Cases and authorities

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW) – decision of a Proper Officer – referral for further medical assessment - whether the Proper Officer properly determined whether additional information was capable of having a material effect on the outcome of the previous medical assessment – further assessment by a medical assessor - whether procedural fairness denied

CORPORATIONS – winding up – liquidators – special purpose liquidators – application for advice as to distribution of funds – funds advanced by general purpose liquidator to special purpose liquidator to fund litigation – where funds no longer required – whether funds should be returned to general purpose liquidator – whether general purpose liquidator disqualified to act as liquidator under (CTH) Corporations Act 2001, s 532(2)(c)(ii) – where no opposition to special purpose liquidator retaining funds – payment of funds under funding deed – whether deed terminated – effect of deed absent court’s approval under Corporations Act, s 477(2B) – where arguable that special purpose liquidator entitled to treat deed as terminated – whether special purpose liquidator justified in applying for expanded powers to represent Octaviar Ltd’s interests in respect of claim as creditor of Octaviar Administration – where pursuing appeal of liquidator’s rejection of proof of debt places liquidators in position of conflict – where special purpose liquidator strong candidate to pursue appeal. CORPORATIONS – winding up – liquidators – approval of funding deed entered into by liquidators under Corporations Act 2001, s 477(2B) – whether funding litigation of related company “necessary” for winding up affairs of company under s 477(2)(m) – where some nexus between litigation and benefit in winding up beyond mere commercial return required.

APPEAL – civil – function of appellate court in relation to fact finding at trial – motor accident – claim against Nominal Defendant, Motor Accidents Compensation Act 1999 (NSW), s 34 – whether unidentified vehicle involved – whether primary judge erred in his findings of fact – whether primary judge assessed testimonial evidence on the balance of probabilities – whether findings made on reliability of witness evidence

LIQUIDATORS – where multiple appointments of liquidator by various Courts – where liquidator resigning – whether this Court may make orders under s 473(7) of the Corporations Act 2001 (Cth) filling the vacancies created by the resignation of the liquidator from companies to which the liquidator was appointed by other Courts

DEFAMATION – imputations – late application to amend in case of ambiguity – reply – late application to file reply

PROCEDURE – civil – application to recall plaintiff for cross-examination – following email exchange between plaintiff and first defendants solicitors – where first defendant wants to put to the plaintiff he was lying over certain matters

CRIMINAL LAW - Crown seeks tendency and coincidence directions against two accused concerning evidence already before jury - relevant considerations under ss.97, 98 and 101 Evidence Act 1995 - tendency and coincidence directions to be given

CIVIL LAW – proceeds of crime – forfeiture – costs

CRIMINAL LAW – challenge to validity of indictment – whether consent of the Commonwealth Attorney-General valid pursuant to s 10 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) – “commitment for trial” synonymous with “committal” CRIMINAL LAW – telecommunications service warrants – whether failure to sign first page of warrant rendered warrant unlawful – no such legislative requirement – whether description of offence in warrants sufficient to comply with legislation – provision of short particulars required to identify offence in conceptual sense –particulars identifying factual ingredients of offence not required CRIMINAL LAW – search warrants – whether search warrants unlawful – failure of executing officer to “sign over” warrant in accordance with s 3E of Crimes Act 1914 (Cth) – warrant did not comply with legislation – illegal search and seizure

CRIMINAL LAW – appeal against conviction – offences of aggravated robbery, take and detain victim with intent to obtain an advantage and indecent assault – whether error in allowing evidence of post offence conduct – whether error in admitting DNA evidence – grounds of appeal without merit – leave to appeal refused CRIMINAL LAW – appeal against sentence – offences of aggravated robbery, take and detain victim with intent to obtain an advantage and indecent assault – whether error in applying R v Henry [1999] NSWCCA 111 – whether error in taking into account use of violence and/or weapon as aggravating feature – whether failure to have proper regard to special circumstances – whether sentence manifestly excessive – grounds of appeal without merit – leave to appeal refused

SUCCESSION – family provision and maintenance – release of rights to apply for family provision order – (NSW) Succession Act 2006, s 95 – appropriateness of order to be assessed from releasor’s perspective – prima facie appropriateness of granting inter vivos release where settlement does not appear to be improvident – where prudent and advantageous for defendant to give release – where terms of release are fair and reasonable – where defendant has taken and given due consideration to independent advice.

CORPORATIONS – administration – creditor’s meeting – where administrators sought extension of convening period for second meeting of creditors – whether to grant extension to convene second meeting of creditors under Corporations Act 2001 (Cth) s 439A.

EVIDENCE ON COMMISSION – making of orders for examination at request of the District Court in the Czech Republic – where person has been examined previously

DEFAMATION – pleadings – imputations – where plaintiff seeks to appropriate defendants’ contextual imputations – where imputation pleaded contains ambiguity

CIVIL PROCEDURE - application to strike out a defence - where defence only pleads the general issue – the substance of any amended defence not disclosed. CIVIL PROCEDURE - adjournment application - no satisfactory explanation to justify an adjournment EQUITY - circumstances where equity will decree an account - substantial sums withdrawn from the plaintiff mother's bank accounts during period that her daughter held an enduring power of attorney was an agent for her mother - withdrawals unexplained - no satisfactory reason why accounts have not been provided

COSTS – Calderbank offer – offer of compromise under UCPR – costs to be assessed on indemnity basis – interaction of offers of compromise and apportionment of costs on unsuccessful claims – Court’s power to make specified gross sum order under Civil Procedure Act, s 98(4)(c)

CRIMINAL LAW – sentence – murder – jury’s rejection of self defence and provocation do not necessarily involve rejection of Prisoner’s evidence – planning not of, but that led to, offence – frenzied attack does not necessarily show an intent to kill

WILLS, PROBATE AND ADMINISTRATION – suspicious circumstances – knowledge and approval – will prepared by person to be executor under the will, who was the husband of the person taking the residue of the estate under the will – will involved significant departure from prior testamentary dispositions – whether person propounding the will must prove that the testator in fact had regard to claims on their testamentary bounty, and that they in fact considered their prior testamentary dispositions – held, granting probate of the will, that, at least where there is no evidence of a failing mind, knowledge and approval does not require proof that the testator actually considered claims on their bounty or that they actually considered their prior testamentary dispositions

CORPORATIONS – Order sought for leave under s 500(2) of the Corporations Act 2001 (Cth) to proceed with a claim against company in voluntary liquidation – Where claim a simple monetary claim – Whether leave should be granted to bring claim or claimant left to proceed by way of proof of debt CORPORATIONS – Winding up – Voluntary winding up – Application for stay of winding up – Where Plaintiff claimed winding up put director in breach of undertaking not to dispose of property – Where company is insolvent – Whether to stay the winding up.

CORPORATIONS – debts – creditor’s statutory demand – application to set aside – where demand based on judgment arising upon filing of adjudication certificate under the Building and Construction Industry Security of Payments Act 1999 (NSW) (the Act) – whether amenable to genuine dispute – whether amenable to offsetting claim – in present circumstances, no genuine dispute as to existence of the debt as demand arises from an adjudication certificate pursuant to the Act but there may be a countervailing liability – adjudicator rejected plaintiff’s offsetting claim – adjudicator’s rejection does not bind this court – relatively low threshold – statutory demand varied by amount of the plaintiff’s offsetting claim

CONTRACT – appeal from Local Court – construction and interpretation – whether Magistrate erred in construction of lease – scope of tenant’s obligation to make good – repair of premises – apportionment of costs payable COSTS – whether Magistrate erred in determining costs – discretionary – application of 25% limit on costs awarded – Local Court of New South Wales Practice Note Civ 1 (2013), Pt G

ESTOPPEL – equitable estoppel – proprietary estoppel – estoppel by encouragement – representations regarding testamentary intention – expectation that an option to purchase property at a particular price would accrue to defendant after both parents’ death – requirement that party alleged to be estopped induced an expectation as to passing of interest in land – requirement that party seeking to establish the estoppel must have changed its position leading to detriment in the case of a departure from the expectation – whether defendants changed their position in reliance on expectation as to succession plan – whether departure from expectation would result in detriment – whether in all the circumstances of the case it would be unconscionable to permit departure from succession plans sought to be enforced

EQUITY – funds paid into Court by plaintiff mortgagee – funds represent surplus proceeds after mortgagee sale of property – two applications for payment out of Court – two competing equitable interests in land – priority – as both equities are equal, first in time prevails – whether one of the applicants’ charge was created on the date when he was able to lodge a caveat, pursuant to the agreement, or when the caveat was actually lodged – consideration of Murphy v Wright and Troncone v Aliperti – agreement created contingency as to timing for the lodgement of the caveat – held that this applicant had to exercise his right to lodge caveat on the title of the property for it to be bound by an equitable charge – this applicant’s equitable interest was created later than the other applicants – his application is dismissed

CRIMINAL LAW – appeal against sentence - whether unjustifiable disparity in non-parole period imposed on applicant as compared with co-offender – whether principle of parity justified finding of special circumstances and departure from statutory ratio - differences in nature of offending and circumstances of each offender warranted variance in non-parole periods PRACTICE AND PROCEDURE – correction of obvious error in sentence – incorrect commencement date – remitter to District Court for orders to be made

CRIMINAL LAW – appeal against sentence – clearing of native vegetation in contravention of s 12 of the Native Vegetation Act 2003 (NSW) – whether the primary judge erred in making findings of fact adverse to the applicant – whether the primary judge erred in ordering the applicant to pay the costs of the proceedings on sentence – appeal allowed with regard to costs order only

WORKERS’ COMPENSATION – claim for lump sum compensation – alleged injury in course of employment to both lumbar and thoracic spine – arbitrator determined that appellant injured lumbar spine but not thoracic spine – worker appealed to Workers Compensation Commission – whether Deputy President erred in finding that the worker did not challenge the arbitrator’s finding about the thoracic spine – whether Deputy President’s misreading of the arbitrator’s reasons was an error of law – whether Deputy President had the power under the Workplace Injury Management and Workers Compensation Act 1998, s 352(7) to remit part only of the worker’s claims for re-determination PROCEDURE – procedural fairness – Workers Compensation Commission erroneously found that appeals from an arbitrator to the Commission did not challenge the arbitrator’s finding that the worker did not suffer a thoracic spine injury – whether Commission finding that any such challenge would not have succeeded in any event indicated that the worker did not suffer any practical injustice as a result of a prima facie denial of procedural fairness – consideration of the weight to be given to contingent findings

TORTS – defamation – appeal against dismissal of proceedings for want of due despatch and proportionality – plaintiff failed to properly plead her claim and to respond to requests for particulars – appeal dismissed PROCEDURE – dismissal of defamation proceedings – appeal from District Court decision – whether primary judge erred in dismissing proceedings for want of due despatch under Uniform Civil Procedure Rules 2005 (NSW), r 12.7 – whether primary judge erred in finding that plaintiff’s conduct of the litigation was an abuse of process – appeal dismissed

CORPORATIONS – Insolvency – Creditor’s meeting – Extension of convening period.

CIVIL – ex parte orders sought under Criminal Assets Recovery Act 1990 – whether defendant should be notified of application

FITNESS TO BE TRIED – conspiracy to murder – cognitive impairment – Crown proposes to proceed with separate trial against accused – medical opinion unanimous that accused fit for shorter trial – no need to continue with inquiry.

CRIMINAL LAW – sentence – murder – guilty plea – agreed with co-offender to inflict grievous bodily harm

PROCEDURE – application to vacate hearing – proceedings for contempt – defendant incarcerated in Queensland since directions made and hearing date appointed – defendant self-represented with some legal assistance - inability of defendant to prepare his case – hearing vacated

SUCCESSION – FAMILY PROVISION – The Plaintiffs, each of whom is a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) – No dispute as to each Plaintiff’s eligibility as a child of the deceased – The Defendant is a grandchild of the deceased – Deceased left Will – Whole estate left to Defendant – No provision for either Plaintiff – Very small estate – Whether adequate and proper provision not made in Will of the deceased for the Plaintiffs and if so the nature and quantum of the provision to be made – Competing financial and moral claim advanced by the Defendant

PROCEDURE – civil – pleadings – plaintiffs’ application for leave to file second further amended statement of claim – defendants oppose leave –aspects of proposed pleading do not support a reasonably arguable claim by the plaintiffs – parts of pleading not drafted in a precise and concrete manner, with some particulars found to be inadequate – plaintiffs must obtain further information to substantiate some serious allegations of breach – the proposed pleading does not sufficiently satisfy relevant pleading rules – does not appear to facilitate the just, quick and cheap resolution of the dispute – present form of pleading is oppressive to the defendants – leave to file second further amended statement of claim not granted – may be remediable by revision of the pleading – plaintiffs invited to indicate response to judgment

INJUNCTIONS – where the defendants found to have copied and used the plaintiffs’ confidential software information in creating their own software for their webpage including a booking calendar for booking accommodation in the defendants’ business – where the defendants’ software has been modified over time – whether an injunction should be granted prohibiting the use of software created from copying the plaintiffs’ confidential software information notwithstanding its later modification. DELIVERY UP – where defendants unilaterally destroyed computers after judgment reserved without notice to the plaintiffs or the Court – whether in the circumstances an order should be made for delivery up of documents and/or deletion of electronic files under a supervised regime. COSTS – competing costs applications – whether the plaintiffs entitled to an award of costs on an indemnity basis.

PRACTICE AND PROCEDURE – personal injury proceedings – application to amend statement of claim – evidence already served by the seventh defendant – whether the proposed amendment pleads a new or different cause of action – whether the seventh defendant would be unduly prejudiced by the proposed amendment

FAMILY PROVISION AND MAINTENANCE – Claim by adult only child where entire estate left to great grandchildren - Succession Act 2006, ss 59, 60, 66

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

APPEAL – attempt to impugn a judgment of the Court of Appeal before a single judge of the Common Law Division – plaintiff self-represented – no jurisdiction – plaintiff seeking to re-litigate matters that were dealt with in detail in the judgment of the Court of Appeal

PRACTICE AND PROCEDURE – claim for relief in the nature of prerogative writ and in tort for loss of income and other funds – application to file further evidence in support of claim – whether service of the evidence would prejudice the defendants – whether the plaintiff has demonstrated any basis for the receipt of the evidence at a very late stage

APPEAL – appeal from Local Court – whether Magistrate erred in granting leave to apply for default judgment as a consequence of failure to comply with notice to produce – ample opportunity provided to remedy defaults – no error in Magistrate’s decision identified APPEAL – jurisdiction – notice of motion dismissed after hearing of the merits - whether Magistrate erred in refusing to set aside dismissal of notice of motion – application to set aside previous orders was in the nature of an appeal – no error shown in Magistrate’s refusal of application due to lack of jurisdiction PRACTICE AND PROCEDURE – party’s entitlement to final hearing on merits not indefeasible – weight to be given to administration of justice and compliance with court orders – importance of sanctions against non-compliance

CRIMINAL LAW – appeal – appeal against sentence – shooting causing grievous bodily harm – firearm offences – assistance to authorities – late guilty plea – seriousness of offences – organised criminal activity – whether offence aggravated by conduct that resulted in a grave risk of death to victim – whether offence aggravated as committed without regard for public safety – applicant’s involvement in OMCG – previous personal violence offences – whether sentence manifestly excessive

CRIMINAL LAW – appeal - sentencing – considerations - ceiling principle – whether sentencing judge erred in failing to take into account a relevant consideration, namely, the sentences imposed on the applicant in earlier trials

TORTS – claim against Nominal Defendant – collision between motor scooter and two motor vehicles, one of which could not be identified – no issue that an unidentified vehicle involved in the accident – factual issue as to how accident occurred – unsuccessful challenge to factual findings of primary judge. TORTS – Civil Liability Act 2002 (NSW) – s 5D – factual causation – whether conduct of unidentified vehicle caused or contributed to occurrence of accident – whether findings of primary judge allowed a finding of causation to be made against Nominal Defendant. DAMAGES – Notional damages awarded in favour of appellant – apart from omission of past out of pocket expenses no error in assessment of damages by primary judge.

TORTS – negligence – personal injury – slip and fall – whether breach of duty for failing to repair allegedly leaking toilet – whether water on ground came from leaking toilet – whether caused injury EVIDENCE – Ferrcom inference – whether primary judge erred in not drawing a Ferrcom inference against respondents EVIDENCE – witnesses – credit – whether primary judge erred in findings made as to credit of witnesses EVIDENCE – prior inconsistent statements – whether primary judge erred in the use made of a prior inconsistent statement

CORPORATIONS – receivers, controllers and managers – remuneration and expenses – where sale of assets involved particular complexity – whether to approve receivers’ remuneration

CIVIL – proceeds of crime – application for forfeiture order

CIVIL – ex parte orders – whether orders should be made in the absence of the defendant – where orders concern property the result of serious crime related activity of another person as well as property not connected to the serious crime related property of another person – whether defendant should be notified by the Commission

CIVIL – making of ex parte orders – where defendant has engaged in serious crime activities – Criminal Assets Recovery Act 1900