Cases and authorities

CORPORATIONS — Winding up — Winding up in insolvency — Application for an order that the defendant company be wound up under s 459P of the Corporations Act 2001 (Cth) — where creditor applied for winding up of company on basis of company’s failure to comply with creditor’s statutory demand – where the creditor’s statutory demand overstated the debt owed to creditor – where the company had neither applied to set aside the creditor’s statutory demand nor appeared at hearing to oppose its winding up – whether presumption of insolvency arising from noncompliance with statutory demand applies in circumstances where statutory demand overstated the amount of debt owed to creditor – whether the Court should order winding up of company.

PRACTICE AND PROCEDURE — Application by company to set aside winding up application under s 61(3)(a) of the Civil Procedure Act 2005 (NSW) and r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) – where the Court had previously ordered that any party seeking substitution as creditor in the winding up application file its application by a certain date which did not occur – where several creditors intervened in application opposing company’s application to dismiss the winding up application – whether the winding up application should be dismissed having consideration to the just resolution of the proceedings and interests of public policy – whether the Court should make an order extending the time for parties to file an application for substitution as creditor in the winding up application. PROCEDURE — Costs – where company was unsuccessful in application to dismiss winding up application – where company had brought application in circumstances where no creditors had filed an application seeking substitution in the winding up application prior to the date specified in the Court’s directions – whether in the relevant circumstances costs orders should be made against the unsuccessful applicant.

EQUITY – usual undertaking as to damages – where, but for an injunction obtained by the plaintiffs, defendant would have earned rental from leasing out strata units – where unrealised capital value of the strata units increased during the period of the injunction by more than the lost rent – whether defendant’s compensation falls to be reduced by the unrealised gain – HELD compensation not to be reduced.

PROCEDURE– mortgages– sale of property– where surplus disputed– whether order providing for reservation of liberty to apply allows party to advance cross-claim for recoupment of surplus– where order made many years ago

CRIMINAL LAW – accused charged with murder – hearing to determine fitness to be tried – unanimous medical opinion – R v Presser and Kesavarajah v R applied – accused unfit to be tried

CIVIL LAW – further application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – appointment of experts to conduct psychiatric examination

APPEAL – security for costs application – whether appellant impecunious – whether appeal would be stifled if security order made – whether undertaking by sole director should be accepted

NEGLIGENCE – scope of duty of care – breach of duty – plaintiff’s vehicle collided with vehicle stationary in centre lane waiting to turn right – turn across painted lines not unlawful – whether reasonable person in the position of the driver would not have attempted the turn – need to consider line of sight for following vehicles and road and traffic conditions – no issue of principle

CRIMINAL LAW – interlocutory appeal – joint indictment – applicant charged with one count of sexual intercourse with a girl aged 14, and one count of committing an act of indecency towards a girl aged 11 – pre-trial ruling on objections to Crown adducing evidence of each complainant as tendency evidence in respect of the other charge and application to sever indictment – primary judge ruled evidence admissible – Crown conceded material errors by primary judge in failing to assess probative value, failing to assess whether probative value significant and failing to determine whether that value substantially outweighed prejudicial effect – Crown contended for narrower basis of admissible tendency reasoning – material differences between accounts of the two complainants meant absence of significant probative value and probative value failing to substantially outweigh prejudicial effect – appeal allowed, ruling set aside and indictment ordered to be severed – Evidence Act 1995 (NSW), ss 95, 97, 101 and 137 EVIDENCE – tendency rule – joint indictment – one complainant described spontaneous act of indecency by accused – other complainant described a series of interactions gaining her trust leading to sexual intercourse without consent – complainants were both young girls who first encountered accused driving in his car – whether acceptance of account of either complainant would have significant probative value in respect of the other charge – whether significant probative value substantially outweighed prejudicial effect

PROCEDURE – setting aside of subpoena for production of documents – where in previous proceedings Court ordered that no fresh proceedings be commenced on same causes of action without leave of court – where alleged that subpoena sought to elicit evidence to establish offsetting claim – whether by reason of previous Court orders, the offsetting claim is not maintainable

PROCEDURE – amendment – application to amend cross-claim – cross-claimant previously represented – proposed cross-claim drafted by cross-claimant acting for himself – failure to comply with rules for amendment – attempt to reintroduce matters expressly abandoned previously – attempt to plead matters previously determined in the proceedings adverse to the cross-claimant – res judicata - Anshun estoppel DISCOVERY AND INTERROGATORIES – claim for client legal privilege – implied waiver – Evidence Act 1995 (NSW) s 122 – whether inconsistency between pleading and maintenance of confidentiality – no waiver demonstrated

TORTS – negligence – duty of care – breach of duty – failure of Commissioner of Police to take reasonable precautions against the officer’s risk of suffering psychiatric injury – whether primary judge erred in applying s 5D of the Civil Liability Act 2002 (NSW) TORTS – negligence – factual causation - “but for” test of causation not applicable in this case – causation must be established by reference to s 5D(2) as an “exceptional case” – where factual circumstances do not indicate this is an exceptional case

CRIMINAL LAW – sentence appeal - parity – disparity of sentence between applicant and co-offender - co-offender’s sentence suspended to undertake Drug Court program – whether justifiable sense of grievance – whether sentence manifestly excessive

APPEAL – appeals pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW), s 14 – non-publication and take-down orders made by judge of the Supreme Court in the context of a criminal trial – whether appeal lies to Court of Appeal or Court of Criminal Appeal CRIMINAL LAW – interlocutory matters – non-publication orders made in respect of a criminal trial under Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 – where counts severed from indictment and criminal trials directed to proceed back-to-back – whether non-publication order in respect of evidence and submissions in first trial until conclusion of second trial “necessary” – whether other orders appropriate – interplay between open justice and right to fair trial CRIMINAL LAW – interlocutory matters – take-down orders made in respect of a criminal trial under Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 – whether orders directing removal of certain articles from certain news websites “necessary” – whether orders futile in light of material elsewhere on the internet

CRIMINAL LAW – sentence appeal – market manipulation and dishonesty offences – where offender assisted authorities in investigation of co-offenders – whether sentencing judge erred in determination of discount for assistance – whether error in comparative severity of sentences for offences – whether extent of accumulation reflected failure to apply principle of totality – leave to appeal granted and appeal dismissed

COURTS AND JUDGES – Judges – Plaintiff is a litigant in person – Court has previously found that she is a person under a legal incapacity - Application to have Judge recuse himself from further involvement in either proceedings - Application for recusal set down for hearing – Non-appearance by Plaintiff – Stay sought in email correspondence – Application for special leave to the High Court said to be ground for application – Application made by email sent to Court night before hearing – Email and attached documents not sent to Defendant in each case.

PROCEDURE – civil – judgments and orders – slip rule – where leave to list Notice of Motion for hearing was refused but Notice of Motion not formally dismissed – where effect of that order is to stay the execution of an order of the Deputy Registrar – Mistake corrected on the Court’s own motion

CORPORATIONS — Application for rectification of company’s share register under s 175 of the Corporations Act 2001 (Cth) — where plaintiff sought declarations that purported transfers of shares to second and fourth defendants are void – whether there was an equitable assignment of the plaintiff’s equitable interest in shares by reason of delivery of the executed transfer form to the nominated transferee – whether plaintiff expressed an immediate intention to dispose of his equitable interest in shares so as to effect an equitable assignment – whether the plaintiff had revoked the offer, or any authority, to sell the shares to the nominated transferee before it was accepted or implemented – where the share transfer form was amended without being initialled by plaintiff and without communication with him – whether estoppel claims against the plaintiff established.

CONTRACTS – effect of liquidator’s disclaimer under section 568A(1) of the Corporations Act 2001 (Cth) EXECUTION – whether guarantee was binding on parties when not executed as a deed REAL PROPERTY – whether after escheat the property the subject of the mortgage vested in the Crown in right of New South Wales or the Commonwealth LOCAL GOVERNMENT – exercise of the council’s power of sale under section 713 of the Local Government Act 1993 (NSW)

CRIMINAL LAW – sentence – appeal from Children’s Court constituted by the President – multiple property offences – break enter and steal, break and enter with intent, aggravated break enter and steal – some offences committed whilst on parole and other conditional liberty – young person with intellectual and emotional deficits – Attention Deficit Hyperactivity Disorder – need for supervision – length of non-parole period

EVIDENCE – coincidence rule – where proposed coincidence evidence admissible for another purpose – whether improbability reasoning permissible to prove acts and states of mind specified in coincidence notice CRIMINAL LAW – conspiracy – where similarities in alleged overt acts relied upon to prove anterior agreement – assessment of prejudicial effect on accused

REAL PROPERTY – possession of land – defendant resided in upstairs apartment – property owned by former mother in law – defendant only entitled to remain on property until adult children grew up and left – plaintiff entitled to possession REAL PROPERTY – possession of land – defendant claims equitable or contractual relief in cross claim – resulting trust – constructive trust – equitable lien – equitable charge – proprietary estoppel – estoppel by conduct and promissory estoppel – contractual relationship entitling defendant to live on property forevermore – defendant did not establish factual bases for cross claim – cross claim dismissed

ADMINISTRATIVE LAW – judicial review – decisions of the Civil and Administrative Tribunal of New South Wales refusing grant of leave and an adjournment – self-represented plaintiff alleged discrimination by members of the NSW Police Force – Principal Member of the Tribunal qualified to make decision – no denial of procedural fairness – no error of law established – no error in plaintiff naming NSW Police Force as defendant

COSTS – solicitor acting in person – whether exception to general rule that litigant in person not entitled to costs for time spent in preparation of case COSTS – gross sum costs order – whether order appropriate – whether quantum reasonable

COSTS – costs of appeal proceedings – costs in the discretion of the court under Civil Procedure Act 2005 (NSW), s 98 – usual order as to costs under Uniform Civil Procedure Rules 2005 (NSW), r 42.1 – whether no order as to costs should be made with a view to the parties bearing their own costs – relevance of “public interest” – relevance of “clarification of the law”

PRACTICE AND PROCEDURE — Costs — Civil Procedure Act s 99 — Application for costs against solicitor — Whether conduct of solicitor was serious neglect, serious incompetence or serious misconduct — Allegation of serious misconduct not made out

CRIMINAL LAW – evidence that may be unreliable – warning to the jury – application that warning be given at the conclusion of the witness’s evidence – whether appropriate – whether all legal directions and warnings should be given in the course of the summing up – where trial lengthy – where a large number of informant witnesses are to give evidence – where one accused opposed the warning prior to the summing up – no submission made that there were “good reasons” not to provide the warning – danger of warnings being diluted – examples of directions given during the course of the trial and in advance of the summing up

CRIMINAL LAW – trial procedure – joint trial – order of cross-examination – where accused alleging duress cross-examining last – fairness to other accused – whether further cross-examination should be permitted – skilful and committed interrogators – limitations on further examination – fairness to both accused

COSTS – appeal from decision of Local Court refusing to set aside default judgment – plaintiff awarded costs of application in Local Court – offer was made to set aside Local Court judgment and default judgment by consent – plaintiff sought indemnity costs associated with application in Supreme Court – plaintiff did not foreshadow indemnity costs would be sought – defendant sought to exclude costs for plaintiff’s affidavit outside scope of appeal in Supreme Court – costs in favour of plaintiff on ordinary basis excluding costs associated with affidavit

COSTS – plaintiff successful against first, second and sixth defendants and unsuccessful against seventh defendant – first, second and sixth defendants liable for plaintiff’s ordinary costs – sixth defendant insurer liable to indemnify first and second defendants – seventh defendant made Calderbank offer and Offer of Compromise– plaintiff liable for indemnity costs of seventh defendant after non-acceptance of Offer of Compromise – plaintiff seeking Sanderson or Bullock order against unsuccessful defendants in respect of liability for successful defendant’s costs – Bullock order made against sixth defendant for seventh defendants costs on ordinary basis – plaintiff liable for difference between seventh defendant’s ordinary and indemnity costs after non-acceptance of offer COSTS – sixth defendant made application for costs against non-party to proceedings – non-party a former director of third defendant who made statements leading to joinder of seventh defendant to the proceedings – no exceptional circumstances support making order against non-party

COSTS – Indemnity Costs

JUDICIAL REVIEW – review of decision of District Court on appeal from Children’s Court – whether error of law on the face of the record or jurisdictional error established – whether District Court applied correct provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW) CHILD WELFARE – care and protection of children – child protection orders – where mechanism of injuries unexplained – no realistic possibility of restoration – challenge to Children’s Court order conferring parental responsibility on maternal grandparents until aged 18 STATUTORY INTERPRETATION – application of amended legislation – whether rights and liabilities accrued under pre-amendment legislation for purposes of s 30, Interpretation Act 1987 (NSW) – relevant rights and liabilities arising from court orders under review CIVIL PROCEDURE – independent legal representative, s 98A Children and Young Persons (Care and Protection) Act 1998 (NSW) – whether a child the subject of care proceedings who is incapable of giving instructions should be a party to proceedings WORDS AND PHRASES – “new hearing” – s 91, Children and Young Persons (Care and Protection) Act 1998 (NSW)

CONTRACTS – whether acceptance of letter of offer to enter into agreement to lease and lease gave rise to binding contract – proper characterisation of agreement where several terms to be included in agreement for lease and lease remained to be agreed – whether letter refusing to proceed with contract “on current proposed terms” amounted to repudiation – whether right to terminate for repudiation lost where party alleging repudiation refused to continue to negotiate agreement for lease/lease documents – whether performance of that obligation had been dispensed with – whether party alleging repudiation was itself in breach of an essential term of the contract DAMAGES – avoided loss – benefit derived from termination of agreement – whether benefit sufficiently close to claimed head of damages as to be appropriate to set off against it

ADJOURNMENT APPLICATION – computer records of deceased – where deceased utilised online dating and adult websites to meet men – where Crown case indicates that only a non-exhaustive examination of the computer was conducted by investigating police – whether accused ought to be given an adjournment of seven sitting days mid-trial to permit expert to examine records completely – where no evidence available to suggest that a more detailed examination would be likely to produce anything further – where no question of any inference adverse to the accused if he failed to conduct an exhaustive examination of the computer

PROCEDURE – civil – Criminal Assets Recovery Act 1990 – restraining order

PROCEDURE – civil – Criminal Assets Recovery Act 1990 – restraining order

EQUITY – General principles – Equitable estates and interests - Nature of equitable interests and ownership – Beneficial ownership – Property purchased in the name of defendant alone – Defendant paid whole of purchase price and mortgage, not plaintiff - Plaintiff has no right or interest in property REAL PROPERTY – General principles – Ownership – Beneficial ownership

CORPORATIONS — Order sought for leave to be granted nunc pro tunc under s 500(2) of the Corporations Act 2001 (Cth) to proceed with claims against company in voluntary liquidation – where application for leave under s 500(2) of the Corporations Act 2001 (Cth) was filed after the expiry of relevant limitation period for the claims in substantive proceedings – whether leave should be granted in circumstances that company defending the substantive proceedings may be indemnified by insurer in respect of the claims – whether if leave is granted nunc pro tunc it should be granted from the date of commencement of the substantive proceedings in circumstances where that may deprive company of limitation defence.

CRIMINAL LAW – witness objects to answering questions – self-incrimination – whether reasonable grounds for objections – where witness facing trial for murder – capacity of questions to compel witness to disclose his defence – alteration to accusatorial process – where allegations relevant to defence of self-defence in current proceedings – interest of justice – balancing the rights of the accused and the witness – whether witness should be directed to answer questions over validly made objection – whether extent of cross-examination should be limited – whether witness should be provided with a certificate

CRIMINAL LAW – sentence – manslaughter – verdict of guilty after trial – single blow occasioning death – domestic violence – question of the use to be made of victim impact statements – relevance of a conditional offer of plea of guilty prior to trial – importance of general deterrence

COSTS – proceedings resolved quickly following commencement – plaintiff seeks order for costs – whether commencement of proceedings premature and unnecessary

PRACTICE AND PROCEDURE - validity of transfer of shares - motion to set aside subpoena - subpoena seeks production of confidential business records of company post transfer - whether substantial injustice in disclosing business records to competitors - whether primary judge misapprehended evidence adduced in other proceedings - whether notice to produce sought production of documents relevant to the credit of certain witnesses

EVIDENCE – hearsay – business records – where representations made in connection with investigation relating to or leading to a criminal proceeding – burden of proof – representations contained in records made by police officer responding to report of burning vehicle – Evidence Act 1995 (NSW), s 69(2) and (3) INSURANCE – policy insuring vehicle against destruction by fire – insurer denied indemnity and alleged insured was complicit in vehicle's destruction –whether primary judge reversed onus of proof – whether primary judge erred in admitting expert evidence as to engine immobiliser – whether primary judge erred in admitting records made by police relating to the incident – whether primary judge erred in concluding that insurer had established the exclusion applied – appeal allowed and judgment entered in favour of insured

COSTS – appellant made no submissions in relation to, and sought no orders against, one respondent to an appeal – the other respondent made contingent claim against the respondent in the event the appeal was allowed – appeal dismissed – contingent claim not addressed – whether Bullock or Sanderson order ought be made

CONTRACTS - existence of contract - where respondent leased premises to appellant - where current lease not yet expired - whether concluded agreement for lease for new term of 10 years arose from correspondence between parties - whether intention of parties to be immediately bound – where absence of agreement on initial rent, rent reviews and turnover rent – whether lease on "commercial terms" is sufficiently certain – specificity of terms – Sydney Harbour Foreshore Authority Act s 19 requirements – whether Ministerial consent was given for entry into lease with term exceeding five years – challenge to primary judge’s finding no consent was given – circumstances of alleged consent – application of s 19(3) Sydney Harbour Foreshore Authority Act – construction of word “lease” – whether includes agreement for lease – implied terms of agreement – that parties would do all that was reasonable to obtain consent – that grant of lease subject to Ministerial consent and such conditions as Minister may impose EQUITY - equitable remedies - specific performance - agreement for lease – where appellant asserts agreement for lease and seeks order for specific performance – where lease or licence of “core land” vested in respondent for term exceeding five years – where statutory requirement of Ministerial consent and subject to conditions Minister may impose – whether contingent condition fulfilled and contract emerged from inchoate stage TRADE PRACTICES - misleading or deceptive conduct - whether alleged representations were made by respondent - whether representations were misleading or deceptive or likely to mislead or deceive – where appellant alleged respondent failed to disclose alleged consensus within the respondent of intention to proceed to open tender when current lease expired – whether appellant had reasonable expectation of disclosure where parties in commercial negotiations – whether respondent had concluded view of whether binding agreement had been entered– where both parties had access to legal advice and appellant had no reason to think that it could look to the respondent for advice – whether appellant relied on non-disclosure – challenge to primary judge’s findings as to credit of witnesses – whether consistent with considering inherent probabilities of competing accounts and objective indicators TRADE PRACTICES - misleading or deceptive conduct – loss of opportunity claim by appellant – causation – whether opportunity lost was of some commercial value – whether evidence established respondent would have sold business had it known the true position PRODEDURE - Miscellaneous procedural matters – declarations - where findings of misleading conduct by primary judge – where primary judge made no declaration that respondent engaged in misleading or deceptive conduct – discretion of the Court - where respondent sought declaration in general terms – where declaration would be merely prefatory to an order for damages – whether declaration of no utility

CRIMINAL LAW - murder trial - shooting of environmental officer - defence tender of document - Crown objection - tender rejected

PROCEDURE – Civil Proceedings – Motions, interlocutory applications and other pre-trial matters - Strike Out Motion TRADE PRACTICES – Misleading and deceptive conduct – Damages – Causation – Indirect causation – Direct reliance on contravening conduct not required

PRACTICE - reference by court - finding by referee as to the proper construction of operative agreement - whether referee erred in law; CONTRACTS - proper construction – settlement deed – contract to do residential building work – nature of builder’s obligation to effect rectification works - whether certifier empowered to alter manner in which rectification works be effected and designated standard be achieved

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

CONTRACT – construction of terms – where remuneration payable to the plaintiff under an Advisory Mandate Agreement is to be calculated by reference to the proceeds received from sale of certain fixed property – construction of meaning of “proceeds” – application of construction to facts