Cases and authorities

CORPORATIONS – external administration – application for directions by receivers – receivers seeking order to sell or dispose of real property belonging to a company – where company acts as trustee of a unit trust – where company owes debt to New South Wales Crime Commission – where unitholders of the trust cannot be identified – orders made allowing the properties to be sold on terms that a further order is required in order to distribute the proceeds of sale

COSTS – proceedings resolved without a determination on the merits – plaintiff required to commence the proceedings to protect her rights under an agreement with first defendant – first defendant acted unreasonably – indemnity costs ordered

CIVIL PROCEDURE – pleadings – application for leave to file an amended defence – where trial date fixed a year earlier – application brought late with little satisfactory explanation beyond the change of legal representation – weakness of proposed defences – risk of expanding hearing beyond current trial estimate PROCEDURE – subpoenas – application to set aside subpoena – subpoena too broad or poorly framed

CORPORATIONS – External administration – Liquidation – Liquidators’ applications – Application by liquidators of corporate trustee for directions consequent upon previous judgment – Date as at which client entitlements are to be ascertained – Whether the non-Equities/ETOs CSAs should be pooled, or transactions between them reversed – Whether funds in trust accounts in excess of trust obligation should be remitted to secured creditor – Whether liquidators justified in adopting process for claims and distribution – Whether appropriate to approve quantum of remuneration and disbursements in connection with distribution process in advance CORPORATIONS – External administration – Liquidation – Liquidators’ remuneration – Where questions of reasonableness and proportionality emerging – Preferable to consider upon completion of administration COSTS – Proceedings by trustee for advice – Costs of all parties to be paid out of trust funds, pro rata according to the value of assets in the funds

COSTS – proceedings resolved without a determination on the merits – proceedings commenced following service of lapsing notice in relation to a caveat – defendants effectively capitulate in the face of plaintiff’s claim – appropriate that defendants pay plaintiff’s costs, but not on an indemnity basis.

CONTEMPT – interim non-publication orders – review of orders – primary objective of safeguarding the public interest in open justice – question of necessity of final order in more limited terms than earlier orders

EVIDENCE – Hearsay – exceptions to hearsay rule – admissions – proceedings brought by the former clients of an investment advisory firm against the insurers of the deregistered firm pursuant to Corporations Act 2001, s 601AG – whether statements made by the principal of the firm to the clients can be admitted into evidence against underwriters – whether the statements made by the principal are hearsay – whether they are admissions that are admissible against underwriters in Corporations Act, s 601AG proceedings – Evidence Act 1995, ss 81 and 87.

LAND LAW – licences – written agreement for defendant to occupy part of premises for one year with option to renew for further three years – whether agreement included additional oral terms – whether option to renew could be validly exercised by notice given verbally – rent review clause too uncertain to be enforceable – unenforceability of rent review clause does not render the option unenforceable – option validly exercised – whether further agreement reached as to occupation of additional space in the premises – defendant not entitled to occupy additional space and exclude plaintiff from premises – defendant liable to pay outstanding rent and damages for trespass

COSTS – costs of trial – where trial judge entered verdict and judgment for plaintiffs – where appeal and cross-appeal allowed – where damages payable by defendant reduced by approximately 60% – where general rule that costs follow the event – where multiple issues raised at trial – whether “late amendment” principle applied – whether defendant succeeded on dominant issue on appeal – whether plaintiffs engaged in disentitling conduct COSTS – costs of appeal – where appellant succeeded on main issue argued on appeal – where respondent given leave at conclusion of appeal hearing to file cross-appeal – where substantial post-hearing submissions – where damages payable by appellant reduced by approximately 60% – where appeal and cross-appeal allowed – whether costs of appeal and cross-appeal follow the event PROCEDURE – payment into court – where moneys paid into court as security for costs of appeal – whether plaintiffs entitled to “stop order” pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 41.16(2)(b) – whether moneys paid “as security for costs” can be paid out for a different purpose WORDS AND PHRASES – “event” – Uniform Civil Procedure Rules 2005 (NSW), r 42.1

STATUTORY INTERPRETATION – primacy of text –structure of legislation – construction of provision containing zeugma – no wider context or extrinsic factors to be considered – Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; [2005] HCA 58 applied VALUATION – land value – Valuation of Land Act 1916 (NSW), 6A – construction of, and relationship between, s 6A(1) and s 6A(2) – utility of references to separate “s 6A(1)” and “s 6A(2)” valuations VALUATION – land value – where actual use of land prohibited by zoning but permitted as existing use – contaminated land – whether trial judge erred by disregarding costs of remediation – whether trial judge erred by disregarding location in “blast zone” – whether error to add uplift to amount derived from sales of land of comparable value to account for existing use rights

APPEAL – workers compensation – “disease injury” – appeal against appellate decision of Deputy President – whether Deputy President misapprehended what had been put to the Arbitrator – whether Deputy President failed to exercise jurisdiction APPEAL – workers compensation – “disease injury” – appeal against appellate decision of Deputy President – whether appellant had suffered an “injury” – whether Deputy President had failed to address substance of appeal ground

CIVIL PROCEDURE – appeal – security for costs – whether appellant likely to meet an adverse costs order – appellant a trustee – director offering security over property CIVIL PROCEDURE – appeal – application to call further evidence – likely effect on costs of appeal – direction that motion be heard before the date for hearing the appeal

CIVIL PROCEDURE – Parties – Vexatious litigants – Stay of proceedings – leave to appeal from Vexatious Proceedings Order – Declaration that balance of proceedings be dismissed pursuant to Vexatious Proceedings Act 2008 (NSW), s 13 CIVIL PROCEDURE – referral for pro bono assistance – whether to make an order under UCPR, r 7.36 referring applicants to the registrar for referral for pro bono assistance COSTS – Party/Party – Court’s discretion

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

RESTRICTED PREMISES – application for rescission of declaration that premises are restricted premises – Restricted Premises Act 1943 (NSW) – whether rescission can be ordered – need for applicant to show satisfaction with requirements of the Act – rescission of declaration made

RESTRICTED PREMISES – application for rescission of declaration that premises are restricted premises – Restricted Premises Act 1943 (NSW) – whether rescission can be ordered – need for applicant to show satisfaction with requirements of the Act – rescission of declaration made

DEFAMATION – imputations – whether reasonably capable of being conveyed

APPEAL FROM LOCAL COURT – alleged denial of procedural fairness – challenges to interlocutory decisions of magistrate of procedural nature – no warrant for grant of leave

CORPORATIONS — Voluntary deregistration — Reinstatement — Where final orders made with respect to the shareholding of the company — Where company subsequently deregistered — Requirements for voluntary deregistration not met — Corporations Act 2001 (Cth) s 601AH(2) — “Person aggrieved by the deregistration” — Whether “just” that company be reinstated — Order for reinstatement made. CORPORATIONS — Dissolution — Reinstatement — Ancillary orders under Corporations Act 2001 (Cth) s 601AH(3)(d) — Scope of power to make ancillary orders — Orders to enforce orders in earlier proceedings — Order to alter shareholding — Order to alter office holders — Order to alter registered office — Order to repeal constitution — Ancillary orders made. CIVIL PROCEDURE — Service — Substituted service — Whether document cannot practicably be served — Difficulties effecting service in earlier proceedings — Orders for substituted service made in earlier proceedings — Same orders for substituted service made.

CRIME – sentence – manslaughter by dangerous and unlawful act – death of baby caused by shaking – consideration of weight to be given to history stated to psychiatrist and psychologist where offender did not give evidence – consideration of relevance of the possibility of deportation

AGENCY – powers of attorney – application for advice and direction under s 38 of the Powers of Attorney Act 2003 (NSW) – where attorneys appointed by enduring power of attorney have personal interest in any decision made in respect of the exercise of options by principal – where evidence supports the attorneys’ view that exercise of options is not in the principal’s best interests – whether the Court will give the advice and direction sought.

TRUSTS – appointment of trustee – where sole member of trust resolved to remove former trustee and resolved to appoint replacement trustee in accordance with express power contained in trust deed – whether declaration should be made as to validity of appointment of trustee of the trust – where vesting order under s 71 of the Trustee Act 1925 (NSW) sought in respect of unidentified property held by previous trustee subject to trust – whether vesting order should be made. PRACTICE AND PROCEDURE – joinder of parties – where former trustee of trust made substantial loan to company in liquidation – whether replacement trustee of trust should be joined as a defendant in substantive proceedings.

REAL PROPERTY - imposition of easement by court - s 88K of the Conveyancing Act 1919 (NSW) – where the grant of easement is unopposed - whether grant of easement is ‘reasonably necessary’ - whether grant of easement is consistent with the public interest – where quantum of compensation to be paid is agreed between the parties

CRIMINAL LAW - application under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”) for an inquiry into the applicant’s conviction and sentence for child sexual assault offences - where applicant convicted and sentenced for 11 counts of aggravated sexual assault and aggravated indecent assault against his stepdaughter - where the Court of Criminal Appeal had previously dismissed the applicant’s conviction appeal - whether the Court should refuse to consider the application under s 79(3) of the CAR Act - consideration of the application in accordance with s 79(1)-(2) of the CAR Act - whether it appears that there is a doubt or question as to the applicant’s guilt or as to any mitigating circumstances in the case

EQUITY – presumption of advancement – mother causes property to be purchased jointly with son – evidence insufficient to rebut presumption

CORPORATIONS – deregistration – application to reinstate company – company in liquidation at the time of deregistration – whether liquidator at the time of the company’s deregistration should be re-appointed – where liquidator enters into an agreement with former creditor of the company to sell property which was discovered after the company’s deregistration – where agreement potentially gives a particular creditor an advantage over other creditors of the company – where agreement potentially fetters liquidator’s duties under the Corporations Act 2001 (Cth) – suitability of re-appointment CORPORATIONS – deregistration – application to reinstate company – suspension of limitation periods – whether order under Corporations Act 2001 (Cth), s 601AH(3)(d) should be made to suspend limitation period – order not necessary

ADMINISTRATIVE LAW – Judicial Review – Where Roads and Maritime Services (“RMS) cancelled plaintiff mechanic’s examiner’s authority to test and check vehicles for registration purposes – Where appeal against RMS decision dismissed by the Local Court – Whether Magistrate denied procedural fairness by making findings adverse to the plaintiff contrary to concessions by the RMS without adequate notice – Whether Magistrate denied procedural fairness by making adverse findings beyond the breaches alleged against the plaintiff in the show cause letter JURISDICTION – Appeals – Whether privative clause under s 270 of the Road Transport Act 2013 (NSW) has the effect of removing right of appeal from the Local Court to the Supreme Court against Local Court determinations under s 267(1) of the Road Transport Act – Whether s 267(1) matters are properly heard in the General Division of the civil jurisdiction of the Local Court or within the Court’s special jurisdiction

TORTS – intentional torts – personal injury –allegations of historic sexual and physical child abuse – damages sought for psychiatric injury and consequential loss EVIDENCE – civil standard of proof – approach to assessment of credibility – burden of proof to the Briginshaw standard – Evidence Act 1995, s 140(2)

JUDICIAL REVIEW – review of decision of Judicial Commission Conduct Division to conduct a hearing in public – meaning of “hearing” – relevance of open justice principle – whether criteria in Guidelines promulgated by Judicial Commission create legal obligations – Judicial Officers Act 1986 (NSW), ss 10, 24 JUDICIAL OFFICERS – complaints concerning ability or behaviour of judicial officer – complaints referred to Judicial Commission Conduct Division – decision to conduct hearing – whether hearing should be held in private or in public – relevant criteria WORDS AND PHRASES – “hearing” – “public interest” – “should consider”

EMPLOYMENT AND INDUSTRIAL LAW – disability compensation under Crown Employees (Police Officers Death and Disability) Award 2005 – procedural fairness – whether self-represented litigant denied procedural fairness EQUITY – disability compensation under Crown Employees (Police Officers Death and Disability) Award 2005 – unconscionability - whether conduct of NSW Police in enforcing Deed unconscionable – whether NSW Police owed appellant a fiduciary duty – whether breach of fiduciary duty TORTS – disability compensation under Crown Employees (Police Officers Death and Disability) Award 2005 – whether NSW Police owed appellant a duty of care – whether breach of duty of care CONTRACTS – disability compensation under Crown Employees (Police Officers Death and Disability) Award 2005 – whether Deed contravened Contracts Review Act 1980 (NSW)

CRIMINAL LAW – leave to appeal and appeal against sentence – leave to bring application out of time granted – whether sentencing judge failed to take proper account of the applicant’s, remorse, prospects of rehabilitation and presentencing and psychiatrist reports – no error shown – whether sentence was manifestly excessive – leave to appeal refused

SENTENCING – appeal against sentence – non-parole period – ratio of the non-parole period and balance of term – special circumstances – whether sentencing judge wrongly focused on whether offender needed extended supervision period – whether sentencing judge assumed treatment available in custody – whether special circumstances should have been found

CRIMINAL LAW – Crown appeal against sentence – s 16AC of Crimes Act 1914 (Cth) – applicant received discount for future assistance – whether applicant’s failure to comply entire or partial – whether failure to comply with undertaking without reasonable excuse – review of authorities – no reasonable excuse for failure to comply – partial failure to comply with undertaking found – partial compliance effectively worthless – discretion exercised to remove entire discount for future assistance

CRIME – sentence appeal – supply commercial quantity of prohibited drug – sentenced to 10 years imprisonment with 5 year non-parole period – offender with history of drug supply convictions – contended that assessment of objective seriousness in midrange was erroneous – ground lacks merit– whether sentence manifestly excessive – starting point before 25 per cent discount of 13 years 4 months erroneously excessive

CRIMINAL LAW – sentence appeal – dishonestly obtaining financial advantage from the Commonwealth by deception – attempting to dishonestly obtain financial advantage from the Commonwealth by deception – s 11.1 – s 134.2(1) Criminal Code 1995 (Cth) – pleas of guilty – whether her Honour failed to take into account the applicant’s pleas of guilty – s 16A(2)(g) Crimes Act 1914 (Cth) – utilitarian value – whether the sentence imposed was manifestly excessive

PRACTICE AND PROCEDURE – application for stay of proceedings pending determination of taxpayer’s objections to assessment made pursuant to s 167 of the Income Tax Assessment Act 1936 (Cth) – stay refused

PRACTICE AND PROCEDURE – whether adjournment of final hearing should be granted – adjournment refused – matter dismissed for want of due despatch

COSTS – departing from general rule – first to tenth defendants’ application for indemnity costs based on Calderbank offer – offer not accepted by plaintiff – proceedings brought in name of plaintiff and conducted by third party – third party is effectively the plaintiff – offer provided for payments to be made to third party – plaintiff unsuccessful – plaintiff in position to make reasonable assessment of its prospects at time offer was made – plaintiff unreasonably rejected Calderbank offer COSTS – departing from general rule – plaintiff’s application to limit the costs of eleventh and twelfth defendants to the proportion of costs incurred by each of the first to tenth defendants – the eleventh and twelfth defendants represented by solicitors and counsel separate from those representing the first to tenth defendants – plaintiff submitted that retaining separate legal representation was unreasonable where all defendants had same interests and s 66ZL(8) of the Conveyancing Act 1919 (NSW) made the plaintiff prima facie liable for the defendants’ costs – eleventh and twelfth defendants did not act unreasonably in retaining separate legal representation in the absence of any objection raised by the plaintiff

CRIMINAL LAW – sentence – murder of two victims – murders occurred in one course of criminal conduct – guilty pleas entered – objective seriousness of offence – offender’s moral culpability – deterrence – aggravating and mitigating matters – principle of totality – victim impact statements – no finding of special circumstances – discount for guilty pleas – aggregate sentence imposed

CRIME – bail – release application – applicant convicted of offences relating to enrolment of voters at false addresses prior to local council election in which applicant was a candidate – bail sought on basis of pending appeal to District Court and need to deal with bankruptcy and bipolar disorder – applicant not legally represented in previous application to same court – – whether appeal had reasonably arguable prospect of success in circumstances where applicant intended to lead fresh evidence – unacceptable risk evinced by numerous recent offences in custody and breaches of bail conditions – bail refused

CIVIL PROCEDURE – application to vacate hearing date to permit counsel to provide merit advice in connection with application for Legal Aid – application to vacate hearing refused

DEFAMATION – offers of amends – where defendant made offer of amends pursuant to Pt 3, Div 1 of the Defamation Act 2005 (NSW) including offer of compensation and stated offer was “open to be accepted until commencement of the trial, unless withdrawn in writing” – where plaintiff made offer of compromise pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 20.26, seeking damages in greater amount than compensation in offer of amends – where offer of amends not expressly withdrawn – where plaintiff accepted offer of amends prior to trial – whether offer of compromise constituted rejection of offer of amends – whether offer of amends validly accepted STATUTORY INTERPRETATION – whether Pt 3, Div 1 of the Defamation Act 2005 (NSW) departs from the general law of offer and acceptance STATUTORY INTERPRETATION – whether intersection between statutory schemes established by Pt 3, Div 1 of the Defamation Act 2005 (NSW) and offer of compromise provisions in UCPR Pt 20, Div 4 WORDS AND PHRASES – “withdrawn” – Defamation Act 2005 (NSW), s 16

CRIME – murder charge – fitness to stand trial – consideration of the Presser criteria – psychiatrists in agreement on unfitness – held unfit to be tried – referred to Mental Health Review Tribunal

CORPORATIONS – winding up – statutory demand – application for extension of time to comply with statutory demand – extension of time to pursue an appeal – prospective appeal raises no issue of principle – extension of time granted on terms that applicant undertake to commence and prosecute the appeal proceeding with all due dispatch and to provide security for the defendant's costs of the appeal

COSTS – party/party - exceptions to general rule that costs follow event - offers of compromise/Calderbank offers - whether Calderbank offers warrants indemnity costs - where neither party wholly successful

APPEAL – application for leave to appeal – less than $100,000 in issue – motor vehicle accident – no issue of principle or clear injustice – leave refused

APPEAL – stay application refused in part – security for costs application refused – security order and absence of stay likely to render appeal nugatory