Cases and authorities

CORPORATIONS – winding up – abuse of process – where creditor’s statutory demand issued in respect of contingent claim – where person who swears affidavit verifying creditor’s statutory demand did not have direct knowledge of the relevant facts – where a more suitable alternative remedy was available to the issuing of creditor’s statutory demand – whether Court will declare creditor’s statutory demand an abuse of process.

APPEALS - appeals to the Court – appeal from the Local Court – appeal as of right – whether grounds of appeal from decision of magistrate disclosed an error of law – plaintiff did not seek leave to appeal on grounds disclosing mixed questions of fact and law – Investment scheme – nomination of lender to fund investment – whether defendant nominated lender who purported to assign loan ultimately to plaintiff - whether the lender nominated by the defendant in relevant documents was a misnomer – whether a question of law – plaintiff put to proof of advance of funds to defendant – whether a finding by magistrate that no funds were advanced was a question of law – whether inferences from documents concerning advance of funds and assignment was a question of law – whether findings that loan not assigned was a question of law CONTRACTS – rectification – intention ––whether nomination of lender warranted rectification by construction as a result of a misnomer - not plain to all concerned with the relevant document that the defendant actually intended to borrow from the lender subsequently nominated by his duly appointed attorney CONTRACTS – construction – interpretation – whether objective intention of defendant as to identity of lender was uncertain – whether uncertainty could be overcome by a valid exercise of the power of an attorney appointed by the defendant – lender as principal was fixed with knowledge of agent that it lacked power under power of attorney to nominate the lender

LAND LAW – alienation of property – the first respondent transferred property pursuant to a property settlement effected by consent orders of the Family Court of Australia – indemnity costs were awarded against the first respondent in favour of the appellant after AVO proceedings brought by the first respondent in the Local Court were dismissed – whether the first respondent intended to defraud the appellant by transferring his interest in the property – s 37A of the Conveyancing Act 1919 (NSW) considered – Marcolongo v Chen (2011) 242 CLR 546 considered – whether second respondent was a purchaser in good faith without notice

INSURANCE – public and products liability policy – construction – scope of insuring clause – labour hire company – employee injured when working in coal mine – employee claimed against mine owner and employer – mine owner cross-claimed against employer – settlement reached between employee, employer and mine owner – insurer declined cover – whether claim for breach of contract within insuring clause – whether insuring clause extended to mine owner’s costs – whether exclusion for assumed liabilities applicable INSURANCE – duty of disclosure – whether insured had disclosed contract between it and mine owner which contained indemnity – whether letter referring to contract provided to insurer’s agent – whether letter sufficient to satisfy duty of disclosure – whether letter provided before contract came into existence – distinction between knowledge of insurer and disclosure by insured – whether insurer entitled to reduce liability to nil – Insurance Contracts Act 1984 (Cth), ss 21 and 28 INSURANCE – scope of indemnity – whether settlement reasonable – whether insurer entitled to benefit of a deductible which had been pleaded but otherwise not mentioned during trial

SENTENCING – mitigating factors – plea of guilty – where plea is entered – where aggregate sentence is imposed SENTENCING – appeal against sentence – sentence contrary to law – where error has occurred – Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 – whether identified error is discrete or whether it has affected the sentencing process SENTENCING – relevant factors on sentence – Form 1 offences – where discount applied for a plea of guilty – whether timing of an offender’s plea of guilty to offences on Form 1 affects the discount for utilitarian value applied to the primary offence SENTENCING – appeal against sentence – post-sentence conduct – where resentenced – whether improved prospects of rehabilitation to be considered in sentencing process

CRIMINAL LAW – conviction and sentence appeal – manslaughter and wounding with intent – self-defence – excessive force inflicting death – Crimes Act 1900, s 421 – whether open to jury to find conduct not a reasonable response in circumstances as perceived by the offender – whether victim was armed with a pistol – whether victim was about to shoot offender – whether jury’s verdict consistent with finding that offender believed that conduct was necessary to defend himself – whether that response reasonably open to jury – conviction appeal dismissed – SENTENCE APPEAL – whether findings by a sentencing judge consistent with jury verdict – whether sentence manifestly unjust – limitations inherent in reliance upon other manslaughter cases – sentence appeal dismissed.

CRIME – sentencing – requirement to assess the objective seriousness of the offence – distinguished from obsolete practice of fixing the offence on a point along a line by reference to a hypothetical mid-range offence – whether, reading the sentencing judgment fairly as a whole, there was a failure to make the required assessment CRIME – sentencing – accumulation – where offender subject to another sentence at the time sentence is passed – whether s 55(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) creates a presumption in favour of concurrency CRIME – sentencing – whether finding of special circumstances reflected in structure of sentence CRIME – sentencing – parity – whether applicant has justifiable sense of grievance – disparity explained by different charges and differently structured sentences

CRIMINAL LAW – application for leave to appeal against sentence – supplying prohibited drug – applicant sentenced on the basis of authority in R v Clark that drug trafficking in any substantial degree should lead to a sentence of full time imprisonment unless there were exceptional circumstances – Clark subsequently overruled in Parente v R – issue of re-sentence – whether lesser sentence warranted – whether sentence should be backdated to take account of period in residential rehabilitation as quasi-custody

CRIMINAL LAW – appeal against sentence – offences of threatening injury to any person on account of something lawfully done by a person as a judicial officer – offence of conveying false information that a person or property is in danger – asserted error in assessing objective seriousness of offences – asserted failure to take into account appropriately applicant’s mental illness – asserted denial of procedural fairness – sentence asserted to be manifestly excessive – appeal dismissed

CORPORATIONS — Winding up —Voidable transactions – unexplained payments to accountancy firm – whether a reasonable person in the company’s circumstances would have entered into the transactions – where amounts appear disproportionate for accountancy fees – where apparent absence of any benefit to the company – where the benefit to the defendant is disproportionate to the benefit to the company – where the company has not kept written financial records – where the company is presumed to have been insolvent throughout the period of its existence – where transactions occurred within two years before the relation back date –

LAND LAW – conveyancing – the Contract for Sale – subject matter of the contract – purchase “off the plan” – vendor required to acquire additional land adjoining purchaser’s proposed lot in order to achieve registration of subdivision – whether vendor entitled to require purchaser to acquire additional land as part of purchase LAND LAW – conveyancing – the Contract for Sale – recovery of deposit – vendor incorrectly asserts that sale included additional lot – vendor serves Notice to Complete calling upon purchaser to acquire additional lot – vendor terminates contract following purchaser’s failure to complete – termination a wrongful repudiation of contract – purchaser entitled to refund of deposit

EQUITY – resulting trust – where company directors have transferred the sale proceeds of company property to themselves to fund the purchase of a property – where there is no evidence of a contrary intention to rebut the presumption of a resulting trust – whether the Court will declare that property is held by directors on resulting trust for the company. CORPORATIONS – unreasonable director-related transactions – where company directors have entered into transactions that no reasonable person in the company’s circumstances would have entered into – where the transaction confers no benefit on the company – where the transaction confers benefit to the company directors at the expense of the company’s creditors – whether the transaction was an unreasonable director-related transaction for the purpose of s 588FDA of the Corporations Act 2001 (Cth).

CIVIL PROCEDURE – Hearings – application to vacate – where plaintiff’s barrister and solicitor are prevented by illness from appearing at scheduled hearing date – whether s 69C Supreme Court Act 1970 (NSW) operated to stay plaintiff’s conviction – application to vacate granted – no question of principle

OCCUPATIONS – legal practitioner – complaints and discipline – whether Civil and Administrative Tribunal had jurisdiction to entertain proceedings commenced by Council of the Law Society of New South Wales – whether proceedings commenced in the Tribunal more than six months after the Council decided that proceedings be commenced – whether resolution of Professional Conduct Committee that solicitor be informed of certain matters amounted to decision that proceedings be commenced OCCUPATIONS – legal practitioner – complaints and discipline – whether decision of Tribunal that it had jurisdiction was “for the purposes” of the Legal Profession Act 2004 APPEALS – whether right of appeal under cl 29 of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW) – whether proceedings properly assigned to the Court of Appeal

APPEALS – assessment of credibility by primary judge – whether primary judge erred in assessment of relative credibility of witnesses – whether primary judge gave weight to failure of the second respondent to explain motive of other witnesses – whether primary judge erred in failing to give sufficient weight to commercial motive of the appellant – whether primary judge erred in finding evidence of other witnesses was irrelevant

CRIMINAL LAW – Evidence – Privilege against self-incrimination – Where witness objected to answering questions in the course of evidence – Where witness serving a sentence of imprisonment – Where witness attended by order of the Court but not under subpoena – Whether witness answering questions under compulsion

EQUITY – secret trusts – where gift is “accompanied by a statement from the donor as to how the gift is to be used” – whether bequest of property to plaintiffs in will an absolute gift to plaintiffs – whether explicit understanding gift to plaintiffs was given on particular terms – no explicit understanding – no secret trust arises EQUITY – judicial advice – Trustee Act 1925 (NSW), s 63(1) – where initial application was not for judicial advice – whether trustees entitled to costs of application for advice – Trustee Act 1925 (NSW), s 59(4) – “implied indemnity” – whether costs properly incurred by trustees on behalf of estate – where residual beneficiary of estate not a party to proceedings – no costs order where order would affect residual beneficiary by “foreclosing the question of indemnity”

CIVIL PROCEDURE – application to vacate hearing date – proposal to tender volume of documents not before primary judge – no opportunity to address the material – no evidence explaining why production so late CIVIL PROCEDURE – dismissal of appeal for non-compliance with directions – application to review decision of single judge – inadequacy of explanation for non-compliance – judge not satisfied as to responsibility of lawyers for non-compliance – judge satisfied appeal had no realistic prospects of success

APPEAL AND REVIEW – judicial review – review of order in criminal jurisdiction of District Court – jurisdictional error – whether District Court judge decision that he lacked power to relieve lot owner in strata scheme of levy imposed by owners corporation infected by jurisdictional error CRIMINAL LAW – effect of annulment of conviction – where applicant convicted in 1993 and 1994 of contraventions of orders made by Strata Titles Board pursuant to Strata Titles Act 1973 (NSW) in proceedings commenced by body corporate – where on conviction applicant fined and ordered to pay court costs, professional costs and witness expenses – where convictions annulled in 2015 pursuant to Crimes (Appeal and Review) Act 2001, s 4 – where owners corporation determined not to pursue original informations which were dismissed – whether applicant could recover costs alleged to have been incurred consequent upon convictions CRIMINAL LAW – effect of annulment of conviction – where applicant convicted in 1993 and 1994 of contraventions of orders made by Strata Titles Board pursuant to Strata Titles Act 1973 (NSW) in proceedings commenced by body corporate – where convictions annulled in 2015 pursuant to Crimes (Appeal and Review) Act 2001, s 4 – where owners corporation determined not to pursue original informations which were dismissed – where owners corporation incurred legal costs in seeking advice as to whether to pursue original informations – where owners corporation raised a levy on owners of lots in strata scheme including applicant to recover costs of legal advice – whether applicant could be relieved of levy pursuant to either Strata Titles Act 1973 (NSW), s 150, or Strata Schemes Management Act 1996 (NSW), ss 229 and 230 STRATA TITLES – whether lot owner entitled to be relieved of paying levy raised by owners corporation – Strata Titles Act 1973 (NSW), s 150 – Strata Schemes Management Act 1996 (NSW), ss 229 and 230 WORDS AND PHRASES – “enforcement action” – Crimes (Appeal and Review) Act 2001 (NSW), s 10(1)

ADMINISTRATIVE LAW – judicial review – review of workers compensation merit review by State Insurance Regulatory Authority – where worker’s attention not drawn to the critical issue on which the decision was likely to turn – whether worker denied procedural fairness

EVIDENCE – allegedly false statements – where lies that may be used as consciousness of guilt – trial for murder for which accused pleaded to manslaughter – plea not accepted – lies cannot be used as consciousness of guilt for murder – discussion of The Queen v Baden-Clay [2016] 258 CLR 308; [2016] HCA 35

PROCEDURE – costs – no departure from usual costs order

CRIMINAL LAW – Evidence – Relevance – Evidence of statements made by the accused in intercepted telephone call – Whether evidence relevant – Whether unfair prejudice arising from the Crown not calling the other party to the conversation

CIVIL PROCEDURE – application for release from Harman undertaking – where release sought in relation to documents produced on subpoena – where it would be open to applicant to also subpoena those documents – application granted. COSTS – where costs tail wags substantive dog – where applicant originally sought unjustifiably broad order – where orders significantly narrowed day before hearing – where real dispute was as to costs – applicant ordered to pay costs of respondent.

CRIMIMAL PROCEDURE ­­­– discharge of individual juror – where juror has become so ill or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict

ADMINISTRATIVE LAW – judicial review – Independent Commission Against Corruption (ICAC) – decision to hold public inquiry – ICAC Act 1988 (NSW), s 31 – decision to investigate matters – ICAC Act 1988 (NSW), s 20 – no jurisdictional error – prerequisites for decision-making under ss 20 and 31 of the ICAC Act – whether matters proposed to be investigated must be serious and/or systemic corrupt conduct – relevant and irrelevant considerations – whether consideration of degree of seriousness of impugned conduct is mandatory – whether consideration of potential impact of decision upon pending civil proceedings is mandatory – whether decisions unreasonable – summons dismissed

SENTENCE – murder – wounding with intent to cause grievous bodily harm – drive in manner dangerous to the public knowing police in pursuit – late plea of guilty – attack over lengthy period of time – extensive sharp and blunt force injuries inflicted – attack on intervener – domestic violence offence – offender aged 53 – no mitigating factors – rehabilitation – whether remorseful – general deterrence – retribution – denunciation – statements by offender to health practitioners to minimise his criminality

CRIMINAL LAW – Evidence – Witnesses – Competence and compellability – Where witness diagnosed with Alzheimer's disease – Expert evidence of effect of disease upon the recollection of the witness and the ability to give responsive answer – Whether witness competent to give evidence

CRIMINAL LAW – Evidence – Evidence of motive – Where Crown alleged that the accused was motivated to murder the deceased following breakdown of their previous relationship – Where breakdown lead to protracted litigation between the accused and the deceased – Where Crown sought to lead evidence of costs incurred by accused in that litigation – Evidence that accused had complained to others about the amount of costs he had incurred – Whether evidence of such costs relevant to motive

INJUNCTIONS—Non-publication Orders—Parens patriae jurisdiction—Supreme Court Act 1970 (NSW) s 66— whether the Supreme Court can make a non-publication order under the Court Suppression and Non-publication Orders Act 2010 (NSW) in support of proceedings in the Children’s Court of NSW –– whether the Supreme Court should continue interlocutory injunctions against the defendants under its parens patriae jurisdiction or s 66 of the Supreme Court Act, and if so on what terms

CRIMINAL LAW – blunt tool – sentencing – manslaughter – gross negligence – parent’s instinct to protect child – fundamental aspect of the human condition – twelve year old daughter victim of brutal assaults by stepfather – failure of mother to protect the child – failure to seek medical treatment – “battered wife syndrome” – “intimate partner extreme violence” – Post Traumatic Stress Disorder – severe depression – impact on sentence – substantial reduction in moral culpability – impact on deterrence – least possible punishment – impact of custodial sentence – special circumstances

FAMILY LAW AND CHILD WELFARE – adoption – where child has established a stable relationship with proposed adoptive parents – whether consent of birth parents should be dispensed with pursuant to s 67 of the Adoption Act 2000 (NSW). FAMILY LAW AND CHILD WELFARE – adoption – where there is no realistic possibility of restoration of the child to birth parents’ care – whether adoption order is in the child’s best interests – whether adoption is preferable to other courses – whether an adoption order should be made.

COSTS – Party/Party – General rule that costs follow the event – Offers of compromise/Calderbank offers – Apportionment of costs for work on different claims with varied success COSTS – Party/Party – General rule that costs follow the event – Effect of expert report’s failure to meet standard of independence required by Uniform Civil Procedure Rules 2005 (NSW) Sch 7 COSTS – Party/Party – General rule that costs follow the event – Offers of compromise/Calderbank offers – Reasonableness of accepting an offer of compromise – Date from when indemnity costs should be calculated

CRIME – bail application – accused charged with four counts of murder and other serious indictable offences – where accused required to show cause – evidence as to access of accused to his legal representatives and documents in custody – evidence as to efficacy of electronic monitoring system – strength of Crown case – cause not shown – application dismissed

REAL PROPERTY – vendor sought rescission of eight off the plan contracts – vendor applied under s 66ZL of the Conveyancing Act 1919 for orders permitting rescission in the absence of purchaser consent – whether right to rescind arose – whether vendor had lost right to rescind by failing to exercise right to rescind at an earlier time – whether court should exercise discretion to permit vendor to exercise contractual right to rescind – whether vendor satisfied the Court that making orders permitting rescission would be just and equitable in all the circumstances

NEGLIGENCE – duty of care – novel categories of duty – companies A and B run integrated business operation – A exercises control over operations at B’s premises – whether A owes duty of care to employee of B working at B’s premises regarding occupational health and safety – discussion of Caltex Refineries v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 NEGLIGENCE - apportionment of responsibility – whether trial judge’s findings on apportionment should be modified NEGLIGENCE – damages – award for non-economic loss – whether trial judge’s assessment should be modified – economic loss – loss of earning capacity – plaintiff resident in UK – reliance on level of earnings in UK – assessment of superannuation loss under UK law COSTS – party/party – costs follow the event – application of the rule and discretion – costs where appeal allowed in part COSTS – party/party – costs follow the event – multiple successful respondents – whether respondents in the same interest – whether multiple sets of costs should be awarded

CRIMINAL LAW – sentence appeal – possess more than three unregistered firearms including at least one prohibited firearm contrary to s.51D(2) Firearms Act 1996 – Form 1 offences of not keeping firearms safely and possession of ammunition without a licence- firearms in Applicant’s semi-remote rural property- previous criminal history for firearms offences – whether sentencing judge erred in approach to firearms offences being committed on semi-remote rural property – public safety considerations – error not demonstrated – whether sentence manifestly excessive – objective gravity of s.51D(2) offence – need for specific and general deterrence to be reflected in sentence – manifest excess not demonstrated – appeal dismissed

CRIMINAL LAW – sentence appeal – plea of guilty to manslaughter by excessive self-defence – victim armed herself with a knife against the applicant – victim stabbed in struggle with applicant – whether findings of sentencing judge inconsistent with Agreed Facts and guilty plea – ground of appeal made out – applicant re-sentenced.

BAIL – detention application by prosecutor – show cause offence – whether cause shown – whether respondent poses unacceptable risk

CRIMINAL LAW – sentence appeal – offences of supplying large commercial quantity of cocaine and offering to supply large commercial quantity of cocaine under s.25(2)Drug Misuse and Trafficking Act 1985 – offence of giving corrupt benefit to a Commonwealth public official (a police officer) under s.142.1(1) Criminal Code (Cth) – Form 1 offence of supplying indictable quantity of cocaine – whether error in commencement date of sentence for Commonwealth offence – claim of illegitimate disparity in sentence for one offence with co-offenders – claim of error and denial of procedural fairness concerning “special circumstances” for State offences - claim that sentences manifestly excessive – no error demonstrated – parity ground rejected – objective gravity of drug supply offences – objective gravity of offence of giving corrupt benefit to police officer to obtain confidential information to assist importation of border-controlled drugs – maintenance of public confidence in integrity of police force – importance of specific and general deterrence – appeal dismissed

CRIMINAL LAW – Crown appeal against sentence - the respondent was convicted of five counts of participating as a client in an act of child prostitution contrary to s 91D(1)(b) of the Crimes Act 1900 (NSW) – he was sentenced to a head sentence of 3 years and 6 months with a non-parole period of 20 months – whether the sentencing judge erred in his assessment of objective seriousness - whether the sentence was manifestly inadequate

CRIME – Crown appeal against sentence - participating in acts of child prostitution - s 91D Crimes Act 1900 (NSW) – whether the sentencing judge erred in his assessment of the objective seriousness of the offending leading to the imposition of a sentence that was manifestly inadequate – whether the sentence was manifestly inadequate – residual discretion exercised not to resentence

CRIMINAL LAW – application for discharge of jury – Crown referred to affidavit evidence admitted without objection or limitation – Crown submission raised bad character – application for discharge refused – jury directed to disregard submission – jurors’ working copies of document required to be destroyed to eliminate risk that notes taken of withdrawn submission would be referred to – fresh copies supplied

JUDICIAL ADVICE – Intestate estate – Whether it is appropriate that the administrator carry out further searches in relation to the existence of next of kin of the deceased

BUILDING AND CONSTRUCTION – Building and Construction Security of Payment Act 1999 (NSW) – whether adjudication determination valid – whether construction contract existed between the parties to the adjudication application – whether payment claim made on or from a reference date – where contract was terminated – where contract did not provide for reference dates after termination – whether work performed under a subsequent, fresh contract – adjudication determination quashed

EXPERT EVIDENCE – no question of principle

PROCEEDS OF CRIME – Practice and procedure – Application for stay of examination orders under Proceeds of Crime Act 2002 (Cth) (“POC Act”) pending hearing and determination of related criminal proceedings – whether compulsory examination may lead to prejudice in the conduct of the applicants’ defences in their criminal trials – whether any potential prejudice the applicants may face in their criminal trials could be overcome by means other than a stay, including orders under s 266A of the POC Act – whether the non-judicial character of the examinations exposes the administration of justice to risk – whether the AFP’s policies and procedures for dealing with compulsorily acquired information is adequate to ameliorate the risk of prohibited disclosure of that information – whether a non-disclosure order under s 266A(2)(b) protects against the risk of disclosure of compulsorily acquired information. STATUTORY CONSTRUCTION – meaning of ‘circumstances pertaining to’ in s 319(3) of the POC Act.

HIGH RISK OFFENDER – extended supervision order – preliminary hearing – no pattern of serious violence offences – application refused

HIGH RISK OFFENDER – application for high risk offender extended supervision order (ESO) – serious sex offender – Defendant with criminal history including sex offences against children, armed robbery and other offences – offences in 2015 of using carriage service to access child pornography contrary to s.474.19(1) Criminal Code (Cth) – diagnosis of paedophilic disorder, anti-social personality disorder and substance abuse disorder – high risk of future offending – ESO for three years appropriate – electronic monitoring condition appropriate – conditions appropriate to mitigate risk of re-offending in the interests of community safety – ESO made for three years

CRIMINAL LAW – murder - sentence after trial - joint criminal enterprise - premeditated killing in company - above mid-level of objective seriousness - offender suffering from depression and anxiety - relative youth of the offender - whether the offender has reasonably good prospects of rehabilitation.