Cases and authorities

CRIMINAL APPEAL – sentence appeal – appeal against aggregate sentence – fraud – corporate victim – where applicant the director of the corporate victim operating two horse studs – where applicant falsely inflated invoices for hay and oats – where primary judge made a direction under s 97 Victims Rights and Support Act 2013 (NSW) – whether aggregate sentence was manifestly excessive – consideration of the use of comparative cases in sentencing – consideration of the effect of compensation directions in mitigation of sentence – consideration of whether counsel can raise a new argument before the Court of Criminal Appeal that could have been raised before the primary judge – leave to raise new argument refused – leave to appeal otherwise granted – appeal dismissed

CRIMINAL LAW – remarks on sentence – offence of hindering the discovery of evidence of a serious indictable offence – plea of guilty on day of trial for a more serious offence

PROCEDURE – notice of motion – pleadings – request for further particulars – orders sought made

INJUNCTION – ex parte – injunction sought – Council meeting - motion to remove elected plaintiff from office – serious issue to be tried – question of procedural fairness – balance of convenience established – short injunction granted on a limited basis – reasons

COSTS – multiple defendants – where plaintiff obtained declaration of equitable charge over first defendant’s land – where other defendants had registered mortgages over land – where unsuccessful attempts to settle proceedings between parties – appropriate for first defendant to pay plaintiff’s costs as between those parties – appropriate for those costs to be secured by plaintiff’s equitable charge – no order for costs as between plaintiff and second and third defendants

CORPORATIONS – external administration – winding up – liquidators’ claims and remedies – unfair preferences – payment by third party to company’s creditor – in what circumstances to be treated as payments by the company – whether “received from the company” – defences – reasonable grounds to suspect insolvency – distinction between insolvency and temporary cashflow problem

CIVIL PROCEDURE — Parties — Persons under legal incapacity – second defendant conducts legal proceedings in the District Court of New South Wales as a plaintiff – second defendant settles the District Court proceedings and orders are made in the District Court for the payment of the settlement sum to the first defendant to be held by it for the second defendant – dispute about costs between the second defendant and his solicitors acting in the District Court proceedings – first defendant seeks to have the settlement money paid into court pending resolution of the costs dispute between the second defendant and his solicitor – whether the second defendant is still under a legal incapacity – what sum from the settlement money should be paid into Court and what sum should be paid to the second defendant.

SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for additional provision out of the deceased’s estate under Chapter 3 of the Succession Act 2006 (NSW) – Small estate - No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant also child of the deceased and one of the executors in the Will - No application by Defendant for administration made at date of hearing - Proceedings not commenced within time - Whether sufficient cause shown to extend time - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made.

APPEAL – leave to appeal – where primary judge dismissed applicant’s case on grounds of insufficient evidence due to his failure to appear – where non-appearance said to be due to illness – alleged illness not communicated to primary judge – alternative remedy available – Uniform Civil Procedure Rules 2005 (NSW), rr 29.7(2), 29.7(4), 36.16(2)(b)

PROCEDURE – judgments and orders – consequential orders following successful appeal from judicial advice to trustee – whether matter should be remitted to trial judge – no question of principle

CIVIL PROCEDURE — Court of Appeal — application for leave to appeal – where applicant seeks to conduct case on appeal on basis diametrically opposed to forensic course pursued at trial DEFAMATION – defences – absolute privilege – Defamation Act 2005 (NSW), s 27, Sch 1, cl 27 DEFAMATION – defences – good faith – where at trial applicant admitted defamatory letters lacked bona fides and were false – Health Care Complaints Act 1993 (NSW), s 96(2) – Medical Practice Act 1992 (NSW), s 47 DEFAMATION – defences – triviality DEFAMATION – remedies – compensatory damages – damage to reputation – defamatory publication to statutory authority responsible for plaintiff’s registration as a doctor – where plaintiff obliged to disclose publications to professional association and insurer

CRIMINAL – procedure – whether evidence of child witness in murder trial should be given in a closed court – whether a closed court is mandated in such circumstances – whether a closed court is in the interests of justice – evidence not to be given in closed court

EQUITY – Trusts and trustees – Beneficiaries – Rights of beneficiaries of discretionary trust

TRUSTS AND TRUSTEES; JUDICIAL ADVICE – s 63 of the Trustee Act 1925

SUCCESSION – Statutory wills – Succession Act 2006 (NSW), ss 18, 19, 22

CRIMINAL LAW – Crown appeal against sentence – one offence of unauthorised possession of a pistol, five offences of sexual intercourse with a child under the age of 10 years and one offence of make child abuse material – error in assessment of objective seriousness of sexual intercourse offences – error in assessment of matters to be properly taken into account in mitigation of offending – failure to properly apply the principle of totality – sentence manifestly inadequate – Crown appeal allowed – offender resentenced.

CRIMINAL LAW – appeal against sentence – offences against ss 66A, 66C Crimes Act 1900 – where trial judge considered incorrect maximum penalty for s 66A offence CRIMINAL LAW – appeal against sentence – five counts of historical offences against ss 76, 76A Crimes Act 1900 – three offences charged with two on Form 1 – whether trial judge erred in determining objective seriousness of offences – where trial judge confused substantive count with Form 1 count when determining sentence CRIMINAL LAW – appeal against sentence – resentencing for historical offences – s 76 Crimes Act 1900 contemplates a broad range of offending conduct – lesser maximum penalty than subsequently enacted provisions that encompass the same conduct – historical sentencing patterns for sexual offences – non-parole periods for historical offences

SENTENCE – failure to expressly refer to discount for guilty plea – no finding of objective seriousness APPEAL – against sentence – appeal allowed – appellant re-sentenced

CRIMINAL LAW – appeal against sentence - break, enter and commit a serious indictable offence in company whilst armed with a dangerous weapon contrary to s 112(3) of the Crimes Act 1900 –whether sentence manifestly excessive – strong subjective case – sentencing judge found the offence to be “serious” and “below the middle of the range” – contention that judge found substantially below the middle of the range rejected – sentencing statistics of no assistance – no meaningful range to be found in so-called comparable cases – sentence not manifestly excessive – appeal dismissed

SENTENCING – parity – co-offenders re-sentenced on appeal to lesser sentences SENTENCING – compelling subjective circumstances – distinction between appellant and co-offenders APPEAL – against sentence – appeal upheld as to one count

CRIME – sentencing – offences of aggravated break, enter and commit serious indictable offence – reckless wounding in company – assault occasioning actual bodily harm – steal from person – breach bond – guilty pleas entered - question of sufficiency of evidence of remorse in absence of evidence from applicant – untested assertions to third party relied upon – principles that apply to untested statements - relevance of mental illness to sentencing exercise

PARTNERSHIPS AND JOINT VENTURES – plaintiff and defendant in partnership to build residential and commercial units – creation of partnership vehicle company to conduct the project development – request for Court dissolution and winding up of partnership – whether construction contract entered into by the parties and whether in force or abandoned – whether plaintiff is the builder of the project, as named in the construction contract, and entitled to recoup monies for construction costs – whether variations were made to the construction contract sum – whether payments claimed were established to have been made by the plaintiff and whether, to the extent so established, loans obtained by the plaintiff for the purpose of meeting construction costs are recoverable from the partnership pursuant to s 24(2) or s 24(3) of the Partnership Act 1892 (NSW) – issue of delay in completion of the project – plaintiff’s lack of building license and impact of Home Building Act 1989 (NSW) raised – whether the joint expert appointed is no longer impartial because he was engaged in communication by the plaintiff’s solicitor without the involvement of the defendant and therefore cannot act as a referee in the proceedings – whether a receiver and manager should be appointed – whether, pursuant to s 35(f) of the Partnership Act 1892 (NSW), the partnership should be dissolved – what questions and matters should the referee and receiver and manager determine

CIVIL PROCEDURE – slip and fall in supermarket car park – occupiers liability – where occupier was lessee of car park – defendant seeks leave to file and serve amended defence during hearing – defendant argues that matters in amended defence are covered by the existing pleadings – whether prejudice to plaintiff – whether defendant required to specifically plead these matters – held that matters to be specifically pleaded per UCPR r 14.14(2) – leave to amend refused

CIVIL LAW – high risk violent offender – Crimes (High Risk Offenders) Act 2006 –application for extended supervision order – index offence of wounding with intent to cause grievous bodily harm – history of repeated criminal offending – sentence of imprisonment of 7 years with non-parole period of 5 years and 3 months – term of sentence to expire 10 July 2017 – interim supervision order under s 10B of Crimes (High Risk Offenders) Act sought – defendant accepted into full-time residential rehabilitation program at Glebe House –– defendant participated in various rehabilitation programs in custody but no proven long-term change demonstrated –interim supervision order made

COSTS - specified gross sum instead of assessed costs – Civil Procedure Act s98(4)(c) – plaintiffs successful in contested proceedings for a mandatory injunction to restrain the commission of the tort of intimidation – defendant an undischarged bankrupt – defendant unlikely to be able to satisfy any order for costs of a costs assessment – whether a specified gross sum order should be made instead of an award of assessed costs – if so, what is the appropriate amount of such a specified gross sum - whether $391,152.27, which is approximately 60% of the costs the plaintiffs have incurred should be awarded instead of assessed costs – history of jurisdiction to make specified gross sum orders instead of assessed costs.

CORPORATIONS – members rights and remedies – statutory derivative action – application for leave – relevant considerations – where action potentially barred by limitation statute COSTS – application for leave to bring statutory derivative action – inappropriate to make costs of application – costs in derivative claim – inappropriate to reserve – no reason to depart from prima facie position that unsuccessful defendant should pay successful plaintiff’s costs

ADMINISTRATIVE LAW – judicial review of decision of medical Appeal Panel – where Appeal Panel revoked a “medical assessment certificate” on the basis of “demonstrable error” and issued a new certificate – where plaintiff was a police officer suffering PTSD and depression causing “permanent impairment” – where dispute about degree of impairment – consideration of Social Functioning and Employability under the Psychiatric Impairment Rating Scale – HELD jurisdictional error in relation to the functions of the Registrar – HELD misdirection in conclusion that the evidence could not support a finding that the plaintiff’s relationship with her partner was “severely strained” – HELD error of law on the face of the record in finding that there was no material which could support a Class 3 assessment of Social Functioning – medical assessment certificate set aside – matter remitted for rehearing by different Appeal Panel – plaintiff awarded costs

COSTS — Party/Party — Exceptions to general rule that costs follow the event — whether conduct was unreasonable — whether it was unreasonable for plaintiff to commence proceedings — no order as to costs

APPEALS – leave to appeal – application for judicial review of decision of private body – applicant alleged denial of procedural fairness – relevance of review process which may “cure” any failure to afford procedural fairness in the initial determination

INSURANCE – professional indemnity insurance ­– exclusions – insured and associate exclusion – distributive construction of composite insurance ­– where several insured indemnified with respect to their liabilities in conducting professional business – where cover extended to director of insured company – where insured company contracted with trustee for unit trust – where director and shareholder of insured company also sole director and shareholder of trustee – where director of insured company and his family members held shares in corporate unitholders of trust – where trustee brings civil proceedings against insured company – whether civil proceeding brought by third party within insuring clause – whether claim brought by subsidiary of insured within exclusion clause – whether claim brought for benefit of insured within exclusion clause – whether claim brought on behalf or for benefit of family members of insured PROCEDURE – uniform civil procedure – joinder of parties – joinder on appeal of defendants alleged to be alternatively liable – where insured seeks declaration of indemnity against insurer and alternatively damages against insurance brokers – where non-liability of insurer essential to claims against brokers – where appeal from separate determination of insurer’s liability – whether brokers directly affected by relief sought in appeal

ENVIRONMENT AND PLANNING – clearing of native vegetation in contravention of s 12 of the Native Vegetation Act 2003 (NSW) – contravention admitted but not extent of clearing – whether “groundcover” had been cleared – whether clearing must be on each and every part of the land – whether remedial orders appropriate

CORPORATIONS — Dissolution — Reinstatement – Application to reinstate deregistered company – where proposed liquidators consent to appointment but have not been put in funds for investigations or proceedings – whether it is just that the company’s registration be reinstated

SUCCESSION — Family provision claim — Whether consequential or ancillary order can be made without family provision order — Succession Act 2006 (NSW), s 66(1) BANKRUPTCY — Act of bankruptcy — Jurisdiction of courts — Whether Supreme Court has jurisdiction to restrain presentation of creditor’s petition to prevent alleged abuse of its process — Bankruptcy Act 1966 (Cth), ss 5, 27(1)

ADMINISTRATIVE LAW – judicial review of medical appeal panel – workers compensation commission – whether jurisdictional error – workers compensation - procedural fairness

CONTRACTS – unconscionable conduct – whether third party acted unconscionably in obtaining guarantee – whether contract should be set aside EQUITY – unconscionable conduct – special disability or disadvantage – third parties – wife acting as surety for husband’s debts EQUITY – unconscionable conduct – special disability or disadvantage – independent advice – whether creditor took adequate steps to ensure wife had independent advice

COSTS – plaintiff partially successful in action for nuisance and trespass – defendant/cross-claimant unsuccessful on Cross-Claim for proprietary estoppel and for relief under the Encroachment of Buildings Act 1922 – consideration of the appropriate order for costs to take account of the parties’ partial success and partial failure in the proceedings – whether issues on which the plaintiff was successful are severable from those on which it was unsuccessful, such that separate costs orders should be made on each issue.

CONTRACT – whether side letter had contractual effect – where no consideration – CONTRACT – whether representation had contractual effect – CONSUMER LAW – whether representation misleading and deceptive – where representation was not relied on – CONTRACT – whether estoppel defence available

CORPORATIONS – Directors and officers – Appointment, removal and retirement of directors – Whether director was validly appointed – Where sole shareholder resolved to remove director – Where sole director did not notify director – Where sole director did not notify ASIC. CORPORATIONS – Voluntary administration – Administrator – Appointment, removal and retirement of administrators – Whether administrators were validly appointed – Where administrators were appointed by director who had allegedly been removed from office.

COSTS – proceedings for appointment of trustees for sale of co-owned property – agreement reached for one co-owner to purchase interest of other co-owner – removal of basis for proceedings – appropriate that no order for costs be made to the intent that each party bear its own costs

HIGH RISK OFFENDER – final hearing – application for final extended supervision order – terms of proposed conditions – length of order sought opposed – orders sought made

PRACTICE AND PROCEDURE – application to dismiss proceedings for want of due despatch – UCPR 12.7 – where no satisfactory explanation for extreme delay and disregard for orders – where plaintiff has not given any evidence in response to application to strike out

CRIMINAL LAW – sentence – murder for financial gain – plea of guilty - where premeditation – where prospects for rehabilitation moderate – where sustained assault – 36 years imprisonment – 27 non-parole

CRIMINAL LAW – application for inquiry into sentence following conviction – Pt 7 of the Crimes (Appeal and Review) Act 2001 – application dismissed

CORPORATIONS – external administration – assignment to member of committee of inspection of any causes of action the company might have for compensation for breach of fiduciary and statutory duties and accessorial liability – application by committee member for leave nunc pro tunc to enter transaction prohibited by s 551, Corporations Act – where transaction approved by unanimous resolution of creditors – where committee of inspection not involved in approval of the transaction – where member of committee of inspection did not advert to restrictions on acquisition of company property when entering into deed of assignment – whether potential partial invalidity of purported assignment infects or otherwise renders whole assignment invalid – whether discretionary factors tend against grant of leave.

CORPORATIONS – external administration – inherent jurisdiction of Court to allow derivative action by creditor or member where company in voluntary liquidation – where assignment to plaintiff by liquidators for valuable consideration of all of the company’s causes of action against specified persons – where doubt as to the assignability of claims under Corporations Act, s 1317H – where plaintiff seeks leave to bring derivative action to avoid gap in formulation of proceedings – whether leave should be granted – whether plaintiff is a creditor of the company - where plaintiff relies upon his admitted proof of debt – whether the proposed claim has a solid foundation and is not vexatious or oppressive – where liquidators consider proposed claim has merit, but without funds to pursue the claim – whether liquidators and the company adequately financially protected from any adverse cost orders if the proposed claim fails – where proposed arrangement between the plaintiff, the company and the liquidators for the sale or disposition to the plaintiff of the future proceeds of any derivative action – exercise of liquidators’ powers under s 477(2)(c) – need for approval by Court, committee of inspection or by resolution of creditors under s 477(2B) – whether proposed arrangement infringes Corporations Act, ss 551, 555 or 556 – appropriate conditions of leave.

CRIMINAL LAW – application for determination of five life sentences imposed in 1985 - consideration of applicable statutory factors - offences held to be in worst category and involving great heinousness - sexual sadism involved in murder of three women and attempted murder of a fourth - four counts of murder and one of wounding with intent to murder – offences committed over seven-month period in 1982-1983 - Applicant has no real insight into offending - now 61 years old - consequence of refusal of application is that Applicant will remain in prison for the term of his natural life - application refused

CONTRACT – commercial agreement between specialist radiologists pertaining to the conduct of a radiology clinics business – construction – provision providing for three types of determination (dissolution) of arrangements – which of two applies.

LAND LAW – contract for sale – deposit – forfeiture of deposit – where parties varied contract to extend time for completion in exchange for increases in deposit above 10% of price – where deposit payable in instalments – where vendor terminated for failure to pay instalments – whether variations to standard form contract permit recovery of deposit of more than 10% of price LAND LAW – contract for sale – deposit – vendor entitled to keep or recover deposit up to 10% of price – statutory return of deposit – where vendor terminated contract for sale for failure to pay deposit instalments – where vendor resold at a higher price – whether discretion should be exercised under s 55(2A) Conveyancing Act to defeat vendor’s claim for deposit CONTRACTS – construction and interpretation – where standard terms of contract for sale permitted vendor to keep or recover deposit up to 10% of price – where parties varied standard terms to permit retention of deposit of more than 10% of price – whether variations also permit recovery of deposit beyond 10% – extent of inconsistency limited to retention

BUILDING AND CONSTRUCTION – validity of payment claim – object and application of the Building and Construction Industry Security of Payment Act 1999 (NSW), s 13 – where construction work identifiable – where there was an available reference date – BUILDING AND CONSTRUCTION – whether estoppel defence available – where plaintiff did not influence defendant’s understanding or actions – BUILDING AND CONSTRUCTION – CONSUMER LAW – whether misleading and deceptive conduct defence available – where plaintiff did not influence defendant’s understanding or actions

CRIMINAL LAW – serious sex offender – whether defendant a high risk sex offender – whether high risk sex offender extended supervision order should be made