Cases and authorities

PROCEDURE – review of decision of Registrar to allow the plaintiffs to file a further amended statement of claim – whether evidence and not material facts pleaded – whether insufficient particulars provided

REAL PROPERTY – torrens title – unregistered mortgage – plaintiffs and defendant agreed to a settlement regarding a damages claim commenced by the plaintiffs in the District Court – settlement agreement provided plaintiffs with unregistered mortgages secured by caveats over the defendant’s residential properties – whether plaintiffs can obtain grants of registered mortgages over the properties

CRIMINAL LAW – sexual intercourse without consent –indecent assault - multiple charges from same incident - pre-trial rulings – application to cross-examine complainant about other sexual activity – whether other activity at time of and connected to alleged assaults – injuries sustained by complainant – proper construction of s 293 (4)(c) Criminal Procedure Act – whether material disclosed by prosecution - unreasonable verdicts – inconsistency of verdicts – sentence – whether sentence manifestly excessive

CRIMINAL LAW – sentence appeal – offences contrary to s233A of the Migration Act 1958 (Cth) facilitating the bringing or coming to Australia of a non-citizen person – whether error in inference drawn by sentencing judge – whether evidence sufficient to establish beyond reasonable doubt that offender was in part motivated by financial gain – despite error in reasoning, conclusion of sentencing judge correct – alternatively no lesser sentence warranted in law – appeal dismissed.

CRIMINAL LAW – sentence appeal – offences of supply prohibited drug, deal with the proceeds of crime and possess a prohibited firearm – offences committed while applicant on parole – parole revoked and applicant served balance of term – whether effect given to finding of special circumstances – whether sentencing judge obliged to take into account time spent in custody when offender was serving the balance of parole – error in failing to give effect to finding of special circumstances – need to re-sentence.

CRIMINAL LAW – sentence appeal – accessory after the fact to murder – applicant present when murder committed and driver of getaway car – applicant concealed fact of murder for 12 months – whether sufficient discount allowed for plea of guilty – discretionary matter – plea not entered at earliest opportunity – whether sentencing judge erred in not finding special circumstances – discretionary matter – whether sentence manifestly excessive – whether parity principle observed by reference to sentence imposed upon co-offender – no error disclosed – appeal dismissed.

CRIMINAL LAW – sentence appeal – murder – victim beaten to death by boyfriend in her apartment – applicant intoxicated by ice at time – whether adequate attention given to rehabilitation in sentence – finding of poor prospects of rehabilitation open on evidence – no error in judge’s refusal to find special circumstances – whether intoxication by ice an aggravating feature – whether principle of totality observed – whether sentence manifestly excessive – grounds of appeal not made out – appeal dismissed.

PRACTICE AND PROCEDURE – application for stay pending the appeal – stay in relation to primary judgement and costs below – where appellant cannot satisfy the judgement – where refusal of stay necessary to preserve the appeal – whether appeal has reasonable prospects of success – whether appeal grounds hopeless and unarguable – whether stay should be granted – appropriate extent of stay COSTS – security for costs – application made under Corporations Act (Cth), s 1335 – no requirement of “special circumstances” – appellant proffered guarantee by related entity – limited evidence of guarantor’s financial position provided – whether guarantor provides sufficient security – whether security for costs by payment into court or bank guarantee should be made – amount of security

CORPORATIONS – management and administration – meetings – annual general meeting – recommendations by directors on voting – whether contractual obligation to recommend voting in favour of resolution – conditions precedent and subsequent in deed of release and compromise – whether positive obligation to ensure fulfilment of conditions – construction of deed – interaction with directors’ fiduciary obligations. CORPORATIONS – management and administration – meetings – annual general meeting – orders requiring votes to be cast in favour of certain resolutions – absence of personal covenant in deed of release and compromise – effect of (CTH) Corporations Act 2001, s 611, on construction of deed.

CORPORATIONS – administration – creditor’s meeting – where contemplated sale of the business of the company – where the employees of the company would be benefited by the sale of the business – where several significant creditors and the employees of the Company consent to the extension – whether extension of convening period of second meeting of creditors under s 439A(6) of the Corporations Act 2001 (Cth).

CORPORATIONS – voluntary administration – creditors’ meeting – notices to creditors convening meeting – application for leave to distribute notices by email, fax or post – willingness of Court to make such orders – where distribution by electronic means, fax or post would be more economical and would ensure notice to maximum number of creditors at earliest possible time.

PRACTICE AND PROCEDURE – Mental health of offender – Consequential orders following imposition of a limiting term – No point of principle

PRACTICE AND PROCEDURE – subpoenas to produce – whether subpoenas should be set aside - whether subpoenas are a “fishing expedition”

REAL PROPERTY – caveats – removal of caveats – caveator claims interest of a purchaser under enforceable agreement – whether caveator would succeed in obtaining interlocutory injunction to protect claimed interest – caveats ordered to be removed – Real Property Act 1900 (NSW) s 74MA

COSTS – indemnity costs – whether it was unreasonable for the plaintiff to reject offer of compromise – whether gross sum costs order should be made

CIVIL LAW – service of Statement of Claim – alternative to personal service – no point of principle

ESTOPPEL – equitable estoppel – sale of land by licensor to sub-licensee – need to obtain consent of licensee – representations made that sale would not affect licensee’s existing arrangements – reliance upon representations by licensee in giving consent – sale transaction involves grant to sub-licensee of easement over sub-licensed land – unconscionable for sub-licensee to assert that easement alters legal effect of existing sub-licence ESTOPPEL – estoppel by convention – sale of land by licensor to sub-licensee – need to obtain consent of licensee – consent obtained, and parties subsequently proceed, on basis of assumption that sale would not affect licensee’s existing arrangements – sub-licensee precluded from departing from shared assumption CONTRACT – sub-licensee agreement permits use of land for car parking – agreement provides for payment of annual fee – fee to be reviewed periodically – fee to be determined as “a fair and reasonable sum considering all relevant circumstances at the time” – relevance of evidence of market value – assessment of competing approaches of expert valuers MISLEADING OR DECEPTIVE CONDUCT – licensee gives consent to sale on basis that it would not affect its existing arrangements – proposed sale transaction involves grant to sub-licensee of easement over sub-licenced land – licensee could reasonably expect to be informed by parties to sale transaction of proposed grant of easement – entry into sale transaction without informing licensee of easement amounted to misleading conduct EQUITABLE REMEDIES – rectification – contract for sale of land – whether by mistake special condition failed to express common intention of parties – existence of alleged common intention not established on the evidence

SUCCESSION – whether unsigned and undated documents written by the deceased were intended by him to be or to operate as his Will.

LEAVE TO APPEAL FROM LOCAL COURT – Local Court Act 2007 (NSW) – appeal from an interlocutory decision – whether the Magistrate erred in law in maintaining second defendant as a party where no cause of action pleaded or foreshadowed against them – whether the Magistrate took into account irrelevant considerations in declining to dismiss the claim against the second defendant - whether the Magistrate erred in maintaining on foot an inadequately pleaded amended statement of claim – whether the Magistrate took into account irrelevant considerations in declining to strike out the amended statement of claim

CRIMINAL LAW – VERDICT – murder – trial by judge alone – missing person and cold case murder investigation – whether missing person deceased – identification of victim – admissions made to undercover police – whether admissions reliable – consciousness of guilt – circumstantial evidence – whether accused guilty or not guilty

REAL PROPERTY – Boundaries of land and fencing – Rural land - Give and take fence along creek - Determination under Dividing Fences Act 1991 NSW, section 14 – Contract of compromise - Characterisation of give and take fence arrangement – Legal incidents of arrangement

CIVIL LAW – interlocutory orders – application to vacate hearing date – costs – no point of principle

CIVIL LAW – interlocutory – application to vacate hearing date – costs - no point of principle

CIVIL LAW – interlocutory orders - application to vacate hearing date – failure to comply with directions – costs - no point of principle

CIVIL LAW – transfer of proceedings from District Court to Supreme Court – powers of either court to grant the relief sought – leave to amend Statement of Claim – extensive amendments – failure to comply with directions to file evidence – asserted lack of knowledge of purpose of the listing – costs

EQUITY – mortgages – plaintiff was defendants’ solicitor – deed of charge executed to secure payment of costs and disbursements payable to plaintiff – defendants executed a mortgage under the Real Property Act 1900 (NSW) in favour of plaintiff, as mortgagees, in respect of such costs – property was sold and the Court ordered an amount be paid by defendants into a controlled monies account – defendants seeks to have a portion of the controlled monies be withdrawn for purpose of defending their other unrelated legal proceeding – plaintiff’s right to security under the deed could be jeopardised if paid out to defendants – cannot be excluded that plaintiff may be able to substantiate its costs claims against the defendants – defendants have not sufficiently established that they are unable to fund their defence from other sources – difficult for the Court in interlocutory proceedings to reduce the value of the security

ADMINISTRATIVE LAW – surveillance device warrant – whether false or misleading statements in affidavit supporting application for warrant – whether material facts were omitted – nature and extent of applicant’s duty of disclosure

BAIL – release application – show cause offence – s 16B Bail Act 2013 – where applicant has criminal record – applicant on bail when presently alleged offences committed – relevance of time spent in custody to date – relevance of delay in matter coming to trial – strength of the prosecution case – history of failing to appear and offending on bail - failure to show cause why detention not justified – application refused

APPEAL – application for expedition and stay – expedition granted – stay sought based on fears of adverse consequences for appellants if debt sought to be enforced – two appellants resident overseas – right to pursue appeal not in issue – undertaking proffered without security and no indication as to asset backing

APPEAL – dismissal proposed for want of prosecution – inactive for more than five months – whether court should act on own motion – respondent represented – appellant with assistance from lawyer not on record

DAMAGES - personal injury - liability conceded - challenge to inclusion of cost of hip replacement - plaintiff suffering from early primary osteoarthritis prior to accident - accident caused hip replacement to become urgent - challenge to assessment of non-economic loss - challenge to allowance of 15% for vicissitudes - no appellable error shown to be established - no question of principle

PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005, rr 36.16, 36.17 – slip rule – whether no order as to costs prior to offer of compromise

PROCEDURE – costs – general rule costs follow the event – whether settlement of dispute warrants departure from general rule – where proceedings setting aside statutory demand resolved by consent in plaintiff’s favour – whether reasonableness of issuing demand relevant – where plaintiff required to approach Court for relief – held, plaintiff entitled to costs.

CORPORATIONS – winding up – winding up in insolvency – where company resolves to be wound up voluntarily – requirement of leave where winding up application on foot – where major creditor consents to grant of leave – held, leave granted for company to resolve to be wound up voluntarily.

CORPORATIONS – winding up – winding up in insolvency – where company resolves to be wound up voluntarily – requirement of leave where winding up application on foot – where petitioning creditor does not oppose grant of leave – where no advantage to be gained from insisting upon compulsory winding up – held, leave granted for company to be wound up voluntarily.

PROCEDURE – transfer of proceedings – application to transfer proceedings to Supreme Court pursuant to s 141 of Civil Procedure Act 2005 (NSW) – whether certain conditional costs orders should be made

REAL PROPERTY – caveats – removal of caveats – whether caveators would succeed in obtaining interlocutory injunction to protect claimed interest – no prima facie case or serious question established – caveats ordered to be removed – Real Property Act 1900 (NSW) s 74MA REAL PROPERTY – caveats – successive caveats – whether second caveat in respect of same estate or interest and purporting to be based on the same facts as earlier lapsed caveat – particulars of caveat not the same but both caveats based on the same transaction – Real Property Act 1900 (NSW) s 74O

LEGAL PRACTITIONERS – jurisdiction to restrain from acting – barrister briefed to appear in matter against former client – friendship between barrister and director of former client – barrister not shown to be in possession of any relevant confidential information – restraint upon barrister not required in the interests of the administration of justice

INJUNCTIONS – ex parte application – freezing order sought for legal costs payable by client – personal injury claim – no arguable case – orders sought refused – costs

GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appointment – Capacity for self-management – Meaning – Governed by nature and purpose of protective jurisdiction APPEALS – Appeal to Court from Guardianship Division of NSW Civil and Administrative Tribunal – Construction and operation of Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14 PRACTICE – NSW Trustee and Guardian Act – Capacity for self-management – Person incapable of managing affairs – Meaning – Utility and limitations of practice “tests” for assessing incapacity – Test of capacity to manage one’s affairs involves consideration of subjective circumstances of individual in question – Concept governed by nature and purpose of protective jurisdiction

TORTS – professional negligence – solicitor – failed restructure scheme with respect to a property owned by the plaintiff – loss suffered by plaintiff as a result – solicitor retained by plaintiff – whether existing retainer extended to include restructure issue – whether advice given to plaintiff – whether advice negligent – if negligent advice whether negligence caused loss – whether plaintiff contributed to loss suffered – no question of principle

SUCCESSION – family provision and maintenance - Summons named no defendant– Notice of the proceedings given to likely contradictors – No appearance in opposition to claim – Proceedings properly constituted for hearing on merits – Relief granted

CRIMINAL LAW – appeal – Crown appeal against sentence – federal offence – money laundering – offence under s 400.9(1) Criminal Code 1995 (Cth) –whether sentence was manifestly inadequate – objective seriousness of offence– importance of general deterrence

SENTENCE APPEAL – serious unprovoked assaults in nightclub – applicant had poor criminal record – sentencing judge found affected by alcohol – challenge to finding rejected – whether sentencing judge erred in fully accumulating sentence for two assaults – sentencing judge considered totality by adjusting sentence for each offence – no error shown – appeal dismissed.

CRIMINAL LAW – application for leave to appeal against sentence – offences of sexual assault perpetrated by applicant upon his step-daughter – whether sentencing judge erred in assessing the objective gravity of the offences, in the measure of accumulation of sentences, and in his consideration of the applicant’s subjective case – correction of error in passing fixed terms of imprisonment for 2 offences which carried standard non-parole periods

CONTRACT – settlement – whether clause in deed a penalty or present debt – no express acknowledgment of present debt in deed – express acknowledgement not necessary – recitals may be used as an aid to construction – clause is not a penalty PRACTICE AND PROCEDURE – judgments and orders – consent orders – extension of time – UCPR, r 1.12 – whether Paino v Hofbauer (1988) 13 NSWLR 193 correctly decided

TORTS – negligence – Motor Accidents Compensation Act 1999 (NSW) – injuries arising from child “skitching” (riding a skateboard whilst being towed by a vehicle) – findings as to contributory negligence of 12 year old boy under s 5R of the Civil Liability Act 2002 (NSW) – whether primary judge erred in apportioning responsibility wholly to the driver TORTS – negligence – Motor Accidents Compensation Act 1999 (NSW) – damages for future economic loss – where damages assessed on basis that most likely future circumstance (s 126) would have been employment as a tradesman – where damages adjusted to include lump sum representing value of lost opportunity to earn higher income in self-employment – whether s 126 permitted such an award – whether adjustment for lost opportunity to earn higher income manifestly excessive EVIDENCE – admissibility – relationship between ss 79 and 80 of the Evidence Act 1999 (NSW) – “expert” evidence as to matters within ordinary or common experience – whether opinions as to ordinary behaviour of children “based” on specialised knowledge

CORPORATIONS – winding up – winding up in insolvency – where time for compliance with statutory demand expired after date at which originating process seeking winding up order filed – whether presumption of insolvency available where demand had expired at date of hearing but not at date of filing of originating process – held, presumption not available.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – whether procedural pre-requisites for approval satisfied – whether Court should approve scheme – where majority at creditors’ meeting approved scheme – where proposed scheme is reasonable and does not treat minority shareholders unfairly – where scheme would not prejudice company’s ability to pay creditors – where scheme not opposed by ASIC – held, approval given.