Cases and authorities

CORPORATIONS — Winding up — Application to appoint provisional liquidator under s 472(2) of the Corporations Act 2001 (Cth) — Where companies are in voluntary administration – Whether there is reasonable likelihood that winding up order would be made at final hearing – Whether balance of convenience supports appointment of provisional liquidators.

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise and Calderbank offers — whether plaintiffs’ rejection of defendants’ offer unreasonable — order for costs on indemnity basis

CIVIL PROCEDURE – Cross-vesting – Transfer to other Supreme Court – whether exclusive forum clause in contract sufficiently certain and complete – where clause does not specify the disputes to which it applies – whether proceedings should be stayed or transferred where contract contains an exclusive forum clause – whether it is in the interests of justice to transfer proceedings – proceedings transferred to Supreme Court of Victoria EQUITY – Equitable remedies – interim mandatory injunction – where plaintiff asserts contract granted licence and entitlement to return of documents upon breach of contract upon failure to pay amounts due – where plaintiff did not adduce evidence of hardship or inconvenience if interim relief refused – where some evidence of inconvenience to defendant if interim relief granted – where interim relief would interfere with the current status quo – interim relief refused

CIVIL PROCEDURE — Interim preservation — Freezing orders — Application for variation after breach of orders — Application for discharge of orders on basis of oppressiveness of duplicated regime of orders and otherwise

CONTRACTS – variation – whether term of credit facility varied – whether variation supported by adequate consideration – where difference in obligations capable of benefiting either party – contract effectively varied – whether bank repudiated contract in maintaining that term varied. BANKING AND FINANCE – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB and 12DA – whether in varying term of credit facility bank engaged in misleading or deceptive or unconscionable conduct – whether in making loan bank engaged in unconscionable conduct – no question of principle. BANKING AND FINANCE – Code of Banking Practice, cll 2.2, 25.1 and 25.2 – whether breach of obligation to exercise care and skill of a diligent and prudent banker – whether breach of obligation to try to help borrower to overcome financial difficulties with a credit facility – no question of principle. BANKING AND FINANCE – National Credit Code – whether loan “unjust” credit contract within s 76(1) – whether bank failed to respond to hardship notices as required by s 72(4) – whether National Credit Code applied – where the predominant purpose for which credit was provided or was intended to be provided was not a Code purpose – no question of principle. PRIMARY INDUSTRY – Farm Debt Mediation Act 1994 (NSW) – whether enforcement action taken in contravention of Act – no question of principle.

SUCCESSION – Family provision – Appeal against order for provision in favour of two adult children – Where whole of estate left to deceased’s husband – Where failure by one applicant to produce documents relevant to that applicant’s financial circumstances – Where evidence as to value of other applicant’s assets unreliable – Whether failure to comply with notice to produce a basis for rejecting application for provision – Whether Court had sufficient evidence of each applicant’s financial position – Whether primary judge had regard to 50 year marital relationship between deceased and her husband as sole beneficiary, and deceased’s decision to leave all of her estate to him – Appeal dismissed.

CRIMINAL LAW – bail – release application – applicant convicted at trial and sentenced – application for leave to appeal against conviction filed out of time – no application made for extension of time – question of jurisdiction in circumstances where no application for leave to appeal pending before the Court – whether the applicant could meet test posed by s 22 of the Bail Act if there was jurisdiction to hear application – whether special or exceptional circumstances – no circumstances of that nature identified

CRIMINAL LAW – sentencing – appeal against sentence – manifest excess – possess prohibited weapon – escape police custody – affray – resist police

LAND LAW — application for the stay of a writ of possession — where, due to some extenuating circumstances, it is appropriate for a short stay to be ordered

SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – The Defendant is also an adult child of the deceased – Close relationship between Defendant and deceased – Plaintiff estranged from deceased for a few years before deceased’s death – Relevance of Plaintiff’s diagnosis of PTSD and Borderline Personality Disorder on her conduct – Deceased left a Will providing a pecuniary legacy of $10,000 to the Plaintiff – No dispute about nature and value of the estate – Estate of modest value – No competing financial claim by either of the residuary beneficiaries – Whether there was, and if so, the relevance of, an estrangement of the Plaintiff and the deceased – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff, and if so, the nature and quantum of the provision to be made

EQUITY – Fiduciary duties – First defendant was the financial controller of the plaintiff school and dishonestly transferred money from the plaintiff’s bank account and diverted the plaintiff’s tax refunds into various bank accounts in his and the second defendant’s name – Barnes v Addy first limb claim against the second defendant for knowing receipt – Whether the second defendant was a recipient of trust property – Whether the second defendant had sufficient knowledge of the trust and its breach to render her personally liable – Alternative restitutionary claim against the second defendant for the benefit of the misappropriations received by her as a volunteer and retained after notice of the plaintiff’s claim – HELD – First defendant breached his fiduciary duties to the plaintiff and is liable to the plaintiff for damages in the amount he stole – HELD – Not established that the second defendant had sufficient knowledge for the purposes of the Barnes v Addy claim – Second defendant liable for restitutionary claim but not for knowing receipt

JUDGMENT AND ORDERS – Amending, varying and setting aside – Correction under slip rule – declarations made on a Cross-Claim in favour of the cross-claimant – Court’s reasons for decision indicate that the cross-claimants should have their costs of the Cross-Claim – no order for costs made on the Cross-Claim – cost assessment commences and issue arises whether a costs order can now be made under the slip rule, Uniform Civil Procedure Rules 2005, r 36.17.

CIVIL PROCEDURE — Pleadings — Form and content of pleading — Defects — Striking out — Whether no reasonable cause of action or defence CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Whether no reasonable cause of action disclosed

GUARDIANSHIP – protected person – application pursuant to s 86 of the NSW Trustee and Guardian Act 2009 (NSW) (“the Act”) for revocation of a declaration made that the applicant is incapable of managing her affairs and of orders that the applicant’s estate be subject to management under the Act – where applicant suffered a traumatic brain injury in an accident as a child – where applicant received a significant sum of money in a settlement of legal proceedings commenced following the accident – where applicant is presently married, works part–time and is the primary carer of three children – where memory and insight following the accident is and continues to be poor – where applicant suffers from executive dysfunction – where applicant experiences difficulty in managing household and personal finances – application dismissed

CORPORATIONS – liquidator’s remuneration – liquidations on foot for more than a decade – complex and large liquidations – remuneration approved thus far is $26 million – liquidators reject proofs of debt of members of committees of inspection – committee of inspection fail to approve further remuneration – impasse – no meeting of creditors called – notice of objection served but no evidence and no appearance – court approval of remuneration under section 473 compared with s 60-10 Insolvency Practice Schedule, at [34]-[39] – infer from duration of liquidations that impracticable to call meeting of creditors to approve remuneration – liquidators’ work prior to that for which approval sought not particularly relevant – relevance of expenses at [55] – relevance of remuneration and expenses of special purpose liquidator at [56] – relevance of dividends paid to unsecured creditors [58]-[59] – entitlement to fees of seeking approval [95] – remuneration approved CORPORATIONS – external administration – committees of inspection – function at [15], [41] – responsibility to continue to involve itself in decisions about remuneration

CRIME — Murder — trial by judge alone – verdicts – complex circumstantial case – Family Court bomber – whether the Accused was the perpetrator - historical charges – 35 to 40 years since acts occurred – grievous bodily harm – shootings and bombings –-coincidence reasoning – tendency evidence – DNA evidence – intermediate fact – convictions entered

CONTRACT – dispute resolution clauses – expert determination clause – separate Expert Determination Agreement entered into – whether expert exceeded her mandate in determining that clause in a Development Deed was a penalty – construction of ambit of separate Expert Determination Agreement – when one party to dispute initially accepted that penalty issue fell within scope of Expert Determination Agreement and then resiled from that fact – whether party estopped from resiling from initial position – whether other issues sought to be raised in Commercial List proceedings but which had not been the subject of expert determination could be litigated – whether primary judge erred in staying litigation of those issues.

PROCEDURE – appeals – extension of time – application for extension of more than a year to bring appeal – applicant mentally unwell – poor prospects of success – change of position by respondent during previous year – more than usual prejudice in responding to appeal – extension refused

TORTS – negligence – Civil Liability Act 2002 (NSW), ss 5K, 5L – meaning of “recreational activity”, “dangerous recreational activity” – whether professional horse racing a recreational activity TORTS – negligence – Civil Liability Act 2002 (NSW), ss 5F, 5L – meaning of “obvious risk” – identification of risk – level of generality – principles to be applied TORTS – negligence – elements of cause of action in negligence – breach of duty – whether riding contrary to the Australian Rules of Racing breached jockey’s duty of care – whether liability defeated by s 5L of the Civil Liability Act 2002 (NSW) STATUTORY INTERPRETATION – definitions – interpretation of definition by reference to term defined – reference to the ordinary meaning of term WORDS AND PHRASES – “recreational” – recreational activity” – “obvious risk” – Civil Liability Act 2002 (NSW), s 5K

DEEDS – deed of release – construction – express terms of deed – whether deed of release relating to the settlement of complaints relating to discriminatory conduct discharged liabilities arising out of workers’ compensation legislation – where entitlement to sue under workers compensation legislation expressly preserved WORKERS' COMPENSATION – entitlement to compensation – exclusions – payment to settle complaint under Anti-Discrimination Act 1977 (NSW) – whether payment constituted “damages” under Workers Compensation Act 1987 (NSW), s 149 – operation of Workers Compensation Act, s 151A, s 280B WORDS AND PHRASES – “damages”, “monetary compensation” – Workers Compensation Act 1987 (NSW), ss 149, 151A

CRIME — appeals — application for leave to appeal against sentence — where applicant pleaded guilty to disqualified driving and dangerous driving occasioning death offences — where applicant's legal representative did not place relevant evidence of her subjective circumstances before District Court for purposes of sentencing — whether miscarriage of justice occasioned by legal representative’s omission — whether such evidence would have been capable of materially affecting the outcome of the sentencing hearing

CRIMINAL LAW – sentence appeal – two offences – knowingly take part in the cultivation of not less than a commercial quantity of prohibited plants and knowingly take part in the cultivation of not less than a large commercial quantity of prohibited plants – offence of participate in a criminal group on a Form 1 – aggregate sentence imposed of 5 years and 6 months with a non-parole period of 3 years and 6 months – challenge to assessment of objective seriousness of offences – whether parity principle breached – whether aggregate sentence manifestly excessive – error in assessment of objective seriousness – need to resentence – no lesser sentence warranted in law.

CRIMINAL LAW – sentence appeal – three offences of affray, assault occasioning actual bodily harm and reckless wounding – altercation in hotel – events recorded on CCTV – applicant major contributor to violence – whether parity principle observed – applicant’s conduct significantly more serious than that of co-offender – appeal dismissed.

LAND LAW – Mortgage to guarantee debt to third party – Loan Agreement – Guarantor – Default – Loan for benefit of guarantor – Mortgage seeking only possession – no money issue – set off or cross-claim foreshadowed and unconscionability pleaded as shield – summary judgment – set off or damage to be agitated at later time on reconciliation.

PRACTICE AND PROCEDURE – review of decision of registrar – where registrar set aside subpoenas issued to educational institutions, banking entity and private health insurance provider – whether Court should exercise its discretion to review decision of registrar – decision reviewed in part PRACTICE AND PROCEDURE – subpoenas and notices to produce – application to set aside subpoenas – whether subpoenas issued by plaintiff to certain educational institutions should be set aside on the basis of an impermissible fishing exercise – subpoenas not set aside

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.

EVIDENCE – plaintiff facing two charges of intimidate police – subpoena issued by plaintiff – whether legitimate forensic purpose – application to set aside subpoena by Commissioner of Police – order by magistrate setting subpoena aside – credit of complainant in intimidation charges important – whether reasonable grounds to think that documents relevant to credit of complainant will be found – whether documents sought in subpoena are relevant to intimidation charges – APPEAL – interlocutory application before Local Court – leave to appeal necessary pursuant to s 53(3)(b) of Crimes (Appeal and Review) Act 2001 (NSW) – limitation on role of court hearing application for leave to appeal – leave to appeal refused.

COSTS – Party/Party – General rule that costs follow the event – the Court dismissed the plaintiffs’ claims against the underwriter defendants – subject to an application for a special costs order, the plaintiffs were ordered to pay the defendants’ costs in each action – the Court granted liberty to apply for a special costs order – the plaintiffs seek orders for each party to bear its own costs of the proceedings – the defendants seek orders that the plaintiffs be jointly and severally liable for the underwriters’ costs, as the plaintiffs were in substance pursing the same interest – the defendants seek an order for indemnity costs on the basis of a Calderbank letter.

CRIMINAL LAW – Sentence – Appeal – Where applicant pleaded guilty to four counts of aggravated indecent assault of a person under 16 and one count of inciting a person under 16 to commit an act of indecency – Grounds of appeal drafted by self-represented applicant – Whether sentencing judge erred in assessing special circumstances – Whether sentencing judge intended a modest reduction in the non-parole period – Whether sentencing judge erred in assessing the applicant’s prospects of rehabilitation – Whether sentence was manifestly excessive – No error established – Leave to appeal granted – Appeal dismissed

LAND LAW — Torrens title — claim for compensation from the Torrens Assurance Fund — property of plaintiff company transferred to director of company and his wife in 1997 — transfer effected as part of fraud perpetrated by director — director transferred his interest to wife in 2000 — wife thereafter held title as sole registered proprietor — company commenced statutory derivative proceedings in 2008 against director and wife to recover the land — held at first instance that wife’s title was indefeasible but orders for equitable compensation made against director — on appeal company successful in obtaining order that wife held property on trust for it — in 2015 High Court holds that wife’s initial title was indefeasible but she held a one-half interest on trust for the company — company makes claim in 2017 for compensation from Assurance Fund — Registrar-General rejects claim on basis that it was made out of time — whether claim for compensation brought outside time stipulated in s 131(2) of Real Property Act 1900 (NSW) — whether “compensable loss” within s 129 of Real Property Act arose more than six years before claim made in 2017 — held that “compensable loss” had been suffered by 15 September 2000 — held that “compensable loss” was not first suffered at time of High Court decision — whether cause of action barred by s 14(1)(d) of Limitation Act 1969 (NSW) — held that six year limitation period commenced to run on 15 September 2000 — held that limitation period was not thereafter suspended on the basis that company was a person “under a disability” within s 52 of Limitation Act — disability provisions of s 52 held to apply only to natural persons — held that in any event company was not substantially impeded by reason of any relevant impairment or restraint — held further that even if under a disability during a period of receivership the limitation period would have expired in March 2012 — no action brought on cause of action before expiry of limitation period — cause of action extinguished — proceedings dismissed.

PRACTICE AND PROCEDURE – Where plaintiff commenced proceedings to set aside settlement agreement on the basis of legal incapacity – Whether plaintiff a person under legal incapacity – Where plaintiff conceded that he was not under legal incapacity – No issue to be determined in the proceedings – Proceedings dismissed COSTS – Proceedings dismissed – Where plaintiff sought stay of execution of costs order – No proper basis for staying execution of costs order – Usual costs order made

PRACTICE AND PROCEDURE – Where plaintiff commenced proceedings to set aside judgment on the basis of legal incapacity – Whether plaintiff a person under legal incapacity – Where plaintiff conceded that he was not under legal incapacity – No proper basis for the continuation of proceedings – Proceedings dismissed PRACTICE AND PROCEDURE – Pleadings – Notice of motion – Application for leave to further amend statement of claim – Where further amended statement of claim did not properly plead a cause of action – Where plaintiff bound by issue estoppel – Application refused – Proceedings dismissed COSTS – Dismissal of notice of motion – Usual costs order made

CIVIL PROCEDURE – negligence – where alleged failure to detect or report upon suspicious lesion – where proceedings expedited due to predictions about life expectancy of plaintiff – where plaintiff filed amended statement of claim – where defendant concerned about ability to address new proposals and organise such matters as expert conclaves and mediation by existing hearing date

COSTS – Indemnity costs – Specified gross sum instead of assessed costs – Civil Procedure Act 2005 ss 98(1)(c), 98(4)(c) – Where administrators of company raise a special levy from shareholders to pay necessary costs and expenses – Where defendants refuse to pay but have no defence and administrators commence proceedings to recover the levy and eventually the defendants capitulate – Indemnity costs warranted – Gross sum order appropriate

COSTS – Criminal Appeal from summary proceedings – RSPCA prosecution under Crimes Act – whether prosecution in “private capacity” – operation of s 70(3) of the Crimes (Appeal and Review) Act 2001 (NSW) on meaning of “private capacity” – applicability of Latoudis v Casey – exercise of discretion to award costs below – Suitors Fund – recommendation for payment under s 6(2) by Director General or Attorney General

COSTS – Party/Party – General rule that costs follow the event – application of or any award of indemnity costs plaintiffs were successful in the proceedings and obtained judgment for approximately $62,000 –defendant says that the proceedings should have been commenced in the District Court – the plaintiffs argue costs should follow the event – where the plaintiffs seek an award of indemnity costs due to the defendant’s claimed fraud and a Calderbank offer –the defendant resists any order as to costs or any award of indemnity costs Uniform Civil Procedure Rules 2005, r 42.34.

CIVIL PROCEDURE – primary judge’s reasons for judgment striking out plaintiff’s claim revealed intention to permit plaintiff to re-plead – by apparent oversight leave to re-plead not given in formal orders – plaintiff sought leave to appeal – proper course was instead to approach primary judge for order granting leave – duty of defendant to cooperate to ensure orders reflected judge’s intention – s 56(3) Civil Procedure Act 2005 (NSW) referred to

CRIMINAL LAW – appeal – procedure – appeal from Local Court to District Court – appeal dismissed – request to judge to submit question of law to Court of Criminal Appeal – request declined – requirement to identify a question of law – Criminal Appeal Act 1912 (NSW), s 5B CRIMINAL LAW – use on road of heavy vehicle – whether vehicle unsafe – non-compliance with regulations setting standards for braking systems – separate offence of non-compliance with regulations – Heavy Vehicle National Law (NSW) s 89(2) JUDICIAL REVIEW – jurisdictional error –refusal of District Court judge to submit a question of law to the Court of Criminal Appeal – whether power coupled with duty to exercise power on request – whether request stated a question of law – challenge to determination of judge that no question of law raised PRACTICE AND PROCEDURE – criminal – power of judge of District Court to submit question of law to Court of Criminal Appeal – application out of time – identification of question of law – whether discretion to refuse request PRACTICE AND PROCEDURE – judicial review – application out of time – whether application had merit warranting extension of time – Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1)

CIVIL PROCEDURE – cross-vesting – transfer to Federal Court – whether in the interests of justice

CORPORATIONS — Winding up — Application to adjourn proceedings — Administrators appointed shortly before hearing — administrators also appointed to 11 other companies in corporate group — no suggestion of a deed of company arrangement — benefit of adjournment suggested to be investigation across corporate group to locate and secure assets – whether in interests of creditors – not a relevant benefit for s 440A(2) — Adjournment refused.

LAND LAW – application for mesne profits – where defendant failed to provide possession pursuant to a notice of termination of a contract for sale – where defendant remained in possession for over two years – no issue of principle – mesne profits and interest ordered

SUCCESSION – burial rights – whether wife or mother should have carriage of the funeral and custody of the deceased's body – burial or cremation – consideration of deceased’s identification as Aboriginal man of Wiradjuri culture – where deceased had separated but not divorced from his wife – where deceased’s and deceased’s children’s wishes were that he be cremated

HIGH RISK OFFENDERS – interim orders – whether the conditions of supervision are appropriate

CRIME - murder - trial by judge alone - where accused pleads guilty to being an accessory after the fact to the murder - where deceased was attended upon by a group and shot five times in his doorway - where murder part of an arrangement to confront deceased - where accused admitted to having driven assailants to and from the deceased’s property - where Crown case principally relied on admissions made by the accused to a witness - where witness obtained further admissions after wearing a listening device - where accused claims he was intimidated by witness and made admissions to ward off the witness – where accused had fabricated claims of having been involved in other murders - where tendency evidence admitted to suggest involvement of another person - where sufficient doubt raised as to the truthfulness of the admissions - where accused found not guilty

APPEALS – notice of motion by Wang seeking to reverse result of application for leave to appeal – attempt to re-agitate arguments previously put – notice of motion of same character previously dismissed – order to the effect of that made in Teoh v Hunters Hill Council COSTS – notice of motion by State of NSW seeking specified gross sum order – Civil Procedure Act, s 98(4) – relevance of history of proceedings and likelihood of incurring further significant costs

CRIME – appeals – appeal against conviction – sexual assault offences – applicant convicted of seven of nine counts of indecent assault on a male – whether jury verdict was unreasonable or unsupportable having regard to the acquittals – convictions quashed on two counts – open to the jury to be satisfied of the applicant’s guilt in relation to the other five counts CRIMINAL PROCEDURE – trial – conduct of prosecutor – two inappropriate statements in closing address – suggestion that the accused had a “motive to lie” – suggestion that the accused had a general tendency not supported by the evidence – whether miscarriage of justice EVIDENCE – reliability – whether complainant’s evidence capable of sustaining convictions of two counts of indecent assault – details of assaults given many years later after several statements to police – express denial of facts charged – effects of hypnosis – memories suppressed – whether evidence unreliable – whether jury could rationally assess reliability

CRIMINAL LAW – appeals – appeal against sentence – aggravated sexual intercourse without consent – whether sentence manifestly excessive – appeal dismissed

CIVIL PROCEDURE – account – components determined in principle – application for leave to re-open the evidence – strength of evidence – discretionary factors