Cases and authorities

PROCEDURE – costs – gross sum costs order – where parties involved in extensive litigation – where conduct of director or unsuccessful party substantially increased costs – where unsuccessful party was insolvent and wound up – whether gross sum costs order should be made under Civil Procedure Act 2005 (NSW) s 98(4)(c). PROCEDURE – costs – whether order for costs on indemnity basis. PROCEDURE – costs – personal costs order – where director appeared with leave on behalf of the company – where conduct of director prolonged litigation – whether personal costs order should be made against director.

CRIMINAL LAW – Crown appeal against sentence – aggregate sentence for child sexual assault offences over 20 year period – partly cumulative sentences for offences of possessing and disseminating child abuse material – whether adequate degree of accumulation of indicative sentences in arriving at aggregate sentence – whether adequate accumulation of sentences for child abuse offences – whether overall sentence and effective non-parole period manifestly inadequate

CRIMINAL LAW – Crown appeal against sentence – s 5D Criminal Appeal Act 1912 (NSW) – dangerous driving causing death of three people and grievous bodily harm to a fourth – decision to drive while affected by drugs which tended to induce epileptic fit – extent to which long-standing frontal lobe injury affected judgment – whether individual or total sentences manifestly inadequate – relevance of guideline judgment in R v Whyte [2002] NSWCCA 343 – Crown discharged onus of establishing that residual discretion ought not be exercised

APPEAL – sentencing – appeal against sentence – murder conviction and sentence following guilty plea –notice seeking application for extension of time in which to seek leave to appeal filed six years after sentencing – Muldrock error alleged – the judgment on sentence did not expressly refer to R v Way [2004] NSWCCA 131; 60 NSWLR 168, but referred to R v AJP [2004] NSWCCA 434 and R v Simon [2005] NSWCCA 123 – whether sentencing judge applied Way principles and fell into error – whether extension of time should be granted

CRIMINAL LAW – conviction appeal – offence of manslaughter – single punch by security guard during confrontation – identification of security guard – whether verdict was unreasonable and unable to be supported by the evidence – Crown case made up of eye witness evidence and CCTV footage – conviction appeal dismissed – CROWN APPEAL AGAINST SENTENCE – whether sentence manifestly inadequate – security guard’s actions to defend another – forceful punch not a reasonable response in the circumstances – Crown submissions inconsistent with findings of sentencing judge – appeal against sentence dismissed.

CRIMINAL LAW – sentence appeal – need for an extension of time – “Muldrock error” conceded by Crown – offence of murder – applicant mentally retarded – unable to explain why he committed the offence – re-exercise of sentencing discretion pursuant to s 6(3) of the Criminal Appeal Act 1912 – tension between need to protect public and inapplicability of principles such as general deterrence – appeal allowed and sentence reduced.

APPEAL – application for leave to appeal – from summary dismissal – interlocutory decision - whether House v The King error established

CRIMINAL LAW – Sentencing – Murder – Juvenile offenders – Extended Joint Criminal Enterprise – Verdicts of manslaughter and murder between co-offenders – Application of principle of parity – Finding of special circumstances – Variation to statutory ratio for non-parole period – Relevance of strict bail conditions - Whether offenders should serve sentence in juvenile detention – Order made directing that offenders serve their non-parole periods as juvenile offenders until attaining age of 21

PROCEDURE – civil – summary disposal – dismissal – whether reasonable cause of action – where statement of claim does not specify defamatory publication sued on – where statement of claim does not specify imputations – where statement of claim fails to provide particulars LIMITATION OF ACTIONS – claim in defamation – where claim commenced outside ultimate bar – where Court has no power to extend the limitation period

PROCEDURE – civil – settlement – agreement by plaintiff to discontinue proceedings on terms – where plaintiff subsequently changed his mind – whether agreement actually concluded – application of s 73 of Civil Procedure Act 2005 (NSW) to give effect to agreed discontinuance – where exercise of power would give effect to overriding purpose and s 56 of Civil Procedure Act 2005 (NSW) – where proceedings liable to be dismissed on the grounds stated in Bleyer v Google Inc

CRIMINAL LAW – application for stay of proceedings – application of Dietrich principles – solicitor retained and counsel instructed for retrial – purported appeal against decision of Legal Aid Commission – Court not prevented by ss 56 and 57 of the Legal Aid Commission Act 1979 from proceeding – motion dismissed, leave granted to re-agitate issues if insufficient time to enable proper preparation of defence case

REAL PROPERTY – third party procured a fraudulent mortgage over the real property of a regulated self-managed superannuation fund, being held by a custodian as bare trustee – lender assigns its interest in the mortgage to the corporate trustee of the fund acting in its personal capacity – application to appoint new bare trustee and to cure irregularity where trustee/assignee is in position of both lender and borrower. HELD: new bare trustee appointed; vesting order to vest subject property in new trustee under Trustee Act, s 71; mortgage cancelled under Real Estate Act, s 138(3)(a)

PROCEDURE - costs – when payable – application by Defendant for stay by reason of inappropriate forum – application dismissed with costs – whether costs payable forthwith – ordinary rule – whether case is out of the ordinary – application refused.

JUDICIAL REVIEW – consent orders – whether Court will make.

CONTRACT – interpretation of contract of guarantee – whether guarantee created equitable interest subsequently acquired real property – where guarantors subsequently acquired property as trustees of beneficiaries of a superannuation fund. EQUITY – trusts and trustees – application for vesting order.

GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appointment – Application for appointment of a protected estate manager – Capacity for self-management – Meaning – Governed by nature and purpose of protective jurisdiction PRACTICE – NSW Trustee and Guardian Act – Capacity for self-management - Person incapable of managing his or her affairs – Meaning – Utility and limitations of practice “tests” for assessing incapacity – Concept governed by nature and purpose of protective jurisdiction

PRACTICE AND PROCEDURE – declaratory relief – form of orders – discretionary considerations – basis on which trial conducted – focus of the relief COSTS – costs against non-party – factors to be taken into account – whether party a “man of straw” – interest of non-party in proceedings – discretionary considerations

PROCEDURE – net proceeds of sale of property paid into Court by mortgagee – application for payment out of Court – whether plaintiff is the person primarily entitled to the funds held in Court on the basis that she has an equitable charge over the property arising out of a Loan Agreement – whether plaintiff has an interest in the very funds paid into Court – whether all interested parties are on notice of the application

CORPORATIONS – winding up – conduct and incidents of winding up – where levies were made by previous administrators and current liquidator to shareholders in Company in order to satisfy judgment debts and costs – whether liquidator was limited to reliance on levy issued in 2015 by reason of election – whether the administrators’ first levy was authorised by the Company’s articles of association – whether levies issued under a share surrender agreement were invalid. CORPORATIONS – winding up – where shareholders holding class D shares were entitled to occupy a unit within a block owned by the Company – where Company resolved to redevelop unit blocks and convert company title to strata title – where Company struck levy against shareholders in Company to conduct the redevelopment – where shareholders of class D shares opposed resolution and received a money judgment – where other shareholders agreed to surrender shares in return for strata title units and undertook to meet specified levies – whether unit held on constructive or resulting trust for class D shareholders. CORPORATIONS – winding up – liquidators’ costs, fees and expenses – where liquidator claimed a lien over the unit for unspecified work and unquantified costs – where the unit is trust property – where not established that the costs, fees and expenses incurred by the liquidator were for the preservation of the unit rather than wider costs of the liquidation – where not established that non-trust assets of the Company would be insufficient to meet liquidators costs of the winding up. MORTGAGES – mortgages and charges generally – where class D shareholders entered into costs agreement with solicitors – where costs agreement provided for a mortgage over class D shares as security for payment – where judgment debt for oppression claim was entered in favour of class D shareholders – where orders for costs entered in favour of class D shareholders – where distributions in the winding up arose from the award of the judgment debt and costs – whether judgment debts, orders for costs, and distributions to shareholders in winding up were ‘secured property’ for the purposes of the mortgage

INTERIM SUPERVISION ORDERS – Crimes (High Risk Offenders) Act 2006 – Unacceptable risk if not supervised – Reasonable conditions – Appointment of psychiatrists

CRIMINAL LAW – summary jurisdiction – offences under Road Transport (General) Act 2005 – breach of load restraint requirements – company as operator of a heavy vehicle – director of that company – pleas of guilty

APPEALS – appeal from District Court to Court of Appeal – no right of appeal concerning statutory appeal to District Court from costs assessment review – no right of appeal concerning interlocutory orders made in District Court in statutory appeal to District Court from costs assessment review panel APPEALS – stay pending application for leave to appeal – relevant principles APPEALS – extension of time to seek leave to appeal – relevant principles

CRIMINAL LAW - appeal against conviction - armed robbery - series of robberies of bowling clubs in western Sydney by masked men in a six week period - earlier decision of Court of Criminal Appeal admitting evidence of each robbery as coincidence evidence in respect of the other robberies - whether probative value of coincidence substantially outweighed its prejudicial effect - Evidence Act 1995 (NSW), s 101 - whether error in admitting DNA evidence, as to which no objection was taken at trial - whether error in Crown not asking witness who gave a general description of appellant whether he could be identified - whether jury's verdict unreasonable or unjust - appeal dismissed

CRIMINAL LAW - admissibility - whether opinion evidence relevant under s 55 Evidence Act - exclusion under s 137 Evidence Act - admissibility of opinion evidence under s 78(1)(b) Evidence Act - whether opinion necessary to obtain adequate account or understanding of perception

CORPORATIONS – winding up – liquidators – application for appointment as liquidator – where proposed liquidator is administrator of company – where validity of appointment as administrator doubtful – where company is in liquidation and liquidator has resigned – where secured creditor supports administrator’s appointment – held, administrator appointed as liquidator.

CORPORATIONS – voluntary administration – creditor’s meeting – extension of time for convening of second creditor’s meeting – where administration has some complexities but insufficient evidence to demonstrate necessity of length of time sought – held, extension of convening period granted for period shorter than sought.

CORPORATIONS – external administration – liquidation – special purpose liquidator – application for directions under Corporations Act s 479(3) – whether special purpose liquidator justified in accepting an offer to settle proceedings

ADMINISTRATIVE LAW – credibility of witness – second defendant gave evidence through translator – whether choice of words by translator created misleading impression of second defendant’s evidence and attitude – risk of unfair hearing – reasonable apprehension of bias – trial aborted

EVIDENCE – criminal trial – murder – unfavourable evidence - application by Crown to cross-examine co-offender - prior inconsistent statement – evidence of co-offender conflicts with evidence from other Crown witnesses – whether evidence unfavourable

TORTS – negligence – liability of motorists for collision on a busy arterial road – where first vehicle crossed intersection controlled by traffic lights from a factory driveway displaying a left turn only sign and collided with the second vehicle travelling through intersection with a green light – whether second vehicle was travelling in a left hand turn lane when entering intersection – evaluation of expert and lay evidence – whether driver of second vehicle owed his unborn child a duty of care – whether he breached his duty of care by colliding with a vehicle already in the intersection in circumstances where he was found to be proceeding straight through the intersection while travelling in a left turning lane TORTS – negligence – liability of Council – powers and functions exercised by Council as consent authority for the re-development of a factory complex – whether Council owed a duty of care to users of the intersection in exercise of its statutory powers – whether Council breached its duty in discharging its statutory function as to whether conditions should be imposed to avoid risk of traffic conflicts – whether Modbury principles are applicable – s 43A Civil Liability Act 2002 TORTS - negligence – liability of Roads & Maritime Services – whether RMS owed a duty of care to users of intersection in exercise of its statutory powers – power to install traffic control device on land adjacent to a main road – signalisation – s 43A Civil Liability Act 2002 – whether RMS breached duty of care TRAFFIC LAW – left turn only sign located within factory complex near a driveway exit – whether sign had been installed as a condition of development consent – legal force and effect of sign – lacuna in Australian Road Rules – sign merely directory or advisory not regulatory

EVIDENCE – criminal trial – murder – unfavourable evidence - application by Crown to cross-examine witness - prior inconsistent statement – evidence of witness conflicts with evidence from other Crown witnesses – whether evidence unfavourable – whether forensic disadvantage to accused

EQUITY – First Defendant – An employee misappropriates funds of Plaintiff employer – Misappropriated funds applied for the benefit of Defendants REMEDIES – Remedies in equity – Tracing funds – Subrogation – Constructive trust – Equitable charge – Actual or constructive knowledge of second Defendant PROCEDURE – Whether failure to file a defence is an admission of the facts pleaded in the Statement of ClaimClick here to enter text. – Whether hearing should proceed in absence of the Defendants

PROCEDURE – Judgments and Orders – Costs – Maximum Costs – Consent Orders – Construction – Ongoing estate administration costs – Costs capped by settlement agreement.

CRIMINAL LAW – Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) – appeal against conviction CRIMINAL LAW – effect of failure to direct the jury as to an essential element of the offence – whether proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied – whether appellate court should enter alternative verdict pursuant to s 7(2) of the Criminal Appeal Act 1912 CRIMINAL LAW – whether verdict was unreasonable or could not be supported having regard to the evidence EVIDENCE – probative value of lies of the accused

APPEAL – appeal under s 5F(2) of the Criminal Appeal Act 1912 (NSW) against interlocutory orders – limitation under s 5F(3A) for appeals against decisions on admissibility of evidence - whether Crown can appeal against order prohibiting a person from giving evidence – whether order prohibiting a person from giving evidence is an interlocutory order or a decision on the admissibility of evidence CRIMINAL LAW – evidence – witnesses – proposed witness for prosecution present at compulsory examinations – proposed evidence of witness informed by compulsorily acquired materials – whether witness should be prohibited from giving evidence in a subsequent criminal trial – whether respondents would be hindered or limited in cross-examination of witness CRIMINAL LAW – duties of prosecutor - dissemination of compulsorily acquired material to prosecution authorities – where dissemination disclosed and current prosecution team had not read the material – whether prosecutor satisfied duties of disclosure and to present case properly and with fairness to the accused CRIMINAL LAW – legal professional privilege – imputed waiver of privilege – inference to be drawn from the maintenance of privilege – whether maintenance of privilege inconsistent with contention that compulsorily acquired material did not give Crown forensic advantage – whether maintenance of privilege inconsistent with denial of indirect disclosure of compulsorily acquired material – whether proceedings should be stayed until privilege is waived CRIMINAL LAW – grant of stay – considerations for granting a permanent stay - unlawful dissemination of compulsorily acquired material – whether dissemination altered the accusatorial process such as to warrant a permanent stay CRIMINAL LAW – grant of stay – whether the fact that persons present during compulsory examinations may have been party to the formulation of charges against the respondents warranted a permanent or temporary stay CRIMINAL LAW – grant of stay – compulsory examination for improper purpose or abuse of power – whether stay should be granted where proceedings do not depend on examination and compulsorily acquired material is not admissible in evidence

CORPORATIONS – Winding up – Statutory demand – Application to set aside a creditor’s statutory demand under Corporations Act 2001 (Cth) ss 459H(1)(a) – Whether there is a genuine dispute as to the existence or amount of debt.

BUILDING AND CONSTRUCTION – right of support – application for mandatory injunction requiring defendants to reinstate support to the plaintiff’s land and building – parties agreed that defendants breached their duty of care in relation to the plaintiff’s right of support under s 177 of the Conveyancing Act 1919 (NSW) and that some form of mandatory injunction is appropriate – where the “grout injection” method proposed by the defendants would be quicker and simpler, but riskier, than the underpinning method proposed by the plaintiff – relevance of defendant’s failure to comply with development consent conditions to determining which form of work should be undertaken – held that the form of work proposed by the plaintiffs should be undertaken

EQUITY– general principles – equitable estates and interests – whether plaintiff has an equitable interest in a property previously owned by the defendant pursuant to an unregistered mortgage – whether the defendant’s signature on the loan and mortgage documents was forged; PROCEDURE – net proceeds of sale of property paid into Court – application for payment out of Court – whether plaintiff has an interest in the funds held in Court – whether plaintiff is primarily entitled to the funds and all interested parties are on notice

HIGH RISK SEX OFFENDER – application for extended supervision order pursuant to Crimes (High Risk Offenders) Act 2006 - dispute as to making of order – dispute as to duration and conditions attaching to order – no question of principle

EXTENDED SUPERVISION ORDERS – Crimes (High Risk Offenders) Act 2006 – Unacceptable risk of re-offending if not supervised – Reasonable conditions

CONTINUING DETENTION ORDERS AND EXTENDED SUPERVISION ORDERS – Crimes (High Risk Offenders) Act 2006 – Altered circumstances – Unacceptable risk of re-offending if not supervised – Reasonable conditions

CRIMINAL LAW – sentence – murder – intention to kill – vicious stabbing in deceased’s home – where offender followed deceased home – offender had previous thoughts of following someone home and killing them with a knife – relevance of youth of offender – no criminal record – no evidence of mental disorder – no remorse – questionable prospects of rehabilitation – risk of future dangerousness – need for community protection CRIMINAL LAW – sentence – indecent assault – where offender followed victim home – victim incapacitated by alcohol or asleep – partial accumulation of sentence for murder

EVIDENCE – criminal trial – murder – unfavourable witness - prior inconsistent statements – application by Crown to cross-examine witness – whether evidence had probative value – whether probative value outweighed by unfair prejudice

EQUITY – confidential information – where alleged confidential information was obtained as a result of retainer to act as solicitor – effect of concurrent retainers for different clients in the same matter EQUITY – confidential information – whether information was confidential – whether information alleged to be confidential was in the public domain – whether information alleged to be confidential was shared information as between different clients involved in the same matter CONTRACT – construction of terms of retainer to act as solicitor – content of retainer where client has no standing to bring claim

FAMILY LAW AND CHILD WELFARE – secure accommodation order – Secretary given advice that justified in circumstances in not routinely restraining/detaining child.

LEGAL PRACTITIONERS – obtaining instructions from owners’ corporation – director of lot owners with minority interest in plaintiff owners’ corporation appointed as representative to provide instructions in relation to litigation – other lot owners with majority interest purported to instruct lawyers to settle the dispute at an invalidly held meeting contrary to representative’s instructions –representative’s authority has not been revoked – whether plaintiff’s solicitors and barrister were required to follow representative’s or majority lot owners’ instructions – whether representative’s instructions were improperly given – held that the plaintiff’s solicitors and barrister were obliged to follow instructions properly given by the representative, and that there was nothing improper in the representative taking a position contrary to that taken by lot owners with a majority interest STRATA SCHEMES – conferral of authority on individual to conduct litigation by owners’ corporation – plaintiff owners’ corporation purported to “delegate the authority” to provide instructions to solicitors in relation to litigation to an individual –whether that delegation contravened s 13(3) of the Strata Schemes Management Act 1996 (NSW) – whether the individual was employed to assist the owners’ corporation within s 13(1) of the act – held that the conferral of authority was not a delegation of the owners’ corporation’s functions under s 13(3), and held that the concept of employment in s 13(1) of the act extends beyond appointing individuals as employees, so that the individual here was authorised under s 13(1) by the owners’ corporation’s resolution to instruct the owners’ corporation’s lawyers and to give the usual undertaking as to damages on behalf of the owners’ corporation, but not to terminate the lawyers’ retainer

PROCEDURE – civil – notice of motion – extension of time – vacation of hearing date – summons to strike out judgment of local court - extension of time due to major depressive disorder – recent decision of ICAC v Cunneen – variation of timetable – whether plaintiff prejudiced

PRACTICE AND PROCEDURE – Notice of Motion – request for further particulars of the Statement of Claim before a Defence is filed – whether pleadings sufficient to enable defendant to identify the case he has to meet - allegation of fraud – distinction between pleadings and evidence – Notice of Motion dismissed

STATUTES – Construction – Particular statutes – “carry out the installation”, “maintain” – Telecommunications Act 1997 (Cth), Sch 3