Cases and authorities

CORPORATIONS - winding up -uncommercial transactions - liquidator sued under Corporations Act s588FB to recover sum paid to defendant in uncommercial transaction - defendant obtained refinancing for company's mortgage finance which was in default but required company to obtain $520,000 more than was required for refinancing, lend that sum to the sole director's brother-in-law and join in arrangements for that sum to be paid to the defendant out of the mortgage advance so as to discharge an unsecured debt owed by brother-in-law to defendant which had been in default for several years - extended consideration of facts relating to solvency - HELD, the company was insolvent and the $520,000 was paid in an uncommercial transaction - judgment for repayment of $520,000 and interest.

SUCCESSION – PROBATE – COSTS – Plaintiff seeks revocation of grant of probate to Defendant – later consents to dismissal of claim – whether Plaintiff should have costs out of estate or pay Defendant’s costs – no question of principle.

CONTRACT - contract of employment - terms of contract - whether contract terminable only after two years or terminable on reasonable notice - whether document passing between parties after employment commenced is incorporated in to their contract - whether consideration for variation to their agreement - whether form of agreement should be rectified to delete clause providing for minimum two year term of employment. - HELD - contract terminable only after two years - no common intention to have other than a minimum two year term of employment - determination of issues relating to assessment of damages

CRIMINAL LAW - whether the trial judge erred in admitting evidence of the violent behaviour of the offender over a period of time and failed to give the jury adequate instructions regarding this evidence in sexual assault cases - whether there was a miscarriage of justice in relation to the Crown Prosecutor's address - where violence by offender may explain the acquiescence and failure to complain by victims of sexual assault - application of rule 4

CRIMINAL LAW - appeal and new trial - appeal against sentence - grounds for interference - general sentencing considerations - effect of serving sentence in protective custody - effect of mental illness on sentencing - whether sentence is manifestly excessive

CRIMINAL LAW - appeal against conviction - whether a miscarriage of justice occurred because of the directions given with respect to DNA evidence - whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence - consideration of the admissiblity of DNA evidence in light of s 135 and s 137 of the Evidence Act 1995 (NSW) - manner of expressing in non-scientific terms the conclusions to be drawn from DNA testing to the jury - jury verdict open and support by the evidence

CRIMINAL LAW – Sentencing – Dangerous driving causing death – Where applicant was sleep deprived – Guidelines for sentencing – Whether this should be considered a typical case within the meaning in Whyte – Whether error in failing to determine the moral culpability of the applicant’s conduct – Factors pointing towards the assessment of moral culpability – Whether the applicant had abandoned the responsibility which comes when driving a vehicle on the highway. - CRIMINAL LAW – Sentencing – Offence of driving with an illicit drug present in the applicant’s blood – Where sentencing judge imposed a sentence of imprisonment for 1 day – Where the maximum penalty for the offence was to impose a fine.

CONTRACT - no intention to create legal relations - family and social situation - no presumption - EQUITABLE CHARGE - principles and application - COMPOUND INTEREST - equitable jurisdiction - EVIDENCE - credibility - absence of corroboration - principle in Watson v Foxman

Application pursuant to s.43(2), Crimes (Sentencing Procedure) Act 1999

CONTRACTS - unjust contracts - Contracts Review Act 1980 - advance used to pay out existing mortgage debt - prior mortgage unjust - whether prior mortgagee should be joined to proceedings - whether justiciable issue between borrowers and prior mortgagee - unjustness of prior mortgage determined as part of relief granted in respect of unjustness of later contract

PROBATE – costs – whether defendant to pay plaintiff’s costs on indemnity basis from date of offer – whether plaintiff’s offer to compromise proceedings made in accordance with r 20.26 of Uniform Civil Procedure Rules

CONTRACTS - claim by mortgagee for possession of land and monetary judgment following mortgage default - application by Plaintiff for summary judgment and for summary dismissal of Cross-Claim - service of notices under s.57(2)(b) Real Property Act 1900 - reliance by Defendants upon alleged waiver, estoppel and frustration - summary judgment granted - cross-claim summarily dismissed

EVIDENCE – Client legal privilege – Waiver of privilege – Where the defendant made a voluntary disclosure to the Australian Tax Office – Where an expert witness was briefed with a copy of that voluntary disclosure letter – Where the expert’s report refers to the contents of the voluntary disclosure letter – Where the defendant has served the expert report on the plaintiff – Where the defendant now claims client legal privilege over part of the voluntary disclosure letter – Whether the unredacted parts of the letter could properly be understood in the absence of the redacted parts. - EVIDENCE – Client legal privilege – Waiver of privilege – Where the plaintiff in his affidavit refers to receipt of legal advice from his solicitor in conference – Where the solicitor kept a file note of the conference – Whether the plaintiff has waived privilege over all advice received, and the entire file note of the solicitor.

VENDOR AND PURCHASER - no question of principle

CORPORATIONS - deregistered company - orders previously made in contested proceedings directing ASIC to reinstate company's registration - application now made by unsuccessful defendant with consent of successful plaintiff for order setting aside previous orders and dismissing the proceedings - where order directing reinstatement by ASIC not served on ASIC - where company accordingly remains deregistered despite court's order directing reinstatement - power of court to set aside order by consent of parties - where ASIC itself not party but takes the attitude that it will implement the order directed to it if and when served with the order - no reason why original orders should not be set aside as parties wish - observations on the policy question whether it should be within the power of private litigants to decide whether the court's directive to ASIC reaches ASIC

EVIDENCE – admissibility and relevance – tendency – accused sought to adduce statement of a neighbour as evidence of good character and to establish a tendency to act in a particular way – Crown objected as evidence not significantly probative – statement admissible

PROCEDURE – civil – summary disposal - dismissal – whether reasonable cause of action

TRADE PRACTICES – misleading or deceptive conduct – where plaintiff negotiated with defendant for defendant to take lease of real property – where negotiations came to consensus on principal commercial terms of lease – where heads of agreement exchanged – where drafting of detailed terms of agreement of lease finalised – where defendant withdrew from negotiations and lease not executed – whether defendant engaged in misleading or deceptive conduct – whether representations made – silence – whether reliance – whether defendant engaged in unconscionable conduct – Trade Practices Act 1974 (Cth) ss 51A, 51AA, 51AC, 52. - ESTOPPEL – equitable estoppel – conventional estoppel – whether defendant estopped from resiling from a mutual or common assumption that defendant would enter into binding agreement for lease – whether reliance. - REMEDIES – restitution – quantum meruit – consideration of principles – whether plaintiff entitled to payment for work provided and costs incurred in connection with proposed lease.

TORTS – Miscellaneous torts – Other economic torts – Injurious falsehood – elements – malice – whether malice established – EQUITY – Equitable remedies – Injunctions – Injunctions for particular purposes – Other cases – to restrain breach of confidence – by third parties (journalists) – whether journalists knew or ought to have known that provision to them of the information involved a breach of confidence – where information provided by whistleblower – whether information had requisite quality of confidentiality

CORPORATIONS - deregistered company - action at law ostensibly commenced against non-existent company - personal injury claim for negligence - plaintiff files originating process in Corporations List seeking to add cause of action against insurer under s 601AG - orders to be made granting leave to amend in common law proceedings

ADMINISTRATIVE LAW - whether plaintiff entitled to natural justice in the making of a decision by the first and second defendants (as casino operator and lessee of casino premises respectively) to withdraw any license to enter the casino complex - whether legislation confers a statutory license on members of the public to enter the casino premises - whether, if plaintiff is invalidly excluded by casino operator, the second defendant as lessee could nevertheless lawfully refuse access to him as an invitee of the casino operator - whether contractual entitlement to natural justice - HELD - s 77 of the Casino Control Act 1992 does not provide a statutory codification for the rights of entry of the general public to the casino - any right by a member of the public to enter the casino is pursuant to an implied common law license - first defendant is not obliged in the exercise of its common law proprietary rights to afford natural justice when withdrawing a patron’s license to enter the casino or refusing to grant a license to enter the casino - no contractual entitlement to enter or to be afforded natural justice - REAL PROPERTY - degree of possession required to maintain an action in trespass - whether implied easement granted by second defendant in favour of first defendant and its invitees in order to permit them to traverse the non-casino premises - HELD - both defendants had sufficient degree of possession or rights to possession to maintain action in trespass - doctrine of non-derogation from grant applies only to grant of proprietary interests

CORPORATIONS - winding up - statutory demand - application for order setting aside - nine plaintiffs file one originating process in respect of separate statutory demands for their separate tax debts - two plaintiffs deregistered after filing and before hearing - their purported claims not addressed - application by the remaining seven not in conformity with s 459G because all plaintiffs seek setting aside of all statutory demands - defendant while taking this point nevertheless content to argue the merits - debts for goods and services tax and penalties under Commonwealth taxation legislation - whether open to taxpayer to argue in the face of conclusivity provisions of taxation legislation that there is a genuine dispute regarding tax debt or to assert offsetting claim based on the proposition that a successful objection will show tax refund to be owing - whether pendency of objection against assessment and consequent inability to resort to review and appeal processes are "some other reason" to set aside statutory demand

CRIMINAL LAW - sentence - plea of guilty to insider trading and tipping offences in contravention of s 1043A(1) and 1043A(2) of the Corporations Act 2001 (Cth) - nature of criminality involved buying and selling Contracts for Difference in shares of an entity on the personal market account of the offender whilst possessing information concerning the proposed intention of offender's employer in shares of the particular entity - offender passed on inside information obtained during employment to a friend who used the information to acquire and dispose of financial products - application of Ellis discount - significance of general deterrence with respect to white collar crime offences

PROCEDURE - summary dismissal - letter of offer of finance - right to withdraw offer if matter arises which may adversely affect the proposed loan - unavailability of funds to lender - whether matter arising - offer alleged to be misleading and deceptive - whether issue of fact for trial - construction of agreement is a matter of law - Cross-Claim dismissed.

PROCEDURE – civil – summary disposal – dismissal – whether pleadings disclose reasonable cause of action. PROCEDURE – civil – parties – representative proceedings – whether proceedings should continue as representative proceedings – suitability of representative. PROCEDURE – civil – jurisdiction – whether lower courts or tribunals more appropriate venues for proceeding

CORPORATIONS - winding up - winding up by the court - application by contributory for (a) review of liquidator's remuneration fixed by meeting of creditors and (b) inquiry into the liquidator's conduct - relationship betwen the two processes - potential queries about some aspects of remuneration warrant review - such review directed only to discovering proper quantum - various alleged bases for inquiry into liquidator's conduct assessed - none of any merit

Costs - Whether proved that defendants received plaintiff’s offers of compromise - Whether offers of compromise valid under applicable Court rules - Whether offers of compromise, if not effective under the rules, could operate as Calderbank offers - Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194 and Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141 applied - Whether subsequent Calderbank offers inadmissible under Civil Procedure Act 2005 30(4)(b) - Whether plaintiff entitled to indemnity costs on basis of Calderbank offer that was admissible - Two or more unsuccessful defendants - Whether appropriate order that defendants liable for plaintiff’s costs on a joint and several basis or that each defendant be liable for a proportionate amount of costs - Contract - Interpretation of agreements to determine proper calculation of interest payable - Procedure - Whether leave should be granted to file a Notice of Ceasing to Act under Uniform Civil Procedure Rules 2005 r 7.29

CORPORATIONS - application to set aside a statutory demand on the basis of a genuine dispute or genuine offsetting claim in relation to an entitlement to certain rebates or discounts based upon alternative claims in contract, estoppel or misleading and deceptive conduct - HELD - statutory demand set aside

CRIMINAL LAW - appeal against sentence - ss 25 and 25A of Drug Misuse and Trafficking Act 1985 - s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 - whether trial judge erred in final offences were aggravated by reason of being committed as part of planned and organised criminal activity and for financial gain - error not established - no other sentence warranted as a matter of law - leave to appeal granted - appeal dismissed

Proceedings after conviction - Appeal - Sentencing - Commonwealth offences - Failure to comply with s 19AB of the Crimes Act (Cth) - Drug offences - whether sentence manifestly excessive - whether non-parole period excessive - applicant resentenced

PRACTICE AND PROCEDURE - De facto relationships - Adjustment of property interests - Whether order should be made for the determination of a separate question - Separate determination not appropriate

DAMAGES – NEGLIGENCE – misleading or deceptive conduct – Trade Practices Act 1974 (Cth) – Fair Trading Act 1987 (NSW) – causation – whether by the defendants’ conduct the plaintiff suffered loss or damage – the plaintiff sought specialist tax advice from the defendants concerning the exercise by him of options to acquire shares in a public company for which he worked – they did not advise him that upon exercise he would incur a significant tax liability – when the liability became known to him he believed he could not sell the shares because he held confidential information about the company – defendants accepted liability for such loss and damage as was caused by their conduct – plaintiff promoted two alternative scenarios as to what he would have done in place of what he in fact did – whether loss should be assessed on the basis that the plaintiff lost a commercial opportunity – HELD – held that the case was not one of the loss of a commercial opportunity – that the plaintiff needed to establish either the first scenario or the second scenario to the requisite standard and that one or the other was more likely than what he in fact did – he failed to establish either to the requisite standard – he also failed to establish that he could not sell the shares or that he reasonably believed he could not – he also failed to establish the quantum of any loss resulting from the second scenario

Associations and Clubs - Expulsion, suspension and disqualification - association incorporated under Associations Incorporat Act 2009 - expulsion of member - plaintiff member contends holding of proposed special general meeting would contravene Association's Rules - whether meeting would transact other business in addition to expulsion, whether Association is acting without a "complaint" within the meaning of the Rules - whether a denial of procedural fairness - equitable remedies - HELD - injunction granted.

SUCCESSION - Family provision order sought - adequacy of provision - Plaintiff - spouse of the deceased for 26 years - estate left to children of deceased from former marriages - small estate - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for proper maintenance and advancement in life - provision to be made for Plaintiff by way of Crisp order and small capital sum

PROCEDURE - Miscellaneous procedural matters - Funds paid into Court under Trustee Act Part IV - Application for payment out of court - Matters to be established - Held: matters required are established - Order for payment made out.

CORPORATIONS - creditors voluntary winding up - fixing of liquidator's remuneration - where meeting of creditors asked to fix remuneration but does not do so - court's power to determine proper quantification - PROCEDURE - powers of registrars - delegation to registrars - quantification of remuneration of office-holders - established practice and procedure indicate registrar should deal with such matters - need, in the particular circumstances, for special conferral of power on registrar - source of power to confer - order made

CRIMINAL LAW - appeal against sentence - supply prohibited drug - knowingly deal with proceeds of crime - possess prohibited weapon - whether sentencing judge failed to properly consider alternatives to full-time custody - whether sentencing judge failed to properly account for remorse - exceptional circumstances - whether sentences manifestly excessive - structure of sentence

CRIMINAL LAW – particular offences – drug offences – supply prohibited drug (cocaine) – money laundering – CRIMINAL LAW – appeal against severity of sentence – failure properly to assess objective seriousness – no error established – CRIMINAL LAW – appeal against sentence – whether accumulation of sentences excessive – whether starting point for drug supply offence too high – no error established

CRIMINAL LAW – particular offences – drug offences – supply prohibited drug (ecstasy) – manufacture prohibited drug (ecstasy) – CRIMINAL LAW – appeal against sentence – error in adopting notional starting point of sentences, sentences ought to reflect different levels of criminality – error in process of accumulation – error in assessing objective seriousness of offences – use to be made of subjective material not the subject of oral evidence

CRIMINAL LAW - sentence appeal - special circumstances - two episodes within a month - delay in charging second offence - sentencing judge on second episode found special circumstances - only adjusted later sentence - error - should have taken account of total sentence.

LEGAL PRACTITIONERS – Solicitors – Plaintiff obtains order under Family Provision Act 1982 for provision from estate consisting of a house – Plaintiff subsequently seeks advice from solicitor on a claim to the house on the basis of a promise by the deceased and/or estoppel – Costs and liability for estate’s costs incurred over ensuing eight months – Whether solicitor negligent in not previously advising plaintiff, or obtaining counsel’s advice, to the effect that any such claim was hopeless by reason of issue estoppel and/or Anshun estoppel – Whether expert evidence required for court to reach such a view.

PROCEDURE - judgments and orders - additional orders by consent

REAL PROPERTY - Torrens Title - easement - application to modify - Conveyancing Act 1919, s 89 - right of way 30 feet (9.144 metres) wide - application to reduce easement to the approximate 20 feet (6 metres) width of the present trafficable roadway - the non paved part of the easement may be needed for future earthworks to widen the easement pavement - HELD - easement not modified - summons dismissed

NEGLIGENCE — Duty of care — Police service — Statutory framework of the NSW Police Force –Commissioner of Police owes non-delegable duty to members of NSW Police Force – Duty owed by Commissioner of Police is in the nature of an employer’s duty in common law – Duty to provide safe system of work for members of the NSW Police Force – The Crown is liable for conduct of the Commissioner of Police and his delegates – The State of NSW as defendant in proceedings against the Crown. - NEGLIGENCE – Breach of duty – Where the plaintiff was a police officer assigned to providing protection to the Premier of NSW – Where the plaintiff received serious death threats in the course of his duties – Where the superior officers made inquiries of the plaintiff’s wellbeing – Where the plaintiff informed his superior officers that he was fine – Where the superior officers did not refer the plaintiff to psychiatric or psychological assessment – Where the plaintiff later developed post traumatic stress disorder (PTSD) – The test under s 5B of the Civil Liability Act 2002 – Whether the superior officers knew or ought to have known of the risk of the plaintiff suffering psychiatric injury – Whether the risk was non insignificant – Whether in the circumstances the superior officers acted in a manner less than was reasonable in failing to refer the plaintiff to psychiatric or psychological assessment. - NEGLIGENCE – Causation – The test under s 5D of the Civil Liability Act 2002 – Whether the plaintiff would have developed PTSD but for the failure of his superior officers to refer him for psychiatric or psychological assessment – Whether the evidence establishes that early intervention in the treatment for PTSD in the plaintiff would, on the balance of probabilities, have prevented his present injury. - DAMAGES – Assessment of damages for personal injury – Where there is evidence that the plaintiff would have continued in the NSW Police Force at the rank of an inspector – Whether the plaintiff is fit for other forms of employment outside of personal protection – Assessment of non-economic loss – Assessment of future economic loss under s 13 of the Civil Liability Act 2002. - EVIDENCE – Applicable principles where there has been a lack of cross-examination on disputed facts – Importance of contemporaneous documents and records.

ADMINISTRATIVE LAW - Motor Accidents Compensation Act - CARS assessment of damages - errors of law in assessment of future gratuitous assistance, determination of retirement age for claim for future economic loss - prerogative relief sought - whether discretion to refuse relief should be exercised - whether entire assessment should be set aside

PRACTICE AND PROCEDURE – Summary dismissal of part of summons – Where plaintiff had previously appealed cost assessments to the District Court of NSW pursuant to the Legal Profession Act 2004 – Where the District Court had determined one appeal on its merits – Where the parties had settled another appeal – Where the plaintiff was not party to one of the cost assessments – Whether part of the current proceedings is an abuse of process – Res judicata – Anshun estoppel. - ADMINISTRATIVE LAW – Judicial review – Ultra vires

PROCEDURE – Judgments and Orders – Finality – Liberty to apply – Further consideration - Decree for specific performance – Where defendant fails to perform – Where alternative claim against other defendants not decided - Whether proceedings against other defendants are finally disposed of when decree of specific performance remains unperformed – Whether open to further consider alternative claim upon rescission of decree – CORPORATIONS – Management and administration – Duties and liabilities of officers of corporation – Fiduciary and related statutory duties – Of good faith and proper purpose – To act in good faith in best interests of company – whether duties breached – Assessment of compensation