Cases and authorities

CIVIL PROCEDURE – application for order of payment by instalments – award of costs – gross sum whether the costs are reasonable – fees and disbursements

LAND LAW – leases – option to renew validly exercised – party purchasing freehold estate following exercise of option to renew contained in registered lease bound by unregistered renewed lease – agreement of purchaser of freehold estate to take interest subject to leasehold estate gives rise to a personal equity in lessee against purchaser – construction of lease – lease does not contain an obligation on either lessor or lessee to pay for electricity – lessee free to arrange its own electricity supply for which it is liable to pay – lessee not entitled to reimbursement of cost of electricity – lessee not entitled to withhold payments of rent – non-payment of rent amounted to breach of an essential term of the lease and a repudiation of lease – lessor entitled to possession

CRIME – proceeds of crime – whether primary judge erred in declining to make forfeiture orders in respect of respondent’s interests in bank accounts in his name – whether respondent’s interests in the bank accounts were “proceeds” of an offence within the meaning of Proceeds of Crime Act 2002 (Cth) – whether respondent bore the onus of proving that Proceeds of Crime Act, s 49(4) was satisfied – whether primary judge erred in finding that it was not in the public interest to make forfeiture orders

REAL PROPERTY – option – whether option validly exercised – option deed required provision of contract for sale of land with time for completion 42 days thereafter – respondent purportedly exercised option – respondent's executed contract for sale left date of completion blank – respondent's covering letter requested appellants insert a completion date of 192 days from date of contract – consideration of applicable principles in such cases – proper construction of option deed – whether documents purporting to exercise option complied with option deed – option not validly exercised – appeal allowed

CRIME – proceeds of crime – whether primary judge erred in declining to make exclusion order in respect of appellants’ interests in bank accounts in their names – whether appellants acquired an “interest” in “property” each time a deposit was made into their bank accounts within the meaning of Proceeds of Crime Act 2002 (Cth) – whether appellants were a “third party” under Proceeds of Crime Act, s 330(4)(a) – whether appellants acquired their interests in the bank accounts for sufficient consideration – whether circumstances would have aroused a reasonable suspicion that appellants’ interests in the bank accounts were proceeds of an offence

CORPORATIONS – managed investments – judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – where responsible entity sought judicial advice that it would be justified in distributing supplementary scheme booklet to unitholders – where responsible entity sought judicial advice that it would be justified in resuming meeting of unitholders – whether advice sought should be given.

LANDLORD AND TENANT – retail shop lease - assignment, severance and sublease - assignment of lease – whether landlord entitled to withhold consent – whether the proposed assignee has financial resources and retailing skills that are not inferior to those of the proposed insolvent assignor – whether lessee has complied with prescribed procedure for obtaining consent – requirements of prescribed procedure

EQUITY — Equitable remedies — Restitution – whether funds dealt with contrary to Asset Preservation Order should be repaid CIVIL PROCEDURE — Probate and administration of estates — Supervision of administration - Restitution – whether funds dealt with contrary to Asset Preservation Order should be repaid COSTS — Party/Party — Timing – whether interlocutory costs should be payable forthwith – where other interlocutory costs orders against other party – where payment forthwith will result in multiple assessments COSTS — Party/Party — Costs orders in interlocutory proceedings – whether costs order should be varied – where costs order entitled setoff against money payable – where setoff should be varied to entitle setoff against costs only JUDGMENTS AND ORDERS — Enforcement — Garnishee order – whether garnishee order should be made – where the Family Court has made a Freezing Order – where Family Court has noted that the Wife consents to release of funds in name of the husband from the frozen account to satisfy order of Supreme Court CIVIL PROCEDURE — Notices to produce — Before hearing — where defendant issues notice to deed administrator who is joined only for a limited purpose - whether deed administrator as recipient of notice should have order for payment of costs of compliance CORPORATIONS — Voluntary administration — Deed of company arrangement — Application by deed administrator for leave to transfer shares in company under s 444GA of the Corporations Act 2001 (Cth) – where evidence demonstrated that if leave was not granted there would be no alternative to the company being wound up and creditors would receive dividend of less than 100c in dollar – whether transfer of shares would unfairly prejudice the interests of members of the company.

CIVIL PROCEDURE – evidence before jury – expert report – whether expert report should be admitted into evidence before jury – where expert report not difficult to understand – where expert report written in layman’s terms

CRIMINAL LAW – general matters – ancillary liability – conspiracy – two accused charged with conspiracy to do act in preparation for terrorist act contrary to Criminal Code (Cth), s 101.6 – accused married in Islamic marriage ceremony – whether spouses immune from charges of conspiracy – no such rule in common law for Australia – spousal immunity from conspiracy not incorporated into Criminal Code FAMILY LAW – marriage – validity – marriage ceremony performed by authorised celebrant – celebrant not minister of religion – Marriage Act 1961 (Cth), Pt IV Div 1 – where marriage ostensibly solemnised in Islamic nikah marriage ceremony

PRACTICE AND PROCEDURE – implied undertaking in relation to use of documents provided in legal proceedings – release from implied undertaking – no issue of principle

CRIMINAL LAW – conviction appeal – sexual intercourse without consent – homosexual intercourse with male under 10 years – admissibility of tendency evidence – tendency incidents the subject of acquittals – acquittals based upon failure of Crown to rebut common law presumption of doli incapax – whether tendency evidence left to jury on a basis that controverted acquittals EVIDENCE – tendency evidence – probative value –prior conduct the subject of acquittals – acquittals based on failure to prove offender capable of criminal intent – whether tendency evidence relevant only to actus reus of further offending – basis on which tendency evidence could be left to jury – tendency to “sexually assault” children – admissibility of recorded admissions to tendency incidents

DEFAMATION – defences – contextual truth – whether contextual imputation capable of meeting statutory test – appropriateness of striking out contextual imputations at preliminary stage of proceedings DEFAMATION – interlocutory steps – rulings given as to interrogatories – no question of principle

ORDERS AND JUDGMENTS – where plaintiff had previously applied unsuccessfully to have judgment set aside – application to have order refusing to set judgment aside set aside

CIVIL PROCEDURE – interim preservation – freezing orders – requirements to be met before order made – where both parties Chinese nationals – where plaintiff allegedly gave defendant money for share in Chinatown restaurant businesses – where plaintiff alleges she received no share in restaurant businesses – good arguable case established on limited evidence – whether a risk of assets being placed out of reach of plaintiff – where last payment made almost a year ago – no evidence funds have since been dissipated or removed – application refused

CIVIL PROCEDURE – court administration – case management – directions – guillotine order attached to directions to serve affidavit evidence – failure to comply

CIVIL PROCEDURE – application to order the respondents to pay money into the plaintiffs’ solicitors’ trust account – where the relevant money is held on trust for the defendants in the substantive proceedings – defendants accept that money should be paid over as sought – orders made. COSTS – where the failure of the respondents to pay over the money obstructed the realisation of the court’s earlier orders and necessitated this application – where no explanation provided regarding that failure – costs ordered on the indemnity basis with ancillary orders made.

COSTS – INDEMNITY COSTS – UCPR rr 20.26, 42.1, 42.15A – whether indemnity costs should be ordered because two offers of settlement and an offer of compromise were not accepted and the plaintiffs did no better than what the defendant offered; HELD – refusal of the two offers of settlement did not justify indemnity costs – no reason to otherwise order than that the defendant should get indemnity costs because the plaintiffs did no better than the terms of the offer of compromise

CORPORATIONS – winding up – application to set aside creditor’s statutory demand under Corporations Act 2001 (Cth) ss 459H and 459J – whether sufficiently arguable case for estoppel against a fiscal authority may give rise to a genuine dispute – where statements made were not promissory or representational in character or sufficiently clear and unambiguous to support an estoppel – whether a genuine dispute has been established – where no element of unconscionability, abuse of process or inconsistency with the statutory scheme in the issue of the statutory demand – whether some other reason for statutory demand to be set aside.

CORPORATIONS – meetings – voting – responsible entity and associates – Corporations Act 2001 (Cth), s 253E – resolution to direct responsible entity to wind-up the Trust – where responsible entity has interest in resolution other than as a member – whether member is permitted to vote – whether member is associate of responsible entity – whether member and responsible entity acting in concert in respect of Trust’s affairs

CIVIL PROCEDURE – notices to produce – before hearing – grounds for resisting – application to set aside notices to produce issued in relation to plaintiff’s claim for damages for alleged misfeasance in public office – whether notices lacked legitimate forensic purpose – where pleadings did not plead claim against third defendant – whether s 111 of the Independent Commission Against Corruption Act exempted production of documents “in any court” – whether notices complied with UCPR r 21.10 – whether notices were oppressive to third defendant

CRIMINAL LAW – trial by jury – murder verdict SENTENCE – instinctive synthesis – objective seriousness of the offending – offender’s moral culpability – subjective factors – lack of previous serious offending – aspects of social deprivation – offender’s mental condition – diagnosis of schizophrenia – personality disorder – substance abuse – maximum penalty – standard non-parole period – legislative guideposts – purposes of sentencing – punishment – denunciation – prevention – deterrence – specific and general – rehabilitation – accountability – retribution – recognising harm to community

CIVIL PROCEDURE – Court of Appeal – jurisdiction – whether Court of Appeal has jurisdiction to review ruling on admissibility of evidence in District Court – Supreme Court Act 1970 (NSW), ss 23, 69 – interference with criminal trial – discretionary refusal of relief CRIMINAL PROCEDURE – appeal from interlocutory judgment or orders – whether Court of Criminal Appeal has jurisdiction to hear appeal regarding ruling on admissibility of evidence – whether ruling on admissibility of evidence a “judgment” or “order” – Criminal Appeal Act 1912 (NSW), s 5F

CRIMINAL LAW – sentence appeal – robbery in company causing grievous bodily harm and aggravated break and enter and commit serious indictable offence – robbery involving serious injuries to householder – finding of special circumstances by sentencing judge – only small adjustment to non-parole period made – whether judge intended to make only a small adjustment – whether larger adjustment should have been made – error established – need to resentence – on resentence no lesser sentence warranted in law – sentence appeal dismissed.

CIVIL PROCEDURE – discovery – objection to inspection – expert report – where expert report referred to undiscovered documents – where expert claimed confidentiality over documents – parties agree documents should be produced – costs – where problem all within defendants’ side of the matter – fairness dictates defendants should pay plaintiffs’ costs

COSTS – Party/Party – Application for preliminary discovery resolved without need for contested hearing – Application for costs based on alleged unreasonableness of defendant’s conduct – No general rule in relation to orders for costs on preliminary discovery applications – No order as to costs made

COSTS – application for costs to be awarded in a specified gross sum – costs order in a specified gross sum appropriate where party unnecessarily contributed to the costs of the proceedings – plaintiff’s conduct sufficiently egregious to justify costs order in a specified gross sum – plaintiff applied to vacate hearing one month prior to trial despite proceedings being on foot for over two years – unjust to require defendant to participate in ordinary costs assessment process – order that, if payment of costs not made, proceedings be stayed until payment is made

CIVIL PROCEDURE – separate determination of questions – UCPR r 28.2 – where appropriate – defendant insurers denied indemnity for damage suffered by plaintiff because inter alia proceedings were statute barred – whether limitation period commenced to run from time damage was suffered or from time indemnity was denied – order sought by all parties – when damage suffered not in issue – other relevant facts agreed and unlikely to be traversed at final hearing – considerable expense avoided if question determined favourably to defendants – separate determination ordered CIVIL PROCEDURE – court administration – removal to Court of Appeal – UCPR r 1.21 – order sought by first defendant – relevant factors in exercise of discretion to remove proceedings – conflict between single State and Federal judges relying on conflicting intermediate appellate authorities – appeal probable if question determined adversely to defendants by single judge – removal ordered

LAND LAW – Conveyancing Act 1919 (NSW), s 66G – application for appointment of trustees for sale – discretionary considerations – hardship or unfairness not a basis to refuse application LAND LAW – Conveyancing Act 1919 (NSW), s 66G – application for appointment of trustees for sale – power to appoint trustees for sale before question of accounting between co-owners is determined – power under general law or s 66G(6) to determine incidental questions of the beneficiaries’ entitlements following order for sale LAND LAW – co-ownership – incidents – accounting between co-owners – general principles discussed

LAND LAW – Conveyancing – Contract for sale – Vendor suing purchaser to recover deposit, interest and costs following termination of contract for purchaser’s breach – Purchaser contending, inter alia, that contract was conditional upon purchaser obtaining finance – Held contract was not conditional and vendor had validly terminated the contract – Purchaser ordered to pay deposit, interest and costs EQUITY – Trusts and trustees – Resulting trust or express trust – Whether purchaser held the benefit of the contract on trust, wholly or in part, for the purchaser’s husband – Held there was no resulting trust or express trust

LANDLORD AND TENANT – Termination of the tenancy – Validity of notices issued pursuant to s 129 of the Conveyancing Act 1919 (NSW) – Failure to cite s 129 of the Conveyancing Act 1919 (NSW) as source of obligation to issue notice – Failure to identify breaches with sufficient particularity LANDLORD AND TENANT – Renewals and options – Exercise of option – Whether the plaintiff was in breach of the lease when he exercised the option to renew – Whether the Court should grant relief against forfeiture – Power to impose conditions on the granting of relief

PUBLIC LAW – compulsory acquisition of property – issue of proposed acquisition notice – whether proposed acquisition notice complied with legislative requirements – Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – whether compliance with procedural requirements an essential pre-condition to the validity of acquisition – whether proposed acquisition notice was non-compliant with form approved by Minister – whether substantial compliance with approved form was sufficient – Interpretation Act 1987 (NSW), s 80(1) – whether approved form was consistent with empowering Act – whether Act required proposed acquisition notice to state the public purpose of acquisition PUBLIC LAW – compulsory acquisition of property – whether land was sought to be acquired for an improper purpose – Roads Act 1993 (NSW), s 177(1) – whether purpose assessed at time of acquisition or time of notice STATUTORY INTERPRETATION – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 11, 15, 33, 39, 69 CIVIL PROCEDURE – court of appeal – cross-appeals – whether to grant injunction restraining issue of proposed acquisition notice in circumstances where notice not invalid

CORPORATIONS – external administration – application for extension of time to execute a deed of company arrangement – where creditors would receive more favourable return if the deed of company arrangement is performed in accordance with its terms – where extension of the voluntary administration will expose the voluntary administrators to additional costs – whether extension of time to execute a deed of company arrangement should be granted subject to condition

CORPORATIONS – managed investments – judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – where responsible entity sought judicial advice that it would be justified in adjourning meeting of unitholders – whether advice sought should be given.

CIVIL PROCEDURE – two loans – investment – whether solicitor for defendant can withdraw from proceeding without notice – impecuniosity – defendant not present – defendant’s name called outside court – leave granted to withdraw – direction to file a notice of ceasing to act CIVIL PROCEDURE – whether plaintiff is entitled to judgment against the defendant – r 29.7 Uniform Civil Procedure Rules 2005 (NSW) – legal assignment of debt – deed of settlement and deed of loan – debts discretion of court – plaintiff entitled to remedies COSTS – full indemnity basis

CRIMINAL LAW – proceeds of crime – restraining orders over jointly owned property – variation to create fund to be restrained pending unexplained wealth order

COSTS — security for costs — whether order should be made for security for costs – quantum and form of order.

CIVIL PROCEDURE – jurisdiction – transfers to and from other courts – whether a suit against the guarantor of liabilities of a commercial lease is a “commercial transaction” – whether District Court has jurisdiction – where application for proceedings to be transferred to the Supreme Court – where District Court lacks jurisdiction – where finding a surprising and unwelcome result

COMMERCE – misleading or deceptive conduct – where first defendant encouraged plaintiff to purchase shares in a start-up called “SecureOne” – where SecureOne was involved in potentially ruinous litigation – where first defendant had fallen out with the management of SecureOne – misleading or deceptive to portray the potential profitability and viability of SecureOne without disclosing those matters. COMMERCE – misleading or deceptive conduct – causation – ability to infer reliance and causation in appropriate cases – objectively viewed, plaintiff would not have made investment in SecureOne had the true position been disclosed – plaintiff entitled to judgment.

CRIMINAL LAW – bail – release application – bail sought pending appeal to District Court – intimidation offences – show cause – prospects of appeal – cause not shown – bail refused

CORPORATIONS – managed investments – judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – where responsible entity sought judicial advice that it would be justified in distributing supplementary explanatory memorandum to unitholders – where responsible entity sought judicial advice that it would be justified in adjourning meeting of unitholders – whether advice sought should be given.

EQUITY – declaratory orders – landlord and tenant –dispute concerning rights under leases of the landlord to access premises – where landlord seeks declarations as to the meaning and effect of clauses in the leases but there is no extant controversy about access – availability of declaratory relief – hypothetical dispute; HELD – declaratory relief inappropriate and refused

LAND LAW – caveats – application by registered proprietor for an order that a caveat be withdrawn – where registered proprietor seeks to refinance a mortgage and raise a further $200,000 to fund the cost of these proceedings – where caveator’s interest would be irrevocably diminished if the caveat were to be withdrawn CIVIL PROCEDURE – Harman undertaking – application by plaintiff to be released from the undertaking – where plaintiff has not demonstrated special circumstances CIVIL PROCEDURE – pleadings – amendment – late application for amendment – where amendments facilitate the determination of the real questions raised by the proceedings – where no authentic or tangible prejudice to the plaintiff – where concern that the formulation of a defence to the amended cross-claim would detract from the plaintiff’s ability to prepare for trial – where concern alleviated by dispensing with the need for the plaintiff to file a defence to the amended cross-claim

APPEAL – appeals to the court – appeal from Appeal Panel of Civil and Administrative Tribunal – statutory interpretation – residential parks – method by which park operator charged residents for electricity consumption – whether operator breached Residential (Land Lease) Communities Act 2013 s 77(3) – where utility service provider is a ‘designated retailer’ but park operator is not a standing offer customer – National Energy Retail Law (NSW) s 22 – National Energy Retail Law (Adoption) Regulation 2013 (NSW) cl 50 – whether operator could on-sell electricity at a price higher than it was charged by the provider so long as it did not exceed standing offer prices

COSTS – motions dismissed – general rule – whether complaint was brought in public interest – whether there was a delay by a party – federal diversity argument – whether the matter was an appeal for the purpose of the Suitor’s Fund Act 1951 (NSW) – substance over procedure – parties pay own costs

LAND LAW – leases – notice of exercise of option to renew lease – service of written notice of exercise required – service by email sufficient if email received by person with authority – presumption in s 161 of the Evidence Act 1995 (NSW) that email communication was received at the destination to which it appears from the document to have been sent – provision in lease about modes of service is facultative not mandatory – notice held to have been served in accordance with requirements of lease

PROCEDURE – request for referral to a barrister or solicitor on the Pro Bono Panel – Uniform Civil Procedure Rules (NSW) r 7.36 – where applicant has received pro bono assistance within the preceding three years – where no special reasons exist to provide referral – application dismissed with costs

TRAFFIC LAW – statutory disqualification upon conviction for driving while disqualified – appeal against sentence – whether automatic stay of execution applied to disqualification consequence upon unchallenged conviction – Road Transport Act 2013 ss 54 and 207 – Crimes (Appeal and Review) Act 2001, s 63

APPEAL – application by defendants for leave to appeal against costs orders made against them – where plaintiff succeeded at first instance – where plaintiff succeeded on only one of the issues raised by its claim but defendants succeeded on majority of issues – where primary judge held that issues on which plaintiff had failed were not dominant or separable – where primary judge held that unmeritorious claims raised by the plaintiff had not materially increased costs – where plaintiff was joined to proceedings between other parties and awarded costs in respect of those proceedings – where error in the exercise of discretion was not more than merely arguable – where costs of appeal on costs would be significant – leave refused

APPEAL – interlocutory ruling – strike out of part of commercial list response – application of Practice Note CIVIL PROCEDURE – strike out of part of commercial list response – whether primary judge misunderstood scope of pleaded case – relevance of context to allegations of misrepresentation and estoppel