Cases and authorities

CORPORATIONS – winding up – insolvency – setting aside creditor’s statutory demand – whether grouping provisions in payroll tax legislation apply even though company not liable to pay payroll tax – valid grouping – whether there was debt owing as at that date – held, plaintiff failed to show there is genuine dispute as to existence of debt, and debt is conclusively established by notice of assessment

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

PROCEDURE – civil – interlocutory issue – documents produced by Deputy Commissioner of Taxation – whether protected information pursuant to Div 355 of Sch 1 to the Taxation Administration Act 1953 (Cth) – disclosures of protected information – proceedings related to taxation laws – disclosures made in performing duties as a taxation officer – disclosures fall within exception in s 355-50(2) item 3

CRIMINAL LAW – Evidence – Documents produced on subpoena – Claim for public interest immunity

PRACTICE AND PROCEDURE – statement of claim containing various causes of action – application by defendants for summary dismissal

COSTS – trial of plaintiff’s claim and defendant’s cross-claim in 1985 – verdict for the defendant in both claims – new trial ordered in 1987 – costs of first trial to abide the outcome of the new trial – plaintiff successful in new trial of her claim – cross-claim to be separately tried but not pursued – cross-claim later dismissed – plaintiff’s entitlement to costs of first trial

PRACTICE AND PROCEDURE – Successful proceedings by plaintiff against her husband for assault – application by plaintiff for account by defendant and his second wife for proceeds of sale of jointly owned property

PROTECTIVE JURISDICTION – Financial management – Incapacity for self-management – Management of protected estate – Appointment of family members as managers MENTAL HEALTH - Management and administration of property – Incapacity for self-management – Comparison of protected estate management and a private protective trust arrangement

HIGH RISK VIOLENT OFFENDER – Application by State for extended supervision order – issues as to duration, the terms of some proposed conditions – Aboriginal offender – involvement of Tribal Dreaming program

CORPORATIONS — Winding up — Application to appoint provisional liquidator under s 472(2) of the Corporations Act 2001 (Cth) — Where Defendants had breached prior undertakings provided to the Court and the Plaintiff – whether there is reasonable likelihood that winding up order would be made at final hearing – whether balance of convenience supports appointment of provisional liquidator.

NEGLIGENCE – duty of care – application of ss 5B and 5D of Civil Liability Act – whether Second Defendant owed duty of care to the Plaintiffs – where Second Defendant followed instructions of senior worker – where Second Defendant found to have exercised such duties with reasonable care and diligence – no breach of duty by Second Defendant – causation does not arise CONTRACT – breach of contract – whether Second Defendant breached express or alleged implied terms of the contract – whether course of dealing existed to give effect to those terms – court held implied term of contract that Second Defendant would exercise reasonable care and skill in undertaking work under the contract – determination of breach of contract unnecessary as liability falls under ss 5B and 5D of Civil Liability Act BAILMENTS – bailment for reward – whether employees take constructive possession of excavator – in circumstances of the case bailment not made out – each employee was taking a necessary safety precaution, not asserting a possessory right

CROSS-VESTING: application to transfer proceedings for possession to the Family Court – plaintiff a company – whether the company controlled by the husband in Family Court proceedings – wife claims the company as matrimonial property

PRINCIPAL AND AGENT – ratification – whether agreement purportedly made by agent on behalf of principal – whether ratifying principal aware of all material circumstances of agent’s actions EQUITY – trusts and trustees – constructive trusts – contributions to property – whether contributions made as part of joint endeavour – whether contributions made on basis of an expectation created, encouraged or acquiesced in by owner that contributor owned or would come to own property

CRIMINAL LAW - application for inquiry into conviction and sentence following conviction - Pt 7 of the Crimes (Appeal and Review) Act 2001 – whether Muldrock error at first instance – application with regard to sentence deferred with regard to a specific aspect

PROCEDURE – strike out application – negligent legal advice alleged – advocate’s immunity – whether the claim of the plaintiff is doomed to failure due to the immunity – reasonable possibility that the High Court will reconsider the scope of the immunity – whether the hearing should be stood over part-heard pending the determination of an appeal in the High Court

DAMAGES – where the defendant in breach of contract in poaching clients during and after employment with plaintiff – whether plaintiff entitled to damages assessed on basis of diminution in value of rent roll – whether clients would have left the plaintiff irrespective of defendant’s breach – assessment on basis of lost commissions

PRACTICE AND PROCEDURE - application for leave to join a new party pursuant to UCPR Pt 6 r 6.19

CORPORATIONS — receivers, controllers and managers — termination of receivership – where receiver and manager of companies sought to be discharged – where receiver and manager of companies sought dispensation from requirement to file accounts – where receiver and manager of companies sought Court approval of remuneration.

ADMINISTRATIVE LAW – application for extension of time – judicial review – relief by way of certiorari sought – applicant convicted ex parte in Local Court in 2005 – Criminal Procedure Act 1986 (NSW) s 196 – applicant claimed to be unaware of convictions until approximately nine years later – delay in filing summons too great and not sufficiently explained – severe prejudice caused by passage of time – application refused

PROCEDURE – notice of motion – application to vacate hearing date – granted

COURTS AND JUDGES - disqualification – allegation of actual and apprehended bias – application for presiding judge to disqualify herself – conduct of judge in relation to legal counsel – no evidence of bias

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

CORPORATIONS — Winding up — Application to set aside creditor’s statutory demand under ss 459H and 459J of the Corporations Act 2001 (Cth) – where director of creditor was also an alternate director of debtor – whether there was genuine dispute as to existence of debt – whether it is arguable debt was statute barred – whether it is arguable creditor was estopped from enforcing debt – whether demand substantially overstated amount of the debt – whether demand failed to separately describe multiple debts thereby causing substantial injustice – whether there was abuse of process due to real and sensible possibility of conflict of duty and duty in the director of the creditor authorising the demand to be issued. CORPORATIONS — Membership, rights and remedies — Derivative action — Application for grant of leave by shareholder to bring proceedings in name of company under s 237 of the Corporations Act 2001 (Cth) – where applicant sought leave to act on behalf of company to set aside creditor’s statutory demand – where leave was not obtained within the 21 day period for setting aside demand specified in s 459G of the Corporations Act 2001 (Cth) – where applicant was not initially joined as plaintiff in s 237 application – whether leave under s 237 must be obtained in separate proceedings – whether leave under s 237 must be obtained prior to the expiry of the 21 day period under s 459G – whether leave should be granted under s 237.

CRIMINAL PROCEDURE – confidential submissions made by Crime Commission – whether should be disclosed to the accused – where based on documents in the possession of the accused – whether exhibit list should be redacted

ADMINISTRATIVE LAW – appeal from Local Court – magistrate dismissed charge of intimidate police – s 60 Crimes Act 1900 – whether threat made to police officer communicated through third party intermediary can support the charge – binding authority gives “intimidates” ordinary English meaning – erroneous process of statutory interpretation undertaken – no requirement for intimidatory conduct to be in the presence of the police officer – magistrate’s decision set aside and matter remitted to Local Court

CRIMINAL LAW – Practice and procedure – Jury – Application to discharge jury following non-responsive answer by witness suggesting one of the accused was a “drug dealer” – Test to be applied – Necessity to act on the basis that the jury will follow and apply any direction given by the Trial Judge – Where any prejudice to the accused as a result of the evidence was capable of being dealt with by a direction to the jury – Application to discharge jury refused

CORPORATIONS – compulsory acquisitions and buyouts – compulsory acquisition by 90% holder – valuation – meaning of “fair value” – whether market or “true, intrinsic” value – held, true value - date of valuation – approach to valuation – whether post-valuation events may be taken into account – held, post-valuation date events may be taken into account CORPORATIONS – Jurisdiction and procedure of courts – civil jurisdiction – transfer of proceedings – between Supreme Court and Federal Court – where no relevant jurisdictional or geographical factor – where related litigation pending in Federal Court – where preferable that Federal Court proceedings be determined first – desirable that single court manage the whole of the litigation – held, proceedings transferred PROCEDURE – miscellaneous procedural matters – transfer of proceedings – desirability of a single court managing whole of related litigation WORDS AND PHRASES – “fair value”

PROCEDURE — Costs — where the Defendant sought indemnity costs for the costs of two motions – whether the Plaintiff had acted unreasonably – whether the Defendant was almost certain to have succeeded if the motions had been fully determined.

LIMITATION OF ACTIONS - negligence - date on which cause of action "discoverable by plaintiff" - plaintiff unaware that a compensation to relatives claim could be brought – whether plaintiff had taken all reasonable steps – cause of action not discoverable until plaintiff received advice that she could make a claim

CORPORATIONS – winding up – relief under Corporations Act 2001 (Cth), ss 588FE and 588FF – unreasonable director-related transactions within s 588FDA – s 588FDA(1)(c) – whether it may be expected that a reasonable person in the company’s circumstances would not have entered into the transaction EVIDENCE – challenge to evidential basis of primary judge’s reasoning – whether pleadings can constitute evidence EVIDENCE – challenge to evidential basis of primary judge’s reasoning – whether statements at bar table relied on as evidence – statements by way of explanation PRACTICE & PROCEDURE – appeals – notice of intention to appeal served out of time – Uniform Civil Procedure Rules 2005, r 1.12 – whether extension of time should be granted – no evidence respondents prejudiced by delay

ADMINISTRATIVE LAW – Statutory appeals from administrative bodies – Civil and Administrative Tribunal – Appeal Panel – Appeals from – Where Appeal Panel included Acting District Court judge – Appeal to Court of Appeal – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Supreme Court Act 1970 (NSW) s 48 – District Court Act 1973 (NSW), s 18 PROCEDURE – application for leave to appeal – costs – Civil and Administrative Tribunal Act 2013 (NSW), s 60

APPEALS – application for leave to appeal – judgment below $100,000 threshold – no question of principle – applicant failed to make out a clear case of injustice – leave refused

CRIMINAL LAW – Evidence – Evidence of statement made by accused – Where statement relied upon by the Crown as a lie – Whether evidence of the statement should be excluded – Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused – Evidence admitted

JURISDICTION – inherent jurisdiction not to be used as a back door method to enable unsuccessful litigants to re-argue cases COUNSEL – duty to court – obligation to restrain the misconceptions and enthusiasms of client FINALITY OF LITIGATION – public interest in bringing an end to hopeless causes SUMMARY DISMISSAL – prohibition on institution of further proceedings justified, in addition to summary dismissal

HIGH RISK SEX OFFENDER – Application by State for extended supervision order – issues as to duration of the order and some of the proposed conditions

DAMAGES – contract – building – breach of statutory warranties in Home Building Act 1989 (NSW) – where judgment for liability entered with damages to be assessed – where defendant did not appear for assessment hearing – whether expert reports addressed defects the subject of liability judgment and reasonable costs of remedying those defects – no question of principle

PRACTICE AND PROCEDURE – principal judgment on appeal delivered previously – consequential findings concerning quantification of damages and costs orders now made

COSTS – indemnity costs – joint offer of compromise – where offerees have separate causes of action – whether offer capable of acceptance by offerees separately

PRACTICE AND PROCEDURE – UCPR r 36.15 – application to set aside judgment – whether judgment given irregularly, illegally or against good faith – application to re-open decision dismissing application for leave to appeal – whether the Court misapprehended facts or law PRACTICE AND PROCEDURE – UCPR rr 7.1 and 7.2 – whether corporate plaintiff may commence or carry on proceedings in Supreme Court by a director who is not also a plaintiff in the proceedings

TORTS – negligence – merchandiser working in supermarket seriously injured when she stepped backwards off a small step into a shopping trolley – nature of supermarket’s duty of care – “harm” referred to in s 5B(1)(b) of the Civil Liability Act is appreciable personal injury – whether risk of harm “not insignificant” – whether reasonable person would have taken precautions – relevance of common practice – extent of employer’s liability – entitlement of occupier and employer to expect care to be taken in performance of commonplace activities

PROCEDURE – costs – security for costs – relevant considerations in exercising discretion for making order for security – quantum

INJUNCTION – ex parte – declaratory and other relief sought in relation to access to premises for the purposes of removing property identified – undertaking given as to damages – urgency established – balance of convenience favours the granting of a short stay – orders sought made

CORPORATIONS — Winding up — Replacement of liquidator — where liquidator of several companies executed enforceable undertaking in favour of the Australian Securities and Investments Commission which had effect of requiring his removal as liquidator except in respect of one company – where orders that were sought for replacement of liquidator were either in conformity with undertaking to ASIC or approved by ASIC – whether orders under s 473 of the Corporations Act 2001 (Cth) for replacement of liquidator in respect of the court-appointed liquidations should be made – whether orders under s 503 of the Corporations Act 2001 (Cth) for replacement of liquidator in respect of creditors’ voluntary liquidations be made.

CRIMINAL LAW – pre-trial publicity – orders to protect accused from jury panel searching for information about accused before empanelment

CORPORATIONS — Deed of company arrangement — Orders sought for termination of deed of company arrangement — where the conditions specified in the termination clause of the deed of company arrangement was unlikely to be satisfied – whether the deed of company arrangement should be terminated for “some other reason” under s 445D(1)(g) of the Corporations Act 2001 (Cth) – whether the deed fund should be distributed in circumstances where it would operate unfairly between creditors.

COSTS – application for indemnity costs based on Calderbank offer – consideration of proportionality of costs to interest at stake – whether disproportionality establishes unreasonableness of refusing offer

HIGH RISK VIOLENT OFFENDER – Application by State for extended supervision order – issues as to duration of order and some of the conditions proposed

HIGH RISK SEX OFFENDER – Application by State for extended supervision order – issues as to duration of order and some of the conditions proposed

COSTS – indemnity costs – where proceedings stayed for abuse of process

SUCCESSION - informal testamentary document - no dispute that altered Will not executed in accordance with s 6 Succession Act 2006 - No dispute that the altered Will purports to state the testamentary intentions of a deceased - Deceased familiar with the formal requirements for the making of a valid will - Whether Court satisfied that the deceased intended the altered Will to form a Will - No dispute that if Court not satisfied there should be grant of Probate of typewritten Will - Sufficient evidence for the Court to dispense with the usual requirements for the execution of a valid will under s 8(2) of the Succession Act - Probate granted of altered Will