving liberty to distribute the estate on particular basis – Plaintiff justified in distributing the estate – Benjamin Order made – Order also made that the Plaintiff’s costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased

APPEAL – whether appeal lies to Supreme Court from order prohibiting proposed public assembly notwithstanding s 27(2) of the Summary Offences Act 1988 (NSW) – discussion of statutory limitation of appeals under the Summary Offences Act. COURTS – Jurisdiction – Whether Supreme Court had jurisdiction to entertain an application to prohibit a proposed public assembly in circumstances where Commissioner of Police was alleged not to have complied with the procedure provided for by s 25(2) of the Summary Offences Act 1988 (NSW). PUBLIC ASSEMBLY – Summary Offences Act 1988 (NSW) – whether Supreme Court had jurisdiction to entertain an application to prohibit a proposed public assembly – whether Supreme Court’s jurisdiction depended on Commissioner first complying with procedure specified in s 25(2) of the Summary Offences Act.

DEFAMATION – application for third party costs order – where defendants successful on appeal COSTS – s 98 Civil Procedure Act – application for orders against third parties – application of principles in Knight v FP Special Assets Ltd and in FPM Constructions v Council of the City of the Blue Mountains – nature of third party interest COSTS – orders against third parties – whether parents had interest in litigation – whether parents lending funds to son to conduct litigation and desire for son to succeed in that litigation sufficient reason to award third party costs

CIVIL PROCEDURE — accidental disclosure of confidential information by email communication — disclosure by the annexure of material to the affidavit of solicitor — plaintiff asserts that the confidential material has been distributed to interested parties — Harman undertaking — plaintiffs provided undertaking not to disclose the material further — injunction previously granted — delivery up of hard copies of the email communication

CIVIL PROCEDURE — court administration — court powers — Court to set aside order dismissing proceedings — Court to set aside orders made this morning regarding costs

CIVIL PROCEDURE — originating process — amendment — disallowance of amendment — Court to follow the dictates of justice — breach of court order as to filing of amended statement of claim — plaintiffs given assistance by the Court — plaintiffs referred to the Pro Bono Assistance Scheme — assistance unable to be pursued CIVIL PROCEDURE — summary disposal — dismissal of proceedings — want of due despatch — proceedings commenced more than one year ago — proceedings ought to be dismissed by the Court’s own motion CIVIL PROCEDURE — parties — representation — by unqualified persons COSTS — party/party — general rule that costs follow the event — application of the rule and discretion — plaintiffs have failed in their action to amend the statement of claim

CIVIL PROCEDURE – interim preservation – freezing orders – ex parte – against third parties – requirements to be met before order made

CIVIL PROCEDURE – stay of proceedings – pending appeal – where bankruptcy proceedings have been initiated in Federal Court of Australia – where litigant’s right to appeal may be defeated

CIVIL PROCEDURE — Stay of proceedings — Where order for costs forthwith made in favour of Defendants in respect of wasted costs — Where summons for leave to appeal brought and costs not yet paid — Where detriment to Defendants arising from wasted costs not remedied.

SUCCESSION — Family provision — Claim by alleged member of household for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether a member of household — Whether dependent at any time on the deceased — Whether factors warranting — Adult son-in-law of deceased SUCCESSION — Family provision — Claim by grandchild for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether factors warranting — Adult grandchildren

COSTS – Other administrative orders – No issue of principle

CONTRACTS — Formation — alleged agreement that plaintiff would act as exclusive agent for sale of defendant’s real property — where plaintiff claims commission for sale of property under agreement — whether contract was executed CONTRACTS — Construction — Where plaintiff’s entitlement to commission dependent on meaning of “Property” under the contract — relevance of surrounding circumstances to resolve ambiguity CONSUMER LAW — Unconscionable conduct — In connection with goods or services — whether defendant’s conduct unconscionable DAMAGES — Proof and calculation of damages —responsibility of the Court to make best assessment of damages — lack of evidence — no loss proved by plaintiff

CONTRACTS – Misrepresentation – Fraudulent misrepresentation – the plaintiff paid the defendant two tranches of payments to acquire shares in an incorporated law firm – the law firm has since ceased to conduct practice due to the intervention of the Law Society of NSW – the plaintiff alleges the total of both tranches was $430,000 and the defendant argues it was only $300,000 – the plaintiff alleges he was induced to make both tranches through fraudulent, misleading and deceptive conduct by the defendant and an intermediary – the plaintiff seeks relief that the defendant repay the $430,000 purchase price of the shares – the defendant argues that he did not misrepresent the law firm’s prospects and the intermediary was not his agent.

CONTRACTS — Termination — Repudiation of contract — Whether business restructure led to repudiation of employment contract — Where employee relocated from Sydney to Melbourne — Where restructure led to change in job title and reporting lines EMPLOYMENT AND INDUSTRIAL LAW — Contract — Restraint of trade — Whether non-solicitation restraint unreasonable or against public policy — Whether defendant had sufficient customer connection and access to confidential information to justify restraint — Where defendant was an experienced insurance broker with large client portfolio — Whether duration of restraint reasonable — Where restraint period defined as “cascading” periods of restraint ranging from twelve months down to three months after the end of the employment

COURTS AND TRIBUNALS – whether Industrial Relations Commission has jurisdiction to review a decision to dismiss a policer officer pursuant to s 72A of the Police Act 1990 (NSW) – whether matter governed by decision in Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2. POLICE – non-probationary officer “caused to be retired” pursuant to s 72A of the Police Act 1990 (NSW) – officer seeking review of decision pursuant to s 84(1) of the Industrial Relations Act 1996 (NSW) – whether Industrial Relations Commission has jurisdiction to hear matter. STATUTORY INTERPRETATION – construction of Police Act 1990 (NSW) and Industrial Relations Act 1996 (NSW) – whether review of a decision made under s 72A of the Police Act 1990 (NSW) amenable to review by Industrial Relations Commission under s 84(1) of the Industrial Relations Act 1996 (NSW).

CRIMINAL PROCEDURE — trial — directions to jury – tendency evidence – context evidence – suggested directions in Criminal Trial Courts Bench Book – where directions regarding tendency evidence omitted aspects of the suggested direction outlined in the Criminal Trial Courts Bench Book – role of Criminal Trial Courts Bench Book – “bad character” direction and direction that the jury must not punish the accused for other conduct attributed to him – no miscarriage of justice demonstrated

PRACTICE AND PROCEDURE – Amendment of orders – Unintended slip – No point of principle

PUBLIC ASSEMBLY – Summary Offences Act 1988 (NSW) – whether order should be made pursuant to s 25(1) prohibiting the holding of a public assembly ADMINISTRATIVE LAW – judicial review – apprehended bias – whether public statements by delegator vitiate the decision made by the delegate on the ground of apprehended bias ADMINISTRATIVE LAW – judicial review – apprehended bias – exceptions to bias rule – necessity ADMINISTRATIVE LAW – reviewability – jurisdiction – whether the Supreme Court has jurisdiction to entertain the application for a prohibition order under s 25 of the Summary Offences Act 1988 (NSW) – whether threshold requirement in s 25(2)(c) of the Summary Offences Act has been fulfilled – whether materials were properly considered in light of public statements made by the repository of power – whether application could properly be considered within a 17-minute time frame CONSTITUTIONAL LAW – implied constitutional freedom of political communication – whether s 25 of the Summary Offences Act 1988 (NSW) must be read down so as not to infringe the implied constitutional freedom of political communication

CRIMINAL LAW – trial proceedings – murder – application for trial by judge alone – single factual issue in dispute – substantial impairment – application of community standards – importance of community participation