Cases and authorities

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Where leave was not obtained within the 21 day period for setting aside demand specified in s 459G of the Corporations Act 2001 (Cth) — Whether requirements for granting leave under s 237 of the Corporations Act 2001 (Cth) are met. CORPORATIONS — Winding up — Application to set aside creditor’s statutory demand under ss 459H and 459J of the Corporations Act 2001 (Cth) – Where there is genuine dispute as to construction of loan documentation.

CONTRACTS — Construction — Interpretation –– whether contract formed pursuant to the appellant’s offer or the respondent’s counter-offer – whether the proper construction of the contract required supply of building materials and services at a price per unit as required or at a fixed sum – where quantity of units required unknown at the time of contracting – where context and businesslike construction militate against fixed sum

CRIMINAL LAW – sentence appeal – offences of murder, two offences of specially aggravated break, enter and steal with intention to inflict grievous bodily harm, three offences of aggravated detain for advantage – two home invasions involved – basis of liability participation in a joint criminal enterprise – whether the sentence indicated for murder manifestly excessive – whether asserted error in indicative sentence produced a manifestly excessive aggregate sentence – whether error in the sentencing judge’s approach to special circumstances – no error established – appeal dismissed.

CORPORATIONS - Winding up - Voidable transactions - Application for orders under s 588FF Corporations Act 2001 (Cth) for an extension of the period within which an application may be brought against certain persons in respect of voidable transactions – Where delays caused by funding issues, non-compliance with document production and COVID-19 difficulties. PROCEDURE – Non-publication order – Where liquidator’s affidavit supporting extension application discloses lines of inquiry that may prejudice investigations.

CORPORATIONS — Winding up — Statutory demand — Whether statutory demand should be set aside by reason of offsetting claim — Where Plaintiff makes offsetting claim for defective construction works — Where expert evidence provides opinion on rectification cost.

JUDGMENTS AND ORDERS — application to vary or set aside orders – whether orders for the delivery of vacant possession be set aside or varied in light of the COVID-19 pandemic – whether executive or legislative instruments responding to the COVID-19 pandemic suggest that the orders ought to be set aside or varied – where vacant possession ordered as a consequence of an order under s 66G of the Conveyancing Act 1919 (NSW) prior to the COVID-19 pandemic

CIVIL PROCEDURE — Court of Appeal — Competency of appeal – where purported appeal and cross appeal commenced as of right – where only the availability of declaratory and injunctive relief in issue on appeal – where leave to appeal required by s 101(2)(r) of the Supreme Court Act 1970 (NSW) CIVIL PROCEDURE — Court of Appeal — Leave to appeal – where the provision of declaratory relief alone as a result of a finding of oppression– where underlying controversy between the parties has been quelled – whether substantive injustice arises if primary judgment allowed to stand – whether issue of principle or public importance that is more than merely arguable if declaratory relief given is allowed to stand

SENTENCING – aggregate sentence – indictment containing two counts – Form 1 offences – Form 1 attached to one count only – identical indicative sentences for each count – Crown conceded sentencing judge erred in taking Form 1 offences into account on both counts SENTENCING – appeal against sentence – role of appellate court – resentence – Court of Criminal Appeal to exercise sentencing discretion afresh

CRIMINAL LAW – Appeal – Sentence – Whether sentence manifestly excessive – Where applicant pleaded guilty to break and enter and commit a serious indictable offence in circumstances of aggravation – Where serious indictable offence was larceny – Favourable findings made by the sentencing judge regarding the circumstances of the offending – Findings inconsistent with conclusions as to objective seriousness – Error established – Where the findings of the sentencing judge were not challenged – Special circumstances justifying adjustment of statutory ratio – Prospects of rehabilitation against a background of lengthy criminal history – Applicant re-sentenced

CRIMINAL LAW – Appeal – Sentence – Importing border controlled drug in excess of the marketable quantity – Where sentencing judge failed to take into account the utilitarian value of the applicant’s plea of guilty – Error established – Plea entered at the first available opportunity – Additional discount applied to reflect the applicant’s assistance to police – Applicant resentenced CRIMINAL LAW – Practice and procedure – Taking into account co-operation when sentencing a federal offender – Where applicant provided information to police at the time of his arrest – No evidence of usefulness of the information which was provided – Whether absence of such evidence disentitled the applicant to a discount for co-operation

CIVIL PROCEDURE – time – extension of time – costs assessment – statutory appeal to District Court from determination of review panel – application for leave to appeal was filed 30 days late – whether primary judge erred in law in declining to grant an extension of time COSTS – party/party – appeals – appeal from costs assessment – nature of appeal from review panel to District Court – Legal Profession Uniform Law Application Act 2014 (NSW), s 89(1) JUDICIAL REVIEW – review of dismissal of appeal to District Court – grounds of review – whether errors of law on the face of the record limited to non-jurisdictional errors of law STATUTORY INTERPRETATION – amendment and repeal – changes to provisions governing appeals from costs assessments – relevance of other legislative provisions – applicability of decisions considering earlier statutory regimes

PRACTICE AND PROCEDURE – Separate question – Principles applicable to whether question for determination should be tried separately – Whether order should be made.

CRIMINAL – conviction appeal – juror with legal training – whether jurisdictional error – denial of jurisdiction – section 53B of the Jury Act – discretion to discharge – trial judge cognisant of discretion CRIMINAL – appeal against sentence – severity – sexual offences – manifest excess – objective gravity of the offending – indicative sentences – whether amenable to appeal – structure of sentence – subjective factors of age and health – not manifestly excessive EVIDENCE – fresh evidence – new evidence – circumstances COVID-19 for persons

APPEALS – leave to appeal – Local Court judgment in small amount – parties’ costs exceeded amount in issue – successful appeal would lead to retrial – no case of sufficient injustice to warrant grant of leave

CRIME — Appeals — Appeal against conviction — Unreasonable verdict – Judge alone – Whether verdict unreasonable or insupportable having regard to evidence – Whether appellant the principal offender – Trial judge ought to have had a reasonable doubt CRIME — Complicity — Joint criminal enterprise – Appellant’s conviction not vitiated due to participation in joint criminal enterprise – Reduction in objective seriousness of offending where appellant is convicted on the basis of joint criminal enterprise rather than being the principal offender CRIME — Property offences — Break, enter and commit serious indictable offence — Circumstances of special aggravation – Statutory interpretation – Whether intent to wound required to satisfy circumstance of special aggravation where not expressly required by statute at the time of the relevant offence

CRIMINAL LAW – sentence appeal – causing grievous bodily harm with an intent to cause grievous bodily harm – applicant responded to punch by stabbing victim – serious injuries suffered by victim – whether error in assessment of objective seriousness of offending – whether principle of general deterrence properly applied – whether fact that offence committed while applicant at conditional liberty was a matter of aggravation – whether sentence was manifestly excessive – appeal dismissed.

PRACTICE AND PROCEDURE – in first judgment Court makes orders concerning amendment of pleadings, the setting aside of subpoenas and the appointment of representatives of two estates – further disputes concerning what other consequential orders should be made – whether costs should follow the event or whether some other order should be made – whether or not the plaintiffs were successful in the issues decided in the first judgment – what form of orders should be made varying or setting aside contested subpoenas – plaintiffs file motion to vary orders made in respect of the form of indemnity for the appointed representative to an estate.

CORPORATIONS – winding up – company in liquidation – where company also former trustee of family trust – where liquidator appointed receiver and manager of assets and undertaking of the trust – application for directions – Supreme Court Act 1970 (NSW) s 67 – Corporations Act 2001 (Cth) s 477(2B) – whether receiver justified in selling trust property on terms of “Deed of Proposed Transfer and Release” – where proposed deed involves payment of an $850,000 cash sum, release of company from certain guarantees and a discharge of mortgage – where proposed transaction as structured would not engage company’s right of indemnity against principal debtor – direction not given EQUITY – whether guarantor’s right of subrogation dependent on payment of principal debt in full – whether right of subrogation excluded by contract EQUITY – whether guarantor has right of indemnity against principal debtor under proposed deed – whether proposed deed involved payment to creditor or transfer of property to creditor for that purpose

CRIMINAL LAW – application for leave to appeal against sentence – sexual offences committed by the applicant upon his 10 year old half-sister – aggregate sentence – finding of special circumstances but a minimal departure from statutory proportion – no explanation – error found – applicant resentenced

CRIMINAL LAW – appeal against conviction – sexual offences – indecent assault and sexual intercourse without consent – where complainant adult niece of applicant – whether consent given – sole ground of appeal whether verdict unreasonable – appeal dismissed

SUCCESSION – Claim for family provision order by a close friend for over 30 years of the deceased – No dispute as to eligibility of Plaintiff as a person who was, at any particular time, partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member – Alternative basis of eligibility, he was a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death not necessary to determine – Also no dispute that there are factors warranting the making of the Plaintiff’s application – Deceased died intestate – In the events that happened, beneficiaries on intestacy are two nieces and two nephews of the deceased in equal shares – None of the beneficiaries had met the deceased, but were said to have spoken to him on the telephone – Telephone contact between them limited – Significant competing claim of the Plaintiff on the deceased’s estate – Whether Plaintiff has been left without adequate provision for his proper maintenance and advancement in life under rules of intestacy – Whether an order for provision should be made for the Plaintiff’s proper maintenance and advancement in life and, if so, in what amount and how calculated COSTS – Ordinary basis – Exceptions to general rule that costs follow the event – Calderbank offers made – Whether rejection of offers was unreasonable

PRACTICE AND PROCEDURE – pleading – alleged apportionable claim – whether adequately pleaded

CONTRACTS — construction — contract for the sale of proposed lot in plan of subdivision — area of lot affected by area of another proposed lot — sketch plan annexed to contract showed area of other lot as 2001m² — correct figure was 2205m² — purchaser given right to rescind if area of other lot shown as 2100m² or more on registered plan — plan of subdivision as registered showed area of other lot to be 2205m² — purchaser rescinded — vendor claimed that sketch plan should be read as if it showed the correct area (2205m²) — vendor claimed that objective intention of parties was to confer a right of rescission if area shown on registered plan exceeded area shown on sketch plan by 5% — whether mistake in contract can be corrected as a matter of construction — whether literal meaning of language of contract created an absurdity — whether objective intention self-evident — held that a reasonable person in the position of the parties would not appreciate the existence of the error — held no absurdity where area recorded on sketch plan not obviously wrong — held that suggested objective intention not self-evident — held that purchaser validly rescinded the contract

COSTS – Indemnity costs – No point of principle

HIGH RISK OFFENDER – preliminary hearing – application for interim detention order – whether threshold requirements met – whether defendant is a ‘detained offender’ or a ‘supervised offender’ under the Crimes (High Risk Offenders) Act 2006 (NSW) – whether summons was filed not more than 9 months before the end of the defendant’s total sentence pursuant to s 13B – defendant is a supervised offender – application brought prematurely – summons dismissed STATUTORY INTERPRETATION – legislative purpose – whether ‘total sentence’ in s 13B of the Crimes (High Risk Offenders) Act 2006 (NSW) refers only to the custodial element of a sentence – legislation intended to protect the community – conditional release is subject to exercise of powers of the state to protect the community – total sentence encompasses both custodial element and period of conditional release in s 13B

HIGH RISK OFFENDER – final hearing – application for an Extended Supervision Order – defendant has multiple convictions for sexual offending – extensive criminal history generally – where defendant does not oppose making of an Extended Supervision Order – necessity for Court to be satisfied that Extended Supervision Order should be made – community safety paramount – dispute as to form of conditions to be imposed – Extended Supervision Order made and conditions imposed.

CRIME – appeals – appeal against sentence – using offensive instrument with intent – reckless wounding – reference to R v Way – whether sentencing principles applied erroneously – applicant’s moral culpability – Bugmy factors – notional accumulation – whether failure to provide adequate reasons

FOREIGN JUDGMENT – enforcement – common law – principles – jurisdiction – Peoples Republic of China – judgment enforced

PRACTICE AND PROCEDURE – application to vacate hearing date – whether first defendant able properly to present her case – where first defendant’s psychologist opined that first defendant was “Presser fit”

BUILDING AND CONSTRUCTION – residential building work – whether plaintiff principals repudiated their obligations under the contract – whether defendant builder thereby exonerated from any liability for defective work – accrued rights of parties CONTRACTS – residential building work – whether plaintiff principals repudiated their obligations under the contract – whether defendant builder thereby exonerated from any liability for defective work – accrued rights of parties RESTITUTION – whether restitution on the basis of a quantum meruit available where there is an enforceable contract and rights have accrued under that contract

PROCEDURE – Payment into court – Where money paid into court to obtain extension of time to lead evidence of solvency – Where money paid into court to demonstrate ability to meet judgment amount – Whether money borrowed from associated entity and paid into court held on Quistclose trust in favour of lender – Where objectives of payment into Court satisfied.

LAND LAW — Torrens title — Indefeasibility of title — Effects of indefeasibility —Proper construction of acknowledgement in mortgage where advance never received by mortgagor due to intervention of alleged fraudster

CIVIL PROCEDURE – Stay of proceedings – Pending appeal – the plaintiff is successful in a TPD claim against an insurer defendant – defendant appeals – judgment in excess of $750,000 – plaintiff has no property in her name – whether a stay should be granted pending appeal. COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers - plaintiff issues Calderbank letter offering to settle for $300,000 plus costs – plaintiff successful in a greater sum – whether it was unreasonable for the defendant not to have accepted the plaintiff’s offer.

EQUITY – Misappropriation – Stolen moneys – Institutional constructive trust – Trust money received by volunteers – Trust money dissipated – Absence of property to support proprietary remedy – Recovery of equitable compensation as personal remedy. AGENCY – Authority of agent - Ostensible authority – Third party reliance upon principal’s holding out of “agent” as duly authorised – Reliance by third party unreasonable – Principal not bound – No ostensible authority.

CIVIL PROCEDURE – hearings – adjournment – relevant factors – proposed adjournment to enable the hearing to be conducted in person

TAXES AND DUTIES – administration of federal tax legislation – collection and recovery of taxes – PAYG tax – estimates provisions – where Notice of Estimate issued – where company did not pay the amount of the Notice of Estimate – where Director Penalty Notices issued – where appellants placed company into liquidation – whether Director Penalties were remitted pursuant to s 269-30(1) of Schedule 1 to the Taxation Administration Act 1953 – whether trial judge erred in finding that s 269-30(2) Item 2 of Schedule 1 to the Taxation Administration Act 1953 applied in respect of the Director Penalties TAXES AND DUTIES – administration of federal tax legislation – collection and recovery of taxes – PAYG tax – averments under s 255-50 of Schedule 1 to the Taxation Administration Act 1953 – where averments made as to unpaid PAYG amounts withheld – whether averments themselves sufficient evidence that the company had withheld PAYG amounts and not paid those amounts to the Commissioner

EQUITY – injunctions – interlocutory injunctions – where plaintiffs retained legal services of the first defendant – plaintiffs entered into two costs agreements with the first defendant which contained security provisions granting the first defendant an equitable charge over all of the plaintiffs’ present and future property to secure payment of any amount unpaid on tax invoices issued by the first defendant – where security provisions also stipulated that any non-payment of first defendant’s invoices as and when they fall due would be a payment default entitling the first defendant to appoint an “external controller” – second defendant subsequently appointed by first defendant as receiver and manager of first plaintiff’s real properties – where plaintiffs seek to restrain defendants from taking possession of and otherwise dealing with those properties and taking further steps in reliance on the security provisions and/or the deed of appointment of the second defendant – serious question to be tried conceded – balance of convenience favours the grant of interlocutory relief

CONTRACTS — Remedies — money claim made under loan agreement — whether attempts to discharge debt by refinancing were frustrated by conduct of the lenders CONTRACTS — Unconscionable conduct — Australian Securities and Investments Commission Act 2001 (Cth) s 12CA — whether interest rates in the loan agreement unconscionable

CIVIL PROCEDURE — Pleadings — Strike out/summary judgment application — Adequacy of pleading — Whether reasonable cause of action — Whether tendency to cause prejudice, embarrassment or delay

HIGH RISK OFFENDER – final hearing – application for extended supervision order – defendant convicted of murder committed in 1988 – serious risk of future intimate partner violence – extended supervision order of two years not opposed by defendant – events since imposition of interim supervision order - whether electronic monitoring and schedule of movements should be imposed

PROCEDURE – bias – application for disqualification for apprehended bias – where judge formerly retained by a particular law firm on behalf of a particular client – where client and law firm alleged to be involved in procurement of vexatious proceedings order – where no basis for allegation made out – consideration of principles concerning apparent bias in circumstances where judge formerly acted for a particular client or was retained by a particular law firm. PROCEDURE – Vexatious Proceedings Act 2008 (NSW) – whether leave required prior to commencement of proceedings for judicial review – consequence of failing to obtain leave. VEXATIOUS PROCEEDINGS – party subject to earlier vexatious proceedings order commencing judicial review proceedings in Court of Appeal – where leave to bring proceedings had not first been obtained – consequences of failure to obtain leave – proceedings taken to have been dismissed.

LEGAL PRACTITIONERS – Court’s supervisory jurisdiction over solicitors – Solicitor’s undertaking – Court’s concern with honesty of its officers – Solicitor seeking recovery of fees for services rendered under a retainer accepted by the solicitor where his interests and those of the client were in actual and potential conflict – Where work done under the retainer benefitted solicitor and was capable of being used to his advantage in a dispute with his client – Where solicitor says retainer is enforceable because he obtained the client’s fully informed consent – Whether such consent, if obtained, would have been effective – Where solicitor gave an undertaking not to charge fees for work done and covered by the retainer – Where solicitor asserts that he is not bound by undertaking because no consideration was given for it and it was not given in a professional capacity – Whether undertaking was given in solicitor’s professional capacity – Whether Court should exercise supervisory jurisdiction to preclude solicitor from recovery of fees – HELD – Fees excessive, unfair and unreasonable – Undertaking should be complied with – Solicitor may not recover fees for work done while in a position of conflict.

CONSUMER LAW – Competition and Consumer Act 2010 (Cth) – Australian Securities and Investment Commission Act 2001 – misleading and deceptive conduct – persons involved in the contravention – contract for IT equipment, software and services – financing of contract by commercial lease - oral representations made about efficiency of IT system to be supplied – contract repudiated – hypothetical question of misrepresentation – misrepresentation a question of fact – measure of loss

CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors — Appointment of a tutor

COSTS — Security for costs — Form of order COSTS — Party/Party — Exceptions to general rule that costs follow the event — where no adjudication on the merits — whether defendant was almost certain to succeed on its motion

Costs — Party/Party — Whether costs order ought to be made against defendants — Where proceedings involved application for judicial advice to trustee — Where defendants joined as parties and unsuccessfully sought a stay of proceedings and opposed the giving of judicial advice COSTS – Party/Party – Bases of quantification – Indemnity basis — Whether the defendant engaged in relevant delinquency COSTS — Party/Party — Timing — Costs payable forthwith — Where the issues so far determined are discreet and threshold and further litigation is likely

APPEALS – appeal from Local Court to Supreme Court – extension of time to appeal – evidentiary basis for delay in filing summons – fairly arguable case – extension of time granted – summons deemed to be filed in time APPEALS – appeal from Local Court to Supreme Court – leave to appeal interlocutory judgment – magistrate did not consider all relevant principles and submissions – whether matter should be remitted to Local Court – no injustice going beyond what is merely arguable – leave to appeal refused where order for new trial would be futile

COSTS – indemnity costs – indemnity costs sought against unsuccessful plaintiff – plaintiff failed to accept “walk away” Calderbank offer – whether offer involved a genuine compromise – whether plaintiff’s failure to accept Calderbank offer unreasonable – held that plaintiff did not act unreasonably where aspects of transaction not known to plaintiff, and defendants’ evidence not yet served – where cross-claim dismissed because it did not arise – costs ordered against plaintiff on ordinary basis not including costs of cross-claim

SUCCESSION – family provision – testator dies survived by three sons, one other son having predeceased her – testator made a gift of real estate during her lifetime to one of her sons, the first defendant and his wife, the second defendant – the testator made the first defendant executor of her last will – that will divided the substance of her estate, giving three quarters of it to another son, the plaintiff, and one quarter, to another surviving son, on trust for his children – plaintiff brings a claim under Succession Act 2006, Chapter 3 contending that he has been left without adequate provision from the testator's estate for his proper education, maintenance and advancement in life – whether a further order for provision out of the deceased’s estate should be made – whether the property transferred to the first and second defendants should be designated as notional estate – whether a notional estate order should not be made on the grounds that it is out of time – whether there are "special circumstances" allowing a notional estate designation – whether a designation of notional estate will interfere with the first and second defendants’ reasonable expectations about the ownership of their property.

CIVIL PROCEDURE – payment out of court – a fund, being the proceeds of sale of certain real property is paid into Court – claim made against the funds where a property that was held by tenants in common is auctioned by a mortgagee in possession – where the first and second applicants for the funds had paid $75,000 directly to the vendor as a deposit for a half-share in the real property – where the whereabouts of the tenant in common who defaulted on the mortgage over the real property is unknown. EQUITY –Trusts and trustees — Bare trusts - Trustee Act 1925, s 95 – payment into Court – application to pay funds out of Court under Uniform Civil Procedure Rules 2005, r 55.11 – bank exercises its mortgagee’s power of sale of a property and after deduction of the first mortgage amount pays the balance of the proceeds of sale into Court – the registered proprietors of the property have not applied for the payment out-of-court – two applicants for payment of $75,000 out-of-court claim this sum is a deposit on a failed contract to purchase the subject property – one of the registered proprietors agrees with the applicants’ claim – the other cannot be found – whether the monies should be paid out of Court – no other evidence of other claimants to the funds in Court.