Cases and authorities

COSTS – Order for payment of professional costs under Criminal Procedure Act 1986 (NSW), s 213 to be “just and reasonable” – Order for costs under Crimes (Appeal and Review) Act 2001 (NSW), s 28 to be “just” PROCEDURAL FAIRNESS – Primary judge failed to inform applicant that summary nature of the proceedings and fact that a party is not entitled to recover all of its costs would be taken into account – Whether this constitutes denial of procedural fairness JUDICIAL REVIEW – Whether exercise of discretion by primary judge to reduce costs by 30% constituted jurisdictional error – Whether any difference between “fair and reasonable” and “just and reasonable” – Whether primary judge addressed wrong question such that jurisdiction conferred by the provision was not properly exercised

CRIMINAL LAW – sentence appeal – dangerous driving causing death – whether sentence manifestly excessive – guideline judgment of Whyte – strong subjective case - elderly driver

EQUITY- trusts and trustees- rectification of trust deed EQUITY- trusts and trustees- judicial advice

EQUITY- trusts and trustees- judicial advice

CIVIL PROCEDURE - cross-vesting - transfer to other Supreme Court – medical negligence claim – both plaintiff and defendant residing in Victoria – cross-vesting order made

COSTS – party/party – percentage apportionment of costs – where plaintiff has had ultimate success in the application – where plaintiff had success on less than half of arguments advanced – where proceedings could have been conducted in a quicker and cheaper manner – determination of apportionment of costs.

CONTRACTS – formation – agreement – enforceability – uncertainty and incompleteness – where parties entered into heads of agreement at mediation – where heads of agreement provided for entry into settlement deed and transfer documents – where agreement provided for parties to have regard to taxation and structuring advice prior to entry into settlement deed and transfer documents – where dispute as to settlement deed and transfer documents – where settlement deed and transfer documents not entered into – whether heads of agreement are certain and complete and enforceable – whether other ancillary orders should be made.

JUDGEMENT – set aside judgement on basis of fraud – agreement to disadvantage a litigant

CONTRACTS – performance – discharge by performance – valid termination of cleaning services contract – express term prohibiting use of unauthorised subcontracted labour – where unauthorised subcontractors undertook 90 per cent of cleaning services – whether cleaning obligation could be performed vicariously – consideration of personal contracts – no claim for quantum meruit

HIGH RISK OFFENDER – interim supervision order – whether condition in s 10A(b) met – evidence persuasive – purpose of legislation – safety of the community and protection from serious offenders

CORPORATIONS – security interest – extension of time for registration – where facility for company created after date administrators were appointed – where security interest in company granted by company – where facility is best financing option presently available for company – whether an order fixing a later date for registration of the specified security for the purposes of s 588FL(2)(b)(iv) of the Corporations Act 2001 (Cth) should be made.

CIVIL PROCEDURE — Pleadings — Striking out —No reasonable cause of action or defence – application by defendants for proceedings to be dismissed or the plaintiff’s statement of claim to be struck out – rr 13.4 and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) – held that the statement of claim as presently pleaded does not disclose a tenable cause of action – statement of claim struck out – order made for referral of the plaintiff to pro bono assistance.

CIVIL PROCEDURE — Subpoenas — Application to set aside and a notice to produce – whether or not there has been an implied waiver of legal professional privilege in the documents sought to be produced under the subpoena and the notice to produce – notice to produce allowed in its entirety – access to subpoena documents allowed but limited

LAND LAW – possession of land – application for defendant for stay of execution of writ – late application – no basis shown for stay

BAIL – application pending judicial review – jurisdiction of the Supreme Court to grant or refuse bail – bail granted

LAND – judgment for possession – father is registered proprietor of land – seeks possession of land from son who is in occupation – father acts by another son (and the other son’s wife) as attorneys – notice to quite given – whether son is trespasser – defences to action for possession – whether defences made out – discussion of the issue of a writ for possession.

CORPORATIONS – scheme of arrangement – application for orders approving scheme of arrangement – where scheme of arrangement involves shareholders in target company transferring their shares to acquirer – where votes cast satisfy statutory majorities – whether scheme of arrangement should be approved.

LAND LAW – Mortgages – equitable mortgage – judicial sale – default of loan agreement – no issue of principle GUARANTEE AND INDEMNITY – Actions to enforce – no issue of principle

TORTS – negligence – where plaintiff was competing in a campdraft competition – where there is dispute about the defendant’s Rules required by way of ground preparation – where plaintiff’s horse fell to the ground causing the plaintiff serious injury – whether the defendant breached any duty of care owed to the plaintiff – whether the plaintiff’s injuries were due to the materialisation of an obvious risk of a dangerous recreational activity – whether the plaintiff’s injuries were the result of the materialisation of an obvious risk – whether the risk of injury was the subject of a risk warning given to the plaintiff by the defendant – effects of ss 5M and 5N of the Civil Liability Act in the context of a signed waiver – volunteers defence under s 60 of the Civil Liability Act CONTRACT – whether there was a contract between the plaintiff and the defendant – whether statutory guarantees should be imported into the alleged contract – the effect of s 275 of the Australian Consumer Law and s 139A of the Competition and Consumer Act in circumstances where the defendant has established a defence under ss 5L, 5H and 5M of the Civil Liability Act

CORPORATIONS – scheme of arrangement – application for orders approving scheme of arrangement – where scheme of arrangement involves shareholders in target company transferring their shares to acquirer – where votes cast satisfy statutory majorities – whether scheme of arrangement should be approved.

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

SUCCESSION – Whether the Court should make an order under the Succession Act 2006 (NSW) for a statutory will to be made on behalf of the fourth respondent – Whether a will in accordance with the Summary Reasons is, or is reasonably likely to be, a will that would have been made by the fourth respondent if she had testamentary capacity – Whether it is appropriate for an order authorising such a will to be made – Whether the standard of review is met for the Court to re-exercise the jurisdiction conferred by s 18 of the Succession Act 2006 (NSW)

CRIME – appeal against sentence – aggregate sentence imposed for serious domestic violence offences – no error in assessment of objective seriousness of counts 1 and 4 – no error in less than favourable findings for prospects of rehabilitation or risk of re-offending – whether sentence was manifestly excessive – limited utility of statistics and cases for comparison – no error in assessment of indicative sentences for individual offences – no error in degree to which the indicative sentences were partially accumulated

PRACTICE AND PROCEDURE – application for summary judgment – r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) – construction and purchase of a horse trailer – summary judgment ordered against the first defendant

APPLICATION TO RE-OPEN – defendants seek to rely upon evidence adduced in a further hearing since the 19 September judgment and with that evidence to re-open the application for the approval of receivers’ fees decided in the 19 September judgment (“the 19 September judgment”) – whether any part of the 19 September judgment can now be re-opened. RECEIVERS – Court appointed receivers – remuneration – previous application for approval by the Court of receivers’ remuneration – approvals given in the September 2019 judgment to most of the receivers claims for fees and disbursements up to 14 May 2019 – further application by receivers made for approval of receivers’ fees and disbursements incurred after 14 May 2019 – whether further fees and disbursements should be allowed, and if so, in what amount. SLIP RULE – Court’s calculation of approval of fees and disbursements under the slip rule is said to fail to bring to account a sum for legal costs which by reason of the mathematical logic of the Court’s decision should have been included in the calculation brought to account – whether the 19 September judgment should be amended under the slip rule.

CORPORATIONS — Winding up — Termination — Company wound up in insolvency — Whether solvency demonstrated — Substantial real property assets — Unverified cash flow projections — Liquidator unable to reach concluded view on books and records provided — Payments of rent unsupported by primary documents — Failure to pay trade creditors when due — Solvency not adequately supported — Application dismissed. CORPORATIONS — Winding up — Termination — Commercial morality — Relevant factors — Inadequate explanation of breaches or changes to be made — Failure of director to cooperate with liquidator of another company — History of non-payment of trade creditors — Failure to keep proper books and records — Significant and unexplained cash transactions — Not appropriate to terminate winding up — Application dismissed.

CIVIL PROCEDURE – Representative proceedings- registration – class closure – soft closure

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – offer not accepted by plaintiff – whether warrants a departure from the ordinary rule as to costs – offer did not sufficiently identify reliance on Calderbank principles - held that the plaintiff’s failure to accept the offer was not unreasonable COSTS — Party/Party — Bases of quantification — Indemnity basis – where costs thrown away by amendments to the third further amended statement of claim by the plaintiff – where serious allegations of improper purpose and bad faith abandoned on the first day of the hearing – policy consideration that serious allegations of this kind should not lightly be made – plaintiff ordered to pay costs thrown away by the amendments made in the fourth further amended statement of claim and the costs thrown away by the making and subsequent abandonment of the allegations in the third further amended statement of claim

PARTNERSHIPS AND JOINT VENTURES — Rights and duties between partners — Actions between partners — Declaration and calculation of amounts outstanding owed by each party to failed partnership — partnership accounting — Principles governing adoption of referees’ reports PARTNERSHIPS AND JOINT VENTURES — Rights and duties between partners — Actions between partners — Maintenance of charge over property to secure debt owed under prior consent orders

CRIMINAL LAW – sentencing – alleged errors in factual findings – whether denial of procedural fairness regarding assessment of utilitarian discount outside range contended by parties – manifest excess – “weight” given by sentencing judge to relevant factors

CRIMINAL LAW – sentence appeal – 14 counts of indecently assaulting a male person contrary to s 81 of the Crimes Act 1900 (NSW) (since repealed) – offending took place over a period of 11 years while applicant was a teacher – at time of sentence applicant serving a sentence of imprisonment for similar offences committed against different complainants – aggregate sentence of 8 years and 6 months with a non-parole period of 6 years – there was a single ground of appeal alleging manifest excess – sentencing principles comprehensively covered by sentencing judge – disputed issues involved matters of discretion – manifest excess not established – leave to appeal granted but appeal dismissed.

CRIME – conviction appeal – where appellant convicted of manslaughter based on joint criminal enterprise – whether verdict unreasonable – whether mere presence when crime committed and post-offence conduct were capable of amounting to proof of an agreement to commit the crime – verdict of acquittal entered

LAND LAW – Caveats – Caveatable interest – What constitutes a caveatable interest – Whether a constructive trust not yet declared by a court is a caveatable interest – Plaintiff seeking an extension of the caveat in circumstances where the only proceeding currently on foot is the plaintiff’s application for preliminary discovery. LAND LAW – Caveats – Formal requirements – Requirement to specify particulars of estate or interest claimed – Where defendants assert that the plaintiff has not sufficiently articulated the basis of the claimed interest; described in the caveat as a “beneficial interest in trust” arising from the defendants’ breach of fiduciary, contractual and other duties, rather than specifically as a “constructive trust”.

COSTS – notice of motion to vacate hearing date resolved shortly before hearing – issues raised required response by the plaintiff – whether costs should be costs in the cause – whether defendant should pay plaintiff’s costs – notice of motion dismissed – defendant to pay plaintiff’s costs of the notice of motion

CRIMINAL LAW – Evidence – Witness evidence – unavailable witnesses – where witnesses are unavailable by reason of a physical or mental incapacity – whether the Crown has demonstrated that it was not reasonably practicable to overcome any inability to give evidence

COMMERCE – Restraint of Trade – Enforcement and remedies – Injunction – question as to extent to which restraint is reasonably necessary – enforcement of express negative stipulation in employment contract – likely strength of case for entitlement to final injunction – balance of convenience – delay in bringing application – damage likely to be suffered if injunction not granted – possible hardship in event injunction is granted

COSTS — Party/Party —General rule that costs follow the event – second cross-defendant succeeded on first cross-claimant’s cross-claim but not on first cross-claim – relevant adjustment to general rule – costs referrable to relevant cross-claims where defendants commonly represented - Dimos v Willetts. LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees for sale pursuant to Property Law Act 1958 (Vic), Part IV, s 225 – property purchased but not formally transferred – “land” per s 225 encompasses equitable interests held in title – trustee appointed for sale of estate and relevant interest held – stamp duty to be paid out of proceeds of sale. CIVIL PROCEDURE — Stay of proceedings — Pending prospective appeal and removal of proceedings to High Court – no evidence of outcome of application for removal of proceedings – no evidence of prospective grounds for appeal – stay refused.

COSTS – proceedings commenced by plaintiff lessee seeking injunctive and declaratory relief in relation to lease – defendant lessor filed cross-claim seeking injunctive and declaratory relief and damages – remaining term of lease was less than ten months – where lease expired during the course of proceedings – where all claims other than damages rendered otiose – where defendant seeks to transfer the proceedings to the Local Court – whether defendant’s conduct unnecessarily prolonged proceedings which resulted in the plaintiff incurring wasted costs – not appropriate to order the defendant to pay the plaintiff’s costs – each party ordered to pay its own costs of the proceedings to date apart from costs attributable to damages claim PRACTICE AND PROCEDURE – transfer of proceedings – application by defendant to transfer proceedings to Local Court – where only remaining claim is defendant’s damages claim – where the defendant’s damages claim is less than $100,000 – proceedings transferred to Local Court

CORPORATIONS — Winding up — Statutory demand — Application to set aside on grounds of genuine dispute — Contract for consulting services — Factual dispute as to time worked — Genuine dispute made out — Dispute as to construction of termination clause — Not appropriate to determine competing constructions on a s 459G application — Whether defendant entitled to substantial “success fee” — Genuine dispute conceded shortly before hearing — Not necessary to determine s 459J contentions in the alternative — Demand set aside. CORPORATIONS — Voluntary administration — Administrators appointed after judgment reserved on company’s application to set aside statutory demand — Whether s 440D of the Corporations Act effects stay of proceedings — Not proceedings “against the company” where it is plaintiff — Application does not affect property of the company — No stay.

CORPORATIONS — Directors and officers — Authority and powers – appointment of managing director by purported resolution of sole director - articles did not provide for sole director – appointment not valid – resolution approving of director’s remuneration not valid – payment of legal fees on behalf of company not valid. CONTRACTS — Formation — Agreement – informal oral agreement for sale of Company property – parties contemplated later execution of formal documents – oral agreement not enforceable. CONTRACTS — Formation — Agreement – informal written agreements contemplated later execution of formal document but otherwise unqualified and specific in terms – immediately binding if entered with authority. CORPORATIONS — Directors and officers — Authority – Unanimous Assent – where one share held on trust by estate and transfer not registered until some time later – application of doctrine – informed consent. CORPORATIONS — Directors and officers — Authority – entry into agreements for sale of land absent proper authority – party likely unaware he lacked proper authority – party a solicitor and likely aware Company’s articles must be changed to facilitate sole directorship – validation of agreement to sell Company’s share of property under s 1322 refused. CORPORATIONS — Membership — Register — Rectification of register – rectification of share register – share held on trust – transfer from beneficiary’s estate belatedly recorded in Company’s register – transfer recorded as occurring on date omission discovered not prior date of intended transfer – evidentiary purpose of Company register – rectification granted to accord with parties’ intent to transfer all shares from beneficiary’s estate.

APPEALS – leave to appeal – respondent sought recovery of unpaid rent for area of seabed over which the applicant’s houseboat is moored – no question of principle raised – application for leave dismissed

TORTS – Whether the Club breached the duty of care it owed to the Worker as an employee of the Club – Whether reasonable care on the part of the Club required that it install concrete pads upon which to place rubbish bins. APPEALS – whether leave should be granted to raise an argument by notice of contention that was not advanced on the pleadings and was not put to witnesses at trial who could have met the argument with evidence.

CRIMINAL LAW – appeal – sentence – medical conditions – loss of employment – protective custody – grounds of appeal without merit

CRIMINAL LAW — appeals — conviction appeal — three drug offences and two drug-related offences — whether misdirection on circumstantial evidence — applicant’s knowledge drugs and money in roof cavity — whether Shepherd direction required when not a “links in a chain” case — whether jury’s verdict was unreasonable

CRIMINAL LAW – conviction appeal –13 counts alleging sexual misconduct by an uncle against his niece – jury trial – applicant found guilty of six of the charges and not guilty of seven charges – single ground of appeal asserting unreasonable verdicts – offences said to have occurred between 1991 and 2000 – complainant aged 4 when offending commenced – Crown case depended on evidence of complainant – challenge to complainant’s credit – tendency evidence tendered in Crown case – whether jury verdicts inconsistent – effect of concessions made by complainant – credibility issues essentially a jury matter – well open to jury to be satisfied beyond reasonable doubt as to guilt of the applicant. Leave to appeal granted but appeal dismissed.

APPEAL – leave requirement – Legal Profession Uniform Law – Legal Profession Uniform Law Application Act – Interpretation of Legislation Act 1984 (Vic) – disclosure obligation – construction of s 174(3) – principles for leave – application for additional evidence – Civil Procedure Act 2005 – absence of error of principle, matter of public importance, or injustice – lack of merit of disclosure and disapplication grounds – small amount claim – remedy as of right to the District Court – leave refused

CIVIL PROCEDURE – Cross-vesting – whether proceedings should be transferred from NSW District Court to NSW Supreme Court to then be transferred to WA Supreme Court – Court not persuaded it is in the interests of justice to transfer the proceedings to WA – amended summons dismissed

ADMINISTRATIVE LAW – claim under Motor Accidents Compensation Act 1999 (NSW) following motor accident – assessment by medical review panel of degree of permanent impairment – application for judicial review – whether error of law on the face of the record due to “no evidence” – whether jurisdictional error – no error of law on the face of the record or jurisdictional error made out – summons dismissed

COSTS – Bases of quantification – Ordinary basis – Indemnity basis – Whether costs incurred following amendment of plaintiff’s pleadings to incorporate conventional estoppel claim (which was unsuccessful) should be excluded

COSTS – Calderbank letter – variation to costs order