Cases and authorities

CRIME – appeal against sentence – attempting to possess marketable quantity of controlled drug contrary to Criminal Code (Cth), ss 11.1(1) and 307.6(1) – guilty plea entered at earliest opportunity – 20% discount in sentence for early plea – head sentence of 5 years 6 months imprisonment with non-parole period of 3 years 6 months – whether error in considering appropriate discount for plea of guilty – whether utilitarian value of guilty plea should have been considered – appeal allowed and offender resentenced

SENTENCING — Appeal against sentence – use carriage service to send indecent material to a person less than sixteen years – 474.27A(1) Criminal Code Act 1995 (Cth) – whether the sentencing judge did not have regard to the utilitarian value of the guilty plea - Xiao v R [2018] NSWCCA 4; (2018) 329 FLR 1

CORPORATIONS – winding up – where liquidator of company had previously sought and been granted special leave under s 488(2) of the Corporations Act 2001 (Cth) to make interim in specie distribution of surplus in the liquidation – where there has been no material change of circumstances since the original application was heard – whether there is occasion to reopen the previous judgment or the orders there made.

CIVIL PROCEDURE – application for leave to file and pursue a cross-claim after judgment has been entered in the proceedings – where the judgment resolved the dispute by deciding one of the three issues presented – where cross-claim seeks to re-agitate the other two issues – limited utility in granting leave given uncertainty as to the real consequences which would follow – where no estoppel prevents the defendants from commencing fresh proceedings when the consequences become clearer – application dismissed.

CIVIL PROCEDURE – application to amend cross-claim – whether the cross-claimant ought to be granted leave to make additional averments to the further amended statement of cross-claim – absence of proposed amendment – opposed – allegations of actual dishonesty – quotes – general discretionary considerations – application advanced at late stage in trial – no satisfactory explanation – potential for wasted costs – non-financial – sale and trade – third parties – efficiency provisions – prospects of success

FORENSIC PATIENT – application for extension order – application to extend status as a forensic patient – whether defendant poses unacceptable risk – whether risk cannot be adequately managed by other means

ADMINISTRATIVE APPEAL – application by high school maths teacher for a working with children check clearance – where teacher acquitted of criminal charges alleging sexual misconduct with a female student – assessment of risk – whether Tribunal misunderstood its statutory function – where Tribunal neither satisfied that offences probably did occur nor that they probably did not – whether required to resolve inconsistencies in child’s allegations before being satisfied as to the existence of a real and appreciable risk

COSTS – gross sum costs order – where proceedings an abuse of process – notice of constitutional matter – where notice of constitutional matter after proceedings dismissed – where notice of constitutional matter misconceived and/or an abuse of process

PRACTICE AND PROCEDURE – applications – security for costs order – discretionary considerations – impecuniosity of plaintiff company – effect of cross-claims by directors of impecunious company – effect of undertaking by director or shareholder of impecunious company - Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405 discussed PRACTICE AND PROCEDURE – applications – security for costs order – discretionary considerations – whether defendant caused the plaintiff’s impecuniosity – cause of impecuniosity where claim is based on loss of profits PRACTICE AND PROCEDURE – applications – security for costs order – discretionary considerations – defensive proceedings

CORPORATIONS – shares – where plaintiff and third party agreed to carry on business together through a company – where plaintiff transferred sole share in company to third party – whether third party agreed to hold 50 percent of the share on trust for plaintiff – where third party transferred share to second defendant – whether second defendant received share with notice of the trust CORPORATIONS – shares – whether second defendant agreed to transfer 50 percent of the share in the company to plaintiff – whether agreement unenforceable for want of writing – Conveyancing Act 1919 (NSW), s 23C(1)(c) – whether part performance of the agreement CORPORATIONS – directors and officers – directors’ duties – where plaintiff summarily dismissed as managing director – whether dismissal justified – whether plaintiff breached fiduciary and analogous Corporations Act 2001 (Cth) duties owed to first defendant TORTS – detinue – damages – where plaintiff wrongfully detained motor vehicle – whether plaintiff liable for consequential damages for loss of use of vehicle – whether owner of vehicle suffered any actual loss

JUDGMENTS AND ORDERS – enforcement – order for examination – application to set aside or vary order – where order loosely drafted – application stood over

BANKRUPTCY – effect of bankruptcy on property and proceedings – vesting in trustee by operation of sequestration order – Bankruptcy Act 1966 (Cth), ss 60, 116 – bankrupt’s proprietary rights not a “personal injury or wrong” EQUITY – equitable remedies – account – account between mortgagor and mortgagee – discussion of circumstances where an account between parties is taken MORTGAGES AND SECURITIES – sale of properties by mortgagee – surplus paid into court – competing claims to surplus – intervening equitable interest – equity of exoneration PRACTICE AND PROCEDURE – Supreme Court procedure – Trustee Act 1925 (NSW), s 95 – payment of monies into court – procedure compared to interpleader proceedings brought by stakeholder

ADMINISTRATIVE LAW – Judicial Review - Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether the Medical Appeal Panel failed to find a demonstrable error in the the Medical Assessment Certificate and statement of reasons of the AMS – whether the Medical Appeal Panel failed to revoke the Medical Assessment Certificate and conduct its own review in circumstances where there was a demonstrable error - whether the Medical Appeal Panel failed to perform its statutory task

CRIME – sentencing – manslaughter – assault police officer occasioning actual bodily harm – offender with schizophrenia – substantially impaired by abnormality of mind – physical altercation between offender and deceased step-father – offender perceived he was being attacked – propelled deceased off balcony –manslaughter on basis of excessive self-defence –assaulted police officer while being apprehended –low-moderate risk of re-offending – special circumstances for reduced non-parole period – 15 per cent reduction for plea of guilty.

CONTRACTS – Construction – Interpretation – Determination of the net profit of a business for the purpose of determining the amount owed under a contract for the sale of the business CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – Opinions – Predictions – False statements – Whether the impugned representations were made – Whether the impugned representations were misleading or deceptive – Causation and reliance – Entire agreement clauses – Correct approach to measuring loss CONTRACTS – Breach of contract – Damages – Correct approach to measuring loss

CIVIL PROCEDURE – allegations of misleading and deceptive conduct – deficiencies in rental payment agreement – pleadings – fraud or dishonesty – specific and particular allegations – matter arising after commencement of proceedings – allegations not open on pleadings

CONTRACT – discharge of contract inferred by agreement – abandonment – no need for express offer and acceptance SOLICITORS – retainer – firm gave advice to client in building dispute with subcontractor – ICC arbitration commenced six months later – client retained another firm to act in arbitration – no response by client to overtures by first firm to act for it in arbitration – one year later, partners acting for subcontractor in building dispute and in arbitration became partners of first firm – firm retained confidential information of client arising out of its earlier retainer – firm put in place information barriers relating to its earlier involvement – client sought injunction preventing firm from acting for subcontractor in arbitration – whether earlier retainer terminated or abandoned – whether firm had shown no real risk of disclosure of confidential information – whether inherent jurisdiction to protect administration of justice and its appearance supported injunction – primary judge dismissed proceedings – appeal dismissed

CRIMINAL LAW – release application – show cause requirement – applicant crusader for legalisation of cannabis for medicinal purposes – supply and manufacture of large commercial quantity of cannabis leaf and oil – breach of bail – complex issue of medical necessity to be ventilated at trial – where applicant likely to represent himself – where applicant without access to necessary resources – unusual circumstances – show cause requirement established – bail concerns mitigated by conditions – no unacceptable risk

CRIMINAL LAW – Crown appeal against sentence in respect of two offenders – R v Phelps – attempting to possess a commercial quantity of cocaine (12kgs pure) – whether sentence manifestly inadequate – whether discount for assistance excessive – limited role of offender – strong subjective case – principles applicable to Crown appeals – importance of Agreed Statement of Facts – amount of discount for assistance excessive – residual discretion should not be exercised in favour of Crown – Crown appeal dismissed – R v Zalapa – offences of importing a commercial quantity of cocaine and dealing with money intending it to be an instrument of crime – whether sentence was manifestly inadequate – Crown bound by manner in which sentence proceedings run – strong subjective case – use of comparable cases limited because of difference in facts – Crown appeal dismissed.

CRIMINAL LAW – appeal – appeals against sentence – four co-offenders – each applicant convicted of four offences of aggravated break, enter and steal contrary to s 112(2) Crimes Act 1900 (NSW) –offences committed as part of joint criminal enterprise-character-absence of criminal record in Australia-– whether sentencing judge erred by holding applicants were disentitled to the benefit of good character – whether sentencing judge erred by failing to take into account one applicant’s background of childhood deprivation – whether sentencing judge erred by failing to take into account applicant’s role in the offences relevant to moral culpability – whether sentencing judge erred by finding that, despite having no criminal record, no additional leniency could be afforded given nature of offences – whether effect of delay taken into account when fixing non-parole period – assessment of subjective case – whether failure to take into account subjective features – whether special circumstances – whether one applicant has justifiable sense of grievance given sentence imposed on co-offender – whether sentence manifestly excessive – leave to appeal granted – appeals upheld – applicants resentenced

COSTS – home building dispute – owners awarded damages of $400,000 against claim of $1.6 million – whether commencement and continuation of proceedings in Supreme Court warranted – matter must be judged prospectively – whether costs should be reduced on account of either the conduct of the owners’ expert or proportion of success achieved – where owners succeeded in each category of defects alleged but did not persuade referee as to the consequent quantum – owners were required to go to court to vindicate rights – hearing was extended as a result of the inflated claim – impossibility of scientifically assessing costs in these circumstances – broad brush of justice indicates that owners should have 80% of their costs. COSTS – application for indemnity costs – Calderbank offer sent from owners to builder – offer sent at a time when builder could not properly assess the offer – not unreasonable for builder to reject offer.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, approve a proposed scheme of arrangement – whether requirements to order scheme meetings are satisfied.

REPRESENTATIVE PROCEEDINGS – common questions concerning claim for negligence – answers to common questions – costs

EVIDENCE – admissibility of evidence – expert evidence - relevance of opinion – whether opinions expressed are wholly of substantially based upon the expert’s specialised knowledge – training – education – experience – bare expression of opinion

BAIL – application for variation of bail conditions – fraud – Commercial Financial Dealings – whether conditions onerous

CONTRACTS – general contractual principles – formation of contractual relations – agreements contemplating execution of formal deed of settlement and release – admissibility of surrounding circumstances – authority to enter into contractual relations

CIVIL PROCEDURE – interrogatories – medical negligence - transection of bile duct during open cholecystectomy – inadequate hospital notes – where experts need further information – objection to particular interrogatories – whether those interrogatories are necessary – whether interrogatories relate to issues in dispute

CIVIL PROCEDURE – expert evidence – application to rely upon expert report served out of time – where significant delay – where inadequate explanation for the delay

LAND LAW – leases – lessee of a service station covenanted to keep premises in good and substantial repair and condition – premises include underground fuel tanks – whether covenant extends to fuel tanks – whether lessor has obligation to repair them – not suggested that any of the exceptions to the covenant operated – lessor does not have obligation to repair fuel tanks – not shown that problems with fuel tanks were the result of poor maintenance – lessee’s claim for damages not made out

Administrative Law – Judicial review – Motor Accidents Compensation Act 1999 (NSW) – Error of law on the face of the record – Whether claims assessor had sufficiently disclosed reasoning in an award of future economic loss – Where reasoning included adoption of accountant’s report – Whether report incorporated into reasons of claims assessor – Statutory requirement for reasons to be brief - Appeal allowed

EVIDENCE – admissibility of evidence – affidavit – expert evidence – opinion – exceptions – threshold not met

COSTS – party/party – exception to general rule that costs follow the event – no point of principle

EQUITY — Breach of confidence — Conduct constituting breach — Restraining third parties from using confidential information — Interlocutory relief — No issue of principle

COMMERCE – application for interlocutory injunctive relief – allegations of breach of contract and unconscionable conduct – evidence to date demonstrates that there are various “serious” questions to be tried – considerations of balance of convenience. EQUITY – whether applicant or its shareholder who has promoted the cross-claim should give undertaking as to damages – relief to be granted in part subject to that shareholder giving the usual undertaking.

LAND LAW – mortgages – possession of land – default – where defendants are seeking to refinance the loan – where defendants have sat on their hands when the need for action was staring them in the face CIVIL PROCEDURE – summary disposal – judgment for plaintiff – where defendants concede that the plaintiffs are entitled to relief

CORPORATIONS – oppression – one party seeks winding up order – other party seeks order for the purchase of shares by a member of a company under s 233(1)(d) of the Corporations Act 2001 (Cth) – where amounts improperly recorded as debts owed to director or his associated companies or family members in favour of one party – where diversion of business from company to competing businesses by another party – where both parties have engaged in oppressive conduct – whether to grant order for buy-out of one party’s share by the other. CORPORATIONS – winding up – application to wind up company on just and equitable ground under s 461(1)(k) of the Corporations Act – where deadlock in the management of the company’s affairs – where winding up order would advance director’s associated entities’ adverse interests as trade competitors of company – where alternative remedy can appropriately address the oppression – whether company should be wound up.

PRACTICE – interlocutory injunctive relief pending appeal – dispute between landlord and tenant whether partly performed oral agreement to lease – where appeal seriously arguable, although weak, but balance of convenience favoured continuation of injunctive relief

CRIMINAL LAW – Crown appeal against asserted inadequacy of sentence – aggregate sentence - intellectually disabled offender - offences involving imitation firearm – possess pistol – specially aggravated break enter and commit serious indictable offence whilst armed with a dangerous weapon – kidnapping - question of assessment of objective gravity - question of adequacy of accumulation of sentence

CRIMINAL LAW – high risk offender – high risk sexual offender – application for extended supervision order – preliminary hearing – two counts of aggravated sexual assault – other offences including burglary and possession of drugs and a dangerous weapon – defendant with substance abuse and personality issues – assessed as high risk – no opposition to interim order – whether conditions including electronic monitoring and a schedule of movements would increase risk posed by defendant with anti-authoritarian motive of offending

LAND LAW – contract for sale of land – failure by purchaser to replace deposit bond within a certain time – whether a breach of an essential term giving vendor right to terminate contract – time stipulation not essential – no notice to perform issued so as to make performance by new time essential – vendor not entitled to terminate contract

EVIDENCE – admissibility of reports and worksheets recording results of blood tests – reports relevant – documents admitted unconditionally – results of two tests and opinion expressed admitted provisionally – Evidence Act 1995, s 57

EVIDENCE – provisional relevance – certificate previously admitted provisionally – evidence relevant and not hearsay – certificate admitted unconditionally

DEFAMATION – mode of trial – defendant electing for trial by jury – plaintiff seeking to dispense with jury on grounds of complexity and multiplicity of issues and volume of material to be considered – importance of role of juries in actions for defamation

APPEALS – appeal from Local Court – question of law – claim for money paid on behalf of defendant for him to conduct proceedings as trustee – magistrate found no contract as alleged - whether magistrate erred by refusing to allow plaintiff to re-open case – whether conduct of magistrate gave rise to actual bias or a reasonable apprehension of bias – whether magistrate erred by failing to adjourn costs hearing when plaintiff did not appear – whether magistrate erred in ordering indemnity costs in response to Offer of Compromise - appeal dismissed

PRACTICE – stay pending determination of application for judicial review – District Court allows appeal from Children’s Court and orders mother to have parental responsibility – alleged jurisdictional error – assessment of strength of grounds – potential for further disruption if child returned to father – proximity of hearing – stay refused

CRIME – appeal against sentence – aggravated robbery contrary to Crimes Act 1900 (NSW), s 95 – applicant forcibly seized complainant’s mobile phone during argument in car park – phone discarded by applicant and later recovered by complainant – plea of not guilty to primary charge of aggravated robbery – plea of guilty to alternative charge of assault occasioning actual body harm – where history of steroid abuse – where low risk of re-offending – where offence of short duration and not premeditated – head sentence of 3 years imprisonment with non-parole period of one year and 10 months – whether sentence manifestly excessive – appeal allowed and offender resentenced

CRIMINAL LAW – application for leave to appeal against sentence – where applicant pleaded guilty to eight offences of stealing from the person – whether additional evidence should be admitted on appeal – where applicant had completed two courses while in custody – whether sentencing judge erred in failing to consider matters occurring after sentence – whether failure to consider applicant’s medical condition – whether failure to consider family circumstances of applicant - where brother’s medical condition not referred to at sentencing hearing – where no evidence of the brother’s medical condition

CRIMINAL LAW – Procedure – permanent stay – stay granted by court below on basis of unfairness and oppression to the accused – whether primary judge misapplied the correct test – where third trial on two counts after jury in second trial unable to agree but delivered not guilty verdicts on two other counts – exceptional nature of jurisdiction – whether permanent stay should be set aside

CRIME – appeal against sentence – supplying prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) – one count of possession of cannabis taken into account on Form 1 for applicant Matthews – three counts of possession and cultivation of cannabis taken into account on Form 1 for applicant New – applicant Matthews sentenced to 3 years imprisonment with non-parole period of 1 year 6 months – applicant New sentenced to 3 years imprisonment with non-parole period of 2 years – whether error in assessing objective seriousness – whether error in description of applicants as “facilitators of supply” above “street level users/dealers” in chain of supply – whether material misdescription of time period of offending – applicant New mother of two children aged 16 and 18 – whether fresh evidence for applicant New demonstrates exceptional hardship on her children as consequence of her incarceration – parity – whether justifiable sense of grievance on part of applicant Matthews – leave to appeal granted but appeal dismissed

CRIME – appeal against conviction and sentence – appeal heard and determined – no reference in judgment to one ground of appeal against conviction – applicant seeks to submit further grounds of appeal and have “undetermined” ground considered – applicant seeks leave to appeal against sentence – sentence previously quashed by Court – question of power to reconsider appeal – no power to hear further grounds