Cases and authorities

Corporations - Winding up - Statutory Demands - Disputed Debt - Whether genuine dispute exists - Whether contractual claim exists that warrants further investigation - Whether estoppel claim exists that gives rise to genuine dispute

CRIMINAL LAW - sentence - plea of guilty - conceal serious offence (manslaughter)

PRACTICE AND PROCEDURE - Security for Costs

COSTS - whether court has power to order costs in appeals under Part 5 of the Crimes (Appeal and Review) Act 2001

COURTS - practice and procedure - judgments and orders - power to re-open case after reasons given but before orders entered - where parties failed to draw Court's attention to relevant authority - no operative misapprehension of the law

CORPORATIONS - Winding up - Statutory Demand - Application to set aside - Corporations Act 2001 (Cth) ss 459G, 459H and 459J - Whether genuine dispute established - Whether offsetting claim established - Whether some other reason to set aside statutory demand established.

PRACTICE AND PROCEDURE - Vexatious Proceedings Act 2008 - application for leave to appeal - ordinary procedure - seeks to commence proceedings against seven Judges personally (two deceased) - no grounds - proceedings vexatious

PRACTICE AND PROCEDURE - civil - pleadings - further application to amend statement of claim - ninth version subject of the application - leave granted in part - paragraphs which raise a distinct cause of action not allowed

PRACTICE AND PROCEDURE - Application for permanent stay - Charge of conspiracy with intention of dishonestly influencing Commission of Taxation - Criminal Code Act s 135.4(7) - Examination pursuant to s 28 of Australian Crime Commission Act 2002 - Claim for self-incrimination under s 30 - Non-publication direction given - Transcripts of examinations provided to CDPP contrary to direction for one accused - Transcripts contained factual matters central to criminal charge - Evidence solicitor for CDPP did not read transcripts - Other communication between CDPP and ACC - Updates, advice, briefing papers -- Principal ATO investigator attended examinations and read transcripts - Significant and central witness at future trial - Whether real risk that relevant ACC information communicated to the prosecution - Whether fair trial possible - Whether permanent stay should be granted - Stay granted

COSTS - indemnity costs - two offers by plaintiff - defendant failed to accept either - plaintiff achieved better outcome than both offers - first offer a Calderbank offer - whether failure by defendant to accept offer was unreasonable - no reference to "Calderbank" or "without prejudice" - sophisticated parties - required complex calculation of interest - short time period to respond - not unreasonable for defendant to refuse - second offer an offer of compromise - reference in offer to costs - whether complied with UCPR part 20 - whether "exclusive of costs" - principles applied by the courts - divergent authorities - no clear guideline - underlying principles of statutory interpretation - offer of compromise a complying offer - indemnity costs apply - in the alternative whether offer a non-complying offer analogous to Calderbank offer - whether genuine offer - whether unreasonable not to accept - offer in the circumstances a genuine informal offer to settle - indemnity costs apply

STATUTORY INTERPRETATION - Mental Health Act, s 51(1) - whether treatment of immigration detainee is capable of being "in the community" - meaning of "in the community" dependent on comparison of scope of operation of Parts 2 and 3 of Chapter 3 STATUTORY INTERPRETATION - Mental Health Act, s 53(3) - whether mental health facility "capable of implementing" treatment plan in relation to immigration detainee STATUTORY INTERPRETATION - Mental Health Act, s 51(1) - whether immigration detainee held in detention centre "resides in NSW" - ordinary meaning of residence - question of fact - voluntariness not necessary - designation of "Commonwealth place" does not result in excision of detention centre from New South Wales CONSTITUTIONAL LAW - Inconsistency of laws (Section 109, Constitution) - Mental Health Act 2007 (NSW) and Migration Act 2001 (Cth) - operational inconsistency between powers under both Acts - resolved by giving supremacy to federal law - powers or obligations under State law "suspended inoperative and ineffective" to extent necessary CONSTITUTIONAL LAW - inconsistency of laws (Section 109, Constitution) - Regulation 5.35 of Migration Regulations does not "cover the field"

PRIVILEGE - fire causing damage to crane - crane owner sues company responsible for sales and service - seller serves subpoenas to produce documents on three non-party respondent incident investigators - owners insurer claims litigation privilege or in the alternative advice privilege - HELD - documents protected from disclosure by litigation privilege - WAIVER - seller claims owners insurer by its conduct waived privilege - HELD - privilege not waived

CRIMINAL LAW - appeal - sentencing - murder - sentence prior to Muldrock v The Queen - whether error in regard to standard non-parole period - whether sentencing judge engaged in a two-stage approach - whether provocation may be taken into account in assessing objective seriousness - whether sentencing judge erred in giving weight to prior illicit drug use in assessing good character - whether sentence was manifestly excessive.

CRIMINAL LAW - sentencing - application for leave to appeal on ground of manifest excess - drug and weapon offences - no operative error - sentence within appropriate range - no question of principle arising

CRIME - sentencing - appeal on severity of sentence - assault in company - affray - whether inference available on agreed statements of facts - whether aggregate sentence disproportionate to total criminality - whether length of term of imprisonment unreasonable and/or plainly unjust - whether failure to consider offender's role in commission of offence - whether failure to consider subjective circumstances - whether irrelevant considerations - whether manifestly excessive - whether proper regard to prospects of rehabilitation.

CORPORATIONS - Winding up - Examinations by liquidator - Application to set aside examination summonses and orders for production - Application for removal of liquidator - Whether liquidator should be removed.

EXECUTION - equitable execution - court's inherent power to appoint a receiver to execute judgment - only where legal remedies are inadequate - whether appointment governed by terms of s 67 of the Supreme Court Act - held receiver should not be appointed.

PRACTICE AND PROCEDURE: Review of Registrar's decision under UCPR rule 49.19 on preliminary discovery - principles to apply - nature of review Preliminary discovery - UCPR rule 5.3 - principles to apply

PROCEDURE - Court of Appeal - powers of single Judge of Appeal - civil penalty proceedings under Corporations Act 2001 (Cth) - questions of penalty and costs remitted by High Court to Court of Appeal -parties reach agreement thereon and seek consent orders - whether single Judge of Appeal should make such orders.

SENTENCE - manslaughter - child victim

CORPORATIONS - creditor's statutory demand - application to set aside - Corporations Act s 459G - whether genuine offsetting demand exists - Graywinter principle - whether s 459G affidavit reveals material facts underlying plaintiff's claims

PRACTICE AND PROCEDURE - amended statement of claim filed over five months late, after matter was listed for hearing - notice of motion by defendant seeking the statement of claim be struck out - notice of motion by plaintiff seeking leave to file the statement of claim - plaintiff pleaded new cause of action, manifestly defective - overriding Civil Procedure Act, s 56 consideration, amended statement of claim struck out

REAL PROPERTY - application for judgment for possession - application by legal owner of property - whether defendant has equitable interest in property - whether plaintiff and defendant in de facto relationship - no defence to claim for possession

PROCEDURE - summary dismissal - defendant declared bankrupt - whether notices of motion brought by defendant are incompetent - each motion incompetent based on Bankruptcy Act 1966 (Cth) s 58 or s 60

COSTS - where consent orders made prior to trial resolving some issues in dispute - attempts to settle remaining disputes prior to trial - six day trial - plaintiffs' expert witness fell into error and ultimately not relied upon to a large extent by plaintiffs - plaintiffs' expert cross-examined for two days - plaintiffs to bear part of defendants' costs after date of final consent orders

BANKER AND CUSTOMER - bank guarantee - deed - whether guarantee "delivered" to beneficiary - whether physical delivery necessary - construction of guarantee - whether promise to pay contingent on return of original guarantee

APPEAL - Medical Tribunal of NSW - medical practitioner - disciplinary proceedings - de-registration under Medical Practice Act 1992 - registration cancelled under Health Practitioners Regulation National Law Act 2009 - appeal from decision of Medical Tribunal - appeal with respect to point of law only - no point of law arising on appeal - review of decision of Judge of Appeal dismissing motions - motions rightly dismissed - dismissal of other motions - appeal dismissed.

PRACTICE AND PROCEDURE - Application on morning of trial for order pursuant to s 318(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act) that respondent not entitled to dispute liability - refusal by Trial Judge to entertain motion - motion dismissed pursuant to sections 56 - 58 Civil Procedure Act 2005 - no error in Trial Judge's treatment of motion - had motion been considered on its merits, would still have been dismissed - relevant discretionary considerations - agreement by parties for late filing of defence - parties should be held to such agreements made in the course of litigation - whether principles of waiver and estoppel applied - respondent not entitled to rely upon rule 17.7(6) of the Workers Compensation Commission Rules 2006 which was beyond power - TORT - negligence - collision between skier and snowboarder at ski resort - skier in the course of his employment by ski resort - whether breach of duty by employer - whether unsafe system of work - causation - PRACTICE AND PROCEDURE - admission of evidence - whether witness qualified to give evidence - whether evidence rendered inadmissible by s 318(1)(d) WIM Act.

LOCAL GOVERNMENT - legal relationships and proceedings - procedure relating to legal proceedings by and against councils - authority of a mayor to commence proceedings in the name of the council; STATUTES - acts of parliament - enforcement of statutory rights and remedies - power to grant injunctive relief under s 20B of the Public Interest Disclosures Act- whether prima facie case established; LOCAL GOVERNMENT - powers, functions and duties of councils generally - whether individual councillors can be restrained from acting in a particular way at a council meeting

PRACTICE AND PROCEDURE - Mediation, Voluntary Mediation, Discovery, Limited Discovery, Practice Note SC Eq 11, Legitimate Forensic Purpose, Delay in Making Application for Discovery, Oppression

DEFAMATION - defences - contextual truth - whether truth innuendo capable of establishing defence where plaintiff's imputations alleged to arise on ordinary and natural meaning of the matter complained of - whether particulars capable of establishing truth of imputation

PRACTICE AND PROCEDURE - application to reopen judgment of 1 June 2012 on basis of denial of procedural fairness - HELD - application to reopen judgment granted - judgment of 1 June 2012 varied COSTS - offers of compromise - whether first offer was a valid offer of compromise under the Uniform Civil Procedure Rules 2005 (NSW) where it included offer to pay plaintiffs' costs as agreed or assessed - HELD - first letter was not a letter of under the Uniform Civil Procedure Rules 2005 (NSW) nor a Calderbank offer - whether first offer should be treated as a Calderbank offer - HELD - in absence of statement of intention to treat as Calderbank offer, Calderbank principles not enlivened - OBITER - rejection of first offer was not unreasonable COSTS - Calderbank offer - whether rejection of Calderbank offer expressed to be "inclusive of costs" was unreasonable in the circumstances - HELD - rejection of second letter of offer was not unreasonable COSTS - apportionment of costs - where plaintiffs succeeded overall, but defendants succeeded on a significant factual issue in the proceedings - where ultimate outcome obtained by plaintiffs was disproportionate to the costs involved in the litigation - whether costs should be apportioned according to the principle of proportionality - HELD - costs of the hearing apportioned in light of the factual issue on which the defendants succeeded and having regard to principles of proportionality

EVIDENCE - affidavit - communications made in attempt to negotiate settlement of underlying proceedings - without prejudice - whether evidence receivable because it falls within s 131(2)(g) of Evidence Act 1995

WILLS, PROBATE AND ADMINISTRATION - letters of administration - application for letters of administration ad litem - application by brother of deceased for purposes of family provision claim on behalf of daughter of deceased - continuance of medical negligence proceedings in District Court - grant of administration to enable applications to be dealt with - Succession Act 2006 (NSW), s 91

WILLS, PROBATE AND ADMINISTRATION - administrators and executors - application for appointment as administrator of part of deceased's estate - appointment sought as administrators with authority to commence and maintain legal proceedings in the USA for the benefit of the estate - whether grant of administration confers power on executor or administrator to deal with foreign assets - grant of administration is local - jurisdiction to appoint receivers to foreign asset - held not in interests of estate for proposed litigation in USA to be instituted - Court needs to be satisfied that persons appointed are fit and proper for the task - held appointment of receivers not in interests of estate WILLS, PROBATE AND ADMINISTRATION - orders sought for interim distribution out of estate - whether there are sufficient funds in the estate with which to pay all pecuniary legacies - Court satisfied that distributions could safely be made - interim family provision orders pursuant to s 92A of the Succession Act not made - orders made pursuant to s 84 of the Probate and Administration Act or r 54.3(3)(d) or r 54.3(4)(b) of the Uniform Civil Procedure Rules

EVIDENCE - admissibility - whether expert witness code of conduct applicable

CRIMINAL LAW - appeal - sentencing - co-offenders in a 'ram raid' - whether sentencing judge failed to apply a discount for utilitarian value of pleas of guilty - whether Smith's sentence was manifestly excessive - whether sentencing judge failed to give Smith credit for pre-sentence custody - whether sentencing judge erred in the manner in which he took Form 1 matters into account - parity - whether sentencing judge failed to take into account Reilly's lack of significant previous convictions - whether Reilly had a justifiable sense of grievance - re-sentence.

PRACTICE AND PROCEDURE - Stay of orders of lower court pending appeal - Whether stay of writ of possession of appellant's home ought to be granted - Factors affecting grant of stay - Prospects of success on appeal - Likelihood of relevant hardship - Whether appeal rendered nugatory without stay - Stay of execution of writ of possession granted.

CONTRACTS - breach - mortgage origination deed - originator obliged to take reasonable care to identify proposed borrower and confirm his or her authority to submit loan application - originator submitted loan application with forged signature and without the authority of the apparent applicant - whether originator used original passport photograph to identify applicant - likelihood of third party successfully impersonating applicant despite comparison with passport photograph - whether originator in breach of obligations under deed EVIDENCE - whether Jones v Dunkel inference should be drawn - whether former employee in the employer's camp or was for any other reason someone that the employer would have been expected to call as a witness

CORPORATIONS - Winding up - Statutory demand - Failure to comply with statutory demand - Corporations Act 2001 (Cth) s 459S - Whether debt claimed is material to proving solvency.

PROCEDURE - judgments and orders - enforcement of judgments and orders - where order has been made for property to be sold by court-appointed real estate agent under instruction of the co-owners - where property has not been put on the market more than seven months after judgment date - where one co-owner wishes to buy the property - where property market is a falling market - where relationship between the co-owners has disintegrated - where new sales agreement with real estate agent needs to be signed - trustees should be appointed for sale of the property

DEFAMATION - application for interlocutory injunction - recognised special context of a defamation action.

CRIMINAL LAW - Accused charged with murder and armed robbery - question raised as to fitness of Accused to be tried - fitness inquiry directed - later evidence unanimous that Accused fit to be tried - whether necessary to proceed with inquiry - power under s.8(2) Mental Health (Forensic Provisions) Act 1900 to determine that inquiry no longer necessary - Court determines under s.8(2) that inquiry no longer necessary

CRIMINAL LAW - criminal proceedings commenced in Children's Court - committal proceedings for sexual assault offences - application in Supreme Court to stay prosecution as abuse of process - claim for interim stay of criminal proceedings - applicable principles - complaint to police concerning offences in 2009 - police determine not to investigate further - plaintiff so informed - plaintiff then undertakes counselling with psychotherapist - police obtain under search warrant in 2012 psychotherapist's records of treatment of plaintiff arising from alleged offences - police charge plaintiff - relevance of professional confidential relationship privilege under ss.126A-126B Evidence Act 1995 - criminal proceedings to be taken over by Director of Public Prosecutions - remedies available to plaintiff in criminal courts - interim stay declined - application for permanent restraining order preventing police from obtaining search warrants to obtain information from other treating health professionals - application declined

CRIMINAL LAW - back up charges following a murder trial which resulted in a not guilty verdict - accused charged with indecently and improperly interfering with a dead human body contrary to ss 81C(a) and (b) of the Crimes Act 1900 - all evidence as to charges heard in murder trial - credit of Crown witnesses taken into account - factual determination.

REAL PROPERTY - STRATA MANAGEMENT - Appeal from Local Court - management and control - rights and obligations of proprietors - where owners corporation breached duty to repair and maintain common property - where lot owner made repairs to common property without permission of owners corporation - whether lot owner entitled to be compensated for expense incurred in undertaking rectification work on common property - expenses not recoverable as a loss attributable to breach of duty - Act does not authorise lot owner to determine nature and extent of construction to be undertaken on common property or engage a contractor to perform work on common property without the consent or approval of the owners corporation - statutory and other remedies available to lot owner where owners corporation in breach of statutory duty - whether lot owner entitled to be compensated for loss of rent attributable to the owners corporation's breach of its duty - Magistrate failed to resolve disputed issues of fact and failed to provide proper reasons as to the basis for conclusions reached - order awarding damages for lost rental claimed set aside - rental claim remitted to Local Court for determination.

LANDLORD AND TENANT - retail and commercial tenancies legislation - Retail Leases Act 1994 - retail shop lease - lease forbids assignment without the lessor's consent - proposed assignment by two joint tenant lessees to one of them - whether proviso in Conveyancing Act s 133B(1)(a) applies - whether consent deemed given under Retail Leases Act s 41(d) and corresponding lease provision - where five separate requests for consent made - whether they should be viewed separately or as part of an ongoing negotiation - where lessor required information about the proposed assignee's financial standing - whether requirement within scope allowed by Retail Leases Act s 41(a) and corresponding lease provision - statutory condition in s 41(b) that lessee "furnish" to proposed assignee a particular document in the possession of the lessee - impossible for two persons having joint possession to "furnish" to one of them - condition inoperative

APPEAL - procedure - appeal mistakenly brought as of right by Notice of Appeal when in fact leave was required - strike out motion - appeal dismissed

REAL PROPERTY - mortgages - making of final orders in the Lava proceedings - taking of accounts in the Saree proceedings - calculation of monies owing, if any, by way of principal and interest on Saree mortgage.