Cases and authorities

EVIDENCE – expert evidence – expertise – whether author of report holds expertise – expert witness conclaves – whether author of report should participate in expert conclave

COSTS – costs of third cross-claim – where unnecessary to determine issues raised by third cross-claim given dismissal of second cross-claim – where third cross-claimant ordered to pay costs of third cross-claim – whether some further or other order should be made – whether unsuccessful second cross-claimant should bear costs liability of third cross-claimant – whether reasonable to bring the third cross-claim against all cross-defendants – whether claims of second cross-claimant the catalyst for the third cross-claim

APPEAL - leave to appeal - interlocutory decisions striking out pleadings, dismissing application to set aside orders and dismissing proceedings for want of despatch - no appellable error identified - leave refused

APPEALS – leave to appeal – costs – primary judge made partial costs order in favour of applicants who were granted leave to be heard in opposition to creditors’ schemes – whether discretion of primary judge miscarried – first proposed ground of appeal not raised before primary judge – second proposed ground would give rise to complex questions of apportionment and need for further hearing – no question of principle or public importance or demonstrated injustice – leave refused

JURISDICTION – whether Supreme Court has jurisdiction to review STC decisions under the Police Regulation (Superannuation) Act 1906 (NSW), s 10B pursuant to Superannuation Administration Act 1996 (NSW), s 88 – whether jurisdiction vested in District Court pursuant to Police Regulation (Superannuation) Act, s 21(1) EMPLOYMENT AND INDUSTRIAL LAW – New South Wales – members of Police Force hurt on duty – review of compensation claims – whether jurisdiction to review formerly vested in Industrial Court now vested in Supreme Court – whether jurisdiction to review vested in District Court STATUTORY INTERPRETATION – bifurcated scheme for review of decisions – whether review of compensation claims vested in Supreme Court or District Court – use of legislative history and second reading speeches WORDS AND PHRASES – “decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty” – Police Regulation (Superannuation) Act 1906 (NSW), s 21(1)(a)

APPEAL – new trial – whether substantial miscarriage – whether remittal of whole or part of proceedings CORPORATIONS – directors and officers – where payments made by company to senior employee’s wife and their family company – whether employee caused the relevant payments to be made in breach of statutory and fiduciary duties owed to the company – whether the employee was a de facto director – whether a cogent commercial explanation for making relevant payments – whether payments related to employee’s remuneration package EVIDENCE – documentary evidence – application to adduce further evidence on appeal – where evidence raises issues of credit – business records exception to hearsay rule – whether exclusion in s 69(3)(b) of the Evidence Act 1996 (NSW) applies – whether the evidence should be excluded on discretionary grounds under s 135 of the Evidence Act

ADMINISTRATIVE LAW – administrative tribunals – NCAT – Civil and Administrative Tribunal Act 2013 (NSW), s 64 – urgent ex parte application – judicial review – where the plaintiff challenges the tribunal’s refusal to make an order under s 64(1)(d) so that documents about the plaintiff’s financial affairs could not be produced to the defendant – whether failure of the tribunal to make an order to confine the disclosure of documents was an error – natural justice – the rules of natural justice do not apply to a party with no legal interest in the outcome of tribunal proceedings GUARDIANSHIP – Guardianship Act 1987 (NSW), s 25G – grounds for making a financial management order – whether a person is “capable” of managing their financial affairs – whether a person of sound mental capacity can fail the “capability” test – whether information about a person’s financial affairs is relevant to “capability” – “capability” has a wide definition – information about the plaintiff’s financial affairs cannot be found to be “irrelevant to the question of capability” – NCAT is not bound by the rules of evidence – the way a “hearing is conducted is a matter for the tribunal” – NCAT decision upheld

PRACTICE AND PROCEDURE – application for leave to file further amended statement of claim – where pleading does not identify the case the defendant has to meet – whether disclosure should be ordered where Practice Note SC Eq 11 not complied with – whether leave should be granted for expert evidence extending to unpleaded matters – whether hearing dates should be vacated.

CIVIL PROCEDURE - discovery - affidavit of documents - form and contents - further and better discovery - whether reasonable search undertaken – application to cross-examine deponent on affidavit of discovery – where further affidavit provided – subpoena to be issued by deponent in relation to documents formerly in his possession - challenge to deponent’s credibility – order for cross-examination refused

CORPORATIONS – voluntary administration – application for declaration that appointment as voluntary administrators is valid – whether notice of meeting given to director was reasonable in the circumstances – whether failure to give longer notice of directors’ meeting was procedural in nature – whether to declare appointment of voluntary administrators valid

PRACTICE AND PROCEDURE – application for adjournment – where adjournment is sought so that a development application can be assessed by a new independent planning panel – whether the planning panel obviates the need for a s 88K application – the new planning system is “not an appropriate reason” to adjourn the plaintiff’s s 88K application – the absence of prejudice to the defendant is not enough to allow the plaintiff’s application to proceed DEVELOPMENT APPLICATION – Environmental Planning and Assessment Act 1979 (NSW), s 9.1 – Environmental Planning and Assessment Regulation 2000 (NSW), cl 49 – direction by Minister for Planning – Local Planning Panels Direction - Development Applications, Sch 1, cl 1 – discussion of whether development application is within the scope of cl 1 – discussion of whether Council is a “landowner” whose written consent is required for the plaintiff to lodge the development application EASEMENTS – Conveyancing Act 1919 (NSW), s 88K – discussion of grant of rights in an easement – discussion of whether a servient owner can owe a duty to the dominant owner to consent to the lodgement of a development application

CIVIL PROCEDURE — implied undertakings – documents produced under compulsion – release from undertaking — special circumstances – whether release would cause prejudice to producer of documents – where defendant’s trustee in bankruptcy sought to use documents in other proceedings – where producer of documents did not provide reasons why consent withheld – where producer of documents did not indicate any apparent prejudice – use of documents permitted

DEFAMATION – plaintiff sues Judge for matters stated in judgment – summary dismissal – absolute privilege – no question of principle

CRIMINAL LAW – application for trial by judge alone or separate trial of counts – indictment containing three counts – aggravated break and enter, murder, manslaughter – whether trial of aggravated break and enter with the other two counts impermissibly prejudicial to the accused – whether separate trials should be ordered or trial by judge alone

CORPORATIONS — Capital raising — agreement to provide corporate advisory services — whether advisor obliged to hold Australian Financial Services Licence — whether agreement related to the provision of financial services — whether advisor providing financial product advice — whether client entitled to rescind agreement under s 925A of the Corporations Act 2001 (Cth) — whether client gave notice of rescission in reasonable time EQUITY — Trusts and trustees — Resulting trusts — Quistclose trust — funds advanced on account of fees — funds held on trust — whether funds withdrawn without authority

CRIMINAL LAW – summary hearing well and truly off the rails – evidence of complainants in domestic violence case recorded by police – “DVEC” – whether made “as soon as reasonably practical” after event – interpretation of relevant provisions – application of erroneous legal test – where evidence excluded on different basis – where lawyer asserts temporal “gap” in recording –requirements of voir dire – no proper voir dire conducted – substance of evidence excluded not known to Magistrate – no capacity to assess probative value CRIMINAL LAW – refusal of adjournment – where Magistrate prohibits complainant from giving evidence after excluding DVEC – brief service provisions – interpretation of statute – relevant considerations – reasons difficult to fathom – where exclusion of evidence and refusal of adjournment resulted in no case against defendant – heavy workloads in lower courts – over-listing – where haste interferes with proper legal process

CRIMINAL LAW – appeal – sentencing – whether error in consideration of offences pursuant to Crimes Act 1914 (Cth), s 16BA – whether error in declining to allow discount for utilitarian value of guilty plea for federal offence – whether sentence imposed was manifestly excessive

SENTENCING – Aggravating factors – Substantial harm, injury, loss or damage – offenders carried out development without appointing a principal certifying authority or obtaining a construction certificate contrary to legislation – adjoining building collapsed after excavation occurred – whether damage to adjoining building was caused by contravention of legislation SENTENCING – Relevant factors on sentence – De Simoni double counting – offenders carried out development without appointing a principal certifying authority or obtaining a construction certificate contrary to legislation – adjoining building collapsed after excavation occurred – failing to protect and support or underpin adjoining buildings was also an offence under the legislation – whether taking into account damage caused was contrary to De Simoni

CRIME – appeal against sentence – failure to take into account utilitarian considerations of the applicant’s plea of guilty – Xiao v R [2018] NSWCCA 4 – error established – applicant to be re-sentenced by this Court - Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

CRIME – bail – release application – where previous application refused by the Court – consideration of Bail Act 2013 s 74 – change of circumstances relevant to the grant of bail – availability of residential rehabilitation program – s 74 satisfied – applicant required to show cause why detention not justified – young age of applicant – potential for reform – Court not persuaded that applicant had satisfied show cause requirement – no evidence of drug or alcohol addiction to be addressed by rehabilitation – previous failures to appear – unacceptable risk of applicant committing further offences – application dismissed

CONTRACTS – Rectification – Intention – Common intention – where contract comprised formal instrument and additional conditions – where special conditions contained clause purporting to replace clause in formal instrument – where clause in formal instrument was said to be “non-negotiable” prior to agreement – whether contract should be rectified by deleting clause in special condition BUILDING AND CONSTRUCTION – CORPORATIONS – where subcontractor wound up after obtaining adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether Building and Construction Industry Security of Payment Act remains available to subcontractor – whether subcontractor remains a “claimant” after being wound up – whether decision of Court of Appeal of Victoria on this question is plainly wrong – effect of s 553C of the Corporations Act 2001 (Cth) on subcontractor’s rights – whether there should be a stay of any judgment obtained by subcontractor based on an adjudication certificate issued under the Building and Construction Industry Security of Payment Act pending the taking of accounts under s 553C of the Corporations Act

SENTENCING – one offence of murder – mid-range of seriousness – early guilty plea – self-induced intoxication – diagnosed mental disorders – Autism Spectrum Disorder – Attention Deficit Hyperactivity Disorder – Oppositional Defiance Disorder – aggravating factor – offence occurred in the home of the girlfriend of the victim – mitigating factors – offence was spontaneous and unplanned – remorse – no special circumstances – importance of general deterrence and punishment

CRIME – bail – release application – Bail Act 2013 s 74 requirement – where bail previously refused by Court and Court of Criminal Appeal on same charges – alleged change of circumstances – increased surety – additional delay before trial – new expert material – new evidentiary material – s 74 threshold not met – application dismissed

CORPORATIONS – managed investment scheme – unregistered managed investment scheme – winding up – whether funds deposited by investors held on trust for investors or part of general assets – whether receipts by investors from other investors should be set off against entitlement to trust property TRUSTS – express trust – intention – certainty – where documentation contains statement that funds “held in trust” – resulting trust – Quistclose trust – contrastive trust – Black v Freedman trust arising from fraudulent scheme

COURTS AND JUDGES – apprehended bias – where defendant’s request for recusal in other proceedings acceded to – question raised by plaintiffs as to whether I should recuse myself in these proceedings

EXPERT’S REPORT – hydrometeorologist – whether qualified to express opinions on hydrometerological functions of flood engineers – whether opinions outside pleaded case – no question of principle

CRIMINAL LAW – special hearing conducted before judge alone – count of murder and alternative counts – provision of certificate protecting witness from self-incrimination – certificate repeatedly expanded to cover new topics – chronological explanation of that process – brief discussion of breadth of the concept of evidence that “may tend to prove” that the witness has committed an offence

CRIMINAL LAW – count of murder – alternative counts – special hearing – judge alone – application for Prasad direction – asserted inadequacy of evidence against accused – Crown case incapable of proving beyond reasonable doubt that accused was the perpetrator – application accepted – accused acquitted of all counts

INSURANCE – General – total and permanent disablement – plaintiff/insured self-employed in the building and construction industry – plaintiff suffers hip disability and ceases work in March 2012 – plaintiff a member of an industry superannuation fund – first defendant is a trustee of the fund – first defendant takes out a policy of insurance for the benefit of members of the fund with the second defendant insurer – plaintiff claims he is totally and permanently disabled after being off work for three months and entitled to a benefit for the same – the first and second defendants decline the plaintiff’s claim on various dates between June 2013 and April 2014 – identification of the duties applicable to each of the first and second defendants in making their decisions to decline the plaintiff’s claim – whether the first defendant trustee failed to act in good faith on a real and genuine consideration of the material before it – whether the second defendant insurer acted with the utmost good faith in dealing with the plaintiff’s claim and reasonably in forming an opinion as to whether the plaintiff qualified as totally and permanently disabled under the policy – whether the defendants’ respective decisions can be set aside – whether the Court should itself determine whether the plaintiff is totally and permanently disabled under the policy – whether the plaintiff was “unlikely to ever to be able to engage in any regular remuneration work for which he is suited by education training or experience”.

CIVIL PROCEDURE – Pleadings – Amendment COSTS – Security for costs – application for costs to be payable forthwith

VOLUNTARY ASSOCIATIONS – membership dispute – where registered political party governed by written constitution – construction of written constitution EQUITY – equitable remedies – injunctions – mandatory

CIVIL PROCEDURE – application to amend defence – application to withdraw admissions – where Defendant not aware of relevant facts – no undue prejudice or delay – application granted

CRIME – appeal against sentence – finding of special circumstances – Crown conceded trial judge’s nominal reduction of non-parole period affected by error –whether Court should intervene CRIME – appeal against sentence –applicant and co-offender received identical sentences – Crown conceded trial judgment affected by error - where co-offender’s sentence quashed and co-offender resentenced for same error by differently constituted Court of Criminal Appeal – circumstances in which Court may depart from earlier decision CRIME – appeal against sentence – finding as to purpose for retaining parts of cannabis plant – whether for production of cannabis resin – whether finding open on evidence – inference drawn from surrounding circumstances

CIVIL PROCEDURE – application to set aside judgment – application refused

PRACTICE AND PROCEDURE – vacation of hearing date – no issue of principle

ADMINISTRATIVE LAW – prohibition order sought against the New South Wales Health Care Complaints Commission instructing the New South Wales Crown Solicitor – abuse of process

SUCCESSION – testamentary capacity – the deceased excluded her niece from her will as a result of a false belief concerning the niece – whether the deceased’s holding of the false belief indicated that the deceased lacked testamentary capacity – test in Banks v Goodfellow (1870) LR 5 QB 549 considered – meaning and language of “insane delusion” considered

CORPORATIONS – winding up – application based on failure to meet creditor’s statutory demand – whether company should be wound up

CORPORATIONS – receivers – remuneration – accounts - release

CRIMINAL LAW – count of murder – special hearing – judge alone – lengthy voir dire – judicial discretion to admit or exclude evidence – objections under s 84, 85, 90, 138 and 139 of the Evidence Act – objection under s 281 of the Criminal Procedure Act – all admissions excluded under s 84 of the Evidence Act – ancillary rulings provided

ESTOPPEL — proprietary estoppel — whether representations made — whether issue estoppel, res judicata or Anshun estoppel arise from earlier Family Court proceedings where declaration of no interest in the subject property made by consent SUCCESSION — family provision application —adequacy of provision — application by adult children — obligation to provide for disabled adult child notwithstanding estrangement

CONTEMPT – contempt of court – improper pressure – interference with the administration of justice as a continuing process – appropriate penalty for contempt COSTS – costs to be awarded on an indemnity or ordinary basis

COSTS – gross sum order – where actual solicitor-client costs exceed estimated solicitor-client costs – whether sufficient material provided to calculate an appropriate “gross sum” – whether plaintiffs have prior experience of litigation – risk of unfairness – Legal Profession Uniform Law 2014 (NSW), s 172 – costs subject to “an overriding limit of fairness and reasonableness” – Legal Profession Uniform Law 2014 (NSW), s 184 – s 172 limit prevails over contractual provisions – impact of proportional gap between party-party and solicitor-client costs on “net recovery”

CIVIL PROCEDURE - appearance - director seeks leave to appear on behalf of corporation that seeks to support the maintenance of a caveat over certain real property - UCPR, rr 7.1 and 7.2 - no resolution passed by company authorising director to appear on its behalf - director declines to accept that he will be personally liable for the costs of the proceedings in which he represents the company, if leave were given for him to appear - director is of ill health and difficult to make himself understood by the Court - whether leave for the director to appear on behalf of the company should be refused. REAL PROPERTY - Caveats - whether caveat should be removed under Real Property Act, s 74MA - whether caveat has or may have substance - no documents to support the substance of the caveat - no stamp duty paid on the document - caveat contains contradictory information - whether caveat complies with Real Property Act, s 74F(5). SECURITY FOR COSTS - company propounding caveat is said to be a $2 company – liberty to apply granted as part of final orders - case proceeded urgently for good reasons without security for costs application being made - Court indicates that if any liberty to apply that has been granted is to be taken up by the corporate caveator, that the plaintiffs will be at liberty to file a motion on the liberty to apply date granted for orders that the corporate caveator provides security for costs.

CRIMINAL LAW – sentencing – conspiracy to dishonestly cause a loss or risk of loss to the Commonwealth – conspiracy to deal with property of a value of $1M or more believing it to be the proceeds of crime ­­­­– where offender part of a conspiracy to make false depreciation claims in company tax returns ­­­– where loss to the Commonwealth exceeded $100M ­– where intended loss or risk of loss to the Commonwealth amounted to approximately $135M – where offender part of a conspiracy to launder the proceeds of crime through offshore accounts – where offences involved intricate planning and preparation and occurred over a number of years CRIMINAL LAW ­– sentencing – relevant factors on sentence ­– co-offenders – parity – where offences in the worst category ­­– where offender motivated by greed – where strong need for deterrence – where offender has shown no contrition – where good prospects of rehabilitation – where significant delay – where hardship to offender and his wife – where offender has mental and physical health problems – where offender is of advanced age – where no relevant criminal history

PRACTICE AND PROCEDURE – leave to appeal – where restraining orders made under Criminal Assets Recovery Act 1990 – where proposed grounds of appeal challenge making or continuance of two orders under s 10A – where no utility in appeal unless leave granted to challenge both orders – leave refused

CRIME – bail – release application – where previous application refused by the Court – consideration of Bail Act 2013 s 74 – alleged change of circumstances relevant to the grant of bail – Court not satisfied on balance of probabilities that new material was available or that relevant circumstances had changed – application dismissed

CRIMINAL LAW – Leave to apply out of time - application for judge alone trial - by consent - granted

EQUITY – Trusts and trustees – Judicial advice – No issue of principle – Small estate

ADOPTION – application for adoption – contested adoption – whether adoption order should be made – whether dispensing with the birth parents’ consent is in best interests of the child