Cases and authorities

CORPORATIONS – examination of officers and others – where creditors seek access to records of the examination including transcripts – where public examinations conducted by deed administrators – factors relevant to the justification of access – whether Court should allow access to records of the examination – Corporations Act 2001 (Cth), ss 596F, 597.

CORPORATIONS – winding up – approval of liquidators remuneration – where sole activities of the company were as trustee of a trading trust – where company did not hold any assets other than trust property – whether the liquidator’s remuneration is reasonable – whether reasonable for the liquidator to pay certain expenses using trust assets – whether liquidator’s remuneration and costs of application should be paid from trust assets in priority to the trust’s creditors

SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant is also an adult child of the deceased and one of the executors named in the Will to whom Probate granted –– Modest estate in value, principally comprising deceased’s interest in real property – No provision made for Plaintiff – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made – No order for provision made REAL PROPERTY - Possession of land sought by executor to whom Probate of deceased estate granted – Self-represented Defendant to whom Probate not granted in sole possession of whole of the property in which deceased had one-third interest - Matters raised by Defendant relate to claim for trust by deceased’s contribution to repayment of mortgage when husband died – No such claim made by the deceased during her lifetime - No defence to claim for possession - Plaintiff entitled to judgment - Writ of possession of land ordered – Short stay on execution of writ of possession ordered

TRUSTS – father contributes funds to the acquisition of a property by his daughter – whether the contribution was an investment or gift – whether the parties intended a trust to be created

LAND LAW - Conveyancing - Contract for sale - defendant/vendor alleges contract novated from second plaintiff (the original purchaser) to first plaintiff (the alleged new purchaser) - novation contested by plaintiffs - Notice of Termination issued by vendor to the first plaintiff - whether termination effective - first plaintiff initially sought declaration that the contract for sale was on foot and specific performance claim for a declaration and specific performance later abandoned - plaintiffs seek return of deposit in the alternative - cross claim by vendor seeking to retain deposit - whether vendor entitled to retain deposit under Conveyancing Act 1919, s 55(2A).

REAL PROPERTY – voidable dispositions – intent to defraud creditors – Conveyancing Act 1919 (NSW), s 37A – where husband transferred 49% interest in residential property to wife for stated nominal consideration – whether sufficient evidence of motive to justify finding of intent EVIDENCE – witness evidence – cross examination – rule in Browne v Dunn – where no cross examination directed to credibility as distinct from reliability of witness’ evidence – whether sufficient challenge to accuracy and reliability of witness’ version of events – whether primary judge permitted to reject evidence of witness

CONTRACT – Shareholders Deed – Construction of contractual notices – Plaintiff shareholder in First Defendant company – Russian Roulette Notice (“the Notice”) issued by another shareholder to the Plaintiff – Issue of validity of the Notice – Question of construction as to the validity of an amendment to the shareholders deed with respect to the time within which the Plaintiff could respond to the Notice; HELD: Notice invalid due to curtailment of time within which the Plaintiff could respond or, alternatively, due to ambiguity. EQUITY – fiduciary duties – Plaintiff claimed that directors of the First Defendant company breached fiduciary duties owed to the First Defendant – claims that directors owed fiduciary duties to Plaintiff – Issues of conflict of interest and adequacy of disclosure by the directors; Issue of disclosure of matters known to all directors – Consideration of remedy available where no party sought to set aside the transaction said to give rise to the benefit to the directors; HELD: No breach of fiduciary duty owed to First Defendant and no separate duty owed to the Plaintiff. CORPORATIONS ACT – Directors’ duties – Claim of statutory breaches by the directors of the First Defendant under ss 181 and 182 of the Corporations Act 2001 (Cth); HELD: No breach established.

CRIMINAL LAW – evidence – documentary evidence – proof of contents of documents – Crown seeks to tender video file recovered from mobile telephone – where original file unplayable or corrupted – where programme used to recover or repair document – operation of s 48 Evidence Act – whether section renders evidence inadmissible – whether video file a document – whether relevant “document” is the corrupted file or the recovered file – assessment of probative value of evidence – evidence admissible

NEGLIGENCE – personal injury - case management - concurrent expert evidence - one expert overseas - appropriateness of audio visual link - efficiency - Civil Procedure Act 2005 (NSW) - balanced against - voluminous documents - inability to mount case fully and robustly - discretion of Court - Hearing date confirmed - part-heard until expert available for concurrent expert evidence

CRIMINAL PROCEDURE – whether evidence of expert witness and the doctor of that witness should be taken by use of audio-visual facilities – where there is a question of the fitness of the expert witness to give evidence – relevant considerations

CRIMINAL LAW – trial – accused charged with murder – co-accused charged with accessory after the fact to murder – application to confine the Crown case – question of a “shift” in the Crown case – significance of Crown opening address – whether accused prejudiced by asserted “shift”.

CIVIL PROCEDURE – notice of motion – whether Amended Defence complies with rules of formatting to permit differentiation of it from the preceding pleading – whether the Amended Defence provides sufficient detail about the particular parts of documents relied upon and their asserted effect – paragraphs struck out with leave to file a further amended defence

EVIDENCE – admissions – criminal proceedings – whether exculpatory statements by accused amount to admissions – whether such statements amount to implied admissions if untruthful – where accused gave evidence at first trial – where Crown seeks to read portions of that evidence in this trial – where evidence given by accused consistent with plea of not guilty

Equity – interlocutory injunction – mandatory injunction – access to leased property for landlord’s valuer – issues as to construction of lease – factual issues as to grounds of tenant’s refusal and purpose of access – balance of convenience – no sufficient urgency

ADMINISTRATIVE LAW – judicial review – whether denial of procedural fairness occurred – whether a judicial officer should give a non-party an opportunity to be heard prior to an adverse finding being made about him or her – summons dismissed

SUCCESSION – wills, probates and administration – whether gift to “the Avondale College Foundation” a reference to “the Avondale Foundation” – whether that entity dissolved – whether gift should be administered by cy-pres scheme – whether gift lapsed or failed

NEGLIGENCE – breach of duty by auditor of self-managed superannuation fund – negligence in failing to identify and report doubts as to recoverability of assets described in financial statements as cash – primary judge erred in failing to have regard to the breadth of the appellant’s case – breach of duty caused loss NEGLIGENCE – contributory negligence – appellant lacked financial sophistication – respondent auditor engaged to prevent the kind of loss that occurred – appellant’s damages reduced by 10% for its contributory negligence NEGLIGENCE – proportionate liability – claim against superannuation fund’s auditor – damages of appellant not reduced by reason of directors’ concurrent liability to the appellant – the same acts of the directors resulted in the appellant’s damages being reduced for its contributory negligence – to permit both reductions would result in a double deduction for the same acts NEGLIGENCE – proportionate liability – claim against superannuation fund’s auditor – company which compiled the fund’s financial statements not proved to be also liable to appellant – no evidence as to the basis on which the company was engaged

CRIME – appeal – sentence – taking into account value and weight of drug imported when not known to offender – alleged error in failing to take mental illness into account – whether loss of housing commission accommodation while in custody amounts to extra-curial hardship – alleged manifest excess

CRIME – appeal against severity of sentence – multiple charges arising out of single course of conduct – firearms offences – intimidation causing fear – offences not involving identical elements – whether same culpability double-counted in sentencing – aggregate sentence

CRIME – appeal – sentencing – time served on remand – whether sentencing judge failed to take one period of custody into account

CIVIL PROCEDURE – procedural matters - non-attendance of plaintiff - fees - proceedings continued by tutor - extended time given to file fresh consent to act as tutor and solicitor’s certificate - partial incapacity - depressed fracture of skull - brain damage - legal incapacity - accepted part of brain damage involves executive functions - unpredictable behaviour - missed various medical assessments - bereavement - satisfied defendant’s needed to bring motion - plaintiff must be made aware of rules COSTS - plaintiff ordered to attend appointment - whether plaintiff should pay for the defendant’s cost of the motion - including non-attendance fees - ordered - not payable forthwith – plaintiff will likely recover damages - defendant’s loss can be recouped after

EVIDENCE – inspection of scene of events giving rise to murder charge – joint application – relevant considerations

CIVIL PROCEDURE – orders for examination of persons - proceeds of crime - consent - subject to conditions - audio visual link - costs - power resides in approved examiner - Administrative Appeals Tribunal - no power to make orders in relation to costs - reserved liberty - direct parties to being short minutes of order

LEGAL PROFESSION – Law Society suspended lawyer who challenged suspension – proceedings resolved by lifting of suspension – both Law Society and lawyer sought costs – lawyer’s unreasonable conduct brought about suspension – lawyer ordered to pay Law Society’s costs LEGAL PROFESSION – duty of lawyers to communicate with regulatory authority in a timely and honest way

SENTENCE – manslaughter – verdict of guilty after trial - unlawful and dangerous act – single stab causing death – offence captured on CCTV – self-defence rejected by jury – whether remorseful

LAND LAW – easements – adjacent rights of way – construction of easements – whether rights of way permit passing and re-passing using vehicles – substantial interference – whether work performed on right of way amounts to a substantial interference – no substantial interference established – damages – claimed diminution in value of land – expert valuation opinion based on assumptions which lacked evidentiary foundation

APPEAL – challenge to findings of fact – credibility findings – no matter of principle.

EVIDENCE – leave to cross-examine own witness – whether evidence unfavourable to Crown – whether inconsistent with statement – good car to move a body in – conversation in witness statement not given in evidence – witness not making a genuine attempt to give evidence – leave granted

CIVIL PROCEDURE – approval of proposed agreement on quantum of damages - contested liability - breach of duty of care - causation - bipolar disorder - lamotrigine - side effects – Steven-Johnson Syndrome - Toxic Epidermal Necrolysis - legally blind - fully qualified high school teacher - quantum questions - satisfied that the proposed agreement is in the plaintiff’s best interests

TAXES AND DUTIES – landholder duty – whether land exempt from duty as land used for the purpose of primary production – land exempt per Section 163D of the Duties Act 1997

CIVIL PROCEDURE – proceedings for directions as to payment out of court - application under UCPR 55.11 - Trustee Act 1925 (NSW) - mortgagee of real property - defaulted on mortgage - title search - no caveat - identification of applicant - supplementary affidavit - In the matter of Concrete Injector Bolts Pty Ltd [2012] NSWSC 820 - three elements - one relevant element - usually necessary to be proved by the applicant for payment out - satisfied in the circumstances - forthwith order

COSTS – discontinuance – proceedings futile due to supervening event – whether sufficient grounds to depart from default position on costs contained in Uniform Civil Procedure Rules 2005 (NSW), r 42.19

CONSTITUTIONAL LAW — Judicial power — Whether Civil and Administrative Tribunal (NSW), NCAT, exercises judicial power — Whether NCAT exercises judicial power when determining matters under the Residential Tenancies Act 2010 (NSW) — NCAT exercises judicial power. CONSTITUTIONAL LAW — Whether NCAT a “court of a State” — NCAT is not a court of a State. COURTS AND TRIBUNALS — Jurisdiction of NCAT — Whether NCAT has authority to adjudicate in matters under the Residential Tenancies Act 2010 (NSW) between residents of different states — NCAT does not have jurisdiction to adjudicate. LEASES AND TENANCIES – residential tenancies – tenancy at will – termination.

TORTS – negligence – professional negligence – legal practitioners – plaintiff entitled to payment from husband under Family Court consent orders – where defendants represented husband in matrimonial property dispute and in relation to encumbrance and sale of matrimonial property –wife separately represented in matrimonial proceedings initially – wife terminated retainer of her solicitor and became unrepresented – proceeds from sale of land not used to satisfy payment to plaintiff pursuant to consent orders – whether husband’s solicitors owed duty of care to wife – whether defendants acted under conflict of duties – whether unconscionable conduct of defendants under the general law or within meaning of Trade Practices Act 1974 (Cth), s 51AB – ostensible authority and agency – whether husband was ostensible agent of wife in giving instructions to husband’s solicitors – claim dismissed

EVIDENCE – admissions – hearsay – statements made by accused in first trial – whether admissible in second trial

EVIDENCE – relevance – exclusion of evidence – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused – where recorded telephone calls made by the accused to his wife from gaol – where the accused is aggressive and offensive in those calls – where calls relevant to whether the accused had an intention to plead guilty

EVIDENCE – privilege – public interest immunity – matters of state – subpoena – criminal proceedings – whether public interest in confidentiality outweighs public interest in disclosure to the accused – where document relates to a confidential source of information – where disclosure may prejudice the prevention, investigation or prosecution of an offence – where document contains irrelevant material – public interest immunity upheld

EVIDENCE – admissions made with authority – co-conspirators rule – provisional relevance – whether statements by co-offender admissible against accused – whether it is reasonably open from evidence other than the statements themselves that the statements were made in furtherance of a common purpose –where letters written by co-offender from gaol EVIDENCE – tendency and coincidence –consciousness of guilt evidence – whether significant probative value – whether abuse of process or procedural unfairness – where trial for the murder of Crown witness – where separate trial for perverting the course of justice – where evidence to be adduced in both trials

DEFAMATION – imputations arising from various publications on the internet and other social media – persistent defamation of plaintiffs – permanent injunctions sought and granted

JUDICIAL ADVICE – Trustee Act s 63 – proceedings seek judicial advice in relation to the identification of certain charities – proceedings are charitable trust proceedings “with respect to the administration of a charitable trust” within the Charitable Trusts Act 1993 s 5 – the Attorney General is a party – the will of a testatrix makes bequests to three organisations described as charities – whether or not each bequest describes an existing charitable organisation - whether any of the bequests fails for wont of sufficient identification of an existing charitable body – whether with respect to any failed gift the will exhibits a general charitable intention – whether, in respect of any failed gift, if the will exhibits a general charitable intention, the Court should order a cy-pres scheme MEDIATION – Mediation of related proceedings for family provision ordered under Civil Procedure Act s 26 – the mediation to take place in the near term – if one or more of the gifts to charity were to fail, who is to represent the interests of charity associated with the gift at the mediation. WILL – construction – proper construction of will which requires the executors and trustees to make a “diversity” of investments – meaning of expression – whether the expression alters the duties of the executors and trustees.

BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator’s decision –content of the reasons to be included in determination – where adjudicator concluded that contractual condition precedent to extension of time was not legitimate or workable because it depended on something happening under another contract – whether the determination failed to include the reasons for the determination – whether the adjudicator departed from the statutory function by so concluding

APPEAL – application for leave to appeal – interlocutory applications – re-agitating interlocutory application – no change of circumstances or new evidence CIVIL PROCEDURE – application for leave to appeal – whether denial of procedural fairness or bias

CRIMINAL LAW – appeal against sentence – large commercial drug supply - co-offenders resentenced by Court of Criminal Appeal after successful appeals – parity issue arising from resentencing of co-offenders - Crown concedes parity ground established - error in approach to financial gain as aggravating factor - applicants resentenced

CRIMINAL LAW – appeal against sentence – robbery in company – resisting police – whether sentencing judge erred in the assessment of objective seriousness – whether sentencing judge erred in the assessment of moral culpability – whether sentencing judge erred in finding that the applicant was on conditional liberty – whether sentence manifestly excessive – where deprived background – where intellectual disability – where offending in the lowest end of objective seriousness – appeal allowed – resentenced

COSTS — Gross sum costs orders — Gross sum costs orders made in respect of two notices of motion

DEFAMATION – imputations – whether reasonably capable of being conveyed by the matter complained of – insinuation of sinister meaning by combination of photographs and juxtaposition of seemingly irrelevant fact with report of police investigation

PROCEDURE – application to extend time for filing defence – no question of principle

DEFAMATION – pleading – whether proposed amended pleading requires leave under s 65(2)(c) of the Civil Procedure Act 2005 (NSW)

CRIMINAL LAW – evidence – thrills of being a criminal advocate – surprises – where witness gives evidence not included in witness statement – whether unfair prejudice – where experienced counsel has significant material to impeach credibility of witness – where alternative remedies available to cure any unfairness – assessment of probative value – if accepted probative value high – evidence admissible

COSTS – where plaintiff succeeds on various causes of action but fails on one – appropriateness of apportioning costs on an issue by issue basis; HELD – apportionment not appropriate; ORDERS – where proposed acquisition notice declared of no statutory effect – appropriateness of making quashing order and granting injunctions; HELD – declaration as to invalidity suffices