Cases and authorities

CORPORATIONS — Scheme of arrangement — Application for order convening meetings of creditors to consider schemes of arrangement – 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 – whether requirements to order scheme meetings satisfied – appointment of foreign representative.

CRIMINAL LAW – sentence – unlawful and dangerous act manslaughter – aggravated sexual assault – hindering discovery of evidence concerning serious indictable offence – sexual act of “fisting” – issue of consent – intoxication of offenders and deceased – delay in prosecution – no remorse – harm to community taken into account under s 28(4) of the Crimes (Sentencing) Procedure Act 1999 (NSW)

EVIDENCE – criminal law – credibility – exceptions to the credibility rule - re-establishing credibility – eye witness to the killing of the deceased – witness makes triple 0 call – triple 0 call not disclosed by Crown until after witness’s evidence completed – challenge to witness’s credibility in cross-examination – tender of triple 0 call under s 108(3)(b) of the Evidence Act – whether it was asserted or implied that witness’s evidence fabricated – significant probative value of triple 0 call - requirements of s 108(3) established – whether tender would be unfairly prejudicial to accused – whether probative value outweighed by unfair prejudice CRIMINAL LAW – procedure – juries – whether jury should be discharged after rejection of tendered evidence – seriousness of charge – unfairness to accused – balancing exercise

PRACTICE AND PROCEDURE – where plaintiff seeks order that defendant is guilty of contempt for breach of Consent Orders – where plaintiff seeks advanced ruling on admissibility of evidence – where plaintiff seeks security for costs – where defendant seeks order to vacate Consent Orders – whether defendant relied upon representations made by plaintiff during mediation – whether settlement agreement was vitiated by the alleged representations – whether cross-claim should be summarily dismissed – whether consent orders should be stayed until outcome of defendant’s cross-claim is known

CONVEYANCING – Breach of contract for sale and remedies – Relief against forfeiture of deposit

Civil Procedure – security for costs – corporate plaintiff – stifling of proceedings – solicitor acting on deferred payment basis – whether exception for solicitor creditor – whether solicitor standing behind proceedings – willingness to provide further funding – ability to provide further funding – onus – applicable discretionary principles Civil Procedure – review of decision of Registrar – further evidence filed – evidence not “fresh” – discretion

CONVEYANCING – contract for sale of land – purported termination by both parties – vendor required to perform works “by completion” – whether performance required by date specified for completion under contract or time of settlement – contract distinguished between “completion” and “date of completion” – whether vendor complied with obligation to perform works – validity of notice to perform and notices to complete – whether vendor’s misleading and deceptive conduct causally connected with purchaser's successful bid at auction – whether deposit should be returned – Conveyancing Act 1919 (NSW), s 55(2A)

CRIMINAL LAW – sentencing – alleged non-compliance with s 44(2A) of Crimes (Sentencing Procedure) Act 1999 (NSW) by pronouncing non-parole period first – error purely technical and of no operative effect or practical significance STATUTORY INTERPRETATION – legislative history of s 44(2A) – significance of order in which components of sentence pronounced – formal requirement that aggregate sentence be pronounced first CRIMINAL LAW – sentencing – alleged failure to regard applicant’s temporary mental illness as a significant mitigating factor – weight to be given to factors to be determined by sentencing judge – no error demonstrated

CRIME – appeal – leave to appeal against sentence – offender convicted of producing child pornography and child abuse material under Crimes Act 1900 (NSW) s 91H(2) – whether error in assessing objective seriousness of offending – whether aggregate sentence manifestly excessive – whether Court should resentence offender CRIME – offences – production of child pornography and child abuse material under Crimes Act 1900 (NSW) s 91H(2) – whether “private parts” extends to depictions of clothed areas – whether “breasts of a female person” extends to bare chest of pre-pubescent girl – whether pleas of guilty should have been accepted – whether miscarriage of justice – whether convictions should be set aside WORDS AND PHRASES – “child abuse material” – “private parts” – Crimes Act 1900 (NSW), s 91FB

ENVIRONMENT AND PLANNING – offences – waters pollution – breach of licence condition – discharge of contaminated water into dam on adjoining rural property – death of five cows – whether deaths caused by pollution of waters – whether cause of deaths proved beyond reasonable doubt – whether deaths substantial harm to environment – whether deaths aggravating factor – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g) – sentencing – appeal against sentence – whether primary judge erred in assessment of objective seriousness and harm caused – whether primary judge erred in consideration of good character and mitigation – whether sentence manifestly excessive SENTENCING – relevant factors on sentence – objective seriousness – waters pollution offence – where waters inadvertently polluted and caused deaths of cattle SENTENCING – appeal against sentence – severity – sentence manifestly excessive

CRIMINAL LAW – Crown appeal against inadequacy of sentences – 21 offences against s 272.8(2) of the Criminal Code 1995 (Cth) – causing children in Philippines to engage in sexual intercourse by instructions given by respondent located in Sydney via real-time video link– factors relevant to assessing objective seriousness of offence – difficulty in detecting offences – heightened need for general deterrence – vulnerability of children in impoverished countries – whether aggregate sentences may be imposed for indictable offences against the Code – whether judge erred in applying totality principle – whether sentence failed to adequately acknowledge separate harm done to children – whether individual sentences were manifestly inadequate – whether residual discretion should not be exercised – Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill – re-sentence – whether paraphilic disorder reduces moral culpability – specific deterrence – sentence increased

CRIME – appeal against conviction after judge alone trial – charges relating to possession of prohibited weapons and a firearm – whether verdict unreasonable or cannot be supported by the evidence – whether applicant had possession of the relevant items – whether items were intended to be used in a significant criminal enterprise namely a “rip off” – whether trial judge erred in his use of expert evidence – relevance of applicant giving in evidence an implausible explanation for his possession of the weapons and firearm SENTENCING – appeal against sentence – relevant factors on sentencing – Form 1 offences – Form 1 did not attribute each additional charge to a principal offence – unsigned Crown sentence summary did attribute each Form 1 offence to a principal offence – Crown sentence summary agreed to by accused – s 32(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied SENTENCING – appeal against sentence – subjective considerations on sentence – whether judge did not properly take into account applicant’s mental condition as reducing moral culpability and significance of general deterrence – whether sentence manifestly excessive

APPEALS - procedure - application for hearing before a court constituted by 5 judges - application based on recent divided decision of Court of Criminal Appeal - application made orally when appeal heard - point not taken at first instance - point not developed in written submissions - application refused CRIMINAL LAW - sentencing - manifest excess - aggregate sentence - Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A - whether indicative sentences manifestly excessive - whether notional accumulation led to manifestly excessive sentence - appeal allowed and offender resentenced

CRIME – appeal – conviction – importing a commercial quantity of a border-controlled precursor intended or believed to be for manufacture of a border controlled drug – conspiring to import a commercial quantity of a border-controlled drug – dealing with money to the value of $100,000 or more believing it to be the proceeds of crime – whether trial judge’s summing up caused a miscarriage of justice – whether summing up unbalanced or unfair

CORPORATIONS – voluntary administration and liquidation – decision by liquidator – proof of debt – appeal to Court from liquidator’s decision CORPORATIONS – Statute of Limitations – limitation defence – cause of action is from date of winding up

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining orders – ancillary orders – ex parte – orders made

Intellectual Property — confidential information — information protected — former employee establishes competing business — no contractual restraint of trade — publicly available email contact details for former employer’s clients not confidential

COSTS – indemnity costs – calderbank offers – offers of compromise

REAL PROPERTY – licences – termination - possession

EVIDENCE – Evidence on Commission Act 1995 (NSW) – ex parte application – subpoena – short service – orders sought made

CRIMINAL LAW - Accused charged with murder - inquiry into fitness to be tried - finding that Accused until to be tried - referral to Mental Health Review Tribunal

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion – where Plaintiff’s arguments unsuccessful – where relief sought by Plaintiff nonetheless partly granted on other grounds

CRIMINAL LAW – murder – conviction after trial – fatal stabbing by offender of his wife – background of domestic violence

CONTRACTS – general contractual principles – intention to enter legally binding relations CONTRACTS – general contractual principles – breach and defences to action for breach – non est factum EQUITY – equitable remedies – specific performance

CIVIL LAW – summary dismissal of proceedings seeking declarations – judicial review of validity of search warrants – where criminal proceedings pending before Local Court – whether proceedings abuse of process by causing fragmentation of criminal proceedings – whether trial court has jurisdiction to consider validity of warrant beyond errors on face of warrant – latent invalidity – stay pending outcome of criminal proceedings

Judgments and Orders – orders made in absence of party – self-represented litigant claiming to have mental health difficulties – application to set aside orders – alleged errors in orders – alleged apprehended bias – alleged fraud – alleged abuse of process – Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(2)(b), (3A) – no evidence of hardship due to compliance with orders – discretion Civil Procedure – self-represented litigant claiming to have mental health difficulties – non-compliance with directions – non-attendance at hearing – mental health difficulties – Court’s responsibility towards self-represented litigants Evidence – expert opinion – admissibility – medical certificates – Evidence Act 1995 (NSW), s 79

Land Law – fraudulent conveyances – costs orders made against husband in previous proceedings – conveyance by husband to wife pursuant to property settlement following separation – intent to defraud creditors – prejudice to creditors – purchaser in good faith without notice – onus – compromise as valuable consideration – inference from facts – constructive notice – notice of agent – Conveyancing Act 1919 (NSW), ss 37A, 164 Equity – conveyance by husband to wife pursuant to property settlement following separation – alleged equitable proprietary interest of wife – contributions to joint account used for mortgage repayments – payments for renovations – “failed joint venture” equity – proprietary estoppel Judgments and Orders – conveyance by husband to wife pursuant to consent orders – setting aside consent orders – non-disclosure of liabilities – Family Law Act (Cth), s 79A

PRACTICE AND PROCEDURE – leave to appeal from summary dismissal of tortious claims for malicious prosecution and abuse of process – where relevant proceedings have not terminated – where immediate purpose for bringing proceedings was proper – whether manifest error or question of principle warranting leave – no such error or principle PRACTICE AND PROCEDURE – leave to appeal from interlocutory decision dismissing application to join husband of applicant as second plaintiff, and amend statement of claim – no utility granting leave where underlying proceedings dismissed

CIVIL PROCEDURE – Court of Appeal – incompetent appeal – review of order of single judge of appeal dismissing appeal – scope of review under s 101, Supreme Court Act 1970, s 46(4) CIVIL PROCEDURE – requirement for leave to appeal – construction of Supreme Court Act 1970, s 101 – whether subs (1) granting right of appeal subject to subs (2)

TORTS – negligence – Civil Liability Act 2002 (NSW), ss 5K, 5L – meaning of “recreational activity” – whether “any sport” includes professional horseracing TORTS – negligence – where appellant injured during fall while racing as a professional jockey – where respondent a jockey in the same race – whether the primary judge erred in not finding that the respondent moved his horse in front of the appellant’s horse when it was unreasonable to do so EVIDENCE – use of photographic and video evidence – where the fall was captured on video by multiple cameras – whether primary judge impermissibly used video and photographic evidence to make findings as to how the fall occurred

CIVIL PROCEDURE – apprehended bias – recusal application to Deputy President hearing appeal refused – Deputy President involved as arbitrator in earlier proceeding between same parties – earlier proceeding discontinued by consent – whether comment in course of telephone directions hearing that there was “no real issue regarding injury” gave rise to reasonable apprehension of bias in later proceeding where injury was in issue – no context for earlier comment – no finding made on evidence – further evidence filed in later proceeding WORKERS COMPENSATION – appeal on point of law from decision of Deputy President confirming determination of arbitrator in favour of worker – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353 – reasonable apprehension of bias on part of Deputy President

AVIATION – carriage by air – carriers’ liability – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – Civil Aviation (Carriers’ Liability) Act 1967 (NSW) – liability of carrier for death of passengers in helicopter crash – family of deceased passenger brought claims against carrier for nervous shock – whether liability of carrier for psychological injuries of non-passengers falls within regulatory scheme of statute – whether claims barred by two year statutory limitation provision – whether claims remain available under general law BAILMENT – right of bailee to claim damages for loss of chattel – operator of helicopter claimed contribution for loss of helicopter from joint tortfeasors – whether operator entitled to recover damages STATUTORY INTERPRETATION – treaties – Warsaw Convention – incorporation into domestic legislation – principles of interpretation – regard to be had to treaty purpose, context and subject matter – weight to be given to international case law considering treaty language when interpreting domestic statute TORTS – negligence – compensation to relatives – Compensation to Relatives Act 1897 (NSW) – interaction of claims with exclusive liability provisions under Civil Aviation (Carriers’ Liability) Act 1959 (Cth) TORTS – negligence – joint tortfeasors – liability of employer and helicopter operator for death of employees in crash – claim for contribution between tortfeasors – Civil Aviation (Carriers’ Liability) Act 1959 (Cth), s 37 – whether two year limitation period on claims under s 34 applies – whether contribution claim in relation to liability not arising under statute available – apportionment of responsibility and damages – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 WORDS AND PHRASES – Civil Aviation (Carriers’ Liability) Act 1959 (Cth), s 35 – “passenger” – whether employees on helicopter were “passengers” for purposes of carrier’s liability under statute WORDS AND PHRASES – Civil Aviation (Carriers’ Liability) Act 1959 (Cth), s 35 – “in respect of” – whether claims of employee’s family arose “in respect of” his death for purposes of carrier’s liability under statute WORKERS COMPENSATION – liability to pay compensation – Workers Compensation Act 1987 (NSW), s 151Z – whether employer able to claim recovery of compensation payments from third party tortfeasor in circumstances where employer was joint tortfeasor

WORKERS' COMPENSATION – motor vehicle accident – injuries out of jurisdiction – where employee and employer based in Victoria and injury and alleged negligence occurred in New South Wales – whether primary judge erred by finding that the substantive law of Victoria applies to a claim for damages – workers compensation legislation to be construed within context of statutory regime and legislative history – whether choice of law provisions apply only to a claim made against an employer in its capacity as employer of claimant, including its vicarious liability for the torts of a co-employee – whether choice of law provisions apply also to claim against employer as owner of vehicle pursuant to the statutory agency under s 112 of the Motor Accidents Compensation Act 1999 (NSW) – whether choice of law provisions apply to a claim made against negligent driver WORDS AND PHRASES – whether definition of “claim” in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) creates inconsistency with Division 1A in Part 5 of the Workers Compensation Act 1987 (NSW) – no inconsistency arises – “claim” forms part of the composite expression “claim for damages” – common law claim for motor vehicle damages is a “claim for damages” STATUTORY INTERPRETATION – general rules of construction of instruments – construction of Division 1A of Part 5 of the Workers Compensation Act 1987 (NSW) – whether provisions should be given literal meaning – need to consider legislative history and context in construing the statutory regime

CORPORATIONS — Winding up — Who may petition – where company insolvent without a director – whether Supreme Court has inherent jurisdiction to deal with winding up application by petitioner without standing under statute – whether order should be made for winding up of company once creditor substituted as petitioner.

CRIME – summary jurisdiction – s 112 Road Transport Act 2013 – charge of driving under the influence of alcohol dismissed – evidence defendant intoxicated before and after driving – admission as to driving – magistrate focussed on whether driving ability impaired – not an element of offence that manner of driving be affected by alcohol – error established APPEALS – appeal from Local Court to Supreme Court – magistrate failed to provide adequate reasons for dismissing charge – unclear whether dismissal based on first or second limb of May v O’Sullivan – prosecutor not given opportunity to make submissions on second limb – denial of procedural fairness – appeal allowed

CONTRACTS - existence of a contract - “postal rule” - whether Trading Agreement contained obligation to supply absent acceptance of an order - - HELD: no executed contract - no obligation to supply - PRACTICE AND PROCEDURE - Practice Notice SC Eq 3 para 50 - “stop-watch” method of trial

ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – motor accident – proper construction of s 63 of the Motor Accidents Compensation Act 1999 (NSW) and the Medical Assessment and Permanent Impairment Guidelines – whether review panel conducted its new assessment in accordance with requirements of s 63 and the applicable Guidelines – whether s 63 requires all members of review panel to undertake a re-examination – whether review panel failed to consider unchallenged medical assessment – whether reasons given adequate – reasons given inadequate - review panel failed to comply with requirements of s 63 of the Motor Accidents Compensation Act 1999 (NSW) and the Medical Assessment and Permanent Impairment Guidelines – all members of review panel must undertake a re-examination - orders made

SUCCESSION — family provision and maintenance — circumstances precluding relief — adult children — defendant sister preferred in surviving parent’s will to exclusion of plaintiff brother — brother fails to identify any particular need other than possibly for vicissitudes — failure to provide for brother not inadequate where he was treated generously during parents’ lives and sister had not been

REAL PROPERTY – claim for possession – question of whether mortgagee can establish debt – question of misrepresentation as to loan contract – terms of purported contract - authority to disburse monies – question of validity of mortgage – claim of unconscionable conduct by lender

COSTS – where defendant capitulated to relief sought after commencement of hearing – whether to be spared the sword

CRIMINAL LAW – Offence – Murder – Mental illness – Where accused was son of the deceased – Where accused had suffered head injury some 17 years earlier – Evidence of pre-existing persecutory ideations and substance abuse disorder – Where accused had been admitted to psychiatric facility on two separate occasions – Accused diagnosed with schizophrenia by medical experts – Defence of mental illness made out – Accused found not guilty on the grounds of mental illness

CRIMINAL LAW – conviction appeal – murder – victim stabbed in course of fight – conflicting evidence from heavily intoxicated witnesses – change of defence counsel during trial – plea of guilty to manslaughter during trial – refusal by Crown to accept plea – application to discharge jury refused on five occasions – whether refusal to discharge jury gave rise to a miscarriage of justice – whether verdict was unreasonable or could not be supported by the evidence – no clear evidence of when stabbing of deceased took place – appeal dismissed.

CORPORATIONS — Winding up — Liquidators — Appointment of provisional liquidator – where substantial shareholders of closely held company excluded from management – where any assets of company require preservation.

CORPORATIONS — Shares — Rectification of share register – Application for rectification of register kept by Australian Securities and Investments Commission incorrectly recording initial number of ordinary shares issued on incorporation of First Plaintiff – where information given to Commission calculated on misapprehension of terms of broader transaction – where different number of shares in fact issued and recorded in company’s share register – whether order for rectification of register should be made – whether order validating registration of company should be made.

Subpoena – 3rd party subpoena issued by defendants – plaintiffs move to strike out as oppressive – not having adjectival relevance – alleged relevant basis inconsistent with pleaded case –subpoena discharged.

INTESTACY – burial rights – minor’s death – equal rights of mother and father – significance of Maori culture – disagreement between divorced parents as to appropriate burial place and kind of funeral – cremation and burial – the practicalities of burial without unreasonable delay – regard must be had to the parties’ understanding of cultural requirements, but the issue should be decided on the basis of principle

CORPORATIONS — Management and administration — Application to inspect books – where Plaintiffs suspect breaches of directors’ duties and are contemplating bringing proceedings – whether application made in good faith and for a proper purpose – form of proposed categories for inspection

LAND LAW – easements – substantial interference with rights under easements – where neighbouring properties have reciprocal benefits and burdens under easement to enable shared use of inclinator – where inclinator registered in defendant’s name with regulator – regulator issued notices requiring works to be done to inclinator – whether defendant’s conduct in response to notices constituted a substantial interference with the plaintiffs’ rights under the easement LAND LAW – easements – substantial interference with rights under easements – remedies for interference – damages – damages awarded due to inability to use storeroom landing of inclinator – damage for expenses and inconvenience – exemplary damages claimed – exemplary damages not warranted LAND LAW – easements – construction of easements – general principles of construction – where easement incorporates statutory terms of right of access – where easement imposes obligation to “ensure proper maintenance, repair and replacement” – consideration of parties’ rights and obligations under easement EQUITY – equitable remedies – injunctions – plaintiffs seek a range of injunctions against defendant in relation to easement for inclinator – appropriate to order mandatory injunctions requiring replacement of fence with gate, provision of keys, and relocation of control buttons for inclinator

COSTS – special costs order – indemnity costs – whether plaintiffs’ case was hopeless – Calderbank offers – whether rejecting offer was unreasonable – application to reconsider costs order of motions filed in 2013 where Court of Appeal remitted question to trial judge

LIMITATION OF ACTIONS – professional negligence and misrepresentation claim – application for summary dismissal pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4 – whether claims barred by 6 year limitation period pursuant to Limitation Act 1969 (NSW), s 14, s 63 and Fair Trading Act 1987 (NSW), s 68(2) – accrual of causes of action – when measurable damage suffered by respondent LIMITATION OF ACTIONS – accrual of causes of action – whether statutory contingencies required to be satisfied – Commonwealth of Australia v Cornwell (2007) 229 CLR 519; [2007] HCA 16 COSTS – where appellants succeeded on case not advanced before primary judge – appellants to bear portion of costs notwithstanding success