Cases and authorities

CONTEMPT – sentence – community service a possible appropriate sentence – Community Service Order Assessment necessary and ordered.

ADMINISTRATIVE LAW – judicial review – grounds of review – extraneous or improper purpose – whether failure to apply relevant standard – failure to take into account relevant consideration – procedural fairness –apprehended bias – failure to inquire – errors in fact finding process – Wednesbury unreasonableness – whether ADT erred in affirming the decision to suspend and cancel driver authority under Passenger Transport Act 1990 (NSW) – summons dismissed

ADMINISTRATIVE LAW – Judicial review – Motor accident compensation – Submitting appearances by all defendants – Jurisdictional error conceded – Error on the face of the record conceded – No point of principle

CIVIL PROCEDURE – settlement – court approval – where proceedings commenced on behalf of minors

CORPORATIONS – Winding up – voluntary winding up – creditor’s application for inspection of company books and documents – documents held by liquidator – where plaintiff has reasonable basis for suspecting that it may have substantial claim against director – where documents include D & O insurance policy – where creditor seeks to inspect books to investigate suspicion and evaluate claim – where insurance policy may respond to claim – held, just to permit inspection of company books.

REAL PROPERTY – possession of land – Family Court orders - husband and wife each ordered to give possession of land that the other party was occupying – failure to comply with Family Court orders – orders for possession sought in Supreme Court – no defence by either party to orders sought – whether lengthy stay should be given to execution of writs of possession – hardship – failure of parties to apply to Family Court under “liberty to apply” provision in the orders – length of time since Family Court orders - orders for possession made with leave to issue writs of possession

COSTS – specific gross sum costs order – Civil Procedure Act, s 98(4)(c) – whether a costs assessment would protract proceedings – whether a specific gross sum costs order should be made.

CONTRACTS – loan agreement for vendor finance on sale of combined commercial and residential property – commercial premises occupied by accounting business owned by vendor which employed purchaser – where vendor proposed that purchaser buy the property as part of vendor’s business succession plan which would also involve his selling the business to the purchaser – purchase of land completed with no legal entitlement to buy the business – excessive purchase price – purchaser’s employment later terminated – whether vendor loan agreement unjust TRADE PRACTICES – sale of commercial and residential property – commercial premises occupied by accounting business owned by vendor which employed purchaser – where vendor represented that he would sell the accounting business to the purchaser – whether vendor engaged in misleading or deceptive conduct

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – application to quash medical assessment made pursuant to s 60 – asserted inadequacy of reasons – application dismissed ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – application to quash refusal of proper officer to refer for review of medical assessment by review panel pursuant to s 63 – asserted misunderstanding of role of proper officer – correct test applied – application dismissed

CRIME – conviction appeal – incompetence of counsel – accused did not give evidence at trial – alleged failure of counsel properly to inform accused of his right to give evidence at trial – alleged failure of counsel to take proper instructions from accused – whether trial judge erred in failing to discharge jury CRIME – sentence appeal – whether sentence is manifestly excessive – whether trial judge erred in considering unsworn victim impact statement to establish aggravating factor under s 21A Crimes (Sentencing Procedure) Act

CORPORATIONS — Dissolution — Reinstatement – application for orders validating acts during period of deregistration per s 601AH(3) – an act whilst deregistered validated

EQUITY – interlocutory relief – whether funds deposited with companies in liquidation should be released – interlocutory relief declined.

CRIMINAL LAW – Practice and procedure – Juries – Application to select a jury of 15 persons – Whether evidence sufficient to satisfy the Court that it was likely that the trial would proceed for more than three months – Application refused WORDS AND PHRASES – “likely”

CIVIL PROCEDURE — compensation to relatives - settlement - court approval – no statement of principle

TRUSTS - charitable trust proceedings – first plaintiff’s motion to lift stay on the enforcement of costs orders against defendants – defendants foreshadow an application to set aside the principal judgment and consequent costs orders on the grounds that they were procured by fraud – whether the second plaintiff who has the benefit of the costs order in question should be joined to the motion – whether there is any present utility in lifting the stay.

PRACTICE – appeal – stay – balance of convenience – interests of justice – no question of principle

CIVIL PROCEDURE — Originating process — Amendment – where amendment late and would delay trial – where no adequate explanation of delay in making amendments – whether new claims proposed to be introduced reasonably arguable CORPORATIONS — Voluntary administration — Deed of company arrangement – Application to set aside resolutions authorising entry into deed of company arrangement – where resolutions were passed on the voices without poll – whether passage of resolutions depended on votes of related party creditors where no poll taken CORPORATIONS — Winding up – Application that deed of company arrangement be terminated and companies be wound up – where companies’ payment of money and potential claim against payee require investigation – whether deed of company arrangement would provide better return to creditors than winding up – who should be appointed as liquidators CORPORATIONS — Winding up — Proceedings against company – Application for leave to proceed – where adjudication of Plaintiffs’ claim as proof of debt would turn on disputed oral representations – where proceedings will determine whether companies have claims against other Defendants CIVIL PROCEDURE — Application by companies for release from undertaking not to dispose of assets – where companies placed in administration after undertaking given – where entitlement to assets disputed in litigation

HIGH RISK OFFENDER – serious sex offender – application for extension of interim supervision order

CIVIL PROCEDURE – appeal from Local Court – application for leave to appeal out of time – delay – no fairly arguable case

CORPORATIONS — Voluntary administration — Deed of company arrangement – Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to deed – whether residual equity in company – whether shareholders unfairly prejudiced.

CORPORATIONS – oppression – orders to give effect to earlier judgment – whether winding up order should be made – orders for buy out of shares

POSSESSION – Writ of possession – Deed of Forbearance – Consent Orders

POSSESSION – writ of possession – notice to vacate – application for stay

Practice and Procedure – Freezing order – No question of principle

PROCEDURE – legal profession disciplinary proceedings – professional misconduct – striking off order – stay pending appeal

APPEALS – competing applications for leave to appeal against determination of costs review panel – intractable dispute between brothers involving multiple reviews of costs assessment – consideration of factors relevant to whether leave should be granted COSTS – assessment of costs – applications for leave to appeal against determination of costs review panel – documents sought by panel from costs review respondent but not provided – whether costs review panel had authority to determine objections in favour of costs review respondent without the documents sought – where parties in dispute as to proper construction of the costs order made – appropriateness of seeking leave to appeal to the court that made the order

CRIMINAL LAW – proceeds of crime – restraining orders

ADMINISTRATIVE LAW – prerogative relief – Local Court proceedings – default judgment set aside by Local Court of its own motion – UCPR r 36.17 – affidavit of service non-compliant with Rules and Corporations Act – whether entitlement to be heard – procedural fairness – no practical injustice – appeal rights under Local Court Act – whether appeal rights should be utilised before prerogative relief sought – discretionary grounds for refusing relief – summons dismissed CIVIL PROCEDURE - court administration – court powers - Supreme Court – general jurisdiction under s 23 Supreme Court Act CIVIL PROCEDURE – appearance - where plaintiff is a corporation – where director seeks leave to appear on company’s behalf – UCPR r 7.1 - need for director to be plaintiff – need for director to have cause of action against defendant – personal undertaking to Court by director

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW - sexual intercourse without consent and three counts of indecent assault – farmer on remote property – female backpacker farm worker – whether miscarriage of justice by incompetence of counsel – applicant not called to give evidence at trial – whether applicant advised of right to give evidence -applicant with cognitive and memory deficits - whether conviction was inevitable if not called – credibility issues concerning complainant – whether decision not to call applicant was a rational decision – whether Crown Prosecutor’s address invited reasoning involving a reversal of onus – where complainant’s credibility in issue – where address pointed to matters supporting credibility of complainant - no objection taken or application made by defence at trial – Rule 4 applies to refuse leave to raise ground on appeal

CONTRACTS — Formation — Agreement — Intention to make concluded bargain – Application to stay New South Wales Civil and Administrative Tribunal proceedings – where offer to settle proceedings accepted in principle and subject to agreement on a form of deed – whether settlement binding.

CORPORATIONS — Scheme of arrangement — Application for approval – where two interdependent creditors’ schemes proposed to effect broader restructuring — where schemes provide for debt-to-equity swap, standstill period and variation of loan documentation.

ASSOCIATIONS AND CLUBS — Incorporated associations – where board of registered club resolves to appoint voluntary administrators – where appointees not approved by liquor and gaming authority – whether Supreme Court has power to appoint administrators to registered club – Registered Clubs Act 1976 (NSW), s 41

ADMINISTRATIVE LAW – prerogative relief – appeal against order of the Children’s Court – no appeal lies to the Supreme Court – interim order by Children’s Court placing child under parental responsibility of the Minister – order permitting carers to take child on holidays to Canada – order opposed by natural parents – no error of law demonstrated – summons dismissed

PRACTICE – NSW Trustee and Guardian Act – Managed person – Private managers – remuneration – Regulatory regime – Report of NSW Trustee and Guardian

CRIME – proceeds of crime – application to have large sum of cash excluded from restraining order –requirement to establish cash was neither proceeds of an indictable offence nor an instrument of any serious offence – applicants claiming cash was received from two unidentified men referred to as the Fat Man and the Skinny Man

Succession – family provision claim by widower – house owned by deceased and widower in equal shares as tenants in common – whole of deceased’s estate left to granddaughter of deceased – dysfunctional relationship between deceased and widower – long-standing testamentary intention of deceased for share in house to remain in her family – known to widower – “community expectations” as to “proper” provision for widower

SUCCESSION - Family Provision – settlement – proceedings settle on 2 September 2016 upon terms providing for the transfer of certain property to the plaintiff from the estates of each of his parents (represented by the first and second defendants) upon certain conditions as to time and the consideration to be paid - and in default of those conditions being satisfied the parties agree to the sale of the property by auction – conditions not complied with – disagreement between the parties as to course now to be followed – one wants sale to himself to proceed – other wants sale by pubic auction – each claims the 2 September orders justifies the course chosen - proper construction of the 2 September 2016 orders - whether the Court may make further orders under Family Provision Act 1982, s 15 and/or Succession Act 2006, s 66 adjusting the rights of the parties so as to permit the plaintiff to purchase the property

CRIMINAL LAW – Bail – release application – half a tonne of cocaine – importation – show cause – where accused discharged at committal – surprising decision – strong prosecution case – medical condition – whether treatment available – where accused voluntarily attended Court – powerful combination of circumstances satisfy show cause requirement – risk of flight mitigated by large security

CRIMINAL LAW — Procedure — Miscellaneous powers of courts and judges — summons for judicial review of District Court — appeal against conviction — conviction under Crimes Act 1900 (NSW) s 91L — voyeurism and related offences — Crimes (Appeal and Review) Act 2001 (NSW) s 18 — hearing in District Court was to be by way of rehearing on the basis of evidence given in the Local Court — whether primary judge misconceived the nature of the appeal — whether primary judge conducted a hearing de novo — primary judge made own assessment of credibility of the accused’s credibility and failed to take into account Local Court’s findings on credibility ADMINISTRATIVE LAW — Judicial review — Procedural fairness — litigant in person — whether primary judge failed to consider substantial, clearly articulated argument raised by accused — whether primary judge’s interruptions were excessive — whether primary judge’s line of questioning amounted to cross-examination of accused ADMINISTRATIVE LAW — Judicial review — Procedural fairness — whether allegation of apparent bias ought to be considered before other grounds of review — in circumstances where success in any of the grounds of review will result in orders being quashed and remittal of proceedings it is not necessary to deal with allegation of apparent bias first

BAIL – 15 year old applicant seeks release – offence of violence – bad criminal history – co-offenders sentenced to bonds – child not previously incarcerated – applicant pregnant – seeks opportunity to study hairdressing – stringent conditions proposed – bail granted – no point of principle

CRIME – judge alone trial – 3 accused charged with murder, accessory before the fact to murder and concealing a serious indictable offence (accessory) respectively – discussion of circumstantial evidence; reasonable hypothesis inconsistent with guilt; and drawing inferences – factual conclusions prove guilt of murder accused and do not prove, to the requisite standard, the guilt of the other two accused.

CIVIL PROCEDURE – Representation – Application to restrain plaintiffs’ solicitors from acting

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – where offer made to compromise two proceedings for a single sum – proper order as to costs of one proceeding COSTS — Party/Party — Application for gross sum costs order – where costs of assessment would be disproportionate

TORTS – contribution between tortfeasors – where cross-claimant settled claims in negligence – cross-claims brought against cross-defendant seeking contribution or indemnity – whether cross-claimant liable in respect of damage – whether cross-defendant would have been liable in respect of same damage if sued – question of just and equitable apportionment

PROBATE – Costs – Security for Costs – Plaintiff ordinarily resident outside Australia – No assets in Australia – Principles applicable – Order for security made COSTS – Security for costs – Probate proceedings – Plaintiff ordinarily resident outside Australia – No assets in Australia – Principles applicable – Security ordered

REAL PROPERTY – strata scheme for a residential and commercial building – application of Strata Schemes Management Act 1996 (NSW) – effect of non-compliance with notice requirements for a meeting of the executive committee specified in Sch 3, cl 6 – whether resolution passed by Executive Committee in breach of ss 65A and 80A – whether Executive Committee has authority to instruct legal representatives to settle legal proceedings PROCEDURE – consent orders – whether consent orders may be set aside – orders already entered – circumstances in which orders may be set aside – whether court has a discretion to set aside orders when basis for setting aside the order has been established AGENCY – ostensible authority – whether senior counsel has ostensible authority to enter settlement agreement – whether parties acted in reliance on representation of authority – whether no question of ostensible authority as a result of the principle that estoppel does not operate against a statute

COSTS – application in respect of costs at first instance – where appeal allowed in part from District Court judgment – whether order for costs should be made under Uniform Civil Procedure Rules 2005 (NSW), r 42.35 on the basis that proceedings were not commenced in the appropriate court – whether offer properly characterised as Calderbank offer – whether special costs order should be made