Cases and authorities

CRIMINAL LAW – sentence appeal – aggravated enter dwelling with intent – armed robbery – whether error in taking into account prior criminal history in assessing objective seriousness of offences – whether error in application of Henry guideline judgment in assessing indicative sentence for robbery – re-sentence – whether lesser sentence should be imposed

CORPORATIONS — Scheme of arrangement — Application for approval – where schemes of arrangement involve the Plaintiffs’ shareholders transferring their shares to a purchaser for cash consideration – where schemes approved by significant majorities of members – whether Court should approve schemes of arrangement CORPORATIONS — Scheme of arrangement — Managed investment scheme – Application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – whether responsible entity would be justified in implementing trust scheme approved by a significant majority of unitholders

LANDLORD AND TENANT - Termination of a tenancy – NSW Civil and Administrative Tribunal decision terminating residential tenancy agreement – Tribunal found tenants frequently failed to pay rent owing on the residential premises – rental arrears remain outstanding – interlocutory injunction sought to restrain landlord from taking possession of or interfering with the tenants’ quiet enjoyment of the premises – alleged denial of procedural fairness before the Tribunal - balance of convenience – whether prejudice to defendants in grant of injunction pending a final hearing - what financial terms imposed upon the plaintiffs for grant of any injunction.

DEFAMATION – pleadings – objections to imputations

CIVIL PROCEDURE – compromise of proceedings involving infants – application for Court approval – where pleadings disclose substantial issue as to liability

CIVIL PROCEDURE – application for adjournment of penalty hearing after applicant found guilty of contempt of Court – where applicant is self-represented – where applicant has extant application for grant of legal aid – whether risk to due process warrants vacation of hearing date

REAL PROPERTY – possession of land – plaintiff as executor seeks possession of land – claim by occupier of a constructive trust for ownership of the land based on proprietary estoppel – prior proceedings by occupier claiming, inter alia, a constructive trust – prior proceedings dismissed by consent – whether issue estoppel – whether Anshun estoppel to the extent the present claim differs from earlier claim – whether abuse of process – defence and cross-claim struck out – summary judgment for the plaintiff ESTOPPEL – by judgment – issue estoppel – Anshun estoppel – proprietary estoppel – relationship of issue estoppel to abuse of process – whether issue estoppel can arise from consent judgment or dismissal

CIVIL – claim for possession – defendants’ home damaged by mining activity – plaintiff provides accommodation to defendants with legitimate claim under statutory scheme for compensation – decision to rebuild – whether plaintiff motivated by financial gain – defendants dislocated and disappointed – whether defendants acted to their detriment – whether defendants assumed legal or equitable right to remain in possession of property – whether act of plaintiff caused such an assumption – whether plaintiff acted in good faith – corruption – whether plaintiff acted fraudulently or corruptly – relevance of ICAC findings – alleged defects in property – lease – bare licence – equitable estoppel – “licence coupled with equity” – where no rent paid – where no certain term of occupancy – where plaintiff paid for most outgoings – “idiosyncratic notions of justice and fairness” – no equitable or other legal interest established

CRIMINAL LAW – sentence appeal – offence in the nature of a “ram raid” – sole ground of appeal that sentence manifestly excessive – where serious offence on a Form 1 – cases said to be comparable – sentence not unreasonable or plainly unjust – leave granted but appeal dismissed

CRIMINAL LAW – conviction appeal – aggravated dangerous driving causing death – admissibility of representations – Criminal Appeal Rules r 4 – no miscarriage of justice shown

APPEAL – criminal law – applicant sexually assaulted his three daughters – earlier convictions in relation to daughters of previous relationship – applicant did not give evidence on sentence – sentencing judge doubted history given to psychiatrists – applicant put on notice as to doubt – reliance on infelicitous comment in ex tempore judgment – reliance on manner in which sentencing judge declined to make firm findings on applicant’s history – no ground has merit

CRIMINAL LAW – appeal against conviction – whether verdict unreasonable or unsupportable having regard to the evidence – whether proof of presence is an essential part of liability of an accused who is prosecuted under principle of joint criminal enterprise – whether jury was misdirected at trial – whether the trial judge’s directions were apt to lead the jury into error in indicating that participation in joint criminal enterprise could be established by the act of joining into the agreement – whether trial judge was obliged to direct jury that it should acquit offender of each count if not satisfied he was present when crimes committed

CRIMINAL LAW – appeal against conviction – three complainants – six counts of indecent assault – five counts of sexual intercourse without consent –– tendency evidence – whether trial judge erred in admitting tendency evidence – whether probative value of tendency evidence outweighed by prejudicial effect – whether an order should have been made for separate trials – leave to appeal granted – appeal dismissed CRIMINAL LAW – appeal against conviction – whether miscarriage of justice as a result of primary judge withdrawing a direction to the jury regarding consent – leave to appeal refused – appeal dismissed CRIMINAL LAW – appeal against conviction – whether adequate directions given by primary judge in responding to a note from the jury regarding consent – leave to appeal refused – appeal dismissed CRIMINAL LAW – appeal against sentence – relevance of breach of trust as aggravating factor – relevance of abusing professional position so as to warrant less weight being given for prior good character – relevance of post-offence conduct in assessing seriousness of offence – leave to appeal refused – appeal dismissed

CRIME – high risk sex offender – application for extension of interim supervision order made by another member of the Court – proper approach – no fresh evidence to suggest lack of compliance with previous order – requirement of procedural fairness – appropriateness of acceding to evaluative judgment formed by other member of the Court after contested hearing

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – where scheme of arrangement proposed – whether order restraining further proceedings should be made under s 411(16) of the Corporations Act – whether “further proceedings” includes proceedings that are not yet commenced – whether nominee should be appointed as a “foreign representative” for the purposes of the Cross-Border Insolvency Act 2008 (Cth)

CRIMINAL – evidence – whether audio recording of deceased speaking shortly before death can be played in the presence of the jury – transcript not the subject of objection – whether probative value is outweighed by the danger of unfair prejudice – evidence admitted subject to direction to jury

PRACTICE AND PROCEDURE – where defendant under a disability – where defendant’s partner seeks to be appointed as her tutor – where partner likely to be a witness – where partner’s evidence likely to be contentious

ADMINISTRATIVE LAW – application under s155 Crimes (Administration of Sentences) Act) –whether Parole Authority for NSW relied on false, misleading or irrelevant information – scope of review of Parole Authority decisions – insufficient evidence advanced to support application - application dismissed.

PRACTICE AND PROCEDURE – Costs – Appeal –Where plaintiffs appeal against the decision of a Magistrate in the Local Court was successful – Where proceedings were remitted to the Magistrate to be further dealt with – Whether the defendant was entitled to an indemnity certificate – Whether the defendant was “the Crown” for that purpose – Whether costs of the Local Court proceedings should be at the discretion of the Magistrate

CORPORATIONS – Management and administration – Duties and liabilities of officers of corporation – where Defendant was director and officer of Plaintiff companies – whether Defendant procured, made or permitted payments by companies to Defendant and entities controlled by him – whether Defendant permitted companies to incur fines – whether Defendant failed to apply certain funds of the companies for their intended purpose – whether Defendant breached directors’ duties. EVIDENCE – Burden of proof, presumptions, and weight and sufficiency of evidence – where relevant facts are peculiarly within the knowledge of the Defendant or where the Defendant has greater means to produce evidence DAMAGES – General principles – Difficulty of assessing damages – where evidence does not allow the Court to form a rational view as to the amount of loss suffered by the Plaintiffs – where evidence does not address potential duplication of claims for damages – whether Court should quantify the Plaintiffs’ loss DAMAGES – where Plaintiffs settled claims against other parties – where Defendant jointly and severally liable to some of those claims – whether Defendant entitled to set off settlement sum against his own liability to pay damages

FAMILY LAW & CHILD WELFARE – Adoption – Separate question to be determined - Whether Court has jurisdiction to make order for adoption FAMILY LAW & CHILD WELFARE – Adoption –Prospective adoptive parents sought adoption of child relative from Thailand – Thailand and Australia are parties to Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption – Prospective adoptive parents made application pursuant to Chapter 4 Adoption Act 2000 (NSW) – Did not make application under Regulation 15 Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) –– Where Adoption Act and Commonwealth Regulations provide different regimes for intercountry adoptions between parties to Convention – Where Commonwealth Regulations inapplicable if Adoption Act has same or comparable effect to Commonwealth Regulations – Unnecessary to decide whether Adoption Act has same or comparable effect to Commonwealth Regulations – Unnecessary to decide whether child is a non-citizen child.

EQUITY – trusts and trustees – where plaintiff provided purchase moneys for property purchased in name of father which was transferred to defendant upon father’s death and according to father’s will – whether presumption of resulting trust rebutted REAL PROPERTY – Torrens title – whether defendant’s title is indefeasible – whether dishonest repudiation of a prior interest amounts to fraud for the purposes of s 42 of Real Property Act – whether plaintiff’s reliance on representations made by defendant that defendant would recognise plaintiff as the true owner gives rise to equitable estoppel – whether plaintiff’s in personam rights defeat defendant’s title EQUITY – general principles – equitable doctrines – whether illegal purpose precludes relief – where plaintiff purchased property in father’s name in order to obtain grants and stamp duty exemption – whether scope and purpose of the First Home Owner Grant Act 2000 (NSW) requires that plaintiff be denied interest in the property CONTRACT – whether money transfers were a gift or a loan

ARBITRATION – the submission and reference – dispute or difference within the meaning of an arbitration clause – where shareholders agreement in force between two shareholders – where one shareholder has issued an expulsion notice with a view to compulsorily acquiring shares from another shareholder – where shareholder whose shares are to be acquired claims that procedure is oppressive within s 232 of the Corporations Act – where expulsion notice is alleged to have become stale – whether the dispute falls within the ambit of the arbitration agreement as a dispute or claim “arising out of or relating to this Agreement or the breach thereof” – whether oppression claim made by another alleged shareholder not party to the shareholders agreement should be stayed pending the outcome of arbitration.

COSTS – whether indemnity costs should be awarded – offers of compromise – s 100 CPA interest start date

JUDICIAL REVIEW – planning consent – whether proposed development prohibited under local environmental plan – whether characterisation of proposal a jurisdictional fact to be determined by the court PLANNING LAW – development consent granted for a “motorcycle facility” – whether the development consent was for a prohibited use under Goulburn Mulwaree Local Environmental Plan 2009 – whether consent was for a “recreation facility (major)” – extent to which reference can be made to documents referred to in conditions of consent in construing the consent. STATUTORY INTERPRETATION – definition in statutory instrument – how to construe “means” and “includes” – reliance on factual context

PROCEDURE – claim for damages for sexual assault – alleged offender a defendant to the proceedings – where alleged offender also facing criminal charges – application by defendants to have civil proceedings stayed pending conclusion of criminal trial – interests of justice best served by staying civil proceedings pending conclusion of the criminal trial

ADMINISTRATIVE LAW – judicial review – motor accidents compensation scheme – assessment of WPI referred to Review Panel – where several new medical reports indicated that there was a non-organic element to the condition of the first defendant – failure by Review Panel to refer to reports – whether denial of procedural fairness – whether reasons inadequate

REAL PROPERTY – fraud – exception to indefeasibility – Sections 42 and 43 Real Property Act 1900 (NSW)

APPEAL – application for leave to appeal – judgment as to costs alone – leave required under Supreme Court Act 1970 (NSW) s 101(2)(c) – challenge to gross sum costs order – whether issue of principle or general public importance – whether insufficient evidence for informed costs assessment by primary judge – whether factual errors warranting intervention APPEAL – application for leave to appeal – application filed out of time – whether appropriate to grant extension of time – whether appropriate to refuse extension where leave to appeal would be refused COSTS – gross sum costs order – whether proper exercise of power – whether insufficient evidence to determine reasonable amount – whether amount paid could form basis of calculation in absence of information as to work done – Civil Procedure Act 2005 (NSW) s 98(4)(c)

CRIMINAL PROCECURE – leave to appeal against conviction – grounds of appeal not argued at trial – leave required under Criminal Appeal Rules (NSW), r 4 – whether directions of trial judge resulted in miscarriage of justice CRIME – appeal – leave to appeal against conviction – applicant convicted of manslaughter under joint criminal enterprise principles – whether trial judge misdirected jury as to what constitutes “participation” in joint criminal enterprise – whether presence during commission of offence sufficient – offender’s state of mind as to common purpose CRIME – appeal – leave to appeal against conviction – whether jury rejected direct evidence of witness – whether guilty verdict based solely on circumstantial evidence – whether verdict unreasonable CRIME – appeal – leave to appeal against sentence – whether trial judge erred in making finding of fact as to applicant’s participation in killing of deceased

CONTRACTS – offer and acceptance – inaction by offeree – consideration – summary judgment EQUITABLE ESTOPPEL – promissory estoppel – promise by silence – detrimental reliance – summary judgment COMMONWEALTH CONSTITUTION – use of waters of rivers for conservation or irrigation - no action by Commonwealth government – summary judgment

PRACTICE AND PROCEDURE - dispute regarding joint venture agreement - slow progress in proceedings - procedural issues for resolution - proceedings not ready for hearing or mediation - stark divergence in evidence - possibility of fraud - whether additional party to be joined as defendant - expert evidence may be required - joint venture at a stalemate - equity in properties being eroded - Court requires practitioners familiar with details of the case to appear before the Court on each occasion so that overriding purpose in Civil Procedure Act s 56 can be achieved - possibility of Court appointing receiver flagged should no progress be made by parties

PROCEDURE – application to have two proceedings in the District Court transferred to the Supreme Court to be heard together with existing proceedings in the Supreme Court – where all three proceedings raise a common issue as to liability – several commercial retailers suing owner of shopping mall for damages arising from the same incident

PROCEDURE – application for default judgment – action to enforce guarantee – claim for $334,000 "plus interest" – where interest claimed at default rate of 8.75 per cent per month, compounded – total claim exceeding $9 million – appropriateness of entering default judgment where Court entertains concern as to whether the default interest rate amounts to a penalty

PROCEDURE – application to abridge time for service of summons filed in court – no question of principle

CORPORATIONS – external administration – application to reinstate registration of a company – company in members voluntary winding up at time of its deregistration – accidental omission to transfer property prior to winding up – deregistered company remaining as legal owner of property that was intended to have been transferred to another company prior to the company’s winding up – only purpose for reinstatement is to transfer property to its intended owner – ultimate owner of the deregistered company consents to the reinstatement of the company and transfer of the property to its intended owner – former liquidator consents to his reappointment.

CORPORATIONS – external administration – replacement of liquidator appointed in members’ voluntary winding up – application by substantial creditor to remove and replace liquidator – where substantial creditor prepared to fund new liquidators but not existing liquidators to conduct investigations into affairs of the company and its sole member – resolution at creditors’ meeting failed to result in the removal of the original liquidator – resolution supported by significant majority of creditors by value defeated by majority of creditors by number – creditors voting against resolution associated with sole member – whether cause shown to appoint proposed new liquidators.

ADMINISTRATIVE LAW – appeal against NSW Civil and Administrative Tribunal decision re working with children check clearance – whether the Tribunal was bound to accept expert opinion that the applicant posed a low risk of sexual abuse – whether there was a denial of procedural fairness – whether there was failure to give reasons for rejection of expert opinion – whether Tribunal was entitled to reach different conclusions to that reached by the Court of Criminal Appeal – applicant had not pursued counselling and had not disclosed acquittal to employers – whether Tribunal’s decision was irrational and illogical – no legal errors established – appeal dismissed

PROCEDURE – amendment – claim for malicious prosecution and wrongful imprisonment – self-represented plaintiff – plaintiff seeks to claim abuse of process – plaintiff seeks amendments to plead evidence EVIDENCE – admissions – notice to admit facts – pleadings not closed – whether notice was premature – whether facts were appropriate to be included in notice

STATUTORY INTERPRETATION – Workers Compensation Legislation – Where first defendant alleged that he had sustained an injury at work – Where liability was denied by the insurer – Where Deputy Registrar of the Workers Compensation Commission referred the matter to an Approved Medical Specialist in circumstances where liability remained in issue – Where insurer asserted that the matter should be referred to the Commission for determination of liability – Necessity to construe relevant provisions of Workers Compensation legislation – Application of principles of statutory interpretation – Necessity to consider the text of the provision pursuant to which the determination was made – Meaning of text plain on its face – Where alternative construction would lead to consequences which were clearly unintended by the legislature - Error established

CRIME – sentencing – application for leave to appeal against severity of sentence – alleged disparity compared to sentence for co-offender – comparison of sentences without reference to disparate discounts unsound – bases for disparities explained

CORPORATIONS — Winding up — Statutory demand — Application to set aside – where building work giving rise to debt claimed in statutory demand arguably defective – whether debt genuinely disputed – whether offsetting claim established – whether some other reason exists to set aside demand

REAL PROPERTY – possession of land – plaintiff is registered proprietor – property devised to plaintiff under Will – defendants in occupation claiming entitlement under later will – probate granted in plaintiff’s favour – no right of defendants to occupy property

COSTS – proceedings spent – proceedings in effect resolved by consent – interlocutory orders made on return date of summons – whether plaintiffs should have their costs – whether plaintiffs acted reasonably – whether plaintiffs almost certain to have succeeded

HIGH RISK SEX OFFENDER – Interim Supervision Order – no question of principle

CORPORATIONS – Managed investments – where Plaintiff identifies potential unregistered management investment scheme and unlicensed financial services business – where Plaintiff applies ex parte for asset preservation and travel restraint orders and interim orders restraining the conduct of a financial services business – whether serious question to be tried – whether interim relief should be granted.

PROCEDURE - notice of motion - order sought under s 82(1) of the Civil Procedure Act 2005 (NSW) against defendant for interim payment of damages sought to be recovered – consent orders made – costs

CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk violent offender – application for a continuing detention order – application for an extended supervision order – whether the defendant poses an unacceptable risk of committing a serious violence offence – whether an extended supervision order would provide adequate supervision – the implication of evidence given by the defendant – application for a continuing detention order dismissed – application for an extended supervision order granted