Cases and authorities

CORPORATIONS – Winding up – Application to set aside winding up orders – Where documents served at registered office of company, being the address of the petitioning creditor. PRACTICE AND PROCEDURE – Judgment obtained through fundamental irregularity – Right of a party to proceedings before the court to be heard – Whether winding up order should be set aside.

PRACTICE AND PROCEDURE – leave to further amend commercial list statement – question of whether leave should be granted – where granting of leave would cause detriment to other parties - balancing of competing considerations

PRACTICE AND PROCEDURE – whether leave should be granted to file cross-claim out of time – whether funds paid into court should be retained to preserve remedy for possible cross-claim rather than being paid out to defendant – if leave were to be given, whether completion of the court orders should be affected or deferred pending determination of the cross-claim – whether cross-claim has any reasonable prospects of success – whether relief should be granted where applicant is in default of court orders

REAL PROPERTY – s 66G of the Conveyancing Act 1919 (NSW) – appointment of trustees of sale – former husband and wife jointly owned property – whether wife sold to her former husband her equitable share in the property when they separated and divorced – whether payment was made as consideration for wife’s share in property

CONTRACTS – plaintiffs invested in series of hotel businesses due to advice from their accountant and subsequently lost entire investment – accountant allegedly promised to secure loans that the plaintiffs had made to the businesses but did not – plaintiffs allege that if they had been told that loans weren’t secured that they could have taken steps to recover their investment – implied terms – whether contract of retainer with accountant contained certain implied terms about plaintiffs being informed about all financial matters relevant to financial affairs of plaintiff and conflicts of interest – contractual promise of degree of care, skill and diligence – whether accountant breached contractual promise in retainer to exercise degree of care, skill and diligence that it was reasonable to expect of a competent chartered accountant in performing such a retainer – whether there was a promise to secure loans – whether there was failure to secure loans – in what capacity was accountant acting when loans were made and promise to secure the loans was made – whether failure to secure loans and failure to inform plaintiffs constituted contractual breach – causation – whether accountant’s actions caused financial loss to the plaintiffs – whether investment and/or loans could have been recovered in any case – whether cross-collateralisation of hotels caused any financial loss – breach – whether advice to invest constituted breach of contractual promise in retainer to exercise degree of care, skill and diligence – whether accountant should have performed due diligence – whether accountant should have relied on valuations of hotel – whether accountant should have shown plaintiffs business plan for the hotels – whether fourth and fifth defendants breached their contract of retainer for failing to provide ongoing monitoring services to plaintiffs PROFESSIONAL NEGLIGENCE – torts – whether accountant owed the plaintiffs duty of care in advising to invest – in what capacity did accountant provide advice – whether accountant’s advice to invest constituted breach of duty – whether accountant had duty to show plaintiffs business plan for the hotels – whether failure to perform due diligence constituted breach of duty – whether alleged failure to advise plaintiffs to seek independent legal or accounting advice constituted breach of duty – whether existence of conflict of interest constituted breach of duty– whether causation was established in negligence – whether re-investment of funds from successful hotel investment into an unsuccessful hotel investment constituted breach of duty TRADE AND COMMERCE – misleading and deceptive conduct – s 42 of Fair Trading Act 1987 (NSW) – whether accountant’s actions constituted misleading and deceptive conduct – whether accountant made false claims about cash flow of hotels – whether claims about investment in hotels providing good returns were misleading or deceptive – whether there were reasonable grounds for accountant to make representations about the hotels - whether purportedly unfair allocation of equity constituted misleading and deceptive conduct – whether purported misleading and deceptive conduct caused any loss PARTNERSHIP – whether other defendants vicariously liable for actions of third defendant – whether second defendant was a partner in the accountant’s partnership during the relevant period – whether financial arrangements between second defendant and accountant’s firm constituted partnership – whether fourth and fifth defendants were part of the partnership BANKRUPTCY – accountant subsequently became bankrupt – whether accountant released from liability for claims in professional negligence and under Fair Trading Act due to intervening bankruptcy and discharge – whether Supreme Court has jurisdiction to decide the question – whether liability in tort and for misleading and deceptive conduct were provable debts in bankruptcy – s 82 of Bankruptcy Act INSURANCE – defendants seeking indemnification under insurance policy cross-claimed against insurer who denied liability – whether impugned conduct covered under definition of ‘Professional Services’ in the policy – meaning of “Accounting & Bookkeeping” – exclusion clauses – whether insurer’s liability excluded under clause excluding liability for “investment advice” whether defendants’ impugned conduct constituted “investment advice” – meaning of “investment advice” – whether insurer’s liability excluded due to purported non-disclosure of possible liability by the cross-claimants – limitation of liability - whether there was a single “claim” or multiple “claims” that were covered under the policy – whether statutory professional schemes limited liability of plaintiffs where defendants covered by insurance policy - Professional Standards Act 1994 (NSW)

WORKERS COMPENSATION – insurers’ liability for liability of indemnified employer of worker exposed to asbestos – occupational diseases – when liability of insurer taken to arise – construction of s 151AB of Workers Compensation Act 1987 (NSW) – where claimed liability is for injury or disease caused by exposure to asbestos fibre during particular period – whether liability taken to arise when worker last employed in that period – whether primary judge made enquiry into actual employment or nature of employment PRACTICE AND PROCEDURE – costs – whether Bullock order appropriately made – whether unsuccessful party had conducted litigation in some manner that made it fair or appropriate to make a Bullock order – whether order for costs on indemnity basis should be made against unsuccessful party

CRIMINAL LAW – sentence appeal – murder – victim a police officer acting in execution of duty – Crimes Act 1900 (NSW), s 19B(1) – offender offered plea of guilty to manslaughter on basis of substantial impairment – Crimes Act, s 23A – offer not accepted by DPP – DPP conceded applicant had “significant cognitive impairment” within meaning of s 19B(3)(b) – sentence of life imprisonment not mandatory – offender pleaded guilty to murder – further four offences taken into account on Form 1 CRIMINAL LAW – sentence appeal – murder – offender suffering mental illness – delusional disorder shared with mother – “Folie A Deux” – mother a co-offender – mother offered plea of guilty to manslaughter on basis of substantial impairment – plea of guilty accepted by DPP – effect of mental illness – sentencing judge took into account fact that applicant’s condition was “secondary” to that of his mother and overcame condition when separated from mother – error in so doing – considerations irrelevant to assessment of moral culpability – principles relating to sentencing mentally ill offenders CRIMINAL LAW – sentence appeal – circumstances of guilty plea to murder – application of Crimes (Sentencing Procedure) Act 1999 (NSW), s 22(1)(c) CRIMINAL LAW – sentence appeal – disparity between sentence imposed on applicant and sentence imposed on co-offender CRIMINAL LAW – sentence appeal – error disclosed by two grounds of appeal – necessary to exercise sentencing discretion afresh – leave to appeal granted – appeal allowed – applicant re-sentenced

PRACTICE AND PROCEDURE – civil – application by plaintiff to withdraw from representative proceedings following settlement of the plaintiff’s claim – where no other group member has volunteered to become plaintiff – whether it is appropriate to dismiss the proceedings – whether the proceedings should continue as representative proceedings

DEFAMATION – form of imputations – no issue of principle

PRACTICE AND PROCEDURE – where plaintiff’s claim for $200,000 – where plaintiff seeks to have proceedings transferred to the District Court – where defendants resist application by reason of other proceedings in this Court said to arise from similar facts - where defendants not prepared to give undertakings to protect plaintiff from adverse Costs implications of remaining in this court

TRUSTS AND TRUSTEES – judicial advice – construction of will – whether trustee justified in forming opinion that certain items were “personal possessions” – meaning of “personal possessions” – direction by deceased that money be paid on his death – whether trustee justified in forming the view that the direction constituted an acknowledgement of a debt owing by the deceased; CHARITABLE TRUSTS – whether deceased held funds in deceased’s name as trustee for charitable trust – administration of trust – whether trust property can be applied cy-près

PROCEEDS OF CRIME – forfeiture orders sought - granted

PROCEDURE – Judgments and orders – Enforcement of judgments and orders – stay of enforcement – stay pending appeal relevant considerations

PROCEDURE – notice of motion – order seeking Local Court orders to be stayed – order made

CIVIL – application for interim extension order – by consent – interim orders granted

PROCEDURE – settlement approval – orders made

PROCEDURE – costs – successful application for orders setting aside statutory demands – much of the plaintiff’s evidence rejected by the court – costs of obtaining and tendering that evidence excluded from cost awarded to successful plaintiff

REAL PROPERTY – easements – particular easements and rights – passageway subject of 1919 and 2008 easements – whether 1919 easement confers right of pedestrian access in addition to vehicular access – whether temporal restriction on use of 2008 easement limited to vehicular access REAL PROPERTY – easements – extinguishment of easements – similar rights conferred under two easements over passageway – whether earlier easement obsolete by reason of change in character of neighbourhood – whether earlier easement obsolete due to inability to serve or fulfil original purpose or object – whether plaintiffs would suffer substantial injury through extinguishment of earlier easement

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

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

PRACTICE AND PROCEDURE – pleadings – whether reasonable cause of action disclosed – whether pleadings embarrassing and liable to be struck out – whether proceedings properly constituted – whether proceedings out of time – whether statement of claim should be struck out – whether proceedings should be dismissed

CRIMINAL LAW – sentencing – conspiring to do an act in preparation for or planning a terrorist act – Criminal Code 1995 (Cth) ss 11.5 and 101.6 – where plea of guilty entered but facts of offending in dispute – whether offenders were preparing or planning to use a bladed weapon to kill or cause serious physical harm to an individual – consideration of objective seriousness – consideration of subjective circumstances of the offenders – role of deterrence and community protection – whether differential sentences warranted

CORPORATIONS — Oppression claim under ss 232 and 233 of the Corporations Act 2001 (Cth) – where notices of general meetings two companies were issued with the agenda of the meetings being to remove the second plaintiff as director of the companies – where plaintiffs contended that earlier resolutions of the companies had been passed which had the effect that the second plaintiff could not be removed as director – where plaintiffs relied upon the steps to remove the second plaintiff as director and other matters to establish statutory oppression claim – where defendants had made offers to buy out the plaintiffs’ shares in the companies and an offer was still open – whether matters relied upon amount to oppression. CORPORATIONS — Application by plaintiffs for orders for inspection under ss 247A or 290 of the Corporations Act 2001 (Cth) – where evidence did not establish that plaintiffs had been deprived of access to information – whether orders for inspection ought to be made. CORPORATIONS — Membership, rights and remedies — Derivative action — where plaintiffs sought leave to commence proceedings on behalf of two companies against a director of the companies – where issues underlying proposed derivative proceedings could have been but was not canvassed in the oppression proceedings – whether it is in the best interests of companies that the applicant be granted leave in the circumstances.

INTESTACY – burial rights – dispute between de facto spouse and sibling – significance of Aboriginal cultural, spiritual and religious beliefs – ascertaining relevant circumstances

EQUITY – trusts and trustees – applications to the court for advice and authority – application for judicial advice – by NSW executor and trustee of will – where will devises Serbian realty on trusts – where devise of realty governed by Serbian law – where Serbian law does not recognise trusts so that devisee takes absolutely – where will contains substitutional gift to trustees if gift of realty does not take effect – whether gift has taken effect – held, it has and substitutional gift and trusts have no operation – where question affects rights of beneficiaries – whether to give advice – where affected beneficiaries reside in Serbia with devisee of realty and may not wish to be heard – (NSW) Trustee Act 1925, s 63(8), (9) and (10) – judicial advice given

PROCEDURE – personal injury – transfer of proceedings from District to Supreme Court – contested transfer – similar issues in proceedings in different courts - order made

EVIDENCE – application for a view – Evidence Act 1995, s 53 – where plaintiff seeks view of ski resort in Kosciusko National Park – whether it is in the interests of justice for a view to be ordered

PRACTICE AND PROCEDURE – civil – Notice of Motion seeking the striking out of pleadings – where pleadings allege that the issuing of promissory notes was sufficient to discharge a debt – whether pleadings disclose a reasonable cause of action – whether pleadings are embarrassing – whether pleadings are an abuse of process PRACTICE AND PROCEDURE – civil – Notice of Motion seeking summary dismissal of proceedings – where proceedings claim damages for breach of contract on the basis of the issuing of promissory notes – whether proceedings are frivolous or vexatious – whether there is a reasonable cause of action – whether the proceedings are an abuse of process PRACTICE AND PROCEDURE – Notice to Attorneys General – s 78B Judiciary Act 1903 – whether the notice discloses a matter arising out of the Constitution or concerning its interpretation

PROCEDURE – notice of motion – gross costs order sought – order made –

EQUITY – effect of fraudulent concealment – ‘fraud unravels everything’ REMEDY – practical justice – setting aside deed as between plaintiff and defendant – other parties to deed unaffected – whether unfairness to the defendant

CRIMINAL LAW - Sentence – murder - unusual motive

CRIMINAL LAW – Evidence – Where the Crown sought to lead evidence of the relationship between the accused and the deceased – Where some of the evidence was constituted by representations of the deceased – Whether evidence admissible – Evidence admitted CRIMINAL LAW – Evidence – Where the Crown sought to lead evidence of the relationship between the accused and the deceased – Where Crown relied upon statements made by the deceased to his wife – Evidence not admitted CRIMINAL LAW – Evidence – Where the Crown sought to lead evidence of the relationship between the accused and the deceased – Where Crown relied upon statements made by the deceased to a journalist shortly before his death – Whether the statement of the deceased were statements of his feelings, intentions, knowledge and state of mind – Where statements amounted to an expression of an opinion by the deceased as to the intentions of the accused – Evidence not relevant to any fact in issue – Evidence excluded CRIMINAL LAW – Evidence – Where the Crown sought to lead evidence of the relationship between the accused and the principal Crown witness – Where evidence included evidence of the witness and others threatening people on behalf of the accused – Evidence of threats unfairly prejudicial to the accused and excluded – Balance of the evidence admitted

NEGLIGENCE – psychological injury – police officer exposed to traumatic events – officer ultimately diagnosed with PTSD and discharged – primary judge found negligence in failing earlier to diagnose and treat officer’s psychological injury – challenge to findings of duty, breach and causation – nature of duty owed – effect of statutes upon scope or content of duty – requirement of prospective formulation – need to identify a system or general instruction which would probably have prevented psychological injury POLICE – nature and incidents of service of police officers – vicarious liability of State for tortious conduct of police officers

CORPORATIONS — fiduciary duties owed by a director — national company incorporated to promote the interests of shareholders as leading businesses in the fitness training industry — national company operates on a non-profit basis — shareholders operate separate businesses in different states — shareholders meet the expenses of the national company — director has a company in Victoria which is promoted by the national company — director sets up and promotes a business in Victoria which competes with his own company in that State — scope of director’s duties to the national company — whether Shareholders Agreement can be taken into account in determining the scope of fiduciary duties — whether director breached fiduciary duties EQUITY — fiduciary duties — accessorial liability — whether director’s company knowingly participated in the director’s breach of fiduciary duties — whether director’s company received property derived from the director’s breach in the form of goodwill

CRIMINAL LAW – s 5F appeal – indecent assault – where trial judge refused to order separate trials so as to sever hearing of sole count relating to one of the complainants from the remaining counts relating to the other complainant (her sister) – applicant is the complainants’ biological father – trial judge held that tendency evidence sought to be led by Crown was cross-admissible on respective counts – complaint by applicant as to prejudice if “child sex” type allegations “lumped together” with “adult sex” allegations in same trial – leave to appeal granted but appeal dismissed

CRIMINAL LAW – Appeal – Application for extension of time – Where applicant was charged with robbery and detaining without consent – Where the victim had been injured in a motor vehicle accident some years before and was left with permanent brain damage – Where the victim’s evidence attracted a warning under s. 165 of the Evidence Act – Whether the trial judge adequately directed the jury as to the need for caution in determining whether to accept the victim’s evidence, and in determining the weight to be given to it – Where directions were discussed with counsel on two separate occasions before being given to the jury – Where trial counsel took no issue with the directions when they were given – Where the trial judge repeatedly warned the jury about the need for caution in assessing the victim’s evidence having regard to both the victim’s brain damage and his identification of the applicant as one of the assailants – No error established CRIMINAL LAW – Appeal – Application for extension of time – Where applicant was charged with robbery and detaining without consent – Where the victim had been injured in a motor vehicle accident some years before and was left with permanent brain damage – Whether the verdicts of guilty were unsafe and unsatisfactory – Where the acceptance or rejection of the victim’s evidence were matters for assessment by the jury – Ground of appeal not made out

CRIMINAL LAW – appeal against conviction – sexual intercourse without consent and indecent assault – where applicant legally unrepresented on appeal – whether applicant incompetently represented at trial – whether verdicts unreasonable or cannot be supported having regard to the evidence – where credibility and reliability of the complainant challenged at trial – overwhelming Crown case – alternative account put to the complainant was incredible – appeal dismissed CRIMINAL LAW – appeal against sentence – where no submissions made in support of appeal – where sentencing judge carefully reviewed all relevant material – predatory offending against a vulnerable complainant – very little in subjective circumstances calling for any leniency – no specific or latent error identifiable – appeal dismissed

CRIMINAL LAW – conviction appeal – sexual intercourse with child under 10 – judge alone trial - whether trial judge’s verdict unreasonable and not supported by evidence – whether reasonable doubt as to whether incident the subject of the charge in fact related to conduct the subject of an earlier complaint against applicant – whether lack of specificity of complaint gave rise to reasonable doubt – leave to appeal granted but appeal dismissed

CRIMINAL LAW – appeal – appeal against sentence – two counts of aggravated sexual intercourse without consent and one count of detain for advantage – appellant sentenced pre-Muldrock – earlier appeal largely unsuccessful – part 7 application – matter referred to Court of Criminal Appeal – whether sentences affected by Muldrock error – whether sentences manifestly excessive – Crown concedes Muldrock error – need to re-sentence – whether lesser sentence warranted – objective seriousness – progress towards rehabilitation – appellant with untreated mental issues including Post Traumatic Stress Disorder from childhood – accumulation and concurrency – one sentence expired – whether expired sentence relevant for accumulation and concurrency of other offences – special circumstances – appeal allowed in part

CRIMINAL LAW – Sentence – Wounding with intent to cause grievous bodily harm - Appeal by the Crown against the asserted manifest inadequacy of sentence – Where sentencing judge found that the objective seriousness of the offending was slightly below the mid-range – Disparity between that finding and the sentence which was ultimately imposed – Where the sentencing judge gave undue weight to the respondent’s subjective case – Where there was no proper basis for the finding of special circumstances which was made in the respondent’s favour – Sentence manifestly inadequate CRIMINAL LAW – Sentence – Appeal by the Crown against the asserted manifest inadequacy of the sentence – Where manifest inadequacy was established – Whether the Court should exercise its residual discretion and not intervene to re-sentence the respondent – Where the non-parole period which was imposed had long since expired – Where the parole period was about to expire – Where the respondent had complied with the conditions of his parole and had made progress in his rehabilitation – Residual discretion exercised – Crown appeal dismissed CRIMINAL LAW – Sentence – Practice and procedure – Preferable approach to be taken by a sentencing judge when a sentence is to be backdated

CRIMINAL LAW – Sentence – Appeal – Applicant charged with recklessly inflicting grievous bodily harm and multiple counts of having sexual intercourse without consent – Where the offending occurred in circumstances where the applicant and the victim were in a relationship – Where the applicant lived at the premises where the offending occurred and was therefore not an intruder – Where the premises were also the home of the victim – Where the sentencing judge found that the offending was aggravated as a consequence of occurring in the home of the victim – No error on the part of the sentencing judge in reaching that finding CRIMINAL LAW – Sentence – Appeal – Applicant charged with recklessly inflicting grievous bodily harm and multiple counts of having sexual intercourse without consent – Where the sentencing judge found that the offending was aggravated by being committed in the presence of a child – Whether the sentencing judge erred in double counting that circumstance – No error on the part of the sentencing judge

CRIMINAL LAW – Sentence – Crown appeal against inadequacy – Two counts of sexual intercourse with person under age of 10 years – Respondent communicated apology to victim prior to any complaint being made to police or disclosure to family – Where sentencing judge imposed a non-parole period of 18 months imprisonment with an additional term of 18 months in each case – Where sentences were ordered to be served wholly concurrently -– Whether sentencing judge erred in failing to partially accumulate the sentences – Whether sentencing judge erred in having regard to the respondent’s protective status in custody – Whether the sentences imposed were manifestly inadequate – Grounds of appeal established – Respondent resentenced – Observations as to the treatment by the sentencing judge of the issue of the duration of offending – Observations as to the finding of the sentencing judge that special circumstances were established justifying a variation between the statutory ratio between the non-parole period and the head sentence

CRIMINAL LAW – sentence appeal – police pursuit, resist police, drug and damage property offences – aggregate sentence of 4 years imprisonment (after 25% early guilty plea discount) not manifestly excessive

CRIMINAL LAW – Sentence – Appeal – Crown appeal arising from a breach by the respondent of an undertaking to assist the authorities by giving evidence – Where respondent appeared for sentence in relation to multiple counts of offending – Undertaking given by the respondent to assist the authorities in three separate matters – Where sentencing judge reduced the respondent’s sentence on account of that undertaking - Where one of the matters which was the subject of the undertaking involved the respondent giving evidence for the Crown in accordance with a statement he had given to police – Where the respondent’s evidence was at odds with parts of that statement – Breach of undertaking established – No basis upon which the Court should exercise its residual discretion not to intervene – Where the respondent’s sentence had expired - Respondent sentenced to imprisonment for the period equating to the amount of the discount applied by the sentencing judge – Observations as to the importance of adhering to undertakings

SENTENCE – appeal against sentence – whether sentence manifestly excessive – Drug Court Act 1998 s 5A – Drug Court Regulation 2015 reg 5 - whether appellant an “eligible convicted offender” – where appellant referred to the Drug Court for determination of whether he should be the subject of a compulsory drug treatment order

CRIMINAL LAW – murder – trial by judge alone – circumstantial case – cause of death unable to be clinically established – whether circumstantial evidence established death as a result of insulin injection – verdict of guilty.

WILLS, PROBATE AND ADMINISTRATION – Construction – Whether “descendants” and “children” included step-grandchildren – Whether rectification available out of an abundance of caution – Succession Act 2006 (NSW), s 27

REOPENING – COSTS – no question of principle

EQUITY – trusts – judicial advice – section 63 of the Trustee Act 1925 (NSW) – principles relating to judicial advice – the necessity of judicial advice