Cases and authorities

APPEALS – leave to appeal – grant of probate – estate valued in excess of $100,000 – most of estate comprised overseas bank accounts – value of assets located within New South Wales less than $100,000 – whether leave to appeal required – by taking out probate, executrix accepted trusts in the will, including as to foreign property – leave not required WILLS – informal testamentary document – professionally drafted will amended, signed and dated but not witnessed – primary judge not satisfied that deceased intended document to form his will – document located separately from other testamentary documents, including a validly executed will – deceased in habit of signing and dating documents which were never sent – deceased aware of requirement to witness will – appeal dismissed

APPEAL – defamation proceedings – whether jury’s findings in relation to defences reasonably open – whether substantial miscarriage of justice – whether appellate court may substitute own findings for those of jury – whether retrial appropriate – Supreme Court Act 1970 (NSW), s 108 – Uniform Civil Procedure Rules 2005 (NSW), r 51.53 DEFAMATION – assessment of damages – harm to reputation and hurt feelings – whether award excessive – assessment not binding during reassessment following retrial DEFAMATION – defences – honest opinion – distinguishing fact from opinion – whether opinion found in imputation or defamatory matter – whether opinions to be based on facts stated in publication – whether imputations were opinions based on material substantially true – concept of substantial truth in relation to assertion and denial – Defamation Act 2005 (NSW), s 31 WORDS AND PHRASES – “expression of opinion” – “based on” – Defamation Act 2005 (NSW), s 31

CORPORATIONS- Consultancy Agreement – Covenant to pay remuneration in lieu of notice – Variation of work and remuneration arrangements - Corporations Act 2001 Cth s200B – Transitional provisions – Corporations Amendment (Improving Accountability on Termination Payments) Act 2009 Cth, Schedule 1, clause 43(1).

ADMINISTRATIVE LAW – judicial review – Independent Commission against Corruption Act 1998 s 73(2) – whether Commission failed to investigate fully in making recommendation

CORPORATIONS – winding up – termination of winding up – s 482 of the Corporations Act 2001 (Cth) – application not opposed – in the context of a deed of settlement involving all parties – debts of company have been paid, waived or renegotiated by way of the deed of settlement such that immediate payment is not required – expert evidence of a solvency report concludes company is solvent – no issue of commercial mortality – company has complied with statutory duties – creditors’ interests not an impediment – court orders the termination of winding up PROCEDURE – applicant not a party to proceedings – no unsatisfactory procedural consequences – s 14 of the Civil Procedure Act 2005 (NSW) – informality of applicant excused

PROCEDURE – application for vexatious proceedings order pursuant to ss 8(7)(a) and (b) of the Vexatious Proceedings Act - whether proceedings the defendant has frequently instituted and conducted are "vexatious" – numerous proceedings commenced in NSW – repeated re-litigation of issues determined against the defendant

COSTS – defendant successful but on opposite basis to that originally advanced; plaintiff also abandoned position originally maintained – whether reason shown why costs should not follow the event – whether any basis to award indemnity costs

DEFAMATION – defences – late application to amend – whether in accordance with dictates of justice to allow amendment

PRACTICE AND PROCEDURE – Costs - Indemnity costs – Whether circumstances justified the making of an order for indemnity costs – No point of principle

PRACTICE AND PROCEDURE – Application to set aside default judgment – Where sequestration order had been made against the applicant – Where trustee appointed – Where applicant brought present application after sequestration order was made - Whether applicant had standing to bring the application – Whether bona fide defence made out – Whether delay in bringing the application had been explained – Application dismissed.

CORPORATIONS – membership, rights and remedies – derivative action – application for grant of leave by shareholder to bring proceedings in name of company against directors under Corporations Act 2001 (Cth) s 237 – whether company will bring proceedings – whether applicant acting in good faith in bringing proceedings – whether in the best interests of company that applicant be granted leave – whether proposed proceedings involved serious questions to be tried – indemnity – whether written notice of application has been provided to company – application for order for inspection of documents.

PRACTICE AND PROCEDURE – Costs – Where plaintiff successful in appeal from decision of Magistrate – Where proceedings remitted to Magistrate to be further dealt with – Costs of Local Court proceedings left to discretion of Magistrate

PROCEDURE – costs – costs of an application for preliminary discovery – where defendants offered to provide some of the categories of documents requested after the serving of additional evidence by the plaintiff and offer was accepted by the plaintiff – whether the defendants adopted an adversarial approach

INSURANCE – general – total and permanent disablement – psychiatric impairment – requirements of the duty of “utmost good faith” within the facts of the case – whether insurer acted with the utmost good faith in determining whether the insured had provided proof to its satisfaction that a particular state of affairs existed – whether insurer could reasonably have reached the conclusions it did on the evidence available to it – whether insured “unlikely to ever engage in any gainful profession for which she is suited by education, training or experience”

PRACTICE AND PROCEDURE – application for leave to appeal – whether findings of primary judge were unreasonable or unjust

SUCCESSION – application for family provision order under Succession Act 2006 (NSW), Pt 3.2 – whether appellant “eligible” person – where appellant’s relationship with deceased involved first the provision of sexual services and companionship for payment, and later, after some time without contact, the provision of domestic care – where in period leading up to deceased’s death appellant staying overnight at deceased’s house for short periods while maintaining own residence – whether appellant and deceased living in a de facto relationship or close personal relationship at the time of his death (s 57(1)(b) or (f)) – whether at some time appellant a member of same household as deceased and at any time wholly or partly dependent on him (s 57(1)(e))

DEFAMATION – primary judge granted leave for the plaintiff to amend statement of claim to plead back contextual imputations and subsequently defendants contextual imputations struck out - application for leave to appeal from interlocutory decision - whether application gives rise to an issue of principle or injustice if refused – application for leave to appeal refused

MEDICAL PROFESSION – Health Practitioner Regulation National Law (NSW), s 144 – mental impairment, condition or disorder that detrimentally affects practitioner’s capacity to practise – order under s 149C cancelling registration – whether Tribunal’s rejection of treating psychiatrist’s evidence procedurally unfair – whether Tribunal’s finding as to impairment reasonably open – whether Tribunal’s exercise of discretion in cancelling practitioner’s registration miscarried COSTS – general rule under Sch 5D, cl 13 of the Health Practitioner Regulation National Law (NSW) that costs follow the event – whether Tribunal erred in exercise of costs discretion

PROCEDURE – non-publication order – where confidential offer made to liquidator under a Deed of Release – whether to make a non-publication order under ss 8(1)(a) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW)

CORPORATIONS – winding up – application for directions under Corporations Act 2001 (Cth) s 479(3) – where liquidator sought direction that he was entitled to enter into a deed releasing obligations under a Consulting Agreement – where Consulting Agreement had previously been the subject of litigation – whether to make direction under s 479(3) of the Corporations Act 2001 (Cth). CORPORATIONS – winding up – application by liquidator for direction that he is entitled to equitable lien over money payable to the company under Deed of Release to satisfy his remuneration and expenses – where liquidator initially sought declaration to that effect – where leave granted to amend interlocutory process to seek a direction instead of declaration – whether to make direction under s 479(3) of the Corporations Act 2001 (Cth).

PRACTICE AND PROCEDURE - Application for dismissal of proceedings for want of due despatch – Where majority of causes of action brought by the plaintiffs had previously been dismissed – Where remaining paragraph of the statement of claim was struck out and plaintiffs were given leave to re-plead that cause of action – Failure on the part of the plaintiffs to comply with orders of the Court to file an amended statement of claim – Where failure and delay was to be assessed against a background of previous failures and delays on the part of the plaintiffs – Proceedings dismissed

CONTRACT – alleged oral contract to co-operate in good faith with land developer – fails on facts EQUITY – proprietary estoppel – developer adds value to defendants’ land by his activities after conversation with defendants whether either because of proprietary estoppel or unjust enrichment developer entitled to compensation WORDS AND PHRASES – co-operate; good faith

CRIME – common law offence of wilful misconduct in public office – accused former Member of Legislative Council of New South Wales (“MLC”) – accused alleged to have intervened in negotiations between government department and commercial leaseholders – accused alleged to have undisclosed interest in the leases – accused raises demurrer and applies to quash or stay indictment – public officer – whether MLC is a public officer for purposes of the offence – functions and duties of MLC – whether functions of MLC extend to making representations to employees of the executive – duties owed by MLC – whether MLC has any duty not to use their position to advance their own commercial interests – analogy with fiduciaries – avoidance of conflict between private interests and public duty as MLC – elements of the offence –whether sufficient if alleged offence committed in the course of or connected to the public office – whether R v Quach [2010] VSCA 106; 201 A Crim R 522 clearly wrong and should not be followed – whether evidence available to Crown capable of establishing that the accused “covertly lobbied” an employee of the Executive conducting lease negotiations – whether that of any significance to the validity of the charge – whether evidence capable of establishing that alleged breach of duty was wilful – whether evidence capable of establishing that the alleged breach was sufficiently serious to merit criminal punishment – jurisdiction of Court – whether prosecution inconsistent with parliamentary privilege – s 9 of the Bill of Rights – whether subject matter of prosecution within exclusive cognisance of the Legislative Council – demurrer overruled and notice of motion to quash indictment or stay proceedings dismissed.

FAMILY LAW AND CHILD WELFARE – Surrogacy – Application for parentage order under Surrogacy Act 2010 in relation to child of a surrogacy arrangement entered into after the commencement of Act – Application by married couple – Court may make parentage order upon compliance with preconditions provided by the Act and by UCPR Part 56A – Satisfaction of preconditions – Amendment to Summons due to typographical error – Reference to State of Victoria rather than NSW – Order dispensing with the filing and service of amended Summons – Court able to make parentage order

TRUSTEES – payment into court – where order made on application of trustee that surplus proceeds of mortgagee sale be paid into court – where trustee later paid lesser amount into court after deducting costs without further application to the court – whether difference should be paid into court PROCEDURE – civil – application for referral to pro bono panel – where previous referral made – whether there are special reasons justifying a further referral – overriding purpose

CORPORATIONS – winding up –whether winding up should be set aside

PRACTICE & PROCEDURE – interlocutory orders – whether earlier freezing orders should be continued – where plaintiff alleges unconscionable dealing by defendants in respect of property owned by him – where the defendants claim there is no serious question to be tried – where plaintiff suffers from schizophrenia – where impugned transactions consisted of plaintiff’s interest in property being transferred to defendants for nominal consideration – where it would appear that the defendants were aware at all times of the plaintiff’s condition – result that there is a serious question to be tried – whether balance of convenience favours extending the freezing orders – where no evidence that the orders, with appropriate carve-outs for living and legal expenses, would cause undue detriment to defendants – result that orders should be made

PRACTICE AND PROCEDURE – Application to reopen hearing to rely on further submissions which summarise existing submissions and evidence – No issue of principle

CRIMINAL LAW – sentence – murder – intention to kill – stabbing in deceased’s home – offender’s account of events implausible - evidence of depression and anxiety in offender - no criminal record – high prospects of rehabilitation – offender of impeccable character prior to offence – offender suffering from serious ophthalmic condition - remorse

DEFAMATION – pleadings – application to amend statement of claim – application for stay of previous order – where plaintiff seeking stay pending determination of special leave application in High Court – where plaintiff has had multiple opportunities to amend – where prejudice suffered by defendants

REAL PROPERTY – Torrens title – leases – relief against loss of an option to renew a lease – Conveyancing Act 1919 (NSW) ss 133E and 133F – whether valid notice was given for the purposes of s 133E – factors relevant to the Court’s discretion to grant relief – matters that are not breaches subject of a notice under s 133E considered – where relationship between the sublessor and sublessee has deteriorated and is likely to remain disputatious – relief against forfeiture – Conveyancing Act 1919 (NSW) s 129 CONTRACTS – general contractual principles - construction and interpretation of contracts – whether sublessee disentitled from exercising option to renew sublease

APPEAL - sentencing - 41 sexual offences against Crimes Act 1900 (NSW), ss 61M(2), 61N(1), 61O(1), 61O(2), 61O(2A), 66A(2), 66C(1), 66C(2), 66EB(3), 91G(1)(a), 91H(2) - whether manifest excess of indicative sentences - whether aggregate sentence manifestly excessive - whether trial judge’s allowance of 25 per cent discount for plea of guilty indicates acceptance of remorse - reduction allowed for utilitarian value of plea - offender engaged in extremely serious course of conduct - no manifest excess in either indicative sentences or aggregate sentence APPEAL - sentencing - whether non-parole period imposed reflects finding of special circumstances under s 44(2) Crimes (Sentencing and Procedure) Act 1999 (NSW) - special circumstances adequately reflected in reduction in non-parole period - leave to appeal granted, appeal dismissed

JUDICIAL REVIEW – application to quash decision of District Court – appeal to District Court from determination of costs review panel – Supreme Court Act 1970 (NSW), s 69 JUDICIAL REVIEW – whether primary judge erred in declining to permit appellant to amend Notice of Appeal – where solicitors’ invoice named only one of five defendants – whether costs review panel erred in awarding costs to unnamed defendants – all defendants jointly and severally liable for costs – legal liability not founded by invoice – no reviewable error of law demonstrated JUDICIAL REVIEW – whether costs assessor and costs review panel erred in issuing single Certificate of Determination of Costs for two separate costs orders – Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 – no reviewable error of law demonstrated COSTS – whether s 60 of Civil Procedure Act 2005 (NSW) and s 364 of Legal Profession Act 2004 (NSW) required assessment of proportionality of costs – s 60 of Civil Procedure Act directed to courts – costs assessors not part of a “court” – s 364 of Legal Profession Act not expressed in terms of proportionality – “outcome” of matter not a mandatory consideration in costs assessment – Legal Profession Act s 364(2)

CONTRACTS – construction and interpretation of contracts – whether deed of settlement and release applied to rights in issue in proceedings – ownership of intellectual property rights – whether rights arising from an attached deed to the deed of settlement and release were governed by the deed of settlement and release – whether licence to manufacture product using confidential information conferred by terms of the attached deed

CORPORATIONS – creditor’s statutory demand – application to set aside statutory demand – genuine dispute as to existence or amount of debts claimed – where sales manager allegedly placed orders on behalf of company in excess of authority – whether defendant had notice that orders were made in excess of authority – where orders were made by email and confirmed orally – whether failure to use formal written purchase order was sufficient notice of irregularity.

CORPORATIONS – winding up – winding up in insolvency – failure to comply with creditor’s statutory demand – presumption of insolvency – whether plaintiff entitled to rely on presumption of insolvency – (CTH) Corporations Act 2001, s 459Q – requirement that affidavit verifies debt and complies with rules – specificity of affidavit – whether s 459E affidavit cures defect in s 459Q affidavit – whether defect occasions substantial injustice – role of s 459Q(3) – where doubt as to existence of debt – where s 459Q(3) affidavit could not have reasonably and properly been made – standing of plaintiff to bring proceedings – whether plaintiff is creditor of defendant – where plaintiff is judgment creditor of defendant – where judgment debt arose after filing of originating process – requirement that leave be given for contingent creditors to bring proceedings – no proof of actual insolvency. CORPORATIONS – winding up – just and equitable ground – standing as contingent creditor – where standing arose after originating process filed – where evidence of corporate governance delinquencies – where company not presently trading – where party seeking winding up has no real interest in internal management. CORPORATIONS – winding up – failure to comply with creditor’s statutory demand – Court’s discretion to dismiss proceedings – abuse of process – no evidence of impropriety or collateral purpose in bringing proceedings – deliberate misuse of statutory demand procedure where no debt could conceivably be owing – RH Mortgage Corporation Ltd v Kerry Ann Properties Pty Ltd [2011] NSWSC 298 – inapplicability of principle to mistaken belief in existence of debt.

COSTS – application for sale under s66G of Conveyancing Act 1919 – whether ‘usual order’ for all costs out of proceeds appropriate – significance of conduct by one party causing delay COSTS – proceedings commenced May 2015 – negotiations 2011-2015 producing substantial costs – whether such costs to be costs of the proceedings

PROCEDURE – costs – security for costs –applications for security for costs in respect of leave application to bring derivative proceedings under ss 236-237 of the Corporations Act 2001 (Cth) – where applications brought under r 42.21 of the UCPR and the Court’s inherent jurisdiction – whether leave application vexatious or harassing – whether to grant security for costs.

DISMISSAL – proceedings dismissed following plaintiffs abandoning them – costs – Plaintiff sought ex parte injunction – no authority to conduct proceedings on behalf of tenant – duty judge not advised of correct position – lump sum costs order made on indemnity basis.

TUTOR – application by unrepresented plaintiff to be appointed tutor of other plaintiff – plaintiffs are father and daughter – not shown that daughter a person under a legal incapacity – application dismissed – no question of principle.

SUBPOENAS – application to set aside – no question of principle.

DEFAMATION – pleadings – application to strike out statement of claim – where counsel recently briefed in matter

COSTS – Case management directions – No issues of principle

CIVIL LAW – preliminary hearing under s 15(3) Crimes (High Risk Offenders) Act 2006 (NSW) – where defendant is accepted to be high risk violent offender – where it is accepted that there is evidence capable of satisfying the court that there is a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if she is not kept under supervision – two qualified psychiatrists to be appointed to examine defendant – defendant directed to attend those examinations

REAL PROPERTY – mortgages – default – defence not properly pleaded – defence struck out

CIVIL PROCEDURE – application to strike out statement of claim – application to oppose filing of amended statement of claim – whether pleadings disclosed any cause of action – duty of care not to cause pure economic loss – duty of care not to negligently inflict nervous shock – whether potential plaintiff may owe duties to potential defendant and associated entities not to commence proceedings negligently – defamation – requirement to plead allegedly defamatory imputation – requirement to give particulars of identification of the plaintiff.

REAL PROPERTY – jointly owned property – application under Section 66G of Conveyancing Act 1919 for sale – dispute as to who should be trustees – how resolved – Arrow Custodians Pty Limited v Pine Forests of Australia Pty Limited [2006] NSWSC 341

REAL PROPERTY – possession of land – mortgages – default – wife gains access to husband’s accounts – defalcations to satisfy wife’s gambling addiction – whether transactions authorised – whether husband complied with Banking Electronic Funds Transfer Code of Conduct – whether husband complied with bank’s Terms and Conditions – whether husband acted with “extreme carelessness”

CRIMINAL LAW – manslaughter – steal in a dwelling-house – offender and co-offender charged with murder – guilty plea by co-offender – verdict of manslaughter for offender after trial – assist with unlawful and dangerous act – victim met co-offender at hotel – victim invited offender, co-offender and others to her parents’ place – all parties affected by drug and alcohol consumption – victim killed after sexual involvement with offender – victim buried in shallow grave at property – guns and other property stolen from property after killing of victim – offender with no psychiatric or psychological issues except drug and alcohol abuse – lack of remorse – poor prospects of rehabilitation – continued illicit drug use in custody – parity with other offenders

SALE OF LAND – strata unit with common property – purchasers claim Flight v Booth principle applies so that they need not complete – problem with encroachment on to garden, part of common property REAL PROPERTY – strata title – what are unit holders’ rights over common property