Cases and authorities

PRACTICE & PROCEDURE - interlocutory injunction pending hearing of appeal - mortgagee's sale - no question of principle.

CORPORATIONS - examination summons and orders for production - application to set aside examination summonses and orders for production - whether examination summonses and orders for production obtained for improper purpose - no basis for inferring examination summonses being used to conduct a dress rehearsal for cross-examination or to obtain a forensic advantage in contemplated proceeding that would not be available to it in those proceedings - examinations can be conducted to investigate existence and strength of potential causes of action - whether orders for production oppressive - whether orders for production should be set aside because they call for production of privileged documents - documents which might be subject to claim for privilege only small proportion of documents called for - application to set aside examination summonses and orders for production refused

CORPORATIONS - winding up - statutory demand - application for order setting aside - judgment debt - no stay or application to set aside judgment - no "other reason" to set aside demand

APPEAL FROM LOCAL COURT - whether error of law - whether Magistrate erred in relief granted - whether Magistrate erred in failing to hold that party had not discharged evidentiary burden - appeal dismissed CONTRACT - contract for sale of business - Contracts Review Act 1980 - contract unjust - discretionary relief

CRIMINAL LAW - sentence - pleas of guilty - supply large commercial quantity of MDMA (ecstasy) (8.497 kg) - supply commercial quantity of cocaine (335.3 grams) - supply large commercial quantity of methylamphetamine (2.314 kg) - receiving stolen property (jewellery worth $104,000.00) - Form 1 offences of supply commercial quantity of heroin, supply cannabis and dealing with property suspected of being proceeds of crime - finding that Applicant operating a "one stop shop" supplying different drugs from premises - total effective non-parole period of 21 years with seven years' balance of term - claim of error in assessment of objective seriousness and in failing to set non-parole periods for standard non-parole period offences - claim that sentences manifestly excessive and that total sentence was crushing - some errors demonstrated - Applicant resentenced to total effective non-parole period of 17 years with a balance of term of six years

CRIMINAL LAW - manslaughter by criminal negligence

CRIMINAL LAW - sentence - pleas of guilty - supply commercial quantity of a prohibited drug (ecstasy) - supply a prohibited drug (methylamphetamine) - possession of pistol - Form 1 offences including possession of a Taser-like stun device, possession of a document containing instructions for the manufacture of ecstasy and knowingly dealing in the proceeds of crime ($50,060.85) - whether error in assessment of objective seriousness of ecstasy commercial supply offence - whether error in approach to accumulation and totality - whether total effective sentence manifestly excessive - Applicant involved in significant wholesale drug supply and in possession of substantial sum of money and a loaded pistol - no error established - appeal dismissed

PROCEDURE - extension of time to appeal - principles - proposed appeal 17 months out of time - whether proposed appeal has more substantial merit than being only fairly arguable

EQUITY - trustee's rights to indemnity for expenses incurred and rights to exoneration for liabilities incurred in respect of trust property - where the defendant holds the legal title to lots in a commercial building owed either solely by, or jointly with, the plaintiff - where the defendant, by way of cross-claim, seeks to be reimbursed or exonerated by the plaintiff for payments of expenses and mortgage repayments which are in excess of his appropriate share - whether an order for sale of the properties is necessary where the plaintiff's beneficial interest in the properties is clearly less than the amount to be paid to the defendant PRACTICE AND PROCEDURE - costs - whether the sole director and sole shareholder of the plaintiff company should be ordered, in addition to the plaintiff company, to pay the defendant's costs of the proceedings

CONTRACTS - Construction and interpretation of contracts - where the contract between the borrower and lender in respect of a substantial commercial loan contains a clause that allows the lender to request the borrower to provide "other information relating to" the "assets" and "financial position" of the borrower - where the lender sought copies of directors and officers insurance policies pursuant to that clause - whether the directors and officers policies insuring the defendant and associated entities and the officers and directors of those entities were required to be produced pursuant to that clause - the nature of an insurance policy - principles of construction of a commercial contract - matrix of circumstances - canons of construction - "expressio unius est exclusio alterius" - "expressum tacit cessare tacitum" - "uniformity and certainty"

EQUITY - remedies - specific performance - whether agreement made for the sale of a bread shop business - whether terms of contract certain - whether agreement can be specifically performed - terms of decree.

CORPORATIONS - winding up - winding up by the court - resignation of liquidator - source of court's power to appoint new liquidator - where winding up application made under pre-1991 legislation

CHILDREN and YOUNG PERSONS - Foster care - plaintiff claimed that she had made contractual arrangements with agencies for allowances and the allowances had not been paid as contracted - on review of the facts one contract had expired, one arrangement had been terminated according to its terms - decision on facts - judgment for defendants

INTERNATIONAL ARBITRATION - ss 2(b), 16 and 18 International Arbitration Act 1974 (Cth) - Arts 5, 6, 11 and 16 UNCITRAL Model Law - Select Legislative Instrument 2011 No. 10 - challenge to an arbitrator's jurisdiction - arbitration clause in a written agreement between the parties provided that the parties shall agree to appoint an arbitrator and that the arbitral proceedings shall be in accordance with the provisions of the Institute of Arbitrators and Mediators Australia (IAMA) - defendant seeks arbitration and requests IAMA to nominate an arbitrator - IAMA makes a nomination and the arbitrator accepts - plaintiff challenges validity of the arbitrator's appointment - arbitrator rules as a preliminary matter that he has jurisdiction - Art 16(3) of the Model Law provides that an arbitral tribunal may rule on a plea of lack of jurisdiction as a preliminary question and that if it does so and rules that it has jurisdiction, any party may request, in 30 days after having received notice of the ruling, the Court to decide the matter - Art 5 of the Model Law provides that in matters governed by the Model Law, no court shall intervene except so provided in the Model Law - plaintiff brings proceedings after expiry of the 30 day period for declaratory relief that the arbitrator was not validly appointed - held that Court precluded from intervening

CONTRACTS - general contractual principles - construction and interpretation of contracts - BANKING AND FINANCE - instruments - contemporaneous agreements and collateral securities - deed between senior financiers and bond financiers regarding priority and subordination - senior financiers empowered to direct voting of bond financiers in relation to "Liquidation" of borrower - power not exercisable if "instructions would unfairly compromise the rights of the Bond Financiers in a manner beyond that which is contemplated in this Deed" - whether power exercisable in respect of voting on schemes of arrangement in the particular circumstances - question of construction

PROCEDURE - notices of motion - motion seeking to dismiss summons - summons not in proper form - summons struck out and leave to amend proposed amended summons refused - leave to amend summons on a limited basis - costs

PRACTICE AND PROCEDURE - Determination of separate questions - Whether a determination of the proposed set of questions will facilitate the just, quick and cheap resolution of the proceedings - Plaintiff catastrophically injured in motor vehicle accident - Assessment of damages detailed and complex - Clarifying legal basis of determining damages will assist parties - Promotion of settlement STATUTORY INTERPRETATION - Damages - Personal injury proceedings - Motor vehicle accident - Whether Motor Accidents (Lifetime Care and Support) Act 2006 abolished damages pursuant to s128 Motor Accidents Compensation Act 1999 - No clearly expressed intention to abolish damages for gratuitous attendant care services - Statutory expectation that attendant care services will be provided as part of Lifetime Care and Support Scheme DAMAGES - Personal injury proceedings - Motor vehicle accident - Lifetime participant of Lifetime Care and Support Scheme (LCS Scheme) - Whether LCS Scheme or motor vehicle tortfeasor/CTP insurer liable to pay for attendant care services provided gratuitously - LCS Authority obliged to make assessment of all treatment and care needs of a participant - Subject to questions of reasonableness and causation - Motor vehicle tortfeasor/CTP insurer remains obliged to pay LCS Authority for treatment and care costs of LCS participant - Griffiths v Kerkemeyer damages up to date of judgment recoverable if LCS Authority does not accept obligation to pay for gratuitous services - Services have not been provided for up to date of judgment - Question of fact if attendant care services provided for - Future attendant care services are excluded from damages STATUTORY INTERPRETATION - Motor Accidents (Lifetime Care and Support) Act 2006 - LCS Guidelines subordinate to LCS legislation and cannot derogate from obligations - Total ban on inactive sleepover payments cannot be justified by legislation - LCS Guidelines regarding inactive sleepovers valid insofar as inactive sleepovers do not form care plan of participant - Question of fact

SEPARATE QUESTION - insurance - where infant plaintiff sustained injuries at premises of first and second defendants - where plaintiff alleges injuries were caused by their negligence - where first and second defendants were the beneficiaries of QBE insurance policy - question whether policy responds to the events that give rise to the plaintiff's claim - further question whether claim falls within the terms of an exclusion clause if plaintiff "normally lived" with them at time of incident - policy does respond but plaintiff normally living with first and second defendants at time of incident - events giving rise to plaintiff's claim covered by the exclusion clause

COSTS - appeal costs - Calderbank offer made pre-trial and open for a limited time - failure of the offerer to renew offer - reasonable inference that offer did not refer to possibility of appeal - whether offer significant with respect to discretion to award costs of appeal - need to discourage futile applications based on pre-trial offers COSTS - exception to general rule that costs follow the event - indemnity costs - offer of compromise - Calderbank letter - offer not in accordance with the Uniform Civil Procedure Rules 2005 (NSW) r 20.26 - construction of offer where no express reference to costs - inference that each party to pay its own costs - offer involved capitulation without the obligation to pay the costs of the proceedings up to that point when the offer was made - not unreasonable to refuse offer - positive prospects of success in defending the proceedings - order for payment of costs below on the usual basis

TORTS - intentional - conversion; elements of - mere possession not conversion in commercial context of fungible goods released into market on terms contemplating sub-bailment and transfer of possession - conversion established by refusal to make available or deliver-up goods in response to unconditional demand. TORTS - intentional - conversion - user principle - whether nature of use of goods repugnant to rights of true owner - necessary to assess use considering all circumstances of case - Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; 74 CLR 204 considered. CORPORATIONS - attribution of knowledge of agent - relevant factors. DAMAGES - conversion - proper measure of damages - compensation - fee for hire - Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 and Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175 considered.

TORTS - negligence - appellant sustained injury to eye whilst inmate at correctional centre - injury caused by being struck by tennis ball during match - appellant seated behind baseline in area where balls being served and received - risk of injury not remote - primary judge erred in carrying out evaluative task required by Civil Liability Act 2002 (NSW), s 5B and Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40. TORTS - negligence - duty of care in case of detention and assumption of control of person by the State. TORTS - negligence - contributory negligence - appellant negligent in sitting where he did and failing to keep a proper lookout.

CRIMINAL LAW – application for separate trial – application of relevant principles

To determine who should pay the costs of administration proceedings where issue was whether first Defendant is father of the deceased - No dispute there should be an order that the Plaintiff and the second Defendant should receive its, and his, costs of the proceedings, in each case, such costs to be calculated on the indemnity basis - Only issue is whether the first Defendant should receive his costs of the proceedings, calculated on that, or some other, basis, whether he should pay the costs of the Plaintiff and the second Defendant or whether some other order ought to be made

PRACTICE AND PROCEDURE - Concurrent evidence -Cross-examination on matters arising during concurrent evidence - Procedural fairness

PRACTICE AND PROCEDURE - Expert evidence

TORTS - negligence - assault - battery - wrongful imprisonment - vicarious liability for tortious actions of security personnel

PRACTICE AND PROCEDURE - Expert evidence - Joint reports of experts - Whether reasons are required for agreement between experts - Procedural fairness

CIVIL LAW - criminal assets recovery - application by New South Wales Crime Commission for restraining order - restraining order to make provision for legal costs of respondent - application of s.16A - whether consent orders sufficient to make an order

WILLS AND ESTATES - Succession Act 2006 - applications for family provision order by son and husband of deceased - allegations of disentitling conduct against son and husband - further provision made for husband and son

ORDERS - costs - no question of principle.

TAXES AND DUTIES - Income Tax - notice of motion for a stay of tax recovery proceedings until an appeal under Part IVC of the Taxation Administration Act 1953 (Cth) is determined by the Federal Court

CHILDREN - care proceedings - application for declaratory relief, an order in the nature of certiorari and an order for remittal of the proceedings to the Children's Court - appeal against Children's Court magistrate's decision to allow into evidence a parenting assessment report privately commissioned by the mother - whether the report contains an assessment or expert opinion of the children the subject of care proceedings and whether, if it did, it infringed Chapter 5 Division 6 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - issue of lack of consent by persons with parental responsibility for the children not a basis asserted in the Children's Court for rejection of the report but consideration of its significance

NEGLIGENCE - hotel patron assaulted by another patron after both left hotel - hotelier's duty of care - aggressive behaviour between patrons while in hotel - hotelier separated them and kept them separated - assaulted patron left some hours later - whether breach in failing to eject one or both at time of aggressive behaviour - observations on breach when or after assaulted patron left hotel.

DAMAGES - breach causing supplier of goods to cease supply - likelihood that supplier would have ceased supply in any event - whether error in rejecting supplier's evidence - whether error in assessing likelihood - appellate review of credibility-based findings - nature of appellate review of assessment of likelihood - inferences in favour of plaintiff where defendant's wrong makes quantification difficult.

COSTS - costs of appeal - no issue of principle

WILLS AND ESTATES - Succession Act 2006 - applications for family provision orders - application by de facto partner of deceased granted - claim by mother of deceased that she was dependent on the deceased - application by mother out of time and dismissed

PROCEDURE - Costs - offer by plaintiff to accept an amount inclusive of interest less than ultimate result - no provision for payment of income tax - whether reasonable to reject offer - whether the Uniform Civil Procedure Rules Pt 42 r 42.14 should apply

CORPORATIONS - winding up - creditors voluntary winding up - liquidator's remuneration - power of court to review remuneration where no committee of inspection and all creditors have been paid in full

GUARDIANSHIP - application for declaration that N incapable of managing her affairs and for order that estate be subject to management under NSW Trustee and Guardian Act 2009 - s 42, NSW Trustee and Guardian Act 2009 - where Guardianship Administration Board of Tasmania made guardianship order pursuant to s 20, Guardianship and Administration Act 1995 (Tas) - where N has never been resident of New South Wales -- finding of Guardianship Administration Board of Tasmania that N unable by reason of her disability to make reasonable judgments in respect of her estate is in substance a finding she is incapable of managing her affairs

PRACTICE AND PROCEDURE - adjournment application by the plaintiff - where the plaintiff corporation (and its sole director and shareholder) has no assets to fund the proceedings and is seeking help from friends and family of the sole director/shareholder - where the plaintiff has obtained an injunction and undertakings from the defendant in respect of dealing with lots in which the plaintiff claims a beneficial interest - failure of the defendant to pay monies pursuant to a costs order made in other proceedings in favour of a partnership conducted, inter alia, by the sole director/shareholder of the plaintiff

CORPORATIONS - notice of motion - application for enforcement of shareholders' agreement - where clause of shareholders' agreement sets out procedures to be followed if shareholder intends to transfer shares owned or controlled by him - where plaintiff seeks acquisition of shares as a remedy against alleged oppressive conduct, s 233 Corporations Act 2001 (Cth) - clause of shareholders' agreement does not apply to transfer of shares as a result of a court order for the purchase of shares pursuant to s 233, Corporations Act - parties cannot by agreement regulate how the court might exercise its powers under s 233, Corporations Act

CORPORATIONS - application under ss 459G, 459H(1)(b) and 459J(1)(b) of the Corporations Act 2001 (Cth) for order setting aside statutory demand - whether Graywinter principles apply to preclude reliance on supplementary affidavits - whether genuine offsetting claims established - whether pending appeal from costs determination the subject of judgment debt constitutes "some other reason" for the purposes of s 459J(1)(b) to set aside demand - HELD - Graywinter principles apply to preclude reliance on ground sought to be relied on as "some other reason" pursuant to s 459J(1)(b) but not otherwise - genuine offsetting claims established in excess of the amount claimed in statutory demand - statutory demand set aside - CIVIL PROCEDURE - application for leave to use in present proceedings documents obtained under subpoena in other proceedings - leave granted

PROCEDURE - civil - application to amend judgment and application for reconsideration of judgment - applications refused.

CRIMINAL LAW - appeal by prosecutor against costs order made by Local Court in summary proceedings - prosecution of various offences concerning false claims under the First Home Owners Grant - circumstantial evidence - charges dismissed - grounds of appeal assert magistrate erred in finding that prosecution unreasonably failed to investigate and make inquiries - appeal limited to questions of law - whether finding of unreasonableness error of law or error of fact - limited reference in decision to prosecution case - facts upon which decision made not "fully found" - findings based on assumptions not available on the evidence - error established - failure to give reasons for adverse findings made concerning conduct of the plaintiff during interview with the defendant - interview not in evidence - error established - appeal allowed - order for costs quashed - defendant to pay plaintiff's costs of appeal STATUTES - acts of parliament - interpretation - s 59 Crimes (Appeal and Review) Act 2001 - provision silent as to orders that may be made on appeal pursuant to 56(1)(e) Crimes (Appeal and Review) Act 2001

DEFAMATION - Limitation Act - extension of time - employment contract - misleading and deceptive conduct - conduct by silence - discovery- implied obligation not to use document for improper purpose - particulars

ADMISSIONS - application to withdraw - principles - evidence - admission of affidavit evidence from other proceedings

PROCEDURE - application to file amended statement of claim - application follows earlier judgment striking out statement of claim - history of unsatisfactory pleading - whether further opportunity should be given to replead - proceedings dismissed.

CONTRACT - dealership agreements relating to multi-function photocopiers - whether the supplier had determined "target quotas" in accordance with the agreements - whether dealer had breached agreements by creating potential conflict of interest - whether dealer entitled to terminate agreements for breach of essential conditions - whether the word "assign" in dealership agreements includes novation of service contracts between dealer and customers

INTERPRETATION- "freezing order" not allowing the "selling" of property- contract for sale entered into- what constitutes "selling"- an injunction against selling something is clearly breached by entering into a contract for sale in respect of the property. PROCEDURE- contempt of court- interlocutory "freezing order" against second appellant corporation breached through actions of first appellant agent- first appellant was not a party to the original order but was found guilty of contempt by primary judge- non-party to an order cannot be in breach of order but may otherwise be guilty of contempt of court- primary judge erred in not distinguishing between the first and second appellants- standard of proof for civil and criminal contempt is beyond reasonable doubt- primary judge did not refer to the need for proof beyond reasonable doubt- primary judge drew inferences as if hearing a civil matter- appeal allowed.

PROCEDURE - Summary Judgment - claim arising out of loan facilities - lending terms precluding set-off and cross-claim - defence raising statutory and equitable rights from misrepresentations and unconscionable conduct - whether a set-off - guarantee - whether terms of guarantee require payment by guarantor before claim can be made against creditor - cross-claim earlier dismissed for failure to provide security ordered - whether defendant confined to non-monetary remedies.