Cases and authorities

GUARANTEE AND INDEMNITY — Guarantor — Rights against debtor — Right of indemnity — Whether the plaintiff as a guarantor and third-party chargee should be indemnified by the defendant debtor in the amount of $12,000,000 in respect of the liability of the defendant to a creditor GUARANTEE AND INDEMNITY — Contract of guarantee — Deed — Construction GUARANTEE AND INDEMNITY — Contract of guarantee — Waiver — Debtor’s rights to enforce waiver of indemnity given by guarantor in general terms — permanent and irrevocable waiver — whether the plaintiff is disentitled from seeking indemnity from the defendant GUARANTEE AND INDEMNITY — Contract of guarantee — Privity of contract GUARANTEE AND INDEMNITY — Contract of guarantee — Contractual intention GUARANTEE AND INDEMNITY — Contract of guarantee — Enforcement — whether the defendant is entitled to enforce a term in a multi-party deed in circumstances where the clause is expressed in general terms without identifying which of the parties to the deed is entitled to enforce it — whether every party to a multi-party deed is entitled to enforce every term in it — the waiver of indemnity was a covenant made by the guarantor in favour of the creditor alone and was not intended to be enforceable by the debtor — the debtor is not entitled to enforce the waiver of indemnity GUARANTEE AND INDEMNITY — Contract of guarantee — Construction — Rules of construction — whether the waiver of indemnity given by the guarantor should be read down to cease operating after the creditor has been fully repaid GUARANTEE AND INDEMNITY — Guarantor — Right to contribution — whether the guarantor is entitled to contribution from the debtor GUARANTEE AND INDEMNITY — Breach — Implied Term — whether the guarantor may recover damages from the debtor for breach of implied terms — whether there was an implied term that the debtor would indemnify the guarantor — whether the guarantor is entitled to recover damages from the debtor for breach of an implied term to act in good faith DEBT — Money had and received — whether the plaintiff is entitled in debt to the return of money as money had and received — money paid by the plaintiff to the defendant without consideration and in the absence of any objective intention that the defendant would be entitled to retain the money — whether a payment made by the plaintiff to the defendant under a sub-underwriting agreement should be repaid because of a failure of consideration — whether a payment made by the plaintiff to the defendant was a loan and that the plaintiff is entitled to repayment of the balance outstanding GUARANTEE AND INDEMNITY — Contract of guarantee — Set-off EQUITY — General principles and maxims — Set-off — whether the defendant is entitled to set-off debts it owes to the plaintiff — the defendant is not entitled to set-off debts it owes to the plaintiff RESTITUTION — Nature of restitutionary liability — Unjust enrichment

ESTOPPEL – equitable estoppel – general principles and scope – rights arising out of deed – whether valid variation of deed by oral agreement or estoppel – whether estoppel operates in the face of a deed – whether plaintiff should be estopped from relying on term of a deed of family arrangement

PRACTICE AND PROCEDURE – applications – pleadings and particulars – application to amend statement of claim – strike out and summary judgment application – statement of claim pleaded claim concerning a director’s duty to prevent insolvent trading by company under Corporations Act 2001 (Cth), s 588G – where statement of claim did not plead how and when company incurred relevant debts – where statement of claim did not particularise the nature of reliance on the presumption of insolvency under Corporations Act 2001 (Cth), s 588E(4) PRACTICE AND PROCEDURE – applications – security for costs order – general principles as to ordering security for costs against plaintiff liquidator – litigation funding – solicitors for the liquidator conducting proceedings on a “no win, no fee” basis PRACTICE AND PROCEDURE – applications – security for costs order – general principles as to ordering security for costs against plaintiff liquidator – liquidator and company as co-plaintiffs – whether the company is a necessary party to voidable transaction and insolvent trading claims under the Corporations Act 2001 (Cth) – discussion of whether the joinder of a liquidator as co-plaintiff prevents the Court from ordering security even if co-plaintiff company is insolvent PRACTICE AND PROCEDURE – costs – costs payable forthwith – difficulty in assessing costs in circumstances where statement of claim struck out but with leave for the plaintiff to re-plead claim

CRIME – sentencing – manslaughter – offender with schizophrenia – substantially impaired by abnormality of mind – offender bashed sleeping mother to death with hammer – offender with auditory hallucinations telling him to kill his mother to save her soul – not appropriate to make findings as to objective seriousness by comparison to a scale – no double counting in taking into account mental illness in sentencing – significantly reduced need for denunciation, retribution, personal or general deterrence – offender genuinely remorseful – low risk of reoffending – special circumstances to warrant reduction of non-parole period – 25 per cent discount for plea of guilty.

TORTS – Negligence – Motor vehicle accident – whether primary judge erred in accepting evidence that the respondent was in the car at the time of the accident – whether fact finding process of primary judge miscarried

APPEALS – civil procedure – preliminary discovery – Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1) – where application dismissed for failure to satisfy the Court of entitlement to make a claim for relief – whether dismissal involved a determination of the merits of the claim at an interlocutory stage CIVIL PROCEDURE – preliminary discovery – production of documents concerning negotiations leading to acquisition of company – applicants’ entitlement to disclosure – Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1) – whether discovery may be given of documents relating only to quantum

CONTRACTS – construction – contract for storage and sale of wine on payment of commissions – whether term of contract that commission payable at a fixed rate of 15% over term of contract – whether appellant entitled to vary rate at its discretion CONTRACTS – variation – mutual assent – knowledge of increased commission rates – whether conduct of respondent in paying increased commission rates manifested acceptance of variation CONTRACTS – variation – consideration – where benefits of contract foregone and liability incurred for increased seller’s commission EVIDENCE – Browne v Dunn – documentary evidence – where witness on notice of allegation upon which party intends to rely – whether rule in Browne v Dunn requires cross-examination of witness – whether judge obliged to accept evidence on which no cross-examination EVIDENCE – opinion evidence – opinion rule –– tables summarising and analysing invoices – whether opinion rule applied –– Evidence Act 1995 (NSW), s 79 CIVIL PROCEDURE – Court of Appeal – cross-appeal – whether notice of cross-appeal required – Uniform Civil Procedure Rules 2005 (NSW), r 51.17 CIVIL PROCEDURE – Court of Appeal – notice of cross-appeal – form – Uniform Civil Procedure Rules 2005 (NSW), r 51.18

CRIME – appeal against sentence – possession of child abuse material – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3) – mitigating factors – remorse – whether denial of procedural fairness – prospects of rehabilitation – whether sentence manifestly excessive

CRIME – appeal – conviction – whether error in declining to leave defence of mental illness to the jury – whether failure to do so resulted in a substantial miscarriage of justice

APPEAL – appeal against conviction – robbery in company – circumstantial case – robbers caught on CCTV – clothing not found – part of proceeds found in accused’s unit – sole occupation not established – no benefit enjoyed by jury in assessing evidence –whether verdict unreasonable and not supportable on evidence CRIME – conviction appeal – applicant convicted of robbery in company – whether open to jury to be satisfied beyond reasonable doubt that applicant guilty

BAIL – release application – show cause offence – murder – joint criminal enterprise – where applicant previously convicted – where conviction overturned – where new trial to be held – where significant delay – where Crown case could not be described as weak – cause not shown – bail refused

PROCEDURE - Miscellaneous procedural matters - Other matters – Whether proposed amendment futile – Whether statement of claim discloses cause of action – No issue of principle

BAIL – release application – where concern that the applicant will fail to appear, pose a risk to the victim or commit a further offence – where applicant suffers from psychiatric conditions – where applicant currently serving a fixed term sentence – where the grant of bail may result in the applicant being given a minimum security classification and therefore allow him to access programs within the Corrective Services system to assist with his psychiatric conditions

TRUSTS – charitable trust – cy-près scheme – trust established in testator’s will for most proficient boy and girl at Lismore High School, so long as parents were not Roman Catholic – scholarships awarded for many years subject to that condition – school refused to administer trust in 2004 – trustee ceased making distributions in 2009 – trustee applied for cy-près scheme in 2017 after years of delay – whether general charitable intention – meaning of “spirit of the trust” – relevance of gift over – construction of ss 9 and 10 of Charitable Trusts Act 1993 (NSW) considered – scheme removing Roman Catholic condition approved – whether scheme should operate retrospectively – meaning of “retrospective” – directions made for scheme to apply for 2010 to date – similar scheme made in relation to trust for children’s home removing Roman Catholic condition TRUSTS – charitable trust – trust for unincorporated organisation – organisation subsequently incorporated – whether trust for purpose or trust for person – whether non-charitable purposes invalidated trust – Charitable Trusts Act 1993 (NSW) s 23 considered and applied TRUSTS – practice – costs – meaning of order that trustee’s costs be paid on an indemnity basis from trust assets – whether Attorney General’s costs should be met from trust fund on indemnity basis TRUSTS – practice – distinction between summons for advice and application for cy-près scheme – obligations of trustee in making application

CONTRACTS — Buyback agreement — a contract between the parties for the repurchase of a legal practice by the previous vendor CONTRACTS — Undue influence — whether an agreement should be set aside on the basis of undue influence CONTRACTS — Unconscionable conduct — Special disadvantage — whether an agreement should be set aside on the basis of the defendant taking advantage of a special disadvantage of the plaintiff — the defendant found to have taken advantage of a special disadvantage suffered by the plaintiff — the plaintiff is entitled to an order setting aside the agreement RESTITUTION — Ineffective transactions — Contracts rescinded or set aside — Restitutio in integrum — whether setting aside the agreement will achieve what is practically just between the parties to restore them to the position they were in before the agreement TORTS — Negligence — Professional Negligence — Solicitor and Client — No formal retainer — the plaintiff solicitor alleged that the defendant solicitor failed to advise the plaintiff about personal mortgages in various loan agreements — the plaintiff has not established negligence claims against the defendant PROFESSIONS AND TRADES — lawyers — duties and liabilities — solicitors are not ordinarily required to advise on the financial or business value of a transaction — a solicitor’s duty to advise may in some circumstances extend to the financial or business value of a transaction CORPORATIONS — Membership — Transfer of shares — Disposal or transfer without consent — whether a share transfer should be declared void and of no effect CORPORATIONS — Membership — Register — Rectification of register CORPORATIONS — Shares — Rectification of share register — whether the plaintiff is entitled to be registered as a shareholder in the company — whether the register of members of the company should be rectified — the plaintiff is entitled to be reinstated as the holder of one of the two shares in the company EVIDENCE — Documentary Evidence — Public Documents — ASIC Documents — Evidentiary effect of ASIC extracts and documents lodged with ASIC — ASIC extract as prima facie evidence of the matters stated in it

ADMINISTRATIVE LAW - judicial review - whether decision of Motor Accidents Authority Review Panel on causation infected by legal error – asserted denial of procedural fairness – question of error in reliance of Review Panel on documentary record – question of adequacy of reasons – whether examination conducted by two of the three assessors who comprised the Review Panel is invalid under s 63 of Motor Accidents Compensation Act 1999 (NSW) - no error disclosed - summons dismissed

PRACTICE – summary dismissal – primary judge dismissed proceedings but granted leave to commence fresh proceedings if plaintiff could show they would be conducted efficiently – fresh proceedings prima facie statute-barred – statute of limitations not raised before primary judge – appeal allowed, orders set aside and new orders made staying proceedings until plaintiff could show they would be conducted efficiently

CONTRACT – formation – where informal agreement that the appellant be remunerated for accounting services by 10% share in the profits of the respondents’ businesses – whether agreement varied to include additional remuneration by 10% share in the capital growth of the assets of those businesses – whether primary judge erred in making certain findings of fact – whether despite absence of particular offer and acceptance parties varied informal agreement by conduct to provide for a capital growth share term COSTS – where cross-claim under Contracts Review Act 1980 (NSW) dismissed because contract to which relief directed not made out – whether primary judge erred in ordering respondents to pay costs of cross-claim where its merits not finally determined

EVIDENCE — admissibility of two items tendered by the Crown — items related to lawful search of accused’s residence pursuant to a search warrant — both items relevant — both admitted as exhibits

COSTS - Security for costs - Power to order - Plaintiff fails to make payments in accordance with tranches ordered - Application for additional security – No issue of principle

COSTS — Party/Party — Payable out of a fund — Deceased estate COSTS — Party/Party — Bases of quantification — Indemnity basis — the costs of the administrator of the estate to be paid out of the estate on the indemnity basis COSTS — Party/Party — Court’s discretion — No order as to costs in favour of or against the applicant or first respondent

COSTS — Party/Party — Bases of quantification — Ordinary basis COSTS — Party/Party — Bases of quantification — Indemnity basis

CRIMINAL LAW – trial by jury – count of murder – uncontroversial discharge of excluded juror – whether to continue trial with fewer than 12 jurors – discussion of relevant considerations – trial to proceed before jury of 11

LAND LAW – contracts for the sale of land – rescission – “off the plan” contracts – contracts provide for mutual rights of rescission if strata plan not registered by a sunset date – delay caused by various factors including insolvency of builder and failures by vendor to cause development to be carried out with all due expedition – vendor enters into agreement with third party which obliges third party to complete construction – third party effectively assumes the role of developer – vendor no longer exposed to financial risks of development – vendor seeks permission to rescind contracts under s 66ZL of Conveyancing Act 1919 (NSW) – whether just and equitable in all the circumstances to make orders permitting rescission – lots the subject of the contracts have increased in value – no financial detriment to vendor if permission to rescind not given – orders permitting rescission not made

BAIL – release application – where previous application refused by the Court – where change in circumstances – where applicant has obtained a placement for full time residential drug rehabilitation – where unacceptable risk that the applicant will commit a serious offence, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence – bail refused

CIVIL PROCEDURE – Summary disposal – Judgment for the plaintiff – No defence LAND LAW – Adverse Possession – Possessory application over Torrens title land – Real Property Act 1900 (NSW), ss 45D and 45E – whether the defendant was in possession of the property CORPORATIONS – Reinstatement – Corporations Act 2001 (Cth), ss 601AH and 1322 – whether Court can order an incorrect reinstatement by ASIC is void – whether the defendant has standing to make the application

HIGH RISK OFFENDER – serious sex offender — extended supervision order – whether Court satisfied to high degree of probability defendant poses unacceptable risk of committing another serious offence – defendant charged with numerous public masturbation offences – convicted of one serious sex offence – history of breaching parole and reporting obligations – risk assessment high or very high – diagnosed with psychopathy.

SENTENCING – dealing with Proceeds of Crimes – Crimes Act – s 193B(2) – possession of $12,900 – admission one-third derived from drug sales – finding offence “above the middle of any scale constructed for such offences” – little known about offence – finding not open – error – sentencing discretion re-exercised

PRACTICE AND PROCEDURE – pleadings and particulars

CIVIL PROCEDURE – Appropriate orders concerning the beneficial ownership of the Property following principal judgment – Transfer of title to the property and discharge of mortgage – Plaintiffs seek orders that the property be sold by public auction

PRACTICE AND PROCEDURE – Service of medical report outside of timetable – Whether exceptional circumstances established justifying grant of leave to rely on report – Exceptional circumstances not established – Report excluded – No point of principle

EVIDENCE – Expert opinion evidence – Whether opinions expressed were based upon the expert’s specialised knowledge – Where expert had training and experience in matters involving the management of horses – Where expert purported to express opinions regarding the duties and responsibilities of personnel employed and/or officiating at agricultural shows – Where expert purported to express opinions regarding the behaviour of children – Where the expert report which was sought to be tendered was bereft of the exposition of any reasoning process explaining the opinions which were expressed and to which objection was taken – Evidence excluded

MENTAL HEALTH – forensic patient – application for interim extension order – defendant with schizoaffective disorder – grandiose delusions regarding attractiveness to women – threshold requirements conceded – length of extension order

HIGH RISK OFFENDER – extended supervision order – whether Court satisfied to high degree of probability that offender poses unacceptable risk of committing another serious offence if not kept under supervision – offender convicted of manslaughter, armed robberies, and being accessory to murder – offender classified as at high risk of reoffending – diagnosis of antisocial personality disorder – gravity and consequences of possible criminal conduct contributors of unacceptable risk – offender overseas at time of hearing – overstayed stated return date – anticipated return now unknown – lawyers’ retainer terminated – agreed that judgment should be handed down forthwith.

MORTGAGE AND SECURITIES – proceedings for recovery of a debt by mortgagee and creditor – Farm Debt Mediation Act 1994 (NSW) – whether mortgagor satisfied definition of “farmer” – whether “farming operation” was conducted by mortgagor – whether definition of “share-farming agreement” satisfied and existence of which available on evidence – whether breeding snakes and rodents was a “farming operation” – appeal allowed WORDS AND PHRASES – “farming operation” – “share-farming agreement” – “farmer” – Farm Debt Mediation Act 1994 (NSW)

CHILD WELFARE – care and protection – risk of significant harm reports – whether reports admissible in criminal proceedings – whether person can be compelled to produce or give evidence regarding contents of report in criminal proceedings – whether court in criminal case can compel disclosure of identities of makers of report – Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 24, 29, 29(1)(f)(ii) CRIMINAL PROCEDURE – where accused in criminal trial sought disclosure of identities of persons who made risk of significant harm reports – whether District Court in criminal trial has power to order disclosure of identities – Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 24, 29(1)(f)(ii) STATUTORY INTERPRETATION – principle of legality – where statute prohibited disclosure of identity of makers of reports that child at risk of serious harm – where accused in criminal trial sought disclosure of identities – whether statute affected element of general system of law – whether principle of legality supported construing prohibition as not applicable to criminal proceedings STATUTORY INTERPRETATION – contextual construction – use of legislative history and extrinsic materials to determine legislative purpose WORDS AND PHRASES – “any proceedings” – “relating to” – “proceedings relating to”

CIVIL PROCEDURE – Judgment obtained by plaintiff upon the filing of an adjudication certificate under Building and Construction Industry Security of Payment Act 1999 (NSW) – Application by defendant to stay execution of judgment pending determination of proceedings in the Equity Division – Whether stay should be granted – Discretionary factors

CIVIL PROCEDURE – case management – application for additional time to file written submissions in appeal – whether it is in the interests of justice to grant additional time where applicants are self-represented and awaiting outcome of application for legal assistance

PRACTICE AND PROCEDURE – application for stay of proceedings in District Court – lack of reasonable time to prepare for District Court in absence of particular laptop – orders sought remedying situation – natural justice and/or orders matter initially for District Court – motion adjourned pending hearing of application in District Court

PRACTICE AND PROCEDURE – leave to commence proceedings under Felons (Civil Proceedings) Act 1981 (NSW) – plaintiff, who is a prisoner, seeks to sue for sexual abuse that is alleged to have occurred during a past period of juvenile detention – prima facie case – leave granted

PRACTICE AND PROCEDURE – leave to commence proceedings under Felons (Civil Proceedings) Act 1981 (NSW) – plaintiff seeks to sue for sexual abuse that is alleged to have occurred during a past period of juvenile detention – plaintiff no longer in custody – no utility in refusing leave – prima facie case – leave granted

PRACTICE AND PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) - cancellation of interstate restraining order – prosecution of underlying offence withdrawn – cancellation effected

CRIMINAL ASSETS – suspicion of serious crime related activities, namely cultivation of cannabis – suspicion of authorised officer is reasonably based – defendant charged with index offences – interim restraining order sought – Court granted orders sought

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 – appeal from Local Court – application for leave to appeal – application for leave to appeal out of time – where amount in issue is disproportionate to the costs incurred – where appeal is arguably not in the best interests of the parties

COSTS – Party/Party – General rule that costs follow the event – Application of the rule and discretion – General principles COSTS – Party/Party – Bases of quantification – Indemnity basis – Where the unsuccessful party fabricated evidence but the case would not have been avoided were it not for that delinquency

ADMINISTRATIVE LAW – judicial review – grounds of review – where application for exemption – where allegations of false or misleading statements in a material particular in relation to injuries, loss or damage – whether assessor asked and answered the correct question – whether assessor misconstrued the nature of the power he was required to exercise – whether assessor constructively failed to exercise jurisdiction – whether assessor made a final determination or a preliminary assessment of the allegations of false or misleading statements – whether claim not suitable for CARS assessment – error demonstrated – decision quashed and remitted

ADMINISTRATIVE LAW – Judicial Review – Appeal Panel Assessment – whether Appeal Panel failed to determine the appeal – whether Appeal Panel erred by directing a further medical examination without first finding an error in the Medical Assessment Certificate – whether the Appeal Panel mistook its jurisdiction – failure to consider secondary psychological injury – 65A of the Workers Compensation Act 1987 (NSW) – whether Appeal Panel erred in re-assessing the degree of Whole Person Impairment – failure of Appeal Panel to determine whether a deduction should be made for a pre-existing injury, condition or abnormality – s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – legal unreasonableness

CRIMINAL APPEAL – procedure – interlocutory appeal by prosecutor – judgment delivered on third day of trial – appeal to be dealt with urgently – respondent’s trial counsel unavailable – legal aid application unresolved – professional responsibilities of counsel – issues requiring counsel’s attention – unfairness to accused/respondent in proceeding without counsel

CRIME – conviction appeal – unreasonable verdicts – whether conviction inconsistent with acquittal on another count – whether rational basis upon which jury could distinguish counts – relevance of disproportion between time taken for trial and time jury reserved – relevance of trial judge’s assessment of verdict CRIME – conviction appeal – leave to appeal – jury directions – apology in recorded telephone conversation between complainant and accused – whether conclusion apology was an admission reasonably open to jury – whether objection taken to direction at trial – whether leave required – whether leave should be granted – Criminal Appeal Rules, r 4