Cases and authorities

CRIMINAL LAW – appeal against interlocutory judgment – where accused charged with breach of ss 76A and 76B of the Environmental Planning and Assessment Act 1979 – where prior to commencement of the trial the accused applied to set aside subpoenas issued by the prosecutor –subpoenas set aside because they were based upon information gathered by unlawful s 119J notices issued by a council – whether s 119J notices can be issued to a person when the council considers a later criminal prosecution against that person likely – s 119J notices not ultra vires WORDS AND PHRASES – ‘in connection with an investigation purpose’ – Environmental Planning and Assessment Act, s 119J(1)

CIVIL PROCEDURE – service of lay evidence – issues arising as a result of appeal – case management orders

CRIMINAL LAW – Conviction of murder – accused found to have had the necessary mental element of murder – found to have intended to cause really serious injury to deceased – accused did not have the intention to kill deceased – partial self-defence not accepted – deliberate violent use of knife – force required to inflict extent of damage upon deceased found to be significant

REAL PROPERTY – resulting trust – constructive trust – oral agreement between plaintiff and defendant to purchase property – property purchased in name of defendant – plaintiff pays the deposit, stamp duty and a portion of the mortgage payments for the property – whether defendant holds the property as to a 40% interest on constructive trust for the plaintiff – whether the defendant holds the property legally and beneficially.

TAXES AND DUTIES – notice of estimate of liability for unpaid PAYG withholding amounts – s 268-40 and s 268-90 of Schedule 1 to the Taxation Administration Act 1953 (Cth) – whether previous notice of estimate revoked – meaning of “revoked” TAXES AND DUTIES – s 268-40(2) and s 268-40(4) of Schedule 1 to the Taxation Administration Act 1953 (Cth) – statutory declaration – meaning of “to the effect” – whether statutory declaration “to the effect” that a specified lesser amount is the unpaid amount of the underlying liability – whether statutory declaration “to the effect” that the underlying liability never existed

CIVIL PROCEDURE – leave to appeal – extension of time – whether leave should be granted to file an application for judicial review – whether plaintiff has a fairly arguable case – grounds for review – duty to give reasons – whether reasons adequate – discretionary factor

PROCEDURE – summary judgment – pleadings – defective pleadings – abuse of process – whether pleadings are frivolous or vexatious – whether pleadings are an embarrassment – whether pleadings disclose a reasonable cause of action TORT – misfeasance in public office – Commonwealth Minister for Agriculture and Water Resources – whether allegations of fact capable of supporting the elements of the tort

ESTOPPEL – Estoppel by convention – Mutual assumption – Detriment – whether established as defence to claim for breach of contract RESTITUTION – Mistake – whether payments made – whether evidence of mistake RESTITUTION – Nature of restitutionary liability –unjust enrichment – whether misrepresentation as basis for claim for money had and received

Pro bono assistance – application for referral – impecunious appellant – appeal from decision that appellant no longer practise medicine – difficulty in identifying whether appeal has merit – application granted, limited to advice as to prospects

REAL PROPERTY – whether appeal futile in circumstances where respondent is registered proprietor of land – whether contractual right to lodge caveat created an equitable interest in favour of appellant CONTRACTS – formation – whether parties entered into contract for sale of land – form of contract entered into

CRIMINAL LAW – bail – applicant charged with offences of violence and firearm offences – bail refused, then granted by Local Court – detention order made by Supreme Court – further application to Court of Criminal Appeal – power of Supreme Court to hear subsequent release application CRIMINAL LAW – bail – applicant charged with offences of violence and firearm offences – whether change of circumstances – prosecution witness contradicts earlier statement at committal hearing – whether strength of prosecution case affected – unforeseen delay before trial – unforeseen collapse of family business whilst applicant in custody

CRIMINAL LAW – proceeds of crime – restraining orders – notice of motion to add second defendant – where added defendant was the wife of the defendant – separate criminality by added defendant – additional property in added defendant’s name

CORPORATIONS – dissolution – reinstatement – application to reinstate registration of company – where deregistered company has potential claims against others and against itself – where application brought in other proceedings for winding up of company has been stayed – where undertaking to voluntarily wind up company within seven days of reinstatement provided – whether it is just that the company be reinstated. CORPORATIONS – winding up – proposed application for voluntary winding up of company – where application brought in other proceedings for winding up of company has been stayed – where application for voluntary winding up is necessary to comply with court orders – whether leave to voluntarily wind up company should be granted under s 490 of the Corporations Act 2001 (Cth).

CIVIL LAW – Interim supervision order – expiration of supervision before proceedings finalised

CRIMINAL LAW – murder – application by accused for trial by judge alone – consent of Crown – requirement for leave due to lateness of application – leave not opposed by Crown – foreshadowed defences of mental illness and substantial impairment – whether concern about appropriateness of trial by judge alone could inform question of refusal of leave – leave granted, application granted, order for trial by judge alone made

JUDGMENTS AND ORDERS — Enforcement — Suspending operation — Fifth application for stay of execution of writ of possession of land

CORPORATIONS – external administration – application to approve the remuneration of special purpose receivers for work already performed –whether the amount of remuneration claimed is reasonable and whether it is to be calculated on a time-charged basis – issues arising from conduct of application in Supreme Court of Victoria in respect of settlement of other proceedings.

CONTRACTS — Construction — Interpretation — Agreement to settle proceedings

CIVIL PROCEDURE – representative proceedings – conduct of proceedings – plaintiff sought leave to rely on alternate expert’s evidence served out of time – whether plaintiff’s original expert was likely to cooperate or fail to comply with duty to the Court – consideration of prejudice to defendant by late service of expert evidence

CIVIL PROCEDURE – representative proceedings – group members – identifying – where group members are local government councils – where some group members have ongoing commercial relationships with defendant insurance broker CIVIL PROCEDURE – representative proceedings – conduct of proceedings – whether plaintiff should disclose any insurance procured other than through defendant – whether direction should be made for service of plaintiff’s evidence

FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Application for the adoption of two children, who are siblings, in favour of a married couple — Father of the children opposed orders until the hearing and then withdrew opposition, although did not consent to the adoption orders — Mother of the children does not consent but did not appear at the hearing despite notice of hearing having been given to her –– Whether consent of children’s birth parents should be dispensed with — Proposed relocation of proposed adoptive family interstate — Whether order for adoption of each child should be made in favour of proposed adoptive parents — Whether proposed name change for each child to include surname of proposed adoptive parents, and inclusion of the surname of the birth father, should be approved FAMILY LAW AND CHILD WELFARE – Amended Adoption Plans — registration — where provisions were agreed between the parties and the proposed adoptive parents at the hearing — Where registration would mitigate residual risk in respect of birth family contact — Whether both amended Adoption Plans should be registered

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

APPEAL – application for leave to appeal against a costs order by Local Court of New South Wales – two grounds of error of law – one ground of error of fact

CORPORATIONS – external administration – application under s 439A(6) of the Corporations Act 2001 (Cth) to extend the period within which the second meeting of creditors must be convened – where sale of business estimated to not complete before existing convening date – whether convening period for second meeting of creditors should be extended.

LAND LAW – possession of land – writ of possession – where stayed on an ex parte basis – where applicant failed to disclose he was party to a deed with judgment creditor prohibiting stay being sought – application by judgment creditor for discharge of stay

TRUSTEES - trustees for sale – trustees for sale appointed under the Conveyancing Act 1919, s 66G - dispute between co-owners and trustees concerning the reasonableness of the trustees’ costs, expenses and remuneration – whether particular costs, expenses and remuneration of the trustees should be allowed – no issue as to the honesty of the trustees or the propriety of their incurring the costs in question. CROSS VESTING – Jurisdiction of Courts (Cross-Vesting) Act 1987, s 6(3) – proceedings between co-owners of property under the Conveyancing Act 1919, s 66G for the appointment of trustees for sale – trustees for sale appointed – disputes arose among the co-owners and between some of the co-owners and the trustees for sale – costs incurred by the trustees for sale in resolving those disputes – delay occasioned in the sale of the property as a result of the disputes – one co-owner made bankrupt after appointment of trustees for sale – property sold - trustees for sale have concluded their work and seek payment of their costs and expenses from the proceeds of sale – the apportionment of the trustees’ costs among the co-owners, including the bankrupt co-owner constitutes a “special federal matter” under the Jurisdiction of Courts (Cross-Vesting) Act 1987 – whether the proceedings should remain in the Supreme Court of New South Wales or be remitted to the Federal Court of Australia or the Federal Circuit Court of Australia under the Jurisdiction of Courts (Cross Vesting) Act – whether there are special circumstances for retaining the matter in the Supreme Court of New South Wales – whether the administration of justice is better served by retaining or transferring the proceedings – how the convenience of the parties should be considered in the exercise of the Court’s discretion under the Jurisdiction of Courts (Cross-Vesting) Act, s 6(3).

CIVIL PROCEDURE – funds in Court – funds paid into Court from the proceeds of sale of the real property – first defendant was the registered proprietor of property who is now entitled at law to the funds in Court – lump sum costs order previously made against the first defendant – but the funds in Court are the subject of a dispute in the Family Court of Australia between the first defendant and his former wife, the second defendant – whether the funds in Court should be paid out to the plaintiffs in satisfaction of the lump sum costs order before the resolution of the proceedings in the Family Court of Australia.

HIGH RISK VIOLENT OFFENDER – civil law – Crimes (High Risk Offenders) Act 2006 (NSW) – application for extended supervision order – index offence of recklessly causing grievous bodily harm - question as to duration of order and appropriate conditions – order made for a period of two years

PROCEDURE – civil procedure – where plaintiff claims damages for malicious prosecution – where plaintiff and defendant have issued subpoenas to third parties – whether subpoenas have legitimate forensic purpose

PRACTICE AND PROCEDURE – plaintiff refuses to submit to further medical examination – plaintiff required to submit to a medical examination as a condition of further pursuing proceedings.

CRIME – appeal – appeal against conviction – tendency evidence – misdirection requiring jury to be satisfied that tendency evidence called by defence be “likely” before it could be used to rebut Crown’s tendency evidence – new trial ordered

CRIMINAL LAW – application for leave to appeal against sentence – alleged error in assessment of objective seriousness and alleged manifest excess CRIMINAL LAW – sentence – alleged disparity

CRIME — Appeals — Appeal against conviction — Application of proviso — where Crown Prosecutor referred to evidence inadmissible against appellants in closing address — where that reference occasioned a miscarriage of justice — whether it occasioned a substantial miscarriage of justice — whether Court of Criminal Appeal satisfied that the guilt of the accused has been proved to the criminal standard CRIME — Appeals — Appeal against sentence — Manifest excess — where original intention was to commit grievous bodily harm not to kill — place of intention in assessment of objective seriousness of murder SENTENCING — Relevant factors on sentence — Co-offenders — Parity — where partner in joint criminal enterprise received a lesser sentence than appellant — where main subjective difference between co-offenders was a significant cognitive disorder — whether that subjective difference justified disparity in sentences

CRIMINAL LAW – CONVICTION – Stated case from District Court – prohibition on licensed wagering operators publishing any gambling advertisement that offers any inducement to participate, or to participate frequently, in any gambling activity – odds boost product/feature – three questions of law – meaning of “offers an inducement” – statutory construction – plain and ordinary meaning – Macquarie Dictionary – context – legislative purpose of amendments – explanatory note – features of gambling activity legitimately advertised WORDS AND PHRASES – “inducement” - “offers an inducement” – “betting information” – “odds boost products” – “advertising betting information” – any betting information” – “gambling advertising” – “licensed betting service providers” – “nature and characteristics” of product

CRIMINAL LAW – sentence – charges of reckless wounding in company – whether sentencing judge erroneously had regard to injuries that might have exposed the applicant to the more serious offence of wounding with intent to inflict grievous bodily harm contrary to the principle stated in De Simoni – parity

PROCEDURE - Miscellaneous procedural matters – Declarations – By consent – Declaration to be confined to trial judge’s finding

REAL PROPERTY – Possession List – claim by registered proprietor against licensor – defence filed does not plead a defence to claim – defence struck out – leave to re-plead

LAND LAW – contract for sale of land – claim for specific performance – whether oral contract for sale of land concluded – defendant subsequently signs written note referring to agreement to “transfer the ownership” of property – whether written note satisfies writing requirements under Conveyancing Act 1919 (NSW), ss 23C(1)(a) and 54A – doctrine of part performance – whether sufficient acts of part performance – plaintiff goes into possession, pays outgoings and undertakes renovations – sufficient acts of part performance established – whether specific performance should be refused on the basis of unfairness or hardship – specific performance granted

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — whether evidence of common intention as to allocation of beneficial interests rebutted presumption of resulting trust EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — presumption of resulting trust — whether mortgage repayments affect beneficial interests as between contributors — whether parties intended to acquire property burdened by mortgage or unburdened of all encumbrances — common intention EQUITY — Trusts and trustees — Resulting trusts — where use of beneficial interest is subject to personal obligation or another beneficial interest — meaning of phrase “immediate and unconditional” LAND LAW — Co-ownership — Rights between co-owners — right to possession

COSTS AND CONSEQUENTIAL ORDERS – where appeal allowed in part – where parties agreed as to orders giving effect to judgment of the Court of Appeal save as to costs of first instance proceedings – where necessary to re-exercise discretion as to those costs – respondent to pay 90% of appellant’s costs of proceedings at first instance

NOTICE OF MOTION – UCPR 36.15 – application to set aside judgment or order given or entered irregularly, illegally, or against good faith – proceedings discontinued – no irregularity, illegality or want of good faith demonstrated – application refused – application for access to sound recordings – administrative procedure – application refused – notice of motion dismissed

CRIMINAL PROCEDURE – warrants – documents ordered to be lodged with the court as a condition of bail – request by police for inspection and copying of documents in court – solicitor charged with offences relating to his legal practice – objection to inspection of hard drive of computer on the grounds of relevance and client privilege

CORPORATIONS – Deregistration – Orders sought in relation to deregistered company. PRACTICE AND PROCEDURE – Failure to comply with directions of the court – whether court should dismiss proceedings under Civil Procedure Act 2005 (NSW) s 61 – where multiple extensions of time to comply with directions granted to plaintiff– where plaintiff has failed on multiple occasions to comply with directions

EMPLOYMENT LAW - the contract of service and rights, duties and liabilities as between employer and employee - duration and termination of employment – interlocutory application to restrain termination – no prima facie case of threatened breach

JUDGMENTS AND ORDERS – enforcement – judicial review proceedings – order in the nature of certiorari – further order “remitting…for redetermination” – whether in the nature of mandamus – whether UCPR r 36.5 applies to fix a time for the redetermination – where summons for leave to appeal filed out of time – whether time should be fixed for redetermination

COSTS – determination of costs incidental to costs submissions

ORDERS – determination as to form of orders to effect earlier judgment – where priority regime prescribed by the Corporations Act 2001 (Cth) does not apply to the payment of the debts of a partnership from partnership assets – where partners to a partnership are corporations that are in liquidation – whether should order that ss 556 and 561 of the Corporations Act do not apply to payment of the debts of a partnership from partnership assets