Cases and authorities

LAND LAW – possession – application for stay of execution of writ of possession – application refused

ADMINISTRATIVE LAW — jurisdictional error — judicial review of Valuer-General’s compensation determination — where comparable sales method employed — whether alleged error in applying comparable sales method amounts to jurisdictional error VALUATION — compulsory acquisition — compensation — disturbance — whether error in allowing claim for stamp duty and relocation costs where land valued based on development potential — whether jurisdictional error VALUATION — compulsory acquisition — powers of Valuer-General under the Land Acquisition (Just Terms) Compensation Act 1991 (NSW) — power to redetermine compensation determination once made

EVIDENCE – tendency evidence – criminal proceedings – admissibility – whether evidence relevant – whether evidence has significant probative value – whether the probative value substantially outweighs any prejudicial effect it may have – evidence excluded

COSTS – departure from the usual rule – public interest litigation – where plaintiffs were wholly unsuccessful in their claim against the first defendant which is a political party registered under the Electoral Act 2017 (NSW) – where plaintiffs seek orders that the first defendant pay their costs and the costs of the active defendants – where plaintiffs and other defendants members of the first defendant – where plaintiffs claim to have no vested financial or political interest in the proceedings – where proceedings involved no question of public importance – where outcome would only affect a small number of people – no reason to depart from the usual rule COSTS – pre-commencement costs of proceedings – whether Court has power to award pre-commencement costs of proceedings – where a substantial amount of legal work was undertaken well before the originating process was filed – where the dispute ripened into litigation in an extraordinarily fast fashion – good reason to make a specific order that costs be awarded from a date before the filing of the summons – Chow v Chow (No 2) (2015) 229 BPR 35,385; [2015] NSWSC 1348 applied

EQUITY — equitable remedies — injunctions — Interlocutory injunction — where first defendant a former employee of the plaintiff which is a not-for-profit company offering disability services to customers — where first defendant established the second defendant through which to conduct a business that offers disability services to customers — plaintiff alleges first defendant in breach of confidentiality clause and restraint of trade clause in former employment contract — prima facie case established — balance of convenience — consideration of the impact of an injunction on third parties — not appropriate at the present time to grant injunctive relief RESTRAINT OF TRADE — general principles governing enforcement of restraint of trade provisions — whether the alleged breach infringes the terms of the restraint — where restraint of trade clause has no temporal or geographical limitation

COSTS – departure from the usual rule – where the plaintiff formally abandoned a substantial part of her case immediately before the final hearing – where plaintiff accepted earlier offer made by the defendant that in return for the plaintiff abandoning several issues, each party would bear their own costs of the issues to be abandoned – where plaintiff successful on remaining issue at a final hearing – appropriate that the defendant pay the plaintiff’s costs of the remaining issue up to the date of accepting the defendant’s offer and the costs of the proceedings thereafter

COSTS – consequential costs orders – where a number of issues not determined in the principal judgment – whether it is appropriate for the Court to make a specified gross sum costs order – further consideration by the parties required

ADMINISTRATIVE LAW — workers compensation — worker’s thumb crushed and amputated in workplace accident — judicial review of decision of appeal panel convened under s 328 of the Work Place Injury Management and Workers Compensation Act 1998 — where appeal panel confirmed medical assessment certificate determining worker’s whole person impairment at 14% — whether constructive failure to exercise appeal panel’s jurisdiction

COSTS – departure from the usual rule – defendants unsuccessful in seeking orders to retrain plaintiff’s solicitor on the record from further acting in the proceedings and for the production of documents in Amended Notice of Motion – where basis for relief in respect of restraining the plaintiff’s solicitor was tenuous – where defendants justified for a period of time in pursuing relief in respect of the orders for production of documents – appropriate that the defendants pay one half of the plaintiff’s costs of the Amended Notice of Motion

SUCCESSION - executors and administrators - rights, powers and duties – settlement of contested probate proceedings – order whereby second plaintiff appointed administrator with obligation to pay agreed sum to defendant - failure by administrator to pay legacy – extension to pay sought – extension refused

COSTS – indemnity costs – withdrawal of proceedings – Calderbank letter

CRIMINAL PROCEDURE – break in jury deliberations between Christmas and New Year – break at request of jury – no party objected – no unfairness or appearance of unfairness – application rejected

COSTS – various motions – consent orders, except as to costs – discussion of principles and application to facts

CONSUMER LAW – Australian Consumer Law and Fair Trading Act – misleading or deceptive conduct – unconscionable conduct – sale of “movable” and “immovable” dwellings affixed to a site – sites approved for short-term occupation only – purchased after representations as to “permanent living” for retirees – analysis of provisions – factual summary – orders to be made for declarations and compensation – leave to apply for injunctions if conduct were to continue – plaintiff directed to file orders to reflect reasons

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, approve a proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of holders of ordinary and preference shares to consider and, if thought fit, approve proposed schemes of arrangement – whether requirements to order scheme meetings are satisfied.

APPEAL – SENTENCE – offender pleaded guilty to a number of sex offences committed over 10 year period against his sister between 1967 and 1977 – unlawful and carnal knowledge of a girl between 10 and 16 contrary to s.71 Crimes Act – incest offence contrary to s.78A Crimes Act – two offences of rape contrary to s.63 Crimes Act – two further offences of indecent assault taken into account on a Form 1 – offences representative of sexual offending against sister over a period of 13 years – whether sentencing Judge erred in assessment of objective seriousness of the rape offences – no error demonstrated in approach taken by sentencing Judge to assessment of objective seriousness – findings of objective seriousness open to the sentencing Judge – whether aggregate sentence imposed was manifestly excessive – where challenges directed to indicative sentences – whether degree of notional accumulation reflected sentencing practices at the time of the offences – where indicative sentences nominated were substantial but not suggestive of error – where sentencing Judge had regard to sentencing principles and practice at time of offending conduct – no error demonstrated in approach taken by sentencing Judge to historical sex offences – aggregate sentence not unreasonable or plainly unjust – appeal dismissed

APPEAL – SENTENCE – offender convicted of manslaughter following trial for murder – offender requires an extension of time – offender was party to a joint criminal enterprise – whether sentencing Judge took into consideration a factor which was inconsistent with verdict of the jury – where fair reading of sentencing remarks demonstrated no error – where change in language was a slip – claims of errors in finding aggravating factors in s.21A(3) Crimes (Sentencing Procedure) Act 1999 – whether offence was a “part of a planned or organised criminal activity” – error established – whether offence aggravating because of substantial injury, emotional harm, loss or damage – where finding made by sentencing Judge open in circumstances where family of victim were physically present at time of offence – whether sentencing Judge impermissibly double counted offender’s previous criminal history – no double counting demonstrated – whether offence aggravated because it was committed “in company” – where being in company was an integral component of the offence – error established – interests of justice warranted grant of an extension of time – later sentence imposed for offence of recklessly wounding a law enforcement officer – assault on correctional officer while offender on remand – issue of totality to be considered on resentencing for manslaughter – special circumstances – offender resentenced

EVIDENCE — privileges — self-incrimination privilege — consideration of s 89A of the Evidence Act 1995 (NSW) — where accused exercised right to silence during police questioning — where jury directed that an adverse inference from accused’s silence was open — whether s 89A applicable CRIMINAL PROCEDURE — trial — Browne v Dunn — where accused’s explanation for silence is reliance on legal advice — where explanation unchallenged — whether invitation to draw adverse inference a miscarriage of justice CRIME — appeals — appeal against conviction —application of proviso — whether substantial miscarriage of justice CRIMINAL PROCEDURE — trial — cross-examination and summing up —where Crown cross-examination and summing up undermined accused’s evidence of good character — where no remedial direction given — whether miscarriage of justice

COSTS – where interlocutory process did not proceed to hearing – where outcome could be predicted with confidence.

CRIME – SENTENCING – breach of United Nations sanctions against Iran rendered criminal by operation of Commonwealth legislation – discussion of culpability and subjective circumstances – offence was committed by Iranian citizen, domiciled in and resident of Iran at time of offence, who is now a permanent resident of Australia – effect on culpability and general deterrence – appropriateness of sentence other than full-time custody – Intensive Correction Order imposed; CRIME – SENTENCING PROCEDURE – effect of Barbaro – counsel entitled to put submissions that include opinion as to appropriate sentence, but not thereby imply “bounds” of judicial discretion

TORTS — negligence — liability — prison authority — where respondent victim of prison assault causing serious injury — where prison authority informed of threat — whether failure to segregate and arrange for transfer breach of duty of care — consideration of powers to order segregated custody under the Crimes (Administration of Sentences) Act 1999 (NSW)

CRIME — appeals — application for leave to appeal against sentence — offences of bribery of a public official, aid and abet importation of tobacco products knowing of an intent to defraud revenue and dealing in proceeds of crime greater than $100,000 — where applicant formerly employed as a Customs Officer — whether sentencing judge erred by considering fact of applicant's former employment as a Customs Officer as a matter seriously aggravating the offending — whether offending constituted an abuse of trust or authority — whether sentencing judge erroneously dismissed applicant's prior good character as a relevant mitigating factor — whether sentence was manifestly excessive — appeal allowed — resentence

CRIME – conviction appeal – whether unreasonable verdicts – sexual and violent acts committed against de facto partner – whether jury’s verdicts of not guilty on ten counts and guilty on three others are inconsistent – logical and reasonable explanations available for verdicts – appeal dismissed

CIVIL PROCEDURE – alternative dispute resolution – court referral to referee – orders made to give effect to referee’s report.

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.

CORPORATIONS - winding up – liquidators – past and future remuneration - where application opposed – where significant steps were required to be taken in respect of litigation – where limited assets remaining in company – whether remuneration should be approved.

CIVIL LAW - real property - possession - action by mortgagee - mortgage over interest of a tenant in common - mortgagee former brother-in-law of mortgagor - sale of property between husband and wife - ongoing family law proceedings - whether deed of mortgage was a sham - whether deed of mortgage complied with s 38(1) Conveyancing Act - four different copies of deed - tort of deceit - part performance - confusing series of transactions - credibility of witnesses - whether money repaid pursuant to the mortgage

CRIME – appeals – appeal against conviction – whether substantial miscarriage of justice by reason of appellant being tried jointly with co-accused – whether evidence led in joint trial inadmissible against appellant highly prejudicial

CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to two drug supply offences – further offences taken into account on sentence – applicant made nine separate supplies to undercover police operatives – seven of the supplies involved methylamphetamine and two involved inert substances – where the sentencing judge assessed the objective seriousness of the offending collectively – where the parties had made submissions on the objective seriousness of the offending collectively – sentencing judge made reference to the relevant matters in assessing the objective seriousness of the offending – no error shown – whether the sentencing judge erred in fixing the commencement date of the sentence – where the commencement date did not accord with the sentencing judge’s decision to backdate the sentence – error demonstrated – no need to engage in the resentencing exercise

CRIME – sentence – cultivation of commercial quantity of cannabis plants and supply of methylamphetamine – assessment of objective gravity – whether objective seriousness was “moderate” – prospects of rehabilitation – whether there was evidence to support offender’s “work ethic” claim

CRIME – sentence – importation of commercial quantity of border controlled drug – assessment of objective gravity – whether primary judge found that objective seriousness of offender’s offence was “right at the utmost upper end of the upper range” – whether manifest excess – appeal dismissed

CRIME – Terrorism offences – Membership of a terrorist organisation – Member of Partiya Karkerên Kurdistanê (PKK) between 2011 and 2013 – Travelled with military arm, supported in writings, wore uniform and insignia and carried arms – - Sentencing judge found to be towards the lowest order of seriousness - Sentenced to Community Correction Order. SENTENCING – Relevant factors on sentence – Objective seriousness – Terrorism – Membership of terrorist organisation – Whether appropriate to take into account the merits of the organisation – Merits of the cause is not a relevant factor - Consideration of ideology – Matter for the legislature. SENTENCING – Relevant factors on sentence – Objective seriousness – Terrorism – Membership of terrorist organisation – History and objectives of organisation relevant – Fact organisation does not advocate nor engage in indiscriminate killing of civilians relevant – Organisation and resources of organisation relevant – Commitment to international humanitarian law not relevant – Classification of conflict not relevant. SENTENCING – Relevant factors on sentence – Moral culpability – Relevant that joined organisation and maintained membership with full knowledge of objectives and method – Belief in the rightness of the cause not relevant – Reasons for joining organisation due to cruel treatment mitigates culpability. SENTENCING – Error found – Exercise of residual discretion not to interfere with sentence.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – approval of supplementary disclosure.

COSTS – costs of unsuccessful application to set aside examination summonses and associated applications.

CORPORATIONS – approval of deed of settlement under section 477(2A) – power of court to give creditors advantage over others – meaning of “over others” in s 564 of the Corporations Act – whether extends to general purpose liquidator –– consideration of risk assumed by indemnifying creditor – whether indemnifying creditor received a ‘windfall’ – importance of liquidator having funds to complete tasks – deduction for general purpose liquidator’s remaining costs of the proceedings and estimated costs to complete the winding up

CONTRACTS – Construction – Interpretation – Background – Where a clause in a contract for sale of a unit off the plan permitted the second plaintiff (Ms Li) as purchaser to rescind if the unit’s actual internal area as built was five per cent less than what had been contracted for – The contract did not expressly state the expected internal area of the unit (i.e. the comparator for purposes of the clause); Ms Li contended that the comparator was 75 m² (as contained in marketing material provided to the first plaintiff, Mr Liao) and the defendants (LNG) contended that the comparator was 71.4 m², as derived from a plan known as the Revision E plan – Held: comparator was 75 m² on the basis that it was a fact known to both parties at the time of entering into the contract (in contrast to the Revision E plan, which was not known to both parties and which the parties had never agreed to use as the basis for determining the comparator), with the consequence that Ms Li could validly rescind the contract and have her deposit returned. CONTRACTS – Principal and agent – Where Ms Li relied on Mr Liao’s knowledge as her “agent to know” in respect of 75 m² being the comparator for purposes of the rescission clause – LNG asserted that Ms Li could not rely on Mr Liao’s knowledge because the internal area was immaterial to her decision to buy the property (her having done so solely for the reason that Mr Liao, her romantic partner, had asked her to) and because Mr Liao, as her agent, did not have a duty to disclose to her his knowledge about the internal area (and nor did he disclose it) – Held: Ms Li was able to rely on Mr Liao’s knowledge as her “agent to know”. CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – Silence – Claim pursuant to s 18 of the Australian Consumer Law, pleaded in the alternative – Mr Liao contended that LNG should have disclosed to him the internal area as constructed at the time that he negotiated with LNG to arrange a new contract with Ms Li as the purchaser using his deposit, because had he known the true area at that point he would simply have rescinded his contract with LNG rather than arrange the contract with Ms Li – Held: LNG did not engage in misleading or deceptive conduct by remaining silent about the internal area as constructed, because the circumstances did not give rise to a reasonable expectation that LNG would physically measure the unit when the contract did not require them to do so, and when Mr Liao had asked LNG to rescind his contract in favour of arranging a new contract with Ms Li.

COSTS – costs of reference – where parties asked referee to indicate view as to costs – where referee provided view as to costs – orders to be made in respect of costs of reference.

Stay of execution of Writ of Possession – no question of principle

COSTS – specified gross sum costs order – where orders made by consent for the appointment of trustees for sale of property co-owned by plaintiff and defendant – defendant ordered to pay the plaintiff’s costs as agreed or assessed – where parties’ solicitors entered into negotiations concerning the plaintiff’s costs – where plaintiff’s solicitor experienced difficulties contacting the defendant’s solicitor – where delay by defendant’s solicitor contacting plaintiff’s solicitor – specified gross sum costs order made

CRIMINAL LAW – trial proceedings – application to discharge the jury – information received as to conduct of jurors – question of whether juror conduct requires the jury to be discharged

COSTS – party/party – exception to general rule that costs follow the event – where multiple distinct claims brought – where claims clearly dominant or separable

JUDGMENTS AND ORDERS – reasons – issue not dealt with in principal judgment – further submissions to be received

CIVIL PROCEDURE – application to re-open hearing – where plaintiff’s evidence was found to be inadequate in primary judgment – where plaintiff seeks to correct inadequacy by adducing further evidence after reasons delivered –evidence could have been adduced earlier – application refused COSTS – where plaintiff substantially succeeded – no evidence from either party about costs breakdown - whether usual position under Conveyancing Act 1919 (NSW), s 88K(5) should apply to alternative claim – whether unreasonable conduct by defendant – overall costs order made

CIVIL PROCEDURE – Debt recovery – Undocumented loans – Dispute arising over payment of two undocumented loans – Loan agreements made between friends – Loan agreement between the three Plaintiffs, or one or more of them, and the two Defendants, or one of them – Dispute about identity of the other parties to each of the two loan agreements – Dispute about who advanced the loan monies and about to whom the loan monies were advanced – What the terms of repayment of each loan were – Whether loans repaid – Whether there was accord and satisfaction in respect of the loan agreements JUDGMENTS AND ORDERS – Interest – Pre-judgment interest – Rate applicable

CORPORATIONS – shares – transfer – where parent company’s chief executive officer and founding director convicted of corporate crimes in China and imprisoned – where subsidiaries of company had an indirect interest in travel business conducted in China – where Chinese state owned corporation held the balance of the interest the travel business and contended subsidiaries’ interest obtained corruptly – where defendant directors caused shares to be transferred on an allegedly reversible basis so that a Chinese national appeared to control the subsidiary and could use her connections and influence in China to resolve the problem – where first defendant ultimately paid $2 million for the shares – whether shares were transferred for “nil” consideration and as a gift – whether directors subsequently caused a rights issue and special distribution to be effected to disguise these activities CORPORATIONS – directors and officers – directors duties – whether directors in breach of duties concerning rights issue and special distribution to shareholders EQUITY – fiduciary duties – whether directors duties said to be breached were fiduciary duties – whether remaining defendants knowingly involved in a breach of those fiduciary duties or knowingly received property through that breach of fiduciary duty

CORPORATIONS – winding up – application for directions to pay dividends to shareholders – where interested parties claim authority to receive payment through purported Forms 550 – whether forms are in substantial compliance with Form 550 – whether directions sought by liquidators should be given.

CHILD WELFARE — Family Law — Children in need of care and protection — Dismissal of appeal from Children’s Court in care proceedings.

SUCCESSION — Family provision — application for provision – whether plaintiff failed to make full and proper disclosure of her financial position – whether non-disclosure a “jurisdictional issue”. SUCCESSION — Family provision — application for provision from potential notional estate consisting of half share of family home – claim by adult child of retirement age – plaintiff’s dealings with her own children concerning accommodation not clear on the evidence – plaintiff estranged from deceased but cause of estrangement not clear on the evidence – plaintiff receiving legacy of $10,000 – whether proper provision– what provision ought to be made. SUCCESSION — Family provision — application for provision from notional estate – whether appropriate to designate property as notional estate – whether proposed designation would interfere with defendant’s “reasonable expectations”.

MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Power of sale — Mortgagee’s duty to exercise power of sale in good faith — Consideration of whether the duty is fiduciary in nature — Whether the mortgagor’s interests have been “sacrificed” — Whether the duty extends beyond the achievement of a fair price — Relevance of collateral purposes of the mortgagee, if any — Mortgagee not obliged to act as if mortgagor had a right of first refusal — Whether mortgagee obliged to provide payout figure to mortgagor — Reasonableness of mortgagee’s refusal to provide complex payout figure in circumstances of mortgagor’s many prior failed attempts at redemption MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Power of sale — Mortgagee’s duty to exercise power of sale in good faith — Consideration of alleged breaches of mortgagee’s duty of good faith — Where breaches alleged relate to entry into contract for sale, terms of contract for sale, performance of contract for sale, variation of contract for sale, failure to investigate proposed transaction for redemption by mortgagor, providing finance to purchaser, misrepresentation to mortgagor of terms of contract for sale — In circumstances where the mortgagor was at no time ready willing and able to redeem the mortgage — Breach of duty only found in relation to words and conduct of mortgagee which resulted in the mortgagor losing the chance to obtain $4.25 million by the payment of the higher of two purchase prices in the contract for sale MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagor — Equity of redemption — Consideration of the equity of redemption in the context of Torrens system land — Consideration of when the equity subsists, is suspended, or is extinguished — Requirements for redemption by mortgagor — Equity of redemption suspended during period in which contract for sale is on foot — Where completion of contract for sale is subject to a condition subsequent LAND LAW — Torrens title — Exceptions to indefeasibility — Fraud — Allegations of fraud of mortgagee — Concepts of statutory fraud and breach of equitable duty of good faith distinguished — Where fraud case put on materially similar factual basis as breach of good faith case — No basis for finding of fraud or relevant dishonesty except as to the words and conduct of mortgagee which resulted in the mortgagor losing the chance to obtain $4.25 million by the payment of the higher of two purchase prices in the contract for sale — In circumstances where it would not be proper for the Court to speculate and treat a ground for suspicion regarding the joint venture negotiations as a proper basis for a finding of fraud LAND LAW — Torrens title — Exceptions to indefeasibility — Fraud — Whether purchaser a party to mortgagee’s fraud — Purchaser’s participation in the failure of the mortgagee to inform the mortgagor of the chance to obtain an extra $4.25 million such that purchaser was relevantly a participant in fraud of mortgagee CONTRACTS — Misleading conduct under s 18 of the ACL and s 12DA of the ASIC Act — Misleading or deceptive conduct — Silence — Circumstances in which silence can constitute misleading or deceptive conduct — Misleading or deceptive conduct found because the mortgagee had a general duty to exercise the power of sale in good faith, which imposed a positive duty to inform the mortgagor of the extra $4.25 million — Whether purchaser has accessorial liability for involvement in such conduct CONTRACTS — Unconscionable conduct under statute — Failure of mortgagee to inform mortgagor of extra $4.25 million was unconscionable in the relevant sense, because in this respect the mortgagor was vulnerable and good conscience required disclosure — Purchaser a person involved in such conduct for reasons equivalent to finding of participation in mortgagee’s fraud LAND LAW — Torrens title — Indefeasibility of title — Indefeasibility of third defendant’s title to two registered mortgages — Indefeasibility accepted, as the relevant fraudulent conduct did not actually cause the purchaser to become the registered proprietor of the land — Where likely that other entities would have been required to have been joined as parties — Consideration of whether third defendant was a bona fide purchaser for valuable consideration — In circumstances where mortgages held on trust for another party MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Power of sale — Burden of proof — Whether burden of proof in relation to the duty of good faith shifts onto the mortgagee exercising the power of sale in circumstances where the mortgagee has an interest in selling to the purchaser — Where the issues in the case before the Court changed substantially after the time at which the defendants were in a practical position to change their forensic strategy ESTOPPEL — Issue and Anshun estoppel — Where no real curial contest and no definition of issues in the first proceedings — Rejection of submission that it was unreasonable for the plaintiff not to have introduced claims in first proceedings because, although the basis for the claims was unknown, it may have been discovered had the plaintiff called upon a notice to produce — Sufficient to decide that the plaintiff is not estopped from pursuing the claims upon which it has succeeded CIVIL PROCEDURE — Pleadings — Fraud — Specific and particular allegations — Requirement for fraud to be pleaded and particularised — Reject plaintiff’s fraud, collusion and breach claims to the extent that such claims were not pleaded, or were otherwise introduced too late during the hearing MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Appointment of a receiver — Whether knowledge of agent imputed to principal — In circumstances where receivers were not under any duty to inform mortgagor about the terms of the contract for sale — Where defence held not to be available on the pleadings in any case EQUITY — Equitable remedies — Equitable interests in property — Nature of equitable interests — Consideration of appropriate remedy in relation to $4.25 million, including whether the breach or fraud should give rise to a proprietary right EQUITY — Defences — Laches and acquiescence — Consideration of laches defence, but held inappropriate at this stage in the circumstances to exhaustively examine