Cases and authorities

CORPORATIONS - winding up - voluntary winding up - Powers of court under Corporations Act 2001 (Cth), s.511 REMUNERATION OF LIQUIDATORS - review of liquidator's remuneration - Corporations Act 2001 (Cth) Section 504 UNCLAIMED MONIES – to be paid to ASIC - Corporations Act 2001 (Cth) Sections 414 (15) and 544

ADMINISTRATIVE LAW – Motor Accidents Compensation Act 1999 – judicial review of claims assessor – failure to provide reasons – error of law on the face of the record

CONTRACT – identification of contract terms – whether terms of contract are correct – alleged breach by bank of client’s account instructions PROCEDURE – parties – joinder – where non-party has interest in costs order

TORTS – negligence – personal injury – psychiatric injury – plaintiff a former police officer who suffered many traumatic experiences during 35 year career and was subject of lengthy Police Integrity Commission inquiry which commenced in 2005 – plaintiff suffering from Chronic Adjustment Disorder – whether defendant breached its duty of care by failing to ensure psychiatric assessment of plaintiff when he showed signs of vulnerability in 1999 – whether defendant breached its duty of care by failing to provide adequate support for plaintiff in relation to Police Integrity Commission inquiry – whether defendant’s negligence shown to be causative of plaintiff’s Chronic Adjustment Disorder on balance of probabilities

REAL PROPERTY – whether owner of residential premises is entitled to possession as against the occupants of those premises – whether occupants are estopped from relying on s 119 of the Residential Tenancies Act 2010 (NSW) – whether payments made to owner were loans or contribution to purchase price – whether a resulting or constructive trust has arisen in favour of one or more occupants

ADMINISTRATIVE LAW – Motor accidents compensation act 1999 – judicial review of claims assessor – failure to provide reasons – failure to take into account relevant considerations

NEGLIGENCE - claim for damages for personal injury - Civil Liability Act 2002 (NSW) - Plaintiff fell while delivering building materials to a worksite resulting in significant leg injury - claims against three Defendants - employer, head contractor and sub-contractor - limitation defence raised by sub-contractor - application of ss.50C and 50D Limitation Act 1969 (NSW) - held claim by Plaintiff not statute barred - liability established against sub-contractor - liability not established against employer and head contractor - Plaintiff’s contributory negligence assessed at 15% - assessment of damages - damages for non-economic loss calculated as 40% of most serious case - damages for past and future economic loss - award for past domestic assistance and care - no award for future domestic assistance and care

VOLUNTARY ASSOCIATIONS – CHURCHES AND RELIGIOUS ORGANISATIONS – interpretation of unincorporated religious association’s constitution – validity of amendments to constitution – whether association had power to dissolve itself or to merge with another association – whether members of association could validly dissolve or merge the association by majority vote at a meeting – whether resolutions were validly passed at meetings to amend constitution – where practice or usage of the association was inconsistent with its constitution – held that: (1) the usage and practice of the association effected an implied amendment to the method of appointing bishops and to permit the appointment of bishop-administrators, such that the appointment of the first plaintiff as bishop-administrator of the association was valid; (2) the association’s constitution did not contain a power to dissolve or merge the association; (3) all members of the association must be present to constitute a quorum, there being no rule and no evidence of practice or usage permitting a quorum by less than full attendance; (4) the association was not validly dissolved or merged by any purported resolutions or by practice or usage TRUSTS – CHARITIES – charitable trust in favour of the Free Serbian Orthodox Church (FSOC), an unincorporated religious association – whether implied amendment to the FSOC‘s constitution effected an amendment of the terms of the charitable trust – whether the changes to the constitution constituted a departure from fundamental or essential aspects of the FSOC’s doctrines or principles – held that neither the method of appointing bishops nor the continuation of the FSOC’s separation from the Serbian Orthodox Church (SOC) were fundamental aspects of the FSOC TRUSTS – CHARITIES – cy-près schemes – schism developed within the FSOC – where FSOC was purportedly dissolved or merged with the SOC – whether an order should be made for a cy-près scheme at general law or under s 9 of the Charitable Trusts Act 1993 (NSW) – consideration of the purpose of the trust and the “spirit of the trust” – consideration of the constitution and principles of the FSOC as evidencing the purpose of the trust – held that: (1) the purpose of the trust had been to operate a monastery for the purpose of the FSOC; (2) the spirit of the trust included that the monastery be used by members of the association as a Serbian church; (3) the FSOC had continued in existence, but the changes to its character and membership were such that an order should be made for a cy-près scheme under s 9 of the Charitable Trusts Act to vary the purpose of the trust to provide that the monastery be used for the purposes of the SOC, but that the FSOC be permitted to use the monastery where that is not inconsistent with the trust’s new purpose TRUSTS – CHARITIES – breach of trust – removal of trustee – the first defendant company was the trustee of the charitable trust in favour of the FSOC – the first defendant was controlled by the second to fifth defendants – the first to fifth defendants rejected the authority of the first plaintiff as bishop-administrator of the FSOC, prevented him from conducting services at the monastery and permitted a priest to conduct services at the monastery contrary to the bishop-administrator’s direction – held that: (1) the conduct of the first to fifth defendants was in breach of the trust and should not be excused; (2) the first defendant should be removed as trustee of the trust, and the second plaintiff company should be appointed in its place as the new trustee of the trust , because of the alteration to the trust’s purpose EQUITY – equitable defences – unclean hands – first plaintiff is a bishop of an unincorporated religious association – bishop sought declaratory relief and an order for a cy-près scheme on behalf of the association, and did not assert personal rights – bishop had purported to excommunicate members of the association or deprive them of rights without due process – whether bishop’s conduct should preclude orders being made for a cy-près scheme to vary the terms of a charitable trust in favour of the association – held that the bishop’s conduct did not preclude the granting of relief

TORTS – negligence – Motor Accidents Compensation Act 1999 (NSW) – injuries arising from a collision with a young child on a pushbike – liability of driver – whether 9 year old child with developmental disabilities and not wearing a helmet is contributorily negligent under s138 Motor Accidents Compensation Act 1999 (NSW) s 5R Civil Liability Act 2002 (NSW) STATUTORY INTERPRETATION – principle – purposive construction - construction of s 138(2)(d) Motor Accidents Compensation Act 1999 (NSW) – legislative intention – whether minor was to be included or excluded from a finding of contributory negligence for not wearing a helmet

ADMINISTRATIVE LAW – review of Principal Claims Assessor’s decision to decline to exempt case from assessment process DECISION IN CONFLICT WITH COURT OF APPEAL – decision set aside

COSTS – indemnity costs – offer of compromise - cost consequences pursuant to UCPR 42.15A

PLANNING LAW - existing use - appropriate level of generality or particularity - Council approved conversion of residence into two flats in 1933 - building used continuously for two flats thereafter - development application for construction of building containing three flats - whether Council empowered to consent - original approval unable to be found - inferences drawn from contemporaneous documents and legislative regime - approval only required for building works, not change of use - use as residential flat building prohibited from 1937 - relevance of subsequent alterations to planning regime - whether principles in Shire of Perth v O'Keefe (1964) 110 CLR 529 applicable - aspects of reasoning in Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 considered and explained - Environmental Planning and Assessment Act 1979 (NSW), ss 106, 107, 109 and 109B considered STATUTORY CONSTRUCTION - whether retrospective amendment inserting s 109B into Division 10 of Part 4 of Environmental Planning and Assessment Act 1979 (NSW) displaced operation of ss 107 and 109 where existing development consent - Council's literal construction contrary to purpose and led to anomalous results - literal construction rejected - necessity to identify leading and subordinate provisions within Division - Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; 155 LGERA 230 approved - Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105; 155 LGERA 255 disapproved

CRIMINAL LAW – bail – detention application – offender charged with 27 firearm offences – offences not “show cause” offences – bail concerns - whether unacceptable risks of non-appearance, commission of further serious offences and being a danger to the community – Firearms Act s 4A – meaning of “possession” – inferences from number of weapons found and location of weapons – need for offender to be at liberty because of wife’s health issues – offender with minor criminal history – suspected links to outlaw motorcycle gang – offender is unacceptable risk – bail order made detaining offender

Restraining orders – criminal assets – no question of principle

Criminal Assets – restraining orders – no question of principle

CIVIL LAW – Criminal assets – restraining orders – no question of principle

CRIMINAL LAW – application for discharge of jury – adverse publicity about the Crown Prosecutor personally – whether a high degree of necessity has been reached – whether impractical for another barrister to be briefed – application for discharge rejected

PARTNERSHIP – Existence, members, subject matter and terms of alleged partnership – No issue of principle – Partnership Act, 1892 (NSW)

EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees – exercise of powers – fraud on power - whether in consenting to alteration of constitution of company in which trust is shareholder, trustee was motivated by improper collateral purpose EQUITY - trusts and trustees - trustees - their appointment, dismissal, estate, etc – where trustee desires to be discharged – selection of replacement trustee – relevant principles and considerations – whether court should appoint a beneficiary as trustee EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees – respective functions of managing trustee and custodian trustee EQUITY - trusts and trustees - applications to the court for advice and authority – whether court has power to confer authority on trustee to amend trust deed EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees – duty to account – whether release of duty contrary to public policy – effect of statute of limitations EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees – duty to produce trust documents – nature of beneficiary’s right

PRACTICE AND PROCEDURE – application by defendants pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 23.8 for order that sample of plaintiff’s blood be tested for congenital infections – application made after date for service of experts’ reports in proceedings and in circumstances where trial date may be jeopardised – whether making of order nevertheless in the interests of justice – order made

REAL PROPERTY – leases – agreement to lease – whether parties entered into binding agreement – binding agreement not established EQUITY – estoppel – whether landlord represented by conduct that it would enter into lease – whether detrimental reliance proven – estoppel not made out

PRACTICE AND PROCEDURE – Costs – Security for costs – Application for further security for costs – Where full and frank account of plaintiffs’ financial position was not given – Whether plaintiffs would be capable of prosecuting proceedings to finality if order is made – Plaintiffs’ financial position – Plaintiffs’ relationships with business associates – Turns on own facts

CRIMINAL LAW – sentence – where sentencing judge stated the incorrect maximum penalty – error made out CRIMINAL LAW – sentence – where the applicant was on parole at the time of offending – where the balance of the applicant’s parole was revoked and the applicant was taken into custody following which he served the balance of his parole period – where issue arose on sentence as to the time to which any further sentence might be backdated – where a further issue arose in that context as to special circumstances – where sentencing judge made no reference to special circumstances – whether issue overlooked – error made out CRIMINAL LAW – sentence – re-sentence – necessity for fresh exercise of the sentencing discretion taking into account all relevant factors – offence of supply a prohibited drug at a relatively low level – evidence of applicant having undertaken rehabilitative efforts in custody in terms of employment and courses of study – where evidence that applicant was no longer a user of any illicit drug – special circumstances made out – applicant re-sentenced

APPEAL - conviction - sexual intercourse without consent, s 61I Crimes Act 1900 (NSW) - trial by judge alone; Criminal Procedure Act 1986 (NSW), s 133 - obligation to state relevant principles of law - whether explicit reference need be made to presumption of innocence - principle of presumption of innocence is not separate to or distinct from the onus and standard of proof APPEAL - conviction - whether trial judge required to give “Murray direction” - uncorroborated evidence of the complainant of commission of crime - R v Murray (1987) 11 NSWLR 12; Longman v The Queen [1989] HCA 60; Crofts v The Queen [1996] HCA 22 - Criminal Procedure Act 1986 (NSW), s 294AA - giving “Murray direction” prohibited when evidential issues based solely on absence of corroboration of complainant APPEAL - conviction - whether trial judge erred in failing to give warning under Evidence Act 1995 (NSW), s 165(1)(c) - whether reliability of complainant’s evidence affected by intoxication - no request for warning made - intoxication not in issue at trial APPEAL - conviction – whether error in failing to direct that evidence of flight as consciousness of guilt not applicable - Edwards v The Queen [1993] HCA 63 - trial judge made no such inference APPEAL - conviction - whether error in assessment of witness reliability APPEAL - conviction - whether verdict unsafe or unsound - Criminal Appeal Act 1912 (NSW), s 6(1) - appeal dismissed APPEAL - sentence - Crimes (Sentencing Procedure) Act 1999 NSW, s 21A(2)(eb) - offence committed in home - use of home to host party irrelevant APPEAL - sentence - erroneous sentence - wrong application of totality principle - identification of offences as “mid-range” - whether sentences unduly harsh and severe - leave to appeal granted - appeal dismissed

APPEAL - conviction - aggravated assault with intent to rob - whether verdict unreasonable or unsupported by evidence - identification evidence - appeal dismissed

CRIMINAL LAW – appeal – appeal against conviction – recklessly causing grievous bodily harm in company – where plea of guilty entered – principles applicable to conviction appeal after guilty plea – whether the applicant appreciated the nature of the charge to which the plea was entered – whether legal advice concerning ‘in company’ was correct and adequate – no miscarriage of justice – appeal dismissed

CRIMINAL LAW – appeal under s 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW) against directed verdict of acquittal – manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury – elements of Crown case – where death occurred as a result of the explosion of a drug manufacturing operation – where the Crown relied on the act of manufacturing pseudoephedrine by the evaporation of potentially explosive solvent in a small unventilated space with multiple potential ignition sources as the relevant act – whether Crown had to prove the actual source of ignition in order to character the relevant act as dangerous CRIMINAL LAW – appeal under s 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW) against directed verdict of acquittal – manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury – elements of Crown case – where death occurred as a result of the explosion of a drug manufacturing operation – whether Crown had to prove the actual source of ignition to establish causation – whether Crown needed to negate all possible sources of ignition that were consistent with innocence because they broke the chain of causation – whether the trial judge erred in not leaving the question of causation to the jury

CRIMINAL LAW – sentence appeal – demand money with menaces and assault with intent to rob while armed with an offensive weapon – whether sentencing judge should have found “special circumstances” – discretionary finding of fact – no “House v R” error – appeal dismissed.

CRIMINAL LAW – application for trial by judge alone appeal – no presumption in favour of trial by jury - right to a fair trial - sexual intercourse with person under 10 years without consent

REAL PROPERTY – mortgagee’s duty in exercising power of sale – whether mortgagee failed to discharge its duty under s 85(1) of the Property Law Act 1974 (Qld) – whether failure to refer to valuable water allocation relating to the Property in advertisements for sale was a breach of duty APPEAL – whether primary judge correctly assessed market value of the Property – whether primary judge correctly reduced judgment for the mortgagee by amount awarded on cross-claim of mortgagors – whether primary judge correctly exercised discretion as to costs

CRIMINAL LAW – trial procedure – trial rulings – tendency evidence – relationship evidence – admissibility of evidence where maker does not recall the making of statement – where maker heavily intoxicated by drugs – whether admissions contained in evidence would be unfair to accused – whether probative value outweighed by unfair prejudice

CORPORATIONS – administration – creditor's meeting – where administrator sought extension to hold a convened second meeting of creditors – where lessor of property occupied by company consented to the extension – whether to extend time to hold second creditors’ meeting under s 439B or 447A of the Corporations Act 2001 (Cth).

PROCEDURE – strike out specific paragraphs of the pleadings – no point of principle

CIVIL - stay of eviction - appeal to Supreme Court from decision of New South Wales Civil and Administrative Tribunal (NCAT) - no question of principle

CIVIL LAW order for evidence to be taken on commission - request by Slovak Republic - no question of principle

CONTRACTS – construction of contract – principal written contract – oral collateral contract – question of fact as to express terms of collateral contract – implied terms – whether oral collateral contract included implied term that obligation to pay was subject to settlement occurring pursuant to the terms of the principal contract.

SUCCESSION – Wills, probate and administration – construction and effect of testamentary dispositions – request for judicial advice under Trustee Act s 63 –whether trust deed permitted trustees to substitute other persons for the principal beneficiaries named in the trust deed – whether words erroneously included in trust deed should be ignored in construction of the Deed – whether trustees entitled to refuse to treat the death of a principal beneficiary named in the trust deed as requiring winding up – whether a contingent interest of the principal beneficiary to receive any share of the income or corpus of the trust fund lapsed upon the beneficiary’s death.

CORPORATIONS – Management and administration – Meetings – Where several members of executive council of incorporated association were removed by members at special general meeting – Where requisition and petition were relied on to support calling of the meeting – Whether meeting convened in accordance with association’s constitution – Whether 5% of members requisitioned the meeting – Whether the requisition was to be read together with petition. CORPORATIONS – Management and administration – Meetings – Where the requisition failed to comply with the association’s constitution – Whether invalidity in requisition a procedural irregularity for the purposes of s 1322(2) of the Corporations Act 2001 (Cth) – Whether irregularity has caused or may cause substantial injustice. CORPORATIONS – Management and administration – Meetings – Where association’s constitution provided for a time for executive council to convene meeting – Where members convened meeting before time had elapsed – Whether members entitled to call a meeting on anticipated failure to call a meeting by executive council – Whether procedural irregularity under s 1322 of the Corporations Act. CORPORATIONS – Constitution and replaceable rules – Where association’s constitution provided inconsistent terms relating to lapse of membership of members – Whether the clause is uncertain.

CIVIL LAW - Proceeds of Crime – forfeiture orders – no question of principle

CIVIL - payment of funds held in court - no question of principle

CIVIL LAW - approval of settlement or compromise - serious injuries - difficulties in establishing liability - settlement approved

CRIMINAL LAW – murder – plea of guilty to manslaughter – whether Crown case sufficient to negative self-defence and provocation – application at close of Crown case for directed verdict of not guilty of murder but guilty of manslaughter – application refused

PRACTICE AND PROCEDURE – proceedings heard together – evidence in one proceeding evidence in the others – application to limit use of evidence – cross examination – restrictions on cross examination – unfair prejudice PRACTICE AND PROCEDURE – application to vary orders – circumstances where variation appropriate – forensic strategy

PROCEDURE – civil – extensive history of defamation proceedings – proceedings in the Supreme Court, the Court of Appeal and the High Court – question of interpretation of order of the Court of Appeal as to costs – whether Court of Appeal intended to confirm orders of trial judge as to costs – validity of certificate of determination of costs – whether certificate should be set aside – whether certificate should be permanently stayed - whether Court has jurisdiction to set aside certificate - application for extension of time to lodge review of costs assessment

CIVIL LAW – defamation – injunctive relief – balance of convenience – freedom of speech – damage to reputation – service of subpoena in the United States – whether leave should be granted

HEALTH LAW – burial – the defendant held a burial licence permitting two people to be buried in the plot – the defendant, the deceased’s mother, allowed the plaintiff, the deceased’s husband, to arrange for the deceased to be buried in this plot – promise by defendant to transfer the burial plot and all rights associated with it to the plaintiff such that the plaintiff could be buried with his wife in the future CONTRACTS – whether the promise to transfer the burial licence constitutes a legally binding and enforceable contract – no mutual promises capable of being a binding contract between the parties – parties did not objectively intend to create legally binding relations – no binding contract ESTOPPEL – whether the defendant is estopped from denying the agreement in respect of the transfer of the title of the burial licence – defendant induced plaintiff to exercise his right of burial – the defendant then refused to honour her promise – legal exhumation is not something the Court will readily impose – no significant detriment to defendant if she fulfils her promise – plaintiff suffered detriment by exercising his right to determine how the deceased should be buried to bury her in the defendant’s burial plot – circumstances give rise to estoppel

PRACTICE AND PROCEDURE – Application to set aside Subpoena – Statutory immunity from production – Whether appropriate or necessary to cross-examine the deponent of affidavit in support of the application to set aside PRACTICE AND PROCEDURE – Subpoena seeking production of documents by the Australian Crime Commission – Where Commission not required to produce documents unless (inter alia) necessary for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the Commission in performance of its functions – Where evidence that prosecution of accused was not so instituted – Subpoena set aside WORDS AND PHRASES – “necessary” – “prosecution”

CONTRACT – whether owner entitled to terminate contract – liquidated damages for delay – turns on own facts. TRADE AND COMMERCE – misleading or deceptive conduct – whether builder engaged in misleading and deceptive conduct by failing to disclose need for construction of large retaining walls – turns on own facts. BUILDING AND CONSTRUCTION – whether owner entitled to recover sums paid for variations under building contract – whether prevention principle applies to prevent owner from claiming liquidated damages for delay.

DEFAMATION – pleadings – application by plaintiff to amend claim against a source quoted in a newspaper article – where action based on original interview statute-barred – whether amendment to plead original interview based on the same facts as existing pleading – whether arguable that the source is liable for the whole article DEFAMATION – defences – contextual truth – whether defendants should be allowed to amend to plead new contextual imputation – whether capable of arising

EVIDENCE – Two accused charged with murder and supplying a prohibited drug – Where proposed Crown witness was the daughter of one of the accused – Where witness made statements to police – Evidence of statements made to the witness by the Solicitor for one of the accused which were threatening in nature – Objection taken by the witness to giving evidence – Objection based upon likelihood of harm to the witness, as well as likelihood of harm to the relationship with her father – Balancing exercise – Objection upheld – Ordered that the witness not be required to give evidence WORDS AND PHRASES – “likelihood” – “harm”