Cases and authorities

BANKING AND FINANCE – instruments – loan facilities – construction of loan agreement – whether drawdown notice required – whether direction to pay necessary for advance – whether oral direction given – whether credit provider engaged in unlicensed credit activity contrary to National Consumer Credit Protection Act 2009 (Cth), s 29 – whether contract to which National Credit Code applied – National Credit Code, ss 5(1)(b)(i), (ii), 5(1)(d) – whether credit provided for personal, domestic or household purposes – whether credit provided to purchase residential property for investment purposes – whether credit provided in the course of a business of providing credit – whether relief should be granted under National Consumer Credit Protection Act 2009 (Cth), s 180 CONTRACTS – under statute – whether contract unjust – Contracts Review Act 1980 (NSW), s 7 – whether transaction should be reopened – National Credit Code, ss 76 and 77 – whether contract unconscionable – Australian Securities and Investments Act 2001 (Cth), ss 12CB and 12CC CONTRACTS – formation – parties – principal and agent – creation of relationship of agency – authority of agents – implied or express authority – whether authority inferred from conduct of parties – construction and extent of agent’s authority – authority of sub-agent EQUITY – equitable remedies – constructive trust – equitable charges and liens – contribution to acquisition of another’s property – where no claim for subrogation to vendor’s lien or security held by outgoing mortgagees – no trust created – minimum equity necessary in the circumstances EQUITY – fiduciary duties – proscriptive only – no conflict rule – conflict of interest and interest – whether real and sensible possibility of conflict GUARANTEE AND INDEMNITY – contract of guarantee – action to enforce guarantee – guarantor’s liability – factors affecting validity of guarantee – whether guarantee procured by misrepresentation –unconscionability – whether special disadvantage established PROFESSIONS AND TRADES – lawyers – duties and liabilities – solicitor and client – scope of retainer to provide independent legal advice – duties of solicitor when advising on loan and mortgage transaction – duty of care – fiduciary duty – whether duty to disclose conflict of interest RESTITUTION – claim for restitution – whether total failure of consideration – whether advance under loan agreement authorised – recovery of money had and received – whether unconscionable to retain benefit of money paid WORDS AND PHRASES – “unjust” – Contracts Review Act 1980 (NSW), s 7 – National Credit Code, s 76 – “unconscionable” – Australian Securities and Investments Commission 2001 (Cth), s 12CB – “credit contract” – National Consumer Credit Protection Act 2009 (Cth), s 6 – “personal, domestic or household purposes” – “purchase, renovate or improve residential property for investment purposes” – “carrying on a business” – “incidentally to” – National Credit Code, ss 5(1)(b)(i) and (ii), 5(1)(d)

PROCEDURE - courts and judges generally – judges – recusal application – on grounds of apprehended bias – whether fair minded lay observer might reasonably apprehend judge might not bring an impartial and unprejudiced mind – application made on sixth day of hearing – whether judge had intervened in cross-examination – whether judge “closed down” avenues of cross-examination

EVIDENCE – privileges – client legal privilege – disclosure waiver – whether privilege waived by reason of partial disclosure

REAL PROPERTY – torrens title – easements – rights of carriageway

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Where leave sought by officer or former officer of company – Where Company officers have established another company using a get-up and style substantially the same – leave granted

CIVIL PROCEDURE – Courts – application to transfer District Court proceeding to Supreme Court – application to cross-vest proceeding to Supreme Court of Victoria – consent application – orders made

CRIMINAL LAW – ruling on post-offending conduct as evidence of consciousness of guilt - extreme provocation - self defence

SUCCESSION — Intestacy — Indigenous estate — Matters to be considered — Succession Act 2006 (NSW) ss 133, 134, 135

PRACTICE AND PROCEDURE – Civil Liability (Third Party Claims Against Insurers) Act 2017 – application– substitution of insurers in certain circumstances – application for leave pursuant s 5 – requirements of s 4(1) – jurisdictional facts –construction of ss 4 and 5 – insufficient evidence – application refused with costs

CIVIL PROCEDURE – professional negligence – assessment of damages – directions for expert conclave – Uniform Civil Procedure Rules

PRACTICE AND PROCEDURE – farm debt – debt and possession – judicial review – course of proceedings – summary dismissal application – application to separate proceedings – pleadings – relevant principles – notice of agreement to mediate after s 9 notice – validity of s 11 certificate – whether satisfactory mediation – participation in mediation – default notices prior to s 8 notice and mediation – whether clear case – whether untenable or arguable – whether certainty of outcome – summary dismissal refused – separation of proceedings refused – notice of motion dismissed.

CHEQUES – casino – order seeking replacement cheques – cheques accidently destroyed – s 115 notices – service and leave to proceed – case established – orders sought made – costs

ADMINISTRATIVE LAW - judicial review – decision of Medical Appeal Panel – evaluation of permanent impairment – Appeal Panel revoked a “medical assessment certificate” and issued a new certificate - whether Appeal Panel substituted their own view without identifying a real error – Medical Appeal Panel failed to establish an error

GUARANTEE AND INDEMNITY – Guarantor – Rights against co-guarantors – General principle of equal contribution among co-guarantors – Exceptions – Express agreement to the contrary GUARANTEE AND INDEMNITY – Guarantor – Rights against co-guarantors – General principle of equal contribution among co-guarantors – Exceptions – Common intention to the contrary GUARANTEE AND INDEMNITY – Guarantor – Rights against co-guarantors – General principle of equal contribution among co-guarantors – Exceptions – Where one guarantor obtains the whole benefit of the guarantee GUARANTEE AND INDEMNITY – Guarantor – Right to contribution – Whether differences between interests of guarantors prevent liabilities from being co-ordinate GUARANTEE AND INDEMNITY – Contract of guarantee – Construction – Extent of co-guarantor’s right to priority under inter-creditor deed

CRIME – appeal against conviction – applicant acquitted of three counts of indecent assault committed in the presence of a person under 10 years of age but convicted of sexual intercourse with person under 10 years of age – whether jury verdict unreasonable or cannot be supported by evidence – relevance of delay in complaint

CRIMINAL LAW – procedure – miscellaneous powers of court and judges – trial by jury on count of manslaughter – application for verdict by direction – Crown prosecutor concedes before jury that manslaughter cannot be proven and will not be contended for – verdict of not guilty directed on the count of manslaughter

CRIMINAL LAW – procedure – trial by jury for manslaughter – application for Prasad direction – “second leg” of self-defence – complex explanation of legal matters required – reasonableness an evaluative judgment for the jury – application rejected

CRIMINAL LAW – procedure – miscellaneous powers of court and judges – accused arraigned on murder count – verdict of not guilty of murder by direction– manslaughter remains before the jury – Crown relies only on “excessive self-defence” manslaughter – viable alternative basis for verdict of guilty of manslaughter by unlawful and dangerous act – alternative basis for verdict of guilty of manslaughter eschewed by Crown prosecutor –– defence counsel opposes alternative basis of manslaughter being left to the jury – alternative basis for manslaughter not left to jury

CRIMINAL LAW – procedure – miscellaneous powers of court and judges – trial by jury on count of murder – application for verdict by direction – Crown prosecutor concedes before jury that murder cannot be proven and will not be contended for – verdict of not guilty directed on the count of murder – trial to proceed on manslaughter

PROCEDURE – notice of motion – order sought under s 601AH of the Corporations Act 2001 (Cth) – orders seeking to have a company registration reinstated – plaintiff aggrieved by its deregistration – orders sought made

COSTS – No issue of principle INTEREST – Order for pre-judgment interest under s 100 of the Civil Procedure Act 2005 (NSW)

HIGH RISK OFFENDER – serious sex offender – application for further renewal of interim extension order – consent orders

POSSESSION – Registered mortgage – default – compromise of debt – alleged repudiation of Deed of Release – no repudiation – debt confined to outstanding money from Deed CONTRACT – principles of repudiation – secondary obligation to pay damages for the breach – construction of the contract

Appeal – procedure – motions for dismissal for want of due despatch and compliance with court directions – no issue of principle

CONTRACTS — construction and interpretation – land purchased subject to leases – purchaser entered into deeds with vendor and other parties regarding ownership and use of land – whether deeds conferred right of occupation on lessees, following termination of lease agreements CIVIL PROCEDURE – application for leave to amend notice of appeal – parties to deeds joined at trial and notified but not served – joinder by unsuccessful applicants but not by successful cross-claimants – whether fatal to grant of relief to cross-claimant

ADMINISTRATIVE LAW – judicial review – motor vehicle accident – review of certificate of medical assessment review panel – Panel not advised by Authority of appellant’s objection to assessment without re-examination – appellant not re-examined – whether constructive failure to exercise statutory function ADMINISTRATIVE LAW – judicial review – motor vehicle accident – review of certificate of medical assessment review panel – Panel not advised by Authority of appellant’s objection to assessment without re-examination – appellant not re-examined – whether procedurally unfair – whether appellant suffered practical injustice – Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) CLR 1 considered TORTS – motor vehicle accident – damages – claim for non-economic loss – assessment of whole person impairment – procedure adopted by review panel

EQUITY — Trusts and trustees — Judicial advice – Whether a trustee is justified in submitting to orders of the Court (save as to costs) on final relief in related proceedings – where the related proceedings is a dispute between beneficiaries – where the intervention of the trustee as an active party is likely to add little to the proceedings

PROCEDURE – where, in accordance with previous order made, special purpose receivers may apply to Court for further funds held by the general purpose receivers – where special purpose receivers have applied to the Court for further moneys to meet adverse costs orders and continue to conduct proceedings – whether application for further funds should be granted and in what quantity.

EVIDENCE – simulations in expert’s report – based on inflows that expert now disavows – rejected under s 135 Evidence Act

COSTS – Whether costs should follow the event – No point of principle

Costs – Whether costs should follow the event – No point of principle

CRIMINAL – Procedure – Application to vacate trial date – late change of lawyers insufficient reason – late service of extensive Crown material without explanation – interests of justice

CRIMINAL LAW – sentence appeal – supply prohibited drug and possess unauthorised and prohibited weapons – so called “Clark principle” applied by sentencing judge – error in approach of sentencing judge established – need to re-sentence – no lesser sentence warranted in law – appeal dismissed.

CRIMINAL LAW – appeals – application under Part 7 Div 3 of the Crimes (Appeal and Review) Act 2001 – applicant convicted of murder – appeal dismissed by Court of Criminal Appeal – special leave to appeal refused by High Court of Australia

CONTRACTS – Construction and interpretation – Parol evidence rule – Exceptions – Evidence of surrounding circumstances adduced to resolve ambiguity CONTRACTS – Oral contract – Principles to be applied in determining terms of contract CONTRACTS – Rectification – Intention – Determining the common intention of the parties

CRIMINAL LAW – media application - grant of access – order of suppression on part

CIVIL PROCEDURE - application by Plaintiff that Defence be struck out for want of due dispatch - applications for default judgment and gross sum costs order - proper basis demonstrated for orders sought by the Plaintiff - orders made

CIVIL PROCEDURE - urgent application by wife for sperm retrieval from deceased body of husband - order made authorising extraction and retention of sample pending further order of the Court

EQUITY — Equitable remedies — Specific performance — Land — Where plaintiff claimed one third interest in real property as beneficiary of oral express trust — Where plaintiff did not plead existence of contract — Whether plaintiff could rely on payment of purchase price, power of attorney signed by registered proprietor and receipt of rent as acts of part performance — Whether doctrine of part performance applies to express declarations of trust. EQUITY — Trusts and trustees — Constructive trusts — Where defendant became registered proprietor of real property in which plaintiff claimed one third interest — Where plaintiff claimed defendant promised to recognise plaintiff’s one third interest — Whether plaintiff could enforce interest against defendant that it could not enforce against original registered proprietor.

JUDGMENTS – stay of execution pending appeal

TAXES AND DUTIES – Interpretation of s 275(3) of the Duties Act 1997 (NSW) – Meaning of “as trustee for” an institution – Meaning of “for the time being approved”

APPEAL – Control of proceedings – whether plaintiff entitled to cause company to appeal CONTRACT – Deed of company arrangement – Construction of contract – meaning of reasonable prospects of appeal succeeding – whether Senior Counsel’s written advice expressed reasonable prospects of appeal succeeding – whether administrators given required access to Senior Counsel

ESTOPPEL – Proprietary estoppel – Detrimental reliance – whether actions undertaken were in reliance on deceased’s representations – whether detriment suffered in reliance on representations – whether deceased’s representations were contributing cause to first defendant’s conduct – whether unconscionable to resile from belief induced by deceased’s representations

CONSUMER LAW — Misleading or deceptive conduct — Whether statement misleading — Reliance upon misleading statements — Causation — Damage —None established CONTRACTS — Breach of warranty — Not established – No damage established

CRIME – SENTENCE – murder – robbery whilst armed with a dangerous weapon - sentence after trial - home invasion – offender armed with a loaded shortened rifle – weapon voluntarily discharged at short range – Crown case advanced on alternate bases of principal liability or constructive murder – limited subjective case

ADMINISTRATIVE LAW – whether Regulations and Fishery Management Plan ultra vires – doctrine of legality – construction of legislation – whether amending regulations implementing alterations to Management were an authorised amendment – whether “new” plan – whether regulations arbitrary, capricious or an abuse – whether authority to amend of a kind is within the description all amendments – Rights and Obligations associated with statutory commercial fishing licences.

COSTS – no issue of principle

TRUSTS AND TRUSTEES – judicial advice – Trustee Act 1925, s 63 – testator leaves residue of his estate to five named beneficiaries – four of the five beneficiaries pre-decease the testator – whether the gift to the five named residuary beneficiaries under the testator’s will is a class gift, such that if one member of the class were to pre-decease the testator the gift would survive and other members of the class would take or whether the gift was to five named individuals – if there is a gift of residue to five named individuals which partially fails upon intestacy, what persons, in what proportions are entitled upon intestacy – operation of Succession Act 2006, s 129 considered.

JURISDICTION – Court of Appeal – order sought to refer matters to Royal Commission – whether Court of Appeal has jurisdiction to grant the orders

APPEAL – application for leave to appeal – no issue of principle CIVIL PROCEDURE – summary dismissal