Cases and authorities

APPEALS – security for costs – order sought in relation to judicial review proceedings – whether exceptional circumstances

CORPORATIONS – Courts and jurisdiction – transfer of proceedings – where matrimonial proceedings pending in family court – where wife controls and husband has shareholding in T Co, which in turn has substantial shareholding in P Co – where P Co proposes to issue shares, arguably at undervalue, which would dilute T Co’s shareholding below 25% - where wife and T Co contend that share issue would be oppressive, and also would be a transaction to defeat her matrimonial claim within Family Law Act s 106B – where Supreme Court could hear oppression suit more expeditiously – held, more appropriate that oppression suit be heard in Family Court.

PRACTICE AND PROCEDURE - Compromise of action by person under a legal incapacity - Application for approval of compromise - Whether to approve terms of compromise - Compromise approved

CIVIL PROCEDURE – interlocutory proceedings –notice of motion alleging contempt for failure to comply with subpoena – UCPR r 33.12 – where failure of parties to act expeditiously – overriding purpose – notice of motion dismissed

COSTS – gross sum costs order appropriate – defendants substantially discounted costs against litigant in person – order made

COSTS - claim for interest on costs - pre-judgment and post-judgment costs - power compensatory and not punitive - order to be made for payment of interest on pre-judgment and post-judgment costs

SUCCESSION – Family provision and maintenance – Claim by adult son of deceased mother – Competing claims, on bounty of deceased, by two adult siblings – Jurisdiction to make family provision order conceded – Assessment of proper provision.

ADMINISTRATIVE LAW - Judicial Review – whether plaintiff entitled to jurisdictional relief in the form of certiorari quashing the decision of the costs assessor pursuant to s 69 of the Supreme Court Act - whether plaintiff entitled to declaratory relief pursuant to s75 of the Supreme Court Act - whether costs assessor was wrong in not determining the issues raised by the application – whether error of law on the face of the record COSTS – whether plaintiff entitled to the costs of the proceedings – whether client liable for costs up to the time of submitting appearance – whether plaintiff entitled to a certificate under the Suitors Fund Act 1951

CIVIL PROCEDURE – application for injunction – whether serious question to be tried – usual undertaking as to damages – balance of convenience – expedition – case management

CIVIL PROCEDURE – Unsuccessful High Court appeal - further stay of costs orders made by the Court of Appeal in 2016 pending the outcome of separate proceedings – whether matter should be remitted to the Equity Division

COSTS – gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – no issue of principle

CRIMINAL LAW – sentence appeal – break enter and steal – whether sentencing judge erred by rejecting unchallenged psychiatrists’ opinions – diagnosis of schizophrenia - clear planning of offence – no error found

CRIMINAL LAW – sentence appeal – aggravated sexual intercourse with a child between the ages of 14 and 16 – circumstance of aggravation victim’s cognitive impairment – whether sentencing judge erred in describing applicant’s conduct as a breach of trust – whether sentence manifestly excessive.

CRIMINAL LAW – sentence appeal – reckless wounding in company – challenge to sentencing judge’s assessment of objective gravity of the offence – sentence wholly accumulated upon lengthy sentences applicant already serving – proportion of effective non-parole periods to overall sentence – re-sentence – partial accumulation ordered.

CIVIL LAW – high risk offender – extended supervision order – where defendant concedes statutory requirements – previous offence of murder – subsequent sexual offending – dispute as to various conditions under ESO – no question of principle

CIVIL PROCEDURE – admissions - judgment or orders on admission - silence as an admission

EQUITY – trusts and trustees – application to the court for advice and authority – nature of and principles governing judicial advice – construction of trust – construction of testamentary trust – rules on intestacy

CORPORATIONS – external administration – application by creditor under Corporations Act 2001 (Cth) s 449E to review remuneration of administrators – whether principles of proportionality apply to reduce the amount of the administrators' remuneration claimed – whether work performed by administrators was reasonably necessary CORPORATIONS – external administration – orders sought under Insolvency Practice Schedule (Corporations) ss 90-15(3)(b)-(c) that person cease to be external administrator of a company and that another registered liquidator be appointed as external administrator of the company – where disagreement between major creditor and liquidators of the company – whether replacement of liquidator is in the interests of the liquidation and the creditors

CORPORATIONS – voluntary administration – whether company is insolvent pursuant to Corporations Act 2001 (Cth) s 95A – whether opinion as to current or likely future insolvency formed by director on reasonable grounds pursuant to Corporations Act 2001 (Cth) s 436A – whether appointment of voluntary administrator within power and for proper purpose. CORPORATIONS – application for rectification of records maintained by Australian Securities and Investments Commission pursuant to s 1322 of the Corporations Act 2001 (Cth) – where ASIC is not joined as party to the proceedings – whether Court has power to order rectification of the register maintained by ASIC.

CONTRACT – illusory obligation – whether discretion unfettered – whether obligation optional – sufficient if discretion is controlled by defined, ascertainable and justiciable criteria CONTRACT - construction – whether contract void for uncertainty – no obscurity

PROCEDURE – applicant seeks leave to withdraw submitting appearance

CONTRACTS — Remedies – Damages – Proof of loss or damage – contract to design and construct water detention system – where design used plastic cells placed in underground tanks – whether there has been “loss” – whether detention system has failed – whether detention system will last its design life – whether detention system requires remediation or replacement CIVIL PROCEDURE — pleadings – whether plaintiffs’ case as developed in submissions is within Technology & Construction List Statement – whether it is open to the plaintiffs to assert deficient construction of water detention system in light of the pleadings - ambit of claims available for misleading or deceptive conduct CONTRACTS — Construction – Interpretation –hierarchy of construction contracts – whether risk passed from first plaintiff to second plaintiff CONTRACTS — Construction – Interpretation – where contract defines “loss” with certain exceptions – whether reference to specific clause includes reference to chaussette to that clause CONTRACTS — Remedies – Damages – Measure – alternative transaction case – proof of counterfactual CONSUMER LAW — Misleading and deceptive conduct – whether representations were in fact made – whether any reliance – indirect causation INSURANCE — Liability insurance – construction of insuring clause – “in respect of” property damage – whether policy would have responded

COSTS – Leave to appeal against costs order in District Court – notice of motion brought to strike out plaintiff’s statement of claim – primary judge ordered the plaintiff to replead and parties to pay their own costs – summons seeking leave to appeal dismissed – no question of principle

COSTS – indemnity costs – indemnification by legal practitioner – Legal Profession Act 2004 (NSW), s 348 – meaning of costs “payable” – whether indemnity could only be provided for the benefit of the party against whom claim was brought without reasonable prospects of success – whether primary judge erred in approach adopted to quantify the indemnity COSTS – indemnity costs – indemnification by legal practitioner – Civil Procedure Act 2005 (NSW), s 99 – whether conduct of the applicants amounted to “serious neglect, serious incompetence or serious misconduct” – whether primary judge erred in approach adopted to quantify the indemnity EVIDENCE – adverse inferences – whether primary judge erred in his application of the rule in Jones v Dunkel (1959) 101 CLR 298 – whether applicants constrained from giving evidence due to the operation of legal professional privilege – whether the applicants could rely on the observations in Medcalf v Mardell [2003] 1 AC 120

CORPORATIONS — Winding up — Conduct of liquidation — Application for directions - Distribution of assets – Distribution of client segregated accounts – the manner in which funds should be distributed per Corporations Regulations reg 7.8.03 - whether reg 7.8.03(6) should be applied separately to each client segregated account – whether liquidators should pool all (or some) of the client segregated accounts –held pooling not directed across product lines. CORPORATIONS — Winding up — Conduct of liquidation — Application for directions - Distribution of assets – Distribution of recoveries – Returned collateral - whether some or all of the recoveries are beneficially owned or held on trust for clients – how recoveries and returned collateral should be distributed having regard to Corporations Regulations – held recoveries and returned collateral held on trust for clients. CORPORATIONS — Winding up — Conduct of liquidation — Application for directions -Distribution of assets – Calculation of entitlements – how entitlement to client segregated accounts and recoveries should be calculated – Set off – whether Liquidators are entitled to set off positive net account balances against negative account balances – where accounts are owned by the same client – held, justified in combining balances of individual trading accounts to calculate net position of individual clients without any need to set-off within the same group. CORPORATIONS — Winding up — Conduct of liquidation — Application for directions - Distribution of assets – Low balances – whether the Liquidators are justified in treating clients with a low balance in a client segregated account or recovery as having no entitlement to participate – held, justified in treating as having no entitlement. CORPORATIONS — Winding up — Conduct of liquidation — Application for directions - Distribution of assets – Interest – whether interest earned on client segregated accounts and recoveries is beneficially owned or held on trust for clients – held, interest held on trust for relevant clients

CIVIL PROCEDURE – parties – vexatious litigants – leave to institute proceedings – Vexatious Proceedings Act 2008 (NSW) – applicant sought leave to proceed with claim dismissed by NCAT – no need for oral hearing – affidavit did not comply with s 14(3)(a) and (c) – no prima facie ground for the proceedings - proceedings vexatious within meaning of s 6(b) – leave refused

PRACTICE AND PROCEDURE – stay of execution of judgments – whether realistic prospect that proposed appeal will succeed – whether prejudice arising from execution of judgments established – where judgments entered against defendant are for high amounts of moneys plus interest – no identification of aspects of reasoning of judges that are in error – no arguable basis for identifying error with reasoning of judges shown – no evidence defendant is incapable of meeting judgments – no undertaking from defendant to provide security for judgments – application for stay of execution of judgements dismissed COSTS – application to stay costs – where costs orders have not been quantified – where stay of costs not possible until costs assessor certificate has been issued – no evidence costs assessment proceedings have begun – question of stay of costs cannot then arise – application dismissed COSTS – application to stay freezing order – where freezing order made in execution of judgments – “order is not itself an order for execution and a stay is therefore inappropriate” – whether defendant has demonstrated any basis for suspension or discharge of freezing order – no evidence defendant would not attempt to move assets beyond reach of judgment creditors – application dismissed PRACTICE AND PROCEDURE – Application to amend notice of motion – where applicant proposes insertion of additional orders into notice of motion – proposed amendments are substantive – application dismissed

SUCCESSION – declaration that right of election to purchase estate property has been exercised by beneficiaries – construction of valuation clause in will

BAIL – detention application – where respondent required to show cause why his continued detention is not justified

CRIMINAL LAW – sentence appeal – an offence of cultivate not less than a commercial quantity of cannabis plants by enhanced indoor means and one offence of supply a prohibited drug – plea of guilty – whether sentence manifestly excessive – offender acting as principal – mid-range seriousness – strong subjective case – sentence imposed not unreasonable or clearly unjust – leave to appeal granted but appeal dismissed.

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation – adoption – child of Aboriginal heritage – where one birth parent of Aboriginal heritage – where consultation with approved Aboriginal consultant– whether consultation has occurred with relevant organisation – where Aboriginal birth parent is reluctant to involve paternal family – where consultation dependant on confirmation of birth parent’s Aboriginality – whether Aboriginal placement principles applied – where no prospective Aboriginal adoptive parents – where prospective non-Aboriginal adoptive parents have capacity to assist in development of positive cultural identify

CORPORATIONS — Winding up — Statutory demand — Failure to comply with statutory demand – Winding up – Where the Court must presume the company is insolvent unless the contrary is proved – held company not insolvent

DEFAMATION – pleadings – application to strike out imputations on the basis that they are “rolled up” – consideration of court’s authority to strike out imputations

COSTS – costs follow the event – where defendants successful on substantive proceedings – where plaintiff seeks to pay only part of defendants’ costs – where plaintiff ran case in entirely inefficient and disorganised manner – where plaintiff’s conduct so derelict as to enliven discretion to order costs on indemnity basis COSTS – application for gross sum costs order – where such order sought in lieu of indemnity costs – where costs of assessment are disproportionately high – where plaintiff has demonstrated propensity to challenge extensively prior costs assessments – where no detriment to plaintiff by virtue of mathematical relation between the gross sum sought and the amount likely to be assessed – application granted COSTS – application for third party costs order – whether principal of corporate plaintiff should be made joint and severally liable for costs where principal was person who directed litigation and stood to gain from it – insufficient reason for piercing corporate veil – application dismissed

CRIMINAL LAW – trial – application to vacate trial – new witness to be called by Crown – witness facing trial – need for witness’s trial to be heard first – trial vacated

APPEAL – Local Court – leave to appeal – Local Court Act ss 39,40, 41 – whether leave to appeal should be granted – leave to appeal refused except for groups 1 and 2 – group 1 - whether the Magistrate erred in her findings made with respect to the competing versions of the 2009 oral agreement – whether the Magistrate erred in law in failing to consider the claim in contract for the restoration work - group 2 – whether the Magistrate erred in her findings made with respect to the terms of the 2012 oral agreement – no error in the Magistrate’s construction of either the 2009 or the 2012 agreement – appeal dismissed

COSTS – costs follow the event – where both parties partly successful on various issues – where defendants entirely successful on the fundamental commercial question – whether success is determined by reference to the former or the latter – plaintiffs ordered to pay defendants’ costs

COSTS – general rule that costs follow the event – discussion of judicial discretion to otherwise order – discretion generally not to be exercised by reference to formal statement of issues in dispute – no reason to displace general principle COSTS – defendants’ offer of compromise – offer not accepted – where defendants better offer – where plaintiff has not demonstrated extra-ordinary circumstances displacing rule in UCPR 42.15A – indemnity costs awarded from date of offer of compromise COSTS – defendants withdrew lengthy affidavits during course of hearing – where plaintiff incurred expenses in preparing and responding to those affidavits – defendants to pay plaintiff’s associated costs COSTS – application for third party costs order – whether principal should be made joint and severally liable for costs – where principal was person who directed litigation and stood to gain from it – insufficient reason for piercing corporate veil – application dismissed

TORT – negligence – personal injury – reasons supplementary to substantive judgment – correction of slip with consent of all parties – clarification of degree of non-economic loss after plaintiff attains a certain age – final orders made, except as to costs

LAND LAW - mortgages – rights and liabilities of mortgagor and mortgagee – whether mortgage and incorporated memorandum entitled mortgagee to possession of land upon default of mortgagor – whether default notices were valid in respect of the loan agreement – no defence disclosed in Defence filed

REAL PROPERTY - trustees for sale - after appointment of trustees for sale under Conveyancing Act 1919 s 66G - trustees for sale apply for writ for possession of the subject property - defendant resists issue of writ on grounds of hardship to her, on health grounds and the need to repair and preserve the property - issue of whether and when the subject property should be inspected to preserve evidence for claims that may be made as between the plaintiffs and the defendant after the sale of the subject property.

LAND LAW — Easements — Creation of easements — Creation by order of court — Court to have regard to impact of proposed easement upon servient tenement DECLARATIONS — Finality requirement — Whether primary Judge in position to make a declaration finally resolving issue

COSTS – apportionment of costs – UCPR r 42.1 – whether costs order should depart from ordinary rule that costs follow the event – where both claim and cross-claim have succeeded – costs order should “fairly reflect commercial consequences of decision” – defendant’s success on cross-claim justifies discounting plaintiff’s entitlement to costs – defendant ordered to pay 50 per cent of plaintiff’s costs

PROCEDURE – subpoenas – application by litigant in person to issue further subpoena to an agent of the plaintiff to produce documents – proposed evidence outside pleadings and issues – subpoena amounting to a fishing expedition – width of production oppressive – leave refused

COSTS – whether costs ought follow the event – whether plaintiff has had substantial success – whether proceedings ought be regarded as public interest litigation – general rule that costs follow the event COSTS – application for costs to be paid in a gross sum – appropriate procedure – costs sought reasonable – desirable to avoid the cost and delay of assessment

CRIMINAL LAW – procedure – application to vacate trial date

TORT – negligence – Civil Liability Act 2002 s 5B – contributory negligence – compensation – assessment – liability of contractor – whether employer to be indemnified – Workers Compensation Act 1987 (NSW), s 151Z(1)(d).

CRIMINAL LAW — Bail — judicial review of bail decision — whether Court of Appeal has jurisdiction JUDICIAL REVIEW — detention application under Bail Act 2013 (NSW) following guilty plea — alleged contravention of s 50(5) and s 74 of Bail Act — whether error of law on face of record — whether jurisdictional error — construction of s 16A of Bail Act JURISDICTION — Court of Appeal — Supreme Court Act 1970 (NSW), s 17 and Third Schedule — whether exclusion of jurisdiction for criminal proceedings applies to challenges to bail decisions — discretionary refusal of jurisdiction in light of pending release application to Supreme Court

JUDGMENTS AND ORDERS – the appellant gave four guarantees to the first respondent, ANZ, in respect of indebtedness to ANZ of various companies – judgment entered by consent against the appellant for in excess of $13 million – receivers alleged to have sold company assets at undervalue – appellant not entitled to have the shortfall in receipts treated as wholly or partially satisfying his judgment – the rule against double recovery or double satisfaction considered – s 420A of the Corporations Act 2001 (Cth) considered