Cases and authorities

CAVEAT – whether valid – whether equitable interest – proper construction of loan agreements EQUITY – sale of land – whether caveator retains equitable interest in proceeds of sale – waiver or abandonment

CRIMINAL LAW - proceeds of crime – forfeiture orders

COSTS – proceedings resolved without a determination on the merits – parties entered into a Deed of Settlement and Release – where the plaintiff and first defendant served multiple offers of compromise – whether the plaintiff or first defendant acted unreasonably in failing to accept offers of compromise – where neither party failed to accept an offer that was substantially more favourable to them than the settlement achieved – both plaintiff and first defendant equally responsible for failure to achieve early settlement – specific cost order made to compensate the plaintiff for having to attend unnecessary directions hearings

UNICORPORATED ASSOCIATIONS – association formed by deed to operate scheme for supply of stock and domestic water – dispute over members’ entitlement to water – relevance of mistakes in deed – relevance of commercial purpose – relevance of underlying legal rights to take water from Macquarie River – relevance of post-contractual conduct UNINCORPORATED ASSOCIATIONS – resignation of members – whether implied power to resign –whether inconsistent with express provisions in deed – whether inconsistent with purpose of deed

CRIMINAL PROCEDURE – application to vacate trial date

CRIMINAL LAW – proceeds of crime – restraining orders

JUDGMENTS AND ORDERS – Amending, varying and setting aside – Consent orders LAND LAW – Caveat

CONTRACTS – unjust contracts – s 7, Contracts Review Act – entitlement to relief COSTS – whether to set off against other judgments – security for costs – where not all plaintiffs successful JURISDICTION – cross-vesting – application for transfer to Federal Court – whether ‘special federal matter’ PROCEDURE – s 500(2), Corporations Act – leave to proceed against company in voluntary winding up

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 – whether requirements to order scheme meetings are satisfied. CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders approving proposed scheme of arrangement – whether scheme is fair and reasonable so that an intelligent and honest member of the relevant class, properly informed and acting alone, might approve it.

CIVIL PROCEDURE - Proceeds paid into Court by mortgagee under Trustee Act 1925 (NSW), Pt 4 - Proceeds represent surplus from sale of mortgage of land - Application for payment out of Court - Procedure under Uniform Civil Procedure Rules - Order for payment out of Court of whole of surplus to the applicant

EQUITY – trusts and trustees – superannuation funds – dispute about identity of trustee – whether trustee with enduring power of attorney appointed in personal capacity and ceased as trustee when power of attorney terminated – whether trustee ceased to hold office under superannuation fund deed – whether s 17A Superannuation Industry (Supervision) Act 1993 (Cth) operated to appoint deceased member’s executor as trustee – whether executor validly appointed trustee under superannuation fund deed – effect of purported ratification of prior appointment of trustee where no consent by existing trustee

CORPORATIONS – directors – fiduciary duties – overpayment of salary – where director transfers salary payments to themselves personally and to their associated company – quantification. CORPORATIONS – directors – fiduciary duties – unauthorised transfers – where director transfers funds to associated company – whether such transfers made in good faith in the company’s best interests and for proper corporate purposes – quantification. CIVIL PROCEDURE – pleadings – content of pleadings – where additional specified payments claimed to have been transferred in breach not particularised – whether claim should be extended to include additional unparticularised transfers.

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

PRACTICE AND PROCEDURE – Separate determination – Uniform Civil Procedure Rules 2005 (NSW), r 28.2 – Application to consider the issue of liability prior to quantum – Where there is a significant overlap of evidence – Where the plaintiff’s credibility is central to determining both liability and quantum TORT – Personal injury – Motor accident – Where the defendant alleges that the plaintiff is fraudulently claiming to have been in the vehicle

PRACTICE AND PROCEDURE - Application to set aside consent orders - Default of mortgage - Whether a subsequent deed superseded the mortgage - Whether agreement was the varied agreement

TAXES AND DUTIES – whether further remission under s 33 of the Taxation Administration Act 1996 (NSW) warranted ­ whether plaintiff given opportunity to adduce further evidence on the issue at remitted hearing COSTS – costs of the first instance decision – costs of the remittal hearing

REPRESENTATIVE PROCEEDING – CIVIL PROCEDURE – multiplicity of proceedings – costs orders

SUCCESSION – PROBATE – COSTS – Costs of two Probate proceedings, and equity proceedings in which undue influence in equity sense relied upon – Whether to depart from the rule that costs follow the event – Overall justice of the case – Exceptions to the usual order as to costs in probate litigation – Reasonableness of the Defendants in opposing the Plaintiff’s application – Relevance of Offer of Compromise SUCCESSION – FAMILY PROVISION – COSTS – following principal judgment four different family provision orders made, two of which involve settlement – Offer of Compromise served in relation to one of the applicants for provision some months prior to the hearing – That applicant failed to obtain order more favourable than the offer made – Whether overall justice of the case warrants exercise of the Court’s discretion to “otherwise order”

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — no reasonable cause of action disclosed – fundamentally flawed case – defects and deficiencies in pleadings – allegation of misfeasance in public office – absence of allegations that establish elements of the tort – failure to identify any public power or duty, or to plead any casually linked actual temporal loss – allegation of malicious prosecution – failure to plead relevant facts to show that first defendant instigated or maintained proceedings, to identify any person to whom elements of tort can be imputed, or plead facts to establish factual basis for absence of reasonable and probable case – discretion to re-plead refused – plaintiff’s failure to re-plead case despite opportunity indicative of appreciation of lack of viability of claim

ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – whether error of law on the face of the record or jurisdictional error established – where common ground that applicant not accorded procedural fairness ADMINISTRATIVE LAW – procedural fairness – common ground applicant denied procedural fairness – whether discretionary grounds to refuse relief – whether proceedings should be remitted to the District Court APPEAL – leave to appeal – where statement of claim in District Court struck out for disclosing no reasonable cause of action – discretion to extend time to apply for leave – where no explanation for 29 months delay – whether case is fairly arguable

SENTENCING – appeal against sentence – where sentencing judge recorded that he did not accept the applicant’s evidence “beyond reasonable doubt” – whether language was merely an infelicitous, emphatic rejection of the applicant’s account or betrayed a fundamental misapprehension that the applicant needed to establish circumstances to the criminal standard of proof SENTENCING – appeal against sentence – Form 1 matters – where sentencing judge arrived at a sentence for one count, discounted it for an early plea and then added a further period to the sentence to take into account Form 1 matters – whether an error in this approach SENTENCING – non-parole period – ratio of the non-parole period and head sentence term – accumulation of two sentences where one sentence had later commencement date – where effect of accumulation meant that the statutory ratio of 75% was exceeded and not clear from sentencing judge’s remarks on sentence whether this was intended

CORPORATIONS – transfer of proceedings – where civil proceedings regarding corporations matters in two courts involve significant commonality of issues and parties – where majority of parties are resident in location of other court – where there may be risk of these proceedings being delayed if heard together with the proceedings in other court – where there is a risk of inconsistent findings – whether in interests of justice that proceedings be transferred to another court.

ADMISSIBILITY OF EVIDENCE – determining admissibility of “bomb documents bundle” and nail package – assumption as to admissibility that evidence will be accepted – circumstantial nature of case – whether evidence which may be weak in isolation may form cogent part of Crown case when taken with other circumstances – held evidence admitted. TENDENCY EVIDENCE – whether evidence that is capable of being seen as tendency evidence requires the evidence be dealt with for admissibility purposes as tendency evidence – held evidence going to state of mind of accused is not always tendency evidence – held evidence capable of satisfying the jury that certain items were in the accused’s possession may admissible as to state-of-mind of accused. MISUSE OF EVIDENCE – misuse of evidence - whether in admitting evidence there is a danger that a jury may give undue weight to evidence for purposes other than the reasons for which it was admitted – held such risk can be mitigated through appropriate directions to jury and by providing the proper approach required for deciding a circumstantial case – evidence admitted.

LANDLORD AND TENANT – notice of motion – application for stay of possession order made by New South Wales Civil and Administrative Tribunal pending appeal –appeal listed in November – further stay granted

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order – serious sex offender – defendant currently subject to extended supervision order – whether the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision - where the defendant had complied with all the conditions of his existing ESO – where the defendant demonstrated insight into his ongoing need for pharmaceutical, psychiatric and psychological treatment – where the only risk assessment conducted in the last four years rated the defendant’s risk of reoffending as average and recommended that no further application be made – application dismissed.

HIGH RISK OFFENDER – final hearing – application for extended supervision order – interim supervision order previously made – appointment of experts – experts agree that defendant has “high risk” of committing a further “serious offence” – evidence of abatement of risk – six years since commission of any offence with a sexual element – presence of protective factors in defendant’s life – defendant also subject to Child Protection Prohibition Order – issue of defendant’s preparedness to acknowledge intrusive sexual fantasies – where satisfied to high degree of probability that defendant poses “unacceptable risk” – discretion to grant the application for an extended supervision order exercised – proposed conditions modified

CIVIL PROCEDURE – summary disposal – where claim said to be apportionable – dismissal of third-party cross-claim against named concurrent wrongdoer – whether primary judge erred in dismissing cross-claim based on independent causes of action against cross-defendant – consideration of Dymocks Book Arcade Pty Ltd v Capral Ltd [2010] NSWSC 195

LAND LAW – conveyancing – options – call options – construction – notice of exercise of option able to be given to grantor’s conveyancer – whether option validly exercised - whether notice to grantee required that conveyancer no longer retained by grantor – whether requirement that conveyancer be retained at the time of the exercise of the option

MENTAL HEALTH – final hearing – Mental Health (Forensic Provisions) Act 1990 (NSW) - extension order sought for a period of three years as forensic patient – whether defendant poses an unacceptable risk of causing serious harm to others if released no longer a forensic patient- whether any risk can be adequately managed by other less restrictive means

SUCCESSION – Executors and administrators – Application for judicial advice regarding whether the executor is justified in defending certain proceedings on behalf of the estate

EQUITY – Costs application – order departing from r 42.19 of the Uniform Civil Procedure Rules 2005 (NSW) – whether defendant’s conduct has been so unreasonable as to warrant such an order

INDUSTRIAL LAW – appeals – interpretation of award – whether firefighters entitled to overtime during multiday deployment

PROCEDURE – remitter – appellant convicted of multiple child sexual assault offences – aggregate sentence imposed – appeal against conviction – three convictions quashed but appeal otherwise dismissed – remitter to District Court for resentencing

CRIMINAL LAW – sentence – murder – plea of guilty – beating causing death by blunt force head trauma – victim died in hospital the following day – offender seen behaving bizarrely before and after the incident – dispute as to whether offender intended to kill or inflict grievous bodily harm – irrational motivation does not mean that there was no intention to kill – savagery of beating bespeaks intention to kill – offence is in mid-range of objective seriousness – subjective mitigating features including remorse, no significant criminal record, prior good character, unlikelihood of re-offending, good prospects of rehabilitation – 15% discount for guilty plea – no special circumstances

EQUITY – interlocutory injunction – restraint to prevent use or disclosure of confidential client information – plaintiff established prima facie case that first defendant had exported client contacts prior to his resignation – defendants would not suffer any loss or prejudice by the only order ultimately sought – interlocutory injunction granted on limited basis

PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 (NSW) – application for leave to appeal – leave to file notice of discontinuance – leave granted

ADMINISTRATIVE LAW – judicial review – appeal from the New South Wales Civil and Administrative Tribunal Appeal Panel – residential tenancy agreement – non-appearance by plaintiff – extension of time not granted – appeal hopeless – asserted constitutional questions – costs – appeal dismissed

HIGH RISK OFFENDER – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for interim supervision order – appropriate conditions

CONSTITUTIONAL LAW – diversity jurisdiction – whether s 34B of the Civil and Administrative Tribunal Act is constitutionally valid – whether the Local Court can exercise jurisdiction if the existence of its jurisdiction is conditioned upon an application being first made with the NSW Civil and Administrative Tribunal in circumstances where the Tribunal does not have jurisdiction to determine the matter CONSTITUTIONAL LAW – whether Part 3A of the Civil and Administrative Tribunal Act offends the Kable principle – whether the NSW parliament lacks extra-territorial power – whether Part 3A of the Civil and Administrative Tribunal Act fails to give full faith and credit to the laws of Queensland ADMINISTRATIVE LAW – whether it would be possible for the Local Court to be satisfied of the matter in s 34B(2)(c) of the Civil and Administrative Tribunal Act – whether it would be possible for the Local Court to be satisfied of the matter in s 34B(2)(d) of the Civil and Administrative Tribunal Act – whether ss 49ZS and 49ZT of the Anti-Discrimination Act deprive the Local Court of jurisdiction

BREACH OF CONTRACT – written agreement – parties to agreement – construction of terms of agreement – principles of construction – objective surrounding circumstances – object and purpose of the agreement – whether obligations performed under the agreement – whether breach of agreement – claim for damages – payment of fee – damages regarding the vehicle – relief as to the vehicle and interest and costs subject to further directions CIVIL PROCEEDINGS – whether Property, Stock and Business Agents Act 2002 applied to proceedings – “carries on a business” – definition of “real estate agent” – “as an agent” – definition of “real estate transaction” – principles of statutory construction EVIDENCE – credibility findings – first defendant not a witness of truth and not reliable – whether Jones v Dunkel inferences available – witness failed to appear – admissibility of evidence – weight to be given to evidence

EQUITY – trusts and trustees – applications to the court for advice and authority – practice and procedure in judicial advice proceedings and partial administration proceedings – nature of and principles governing judicial advice – proper scope of a judicial advice application EQUITY – trusts and trustees – applications to the court for advice regarding distribution of income and capital to a private ancillary fund proposed to be established and as to whether executors would be justified in taking certain steps as to transfer of property and release of debt recorded in company records as owing to deceased EQUITY – Trusts and trustees – Resulting trusts – Presumption of resulting trust

PRACTICE AND PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – whether proposed settlement is in the interests of the plaintiff

CORPORATIONS — Winding up — Statutory demand — Application to set aside on the basis of a genuine dispute — Demand based on fees payable under deed granting option to purchase land — Where interpretation of deed disputed — When appropriate to determine proper construction of contract on application to set aside statutory demand — Low threshold for genuine dispute — Demand set aside.

CORPORATIONS – external administration – receivers – remuneration – general principles – whether reasonable to sell property – whether sale reasonably conducted – reasonable remuneration for selling property – where additional work occasioned by acts of respondent – where receiver did work in excess of that which a reasonably prudent businessperson acting in own interests would have done – reasonable remuneration for remuneration application

COSTS – party/party – bases of quantification - indemnity costs – application for costs of a motion on an indemnity basis – application brought after judgment had been delivered on the motion – substantive judgment granted costs to the applicant on the ordinary basis – application brought without notice or warning to the respondent – whether the respondent’s conduct of proceedings was plainly unreasonable or whether there was relevant delinquency – where the respondent repeatedly failed to comply with directions of the Court – where the respondent improperly produced expert reports – where the respondent’s solicitor caused unnecessary adjournments by his unavailability – where the failure to give notice of the application had no bearing on the respondent’s approach to the application – application granted

EQUITY – restraint of trade – covenants in restraint of trade – breach of confidence – whether breach established – necessary quality of confidence – whether material in public domain – whether reading affidavit made information in public domain – utility of making order restricting use of confidential information

SUCCESSION — Wills and Probate — Consideration of principles informing practice of the Court relating to compulsory production of documents — Before pleading and service of evidence CIVIL PROCEDURE — Court administration — Overriding purpose — Just, quick and cheap resolution CIVIL PROCEDURE — Notices to produce — Before hearing — Probate proceedings — Practice Note SC Eq 11 CIVIL PROCEDURE — Subpoenas — To produce documents or things — Probate proceedings — Practice Note SC Eq 11

TORTS – negligence – personal injury – respondent tripped on kerb in pedestrian precinct – duty of care to warn pedestrians of height differential – whether risk obvious – whether failure to use yellow highlighting constituted breach of a duty to warn – whether absence of warning causative of harm to person aware of hazard and not looking down

CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to three charges – take and drive vehicle without consent of owner – break enter and steal – dispose of stolen property – where the applicant scaled a unit complex and forcibly entered a first floor apartment – apartment was ransacked and car keys stolen – applicant entered the occupant’s car and drove it towards his home – the applicant subsequently pawned a number of items which belonged to persons other than the owners of the apartment – applicant readily apprehended as he had dropped his mobile phone in the apartment – applicant also used his own photo identification and address when pawning the goods – sentenced to aggregate sentence of 4 years 6 months’ imprisonment with non-parole period of 3 years 1 month – 25% discount given for early plea – whether the sentencing judge erred in his assessment of the objective seriousness of the offending – where the sentencing judge found that all three offences fell within the mid-range or just below it – where trial counsel and the Crown had agreed that the objective seriousness of the offending was towards the lower end of the range – where sentencing judge gave no explanation for his finding of objective seriousness in the face of the parties’ submissions to the contrary – undisputed facts indicated objective seriousness at the lower end of the range – sentencing judge also incorrectly interpreted the ambit of offences falling under s 189 Crimes Act 1900 (NSW) – error not immaterial – ground made out – resentencing warranted – all three offences deemed to be in the low range of objective seriousness – consideration given to applicant’s extensive criminal history – improved prospects of rehabilitation since being sentenced – high likelihood of reoffending – special circumstances found to exist – applicant resentenced to an aggregate sentence of 4 years’ imprisonment with non-parole period of 2 years and 8 months