Cases and authorities

PRACTICE and PROCEDURE – CROSS-VESTING – principles discussed – factual analysis and determination of “interests of justice” where possibility of multiplicity of proceedings.

CONTRACT – GUARANTEE – claim of unconscionable conduct by lender Bank – allegation of misconduct associated with failure to analyse sufficiently the income of business and borrowers – rejected on facts – guarantee enforced

CONTEMPT – conduct said to be calculated to obstruct or interfere with the due administration of justice – application by defendants to dismiss summarily – principles discussed – allegation and proceedings “hopeless” – proceedings dismissed PRACTICE and PROCEDURE – summary dismissal – contempt – principles discussed – exception to interfere in proceedings for contempt by summary dismissal – exception warranted – proceedings “hopeless” and commenced irregularly

CRIMINAL LAW – sentence – murder – supply large commercial quantity of methylamphetamine – proceeds of crime offence on Form 1 – guilty pleas at arraignment – handgun used to shoot deceased several times – offence neither spontaneous nor caused by explosion of emotion - obvious intention to kill – body of the deceased never found – no subjective material tendered by offender – no evidence of remorse – prior offence of possessing unauthorised firearm – partial accumulation and concurrence between the two sentences – sentences imposed

CIVIL PROCEDURE — costs — general rule that costs follow the event — ordinary to award costs to successful party — exception where issues are dominant and can be separated — adjust cost order based on time dedicated to unsuccessful issue

SUCCESSION — Family provision — Intestate estate - Claim by estranged adult son for provision from deceased’s estate

CRIMINAL LAW – trial - conspiracy to import a commercial quantity of a border controlled drug – question of whether trial should continue with a jury of less than 12 – discharge of juror – circumstances of juror’s discharge not such as to affect the balance or impartiality of jurors – s 53C(1)(b) Jury Act – no substantial miscarriage of justice – impartiality of the balance of jurors – interests of justice that matter proceed

CRIMINAL LAW – discharge of juror – conspiracy to import a commercial quantity of a border controlled drug – conduct of a juror observed by Court Officer – reasonable apprehension of bias of a juror – inquiries by juror concerning the accused’s transport to court proceedings – inquiries by juror concerning whether the juror could make contact with the accused at the conclusion of the trial – juror’s behaviour in jury smoking area – s 55D(a) Jury Act - examination of juror pursuant to s 55D(a) – s 68C Jury Act – juror’s behaviour during questioning by the Court – impartiality of a juror – optimal position that a jury of 12 will hear and determine criminal charges – s 53B(b) Jury Act – s 53B(d) Jury Act – ability of juror to perform his functions

CRIME - appeals - appeal against conviction – sexual offences – whether complainant consented – where trial judge did not give good character direction – where no direction sought – whether failure to seek direction was inadvertent or a tactical forensic decision – whether miscarriage of justice

COSTS – departure from the usual rule – offers of compromise made by defendant not accepted by plaintiff – defendant obtains judgment no less favourable than the terms of the offer – defendant prima facie entitled to indemnity costs – whether court should order otherwise – whether offer involved a genuine element of compromise – Uniform Civil Procedure Rules 2005 (NSW), r 42.15A

INSURANCE — Liability insurance — Public liability — leave to continue proceedings against insurer CIVIL PROCEDURE — Pleadings — Striking out

CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By person against whom an interlocutory order is made with leave on a question of law alone CRIME – stay of proceedings – alleged inadequacy of pre-trial disclosure by police prosecutor – temporary stay granted CRIME – duty of disclosure – general principles – application to summary proceedings

CORPORATIONS – winding up – where group companies in liquidation – long-standing liquidations over 30 years – where proposal that some companies be placed into voluntary administration and execute deed of company arrangement – where deeds will provide more cost efficient and timely finalisation of liquidations – whether liquidators should be granted leave to appoint themselves as administrators – Corporations Act 2001 (Cth) s 436B(2), s 448C(1) – whether ‘Truncated administration orders’ should be made – Corporations Act s 447A – whether directions should be given under Insolvency Practice Schedule (Corporations) s 90-15

LAND LAW – strata title – by-laws – construction – special by-law conferring right upon lot owner to use part of common property for parking – whether right conferred in substitution for right of lot owner to park in existing parking lot – use of extrinsic circumstances as an aid to construction – cautionary approach – special by-law construed so that right conferred is not in substitution for owner’s right to park in existing lot LAND LAW – strata title – obligations of owners and occupiers – whether parking by lot owner in parking lot causes a nuisance to other occupiers of lots – inconvenience also caused by presence of gardens on common property – parking on lot held not to amount to a nuisance – not an unreasonable interference with the rights of other owners or occupiers of lots – Strata Schemes Management Act 2015 (NSW), s 153(1)(a)

CORPORATIONS – directors and officers – appointment of director – failure to obtain written consent to appointment – whether absence of written consent invalidated appointment – effect of Corporations Act 2001 (Cth), s 201D EVIDENCE – admissions – civil proceedings – whether representation of one director about conduct of other director validly admitted – whether reasonably open to magistrate to find the representation was within authority or in furtherance of a common purpose – Evidence Act 1995 (NSW), s 87 EVIDENCE – presumptions – official documents and records – register maintained by the Australian Securities and Investments Commission – presumed prima facie evidentiary value of information in register – whether displaced by other evidence in proceedings – Corporations Act 2001 (Cth), s 1274B EVIDENCE – relevance – inferences – whether magistrate erred at law in drawing adverse inference from a party’s failure to call significant witnesses – application of Jones v Dunkel – whether any procedural unfairness in drawing inference

SUCCESSION – probate and administration – informal document – dispensing with requirements for execution of a will pursuant to Succession Act 2006 (NSW), s 8 – intention that document form a will – where no findings as to how intention formed – where primary judge found it more likely that deceased had not seen document propounded as will – where evidence did not permit a finding as to what might have caused deceased to believe she had executed a will – where evidence did not permit a finding that deceased intended that any particular document would operate as her will

Writ of possession – stay – no question of principle

EQUITY – equitable interest in property – family arrangement – transferee pays off mortgage on property – equity in property exceeds amount owing – transferor permitted to remain in property – licence agreement not signed – relationship breakdown – Baumgartner v Baumgartner equity recognised – equitable compensation granted EQUITY – general principles and maxims – they who seek equity must do equity – false claim of Commonwealth rental assistance – repayment of monies, interest and penalties as a condition of relief

CORPORATIONS — Voluntary administration — General matters — Unsuccessful challenge to validity of administrators’ appointment — Entitlement of administrators to costs order where they maintained role of essential neutrality COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers

Burial rights – contest between brother of the deceased and wife of the deceased as to burial –deceased professed both Muslim and Catholic faiths – where plaintiff and relatives profess Muslim faith and defendant wife professes Catholic faith – inappropriate for Court to determine the matter by reference to respective strengths of the commitment of the deceased to each faith – primary rule is that right to determine burial goes to sole executrix – no reason to depart from it.

CONSUMER LAW – Trade Practices Act 1974 (Cth) – ss 51(1), 82(1) – misleading and deceptive conduct – defendant structural engineer issued a certificate as to structural soundness of a proposed building which certificate was misleading or deceptive or likely to mislead or deceive – plaintiffs claim damages said to have been caused by this conduct because, after the project was delayed to remedy faulty construction undertaken by the builder in reliance on the certificate, a bank, which had lent them money, appointed receivers and sold their land – necessity for plaintiffs to prove, on the balance of probabilities, that the conduct complained of caused them loss – necessity for the plaintiff to prove that the conduct complained of was a material part of the bank’s motivation – plaintiffs fail to bring evidence of the bank’s motivation – plaintiffs failed to establish that the conduct complained of played any, or any sufficient, role in causing the bank to act – HELD: proceedings dismissed.

DEEDS – whether valid and binding deeds of loan created – whether execution of finance application forms intended to operate as execution of deeds of loan – insufficient evidence to conclude the requisite intention – inter partes deed enforceable in the absence of execution by the lender – no attempt to execute deed is not defective execution CONTRACTS – Formation – acceptance of offer implied by subsequent conduct LIMITATION OF ACTIONS – Recovery of outstanding loan amounts – whether actions under loan agreements are statute barred – whether lender required to demand repayment or give notice of claims upon default in the payment of instalments – loans repayable on demand upon default – claims statute barred

ADMINISTRATIVE LAW – judicial review – appeal from decision of the New South Wales Civil and Administrative Tribunal confirming refusal to grant a Working with Children Check clearance – whether Tribunal erred in law by failing to take into account mandatory consideration in s 30(1)(j) of the Child Protection (Working with Children) Act – by taking into account as an irrelevant consideration that FACS had “substantiated allegations of sexual abuse” – by making factual findings without an adequate evidentiary foundation children

TAXES AND DUTIES — whether transactions by which plaintiff obtained right to operate two McDonald’s restaurants were dutiable transactions — whether transactions effected transfers of goodwill — transactions properly understood as limited licences — no transfer of goodwill and transactions not dutiable

APPEAL – Local Court Act s 39 – Defendant carried out plumbing and electrical works on plaintiffs’ property under oral contract – Defendant successful in Local Court claim in quantum meruit – Whether there was no evidence of the fair and reasonable cost of the works – Where the builder’s invoices were the only evidence of the cost of the works – Appeal dismissed

APPEAL – application for stay – doubts about financial position of both appellant and respondent – stay ordered subject to payment of judgment sum into court within 14 days

CIVIL PROCEDURE – Court of Appeal – Costs orders – Costs orders for proceedings in the exercise of protective jurisdiction – Whether the appellant’s costs should be paid on the ordinary basis or the indemnity basis.

CRIME – appeals – appeal against aggregate sentence – manslaughter – use firearm near public place – where sentencing judge found objective seriousness of manslaughter offence “very grave” – whether sentencing judge erred in fact finding on excessive self-defence CRIME – appeals – appeal against sentence – jury verdict of not guilty of murder but guilty of manslaughter – utilitarian discount – where early offered plea of guilty of manslaughter on grounds of excessive self-defence rejected by prosecutor – where applicant's defence case at trial inconsistent with sentencing judge’s findings as to circumstances of the offending – whether House v The King error in assessment of 10% discount – applicant re-sentenced – 20 % discount allowed for early guilty plea

INSPECTION OF PROPERTY – where plaintiff alleges she slipped on floor of shopping centre – whether plaintiff entitled to inspect premises where she fell and was injured – whether issue of the condition of the floor and whether it was slippery are sufficiently raised on the pleadings as to entitle the plaintiff to the inspection order that she seeks

COSTS – where plaintiff sought leave to amend statement of claim – whether plaintiff liable for costs of first defendant – where plaintiff sought to join insurers allegedly responsible for the acts and omissions of second defendant in liquidation – where application later withdrawn – whether plaintiff liable for costs incurred by insurers attempting in their own interest to foreclose the application and persuade plaintiff that they were not liable and should not be joined – where costs generated by insurers choice rather than the actions of the plaintiff – order reserving costs of insurers not disturbed

FAMILY LAW – Children – Adoption – Whether adoption clearly preferable – whether adoption is in child’s best interests – whether the consent of the birth parent/s ought to be dispensed with – contact – adoption plans – change of name

FAMILY LAW – Children – Adoption – Whether adoption clearly preferable – whether adoption is in child’s best interests – whether the consent of the birth parent/s ought to be dispensed with – contact – adoption plans – change of name

WORKERS COMPENSATION – s 151Z Workers Compensation Act 1987- recovery action – whether occupier liable to indemnify employer for workers compensation payments as tortfeasor who, if sued by the worker for negligence, would have been liable to pay damages to the worker TORTS — negligence — Civil Liability Act 2002 –foreseeability of risk – whether occupier had actual knowledge of a risk when risk was earlier reported to person whose employment was taken over by occupier – knowledge of the employee imputed to the occupier TORTS — negligence — Civil Liability Act 2002 –whether obviousness of the risk ought to have led to conclusion risk was insignificant – risk not obvious – risk not insignificant TORTS — negligence — whether employer breached duty of care owed to worker – employer not negligent TORTS — negligence — contributory negligence – whether contributorily negligent in knocking a locking bar when descending a ladder that falls and injures the worker – no contributory negligence as mere accidental inadvertence

BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – whether right to suspend work validly exercised – whether unpaid interest on late payment of “scheduled amount” forms part of the scheduled amount – the definition of “scheduled amount” does not include interest payable under s 11 on the unpaid amount of a progress payment unless that amount is included in a “scheduled amount” CONTRACT – Breach of Contract – whether ‘show cause notice’ was validly issued in circumstances where the power to issue the notice was conferred on the principal’s representative – where principal was involved in the principal’s representative’s decision to issue the notice – notice validly issued as principal’s representative gave adequate and proper consideration to issuing the notice and it would be inconsistent with the principal’s right to see that its representative acts properly if it could not be involved in the decision CONTRACT – Breach of Contract – whether ‘take out notice’ was validly issued where its validity was contingent on the principal’s representative being satisfied that the default that was the subject of the ‘show cause notice’ had not been remedied or the contractor had otherwise failed to show cause – not shown that the principal’s representative failed to give adequate and proper consideration to the issues – not shown that the principal’s representative did not possess the relevant satisfaction EVIDENCE — Privileges — Without prejudice privilege – whether information obtained during the course of ‘without prejudice’ meetings can be used for purposes other than settlement – ‘without prejudice’ privilege is not based upon an implied agreement that if the negotiations do not result in an agreement for settlement of the dispute, the parties will make no use of what has been disclosed by the other party in the negotiations

COSTS - no question of principle

CRIMINAL LAW – Evidence – Re-examination – Whether proposed re-examination arose out of cross-examination

EVIDENCE — Course of evidence — Re-opening case

COSTS — Costs assessment — Determination

CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court – Proceedings commenced in District Court at Albury – all parties based in Mildura – claimant’s solicitors based in Albury – interests of justice favour transfer from District Court to Supreme Court and transfer to Supreme Court of Victoria

CRIMINAL PROCEDURE – application to set aside two subpoenas – whether subpoenas objected to have a legitimate forensic purpose –subpoenas set aside

CRIMINAL PROCEDURE - Trial - Judge alone – no case to answer submission - whether the evidence taken at its highest could satisfy a fact finding tribunal beyond reasonable doubt – circumstantial case - application dismissed

CRIMINAL LAW – trial - conspiracy to import a commercial quantity of a border controlled drug – admissibility of photographs of the accused – question of potential unfair prejudice to the accused – s 137 Evidence Act – discretion to exclude – whether photograph of the accused “makes him look like a drug dealer” – whether admissions accused is prepared to make obviate necessity for tender – whether white area of hair suggests nickname “white stripe” – accused prepared to agree to agreed statement of facts – relevance of photographs in providing independent evidence.

CRIMINAL LAW – appeal against sentence – parity – appeal on basis that sentencing judge did not have regard to the principle of parity – parity in respect of co-offenders – applicant with greater role in the course of offending than co-offenders – criminal enterprise – sentence for cultivation of commercial quantity of cannabis plants – supply (deemed) of a commercial quantity of cannabis

CIVIL PROCEDURE – Representation – Unrepresented litigants – Assistance of court – request for referral to solicitor or barrister on the Pro Bono scheme panel – not likely to obtain legal assistance outside the scheme – interests of administration of justice – Uniform Civil Procedure Rules 2005 (NSW) r 7.36

ADMINISTRATIVE LAW — Remedies — where original decision was made by a claims assessor of the State Insurance Regulatory Authority of NSW — where remitter to a different claims assessor is sought – relevant factors

EQUITY — Trusts and trustees — Resulting trusts — No issue of principle — Dispute as to ownership of assets and related obligations at conclusion of longstanding but undocumented quasi-partnership — Plaintiffs attempt to undo longstanding accounting treatment of the relationship between the parties

EQUITY — Undue influence — Actual undue influence EQUITY — Undue influence — Absence of independent advice

CORPORATIONS — Statutory demand — Application to set aside on the basis of a genuine dispute – dispute whether debt due and payable – meaning of “due and payable” under section 459E of the Corporations Act 2001 (Cth) – interaction between section 459E, 459H(1)(a) and 459J of the Corporations Act 2001 (Cth) — right to rescind under section 9AE of the Sale of Land Act 1962 (Vic) – right to return of deposit moneys under section 9AF of the Sale of Land Act 1962 (Vic) – whether deposit moneys include moneys paid before entry into contract –whether oral agreement gave rise to “equities” precluding exercise of statutory right to rescind

ESTOPPEL — Promissory Estoppel — Whether clear and unambiguous representation that defendant would enter into lease of premises on proposed terms and/or representation as to an appropriate occupation date and that defendant would sign lease for premises — Claim for equitable compensation EQUITY — Assignment — Assignability of cause of action in promissory estoppel — Whether assignee had a ‘genuine commercial interest”

CIVIL PROCEDURE — Hearings — Procedural fairness – submissions raised by defendant for the first time after close of the plaintiff’s case – where the matters subject of the submissions were in issue in the course of the hearing – no denial of procedural fairness BUILDING AND CONSTRUCTION — Contract — Novation – whether novation of contract in circumstances where invoices issued to a related company at the request of a contracting party – no evidence of novation