Cases and authorities

PRACTICE AND PROCEDURE – Application to strike out defence – defence containing scandalous material – failure to comply with UCPR – defence struck out – leave granted to re-plead defence – defendant’s application for interrogatories and discovery refused.

CRIMINAL LAW – sentencing – mental illness – whether principles applicable to an offender suffering mental illness correctly applied – whether error in not assessing moral culpability – whether sentence imposed by the judge was appropriate

DEFAMATION – procedure – objections as to interrogatories – application of Practice Note SC CL 4 – whether proposed interrogatories are necessary for the resolution of the real issues in dispute – whether appropriate to interrogate in order to learn a matter subsequently to be relied upon in aggravation of damages

PROCEDURE – civil – application – amend statement of claim – evidentiary statement of plaintiff – expert report – ambiguity with use of word “pipe” – plaintiff to clarify ambiguity – order for plaintiff to file and serve further amended statement of claim – no question of principle

EVIDENCE – admissibility – cross-examination of a previous representation of other persons – whether opinion of witness regarding previous representation is probative

EVIDENCE – admissibility – judicial discretion to exclude or limit the use of evidence – whether only part of the prosecution brief of evidence, the subject of this tort action has probative value

EVIDENCE – admissibility – vicarious admissions –whether statements of police officer the subject of police tort claim are admissible against the State of NSW

CRIMINAL LAW – Evidence – Inadvertent reference by witness to the fact that the accused is presently in custody – Potential prejudicial effect – Whether matter capable of being cured by a direction from the trial Judge – Whether jury should be discharged

EVIDENCE – admissibility – admissions – vicarious admissions – statements by non-party police officer whose conduct subject of police tort claim

COSTS – cost of fund management fees – legal costs

PROCEDURE – application by Defendant to vacate hearing date – Defendant seeks Legal Aid - application by unrepresented party for leave to issue subpoenas – failure of Defendant to comply with orders – no basis shown for subpoenas to issue – Defendant received previous pro bono assistance – applications refused

CORPORATIONS – Winding up – Insolvency – Proceeds of contract of reinsurance – Application for orders under Corporations Act 2001 (Cth) s 562A(4) – Whether “just and equitable” to make orders sought.

CORPORATIONS – voluntary administration – appointment of administrator – where approval of appointment of an administrator was required by a third party authority – whether resolution passed at a director’s meeting without quorum – whether administrator’s appointment was valid.

EVIDENCE – admissibility – relevance – facts in issue – evidence of practice in taxi industry for downloading images from in-board security cameras

CORPORATIONS – External administration – voluntary administration – where company is trustee of trading trust – where trustee is removed ipso facto upon appointment of administrator and no replacement trustee appointed – application by administrator to be appointed receiver and manager of trust.

SUCCESSION – wills probate and administration – construction and effect of testamentary dispositions – “personal effects”

CRIMINAL LAW – Crown sentence appeal – child sex offences - seven charges - respondent pleaded guilty – respondent was a juvenile when offences were committed – sentence – five year good behaviour bond – suspended aggregate sentence of 2 years imprisonment – whether error in identifying qualified discount for remorse – whether error in imposing a suspended aggregate sentence – whether error in imposing a single bond for five offences - whether indicated sentences reveal error in aggregate sentence - whether aggregate sentence manifestly inadequate – whether indicating non-parole periods for indicated sentences was in error – whether individual bonds were manifestly inadequate – whether overall sentence was manifestly inadequate – residual discretion in re-sentencing

APPEAL – challenge to assessment of evidence at trial – no issue of principle TORTS – motor accident – claim against Nominal Defendant – whether unidentified vehicle involved – whether unidentified vehicle negligently driven

DEFAMATION – imputations – objections as to form and capacity

DEFAMATION – procedure – application to have proceedings tried without a jury – whether plaintiffs alleging likelihood of prejudice against them due to adverse reporting on the media DEFAMATION – pleadings – application to amend defence to include further particulars of truth – whether capable of supporting the truth of the imputations

EQUITY – trusts - express trust - discretionary - construction - whether trust deed confers power on trustee to extend vesting date - whether power to vary trust by enlarging category of eligible beneficiaries has any meaning otherwise - whether proscription on varying trust so as to infringe the rule against perpetuities has any meaning otherwise EQUITY – trusts - express trust - discretionary - whether s 81 of the Trustee Act 1925 (NSW) empowers the court to confer a power on a trustee to extend vesting date

TRUSTS AND TRUSTEES – charitable trusts – administrative scheme – whether alteration to objects clause alters scope of objects – whether alteration is within permissible scope of an administrative scheme

APPEAL – civil – leave to appeal – interlocutory decision of Local Court PRACTICE AND PROCEDURE – adjournment of hearing – self represented litigant ill – no question of principle

CRIMINAL LAW – sentencing – murder; one count –- guilty plea – aggravating factors – prior criminal convictions including offences of domestic violence – offence involved gratuitous cruelty – offender on conditional liberty at time of offence – offence occurred in the home of the victim – mitigating factors – offence not part of planned or organised criminal activity- remorse, whether – prospects of rehabilitation, whether – likelihood of reoffending, whether – very serious criminality – domestic violence – importance of general and specific deterrence

COSTS – whether costs should be apportioned – whether interest should be awarded on costs – no issue of principle. STAY – whether judgment should be stayed pending appeal – no evidence of hardship to defendant or inability of plaintiff to repay judgment – stay refused.

CRIMINAL LAW – appeal – appeal against sentence – whether pre-sentence custody served properly taken into account – where applicant bail refused in respect of other offences – extent to which sentence should be backdated – error by judge in taking into account offence committed in breach of conditional liberty - power of appellate court to re-sentence where error established – no lesser sentence warranted

TORTS – negligence – slip and fall in supermarket – whether plaintiff established that she had slipped in water on the floor – significance of CCTV footage showing numerous customers walking in area where water alleged to be – if water on floor, whether either or both appellants breached duty of care – whether facts established on probabilities

CONTRACT – agreement – parties entered into a supply and purchase arrangement – whether parties had agreed the essential term of price for the duration of the arrangement – whether price had been fixed subject to a price review mechanism and an obligation to negotiate in good faith EVIDENCE – admissions – admissions of law and fact – whether an admission by a party to an alleged contract on a matter of law should be given any weight

CRIMINAL LAW – SENTENCE – murder – repeated offences of domestic violence – no intention to kill –no premeditation – brutal assault – Form 1 matter – deterrence – moral culpability and early exposure to alcohol drugs and violence

EVIDENCE – tendency – whether evidence rebutting assertion of reliance admissible as non-tendency evidence

CONTRACT – construction – where second plaintiff, first defendant and third defendant entered into agreements for sale of relevant properties – whether special conditions to agreements stipulated manner of payment of purchase price to be by payment of monetary currency and delivery of commodity – whether failure to deliver commodity gave rise to claim in debt. CONTRACT – breach – whether first and third defendants breached obligation to make payment of purchase price – defences – whether collateral contract existed between second plaintiff and first defendant – whether obligation of first defendant under relevant agreement to make payment of specified purchase price was a sham – whether plaintiff has established quantum of loss or damage caused by failure to deliver commodity – whether equitable lien established for unpaid portion of purchase price. CORPORATIONS – winding up – winding up in insolvency – uncommercial transactions – where company was insolvent at relevant times – whether agreements for sale of property were uncommercial transactions – whether a reasonable person in company’s circumstances would not have entered into relevant transactions. CORPORATIONS – management and administration – duties and liabilities of officers of corporation – directors' duties – claim for breach of fiduciary duties and breach of directors' duties at general law – where sixth defendant was director or controlling mind of entities that entered into relevant agreements – diversion of monies – conflict of interest – whether conduct of sixth defendant amounted to breach of fiduciary duties. CORPORATIONS – management and administration – duties and liabilities of officers of corporation – claim for breach of statutory duties under Corporations Act 2001 (Cth) ss 180, 181 and 182 – duty of care and diligence – duty to act in good faith in the company's best interests – duty to not improperly use position to gain advantage or cause detriment to company – whether conduct of sixth defendant amounted to breach of statutory duties – accessorial liability – whether established that first to fifth defendants were knowingly concerned and involved in alleged contraventions of general law or statutory duties.

PROCEDURE – application to vary vexatious proceedings orders – defendant serving term of imprisonment – application pending for Part 7 inquiry into conviction – where application remained dormant for many years – whether vexatious proceedings orders should be varied to allow application to proceed outside the regime of Vexatious Proceedings Act

PROCEDURE – Order previously made for appointment of tutor for Plaintiff – Unable to locate tutor prepared to act – Proceedings unable to be carried on without tutor – Notice of Intention to Appeal filed by Plaintiff – Defendants do not seek costs of notices of motion previously dealt with – Orders made as to costs – No other orders made other than to dismiss oral application for adjournment

FAMILY LAW AND CHILD WELFARE – adoption – application to dispense with requirement of parental consent – application made prior to making of any application for adoption order – whether it is in the best interests of the child to override the wishes of the parent – order declined – Adoption Act 2000 (NSW) s 67(1)(c)

CRIMINAL LAW – pre-trial hearing – application by accused for previous evidence of certain witnesses to be read out and tendered in pending trial as entirety of those witnesses evidence – where witnesses competent and available to give evidence in pending trial

CRIMINAL LAW – pretrial hearing – application for audiovisual recording of evidence – where recording of evidence precautionary in case of further trial or retrial

CRIMINAL LAW - bail – applicant charged with supply prohibited drug and deal with the proceeds of crime – applicant on bail and suspended prison sentence at time of offences – applicant with drug problem - criminal record includes offences of drive whist disqualified – present custody is applicant’s first time in custody – Crown neither supports nor oppose bail – drug supply of a low order - strong support from parents and employer – significant security offered – conditional bail granted

[PROCEDURE] – application to vary orders pursuant to UCPR r 36.16 – whether conclusions reached preclude a finding of liability.

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child – where no realistic prospect of restoration of child to care of birth parents – where preserving the possibility of restoration would thus contravene the spirit of adoption principle (e1) – where proposed adoptive parents in a better position to facilitate contact with birth parents than the Department – where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them – held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether consent of birth parents ought to be dispensed with – as the making of an adoption order would promote the child's welfare and be in his best interests, it is necessarily also in the best interests of the child to make a consent dispense order so as to allow the adoption order to be made.

CONTRACT – vitiating factors – fraudulent misrepresentation – rescission – where plaintiff was induced to enter a contract with the first defendant by reason of fraudulent misrepresentations made by the first defendant and its sole director, the second defendant – held that the plaintiff validly rescinded the contract TRADE PRACTICES – claim by plaintiff for damages in respect of pre-contractual misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law – plaintiff entered franchising agreement with first defendant – representations made by first defendant and its sole director, the second defendant, as to the suitability of a franchise location selected by the first defendant for the plaintiff, the profitability and management of the franchise to be conducted by the plaintiff, and the profitability of other franchises - representations as to future matters under s 4 of the Australian Consumer Law – no “evidence is adduced to the contrary” under s 4(2) of the Australian Consumer Law – held that each representation was misleading or deceptive – held that the second defendant was knowingly involved in contraventions by the first defendant DAMAGES – general principles – consideration of the ‘once and for all’ rule – plaintiff entered lease with third party in reliance on the defendants’ fraudulent misrepresentations – plaintiff claimed, among other heads of loss, the value of the future rent payments to be made under the lease – unclear whether the lessor would grant consent to the assignment of the lease from the plaintiff to another company – whether Court can award damages and grant leave to the plaintiff to apply for further damages in the event that the lessor does not consent to the assignment of the lease – held that the Court could so order, applying the High Court’s decision in Polkinghorne v Holland – ordered that the damages awarded be without prejudice to the plaintiff’s right to recover any further sum as damages in respect of the plaintiff’s continuing obligations under the lease

COSTS - Civil Procedure Act 2005 (NSW), s 98(4)(c) - specified gross sum costs order – circumstances in which specified gross sum costs order may be made – cost and length of time of first instance determination and appeal - effect of delay – prospect that surplus funds from sale of property could be dissipated unless monetary costs judgement made

PROCEDURE – civil - jurisdiction - transfer of proceedings - where dispute involves two sets of District Court proceedings and one set of Supreme Court proceedings - application to transfer one set of District Court proceedings to Supreme Court - where District Court soon to consider whether two sets of proceedings before it should be heard together - where order already made in Supreme Court proceedings that notice of motion seeking leave to amend statement of claim be filed - where order noted that the transfer application should be decided at the same time as the hearing of the application for leave to amend - where all three proceedings share common factual background - whether transfer application can be properly decided before full extent of factual issues made clear to court

PROCEDURE – civil - judgments and orders - freezing orders - whether freezing order should be extended - where District Court proceedings on foot - where defendant unlikely to satisfy judgment debt if unsuccessful in District Court proceedings - where defendant of the view he has no ownership interest in properties legally held in his name - whether basis to fear frustration of enforcement of any judgment plaintiff might recover in District Court.

CORPORATIONS – membership, rights and remedies – derivative action – application for grant of leave by shareholder to bring proceedings in name of company against directors under Corporations Act 2001 (Cth) s 237 – whether company will bring proceedings – whether applicant acting in good faith in bringing proceedings – whether in the best interests of company that applicant be granted leave – whether proposed proceedings involved serious questions to be tried – indemnity – whether written notice of application has been provided to company.

CORPORATIONS – winding up – statutory demand – applications for orders setting aside demands – single application in respect of multiple demands – whether separate applications in respect of separate demands required – Corporations Act 2001 (Cth) s 459G CORPORATIONS – winding up – statutory demand – whether demand is defective in a way that causes substantial injustice - Corporations Act 2001 (Cth) s 459J CORPORATIONS – winding up – statutory demand – whether genuine dispute in relation to all or part of the debt the subject of the demand – whether dispute sufficiently raised by affidavit served in accordance with Corporations Act 2001 (Cth) s 459G – whether demand should be varied under Corporations Act 2001 (Cth) s 459H

WILLS AND ESTATES – application for interim distribution pursuant to Probate and Administration Act 1898 (NSW), s 84 – whether sufficient funds available in estate to make interim distribution – where estate has a number of unquantified liabilities – where separate proceedings on foot with potential to affect size of estate – where claimant unable to repay any amount distributed to it in the event of over distribution

PRACTICE AND PROCEDURE – expedition – application for expedition of leave application – no utility in granting expedition – application dismissed.

EVIDENCE – tendency evidence – evidence of earlier altercation between accused and sister of deceased – knife used – significant probative value – probative value does not substantially outweigh prejudicial effect – evidence excluded

CORPORATIONS – creditor’s statutory demand – application to set aside a statutory demand – service of application – failure to serve within 21 day statutory period – absence of jurisdiction to extend time for service – application dismissed

PROCEDURE – stay of proceedings – where party liable for costs of proceedings commences further proceedings on the same cause of action or for the same relief – where costs order made against bankrupt – absence of jurisdiction to make costs order – where costs not assessed – discretion not to exercise power to stay proceedings