Cases and authorities

PROCEDURAL – Application for leave to amend statement of claim to seek relief under s 233 of the Corporations Act 2001 (Cth) – principles applicable – plaintiff claims second defendant holds share in first defendant on trust for plaintiff – whether plaintiff lacks standing because he is not recorded as a member of the first defendant in the register of members – different grounds for standing relied upon by plaintiff – arguable that plaintiff has standing to sue as beneficiary of trust in respect of share held by second defendant – exceptional circumstances – second defendant with conflict of interest and unwilling to sue – other alleged bases for standing permitted – leave to amend granted – application not too late – original pleading not a result of a tactical decision – application for leave to amend in part a result of defence pleaded LEAVE – conditions on which leave to amend granted – costs occasioned by the amendment, including costs thrown away payable by plaintiff – plaintiff not ordered to pay additional security for costs – plaintiff required to discontinue related proceedings in Italy on a permanent basis – plaintiff required to pay defendant’s costs of Italian proceedings

SUCCESSION – Wills, probate and administration – the making of a will – probate of will made by deceased on 17 December 2008 granted to defendant – plaintiff sought declaration that deceased had made a later valid will on 10 February 2010 – evidence tendered by plaintiff that the deceased made the later will not accepted – plaintiff’s claim dismissed – no question of principle EVIDENCE – cross-examination of witnesses – whether there was failure by defendant’s counsel to comply with the rule in Browne v Dunn – defendant disclosed attack on plaintiff’s witnesses in written opening – Held plaintiff satisfied the rule

ADMINISTRATIVE LAW – application by the Minister for Corrections for judicial review of a decision of the Parole Authority granting parole – interlocutory application to stay operation of decision – whether serious question to be tried

CRIMINAL LAW – proceeds of crime – notice of motion for revocation of restraining orders

PRACTICE AND PROCEDURE – tutor – whether determination by court that party is competent to give evidence under s 13 Evidence Act 1995 (NSW) has consequence that the person is not under legal incapacity and tutor’s appointment “invalid” – Pt 7 Div 4 Uniform Civil Procedure Rules 2005 (NSW) – COSTS – against non-party – tutor – general rule that tutor liable to pay costs awarded against party represented – COSTS – gross sum costs order – whether order should be made where complex allegations made by party without substantive evidence – where party has constantly been in default of court’s orders – where party’s conduct suggests costs assessment process likely to be protracted – quantification of such costs

CONTRACT – damages - Caretaker Agreement made under Strata Schemes Management Act 1996, Part 4A – caretaker appointed in 2004 to provide caretaking services to two strata schemes and one additional stratum lot of a commercial/residential building complex divided into three parts – the caretaker, the two owners corporations and the owner of the stratum lot are all parties to the Caretaker Agreement – one of the two owners corporations alleged breaches of the Caretaker Agreement and in July 2012 unilaterally acted to terminate the Caretaker Agreement – Court finds in principal judgment no basis for owners corporation’s termination and that by the termination the owners corporation repudiated the Caretaker Agreement – caretaker does not accept repudiation and continues to offer performance of Caretaker Agreement – Court decides Caretaker Agreement cannot be specifically performed following repudiation and that the caretaker cannot claim the whole of the promised contractual benefit, but only its loss of profit on the Caretaker Agreement – to what damages, if any, is the caretaker entitled from the owners corporation’s breach of the Caretaker Agreement. EQUITY – hearing as to account of profits or equitable compensation - Court finds in principal judgment that developer owes a fiduciary duty as a promoter to an owners corporation being formed by the developer in relation to the owners corporation’s entry into a Caretaker Agreement - developer establishes the owners corporation in April 2004 – owners corporation resolves at an EGM in October 2004 to be bound by a Caretaker Agreement with the developer – whether the developer was in breach of its fiduciary duty as a promoter by failing to disclose information to the owners corporation about its revenues and profits, before the owners corporation resolved to be bound by the Caretaker Agreement – if a breach of fiduciary duty as promoter is established, whether the owners corporation is now barred by delay from any grant of relief setting aside the Caretaker Agreement. EQUITABLE REMEDIES – breach of fiduciary duty – remedies – account of profits claimed – Court finds in principal judgment that account of profits for breach of fiduciary duty not available - whether equitable compensation now available.

CRIMINAL LAW – application to discharge of jury – non-responsive disclosure by witness that accused had just got out of gaol – whether answer creates unfairness – whether jury will focus on the evidence – poker face of Senior Counsel – evidence considered in context of issues in the trial – uncontested evidence of involvement in criminal gang – gangsters moll – relevance of length of trial – whether directions capable of curing prejudice – danger of highlighting evidence – whether transcript should be redacted if requested by jury

INSURANCE – correctional facility – medical malpractice civil liability insurance policy – psychological services – failure to assess inmate for risk of self harm – whether claim falls within terms of policy – nature of duty of care – contractual obligations – the system in operation at the correctional facility – the construction of the policy – whether claim is covered by policy – claim made out – orders made

CONTRACT – deed entitled but did not oblige shareholder to acquire a parcel of shares at a price determined by a valuation – shareholder obliged to give written notice if it did not want to purchase the shares – dispute over whether valuation valid – exchange of offers at different prices to transfer the shares – proper construction of deed – whether correspondence indicating preparedness to buy shares at different prices amounted to written notice that shareholder did not want to purchase the shares – Contracts Review Act 1980 (NSW) – deed executed at commencement of trial in conjunction with loan to pay for litigation – whether deed unfair because solicitor should have taken steps to obtain alternative representation ESTOPPEL – recovery of legal fees – former solicitor refused to provide tax invoices and bills of costs during party/party assessment – whether former solicitor estopped from subsequently recovering legal fees – whether former solicitor created assumption or expectation that no additional fees would be recovered – whether detrimental reliance by former client – appropriate remedy LEGAL PRACTITIONERS – fees – appellant obtained favourable costs order – client had paid fees to former solicitor – former solicitor refused to provide tax invoices and bills of costs to costs assessor – costs order assessed excluding costs of former solicitor – former solicitor subsequently served bill of costs – whether former solicitor estopped from recovering additional fees from former client

CRIMINAL LAW – application for leave to appeal against sentence – manslaughter by unlawful and dangerous act – plea of guilty – assault occasioning actual bodily harm taken into account on Form 1 – whether sentence manifestly excessive – sentence imposed not manifestly excessive – leave to appeal granted – appeal dismissed

PROCEDURE – dismissal of two notice of motions by consent – no order as to costs

PRACTICE AND PROCEDURE – interlocutory issues – urgent application to restrain NSW Civil and Administrative Tribunal from determining proceedings – where plaintiff has commenced proceedings in this Court for equitable relief

CLUBS AND ASSOCIATIONS - disharmony between directors – Club’s bank account frozen evidently at instigation of director – Club unable to pay outstanding creditors – whether receiver should be appointed; EQUITY – receivers – appointment of receivers – whether extraordinary circumstances shown – whether notice should be given to creditors

PROTECTIVE JURISDICTION – Minor attains age of majority - Incapacity for self-management – Review of protected estate management orders – Procedures for management of protected person and estate

PRACTICE AND PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – whether proposed settlement is in the interests of the plaintiff

TRADE PRACTICES – Misleading or deceptive conduct claims under s 18 of the Australian Consumer Law, 1041H of the Corporations Act 2001 (Cth) and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) – where plaintiff asserted various misleading or deceptive conduct claims against defendants in respect of the plaintiff’s purchases of shares in companies – where some of the claims against particular defendants were based on non-disclosure of loans owed by the companies to entities associated with those defendants that could be converted into equity at their discretion – where right to convert loans to equity was subsequently exercised thereby diluting plaintiff’s equity in the companies and depriving plaintiff of control of the companies – whether any representations were misleading or deceptive and if so whether they were causative of plaintiff’s loss – whether plaintiff’s misleading or deceptive conduct claims based on defendants’ non-disclosure of information succeeds – whether plaintiff is a concurrent wrongdoer under s 34 of the Civil Liability Act 2002 (NSW) such that if the plaintiff were to succeed each of the defendant’s liability should be limited to an amount proportionate to each of the defendant’s responsibility for plaintiff’s loss. PROCEDURE – Costs – where plaintiff was only successful against some of the defendants and on a narrower basis than argued – whether costs should follow the event.

REAL PROPERTY – possession of land – default judgment PROCEDURE – civil – pleadings – application to strike out defence and cross claim – bankrupt defendant’s property vested in trustee – trustee elected not to pursue defence and cross claim – defence operates as impediment to entry of judgment for possession – cross claim causes prejudice, embarrassment or delay and is an abuse of process – defence and cross claim struck out PROCEDURE – civil – parties – standing – bankrupt defendant sought orders declaring she had standing despite sequestration order made by Federal Circuit Court under the Bankruptcy Act 1966 (Cth) or leave to continue to be heard and/or appear in these proceedings – defendant has no standing to defend claims or prosecute cross claim – leave refused

EVIDENCE – expert evidence – where Court had ordered experts to confer in advance of hearing – contest as to questions to be posed – principles to be applied

CRIMINAL LAW - sentencing hearing - shooting of environmental officer - murder and detain for advantage offences - objection to parts of victim impact statement of wife of murder victim - objection overruled

PRACTICE AND PROCEDURE — Pleadings — Application to strike out amended statement of claim pursuant to UCPR r 14.28 — Application to dismiss proceedings pursuant to UCPR r 13.4 — Amended statement of claim discloses a reasonable cause of action — Application dismissed

CRIMINAL LAW – Evidence – application under s 42 Evidence Act – application that co-accused not be permitted to ask leading questions in cross-examination – where co-accused raising defence of duress – Brothers For Life – where co-accused cross-examines last – forensic advantage – order to be reversed in addresses – cross-examine down, address up – whether witness sympathetic to co-accused – whether witness has an interest in common with the cross-examiner – whether facts better ascertained by non-leading questions – application refused – leading questions permitted

CRIME – conspiracy to commit offence of insider procuring contrary to s 1043A(1)(d) of the Corporations Act 2001 (Cth) – application for a directed verdict – content of requirement for Crown to prove that the alleged inside information was material where conspiracy charged – whether element of materiality capable of being established on the evidence – whether there was evidence on which the jury could properly find the insider knew the information was material – whether there was evidence on which the jury could properly find the accused intended that the offence of insider procuring would be committed pursuant to the agreement CRIME – conspiracy – power to dismiss charge where it is in the interests of justice to do so – where accused alleges substantive charges could have been preferred instead of conspiracy charge – whether interests of justice require that charge of conspiracy be dismissed

CRIMINAL LAW - Procedure - Bail

CORPORATIONS – external administration – liquidation – winding up generally – disclaimer of onerous property – disclaimer of contract without leave – whether contract “unprofitable contract” – where contract consistently delivers net revenue to company – held, not “unprofitable contract” and cannot be disclaimed without leave

CONTRACT – termination of contract – whether plaintiff entitled to payment of commission following termination – where services performed prior to termination date CONTRACTS – construction and interpretation of contracts – whether entitlement arises as an express term of contract – alternatively, whether there is an implied term in the contract – whether services were the effective cause of payments DAMAGES – whether specific performance of contract appropriate – unjust enrichment – restitution

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – whether determination void – denial of natural justice – error of law on the face of the record

BIAS – apprehended bias – application for disqualification of judge – application based on association with decision-maker who was a former member of the Court

ADMINISTRATIVE LAW – judicial review – decision of Independent Commission Against Corruption not to investigate complaint – whether refusal of Commission to investigate complaint unreasonable – whether Commission’s failure to file a verified defence amounted to admission as to truth of allegations – whether supervisory jurisdiction of Court extends to ordering Commission to investigate allegations BIAS – apprehended bias – application that all judges of Supreme Court of New South Wales recuse themselves – association with colleagues who had acted in litigation in which claimant unsuccessful – whether a fair-minded observer might think that such an association might preclude judicial impartiality BIAS – actual and apprehended bias – allegation that audio recording of court proceedings tampered with to remove judicial statements indicating bias – whether words allegedly deleted create a reasonable apprehension of bias – whether alleged deletion gives rise to an apprehension of bias PRACTICE AND PROCEDURE – notice of motion – orders sought relating to recusal of members of the Court

APPEAL – criminal conviction – application for leave – whether verdicts unreasonable CRIME – motor vehicle accident – dangerous driving causing death – dangerous driving causing grievous bodily harm

CRIMINAL LAW – murder – constructive murder – robbery – victim killed during robbery - joint criminal enterprise – plea of guilty – application to withdraw plea – refusal by primary judge to permit withdrawal of plea – principles – challenges to factual findings of primary judge – whether plea attributable to a genuine consciousness of guilt – whether issuable question about guilt CRIMINAL LAW - sentence – appellant was not the person who killed the victim - challenge to primary judge’s reliance on evidence of appellant’s knowledge of intention to rob – whether evidence that appellant assaulted victim – no evidence to justify primary judge’s finding – need to re-sentence – whether lesser sentence warranted – considerations of parity

CRIMINAL LAW – appeal – interlocutory order – application for trial by judge alone – whether failure to apply principle that applicant is entitled to defend himself by all forensically available means – whether failure to properly balance need for objective community standards against prejudice to accused – whether error in finding directions to jury could overcome prejudice – whether consideration of extraneous material

PRACTICE AND PROCEDURE — Pleadings — Application to strike out amended statement of claim pursuant to UCPR r 14.28 — Application to dismiss proceedings pursuant to UCPR r 13.4 — Amended statement of claim seeks order setting aside orders made in earlier proceeding on ground they were procured by fraud — Amended statement of claim seeks order setting aside grant of probate — Whether amended statement of claim pleads fresh facts which would provide a reason for setting aside earlier orders — No newly discovered material is relied on — Plaintiff lacks standing to challenge the grant of probate — Amended statement of claim attempts to re-litigate matters that have been heard and determined — Proceedings dismissed

CRIMINAL LAW – murder – domestic violence – early guilty plea – sound rehabilitation prospects – sentence imposed

CRIMINAL LAW – murder – early guilty plea – adverse psychologist’s report – youth of offender – sentence imposed

CRIMINAL LAW – manslaughter- cognitive disorder suffered by offender – remorse – no intention to kill or cause grievous bodily injury – otherwise, also proved substantial impairment – early plea – sentence imposed

CONTEMPT OF COURT – alleged contempt before Local Court proceedings – vexatious litigant – application for an adjournment – refused

EQUITY- PRACTICE- Claim to monies paid into Court following agreement upon the removal of a caveat based on an equitable charge lodged by the claimant in respect of plaintiff’s land; plaintiff also a judgment creditor for an amount in excess of the fund; PROCEDURE- Notice of Motion appropriate pursuant to UCPR.

PROCEDURE – civil – application for judgment for possession of land – substantive hearing date impending and previously expedited – revisitation of question of quantum of occupation fee

CRIMINAL LAW - Procedure - Bail

PROCEDURE – costs – indemnity costs order made

INTERIM RELIEF – whether there is a sufficiently arguable case – balance of convenience – whether injunction would inhibit second defendant’s ability to enter into prospective contract for overseas supply

DEFAMATION – corporations – whether plaintiff an excluded corporation

COSTS - where plaintiffs’ substantive case failed -where plaintiffs’ contentions as to secondary aspect of case ultimately undisputed - whether plaintiffs achieved sufficient success on secondary issue to warrant there being no order as to costs of the proceedings

CONTEMPT OF COURT – alleged contempt before Local Court proceedings – vexatious litigant – application for a further adjournment – refused

CONTRACTS — Construction of limitation of liability clause — where trustee company entered into contract with plaintiff – where contract contained clause limiting trustee’s liability to the assets of the trust – whether the limitation clause applies at the date a liability is incurred or date of judgment or at any point in time at which the trustee’s right of indemnity is to be exercised. PROCEDURE — Judgments and orders — where defendant incurred liabilities to the plaintiff in the defendant’s capacity as trustee of a particular trust – where defendant was also trustee and held assets of other trusts – where defendant sought a form of order limiting the enforcement of a judgment against it to the assets of the particular trust – whether orders should be made in the form sought by defendant.

PROCEDURE – civil – judgments and orders – motion for non-publication order – proper administration of justice – physical and non-physical safety of either party to proceedings – motion dismissed

COSTS – indemnity costs – withdrawal of prosecution for criminal contempt against individual at hearing – whether opposing party is entitled to indemnity costs

PRACTICE AND PROCEDURE – application for joinder of a party – r 6.24(1) of the Uniform Civil Procedure Rules – appeal against decision of Independent Liquor and Gaming Authority – order for joinder made

CRIMINAL LAW – proceeds of crime – application for forfeiture under s 49 of the Proceeds of Crime Act 2002 (Cth)

COSTS – Suitors' Fund Act 1951 – principles governing applications – analysis of case law – certificate refused