Cases and authorities

EQUITY – equitable charge to secure contribution to mortgage repayments – need for proportionality – necessity of demonstrating that it would be inequitable or unconscionable for defendant to retain benefit conferred by plaintiff

Appeal Local Court to District Court – Appeal to Supreme Court – abuse of process

EMPLOYMENT LAW – termination of employment – summary dismissal – whether employee exhibited signs of intoxication at work training course – whether employee intoxicated in a public place – whether employee intoxicated at a work-related social function – whether intoxication warranted summary dismissal for serious misconduct in serious circumstances DAMAGES – termination of employment – whether, if summary dismissal not available, employee would have been terminated on notice

DEFAMATION – application to Court of Appeal for interim relief to prevent hearing at first instance proceeding without a jury – defendants elected for a jury trial but purported to withdraw election shortly before hearing – whether defendants can withdraw their election – whether primary judge had the power to extend the time limits for other party to elect to have a jury trial WORDS AND PHRASES – “elect” – Defamation Act 2005, s 21 – whether “elect” connotes a choice that is final in character

INSURANCE – third party vehicle insurance – scheme for assessment of claims under the Motor Accidents Compensation Act 1999 – initial admission of liability pursuant to s 81 – whether admission binding for all purposes – whether exemption from assessment pursuant to s 92(1)(a) available – whether exemptions relating to fraud distinguishable ADMINISTRATIVE LAW – judicial review of decision to exempt claim from statutory assessment process

CORPORATIONS – meetings – resolution to approve merger – requirement that Unitholder Matters must be passed by a “Special Majority vote of the Unitholders” – Special Majority defined as a vote of two-thirds of “persons eligible to vote in respect of a resolution” – whether passing of the resolution required two-thirds of Unitholders present at meeting and entitled to vote or two-thirds of all Unitholders

CRIMINAL LAW – appeals – sentencing – applicant sentenced to term of imprisonment for attempted robbery offence committed in 2004 contrary to s 97(2) of the Crimes Act 1900 (NSW) – accumulation of sentence for 2004 offence on earlier sentence for similar armed robbery offences in 2005 resulted in an overall term of 12 years with an overall non-parole period of 10 years – whether sentencing judge erred in assessment of objective seriousness of 2004 offence – whether judge failed to give effect to principle of totality – whether overall term of sentence in proportion to overall non-parole period excessive – whether judge erred by comparing applicant’s circumstances with those of an alleged co-offender CRIMINAL LAW – appeals – sentencing – resentence – likely sentence imposed if applicant dealt with for all offences at same time – finding of special circumstances on the basis of accumulation

ADMINISTRATIVE LAW – natural justice – where findings of trial judge went beyond the case pleaded at trial EQUITY – trusts – breach of trust – constructive trust – the liability of volunteers to account for trust property obtained in breach of trust

CRIMINAL LAW - Director’s appeals against quantum of drug proceeds orders against four Respondents - Respondents pleaded guilty to various drug trafficking offences - challenge to competency of appeals - whether Director’s right to appeal under s. 92(4) Confiscation of Proceeds of Crime Act 1989 limited to a complete refusal to make an order and not quantum of the order - R v Galek (1993) 70 A Crim R 252 followed - appeals competent - Director sought drug proceeds order against each of multiple offenders in the amount of the sale price of the drugs - primary Judge made drug proceeds orders confined to the profits made by each offender - meaning of “benefit” considered - no error shown in primary Judge’s reasoning - appeals dismissed

CRIMINAL LAW – appeal against conviction – offence of sexual intercourse without consent in circumstances of aggravation – whether verdict unreasonable – whether error in directions to jury concerning tendency evidence – whether error in failure to provide reasons for discharging the jury – verdict well open – no error established – appeal dismissed CRIMINAL LAW – appeal against sentence – offence of sexual intercourse without consent in circumstances of aggravation – whether error in concluding that presence of another person aggravated the offence – no merit – leave to appeal refused

COSTS – Relisting – No issue of principle

CONTRACT – Masters v Cameron – fourth category – agreement to settle litigation following court supervised mediation

FAMILY LAW AND CHILD WELFARE — surrogacy — application for parentage order under Surrogacy Act 2010 (NSW) – previous judgment concerning this application dealt with arrangement as a post-commencement and post-conception surrogacy arrangement – whether applicants’ new evidence demonstrates a pre-commencement surrogacy arrangement was entered into in late 2007 – at this time, parties would not have known the future existence of parentage orders or requirements of the Act – parties entered into an oral arrangement and intended to later implement it in an informal manner – whether surrogacy arrangements existed depends on substance of the agreement, not its form – courts finds parties entered into a pre-commencement surrogacy arrangement – present application made more than 2 years after commencement of s 16(2) of the Act – whether exceptional circumstances justify delayed application pursuant to s 16(3) – consideration of term “exceptional circumstances” – s 16 must be applied with regard to s 3 in the best interests of the child – parties did not obtain legal advice at the time of oral surrogacy arrangement, could not predict provisions of the future Act and deferred implementation of surrogacy arrangement due to other reasons – court satisfied that exceptional circumstances existed – remaining issue concerns non-compliance with s 38 – unjustified for court to refuse application based only on s 38 contravention – court warns applicants against non-compliance with s 38 – court grants parentage orders sought

PRACTICE AND PROCEDURE – enforcement of loan agreements – allegations of misleading and deceptive conduct by husband – whether husband should be granted leave to represent wife and two companies – leave refused – potential for conflict – particular concerns associated with one spouse representing the other spouse LEGAL PROFESSION – policy reasons underlying need for either legal representation or representation in person

CRIMINAL LAW – proceeds of crime – application for restraining order – reasonable grounds for suspicion that funds are proceeds of indictable offence - custody and control orders – examination orders – orders for sworn statements

DEFAMATION – defences – contextual truth – whether contextual imputations capable of being defamatory – whether contextual imputations differ in substance from plaintiff’s imputations DEFAMATION – procedure – discovery – where application brought prior to second listing – where application requires defendants to create a document DEFAMATION – procedure – plaintiff’s application for trial with a jury of twelve – where plaintiff asserts a strong anti-Muslim sentiment in groups of the community – where no evidence provided

PROCEDURE – notice of motion – separate trial severing quantum and liability – application for separate trial granted – costs

CRIMINAL LAW – Crimes (High Risk Offenders) Act 2006 (NSW) – high risk sex offender – application for Extended Supervision Order – threshold requirements for making an ESO met – defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision – dispute about term of the order – dispute about certain conditions to be imposed under s 11 of the Act – appropriate to make an ESO for a term of 5 years and not for a lesser period having regard to the evidence and the primary purpose of the Act – evidence and prior convictions disclosed serious and extensive history of sexual offending – certain risk factors remain – conditions imposed in accordance with Schedule

COSTS – Oral offer to settle before proceedings commenced – Calderbank offer before hearing – Plaintiff receives judgment for less than both offers – Observations concerning appropriateness of Calderbank analysis in light of overriding purpose – Civil Procedure Act 2005 (NSW), s 56

SUCCESSION – family provision – claim by estranged adult daughter – excluded as beneficiary because deceased believed she had not shown him the love, affection and respect to which he believed he was entitled – estrangement over many years – reason for estrangement – whether no provision was adequate – what provision should be made

PROCEDURE – cross claimants abandoned their amended cross claim and draft further amended cross claim – unsustainable pleadings – no cross claim remains on foot – remaining active cross claimant requires leave to file a new version of its further amended cross claim – application for leave unlikely to be successful if only remodelled version of abandoned defective pleading – if leave given to cross claimant, cross defendants’ application for security for costs will be relevant PROCEDURE – costs – security for costs – whether court should have regard to merits and genuineness of proceedings – court should assume the claim is bona fides and not conduct detailed consideration of merits – if cross claimant is granted leave, it will have shown reasonable cause of action – inadequate evidence that cross claimant’s impecuniosity is attributable to cross defendants’ conduct – the cross claimant’s financial position shows inability to meet legal costs of the cross defendants irrespective of the latter parties’ conduct – inadequate evidence to establish whether security for costs order would stultify proceedings – cross claimant should be ordered to provide security for costs if granted leave to file further pleading – cross defendants should address quantum after considering any new claims PROCEDURE – costs – departing from the general rule – whether cross defendants’ costs of proceedings should be payable by the cross claimant(s) forthwith – position taken by cross claimant(s) was unreasonable – if leave granted for the filing of new pleadings, proceedings likely to take a significant amount of time – order costs payable forthwith

COSTS – final orders – offer of compromise – Calderbank v Calderbank – indemnity costs

BREACH OF EXECUTOR’S DUTY – Removal of Executor – Duty of Executor to provide Account

MENTAL HEALTH – community treatment order – application granted by Mental Health Review Tribunal – appeal to primary judge under s 163 of the Mental Health Act 2007 – whether primary judge conducted a de novo hearing to decide whether community treatment order should be made – whether primary judge made required findings under the Act

APPEAL – application for leave to appeal – interlocutory decision – refusal to grant leave to amend statement of claim and consequent summary dismissal of proceedings against respondent – concurrent hearing – claims for misleading and deceptive conduct and negligence – limitation of action – whether the primary judge erred in refusing leave to amend and summarily dismissing proceedings on basis that cause of action unarguably accrued no later than 30 November 2008

CORPORATIONS — Winding up — Liquidators — Application for approval of entry into litigation funding agreement under s 477(2B) Corporations Act 2001 (Cth) — whether agreement in interests of creditors.

CRIME – bail – applicant charged with murder of mother’s friend – further release application – applicant diagnosed with terminal illness – previous Crown detention application granted by the Court of Criminal Appeal – material change in circumstances – applicant’s current prognosis is in the vicinity of hours to days

COSTS – general rule that costs follow the event – apparent abandonment of claim – where first plaintiff did not appear or file a notice of discontinuance – where defendant seeks order for indemnity costs

CRIMINAL LAW – proceeds of crime – ex parte application for restraining order – reasonable grounds to suspect that property is the proceeds of an indictable offence

CRIMINAL LAW – order sought for payment of moneys from the NSW Trustee and Guardian to the NSW Treasurer in partial discharge of proceeds assessment order PRACTICE AND PROCEDURE – application to dispense with requirement for service of notice of motion and supporting affidavit – satisfied that defendant was aware of the application – inference that defendant has chosen not to play any part nor appear in opposition to application – requirement for service dispensed with

COSTS – respondents successful on motion - whether costs should follow the event – where successful respondents’ conduct was calculated to cause a response including the filing of motion – whether successful respondents should be deprived of their costs – whether costs should be assessed on an indemnity basis – whether motion an abuse of process – consideration of Commonwealth’s model litigant obligations – Calderbank offer – whether reasonable not to accept Calderbank offer – where only one day allowed for response

PRACTICE AND PROCEDURE - issue raised in the hearing of proceedings whether the defendant, who appeared without the intervention of a tutor, is “a person under legal incapacity” within Civil Procedure Act 2005 and Uniform Civil Procedure Rule 7.13 - defendant gives evidence and has some difficulty in answering questions - plaintiff alleges the defendant is a person under legal incapacity and applies for a stay of proceedings until a tutor appointed - whether the plaintiff is a person under legal incapacity and if so who should be appointed as her tutor - whether certain nominees as tutor suitable for appointment.

PRACTICE AND PROCEDURE – judicial review proceedings – related proceedings in Land and Environment Court - whether appropriate to transfer judicial review proceedings to Land and Environment Court – transfer order made

DEFAMATION – procedure – application to have proceedings stayed or dismissed as abuse of process – where plaintiff sues on imputations that he is a Holocaust denier and an anti-Semite – where plaintiff is restrained by orders of the Federal Court from publishing material that suggests that there is serious doubt that the Holocaust occurred

CLASS ACTION – Brisbane floods – necessity to plead claim on behalf of all group members – common questions to be determined – approach – questions not to be substituted for pleading – question not to preclude parties ultimately submitting no common answer – questions not to be subject to construction arguments – sub-group and sample members of group – duty of care – whether plaintiff should identify sample group member who suffered particular categories of loss – whether sample group member from particular locations should be identified – common questions concerning breach – specification of appropriate standard – common questions concerning claim for nuisance and trespass – form of opt out notices.

CRIMINAL LAW – Sentence – Conspiracy – Manipulation of share price by two directors of a publicly listed company – Where offending involved multiple trades and substantial monetary investment – Whether the actions of another investor mitigated the offending – Where offenders were not motivated by immediate personal gain but would likely have derived benefit in the longer term – Where neither offender had any prior convictions – Where there was extra curial punishment in the case of each offender in terms of loss of career – Good prospects of rehabilitation in each case – No real likelihood of further offending – Expressions of remorse by each offender – Early plea of guilty in each case - Where counsel for each offender accepted that a sentence of imprisonment was warranted but submitted that each offender should be immediately released on a recognisance or considered for some other sentencing option which did not require actual full time custody – Where Crown submitted that any sentence of imprisonment which was imposed should require a period of actual full time custody to be served by each offender – Where offending was serious and sustained over a long period - Necessity to maintain the integrity of financial markets – Importance of general deterrence – Term of imprisonment imposed in each case requiring a period of actual custody to be served

PROCEDURE – application to vacate imminent hearing – application refused

PROCEDURE – appeals – stay pending appeal – whether serious question to be tried – whether balance of convenience favoured granting relief – stay refused

PRACTICE – stay pending appeal – onus on applicant to establish appropriate case for stay – stay refused

APPEAL – competency – appeal brought purportedly as of right from summary dismissal of proceedings – appeal dismissed as incompetent

TAXES AND DUTIES - land tax - land used for primary production - whether use had a significant and substantial commercial purpose or character - s 10AA(2)(a) of the Land Tax Management Act 1956

CRIMINAL LAW – appeal against sentence – range of child sexual assault offences committed against stepdaughter – aggregate sentence – a number of errors alleged concerning specification of indicative sentences – Crown concessions as to some errors alleged including Muldrock error – sentencing discretion – whether some other sentence warranted in law – aggregate sentence imposed within range – appeal dismissed

CRIMINAL LAW – appeal against sentence – multiple armed robbery offences – on parole for similar – whether sentence manifestly excessive – where applicant has history of violence and breaching court orders – guarded findings on sentence as to applicant’s rehabilitation prospects – sentence clearly within range – appeal devoid of merit – consideration given to s 18 Criminal Appeal Act – leave refused

CRIMINAL LAW - application for leave under s.5F Criminal Appeal Act to appeal against decision of a Magistrate - Applicant charged with a number of offences, including Table 1 and Table 2 offences - prosecution elected to have charges proceed on indictment - election not made within time allowed under s. 263(1) Criminal Procedure Act - Magistrate granted leave to prosecution under s. 263(2) to elect out of time for charges to proceed on indictment - whether application for leave to appeal under s. 5F competent - Magistrate’s decision not made during committal proceedings and was not an “interlocutory judgment or order” - application for leave not competent - consideration of proper construction and application of s. 263(2) - application refused WORDS AND PHRASES - “special circumstances” - Criminal Procedure Act 1986 (NSW), s 263(2)

CRIMINAL LAW – Appeal – Sentence – Applicant convicted of manslaughter – Where report of psychiatrist was tendered before the sentencing judge - No submission made that the applicant was an inappropriate vehicle for general deterrence on account of his mental state – No submission made that the applicant’s conditions of custody would be rendered more onerous as a result of his mental state – Where sentencing judge concluded that there was no causal connection between the applicant’s mental state and his offending – Where sentencing judge concluded that in light of the factual findings he had made regarding the offending considerations of general and specific deterrence remained significant – Whether sentencing judge erred in so concluding – Whether injustice arose from the failure of counsel at first instance to make submissions to the sentencing judge regarding the applicant’s mental state – Appeal dismissed

CORPORATIONS LAW – contravention of s 911A(1) of the Corporations Act 2001 (Cth) – form of declaration and restraining order

CORPORATIONS — Winding up — Application for leave to bring proceedings in winding up — Where company insured against the relevant liability — Whether prima facie case established.

CORPORATIONS – deregistration and reinstatement – application by plaintiffs for reinstatement of defendant company – whether plaintiffs are persons aggrieved by the deregistration – where company would have to be wound up immediately if it were reinstated – no evidence that the plaintiffs could expect to receive a distribution upon a winding-up – application dismissed PRACTICE AND PROCEDURE – application by plaintiffs for freezing orders – insufficiency of mere assertions that first defendant would put assets out of reach – insufficiency of allegation that first defendant falsely claimed not to have signed certain documents – insufficiency of allegation that first defendant intended to defraud creditors – where first defendant had received property from his wife under mutual transfers of assets and liabilities, and there was no evidence of bad faith – where it was not shown that the plaintiffs had strong claims – application dismissed PRACTICE AND PROCEDURE – security for costs – differences between UCPR r 42.21 and s 1335 of the Corporations Act – where s 1335 does not impose an evidentiary burden other than the need to adduce credible testimony – irrelevance of amount of paid-up share capital – insufficiency of solicitor’s limited evidence on information and belief as to plaintiff companies’ financial position – relevance of plaintiffs’ limited and late response to a notice to produce – application granted

SUCCESSION – family provision – settlement of proceedings – approval of settlement.

REMEDIES – summary judgment – where defendant sole director of plaintiff company for nearly three years – where role included responsibility for management of financial affairs – claim by plaintiff that defendant misappropriated funds – where evidence of plaintiff’s finances and defendant’s credit card accounts supports that allegation – where no apparent defence – result that plaintiff is entitled to amount diverted, plus interest