Cases and authorities

PROCEDURE - costs - indemnity costs - no question of principle

CONTRACT – Construction – Commercial agreement – Guaranteed Portfolio Service – Meaning and extent of guarantee provision in investment scheme – Meaning of “Fixed Income Portfolio Value” – Meaning and effect of formula to calculate that value.

SECURITY FOR COSTS - plaintiff ordinarily resident outside jurisdiction - defendants' second application for security for costs overlapping in part with security agreed on first application - discretionary considerations

REAL PROPERTY - Equitable interest - Transfer of interest in property - Whether parties intended transfer to be security for loan on sale of a half share of the property - Orders under s 66G Conveyancing Act 1919 (NSW).

TRAFFIC LAW - statutory compensation in respect of motor vehicle accidents - New South Wales - late making of claims - challenge to special assessor's determination that plaintiff not entitled to make late claim - judicial review - whether conclusion that explanation for delay was not full and satisfactory was available to special to special assessor - where application made to Motor Accidents Authority for general assessment - where assessor concluded that Motor Accidents Compensation Act 1999 s 73(3)(c) is restricted to exemptions under s 92(1)(a) - whether s 73(3) includes referral for certificate under s 92(1)(b) - whether ultimate conclusion that plaintiff's claim is not exempt was correct - Motor Accidents Compensation Act 1999 ss 72, 73, 81, 92, 94, 96. - STATUTES - acts of parliament - interpretation - Motor Accidents Compensation Act 1999 s 73(3)(c) - meaning of 'referred only for a certificate of exemption from assessment' - meaning of 'referred for assessment under Part 4.4'.

EQUITY - equitable remedies - whether a series of loan and mortgage transactions should be set aside - whether the loans were regulated by the Consumer Credit Code - whether unjust transactions within Code s 70 and Contracts Review Act s 7 - business purpose declaration executed under power of attorney - one borrower ignorant of transactions but benefits from them - HELD - loans not for business or investment purposes - Code applies - lender breached the Code - mortgage unjust within Code s 70 and Contracts Review Act s 7 - loan obligations varied - lender's rights to enforce stayed pending compliance with the Code s 80

CORPORATIONS – STATUTORY DEMAND – COSTS – SOLICITORS – Defendant overlooks service of Statutory Demand – Plaintiff takes advantage of oversight, knowing debt disputed, and files winding up application against obviously solvent Defendant – proceedings eventually settled – costs dispute – indemnity costs sought – both parties’ solicitors acted in inflammatory manner – observations on professional conduct.

CORPORATIONS - winding up - statutory demand - application for order setting aside - time limit in s 459G measured from service of statutory demand - service by leaving at registered office - ascertaining situation of registered office defined by street address, floor number and accountancy practice - where street doors habitually locked carried sign identifying those doors as access to accountancy practice - observations on service outside normal office hours

DEFAMATION - publication and republication - whether properly pleaded - allegation that defendants "wrote and published or caused to be written and published" - imputations - whether bad in form or incapable of arising - BREACH OF CONFIDENCE - whether claim inconsistent with claim in defamation

Contempt of court — disobedience to court orders — sentencing — non-compliance with Uniform Civil Procedure Rules 40.7(3)

JURISDICTION OF COURTS – application for transfer of proceedings from Supreme Court to Family Court – where Supreme Court proceedings commenced by third party against property of parties to marriage before matrimonial proceedings resolved – third party’s claim part of single wider controversy – relevant considerations in respect of transfer application

CRIMINAL LAW – sentence appeal – aggravated break and enter commit serious indictable offence – mental condition – young person – totality – no identifiable or manifest error – appeal dismissed

CRIMINAL LAW – Crown appeal – specially aggravated break and enter and commit serious indictable offence – whether sentencing judge failed to give sufficient weight to the objective criminality of the offences or gave disproportionate weight to the respondents' subjective circumstances – whether sentencing judge erroneously double counted factors when determining degree of departure from the standard non-parole period - whether degree of departure from the standard non-parole period so great as to manifest error - sentences manifestly inadequate – appeals allowed.

CRIMINAL LAW – sentence appeal – totality – alleged error in categorisation of role of applicant in criminal enterprise – use of impermissible material – no error disclosed – no manifest excess – appeal dismissed

CRIMINAL LAW - sentence - Crown appeal - multiple child sexual assault offences over six year period - totality principle - whether error in concurrent sentences

CRIMINAL LAW – sentence appeal – applicant suffering terminal illness – no other ground of appeal – mercy is the prerogative of the parole authority or the executive government – no basis in principle to allow appeal – applicant currently not suffering distress – appeal dismissed

PROCEDURE - strike out - claim for possession - no reasonable defence alleged - form of pleading embarrassing - defence relies on estoppel - no clear evidence to support estoppel - defence alleges need to rely on acceleration clause in mortgage - whether s 57(2) notice required - defence struck out - third attempt at pleading defence - judgment entered.

ADMINISTRATIVE LAW - prerogative writs - orders in the nature of mandamus - discretion of the Commissioner under s 29(3) Security Industry Act 1997 - confidential evidence contemplated by s 15(6) Security Industry Act - second exercise of discretion by Commissioner pursuant to order - alleged inadequacy of reasons for decision - whether discretion exhausted. INJUNCTIONS - interlocutory injunction - whether serious question to be tried - whether mandamus will go to direct particular decision where discretion given - balance of convenience - irreparable harm with no competing prejudice.

APPEAL AND NEW TRIAL - appeal - general principles - interference with discretion of Court below - appeal from Associate Justice - application to separate issues of liability and causation from issues of quantum - credibility of Plaintiffs relevant to causation and quantum issues - crossover of evidence - no error shown. PROCEDURE - separate questions - change in approach since Civil Procedure Act - s 5D(3) Civil Liability Act issue - need for all credibility evidence to be available in one hearing.

PROCEDURE - application to vacate hearing - late application - application by Defendant without legal representation - Defendant with health issues - short adjournment given.

REAL PROPERTY – equitable mortgage – whether the mortgage secured any debt or obligation – whether sufficient note or memorandum in writing – Conveyancing Act 1919 (NSW) s 54A - REAL PROPERTY – distribution of surplus funds of sale by registered first mortgagee – determination of priorities – equitable interests – unregistered mortgages – effect of withdrawal of caveat - EQUITY – equitable interests – priority – postponing conduct

SUCCESSION - family provision and maintenance - whether plaintiff is an eligible person - whether adult grandchild partly financially dependent upon deceased - matters to be considered in such applications

PRACTICE AND PROCEDURE - application to set aside Order for Production - Order for Production addressed to ASIC requiring disclosure of documents provided to it by Hong Kong Securities and Futures Commission in connection with enquires made on ASIC’s behalf in Hong Kong in relation to certain fund management schemes and individuals - CORPORATIONS ACT - whether secrecy provisions in s 127 of Corporations Act 2001 prevented disclosure under Order for Production - PRIVILEGE - whether public interest immunity privilege available to restrain production - HELD - application dismissed - production to court under Order for Production is not prevented by s 127 - public interest immunity does not apply to prevent disclosure

CORPORATIONS - winding up - statutory demand - application for order setting aside - whether 21 day time limit exceeded - method of counting days discussed - point at which days begin and end identified

CRIMINAL LAW – Application for leave to appeal against interlocutory order – Order protecting identity of ASIO witnesses – Application heard after their evidence given – Leave to appeal refused.

Bail pending appeal to Court of Criminal Appeal - review of refusal of bail by Supreme Court - whether special or exceptional circumstances justifying grant of bail.

PROCEDURE - costs - application by defendant for leave to apply for costs against former solicitors under Legal Profession Act s 348 - s 348 not applicable - defendant may seek to have costs assessed

CORPORATIONS - voluntary administration - proceedings commenced against company before start of administration - plaintiff seeks leave to continue proceedings - plaintiff makes several claims all of which depend on his being a member of the company - consideration of evidence shows that his claim to be a member is unsupportable - alleged membership by estoppel - requirements for estoppel not shown to be met - case has no solid foundation - other factors also against grant of leave to proceed - leave refused - CORPORATIONS - membership - company limited by guarantee - whether solid foundation for contention that applicant for membership is a member - "membership by estoppel" - where company represented to plaintiff that he had a membership number - whether he believed any representation that he was a member

CORPORATIONS - voluntary administration - where administration initiated by sole director of public company required to have at least three directors - whether s 447A order should be made to validate initiation of administration - second meeting of creditors - extension of convening period - where deed of company arrangement beneficial to creditors may eventuate - no undue detriment to persons subject to statutory embargoes during administration

PROCEDURE – Application by vexatious litigant for leave to institute proceedings – whether application is one “to institute proceedings” for the purposes of s 14(2) Vexatious Proceedings Act – whether material put forward to the Court justifies the granting of leave.

CRIMINAL LAW – Appeal against conviction – Whether evidence should have been rejected as unfairly prejudicial – Whether juror should have been discharged – Whether summing-up unfair by reason of inclusion of matters not relied on in Crown’s address.

PROCEDURE - orders to be made to give effect to previously published reasons - costs - no matter of principle

COSTS – costs follow the even – no issue of principle – order made

PROCEDURE - amendment - plaintiff granted leave to amend by adding as a defendant a person treated throughout as a de facto defendant - plaintiff refused leave to amend by adding claims known for many years but not previously made - proceedings undetermined after sixteen years - need for case management to bring them to trial promptly

Proceedings before CTTT - Difficulties in serving application on plaintiffs (respondents in CTTT) - Chairperson directs substituted service on permissible basis - Proceedings would in all reasonable probability come to notice of plaintiffs - Proceedings did come to notice of plaintiffs who did not appear at CTTT hearing - No reasonably arguable defence to claims made shown as to liability or damages - Relief refused on both grounds

EVIDENCE – defamation – objection to question seeking to elicit opinion of a third party about the first defendant's motives for writing the matter complained of – where question not limited to third party’s understanding of what the article may have been thought on its face or by its terms to convey – hearsay – question disallowed.

CORPORATIONS – COSTS – Whether submitting party should have costs of representation throughout hearing.

COSTS – appeal – apportionment of costs – proportionate responsibility for overall costs - COSTS – costs incurred by liquidator of unit trust – liability of party supporting an unsuccessful party – joint responsibility

COURTS - civil - District Court of New South Wales - jurisdiction - amount claimed in excess of jurisdictional limit - whether amount must be specified - whether in statement of claim or particulars - whether jurisdiction extended by lack of objection - PROCEDURE - pleading amount claimed - not permitted where claim for unliquidated damages - STATUTORY INTERPRETATION – ambiguous provisions – consent jurisdiction under District Court Act 1973 (NSW) s 51 – whether notice of a claim in excess of the jurisdictional limit must be given in the statement of claim - WORDS & PHRASES - "amount claimed" - "jurisdictional limit"

Practice and Procedure - Reach of pleadings - Whether evidence sought to be adduced by defendants within Contracts Review Act pleading - Requirement for parties to be confined to their pleaded cases - Case management considerations

SUMMARY DISMISSAL – ABUSE OF PROCESS – Plaintiff repeatedly failed to comply with Court’s directions to bring matter to trial – inference drawn that Plaintiff commenced proceedings to stall Defendants’ recovery of judgment debt.

CRIMINAL LAW - sentence - Crown appeal - order under s.11 Crimes (Sentencing Procedure) Act 1999 - offences of reckless wounding and aggravated detain for advantage - whether error in exercise of s.11 power - held (by majority) error not disclosed

CRIMINAL LAW - Conviction appeal - Murder (x2), Steal property from a dwelling, attempting to obtain money by deception (x3) - Crown case based on circumstantial evidence - Whether verdicts were unreasonable/unsupported by evidence - Whether trial was fair - Alleged misconduct by investigating police - Alleged defects in prosecution case - Alleged incompetent legal representation - Alleged error by trial judge in admitting evidence and exhibits - Alleged error by trial judge in directions to jury.

CRIMINAL LAW-Conviction appeal-Supply (deemed) a prohibited drug (cannabis)-Crown confusing concepts of joint criminal enterprise and joint possession-Whether Trial Judge erred in failing to conclude knowledge of drugs essential to joint possession -Whether Trial Judge erred in refusing no case submission and allowing charge to go before Jury

CRIMINAL LAW – Crown appeal against rejection of evidence – Whether cumulative effect of errors was to eliminate or substantially weaken the prosecution’s case.

CRIMINAL LAW - Crown appeal - whether sentence imposed in manifestly inadequate - whether the sentencing judge erred in the findings made regarding objective seriousness of the offence - adequacy of reasons for not imposing the standard non-parole period - whether sentencing judge erred in imposing wholly concurrent sentences - circumstances where failure by prosecutor to assist judge in sentence will constitute error in sentence

CRIMINAL LAW - whether sentencing judge failed to make a proper finding regarding objective seriousness of offence - circumstances where error in sentence may lead to imposition of new sentence in Court of Criminal Appeal - whether sentencing judge erred in reasons for departing from standard non-parole period - whether irrelevant and inaccurate material was taken into account in sentencing - whether sentence was manifestly excessive