Cases and authorities

TORTS – negligence – road accident – liability of defendant – defendant completing a right-hand turn across double on-coming lanes – visibility of plaintiff’s motorcycle blocked by car in front – plaintiff sought to overtake car at a high speed on inside lane – collided with defendant – whether defendant negligent in failing to slow down or stop – reasonableness of precautions against unseen vehicles travelling at high speeds – expectation that road users will take reasonable care for their own safety EXPERT EVIDENCE – negligence – calculation of speed – CCTV footage of accident – failure to assess weight of expert evidence – confirmatory report not taken into account

ADMINISTRATIVE LAW – Motor Accidents Compensation Act 1999 (NSW) medical review panel – assessment of degree of permanent impairment – application for judicial review – whether jurisdictional error – whether failure to address an argument properly before review panel – whether denial of procedural fairness – whether review panel directed attention to wrong question – whether error of law on the face of the record – whether review panel’s assessment based on findings of fact for which there was no evidence – scope of error of law on the face of the record

CRIME – Appeals – Appeal against conviction – Inconsistency of verdicts – Jury failed agree on Counts 1-7 – Jury convicted on Count 8 –– Count 7 and 8 arose out of same incident - Count 7 concerned allegation of choking so as to render complainant incapable of resistance with intention of enabling applicant to commit sexual assault - Count 8 concerned allegation of aggravated sexual assault where applicant inflicted actual bodily harm by choking complainant – Whether conviction on Count 8 is inconsistent with the failure of jury to agree on Counts 1-7 - Whether principles of inconsistent verdicts apply where failure to agree by jury. CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Failure by jury to agree on Counts 1-7 – Jury convicted on Count 8 – Whether reasonable doubt that the applicant committed the offence notwithstanding advantage of jury - Assessment of credibility of the complainant and supporting evidence. CRIME – Sexual offences – Aggravated sexual assault – Assault complainant occasioning actual bodily harm – s 61J(1) Crimes Act 1900. CRIME – Sexual offences – Sexual assault – 5 counts - s 61I Crimes Act 1900. CRIME – Violent offences – Choking, suffocation or strangulation – Choking with intention of enabling applicant to commit sexual intercourse without consent – s 67(2) Crimes Act 1900. CRIME – Violent offences – Stalking or intimidation – Intimidation of complainant with intention of causing the complainant to fear physical or mental harm – s 13(1) Crimes (Domestic and Personal Violence) Act 2007.

CRIMINAL LAW – Appeals – whether sentencing judge fell into Muldrock error – whether instinctive synthesis correctly undertaken – findings as to factual circumstances well founded – findings about failure of applicant to take responsibility well founded – findings about absence of contrition well founded – comparable cases not indicative of excessive sentence - lesser sentence not warranted.

ADMINISTRATIVE LAW – reviewability – justiciability – subject matter of power or decision – matter of academic judgement – decision by a university thesis supervisor not to certify that a doctoral thesis met the University’s preparation requirement that the thesis was the student’s “own work” – findings of an investigatory panel into allegations of plagiarism against the student taken into account – not an exercise of public power – impermissible merits review ADMINISTRATIVE LAW – legal unreasonableness – whether the “non-certification decision” and the panel’s findings were legally unreasonable – Briginshaw standard did not apply – inferences made were reasonably open and logically available – not legally unreasonable – no irrelevant consideration – no apprehended bias – no impermissible fetter of discretion or subjugation of state of satisfaction CONTRACTS – implied terms – parties agreed to be bound by the University’s By-laws and Rules – no term that the parties also agreed to be bound by the University’s Code, Policy and Procedure should be implied CONTRACTS – legal unreasonableness – alleged failure to exercise a unilateral contractual discretion reasonably – “non-certification decision” not legally unreasonable ESTOPPEL – estoppel by convention – mutual assumption – assumptions not supported by the evidence ESTOPPEL – estoppel by representation – detrimental reliance – representations not made – representations not relied upon

CORPORATIONS — Winding up — Statutory demands — Service by post — Change of registered office not notified to ASIC — Registered office also defendant’s solicitor — Service also by email —Statutory presumptions not displaced — Service validly effected. CORPORATIONS — Winding up — Presumption of insolvency — Failure to comply with statutory demand — No s 459G application brought — Whether leave should be granted under s 459S — No evidence as to solvency — Statutory test in s 459S(2) not satisfied — Insufficient evidence of genuine dispute in any case — No evidence of solvency — Appropriate that companies be wound up.

CHILD WELFARE – whether appropriate for Court to exercise parens patriae jurisdiction where Children’s Court of NSW has already made orders – Court declined to exercise jurisdiction FAMILY LAW – children – jurisdiction of Children’s Court of NSW – whether child “ordinarily resident” in NSW – recovery order made

CRIMINAL PROCEDURE – breach of U.N. sanctions – supply of sanctioned goods to Iran – contravention of the Charter of the United Nations (Sanctions – Iran) Regulation 2008 – test case – establishment of elements – application of the Criminal Code (Cth) – “engage in conduct” to include the doing of an act and the omission to perform an act – physical and fault elements must be coincident

COSTS – Gross sum award of costs – Where the plaintiff is impecunious

EVIDENCE — Hearsay — Exceptions — First-hand hearsay exceptions – Evidence Act 1995 (NSW), s 63 – application to tender draft affidavit where witness refused to answer questions – adequacy of s 67 notice – whether document “marked” by witness where witness amended draft affidavit and returned by email – whether representation “made” by attaching draft affidavit to email – whether evidence should be excluded under s 135. CONTRACTS — Formation – whether one party agreed to “buy” other party’s mortgage – whether party breached agreement by failure to indemnify other party against mortgagee’s claim for funds owing. CONTRACTS — Formation – alleged agreement by one party to undertake European joint venture to exploit a second party’s magnetic coupling invention – incompleteness – parties had not reached concluded agreement on terms of licensing of intellectual property or identity of shareholders – parties to alleged agreement not correctly joined to proceedings. CONTRACTS — Formation – whether one party agreed for a second party to manage and maintain certain properties acquired with the first party’s funds. EQUITY — Trusts and trustees — Resulting trusts – whether one party entitled to resulting trusts over properties registered in second party’s name where first party advanced substantial portion of purchase price – presumption of resulting trust rebutted. LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees – jurisdiction of Supreme Court of New South Wales – appointment of trustees for sale pursuant to Property Law Act 1958 (Vic), Part IV.

PARTNERSHIP AND JOINT VENTURE — Joint venture — Real estate business — Agreement for fixed term — Whether parties fiduciaries — Buyout —— Former venturer excluded but buyout agreement not performed — Appropriate remedies — Buyout specifically enforced. CONTRACT — Formation — joint venture agreement — Partly evidenced by draft agreements — Relevance of post-contractual conduct — buyout agreement — effect of buyout agreement on obligations under joint venture agreement — Buyout agreement not performed — Whether damages inadequate — Buyout agreement specifically enforced. CORPORATIONS — Directors’ duties — director excluded from management — Whether oral resignation valid — Whether resignation agreed as part of buyout valid — Breach of continuing obligation under Corporations Act, s 183 — No loss to company or profit to director proved — No relief granted.

CRIMINAL LAW – application for an inquiry into a conviction for sexual assault – fourth such application – whether issues previously examined should be reconsidered

CIVIL PROCEDURE – separate determination of questions – where appropriate – where parties labouring under different understandings as to the relief able to be claimed by the defendants in their defences – plaintiff contending no monetary remedy available beyond extent of its claim – evidence of defendants’ impecuniosity – whether proceedings futile – whether leave to discontinue should be granted on terms that there be no order as to costs

JUDGMENTS AND ORDERS – Court of Appeal – third application to set aside vexatious proceedings order – where applicant seeks to re-agitate matters already decided in judicial review proceedings – no new matter raised – where Court may decline to consider the application – Vexatious Proceedings Act 2008 (NSW), s 9(4)

CRIME – Firearms offences – Conspiracy to unlawfully supply pistols or prohibited firearms SENTENCING – Appeal against sentence – Co-offenders – Discount for plea of guilty – Co-offenders received discount for plea of 15% - Applicant received discount for plea of 10% - Applicant’s plea entered shortly after SENTENCING – Appeal against sentence – Assessment of criminality – Whether findings of fact available on evidence SENTENCING – Appeal against sentence – Non-parole period – Ratio of the non-parole period and balance of term - Finding of special circumstances – Partial Accumulation of sentence upon previously imposed sentence – Non-parole period marginally less than statutory ratio

CORPORATIONS — Where application to set aside statutory demand dismissed — Plaintiff applies for extension of time for compliance with demand pending filing of appeal — Respective prejudice to parties — Not appropriate to require payment into Court — Undertaking to prosecute appeal expeditiously — Two-day extension granted to permit filing of appeal.

Costs

EQUITY – Equitable interests in property – Contribution to acquisition or improvement of another’s property – Resulting trust – Family arrangement for purchase of residence with separate accommodation of parent EQUITY – Trusts and trustees – Resulting trust – Family arrangement for purchase of residence with separate accommodation of parent

CRIME– murder - trial by judge alone – accused and deceased both inmates at the same prison – not in dispute that the deceased died from the combined effect of strangulation and blunt force trauma – whether it was the accused’s acts that killed the deceased – where the accused said he could not remember doing the acts causing death – circumstantial Crown case – where CCTV footage showed the deceased and accused alone in cell for more than 20 minutes with door shut – shortly after the accused left the cell the deceased was found unresponsive in his cell and subsequently died in hospital – injuries not capable of being self-inflicted or caused by misadventure – accused’s acts killed the deceased CRIME — murder — defences — mental illness - where two expert psychiatrists agreed that the accused suffered from schizophrenia – disease of mind found – whether the accused could demonstrate that it was the underlying mental illness that was responsible for his acts causing death – where accused failed to demonstrate that it was his mental illness rather than self-induced intoxication that was operating on his actions - where the accused failed to show that he did not know that what he did was wrong – defence not made out CRIME — criminal liability — intoxication — offences of specific intent - where the accused had consumed methamphetamine and Xanax on the morning of the offending – whether the accused’s self-induced intoxication deprived him of the capacity to form the requisite specific intention – elements of murder not made out - verdict of not guilty to murder but guilty of manslaughter CRIME — murder — partial defences – substantial impairment – relationship to mental illness defence

CIVIL PROCEDURE – amendment and joinder application – said to be unarguable because certain claims assigned and said to be invalid – where not all claims by all plaintiffs were assigned claims – where proceedings against defendant would continue in any event – importance of principle in Wickstead v Browne – where area of law and public policy underpinnings of principle sought to be invoked fluid – not appropriate to be determined on a summary basis PERSONAL PROPERTY – assignment of choses in action – prohibition on assignment of bare chose in action – nature of principle stated in Trendtex Trading Corporation v Credit Suisse [1982] AC 679 and adopted in Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 – whether test of what rights are to be regarded as incidental to property rights has been modified PERSONAL PROPERTY – public policy against assignment of bare chose in action – underlying basis of public policy – maintenance and champerty – whether public policy fluid – where underlying public policy justification for principle capable of being challenged – inappropriate to be dealt with on a summary basis

LAND LAW – Torrens system – claim for compensation from Torrens Assurance Fund – claimant had interest as equitable mortgagee – caveat lodged – caveat withdrawn following lodgement of fraudulent withdrawal of caveat form – transfer of title to new registered proprietor – claimant alleged that loss was suffered as a result of dealings because claimant forced to sell another property – claimant failed to establish that dealings were a cause of need to sell property – no entitlement to compensation under s 129 of Real Property Act 1900 (NSW)

PROBATE – contested grant – suspicious circumstances – whether proponent of will had discharged onus – will left whole estate to propounder – solicitor who explained and witnessed will believed propounder was testatrix's only daughter and next of kin – solicitor's erroneous beliefs caused by lies by those benefitting under will – inability to rely on solicitor's evidence to discharge onus – requirement to consider entirety of suspicious circumstances – appeal allowed and earlier will admitted to probate – consideration of merits of approach in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 SUCCESSION – application for provision – dependency – factors warranting – whether primary judge erred in failing to find nephew dependent on deceased – dependency conceded at trial – whether primary judge erred in failing to find primary facts on financial position and need

DEFAMATION – defences – contextual truth – amendment by plaintiff to adopt contextual imputations – whether primary judge ought to have inferred that the amendment was not brought in good faith or was an abuse of process APPEAL – practice and procedure – decision by primary judge to allow amendment – particular caution to be exercised by appellate courts

CRIME – appeals – appeal against sentence – application for leave to appeal – whether sentence was manifestly excessive – whether denial of procedural fairness – whether error in not finding special circumstances – appeal dismissed

CRIMINAL LAW – appeal against conviction –accountant convicted of knowingly dealing with proceeds of crime – whether summing-up lacked balance or contained “advocacy” favouring prosecution – summary of prosecution and defence cases – no miscarriage of justice in judge recounting evidence relied on by prosecution – summing up of defence case undermined credibility of witness relied on by defence – credibility of witness not challenged by prosecutor – subsequent neutral directions not sufficient to rectify error – convictions quashed

CRIMINAL LAW — appeals — appeal against sentence —misapplication of principle—objective seriousness of the offence—assessment for each individual offence— whether application of Clarke principle— “smorgasbord” of drugs— whether no penalty other than imprisonment was appropriate CRIMINAL LAW — appeals — appeal against sentence — manifest excess

CRIMINAL LAW – appeals – appeal against sentence – applicant convicted of one count of aggravated indecent assault of a child under the age of 16 years – applicant the paternal grandfather of the complainant – complainant stayed over at the applicant’s home and slept in his bed – applicant pulled down the complainant’s pants while pressed against her – sentencing judge found that the applicant had an erection and had ejaculated during the commission of the indecent assault – applicant asserted that he had an incontinence problem and had unwillingly urinated on the complainant – issue relevant to measure of objective seriousness of offending - whether the sentencing judge’s finding of fact was consistent with the jury’s verdict – where the veracity of the applicant’s alleged incontinence was cast into doubt by the evidence – the sentencing judge’s finding was the only rational inference from the facts – finding made beyond reasonable doubt – appeal dismissed

CIVIL PROCEDURE – hearings – adjournment – relevant factors COSTS – gross sum costs order – payable forthwith – order made after discounting respondents’ costs

CRIMINAL LAW – Juries – Medical evidence that juror was under severe stress which had been brought about by deliberations – Juror discharged CRIMINAL LAW – Juries – Verbal altercation between jurors during deliberations – Risk of miscarriage of justice – Remaining members of jury discharged

CRIME — Appeal and review — Application under s 78 Crimes (Appeal and Review) Act 2001 seeking an inquiry into a conviction and sentence – application based on a misunderstanding and did not seek an inquiry into a conviction and sentence – alternatively, matter already dealt with in proceedings on appeal and by a review under previous review provisions as well as having been the subject of appeal proceedings where the appeal or application was withdrawn or allowed to lapse – no special facts or circumstances justifying taking further action – application refused

CIVIL PROCEDURE – notice to produce under Uniform Civil Procedure Rules 2005 (NSW) r 21.10 – where documents sought not specifically referred to nor clearly identified in pleading or affidavit – notice to produce set aside CIVIL PROCEDURE – discovery – Practice Note SC Eq 11 – court rules not to be used to bypass procedure in Practice Note regarding orders for discovery CIVIL PROCEDURE – court administration – overriding purpose – where documents sought by notice to produce will inevitably be adduced in evidence – parties and legal representatives to have regard to the overriding purpose of civil procedure rules and avoid interlocutory skirmishes

CIVIL PROCEDURE – Hearings – Order that proceedings be heard together – Two separate proceedings, each seeking a family provision order out of the same estate – Agreement by parties that both proceedings be heard consecutively, with the evidence in one being evidence in the other – Uniform Civil Procedure Rules 2005 (NSW) r 28.5 – Proceedings involve “a common question” and otherwise “desirable to make an order” under the rule SUCCESSION – Family Provision – Each Plaintiff, a child of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) – The Defendant is the widow of the deceased but was separated from him at the date of his death – Close relationship despite separation – Deceased left Will – Where testamentary trust providing for payment of income or capital to each Plaintiff at the discretion of the Defendant – Initially, issue about nature and value of the estate – Resolved by the date of hearing by Defendant agreeing to proceeds of sale forming part of the estate of the deceased – Estate of moderate value – Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made SUCCESSION – Family Provision – Extension of time for the making of the application required in respect of one applicant’s claim – Parties to the proceedings consent to the application being made out of time pursuant to s 58(2) of the Succession Act SUCCESSION – Family Provision – Necessity for applicant to make full and frank disclosure of his financial circumstances – Where applicants fail to make full disclosure – Large number of documents produced for inspection – Documents inspected and summary prepared – Documents relate to gambling and betting history of each applicant – No suggestion, until the oral evidence of one of the applicants that documents do not record accurately his betting history

HIGH RISK OFFENDERS – application for costs by Defendant – Attorney General significantly narrowed on hearing day scope of terrorism intelligence application – Attorney General’s application not pressed concerning substantial volume of documents – Defendant entitled to orders for costs thrown away

LAND LAW – contract for the sale of land – termination for breach of an essential term or for repudiation – where vendors issued notice to complete giving the purchaser 14 days to complete – where parties agreed to extend the time for completion under the notice to complete – where purchaser intimated it could not complete by extended date for completion – where purchaser failed to complete by extended date for completion – vendors terminated contract – whether notice to complete effective to make time of the essence – whether extension effective to make the newly appointed time of the essence – time for completion under extended date held to be of the essence – purchaser held to have breached contract in an essential respect and to have repudiated the contract – contract validly terminated by vendors LAND LAW – contract for the sale of land – deposit – penalty doctrine – deposit payable by two instalments each of 5% of the purchase price – where first instalment paid on contract date – where second instalment payable “on or prior to the completion” of the contract – whether second instalment is in the nature of a deposit – held that second instalment not in the nature of a deposit GUARANTEE AND INDEMNITY – guarantee – construction – guarantee of the purchaser’s obligations under contract for the sale of land – guarantor agrees to be personally liable for performance of purchaser’s obligations “under this Contract” – where purchaser liable under liquidated damages clause upon termination of contract – whether obligation under liquidated damages clause is an obligation “under this Contract” – guarantor held to be liable for amount of liquidated damages

PRACTICE AND PROCEDURE - service on a foreign corporation - substituted service

CIVIL PROCEDURE — pleadings — application for summary judgment — no reasonable defence disclosed — summary judgment granted

COSTS – determination of whether costs are payable – where only some prayers of relief were to be heard – where other prayers yet to be heard – where plaintiff unsuccessful – basis upon which plaintiff is to pay defendant’s costs – whether a party heard under r 2.13 of the Supreme Court (Corporations) Rules 1999 (NSW) should be awarded its costs. COSTS – application for costs be assessed and payable forthwith – where hearing on substantial and discrete application – where there is likely significant time before balance of issues are determined – where one party will have no further role in proceedings – whether costs should be assessed and payable forthwith.

EVIDENCE – opinion evidence – exceptions – expert opinion– report on domestic violence within Indian/Punjabi culture and Sikh faith– murder trial – accused and deceased adhered to Sikh faith – relevance of report – expertise of witness – whether she had "specialised knowledge" – whether report unfairly prejudicial – whether evidence of “cultural tendency”

CRIMINAL LAW – conviction appeal – joint criminal enterprise – two counts of firing a firearm in a public place – jury trial – verdict of not guilty on first shooting but verdict of guilty on second shooting – circumstantial case – whether verdicts inconsistent – whether verdict of guilty open to the jury – intermediate fact of knowledge that the co-offender possessed a firearm – an issue in the first shooting but not the second – whether other reasonable possibilities inconsistent with guilt

CORPORATIONS – take-over offers – off-market bid – application for extension of time for compliance with s 625(3)(c)(i) of the Corporations Act 2001 (Cth) – where transaction timetable specified time for lodgement of application for quotation of additional securities as within 7 days of commencement of offer period – where time specified for lodgement of application should have been within 7 days of commencement of bid period – whether extension of time sought should be granted. CORPORATIONS – take-over offers – bidder’s statement – application for extension of time for dispatch of bidder’s statement – where bidder’s statement dispatched to shareholders of shares quoted on NZX six days after dispatch to shareholders of shares quoted on ASX due to communication error – where persons concerned acted honestly and without improper intent – where no substantial injustice has been or is likely to be caused to any person – whether an order should be made under ss 1322(4)(a) or 1325A of the Corporations Act 2001 (Cth).

CORPORATIONS – take-over offers – off-market bid – application for extension of time for compliance with s 625(3)(c)(i) of the Corporations Act 2001 (Cth) – where transaction timetable specified time for lodgement of application for quotation of additional securities as within 7 days of commencement of offer period – where time specified for lodgement of application should have been within 7 days of commencement of bid period – whether extension of time sought should be granted.

CRIMINAL PROCEDURE – trial – jury – discharge of whole jury in exercise of inherent jurisdiction – high degree of necessity to discharge jury where disharmony and fear of potential recrimination among jurors distracting from complex circumstantial case brought against accused – accused’s application not opposed by Crown

CORPORATIONS — Winding up — Application to adjourn winding up proceedings pending outcome of administration — Administrators appointed on eve of hearing of winding up application — Evidence shows company clearly insolvent — Evidence of administrator inconsistent with solvency report — Nascent DOCA proposal — Test in s 440A(2) not satisfied — Adjournment refused. CORPORATIONS — Winding up — Winding up in insolvency — Where presumption of insolvency from failure to comply with statutory demand — Company’s evidence far short of that required — Presumption not displaced — Winding up order made.

CIVIL PROCEDURE — Court administration — Court powers – procedure under Uniform Civil Procedure Rules 2005 (NSW) and Trustee Act 1925 (NSW) - Payment of funds into and out of court less the plaintiff’s costs of and incidental to the summons

LEGAL PRACTITIONERS – solicitor and client – claim by solicitor for fees – whether fees claimed are unfair and reasonable or excessive – where client retains solicitor to do work concerning a fraud perpetrated by an employee of the solicitor on the client – where solicitor gives an oral undertaking not to charge for this work – where no consideration given for the undertaking; PROCEDURE – Supreme Court supervisory jurisdiction and generally – whether the court should in its supervisory jurisdiction give effect to the undertaking – where part of the fees charged for may be for work done by the solicitors which transpires to be to their own benefit in adverse proceedings against the client; TORT – fraud – vicarious liability – solicitor in employ of law firm commits fraud on a client of the firm – whether conduct in course and scope of employment; AGENCY – ostensible authority – whether client clothed solicitor with ostensible authority – whether conduct of solicitor was in course and scope of his employment with law firm

HIGH RISK OFFENDER – application for extended supervision order – final hearing – history of serious violence offences – statutory preconditions established – whether satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious violence offence if not kept under supervision – consideration of progress in rehabilitation, psychological diagnoses, and conduct under past and present supervision – defendant’s negative attitude to extended supervision order not relevant to Court’s discretion – experts in agreement as to assessment of risk posed by defendant – order made subject to conditions

SUCCESSION – family provision – claim by adult son – son excluded from will – estrangement from the deceased – estate left entirely to widow who was second wife – where value of the estate has diminished significantly since the deceased’s death – where widow has low prospects of future employment – no provision made

PRACTICE AND PROCEDURE – Application for temporary stay of proceedings

CRIMINAL PROCEDURE – trial – directions to jury – failure to direct the jury in accordance with Black v The Queen – failure clearly to respond to notes from the jury indicating inability to reach unanimity – whether undue pressure imposed on jury – whether trial miscarried