Cases and authorities

PROCEDURE – application for determination of separate questions – where parties not agreed as to formulation of questions – whether proposed separate questions address allegations as pleaded – application to strike out paragraphs of pleadings – whether no reasonable cause of action disclosed – application to consolidate related proceedings – whether common question of fact – application for interlocutory relief – whether necessary to make order for payment of monies into Court to protect trust assets pending determination of issues as to breach of trustee’s obligations and duties – no question of principle

SUCCESSION - family provision - application by adult daughter - Provision made by deceased and his wife during lifetime - Legacy of $50,000 left to Plaintiff in last Will of deceased – Balance of deceased’s estate left to son of the deceased - Evidence of mistake in methodology used by the deceased in determining amount of legacy - Only issues at the hearing whether the Plaintiff has been left with adequate provision for her proper maintenance or advancement in life and, if not, what, if any, further provision ought to be made out of the estate for those purposes – Court not satisfied of inadequacy of provision made for the Plaintiff – Summons dismissed – How burden of costs of the proceedings to be borne – No order for the Plaintiff’s costs – Defendants’ costs to be borne by the estate.

CRIMINAL LAW – appeal against conviction – whether Crown raising issue of motive to lie resulted in miscarriage of justice – effect of R v Jovanovic direction

CRIMINAL LAW – Evidence – Documentary evidence – Discretionary exclusion

JUDGMENTS AND ORDERS – Enforcement against judgment debtor’s property – Legal remedies inadequate - Equitable execution by appointment of receiver

PRACTICE AND PROCEDURE – application to transfer proceedings to the Local Court – proceedings commenced in Supreme Court – Statement of Claim subsequently amended so that proceedings could have been commenced in Local Court – cross-claim seeking relief under Contracts Review Act and National Consumer Credit Protection Act – transfer refused

CORPORATIONS – TRADE PRACTICES – misleading and deceptive conduct – accessorial liability – whether subsidiaries were knowingly concerned in holding company's misleading and deceptive conduct in releasing financial results which were overstated by reason of incorrect accounting treatment of a transaction – where overstated financial statements of holding company consolidated results for subsidiaries – where overstatement in subsidiaries' financial statements was genesis of overstatement in holding company's statements – whether officer who authorised subsidiaries' financial statements had requisite knowledge that they would be carried forward into consolidated results and render them misleading – held, actual knowledge inferred in absence of contrary evidence from officer's experience as an accountant, responsibilities as Chief Financial Officer, and involvement in the transaction. CORPORATIONS – TRADE PRACTICES – misleading and deceptive conduct – damages – causation – where plaintiffs acquired shares on a market distorted by corporation's misleading and deceptive conduct – whether plaintiffs entitled to damages on basis of “indirect market causation” where there was no direct reliance on contravening conduct to acquire shares – held, “indirect causation” available and direct reliance not required CORPORATIONS – TRADE PRACTICES – misleading and deceptive conduct – damages – quantification of plaintiffs’ damages

ADMINISTRATIVE LAW – procedural fairness – application for order under s 69 of Supreme Court Act 1970 (NSW) to quash adjudication determination made under Building and Construction Industry Security of Payment Act 1999 (NSW), Pt 3, Div 2 – whether adjudicator rejected head contractor’s set-off claim to liquidated damages on bases not contended for or notified to parties – where head contractor had submitted sub-contractor had no entitlement to extension of time – where sub-contractor had submitted liquidated damages claim unreasonable – where adjudicator rejected set-off claim on basis that head contractor, acting reasonably, should have granted extension of time to sub-contractor – no denial of procedural fairness

PROCEDURE – whether a stay should be granted until the conclusion of related criminal proceedings –need for prejudice which must be apparent and not merely fanciful – criteria for grant of stay

PRACTICE AND PROCEDURE – notice of motion – where no proceedings on foot in Court of Appeal – no supervisory jurisdiction conferred by ongoing proceedings in Common Law Division PRACTICE AND PROCEDURE – notice of motion seeking coronial inquest – need to identify an arguable basis for such an order – application required to be made before primary judge

EQUITY – fraud – victim “invested” money with fraudster – fraudster dissipated victim’s money – victim repaid largely using money stolen from Club – victim used money to acquire Torrens land – fraudster held bank cheque purchased with stolen funds on trust for Club – whether personal claim unavailable to Club because such a claim would “outflank” liability under Barnes v Addy – whether reasoning in Farah Constructions v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 inconsistent with, or confirmatory of, Club’s personal claim – nature of overlapping claims at common law and in equity considered – whether Club’s claim confined to direct recipient of stolen funds – whether victim was a volunteer – Austin v Khaliffe [1966] 2 NSWR 632 criticised and distinguished MONEY HAD AND RECEIVED – availability against recipient of stolen funds – relationship with claims in equity – whether confined to direct recipient – whether recipient was a volunteer

CRIMINAL LAW – appeal against sentence – whether sentencing judge erred in not backdating or otherwise taking into account applicant’s pre-trial custody – whether sentence imposed in respect of the s 112(2) offence resulted in miscarriage of justice – appeal upheld – sentence quashed – resentenced

CRIMINAL LAW – Evidence – Admissibility of document sent to one accused from another inmate – Whether evidence that the letter was written at the behest of the co-accused – Evidence rejected

EMPLOYMENT – contract of employment – defendant is a senior technical employee of the plaintiff, a public media broadcaster – his contract of employment expires on 30 June 2017 – in February 2016 the defendant gave five weeks’ notice of termination of his employment with the defendant – whether or not the employment contract is terminable on reasonable notice before 30 June 2017 – if the contract is terminable on reasonable notice, whether the defendant has given sufficient notice of termination – whether the contract is void as a restraint of trade. CONFIDENTIAL INFORMATION - whether the plaintiff’s information is confidential – proof of the extent of confidential information in the defendant’s hands – whether the defendant is likely to use any confidential information of the plaintiff prior to the hearing. INJUNCTION – interlocutory injunction – whether an interlocutory injunction should be granted - whether the plaintiff has established a serious question to be tried – whether the balance of convenience and questions of hardship and other relevant factors favour the grant of an interlocutory injunction in the circumstances - on what terms should any injunction be granted.

PROCEDURE – costs – departure from the usual costs order sought – costs on the funds management assessment – no proper basis for any departure from the usual costs order established PROCEDURE – stay – variation sought to consent orders made – no explanation for proposal – order sought declined

CRIMINAL LAW – sentence – conceal serious offence – murder – not guilty to murder – plea of guilty to lesser charge accepted – early plea and assistance – problems in police approach to investigation and Crown’s approach to the prosecution regarding CCTV footage – aggravating factors – mitigating factors – deterrence – subjective circumstances – victim impact statement – conviction – suspended sentence

LEGAL PRACTITIONERS – incorporated legal practice – duty to clients – whether general retainer in existence – terms of retainer – asserted breach of retainer – clients suffering large losses as a result of mortgage lending – torts – negligence – duty of care – whether duty of care included passing all information acquired onto clients – operation of s 5O Civil Liability Act 2002 (NSW) - duty and breach – whether duty extended to advising on valuation of security – whether solicitors should have carried out ASIC search shortly before draw down of loan to company borrower – causation – whether alleged breaches of duty and retainer caused loss – whether clients would have made loans regardless of breach of duty – causation not established - contributory negligence – proportionate liability of solicitors.

PRACTICE – Application for summary relief – Pleading alleged to be defective – Strike out application dismissed

PRACTICE AND PROCEDURE – appeal – pleadings – whether appellant’s claim for damages for wrongful use of and denial of access to plant and equipment was adequately pleaded at trial – whether primary judge erred in failing to address case pleaded and presented by appellant APPEAL – power to order a new trial – Supreme Court Act 1970 (NSW), s 75A(10) – whether substantial wrong or miscarriage of justice if new trial not ordered – Uniform Civil Procedure Rules (2005), r 51.53 – new trial limited to appellant’s claim for damages for wrongful use of and denial of access to plant and equipment – appeal allowed

CRIMINAL LAW – joint criminal enterprise – limited evidence against applicant – whether separate trial PROCEDURE – joint trials – limited evidence against applicant as compared to that against co-accused – whether quantity of evidence prejudicial – whether separate trial

CRIMINAL LAW – sentence - Crown appeal – aggravated break, enter and commit serious indictable offence and armed robbery – multiple offences of considerable seriousness – failure to take into account that offences committed while on conditional liberty – aggregate sentence manifestly inadequate –insufficient degree of notional accumulation of indicative sentences – failure of aggregate sentence to reflect overall criminality

CORPORATIONS — Winding up — Application by liquidator under s 564 of the Corporations Act 2001 (Cth) permitting preferential payment to certain creditor – where creditor provided funding for liquidators’ examinations and proceedings which resulted in recoveries – whether funding creditor should receive preferential payment of the entirety of the net proceeds received from litigation.

CORPORATIONS — Winding up — Directions sought under s 479(3) of the Corporations Act 2001 (Cth) — where liquidator of company that was corporate trustee of certain trusts sought various directions – where direction was sought that company holds certain property as trustee for certain trusts – where direction was sought that company is entitled to indemnification from assets of the relevant trusts for liabilities properly incurred as trustee – where direction was sought that assets of the trusts may be realised to satisfy relevant indemnities – where liquidator sought appointment as receiver of the assets of the trusts to give effect to the relevant indemnities – whether company is entitled to indemnification from trust assets for liabilities properly incurred as trustee and whether that right exists even where company is no longer trustee – whether liquidator of corporate trustee may be appointed as receiver of trust assets by way of enforcement of trustee’s right of indemnity.

Mental Health Fitness Enquiry

NEXT OF KIN INQUIRY – plaintiffs justified in distributing the estate – Benjamin Order

PROCEDURE – application for adjournment at commencement of appeal – relevant documents said to be omitted from appeal books – application refused

COSTS – appeal – civil – interpretation of orders as to costs – validity of certificate of costs assessor – status of certificate where enforcement of costs order stayed pending outcome of appeal PRACTICE AND PROCEDURE – judgments – orders for costs of trial set aside on appeal – remitter from High Court – no subsequent order made – whether new order can be made as to costs of trial under slip rule, Uniform Civil Procedure Rules 2005 (NSW), r 36.17 – whether court can make further order which should have been made when judgment delivered JUDGMENTS AND ORDERS – judgment based on certificate of costs assessor – order for costs set aside – whether certificate of assessment invalid – whether certificate can form basis of new judgment if further order made for payment of same costs

PRACTICE AND PROCEDURE – application for leave to appeal from single judge of Supreme Court reviewing decision of Associate Judge – application for security for costs - whether primary judge erred in disturbing the factual findings of Associate Judge –whether leave to appeal should be granted

BAIL – release application – show cause offence – whether applicant has shown cause – no sufficient matters identified

CRIMINAL LAW – Crown appeal against sentence – conspiracy to import substantive quantity of drugs including 3.96kgs pure cocaine and 2.25kgs pure MDMA and supply large commercial quantity 1.97kgs methylamphetamine – conspiracy to import and large commercial supply separate and discrete offences – sentence for large commercial supply fully concurrent with sentence for conspiracy to import – objective seriousness of each offence high – modest subjective case – need to ensure public confidence in the administration of criminal justice – error in sentences not being partially cumulative – need to re-sentence.

CRIMINAL LAW – murder trial - 81-year old housed in custody - housed in Long Bay Hospital Wing - circuitous and protracted transport of Accused to and from court by Correctional authorities - concern that transport arrangements may impact adversely on fair trial of Accused - strong recommendation made that Accused be transported to and from court by more direct route

BANKRUPTCY – proceedings against bankrupt – whether a legal proceeding in respect of a provable debt – plaintiff claims that bankrupt granted it an equitable charge over real property – plaintiff seeks orders for judicial sale and payment out of proceeds of sale – Bankruptcy Act 1966 (Cth), s 58

PRACTICE AND PROCEDURE – Subpoenas – Provision of funds by issuing party to secure in advance recipients’ reasonable costs of compliance – UCPR Part 33 r 33.11

CRIMINAL LAW – SENTENCE – Brothers for Life – gangland violence – turf war – accessory before the fact to murder – accessory before the fact to shoot with intent – participation in a criminal group – “Little Crazy” – callous – carefully planned – execution of rival gang member – principal offence committed in the home of a relative of the victim – disregard for public safety – whether offender acting under duress – whether letters to co-offenders inconsistent with duress – sickly sweet – ;) – assistance to authorities – belated plea of guilty and offer of assistance – assessment of appropriate discount – future assistance of very high value – diminishing return – parity with co-offenders – comparison with “indicative” sentences that formed part of a aggregate sentence

REPRESENTATIVE PROCEEDINGS – costs – defence seeks order in respect of discrete issues – whether costs should be reserved or costs order made – adjournment of hearing of determination of separate question because of departure from its foreign law notice.

INJUNCTIONS - Freezing order over assets of third party estate pending construction of will where, depending on construction, judgment debtor may be sole beneficiary – UCPR Part 25 r 25.14

PROCEDURE – contempt proceedings – adjournment – where defendant required for cross-examination – where defendant not properly informed of requirement of their attendance

REAL PROPERTY – Conveyancing – Matters arising between contract and conveyance – Notice to complete – Serious question to be tried – Whether notice can be suspended and reactivated

CRIMINAL LAW – Practice and Procedure – Request by jury for transcript of evidence of witness whilst evidence being given – Nature of discretion – Request refused

CRIMINAL LAW – Evidence – Account given by accused of death of deceased – Allegation of threats made by the co-accused at that time – Where terms of threat included a reference to a previous attempted murder of a police officer – Where further evidence of accused of conversation with the co-accused where the co-accused is alleged to have admitted his involvement in previous murders or attempted murders – Where evidence relied upon by accused in respect of duress – Whether probative value of the evidence was substantially outweighed by the danger of unfair prejudice – Evidence excluded

PROCEDURE – motion seeking payment to third defendant of monies paid into Court – application to adjourn motion – basis on which monies paid into Court – no question of principle

CRIMINAL LAW – sentence – murder – robbery in company – planned attack by four men – very serious example of murder – on bail at time of offence – no favourable subjective features – extensive criminal history resulting in institutionalisation – purposes of sentencing call for more severe penalty – very bleak prospects of rehabilitation CRIMINAL LAW – sentence – contempt of court – very serious examples of the offence type – use of foul and abusive language – use of violence against co-accused – threats made against trial judge

SUCCESSION – Family Provision – Whether applicant left with insufficient provision – Claims by former partner and adult children – Competing claims of widow and minor child – Orders made capping costs payable out of estate

PRACTICE AND PROCEDURE - transfer of proceedings to the Land and Environment Court under s 149B of Civil Procedure Act as the more appropriate court – whether the transfer is in accordance with the overriding purpose in s 56 of the Civil Procedure Act

ADMINISTRATIVE LAW – judicial review – grounds of review – whether reasons inadequate – whether incorrect questions asked – whether failed to consider contentions seriously advanced ADMINISTRATIVE LAW– motor vehicle accident – decision of claims assessor – obligations imposed on claims assessor in the giving of reasons

CRIMINAL LAW – pre-trial hearing – whether partial defence of extreme provocation is raised –murder – s.23 Crimes Act 1900 – whether the alleged conduct of the deceased was capable of constituting a serious indictable offence – s.13 Crimes (Domestic and Personal Violence) Act 2007 – consideration of Parliamentary intention of Crimes Amendment (Provocation) Act 2014 – whether the conduct of the deceased connected with investigations of alleged land clearing contrary to the Native Vegetation Act 2003 could amount to a serious indictable offence CRIMINAL LAW – pre-trial hearing – tendency evidence –defence seeking to adduce tendency evidence in respect to the deceased – relevance – significant probative value

PROCEDURE – application to transfer proceedings to the Family Court under Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 5(1) – whether in interests of justice – where subject matter within speciality of this Court, issues discrete, and no risk of conflicting findings or orders, or the duplication of costs – application refused PROCEDURE – application for separate determination of Cross-Summons – where issues not joined – where likely to be some overlap of issues as to facts and credit of witnesses – application refused COSTS – application for security for costs under Uniform Civil Procedure Rules 2005 (NSW), r 42.21 and Corporations Act 2001 (Cth), s 1335 – whether reason to believe plaintiff corporations unable to pay adverse costs order – where plaintiffs’ assets held on trust – where no undertaking assuring plaintiffs will be indemnified out of trust assets – order for security

ADMINISTRATIVE LAW – judicial review – medical assessment under Motor Accidents Compensation Act 1999 (NSW) – whether review panel failed to discharge its statutory function because it failed to assess all matters afresh in assessing whole person impairment

CRIMINAL LAW – practice and procedure – appeal costs

PRACTICE AND PROCEDURE – pleadings – Notices of Motion – application for leave to amend Statement of Claim – application seeking order for particulars COSTS - indemnity costs