Cases and authorities

CRIMINAL LAW – application under s 42 of the Evidence Act

CORPORATIONS – winding up – winding up voluntarily – where winding up application already filed – leave under (CTH) Corporations Act 2001, s 490(1), that company be wound up voluntarily – where leave sought retrospectively – whether in interests of creditors that company be wound up voluntarily rather than compulsorily – difference between members’ voluntary winding up and creditors’ voluntary winding up – no need for “special circumstances” – where no knowledge of pendency of winding up application – where possibility of duplication of work – ability of voluntary liquidator to act immediately when court-appointed liquidator would have to obtain winding up order – where no opposition by plaintiff creditor – held, leave granted.

EQUITY - Estoppel - Issue estoppel - Attempt to re-litigate issue after interlocutory judgment on separate question

COSTS – competing claims in respect of costs after ten day hearing – multi-parties and issues – only some claims successful – damages of $118,788.71 – Notice to Admit Facts – indemnity costs in respect of some aspects of case (UCPR 42.8) – whether claims brought in appropriate Court (UCPR 42.34) – abandonment of a major claim on ninth day of trial – proportionality of costs to outcome. INTEREST – where damages in respect of loss incurred for payments made and in respect of payments for which liability to pay – whether interest payable on whole amount.

CRIMINAL LAW AND PROCEDURE – Plaintiff committed for trial on murder charge – claim magistrate failed to properly exercise discretions under s 91 Criminal Procedure Act 1986 – Plaintiff sought judicial review by Supreme Court – danger of fragmentation of criminal process – as DPP had found a bill of indictment quashing the committal would be futile – analogous relief available from pre-trial processes – no case made for intervention by Supreme Court.

Application to set aside default judgment – proposed pleading couched in generalities – no arguable defence on the merits disclosed – no question of principle

Bail application – appeal bail – jurisdiction of the Court of Criminal Appeal – special or exceptional circumstances – requirement that the appeal have merit – not necessary to show that success “virtually inevitable” – matters to be taken into account – proximity of release date – combination of factors may amount to special or exceptional circumstances – interaction with “unacceptable risk” test and other “bail concerns” – two stage process but similar factors may inform both stages

CORPORATIONS – formation – registration or incorporation – validity of registration – error in share subscriptions as recorded at registration – where only one shareholder – rectification ordered – absence of consents required by s 117 – order that registration not invalidated.

PROCEDURE – inspection of property – whether order for inspection will enable proper determination of matter in question in proceedings – where application seeks an order that defendant consent to application for building certificate.

PROCEDURE – adjournment – where adjournment sought to file evidence of solvency – absence of evidence as to prospects of establishing defence – where evidence available to demonstrate prospects of establishing defence but not tendered – where payment plan proposed by defendant – held, adjournment refused; CORPORATIONS – winding up – winding up in insolvency – failure to comply with creditor’s statutory demand – presumption of insolvency – absence of evidence of solvency – compliance with formal requirements – held, winding up order made.

COSTS – application for cost assessment made out of time – reasons for delay – whether it would be just and fair to extend time – Legal Profession Act 2004 (NSW), s 350

CORPORATIONS – voluntary administration – deed of company arrangement –whether order should be made extending time to execute deed of company arrangement until after the hearing of proceedings in respect of leased premises.

CRIMINAL LAW - practice and procedure - whether to leave alternative verdict of manslaughter - whether verdict of manslaughter viable - manslaughter not left as alternative verdict

CRIMINAL LAW – EVIDENCE – objection to question of accused in cross-examination – particular evidence not part of Crown case – relevant and admissible evidence that could have been led in the Crown case – question rejected

PROCEDURE – civil – summary disposal – summary judgment – application for forfeiture order

PROCEDURE – civil – interlocutory issues – adjournment application to request legal aid

CRIMINAL LAW – Breach of bond – Where offender sentenced to 12 months imprisonment – Where sentence immediately suspended – Where offender placed on bond conditional to be of good behaviour – Where offender subsequently pleaded guilty to a charge of assault committed in the period of the bond – Where such offence constituted a breach of the bond – Circumstances mandating revocation of bond – Sentence of imprisonment appropriate – Where both parties agreed that it was open to order that any sentence of imprisonment be served by way of home detention subject to the offender’s suitability – Order made referring offender for assessment as to suitability for home detention

APPEAL - sentencing - murder - “Muldrock error” - ground upheld - applicant resentenced

CRIMINAL LAW – appeal – sentence – self represented appellant – whether error in discount for early plea – no offender has an entitlement to a particular discount – CRIMINAL LAW – appeal – sentence – whether Judge erred in concluding a conviction was inevitable – Crown case compelling – open for sentencing Judge to conclude conviction inevitable – CRIMINAL LAW – appeal – sentence – whether bad legal advice – no bad legal advice – CRIMINAL LAW – appeal – sentence – whether error that no further discount for compassionate grounds – appellant a Canadian national – that appellant a foreigner of strictly limited significance – intentionally visited Australia to commit crime

CRIMINAL LAW – appeal – sentence – single ground of appeal – whether sentencing judge erred in declining to make a finding of special circumstances – no error in refusal to find special circumstances – appeal dismissed

DEFAMATION – procedure – pleadings – whether imputations are bad in form and should be struck out – whether plaintiffs are required to provide particulars of “worldwide” publication – where objections to imputations and particulars could have been taken at earlier hearing

DEFAMATION – procedure – application to have proceedings dismissed – whether proceedings are an abuse of process – where print article statute-barred – where greater proportion of harm to reputation caused by print article not sued upon – consideration of principle of proportionality as applied in Bleyer v Google Inc

PRACTICE – Claimants to surplus funds paid into Court by first mortgagee – No issue of principle

PROCEDURE – civil – application to restrain sale of property – applicant not registered proprietor of property – applicant claims equitable interest in property – no prima facie case that bank not entitled to exercise power of sale – balance of convenience favours sale of property

PROCEDURE – civil – freezing order – dispute with respect to legal costs – second application seeking freezing order – first application dismissed – no risk of disposal of assets – summons seeking freezing order dismissed – no point of general principle

JUDGMENTS AND ORDERS – Amending, varying and setting aside – Setting aside judgment entered in absence of party – No issue of principle – UCPR Part 36 r 36.16(2)(b)

EQUITY - Trusts - Whether trust deed confers power on trustee to extend vesting date - Whether s 81 of the Trustee Act 1925 (NSW) empowers the Court to confer a power on a trustee to extend vesting date

DEFAMATION – procedure – summary disposal

EQUITY - Aviation insurance - Two insurance policies one issued by QBE and one issued by an overseas insurer (“Global”) - The effect of s 45 of the Insurance Contracts Act 1984 (Cth) - Dual insurance - Whether claim for past costs a subrogation claim and consequence - Whether claims brought by the insured brought by and for the interest of Global - The effect of a pay to be paid clause - Whether past payments made by the overseas insurer were made by mistake - The effect of a deed entered into by the insurer with Global - The extent of cover under the QBE Policy - Whether the proceedings premature - Whether insured failed to provide information to QBE and the effect of that failure - Whether QBE has wrongfully refused to advise insured of whether indemnity will be granted - Whether QBE or insured have acted in breach of duty of utmost good faith - Contract of Sale of Aircraft - Whether indemnity provisions relied on by vendor apply - Whether lease by the purchaser to another company as operator was a “use” or operation of the Aircraft by the purchaser - Whether the liability sought to be imposed by the claimants in the Unites States arise out of the vendor’s negligence and/or is to be categorised as “manufacturers product liability” within the meaning of the Contract of Sale

MENTAL HEALTH – Jurisdiction, practice and procedure – Available remedies in Guardianship Division of NCAT to be exhausted before approaching Supreme Court

CRIMINAL LAW – Sentence – Manslaughter – Early plea of guilty – Offender under the influence of alcohol – Offender punched the deceased – Deceased died from head injuries suffered – Deceased was not known to the offender – Attack was unprovoked – Offence of assault on Form 1 taken into account – Discount of 25% allowed for guilty plea – Offence at least mid-range of objective seriousness – Offender had no history of violence – Offender showed remorse – No special circumstances – No variation to standard non-parole period warranted – Consideration of R v Loveridge [2014] NSWCCA 120 – Need for general deterrence in cases of this type – Sentenced to 9 years imprisonment – 6 years and 3 months non-parole period

CONVEYANCING – breach of contract for sale and remedies – purchasers remedies – specific performance EQUITY – equitable remedies – specific performance – breach of contract PRACTICE AND PROCEDURE – parties – specific performance suit – joinder of non-parties to contract REAL PROPERTY – Torrens title – caveats against dealings – removal – duty of vendor

PRACTICE AND PROCEDURE – pleadings – statement of claim – application to strike out statement of claim pursuant to UCPR 14.28 – whether pleadings are embarrassing or otherwise fail to disclose a reasonable cause of action known to the law – application to re-plead in proper form

PLEADINGS – cross claim – whether cross claim disclosed a reasonable cause of action – UCPR 14.28 – costs

SEX OFFENDER – application for an interim detention order – respondent convicted of sexual assaults committed between 1989 and 1993 – subject to existing extended supervision order – due for release on 13 June 2015 – admitted to Long Bay Mental Health Facility – if order not made will be admitted as an involuntary patient to mental health facility – application for IDO dismissed – order made appointing psychiatrists.

COMMERCIAL ARBITRATION – Commercial Arbitration Act 2010 (NSW) ss 5, 7 and 8 – application for an order under s 8(1) on the grounds that the plaintiff has brought an action in a matter that is the subject of an arbitration agreement – CONTRACTUAL CONSTRUCTION – whether on the proper construction of a written agreement between the parties, the matter is the subject of it – whether the arbitration agreement is inoperative. HELD: the action is not in a matter that is subject to the arbitration agreement or the agreement is inoperative with respect to it.

CRIMINAL LAW – sentence - insider trading offences – co-offenders – guilty pleas – offences assessed below the midrange of seriousness and just within midrange of seriousness – whether full time custody appropriate - where offenders have strong subjective cases – relevance of delay in investigation and prosecution of offences – impact of mental health issues on moral culpability – sentences partially accumulated – suspended sentences imposed

Procedure – costs – quantification of gross sum costs order. Procedure – costs – whether interest payable on gross sum costs from date of judgment under s 101 of the Civil Procedure Act 2005 (NSW).

CORPORATIONS – winding up – statutory demand – application to set aside a creditor’s statutory demand under Corporations Act 2001 (Cth) s 459J – whether the debt was due and payable – whether some other reason to set aside demand established.

ADMINISTRATIVE LAW – summons by prisoner seeking various orders against Commissioner of Corrective Services relating to decisions made by prison staff – access to education in custody – access to laptop and printer in custody

COMMERCIAL ARBITRATION – Commercial Arbitration Act 2010 (NSW) ss 34(2)(b)(ii) and 35(1) –An action to set aside an arbitral award on the basis that it infringes principles of natural justice and is therefore in conflict with the public policy of this State – counterclaim for enforcement of the award. HELD: That the award is not in conflict with the public policy of this State – award to be enforced as a judgment of this Court

PROCEDURE – judgment and orders – effect of judgments – whether judgment contains error as to the calculation of future economic loss – no error

PROCEDURE – applications for summary dismissal and strike out by defendants – whether the first plaintiff was a creditor for the purposes of the Corporations Act 2001 (Cth) at the time of filing of the claim - first plaintiff was not a creditor at that time – first plaintiff acquired debt for a collateral purpose – first plaintiff’s claim dismissed in relation to Beechworth PROCEDURE – costs – security for costs – whether the sixth plaintiff should provide security to defendants for costs of defending proceedings concerning Beechworth – sixth plaintiff failed to produce evidence of its financial capacity or respond to a notice to produce – held there is reason to believe it may be unable to pay costs if ordered – order for security for costs PROCEDURE – substitution of plaintiff parties to prosecute derivative claims on behalf of company – company in administration – s 237 Corporations Act 2001 (Cth) not relevant – application in the discretion of the Court – Court must be confident that the plaintiff is acting in the overall interests of company in administration – Court will not order substitution of parties – leave given to sixth plaintiff to renew its application with further evidence

PRACTICE AND PROCEDURE – pleadings – leave sought to file further amended cross-claim – whether leave should be granted – discretionary factors – whether pleadings disclose arguable case PRACTICE AND PROCEDURE – stay – application for stay of cross-claim – forum non conveniens – clearly inappropriate forum – applicability of foreign law – convenience of witnesses – determination of all matters in the proceedings

PRACTICE AND PROCEDURE – Costs – Departing from the general rule – Late joinder of a defendant – Plaintiff’s delay in conduct of proceedings – Claims that failed or were abandoned – Expert reports prepared but not relied on – Costs as between the defendants PRACTICE AND PROCEDURE – Costs – Interest on costs – Where plaintiff guilty of unexplained delays – Whether reasons for delay are relevant to question of whether interest on costs should be awarded

PRACTICE AND PROCEDURE – pleadings – application to file and serve a further amended statement of claim – application to file and serve a cross claim – misfeasance in public office – abuse of process – breach of duty to act in good faith – whether causes of action pleaded – whether causes of action need to be further particularised before cross claim filed

Appeal under the Crimes (Appeal and Review) Act 2001 – alleged offences under s 9 of the Liquor Act 2007 – defendant manager of licensed premises - charges dismissed – costs order made against informant – not disputed that inspectors attended premises, obtained alcohol and did not consume food – presiding magistrate stated evidence was “uncontrovertibl[e]” but rejected undisputed evidence – whether reasons adequate – breach of procedural fairness established – order dismissing charges set aside – costs order not sustainable.

Practice – Civil Procedure Act s 99 – costs against solicitors – undue duplication and irrelevance

PROCEDURE – civil – judgments and orders – application to set aside default judgments – defendant made deliberate decision not to defend claim – no satisfactory explanation to justify failure to file defence – setting aside judgments would not further overriding purpose of the Civil Procedure Act – proposed cross-claim – ordinary time to file cross-claim passed – whether extension of time should be granted to file cross-claim – no satisfactory explanation for delay – defendants entitled to commence cross-claim as new proceedings – not in interests of justice to extend time to file cross-claim

LIMITATION OF ACTIONS – claim for misleading conduct under Trade Practices legislations – money deposit to be repaid on day X lost – cause of action accrued no later than day X – not a case of contingent loss