Cases and authorities

ADMINISTRATIVE LAW – Judicial Review – Plaintiff one of six accused facing a charge of conspiring to do an act in preparation for a terrorist act or acts – Where plaintiff had engaged a solicitor shortly after his arrest in December 2014 – Where that solicitor had acted for him absent a grant of legal aid for almost two years – Where the solicitor was not a member of the relevant panel of legal practitioners created by the defendant for the purposes of assignment of grants of legal aid in complex criminal cases – Where the guidelines promulgated by the defendant provided that exceptional circumstances were required to be established before an assignment of a grant of legal aid in such a matter could be made to a practitioner who was not a member of the relevant panel – Where the plaintiff had expressed a preference to be represented at his trial by his present solicitor – Where the defendant assigned the grant of legal aid to another solicitor – Whether the defendant failed to take relevant matters into account in reaching that decision – Whether the defendant’s decision was unreasonable in all of the circumstances

CORPORATIONS – winding up – statutory demand – application for order setting aside – primary judge dismissed such application based on finding of lack of genuine dispute about the existence of the debt the subject of the demand – creditor alleged indebtedness arising from payment by way of loan – company alleged a different characterisation of the payment – where the primary judge regarded company’s contention as to characterisation as inherently implausible – several considerations identified in support of that conclusion – whether all such matters so devoid of plausibility as to require no further investigation

CONTRACTS – penalties – contract for commercial loan facility – whether default interest payable when monthly payments were not made within time constituted a penalty – where question should be considered on a forward-looking basis at the date each contract was made - whether default interest is presumed to be a penalty – whether default interest was wholly extravagant or unconscionable compared to the greatest amount of loss that could possibly be foreseen to flow from a breach – whether purpose of default interest was to punish non-compliance

TORT – nuisance – water runoff from golf club onto neighbour’s property – whether cracking to walls and roof sag resulting from expansion / contraction of reactive clay was caused by water from defendant’s premises – whether damage is structural or cosmetic DAMAGES – nuisance – whether damage was structural or cosmetic – damages for underpinning – where no evidence of that cost – damages for demolition and rebuilding – where no evidence of that cost EXPERT EVIDENCE – admissibility of expert evidence – whether expert evidence satisfies requirement for admissibility under s 79 of Evidence Act 1995 (NSW) – where absence of demonstrated reasoning process – whether it was open to the primary judge to receive that evidence – whether expert evidence supported claims for damages

APPEAL – applicant to show cause why his application for leave to appeal should not be dismissed – failure to file amended summary of argument – issue of subpoenas – extension of time to file documents

CRIMINAL LAW – appeal - sentencing - crown appeal - operate aircraft in manner reckless as to endanger life and endanger a person – respondent flew plane below minimum level prescribed – plane hit power lines – one passenger killed and other seriously injured – respondent sentenced to imprisonment but immediately released on recognisance – whether sentences manifestly inadequate – failure of sentencing judge to assess objective seriousness – taking into account irrelevant consideration of maximum penalties for all offences – significance of general deterrence – whether adequately dealt with by suspended sentence – whether sentences should have been concurrent – whether residual discretion should be exercised – sentences manifestly inadequate – re-sentence EVIDENCE – application to adduce further evidence on appeal – whether fresh evidence – evidence available at time of sentence – whether miscarriage of justice

DEFAMATION – pleadings – objections to imputations – imputation that the plaintiff had been detained on suspicion of murder – failure to identify the holder of the suspicion – where matter complained of did not provide that detail – whether imputation bad in form

PROCEDURE - costs - security for costs- plaintiff is corporate trustee and impecunious but asserts that impecuniosity caused by defendants and that proceedings will be stultified if security ordered. HELD: That plaintiff failed to establish by “straightforward and unambiguous evidence” that its impecuniosity or that of the previous corporate trustee was caused by defendants. Insufficient evidence of the financial position of identified potential beneficiaries (one of whom is the sole director and shareholder of the plaintiff) to support stultification; lack of satisfaction that claims brought are bona fide claims with a reasonable prospect of success.

PRACTICE AND PROCEDURE – Application for removal of second Plaintiff’s tutor – UCPR rule 7.18(1)(b) - Whether tutor has an interest in the proceedings adverse to that of the person under legal incapacity – No adverse interest established

PRACTICE AND PROCEDURE – proceedings stayed by earlier order pending payment to defendant of outstanding costs – application by alleged assignee of plaintiff’s cause of action to be substituted as plaintiff without first paying those costs – whether such application competent while stay subsists

PROCEDURE – dismissal of proceedings – failure of plaintiff to appear – r 13.6 UCPR

PROCEDURE – service of originating process – service outside Australia – claim for possession of land - where defendant bankrupt – where trustee does not oppose claim for possession – where defendant agrees to form of service proposed

CRIMINAL LAW – Application under s. 78 of the Crimes (Appeal and Review) Act 2001 – Whether there appeared to be doubt or question as to a mitigating circumstance – Whether it appeared that a sentence imposed upon the applicant was infected by Muldrock error – Application granted – Matter referred to the Court of Criminal Appeal

TRUSTS – testamentary trust – application by trustee for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) as to proper construction of the trust – application by trustee for further powers under s 81 – whether such powers necessary in light of advice given

CRIMINAL LAW – Crimes (High Risk Offenders) Act 2006 – application for extended supervision order – final hearing – defendant poses unacceptable risk of committing serious sex offence – consideration of factors in s 9(3) of Crimes (High Risk Offenders) Act 2006 – extended supervision order made for maximum period

ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 – certificate issued by review panel of the Medical Assessment Service of Motor Accidents Authority - whether decision vitiated by jurisdictional error – question of adequacy of reasons – asserted failure to address evidence

PROCEDURE – notice of motion – order seeking declarations under s 73 of the Civil Procedure Act 2005 (NSW) in relation to the claimed settlement of the proceedings - whether there was a binding contract as to the claimed settlement – applicable principles – claimed contractual documents and surrounding circumstances – whether communications evidenced parties’ intention to enter binding contract – whether communications evidenced an intention to be immediately bound – binding contract entered – whether alleged agreement was void under the Legal Profession Act 2004 – accord and satisfaction – declaration sought made

PRACTICE AND PROCEDURE – civil – appeal from Local Court decision – Local Court Act ss 39, 40 and 41 – whether Magistrate erred in law in refusing to allow the plaintiff to call a witness and tender certain documents – whether Magistrate erred in law in his findings of fact – whether Magistrate erred in law in finding that there was no trespass to the plaintiff’s land

PROCEDURE - Subpoenas and notice to produce at hearing – Setting aside or other relief – Application to set aside dismissed by registrar – Application for review dismissed PROCEDURE – Inspection of property - Nature and scope of examination of computer – Forensic testing of authenticity of disputed email - Whether inspection order exceeds what is reasonable

LANDLORD AND TENANT – residential tenancy agreement – where police executing search warrant found multiple mobile phones, a substantial quantity of cash, scales and balloons in tenant’s third floor apartment – where tenant shared apartment with husband – where husband charged with supplying heroin in communal sixth floor laundry – landlord sought order terminating tenancy agreement pursuant to Residential Tenancies Act 2010 (NSW), s 91 – whether tenant intentionally or recklessly caused or permitted use of residential premises for purposes of sale or supply of prohibited drug APPEAL – appeal “on a question of law” – whether appellate court entitled to determine appeal by reference to decisions necessarily implicit in Tribunal’s findings – Civil and Administrative Tribunal Act 2013 (NSW), s 83(1) STATUTORY CONSTRUCTION – Residential Tenancies Act 2010 (NSW), s 91(1) – whether residential premises used for unlawful purposes WORDS AND PHRASES – “use” – Residential Tenancies Act 2010 (NSW), s 91(1)

PRACTICE AND PROCEDURE – Crown appeal under s 5F(3A) Criminal Appeal Act (NSW) – where trial judge excluded evidence seized pursuant to search warrants under s 138 Evidence Act 1995 – whether ruling eliminates or substantially weakens the prosecution’s case – where first and second respondents contend that the evidence is not capable of making out the elements of the offences charged – where notice imposing rates of dumping duty affected by jurisdictional error – whether collateral challenge appropriate SEARCH WARRANTS – where search warrant in relation to ‘evidential material’ issued pursuant to s 198 Customs Act 1901 (Cth) – subsequent decision to proceed with criminal offences – where search warrant under s 3E Crimes Act 1914 (Cth) issued in relation to documents containing those communications and executed at the premises of the CDPP - whether evidence improperly or illegally obtained – whether trial judge erred in interpretation of s 203R Customs Act - whether trial judge erred in excluding evidence pursuant to s 138 Evidence Act 1995 (NSW) WORDS AND PHRASES – “obtained”

CRIMINAL LAW – Application for leave to appeal against sentence – Whether sentencing judge erred in failing to have regard to evidence of the applicant’s limited intellectual capacity and impaired cognitive functioning – Where there was no evidence of any nexus between those matters and the offending – Ground of appeal not made out – Leave to appeal refused CRIMINAL LAW – Application for leave to appeal against sentence – Where matters sought to be relied upon were not put to the sentencing judge – Application for leave to appeal against sentence not the occasion for the revision and reformulation of the case presented at first instance

CRIMINAL LAW – conviction appeal – murder – where applicant claimed he did not intentionally inflict knife wounds but that deceased sustained wounds accidentally in course of struggle with applicant – whether judge erred in not leaving unlawful and dangerous act manslaughter or “second limb” of self-defence to jury where applicant did not conduct case on either of those bases – whether judge erred in not leaving provocation to jury – whether judge erred in directions on circumstantial evidence, flight as consciousness of guilt or onus and standard of proof – whether prejudicial comments or breach of rule in Browne v Dunn by prosecutor caused trial to miscarry – leave to appeal granted on two grounds – appeal against conviction dismissed CRIMINAL LAW – sentence appeal – complaint as to failure of judge to take into account applicant’s facilitation of the administration of justice – whether judge erred in permitting and taking into account evidence of applicant’s alleged prior misconduct – whether judge erred in not taking into account applicant’s mental illness – leave to appeal against sentence granted but appeal dismissed

PRACTICE AND PROCEDURE – parties – standing - plaintiff’s standing to bring proceedings – where plaintiff seeks to challenge costs assessments – where plaintiff not a party to underlying proceedings or costs orders – where company that was such a party has itself instituted proceedings to challenge those costs assessments

CORPORATIONS — Winding up — Application to set aside creditor’s statutory demand – where defendant had issued plaintiff a creditor’s statutory demand based upon an invoice purportedly due under a certain contract – where plaintiff contended that invoice was not supported by the contract in circumstances where invoice had been issued prior to the execution of the contract – where plaintiff contended that there was a genuine dispute as to when the contract required payment – where plaintiff contended parties had reached agreement that no further amount would be due under the contract – whether genuine dispute arises as to the debt specified in the statutory demand.

CONTRACT – agreement made in California by deceased to maintain life policies for benefit of former wife and to leave to two of his daughters half of his interest in a hotel business in New South Wales – agreement governed by law of California – where deceased allowed policies to lapse – whether former wife entitled to damages against deceased’s estate – where deceased made will inconsistent with promise in Californian agreement and which only gave benefit to daughters of share in the business after death of deceased’s de facto partner; PRIVATE INTERNATIONAL LAW – whether Court should presume law in California the same as in New South Wales; EQUITY – trusts – constructive trust – whether former wife held benefit of Californian agreement on trust for deceased’s daughters – whether former wife able to enforce agreement that agreement against deceased’s estate on behalf of the daughters; EQUITABLE REMEDIES – whether constructive trust should be imposed over deceased’s share in the business in favour of daughters pending taking of an account

PROPERTY — Alienation of property — where defendant was corporate trustee that held properties on trust for a discretionary trust – where defendant as trustee of the discretionary trust had significant tax debts – where defendant executed declarations of trust by which it declared it held the relevant properties on trust for certain land tax unit trusts and the defendant received units in the unit trusts – where defendant as trustee of discretionary trust redeemed units for cash and subsequently paid monies to a third party – where Australian Taxation Office alleged declarations of trust were void under s 37A of the Conveyancing Act 1919 (NSW) – whether there was intent to defraud creditors – whether declarations of trust constituted an “alienation of property” in the relevant circumstances. EQUITY – Declaratory relief – where corporate trustee sought declarations from the Court that it holds each of the relevant properties on trust for the land tax unit trusts free from any interest in favour of the corporate trustee as trustee of the discretionary trust – whether declarations sought inconsistent with corporate trustee’s right of indemnity over trust assets – where liquidator to be appointed to corporate trustee may have grounds to set aside transactions – whether declarations should be made. TRUSTS AND TRUSTEES — Corporate trustee in liquidation — where corporate trustee sought orders under s 70 of the Trustee Act 1925 (NSW) removing it as trustee of certain land tax unit trusts and appointing other corporate trustees in its place – whether orders ought be made. CORPORATIONS — Winding up — where Australian Taxation Office (“ATO”) applied to wind up company in circumstances where there was a debt in respect of GST liability and a judgment debt against company in respect of other tax debts – where company applied to the Administrative Appeals Tribunal (“AAT”) to review the ATO’s decision to reject the company’s objection to taxation assessments – where no evidence of substance adduced as to likelihood of success of AAT proceedings – whether company is insolvent – whether winding up orders ought be made.

TAXES AND DUTIES – proceedings relate to the defendant’s liability for director penalties in respect of Pay As You Go (PAYG) withholding amounts – Two Director Penalty Notices (DPNs) issued in respect of the PAYG amounts owed by the Company to the ATO – As to the giving of notice under s 269-25 of Schedule 1 of the Taxation Administration Act 1953 (TAA53) the defendant did not admit receiving the first DPN – Pursuant to ss 255-45 and 269-50 of the Taxation Administration Act 1953, the plaintiff does not need to satisfy the Court that a notice was actually received by the defendant so long as the Court is satisfied that a stamped envelope with the DPN was placed in a post box with the correct address – DPNs alleged to be defective as the Notices failed to explain the circumstance in which the penalty will be remitted and misstated the main ways in which the penalty may be remitted, namely, “if the company is being wound up” – Notices sufficiently stated relevant circumstance and ways in which the penalties may be remitted

ADMINISTRATIVE LAW – judicial review – workplace injury – challenge to medical assessment by appeal panel on review of approved medical specialist – prior assessment and appeal – where different assessment by approved medical specialist from assessment by first appeal panel – whether second appeal panel erred in understanding and exercising its jurisdiction – whether errors on the face of the record – errors in verbiage leading nowhere and not resulting in different outcome – approach to review of reasons – whether reasons adequate – obligations of specialist and appeal panel - whether need for specialist and appeal panel to explain differences from earlier assessments – whether decision so wrong as to be perverse – no error shown

COSTS – claim for declaration that contract validly rescinded – success in proceedings below but each party ordered to pay own costs – application of UCPR, r 42.34 – whether continuation of proceedings in Supreme Court warranted when District Court did not have jurisdiction to make declaration – whether the ground of denial of procedural fairness had sufficient prospects of success where the issue of costs was decided on the papers – whether there had been any substantial injustice resulting from the orders made by the primary judge – if Court of Appeal re-exercised any discretion, whether there was any real prospect that a substantial order for costs would have been made in favour of the applicant – whether the re-exercise of the court’s discretion would result in a different outcome concerning the applicant’s request for a Bullock order

CONTRACTS – general contractual principles – formation of contract – principal and agent – ratification – plaintiff alleged that a daughter made a contract representing that she acted with the authority of her mother – finding of lack of authority not challenged – whether circumstances such that subsequent acts of mother could constitute ratification – not shown that daughter’s conduct was contractual in nature – requirements for ratification not met

EQUITY – where appellant being defrauded by a third party – where respondent believed appellant being defrauded – where appellant warned by respondent – whether appellant (borrower) was at a special disadvantage in her dealings with the respondent (lender) – whether interest rates on short term loans unconscionable. PENALTY – whether default interest rate a penalty.

TRADE PRACTICES / CONTRACTS – appeal from decision of primary judge refusing to set aside share sale agreements and make award for damages – shares in third and fourth respondents sold to fifth respondent – where agreements allegedly vitiated by misleading and deceptive conduct in failing to disclose purported GST liability – whether representations were made as to GST liability of company – where representation reliant upon warranties in agreement – whether such representations, as warranted, were made – whether the warranties could be severed from agreement –whether representations, if made, were false – effect of A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 38-10(5) – whether company not liable for GST – whether representations made as to liability of company to pay employee and redundancy entitlements – cross-appeal from decision of primary judge that option for sale of a property had not been validly exercised – where option for sale had been exercised without payment of a deposit as contractually required – whether contractual right to vary price extended to capacity to waive requirement for payment of a deposit PERSONAL PROPERTY – alienation of personal property – assignment of causes of action – where causes of action derive from Competition and Consumer Act 2010 (Cth) and Australian Securities and Investments Commission Act 2001(Cth) – whether s477(2)(c) of Corporations Act enables assignment of otherwise unassignable cause of action

CRIMINAL LAW – sentencing – aggregate sentences – error in approach to indicative sentences – armed robbery – multiple offences – sentences manifestly inadequate – exercise of discretion on re-sentencing so as to extend total terms but maintain non-parole period

CRIMINAL LAW – Appeal against sentence – failure to fix non-parole period for standard non-parole offence – failure to address effect of Form 1 offences on certain counts – resentence to occur – no less severe sentence warranted – appeal dismissed.

CRIMINAL LAW – proceeds of crime – restraining order

CRIMINAL LAW – proceeds of crime – restraining orders

CORPORATIONS – Membership, rights and remedies – Members’ remedies and internal disputes – Meetings – Calling of extraordinary general meeting chaired by independent Court-appointed chairman

FUNDS IN COURT – solicitor’s lien – application for payment out – whether interest rate on funds in court unfairly disadvantageous to defendant – whether court should quantify nominated heads of costs claimed by the solicitors – whether costs assessor better placed to do so – where an order made for payment out of funds in court into controlled monies account pending completion of costs assessment procedure

COSTS – assessment of costs – application for assessment after 12 months – application more than six months out of time - Legal Profession Act s 350(5) – whether it would be just and fair to extend time – costs disclosure advising of time for assessment – multiple tax invoices with notation of time for assessment – all tax invoices paid - solicitors’ retainer terminated during litigation – new solicitors immediately retained – litigation completed – demand for repayment of some costs after 12 month period – threat of assessment application - matters for consideration – knowledge of clients of 12 month period – no satisfactory explanation for delay – whether prejudice to solicitors – application refused

PRACTICE AND PROCEDURE — preliminary discovery — plaintiff obtained order for preliminary discovery — order for discovery of certain classes of documents subsequently stayed and discovery of a more limited class of documents ordered — plaintiff contends that it requires additional discovery to enable it to decide whether or not to commence proceedings — whether the court has jurisdiction to make an order for the further production of documents — applications for preliminary discovery are interlocutory — plaintiff is not an unsuccessful party seeking to set aside, vary or discharge an interlocutory order — documents produced at the suggestion of the defendant as being sufficient for the plaintiff’s purposes found to be insufficient — it is open to the plaintiff either to seek a lifting of the stay of the original orders for preliminary discovery or an order for preliminary discovery of a more limited but different class of documents — preliminary discovery ordered with respect to further categories of documents

TAXES AND DUTIES — land tax — Land Tax Management Act 1956 s 10AA — land owned by a company engaged in the business of property development — land used for the grazing and breeding of cattle — whether use of land for the grazing of cattle is the dominant use of land — use of land for residential development not commenced — use of land for the grazing of cattle the dominant use of land — whether the primary production use of land has a significant and substantial commercial purpose or character — financial return of cattle grazing small or negative — cattle grazing undertaken with only minimal time from the operator — cattle grazing operation small in size — no resources devoted to improving the pastures or stockyards of the land — grazing of cattle on the land does not have a significant and substantial commercial purpose or character

CRIMINAL LAW – detention application sought by Crown after guilty verdicts returned on 24 counts – prospect of custodial sentence imposed on offender – detention application granted – bail revoked

DEFAMATION – pleadings – requirement to specify alleged defamatory meaning of matter complained of with clarity so as to avoid confusion at trial and at the interlocutory stage – use of figurative language in pleaded imputations – rhetorical imputations – court’s unhappy duty to prefer clear delineation of the issues for trial to loveliness of expression COSTS – where pleadings amended after new counsel briefed – appropriateness of ordering that costs thrown away by reasons of amendment be payable forthwith – where defendants facing financial hardship due to costs incurred in proceedings to date

TRUST AND TRUSTEES – application for advice – where testatrix made informal changes to her will by deleting a clause and adding a manuscript provision – where that informal will admitted to probate – whether trustee justified in concluding that testatrix intended to revoke deleted bequest and that remaining bequest be paid to current entity conducting the nominated activity

TRUSTS AND TRUSTEES – application for judicial advice – bequest in will to charity at nominated location – where charity conducted by unincorporated association at date of will and later by incorporated association – charity no longer operative at location mentioned in the will – where further bequest to successors of nominated charity

COSTS – costs of cross claim– second cross defendant sought indemnity costs – whether the cross claim had no chance of success – cross claim formulated on a mistaken basis – however, the second cross defendant appreciated this mistake – HELD cross claimant to pay the second cross defendant’s cost on the ordinary basis

CORPORATIONS — Winding up — Application by plaintiff to wind up company on grounds of insolvency – where company applied under s 459G of the Corporations Act 2001 (Cth) to set aside creditor’s statutory demand issued by the plaintiff – where the Court dismissed application to set aside the statutory demand although that order was the subject of a stay – where company relied upon a deed of credit facility and a deed of indemnity provided by its director as evidence of solvency – where the deed of credit facility provided that any sum owed by the company would be repayable on demand – where deed of indemnity in effect provided that the director agreed to indemnify the company only if the company’s board invoked the indemnity – whether the application to set aside the statutory demand was “finally determined or otherwise disposed of” for the purposes of s 459F(2)(a)(ii) of the Corporations Act when the orders dismissing the application were made or when the stay of the orders expired – whether presumption of insolvency available under s 459C(2)(a) of the Corporations Act 2001 (Cth) – whether company is insolvent in fact – whether the Court should exercise discretion not to wind up company despite finding company is insolvent in fact.

APPEAL – judgment in supervisory jurisdiction – challenge to refusal of relief – limits of supervisory jurisdiction – merit review properly eschewed – discretionary refusal of relief where alternative remedies available – claims for injunctions to prevent future conduct CHILD WELFARE – judicial review of decisions of Secretary – judicial review of orders of Children’s Court – whether children of applicants at risk – challenge to formation of opinions – whether process legally flawed

PRACTICE – interlocutory appeal from decision to refuse amendment and refuse to vacate trial – defamation – plaintiff sued on imputations that he had been dismissed for forging documents – documents produced on subpoena capable of supporting defence of justification – deficiencies in plaintiff’s discovery – prejudice to plaintiff arose from vacation of trial rather than amendment – appeal allowed in part granting leave to amend – defendants’ application to vacate trial refused – plaintiff’s application to split trial reserved for consideration by trial judge