Cases and authorities

CORPORATIONS – winding up – statutory demand – application for order setting aside – whether genuine dispute as to existence or amount of the debt – principles applicable – order made setting aside the statutory demand

BUILDING AND CONSTRUCTION CONTRACTS – warranties – assignment of warranties – effect of subsequent assignment of the subject-matter of the contract TORTS – negligence – existence of a duty of care – breach – whether claim apportionable under the Civil Liability Act 2002 (NSW) CONTRACT – ascertaining the parties to the contract EQUITY – estoppel – estoppel by convention DAMAGES – calculating loss – whether to discount award for betterment

DAMAGES – motor accident – future economic loss – whether trial judge erred in adverse finding of credit – whether trial judge erred in awarding a buffer rather than a capitalised weekly sum DAMAGES – motor accident – past and future assistance – onus of proof on plaintiff - whether trial judge erred in finding appellant did not establish need for such care

REAL PROPERTY – whether applicant has equitable interest in premises – whether applicant contributed to the purchase price of premises – whether presumption of resulting trust in favour of applicant – no evidence applicant contributed in own right to purchase price – no evidence that contributions were provided by applicant in character of purchaser – application for leave to appeal denied

CRIMINAL LAW – appeal against conviction – affray – whether verdict unreasonable – evidence that appellant present during a fight between two other men - whether evidence sufficient to establish appellant’s involvement by encouragement or willingness to assist

POSSESSION – UCPR r 12.8(7) – orders dismissing proceedings – application to reinstate proceedings by order vacating orders under UCPR r 12.8(7) utilising discretionary powers in UCPR Part 36 – orders granted.

EVIDENCE – admissibility – evidence of usual practice – usual practice of consultant surgeon EVIDENCE – circumstantial evidence – evidence of usual practice as circumstantial evidence

SUCCESSION – family provision – claim by adult son - where adult son was left nominal legacy from father’s estate – where substantial proportion of estate left to the deceased’s grandchildren – estrangement - son estranged from the deceased for over 20 years – inadequate disclosure by son of his financial position – obligation on applicant for provision to make full disclosure of his or her financial position - not shown that adequate provision not made

PROCEDURE – Civil – Locus standi – Application by first defendant for strike out or summary dismissal of proceedings pursuant to UCPR rules 13.4 and 14.28 or Court’s inherent jurisdiction – whether first defendant has standing to make application where he has been declared bankrupt – Trustee in bankruptcy appointed – serious allegations made against first defendant by plaintiff – first defendant has no standing to apply for strike out or summary dismissal should be afforded a limited right to appear in substantive proceedings to defend himself against serious allegations of impropriety

PERSONAL PROPERTY SECURITIES LAW: Personal Property Securities Act 2009 (Cth) ss 8(1)(j), 10, 13(2)(a), 267 – whether the lease is a security interest – lease of four mobile gas turbine generator sets – where voluntary administrators appointed to lessee – whether the lease is excluded from being a PPS lease – whether the lessor was regularly engaged in the business of leasing goods within the meaning of s 13(2)(a) – time when requirement to be regularly engaged in such business applies – whether the business activity must be in Australia – s 8(1)(j), whether the equipment is a fixture – whether the security interest of the lessor vested in the lessee HELD: business activity under s 13(2)(a) need not be in Australia – in any event lessor was regularly engaged in such activity in Australia – the test is to be applied at the time the lease is entered into – equipment did not become a fixture – lessor’s security interest vested in lessee immediately prior to the appointment of administrators.

EVIDENCE – expert evidence – where defendant’s experts are witnesses of fact in the events that generate the need for their opinions – whether experts unbiased and impartial – whether expert witnesses for the defendant are arguably the source of some of the factual material underpinning their opinions – whether bias or partiality demonstrated in such circumstances

CONTRACTS – construction and interpretation – outgoings provisions in commercial leases – obligation to pay increases in certain outgoings – whether necessary to depart from literal meaning of words so as to avoid commercial absurdity – scope of expression “in respect of the Premises” REAL PROPERTY – commercial leases – construction and interpretation – obligation to pay increases in certain outgoings – whether necessary to depart from literal meaning of words so as to avoid commercial absurdity – scope of expression “in respect of the Premises” WORDS AND PHRASES – “in respect of”

CRIMINAL LAW – sentence appeal – wounding with intent to cause grievous bodily harm – whether offence was properly found to be within the midrange of objective seriousness – whether applicant’s abusive upbringing properly taken into account – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.

CORPORATIONS – winding up – winding up in insolvency – where service of creditor’s statutory demand is disputed – held, satisfied on balance of probabilities that server did hand demand to employee at registered office of defendant CORPORATIONS – winding up – winding up in insolvency – whether service of statutory demand effective when left in shop not bearing the name of the company but on same floor as the registered address of the company where signage is absent

COSTS – Indemnity costs – defendant successful at hearing – two Calderbank letters served before hearing – whether plaintiff should pay defendant’s indemnity costs – whether the defendant was unreasonable in refusing the offer – public interest in deciding obscure or difficult points of law – whether genuine compromise is offered – incomplete filing of defendant’s evidence at time of offer.

CRIMINAL LAW – proceeds of crime – restraining orders

PRACTICE AND PROCEDURE – application for adjournment – application made on the day of hearing COSTS – where applicant sought adjournment on the day of hearing – proceedings adjourned – costs thrown away by adjournment – whether indemnity costs should be awarded – costs assessed on a lump sum basis COSTS – security for costs – costs of appeal and costs thrown away by adjournment CORPORATIONS – directors & officers – leave to appear on behalf of corporation

ADMINISTRATIVE LAW – judicial review for jurisdictional error – decision of New South Wales Civil and Administrative Tribunal (NCAT) to deregister medical practitioner – whether NCAT properly constituted by appointment of acting judge of District Court as a member – whether judicial member had conflict of interest – whether denial of procedural fairness by NCAT’s questioning of witnesses or accepting opinion evidence of general practitioner – whether apprehended bias disclosed by various procedural rulings of NCAT – significance of practitioner failing to exercise right of appeal – no ground of review made out – proceedings dismissed

CRIMINAL LAW – Appeal – Sentence – Break Enter and Steal – Where sentencing judge delivered ex tempore remarks on sentence and concluded that the offending was slightly below the mid-range of objective seriousness – Where sentencing judge stated that he reached that conclusion by taking into account the applicant’s past criminal history – Where sentencing remarks had been revised – No basis for concluding that the sentencing judge had intended to express anything other than what he had stated – Where no suggestion of a slip – Error established CRIMINAL LAW – Sentence – Break Enter and Steal – Where actions of the applicant were typical of this kind of offending – Where applicant had a long history of similar offending – Previous efforts at rehabilitation not successful – Evidence of the applicant’s mental illness – Level of moral culpability reduced as a result – Where mental illness rendered the applicant an inappropriate vehicle for general deterrence – Some prospects of rehabilitation notwithstanding the applicant’s history of similar offending – Applicant re-sentenced

CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty mid-trial to attempting to possess a commercial quantity of a border controlled drug – Psychologist’s report tendered on sentence diagnosed applicant as having a mild mental retardation – No submissions were put to sentencing judge regarding the applicability of principles pertaining to mentally ill offenders – Whether primary judge erred in failing to sentence the applicant according to such principles – Whether serious injustice arose as a consequence of the failure of counsel to put such submissions – No injustice established - No error established CRIMINAL LAW – Appeal – Sentence – Where applicant played a significant role in the importation of a commercial quantity of opium – Whether sentencing judge had proper regard to the applicant’s subjective circumstances – Seriousness of offending – Need for general deterrence – Sentence of 12 years and 6 months imprisonment with a non-parole period of 7 years and 6 months not manifestly excessive – Appeal dismissed

CRIMINAL LAW – Sentence – Character – Where offender had no prior convictions – Where offender gave evidence on sentence which was not accepted by the sentencing judge – Whether sentencing judge erred in finding that the offender was not of good character CRIMINAL LAW – Sentence – Where offender charged with importing tier 1 goods being reckless as to the fact that they were tier 1 goods – Where recklessness was defined by the Criminal Code 1995 (Cth) – Where Code provided that recklessness could be also established by evidence of intention or knowledge – Where jury directed in accordance with the definition of recklessness – Where no direction sought or given as to recklessness constituted by knowledge – Where jury convicted the offender – Where sentencing judge found on sentence that the case was not one of recklessness but one where the offender knew that the goods were prohibited – Whether finding of the sentencing judge was inconsistent with the verdict of the jury CRIMINAL LAW – Offences – Sentence - Importation of pseudoephedrine – Where quantity substantial – Where the applicant had packed her bags herself and was thus aware of the quantity – Need for the sentence to reflect general deterrence

CRIMINAL LAW – sentence – Crown appeal – sentencing judgment cited numerous principles and authorities but little exposure of reasoning – failure to assess objective seriousness of offences – no indication of whether general and personal deterrence and community protection factored into assessment of sentence – error in treatment of offences taken into account – error in having regard to possibility some offences could have been dealt with in Local Court CRIMINAL LAW – sentence – Crown appeal – multiple child sexual assault offences against nine victims – respondent a paedophile – early pleas of guilty – early seeking out of treatment – prior good character – necessity for Court to make its own assessment of objective seriousness of offences – significant matters in mitigation cannot prevail over need to impose sentence proportionate to gravity of crime - aggregate sentence unreasonable and unjust – affront to the administration of justice – Court persuaded to exercise discretion to intervene – respondent resentenced

CORPORATIONS – winding up – winding up in insolvency – creditor’s statutory demand – where defendant seeks leave pursuant to (CTH) Corporations Act 2001, s 459S to challenge applicant’s standing as creditor and indebtedness – whether application for leave satisfies three main considerations under s 459S – whether there is serious question to be tried as to whether debt exists – misnomer of corporate identity – whether debt claimed was payable – whether bill of costs was given to the company – where no sufficient explanation for delay – where unable to ascertain whether company would be solvent if not indebted – application dismissed

COSTS - where parties agreed to a dispute resolution regime in underlying agreement including as to expert determination – where plaintiff nonetheless commenced proceedings seeking declaratory relief as to the construction of the agreement – where expert ultimately decided that question adversely to the plaintiff and parties agreed proceedings must be dismissed – whether plaintiff should pay the costs of the proceedings

EVIDENCE – admissions – formal admission - application to withdraw at first instance PROCEDURE – expert evidence – application to amend statement of claim where late service of a report PROCEDURE – expert evidence – concurrent evidence – application to issue subpoena to other parties’ expert to give evidence

JUDGMENTS – application to pay by instalments – whether application should be dismissed for failure to comply with procedural directions – application returned to Registrar for determination

Criminal law – proceeds of crime – restraining orders

CIVIL LAW - Crimes (High Risk Offenders) Act 2006 - application for a continuing detention order - application for an extended supervision order - duration of extended supervision order

CRIMINAL LAW – Practice and procedure – Claim by Commissioner of Police for public interest immunity in respect of documents in answer to a subpoena – Necessity to carry out a balancing exercise – claim upheld

CRIMINAL LAW – Evidence – Evidence of a kind which may be unreliable – Where witness pleaded guilty and was sentenced to a term of imprisonment – Where witness offered to assist police and made a statement – Evidence that witness was motivated to assist by the prospect of a reduction in his sentence – Where representations were made to the Governor of NSW for reduction in sentence based on the assistance which was given – Where witness gave evidence in accordance with his statement – Where no decision had been made as to a possible reduction in his sentence as at the date on which he gave evidence – Where counsel for accused sought a direction under s. 165 of Evidence Act 1995 – Opposed by the Crown – Direction given

CRIMINAL LAW – parole – serious offender - Parole Authority has power to grant parole after the first eligibility date even if the offender has not applied for parole CRIMINAL LAW – whether offender ought by his conduct in engaging with the process of assessment for parole be taken to have applied for parole – no formal requirements for application for parole specified ADMINISTRATIVE LAW – relief in the nature of mandamus not available – Commonwealth Attorney-General’s power to issue a criminal justice entry certificate not a duty – power to seek extradition not a duty

EQUITY – equitable remedies – injunctions – injunctions in aid of restraints of trade – where the Plaintiff sought an injunction restraining former employee from working for a third party within Australia or New Zealand – where the Plaintiff sought an injunction preventing the Defendant from soliciting the Plaintiff’s clients and employees – whether restraint is void for breach of public policy – application of Restraints of Trade Act 1976 (NSW) – whether there is a threat of breach of restraints restricting the Defendant from soliciting the Plaintiff’s clients and employees.

EMPLOYMENT – whether contract of employment – whether sub-contractor – whether subject to a labour hire agreement – whether contractor’s insurance policy responded to claim of injury to worker not an employee TORTS – negligence – workplace injury – liability of occupier of premises – scope of plaintiff’s employment duties – whether occupier had knowledge of plaintiff’s activities – scope of occupier’s duty of care – whether risk of injury foreseeable – whether risk of injury significant – breach of duty – Civil Liability Act 2002 (NSW), s 5B TORTS – negligence – workplace injury – liability of employer – failure to inspect premises where plaintiff worked – whether inspection would have revealed risk of harm which materialised – whether breach of duty causative

APPEAL – grounds – question of law – factual finding not challengeable where some evidence available and finding reasonably open – Land and Environment Court Act 1979 (NSW), s 58 ENVIRONMENT AND PLANNING – acquisition of land – compensation – whether compensation payable to owner of acquired land should be reduced on account of payment to lessee – whether owner’s interest in fee simple qualified by expectation that the lessee would have continued to exploit the quarry on the land – whether lessee’s compensable interest exceeds the market value of its monthly tenancy ENVIRONMENT AND PLANNING – acquisition of land – valuing residual land – whether loss of value caused by carrying out purpose of acquisition – when calculation to be undertaken STATUTORY INTERPRETATION – statutory provision for compensation on just terms – whether expression of elements of compensation varies effect of general law principles WORDS AND PHRASES – “market value” – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55, s 56; “special value of the land” - Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55(b); “loss attributable to disturbance” – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55(d), s 59

CRIMINAL LAW – sentence appeal – solicit to murder – whether an extension of time to seek leave to appeal should be granted – whether the decision of this Court in the first appeal amounts to a jurisdictional bar – ‘Muldrock error’ conceded by the Crown – re-sentence – whether assessment of mid-range seriousness should be considered without separate ground of appeal – whether applicant’s culpability is reduced by dealing with an undercover police officer – whether lack of harm to victim mitigates the offence – aggravating factors on sentence – planning of the offence – conditional liberty – considerations of specific and general deterrence – domestic relationship – whether support of victim reduced penalty – whether applicant has good rehabilitation prospects – participation in custodial rehabilitation programs – lack of remorse – consideration of sentencing statistics and other cases – whether special circumstances exist – whether lesser sentence should be passed

CRIMINAL LAW – sentence appeal – historic sexual offences – seven counts of assault female and commit act of indecency – two counts of assault male and commit act of indecency - four victims – aggregate sentence – whether sentencing judge applied sentencing practices applicable at time of offending – whether discount for early plea of guilty available and whether it was in fact applied – whether applicant in a position of trust in respect of three of the victims – whether sentencing judge’s findings as to risk of re-offending open on the evidence – error established in formulation of indicative sentence requiring aggregate sentence to be reconsidered – appeal allowed – applicant re-sentenced.

CORPORATIONS – extend administration – examinations relating to insolvency – where order for production made in relation to information arising out of examination – where related criminal proceedings – granting of restriction of access to documents produced

CRIMINAL LAW – sentence – manslaughter – robbery in company – joint criminal enterprise – lesser role than co-offenders – guilty pleas – assistance to authorities in trial of co-accused – on parole at time of offence – long history of substance abuse including heroin and methamphetamine – extensive criminal history – limited intellectual and cognitive functioning – specific deterrence of more significance than general deterrence – remorse – some prospects of rehabilitation – minimal prospects of re-offending CRIMINAL LAW – sentence – robbery in company – victim lured into park – key role in planning of the robbery – age 17 at time of offence – acting under duress – guilty pleas – assistance to authorities in trial of co-accused – subjective circumstances attract leniency – neglectful and abusive childhood – drug use from early age – physical health issues – limited mental capacity – insignificant criminal history – prior good character – remorse – reasonable prospects of rehabilitation

JUDGMENTS AND ORDERS – Nature of misapprehension of facts or law sufficient to warrant setting aside judgment – UCPR Pt 36; r 36.16(1), (3A)

PROCEDURE – cross-vesting - proceedings commenced in New South Wales Dust Diseases Tribunal – application to transfer to Queensland- natural forum – plaintiff domiciled in Queensland – place of tort was Queensland – matter cross-vested

INJUNCTIONS - Interlocutory injunctions – whether status quo can be preserved pending trial – expedited hearing ordered since interim relief not practical ADMINISTRATIVE LAW – whether decision by state-owned corporation to remove items from approved materials list is an administrative decision which attracts requirements of procedural fairness PRACTICE AND PROCEDURE – transfer of proceedings – “special federal matter”

PROFESSIONAL NEGLIGENCE – solicitor’s negligence – bankruptcy – where plaintiff’s estate sequestrated in bankruptcy – where plaintiff’s annulment application dismissed by consent – whether solicitor acted with instructions – whether plaintiff sustained loss in any event – whether solicitor also negligent for failing to advise plaintiff concerning an order dismissing proceedings in Land & Environment Court in which solicitor not retained – where question of legal effect of dismissal of proceedings otherwise decided

PROCEDURE – summary dismissal – whether arguable case demonstrated – claim alleging negligence of a judicial officer in making orders – allegation that the State of New South Wales is vicariously liable for the judge’s negligence – abuse of process – attempt to re-litigate matters previously determined adversely to plaintiff - form of pleading – proceedings dismissed COURTS AND JUDGES – judicial immunity – whether orders and reasons of a judge can give rise to tortious liability – whether the State is vicariously liable for acts of judicial officers

CORPORATIONS – extend administration – voluntary administration – application for order to extend convening period in (CTH) Corporations Act 2001, s 439A – where extension sought to enable going concern sale – where all those who may be adversely affected by extension support extension – where going concern sale likely to produce greater value than immediate liquidation

CORPORATIONS – examinations relating to insolvency – application to adjourn examination pending outcome of related criminal proceedings – held, pending criminal proceedings against examinee do not afford basis for adjourning examination CORPORATIONS – examinations relating to insolvency – public or private examination – whether examination to be held in private where there are pending related criminal proceedings – where no opposition to conducting examination in private court must still consider whether there are special circumstances within meaning of (CTH) Corporations Act 2001, s 597 – held, pendency of a criminal prosecution in this case falls within “special circumstances” to enliven discretion under s 597(4).

DEFAMATION – imputations – rulings on form and capacity

DEFAMATION – publication – whether permissible to plead part only of a whole letter – where omitted parts capable of informing the reader’s understanding of the letter and arguably capable of conveying additional defamatory imputations

DEFAMATION – interlocutory steps – interrogatories

MORTGAGES – proceedings for possession and judicial sale – second mortgage – mortgage in registrable form – mortgage not registered – no promise by mortgagor to give up possession on default – no basis for making an order for possession – not a proper exercise of judicial discretion to order sale without evidence of value

CRIMINAL LAW – offences of female genital mutilation – where non-publication order made before trial concerning name of accused person pursuant to s.8 Court Suppression and Non-Publication Orders Act 2010 – whether non-publication order should continue following conviction of accused person – necessity of the order to prevent prejudice to the proper administration of justice – necessity of the order to protect the safety of any person – consideration of the public interest in open justice in relation to convicted persons – non-publication order lifted