Cases and authorities

CRIMINAL LAW – bail – detention application – knowingly take part in supply of large commercial quantity of cocaine – knowingly deal with proceeds of crime – show cause offences – where offences are very serious and one carries a maximum penalty of life imprisonment – where Crown contends all four bail concerns apply – viable circumstantial Crown case – concerning but unremarkable prospective delay before trial – criminal history including cocaine supply – respondent has not shown cause – even if cause had been shown there are unacceptable risks of failing to appear and of committing further serious offences despite very onerous proposed bail conditions – detention application granted and bail refused – judgments of single Supreme Court judges in bail matters are relevant to their own factual matrix but rarely of any precedential value

CRIMINAL LAW – appeal against sentence – manifest inadequacy – sentence imposed entirely concurrent with sentence for unrelated offences – whether sentencing judge erred by failing to accumulate sentences – principle of totality

TRUSTS AND TRUSTEES – trust established for benefit of defendant trustee’s daughters with proceeds of medical negligence proceedings arising from injuries suffered by one daughter in infancy – evidence that trustee has misappropriated trust property and otherwise not acted in the interests of the beneficiaries – whether trustee should be removed – whether new corporate trustee should be appointed

EVIDENCE – Public interest immunity – No point of principle

PROCEDURE – settlement approval – consent orders made PROCEDURE – suppression orders – order sought suppressing identity of plaintiff – order made

COSTS - Discontinuance – Summary Dismissal – plaintiff brings proceedings to recover loan monies and to enforce unregistered mortgage over land jointly held by the first and second defendants – plaintiff takes out caveat over land - first defendant becomes bankrupt – due to an oversight caveat lapses - plaintiff seeks to discontinue proceedings – second defendant seeks to strike out plaintiff’s claim – whether each party should bear her own costs – whether plaintiff should pay the second defendant’s costs.

APPEAL FROM LOCAL COURT - appeal against decision of a Magistrate in a civil claim – construction of contract - question of whether entire contract case

COSTS – Chorley exception – respondent barrister – respondent instructed solicitors and appeared for himself as counsel – respondent made application for gross sum costs order in respect of a) solicitors’ costs and disbursements excluding counsel’s fees and b) counsel’s fees for professional work performed by respondent himself – whether definition of “costs” contained in s 3 of the Civil Procedure Act 2005 (NSW) does away with Chorley exception – whether Chorley exception applies to self-represented barrister

CORPORATIONS – winding up – termination of winding up – winding up order made ex parte – whether company no longer insolvent – no acceptable evidence of solvency – no admissible evidence that petitioning credit has been paid – no evidence of cooperation with liquidator

CORPORATIONS — Voluntary administration — Application by administrators for directions under s 447D of the Corporations Act 2001 (Cth) – where companies in administration received offer to purchase several hospitality venues – where proposed purchaser sought execution of documents by specified date such that administrators had limited time to assess the offer – where administrators sought directions that they would be justified in executing certain documents to accept and implement the proposed purchaser’s offer – where creditor opposed acceptance of purchaser’s offer in circumstances where it wanted deed of company arrangement proposal to be considered at second creditors’ meeting – whether directions ought be made.

SUBPOENAS – defendants/cross-claimants apply to set aside seven subpoenas issued to third parties by the plaintiffs/cross-defendants – no objection taken by the recipients of the subpoenas to the production of the documents requested - whether access to the documents sought will serve a legitimate forensic purpose in the proceedings.

REAL PROPERTY – mortgages - possession of land – unrepresented defendant – Defence filed does not disclose defence – loan obtained used to repay prior loan secured by mortgage on the same property – principle in Collier v Morlend Finance – defence struck out – Plaintiffs permitted to obtain default judgment

PLEADINGS – application for leave to file cross-claim – application to strike out existing cross claim – Education Act – prohibition on provision of assistance to non-government school operating for profit – cross-claim seeks judicial review of decision to refuse funding – whether challenge lacks utility because of later decisions – whether school operating for profit is jurisdictional fact or only opinion that school is operating for profit is a jurisdictional fact – arguable questions of statutory construction not decided on application for leave or application to strike out pleading

COSTS – whether usual order that costs should follow the event should be departed from in circumstances where respondent succeeded on cross-appeal and appellant succeeded on Ground 5 of the Amended Notice of Appeal

CRIMINAL LAW – appeal – application for permanent stay of proceedings – threat made against applicant and his family – whether trial judge failed to have regard to prejudice to applicant in presentation of his case at trial – appeal dismissed

COSTS — Party/Party — Bases of quantification — Indemnity basis — Whether indemnity costs order should be made. COSTS — Party/Party — Orders against non-parties — Whether non-party costs order should be made against principal of first plaintiff.

CRIMINAL LAW – evidence – application by accused to exclude evidence under s 137 Evidence Act 1995 (NSW) – evidence from statement of witness to ASIC – probative value of evidence not outweighed by danger of unfair prejudice

DEFAMATION – leave sought to commence another set of proceedings against same defendants, pursuant to s 23 of the Defamation Act 2005 – imprecise and unclear allegations and imputations – costs order still outstanding – delay in commencing further proceedings – that which is not time-barred is inconsequential – leave refused.

JUDICIAL REVIEW – medical assessment under Motor Accidents Compensation Act 1999 – psychological injury – plaintiff suffered PTSD after a car accident – following collision intimidated by other driver and associates – Medical Assessor concluded PTSD unrelated to accident – whether reasons adequate – whether error in construing DSM-5 – whether error in approach to causation – whether failed to address substantial argument – whether decision unreasonable – no error shown – proper officer declined to refer assessment to review panel – no error shown – proceedings dismissed

REAL PROPERTY – urgent application for extension of caveat pursuant to Real Property Act, s 74K –whether the caveator’s claim has or may have substance to warrant the extension of caveat.

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

PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 (NSW) – application for preliminary discovery pursuant to rr 5.3 and 5.4 of the Uniform Civil Procedure Rules 2005 (NSW) – application for leave to institute proceedings

PRACTICE AND PROCEDURE – independent computer expert – whether plaintiff should have leave to engage independent computer expert as its own expert – whether granting such leave would result in defendant in effect being compelled to make premature disclosure and sidestepping Practice Note SC Eq 11

CRIMINAL LAW – proceeds of crime – forfeiture orders – orders made

INTEREST AND COSTS – Court orders – equitable charge in the sum of $100,000 over defendant’s/cross-claimant’s property – cross-claimant succeeds in order for return of Mercedes Benz motor vehicle to estate – whether interest up to judgment should be awarded on the sum of $100,000 – what costs order should be made.

PRACTICE AND PROCEDURE – defendant facing motion for contempt for breach of court orders – allegation that defendant deleted documents from his Google Drive account in breach of such orders - whether defendant’s computer expert should be given access to plaintiff’s Google Drive account for purpose of preparing expert report to answer that charge – whether evidence justifies making such an order

PROCEDURE – recusal application – refused – reasons for refusal

COSTS – Where defendant sought costs on dismissal of the proceedings brought by the plaintiff – Whether a gross sum costs order should be made – No point of principle

CRIMINAL LAW – sentence – manslaughter by excessive self-defence – wound with intent to cause grievous bodily harm – where the offender believed he needed to shoot in self-defence because the victim of the wounding offence was armed with a firearm – where the offender’s reaction was excessive – manslaughter of considerable objective seriousness and wounding offence of moderate seriousness – subjective circumstances do not warrant mitigation – significant criminal record – offences committed while on a bond – denunciation; general and personal deterrence particularly important – delay in proceedings taken into account – discount afforded for offers to plead guilty which were rejected by the DPP – finding of special circumstances confined to the need for accumulation of sentence

STATUTORY INTERPRETATION – Application for extended trading hours – Statutory requirement to advertise application by affixing notice to premises – Where notice not fixed for an extended period – Whether the validity of the application depended upon strict compliance with the notice provisions – Whether substantial compliance was sufficient – Proceedings dismissed

PROCEDURE – interlocutory order setting aside notice to produce – leave to appeal against that order sought – no matter of principle

CRIMINAL LAW – appeal against sentence – Applicant sentenced for child sexual offences contrary to s.66C(2) and s.61M(2) Crimes Act 1900 – two female victims aged between nine and 11 years – whether trial Judge erred in manner in which he took into account uncharged sexual misconduct of Applicant – error demonstrated – whether sentencing Judge erred in approach to Applicant’s remorse and risk of reoffending – no error demonstrated – independent sentencing discretion exercised in accordance with Kentwell v The Queen [2014] HCA 37; 252 CLR 601 – serious examples of offending of this type – Applicant’s limited insight and remorse – no lesser sentence warranted – appeal dismissed

CRIMINAL LAW – appeal against conviction– offence of specially aggravated break and enter and committing serious indictable offence – s.112(3) Crimes Act 1900 – plea of guilty in District Court – whether plea of guilty occasioned a miscarriage of justice – plea of guilty by Applicant in open court – Applicant understood elements of the offence – decision to plead guilty was voluntary and not a product of undue or improper pressure – Applicant considered it to be in his interests to plead guilty – miscarriage of justice not established – conviction appeal dismissed CRIMINAL LAW – appeal against sentence – whether admission of statement of facts occasioned a miscarriage of justice – Applicant aware of elements of offence and circumstances of offence – miscarriage of justice not established – whether failure to adduce evidence of Applicant’s mental condition caused a miscarriage of justice – such evidence would not have assisted Applicant on sentence – miscarriage of justice not established – whether sentence manifestly excessive – no error in finding it was an extremely serious s.112(3) offence – sustained hammer attack to head of victim – Applicant on parole at the time of the offence with significant criminal history for robbery and other offences – substantial discount for assistance to authorities – sentence not manifestly excessive – sentence appeal dismissed

CRIMINAL LAW –– appeal against sentence – Applicant sentenced for offences contrary to s.400.3(1) and s.400.9(1) Criminal Code 1995 (Cth) – whether sentencing judge erred in approach to instrument of crime aspect of s.400.3(1) offence – error demonstrated – whether sentencing judge erred by application of a presumptive non-parole period for a federal offence – error demonstrated – whether sentencing judge erred in approach to contrition – no error demonstrated – whether lesser sentence warranted under s.6(3) Criminal Appeal Act 1912 - serious examples of offending of this type – Applicant’s criminality greater than co-offenders – prior criminal history – lesser sentence warranted – Applicant resentenced

PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 (NSW) - application for leave to appeal to the District Court out of time - appeal against sentence imposed by the Local Court

PROCEDURE - Court Suppression and Non Publication Order made PROCEDURE – pro bono referral sought – order made

CONTRACTS — Contract for sale of land — Special condition requiring payment of deposit in two instalments — Purchaser failed to complete — Deposit paid on exchange forfeited — Property resold for a surplus — Whether Vendor entitled to payment of second instalment of deposit — Second instalment due under the contract only if purchaser fails to complete — Second instalment not in the nature of a deposit — Provision requiring payment of second instalment of deposit void as a penalty — Whether clause 9.3.1 requires that any surplus on resale and any retained deposit be credited against reasonable costs and expenses arising out of purchaser’s non-compliance and of resale — Held that clause 9.3.1 requires that any surplus on resale and any retained deposit be set off against reasonable costs and expenses arising out of purchaser’s non-compliance and of resale — Whether clause 9.3 requires a vendor to make an election between a right to sue for liquidated damages and a right to sue for damages for breach of contract — Held that clause 9.3 gives a vendor a choice between remedies not between rights — Choice between remedies can be kept open until judgment

APPEALS – findings of fact – civil standard – sufficient to reach a state of actual satisfaction – unnecessary to exclude all other possibilities – primary judge not bound by “findings” of earlier Court of Appeal APPEALS – competency – whether direction by Registrar to file notice of appeal was grant of leave – separate plaintiffs in single proceeding seeking leave to appeal – whether matter at issue amounting to $100,000 – whether in determining if appeal lay of right, it ought be assumed that appeal is reasonably arguable POLICE – two police officers arrested appellants – attempt by police officer to delete photographs taken of arrest – photographs recovered from memory of camera – charges for resisting arrest and assaulting police dismissed – appellants brought claim against State alleging tortious conduct by police officers – previous decision of Court of Appeal concluded that on the evidence of first trial, the appropriate finding was that one of the arresting officers had deleted photographs – that arresting officer did not give evidence at second trial – no finding at second trial as to which of at least six police officers deleted photographs – adverse findings against appellants and findings favourable to other arresting officer – whether appellable error in failing to find that first arresting officer deleted photographs – whether any such error affected judgment – appeal dismissed

Costs- Whether non-party cost order is appropriate- principles relevant to decision to make costs order against a non-party-discretionary considerations. Held: Non-party had interest in outcome as a creditor of the defendant company - defendant was a company without financial substance when proceedings were commenced and thereafter- cross-claim was not merely defensive- defendant was only able to maintain defence and cross-claim because of non-party’s contributions- that it is in the interests of justice that non-party should pay the costs of plaintiff of the proceedings.

TRUSTS AND TRUSTEES – JUDICIAL ADVICE – whether trustee would be justified in defending proceedings brought by non-beneficiary seeking information concerning the trust and an order that the trustee pass accounts – whether trustee justified in drawing on trust funds to pay her costs of those proceedings – whether trustee justified in pursuing a motion for summary dismissal of the proceedings

Bail Act 2013 – Detention Application by Crown – attempted murder and a firearm offence – accused and complainant members of rival criminal gangs – likely delay before trial not excessive – strong Crown case – inapplicability of “principle of restraint” – “show cause” test not made out – alternatively accused would constitute an unacceptable risk if released on bail.

CORPORATIONS – winding up – winding up in insolvency – application to appoint liquidator as receiver of trust asset to enforce company’s right of indemnity as former trustee – where defendant company was custodian trustee of strata title lots for respondent which held its assets as trustee of self-managed super fund – company transferred units to respondent and relinquished position of trustee, but did not relinquish right to indemnity – right of indemnity extends only to assets of which company had been trustee – where only way to satisfy company’s liabilities is enforcement of right of indemnity – where no satisfactory common law remedy

PROCEDURE – want of prosecution – proceedings filed more than 14 months earlier – pleading in Statement of Claim struck out 6 months earlier – leave to re-plead – no further pleading filed – no appearance by plaintiff – no explanation for delay – proceedings dismissed

CORPORATIONS — Winding up — Application for relief under ss 477(2B) and 479(3) of the Corporations Act 2001 (Cth) – where the liquidator of company had entered and caused the company to enter into various costs agreements and a deed of indemnity in relation to legal proceedings involving the company – where liquidator sought approval nunc pro tunc to enter and cause the company to enter into the costs agreements and the deed of indemnity – where liquidator sought direction to be made nunc pro tunc that he was justified in paying and causing the company to pay legal fees in relation to certain legal proceedings – whether entry into the costs agreements and the deed of indemnity by the liquidator was a proper exercise of power and not ill-advised or improper on the part of the liquidator – whether direction sought by liquidator ought be made in circumstances where it does not involve any particular legal issue and there is no attack on the propriety of the liquidator’s decision.

PROCEDURE AND COSTS – fourth judgment in proceedings – by motion dated 6 October 2016 the defendant/cross claimant seeks supplementary orders – first, the defendant/cross-claimant claims a charging order in respect of existing costs orders it its favour against the plaintiff/cross-defendant – second, the defendant/cross-claimant seeks an award of interest on costs pursuant to Civil Procedure Act, s 101(4).

CORPORATIONS – members’ rights and remedies – dividend – preference shares – where shareholder agreement gives right to minimum cash distribution with ability to accrue as a loan pending accrual of sufficient income to declare a dividend – where terms of issue refer to right to participate pari passu with other shares – where sole director resolves to pay dividend to ordinary shareholder – whether preference shareholders are entitled to participate pari passu in any dividend – whether pari passu rights additional to minimum cash distribution – whether dividend resolution creates an immediate enforceable liability, a deferred liability, or is mere statement of intention, or a nullity – whether resolution is inconsistent with the rights of, or oppressive to, the preference shareholders or contrary to the interests of the company as a whole – whether loans accrued in respect of past minimum cash distributions have become due and payable to the preference shareholders

CONTRACTS — Plaintiff contends that he and the defendant made an oral agreement following their divorce that the defendant would transfer her interest in the family home to the plaintiff on the plaintiff paying to the defendant an agreed sum of money — Plaintiff asserts that he performed his part of the agreement by borrowing funds to purchase a unit which was acquired solely in the name of the defendant — Defendant did not transfer her share of the family home to the plaintiff — Whether the defendant agreed to transfer her interest in family home to the plaintiff — Agreement that defendant would transfer her interest in family home to the plaintiff not established — Defendant willing to allow plaintiff to acquire a unit on her behalf — Defendant understood unit was not intended as a gift — Alleged agreement unenforceable by virtue of Conveyancing Act 1919 (NSW) s 54A — No acts of part-performance that would displace the operation of s 54A of the Conveyancing Act — Whether alleged agreement contrary to public interest as a binding agreement for the division of matrimonial assets — Alleged agreement not a financial agreement within s 90D of the Family Law Act — Not contrary to public policy EQUITY — Trusts and Trustees — Implied trusts — Resulting trusts — When arising — Plaintiff intended the defendant to have full beneficial ownership of a purchased unit — Plaintiff’s intention conditioned on becoming the full beneficial owner of the family home — Presumption that the beneficial ownership of property is held in the proportions in which the parties contributed to the purchase money not rebutted as condition of plaintiff’s intention that the defendant have full beneficial ownership not realised — Plaintiff beneficially entitled to a share of the purchased unit proportionate to his contribution to the purchase price

CORPORATIONS – winding up – application for substitution of a defendant – present defendant as a result of inquiries made and traces obtained through ATO – whether (NSW) Civil Procedure Act 2005, s 65, applies – clear that liquidator’s intention was to sue person who received payment by company – only reason party was sued was mistaken belief that person in receipt of payment was present defendant – whether substitution should be declined as a matter of discretion – no connection between present ninth defendant and substituted party – present ninth defendant repeatedly brought to liquidator’s attention its mistake – expiry of 3-year limitation period – no evidence of prejudice – application can be brought outside of 3-year period if shelf order obtained

CORPORATIONS — Winding up — Application under s 482(1) of the Corporations Act 2001 (Cth) for termination of the winding up of company – where director of company was unaware of creditor’s statutory demand and the subsequent winding up application due to the company vacating its registered office at the time relevant documents were served – where there is evidence that liquidator of company will be provided with sufficient funds to discharge company’s debts – whether liquidator’s remuneration should be determined in an application for termination of winding up – whether company’s solvency established – whether Court should order termination of winding up.

CORPORATIONS — Winding up — Application for the adjournment of winding up application – where company sought adjournment of winding up application to allow it to seek legal advice in circumstances where it previously had the opportunity to obtain such advice – where little could be achieved by company retaining a solicitor given the affidavit evidence and the existence of the presumption of insolvency arising from noncompliance with creditor’s statutory demand – whether Court should exercise discretion to grant adjournment. CORPORATIONS — Winding up — Application for company to be wound up in insolvency – where applicant had served a creditor’s statutory demand on the company based upon a debt payable pursuant to a deed of settlement – where applicant relied on presumption of insolvency arising from noncompliance with statutory demand – where company led no evidence of solvency – whether presumption of insolvency rebutted – whether Court should order company be wound up. PROCEDURE — Costs — where plaintiff’s application to wind up company in insolvency was granted – where plaintiff sought short form costs orders in circumstances where costs of an assessment would be disproportionate to amount sought to be recovered – whether costs orders sought by plaintiff ought to be granted.