Cases and authorities

CRIMINAL LAW – application for inquiry into conviction under Crimes (Appeal and Review) Act 2001 (NSW), s 78 – where applicant had already appealed unsuccessfully to the Court of Criminal Appeal – where previous application for inquiry refused – whether the Court can refuse to consider the application under Crimes (Appeal and Review) Act, s 79(3) – whether the matter had been fully dealt with in proceedings or previous review – whether special circumstances exist.

COSTS – whether award should be made for indemnity costs – whether defendant defended proceedings and prosecuted cross-claim in circumstances where he should have appreciated there were no prospects of success

CORPORATIONS – external administration – application to extend convening period for adjourned second meeting of creditors to a date later than the latest day allowed by s 439B(2), Corporations Act 2001 and Corporations Regulation 5.6.18(1) – latest day allowed by legislation would not allow enough time to complete business sale agreement for a number of the plaintiff companies – where failure to complete sale agreement would likely lead those plaintiff companies to proceed into liquidation – where liquidation of plaintiff companies would have significant detrimental effects on the companies, their creditors and employees – whether orders should be made under s 447A varying how Pt 5.3A and reg 5.6.18(1) is to operate in relation to the plaintiff companies.

CORPORATIONS – external administration – application for appointment of an additional liquidator for a special purpose – where contributory of the company seeks the appointment of additional liquidator to investigate potentially voidable transactions between company in liquidation and its sole shareholder and director and another company under his control – where current liquidator is unfunded and not intending to take any further action in investigating the transactions – whether appropriate to make order appointing additional liquidator. CORPORATIONS – external administration – application by liquidator for approval of entry into contracts of more than three months duration under Corporations Act s 477(2B) – whether appropriate to allow special purpose liquidator to enter into a funding deed with a creditor of the company – whether appropriate to allow special purpose liquidator to retain solicitors also retained by the contributory and funder.

PRODEDURE - Costs - Departing from the general rule – application for an indemnity costs order – order granted

CONTRACTS – general contractual principles – construction and interpretation of shareholders agreement – no dispute that clause did not accurately reflect parties’ intentions –appropriate to make order for rectification – whether clause was void for uncertainty – clause not void for uncertainty as it was capable of being given meaning by the court – not necessary to imply a term – defendant’s construction of clause would not produce a commercial result and was not consistent with text and context

PROTECTIVE JURISDICTION – Guardianship Division of NSW Civil and Administrative Tribunal – whether guardianship order should be revoked – whether financial management order should be revoked – whether protected person was incapable of managing their affairs – whether tribunal failed to afford procedural fairness – whether tribunal failed to apply ss 4, 15(3), 25G of the Guardianship Act 1987 (NSW) APPEALS – appeal to Court from Guardianship Division of NSW Civil and Administrative Tribunal – general principles – right of appeal – whether question of law was raised – whether leave to appeal ought to be granted – construction and operation of Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14

AUSTRALIAN CONSUMER LAW – misleading or deceptive conduct – whether conduct has a tendency to lead a person into error – whether failure to disclose amounts to misleading or deceptive conduct – whether loss suffered as a result of defendant’s conduct CONTRACTS – particular parties – agency contract – breach – whether plaintiff breached contractual term by refusing to exchange contracts with purchaser introduced by defendant CONTRACTS – consideration of factors relevant to real estate contracts – Property Stock and Business Agents Act 2002 (NSW) s 55 – whether defendant acting as an “agent” within the meaning of the Act – whether defendant entitled to commission under the Act EQUITY – general principles – fiduciary duties – agent and principal relationship – duty not to pursue personal interests in conflict with those to whom duty is owed – whether agent owed fiduciary duty to principal ESTOPPEL – whether estoppel can operate against a statutory right or prohibition NEGLIGENCE – agency relationship – whether agent breached duty to exercise due care and skill STATUTORY INTERPRETATION – general rules of construction of instruments – Interpretation Act 1987 (NSW) s 33 – meaning of “agent”

CONTRACT – general contractual principles – terms – implied terms – construction of contracts – whether implication of terms is an aspect of construction – principles of construction of contracts - contract for supply of plumbing articles – whether implied term of exclusive dealing – construction of express terms – whether implied term satisfies requirements of BP Refinery (Westernport) Pty Ltd v Hasting Shire Council – evidence of post-contractual matters – whether admissible CONTRACT – breach and repudiation – whether contract terminated in accordance with its terms – whether repudiated CONTRACT – damages – when assessed

CRIME – habitual consorting contrary to s 93X of the Crimes Act 1900 (NSW) – where prosecution relied on conversations in the street between the appellant and convicted offenders known to him – consideration of proper construction of the term “consorts” in s 93X – whether an analysis that the encounters were either chance encounters or consorting revealed error – whether engagement in conversation following a chance encounter in the street could evince an intentional seeking of companionship of the kind proscribed by the section – whether evidence capable of establishing the elements of the offence

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

CIVIL PROCEDURE – solicitor misconduct – where there has been a finding of non-compliance with a notice under s 660 Legal Profession Act 2004 (NSW) – appeal from a “profession decision” under Civil and Administrative Tribunal Act 2013 (NSW) – whether the proceedings should be removed to the Court of Appeal – consideration of ss 48 and 51 Supreme Court Act 1970 (NSW) – consideration of the meaning of “specified tribunal” – whether the specified tribunal needs to comprise of one or more judges – whether the Court should exercise its discretion to remove the proceedings to the Court of Appeal – held that proceedings to be removed

PROCEDURE – Issue estoppel – Abuse of process – Consent orders – Where plaintiff claimed property was part of deceased’s notional estate – Where defendant agreed to consent orders designating property as part of the deceased’s notional estate in a related application for family provision orders – Whether the defendant’s consenting to orders constituted an admission that the property was part of the deceased’s notional estate – Where related proceedings and current proceedings were heard together with evidence in one being evidence in the other – Whether consent orders created an issue estoppel – Whether it is an abuse of process for the defendant to deny that the property is part of the deceased’s notional estate. SUCCESSION – Family provision – Whether adequate provision has been made for the proper maintenance, education and advancement in life of the plaintiff – Where plaintiff was the estranged son of deceased – Consideration of ‘community standards’ – Where deceased transferred interests in property to his other son and a daughter between one and three years before his death – Whether property should be designated as part of the deceased’s notional estate – Whether deceased transferred property wholly or partly to deny or limit provision being made out of his estate – Significance of burden of evidence shifting to defendant to call evidence to dispel the appearance that deceased was partly actuated by an intention justifying designation of property as notional estate.

PRACTICE AND PROCEDURE – application for discovery – categories of documents in respect of which order for discovery sought not relevant to facts in issue or relevant only to credibility – application dismissed

CRIMINAL LAW – appeal – appeal against sentence – three counts of aggravated sexual intercourse without consent – whether procedural fairness denied – requirement of notice for a factor in aggravation –dealing with the applicant’s knowledge of the complainant being underage as an aggravating factor – failure to give notice to the applicant – whether error in finding applicant held knowledge of the offence – circumstantial evidence supported inference to support finding of knowledge to criminal standard – resentencing discretion – lesser sentence not warranted – application of s 6(3) of the Criminal Appeal Act 1912 – leave to appeal is granted – the appeal is dismissed

CRIMINAL LAW - conviction appeal - supply of commercial quantity of prohibited drug - applicant charged with supply of commercial quantity of methylamphetamine and with supply of cocaine - both drugs found in vehicle owned and driven by applicant - jury convicted on first count and acquitted on second count - whether verdicts inconsistent - whether conviction on first count unreasonable - whether prosecution had shown to criminal standard that applicant knew or believed that the transaction involved a commercial quantity of a prohibited drug - appeal allowed and different verdict substituted

CRIMINAL LAW – application for leave to appeal against sentence – applicant had a number of physical and mental disabilities and vulnerabilities – whether sentencing judge failed to have regard to extent to which those matters impacted upon moral culpability for offending conduct – principles determining when mental condition will impact on sentencing process CRIMINAL LAW – application for leave to appeal against sentence – applicant had a number of physical and mental disabilities and vulnerabilities – whether appropriate for sentencing judge to give weight to general deterrence – role of general deterrence – applicant convicted of offences relating to use and possession of firearm – general deterrence in context of sentencing for offences involving firearms CRIMINAL LAW – application for leave to appeal against sentence – applicant convicted of offences relating to use and possession of a firearm and assault – sentence in respect of each offence accumulated by three months – whether this gave rise to totality error – whether there must be commonality between offences to warrant identical internal accumulation – principles concerning aggregate sentences

PROCEDURE – Application for release from implied undertaking – where Applicants seek to use produced documents and information in related proceedings – where parties would be relieved from further interlocutory disputes as to the production of documents – where it is impossible to separate parties’ own knowledge from information subject to undertakings PROCEDURE – Costs – where Applicants successfully apply for release from implied undertaking – where Respondents oppose the application but also seek and obtain corresponding relief – whether there should be an order as to costs

PROCEDURE – ceasing to act – leave to file a notice of ceasing to act – no notice of intention – application made in court on date of hearing – where client has failed to provide funds for costs and failed to provide adequate instructions to allow solicitors to comply with the terms of their retainer – whether appropriate to dispense with requirements of Uniform Civil Procedure Rules r 18.1 under Civil Procedure Act 2005 (NSW), s 14.

CIVIL PROCEDURE – stay in place over warrant for eviction of the plaintiffs as tenants – stay granted ex parte – whether the stay ought to be continued – whether the defendants suffer hardship by continuation of the stay – where the rental property is on the market for sale – where the plaintiffs are in occupation rent-free – consideration of where the balance of convenience lies – stay dissolved – held that eviction to take place not before a fortnight

MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 – procedure – preliminary hearing – application for interim extension order – defendant in custody subject to a limiting term due to expire – meaning of “high degree of probability” – whether defendant poses unacceptable risk of causing serious harm to others if status as forensic patient is not extended – whether risk can be adequately managed by other means – interim extension order granted – one qualified psychiatrist and one registered psychologist appointed to examine defendant

CRIMINAL LAW – sentencing – whether appropriate disparity of sentences between co-offenders

FINAL RELIEF AND COSTS – judgment delivered declaring defendants in breach of Deed of Release by commencing a costs assessment – successful plaintiff seeks indemnity costs and a gross sum costs – whether indemnity costs should be awarded in the circumstances – whether a gross sum costs order should be made in the circumstances.

STATUTORY INTERPRETATION – appeal from NSW Civil and Administrative Tribunal – termination of social housing tenancy agreements – statutory construction of ss 85, 137, 155 and 154E of Residential Tenancies Act 2010 (NSW) WORDS AND PHRASES – whether Tribunal is “considering whether to make a termination order” only when exercising a discretionary power to make a termination order, or also when the Tribunal is obliged to make an order STATUTORY INTERPRETATION – whether inconsistency between s 154E and s 85 – relevant principles – inconsistency found – inconsistency resolved by s 137 in favour of s 154E – Tribunal required to have regard to the matters in s 154E when considering whether to terminate social housing tenancy agreement under s 85 ADMINISTRATIVE LAW – error of law as Tribunal failed to consider mandatory relevant considerations in s 154E – decision set aside and matter remitted to Tribunal to be determined according to law

CRIMINAL LAW – application for referral to the Court of Criminal Appeal pursuant to s 78 Crimes (Appeal and Review) Act 2001 – whether doubt or question as to sentence – supply large commercial quantity of precursor drug - separate sentencing of applicant and thereafter co-offenders – separate appeals – applicant’s appeal determined first – reduction in sentences for co-offenders from errors made by sentencing judge – relative position in hierarchy of offending – applicant first time offender – co-offenders with criminal records – co-offenders on bail at time of offending – finding of doubt or question as to disparity of sentences – matter not previously dealt with in appeals - referral to the Court of Criminal Appeal

CRIMINAL LAW – forensic patient – multiple offences including fraud, break and enter, theft – limiting period about to expire – application for interim extension order – whether defendant poses an unacceptable risk of causing serious harm to others – meaning of “serious harm” – defendant diagnosed with schizophrenia, substance abuse and intellectual disability – prior offending involving violence – poor history of compliance with supervision – offences and breaches in custody some involving violence – no present proposal for management by less restrictive means – interim order made – non-publication order in relation to evidence

SUCCESSION – family provision – Succession Act 2006 s 59 - deceased gives the whole of her estate to her daughter – the deceased’s other child, a son, pre-deceased her, leaving four children - the plaintiff is one of these grandchildren of the deceased – the plaintiff lived with the deceased, for a lengthy period – the deceased’s will leaves all her estate to her daughter and executor, the defendant – whether the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life - if so, what provision should be made for the plaintiff out of the deceased’s estate. EQUITY – secret trusts – the plaintiff alleges the defendant promised to hold property received by her under the will of the deceased on secret trust as to 20 per cent for the plaintiff – whether the deceased intended her daughter, the named sole beneficiary of her will, to hold her estate on trust as to 20 per cent for the plaintiff – whether the deceased communicated such an intention to the defendant – whether the defendant accepted or acquiesced in an obligation to hold the benefits she received from the deceased’s estate on the trust alleged. POWERS OF ATTORNEY – deceased grants an enduring power of attorney under Conveyancing Act, s 163B to her daughter, the defendant – during the deceased’s lifetime the daughter uses the power of attorney to loan money to herself from the deceased – daughter uses the loan monies to contribute to the acquisition of property – whether the daughter’s conduct in effecting the loan was in circumstances that (i) are authorized under the power of attorney, or (ii) are otherwise in breach of her fiduciary duty to her mother, the deceased – whether the estate has an interest in the property purchased with the assistance of the loan - what is the value of the estate for the purposes of both the plaintiff’s family provision claim and her secret trust claim.

CORPORATIONS – winding up – Commissioner applies to wind up taxpayer on basis of judgment debt and GST liability – winding up order made but stayed pending determination of appeal – GST liability discharged – pending application in Administrative Appeals Tribunal to review Commissioner’s rejection of taxpayer's objection – whether further stay should be granted when AAT hearing imminent – further stay granted EQUITY – declarations – corporate trustee seeks declarations that resettlement effective such that property now held as asset of new unit trusts – Commissioner's claim of alienation to defraud creditors premised on effectiveness of resettlement – absence of proper contradictor – declaration might impact any future liquidator – declaratory relief refused PROPERTY – alienation of property – properties held by trustee as assets of discretionary trust – declaration by trustee that assets now held by it as trustee of newly established unit trusts – units allocated to trustee of discretionary trust, and later redeemed – where trustee of the discretionary trust had significant tax debts – Commissioner alleged declarations of trust were void under s 37A of the Conveyancing Act 1919 (NSW) – whether declarations of trust constituted an “alienation” of property TRUSTS AND TRUSTEES – nature of right of indemnity – vesting order – whether vesting orders ought be made

COSTS – numerous respondents to appeal represented by two firms of solicitors who briefed separate counsel – appeal dismissed with costs – whether respondents should be allowed more than one set of costs

TORT – negligence – motor vehicle accidents – respondent thrown from horse while riding along side of road – whether primary judge erred in finding motor vehicle owned by first appellant and driven by second appellant caused the respondent’s horse to shy and buck – whether there was a “motor accident” under the Motor Accidents Compensation Act – whether primary judge erred – requirements in ss 5B or 5D of the Civil Liability Act – whether blameless motor accident

CORPORATIONS – Winding up – Application for special leave under Corporations Act 2001 (Cth) s 488(2) to distribute surplus – where liquidator seeks to retain some funds for further costs

CORPORATIONS – external administration – application by liquidators for approval of entry into contract potentially of more than three months duration under Corporations Act s 477(2B) – where proceedings now properly constituted by current liquidators – whether appropriate to allow liquidators to enter into deed of indemnity and funding with creditor, shareholder and director of the company.

PRACTICE AND PROCEDURE – Determination of Magistrate to strike out a defence and enter judgment – Where proceedings had been listed before the Court for mention/directions only – Lack of clarity as to the terms of the orders made and the powers purportedly exercised by the Magistrate – No evidence to support the orders made by the Magistrate irrespective of what powers were purportedly exercised – Failure on the part of the Magistrate to have regard to relevant provisions of the Civil Procedure Act 2005 (NSW) – Errors established PRACTICE AND PROCEDURE – Application by plaintiff to set aside orders for judgment made by Magistrate – Where application was refused – Where the determination of the Magistrate was apparently based upon the view that more appropriate course was to lodge an appeal against the primary decision to the District Court – Where no such right of appeal was available – Error established

CRIMES (HIGH RISK OFFENDERS) ACT 2006 – application for continuing detention order as defendant had refused to complete courses in gaol – application refused on the basis of expert evidence that participation in the courses would not significantly ameliorate risk in the defendant’s case CRIMES (HIGH RISK OFFENDERS) ACT 2006 – indigenous offender – long period in custody for murder of former de facto partner – long-standing substance abuse – upbringing that condoned violence towards women – need for extended supervision order for maximum period to manage risk – conditions reasonable and necessary in light of risk

FIDUCIARY DUTIES — Scope of power of attorney – Absence of authority to give gifts or to confer benefits on others– Attorney bound to act in best interests of principal without unauthorised personal benefits – Attorney bound to act within limits of authority as defined by instrument of appointment. EQUITY — Equitable remedies — Accounts and inquiries — Whether enduring attorney of incapacitated person should be ordered to account to his deceased estate — Whether attorney acting under power of attorney after the principal has become incapable has any, and if so what, obligation to account. EQUITABLE DEFENCES – Laches and acquiescence – Management of incapable person’s estate — Obligation of enduring attorney to account — Failure to apply for management orders to clarify limits of authority — No defence to order for account where attorney fails to confirm own authority and actively delays and dissuades enquiries. PROTECTIVE JURISDICTION — Law of agency – Enduring power of attorney.

WILLS, PROBATE AND ADMINISTRATION – Costs – Where executor beneficiary fails to demonstrate reasonable basis to have defended testamentary capacity suit

CORPORATIONS – charges, debentures and other borrowings – security interests – registration – extension of time – where all relevant defendants joined to proceedings – whether extension of time to obtain effective and accurate registration of security interests offends against discretionary considerations required by relevant legislation.

CRIMINAL LAW – where accused charged with both doing an act in planning or preparation for a terrorist act and conspiracy to murder – application by accused for temporary stay on the basis that the indictment in its current form exposes him to double jeopardy – application granted

PROCEDURE – pleadings – amendment – possession proceedings – cross-claim by mortgagor for breach of mortgagee’s duties – further application to amend cross-claim – whether cross-claimant estopped from pleading further claims – whether abuse of process PROCEDURE – pleadings – fraud – need for proper particularisation

PROCEDURE – pleadings – amendment – late application to amend defence and cross-claim – possession proceedings – existing cross-claim for relief under Contracts Review Act – leave sought to rely on breaches of the Code of Banking Practice and unconscionability – delays during proceedings – failure to comply with court orders – multiple changes of solicitors – failure to explain delays – hearing date three months hence – whether plaintiff/cross-defendant can meet new claims – need for expert evidence of banking practice – failure of defendant to serve evidence to support new claims – leave refused to rely on matters related to the Code of Banking Practice

CRIMINAL LAW – Sentence – manslaughter by punching – plea of guilty – originally charged with murder – offer to plead guilty to manslaughter rejected – convicted of murder – conviction set aside on appeal and new trial on manslaughter ordered

CRIMINAL LAW – conviction appeal – one count of sexual intercourse with a child under 10 – whether verdict was unreasonable or cannot be supported having regard to the evidence – applicant identified a number of inconsistencies in evidence of complainant – inconsistencies in peripheral matters – position of advantage of jury – open to jury to find offence proved beyond reasonable doubt – leave to appeal granted but appeal dismissed.

CRIMINAL LAW – conviction appeal – one count of aggravated sexual assault (person under 16), one count of aggravated indecent assault and two counts of attempt aggravated sexual intercourse – whether tendency evidence properly admitted – whether evidence should have been admitted despite absence of objection – probative value of evidence to be balanced against unfair prejudice – non responsive prejudicial answer by expert under cross-examination – whether jury should have been discharged – whether direction to disregard answer adequate – whether R v Markuleski direction should have been given – conviction appeal dismissed – application for leave to appeal against sentence – whether special circumstances should have been found – leave to appeal granted but appeal against sentence dismissed.

CRIMINAL LAW – application for leave to appeal against sentence – whether sentencing judge made mathematical error in calculating sentence imposed – applicant convicted of offences contrary to Criminal Code 1995 (Cth), s 400.9(1) and Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) – sentencing judge stated that intention was to impose sentence of imprisonment for three years – sentence of three years and three months imposed – whether appeal court should resentence CRIMINAL LAW – application for leave to appeal against sentence – whether sentencing judge erred by giving inadequate discount for guilty plea – discount in range of 4 per cent to 10 per cent – matters to be considered when calculating discount pursuant to Crimes Act 1914 (Cth), s 16A(2)(g) – whether discount to be given for utilitarian value of the plea – circumstances in which discount to be given for facilitating the course of justice – timing of the plea – strength of the Crown case – appropriate range for discount

SENTENCE APPEAL – application for an extension of time – Muldrock error – error conceded – juvenile offender – juvenile victim – extension of time granted – leave to appeal granted – appeal dismissed (by majority).

CRIMINAL LAW - appeal against conviction - operation of proviso - murder - Crown case included expert blood spatter evidence - expert performed further experiments based on defence case during trial - Crown advised of those experiments and how expert would respond if cross-examined on defence case - no report provided - denial of procedural fairness - fresh evidence adduced on appeal established material error in expert's evidence at trial - whether substantial miscarriage of justice actually occurred - Crown case at trial aside from blood spatter evidence established guilt beyond reasonable doubt - further evidence available on appeal strengthened Crown case - proviso applied and appeal dismissed

CIVIL PROCEDURE – writ of possession of lands ordered – stay on writ of possession ordered – whether stay on writ of possession to be dissolved – where defendant presents evidence of sale to satisfy the mortgagee’s debt – where purchaser of sale of land is a de-registered company – held that dissolution of stay of writ of possession of lands refused

INDUSTRIAL LAW – s 139 Industrial Relations Act 1996 (NSW) – breach of dispute orders over numerous days – a determination of penalty – whether infringement of ancillary dispute orders over numerous days punishable as multiple contraventions – factors relevant to assessment of penalty

PRACTICE AND PROCEDURE – imminent hearing – whether evidence of witness living in London should be taken by audio visual link – document heavy case – evidence of witness likely to be closely tested