Cases and authorities

CRIME — confiscations — restraining order — variation

CIVIL PROCEDURE — originating process — amendment — no question of principle CIVIL PROCEDURE — parties — addition of defendant — no question of principle

CRIME – SENTENCE – MANSLAUGHTER – plea of guilty accepted – two co-offenders in substantially different circumstances – requirement to impose substantially different sentences – sentences imposed

CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — Land and Environment Court – Whether, for the purposes of s 149B(2) of the Civil Procedure Act 2005 (NSW), it is more appropriate for the proceedings in the Supreme Court to be transferred to the Land and Environment Court to be heard together with related proceedings in that court – Transfer order made

CONTRACTS — Formation — Agreement — Intention to make concluded bargain CONTRACTS — Formation — Conditional promises — Subject to contract CONTRACTS — Formation — Promissory estoppel — Representation CONTRACTS — Remedies — Specific performance

CORPORATIONS – winding up – statutory demand – application to set aside – where debt claimed in demand is a purported judgment debt – whether absence of s 459E(3) verifying affidavit constitutes ‘some other reason’ to set demand aside – Corporations Act 2001 (Cth) s 459J(1)(b) – where defendant and plaintiff parties to separate litigation – whether plaintiff has offsetting claim – Corporations Act s 459H(1)(b) – demand set aside

CIVIL PROCEDURE - pleadings – striking out - application to strike out defence as disclosing no defence to the claim – claim for possession of land as a result of default under mortgage – where mortgage, advance and default admitted – claim that land bought by defendant as trustee for trust – no defence disclosed – application to strike out cross-claim – claim for breach of National Consumer Credit Protection Act 2009 (Cth) - where elements of cause of action not pleaded – where claim pleaded in cross-claim was statute-barred – pleadings struck out

COMMISSIONS OF INQUIRY – inquiry established under Casino Control Act 1992 (NSW) – whether conferral of powers and authorities of a commissioner under the Royal Commissions Act 1923 (NSW) included power to compel testimony or production of documents irrespective of claim of legal professional privilege – meaning of s 143A of Casino Control Act – whether a witness summoned by or appearing before the person presiding at an inquiry entitled to claim legal professional privilege. PRIVILEGE – legal professional privilege – whether s 143A of Casino Control Act operated to abrogate legal professional privilege – whether s 143A of Casino Control Act conferred power to compel production of documents irrespective of legal professional privilege. STATUTORY INTERPRETATION – whether s 17(1) of the Royal Commissions Act conferred a power or authority on a commissioner – whether s 143A of the Casino Control Act picked up s 17(1) of the Royal Commissions Act and abrogated legal professional privilege – principle of legality – legislation to be construed in context of case law existing at time of enactment – meaning of “protection” afforded to a witness in s 11(3) of Royal Commissions Act – permissible use of extrinsic materials.

Income tax (Cth) – Assessable income – Controlled foreign companies – Where Pt X of Income Tax Assessment Act 1936 (Cth) ("Act") attributes income of controlled foreign company ("CFC") to Australian resident taxpayer who has sufficiently substantial interest in it – Where BHP Billiton Marketing AG ("BMAG") CFC of BHP Billiton Ltd ("Ltd") – Where income of BMAG derived from sale of commodities purchased by BMAG from BHP Billiton Plc's ("Plc") Australian entities – Where that income included in assessable income of Ltd if Plc's Australian entities "associates" of BMAG – Where company "associate" of entity under s 318(2) of Act if "sufficiently influenced" by entity – Where s 318(6)(b) provides that company "sufficiently influenced" by entity if accustomed or under obligation or might reasonably be expected to act in accordance with directions, instructions or wishes of entity – Where Ltd and Plc part of dual-listed company arrangement and operated as if "single unified economic entity" – Whether Plc's Australian entities "associates" of BMAG – Whether Ltd "sufficiently influenced" by Plc – Whether Plc "sufficiently influenced" by Ltd – Whether BMAG "sufficiently influenced" by Plc and Ltd. Words and phrases – "assessable income", "associate", "attribute", "combined businesses", "controlled foreign company", "dual-listed", "effective control", "in accordance with the directions, instructions or wishes", "single unified economic entity", "sufficiently influenced", "tainted sales income". Income Tax Assessment Act 1936 (Cth), ss 318, 340, 447.

Corporations – Officers – Meaning of "officer" of corporation – Where para (b)(ii) of definition in s 9 of Corporations Act 2001 (Cth) defined "officer" of corporation as person who had capacity to affect significantly corporation's financial standing – Where MFS Investment Management Pty Ltd ("MFSIM") responsible entity of registered managed investment scheme, Premium Income Fund ("PIF") – Where MFSIM entered into loan facility to be used solely for purposes of PIF – Where MFSIM drew down on loan facility to pay debts of other related companies in MFS Group – Where MFSIM secured no promise of repayment of funds to PIF – Where first respondent was Chief Executive Officer of parent company of MFS Group – Where first respondent acted as "overall boss" of MFS Group and assumed "overall responsibility" for MFSIM – Where first respondent approved and authorised disbursement of funds from loan facility knowing no benefit or consideration would pass to PIF – Where first respondent not director of MFSIM at relevant time – Where Australian Securities and Investments Commission alleged first respondent breached duties as officer of MFSIM in contravention of Corporations Act – Whether para (b)(ii) of definition of "officer" in Corporations Act requires person to have acted in recognised position within corporation with rights and duties attached to it – Whether first respondent "officer" of MFSIM. Words and phrases – "capacity to affect significantly the corporation's financial standing", "chief executive officer", "corporate group", "de facto director", "financial standing", "managed investment scheme", "management of corporation", "misuse of funds", "named office", "office", "officer", "officer of a corporation", "recognised position". Corporations Act 2001 (Cth), ss 9, 179, 180, 601

MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — possession — application for stay of writ of possession

CIVIL PROCEDURE — cross-claims — against third party — for contribution or indemnity

CIVIL PROCEDURE — Pleadings — admissions made in pleadings — whether cross-defendant bound by facts admitted in pleadings by defendant to primary claim — exceptions to general principle that admissions are binding on parties and the Court — Court bound by admission made by defendant in pleadings CIVIL PROCEDURE — Cross-claims — Against third party — whether cross-defendant entitled to raise defence to primary claim that defendant did not raise — cross-defendant not a party to the issue CIVIL PROCEDURE — Time — whether summons filed in time — when entry of orders properly effected — whether extension of time necessary – importance of entering orders in JusticeLink

LAND LAW – contract for sale of land – claim for rescission pursuant to the rule in Flight v Booth (1834) 1 Bing (NC) 370 – plaintiff entered into contract to purchase a stratum lot in an unregistered plan of subdivision – draft plan annexed to contract showed areas at various levels – whether areas should be understood as areas of the lot at those levels or floor areas at those levels – held that areas should be understood as areas of the lot – no substantial discrepancy between the subject matter of the sale and what was able to be conveyed – plaintiff had no right to rescind LAND LAW – contract for sale of land – deposit – vendor entitled to forfeit deposit upon termination for purchaser’s failure to complete – statutory return of deposit – whether vendor made misrepresentation as to floor space in building once constructed – no misrepresentation made by vendor – no grounds for order for return of deposit under s 55(2A) of Conveyancing Act 1919 (NSW) MISLEADING AND DECEPTIVE CONDUCT – contract for sale of stratum lot in unregistered plan of subdivision – draft plan annexed to contract showed areas of various levels – whether vendor made misrepresentation as to floor space in building once constructed – no misrepresentation made by vendor – vendor did not engage in conduct that was misleading or deceptive or likely to mislead or deceive within the meaning of s 18 of Australian Consumer Law – no grounds for order for return of deposit

BUILDING AND CONSTRUCTION — Progress payments — Where right to a progress payment arose before suspension — Whether adjudication determined amount of progress payment — Whether adjudicator committed jurisdictional error — Whether party entitled to withdraw adjudication application under s 26 and file new adjudication application — Where supporting statement under Building and Construction Industry Security of Payment Act 1999 (NSW) s 13(8) allegedly false or misleading — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 9, 13, 22, 26 and 34. EVIDENCE — Application of the principle in Briginshaw v Briginshaw. PRACTICE AND PROCEDURE — Where cross summons filed late — Whether decision not to challenge the first adjudicator determination amounts to election.

CONTRACT - building - whether variations required to be in writing and signed - consequence of non-compliance - Home Building Act 1989 s7E - terms that do not require variations to be in writing and signed unenforceable BUILDING AND CONSTRUCTION - whether defendant entitled to quantum meruit if not contractually entitled to payment for variations ADMINISTRATIVE LAW - whether denial of procedural fairness - Tribunal member cross-examining plaintiff’s expert - bias - failure to invite counsel to cross-examine opposing expert - relief granted

CRIMINAL LAW – sentence – s 166 Certificate sentence after trial

TORTS – negligence – motor vehicle accidents – recovery proceeding by workers compensation nominal insurer – worker drove into stationary oversize truck while latter stopped at intersection – trailer protruded from right turning lane into worker’s through lane – whether truck driver breached duty by failing to advance into intersection beyond unbroken stop-line – whether truck driver breached duty by failing to activate hazard lights – whether failure to activate hazard lights caused collision – appeal allowed and judgment entered for truck driver

CRIME – appeals – appeal against sentence – reduction for plea of guilty not explicitly mentioned in reasons – no error because plea and discount clearly taken into account CRIME – appeals – appeal against sentence – no special circumstances – applicant already on reintegration home detention – extended supervision not called for because low risk of reoffending CRIME – appeals - appeal against sentence – manifest excess – three year sentence for cultivation by enhanced means of commercial quantity of cannabis plants not unreasonable or plainly unjust

APPEAL – referral to Court of Criminal Appeal under s.79(1)(b) Crimes (Appeal and Review) Act 2001 - offences of aiding and abetting importations of commercial quantities of cocaine and methamphetamine and a marketable quantity of heroin – appellant sentenced in 2013 - sentencing Judge excluded utilitarian value of appellant’s pleas of guilty from consideration in calculating discount consistent with the law prior to Xiao v R – Xiao v R error established - consideration of factors relevant to utilitarian value of guilty pleas - guidance provided by the principles in R v Borkowski - appellant with stronger subjective case on resentence in 2020 - finding that appellant now had good prospects of rehabilitation and a low risk of reoffending - lesser sentences warranted – applicant resentenced

CRIME — Appeals — Appeal against conviction — miscarriage of justice — where Crown concedes breach of prosecutorial duty of disclosure — consideration of appropriate orders to be made CRIME — Appeals — Appeal against conviction — fresh evidence — nature of task to be undertaken by appellate court — whether fresh evidence establishes innocence of applicant or a reasonable doubt as to his guilt such as to warrant the entry of a verdict of acquittal in accordance with the principle stated in Ratten ­— consideration of probative value of fresh evidence

CRIMINAL LAW — proceeds of crime — whether there are reasonable grounds for suspicions

CORPORATIONS — Winding up — Liquidators — Remuneration

BAIL - where judicial review proceedings pending in Court of Appeal - claim of jurisdictional error in determination of sentence appeal from Local Court to District Court - whether judicial review proceedings are “proceedings on an appeal against conviction and sentence” in s.5(1)(d) Bail Act 2013 - consideration of merits of bail application - whether judicial review proceedings have reasonably arguable prospects of success - held they do not - proximity of hearing in Court of Appeal - bail refused

COSTS – application to vary costs order – third party costs – action by defendant's brother-in-law – enforcement of a mortgage – whether husband as third party should pay costs – whether husband played active part in the litigation – whether husband "person of straw" – interests of justice test

CORPORATIONS – review liquidator’s rejection of proof of debt – procedure - principles ‘Secured creditor’ – ‘security interest’ - section 51E of the Corporations Act 2001 (Cth) EVIDENCE - Jones v Dunkel – whether necessary witness – whether witness in one’s ‘camp’ EVIDENCE – business records – evidence of provenance CONTRACTS – email agreement – lack of formality - formation – whether agreement with natural persons or corporations – commencement date of agreement before incorporation of party – post-contractual conduct EQUITABLE ASSIGNMENT – chose in action – novation EQUITABLE CHARGE – agreement to create a charge – agreement performed – implication of grant of charge from consent to lodge caveat

STATUTORY INTERPRETATION – Legislative purpose – whether land vested in South Australia for an estate in fee simple under s 18 River Murray Waters Act 1915 (NSW) on commencement of that Act on 31 January 1917 – whether, as a consequence of the vesting, any and all interests in the land acquired through adverse possession or held as native title rights were extinguished upon commencement of the Act – was the vesting of the land by the Act a “previous exclusive possession act” for the purposes of s 23B of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW) PROCEDURE – separate questions for determination

TORTS – Negligence – apprentice worker required to insert sausage mince into a machine and link sausages - failure properly to clean the meat room floor by another employee – apprentice worker slips on a piece of sausage mince - Contributory negligence - failure of the apprentice worker to clean the meat room floor TORTS – Negligence – Apportionment of responsibility and damages - apprentice worker employed by a third party – liability of employer for non-delegable duty of care - apportionment pursuant to s 151Z Workers Compensation Act 1987 (NSW) INSURANCE – Exclusion clause – Shopping Malls Combined Liability Policy - exclusion of liability for injury to a person under a contract for the provision of labour only services to the insured - whether injured apprentice worker employed by a third party a person under a contract for the provision of labour only services to the insured

CRIMINAL PROCEDURE – stay of proceedings – lack of legal representation – stay refused by District Court – urgent application for leave to appeal refusal of stay under Criminal Appeal Act 1912 (NSW), s 5F – where previous counsel had withdrawn – where trial was to commence in matter of weeks – where applicant not impecunious – where applicant did not establish that had taken reasonable steps to secure other representation – appeal dismissed

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Where sole consent to the adoption has been given by the child — Where past adoption proceedings led to order for parental responsibility, care and custody — Where child over the age of 12 expresses strong views in relation to adoption — Whether with the giving of notice of the proceedings to the child’s birth father ought to be dispensed with — Change of name

CIVIL PROCEDURE – service – consent to service by email – effective informal service CORPORATIONS – winding up – liquidators – release under section 480 – principles at [28]-[32] – protracted history of litigation with person standing behind the corporation – prospect of further baseless claims – release under section 480 – prerequisites under rule 7.5 of Supreme Court (Corporation) Rules 1999 (NSW) – whether service under rule 7.5(6) of the Supreme Court (Corporations) Rules 1999 (NSW) satisfied – whether dispense with requirement for service by prepaid post – principles at [34]-[37]

CORPORATIONS – winding up – company in liquidation – where creditors’ claims satisfied – application for special leave to distribute surplus to contributories – Corporations Act 2001 (Cth) s 488(2) – leave granted

HIGH RISK OFFENDER – continuing detention order sought by the plaintiff refused – extended supervision order of 5 years imposed – extended supervision order not opposed by defendant – position of defendant communicated to plaintiff before final hearing – question of costs in those circumstances – plaintiff to pay costs of the defendant relating to the final hearing

CIVIL PROCEDURE — Stay of proceedings — Pending appeal — Bankrupt putative appellant lacks standing and has no reasonably arguable grounds for appeal

INSURANCE – General – total and permanent disablement – plaintiff a police officer – plaintiff discharged from police force in July 2011 – plaintiff a member of police superannuation fund – first defendant is a trustee of the fund – first defendant takes out two policies of insurance for the benefit of members of the fund with the second defendant insurer – plaintiff claims she is totally and permanently disabled (“TPD”) after being off work for six months and entitled to a benefit for the same – the first and second defendants decline the plaintiff’s claim in July 2015 – plaintiff discontinues proceedings against first defendant – whether the second defendant insurer acted with the utmost good faith in dealing with the plaintiff’s claim and acted reasonably in forming an opinion as to whether the plaintiff qualified as TPD under the policies – whether the second defendant’s decision can be set aside – whether the Court should now itself determine whether the plaintiff is TPD under the policies – whether the plaintiff was “unlikely ever to be able to engage in or work for reward in any occupation or work for which… she is reasonably qualified by education training or experience”.

CORPORATIONS – winding up – Association in liquidation since 2010 – where liquidators obtained judgment debt following costs assessment – where liquidators seek to enforce judgment debt – surplus in liquidation to be distributed – Associations Incorporation Act 1984 (NSW) s 53 – where judgment debtors seek stay of enforcement of writ of levy of property – Civil Procedure Act 2005 (NSW) s 67 – where judgment debtors apply to set aside costs order on which judgment debt is based – whether arguable that costs order obtained irregularly or against good faith – Uniform Civil Procedure Rules 2005 (NSW) r 36.15 – whether set-off of judgment debt against unquantified costs order in favour of one judgment debtor – partial stay ordered

COSTS – party/party – general rule that costs follow the event – appeal upheld in part – whether issues severable – partly successful appellant to pay bulk of respondent’s costs COSTS – party/party – exceptions to general rule that costs follow the event – offers of compromise – whether failure to accept offers unreasonable – offers not specifying costs consequences of non-acceptance – offers to discontinue appeal if entitlement to trial costs foregone COSTS – party/party – exceptions to general rule that costs follow the event – recovery limited to $20,000 –total amount payable to multiple defendants exceeded $500,000 – Uniform Civil Procedure Rules 2005 (NSW), r 42.34 not engaged

MORTGAGES - claim by mortgagee for possession of land following mortgage default - writ of possession issued - application for stay of execution of writ - earlier stay application refused - factors relevant to application for stay - stay refused

CIVIL PROCEDURE — Pleadings — Amendment

COSTS – interlocutory injunction – variation of costs order – application of the usual rule that costs be in the cause or the plaintiffs costs in the cause

LAND LAW – possession of land – mortgages – default under mortgage – no defence disclosed to the claim – plaintiff entitled to summary judgment

EQUITY – breach of confidence – necessary quality of confidence – employment – lists of client and contractor driver contact details found to be confidential – business method information, including shipping rates charged to clients and driver management tools, found to be confidential EQUITY– conduct constituting breach of confidence – access and use of confidential information to set up and conduct rival business during employment – contact with clients and contractor drivers using confidential contact details after employment – use of confidential shipping rates after employment – diversion of a business opportunity to a third party that would have been open to employer EQUITY – equitable remedies – declaratory relief appropriate – injunctive relief granted in limited terms – delivery up and deletion orders granted COSTS – gross sum costs order – where defendants have stopped contesting the proceedings – where defendants are in default of orders - where defendants have failed to take active steps in the proceedings – further discount for duplication of work

SUCCESSION – WILL – CONSTRUCTION – construction of the following provision in the will of the deceased: I GIVE AND BEQUEATH to my children the said VINCENT JOSEPH DE LORENZO, CHRISTOPHER JOHN DE LORENZO and JO-ANN DE LORENZO as tenants in common in equal shares all shares in the companies De Lorenzo Hair & Cosmetic Research Pty Limited ACN 003 218 577, De Lorenzo Australia Pty Limited ACN 003 218 586 and Pavin Investments Pty Limited ACN 000 277 261 registered in my name at the date of my death AND I DECLARE if in the division of such shares in accordance with the terms of this Clause 10 [sic] of this my will the shares are not divisible by three (3) my daughter the said JO-ANN DE LORENZO is to receive more of such shares than my said sons so as to achieve the intent of this Clause. – the deceased owned two shares in the two first named companies – whether on the proper construction of the will the non-divisibility of two shares into three has the consequence that the daughter of the deceased takes all – HELD – on the proper construction of the will both parcels of shares are to go to the beneficiaries in equal proportions as tenants in common.

COSTS – First Defendant/Cross-Claimant succeeds – whether costs should follow the event – HELD – costs should follow the event

CORPORATIONS – voluntary administration – deed of company arrangement – where share transfer to certain creditors a condition of DOCA – requirement for leave under Corporations Act 2001 (Cth) s 444GA – where shares in company have no residual value – where deed fund will satisfy claims of creditors – leave granted

CORPORATIONS – directors and officers – where corporate group included ten proprietary companies – where repeated failure to comply with financial reporting obligations under Corporations Act 2001 (Cth) Part 2M.3 – application for relief under Corporations Act s 1322(4) – whether contraventions the result of inadvertence – whether companies acted honestly and no substantial injustice caused to any person – Corporations Act s 1322(6) – relief granted

SUCCESSION – Family provision – Claim by minor child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – The Defendants are the parents of the deceased and the executors to whom Probate was granted – Obligation or responsibility of a parent to a child – Relevance of "bare paternity" – Maintenance provision made in the deceased’s Will for the Plaintiff – Other significant provision received by the Plaintiff as a result of deceased’s membership of a superannuation fund and as a member of the Australian Defence Force – Whether provision made in the Will of the deceased is adequate and proper COSTS – Indemnity costs – Offer of compromise –Where defendant obtains an order or judgment on the claim no less favourable than the terms of the offer – Where offer of compromise complies with UCPR – Whether Court should otherwise order – Whether Plaintiff’s tutor should be held personally liable to pay costs

NEGLIGENCE — motor racing accident — where defendant administers licensing scheme and issued licence for motocross track — whether track was unsafe to be licensed or otherwise non-compliant with applicable by-laws — whether defendant improperly delegated its statutory functions — vicarious liability NEGLIGENCE — causation NEGLIGENCE — dangerous recreational activity — materialisation of an obvious risk NEGLIGENCE — application of the Civil Liability Act 2002 (NSW) — whether any exceptions in s 3B apply NEGLIGENCE — identification of risk of harm — reasonable precautions

CIVIL PROCEDURE – where defendant not legally represented – referral to pro bono legal assistance CRIME – proceeds of crime – application for forfeiture of property