Cases and authorities

CORPORATIONS – external administration – application to approve the remuneration of special purpose receivers for work already performed –whether the amount of remuneration claimed is reasonable and whether it is to be calculated on a time-charged basis – application to discharge one of two special purpose receivers.

SENTENCE – Evidence – rules of evidence not to apply – expert report not in usual form admitted on limited relevancy basis

PROFESSIONS AND TRADES - lawyers - practising certificates - Bar Council refuses application for practising certificate - Appeal - Whether suppression and non-publication orders should be continued - Legal Profession Uniform Law (NSW), s 100

Stay of writ of possession – no question of principle

ADMINISTRATIVE LAW – plaintiff subject to investigation by stewards of Racing NSW because the horses of one of his clients were found to contain cobalt – alleged unreasonableness in finding lack of co-operation by plaintiff who gave no evidence of what inquiries he had made following his undertaking to the stewards to make inquiries as to the identity of his supplier ADMINISTRATIVE LAW – whether denial of procedural fairness for Racing Appeals Tribunal to take into account that the plaintiff did not give or adduce evidence of what inquiries he had made to ascertain details of his supplier

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 – where independent expert concludes that scheme is reasonable and in best interests of shareholders but is unfair – whether requirements to order scheme meeting are satisfied.

ADMINISTRATIVE LAW – whether open to Appeal Panel to refuse to re-examine the plaintiff in circumstances where Approved Medical Assessor noted disparities in history given and effort on examination – whether Appeal Panel obliged to receive additional reports served by plaintiff after decision under review ADMINISTRATIVE LAW – alleged denial of procedural fairness to reject request for re-examination and additional reports sought to be relied on before Appeal Panel

CRIMINAL LAW – Application for extension of time – Notice of application for leave to appeal against sentence – Obtaining a financial advantage by deception – Quantum over $1.4 million – Self-represented applicant – Newborn grandchild with difficult medical conditions – Recently discovered psychological conditions of son – Whether sentence manifestly excessive – Grounds doomed to failure – Necessary extension refused

Immigration – Refugees – Application for protection visa – Where Pt 7AA of Migration Act 1958 (Cth) requires Immigration Assessment Authority ("IAA") to review certain decisions to refuse applications for protection visas – Where s 473CB(1)(a), (b) and (d) requires Secretary of Department to give certain material to IAA to conduct review – Where s 473CB(1)(c) requires Secretary to give to IAA any other material Secretary considers relevant to review – Where s 473DB requires IAA to review decision by considering material given by Secretary – Where Secretary gave material to IAA pursuant to s 473CB(1)(c) – Where material irrelevant to task of IAA – Where material prejudicial to applicant – Where applicant unaware of material – Whether jurisdictional error by Secretary – Whether jurisdictional error invalidated decision of IAA – Whether apprehended bias. Administrative law – Judicial review – Procedural fairness – Where s 473FA requires IAA to operate free of bias – Whether apprehended bias. Words and phrases – "apprehended bias", "bias", "fair-minded lay observer", "fast track reviewable decision", "Immigration Assessment Authority", "impartial", "irrelevant", "irrelevant and prejudicial material", "jurisdictional error", "material", "materiality", "prejudicial", "prejudicial but inadmissible", "procedural fairness", "professional decision maker", "reasonable apprehension of bias", "relevant", "relevant to the review", "required to consider", "review material", "rule against bias", "subconscious bias". Constitution, s 75(v). Migration Act 1958 (Cth), Pt 7

Criminal practice – Trial – Directions to jury – Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 ("Liberato") – Where appellant convicted by jury of rape – Where appellant did not give sworn evidence at trial – Where appellant made exculpatory statements in recorded police interview – Where record of interview admitted into evidence – Where appellant did not seek Liberato direction at trial – Where trial judge did not give Liberato direction – Whether Liberato direction required where accused does not give sworn evidence – Whether Liberato direction required where record of interview containing exculpatory statements admitted into evidence. Words and phrases – "beyond reasonable doubt", "choice between witnesses", "conflicting version of events", "criminal standard", "evidence on oath", "exculpatory answers", "interview with the police", "jury directions", "Liberato direction", "onus and standard of proof", "out-of-court statement", "recorded interview", "summing-up as a whole", "sworn evidence", "who do you believe", "word-on-word".

Bankruptcy – Bankrupt estate – Where "the property of the bankrupt" vested in trustee in bankruptcy pursuant to s 58 of Bankruptcy Act 1966 (Cth) – Where bankrupt held estate in land under Torrens system on trust – Whether property held by bankrupt on trust capable of vesting in trustee in bankruptcy – Whether bankrupt had a valid beneficial interest – Whether estate vested in trustee in bankruptcy in equity. Real property – Torrens system – Caveats – Where trustee in bankruptcy lodged caveat claiming "Legal Interest pursuant to the Bankruptcy Act 1966" and refused or failed to withdraw caveat after request – Whether caveator liable to pay compensation under s 74P(1) of Real Property Act 1900 (NSW) for lodging and maintaining caveat "without reasonable cause" – Whether existence of caveatable interest or honest belief on reasonable grounds in such interest sufficient for "reasonable cause" – Whether claimant established that caveator had neither caveatable interest in property nor honest belief on reasonable grounds in having such interest – Whether possibility of trust being set aside under s 120 or s 121 of Bankruptcy Act conferred caveatable interest – Whether caveat adequately described equitable estate in fee simple – Whether deficiency in statement of interest demonstrated absence of "reasonable cause". Trusts – Trustees – Right of indemnity – Where trustee incurred significant expenses in his capacity as trustee ordinarily entitling him to be indemnified out of trust property – Where trustee asserted "mutually beneficial arrangement" with "the trust" – Whether asserted arrangement prejudiced trustee's right of indemnity wholly or in part – Whether value of benefits to trustee under asserted arrangement equal to or exceeded total of trust expenses incurred. Words and phrases – "beneficial interest", "caveatable interest", "caveat against dealings", "circuity of action", "contingent beneficial interest", "determination of non-dispositive issues in appeals", "honest belief on reasonable grounds", "judicial economy", "most remote possibility of interest", "property held by the bankrupt in trust for another person", "right of indemnity", "subject to the equities", "the property divisible among the bankrupt's creditors", "the property of the bankrupt", "without reasonable cause". Bankruptcy Act 1966 (Cth), ss 5(1), 58, 116. Real Property Act 1900 (NSW), ss 74F(1), 74K, 74P(1), 90.

CIVIL PROCEDURE — Protective jurisdiction — Administration of estates — NSW Trustee and Guardian – where no application for appointment of a financial manager – held that order that NSW Trustee and Guardian be appointed as the plaintiff’s tutor be revoked.

REAL PROPERTY – possession of land – application for stay of eviction – application not granted

CONTRACTS – misleading conduct under statute – misleading or deceptive conduct – representations – inducement to enter into contract for purchase of business – false information provided about customer base and profitability of business – whether third defendant a mere conduit of first and second defendants – whether third defendant acting solely on behalf of corporation or personally liable – alternative claim of accessorial liability – whether contract affirmed – contract declared void

CRIMINAL LAW – procedure – search warrant – whether decision to make application for a search warrant invalid – whether decision to issue a search warrant invalid – whether insufficient connection between items named in warrant and searchable offences listed in warrant – whether police should be restrained from accessing items seized ADMINISTRATIVE LAW – prerogative writs and orders

ADMINISTRATIVE LAW – judicial review – assessment of damages under Motor Accidents Compensation Act 1999 (NSW) – adequacy of reasons – reasons inadequate

COSTS – application for costs following successful appeal under Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) – whether power to order costs of the proceedings in this Court and in the Court below COSTS – whether power to make lump sum costs order in criminal proceedings – whether items allowable – use of legal databases in breach of university policy – commencement of proceedings in District Court for improper purpose of obtaining transcript at reduced rate STATUTORY INTERPRETATION – whether an appeal under Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) is civil or criminal proceedings – relevant statutory definitions – criminal proceedings – court fees not authorised by delegated legislation – not payable

PRACTICE AND PROCEDURE – Application for trial by judge alone

CRIMINAL LAW – parole – decision of State Parole Authority to refuse parole – whether decision made on basis of false, misleading or irrelevant information – application dismissed

COSTS — Interlocutory proceedings — Directions for plaintiff to file expert evidence — Plaintiff’s expert identifies documents needed to complete report — Subpoenas issued to defendants’ related parties — Motions to amend and strike out pleadings then part-heard — Defendants’ motion to set aside subpoenas — Subpoenaed party joined as defendant — General discovery ordered in place of compliance with subpoenas — Long course of less than full production — Plaintiff’s motion to enforce discovery — Orders made without final determination of motions — Motions dismissed by consent after further production — Plaintiff substantially successful on both motions — Defendants to pay costs of motions and related hearings.

CORPORATIONS — Directors’ duties — Circumstances in which duties owed directly to shareholders — Where proposed strategic alliance between company and larger company — Where sole director and minority shareholder was responsible for day-to-day management — No facts giving rise to fiduciary duty directly to shareholders — No breach in any case. EQUITY — Equitable remedies — Rule in Barnes v Addy — Liability alleged under both first and second limbs of Barnes v Addy — No evidence that company property retained by third party — No evidence of dishonest and fraudulent design — No evidence of requisite knowledge — No loss — Claim dismissed. CONTRACT — Formation — Whether contract formed in terms alleged by plaintiffs — Agreement to pay fixed sum as part of broader arrangement — Arrangement never concluded — Fixed sum not referable to any particular services — No concluded contract on terms alleged — No issue of principle — Money claim not made out. CONTRACT — Formation — Estoppel — Whether defendants estopped from denying existence of obligation to pay — Elements of equitable estoppel not made out — Estoppel pleaded in aid of flawed claim in contract — No factors warranting equitable relief — No issue of principle.

CIVIL PROCEDURE – stay of proceedings – application for permanent stay of proceedings – historical sexual abuse – alleged perpetrator died in 1957 – no material available in relation to allegations – whether defendant can meet the claims made against it and receive a fair trial – permanent stay granted

COSTS — Party/Party — Costs orders in interlocutory proceedings — Costs in the cause – where the applicants were successful however no costs order should be made in light of the conduct of the proceedings to date and the fact that there had been numerous iterations of the notice of motion – where the conduct of the respondents has also been unsatisfactory – held that the appropriate course is to order that costs of the motion be costs in the cause other than the costs thrown away by the successive iterations of the notice of motion by the applicants.

LOCAL COURT APPEAL - summary judgment - where applicant’s defence and cross-claim struck out - alleged breach of agreement to obtain finance for purchase of property - cross-claim for misleading and deceptive conduct - whether error of law - whether undue emphasis placed on applicant’s delay - whether error of law - procedural fairness - requirements for summary dismissal

HIGH RISK OFFENDER – Child sex offender – Application for an extended supervision order (ESO) – No controversy about imposition of an ESO – ESO imposed – discussion of disputed conditions

CIVIL PROCEDURE — Subpoenas — Application to set aside by motion of recipient — Whether legitimate forensic purpose demonstrated — Whether subpoena oppressively imprecise — Motion dismissed

RELIEF HEARING – contest concerning consequential orders after a principal judgment and a second judgment – in the principal judgment the Court declined an application to revoke a grant of probate and dismissed a claim in related proceedings for provision out of the estate of a deceased person under Succession Act 2006, Chapter 3 – various monies ordered to be repaid to the deceased’s estate that had been advanced to the first defendant in the debt/trust proceedings, Mr Okan Yesilhat, before the deceased’s death – two issues are for determination in these reasons: (1) whether another defendant, Mr Gokan Yesilhat, has any liability to repay the estate for loan monies advanced to him; (2) whether another defendant, Australia’s Best Tyres Pty Ltd, has any liability to repay monies to the estate.

COSTS- costs of applicant on the motion – motion to remove court appointed tutor - amicus curiae- intervener- applicant to pay costs on ordinary basis

ADOPTION – contested adoption – Adoption Act 2000, ss 52, 67, 90 and 91 – application to dispense with the consent of the birth mother and birth father and for an adoption order – birth mother and birth father do not consent to adoption order – child has been with adoptive parents from the age of four weeks – child is now six years old – whether an adoption order is in the best interests of the child – consideration of the alternatives to an adoption order.

CIVIL PROCEDURE – appeal – judgment of District Court – amount in issue – leave to appeal required – expiry of period within which to seek leave to appeal – extension of time – non-appearance by appellant – notice under Uniform Civil Procedure Rules 2005 (NSW), r 13.6 – appeal incompetent – summary dismissal

NEGLIGENCE – damages – residual earning capacity – plaintiff injured in course of employment – plaintiff completely incapacitated for work from date of injury until conclusion of hearing – whether plaintiff has residual earning capacity of eight hours per week – vicissitudes - whether case warranted greater than usual discount for vicissitudes of 15 per cent EVIDENCE – opinion evidence – expert opinion of clinical psychologist concerning residual earning capacity of plaintiff – whether clinical psychologist was sufficiently qualified to give expert evidence

CIVIL PROCEDURE – Payment of judgment debt – section 107 of the Civil Procedure Act 2005 (NSW) and part 37 of the Uniform Civil Procedure Rules 2005 (NSW) – application to pay judgment debt by instalments – application to set aside decision of deputy registrar refusing application to pay debt by instalments – hearing de novo – whether to permit payment by instalments

MENTAL HEALTH – forensic patient – application for an extension order – whether court could be satisfied to the requisite standard that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient – whether any such risk could not be adequately managed by other less restrictive means – discretionary considerations –extension order made for a period of 12 months

CIVIL PROCEDURE – Representative proceedings – Settlement or discontinuance – Court approval – held that the proposed settlement was fair and reasonable in the interests of all group members considered as a whole – held that it was appropriate to allocate a differential amount to the lead plaintiff, who has taken on the stress and burden of acting as the representative plaintiff to date.

MENTAL HEALTH — forensic patient — extension of status as forensic patient — whether defendant posed unacceptable risk of causing serious harm to others if ceased being a forensic patient — whether risk could be adequately managed by less restrictive means — not satisfied to a high degree of probability of either element in Mental Health (Forensic Provisions) Act 1990 (NSW) sch 1 cl 2(1) — extension order declined

CIVIL LAW – loans secured by mortgage – loans not repaid – cross-claim – negotiations to take over business to which loan money advanced – whether binding agreement reached – where division of shares not settled – whether essential term of agreement – where borrower ill and hospitalised – unconscionability – whether lender acted unconscionably in proceeding in the absence of the borrower – where business failing – losing money hand over fist – where borrower failed to respond to urgent message – where other communications demonstrate capacity to communicate – evidence inconsistent unconvincing and implausible – double satisfaction – Adam Smith School of Economics CIVIL LAW – procedure – repeated amendments to cross-claim – refusal by different Judge to allow amendment to third further amended cross-claim – attempt to make further amendments part way through submissions – earnest and spirited debate – dilatory conduct of litigation

SUCCESSION — contested probate — testamentary capacity — application of test in Banks v Goodfellow — where will apparent rational on its face — where evidence of hallucinations or delusions — whether delusions or hallucinations affected the provisions of the will — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect

CRIME – application for leave to appeal against sentence – drug importation offences – whether applicant provided assistance to authorities – offender provided information including name, description, and location of recruiter to authorities in post-arrest interview – finding at sentence that information was of no real assistance to authorities – post-sentence police interview with German authorities – initial information provided by offender confirmed to be true and correct – further information provided by offender of “great value” to German prosecution of recruiter – whether evidence of post-sentencing events is admissible – principle that post-sentence events can be taken into account where significance of facts not appreciated until after sentence – applicant entitled to reduction of sentence for co-operation with authorities pursuant to s 16A(2)(h) Crimes Act 1914 (Cth)

CRIMINAL PROCEDURE – trial – jury of eleven – offences related to conspiracy to import border controlled drugs – juror’s ability to perform the functions of a juror affected – juror discharged

CRIME – EVIDENCE – Admissibility of extra curial representations of persons called to give evidence – operation of s 66(3) of Evidence Act 1995 (NSW) discussed – subsection concerned with purpose of maker of representations – representations admitted

CRIMINAL PROCEDURE – trial – jury of ten – offences related to conspiracy to import border controlled drugs – application to discharge jury – substantial miscarriage of justice considered - no risk of a substantial miscarriage of justice found – trial to continue

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – progress payment claims under section 13 of the legislation – recovery of amounts in respect of those payment claims – purported defence based on terms of construction contract – section 16(4)(b) of legislation disentitles defendant to bring defence based on terms of relevant construction contract – no defence to plaintiff’s claim – no issue of principle CIVIL PROCDEDURE – Appearances – multiple applications for adjournments – failure by defendant to appear at final hearing – ample opportunity for defendant to obtain legal representation and advice – defendant made aware of time and place of final hearing – hearing to proceed in absence of defendant

CORPORATIONS – statutory derivative action – application by plaintiff to bring proceedings on behalf of company – where plaintiff has significant shareholding – where directors did not undertake further investigations to identify value in mining assets – where proposed proceedings against current directors of company – where proceedings may impact management of ongoing business – whether it is in company’s best interests that plaintiff be granted leave – whether proposed proceedings involve a serious question to be tried – whether leave should be granted to plaintiff to commence proceedings on behalf of company.

CIVIL PROCEDURE – medical negligence proceedings – application for interim payment – application supported by medical evidence – application granted – case management orders made

CIVIL PROCEDURE – medical negligence proceedings – application for interim payment – application supported by medical evidence – application granted

CRIMINAL LAW – Sentence – Manslaughter – Causing grievous bodily harm with intent to do so – Conviction for murder the subject of successful appeal – Pleas of guilty – Reduction of culpability to manslaughter by partial defence of excessive self-defence – Planned shooting of deceased with handgun – Uninvolved bystander seriously wounded – Parity – “Ceiling principle” limiting re-sentence after successful appeal on offence involving grievous bodily harm

CORPORATIONS – Insolvency – second meeting of creditors resolves to place company into liquidation – substantial creditors’ motion for appointment of liquidator fails – former administrator as person presiding at meeting exercises casting vote against resolution – proper characterisation of resolution – whether or not resolution to appoint liquidator was a resolution to remove an external administrator within the meaning of s 75-115 of Insolvency Practice Rules – whether Court should have ordered that proposed resolution to appoint liquidators should have been taken to have been passed at meeting within meaning of s 75-43(4)(a) of the Insolvency Practice Schedule – relevant considerations. CORPORATIONS – Insolvency – company in administration – s 90-15 of the Insolvency Practice Schedule – whether a source of power to order that resolution to appoint liquidators be ordered to have been taken to have been passed at creditors’ meeting – whether general power to make orders or only engaged where failure or default on part of administrator

CRIMINAL LAW – appeal against interlocutory judgment or order – applicant sought an order below for a separate trial pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW) – whether primary judge erred in dismissing an application for a separate trial from the co-accused – whether evidence is of a kind which is not amenable to judicial directions to the jury – whether the prejudice associated with the telephone intercepts cannot be cured by a direction to the jury –principle that jurors accept and obey the directions given to them by the trial judge – no error has been demonstrated in the judgment below – leave to appeal refused

CRIME – appeal – appeal against sentence – where applicant pleaded guilty to being an accessory after the fact to aggravated break, enter and steal – where applicant sentenced to a term of 4 years and 8 months imprisonment with a non-parole period of 3 years – whether miscarriage of justice arose because of omission by applicant’s legal representatives to place evidence of applicant’s history of mental illness before the District Court – where miscarriage of justice arose because sentencing judge did not have relevant evidence before him – appeal allowed – whether matter should be remitted for sentence