Cases and authorities

PROCEDURE - miscellaneous procedural matters - declarations - where plaintiff sought declaration that he is the beneficial owner of property of which the defendant is registered proprietor - where declaration consented to by defendant - whether appropriate for declaration to be made by consent

BUILDING AND CONSTRUCTION - whether adjudicator complied with obligations under the Building and Construction Industry Security of Payment Act 1999 in making determination - whether jurisdictional error

CRIMINAL LAW – no case to answer submission – conspiracy to defraud Commonwealth – s 135.4(5) of the Criminal Code – circumstantial case – approach alleged agreement to lodge tax returns – making false depreciation claims – application rejected.

CORPORATIONS - voluntary administration - deeds of company arrangement - application for relief by contributories under Corporations Act 2001 (Cth) s 447E - where deed of company arrangement contemplated, inter alia, effecting of share buy-back and in specie transfer of property subject to mortgage to shareholders and payment of monies by shareholders in two tranches - where disputes arose between shareholders in respect of implementation of deed of company arrangement - whether company's affairs managed by deed administrators in a way that was prejudicial to the interests of some or all of the company's creditors or members - whether established that plaintiffs accepted deed of company arrangement in reliance on alleged representations of deed administrators - whether deed administrators failed to give effect to share buy-back and to transfer property in breach of deed of company arrangement - whether deed administrators engaged in unequal treatment of transfers and security between plaintiffs and other shareholders - whether delay in sale of property caused by deed administrators - whether deed administrators failed to complete the deed of company arrangement - engagement of solicitors by deed administrators - whether deed administrators took adequate steps to conduct review of invoices for legal services - third party payment - whether relief should be granted in respect of relevant payments made by deed administrators - whether deed administrators should be removed. ESTOPPEL - where consent orders made by parties in earlier proceedings arising out of conduct of deed of company arrangement- res judicata - whether causes of action sued on in earlier proceedings merged into judgment - issue estoppel - whether issue estoppels established - whether consent orders gave rise to Anshun estoppel in respect of relevant issues.

ADMINISTRATIVE LAW - judicial review of assessment of permanent impairment by medical assessor appointed under Motor Accidents Compensation Act 1999 (NSW) - summons dismissed - relevance of dietary restrictions - medical assessor gave sufficiently detailed reasons for assessment - obligation to give reasons does not extend to expressing the obvious - decision-maker's duty to inquire does not extend to interrogation at a high level of particularity

CRIMINAL LAW - appeal against sentence - aggravated sexual intercourse with child between 10 and 16 - aggravated act of indecency with child under 16 - failure to take into account short period of pre-sentence custody - special circumstances found primarily to allow for accumulation - overall sentence did not fail to reflect special circumstances - no hierarchy regarding forms of sexual intercourse but not impermissible to impose heavier sentence to reflect nature of intercourse and surrounding circumstances - individual sentences and overall term not unreasonable or plainly unjust

CRIMINAL LAW - request to sheriff - secret note - sheriff investigation - investigation into improper conduct

REAL PROPERTY - Torrens title - caveats against dealings - application for withdrawal of caveat - plaintiff loaned defendants moneys for particular purposes on an unsecured basis - moneys not used for those purposes but to reduce pre-existing loan with other lender - facts did not demonstrate plaintiff caveator had any proprietary interest in properties - caveats ordered to be withdrawn; PROCEDURE - judgments and orders - freezing orders - whether freezing orders made ex parte by District Court should be extended - freezing orders discharged

CRIMINAL LAW - trial - pre-trial publicity - application to discharge jury - application refused.

CRIMINAL LAW - evidence - sexually motivated murder of Asian woman -tendency evidence - evidence of sexual interest in Asian women - accused asserts that he has no interest in sex - accused asserts sexual dysfunction - evidence that accused watched "Asian pornography" - evidence that accused visited Asian prostitutes - evidence that accused "liked it rough" - evidence of the accused using "speed" during sexual activity - evidence of the accused's Facebook "friends" - 90% of accused's 110 friends "young teenage Asian females" - assessment of probative value - assessment of prejudicial effect

FAMILY LAW AND CHILD WELFARE – adoption – non-citizen child – child born in United Arab Emirates – not a party to Inter-Country Adoption Convention – not a prescribed overseas jurisdiction – whether foster and custody agreements executed in United Arab Emirates comply with Adoption Act s 116 – whether s 116 applies to ‘agreements’ transferring guardianship – held that only applicable to judicial or administrative orders – whether adoption under United Arab Emirates law placed parents generally in relation to the child in the position of parents – held that it did not – held that adoption not entitled to recognition. FAMILY LAW AND CHILD WELFARE – adoption – non-citizen child – where application not made by Director-General – whether adoption order on application made by adoptive parents may be made – held that Director-General’s consent required.

CORPORATIONS – winding up – winding up in insolvency – application to wind up company for failure to comply with statutory demand – application for adjournment of hearing application under Corporations Act 2001 (Cth) s 440A – where administrators appointed during pendency of winding up application and deed of company arrangement proposed – whether it is in the interests of company’s creditors for company to continue under administration rather than be wound up – where presumption of insolvency arises from failure to comply with statutory demand – whether company should be wound up.

[PRACTICE AND PROCEDURE] - where contract drafted by parties - whether plaintiffs' claim in proposed amendments untenable

CRIMINAL LAW - application by police to have computer drives that were found to contain child pornography forfeited to the Crown - onus of proof on person claiming lawful entitlement to possession APPEAL - Magistrate misapprehended s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) - failure to give any reasons for decision - took account of matters of technical nature that were not "common knowledge" - Magistrate's orders set aside and remitted to Local Court

Confiscation of proceeds of crime - Criminal Assets Recovery Act 1990, s 31A - where warranty as to assets given - whether warranty was required to be given personally - Criminal Assets Recovery Act 1990, s 55(4) - whether agent acting within scope of actual or apparent authority

CRIMINAL LAW - appeal by prosecutor against dismissal of charges - intentionally or recklessly damaging property - intimidation - magistrate erred in dismissing property damage charge - property was unable to be used for ordinary function for a period whilst imperfection was eliminated - magistrate did not prevent prosecutor from leading evidence of a pattern of violence - magistrate erred by failing to provide reasons for dismissal of intimidation charge

PROCEDURE - civil - interlocutory issues -appointment of receiver, application for - Legal Profession Act 2004, s 615(d) - irregularities in conduct of trust account - protection of the public - related orders

PROCEDURE - civil - adjournment; application for - interests of justice - PROCEDURE - civil - summary disposal - dismissal - want of due dispatch - interests of justice

PRACTICE AND PROCEDURE - application for the Court to appoint a commissioner for discovery of information in France and request that the French Ministry of Justice approve that appointment - application of the Hague Convention on the Taking of Evidence in Civil or Commercial Matters and the French Blocking Statute - where consensual timetable for imminent expedited hearing - where defendants had already produced affidavits - where the description of the documents to be disclosed did not comply with French disclosure requirements

BUILDING AND CONSTRUCTION - adjudication applications - whether there was a valid construction contract between the parties - where name in contract not the same as name on adjudication application - where invoices issued in a different name to the name in the construction contract - whether correct specification of ACN and ABN evidence an intention that the first defendant be "Contractor" to the construction contract - whether sufficient to show construction contract between the parties BUILDING AND CONSTRUCTION - adjudication applications - whether first defendant gave plaintiff notice of intention to seek adjudication of the payment claim - where payment claim sent by facsimile transmission to facsimile number in contract - where facsimile transmission number in contract actually for a different company - where evidence that the plaintiff received s 17(2)(a) notice - whether sufficient evidence that letter sent to defendant asking them to no longer utilise the facsimile transmission number in the contract before notice was sent to that number - whether failure to give notice under s 17(2)(a) is jurisdictional error - application of s 17(2)(a) of the Building and Construction Industry Security of Payment Act 1999 (NSW) BUILDING AND CONSTRUCTION - adjudication applications - whether adjudication application served on plaintiff - whether service of adjudication application is jurisdictional - where respondent could not lodge adjudication response even if adjudication application were served - where adjudication application was received - application of s 17(5) of the Building and Construction Industry Security of Payment Act 1999 (NSW)

PRACTICE AND PROCEDURE – application to strike out pleadings – whether pleadings cause prejudice and embarrassment to the defendant – issue raised at a late stage in proceedings – PRACTICE AND PROCEDURE – application to restrain solicitor from acting – inherent jurisdiction – whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of the justice requires that a legal practitioner should be prevented from acting

SUCCESSION - family provision and maintenance - failure by testator to make adequate provision for the proper maintenance and advancement in life of the applicant - some provision for plaintiff in will - nominal amount in actual estate - significant sacrifice by plaintiff for the benefit of the deceased - sacrifice contributed significantly to the estate of the testator - whether a notional estate order should be made - no evidence to support competing claims by other beneficiaries of testator's will

PRACTICE AND PROCEDURE – interlocutory application – freezing order – whether applicant has good arguable case – whether freezing order should be made against defendant – whether freezing order should be made against the wife of a defendant who is not alleged to be party to any wrongdoing – terms of freezing order that should be made

CORPORATIONS - external administration - winding up - termination of winding - application by deed administrator following resolution that company execute a DoCA - where DoCA would result in recapitalisation of a listed company under new management - where s 439A report arguably does not adequately explain practical effect of DoCA or potential alternatives

REAL PROPERTY - Torrens title - Caveats Against Dealings - Extension - Orders made for the continuation of caveats on interlocutory basis pending final determination of proceedings

PROCEDURE - judgments and orders - disputed issues remaining before orders can be made to give effect to primary judgment in proceedings - injunctions - whether court should grant injunctive relief sought by plaintiffs.

CRIMINAL LAW - sentence appeal - manslaughter - applicant on parole for armed robbery when manslaughter offence occurred - parole revoked requiring applicant to serve remaining 12 months and 20 days of armed robbery sentence - whether sentence for manslaughter should have been partially concurrent with revocation of parole period - whether reduction in non-parole period for manslaughter offence properly reflected finding of special circumstances - appeal dismissed.

CRIMINAL LAW - sentence appeal - two counts of supplying a commercial quantity of methylamphetamine - whether combined discount for plea of guilty and assistance of 30 percent was appropriate - plea of guilty entered at an early but not earliest point in time - exercise of discretion by sentencing judge as to amount of discount for early plea of guilty - assistance to authorities assessed as being of a low level - no error shown in combined discount of 30 percent - whether principle of parity observed - relevance of prosecutorial discretion - significant difference in subjective case of each offender - ground of appeal not made out.

CRIMINAL LAW - conviction appeal - knowingly take part in the supply of a prohibited drug being an amount not less than a commercial quantity - participate in a criminal group - unreasonable verdict - evidence insufficient to establish that the amount of drug not less than a commercial quantity - evidence sufficient to establish alternative offence of supply prohibited drug - need to re-sentence - matter remitted to District Court.

CRIMINAL LAW - sentence - applicant pleaded guilty to two counts of supply of methylamphetamine - parity - whether justifiable sense of grievance in light of sentences imposed on co-offenders - whether sentencing judge bound by factual findings in remarks on sentence for co-offenders - whether sentencing judge erred in finding that the applicant was the principal of drug supply syndicate - what constitute proper bases for finding of special circumstances

CRIMINAL LAW - appeal - conviction - inconsistent verdicts, whether - alternative charges - appellant not guilty of robbery, guilty of stealing from the person -verdicts inconsistent, whether - verdict unreasonable, whether - Crown relied heavily on evidence of complainant - credibility - compromise by jury, whether - jury not satisfied beyond reasonable doubt about an ingredient of the offence of robbery as explaining verdicts, whether - threat or offer of violence coinciding with taking of the money ingredient of robbery, not steal from the person - CRIMINAL LAW - appeal - conviction - evidence - verdict unreasonable or unsupported on evidence, whether - reliance on evidence of complaint - lacking credibility and reliability, whether - corroborating evidence - strong circumstantial evidence supporting Crown case - jury has primary responsibility of determining guilt or innocence

CRIMINAL LAW - appeal - sentence - Crown appeal - two offences - Crimes Act 1900; s 33(1)(b) - causing grievous bodily harm with intent to cause grievous bodily harm - victim was respondent's infant daughter - multiple injuries inflicted in both offences - aggregate sentence - head sentence of 4 years - non-parole period of 2 years - CRIMINAL LAW - appeal - sentence - whether the sentencing judge erred in reducing the respondent's moral culpability on the basis of a factual finding that was not reasonably open to him on the evidence - sentencing judge made remarks about victim being a noisy and difficult baby - remarks about victims behaviour being challenging - remarks about recognising that a parent is capable of lashing out in frustration when dealing with a crying baby - whether those findings of facts were open on the evidence - sentencing judge regarded to influence of the victim's crying and the respondent's reaction as relevant in the assessment of the subjective features of the offending - lessening moral culpability - erroneous - CRIMINAL LAW - appeal - sentence - whether the sentencing judge erred in finding that the objective seriousness of the offences fell well below the middle of the range - assessment not usually susceptible of interference on appeal - too much emphasis on nature of injuries - lack of consideration for other circumstances - erroneous - CRIMINAL LAW - appeal - sentence - whether the sentencing judge failed to disclose any adequate reasons as to how he came to impose an aggregate sentence - Crimes (Sentencing Procedure) Act 1999; s 53A - whether sentencing judge failed to specify on what basis the aggregate sentence was structured and how he came to that view - CRIMINAL LAW - appeal - sentence - whether the sentence is manifestly inadequate - very serious offences - vulnerable victim - offender in position of trust - wholly inadequate sentence - CRIMINAL LAW - appeal - sentence - resentencing - special circumstances - count one - 3 years non-parole and 2 year balance term - count two - 4 years non-parole and 3 years balance term - accumulation of one year

CRIMINAL LAW - appeal - appeal against convictions - appellant convicted of possession of child abuse material and use of child under the age of 14 years for the production of child abuse material - terms of Indictment incorrect - statutory changes during periods alleged in Indictment - offence of using a child for the production of child abuse material did not exist for the period charged - analogous offence of using child for pornographic purposes materially different -definition of 'child abuse material' broader than definition of 'for pornographic purposes' - Crown submissions at trial addressed broader definition -miscarriage of justice - offence of possession of child abuse material - maximum penalty for offence increased during offence period - offence only existed for portion of the period covered by the Indictment - jury could not have properly returned a verdict which accorded with the charge as framed unless satisfied of possession after amendment dates

APPEAL - application for leave to appeal from interlocutory orders - application for stay pending determination of application for special leave - application now moot and doomed to fail

COMPULSORY ACQUISITION - compensation for loss attributable to disturbance - application of Div 4 of Pt 3 of the Land Acquisition (Just Terms Compensation) Act 1991 - whether the primary judge erred in awarding compensation under s 59(f) for financial losses - whether "financial costs" referred to in s 59(f) includes "financial losses" COMPULSORY ACQUISITION - compensation for loss attributable to disturbance - compulsory acquisition of a statutory tenancy at will - whether the nature of the interest compulsorily acquired is relevant to assessment of loss attributable to disturbance

LIQUOR LAW - lease of licensed premises of a registered club - lease held to be void and unenforceable - whether licence over an adjacent area serves any good purpose in the circumstances

EQUITY - Securities - Personal property securities - Personal property securities register - Competing security interests - Amendment demand pursuant to s 178 of the Personal Property Securities Act 2009 - Company cannot give security interest to itself - No authority to grant a security interest upon appointment of liquidator - No evidence of security agreement governing the asserted collateral in favour of the first defendant

PROCEDURE – application to strike out statement of claim – summary judgment – whether proposed pleadings state with sufficient clarity the case that must be met – whether pleadings facilitate the just, quick and cheap resolution of real issues in proceedings – principles of case management – whether statement of claim should be struck out – whether plaintiffs should be ordered to provide further particulars. PROCEDURE – miscellaneous procedural matters – whether proceedings should be transferred from General Equity to Corporations List – whether representative orders in form proposed by first to seventh defendants should be made.

DEFAMATION - defences - form of pleading

ADMINISTRATIVE LAW – judicial review – jurisdictional question – two appeal Panel decisions of NSW Civil and Administrative Tribunal – one decision was governed by s 48 of the Supreme Court Act - remit matter to Court of Appeal

LEGAL AID - referral to Registrar for pro bono assistance.

PROCEDURE - pleading - allegation of actual knowledge - whether neceesary to plead or particularise facts from which actual knowledge to be inferred - held, not necessary CORPORATIONS - misrepresentations as to future matters - misleading and deceptive representations - accessorial liability

PROCEDURE – pleading – necessity to plead liability of principal debtor – necessity to provide particulars of calculation of lump sum claimed

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - application for declarations that two adjudication determinations concerning same payment claim void - validity of payment claim - whether one-off payment due under contract after termination a "progress payment" capable of supporting a payment claim - whether reference date fixed by contract or s 8(2)(b) - effect of termination before contractual reference date arises - whether party entitled to withdraw adjudication application under s 26 and file new adjudication application - whether jurisdictional error where adjudicator failed to consider all claims and submissions - whether denial of natural justice where adjudicator decided matter on basis not put by either party

JUDGMENTS AND ORDERS - Enforcement of orders - Whether order should be varied to make payment by the Defendant to the Plaintiff rather than to the ATO in circumstances where the Plaintiff has caused payment to the ATO to be made - Enforcement orders - s 135 Civil Procedure Act - Inherent jurisdiction to vary orders - Whether jurisdiction should be exercised

DEFAMATION - form of pleadings - requirement that a plaintiff's imputations differ in substance - requirement that a contextual imputation be another imputation carried in addition to the imputations of which the plaintiff complains

ADMINISTRATIVE LAW - judicial review - appeal to the District Court against costs assessments in relation to invoices rendered by a solicitor who was also the executor of the client's estate - whether the lack of standing of the beneficiaries of that estate to prosecute the costs assessments was a basis for the District Court to set aside the determinations made by the costs assessor or the review panel SUCCESSION - executors and administrators - position of conflict of an executor who is also the testatrix's solicitor against whom a costs assessment is being prosecuted - whether the executor should have taken steps to ensure that the matter was resolved in avoidance of that conflict

PRACTICE AND PROCEDURE - judgment and orders - calculation of damages including interest - award of costs - orders consequential on judgment for possession

CRIMINAL LAW - sentence - manslaughter - early plea of guilty - joint criminal enterprise to assault deceased - offender drove co-offender to premises where fatal stab wound inflicted on deceased - offender not present when wound inflicted - whether sentence should take account of the use of a weapon by co-offender - whether offender likely to re-offend - crime at mid-range of objective seriousness - where crime the result of considerable planning - whether sentence should take account of the need for general deterrence - whether genuine remorse shown by offender - whether offender entitled to favourable consideration due to custodial conditions CRIMINAL LAW - sentence - murder - late plea of guilty - whether utilitarian value in plea - joint criminal enterprise to assault deceased - offender inflicted fatal stab wound on deceased with sharp implement - whether offender armed with a knife - whether offender intended to kill deceased - offender remorseful - crime above mid-range of objective seriousness - where crime the result of considerable planning - whether sentence should take account of the need for special deterrence - offender heavy drug user - whether statutory ratio of parole and non-parole periods should be varied due to anticipated need to supervise and assist offender upon release - whether offender entitled to favourable consideration due to custodial conditions