Cases and authorities

CORPORATIONS — Examinations — By deed administrator — Orders for production — Application to set aside orders for production issued to non-examinees — Whether deed administrator has power to issue examination summonses absent express provision in deed — Where investigation of central element of DOCA — Whether material non-disclosure in application to Registrar — Whether scope of orders too broad — Application dismissed.

EVIDENCE – Expert evidence – Report not complying with requirements in r 31.23 Uniform Civil Procedure Rules 2005 (NSW) - Whether the Court should otherwise order the report be admitted pursuant to rule 31.23(3) of the Uniform Civil Procedure Rules 2005 (NSW) – Report not adopted by authors by signature or subsequent evidence – Report expressly identified as preliminary and “intended for the sole use of the client” – Report not admitted in evidence

CONSUMER LAW – misleading and deceptive conduct – plaintiff unwittingly entered into contract with a wound-up corporation associated with defendant – monies paid over to accounts associated with defendant pursuant to contract – matter heard ex parte – misleading and deceptive conduct clearly established – damages awarded

CORPORATIONS – application to set aside a creditor’s statutory demand – where plaintiff claims goods not delivered as provided under contract – where contract provided for delivery of goods upon full payment – where full payment not made – whether there is a genuine dispute – whether an offsetting claim is established. CORPORATIONS – application to set aside a creditor’s statutory demand – where statutory demand served by multiple creditors – where creditors made payment direction – where debt arose through a contract entered into by all parties – whether there is a defect in the statutory demand for the purposes of s 459J(1)(a) of the Corporations Act 2001 (Cth).

PROCEDURAL FAIRNESS – Vexatious Proceedings Act 2008 (NSW) – where persons the subject of orders made under the Act not heard and not given an opportunity to be heard before orders made – non-compliance with s 8(3) of Vexatious Proceedings Act conceded – whether Court of Appeal should itself entertain application for orders under Vexatious Proceedings Act – not appropriate to do so in the circumstances

CRIME – Drug offences – Commonwealth offences – Import/Export border-controlled prohibited plant or drug – Import commercial quantity of methamphetamine – Two co-offenders CRIME – Appeals – Appeal against sentence – Whether error in assessment of objective seriousness – Comparison of seriousness of applicant’s offending and that of two co-offenders CRIME – Appeals – Appeal against sentence – Co-offenders – Disparity between sentences – Whether gives rise to a justifiable sense of grievance

CORPORATIONS – application to set aside a creditor’s statutory demand – separate question – identification of date of service of statutory demand – where chief financial officer received statutory demand day after the delivery date recorded in tracking receipt – whether application to set aside statutory demand was filed and served within time. COSTS – application for costs on an indemnity basis – whether indemnity costs should be ordered.

CORPORATIONS – practice and procedure – security for costs – where one plaintiff company has modest assets – where another plaintiff company has no assets – where plaintiffs claim that defendants caused their impecuniosity – whether plaintiffs should provide security for costs.

TRUSTS AND TRUSTEES – judicial advice – Re Benjamin application for directions as to the distribution of the estate – whether four-person residuary bequest a class gift – where four persons named in bequest have no identifying characteristic – will created prior to operation of Succession Act 2006 (NSW)– whether Crown entitled to two shares falling into intestacy – sufficiency of administrator’s investigations.

CIVIL PROCEDURE – Orders seeking Declaration enforcing judgment for possession – nonappearance of moving party – notice of motion dismissed.

COSTS – interlocutory application resolved without a determination on the merits – where plaintiffs filed a Notice of Motion seeking summary judgment against defendants – where hearing of application adjourned – where parties agreed that Notice of Motion should be dismissed following leave being granted for the filing of an Amended Defence and Amended Cross-Claim – whether either party acted unreasonably in prosecuting or defending summary judgment motion – whether specific cost order should be made for defendants’ non-compliance with Court order – Order made that each party pay its own costs

CORPORATIONS — Winding up — Statutory demand — Application to set aside — “Some other reason” —Affidavit in support pre-dates demand — Wildtown Holdings Pty Ltd v Rural Traders Co Ltd (2002) 172 FLR 35; [2002] WASCA 196 and subsequent cases applied — Whether residual discretion — Demand set aside. COSTS — Where “some other reason” raised a week before hearing — No order for costs of the proceedings.

CONTRACTS — Construction — Interpretation – defendant grows poultry for the plaintiff – dispute arises – defendant claims damages for plaintiff’s wrongful termination of a contract to supply poultry growing – wrongful termination established in previous proceedings – defendant issues Notice of Dispute invoking an arbitration clause in the contract with the plaintiff – plaintiff contests defendant’s entitlement to refer the dispute to arbitration – whether the defendant’s claim for damages for breach of contract is a “dispute” within the arbitration clause of the contract, because the dispute does not concern “any monetary amount payable and/or owed by either party” to the other under the agreement – whether, having commenced and conducted the earlier proceedings through to final judgment, the defendant has waived any entitlement to arbitrate the dispute and is now estopped from referring it to arbitration.

CIVIL PROCEDURE – application for leave to appeal from decision granting leave to amend defence – insurance dispute – claim in respect of property damaged by fire – belated application by insurer to plead arson – no reference in primary judgment to part 6 of Civil Procedure Act – whether primary judge erred in failing to have regard to presumptive prejudice – whether primary judge erred in his approach to the defendant’s explanation for the delay in bringing the application

SUPERANNUATION – accident and sickness insurance – benefits for disablement – where benefits insured under group life policy – benefit for “total and permanent disability” – where insurer declined claim twice – where the insurer’s second decision took into account its first decision – whether insurer took into account irrelevant consideration – whether insurer in breach of its contractual duty – whether insurer acted reasonably and fairly in its consideration of the claim

ADMINISTRATIVE LAW – compulsory acquisition of property for the purpose of the construction of a tollway – validity of proposed acquisition notices issued – statutory authority of RMS to acquire land under s 177 of the Roads Act 1993 (NSW) STATUTORY INTERPRETATION – Roads Act 1993 (NSW), s 177 – meaning of “the purposes of this Act” – whether “the purposes of this Act” are confined to the objects described in s 3 of the Act

CRIMINAL LAW – release application – show cause requirement – bail concerns mitigated by conditions

CIVIL PROCEDURE – case management orders made

CIVIL PROCEDURE – replacement of tutor – appointment of barrister as tutor in his personal capacity

ESTOPPEL — Proprietary estoppel — equitable compensation – where defendant required finance to fund his share of jointly acquired property and represented to mother that financier required both names on loan documentation – defendant changed locks and home subsequently sold by forced sale – appropriate time to determine measure of relief – expectation disappointed when locks changed depriving mother opportunity to continue live as co-owner – where no evidence adduced of value of property at that time – equitable compensation awarded in sum of half eventual net proceeds.

CRIMINAL LAW – fitness to stand trial – Presser test – accused charged with murder and intentionally damaging property by fire – where parties agree the accused is unfit to be tried – active symptoms of severe mental illness – schizophrenia – schizoaffective disorder – thought disorder – treatment resistant – bizarre delusions – Christina Aguilera –significantly impaired capacity to participate in proceedings – unable to make a defence or answer to the charge – accused unfit to stand trial

PROCEDURAL FAIRNESS – failure to comply with regulations – fairness to plaintiff

CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious violence offence – serious sex offences – application for extended supervision order – whether the defendant poses an unacceptable risk of committing another serious offence – consideration of factors in s 9 – extended supervision order made for 5 years – conditions imposed – directions

CRIMINAL PROCEDURE – application for leave to appeal against sentence – additional offences taken into account – Crimes Act 1914 (Cth), s 16BA – procedural failure – failure to ask statutory inquiries – procedure to be undertaken by court in which person is convicted – remittal to District Court for sentence

CRIMINAL LAW – appeal against sentence – applicant convicted of dishonestly obtaining a financial advantage by deception – whether judge improperly took into account as an aggravating factor that offences were committed for financial gain – whether an email from judge to the Registrar after sentence acknowledging error should be taken into account – whether sentence manifestly excessive – exercise of discretion to resentence

CRIME – APPEALS – appeal against sentence – application for leave to appeal – attempting to import a commercial quantity of a border controlled drug, contrary to the Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.1(1)) – self-represented applicant – proposed grounds devoid of merit – no assertion of Xiao error in grounds – consideration of Xiao error – Xiao error established – sentencing judge provided 25% discount for facilitation of justice – whether applicant to be resentenced – applicant resentenced afresh – 25% discount for utilitarian value of plea applied

CRIME – Appeals – Appeal against sentence – Denial of procedural fairness – Whether sentencing judge erred in omitting to adjust the non-parole period to reflect a finding of special circumstances – Re-sentence CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in failing to make a finding in relation to the objective seriousness of the offence CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in not indicating a non-parole period for the offence of supplying a large commercial quantity of prohibited drug

CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors – appointment of a tutor – Pt 7 of the Uniform Civil Procedure Rules 2005 (NSW) – discussion of the function of a tutor – whether the current tutor or proposed alternative tutor respectively has an interest adverse to the incapacitated person

WINDING UP – just and equitable – deadlock – where owners of shares in a company title apartment block are and have been in a state of warfare for years – agreement to convert to a strata scheme not implemented – building in need of repair – building contract not executed; HELD: winding up appropriate on the just and equitable basis – winding up order stayed for a short time to give the warring factions an opportunity to reach accommodation

ENVIRONMENT AND PLANNING — Building approval – whether the building approval had lapsed – “substantial physical commencement” test in s 104 of the Local Government Act 1993 (NSW) – whether there has been some positive unequivocal step indicating that construction of the hospital has been commenced and that some substantial part of the works has been physically commenced CONTRACTS — Construction — Principles – construction of commercial contracts – whether a clause of a Construction Deed permitted the inclusion of “new” activities and the extension of dates in a revised project timetable for activities said to have been already completed CONTRACTS — Construction — Contractual obligation of utmost good faith – whether that obligation operated as a constraint on an “absolute and unfettered” discretion to extend dates in project timetable — Implied terms – whether implied contractual obligation to act reasonably in exercise of discretion to extend dates in project timetable —Implied “Mackay v Dick” obligation to co-operate in the performance of the contract and/or not to deny a party the benefit of the contract — whether promulgation of the new project timetable and/or issue of default and termination notices derogated from any such obligations LAND LAW — Conveyancing — Service of notices – whether default notices were invalid or liable to be set aside – whether the default notices issued under leases complied with requirements of s 129 of the Conveyancing Act 1919 (NSW) – whether there was sufficient particularity and a reasonable time allowed for alleged breaches to be remedied – whether termination notices validly issued CONTRACTS — Remedies — Damages – whether inquiry as to damages should be ordered – whether causation of more than nominal damage established

HIGH RISK OFFENDER – Where defendant had history of violent offending – Where Extended Supervision Order was sought for a period of 3 years – Where the defendant had been at large in the community for a significant period – Where the defendant had a significant support network available to him including both lay and professional assistance – Where the defendant was also subject to a Community Treatment Order – Whether the Court could be satisfied to a high degree of probability that there was an unacceptable risk of the defendant committing another serious offence if not kept under supervision pursuant to an ESO – Where both parties accepted that there was a risk – Where the Court could not be satisfied that the risk was an unacceptable one – Proceedings dismissed

CRIMINAL LAW – Evidence – Witness evidence – Hearsay – Expert evidence – whether the witness is an expert – whether it is hearsay when it is based on the witness’s own knowledge and observations

CIVIL PROCEDURE – change of trustee – funds paid into Court to be paid to New South Wales Trustee and Guardian to hold on behalf of the plaintiff COSTS – each party to bear its own costs

CRIMINAL LAW – conspiracy to import a commercial quantity of a border controlled drug – dealing with the proceeds of crime – application for a directed verdict with respect to one charge – question of sufficiency of proof – absence of direct evidence – circumstantial case – whether it is open to the jury to infer that cash in accused’s possession is the proceeds of crime

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 director with an interest in performance rights has recommended scheme – whether director can make such a recommendation – whether requirements to order scheme meeting are satisfied.

PRACTICE AND PROCEDURE - Law Reform (Vicarious Liability) Act 1983 (NSW) s 9C - Initial determination as to the vicarious liability of the Crown - Whether an initial determination under s 9C requires the determination of a separate question under UCPR 28.2 TORT - Vicarious liability — Intentional torts - Assault and battery - Police tort claim - Law Reform (Vicarious Liability) Act 1983 (NSW) s 8 - Vicarious liability of the Crown - Where a police prosecutor is alleged to have committed assault and battery against a trainee prosecutor

CRIMINAL LAW – sentence – manslaughter – plea of guilty – offender relied upon partial defence of excessive self-defence – discussion of objective and subjective features – deceased and offender both armed – offender shot first – intention to inflict grievous bodily harm – lack of remorse – dependence on ice – absence of criminality before dependence developed

CONTRACT – defendant’s obligation to consent to development application prepared by plaintiff qualified by right to refuse consent if development application is not based on “Jago Concept Plans”. ESTOPPEL – representations made by defendant to plaintiff after development application relied upon different architectural plans – whether defendant waived right of refusal and is estopped from relying upon it – appropriate remedy.

CIVIL PROCEDURE – Implied undertakings – application for leave to use in other proceedings certain documents obtained in the execution of search orders – whether the Harman undertaking applies – whether, as a matter of discretion and because of special circumstances, there should be a release from the undertaking CIVIL PROCEDURE — Interim preservation — Search orders – regime for return/destruction of documents seized

CRIMINAL LAW – appeal on question of law –plaintiffs convicted of affray after violent melee – whether plaintiffs’ conduct was carried out in self-defence – relevance of plaintiffs’ intoxication on the assessment of reasonableness in the circumstances as perceived by plaintiffs –objective test – no error established

ADMINISTRATIVE LAW – error of law on the face of the record – assessment of damages under s 94(4) Motor Accidents Compensation Act 1999 (NSW) – where buffer awarded for economic loss but evidence-based calculation available – failure to give reasons for adopting buffer approach – order setting aside assessment – matter remitted for redetermination by a different assessor

PRACTICE AND PROCEDURE – Security for costs – Uniform Civil Procedure Rules 2005 (NSW) r 50.8 – Where the plaintiff is impecunious – Application for leave to file a notice of contention

CIVIL PROCEDURE – application for stay of writ of possession, pending hearing of proceedings instituted in the Court of Appeal - whether cross-claim dismissed by McCallum J has any bearing on the question of whether there should be a stay of the writ of possession LEAVE TO APPEAL – application for leave to file a notice of appeal out of time – whether there is any evidence that the respondent failed to produce material documents that would have caused the applicant to not have entered into the in-principle agreement – whether extension of time to appeal is likely to be granted by the Court of Appeal

TORTS – negligence – negligent battery – plaintiff’s thumb injured by police officer closing door while plaintiff held in cell – negligent battery – no intention to cause injury – application of Civil Liability Act 2002 (NSW) – onus of proof – whether police officer should have taken precautions – whether damages should be reduced due to plaintiff’s intoxication – quantum of damages

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 the draft will reflects the fourth respondent’s wishes as to the disposition of her estate.

CRIMINAL LAW – leave to appeal an interlocutory decision of District Court refusing permanent stay – trial for sexual offences allegedly committed over several decades ago – whether primary Judge erred in exercise of discretion – whether primary Judge focused unduly on public interest in conviction – whether primary Judge had regard to an irrelevant matter – whether primary Judge failed to have proper regard to directions to reduce forensic disadvantage to Applicant – open to primary Judge to refuse application – no House v The King error demonstrated – leave to appeal refused

CIVIL PROCEDURE – Summary disposal – Where the applicants sought, by notice of motion, to dismiss, strike out or permanently stay the plaintiff’s claim on the basis that the plaintiff was contractually bound to adhere to a dispute resolution regime under which disputes between the parties are to be referred to expert determination rather than litigated in Court – Whether the Court should exercise its discretion to stay the proceedings. EXPERT DETERMINATION – Construction of the expert determination agreement by which the expert was appointed, having regard to the circumstances known at the time of execution of the agreement –Where the plaintiff challenged the expert’s mandate to determine an issue because, the plaintiff contended, it was not part of what was referred to the expert – Where the parties were found to have agreed to delineate the dispute to be referred to the expert by points of claim and points of defence. CONTRACTS – Construction and interpretation – meaning and scope of the phrase “arises out of this agreement” – Where the dispute resolution regime in a deed applies to disputes that arise “out of this agreement” – Whether disputes concerning associated guarantees and a mortgage can be said to arise out of the deed and are, therefore, to be referred to expert determination.

CRIMINAL LAW – evidence – witness evidence – request to delay calling of witness

CIVIL LAW – plaintiff injured at work – where expert witness changes opinion – whether plaintiff should be allowed to rely on additional evidence – where trial date imminent – trial date vacated – no question of principle

CIVIL PROCEDURE – referral to Pro Bono Panel for legal assistance