Cases and authorities

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, approve a proposed scheme of arrangement – where chief executive officer and managing director who stands to benefit from implementation of scheme has recommended scheme – whether chief executive officer and managing director can make such a recommendation – whether requirements to order scheme meeting are satisfied.

CRIME – Part 7 of Crimes (Appeal and Review) Act 2001 – 3 counts of sexual offences and pervert course of justice – one count a directed verdict – 5 acquittals – various appeals already resolved – previous application to Governor dismissed – no special facts or circumstances prohibiting refusing to deal with the matter under s 79(3) of the Act – discretion exercised to refuse to deal with the application further – otherwise application for enquiry dismissed.

HIGH RISK OFFENDER – final hearing – application for continuing detention order and/or extended supervision order – history of disturbing pattern of violence and violent sexual offending against unaccompanied young women – s 21A victim statements provided – court satisfied to a high degree of probability that defendant poses an unacceptable risk of committing another serious offence if not kept in detention – continuing detention order made – community safety paramount concern

CIVIL PROCEDURE – Probate and administration of estates – Contentious proceedings – deceased died in 2012 – deceased left a will appointing her three sons as executors and trustees of her estate – one son passed away in 2017 – acrimonious relationship between the two remaining sons – probate and administration of the deceased’s estate has not been granted – contest between two sons as to who should be appointed as executor of mother’s estate – Court appoints independent solicitor to administer the estate.

PRACTICE AND PROCEDURE — Discovery — Preliminary discovery — Representative proceedings — Where a litigation funder requires further information to determine whether to fund representative proceedings

High Risk Offender-interim supervision order-no question of principle

COSTS – application for indemnity costs following rejection of Calderbank offer – where offer accompanied by written submissions in the appeal –where applicant’s prospects of success very good – whether respondent acted unreasonably in refusing offer

LAND LAW – compulsory acquisition of land – compensation – where applicants entered into contracts for sale of relevant land – where land compulsorily acquired before settlement of those contracts – where applicants objected to amount of compensation for market value – where applicants’ primary compensation claim for unpaid purchase price as loss attributable to disturbance under Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 59(1)(f) – where questions directed to whether applicants entitled to any compensation for that loss determined separately – whether there was “actual use of land” by applicants

CORPORATIONS — Winding up — Directions to liquidator — Group of companies carrying on business as one entity — Where insolvent trading claim compromised with insurer — Directions sought as to distribution of settlement between plaintiff companies — Whether distribution in equal amounts or proportional to size of companies’ respective claims — Liquidator prefers proportional method — More likely to result in equitable distribution between all creditors — Directions made as sought — Direction for apportionment of costs in the same proportions between companies.

CIVIL PROCEDURE – settlement approval – no point of principle – orders made

CIVIL PROCEDURE – Trial issues – grant of leave – issue of primary fact as to circumstances – non-compliance with UCPR 31.23 – export report fails to acknowledge rules of UCPR – whether report should be excluded – Court retains discretion to exclude report – substantial compliance with the Code; impartiality, independence, assistance to Court. CIVIL PROCEDURE – Non-compliance UCPR 31.28 – serving report in accordance with code, practice note or law – no later than 28 days before date of hearing – three expert reports – held take evidence of the liability experts individually CIVIL PROCEDURE – Grant of leave – whether plaintiff should be granted leave to rely upon amended statement – whether exceptional circumstances have been made out – primary records available to both parties since 2016 – consideration of “fairness” – allow amended statement but refuse leave to run case based upon expert’s opinion and usage of “interference”

CIVIL PROCEDURE – subpoenas – whether legal professional privilege applies to documents – whether it is appropriate to determine the claim in the absence of the party asserting the privilege

LAND LAW – contract for sale of land – claim for loss of bargain damages – vendor and purchasers entered into contract for sale of lot in proposed subdivision – term of contract required plan of subdivision to be lodged for registration as soon as practicable and with due expedition – contract gave either party right to rescind if plan of subdivision not registered within 12 months – vendor purported to rescind contract on basis that registration of plan of subdivision did not occur within 12 months – purchasers thereupon commenced proceedings for specific performance of contract – vendor subsequently rescinded contract pursuant to a different contractual provision – purchasers accept the validity of that rescission – purchasers abandon claim for specific performance and instead seek loss of bargain damages – whether loss of bargain damages recoverable – contract not terminated for wrongful conduct of vendor – no claim for loss of bargain damages had accrued by the time of the rescission – loss of bargain damages not recoverable

SUMMARY DISMISSAL – abuse of process – no arguable cause of action – repetition and re-litigation – oppression and vexation to defendants INSOLVENCY – ‘personal wrong to the bankrupt’ within the meaning of Sections 60(4)(a) and 116(2)(g)(i) of Bankruptcy Act

PRACTICE AND PROCEDURE – Application for temporary stay of proceedings

APPEAL – appeal from Local Court – s 40(2)(c) of the Local Court Act 2007 (NSW) – amended grounds of appeal – whether her Honour erred in failing to apply the principles applicable to offers to settle and offers made pursuant to the principles set out in Calderbank v Calderbank – whether her Honour erred in failing to apply the Uniform Civil Procedure Rules 2005 and the principles applicable to offers of compromise – principles applicable to Calderbank offers – offer of compromise – compliance with r 20.26 – presumptive entitlement to indemnity costs in r 42.15A – relevant principles as to appeal against costs orders – rules in relation to offers of compromise operate differently to the principles which apply to Calderbank offers – questions of leave – appeal upheld – orders and directions

COSTS – application that the prosecutor pay the defendant’s costs – prosecution under s 8(2) and s 10(2) of the Occupational Health and Safety Act 2000 – summary proceedings determined by this Court under Pt 5 of Ch 4 Criminal Procedure Act 1986 (NSW) – prosecutor failed to prove the defendant committed the charged contraventions of s 8(2) (other than particulars 9 and 11) and s 10(2) – defendant make out statutory defence for particulars 9 and 11 – principles from Latoudis v Casey – whether available for OHS proceedings where dismissed via statutory defence – where prosecution dismissed – significance of dismissal by successful statutory defence – whether principles in Latoudis v Casey distinguishable – charges and conduct of parties in considering exercise of costs discretion – costs to defendant

DEFAMATION – defamatory matter – where defendant admitted publication of defamatory material – where all imputations alleged were found to have been conveyed –justification not pleaded – no defence of absolute privilege – where defence of qualified privilege pleaded – whether conduct of defendant in publishing material was reasonable in circumstances – Defamation Act s 30 subs (1)(c) – where no attempt to verify information before publication – behaviour unreasonable in circumstances – defence of qualified privilege fails – where defendant likely to repost defamatory material – non-publication order made – permanent injunction granted – defendant to pay costs on indemnity basis

DEFAMATION – Costs – where an offer to make amends has been accepted by the plaintiff – where the offer includes payment of the plaintiff’s expenses reasonably incurred –whether the Court has the power to make a costs order – where neither party acted unreasonably in the course of litigation

COSTS – appeal – appeal determined without a determination on the merits – further prosecution of the appeal had become futile – both parties acted reasonably – no order as to costs

LAND LAW – mortgages – construction – time stipulations – where first plaintiff granted to the defendant a registered mortgage in respect of a property in North Avoca – mortgage granted pursuant to special condition under a contract for sale of property in Central Mangrove entered into between the second plaintiff as purchaser and defendant as vendor – where Central Mangrove property the subject of a Clean-Up Notice issued by the Environmental Protection Agency – where mortgage secures obligation to repay $250,000 loan made by the defendant in the nature of vendor finance – where clause in mortgage requires the defendant to forgive the loan if notice stating that the Clean-Up Notice has been complied with is not received by mortgagor within 12 months of the date of the mortgage – where notice not received by mortgagor within 12 months – whether the 12 month time period is essential – time period held to be essential – the $250,000 loan held to be forgiven EQUITY – equitable remedies – relief against penalties – mortgage given in connection with a contract for the sale of land – whether clause in mortgage requiring the defendant to forgive a $250,000 loan in the event that a notice is not received within 12 months of the date of the mortgage attracts the penalty doctrine – whether clause requiring the forgiveness of the loan out of all proportion to the legitimate commercial interests of the parties to the transaction – clause part of arrangements made for the setting of the consideration to be paid for the transfer of the land – clause not characterised as penal EQUITY – equitable remedies – relief against forfeiture – whether clause in mortgage requiring the defendant to forgive a $250,000 loan in the event that a notice is not received within 12 months of the date of the mortgage is intended to secure the defendant’s obligations to procure the notice – clause operates in its terms without any exercise by mortgagor of a contractual right – relief against forfeiture refused in circumstances where the clause was part of a freely made agreement the terms of which were negotiated with the assistance of solicitors

CORPORATIONS – statutory derivative action – application to bring proceedings on behalf of company – where applicant is one of company’s two statutory directors – where applicant undertakes to indemnify company in respect of costs of conducting the proceedings – where defendants do not oppose grant of leave – whether the proposed proceedings are in the company’s best interests – whether leave should be granted to the applicant to commence proceedings in company’s name.

CRIMINAL LAW – Evidence – Where the Crown seeks to tender photocopies of an original document – Whether the Crown has to prove the authenticity of the documents – On the balance of probabilities, whether the photocopies are authentic replicas of the original

CIVIL PROCEDURE – transfer of proceedings from Local Court to Supreme Court – subject matter of proceedings commenced in Local Court linked to completed proceedings in Supreme Court – whether appropriate to transfer proceedings – proceedings inextricably linked – transfer order made COSTS – costs follow the event – whether costs should be ordered in favour of the plaintiff – costs order made

COSTS – party/party – exceptions to the general rule that costs follow the event – whether issue on which successful party was unsuccessful were clearly dominant or separable COSTS – party/party – offer of compromise – term that there be no order as to costs – whether such a term includes an amount for costs or is expressed to be inclusive of costs for the purposes of UCPR r 20.26(2)(c)

STATUTORY CONSTRUCTION - meaning of the phrases ‘offered for sale by public auction’ and ‘passed in’

CORPORATIONS — Winding up — Application to adjourn winding up application where administrator appointed — Relevant factors in s 440A(2) of the Corporations Act — Where litigation against petitioning creditor — Whether suit has prospects of success — Suit not identical to application to set aside statutory demand such that it could not succeed — Possible recoverable preference payments in liquidation — Alleged insolvent trading — Significant deed contribution by proponent with security over real property — Significant related party claims to be postponed under proposed DOCA — In the interests of creditors to allow meeting to be held to allow vote on proposed DOCA — Application granted.

BAIL – whether unacceptable risk - whether Crown’s bail concerns can be mitigated by appropriate conditions

RECEIVERS – Court appointed receivers – remuneration – application for approval by the Court of receivers’ remuneration – receivers appointed in July 2018 to undertake specific tasks in relation to a modest property development – the terms of the receivers’ appointment included a maximum Court ordered upper limit of $30,000 on the receiver’s fees, plus GST plus disbursements – receivers undertake work on the receivership tasks between July 2018 and August 2019 – receivers seek the Court’s approval for fees plus GST and disbursements of $197,000 – whether the receivers’ fees and disbursements should be approved – whether the cap of $30,000 on receiver’s expenses applies – whether the cap can be amended now – whether both parties to the proceedings acquiesced in the receivers undertaking more work than was originally envisaged, when the cap was imposed in July 2018 – what is the appropriate quantum of remuneration that should now be approved for the receivers.

COSTS – security for costs – where security order already made – where increase ordered three years after original order – where personal undertaking made to pay costs

CIVIL PROCEDURE – whether corporation can appear by director – whether special circumstances shown – whether Court should dispense with UCPR r 7.1

LEASES AND TENANCIES – Social Housing Tenancy Agreement – Agreement terminated by order of NCAT pursuant to s 91 of Residential Tenancies Act – whether termination would occasion undue hardship to tenant – meaning of undue hardship in context of Residential Tenancies Act – discretion to terminate notwithstanding undue hardship – whether NCAT had regard to hardship in exercise of its discretion – adequacy of reasons for exercising discretion ADMINISTRATIVE LAW – requirement for NCAT to give reasons – adequacy of reasons for making of a discretionary decision to terminate a social housing tenancy agreement – whether NCAT had regard to hardship to the tenant of termination – whether reasons for decision adequately disclosed how hardship was taken into account TRIBUNALS – New South Wales Civil and Administrative Tribunal – required to give reasons – adequacy of reasons – reference to “all of the circumstances of the case”

CRIME — Appeals — Appeal against sentence — Manifest excess – Special circumstance and totality – Where applicant’s sentence was more severe than co-offenders – Where there exist substantial differences in the respective cases of the co-offenders

CIVIL PROCEDURE – adjournment – applicant on notice of motion seeking adjournment due to ill health of instructing solicitor – no evidence provided as to nature of illness and its effect on preparation of matter – whether adjournment should be granted – no utility in granting adjournment – application for adjournment refused

Evidence, Business Records

EVIDENCE – witness evidence – unfavourable witness – leave granted

CIVIL PROCEDURE – Transfer of proceedings to higher Court – whether plaintiff likely to be awarded more than the jurisdictional limit $750,000 – whether test of real chance made out – held evidence does not suggest jurisdictional limit exceeded.

ADMINISTRATIVE LAW – application for judicial review of decision of Medical Review Panel – decision favourable to claimant with regard to assessment of whole person impairment – whether Panel failed adequately to engage with question of whether a particular injury was caused by a motor vehicle accident – whether the Panel failed to engage with a particular clause of a guideline calling for certain inconsistencies to be brought to the attention of a claimant – summons dismissed

CRIMINAL LAW – sentence – murder – plea of guilty – discussion of objective and subjective features – intent to kill – use of weapon – offender aged 18 at the time of murder – Sudanese refugee – offender in prodromal stage of schizophrenia at the time of offending – offender diagnosed in custody with treatment-resistant schizophrenia – strong subjective case – sentence imposed

HIGH RISK OFFENDERS – application for extended supervision order – preliminary hearing – whether Court to be satisfied to a high degree of probability that offender posed unacceptable risk of committing another serious offence on assumption that allegations in supporting documentation proved – examination order and interim supervision order made – no point of principle

ADMINISTRATIVE LAW – judicial review – assessment of permanent impairment under Motor Accidents Compensation Act 1999 (NSW) – whether Review Panel failed to apply the guidelines – whether Review Panel failed to consider relevant material – whether Review Panel had proper regard to subsequent injuries – whether Review Panel failed to provide adequate reasons

CONTEMPT – plaintiff’s motion for contempt – where first defendant temporarily in breach of timetable for filing evidence – where timetable varied and reasons for delinquency explained – whether conduct amounts to an intentional disregard for the orders of the court

APPEALS – Supreme Court Appeals – appeals as of right – Roads & Maritime Services – appeal against order made by Local Court dismissing matter – appeal limited to matters involving questions of law alone – whether certain non-expert evidence is sufficient entitling an acquittal – held only expert evidence is sufficient to raise doubt.

CRIME — appeals — appeal against sentence — application for leave to appeal — firearms offences — assault — cultivate prohibited plant — whether sentencing discretion miscarried — assessment of prospects of rehabilitation — assessment of prospects of reoffending — weight given to applicant’s psychological treatment in custody — whether sentence manifestly excessive

CRIMINAL LAW – Appeal against conviction – whether a substantial miscarriage of justice – three discharge applications refused – fourth discharge application not ruled upon – other irregularities - meaning of “irregularities” – cumulative effect of irregularities – whether fair trial compromised by irregularities – curative effect of jury directions – standard of review on a conviction appeal – not House v The King

CRIMINAL LAW – appeal against sentence – primary offence of cultivating not less than commercial quantity of cannabis by enhanced indoor means contrary to s.23(2)(a) Drug Misuse and Trafficking Act 1985 – two Form 1 offences of cultivation – one Form 1 offence of dealing with proceeds of crime – objective seriousness of primary offence assessed separately before taking into account Form 1 offences – no error demonstrated in assessing objective seriousness – general and specific deterrence important aspects on sentence for cultivation offences – other sentencing decisions assist but do not establish correct range – selection of cases do not include multiple cultivation offences – sentence not unreasonable or plainly unjust – appeal dismissed

CRIME – CRIMINAL PROCEDURE – Application for Directed Verdict after close of Crown Case – whether evidence of supply by Accused – meaning of supply in context of offence – means “make available to” – discussion of principles – Crown case taken at highest allows a jury, properly instructed, an inference that accused supplied HICO, knowing the sanctioned goods were going to Iran