Cases and authorities

CRIMINAL LAW – proceeds of crime – restraining orders

CIVIL PROCEDURE — Hearings — Adjournment — Of winding up proceedings — Short adjournment sought to lead solvency evidence — Proceedings recently brought — Hearing time not wasted — Application granted.

CRIMINAL PROCEDURE – adjournment – legality of disclosures of compulsory examinations of accused a central issue – Crown conceded that it had identified incorrect sources of power in earlier correspondence – adjournment sought to permit Crown to adduce evidence of legality of disclosure – application granted – important that factual findings be soundly based

COSTS – partial success of both sides – plaintiffs succeeded in contractual claim – where plaintiffs abandoned rectification and estoppel shortly prior to trial – where no evidence as to costs expended on abandoned claims – significance of rectification and estoppel being “defensive” – whether appropriate to make proportionate costs order – general undesirability of costs orders by reference to issues outweighed by discrete nature of issues and impossibility of estimating appropriate proportion even on broadbrush approach

CORPORATIONS — Winding up — Termination of winding up — Non-trading land-holding company — Obligations to financiers exceed value of land — land tax debt — Where company insolvent but for proposed funding agreement with related parties — Liquidator’s solvency report indicates that proposed agreement sufficient to meet “pessimistic scenario” — Whether related parties’ asset positions support the proposed agreement — Application refused.

CONTRACTS – construction – interpretation – proper construction of a fuel supply agreement – whether applicable in respect of supply of products to particular premises CONTRACTS – Breach of contract – Lease and fuel supply agreement – claims for past and future remediation costs, make good, regulatory claims and a claim in debt

CIVIL PROCEDURE – Commencement of proceedings – Statement of claim – Extension of validity of statement of claim for service – Uniform Civil Procedure Rules – Order extending validity made ex parte by Judge of the Court – Whether ex parte order should be discharged under UCPR r 12.11(1)(e) – Whether service of the Statement of Claim should be taken to have been effected upon each of the Defendants.

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Family provision order sought by brother of deceased – Proceedings out of time – Issues at final hearing will concern whether “sufficient cause” shown for the application being made out of time, whether Plaintiff an eligible person, and whether factors warranting making of the application established – Plaintiff estranged from deceased for many decades prior to deceased’s death – Further issue, if all other issues arguable, whether adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made by the will of the deceased – Whether the proceedings are an abuse of process, frivolous or vexatious – Whether a high degree of certainty about the ultimate outcome or should the proceedings go to trial in the ordinary way

NEGLIGENCE – motion to amend pleadings – claim by shareholders in negligence against auditors

EVIDENCE – evidence of alleged assault and threat – whether evidence goes towards a “consciousness of guilt” – whether evidence unfairly prejudicial

CRIME – confiscations – restraining order – serious crime derived property

CRIME – confiscations – restraining order – serious crime derived property

CRIME – confiscations – restraining order – serious crime derived property

CRIME – confiscations – restraining order – serious crime derived property

JUDGMENTS AND ORDERS – amending, varying and setting aside – for irregularity – judgment of the Incheon District Court in Korea registered in the Supreme Court – currency noted incorrectly – correct currency clear from judgment as a whole – application rejected CIVIL PROCEDURE – service – whether effected – conceded it was not effected – writ of levy on property set aside

CIVIL PROCEDURE – Application for stay of operation of license suspension pending appeal – no power to grant stay – application dismissed

CORPORATIONS – OPPRESSION - PRACTICE AND PROCEDURE – CASE MANAGEMENT – where parties agree that the plaintiff will sell its shares in a company to the second defendant at a value determined by the Court – single expert forensic accountant appointed by the Court to determine value – desirability of determining real issue quickly and cheaply – desirability of cooperation between parties and lawyers

CORPORATIONS – Winding up – replacement of liquidator – where proposed liquidators are connected with the same firm as resigning liquidator – whether proposed liquidators should be appointed liquidator of respective companies

CRIMINAL LAW – Evidence – Expert evidence – Late service of expert report by the Crown – Inability of accused to engage expert to meet the contents of the report – Probative value of the evidence outweighed by procedural unfairness giving rise to a danger of unfair prejudice – Evidence excluded.

EQUITY – trusts and trustees – judicial advice –whether jurisdiction under s 63 Trustee Act 1925 (NSW) engaged – whether Court should exercise discretion to provide advice – where allegations of breach of duty against trustees and director of trustees – advice granted on limited terms – further reasons in confidential judgment

CIVIL PROCEDURE – where defendant failed to appear – whether judgment should be given against defendant pursuant to UCPR r 29.7(3) COSTS – where plaintiff made offer of compromise to defendant – whether costs on an indemnity basis should be awarded – whether a gross sum costs order should be made

COSTS – Suitors' Fund Act 1951 – eligibility to be granted indemnity certificate – whether Proper Officer and Claims Assessor are "a court" – indemnity certificate – certificate granted

TAXES AND DUTIES – proceedings for recovery against defendants under Taxation Administration Act 1953 (Cth) – defendants directors of a company – company had failed to pay withholding tax, estimates in relation to amounts withheld and superannuation guarantee charges – director penalty notices issued to defendants in relation to all three tax liabilities – evidence certificates provided by the plaintiff disclosed that the defendants did not pay the amounts for which the company was liable – whether the defendants had a defence to the plaintiff’s claim – several defences relied upon by the defendants unavailable in recovery proceedings – only available defence was the ‘all reasonable steps’ defence – s 269-35 of Sch 1 of the Taxation Administration Act – whether the defendants took all reasonable steps – where the company went into voluntary liquidation – liquidation occurred outside the time allowed in s 269-30 of Sch 1 – liquidation cannot be relied upon by the defendants as evidence of steps taken – where the evidence relied upon by the defendants in support of this defence was largely in inadmissible form – conclusions, statements of belief and statements of intention – evidence contained unsubstantiated references to the defendants seeking external professional advice – evidence referred to the establishment of trusts – evidence highlighted the inadequacy of the company’s tax compliance framework – insufficient proof of all reasonable steps – defence not made out – plaintiff entitled to judgment

SUCCESSION – whether the Deceased’s half share in the Stanmore Property is held on trust for the plaintiff either by the first defendant or the second defendant – whether the plaintiff should be registered as tenant-in-common of the Stanmore Property with the second defendant in equal shares. ESTOPPEL – proprietary estoppel by encouragement – whether the second defendant impliedly accepted any communication by the Deceased of her intention that her half share in the Stanmore Property was to be disposed of by the second defendant to the plaintiff – whether the plaintiff relied upon any such promise, representation or acquiescence – whether it would be unconscionable for the second defendant to assert his entitlement to the Deceased’s half share of the Stanmore Property under the Will – whether he is therefore estopped from asserting his entitlement under the Will.

APPEALS – application for leave to appeal – notice of intention to appeal – delay in filing application for leave to appeal in context of ongoing proceedings – absence of compelling explanation for delay in exercising appeal rights in circumstances where a trial in the District Court had been set down for hearing – expedition in applications for leave to appeal in relation to ongoing proceedings CIVIL PROCEDURE – pleadings – particulars – further and better – “back and forth” of requests for particulars and answers or non-answers persisted over the course of a year – obligation of practitioners to facilitate overriding purpose of Civil Procedure Act 2005 (NSW) in the making and answering of such requests COSTS – exceptions to general rule that costs follow the event – application for permanent stay of proceedings – delay in bringing application for permanent stay of proceedings – delay in seeking leave to appeal the refusal of a stay – failure to seek expedition in application for leave to appeal in respect of ongoing proceedings

LEAVE TO APPEAL – whether the issues raised in the applicant’s statement of claim amounted to a re-litigation of issues dealt with in the earlier proceedings – whether the applicant’s allegation that the Official Trustee had acted in fraudulent disregard of its duty as trustee had no prospects of success – applicant’s failure to identify property said to be subject of the constructive trust binding the Official Trustee.

CRIME – appeals – appeal against conviction – unreasonable verdict – wounding with intent to cause grievous bodily harm – where jury found guilt based on joint criminal enterprise or extended joint criminal enterprise – whether it was open to the jury to be satisfied beyond reasonable doubt that an agreement existed between the appellant and the co-accused to commit a crime – where Crown case was circumstantial

COSTS – departure from the usual rule – application by the plaintiffs’ for indemnity costs – whether the first defendant’s resistance to the plaintiffs’ claim for specific performance of an oral agreement for the sale of land had no real prospects of success – where the first defendant’s evidence was materially similar to the plaintiffs’ evidence – where the first defendant did not substantiate certain claims in his Amended Defence – first defendant’s resistance held not to be unreasonable – first defendant ordered to pay the plaintiffs’ costs on the ordinary basis

COSTS – discontinuance of proceedings – whether positive ground or good reason to depart from the default position under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 42.19 – cross-claimants guaranteed repayment of a loan under a Deed of Loan and Deed of Guarantee – where cross-claimants filed a Cross-Claim seeking to be discharged from various agreements including the Deed of Loan and Deed of Guarantee – where loan subsequently repaid by borrower – whether repayment of loan rendered Cross-Claim futile due to a supervening event – only part of Cross-Claim rendered futile by reason of the repayment – no reason to depart from the default position under UCPR r 42.19 COSTS – discontinuance of proceedings – terms of discontinuance – application by cross-defendants for the cross-claimants to pay indemnity costs – whether Cross-Claim raised hopeless or futile claims – whether pursuit of Cross-Claim involved an abuse of process – where pleadings in Cross-Claim were in certain respects deficient – whether cross-claimants unnecessarily prolonged the prosecution of the Cross-Claim – costs assessed on the ordinary basis

INTERLOCUTORY RELIEF – freezing orders – application for the continuation of freezing orders – plaintiffs allege defendants have misappropriated funds held in a joint venture bank account – defendants deny joint venture – plaintiffs allege written joint-venture agreement giving security over defendants’ properties – defendants alleges the agreement is a forgery – whether there is a serious question to be tried – whether there is a risk of dissipation of assets – plaintiffs offer undertaking as to damages – question as to the value of the plaintiffs’ undertaking as to damages – plaintiffs say that any impecuniosity is caused by the defendants – balance of convenience in extending freezing orders

CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance – application for common fund order – where funder held leading role in devising the representative claim – whether commission ought to be capped by reference to a multiple of the costs advanced – whether enforceability of funding agreements open to question – need for respondent or contradictor. CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance – distribution of settlement proceeds among group members – legal costs – need for respondent or contradictor.

CIVIL PROCEDURE – Uniform Civil Procedure Rules r 36.16 – where orders dispositive of appeal have been made – where applicants seek orders setting aside judgment and allowing the appeals – whether asserted error in judgment readily identifiable, readily rectifiable or inadvertent

CRIMINAL LAW – application for stay of proceedings due to lack of legal representation – finalisation of evidence before hearing on notice of motion – directions

CRIMINAL PROCEDURE – jury trial – approach to juror at social function – whether juror’s impartiality impugned – whether individual juror should be discharged – whether occasion had arisen for discharge of whole jury

APPEAL – no leave sought – limited to questions of law – construction of Uniform Law – whether law practice entitled to recover legal costs when disclosure requirements of Uniform Law as to legal costs had not been complied with – factual findings open to Court below – no error of law shown LEGAL PRACTITIONERS – whether legal services provided is question of substance not form – where legal services found to have been provided in the context of investigative services – disclosure obligations apply to provision of legal services

CIVIL PROCEDURE – service – where email addresses of respondent’s solicitors had been blocked by applicant – where applicant’s physical address for service no longer current

JUDGMENTS AND ORDERS – Where the NSW Court of Appeal, accepting the defendant’s submissions, had ordered the defendant to pay into Court a sum of $399,000 (plus GST and interest) subject to any further or different order made by a judge of the Supreme Court – Where the defendant sought, by notice of motion, to vary the Court of Appeal’s order to require only $60,000 to be paid into Court on grounds of impecuniosity – Where the defendant’s impecuniosity was not revealed to the Court of Appeal and the reasons for the defendant’s impecuniosity have not been explained, particularly with respect to what the defendant did with substantial adjudication monies received the previous year.

MORTGAGES AND SECURITIES – mortgages –duties, rights and remedies of mortgagee – possession – application for writ of possession delayed by hearing and determination of cross-claim by mortgagor – requirement for mortgagee to file affidavit identifying persons in occupation of the land at a certain time – occupant informing court that the affidavit was inaccurate but not otherwise opposing grant of writ

CIVIL PROCEDURE – hearings – adjournment – asserted grounds for adjournment irrelevant to application – application refused CIVIL PROCEDURE – subpoenas – application to set aside – categories of material either unavailable or irrelevant – verification of material beyond scope of what subpoena can do – no legitimate forensic purpose – subpoenas set aside – plaintiff restrained from obtaining issue of further subpoenas without leave of judge on notice to defendants COSTS – party/party – bases of quantification – indemnity basis – merits of application accepted – application granted

CONTRACTS – remedies – declaration – as to proper construction of a Deed of Cross Guarantee – desirability of setting out the gist of the findings COSTS – whether proceedings for declarations as to construction of Deed and alternatively rectification of Deed were defensive – where plaintiffs succeeded on construction but would have failed on rectification – whether costs should be ordered to reflect parties’ success on those issues – what orders should be made in respect of representative defendant

CRIMINAL LAW – sentence – murder – domestic violence

CIVIL PROCEDURE - parties - persons under legal incapacity – tutors – approval of settlement – release of rights under s 95 of the Succession Act 2006

PARTNERSHIP - Dissolution and winding up - By the court – Adoption of referee’s report – No issue of principle

CIVIL PROCEDURE – pleadings – striking out – want of prosecution - application to strike out defence for want of due despatch – r 12.7 UCPR – where related proceedings brought by defendants in the nature of a cross-claim were struck out for want of prosecution – where defence depended on claim succeeding in struck-out proceedings - clear failure by the defendant to advance his defence – failure to appear at several directions hearings – failure to comply with directions for the service of evidence – no indication that the defendant intends to take any further part in proceedings – defence struck out

CONTRACTS – Restraint of trade – Employment contracts – the defendant/employee leaves his employment with the plaintiff – the plaintiff sells and supports software used by businesses to manage call centres, call recording, work force management, speech analytics and automation – the defendant initially proposes to work for a named direct competitor of the plaintiff – the employment agreement between the plaintiff and the defendant contains post-employment non-solicitation and confidentiality restraints – the employment agreement also contains a non-competition restraint on a former employee working for a competitor for up to 12 months after the termination of his employment – plaintiff places defendant on “garden leave” on 22 May 2019 – the plaintiff’s employment with defendant formally ended on 22 June 2019 – the defendant proposes to commence employment with the named competitor immediately, unless restrained – the defendant’s proposed employment is prima facie in breach of the non-competition restraint – an issue for final hearing is whether the plaintiff’s non-competition restraint is enforceable against the defendant or will be read down under the Restraints of Trade Act 1975 – plaintiff offers undertakings as to damages – plaintiff accelerates the payment of post-employment bonuses to the defendant – defendant offers non-solicitation and confidentiality undertakings – whether there is a serious question to be tried – what is the balance of convenience in the circumstances.

CONTRACTS – ship construction – interpretation –contract to come into effect on the earlier of the date set out in a clause and the date on which the parties reached agreement on a particular matter – whether reaching agreement a condition precedent to contract coming into effect – where clause referred to two dates – later date was date on which one party acquired a right to terminate if agreement not reached – whether earlier or later date relevant date for commencement CONTRACTS – termination – purported termination pursuant to contractual right – whether party had elected to affirm the contract – whether right to terminate exercised within a reasonable time – meaning of reasonable time – point at which reasonable time to be assessed – whether any difference between a reasonable time to exercise a right and a reasonable time to perform an obligation – Ballas v Theophilos (No 2) (1957) 98 CLR 193 considered CONTRACTS – ship construction – interpretation –parties entered into an original contract and later into a second contract – where original contract entitled one party to liquidated damages – where second contract contained a release clause – whether, if second contract had been validly terminated, the release in the second contract would still be effective – where clause in second contract set “all” fees until a particular date at a certain rate – whether “all” captured fees from commencement of original contract or second contract

CRIME – sentence appeal – where applicant convicted of supplying a commercial quantity of prohibited drug – where applicant sentenced to imprisonment for 3 years with a non-parole period of 18 months – whether sentencing judge erred in assessing the role of the applicant in the offence – whether sentencing judge erred in not concluding that delay in entering guilty plea was caused by factors outside of legal representative’s control – whether sentencing judge erred in only reducing the sentence by 10 per cent for guilty plea

CRIMINAL LAW – bail – bail application – applicant charged with a number of drug-related offences including one show cause offence – applicant the director of a commercial cleaning supplies business which imported large quantities of various precursors and GBL – applicant arrested and remanded in custody – applicant applied for bail at the Local Court – bail refused – two further bail applications made at the Supreme Court – bail refused on both occasions – further application for a new hearing in Court of Criminal Appeal – s 75 Bail Act 2013 (NSW) – whether the applicant could show cause – ability to prepare for trial – applicant to be provided a laptop in custody – strength of the Crown case in relation to the show cause offence – evidence put forward on the present application did not indicate a strong Crown case for that offence – where there was to be a delay of two and a half years between arrest and trial – remand unacceptable in the circumstances – cause shown – whether the applicant poses an unacceptable risk – whether the applicant may interfere with witnesses – no evidence to suggest a real risk of such interference – whether the applicant will continue to commit serious offences – applicant has prior related convictions and ongoing drug issues – serious bail concern – whether the applicant would fail to appear – strong Crown case in relation to the other offences and high likelihood of custodial sentence if convicted – applicant’s family reside in Lebanon – no extradition treaty with Lebanon – provision of surety and electronic monitoring fail to mitigate these serious bail concerns – bail refused

BUILDING AND CONSTRUCTION – residential building work – statutory warranties – remedial work to leaking façade – scope of work to be undertaken by the remedial builder – whether work done without due care and skill – whether any loss shown to have resulted from builder’s work

CRIME - Public justice offences – Perjury – Requirement for private individual to obtain leave to bring proceedings - Crimes Act 1900 (NSW), s 338(1)(c)