Cases and authorities

CORPORATIONS – application under s 459G of the Corporations Act 2001 (Cth) to set aside creditor’s statutory demand – where company alleges non-receipt of statutory demand – separate question as to whether application to set aside statutory demand was served within the requisite 21 day period

COSTS – Party/Party —Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – whether offer was clear in its terms – whether costs should be on an indemnity basis from the date the offer was to be accepted

PROCEDURE – CRIME - suppression orders - application for leave to appeal against the refusal of an order to suppress identity of applicant – application for an order made during the course of a trial before the District Court – interim order made but final order refused – appeal as de novo hearing - whether order necessary in the public interest – question of financial harm, embarrassment, or distress to applicant if identified - Court Suppression and Non-publication Orders Act 2010 (NSW), s 8

CORPORATIONS – external administration – application by special purpose liquidator for approval to enter into contracts likely to be of more than three months duration – Corporations Act 2001 (Cth), s 477(2B) – where special purpose liquidator has entered into a funding deed subject to a suspensory condition – where special purpose liquidator proposes to enter into retainer with solicitors – factors relevant to grant of approval

CIVIL PROCEDURE – Pleadings – Striking out

PRACTICE – late application to vacate final hearing – failure on part of plaintiffs to receive defendant's main affidavit – whether fault on part of plaintiffs – evidence failed to identify nature of prejudice suffered by plaintiffs – application refused

CRIMINAL PROCEDURE – production of documents in answer to subpoena – whether subpoena required production of a document that the Crown now wishes to tender – where document not caught by subpoena – where the tender of the document may correct a possible misapprehension about evidence already given – where no adverse impact upon the accused

CONTRACTS — Formation — Agreement — Battle of the forms – Construction Contracts – where parties signed a Cost Plus Contract – where parties later signed a Lump Sum Contract – where the Lump Sum Contract was back dated to the date of the Cost Plus Contract – whether parties bound by Cost Plus or Lump Sum Contract

CIVIL PROCEDURE – appeal – application for leave to appeal – judgment sum less than $100,000 – limitation defence rejected – whether failure to pay debt constituted fraud – whether fraud discoverable more than 6 years before proceedings commenced – whether applicant’s case more than merely arguable – whether issue of principle – costs of appeal likely to be disproportionate to amount in issue

CIVIL PROCEDURE – application for leave to appeal decision of Judicial Registrar of District Court – proceeding assigned to Common Law Division review – application filed in Court of Appeal – refusal to remit – whether registrar erred – whether further evidence filed by applicant in Court of Appeal supported remittal – whether application for leave to appeal lacked merit CIVIL PROCEDURE – consolidation of proceedings –decision of Judicial Registrar not to consolidate proceedings – proceedings involving separate incidents, defendants and causes of action – whether Court should grant leave to appeal CIVIL PROCEDURE – refusal to enter default judgment – defendant represented, parties had been in discussions, matter on inactive list pending determination of leave application in another matter –whether decision attended by bias – whether Court should grant leave to appeal

CRIME – appeal against conviction and sentence – new DNA testing more discriminating than initial testing – whether applicant has lost a chance of acquittal reasonably open to him

COSTS – Party/Party – Payable out of a fund – Trust – Where proceedings settled with none of the issues which the Plaintiff came to Court originally to ventilate or later advanced needing to be resolved – Where proceedings settled with only one minor matter left in dispute – Where Plaintiff seeks an order that his costs be paid out of the trust assets – Where Defendants resist such an order and maintain that the Plaintiff should pay their costs (as well as bearing his own) and that their costs be paid out of the trust assets – Whether the Plaintiff as trustee acted unreasonably or for his own benefit in seeking judicial advice – Relevance of Plaintiff’s reliance on Counsel’s advice and failure to seek the Attorney General’s approval or leave of the Court considered; HELD: Parties’ costs as agreed or assessed to be paid on the indemnity basis out of the Trust assets.

CORPORATIONS – Voluntary administration – Deed of Company Arrangement – Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer all issued shares pursuant to Deed – Whether shareholders unfairly prejudiced – Where shareholders would receive no consideration for shares under proposed Deed of Company Arrangement – Where independent expert report established that shareholders would receive no dividend on liquidation – Leave granted

DEFAMATION – publication and republication – where material provided to journalist by sources republished on national television – plaintiff suing the sources only – application by sources for leave to file cross-claim seeking contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) – whether fairly arguable that the publisher of the television broadcast is a concurrent tortfeasor liable in respect of the same damage – consideration of principles stated by the Court of Appeal in Bracks v Smyth-Kirk PROCEDURE – application for leave to file cross-claim late – consideration of discretionary factors

CIVIL LAW – claim for possession of houseboat by the plaintiff – notice of motion of defendant to stay proceedings until separate monetary claim is fully resolved – application dismissed

CIVIL PROCEDURE – application to require second defendant to provide affidavit regarding details of his assets – where second defendant has admitted liability to egregiously dishonest conduct – where second defendant began surreptitiously selling assets – order made but stayed until 1 August 2018 for further argument.

CORPORATIONS – interlocutory application by third defendant to restrain plaintiff from proposing a resolution for appointment of additional directions and voting on those resolutions – whether plaintiff and third defendant agreed that each party was entitled to appoint two directors – whether plaintiff estopped from denying this is the case – unnecessary to determine on interlocutory application although serious question to be tried with regard to the former – where minimal detriment to third defendant if meeting proceeds – where some evidence of irregularities that appointment of independent directors could remedy – balance of convenience points strongly towards refusal of interlocutory relief – application refused.

WILLS PROBATE AND ADMINISTRATION – Intestate succession – Beneficiary not seen since early 1950s in Communist Poland – Not appropriate to declare person deceased - Benjamin order

COSTS – parties settled proceedings and motions before hearing – No issue of principle

CIVIL PROCEDURE - urgent application by wife for sperm retrieval from deceased body of husband - order made authorising extraction and retention of sample pending further order of the Court - sample taken and retained - Plaintiff does not wish to proceed with application - orders made concluding proceedings with associated order for destruction of sample taken

CIVIL – Mental Health (Forensic Provisions) Act 1990 (NSW) – preliminary hearing – application for appointment of experts and for interim extension order – orders not opposed – no point of principle

APPEAL – from Local Court – whether leave required where question of limitation arises APPEAL – whether leave ought be given where question of fundamental principle even where small amount in issue – leave granted APPEAL – whether Supreme Court ought make final orders or remit matter to Local Court – interaction between s 41 of Local Court Act 2007 and s 75A of Supreme Court Act 1970 PRACTICE AND PROCEDURE – Limitation Act 1969 – application to claims for legal costs by solicitor against client – question of construction of costs agreement by reference to contractual principles – relevant costs agreement not an entire contract PRACTICE AND PROCEDURE – importance of determining jurisdiction when question raised – s 317(2) of the Legal Profession Act 2004

SUPPRESSION ORDER – principle of open justice – reference in judgment to matters obtained from confidential exhibit – matters of national or international terrorism intelligence – original judgment redacted on application of Attorney General -

LEGAL PRACTITIONERS – motion to restrain solicitors from continuing to act in proceedings – alleged conflict of interest – plaintiffs seek to set aside orders releasing rights against the estate of their late mother and against their step-father under Succession Act 2006, s 95 – plaintiffs allege on their application for approval of the release that their step-father and the then solicitors for their mother’s estate misled the Court by withholding documents in their possession from the plaintiffs – the practice of the solicitor then acting for the plaintiffs’ late step-father was later acquired by the present solicitors for the defendant – the plaintiffs claim that the solicitors for the defendant can now no longer continue to act for the defendant. SUBPOENAS – plaintiffs issue subpoena to the defendant for production of a solicitor’s file relating to the giving of instructions for the drafting of the plaintiffs’ mother’s will – documents not produced – whether, and if so, what further order should be made.

RESTRAINT OF TRADE – covenants in restraint of trade – enforcement of covenants following termination of independent contractor relationship – non-interference covenant – where appellant prohibited from interfering with relationship between respondent and its clients – whether appellant interfered RESTRAINT OF TRADE – reasonableness of non-solicitation covenant - whether respondent had a legitimate commercial interest in protecting client connections and confidential information – whether non-solicitation covenant was reasonable CONTRACTS – general contractual principles – construction and interpretation of contracts – whether the expression “confidential information” should be limited to information which is confidential in nature EQUITY – confidentiality obligations – whether respondent’s client lists constituted confidential information – whether client details were known outside respondent’s business – where clients’ contact details kept in appellant’s phone and computer – where clients’ names published on appellant’s Facebook page – whether clients’ details entered public domain REMEDIES – injunction – where appellant restrained from use and disclosure of contents of client lists – whether discretion to grant injunction miscarried – where client details tendered in open court by respondent without seeking or obtaining confidentiality order – whether client information entered public domain – whether there was utility in restraining appellant from disclosing or using client details

PROCEDURE – application for security for costs against company – primary judge declined to admit affidavit – whether affidavit should be admitted as evidence of impecuniosity – whether affidavit satisfied s 27A of the Oaths Act 1900 (NSW) and r 35.7 of the Uniform Civil Procedure Rules 2005 (NSW) PROCEDURE – application for security for costs against natural person – whether second plaintiff was ordinarily resident outside Australia

TORTS – breach of duty by solicitor – assessment of damages – what personal injury damages would have been awarded to the plaintiff as at notional trial date – whether primary judge erred in awarding modest damages for loss of earning capacity

TORTS – negligence – employer – whether formulation of risk of harm impermissibly narrow – whether breach of duty of care – whether employer should have appreciated risk of harm TORTS – negligence – contributory negligence – risk of harm – whether formulation of risk of harm impermissibly narrow – whether respondent or his employer knew or should have known of risk of harm – whether open to the primary judge to draw a Jones v Dunkel inference from the failure of the appellant to call the only two people who could give evidence about the moment of injury DAMAGES – basis of assessment – future economic loss – Civil Liability Act 2002 (NSW), s 13 – approach in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 – required approach in case of future attendant care needs – required approach in case of future medical expenses COSTS – whether it is appropriate to award costs on the basis of mixed success on significant and separable parts of appeal

CRIMINAL LAW – conviction appeal – child sexual assault – guilty verdict on single count in context of multiple acquittals – conviction said to be unreasonable and unable to be supported having regard to the evidence – asserted weakness of evidence of complainant – assertedly not open to jury to be satisfied that the offence occurred without the consent of the complainant and with knowledge of her state of mind – detailed analysis of evidence – rational and logical basis for differentiation of count 7 open to jury – satisfaction of aggravated offence open to jury – appeal dismissed

CRIMINAL LAW – sentence – Crown appeal – drug offence – manifest inadequacy – plea of guilty by each respondent – objective seriousness below mid-range, but not at lowest level – incorrect classification of objective seriousness by sentencing Judge – sentence manifestly inadequate – discretion to intervene exercised – appeal granted

CRIME – stated case – s 5B of the Criminal Appeal Act 1912 (NSW) – whether recorded statement for a domestic violence offence which was played in Local Court as evidence in chief and recorded pursuant to s 289F of the Criminal Procedure Act 1986 (NSW) must be tendered in Local Court proceedings as an exhibit in order to constitute “evidence in the original proceedings” within the meaning of s 18 of the Crimes (Appeal and Review) Act 2001 (NSW)

Suppression and non-publication

PRACTICE AND PROCEDURE – jurisdiction – originating process served outside of jurisdiction – no appearance by defendant – leave to proceed – leave granted in circumstances where further time is allowed for the plaintiff to notify defendant of proposed motion for default judgment

SUCCESSION – Wills, probate and administration – Statutory will – Succession Act 2006 (NSW), s 18 – where capacity never existed – proposal one “reasonably likely” if capacity existed – statutory will made in circumstances where minor entitled to large estate – statutory will made in circumstances where minor under the parental responsibility of the Department of Family and Community Services PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW), r 36.16 – finality of judgment or order – whether order allowing judgment or order to be set aside affects finality of judgment or order

CIVIL PROCEDURE – leave sought to rely on affidavits and commercial list response filed out of time and on the eve of the hearing – leave refused due to extreme prejudice to plaintiff. PERSONAL PROPERTY – security interests granted over all property of the relevant defendants in accordance with various loan agreements – loan agreements breached – plaintiff entitled to order for delivery up of the specified propertied interests.

CIVIL PROCEDURE – application to amend further amended commercial list statement – current iteration of list statement insufficiently clear – amendment will not require vacation of hearing date – no prejudice to defendants except for costs – leave to amend granted – application for further discovery – application to set aside subpoenas – no issue of principle.

CORPORATIONS – listed public company - termination payment to executive officer – whether member approval obtained under s 200E of the Corporations Act 2001 (Cth) – whether members provided with sufficient information to approve termination payment – whether notice to members set out manner in which benefit to be calculated and any matter which was likely to affect calculation of value

CRIMINAL LAW – accused charged with murder – application for trial by judge alone – application opposed by Crown – sole issue at trial question of the availability of a mental illness defence – whether a judge is better able to assess forensic psychiatric evidence than a jury - questions of efficiency of trial – drug use by accused - asserted prejudice to accused if tried by jury – potential for the accused to become unfit to be tried due to length and stress of jury trial

EVIDENCE – privilege – privilege against self-incrimination – statutory abrogation of privilege - where transcripts of examinations under s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) produced to court by ASIC in response to a subpoena – where objection was taken during examinations under s 68(2) of the ASIC Act – whether inspection should be permitted

SUCCESSION – Wills, probate and administration – Construction and effect of testamentary dispositions – Gift of income from dividends on shares owned only indirectly by testator through company owned and controlled by him – Gift of shares in that company to another person, subject to the gift of income – By accepting gift of shares, second person personally bound in equity to satisfy gift of income

CRIME – sentence – murder – cold case – 1990 – hired killer – offender paid $10,000 by deceased’s husband to make murder look like “robbery gone bad” – victim stabbed multiple times in bedroom near sleeping children – high range of objective seriousness conceded – not guilty plea – offender’s personal circumstances – disadvantaged background – family hardship due to financial strain and separation – significant criminal history – need to sentence in accordance with past practices CRIME – sentence – solicit to murder – cold case – 1990 – offender hired man to kill wife – offender in embittered relationship with wife – motivated by affair with younger woman and need to avoid costly divorce – above midrange of objective seriousness – not guilty plea – minor criminal record – few favourable subjective findings – need to sentence in accordance with past practices – no comparable cases CRIME – sentence – particular offences – solicit to murder – no precedent for charging such offence where victim actually killed – De Simoni principle – need to avoid sentencing for more serious crime of accessory before fact of murder – evidence such as family victim impact statements not to be taken into account

CRIMINAL LAW – sentencing – murder – organised and supplied gun used in shooting – victim shot in public street – vigilante response to brother’s death – murder planned – upper range of objective gravity – subjective circumstances – mental illness

PRACTICE AND PROCEDURE – summary dismissal – no reasonable causes of action disclosed – adverse possession claim against the Crown precluded by s 45D(3) of the Real Property Act 1900 (NSW) and s 170 of the Crown Lands Act 1989 (NSW) – claim for compensation for care and management of land untenable – appropriate to exercise power to dismiss proceedings under UCPR r 13.4

LEGAL PRACTITIONERS – solicitors – defendant seeking to restrain plaintiffs’ solicitors from acting – when solicitors can be restrained – test for restraining solicitors – inherent jurisdiction to preserve the proper administration of justice – test of the fair-minded, reasonably informed member of the public

CRIME – sentence appeal – offence of importing a marketable quantity of cocaine – failure by the judge to allow a discount for the utilitarian value of guilty plea – whether applicant should be re-sentenced – no different sentence than the sentence imposed by the judge should have been passed – appeal dismissed

CRIME – sentence appeal – knowingly take part in the supply of a prohibited drug of not less than a commercial quantity – accumulation – whether the sentencing judge erred by considering the sentence against an incorrect maximum penalty – whether the trial judge erred in the accumulation of the non-parole period of the sentences – whether the applicant should be re-sentenced – whether the utilitarian discount for the guilty pleas should be more than 15% – whether there should be any moderation of general deterrence for the applicant’s mental conditions – parity – special circumstances – whether non-parole period appropriately reflected the criminality of the offences

CRIME – sentence appeal – assault with intent to rob armed with an offensive weapon causing grievous bodily harm – discharge firearm with intent to cause grievous bodily harm – specially aggravated take and detain for advantage – special circumstances – accumulation – whether the sentencing judge erred by failing to have regard to the effect of accumulating wholly the sentence to be imposed upon a pre-existing sentence

EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Admissions made by one of the accused to police – Where that accused was under the age of 18 at the time – Where those admissions were made in the absence of an adult – Whether there was a proper and sufficient reason for the absence of an adult – No proper and sufficient reason – Opportunity for police to have an adult present – Where police encouraged the making of the statements by the offender in the absence of an adult – Evidence excluded in part EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence of the accused in company at a prayer room shortly prior to their arrest – Whether evidence relevant – Whether if relevant evidence should be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice – Evidence admitted EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Evidence of disposal of items by the two accused at the time of doing such acts – Whether evidence relevant – Evidence admitted EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence against one accused of his presence at a previous unrelated protest holding a sign promoting violent ideology – Whether evidence relevant – Whether evidence should be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice – Evidence relevant to the accused’s extremist ideology – Evidence admitted EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence against one accused of his admissions made regarding previous travel to parts of Egypt – Where admissions made outside of Australia to consular officers – Where officers of the Egyptian Government were in close proximity to the accused when the admissions were made – Where the accused had previously been held in Egyptian custody - Whether the admissions had been influenced by the violent and oppressive conduct to which the accused had been subjected when in previous custody – Evidence excluded EVIDENCE – Where two accused charged with doing acts in preparation for a terrorist act – Where Crown sought to lead evidence of extremist material found on the mobile telephone and computer of one accused – No direct evidence that the accused had read or viewed the material – Whether evidence relevant – Whether the probative value of the evidence outweighed by the danger of unfair prejudice – Evidence relevant to the state of mind of the accused – Not unreasonable to assume that accused had viewed, or had intended to view – the material – Evidence admitted EVIDENCE – Practice and procedure – Application for separate trial – Where Crown sought to try two accused jointly for offence of committing acts in preparation for a terrorist act – Where some evidence admissible against one accused but not the other – Where that evidence clearly defined – Not a case where the evidence to be lead against only one accused was significantly different to or weaker than that which was to be lead against the other accused – Application for separate trial refused WORDS AND PHRASES – “influence” – “influenced by”

EVIDENCE – tender of plan - whether plan is final version - difference between plan and the construction - whether plan referred to in the contract - relevant and authentic - admissible

NEGLIGENCE – severe personal injury - gas explosion at place of work - explosion - gas regulator negligently installed - gasfitting at School -Dangerous Goods (Gas Installations) Regulation 1998 (NSW) EVIDENCE – whether a party can cross examine on a regulation which was not expressly pleaded - statement of claim - UCPR 14.14 - requirements of the rules in the overall context in which the question arises - central issue was whether the compliance plate had been attached - cross-examination allowed on this topic