Cases and authorities

CORPORATIONS LAW - whether defendant contravened s 911A(1) of the Corporations Act 2001 (Cth) by carrying on a financial services business without a financial licence – defendant sold investment properties on commission – defendant’s marketing strategy incorporated advice about establishing self managed superannuation funds (SMSFs) and using SMSFs to purchase investment properties – advice included projections as to the returns that could be achieved through SMSFs – whether the defendant made recommendations or stated opinions as to beneficial interests in SMSFs – whether recommendations and opinions were intended to influence decisions in relation to financial products REMEDIES – whether declaratory and injunctive relief should be granted in respect of contravention of s 911A(1) of the Corporations Act 2001 (Cth) – form of declaration and restraining order.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – where scheme administrators rejected Plaintiff’s request to submit additional final claims – where final claim forms previously submitted within time omitted claims, by reason of misunderstanding as to treatment of reinsurance recoveries - whether to grant an extension of time under s 1322(4) of the Corporations Act 2001 (Cth) – whether to set aside decision of scheme administrators under s 1321 of the Corporations Act 2001 (Cth)

CRIMINAL LAW – high risk sex offender – application for interim detention order – alternative application for interim supervision order – whether detention or intensive supervision appropriate – statutory test – discretionary factors – objectives of legislation – assessment of risk – providing incentive to the offender – rehabilitation PRACTICE AND PROCEDURE – application brought in final week of offender’s sentence – supported by voluminous material – defendant not provided with material reasonable in advance – unfairness to offender

PRACTICE AND PROCEDURE – notice of motion for expedition of proceedings – application for leave to sue by person convicted of serious indictable offence – whether proceedings would be an abuse of process – whether prima facie grounds for proceedings

CRIMINAL LAW – appeal against sentence – rejection of agreed facts – objective seriousness – possession of prohibited drug for supply – whether the sentencing judge erred in finding that the applicant’s involvement with the prohibited drug was higher than a courier – whether sentencing judge erred in failing to make a finding of special circumstances – need for deterrence – whether the claim was manifestly excessive

CRIMINAL LAW – application for leave to appeal against sentence – applicant suffered undiagnosed medical condition (Huntington’s Disease) at time of sentence – applicant sought leave to adduce medical evidence as to diagnosis and symptoms on appeal – applicant argued that he should be re-sentenced in light of fresh evidence – evidence as to medical condition suffered at time of sentencing and which would make time in custody more burdensome is an exception to the general rule that fresh evidence should not be admitted after sentence – relevant to take into account the reason for evidence not being adduced previously – here psychological explanation justified decision not to adduce the evidence at the time of sentencing – fresh medical evidence admitted – applicant re-sentenced

TORT – malicious prosecution – elements of tort – whether prosecution instituted and maintained without reasonable and probable cause – whether proceedings commenced for improper purpose – whether prosecutor lacked reasonable belief in the guilt of the appellant PLANNING AND ENVIRONMENT – interrelation between the Native Vegetation Conservation Act 1997 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Environmental Planning and Assessment Regulation 1994 (NSW) and State Environmental Planning Policy 46, Sch 3 – appellant prosecuted for clearing native vegetation without consent – whether the exemption under s 12(f) of Native Vegetation Conservation Act 1997 (NSW) only applied to otherwise lawful developments – whether exemption for “rural structures … (such as farm dams)” included a 90 ha reservoir COSTS – respondents awarded costs to be assessed on indemnity basis – whether offer of compromise compliant with Uniform Civil Procedure Rules 2005 (NSW) – whether a compromise – whether costs of undetermined issues should be refused WORDS AND PHRASES – “rural structures” – “farm dam” – State Environmental Planning Policy 46, Sch 3

EVIDENCE – compellability of the mother of the accused to give evidence – mother does not object to giving evidence

CRIMINAL LAW - Crown application for leave to cross-examine Crown witness (A1) under s.38 Evidence Act 1995 - leave granted on certain topics

CIVIL LAW – high risk sex offender - final hearing under Crimes (High Risk Offenders) Act 2006 (NSW) – application for continuing detention order for 12 months – application for extended supervision order to follow for 3 years – where defendant has poor history of compliance with requirements of conditional liberty and child protection obligations – where defendant is an untreated sex offender but has recently commenced CUBIT program – adequate supervision not provided under extended supervision order – continuing detention order made for 12 months – risk management concerns largely remain – necessary and appropriate to make an extended supervision order for 3 years

WILLS, PROBATE AND ADMINISTRATION – Family provision and maintenance – Application for interim family provision order – Alternative maintenance distribution – Letters of administration ad colligenda bona defuncti – Succession Act 2006, s 62 – Probate and Administration Act 1898, s 92A

CONTRACTS – accord and satisfaction – oppression suit – claims and counter-claims of oppressive conduct – consensus that a purchase of plaintiff’s shares would be appropriate remedy – parties agree that plaintiff’s shares should be valued – whether agreement reached whereby parties agreed to surrender their claims in return for mutual promises to buy and sell plaintiff’s shares for a fair value.

SUCCESSION – wills, probate and administration – the making of a will – testamentary capacity – legal test for testamentary capacity set out in Banks v Goodfellow (1870) LR 5 QB 549 – where deceased suffered from chronic schizophrenic disorder of a paranoid kind – whether paranoid delusions that deceased suffered from influenced the deceased’s will – principle of testamentary freedom

SUCCESSION – family provision - Family Provision Act 1982 - application for an order for provision made eight years out of time - estate distributed - application for extension of time - whether plaintiff entitled to an order for provision but for the delay in bringing the application - whether time should be extended - whether an order should be made designating any property as notional estate.

LANDLORD AND TENANT – licence to occupy premises – defendant took possession of premises following breaches by licensee – plaintiff seeks mandatory interlocutory injunction to be provided with 24-hour swipe card access to premises – whether seriously arguable that licence agreement remained on foot and that it entitles the licensee or the plaintiff to 24-hour swipe card access – where plaintiff delayed bringing proceedings without adequate explanation – where licensee had previously set fire alarms off due to after-hours access – held, declining to grant relief, that: (1) it is seriously arguable that a licence agreement remains on foot in a limited form, whether between the defendant and the plaintiff or between the defendant and the licensee; (2) it is not seriously arguable that the agreement requires the provision of 24-hour swipe card access; and (3) the balance of convenience lies against the grant of relief, and the plaintiff’s delay is an independent reason to decline to grant relief TRUSTS AND TRUSTEES – CORPORATIONS – shares and shareholders – registration as shareholder – shares in defendant held on trust –new trustee replaced former trustee, but former trustee remained registered as shareholder – former trustee remained party to licence agreement with defendant – whether new trustee has standing to bring proceedings – held that the new trustee does not have standing to bring proceedings in respect of the shares, or in respect of any contract between the former trustee and the defendant, and that the former trustee should be joined as a party BANKRUPTCY – jurisdiction in bankruptcy – transfer under Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) – whether proceedings involve a “special federal matter” – where proceedings involve shares held by bankrupt on trust – where there is no dispute between the parties that the shares were held on trust – held that the proceedings do not involve a special federal matter

BANKING – claim by plaintiff Bank for undisputed debt owed by the defendant in respect of borrowings – defendant contends that he should not be required to repay because his agent, without his knowledge or consent, provided false information to the Bank which induced the Bank to lend him the money – defendant made and then withdrew allegations that the Bank was implicated – cross-claim by defendant for damages (or set off) for alleged sale at an undervalue of property mortgaged by him to the Bank to secure his debt obligations HELD: No defence to the Bank’s claim established –defendant was party to provision of false information to the Bank and no basis to find that the Bank was in any way implicated – cross-claim fails because no evidence of market value of property at the date of sale – no evidence of loss – COSTS – indemnity costs – Bank entitled to indemnity costs contractually alternatively because of the unfounded allegations of dishonesty which the defendant made against it which it had to meet

CRIMINAL LAW - Crown granted leave under s.38 Evidence Act 1995 to cross-examine Crown witness (A3) on certain topics - Crown makes further application for leave on a topic previously refused - application for leave on additional topic refused

CORPORATIONS – winding up – statutory demand – application to set aside creditors’ statutory demands under Corporations Act 2001 (Cth) s 459H – whether a genuine dispute has been established – whether offsetting claims have been established – whether some other reason for statutory demand to be set aside.

PRACTICE AND PROCEDURE – Application to set aside Subpoena - Where plaintiff brought proceedings for damages following motor vehicle accident – Plaintiff employed as a senior executive in the finance industry prior to the accident – Plaintiff gave history to a medical practitioner that he managed his own investments following the accident – Issue as to extent of plaintiff’s residual earning capacity – Defendant issued subpoena seeking documents in relation to the plaintiff’s investments – Where Subpoena sought documents dating back several years before the accident – Where subpoena sought documents which were not limited to transactions conducted by the plaintiff – Subpoena set aside

PRACTICE AND PROCEDURE – Discovery – Relevance of categories of documents to the issues in the proceedings - No point of principle

High risk offender – interim order - conditions

CORPORATIONS – winding up – winding up in insolvency – failure to comply with creditor’s statutory demand – application to stay proceedings – stay until completion of assessment of legal costs – where legal profession legislation prevents commencement or maintenance of proceedings to recover legal costs the subject of application for assessment – whether winding up proceedings seek to recover costs – winding up proceedings not proceedings for debt recovery – whether company may rely upon pending cost assessment proceedings to dispute existence or amount of debt – (CTH) Corporations Act 2001, s 459S – requirement of leave – where not material to proving solvency – application to adjourn proceedings – where other proceedings in which company may have successful claim pending – no evidence as to nature or strength of claim – dependence on other proceedings to pay debt indicative of present insolvency.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – compliance with procedures for convening of meeting – where statutory majorities for approval of scheme by shareholders met – absence of objection to scheme by ASIC – absence of member opposition at hearing – whether conditions precedent to scheme taking effect have been met – where scheme deemed fair and reasonable.

CRIMINAL LAW – evidence – tendency – s 97 Evidence Act – admissibility of evidence that accused had a tendency to assault young children in his care using his hands or objects for the purpose of disciplining or punishing them – admissibility of evidence that accused had a tendency to cause harm to young children in his care or to be indifferent to harm caused – evidence that accused had a habit of grabbing children by the face is significantly probative – where evidence establishes tendencies relevant to the Crown case – jury to be directed about the permissible and impermissible uses of the evidence – evidence admissible CRIMINAL LAW – evidence – admissibility of context evidence – where that evidence is said to inform the state of mind of the accused – where evidence is of an earlier relationship of the accused five years before the relevant events – danger of evidence being used for tendency reasoning – little probative value – danger of unfair prejudice – evidence inadmissible

CRIMINAL LAW – evidence – tendency – s 97 Evidence Act – admissibility of evidence that accused had a tendency to strike out at an inanimate object when he lost control – evidence too general to have significant probative value – evidence inadmissible

EVIDENCE – admissibility – conduct post-offence - whether evidence can be used as consciousness of guilt by Crown – where it is open to jury to convict on murder or manslaughter

CRIMINAL LAW - Crown application for leave to cross-examine Crown witness (A3) under s.38 Evidence Act 1995 - leave granted on certain topics

CORPORATIONS – creditor’s statutory demand – where company represented by director – whether company, represented by its director, may commence and carry on winding up proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 7.1(3)

PROCEDURE – judgments – licences to import and manufacture explosives cancelled - stay pending appeal – where first appeal unsuccessful – similar arguments to be put on further appeal - whether arguable grounds of appeal – balance of convenience – effect of stay on business of appellant – safety of the public – length of existing stay – further stay granted

CIVIL LAW – Practice and procedure – negligence – incapacity - where tutor appointed unwilling to continue in role – no replacement tutor proposed – whether tutor should be removed

APPEAL – whether Magistrate erred by failing to consider alternative claims to set off debt which were not disclosed in submissions – whether equitable set-off and/or statutory right to set-off available – Civil Procedure Act 2005 (NSW), s 21(2) CONTRACT – oral agreement – claim for debt – whether a separate agreement allowed for debts to be set off RESTITUTION – unjust enrichment – whether money paid was at the request of respondent – equitable set-off

REAL PROPERTY – mortgages – possession of land – summary judgment sought for possession – whether any defence to claim for possession – dispute regarding amount owing is no defence to claim – claim by mortgagor that mortgagee’s breaches of duty prevented payments due under loan agreement and mortgage – mortgagee’s acts post-dated entry into loan agreement and mortgage – whether such claim an equitable set-off – whether claim impeached mortgagee’s title –contractual provisions preventing the raising of a set-off until loan repaid in full – effect of such provisions – no set-off available – no defence to plaintiff’s claim EQUITY – equitable set-off – what amounts to – whether mortgagee’s title impeached by subsequent wrongful acts of mortgagor – no set-off available

CRIMINAL LAW – proceeds of crime – application for assets forfeiture order – application for proceeds assessment order under – Criminal Assets Recovery Act 1990 (NSW), ss 22, 27– whether Defendant had engaged in serious crime related activity – obtaining financial advantage by false or misleading statement – Crimes Act 1900 (NSW), s 178BB – provision of false documents in support of loan application – evidence of expenditure – whether expenditure funded from sources unrelated to illegal activity

CRIMINAL LAW – Crown appeal against sentence – one count of sexual intercourse with child under 10 under authority contrary to s 66A(2) Crimes Act 1900 – two further offences of production and dissemination of child abuse material under s 91H(2) of the Crimes Act 1900 on a Form 1 – victim aged 6 weeks – offender mother of victim – offender suffering from intellectual disability – offender isolated and vulnerable at time of offending – whether open to sentencing judge to characterise the objective seriousness of the offending as “at the very bottom of the range of crimes of this nature” – assessment of objective seriousness of offending by sentencing judge in error – offending objectively very serious – subjective case important but error in sentencing judge not imposing a custodial sentence – suspended sentence manifestly inadequate – residual discretion should be applied – Crown appeal dismissed.

CRIMINAL LAW – sentence appeal – four counts of possessing child abuse material and two counts of using a carriage service to access child pornography – over 1,145 items including 390 videos – 700 - 800 child victims – 25 percent of items in the most serious category – challenge to assessment of objective seriousness by sentencing judge – whether sentence was manifestly excessive – analysis of similar cases – appeal dismissed.

CONTEMPT OF COURT – non-compliance with Land and Environment Court order to grant easement – contemnor application for adjournment for medical reasons refused – whether denial of procedural fairness CONTEMPT OF COURT – non-compliance with Land and Environment Court order to grant easement – contemnor represented but absent – indication by trial judge that practical orders leading to execution of easement preferred to contempt findings – finding of contempt made – whether denial of procedural fairness

CRIMINAL LAW - Crown granted leave to cross-examine Crown witness (A5) under s.38 Evidence Act 1995 - limiting order sought by defence counsel - Court declines to make limiting order - evidence to be admitted for all purposes

DEFAMATION – pleadings – where previous order allowed amendment “in accordance with” judgment – where failure to comply with such requirement would trigger a self-executing order to dismiss the proceedings – whether amended statement of claim complies with previous order

INJURIOUS FALSEHOOD – pleadings – application to dismiss proceedings – where statement of claim fails to articulate a claim that would enable the defendant to meet the case – where damages claim premised on proposition that plaintiff was the sole beneficial shareholder of entity – where ASIC search records that shares were not beneficially owned – where plaintiff disputes accuracy of ASIC record

DEFAMATION – procedure – expert evidence – requirement of parties to seek directions in respect of their intention to adduce expert evidence – whether question of what is a bikie gang requires expert evidence – where expert report already served

CRIMINAL LAW - application by Crown for leave to cross-examine witness under s.38 Evidence Act 1995 - requirements of s.38(1)(a), (b) and (c) satisfied concerning certain topics - discretionary factors under s.192 considered - no basis to exclude otherwise admissible evidence under s.137 Evidence Act 1995 - leave granted

REAL PROPERTY – possession of land – judgment for possession – execution of writ of possession scheduled – late application for stay – contract for sale by mortgagors in April 2015 – failure to complete by purchasers over six month period – prior applications for stay – failure by mortgagors to be frank with court on previous applications about reasons for delay in settlement – absence of evidence from purchasers or their incoming mortgagee concerning readiness for settlement – stay refused

CRIMINAL LAW - procedure – murder – fitness to be tried – “Presser” principles – accused unfit to be tried

ADMINISTRATIVE LAW – judicial review of orders of the Workers Compensation Commission – whether jurisdictional error established – whether relief should be declined on basis that a more convenient and satisfactory remedy exists

PROCEDURE – discovery – plaintiff and defendants both seek discovery of additional documents and inspection of various documents produced to the court on subpoena – whether the disclosure of various documents requested by the plaintiff is not necessary for the purposes of Practice Note SC Eq 11 par 5 – whether there is evidence that the defendants have any other documents, additional to what has already been disclosed – whether various documents requested by either side are privileged – whether the respective privileges have been waived – in relation to some categories of discovery, defendants are ordered to serve an affidavit unequivocally stating their position – plaintiff entitled to this verification – plaintiff granted access to the majority of the requested documents produced on subpoena – defendants not entitled to verification or discovery by plaintiff of documents sought – defendants have not established the relevance of accessing documents produced on subpoena to issues in dispute in the proceedings – access not granted

CRIMINAL LAW – appeal from Local Court to Supreme Court pursuant to Crimes (Appeal and Review) Act 2001 (NSW), s 56 – defendant charged with offence of driving vehicle under the influence of alcohol – Local Court Magistrate failed to conduct proceedings in accordance with s 202 of the Criminal Procedure Act 1986 (NSW) – Magistrate dismissed the charge at the conclusion of the voir dire without determining whether a no case submission was made or conducting a hearing COURTS AND JUDGES – natural justice – procedural fairness – Magistrate excluded evidence without identifying the evidence or the basis for exclusion –Magistrate failed to provide adequate reasons for excluding evidence or for dismissing proceedings –Magistrate erred in excluding all evidence including that to which no objection was taken – appeal allowed – matter remitted to Local Court LEGAL PRACTITIONERS – obligations of counsel on a voir dire to specify objections with precision, both as to the portion of the evidence and the basis for the objection

EQUITY – Trusts and trustees – Discretionary trusts – Creation and effect generally – Administration of discretionary trust created by will – Application for judicial advice or direction – Partial administration order – Uniform Civil Procedure Rules 2005 NSW, Part 54 – Trustee Act 1925 NSW, section 63 SUCCESSION – Wills, probate and administration – Administration of discretionary trust created by will – Application for judicial advice or direction – Partial administration order - Operation of forfeiture rule- Uniform Civil Procedure Rules 2005 NSW, Part 54 – Trustee Act 1925 NSW, section 63

DEFAMATION – defences – contextual truth – appropriate time for determining objection that contextual imputation not capable of being conveyed “in addition to” plaintiff’s imputations – objections as to capacity and form

TORTS – negligence – contributory negligence – where employer failed to provide safe system of work – whether appellant in control of work environment in which accident occurred – whether appellant’s conduct a cause of damage suffered WORK ACCIDENT – work injury damages – admissibility of evidence not disclosed in pre-filing documents – Workplace Injury Management and Workers Compensation Act 1998 s 318 – where information that appellant attended gym available before pre-filing defence served – where surveillance evidence not disclosed until after commencement of trial PRACTICE AND PROCEDURE – procedural fairness – whether treatment of surveillance evidence by primary judge denied appellant procedural fairness – where primary judge concluded medical evidence unreliable on basis of inference experts not informed of gym attendance – where primary judge concluded evidence of physical condition would alter medical experts’ opinions – whether incumbent on appellant to call experts to give evidence about impact of surveillance evidence on opinions – whether primary judge erred in assessing expert medical evidence where factual assumptions inconsistent with surveillance evidence. COSTS – claim for work injury damages – whether “costs in relation to a claim for work injury damages, including court proceedings” in Workplace Injury Management and Workers Compensation Act 1998 s 346 extends to Court of Appeal proceedings – whether proceedings “ancillary” for purposes of Workers Compensation Regulation 2010

COSTS – costs assessed on an indemnity basis – where order against litigant in person – where litigant in person notified that claimed interlocutory relief misconceived and unlikely to succeed