Cases and authorities

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

TRUSTS – Transfer of funds by the deceased (the husband of the Plaintiff) to the Defendant contributing towards purchase of a residential property at Mount Pritchard – Nature of the deceased’s interest, if any, in the Mount Pritchard property – Defendant sole registered proprietor – Deceased not registered on title – Whether transfer of funds operated as a gift or a payment of money to acquire a registered interest in the Mount Pritchard property. Whether the Defendant’s interest, or any part thereof, in the Mount Pritchard property was held on a resulting trust for the deceased. PRACTICE – Commencement of proceedings – Parties – Proceedings commenced seeking declaration of trust in relation to real property in favour of deceased on ground of contribution to the purchase price – No general grant of probate or administration – Chose in action formed part of the estate – Whether Plaintiff had standing to pursue claim as executrix of the deceased’s Will – Whether proceedings a nullity – Consent given by Defendant to the Plaintiff being appointed as the representative of the deceased’s estate so that the proceedings may be determined and the ownership of the Mount Pritchard property clarified without additional cost to the parties.

TRUSTS AND TRUSTEES – application for judicial advice – where trustee appointed to investigate breaches of trust by previous trustee – where trusts comprise investments in forestry schemes – whether trustee would be justified in commencing proceedings – whether trustee would be justified in entering into a litigation funding agreement – where non-disclosure to beneficiaries of relevant terms of the funding agreement – whether inadequate canvassing of the market – whether Funder had excessive control – Trustee Act 1925 (NSW), s 63

CRIMINAL LAW – procedure – costs – application by the Crown to lead evidence under s 65 Evidence Act – when application refused further application by the Crown to adjourn trial – trial fixed for five weeks - trial adjourned – subsequent application by accused for Crown to pay costs thrown away by adjournment – application for stay until costs paid – whether fault on the part of the prosecuting authorities – whether fault amounted to unfairness to the accused - failure of Crown to arrange witnesses for trial – need for further enquiries that led to adjournment – applications by Crown under s 65 and for adjournment made on first day of trial – what costs reasonably payable – what costs thrown away – cancellation fees by Senior Counsel and solicitor – whether payable - whether costs of Crown’s applications payable

REVENUE AND TAXES – Duties Act 1997 (NSW) ss 63 and 163A – Will contained trust for sale and for distribution of cash to residuary beneficiaries – Transfer of shares in landholder from deceased estate to residuary beneficiary in partial satisfaction of bequest – Transfer made with agreement of all residuary beneficiaries as part of family agreement under which shares in three companies were transferred to three beneficiaries – Whether agreement was an agreement to vary the trusts of the will (s 63(2)) – Whether an appropriation as referred to in s 46 of the Trustee Act 1925 (NSW) (s 63(1)(a)(iii)) – Whether acquisition of interest in landholder company exempt under s 163A(d) as being solely the result of the distribution of deceased’s estate

REAL PROPERTY – compulsory acquisition of land – compensation – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 4 – whether the appellant had an “interest” in the relevant land as defined in s 4 – whether legal interest in land must be a registered interest – whether legal interest arises from exclusive possession – nature of the legal interest arising from possession – principle in Perry v Clissold – whether appellant enjoyed exclusive possession – indicia of exclusive possession – distinction between occupation and possession REAL PROPERTY – compulsory acquisition of land – compensation – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 4 – whether the appellant had an “interest” in the relevant land as defined in s 4 – whether equitable interest – nature of interest of beneficiary of a trust – interest as a beneficiary having right to seek due administration – interest as beneficiary having right to possession REAL PROPERTY – compulsory acquisition of land – compensation – appellant had permission to use and occupy land and carry out certain activities on it – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 4 – meaning of “right … power or privilege over, or in connection with” land within para (b) of the definition of “interest in land” in s 4 – whether interest must be proprietary or quasi-proprietary EQUITY – trusts – nature of interest of a beneficiary having right to seek due administration of a trust – interest as a beneficiary in possession of land – principle in Keech v Sandford – whether lease held on trust for appellant in circumstances where declaration of trust had been made with respect to earlier lease and no declaration made with respect to later lease AGENCY – whether primary judge had made a finding of agency – when an agency relationship will arise – resolution provided that appellant company was “to act on behalf of” other companies in certain respects referred to in document – whether appellant company carried out activities as an agent APPEAL – principles regarding when a new issue may be raised on appeal – issue in question not raised directly before primary judge but said to be “in play” – whether case would have been conducted differently if point had been raised at first instance

CONTRACTS – payment term in contract for construction and project management services – stipulation that suppliers and contractors organised and paid by contractor to be charged at cost plus management fee – whether effect of the word “paid” meant that contractor not entitled to render invoices until it had paid underlying suppliers and contractors CORPORATIONS – recovery of compensation from director pursuant to Corporations Act 2001 (Cth), s 588M for insolvent trading contrary to s 588G – requirement of insolvency at time debts incurred – factors relevant in determining whether company unable to pay its debts as and when they become due and payable – relevance of non-binding offer of funding – relevance of availability of informal overdraft facility – relevance of unpaid tax debts – relevance of trade debtors of related companies CORPORATIONS – recovery of compensation from director pursuant to Corporations Act 2001 (Cth), s 588M for insolvent trading contrary to s 588G – requirement of insolvency at time debts incurred – where party seeking recovery relied on report and expert evidence of insolvency practitioner to establish insolvency at relevant times – whether respondent director bore evidentiary onus to contradict expert’s evidence CORPORATIONS – recovery of compensation from director pursuant to Corporations Act 2001 (Cth), s 588M for insolvent trading contrary to s 588G – requirement that person to whom debt owed has suffered “loss or damage” in relation to the debt because of the company's insolvency – whether non-payment of invoices sufficient to establish “loss or damage”

CIVIL – Mental Health (Forensic Provisions) Act – forensic patient – where limiting term expired – where defendant continues to have psychiatric illness – where final hearing imminent – order not opposed – no question of principle

REAL PROPERTY – s 55(2A) Conveyancing Act – deposit forfeited by purchaser after termination of contract – statutory discretion – misrepresentation by vendor – reliance by purchaser – order for return of deposit

SUCCESSION – family provision – Succession Act, Chapter 3 – adult son, one of four children, left out of will – whether adequate provision made for adult son – whether the plaintiff’s wealth sufficient that he has not been left without adequate provision for his maintenance, education or advancement in life and further provision need not be made for him – whether adult son cut himself off from deceased, or engaged in conduct estranging himself from the deceased.

CRIMINAL LAW – Practice and procedure – Directions to jury – Whether a “Murray direction” warranted – Whether jury should be directed that it would be “dangerous to convict” based on the evidence of a co-offender – Whether warnings warranted in respect of two witnesses on the basis that their evidence was unreliable

PROCEDURE – Orders sought by the plaintiff for the return of laptop passwords and other material held by the plaintiff’s former solicitor – Where the defendant had already returned the passwords and all other material – Proceedings dismissed

CIVIL – PRACTICE AND PROCEDURE – application for approval of discrete aspect of settlement – personal injury proceedings commenced on behalf of a person under legal incapacity – whether proposed settlement is in the interests of the plaintiff – settlement approved

CRIMINAL LAW – procedure – discharge of jury – murder – one accused charged as accessory before the fact - solicitors cease to act for other accused half way through trial – no fault attributable to that accused - attempts to obtain further legal representation – delay – application by Crown to discharge jury – whether accused should represent himself – accessory opposes discharge – whether trial should continue against accessory alone – accessory with physical and mental health issues – accessory’s desire to have proceedings concluded and determined - danger of inconsistent verdicts if trials separated – unfairness to accused if trial proceeds without further legal representation – danger of miscarriage of justice - unfairness to Crown if trials separated – jury discharged

PRACTICE AND PROCEDURE – freezing order – whether there is a good arguable case – whether there is a risk of removal or dissipation of assets - danger that a prospective judgment will be unsatisfied – whether evidence supports such a finding –Uniform Civil Procedure Rules 2005 (NSW), r 25.11, 31.27, 26.17

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 – whether adjudicator had jurisdiction – PROCEDURE – application for summary dismissal – application for discovery – application to amend the summons and technology and construction list statement – no question of principle

HIGH RISK VIOLENT OFFENDER – preliminary hearing – orders sought by the State not opposed – no question of principle

INSURANCE – property and liability insurance – where insured use of premises is as brothel – where claim under renewed policy for property damage as a result of fire – where appellant insured’s sole director and manager were members of Comancheros bikie gang – where that association not disclosed to respondent insurer at time of renewal – whether reasonable person in insured’s position could be expected to know that membership association relevant to insurer’s decision to underwrite risk – Insurance Contracts Act 1984 (Cth), s 21(1)(b) – whether had disclosure been made insurer would not have been on risk at time of fire – Insurance Contracts Act (Cth), s28(3) INSURANCE – property and liability insurance – where claim under renewed policy for property damage as a result of fire – where at the time of renewal registration of brothel under Prostitution Act 1992 Act (ACT) had “lapsed” because of failure to lodge annual notice – whether appellant insured knew registration had lapsed – whether had disclosure been made insurer would not have been on risk at time of fire – Insurance Contracts Act (Cth), s 28(3)

PROCEDURE – application for leave to appeal – where claims in tort against State of New South Wales in respect of allegedly negligent conduct of public authorities, Government Ministers, the police force, local council and others summarily dismissed – whether primary judge arguably erred in summarily dismissing proceedings on basis duties to citizens applicant sought to propound not known to law – applicant failed to identify any issue of principle, question of public importance or substantial injustice – application dismissed

JUDICIAL REVIEW – application for judicial review of a decision of the District Court on appeal from a Costs Review Panel – whether District Court committed jurisdictional error by failing to apply the so-called “rule of thumb” in a case where the plaintiff succeeded against one defendant but failed against another COSTS – assessment of costs – status of “rule of thumb”

CRIMINAL LAW – appeal against sentence - wounding with intent to do grievous bodily harm contrary to s 33(1) of the Crimes Act 1900 – whether sentence manifestly excessive – weight given to the applicant’s background as victim of domestic violence – consideration of imprisonment leaving the applicant’s daughter with no parent – matters of weight the province of the sentencing judge – where the sentencing judge referenced all the pertinent features raised by the applicant – sentence within bounds of sentencing judge’s discretion

CRIMINAL LAW – statutory offence – dealing with money with intention money to be instrument of crime – scope of such intention – need for temporal separation between two physical elements of offence – proof of offence – need for instrumental connection between money and relevant indictable offence – temporal separation established – instrumental connection established – appeal dismissed.

ADMINISTRATIVE LAW – procedural fairness – whether duty to accord procedural fairness before exercising power to enter land for the purposes of investigation STATUTORY CONSTRUCTON – whether nature of power and purposes of its conferral excludes procedural fairness – what procedural fairness requires – notice given of intention to exercise power of entry and particulars of purpose provided to landowner INTERLOCUTORY RELIEF – whether serious question to be tried – balance of convenience – whether damages an adequate remedy

CORPORATIONS — Winding up — Practice and procedure – Application to adjourn winding up application under Corporations Act 2001 (Cth) s 440A(2) – where administrators recently appointed – where concerns exist as to circumstances of administrators’ appointment and identity of directors – whether administration, rather than winding up, in creditors’ interests CORPORATIONS — Winding up — Application to wind up Defendants on grounds of insolvency – where presumption of insolvency arises from unpaid statutory demands – where no evidence of solvency led

CORPORATIONS – statutory demand – application to set aside statutory demand – where application based on argument as to correct construction of shareholders agreement – whether appropriate to entertain argument on construction beyond establishing there is a genuine dispute – whether genuine dispute as to construction established.

DEFAMATION – pleadings – objection to form of imputations

DEFAMATION – where plaintiff wholly successful against media defendants in action for damages for defamation – whether permanent injunctions should be granted requiring removal of the defamatory material from websites and archives controlled by the defendants and restraining publication of that material – where defendants took no steps to remove the defamatory material prior to judgment but voluntarily removed it following publication of the court’s judgment in favour of the plaintiff – principles to be applied in the exercise of the court’s discretion to grant a permanent injunction in defamation cases

CORPORATIONS – statutory demand – application to set aside statutory demand – where application based on argument as to correct construction of service agreement – whether appropriate to entertain argument on construction beyond establishing there is a genuine dispute – whether genuine dispute as to matters of construction established.

CONSTRUCTIVE TRUST – logistics joint venture – first defendant/joint-venturer presents fraudulent invoices to the plaintiff, its fellow joint venturer – payments on the invoices directed to and received by the second defendant, a company the first defendant controls – first defendant declared bankrupt - second defendant in liquidation - plaintiff seeks declaration that the funds paid by the first defendant’s actions to the second defendant are now held on constructive trust for the plaintiff – claims in the alternative for fraudulent misrepresentation, breach of the Australian Consumer Law and breach of contract.

PRACTICE AND PROCEDURE GENERALLY – case management – multiple failures by a legally represented plaintiff to comply with Court’s orders – failure by plaintiff to file or serve evidence in proceedings in compliance with orders made – failure to comply with Uniform Civil Procedure Rules 2005, r 33.5(2) – warnings provided previously that if orders not complied with proceedings may be struck out - plaintiff’s counsel sought to file documents in Court - no explanation provided by plaintiff’s counsel for past non-compliance – further delays in proceedings likely – unrepresented defendants fully compliant with Court’s orders – proceedings dismissed pursuant to Civil Procedure Act 2005, s 61(3)(a).

TORT – tort of intimidation – application for injunction in Equity’s auxiliary jurisdiction and under Supreme Court Act 1970, s 66 – plaintiffs facilitate drivers to provide transport services to members of the public – defendant performs citizen’s arrests upon, and engages in threatening behavior against the plaintiff’s employees and persons using the plaintiff’s technology to provide transport services - plaintiff seeks to restrain the defendant from intimidation, arresting, threatening or harassing the defendant’s employees or drivers who have entered contracts with the plaintiff to use the plaintiff’s technology platform to provide transportation services to third parties – whether plaintiff committed the tort of intimidation – whether existing interlocutory injunction should be made permanent.

JUDICIAL REVIEW – application for judicial review under s 69 of the Supreme Court Act 1970 (NSW) – whether District Court judge erred had jurisdiction in relation to claims in debt, quasi-contract, equitable claims, and statutory claims under the Fair Trading Act 1987 (NSW), Trade Practices Act 1974 (Cth), Competition and Consumer Act 2010 (Cth) and Corporations Act 2001 (Cth) COURTS – scope of the equitable jurisdiction of the District Court – District Court Act 1973 (NSW), s 134

PROFESSIONAL NEGLIGENCE – where client suing former solicitors – where client incurred significant income tax liability after realising shares in a company – failure to advise – whether the respondent had proved factual causation – how factual causation is to be proved – whether primary judge erred in his implicit findings as to the loss caused by the breach – APPEALS – principles of appellate review – function of appellate court in relation to fact finding at trial

CRIMINAL LAW – appeal against sentence – pre-sentence custody – preferable course to back date sentence – confusion as to how much pre-sentence custody referable to index offence – where primary judge erred by making broad but adverse assessment – conservative but more favourable assessment proposed by applicant accepted

CRIMINAL LAW – failure to lodge a declaration contrary to Election Funding, Expenditure and Disclosures Act 1981 (NSW), s 96H – “party agent” responsible for lodging declaration – “registered person” under Parliamentary Electorates and Elections Act 1912 (NSW) deemed to be “party agent” by Election Funding, Expenditure and Disclosures Act, s 41(2) – whether applicant ineligible to be a “party agent” because of Election Funding, Expenditure and Disclosures Act, s 41(9) – whether the secretary of a registered party is “a person appointed to any office under the Parliamentary Electorates and Elections Act”.

CORPORATIONS – oppression suit – first defendant to sell shares in third defendant to plaintiff – first defendant to repay loan account in third defendant – quantum of loan account – whether first defendant agreed that his FBT liability for use of car be debited to loan account

JUDGMENTS AND ORDERS – Terms of orders to give effect to settlement – No issue of principle

DEFAMATION – imputations – whether reasonably capable of arising from the matter complained of –serious piece concerning alleged under-dosing of cancer patients – whether capable of giving rise to imputation of reducing patients’ chance of surviving cancer

ADMINISTRATIVE LAW – Judicial review – whether a proposed acquisition notice was lawful under the Land Acquisition (Just Terms Compensation) Act 1991 – Construction of Notice provisions of Just Terms Act STATUTES – Acts of parliament – statutory interpretation – notice requirements – objects of Act

CRIMINAL LAW – procedure – fitness to plead or be tried – murder – fit to be tried

CIVIL – PROCEDURE – application to set aside notice to produce – whether legitimate forensic purpose demonstrated – notice to produce set aside

CIVIL – PROCEDURE – transfer of proceedings – application to transfer proceedings to Supreme Court of Western Australia – whether transfer in interests of justice – notice of motion dismissed

PROCEDURE – notice of motion – order seeking District Court proceedings transferred to Supreme Court proceedings – order made

CRIMINAL LAW – procedure – change of venue – whether it is expedient to change the venue – whether accused cannot be afforded a fair trial – nature and extent of prejudicial publicity – whether change of venue would cause unnecessary delay - application dismissed.

PRACTICE AND PROCEDURE – whether cross-defendant should be given leave to amend defence to cross-claim to allege duty of care owed by builder to cross-claimant – whether cross-defendant has no prospect of demonstrating such vulnerability; TORTS – duty of care to avoid economic loss – vulnerability – whether cross-claimant vulnerable to want of care by the builder

EQUITY – Partnership – Breach of fiduciary duty – Sale of hotel owned by partnership – Whether distribution of proceeds by first defendant was a breach of fiduciary duty – Consideration of partnership agreement and subsequent modifications – Whether distribution of proceeds was ratified – Whether first defendant entitled to set off – Whether first defendant withdrew more than his share of capital from the partnership’s account – Whether plaintiff entitled to an accounting – Whether accounting should be conducted on a wilful default basis – Assessment of interest. SUCCESSION – Wills, probate and administration – Construction and effect of testamentary disposition. PRACTICE – Effect of first judgment – Whether proceedings as against the second defendant should be dismissed.

CRIMINAL LAW – sentence following trial - murder - Offender (35 years old) stabbed victim (25 years old) 20 times - Offender under influence of methylamphetamine (Ice) at time and subject to drug induced psychosis - victim also under influence of Ice at time of killing - relevance of self-induced intoxication and existence of drug induced psychosis on sentence - confession by Offender to police before discovery of body -finding of contrition and remorse - Offender facilitated course of justice - sentence of imprisonment for 19 years with non-parole period of 14 years

CONTRACT – project management of construction of warehouse – proper construction of agreement – whether defendant failed to exercise reasonable care and skill in project management – whether defendant should have procured plaintiff to apply for relevant consents earlier – whether defendant caused delay to project; EVIDENCE – admissibility – expert report – whether conclusions reached based on expert knowledge – whether expert’s reasoning process disclosed – where to admit report would result in prejudice to defendant; LIMITATIONS – whether part of plaintiff’s claim statute barred – whether complaint was that defendant failed to perform a single act capable of determination – whether defendant’s alleged breaches of contract were made repeatedly; DAMAGES – whether plaintiff had proved damage by loss of chance to lease premises earlier

S 37A of the Conveyancing Act 1919 (NSW) - intention to defraud creditors – alienation of property – purchaser in good faith with no notice of intent – credit of witnesses – trial judge’s assessment of evidence in absence of cross examination – the rule in Jones v Dunkel