Cases and authorities

BANKRUPTCY – practice and procedure – whether proceeding against the second defendant is stayed under s 58(3) of the Bankruptcy Act 1966 (Cth) – plaintiff claims, among other things, that the second defendant, a bankrupt, engaged in misleading or deceptive conduct which induced the plaintiff to enter a contract with the first defendant – held that the proceeding is not “in respect of a provable debt” within s 58(3) and the plaintiff therefore does not require leave to proceed against the second defendant INSOLVENCY – practice and procedure – application by plaintiff for leave to proceed against the first defendant, a company in liquidation, under s 500 of the Corporations Act 2001 (Cth) – whether leave to proceed should be granted where the plaintiff is able to proceed against the second defendant, the sole director of the first defendant, in any event – held, granting leave to proceed against the first defendant, that it would be a waste of resources if any judgment obtained against the second defendant would not be binding against the first defendant and that it is desirable that both defendants be bound by any findings

EQUITY – claim for an account in common form – alleged joint venture in land development – whether the parties to these proceedings were joint venturers – whether plaintiffs have already provided adequate accounts to the plaintiffs. LIMITATION OF ACTION – what is the limitation period for a claim for an account in common form – when does the limitation period for an account in common form commence – whether proceedings commenced more than six years after expiry of the relevant limitation period.

PROCEDURE – affidavits – time for filing – failure by defendant to file and serve affidavits in accordance with directions – guillotine order by Registrar – delay not caused by fault of defendant – no prejudice to plaintiff not compensable by costs – time extended

CRIMINAL LAW – sentencing – need to vacate hearing – no point of principle

WORKERS COMPENSATION – claim for permanent impairment compensation – application for judicial review of determination of Appeal Panel confirming assessment of degree of permanent impairment – whether jurisdictional error established – where plaintiff presenting with abnormal illness behaviour – whether open to find degree of permanent impairment fully ascertainable.

FAMILY LAW AND CHILD WELFARE – application to vary orders for parental responsibility made under Court’s parens patriae jurisdiction – whether the Department has failed to comply with previous orders FAMILY LAW AND CHILD WELFARE – orders sought for specific financial assistance – financial responsibility to provide for the child’s needs – whether Court can intervene in exercise of administrative discretion regarding financial assistance FAMILY LAW AND CHILD WELFARE – orders sought to transfer proceedings from Children’s Court to New South Wales Supreme Court – no exceptional circumstances to justify transferClick here to enter text.

PROCEDURE – production of documents – requirement to make available – audio-visual and other material before trial – exceptions – material withheld for a legitimate forensic purpose – surveillance film – request to suppress application

PROCEDURE – costs – where principal judgment determined separate question of liability – whether issue of costs as to separate question of liability should be deferred until after determination of quantum of any damages. PROCEDURE – costs – general rule that costs follow the event – where there has been a mixed outcome in proceedings – whether reason shown to depart from general rule – apportionment of costs.

PROFESSIONS AND TRADES – lawyers – barristers – practising certificates – fitness and propriety – deemed refusal by Bar Association to grant practising certificate – appeal from deemed refusal – interim order sought for issue of certificate pending final hearing – test to be applied for interim order – whether principles relating to mandatory injunctions relevant – outstanding contempt charge against applicant – whether full and frank disclosure made – balance of convenience – protection of the public – interim order made

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

CORPORATIONS – receivers, controllers and managers – application by receivers for leave to make interim distribution to creditors – where fund and substantial creditor had entered into consent judgment against fund for judgment debt – whether receivers should investigate potential liability of creditor to fund – whether consent judgment should be set aside – residual powers of directors during receivership to consent to judgment – whether interim distribution should be deferred until determination of associated proceedings – alleged lack of impartiality of receivers and their solicitors – whether leave should otherwise be granted for interim distribution.

PROCEDURE – subpoenas – service in New Zealand – legal practitioners – discipline – appeal from refusal by Bar Association to issue practising certificate - whether applicant for practising certificate is a fit and proper person – documents in possession of New Zealand Law Society from disciplinary enquiry – nature of appeal under s 108 Legal Profession Act

NEGLIGENCE – motor vehicle accident in Western Australia – plaintiff’s failure to give way to traffic travelling on a highway – disagreement in expert evidence – whether defendant breached his duty of care after the plaintiff’s vehicle moved off from the give way line – whether defendant breached his duty of care before the plaintiff’s vehicle moved off the give way line – whether court was bound to follow decisions of NSW Court of Appeal – CONTRIBUTORY NEGLIGENCE – consideration of s 5K CLA (WA) – objective test – whether capacity of a heavier vehicle to cause greater damage was relevant in the circumstances – apportionment of culpability

CORPORATIONS – voluntary administration – creditor's meeting – where administrator sought to adjourn a second meeting of creditors for more than 45 days – whether the Court should modify operation of s 439B(2) of the Corporations Act.

REAL PROPERTY – Torrens title – caveats – application to extend operation of caveat – whether established a seriously arguable case giving rise to proprietary interest in property – whether balance of convenience favours extension of caveat.

PROCEDURE – costs – application for indemnity costs – application for specified gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) – long history of litigation PROCEDURE – stay – whether the application for stay, which was later dismissed, would have had prospects of success

CORPORATIONS – winding up – appointment of liquidators – where liquidators were previously administrators – whether appointment of administrators was invalid CORPORATIONS – winding up – applications for winding up by court – where company not registered in Australia – where application is brought by director of the company – whether winding up should be ordered

DEFAMATION - Costs and interest - Offers made by plaintiff not accepted - Indemnity costs payable - Interest on damages at 3% - Most damage occurred on publication

COSTS - Application for disqualification on bias - Application that costs not follow the event - Application refused

APPEAL - appeal against severity of sentence - powers of court on appeal - appellate court's authority to intervene - appellate court's jurisdiction to review findings of fact - Criminal Appeal Act 1912 (NSW), ss 5 and 6(3) - Skinner v The King [1913] HCA 32; 16 CLR 336 - R v O'Donoghue (1986) 34 A Crim R 397 - Kentwell v The Queen [2014] HCA 37; 313 ALR 451 APPEAL - sentencing - parity - whether legitimate sense of grievance when sentence considered in relation to co-offender's sentence - co-offender charged with additional offences - Children (Criminal Proceedings) Act 1987 (NSW), s 6 CRIMINAL LAW - whether error in finding applicant intended to torture victim - whether error in assessment of objective seriousness of murder - frenzied attack not incompatible with intent to torture CRIMINAL LAW - whether error in allowing no discount for guilty plea - protection of public - Milat v R; Klein v R [2014] NSWCCA 29 CRIMINAL LAW - murder - aggravated break and enter and commit serious indictable offence - intimidation - aggregate sentence - Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

MENTAL HEALTH - forensic patient - release - order for unconditional release upon transfer to a medium security mental health unit in Queensland - test of serious endangerment of public - whether care of a less restrictive kind available upon release - Mental Health (Forensic Provisions) Act 1990 (NSW), s 43(a) and (b), s 47 MENTAL HEALTH - forensic patient - transfer - whether transfer of a forensic patient permitted under a corresponding law of Queensland - transferee ceasing to be forensic patient in New South Wales - Mental Health Act 2007 (NSW), s 176 STATUTORY INTERPRETATION - resolving inconsistency between provisions in a single statute - provisions introduced contemporaneously - reading statute as a whole - giving each provision work to do - Mental Health (Forensic Provisions) Act 1990 (NSW), s 43, s 47(3) WORDS AND PHRASES - "corresponding law" - "seriously endangered" - "care of a less restrictive kind" - Mental Health (Forensic Provisions) Act 1990 (NSW), s 43

PROCEDURE – judgment and orders – application for stay or restraint of implementation of orders pending application for leave to appeal – whether defendants have demonstrated a reason or appropriate case to warrant exercise of discretion in their favour – whether an appeal is likely to be rendered nugatory in absence of a stay – balance of convenience – competing rights of parties – undertaking as to damages.

CORPORATIONS – voluntary administration – deed of company arrangement – application by deed administrators for leave to transfer shares in company under Corporations Act 2001 (Cth) s 444GA – whether transfer of shares would unfairly prejudice the interests of members of the company.

CHILD WELFARE - orders made in the parens patriae jurisdiction for recovery of child to be placed with father and for father to have authority to detain her - proceedings pending in Children's Court - Minister unable to provide secure accommodation - application by Minister to discharge orders and by father to vary orders

CORPORATIONS - winding up - alleged voidable transactions - alleged breaches of duty by director - freezing order obtained ex parte - whether freezing order should be extended - whether good arguable case established - whether likelihood of dissipation of assets established - whether application for freezing order brought expeditiously

CONTRACT - construction - whether contract of employment - to what damages plaintiff entitled when terminated contract of employment - defendant paid plaintiff's mortgage - common ground defendant subrogated to mortgagee's rights - whether defendant entitled to balance of proceeds of sale

TAXES AND DUTIES - land tax - exemptions and concessions - concession for unoccupied land intended to be owners' principal place of residence - Land Tax Management Act 1956 (NSW) s 10T - whether s 10T concession applicable to land used and occupied by persons other than owners of land during relevant land tax years - administration of land tax legislation - reassessments - Taxation Administration Act 1996 (NSW) s 9(3) - whether Chief Commissioner precluded from raising new assessments more than five years after initial assessment - meaning of full and true disclosure - whether tax liability assessed at lower amount than Chief Commissioner would have assessed if given full and true disclosure - whether taxpayer or Chief Commissioner bears onus of proving conditions in Taxation Administration Act 1996 (NSW) s 9(3)(b) which if satisfied permit Chief Commissioner to make reassessment more than five years after initial assessment STATUTORY INTERPRETATION - savings and transitional provisions - State Revenue Legislation Further Amendment Act 2003 (NSW) Schedule 4 cl 13 - whether transitional provisions had effect of continuing to apply provisions of the Land Tax Management Act 1956 (NSW) as in force immediately before 31 December 2003 to determine availability of s 10T concession

FAMILY AND CHILD WELFARE - Protective (parens patriae) jurisdiction - Welfare of children paramount - Interim care order of Children's Court challenge - Whether exceptional circumstances warranting intervention - No ground for intervention - Best interests of children favour maintenance of Children's Court proceedings - Supreme Court proceedings dismissed. ADMINISTRATIVE LAW - Judicial review - No ground made out - Relief discretionary - engagement with protective (parens patriae) jurisdiction - Welfare of children paramount - Proceedings dismissed.

CRIMINAL LAW - application out of time to appeal against conviction and sentence - attempt escape lawful custody - whether applicant's actions sufficiently proximate to completed offence to amount to attempt - whether sentence manifestly excessive

CRIMINAL LAW - appeal against sentence - extent of accumulation - whether offender's involvement was under duress - whether sentence manifestly inadequate - objective seriousness of offence - comparable cases

CRIMINAL LAW - application for leave to appeal against sentence - aggregate sentence for various offences - offender with long history of drug abuse commencing as a child - defeated addiction - good prospects of rehabilitation

CONTRACTS - construction and interpretation of contracts - construction of sub-contracts by reference to head contract - commercial purpose of head contract and sub-contracts - whether words of contract can be supplied, admitted or corrected to avoid commercial absurdity

EQUITY - Tracing - Onus and standard of proof - Where wrongdoer has mixed stolen moneys with own moneys - Black v Freedman claim attaches immediately to stolen money and its traceable product - Volunteer recipient of stolen funds, or traceable product, in no better position than the wrongdoer - Onus on wrongdoer and/or recipient to prove what contribution was from the wrongdoer's own moneys - Standard of proof in Briginshaw v Briginshaw and s140 Evidence Act applied LIMITATION OF ACTIONS - Partnership - Action for an account - Cause of action arises upon dissolution of partnership - Application of s15 Limitation Act directly or by analogy - Laches will not be available as a further defence in circumstances where the claim is subject to a statutory bar LIMITATION OF ACTIONS - Partnership - Action for an account of profits or to recover trust property -- Application of s 15 Limitation Act by analogy to an action for an account of profits in relation to trust assets - Application of s 47 Limitation Act directly or by analogy to an action to recover trust property or profits derived from trust property - When does time begin to run - When did the plaintiff first discover, or could have with reasonable diligence discovered, the facts giving rise to the cause of action and that the cause of action has accrued PARTNERSHIPS AND JOINT VENTURES - Partnerships - Actions by and against partners - Partnership funds mixed with funds of a partner and used to purchase residential and investment properties - Black v Freedman claim - Institutional constructive trust over the partnership moneys (or their traceable product) - Equitable obligations imposed at the time of theft or, in the case of a volunteer recipient, from the time that they acquire knowledge of the theft - Whether indefeasibility defence under s 42 Real Property Act available for volunteer recipient where acquired registered title prior to being placed on notice of the theft - Fraud exception to s42 not pleaded - Fraud cannot be raised as a new point on appeal - Whether any in personam exception to indefeasibility applicable PARTNERSHIPS AND JOINT VENTURES - Partnerships - Dissolution - Single adventure or undertaking - Whether a partnership operating two businesses can be considered a single venture - Whether separate termination dates for the businesses precludes the partnership being seen as a "single venture" PARTNERSHIPS AND JOINT VENTURES - Partnerships - Partnership Property - Application of ss20(1) and 21 Partnership Act - Deeming of property bought with partnership funds to be partnership property "held in trust for the partnership" - Statutory provisions do not create a trust "in the strict sense" nor are they sufficient to make the land "trust property" TRUSTS - General - Partnership funds mixed with funds of a partner and used to purchase residential and investment properties - Whether the moneys or the properties (as their traceable product) are subject to statutory, express, resulting, or constructive trusts - Whether proprietary and/or accounting relief available

WORKERS COMPENSATION - damages - future care - whether gratuitous or commercial are appropriate - whether matter can be revisited under the slip rule WORKERS COMPENSATION - damages - apportionment of damages under s 151Z Workers Compensation Act where interposing negligence of third party - interest - whether interest payable in full - effect of plaintiff's delays in litigation

JUDICIAL REVIEW - Certiorari - Local Court - Whether jurisdictional error - Whether error of law on face of record - Costs in criminal case - Whether magistrate applied proper test to determine whether investigation unreasonable or whether proceedings initiated without reasonable cause

CRIMINAL LAW – Successful conviction appeal – need to alter commencement date of sentence for unrelated offence.

WORKERS COMPENSATION - claim for permanent impairment compensation for hearing loss - assessment and amount - effect of amendments made by Workers Compensation Legislation Amendment Act 2012 - transitional provisions - application of amendments to lump sum compensation - aggregation of impairment arising from the same injury - s 17, 66(1) Workers Compensation Act 1987 (NSW) - ss 322, 323 Workplace Injury Management and Workers Compensation Act 1998 (NSW) WORDS AND PHRASES - "claim" - "injury"

CRIMINAL LAW - appeal against conviction and sentence - manslaughter - whether conviction was unreasonable or cannot be supported having regard to the evidence

CRIMINAL LAW - appeal against sentence - motor vehicle manslaughter - whether the sentencing judge erred in failing to take into account the applicant's mental condition in assessing moral culpability - whether the sentencing judge erred in the proportion between the non-parole period and the overall sentence - whether the sentence is manifestly excessive

PRACTICE - application for interlocutory orders - abandoned by applicant - no merit in orders sought - application dismissed

CHILD WELFARE - children in care of State - care order made by Children's Court - pending appeal to District Court - challenge to interlocutory and procedural decisions by District Court - summons seeking judicial review by Supreme Court - no judicially reviewable error shown - summons dismissed

TORTS - negligence - whether breach of duty of care - whether contributory negligence - no issue of principle TORTS - motor accidents - "blameless accident" - where accident or injury not caused by driver or owner's negligence - where contributory negligence - apportionment of responsibility - Motor Accidents Compensation Act 1999 (NSW), ss 7B, 7F, 138 TORTS - damages - assessment of damages - no issue of principle

SUCCESSION – family provision and maintenance – family provision order to be made in favour of the plaintiff out of notional estate – costs orders to be made – plaintiff served an offer of compromise on defendant executors – family provision order to be made more favourable to plaintiff than offer of compromise – claim by plaintiff that defendant executors conducted the defence as extreme adversarial proceedings – plaintiff claims defendant executors should bear their own costs personally – order that the plaintiff’s costs be paid on the ordinary basis out of the notional estate – order having the effect that the first defendant bear the difference between the plaintiff’s costs calculated on the indemnity and ordinary bases from the date of the plaintiff’s first offer of compromise – order that the defendant executors’ costs be paid on the indemnity basis out of the notional estate – orders made to finalise claim

EQUITY - trusts and trustees - applications to the court for advice and authority - Benjamin order

PROCEDURE - judgments and orders - amending, varying and setting aside - slip rule - mathematical error

PROCEDURE - judgments and orders - form of orders to give effect to judgment - the way in which the lessee should be ordered to comply with development consent - whether grant of new lease should be conditional on compliance with development consent PROCEDURE - costs - departing from the general rule - other cases - substantial success - whether party seeking relief against forfeiture should pay the opponent's costs - whether duration and costs of hearing extended unreasonably - balancing factors relevant to costs

Criminal law - sentencing - manslaughter - provocation -one punch

Correction of slip - costs - stay- no question of principle