Cases and authorities

DEFAMATION – motion to strike out defence and particulars – justification – necessity to know at time of publication the basis for the material. DEFAMATION – discussion on need for proportionality – pleadings to contain material facts and particulars, not evidence. PRACTICE AND PROCEDURE – unavailability of fourth defendant who is witness – significance of evidence to be adduced weighed against delay. PRACTICE AND PROCEDURE – amendment to defence at eleventh hour – necessary delay – not central issue – case management.

SUCCESSION – WILLS PROBATE AND ADMINISTRATION – Probate granted of two different Wills of deceased - Application for the revocation of each grant of probate – No dispute as to validity of earlier Will of the deceased - Whether revoked by later Will – Whether later Will a valid Will – Whether the signatures alleged to be that of the deceased on later Will were forged - Whether deceased knew and approved contents of the later Will – Court not satisfied of validity of the later Will.

DEEDS – construction and interpretation of deeds – deed entered into by way of compromise of costs orders – obligation on husband to pay the compromised sum – no payment required to be made by wife – whether wife’s release was conditional on husband’s performance under the deed – whether accord executory or accord and satisfaction with conditions – wife released on execution of the deed COSTS – assessment – registration of certificate – taken to be a judgment of the court – whether assessor can decide dispute concerning costs agreement – whether assessor can decide other disputes JUDGMENTS – setting aside and varying – whether judgment obtained by registration of cost assessment certificate can be set aside or varied – nature of such a judgment - whether r 36.15 UCPR available to set aside such a judgment – whether judgment entered against good faith – effect of deed of release on costs assessment and judgment – inherent power of court - whether judgment should be stayed

TAX — payroll tax — businesses grouped for payroll tax purposes by operation of subs 106I(6) of the Taxation Administration Act 1996 and s 72(6) of the Payroll Tax Act 2007 — person with controlling interest in grouped businesses who could benefit from discretionary trusts as a result of the trustees exercising some power or discretion disclaimed his right as a discretionary object on becoming aware of the grouping — whether the disclaimer meant that subs 106I(6) of the Taxation Administration Act 1996 and s 72(6) of the Payroll Tax Act 2007 had no application for the tax years in question — whether a person who may benefit from a discretionary trust as a result of the trustee exercising some power or discretion may disclaim their right as a discretionary object — held they can — whether a person who may benefit from a discretionary trust as a result of the trustee exercising some power or discretion may disclaim their right as a discretionary object in the absence of valuable consideration — held they can — whether the disclaimer of a person who may benefit from a discretionary trust as a result of the trustee exercising some power or discretion operates retrospectively — held it does — notices of assessment revoked

ADMINISTRATIVE LAW – judicial review – appeal to District Court against Local Court conviction – District Court judge dismissed appeal but relied on video files included in material tendered but which were not in evidence in Local Court – neither party directed judge’s attention to additional video files – breach of procedural fairness conceded – District Court decision quashed and matter remitted COSTS – successful applicant’s costs – whether costs should follow event – where applicant’s success only partial – where respondent made prompt concessions – where both parties contributed to error in court below – no order as to costs

CORPORATIONS — Winding up — Conduct of liquidation — Meeting of creditors – Application under Corporations Act 2001 (Cth) ss 439A to extend convening period for second meeting of creditors – where application made after end of convening period – where deed of company arrangement proposed at end of convening period – whether extension would be in best interests of creditors

PROCEDURE — Costs — Application by plaintiff for costs of winding up application – where plaintiff commenced winding up application against the defendant but was later substituted by another creditor – where plaintiff sought costs order against defendant – whether plaintiff was almost certain to have succeeded if winding up application had been fully determined such that it should be entitled to costs orders.

CRIMINAL LAW – evidence – documents tendered on behalf of the accused – relevance – documents rejected on grounds of relevance

EQUITY – Equitable estates and interests – Claim to funds paid into Court by mortgagee – UCPR Part 55 r 55.11 ESTOPPEL – Issue estoppel — Court had determined priorities – Whether defendant could now assert no monies owed to which plaintiff’s priority claim attached

PROCEDURE – stay pending appeal – interlocutory injunction pending appeal – arguable grounds assumed – balance of convenience – resolution by undertakings

PROFESSIONAL NEGLIGENCE – causation – solicitor breaches duty to client lending money at very high interest rates on the security of a second mortgage – solicitor fails to conduct search of ASIC Register prior to drawdown – solicitor fails to detect that receivers have been appointed to the borrower – whether primary Judge erred in concluding that the Lender would have proceeded even if it had known of the appointment of receivers

APPEALS – application for leave to appeal – pleadings stuck out ‑ where summons filed out of time – whether matter raises issue of principle, public importance or injustice

PROCEDURE - application for pro bono assistance –applicant in custody – limited access to legal resources in prison – application refused

CIVIL LAW – high risk violent offender – serious violence offence – no dispute as to application of Act or conditions of order – preliminary order made

SUBMITTING APPEARANCE – Application by second defendant for leave to file affidavit from managing director of sixth defendant – sixth defendant filed submitting appearance – whether attempt to circumvent UCPR 6.11 – whether evidence sought to be adduced potentially relevant to first and second defendants’ case – leave granted

CRIMINAL LAW – revocation of non-publication orders – public interest in open justice – not necessary to continue orders – supression orders – identity of informants witnesses and undercover police officers – preducie to administraiton of justice – release of exhibits – CCTV footage of courtroom – violent incident in dock – evidence not tendered in trial – jury not made aware of incident – incident able to be observed by any person in court at the time – practice note generally allowing access to third parties to court file – disc tendered in contempt proceedings – exhibit released to media

REAL PROPERTY – Torrens title – Terms Contract to purchase property – Incomplete evidence as to dealings between purchaser and registered proprietor – Whether available evidence supports inference that purchaser performed obligations under contract – Whether purchaser entitled to obtain title to the property REAL PROPERTY – Torrens title – Unregistered interests – Possessory title – Whether cross-claimant’s use of property amounted to adverse possession – Whether cross-claimant formed view that plaintiff had abandoned property and had no right to give permission to occupy – Whether cross-claimant’s use of property was pursuant to the consent or permission of plaintiff

PRACTICE AND PROCEDURE – civil – application to set aside default judgment – possession of land - whether applicant has an arguable defence – whether there is an explanation for delay – whether in the interests of justice to set aside default judgment

CONTRACT — contract for sale of business and lease of premises — contract for sale of business required payment of a substantial deposit on the making of the contract — lease required rent to be paid in advance — defendants took possession of the premises and commenced operating the business on providing post-dated cheques for the required deposit and first month’s rent — contract for sale of business not exchanged — cheques for deposit and rent not honoured when presented by the plaintiffs — defendants not entitled to rely on failure of condition for exchange — plaintiffs retook possession of the business — whether defendants entitled to damages — whether plaintiffs agreed to permit defendants to retain possession of the business on payment of a weekly sum with payment of the purchase price to be made after a year — plaintiffs agreed to a short extension of time for the required deposit to be made — defendants failed to pay deposit when required — defendants had no continuing right of possession — defendants not entitled to damages — whether plaintiffs entitled to contract measure of damages and rent — defendants repudiated the agreement by failing to pay deposit — agreement for sale and lease terminated when plaintiffs accepted defendants repudiation of the agreement by retaking possession when defendants failed to make payment of the deposit — damages to put plaintiffs in the same position as they would have been had the contract been perform not claimed nor proved — mesne profits not claimed — plaintiffs entitled to ten precent deposit and one month’s rent less amounts already received

ADMINISTRATIVE LAW – judicial review – assessment by medical assessor – application under s 62 Motor Accidents Compensation Act 1999 for further referral – “additional relevant information” – video surveillance of claimant subsequent to assessment – claimant asserted to be engaging in surfing activities inconsistent with findings on assessment – refusal by proper officer to refer for further assessment – whether proper officer viewed video or relied on summary – whether the video and other material was additional relevant information – whether it was capable of a having a material effect on outcome of previous assessment – whether proper officer’s reasons demonstrated error or legal unreasonableness – whether proper officer performed her statutory task – errors demonstrated – whether any utility in quashing decision and referring matter for reconsideration – claimant assessed at 25% WPI – additional information affected assessments totalling no more than 14% - outcome not capable of having a material effect on the outcome – summons dismissed

CRIMINAL LAW – s 5F appeal – trial judge refused application for stay – application for temporary stay pending determination of s 5F appeal – strength of appeal – balance of convenience – stay refused

CRIMINAL LAW – application by accused for certificate under s 128 of the Evidence Act 1995 (NSW) – material in respect of which certificate is sought falls within s 128(10)(b) – application refused

PROCEDURE – application to stay criminal proceedings pending determination of application for leave to appeal and appeal from Local Court decision – balance of convenience – service of material – opportunity for defendant to meet case brought against it – deprivation of right of appeal – stay granted

PROCEDURE – application for order to transfer substantive proceedings to Supreme Court of South Australia – appropriate forum for litigation

HIGH RISK OFFENDER – sex offender – preliminary hearing – application for interim supervision order – Crimes (High Risk Offenders) Act 2006 (NSW) – application not opposed – order made

PRACTICE & PROCEDURE – slip rule – application to reduce judgment sum because of mistake in calculation – defendant became bankrupt after judgment pronounced – whether jurisdiction to make the amendment BANKRUPTCY – application to reduce judgment amount under slip rule – order made before bankruptcy – application under slip rule after bankruptcy – whether prohibited fresh step in proceeding – Bankruptcy Act 1966 (Cth) s 58(3)

STRATA SCHEMES – Application for strike out – Whether Strata Schemes Management Act operates so that plaintiff has no remedy in common law nuisance

PROCEDURE — Judgments and orders — Application for leave to reopen – where the Court had delivered judgment finding certain defendants including the applicant liable for misleading or deceptive conduct by non-disclosure – where applicant sought leave to reopen his case in respect of his liability for non-disclosure – where applicant sought leave to agitate an apportionment claim as between the defendants and to amend his defence to rely on the proportionate liability regime in Pt 7.10 Div 2A of the Corporations Act 2001 (Cth) – where reasons for judgment delivered but orders not entered – whether the Court has proceeded according to some misapprehension of facts or the relevant law – whether leave should be granted to reopen.

DAMAGES – Trespass – Calculation of mesne profits – User principle – Defendant wrongfully terminated plaintiff’s 103 year lease to build private hospital and car park – At time of dispossession car park operational but private hospital not yet built – 15 year dispossession EVIDENCE – Admissibility – Expert opinion – Expert A “adopts” and is “fortified by” opinions of Expert B without disclosing how Expert A applied Expert B’s opinion in Expert A’s reasoning – Whether sufficient to make Expert B’s opinions admissible – Evidence Act 1995 (NSW), ss 55, 56(2), 60, 79, 135, 136

PROCEDURE – notice of motion – stay of proceedings sought – further writ of restitution issued – motion dismissed – costs as agreed or assessed to follow the event

Criminal law – sentence – manslaughter – guilty plea

CRIMINAL LAW – appeal against conviction – whether leave to appeal should be granted – directions to jury – consciousness of guilt reasoning – post-offence conduct – destruction or disposal of evidence – whether trial judge erred in failing to direct jury in relation to consciousness of guilt – whether the evidence could rationally support an inference of guilt – whether failure to direct occasioned a substantial miscarriage of justice CRIMINAL LAW – appeal against sentence – whether leave to appeal should be granted – objective seriousness of the offence – age of complainant as an aggravating factor – whether sentence manifestly excessive

CRIMINAL LAW – appeal against sentence under the Criminal Appeal Act 1912 (NSW), s 5D – respondent pleaded guilty to drug offences – whether sentencing discretion miscarried – whether sentencing judge failed to take into account legislative guidelines – whether sentencing judge erred in finding special circumstances – whether sentence manifestly inadequate

CRIMINAL LAW – Crown appeal against sentence – whether sentence manifestly inadequate – supplying large commercial quantity of a prohibited drug – Drug Misuse and Trafficking Act 1985 s 25(2) – whether sentencing judge erred by double counting subjective features in assessing the appropriate sentence and finding special circumstances – whether sentencing judge erred by having regard to extraneous considerations not relevant to the sentencing exercise – whether sentencing judge erred by failing to consider principles of general deterrence, punishment and denunciation in fixing the non-parole period – whether sentence was manifestly inadequate by reference to the sentences imposed on co-offenders – whether sentencing Judge erred by failing adequately to accumulate indicative sentences when assessing aggregate sentences

CRIMINAL LAW – appeal against sentence – supply of large commercial quantity of methylamphetamine –manifest inadequacy – whether discount for assistance excessive – consideration of comparable sentences – re-sentencing

CORPORATIONS – winding up – unfair preferences – application for Court to decline to exercise jurisdiction – whether Court has jurisdiction in the proceedings – whether cause of action arose in NSW – cause of action does not necessarily arise at place where bank account out of which impugned payment made is located – direction given on behalf as to how payment was to be made was in NSW – held, Court has jurisdiction – whether Court should decline to exercise jurisdiction – whether case is so weak as to be amendable to summary dismissal – equitable purchaser’s lien – secured creditor – impugned payment falls outside scope of s 588F

EQUITY – equitable remedies – equitable compensation – where Court orders previously made as to interest to be paid by the defendants to company – where previous judgment of the Court held certain defendant to be in breach of fiduciary duty and equitable compensation was ordered – where plaintiffs sought equitable compensation for the liquidator’s remuneration incurred in bringing proceedings for breach of fiduciary duty – whether interest should be payable at the rate specified in s 100 of the Civil Procedure Act 2005 (NSW) or at the rate of interest received by the company on money held by it during liquidation – whether equitable compensation for the liquidator’s remuneration incurred in bringing proceedings should be ordered.

CORPORATIONS – winding up – liquidators – where liquidator of company sought special leave under s 488(2) of the Corporations Act 2001 (Cth) to make interim distribution of surplus in the liquidation – where contributory who was to receive distribution in the company’s winding up also had liability to make payments to the company – whether special leave to make interim distribution of surplus ought be granted – whether direction that liquidator would be justified in distributing the surplus by an in specie distribution of the share portfolio should be made – whether liquidator would be justified in calculating distribution to be made to contributory by making adjustments for the contributory’s liability to make payments to the company – whether orders ought to be made dispensing with requirements under reg 5.6.71 of the Corporations Regulations 2001 (Cth) and r 7.9(2) of the Supreme Court (Corporations) Rules 1999 (NSW) – whether the Court should approve nunc pro tunc the liquidator’s retainer with his solicitors under s 477(2B) of the Corporations Act 2001 (Cth).

CRIMINAL LAW – murder – fitness inquiry – fitness to be tried – Presser and Kesavarajah principles – accused unfit to be tried – orders made under s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW)

COSTS - Costs of notice of motion, and an unsuccessful claim for a family provision order - Whether to depart from the general rule that costs follow the event - Overall justice of the case

EQUITY – fiduciary relationships – sole company director – where appellant company negotiating contract to provide services to third party – where negotiations at an impasse – where successful negotiation depends on financial support of company’s shareholder – where director pursues opportunity to secure contract on basis which involves share issue to fourth party which changes control of company and dilutes value of existing shareholding interest to nil – where director stands to gain significant personal benefits from alternative proposal – whether respondent director in breach of fiduciary duty by pursuing proposal in circumstances where conflict between personal interest and duty CORPORATIONS – directors – claim against company director for breach of statutory duties under Corporations Act 2001 (Cth) ss 181(1), 182(2), 183(3) – where not established that director not acting in good faith or for what believed to be a proper purpose – where not established that purpose of director to gain an advantage for himself or fourth party DAMAGES – loss of chance – where proof of loss of valuable commercial opportunity depends on what appellant and other negotiating party would have done – whether proved on balance of probabilities that lost a valuable opportunity by reason of director’s breach of duty EQUITY – accessorial liability – knowing assistance – whether breach of fiduciary duty by company director gave rise to claim against law firm retained to advise in contract negotiations EQUITY – remedies – equitable compensation – loss of chance – whether company alleging breach of fiduciary duty proved that but for alleged breach would have retained a valuable opportunity

CRIMINAL LAW – where aggregate sentence imposed for offences of knowingly taking part in drug supply and possession of firearm – Firearms Act 1996 (NSW) s 7(1) – plea of guilty – where guilt admitted to Form 1 offences – possession of ammunition without permit, possession of unregistered firearm and possession of prohibited weapon (silencer) – appeal against severity of sentence – where at relevant time applicable standard non-parole period for firearms offence was three years – where standard non-parole period misstated by primary judge as four years – Criminal Appeal Act 1912 (NSW) s 6(3) – whether error requires re-exercise of sentencing discretion – whether finding of special circumstances should be made on basis of ill-health – gallstones – objective seriousness – where offences committed whilst on parole for armed robbery conviction – where primary judge found another person left revolver at applicant’s home and no evidence of use or intended use by applicant – where pistol found with silencer and ammunition – where history of firearms and possession of prohibited weapon offences

CRIMINAL LAW – appeal against conviction – where trial judge refused to discharge jury – where witness alleged to have made prejudicial statements – whether any prejudice could be remedied by directions CRIMINAL LAW – appeal against conviction – substantial miscarriage of justice – whether conduct of Crown case led to a miscarriage of justice – whether trial counsel had provided incompetent representation – whether the appellant was pressured into signing a statement of agreed facts CRIMINAL LAW – appeal against sentence - whether sentence manifestly excessive – whether trial judge erred in considering the appellant’s age – whether the trial judge erred in making a finding of special circumstances – whether conduct of trial led errors in the sentencing process – re-exercise of sentencing discretion on appeal

CRIMINAL LAW – sentence appeal – three counts of driving in a manner dangerous causing grievous bodily harm – appeal in respect of one count only – whether sentence on that count manifestly excessive – whether discount for early plea of guilty adequate – whether total accumulation of that sentence upon the sentences for the other two counts appropriate.

CRIMINAL LAW – sentence appeal – charges of supplying large commercial quantities of nexus, ecstasy – matters on Form 1 – whether sentencing judge took into account evidence of the applicant’s remorse – sentences subsequently passed on co-offenders - parity

CORPORATIONS – requirements for valid transfer of shares in unlisted company; GIFTS INTER VIVOS – incomplete gift

CORPORATIONS – winding up – liquidators – judicial advice – whether liquidator justified in making payments to obtain delivery of bottles of wine or causing company to enter into agreement to obtain delivery of wine – whether liquidator justified in dealing with wine or moneys received as assets of company for purposes of winding up – unascertained and future goods – whether appropriated to contract and property passed – whether assent to appropriation occurred – held, further submissions required – held, not appropriate to give advice at this stage

CRIMINAL LAW – murder – application by Crown to adduce evidence in statement of unavailable witness – circumstantial case – witness gives significant evidence of admissions inculpating accused – whether admitting statement unfair to accused – whether probative value outweighed by unfair prejudice – unfair prejudice outweighs probative value EVIDENCE – hearsay evidence – s 65 Evidence Act - whether witness unavailable – late enquiries to ascertain whereabouts of witness – whether representation against interest of witness – whether representation made in circumstances making it likely it is reliable – induced statement to Crime Commission – witness might be considered an accomplice – statement not demonstrated to be likely to be reliable – statement rejected

FAMILY PROVISION – where deceased left modest pecuniary legacies to his daughters and divided balance of estate equally between his sons – where plaintiff daughter played major role in the care of the deceased in his later years – whether adequate provision made for daughter’s proper maintenance and benefit – whether further provision should be made

Criminal Law – murder – plea of guilty – sentence - significantly below the midline of objective seriousness – whether aggravating or mitigating factors referred to in Crimes (Sentencing Procedure) Act 1999 (NSW) ss21A(2) and (3) are present – whether offender is likely to reoffend