Cases and authorities

Section 5(1) Jurisdiction of Courts (Cross-Vesting) Act 1987 – related proceedings – more appropriate forum – interests of justice - jurisdiction of NSW Supreme Court under Fair Work Act.

CRIMINAL LAW – Practice and procedure – Directions to jury – Whether enquiry should be made as to progress of deliberations.

CRIMES (HIGH RISK OFFENDERS) ACT 2006 – interim supervision order appropriate for defendant with limited insight into depravity of sexual offences – drugged victim before assaulting her CRIMES (HIGH RISK OFFENDERS) ACT 2006 – interim detention order pending identification of available suitable accommodation refused – real chance of accommodation being sourced before release date – fact of release will improve chances of COSP accommodation being available

CONVEYANCING – contract for sale of land – purported termination by both parties – obligations on vendor to perform works by completion – whether performance required by completion date under contract or time of actual completion – whether vendor complied with obligations – validity of notice to perform – validity of notice to complete – whether vendor engaged in misleading and deceptive conduct – whether deposit should be returned

MORTGAGES – mortgages and charges generally – where parties enter into deed governing repayment of debt and a mortgage securing repayment – where deed conferred right to register mortgage upon event of default – mortgage remains unregistered – whether plaintiff entitled to enforce mortgage prior to registration – whether plaintiff an equitable chargee under deed – whether terms of deed preclude commencement of proceedings by plaintiff to enforce security

CIVIL PROCEDURE – interlocutory relief – summary judgment for possession – defendants in adverse possession – plaintiff seeks leave to execute a writ of possession – defendants seek a stay of execution of a writ of possession pending the determination of their cross-claim – consideration of UCRP 13.2 – whether there is a sufficient connection between the claim for possession and the cross-claim – held to be insufficient practical connection to justify ordering a stay – consideration of hardship to the defendants if a writ of possession is executed – held that hardship exists warranting a stay of three months ADMINISTRATIVE LAW – judicial review – decisions made rejecting defendants’ applications for membership of the Aboriginal Land Council and requests to be placed on a waiting list for housing provided by the plaintiff to Aboriginal persons within its area

PRACTICE AND PROCEDURE – Judicial review of determination of Magistrate – Asserted error of law – Failure to give proper reasons – Where factual findings made as to breaches of relevant rules – Where no reasons were given for those findings – Where such findings were then used as the basis for a conclusion that the second plaintiff was not a fit and proper to hold such authorisation – Where no adequate reasons were given for reaching that conclusion – Where specific submissions were made by counsel to the Magistrate regarding the question of whether any breaches of the rules supported a conclusion of unfitness – Where the Magistrate failed to address those submissions and in doing so failed to engage with the issue before him – Error of law established – Proceedings remitted to the Magistrate to be further dealt with according to law PRACTICE AND PROCEDURE – Judicial review of determination of Magistrate – Asserted error of law – Evidence – Onus of proof in civil proceedings – So called Briginshaw standard – Whether Magistrate properly applied the onus and standard of proof – Standard of proof properly applied – Observations as to the nature of the Briginshaw standard

CRIMINAL LAW – Offences – Selling electrical articles which failed to comply with regulatory specifications – Where defendant sold electrical cables that did not meet Australian standards – Responsibility on part of the seller of such items to ensure that they have the requisite regulatory approval and are therefore safe to use – Entitlement of the public to expect that items which are offered for sale will be safe – Where defendant diagnosed as suffering from mental illness – Relevance of mental illness to considerations of general deterrence

CRIMINAL LAW – Offences – Selling electrical articles which failed to comply with regulatory specifications – Where defendant sold electrical cables that did not meet Australian standards – Responsibility on part of the seller of such items to ensure that they have the requisite regulatory approval and are therefore safe to use – Entitlement of the public to expect that items which are offered for sale will be safe – Where defendant diagnosed as suffering from mental illness – Relevance of mental illness to considerations of general deterrence

CONTRACTS – construction of terms – appellants involved in property development joint venture – dispute arose which required sale of the relevant land – respondent entered into multiple agreements with appellants by which it agreed to act as “attorney and agent” in respect of sale – respondent distributed sale proceeds amounting to more than $100m – dispute as to $5m remuneration claimed by respondent – amount of remuneration determined by reference to “sale proceeds of the Property” – construction of “Property” – construction of “proceeds”

CORPORATIONS – application by liquidator for approval of entry into contracts of more than three months duration under Corporations Act s 477(2B) – where objection by directors and related party creditors to liquidator retaining solicitors who have previously acted for the petitioning creditor – whether retention of solicitors compromises independence of liquidator – whether reasonable apprehension of bias if liquidator retains those solicitors.

CORPORATIONS – external administration – replacement of a court appointed liquidator – where liquidator applies for court order removing himself as liquidator and appoint new liquidators in his place – whether liquidator may resign - filling vacancy in the position of court appointed liquidator after the original liquidator has resigned – whether appropriate to appoint two liquidators – need for order under s 473A(4), Corporations Act 2001 (Cth) PROCEDURE – judgments and orders – amending, varying and setting aside – where judgment made orders pursuant to ss 473A(1) and 473A(4), Corporations Act 2001 (Cth) – where the operation of those provisions has been deferred by the Corporations Regulations 2001 (Cth) to 1 September 2017 – where party claiming relief did not advert to the commencement date of new provisions in the Corporations Act – where accidental slip in orders pronounced by the Court – appropriate to vary orders made to reflect currently applicable version of s 473.

PRACTICE AND PROCEDURE – imminent hearing date – application to amend particulars and pleadings

COSTS – indemnity costs orders sought by plaintiff when defendant admitted liability – complex case requiring analysis of documents from several sources – need to assess conduct of defendant by reference to chronology rather than with hindsight – onus on practitioner certifying defence COSTS – disparity between ordinary costs and indemnity costs not to be bridged by reference to plaintiff’s needs as opposed to defendant’s conduct of the proceedings PRACTICE AND PROCEDURE – no departure from Model Litigant Policy

CORPORATIONS – Winding up – Applications for winding up by court – where companies insolvent and in external administration – where creditors related to the companies and their director oppose applications with a view to executing deeds of company arrangement – whether liquidations likely to provide a better return to creditors than deeds of company arrangement – whether liquidations are in the public interest. CORPORATIONS – Winding up – Liquidators – where order made that companies be wound up – whether Plaintiffs’ nominee, rather than incumbent administrators, should be appointed as liquidator.

CRIMINAL LAW – sentence appeal – two counts of trafficking/supplying large commercial quantity of methylamphetamine – applicant sentenced appropriately on 26 April 2013 – co-offender in a more senior role in drug supply enterprise sentenced on 20 November 2015 – error in sentencing of co-offender uncorrected – justifiable sense of grievance on part of the applicant – application of parity principle – court required to intervene – need to ensure that reduced sentence not erroneously lenient.

CRIMINAL LAW – appeal – appeal against sentence – murder – offender suffering from significant mental illness – whether moral culpability reduced – whether offender inappropriate vehicle for general deterrence

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and if thought fit to agree to proposed schemes of arrangement – whether draft supplementary explanatory statement should be approved – whether separate class meetings should be ordered

CORPORATIONS – external administration – application for order terminating winding up of a company – where company had been wound up on just and equitable ground due to deadlock between directors – where one director now sole director and shareholder in the company – whether appropriate to make order terminating winding up when circumstances leading to winding up have been alleviated – where company has been solvent at all times.

CORPORATIONS – external administration – reinstatement of a deregistered company – whether appropriate to make order directing ASIC to reinstate the deregistered company – where reinstatement required for company to receive dividends from the bankrupt estate of a debtor – status of company once reinstated – where company was subject to court ordered winding up immediately prior to deregistration – status of previous liquidator once company is reinstated – where previous liquidator consents to be reappointed.

GUARANTEE AND INDEMNITY – whether director of creditor represented to guarantor that guarantee would not be called on – whether guarantor relied on any such representation – DUTIES – whether underlying loan agreement a mortgage for stamp duty purposes – whether such document liable for duty – whether such document unenforceable pending payment of duty

TRUSTS – Judicial advice as to commencement of proceedings.

CORPORATIONS – external administration – where company under member’s voluntary winding up at time of deregistration – where company subsequently reinstated by court order in form in which it was deregistered – power of court to fix liquidator’s remuneration in members’ voluntary liquidation – whether liquidator’s costs and disbursements reasonable.

CORPORATIONS – statutory demand – application to set aside statutory demand – where application based on existence of set-off agreement or offsetting claim – whether plausible contention worthy of investigation – whether genuine dispute established.

APPEAL – application for dismissal of appeal as incompetent – application for extension of time – appellant bankrupt – appeal dismissed as incompetent

PROCEDURE – application for judicial review – applicant seeks issue of subpoena for access to transcript of ex tempore remarks – leave granted to issue subpoena

COSTS – proceedings unsuccessfully claiming damages under the Motor Accidents Compensation Act 1999 (NSW) – consequence is that damages are assessed under the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) – whether proceedings “in relation to a claim for work injury damages” within s 346(1) of the WIM Act

COSTS – costs of an abortive mediation – where mediation was court ordered – where the plaintiffs did not attend the mediation – where the plaintiffs did not notify the defendants – costs awarded to the defendants

PRACTICE AND PROCEDURE – application to reopen – no basis for reopening made out

PROCEDURE – cross-claim – amendment – amendment of cross-claim – change of venue – leave granted to amend statement of cross-claim

DEFAMATION – discovery and interrogatories – complaint by defendant as to adequacy of plaintiff’s compliance with previous orders – no question of principle

EQUITY – Barnes v Addy claims against wife of former director of companies based on knowing receipt and knowing assistance in respect of the sum of $1.3 million paid out of the bank account of one of the companies and used for the purchase of a property in the name of the wife. Of the $1.3 million, $775,000 was recorded as a loan to the director. Two years later the loan (then $850,000) was purportedly repaid following a ‘round robin’ of cheques totalling $1 million organised by the director of the two companies with the assistance of another director of one of the companies – whether the provision of funds for the purchase of property was a breach of fiduciary duty by the first director – whether the wife, who was also company secretary of the first company and its in house accountant, had knowledge of the alleged breach of fiduciary duty and received the funds with knowledge – whether the second transaction involving the round robin of cheques was a fraudulent and dishonest transaction involving the two directors in a breach of fiduciary duties owed by them to the first company and, in the case of the husband, also to the second company – whether the wife assisted the husband in his breach of fiduciary duty with knowledge of the dishonest and fraudulent design – whether the wife received the $995,000 of the $1 million because it was paid into an account of which she was a joint owner with her husband – whether the transaction is to be treated as a sham and whether the companies suffered any loss – issue of informed consent/ratification discussed - whether the claims were statute barred by analogy with s 1317K of the Corporations Act 2001 – whether a certificate, issued pursuant to s 128 of the Evidence Act 1995, can be given in respect of questions asked, and answered, before objection taken.

PRACTICE AND PROCEDURE – Cross-vesting - proceedings commenced in NSW Dust Diseases Tribunal - transfer of proceedings from Dust Diseases Tribunal to Supreme Court of New South Wales -transfer of proceedings from Supreme Court of New South Wales to Supreme Court of Queensland – held transfer to Supreme Court of Queensland in the interests of justice

REFEREE – apprehended bias – where referee had in earlier unrelated proceedings cross-examined as to credit a witness to be called on the reference whose credit would again be in issue – whether fair minded observer might think referee might not bring an impartial mind to resolution of issues between the parties

PRACTICE – Declaratory judgments and orders – Whether to be made by consent – No issue of principle

LOAN – loan of USD350,000 – default – whether loan agreement contained a penalty

EQUITY – equitable remedies – injunctions – applicant for interlocutory injunction to restrain defendant company from taking any further step towards holding an election of directors – injunction refused

PRACTICE AND PROCEDURE – pleading – striking out – whether pleading discloses no reasonable cause of action, has a tendency to cause prejudice or embarrassment, or is otherwise an abuse of process –pleadings struck out with leave to replead

PROCEDURE – civil – application for summary dismissal – whether failure to prosecute with due despatch – whether claim doomed to failure PROCEDURE – civil – application of defendant to strike out statement of claim of plaintiff – whether no reasonable cause of action disclosed DAMAGES – reflective loss – diminution in value of shares – whether prohibition on recovery – whether separate and distinct from company's loss – whether personal loss suffered by plaintiff

PRACTICE AND PROCEDURE – summary dismissal – no reasonable cause of action disclosed – proceedings vexatious PRACTICE AND PROCEDURE – whether witness immunity applies in proceedings in Fair Work Commission – not necessary to decide CONSUMER LAW – giving evidence in proceedings in Fair Work Commission not “in trade and commerce” JURISDICTION – Federal Court has exclusive jurisdiction under Fair Work Act 2009 – no right of review in Supreme Court of decisions of Fair Work Commission INSURANCE LAW – when entitlement to benefit depends on opinion of insurer – obligation of insured to provide information to enable opinion as to relevant matter to be formed – no breach by insurer when information not provided by insured

ADMINISTRATIVE LAW – judicial review – decision of a delegate of the Registrar of the Workers Compensation Commission – construction of the Workers Compensation Guidelines – proper use of the Combined Values Chart in AMA5 when combining whole person impairment value for spinal injury involving persisting radiculopathy with two modifiers for spinal surgeries

PRACTICE AND PROCEDURE – costs – security for costs – where security for costs of cross-claim sought from start-up company – whether cross-claimant is effectively in position of defendant – whether cross-claim raises issues separate from those raised in main proceedings – quantum of security – security ordered in tranches

APPEAL AND NEW TRIAL – appeal from magistrate – application for leave to appeal – issue concerning costs – judgment pronounced by magistrate but no orders as to costs made – application for costs made years later – whether magistrate functus officio – finality principle PROCEDURE – costs – where costs order sought subsequent to judgment – whether application to vary judgment – whether limitation in r 36.16(3A) UCPR applied – scope of s 98(3) Civil Procedure Act – relationship of s 98(3) to finality principle – whether application could be made under the slip rule

TORT – Compensation to Relatives Act 1897 (NSW) – death of mother – dependency claim by daughter – mother’s death result of personal injury caused by medical practitioner’s negligence – proportionate liability – Civil Liability Act 2002 (NSW), Pt 4, s 34(1)(a) – concurrent wrongdoers – whether medical practitioner able to claim against other wrongdoers – whether dependency claim “apportionable claim” pursuant to Pt 4 – Compensation to Relatives Act 1897 (NSW), ss 3, 4 – Civil Liability Act 2002 (NSW), s 34(1)(a) STATUTES – interpretation – relevance of legislative history – use of extrinsic materials WORDS AND PHRASES – “apportionable claim” – “arising out of”

CRIMINAL LAW – sentence appeal – reckless wounding causing grievous bodily harm – whether sentencing judge erred in approach to asserted mental condition of applicant – whether sentencing judge placed undue weight on result of separate previous sentence appeal – appeal dismissed

CRIME – SENTENCING – domestic violence – aggregate sentence of 5 years imprisonment with non‑parole period of 3 years imposed – break and enter with intention to commit serious offence – contribution of indicative sentence to aggregate sentence – whether sentencing judge erred in assessing objective seriousness of offence – whether sentence manifestly excessive – leave to appeal granted – appeal dismissed

TRUSTS AND TRUSTEES – administrator pendente lite – application for judicial advice – where proceedings commenced without getting advice because of a concern that a limitation period might expire – whether administrator would be justified in continuing proceedings – Trustee Act 1925 (NSW), s 63

PROCEDURE – costs – where statutory demand issued in relation to a debt – where plaintiff instituted winding up proceedings – where judgment debt subsequently paid into Local Court – where parties continued to prepare for preliminary hearing under s 459S, Corporations Act and contested winding up after judgment debt paid into court – where no purpose could be served by either side continuing to prepare for proceedings after 20 February 2017 – appropriate order as to costs before and after 20 February 2017.

PRACTICE AND PROCEDURE – plaintiff held to be in contempt of court in her absence – plaintiff applied to set aside orders – no irregularity, illegality, or want of good faith shown – power to vary or set aside pursuant to UCPR r 36.16 ought not be exercised in present case because of the principle of finality – relevance of the plaintiff’s conduct in the course of a telephone call in which she unsuccessfully applied to adjourn the proceedings

PRACTICE AND PROCEDURE – whether non-disclosure order in respect of Particulars Document should be made in the Court’s inherent jurisdiction PRACTICE AND PROCEDURE – whether appropriate for interstate Judge to be appointed to hear proceedings for contempt in this Court – relevant principles