Cases and authorities

TORTS – trespass to land – whether entry authorised or excused by law – where four police officers entered property occupied by the respondent without his consent – where relied on ss 9 and 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether trial judge erred in not finding officers had reasonable grounds to believe it was necessary immediately to enter the premises to prevent imminent and significant physical injury under s 9(1) – whether trial judge erred in not finding officers had reasonable grounds to believe that the person to be arrested was inside the premises under 10(2) TORTS – trespass to land – where four police officers entered property occupied by the respondent without his consent – where officers satisfied the requirements of ss 9 or 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – where s 201(1) (as in force in May 2010) required police to provide person subject to the exercise of a power with information – where not practicable to provide information before or at the time of exercising the power – whether lawful exercise of power under ss 9 or 10 conditional on later compliance with s 201(1)

EQUITY – equitable remedies – accounts and inquiries – surcharges – whether payments treated as dividends.

CRIMINAL LAW – practice and procedure – application for discharge of the jury – prejudicial media reporting of first day of trial – murder trial involving issues of violence and intoxication – photographs of accused published suggesting tendencies toward violence and intoxication – where particular directions already given regarding impartiality and objectivity in the context of prejudicial pre-trial publicity - whether appropriate directions to jury could ameliorate risk of impermissible prejudice – expectation that jurors will adhere to oaths and comply with directions issued – further directions to be given to jury – application refused

PRACTICE AND PROCEDURE – Application for interlocutory mandatory injunction restraining Defendant lessor keeping Plaintiff lessee out of possession of the leased premises – Serious question whether lessee liable to pay rent after Premises damaged – Extent of damage – Whether lease has been validly determined by re-entry by Defendant lessor – Alternatively, serious question whether Plaintiff lessee is entitled to relief against forfeiture – Whether balance of convenience favours lessee or lessor REAL PROPERTY – Leases – Lessor terminated lease by re-entering leased premises for lessee’s alleged default in respect of rent payments – Obligation to pay rent an essential term of the original lease – Clause in lease tenant not liable for rent if leased premises destroyed or damaged – Lessee asserts that it was not liable to pay rent because premises could not be used due to water damage – Construction of lease – Alternative claim for relief from forfeiture – Whether mandatory injunction should be granted

PROCEDURE – proceedings in Dust Diseases Tribunal – settlement with injured worker – cross-claims between three defendants outstanding – application to cross-vest proceedings to Queensland – application not opposed – place of tort is Queensland – injured worker resides in Queensland – all relevant medical practitioners on Queensland – offer by Plaintiff to permit S 25(3) of the Dust Diseases Tribunal Act to be used in Queensland – proceedings removed into Supreme Court and cross-vested to Supreme Court of Queensland

EXPERT REPORT – report served just prior to final hearing – no directions sought for service of expert reports – whether Court should otherwise order under UCPR 31.19(3) – explanation for delay – prejudice occasioned to plaintiffs by rejection of report – report inadmissible – prejudice occasioned to defendants by late service of report. HELD: Court declines to otherwise order.

REAL PROPERTY – possession of land – executors seek order against occupants of estate property – whether arguable defence raised – Defendants subsequently concede possession must be given - whether costs should be payable by Defendants

LEAVE TO APPEAL – no question of principle – no appearance by applicant – medical condition

PROCEDURE – application to set aside default judgment – whether the applicant has an adequate explanation for delay – whether the applicant has an arguable defence under the Contracts Review Act 1980 (NSW) PROCEDURE – service of originating process – substituted service – whether orders for substituted service were complied with – whether the application for default judgment satisfied the requirements of the Uniform Civil Procedure Rules 2005 (NSW) – whether, as a consequence, the default judgment was entered regularly

EQUITY – equitable remedies – accounts and inquiries – surcharges – whether payments treated as dividends – competing inferences. EQUITY – equitable remedies – accounts and inquiries – objection to payments made out of trust – where payments made after appointment of provisional liquidator – where payments characterised as superannuation entitlements – whether futile to require repayment given defendants’ entitlement to subsequent payment out of superannuation entitlements. EQUITY – equitable remedies – accounts and inquiries – entitlement to share in property – agreement as to proportionate share and interest – entitlement to rents received and liability for expenses incurred – where third defendant incurred expenses in providing financial support to companies in group – whether third defendant entitled to just allowances for reasonable expenses – where expenses not incurred in transactions in the property. EQUITY – equitable remedies – accounts and inquiries – falsifications – whether payments actually made – sufficiency of evidence – whether payments properly claimable.

PROCEDURE – production of documents to court – where Plaintiff sought release from implied undertaking to use documents produced in connection with examinations under the Corporations Act 2001 (Cth) – where Plaintiffs are persons bringing representative proceedings – whether third parties should be notified.

CRIMINAL LAW – application for adjournment – new Crown Prosecutor briefed – whether new Crown Prosecutor should be given additional time to optimally prepare the matter – whether further adjournment would detract from jury comprehension and lead to irremediable distraction – adjournment granted.

FAMILY LAW AND CHILD WELFARE – appeal from decision of Presidential Children’s Court – application by great grandparents for joinder in proceedings – distinction between Children and Young Persons (Care and Protection) Act 1998, ss 87 and 98 – whether applicants had a “genuine concern for the safety, welfare and well-being” of the children – whether Court should exercise its discretion under Children and Young Persons (Care and Protection) Act 1998, s 87(3) to allow applicants to appear in proceedings and cross-examine witnesses – order to join applicants to proceedings made on terms

INJUNCTIONS – application to stay delivery of applicant’s District Court criminal file to the Family Court – letter of request from Family Court on behalf of litigant – alleged failure of litigant in Family Court to comply with Family Law Rules – jurisdiction of courts – application dismissed

PROCEDURE – costs – plaintiff’s claim in substantive proceedings was dismissed – plaintiff ordered to pay the defendants’ cost of proceedings on the ordinary basis – defendants seek costs be paid on the indemnity basis – Calderbank offers made by defendants – proceedings involved contentious issues which were reasonably arguable on both sides – defendant required to make genuine compromise of the plaintiff’s claim – Calderbank offers ineffective – costs be payable on the ordinary basis

PROCEDURE – application by Defendant and Interested Party to extend time to file and serve affidavits – prior guillotine order not complied with – no active opposition to extension of time by Plaintiff – adequate explanation for non-compliance – no prejudice to Plaintiff – significant formal defects in affidavits now sought to be filed – time extended with further guillotine order

CRIMINAL LAW – SENTENCE – murder – arson – sexually motivated crime – attempt to cover up crime by burning corpse – whether facts approaching worst case – killer hiding in full view – medical condition of the offender – whether conditions of incarceration more onerous – adjustment to total sentence – special circumstances – offence committed in victims home – victims impact statements

CRIMINAL LAW – proceeds of crime – order for examination of a third party concerning Defendant’s property

CRIMINAL LAW – proceeds of crime – examination of third party concerning Defendant’s property

PROCEDURE – order seeking a summary judgment - deed of settlement – construction of deed

COSTS – indemnity costs – successful plaintiff sought order for indemnity costs on basis of two offers of compromise – order not appropriate in relation to defendants’ failure to accept first offer – defendants’ refusal of second offer unreasonable – indemnity costs awarded EVIDENCE – admissibility of affidavit evidence of settlement negotiations sought to be read on application for indemnity costs – whether evidence admissible under s 131(2)(e) or (g) – evidence rejected

CRIMINAL LAW – sentence appeal – extension of time required – “Muldrock error” conceded by Crown – Court required to re-exercise the sentencing discretion – appeal allowed – applicant re-sentenced.

CRIMINAL LAW - appeal against conviction - Appellant convicted of riot at Villawood Immigration Detention Centre - identification of Appellant by client service officer employed at the Centre - identification partly from video footage of incident - whether officer’s evidence was inadmissible as opinion evidence - no objection taken to evidence at trial - held was evidence of fact and not opinion - no miscarriage of justice demonstrated - Rule 4 Criminal Appeal Rules - leave refused - whether verdict unreasonable - challenge to reliability of identification evidence - verdict not unreasonable - appeal dismissed

CRIMINAL LAW – appeal – sentence – whether judge erred in taking into account quantity of drugs located after applicant’s arrest – CRIMINAL LAW – appeal – sentence – whether judge erred in assessing applicant’s role in drug syndicate – parity – whether error in assessment of applicant’s role compared to other members in syndicate – CRIMINAL LAW – appeal – sentence – whether error in rejecting statement made by applicant to expert – no sworn evidence of applicant – limited weight given to untested, self-serving statements made to experts

PROCEDURE – joinder of parties – joinder to enable orders requiring attendance of persons – where no cause of action alleged against those persons – no requirement of joinder for purpose of (NSW) Civil Procedure Act 2005, s 68. PROCEDURE – order allowing plaintiffs to serve evidence outside time limited for service – where evidence not yet served – inability to assess prejudice caused by late service. PROCEDURE – subpoenae – failure to comply – application for orders requiring compliance – inappropriateness of order. PROCEDURE – statement of claim – whether sufficiently pleads case – failure to allege crucial facts.

CORPORATIONS – winding up – application by liquidators for special leave to distribute surplus assets – publication requirements – impossibility of compliance – intent achieved – appropriateness of liquidators’ remuneration.

CORPORATIONS – voluntary administration – deeds of company arrangement – where deed terminates of its own force due to default – where default promptly remedied – application to revoke termination of deed – whether power to revoke termination of deed found in (CTH) Corporations Act 2001, s 447A – held, default would not have affected outcome of creditors meeting; deed should not terminate.

FAMILY LAW AND CHILD WELFARE – proceedings in Children's Court – interference by Supreme Court – parens patriae jurisdiction of Supreme Court – invocation of parens patriae jurisdiction JUDICIAL REVIEW - whether the Children’s Court had jurisdiction to make orders under the Children and Young Persons (Care and Protection) Act 1998, sections 4(a) and 4(c) CERTIORARI – discretionary – quashed order of Children’s Court of New South Wales – jurisdictional error – usurping of jurisdiction

REAL PROPERTY – possession of land – application to stay writ of execution – Notice of Intention to Appeal filed – no grounds of appeal available – bulk of loan used to pay out prior mortgage – no offer or ability to pay or secure amount paid out to prior mortgagee – amount owing to judgment creditor exceeds value of property – stay refused

CRIMINAL LAW – appeal from Local Court to Supreme Court pursuant to Crimes (Appeal and Review) Act 2001 (NSW), s 56 – low range PCA offence – breath analysis recorded reading of 0.054 – subsequent blood analysis recorded reading of 0.049 – whether Local Court Magistrate erred in holding that defendant entitled to rely on deeming provision in Road Transport Act 2013 (NSW), Sch 3 cl 31 to discharge onus or whether deeming provision only operated in favour of reading relied on by prosecution – consideration of proper construction of clause – appeal allowed

PRACTICE – Costs – Jurisdiction – Protective jurisdiction – Ordinary rule – What, in all the circumstances, is proper – Welfare principle influences all decisions made in protective proceedings

CORPORATIONS – voluntary administration – deeds of company arrangement – Corporations Act 2001 (Cth) s 444E – leave sought by creditor to bring proceedings against company subject to deed of company arrangement – creditor seeking production of insurance policies – whether production of policies justified by case management principles – whether production of the policies in the interests of justice

EVIDENCE – orders to produce – legitimate forensic purpose – claims of legitimate forensic purpose based on assumptions and speculation – no legitimate forensic purpose established EVIDENCE – orders to produce – claim of public interest immunity – balancing exercise – Evidence Act 1995 (NSW) s 130(5)

CRIMINAL LAW – conviction appeal – murder – applicant and deceased shared a house – medical evidence consistent with deceased having attacked applicant with a knife – applicant disarmed deceased and stabbed him – whether Crown negatived self defence – verdict unreasonable and cannot be supported having regard to the evidence – murder conviction quashed – order for new trial restricted to manslaughter.

CRIMINAL LAW – appeal against sentence – whether manifestly excessive – parity –discretionary nature of sentencing – appeal dismissed

CRIMINAL LAW – Appeal against sentence – indecent assault offences – additional offences taken into account - question of degree of concurrency of sentence – adjustment made to reflect finding of special circumstances – interpretation of s.21A(2)(eb) Crimes (Sentencing Procedure) Act 1995 – assessment of objective seriousness – complaint of manifest excess

CRIMINAL LAW – appeal against conviction – obtaining a benefit by deception – attempt to obtain a benefit by deception – Criminal Code ss 134.2, 11.1 – whether trial judge erred in giving consciousness of guilt direction – potential for circular reasoning – consciousness of guilt direction not necessary – error established – no risk jury would engage in improper reasoning process – no substantial miscarriage of justice – appeal dismissed CRIMINAL LAW – appeal against sentence – obtaining a benefit by deception – attempt to obtain a benefit by deception – whether error in assessment of objective seriousness – reference to involvement of innocent third parties – where offences part of an elaborate scheme of fraud – no error established – leave to appeal refused

SENTENCE APPEAL – two serious home invasions – seven offences – aggregate sentence imposed – whether sentencing judge attributed “moral responsibility” for all acts of participants in joint criminal enterprise to the applicant – approach to sentencing where evidence does not enable differentiation between participants in joint criminal enterprise – risk of institutionalisation – special circumstances – whether sentencing judge erred in not finding special circumstances even though applicant institutionalised – totality – alleged error in failing to have adequate regard to totality – whether aggregate sentence manifestly excessive. HELD: no error shown – leave to appeal granted but appeal dismissed.

CRIMINAL LAW – sentence – where applicant pleaded guilty to an offence of aggravated break and enter and commit a serious indictable offence (larceny) – offending in the nature of a “ram raid” – evidence before the sentencing judge that the applicant had a mental disability – no submissions made to the sentencing judge regarding the principles applicable to the sentencing of mentally ill offenders – sentencing judge delivered ex tempore remarks without making reference to such principles – obligation on the part of the sentencing judge to consider that issue notwithstanding the absence of submissions made to him – error established

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – compliance with procedures for convening of meeting – where votes cast in favour of scheme by shareholders almost unanimous – absence of objection to scheme by ASIC – absence of member opposition at hearing – where company to be merged under scheme seeking exemption from registration requirements under (US) Securities Act of 1933 – whether scheme fair and reasonable.

CRIMINAL LAW – sentence – murder - verdict of guilty at trial – fact finding implicit in jury’s verdict - use of a knife - reliance on excessive self-defence

CRIMINAL LAW – murder – direction to jury – whether summing up should include direction about accused’s difficulty in distinguishing between self-defence and provocation when killing deceased

CIVIL LAW – Stay of writ of possession- contract for sale entered by defendant – mortgagee’s position protected – no question of principle

EQUITY – application to set aside transfer of title to real property based on equitable grounds – whether transfer effected by undue influence – whether transfer effected by unconscionable conduct – where the donor did not speak and could not read or write English and did not receive independent legal advice. REAL PROPERTY – application to order the withdrawal of caveats – where caveator was deceased and no representative had been appointed – whether onus of proving a seriously arguable caveatable interest met

CIVIL LAW – Injunction – defendant threatening to copy and distribute confidential information about a third party – material obtained by mistake – injunction granted to restrain publication

HIGH RISK VIOLENT OFFENDER – application for extended supervision order – unacceptable risk test – appropriate conditions

CONTRACT – sale of accounting practice – deed of agreement to settle litigation between vendor and purchaser of practice – deed required on the completion date the provision of client files and information – whether client files and information provided in accordance with the deed. CONSTRUCTION OF CONTRACTS – principles of the construction of commercial agreements – deed deficient in specifying precise obligations of parties to deliver accessible databases under deed of agreement – meaning of delivery obligations under deed. CONSTRUCTION OF CONTRACTS – election – principles of election where inconsistent rights under agreement.

EQUITY- Wholly oral loan agreements - Loans claimed to be made to all four defendants - Dismissal of proceedings by consent against two alleged co-obligees - Whether there remains an action against the remaining two alleged co-obligees - Whether even if not barred plaintiff has established that any of the defendants were borrowers as opposed to one or other of two corporations - Whether plaintiff’s claim is statute barred - Whether the plaintiff was under “a disability” within the meaning of s 52(1)(c) of the Limitation Act 1969 (NSW) due to incarceration - Whether the alleged debtors made payments which, by virtue of s 54(2)(a)(ii), recommenced the limitation period

PROCEDURE – Costs – Where Plaintiffs required to pay costs thrown away for earlier vacated hearing date – Where offer of compromise made by Plaintiffs – Whether costs be awarded on ordinary or indemnity basis – whether Plaintiffs should pay costs in respect of claim against Third Defendant who failed on several issues in common with other Defendants and succeeded on one issue.

PROCEDURE — Application for summary dismissal and strike-out of defendant’s claim for restitution – Where defendant invalidly appointed as administrator of a club by reason of s 41 of the Registered Clubs Act 1976 (NSW) – Whether defendant’s claim for remuneration on a quantum meruit basis should be summarily dismissed or struck out – scope of estoppel arising from findings within single proceeding.