Cases and authorities

CORPORATIONS – application by special purpose receivers under s 283HB of the Corporations Act 2001 (Cth) for direction that they have power to settle claims made by company – where applicants were previously appointed by Court as special purpose receivers under s 283HB of the Corporations Act – whether Court has jurisdiction under s 283HB of the Corporations Act or s 67 of the Supreme Court Act 1970 (NSW) to give such direction to the special purpose receivers – whether proposed settlement is within the class of questions on which the special purpose receivers may legitimately seek directions – whether directions sought by the special purpose receivers should be given

FUNDS IN COURT – security for costs – payment out – procedure for – where liable plaintiff and defendants agree on defendants’ entitlement to security fund – where other plaintiffs have contributed to that fund – notice must be given to all parties potentially interested

CIVIL - forensic patient - Mental Health (Forensic Provisions) Act 1900 – person being detained under extension order made in May 2017 - extension order due to expire - application for interim extension order – whether unacceptable risk of causing serious harm if status as forensic patient ceases – whether the risk cannot be adequately managed by other less restrictive means – interim extension order made together with order for examination

EQUITY – trusts and trustees – judicial advice –whether Deed Poll a “deed supplemental to” the Trust Deed – whether modification or alteration of provisions of Trust Deed relate to powers or discretions of the Trustee EQUITY – trusts and trustees – rule against perpetuities – whether power to issue new units is general or specific power of appointment

EQUITY – Trusts and trustees – whether “security bond” intended to become part of the property of the purchaser – whether money held on resulting trust with implied obligation to return the money if purpose failed – whether money received by defendant EVIDENCE – Burden of proof – civil proceedings – Briginshaw v Briginshaw EVIDENCE – Witness evidence – failure of defendant to give evidence – presumption that it would not assist her case LIMITATION OF ACTIONS – whether action barred by s 48 of the Limitation Act 1969 (NSW)

COMMERCIAL ARBITRATION – consideration of s 27D of the Commercial Arbitration Act 2010 (NSW) – discussion of requirements for arbitrator to act as mediator – where arbitrator so acted – arbitrator’s mandate terminated pursuant to s 27D(6) absent subsequent written consent of the parties – whether such consent can be inferred from the written record of the transcript – such inference of consent impermissible – consequently no written consent provided. COMMERCIAL ARBITRATION – statutory waiver – consideration of s 4 of the Commercial Arbitration Act 2010 (NSW) – whether first defendant waived its right to insist on written consent – s 4 requires actual knowledge of the provision which is to be waived – no such knowledge in present case – no waiver established. EQUITY – whether first defendant estopped from insisting on written consent – no evidentiary basis for either conventional estoppel or estoppel by representation – no detriment suffered by plaintiff in any event – proceedings dismissed.

PRACTICE – default judgment – defence struck out – judgment entered in favour of plaintiff

CRIMINAL LAW – procedure – witnesses – evidence by way of audio visual link – where accused opposes use of technology – where witness a long distance from court – where witness’s preference is not to travel – right to confront accusers – Court’s unhappy experience with technology – interests of administration of justice – onus on party seeking to use technology

CRIMINAL LAW – belated objection to part of a statement admitted without objection – where part of statement suggests the accused dealt in drugs – where accused put to a previous witness that the witness purchased drugs from the accused – inexplicable glitch – where evidence has potential to establish connection between accused and other relevant players in the narrative – where Crown eschews use of evidence to establish bad character – trial by Judge alone – evidence capable of being used in a limited way

CIVIL PROCEDURE – application to vacate hearing date – where second defendant proposes to file cross claim – factual overlap between main claim and proposed cross claim – desirability of avoiding same factual issues being double handled – inadequate explanation given as to delay – however no prejudice in vacating date except for costs – application granted with costs orders made.

CRIMINAL LAW - sentence - contempt in the face of the court - plea of guilty - wilful refusal to answer questions

FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Adoption – Practice and procedure – Adoption orders made in absence of defendant birth father – No issue of principle

COSTS – application for costs on indemnity basis – where Court dismissed plaintiff’s statement of claim for want of due dispatch with costs – where proceedings delayed by plaintiff for 3 years – whether plaintiff’s conduct amounted to relevant delinquency – no further evidence provided showing plaintiff responsible for abuse of processes of the Court – whether Court functus officio upon making costs order – order not reduced to writing or entered up – Court not functus officio – application for costs on indemnity basis refused.

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Offer of compromise contained no element of compromise — No issue of principle — UCPR Pt 20 r 20.26, Pt 42 r 42.15A

EQUITY — Contribution — Co-ordinate liability — Between co-sureties — whether the plaintiff is entitled to contribution from the first defendant EQUITY — Subrogation — Rights of subrogated party — co-guarantor paid more than their share of liability — plaintiff entitled to contribution from first defendant EQUITY — Assignment — Of causes of action — whether the cause of action was capable of assignment — whether there was a valid assignment to the plaintiff of rights of contribution and subrogation as between co-guarantors — whether the plaintiff as assignee had standing — whether the assignment was limited to the rights attached to the deed of assignment EQUITY — Subrogation and Contribution — Limitation of Actions — whether rights of contribution and subrogation were statute-barred by direct application of statutory limitation provisions or in equity by analogy EQUITY — Subrogation — Requirements — equitable doctrine of subrogation — statutory subrogation — right of co-sureties to subrogation in equity — right of co-sureties to statutory subrogation EQUITY — Defences — Laches and acquiescence — Discretionary factors — whether laches available — laches not available

PRACTICE & PROCEDURE – Reliance on equitable jurisdiction to dismiss proceedings and to enjoin plaintiff from using certain legal representatives – basis for dismissal impossible to make out – other orders relying on 3rd party’s alleged breach of confidentiality and/or secrecy provisions require separate proceedings to which third party would need to be defendant and cannot be persuaded as interlocutory proceeding in this matter.

APPEAL – appeal from Appeal Panel of New South Wales Civil and Administrative Tribunal – appeal under s 83 of the Civil and Administrative Tribunal Act 2013 – appeal by leave – appeal “on a question of law” – no basis for alleged errors giving rise to a question of law – leave refused

SUCCCESSION – family provision – where deceased left her estate wholly to one adult son – no provision made in will for other two adult children – whether provision should be made under s 59 of the Succession Act 2006 (NSW) in favour of other children – relevance of promises made by deceased or arrangement contemplated by deceased – less than full and frank disclosure by beneficiary of the estate – appropriate approach to balancing needs of beneficiary and applicants in context of a small estate – family provision orders made

EQUITY - injunctions - interlocutory injunction - application to restrain completion of contract for sale of land - alleged beneficiary of trust claims trustee sells legal estate without beneficiaries’ consent -whether any evidence supports the inference that the purchaser has notice of any alleged breach of trust by the trustee - whether there is a serious question to be tried – strength of the plaintiffs’ case - what is the balance of convenience - delay in applying for injunction - whether beneficiaries’ laches and delay is a sufficient basis to refuse the application for injunction.

SUCCESSION – Wills, probate and administration – Construction and effect of testamentary dispositions – Purported revival of a will revoked by marriage – whether an email from the deceased to his brother operated as an informal will to revive the will revoked by marriage– No informal will where a document is not of itself intended to operate as a will

PRACTICE AND PROCEDURE – application for leave to appeal – applicant a litigant in person – where applicant did not appear at hearing – application for adjournment sought on grounds of ill health – where applicant emailed Registrar stating that he would not appear in court due to illness – whether medical evidence demonstrates applicant unable to appear for medical reasons – interests of justice

APPEAL — separate determination of questions —judgment entered following determination of separate question — whether leave to appeal required — Supreme Court Act 1970 (NSW), ss 101(2)(e), 103 CIVIL PROCEDURE — separate questions — where appropriate — whether sufficient evidence before Court to determine separate question — whether separate determination of question should have been ordered — Uniform Civil Procedure Rules 2005 (NSW), r 28.2 DEFAMATION — identification — indirect identification — article alleged misconduct by elders of church — plaintiff corporation trading under name of church — whether matter complained of capable of identifying corporation

LEGAL PRACTITIONERS – application for order that respondent’s legal representatives withdraw from proceedings – no conflict of interest – Solicitors’ Conduct Rule 12.1 – Barristers Conduct Rule 101(b) – allegation of professional misconduct – Kallinicos v Hunt – whether intervention by the court justified PRACTICE AND PROCEDURE – where litigation referred for pro bono assistance – where avenues of pro bono assistance exhausted – order terminating referral made

CRIMINAL LAW – subpoena to produce documents – accused charged with murder – subpoena seeking criminal histories of prosecution witnesses – whether legitimate forensic purpose – whether “fishing expedition” – whether accused required to show basis of belief that witness has a criminal record – whether access should be determined during course of witness's evidence – unworkable – prosecution duty of disclosure

CORPORATIONS – winding up – examination by liquidators – application for examination to be held in private – whether “special circumstances” established – no pending prosecution of director – likelihood of criminal prosecution – whether publicity in mass media and social media of answers to questions might prejudice fair criminal trial – substantial pre-existing publicity – availability of steps to address risk of unfair trial, including potential for application for judge alone trial – special circumstances not established – application dismissed

EQUITY — Trusts and trustees — Charitable trusts — Cy-près schemes EQUITY — Trusts and trustees — Judicial advice — whether the Plaintiff is justified in appealing an order of the Attorney General establishing a cy-près scheme — whether the Plaintiff’s costs of such an appeal should be paid out of the trust

CORPORATIONS – statutory demand – whether genuine dispute – related company entered into written contract with plaintiff debtor – invoices for services rendered by defendant – seven invoices rendered and paid – dispute as to eighth and ninth invoices – whether implied contract by conduct between plaintiff and defendant on same terms as written contract – difficulty in drawing inference that parties have disregarded written contract – inconsistencies in evidence adduced by defendant – statutory demand set aside

LAND LAW – mortgages – possession of land – default under loan agreement and mortgage - where no defence pleaded to claim – sale of property by mortgagor – 14 week completion – plaintiff entitled to judgment but entry of judgment stayed until after expected completion date of contract for sale

EVIDENCE – opinion evidence – exceptions – expert opinion – advance rulings – whether expert opinion admissible – whether parts of lay evidence admissible PRACTICE AND PROCEDURE – pleadings – whether case propounded in affidavits beyond pleadings – whether pleadings embarrassing

SUCCESSION — Family provision and maintenance — Claim by two adult children against insolvent estate — Small estate even if notional estate order made — Succession Act 2006, ss 59, 60, 78

CIVIL PROCEDURE — Interim preservation — Freezing orders — Variation of — whether freezing order should be discharged — whether the amount the subject of the freezing order should be reduced — whether the defendant should be allowed increased living expenses and legal costs out of the subject of the freezing order

EQUITY – trusts and trustees – judicial advice – application by Asbestos Injuries Compensation Fund for advice – advice sought pursuant to s 55 of James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 – whether Trustee would be justified in not paying so much of the damages award as reflects the extent to which award relates to exposure outside Australia INTERPRETATION – general rules of construction of instruments – Trust Deed, Final Funding Agreement and James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 – construction of “payable liability” and related terms

CRIMINAL LAW – Sentence - Murder - child under the law - objective seriousness of offending - intoxication - provocation - s 166 certificate - aggravated break and enter and steal - plea of guilt consciousness of guilt - mitigating factors - offensive weapon charge - subjective factors - family impact statements - aggregate sentence - totality - self-induced intoxication - remorse - special circumstances – concurrence - overall criminality

CIVIL PROCEDURE – application for proceedings to be heard together – where proceedings arise out of a single event – where considerable factual overlap – where the just, quick and cheap resolution of the proceedings would be facilitated by the matters being heard together

COSTS – party/party costs – where solicitor commenced proceedings for an injunction to enforce a solicitor’s lien over the fruits of litigation – where solicitor’s client sought to re-direct verdict monies into her own account contrary to the terms of a costs agreement and an authority to receive – where unnecessarily protracted litigation – where proceedings inappropriately used as a vehicle for defensive cross-claims that were doomed to fail and which were ultimately abandoned – whether specified gross sum costs order appropriate

CRIMINAL LAW – procedure – adjournment, stay of proceedings or order restraining proceedings – murder proceedings – power to order stay of proceedings until Crown paid legal costs of accused thrown away due to discharge of jury and retrial – serious fault on part of Crown caused unfairness to accused – Crown sought discharge of jury after Court refused to allow it to tender evidence at the end of its case – evidence corroborated principal witness and was described as “critical” but was not previously made available – costs of accused assessed by measure of reasonableness

CIVIL PROCEDURE – pleadings – statement of claim pleading novel basis for invoking gaoler’s duty of care – whether manifestly unarguable – admittedly inelegant pleadings – objections as to form of pleading – consideration of overriding purpose and object of proportionality – recognition that in pursuit of those objects breaches of the formal requirements of the rules whilst unfortunate must sometimes reluctantly be condoned

CRIMINAL LAW – appeal against sentence – sentencing of children – relevant principles of sentencing – where 13 year old commits serious sexual offences on younger relatives – offences impulsive and opportunistic – appreciation of wrongfulness of acts and consequences – whether Judge erred in assessing objective criminality – strong evidence of rehabilitation – interference with education of offender – whether Judge erred in deciding there were no alternatives to a full time custodial sentence only appropriate sentence – whether Judge erred in deciding offences involved breach of trust – emphasis on rehabilitation – various errors established CRIMINAL LAW – sentence – sexual offence carrying life imprisonment included on Form 1– contrary to the statute – concession that proceedings miscarried – appropriate orders – remission or re-sentence?

CRIME – leave to appeal against sentence – applicant convicted of one count of aggravated sexual intercourse with a person under 10 years of age, one count of sexual intercourse with a person under 10 years of age and one count of indecent assault of a person under the age of 16 years – whether sentencing judge erred in assessing objective criminality – whether sentences imposed are manifestly excessive

CRIMINAL LAW – Crown appeal – s 5DA of the Criminal Appeal Act 1912 – discount granted for future assistance which did not eventuate – not necessary to determine whether on appeal a more complete resentencing process was available – issue discussed – discount for future assistance reversed – appeal granted.

CRIMINAL LAW – sentence appeal – supply of large commercial quantity of a prohibited drug – no specific discount for early plea of guilty referred to in reasons for sentence – whether explanation pursuant to s 11 of Criminal Appeal Act 1912 appropriate – sufficient indicia that discount had been allowed – leave to appeal granted but appeal dismissed.

CRIMINAL LAW – conviction appeal – cultivation of cannabis by enhanced indoor means – shed being used to hydroponically grow cannabis plants – co-offender tending plants – whether sufficient evidence to connect lessee paying rent for shed to joint criminal enterprise – sufficient evidence available – open to jury to find beyond reasonable doubt that offence proved.

CRIMINAL LAW – conviction appeal – assault with an act of indecency on a person under the age of 16 years – whether jury verdict unreasonable and cannot be supported having regard to the evidence – no reliance placed on inconsistent verdicts – basis for appeal was that the evidence did not support the offence occurring within the narrow timeframe available – submission that date of offending in the indictment an essential element for the Crown to establish – whether timeframe for offending as narrow as asserted by applicant – open to jury to find offence proved beyond reasonable doubt – leave to appeal granted but appeal dismissed.

TERRORISM – Terrorism (High Risk Offenders) Act 2017 – terrorism intelligence – application by Attorney General for order of service on defendant of redacted documents and on defendant’s legal representative of unredacted documents – discussion of issues – least restrictive order than full disclosure – order granted

LAND LAW – Caveats – Application for extension of caveat

PROCEEDINGS – whether solicitors for plaintiff retained by plaintiff absent instructions from second defendant as director – whether proceedings liable to be dismissed for that reason - whether second defendant was still a director of plaintiff at time of retainer CORPORATIONS – whether second defendant was removed as director of the plaintiff at a meeting of members of the plaintiff – whether meeting of members at which resolution passed was convened in accordance with provisions of constitution of the plaintiff – whether any shortcoming was a procedural irregularity for the purpose of s 1322 of Corporations Act 2001 (Cth) COSTS – security for costs - where plaintiff admittedly impecunious – whether such impecuniosity caused by conduct complained of in proceedings – whether ordering security would stultify proceedings – whether costs likely to be incurred will be duplicated in proceedings ordered to be heard concurrently

COSTS – application for security for costs – principles – r 50.8 of the Uniform Civil Procedure Rules 2005 – whether or not special circumstances demonstrated – discretionary factors – prospects of success – impecuniosity – question of bona fides – conduct in litigation – risk of stultification – special circumstances established – exercise of discretion – quantum of security – directions

FAMILY LAW AND CHILD WELFARE — child welfare under State legislation — adoption — child living with proposed adoptive parent continuously since age two — Adoption Act 2000 (NSW), ss 8, 67

PARTNERSHIPS AND JOINT VENTURES – whether partnership agreement existed between the parties – whether and when partnership was dissolved – requirements of notice of dissolution of partnership LIMITATION OF ACTIONS – whether order for taking of accounts barred by s 15 of the Limitation Act 1969 (NSW)

PROCEDURE – costs – application for costs on indemnity and ordinary basis – no order as to costs – order that parties be indemnified from estate with respect to preparing and responding to itemised schedule PROCEDURE – extent to which attorney under power is required to provide account to attorney’s principal