Cases and authorities

ADMINISTRATIVE LAW – judicial review – certiorari – jurisdictional error – error of law on the face of the record - s 69 Supreme Court Act 1970 (NSW) – s 94(6) Motor Accidents Compensation Act 1999 (NSW) – claims assessor failure to give reasons – failure to deal with aspects of the plaintiff’s case

PRACTICE AND PROCEDURE – Form of final orders where parties could not agree – Costs – Apportionment of costs – Where damages recovered in part of the proceedings were substantially less than those claimed – Where considerable time and costs were expended in litigating those issues – Whether order for costs should be made against the successful party notwithstanding that damages were recovered

CRIMINAL LAW – whether an extension of time to seek leave to appeal should be granted – supply of prohibited drug - challenge to sentencing judge’s assessment of objective seriousness – whether sentencing judge unduly interfered in the sentencing proceedings – whether sentencing judge ought to have admitted a letter from the applicant’s mother on sentencing – whether sentence was manifestly excessive – extension of time refused

CRIMINAL LAW – leave to appeal and appeal against sentence – whether error in assessment of seriousness of offences – whether sentence was manifestly excessive – no error – appeal dismissed CRIMINAL LAW – appeal – notice of motion – leave sought to rely on expert reports on appeal – reports not admissible – motion dismissed

CRIMINAL LAW – leave to appeal against conviction – challenge to cross-examination of accused as to credit – prosecutor questioned accused as to prior convictions without leave of the Court – no objection by counsel – whether explicit grant of leave required – whether r 4, Criminal Appeal Rules applies EVIDENCE – whether trial judge obliged to reject evidence pursuant to Evidence Act 1995 (NSW) s 137 if no objection taken – whether s 137 applies to credibility evidence EVIDENCE – accused challenged credibility of prosecution witness – whether gateway to cross-examination of accused opened – whether leave granted pursuant to Evidence Act 1995 (NSW), s 104

CRIMINAL LAW – appeal – s 5F Criminal Appeal Act – murder – pre-trial ruling on statutory construction issues – ruling that partial defence of extreme provocation under s 23 Crimes Act not available on the evidence disclosed – ruling not an interlocutory judgment or order under s 5F(3) –lacked requisite degree of finality – appeal incompetent

CRIMINAL LAW – appeal – appeal against conviction complex tax fraud – money laundering – question of whether change in Crown case – whether appellant’s conviction inconsistent with asserted innocence of co-conspirator – whether plea in bar exists for a count on indictment – whether criminality of one count on indictment considerably different to a second count on indictment – whether count duplicitous – whether trial judge failed to adequately put the appellant’s case to the jury – conviction appeal dismissed CRIMINAL LAW – appeal – Crown appeal against sentence – whether sentence manifestly inadequate - whether misapplication of principle – aggregate sentence unreasonable or unjust – residual discretion - appeal against sentence upheld – appellant re-sentenced

CRIMINAL LAW – procedure – bail – applicant charged with 158 offences involving fraud – bail refused by judge of Supreme Court – further application to Court of Criminal Appeal – nature of application – assessment of bail concerns – failure to appear – commit further serious offences – strength of Crown case – delay before trial – need for liberty to prepare case - whether bail proposal met bail concerns – unacceptable risks – bail refused

CORPORATIONS – shares – contracts - plaintiff claims to be beneficially entitled to half of shares in defendant company – whether plaintiff was purchaser under contract with standing to enforce – where plaintiff had directed transfer to related party – held, plaintiff was purchaser with requisite standing CORPORATIONS – external administration – winding up – effect on members – transfer of shares - Corporations Act 2001, s 493A – held, section voids legal transfer, not contract which precedes transfer nor equities arising under contract COSTS – basis of assessment – whether indemnity basis appropriate

CORPORATIONS — Winding up — Application to set aside creditor’s statutory demand under s 459H(1)(a) of the Corporations Act 2001 (Cth) — where plaintiff contended that there was a variation of its contract with the defendant and that it had an estoppel case against the defendant to support its case that there was a genuine dispute as to the debt specified in the demand – whether genuine dispute as to existence or amount of debt is established. PROCEDURE — Costs — Order sought for costs on indemnity basis — where plaintiff was successful in application to set aside creditor’s statutory demand – whether unreasonable conduct of defendant in respect of the creditor’s statutory demand warrants indemnity costs order.

CIVIL – Mental Health (Forensic Provisions) Act 1990 (NSW) – application for medical examinations pursuant to cl 6(5) - application for interim extension order – use of pseudonym pursuant to s 162 of the Mental Health Act 2007 (NSW)

PROCEDURE – transfer of proceedings from Supreme Court to District Court – claim for damages arising from personal injury – application of s 146(4) of the Civil Procedure Act 2005 (NSW)

CONTRACTS – general contractual principles – construction and interpretation of contracts – Call Option Deed provides for extension of Call Option Period in the event Grantee intends to make application to Land and Environment Court – whether purported extension of Call Option Period in accordance with Call Option Deed – whether intention must be definite rather than provisional WORDS AND PHRASES – “intends”

PROCEDURE – application for advanced rulings on admissibility of evidence pursuant to s 192A of the Evidence Act 1995 (NSW) – plaintiff sought advance ruling in respect of affidavits and expert opinion evidence – whether the four grounds of objections to the first defendant’s affidavits by underwriter witnesses render that evidence inadmissible – HELD evidence of underwriter witnesses relevant but of low probative value – HELD underwriter witnesses’ evidence to be properly characterised as state of mind and not opinion evidence – HELD discretionary power of court to exclude evidence not exercised in this instance as deficiencies in the evidence may be fairly and reasonably dealt with at trial – RULINGS given on admissibility of individual parts of underwriter witness’s affidavits – whether expert reports of the second defendant inadmissible on grounds identified by the plaintiff – expert evidence proposed to be used to prove that certain evidence was fabricated by the plaintiff – HELD evidence as it stands insufficient to prove fabrication – HELD such deficiencies in evidence may be properly dealt with by trial judge – HELD plaintiff’s application to render the evidence inadmissible at trial rejected

LANDLORD AND TENANT – rent – commercial lease of medical centre – provision for rental discount – construction – meaning of “rent review date” – meaning of “Full Time Equivalence doctors” – whether lessee under an obligation to provide information to lessor in relation to rental discount – at what times is the rental discount to be determined – in respect of what period is the rental discount assessed CONTRACTS – construction and interpretation – implied terms – commercial lease of medical centre provides for rental discount – discount depends upon number of “Full Time Equivalence doctors” carrying on practice at the premises – information about number of doctors peculiarly within knowledge of lessee – whether necessary that lessee provide information concerning number of doctors to enable performance of obligations under contract

CORPORATIONS – application to set aside three statutory demands – plaintiff sought to set aside first statutory demand pursuant to ss 459G, 4559H(1) and 459J(1) of the Corporations Act 2001 (Cth) on grounds of genuine dispute as to existence of one part of the debt claimed, and an offsetting claim as to the whole of the debt – HELD there was a genuine dispute as to the existence of one part of the debt claimed – whether plaintiff entitled to offsetting claim under s 459H(1)(b) of the Corporations Act 2001 (Cth) – offsetting claim based on mere assertions made by plaintiff – HELD no genuine offsetting claim against creditor – HELD statutory demand varied under s 459H(4) of the Corporations Act 2001 (Cth) – plaintiff sought to set aside second and third statutory demands under ss 459G and 459J(1) of the Corporations Act 2001 (Cth) – whether defect in the second statutory demand when not signed by all joint creditors – defendant claimed that he signed the statutory demand on behalf of a partnership rather than joint creditors – HELD substantial injustice would have been caused to the plaintiff due to misdescription of the debt in the statutory demand if the statutory demand had in fact been signed on behalf of a partnership – determination of whether the joint creditors were in fact partners – HELD in fact the joint creditors were not partners – in any event, the demand would have been served without the authority of the other partner – HELD second statutory demand set aside – whether defendant should be allowed to reopen case to tender further evidence – HELD fresh evidence pertaining to partnership would have been found before the trial if the defendant had exercised reasonable diligence – HELD public interest in the finality of litigation in this instance outweighs the benefit of receiving further inconclusive evidence – HELD original decision to set aside second statutory demand upheld – third statutory demand signed by one partner on behalf of partnership without the authority of the other partners – some other partners supported the statutory demand being set aside HELD third statutory demand set aside

CRIMINAL LAW –sentence –two offenders convicted of offences of female genital mutilation against two young girls – s. 45 Crimes Act 1900 – third offender convicted as an accessory after the fact to s. 45 offences – sentences of imprisonment imposed – each offender referred for assessment as to suitability for home detention – whether home detention should be ordered in each case – each offender assessed as suitable in home detention assessment report – where each of the offenders have different subjective cases – where the offender mother (A2) has expressed remorse – where the imposition of full-time custodial sentence upon A2 would act as a double punishment to the victims – where the acts were carried out by an elderly woman (Magennis) who suffers significant health problems – difficulty of managing health problems in custody – general deterrence of particular importance in case of religious leader (Vaziri) – calculated and deliberate acts by religious leader over a period of weeks to deflect police investigation – no finding of remorse in his favour – order that Offender A2 serve sentence by way of home detention – order that Offender Magennis serve sentence by way of home detention – order that Offender Vaziri serve sentence by way of full-time imprisonment

JUDICIAL REVIEW – examination by a Delegate of the Chief Executive of the Office of Local Government of proposal for amalgamation of councils – Local Government Act 1993 (NSW), ss 218F, 263 – whether procedural fairness required the Delegate to notify Council of adverse findings and give it the opportunity to make further submissions JUDICIAL REVIEW – review and comment by the Boundaries Commission on report of the Delegate – Local Government Act 1993 (NSW), s 218F – whether Boundaries Commission misapprehended its functions and powers – whether Boundaries Commission failed to provide procedural fairness to Council JUDICIAL REVIEW – consideration by the Minister of proposals for amalgamation of councils – Local Government Act 1993 (NSW), s 218F – whether Minister denied procedural fairness to Council by failing to take its proposal into account – whether Minister failed to take into account a mandatory relevant consideration LOCAL GOVERNMENT – proposal for amalgamation of councils – Local Government Act 1993 (NSW), Division 2B – where multiple proposals lodged with respect to Council area – proper construction of statutory scheme for amalgamation of councils

FAMILY PROVISION – two of three adult children of deceased seek orders for family provision – claimants are eligible persons - whether adequate provision made for plaintiffs in deceased’s will – if not, what provision should be made for the plaintiffs.

APPEAL – review of findings of primary fact – whether appellable error in failing to resolve all issues of fact and credit – whether failure to grapple with defendant's case – whether appellable error in findings as to damages – whether failure to make sufficient facts to determine all legal issues TORTS – trespass to the person – negligence – elements of and relationship between – defendant found to have recklessly injured neighbour with gardening shears following altercation – relationship between trespass to the person and Civil Liability Act 2002 (NSW), s 3B(1)(a) where finding of recklessness – elements of self-defence under ss 52 and 53 of Civil Liability Act

ADMINISTRATIVE LAW – judicial review – child protection – working with children – real and appreciable risk

TRUSTS – JUDICIAL ADVICE – Entitlement of Trustee to indemnity out of trust property for costs for litigation – Whether judicial advice a condition for right of indemnity

CRIMINAL LAW – application under s 78(1) of the Crimes (Appeal and Review) Act for an inquiry into conviction for common assault at Bega Local Court – two previous unsuccessful applications – basis for refusal to consider application under s 78(1) – application refused

COSTS – multiple issues - three separate claims in cross-claim – each party successful on one claim – third claim settled – whether costs should be apportioned – set-off of competing costs orders

CORPORATIONS – employment as managing director – whether director engaged in serious misconduct; EQUITY – fiduciary duties – conflict of duty and interest – whether disclosure necessary to avoid conflict; CORPORATIONS – construction of s 200F of the Corporations Act 2001 (Cth)

CRIMINAL LAW – leave to appeal against sentence – – Crimes Act 1900 (NSW) s 66EA offence – whether there was a failure to give weight to the “victim impact statement” – whether there was a failure to take into account prospects of rehabilitation, and likelihood re-offending – whether there should have been a finding of special circumstances – appeal allowed – appeal dismissed

CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – whether sentencing judge erred in failing to find that the applicant had good prospects of rehabilitation as a mitigating factor – whether sentencing judge erred in taking into account the physical and psychological harm suffered by the victims as an aggravating factor

CRIMINAL LAW – bail – first application for release refused – bail granted on second application – material change in circumstances due to charges being downgraded – bail concerns addressed by imposition of conditions

EVIDENCE – cash payments retail outlets in period of conduct after indictment – relevance – prejudice – no question of principle

CRIMINAL LAW – Jury – Where jury deliberations had commenced and had proceeded for several days – Where juror fell ill – Medical Certificate stating that the juror would be ill for one day – No reference made to the possibility of the juror’s illness extending beyond that – Where Crown sought that the juror be discharged and an order made that the deliberations continue with 11 jurors – Application opposed – Application refused

CONTRACTS — Existence of contract – where plaintiffs contended that they and the defendant entered into a binding settlement agreement – where defendant denied the existence of a binding contract on the basis that the effect of the mediation agreement between the parties was that any settlement agreement could only be reached in writing – where the defendant also contended that the parties’ intention was not to make a concluded bargain unless and until a formal contract was executed – whether a binding agreement existed. PROCEDURE — Costs – where there were legacies payable out of an estate to the plaintiffs and defendant – where plaintiffs were successful in application seeking a declaration that the plaintiffs and defendant entered into a binding settlement agreement – where plaintiffs contended that their costs of the application be paid on an indemnity basis from the fund of the estate comprising the legacy payable to the defendant – whether costs order sought by the plaintiffs should be made.

CORPORATIONS – application for approval by liquidator under ss 477(2A), (2B) and 479(3) Corporations Act 2001 (Cth)

CRIMINAL LAW – application by Crown to revive memory in court – telephone numbers – not a memory test – leave granted – no point of principle

ASSOCIATIONS AND CLUBS - interim suspension of registration as Club Official pending final determination - natural justice - procedural fairness - whether Club Official entitled to be heard before interim suspension - proper construction of rules - whether right to be heard before interim suspension excluded by language of the rules

HIGH RISK OFFENDER – serious violent offender – preliminary hearing – interim order sought – two qualified psychiatrists to be appointed to conduct examinations – defendant directed to attend examinations – interim supervision order imposed with conditions

PROCEDURE – notice of motion – order seeking to strike out notice to admit facts – notice to admit facts set aside apart from clauses 9, 10, 11 and 12 – costs PROCEDURE – notice of motion – order seeking to leave to administer interrogatories – Rule 22(1) of the Uniform Civil Procedure Rules 2005 (NSW)

PROCEDURE – costs – departure from the usual order sought – orders made

SUCCESSION – Making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Ability of deceased to comprehend and appreciate claims on her estate and weigh the relative claims of those who may have had a claim. SUCCESSION – Wills, Probate and Administration – Probate and letters of administration – Practice – New South Wales – Form of grant – Distinction between grant in common form and grant in solemn form – Practical operation of the distinction

PRACTICE AND PROCEDURE – application for summary judgment – possession of land – possession of water rights – mortgage – Heads of Agreement – default – cross-claim – equitable set-off – whether cross-claim impeaches mortgagee’s title

CORPORATIONS – interim relief – sufficiently arguable case of misleading and deceptive conduct – sufficiently arguable case of risk of dissipation – balance of convenience

PROCEDURE – discovery of documents – verified discovery of documents falling within classes – where documents likely not producible on general discovery

CRIMINAL LAW – application for discharge of individual juror – juror’s acquaintance with important witness – whether reasonable apprehension of bias – where connection raised by the witness – no contact for six years – where juror knows witness by nickname – immediate recognition of photograph – appropriate legal test – where juror denies influence – whether influence may be sub-conscious – where accused oppose discharge – whether directions capable of curing sub-conscious influence – fact that juror would have been excused if matter emerged at beginning of trial not relevant – “It was a different time” CRIMINAL LAW – procedure on application to discharge individual juror – separating juror from remaining members of the jury – Sheriff’s investigation – power to examine juror – when appropriate to examine juror – investigations during trial not exhaustive CRIMINAL LAW – discretion to continue trial when individual juror discharged – two stage process – questions not to be conflated – statutory test

CORPORATIONS – winding up – contested application to wind up legal practice – where consent judgment entered against defendant after failure to pay amount specified in deed of settlement – persistent failure to pay judgment debt – where statutory demand issued – where application to set aside statutory demand dismissed by another court –where defendant presumed insolvent under Corporations Act 2001 (Cth) – whether defendant sustained onus of proving solvency

CRIMINAL LAW – application by Crown for leave to cross-examine – application made after accused had cross-examined – refreshingly sparse cross-examination – witness adverse in one respect – application not made when witness gave evidence in chief – obligation of party to put matters to witness – unfairness to accused – application refused

FINAL RELIEF AND COSTS – judgment given dismissing a claim for relief under Conveyancing Act 1919, s 89 but granting some relief as to the rights created under an easement – submissions as to the proper form of a declaration to be made consequent upon the Court’s reasons in the principal judgment – whether each party should bear its own costs of the proceedings or whether some other order should be made – what directions should be made with respect to the balance of the issues in the proceedings, namely a claim for trespass.

CONTRACT – oral agreement alleged between the plaintiff and his then domestic partner that the plaintiff would expend money to renovate the main house on a property at Coraki in northern NSW owned by the partner and her sister, and that the plaintiff and his partner would have the right to occupy the property during their joint lifetimes and that the plaintiff would then have the right to occupy the property after his partner’s death - plaintiff expends money on the renovation of the main house from 2007 – after the death of the partner, her executrix and the sister/co-owner of the land refuse the plaintiff access to the Coraki property – whether the executrix has repudiated the agreement – whether and if so what damages the plaintiff has suffered as a result of such repudiation. ESTOPPEL – promissory estoppel – plaintiff renovates country property pursuant to an oral contract – acts allegedly done on the faith of promises made to him or on the faith of an expectation created in him by his partner that he would have the right to occupy the property during their joint lifetimes and that the plaintiff would then have the right to occupy the property after her death - plaintiff expends money on the renovation – whether the deceased intended the plaintiff to rely on the promises allegedly made or the expectation allegedly created – whether the plaintiff relied upon the promises or expectation alleged – whether it would be unconscionable for the partner’s executrix now not to fulfil the promises or the expectation alleged – whether renovation works were done on the Coraki property – whether the sister is bound by the promises made such that relief may be granted against her as well as against the estate – what form of relief, if any, should be granted in favour of the plaintiff. ESTATE ADMINISTRATION – defendant/cross-claimant alleges that the plaintiff/cross-defendant has retained a Mercedes Benz motor vehicle and certain jewellery and personal effects of the deceased – whether the Mercedes Benz and any jewellery or personal effects of the deceased are held by the cross-defendant - what jewellery or personal effects of the deceased is the estate entitled to have returned from the cross-defendant.

PRACTICE AND PROCEDURE — costs — conduct of first defendant brought about the litigation — settlement agreement reached between the parties — defendants ready and willing to perform obligations under settlement agreement — plaintiff failed to perform obligations under settlement agreement — settlement agreement not completed — plaintiff to pay defendants’ costs of the proceedings after the date of the settlement agreement — first defendant to pay second defendant’s costs of the hearing on costs

PROCEDURE - Settlement of proceedings – Compromise of proceedings on terms to be approved by Court – Dispute as to form of one term – Dispute submitted to Court for determination

JUDICIAL REVIEW–interim relief sought where summons filed without notice – where no exceptional circumstances shown

COSTS– contempt proceedings – where subpoena not complied with – where subpoena onerous and respondent obstructionist– where subsequent agreement between parties as to form and scope