Cases and authorities

CONTRACTS – contracts of employment – restraint of trade – whether restraint is engaged – consideration of the words “in competition with” and “part of the business” - whether restraint is valid – whether injunction should be granted to give effect to the restraint - whether the supposed confidential information remains confidential PRACTICE AND PROCEDURE – application for suppression and non-publication order – where much of the information has been put in the public domain by the party claiming the order – whether order is necessary to prevent prejudice to the proper administration of justice – Court Suppression and Non-Publication Orders Act 2010 (NSW)

EASEMENTS – plaintiff seeks order compelling defendants to approve development application to construct driveway – plaintiff’s property has no vehicle access – plaintiff’s property includes strip of land to street – plaintiff’s property has right of carriageway over abutting strip owned by first defendant – land steep – proposed to construct elevated driveway – whether right of carriageway for vehicles capable of enjoyment – whether plaintiff can require second defendant to agree to permanent ingress to small portion of its land – whether plaintiff’s proposed use unreasonably interferes with defendants’ rights – whether conditional relief can be granted – plaintiff succeeds at least against first defendant – plaintiff to formulate proposed orders

CORPORATIONS — Winding up — Application to set aside creditor’s statutory demand under s 459H of the Corporations Act 2001 (Cth) – where plaintiff contracted with defendant for the defendant to perform painting works on a third party’s property – where plaintiff contended defendant caused damage to third party’s property – where plaintiff contended that costs of remedying defects caused by defendant constituted offsetting claim – whether there was contract between plaintiff and third party under which plaintiff may be contractually liable to rectify damage caused by defendant – whether offsetting claim under s 459H of the Corporations Act 2001 (Cth) established.

SUCCESSION – wills, probate and administration – testamentary instruments – wills – deceased died leaving two wills – the 1988 will divided estate almost equally between two adult children, being the plaintiff and first defendant, while the 2004 will had the effect of giving the first defendant control of the exercise of the discretion of the trustee of a family discretionary trust that would permit the first defendant to distribute a substantial portion of the property controlled by the deceased as he saw fit, including to himself – deceased suffered from moderate dementia leading up to the making of the 2004 will – plaintiff sought grant of probate of 1988 will – cross claimants sought grant of probate of 2004 will –plaintiff alleged lack of testamentary capacity by the deceased and lack of knowledge and approval of the deceased in relation to 2004 will – principles relevant to testamentary capacity and absence of knowledge and approval of contents of will by a testator with a cognitive disability considered – held testator had testamentary capacity – held testator did not by reason of her cognitive disability sufficiently know and approve of the terms of the 2004 will that gave the first defendant control of the trustee of the family discretionary trust to justify those terms being included in the will admitted to probate – held that the 2004 will should be admitted into probate with those terms excised SEVERANCE – severance of part of will – whether the excision of disputed clauses would involve the making of a new testamentary instrument – where the deceased wished to achieve two testamentary outcomes which were mutually inconsistent – held that the consequence of which the deceased did not know and approve was by and large of equal or greater importance to the deceased – held that probate of the 2004 will should be granted with certain terms excised

COSTS – WILLS PROBATE AND ADMINISTRATION – SUCCESSION – where granddaughter disputed deceased’s testamentary capacity to make her final wills and as executrix propounded earlier will – where testamentary capacity of final wills found – whether granddaughter should have her costs from the estate – whether deceased was the cause of the litigation – where granddaughter to receive provision from the estate – where offer of comprise made shortly before hearing and not accepted – where provision obtained less than offered – whether granddaughter should pay executor’s costs on indemnity basis from time of offer

REAL PROPERTY – mortgages – rights and liabilities of mortgagor and mortgagee - possession proceedings – cross-claim impugning fees, interest and charges and claiming damages from third parties - sale of one security property – undisputed amount paid to mortgagee – balance paid into controlled moneys account – application by Defendants for access to part of funds for legal fees – whether principle in Inglis v Commonwealth Bank applies – exception for matters obviously wrong - whether value of other security and balance of settlement proceeds exceeds mortgagee’s claim – disputed valuations – whether debt to mortgagee at time of order or at time of judgment at final hearing – whether mortgagees’ future costs should be considered

PROCEDURE - Vexatious Proceedings Act 2008 (NSW) – orders sought opposed – proper construction of s 6 of the Vexatious Proceedings Act 2008 – whether judgements admissible under s 91 of Evidence Act 1995 – whether the Attorney General met the onus of establishing that Mr Mohareb has frequently instituted or conducted vexatious proceedings – not established –application dismissed – costs

CRIMINAL LAW – sentence – murder – alleged liability of co-offenders at trial based on extended joint criminal enterprise – findings of fact as to role of each offender – differing levels of moral culpability – where one offender will serve sentence in protective custody – application of parity principles

CRIMINAL LAW – sentencing – two offences of murder – where offences took place in the homes of the victims, the offender abused a position of trust, and the victims were elderly – whether objective seriousness of offending falls within the worst category – whether offender’s subjective case calls for mitigation of sentence – importance of deterrence and denunciation – whether aggregate sentence should be imposed

REAL PROPERTY – possession of land – mortgages – loan to company conducting egg farming business – loan partly used to pay out prior mortgagee and partly for working capital – working capital to purchase new flock of birds – failure of borrower to purchase new birds – application for further funds for that purpose – further loan with conditions – whether lender acted unconscionably in imposing conditions – whether lender acted in breach of Banking Code – nature of lender’s obligations - whether enforceable obligation on lender to “try to help” – whether any loss sustained from imposition of conditions – no moral obloquy – no unconscionable conduct – lender entitled to possession INJUNCTIONS – interlocutory injunction restraining lenders from putting receivers in to run business – conditions on borrower for grant of injunction – obligations on borrower for operation of business – breach of conditions and obligations – excessive payments out of business account, failure to pay interest to lender, misleading financial documents produced - application to dissolve injunction – breach of conditions established – interlocutory injunction dissolved

PRACTICE AND PROCEDURE – Service of Statement of Claim – Where defendant was a resident of the United Kingdom – Whether Statement of Claim validly served under Australian or English law PRACTICE AND PROCEDURE – Where order had been made extending the time for service of Statement of Claim – Where application for that order had been made at a time when the Statement of Claim had become stale - Application by defendant to discharge that order - No proper explanation by the plaintiff for the delay in making application for the original order for extension - Where plaintiff’s prosecution of proceedings was fundamentally at odds with the just, quick and cheap resolution of proceedings PRACTICE AND PROCEDURE – Where defendant was a medical practitioner - Where plaintiff claimed damages for breach of contract and negligence arising out of surgical procedures performed by the Defendant – Where all of the relevant acts and omissions bearing upon the issue of liability occurred in England – Consequent necessity to apply English law to the determination of that issue - Where the majority of lay witnesses going to the question of liability were located in England – Where the expert evidence was likely to be adduced from witnesses in England – Where documentary evidence located in England – Where there would be significant disruption to the defendant’s practice if the matter were litigated in Australia – Supreme Court of NSW an inappropriate forum

PROCEDURE – costs – application for indemnity costs - Calderbank offer – offer made immediately after service of summons – offer rejected - summons sought extension of time to have legal costs assessed – plaintiffs unsuccessful – offer by defendants to pay $1500 in full settlement of proceedings – whether genuine offer of compromise – whether plaintiffs acted unreasonably in not accepting offer – application dismissed

CRIMINAL LAW – murder trial - whether adult Crown witness competent to give evidence - witness found unfit to be tried in separate criminal proceedings - ss.12 and 13 Evidence Act 1995 - applicable principles on competence inquiry - presumption of competence not displaced - witness competent to give sworn evidence

CONTRACTS - Unconscionable and unjust transactions – Statutory remedies under the Contracts Review Act 1980 NSW – Unsophisticated plaintiff rushed into transaction - Lost opportunity to obtain independent legal advice – Lack of understanding of terms and effect of Put and Call Option – Public interest in requiring parties to adhere to contracts balanced against public interest in not holding a party to a contract attended by procedural and substantive injustice.

CORPORATIONS - winding up - application on grounds other than insolvency - standing – classes of person who can apply for a winding up order – s 462(2)(b) Corporations Act 2001 (Cth) – creditors including contingent or prospective creditors - where plaintiff denies any enforceable agreement with company but alternatively claims unliquidated damages against the company for breach of denied agreement - where basis for such claim disputed – whether plaintiff should be permitted to seek winding up order in same proceedings in which damages claim is made CORPORATIONS - winding up - application on grounds other than insolvency – s 462(2)(c) Corporations Act – standing as a contributory – where plaintiff not registered holder of shares – claim for rectification of register to record plaintiff as holder of share – whether plaintiff should be permitted to seek winding up order in same proceedings as claim for rectification of register CORPORATIONS - oppression and unfair prejudice – application for relief on basis of oppression – s 234 Corporations Act – standing as a member – where plaintiff asserts beneficial ownership of share in company – claim for rectification of register to record plaintiff as member – whether plaintiff should be permitted to seek relief in case of oppression in same proceedings as claim for rectification of register

DAMAGES - Compensation to Relatives Act 1897 (NSW) s 4 - appellant wife of deceased - respondent doctor of deceased - respondent admitted liability in respect of deceased’s death - quantification of damages - quantification of deceased’s consumption of household income - application of Luntz standard consumption percentages - evidence that deceased had frugal consumption habits - evidence that household income would increase - Luntz percentages adopted by expert witnesses - discretionary judgment - whether actual error demonstrated DAMAGES - Compensation to Relatives Act 1897 (NSW) s 4 - quantification of damages - value of deceased’s domestic services - quantification of domestic services after sons ceased to be dependent - whether to discount the value of domestic services performed by deceased to reflect the fact that some such services were performed for his own benefit - whether actual error demonstrated EVIDENCE - Supreme Court Act 1970 (NSW) s 75A - further evidence on appeal - special grounds - appellant sought to tender evidence of revised consumption percentages based on data more recent than that used by Prof Luntz - evidence that Prof Luntz intended to include revised percentages in new edition of book - whether evidence could have been obtained at trial with reasonable diligence - whether prejudice would be caused by admission of evidence

PRACTICE – where applicant subject to order in terms of Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771 – where applicant filed notice of motion – whether applicant had shown cause in writing why the motion should not be dismissed as vexatious and an abuse of process – motion dismissed

BUILDING AND CONSTRUCTION – contracts – oral contract – whether statement of a price was an estimate or a fixed quote – evidence of past dealings between parties suggestive of informal, trusting and flexible contractual relationships APPEAL – whether primary judge erred in admitting evidence of prior dealings between the parties – whether primary judge erred in his assessment of the credibility of the appellants’ evidence and the interpretation of their affidavit evidence – whether primary judge erred in his assessment of the evidence giving rise to the contract which led to a conclusion adverse to the appellants

LEGAL PROFESSION — disciplinary proceedings — solicitor sends an ex parte communication to a Judge making unfounded allegations and containing threats — complaint that the solicitor’s conduct was “grossly discourteous” — whether the solicitor’s conduct capable of constituting professional misconduct STATUTORY CONSTRUCTION — transitional provisions — whether the repealed Legal Profession Act 2004 (NSW) applies to disciplinary proceedings pending in the New South Wales Civil and Administrative Tribunal (NCAT) at the date of the repeal CONSTITUTIONAL LAW — whether the solicitor’s conduct protected by the implied constitutional freedom of political communication COSTS — whether NCAT erred in ordering the solicitor to pay costs — significance of NCAT relying on a repealed statutory provision in making the costs order

CRIMINAL LAW – appeal against sentence – offence of assault occasioning actual bodily harm contrary to s.59(1) Crimes Act 1900 – full time sentence of imprisonment imposed – whether sentencing judge erred by failing to consider alternatives to full-time custody – error not demonstrated – leave to appeal against sentence refused

CRIMINAL LAW – appeal against sentence –offence of assault occasioning actual bodily harm in company contrary to s 59(2) Crimes Act 1900 – applicant targets victim on public transport – victim attacked in street after leaving a train – victim punched in face and kicked and punched while on ground – serious offence under s.59(2) – applicant on parole at time of offence – whether sentencing judge failed to give effect to finding of special circumstances and/or failed to correctly apply the totality principle – whether sentence imposed was otherwise manifestly excessive – no error demonstrated – leave to appeal against sentence refused

CRIMINAL LAW – sentence – error in fixing balance of term – sentence adjusted under rule 50C

CRIMINAL LAW – sentence appeal – use carriage service to procure a person under 16 for sexual activity – whether judge erred in rejecting unchallenged evidence of counsellor relating to applicant’s apparent lack of intention to meet with victims – whether judge erred in characterisation of objective seriousness of offences or in assessment of applicant’s prospects of rehabilitation – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed

CRIMINAL LAW – sentence appeal – serious domestic violence-related stabbing - whether sentencing judge erred in finding that the offence was aggravated by reason of the fact that the victim was Aboriginal and therefore vulnerable – whether sentencing judge erred in finding that offence was in the “worst case” category - whether sentence manifestly excessive CRIMINAL LAW – offences of domestic violence – whether Indigenous victims vulnerable as a class because of “culture of ostracism and silence” – need for evidence in each case to establish beyond reasonable doubt that particular victim was a member of a vulnerable class of victims

CRIMINAL LAW – appeal – sentence – large number of child sexual assault offences committed between 1968 and 1986 – historical sentencing – during period of offending non-parole periods typically comprised 35-50% of head sentence – whether primary judge erred in failing to properly apply sentencing principles and practices existing at the time of the offending CRIMINAL LAW – appeal – sentence – whether primary judge erred in failing to give sufficient weight to lack of offending since 1986 in making findings as to rehabilitation and likelihood of re-offending CRIMINAL LAW – appeal – sentence – whether primary judge erred in finding that offences were aggravated by being part of planned or organised criminal activity – whether primary judge made a finding under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether evidence that degree of planning exceeded degree of planning which would ordinarily be expected CRIMINAL LAW – appeal – sentence – whether sentence unreasonable or plainly unjust

CRIMINAL LAW – Crown appeal against sentence – s 5D Criminal Appeal Act 1912 (NSW) – ongoing supply of methylamphetamine – where sentencing judge imposed an ICO – where exceptional circumstances were said to consist in respondent’s need for supervision – whether sentencing judge erred in finding exceptional circumstances – whether sentencing judge erred by failing to assess objective seriousness and moral culpability – whether sentencing judge failed to have regard to general deterrence – whether sentence manifestly inadequate – whether residual discretion should be exercised

CRIMINAL LAW – sentence – child sexual assault – redetermination of sentence following grant of special leave by High Court – where the Court was inadvertently misled as to the correct offence provision for one of many offences – where a lesser maximum penalty and standard non-parole period applied – where the Crown does not oppose the imposition of a lower aggregate sentence – indicative and aggregate sentence modestly reduced from original resentence

CRIMINAL LAW – appeal – criminal procedure – temporary stay of proceedings STATUTORY CONSTRUCTION – principle of legality – whether the Independent Commission Against Corruption Act 1988 (NSW) abrogates the accusatorial principle such that compelled evidence given over objection in public hearings before ICAC may be made available to the prosecution prior to charges being laid CRIMINAL LAW – appeal – whether findings of primary judge available on the evidence

CRIMINAL LAW – appeal against sentence – murder – motive – dangerousness – whether sentencing judge erred by considering applicant’s dangerousness increased by inability to identify motive – whether inability to identify motive aggravated sentence imposed – purposes of sentencing CRIMINAL LAW – appeal against sentence – murder – whether manifest excess – not in worst category – aggravating factors – comparative cases

CRIMINAL LAW – Crown appeal against sentence – s 5DA Criminal Appeal Act 1912 (NSW) – where respondent undertook to provide assistance by giving evidence in criminal proceedings in accordance with statement provided to police and was allowed a 7.5% discount in sentence – where respondent’s evidence at trial not in accordance with earlier statement – where material differences as to whole of relevant evidence – whether respondent failed wholly to fulfil his undertaking – whether discretion to vary sentence should be exercised

CRIMINAL LAW – release application – offence against public justice alleged to have been committed whilst on bail for similar offences – whether applicant has shown cause that her detention is unjustified

CRIMINAL LAW – sentence appeal – break enter and steal offences – aggregate sentence – challenge to sentencing judge’s assessment of objective gravity of offences – commencement date of sentence.

CRIMINAL LAW – sentence appeal – murder – applicant was mother of principal assailant – participation in joint criminal enterprise resulting in death of deceased – applicant actively encouraging principal assailant – objective criminality substantial – whether parity principle properly applied – whether level of planning should have been given “real weight” – whether s 21A Crimes (Sentencing Procedure) Act 1999 (NSW) properly applied – need to resentence – no lesser sentence warranted – appeal dismissed.

CRIMINAL LAW – sentence appeal – break, enter and commit serious offence (reckless wounding) – domestic context – applicant and victim living in the same house – applicant breaking into internal room and stabbing the victim – whether sentence manifestly excessive

CRIMINAL LAW – conviction appeal – conspiracy with intention of dishonestly causing loss to Commonwealth – s 135.4(3) Criminal Code (Cth) – whether agreement to lodge false GST returns based on inflated or false inter-group invoices – whether directions to jury concerning conspiracy’s object, means of achievement and overt acts sufficiently clear – whether verdict uncertain CRIMINAL LAW – sentence appeal – conspiracy with intention of dishonestly causing loss to Commonwealth – s 135.4(3) Criminal Code (Cth) – agreement to lodge false GST returns based on inflated or false inter-group invoices – whether findings as to offender’s role adequate

CRIMINAL LAW – appeal against conviction – conspiracy to commit an offence of insider procuring – Criminal Code Act 1995 (Cth) s 11.5 – whether verdict unreasonable – appeal dismissed

CORPORATIONS – voluntary administration – administrator – where secured creditor appointed administrators without compliance with mediation requirement under Farm Debt Mediation Act 1994 (NSW) – whether order validating appointment should be made under s 447A of the Corporations Act 2001 (Cth).

TRUSTS AND TRUSTEES – application for judicial advice – advice sought concerning the management or administration of trust property – Trustee Act 1925 (NSW), s 63

EQUITY AND TRUSTS – claim for beneficial interest in property – extension of caveat under s 74O of Real Property Act 1900 (NSW)

DEFAMATION – excluded corporations – where plaintiff company wholly-owned by another company – not an excluded corporation INJUNCTIONS – where ex parte application granted on basis of apprehended cause of action for defamation – whether injunction should be continued on basis of cause of action for injurious falsehood

REAL PROPERTY – Torrens system – correction of errors or omissions in the Register – review of decision of Registrar-General declining to correct asserted error – whether error of a character that can be corrected – Real Property Act 1900 (NSW) ss 12(1)(d), 121(1)(c) and 122(4).

BAIL – application for bail pending appeal to Court of Criminal Appeal – offender sentenced to imprisonment following trial – bail immediately applied for – need to show special or exceptional circumstances – various factors relied on – non-custodial sentence will not expire before appeal determined – age, health and other factors relied on – prospects of appeal – almost all grounds not taken at trial – appeal prospects no higher than reasonably arguable – special or exceptional circumstances not shown – bail refused

APPEAL - public sector disciplinary appeal under Pt 7 of Ch 2 of the Industrial Relations Act 1996 in this appeal – statutory scheme for disciplinary appeals – presentation of cases in disciplinary appeal – legal burden – evidentiary burden– principles for appeal under s 197B – requirements for notice of appeal – need to state with precision the decisions on questions of law under challenge – limited recourse to factual background – limited appeal – whether grounds of appeal conform with statutory scope for appeal – opportunity to amend not taken – enlargement of grounds in written submissions on argument – validity of delegation – s 163(3) of the Act – civil proceedings – proof of negative – presumption of regularity – Transport Administration Act 1988 – Transport Service – protective jurisdiction – procedural fairness – no evidence ground – insufficient evidence ground – application of Briginshaw rule – exercise of discretion below – neither grounds of appeal nor extended contentions in relation to those grounds made out – judgment reserved in matter before proclamation date for commencement Industrial Relations Amendment (Industrial Court) Act 2016 – proceedings continued in the Supreme Court of NSW for determination by the Industrial Relations Amendment (Industrial Court) Act 2016 – judgment delivered in Supreme Court – appeal dismissed – leave re costs

PRACTICE – plaintiff defaults on several orders in Court-appointed timetable for the preparation of proceedings for hearing – plaintiff represented by barrister acting on a direct access basis without a solicitor – defendants are litigants in person – whether lack of a solicitor is any excuse for the plaintiff’s default in the Court’s timetable - what directions should be given in the circumstances.

PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 (NSW) – application for leave to commence proceedings

CORPORATIONS — Winding up — Application for directions in respect of administrators’ and liquidators’ remuneration – where plaintiffs were initially appointed as administrators and then liquidators of company – where plaintiffs sought orders that they be allowed remuneration – where company was trustee and responsible entity of various entities – where some amounts of remuneration claimed could not be attributed with accuracy to specific trusts – whether administrators’ and liquidators’ remuneration should be paid from trust assets – whether quantum of remuneration claimed should be allowed – whether the remuneration not directly attributable to specific trusts ought to be apportioned equally between relevant trusts – Corporations Act 2001 (Cth) ss 479 and 511 – Trustee Act 1925 (NSW) s 73 – equitable jurisdiction of the Court.

HIGH RISK OFFENDER – serious sex offences – preliminary hearing – interim order sought – nature of risks posed – conditions – construction of s11 of the Crimes (High Risk Offenders) Act - interim supervision order imposed with conditions pressed

PRACTICE AND PROCEDURE – discovery sought by plaintiff by reference to categories – two categories abandoned on day of hearing – two categories pressed at hearing: category (a) transcript of particular private hearings – not relevant to a fact in issue – category (b) documents referred to in Chapter 11 of Report of the Special Commission of Inquiry into the Greyhound Racing Industry in NSW – documents can be obtained more efficiently and cheaply by notice to produce – discovery unnecessary – motion dismissed COSTS – initial orders sought by plaintiff considered to determine appropriate costs order – plaintiff wholly unsuccessful – plaintiff to pay defendant’s costs of motion

SUCCESSION – FAMILY PROVISION – Claim for a family provision order under Part 3.2 of the Succession Act 2006 (NSW) by adult child of the deceased – The Defendant and the Plaintiff both executors of the Will of the deceased to whom Probate granted – The Defendant the only other adult child of the deceased and the principal beneficiary named in Will – Defendant appointed to conduct and to represent the deceased’s estate for the purposes of the proceedings - Actual estate consisting of only real estate in which Defendant has lived for almost all of her adult life – No notional estate - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Whether order for provision ought to be made – Nature and quantum of provision, if any, that ought to be made for the Plaintiff.

CRIME – SENTENCING – parliamentarian – found guilty of wilful misconduct in public office following trial – identifying facts necessarily found by jury – offender intervened in process of lease renewal over premises in which he and family held an interest – jury instructed that to convict had to be satisfied beyond reasonable doubt accused intervened to advance lessee’s interest and not because of any belief that it was in the interests of the electorate – principles relevant to sentencing offender for wilful misconduct in public office – identification of analogue statutory offence – use of maximum penalty for analogue offence as a reference point – absence of cohort of comparable cases – critical factor to determining level of criminality is nature of duty owed and extent of departure from duty owed – offender owed onerous duty – level of offending serious – general deterrence and need for denunciation – dominant considerations – offender’s subjective case – prior good character of lesser weight in cases of wilful misconduct in public office – extra curial punishment in form of adverse publicity – no relevant form of harm to offender from publicity – offender’s medical condition – offender aged 73 – various medical conditions including recent stroke – reduced life expectancy – although offender would not receive same level of care in custody would receive adequate level of care – delay – no delay on the part of prosecutorial or investigative bodies established – other sentencing factors – no prospect of offender reoffending – remorse not shown – offender cooperated in conduct of trial – no sentence other than full time imprisonment could be imposed – special circumstances established – term of imprisonment imposed