Cases and authorities

CRIMINAL LAW – appeal against conviction – charges of acts of indecency committed on young teenage boy – where trial judge does not give reasons for admitting tendency evidence – whether miscarriage of justice where no procedural difficulty resulting from absence of reasons and appellate court able to determine whether evidence wrongly admitted – evidence properly admitted – no substantial miscarriage of justice EVIDENCE – admissibility – tendency evidence – charges of acts of indecency committed on young teenage boy – where evidence of two occasions 10 years earlier relied on to prove accused had tendency to be sexually interested in early teenage boys and to act on that interest – whether evidence had significant probative value – whether probative value of evidence substantially outweighed prejudicial effect

CORPORATIONS – amalgamations and reconstructions – creditors schemes – order under Corporations Act s 411(16) restraining proceedings against corporation pending approval of scheme – whether extends to proceedings to enforce members rights in respect of general meeting – held, it does not CORPORATIONS - members rights and remedies – directors’ duties – information as to proposals to be put to general meeting – obligation of directors to give full and frank disclosure and advice – content and extent of obligation – where misleading statement unlikely to affect voting – relief declined EQUITY – remedies – injunctions – interlocutory injunctions – where interlocutory injunction will practically be dispositive of claim for final injunction – approach of court includes evaluation of strength of plaintiff’s prima facie case

CONTEMPT – sentencing principles – objective seriousness – awareness of consequences – actual consequences – reasons for contempt – apology – public expressions of contrition – characteristics and antecedents of the contemnor – personal deterrence – likelihood of reoffending – general deterrence – denunciation of contempt – personal circumstances of the contemnor – plea of guilty – utilitarian value of plea – exceptional circumstances test – sentencing – maximum penalty – available penalties – imprisonment not appropriate – s 10 application – community service orders – costs – orders made

SUCCESSION – Testamentary capacity – Where deceased executed two wills – Whether deceased had testamentary capacity when she executed the second will – Whether deceased was able to comprehend and appreciate the claims to which she ought to have given effect – Whether the deceased was suffering from an insane delusion – Relevance of whether the deceased was suffering from an insane delusion – Application of test in Banks v Goodfellow (1870) LR 5 QB 549.

CRIMINAL LAW – trial – murder – husband accused of fatally stabbing his wife – his case that the stab wound was self-inflicted – admissibility of relationship evidence – admissibility under s 66A of the Evidence Act of material written by deceased about the relationship

EQUITY – injunctive and declaratory relief – statutory prohibition – standing – regulatory authority – discretionary considerations – interaction between equitable relief and criminal process – offence of strict liability CHILD WELFARE – child care centre – statutory regime – provider and service approvals – cancellation of approvals – service agreement with third party to operate centre – breach of statutory regime – declaration

COSTS – indemnity costs – whether there was relevant delinquency by the defendant – orders sought made

CORPORATIONS – winding up – liquidators – interpretation of Corporations Act, s 440A and s 440D – where Deputy Commissioner of Taxation seeks appointment of provisional liquidator pending winding up hearing – where case for winding up is strongly arguable – where respondent appears to have large unpaid taxation liabilities – where some prospect that respondent companies may dissipate assets – held, provisional liquidators appointed.

PRACTICE AND PROCEDURE – discovery – where justifications for discovery are based on an erroneous conception of the case sought to be made out – discovery to be given in terms of the further amended proposed category – no question of principle

PRACTICE AND PROCEDURE - application for security for costs – where there are discrepancies and errors in the plaintiff’s financial statements – where plaintiff’s financial position was not brought about by the wrongful acts alleged against the defendant – plaintiff to provide security for costs – no question of principle

DEFAMATION – application by defendant to have proceedings summarily dismissed – where plaintiff a vexatious litigant – article published before that determination was made by the court – where headline wrongly stated that the plaintiff had been declared a vexatious litigant – vexatious proceedings order later made and upheld on appeal – whether defamation action by vexatious litigant based on imputation of vexatiousness vexatious

SENTENCE – murder – stabbing – intention to cause grievous bodily harm – juvenile offender – finding of special circumstances – variation to statutory ratio for non-parole period

JUDGMENTS – enforcement – assignment of judgment creditor’s rights – whether assignment perfected – whether requirements of r 39.1 complied with

CRIMINAL LAW – sentence – murder – plea of guilty – nature and seriousness of the offence – moral culpability – aggravating matters – mitigating matters – personal circumstances – general deterrence – specific deterrence – victim impact statements – discount for guilty plea – discount for assistance – sentence imposed

ESTOPPEL – equitable proprietary estoppel – arrangement whereby defendant agreed to sell property to plaintiffs if they were able to obtain finance – where plaintiffs gave up a secure public housing tenancy to lease the property – where plaintiffs carried out improvements to property – defendant refused to sell property after plaintiffs had not obtained finance over period of more than six months – whether defendant created assumption or expectation that plaintiffs had to obtain finance by a certain time – whether defendant adhered to assumption or expectation – no estoppel established

CRIMINAL LAW – high risk offenders – high risk violent offenders – application for Extended Supervision Order – prior serious violence offence was murder – lengthy criminal record – offences of violence – offence of attempted discharge of weapon with intent to avoid apprehension – defendant with neuro-cognitive disorder, antisocial personality disorder and substance use disorder – alcohol usually involved in violent offending by defendant – continuing drug use whilst on parole resulting in revocation of parole on two occasions – assessed by three experts as medium/high or high risk of further violent offending – appropriate length of ESO – conditions – whether electronic monitoring necessary – whether schedule of movements necessary – whether conditions should impose restrictions on entering licensed premises and associating with people consuming alcohol – ESO imposed for three years

PROBATE – informal will signed by the deceased - informal will is not compliant with Succession Act, s 6 formal requirements – informal will made ten months before the deceased’s death – informal will admitted to probate - challenge to informal will – whether the informal will was fabricated by the executrix named within it and one of the beneficiaries under it – whether the informal will was the deceased’s instrument – whether the informal will represented the deceased’s testamentary intentions. SUCCESSION – Claim for family provision - plaintiff alleges same-sex relationship for fourteen years with the deceased – deceased’s will gives the whole of his estate to his only two nieces – claimed eligibility as a partner in an alleged de facto relationship – claimed eligibility due to alleged dependency on the deceased in a shared household – claimed eligibility due to alleged close personal relationship with and living with the deceased – nature of plaintiff’s relationship with the deceased. DEBT – estate seeks recovery from plaintiff/cross-defendant of monies allegedly loaned to the plaintiff by the deceased before his death – whether the funds advanced were a loan or a gift - estate also seeks recovery of substantial funds allegedly fraudulently misappropriated from the deceased’s bank accounts on the day of his death but after his death and in the period of approximately one month after his death – whether or not the funds withdrawn after the deceased’s death were withdrawn from the deceased’s bank accounts with authority – whether or not the funds withdrawn after death were withdrawn fraudulently – whether plaintiff should repay or restore to the estate the funds withdrawn before the deceased’s death and after the deceased’s death and on what basis.

AGENCY – whether party entered into contract as agent – whether party acting as undisclosed principal. BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranties – whether owners corporation entitled to statutory warranties – whether loss and damage claimed in respect of defects resulted from breaches of statutory warranties. BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW)– whether defendants were “developers” within the meaning of s 3A – whether defendants were persons “on whose behalf” building work was done. CONTRACTS – building and construction contract – construction and interpretation – whether the defendants were party to the building contract. EVIDENCE – Evidence Act 1995 (NSW) s 69 – admissibility of evidence – business records – whether minutes of meeting are business records. EQUITY – remedies – rectification

PRACTICE AND PROCEDURE – Application for extension of time in which to bring an appeal against a decision of Magistrate in the Local Court – Proceedings commenced approximately four months following the expiration of the limitation period – Delay adequately explained – Extension of time granted STATUTORY INTERPRETATION – Legislative provision creating offences of producing, possessing and disseminating child abuse material – Where defendant allegedly took a photograph of a partially naked child – Defendant charged and prosecuted in the Local Court – Where Magistrate concluded that it was necessary for the prosecution to prove malice as an element of the offence – Where Magistrate concluded that there was no evidence of malice and dismissed all charges – Malice not an element of any of the offences – Error established PRACTICE AND PROCEDURE – Duty to give reasons – Ex tempore judgment delivered by Magistrate in the Local Court immediately upon hearing evidence and submissions – Necessity to make appropriate allowance for judgments delivered in those circumstances – Limited analysis of the evidence – No analysis of the statutory provisions supporting a conclusion that malice was an element of the offences charged – Error established PRACTICE AND PROCEDURE – Appeal from the Local Court – Error established – Whether appropriate to remit the matter to the Magistrate to be dealt with according to law – Whether same outcome would eventuate – Whether remitting the matter would be futile in those circumstances – Factual questions not to be determined on a limited statutory appeal – Proceedings remitted

EQUITY – equitable remedies – rectification – auction for sale of commercial property – where contract of sale as completed provided for purchase price to be inclusive of GST – whether clear and convincing proof of common intention that purchase price exclusive of GST APPEALS – rectification – test for appellate intervention EVIDENCE – witness – cross-examination – rule in Browne v Dunn – obligation of procedural fairness – where failure to cross-examine on evidence – whether primary judge erred in accepting evidence – effect of “Browne v Dunn” agreement JUDGMENTS AND ORDERS – interest – contractual provision requiring payment of interest if contract not completed on settlement date – no discretion as to rate or period of interest – Civil Procedure Act 2005 (NSW), s 100(3)(b)

APPEALS - nature of appellate review - primary judge found failure to make inquiries falling short of actual fraud or moral turpitude - circumstances in which appellate court might make finding of fraud REAL PROPERTY - Torrens title - joint tenancy - instrument of severance registered - instrument executed pursuant to power of attorney - errors in statutory declaration made by attorney - attorney not authorised to execute instrument - exceptions to indefeasibility - whether primary judge erred in failing to find fraud within meaning of Real Property Act 1900 (NSW) s 42 - whether in personam exception to indefeasibility established

CRIMINAL LAW – appeal against conviction following plea of guilty – importing commercial quantity of border controlled drug – fault element required under section 307.1 Criminal Code Act 1995 (Cth) – recklessness – where applicant admitted his awareness of a substantial risk that substance in suitcase was a border controlled drug – where there was no suggestion that applicant had not been properly advised as to entering plea of guilty or that plea of guilty was unsound – HELD – appeal dismissed –– no miscarriage of justice established to permit withdrawal of plea of guilty and order for retrial CRIMINAL LAW – sentencing – sentencing judge found no genuine evidence of remorse in absence of applicant giving evidence on oath subject to cross-examination – applicant read an affidavit in which he expressed remorse – Crown did not cross-examine him – held by majority that sentencing judge erred in not finding remorse – difference between sworn affidavits and out of court statements recorded in a third party report referred to – applicant resentenced – sentence imposed by District Court quashed

CRIMINAL LAW – appeal against conviction – two complainants – four counts of sexual intercourse with a person under the age of 16 years – four counts of indecent assault of a person under the age of 16 years – three counts of acts of indecency with a person under the age of 16 years – admissibility of rebuttal character evidence previously ruled inadmissible tendency evidence at a pre-trial hearing – question of “fundamental principle” – discontinuance of prosecution by DPP – whether miscarriage of justice – leave granted – appeal dismissed CRIMINAL PROCEDURE – appeal against conviction – whether inadequate directions to jury relating to expert witness – whether miscarriage of justice – leave refused – appeal dismissed CRIMINAL LAW – appeal against conviction – tendency evidence – whether s 97 requires proof of “sufficient evidence of distinctive features in the manner in which the offences are committed” – appeal dismissed

PROCEDURE – Judgments and orders – Satisfaction and set-off of judgments – where applicant seeks set-off of Federal Court costs order against Supreme Court of New South Wales cost order – where superior court has inherent jurisdiction to set-off orders for payment of money – where applicant is a net creditor – held, Supreme Court costs order permanently stayed.

EMPLOYMENT AND INDUSTRIAL LAW – registered organisation – application for determination of invalidities in the management or administration of that organisation – whether orders should be made for the rectification of invalidities - orders curing invalidities – consequential orders and declarations – cancelation of registration

PRACTICE AND PROCEDURE – SECURITY FOR COSTS – jurisdictional basis not established as evidence to the effect that the plaintiff could pay an adverse costs order – motions dismissed

PROCEDURE – adjournment – personal injury proceedings – hearing fixed for June 2017 – plaintiff incarcerated since December 2015 – criminal trial listed for August 2017 – recent negotiations regarding a plea – belief that plaintiff will be released from custody by December 2017 – need for updated medicals in civil proceedings – cost of s 77 order for 5 day trial if not adjourned – hearing vacated

HIGH RISK OFFENDER - final hearing - Defendant a “high risk violent offender” under s.5E Crimes (High Risk Offenders Act 2006 - index offence of attempted murder of fellow inmate in prison in 2011 - prior history of crimes of escalating violence - Defendant suffering from significant psychiatric illness - treatment being provided to Defendant in mental health unit of Long Bay Hospital whilst detained under high risk violent offender interim detention order - unanimous medical opinion that Defendant ought be treated in Forensic Hospital - continuing detention order (“CDO”) for eight months made - further treatment of Defendant to take place in Forensic Hospital after order made under Mental Health Act 2007 - extended supervision order (“ESO”) for six months to operate on expiration of CDO - suspension of ESO whilst Defendant in lawful custody by order under Mental Health Act 2007

CONTRACTS – contract for sale of land containing option to purchase Property – option never exercised by defendants – whether valid termination by plaintiffs possible where second defendant remained in possession of Property – whether possession barrier to plaintiffs being ready, willing and able to complete – no barrier – termination effective CONTRACTS – whether implied term that purchase subject to purchaser obtaining finance – implied term inconsistent with express terms of contract – implied term not so obvious that it goes without saying – no implied term PRACTICE AND PROCEDURE – whether second defendant represented by particular solicitor – second defendant denied retainer of solicitor for the conveyance ESTOPPEL – whether plaintiffs estopped from issuing Notices to Complete to first defendant – first defendant claimed plaintiffs made representation that he would be granted extensions of time –– no such representation – specific contractual provisions contrary to asserted representation – unilateral assumption by first defendant EQUITY – whether “common intention” or joint endeavour constructive trust arose from renovations made by second defendant to Property – renovations completed with intention that second defendant would purchase Property – Property never purchased – no common intention or joint endeavour – not unconscionable for plaintiffs to retain benefit of renovations – no evidence to determine value of renovations – no constructive trust

CRIMINAL LAW – bail – detention application – supply large commercial quantity of methylamphetamine – possess unauthorised pistol – possess unregistered firearm – possess ammunition without authority – alleged offences committed while accused on bail – three offences were show cause offences by operation of Bail Act 2013 (NSW), s 16B – whether accused had shown cause why detention not justified – strength of the Crown case – relevance of the provision of substantial surety – significance of character acknowledgments

CRIMINAL LAW – appeal – application for leave to appeal against sentence – where sentencing proceedings miscarried due to a procedural irregularity – where appropriate that the applicant be sentenced in that Court according to law – matter remitted to the District Court for sentence

CRIMINAL LAW – sentence appeal – two counts of supply a commercial quantity of prohibited drugs, one count of supply an indictable quantity – two counts of possess proceeds of crime – aggregate sentence of imprisonment for 16 years and 6 months with a non-parole period of 11 years and 6 months – whether sentence manifestly excessive – applicant relying upon seven “comparable” cases – incorrect approach – cases relied upon not comparable – appeal dismissed.

CRIMINAL PROCEDURE – application for separate trials – application for judge alone trial – if judge alone, no need for separate trials – not in interests of witness or justice for separate trials – intertwining of evidence – evidence admissible only against some accused but its content of extremely high probative value – unlikely directions overcome unfair prejudice – reasonable apprehension of unfairness to accused – principles for application – in interests of justice for judge alone trial – orders made.

SUCCESSION – Statutory wills – Order made authorising a will be made on behalf of a thirteen year-old child – Where child was severely disabled and lacked testamentary capacity – Where application made the day before the child was to undergo life threatening surgery – Where application sought to exclude father of the child from the child’s will – Where mother claimed that father had failed to fulfil responsibilities as a parent – Where orders made and judgment delivered ex tempore – Further reasons for judgment.

PRACTICE AND PROCEDURE – costs – security for costs – where security is sought from cross-claimant – whether cross-defendant has discharged burden of establishing that there is reason to believe that cross-claimant will be unable to pay adverse costs order – where cross-claimant essentially in position of defendant – application unsuccessful

PRACTICE AND PROCEDURE – transfer of proceedings – whether proceedings should be transferred to NSW Civil and Administrative Tribunal – dispute concerning rights and obligations under strata titles legislation – jurisdiction of Tribunal to determine dispute – more appropriate forum – where perceived advantage in pursuing claims in the Court no longer exists – proceedings transferred

INJUNCTIONS – ex parte applications – freezing orders – freezing order sought by defendant to personal injury case – cross-claim by defendant against third party seeking indemnity or contribution – freezing order sought against third party – no evidence of risk of dissipation of assets or frustration of any judgment – application dismissed

PRACTICE AND PROCEDURE – discovery – further and particular discovery is – whether discovery given was inadequate – whether documents sought are relevant to pleaded issues – whether documents sought are in the power of a party – whether parties had taken reasonable steps to discover documents

DEFAMATION – assessment of damage – highly respected orthopaedic surgeon – continual vilification by former patient and family – need for injunctive relief – aggravated damages

GUARDIANSHIP -- Protected person -- Financial management -- Principles governing a change of manager – Application does not require determination of complaints about manager – Irretrievable breakdown in relationship between manager and protected person’s family sufficient for change of manager - Paramount consideration remains welfare, and interests, of protected person MENTAL HEALTH -- Protected person -- Appointment of manager of estate -- Change of manager -- Principles governing change of manager -- Paramount consideration remains welfare, and interests, of protected person – Prudential management requires flexibility, consultation and respect for autonomy. PRACTICE - NSW Trustee and Guardian Act - Protected person -- Appointment of manager of estate - Change of manager - Paramount consideration remains welfare, and interests, of protected person

ADMINISTRATIVE LAW – judicial review – where application to refer a medical assessment by a single medical assessor to a review panel is refused – where whole person impairment is less than ten percent – whether injuries were sustained in a motor vehicle accident ADMINISTRATIVE LAW – judicial review - grounds of review – failure to consider a relevant consideration – consideration of an irrelevant consideration – failure to provide proper reasons – where both jurisdictional error and error of law are alleged – application dismissed with costs

REAL PROPERTY – mortgages – unregistered mortgage – mortgage entered into pursuant to a deed – obligation of the mortgagor to produce the certificate of title to enable registration – breach of that obligation – default under the mortgage by that breach – rights of the mortgagee – whether judgment for possession could be given – contractual agreement for sale of property in the event of breach – whether powers under s 60 Real Property Act incorporated into the mortgage - possession as an incident of the power of sale – declarations made of plaintiff’s entitlement to possession and sale – judgment for possession

PROCEDURE – where liquidator seeking to recover alleged unfair preference from creditor of company in liquidation – whether appropriate to allow liquidator to reopen his case on the issue of insolvency – where at trial counsel for the liquidator had sought to rely on the presumption of insolvency under Corporations Act, s 588E(4) when that presumption was not available because of s 588E(7) – where liquidator’s solicitor was not aware that all of the evidence relating to insolvency of company in liquidation was not before the Court at trial – where defendant will suffer no prejudice, having not appeared at any stage of the proceedings. CORPORATIONS – external administration – application to recover alleged unfair preference under Corporations Act, s 588FF – whether company insolvent – whether temporary lack of liquidity or endemic shortage of working capital – where substantial deficiency between debts then payable and payable in the immediate future compared to the company’s cash and other liquid resources – where several cheques drawn on company’s bank accounts dishonoured – where company’s bank accounts were inflated by passing cheques between them – where substantial debts from relevant period remained unpaid at date of liquidation.

APPEAL – appeals filed or served out of time and non-compliance with procedural directions – extensions of time granted – dismissal of appeal not warranted APPEAL – security for costs – Uniform Civil Procedure Rules 2005 (NSW) r 51.50 – whether “special circumstances” – ordinarily impecuniosity of a natural person insufficient to constitute special circumstances – notice of motion dismissed

PROCEDURE – courts – transfer of proceedings between courts – proceedings commenced in Supreme Court seeking relief not available in the Land and Environment Court – related proceedings already commenced in the Land and Environment Court – both proceedings dealing with different aspects of the same subject matter – Supreme Court proceedings transferred

PRACTICE AND PROCEDURE – request for particulars – whether plaintiff should provide further particulars PRACTICE AND PROCEDURE – objection as to production of documents under various notices to produce

PRACTICE AND PROCEDURE – pleadings – amendment – application to amend commercial list statement pursuant to s 64 of the Civil Procedure Act 2005 (NSW) – whether leave to replead should be granted

COSTS – discretion to award costs – specified gross sum costs in lieu of assessed costs – where plaintiff impecunious – where little prospects of meaningful engagement in formal costs assessment – consideration of appropriate reduction to be applied to specified gross sum costs

PRACTICE AND PROCEDURE – stay of judgment pending application for special leave to appeal to the High Court – special leave application strongly arguable – real risk that applicant would not be able to effect restitution if judgment reversed in the High Court – stay granted