Cases and authorities

CRIMINAL LAW - application for leave to appeal against sentence - aggravated break, enter and steal - facilitate boat rebirthing - Form 1 matters - boat rebirthing charge carrying standard non-parole period - fixed term not valid for that offence - judge's approach to standard non-parole period for aggravated break, enter and steal - assessment of applicant's role in joint criminal enterprise - parity with sentence of co-offender - whether sentences manifestly excessive

CRIMINAL LAW - appeal against sentence - severity of sentences - child sexual assault offences - six charges - pleas of guilty - errors in application of maximum penalties - whether individual and total sentences manifestly excessive - leave to appeal granted - appeal upheld in relation to error as to maximum penalties for two counts - sentences varied

CRIMINAL LAW – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appellant and co-accused located in vehicle containing a commercial quantity of a prohibited drug and drug paraphernalia – Evidence inculpated co-accused – Evidence against appellant wholly circumstantial – Jury could not have been satisfied beyond reasonable doubt that the only rational inference from the evidence was that appellant was in possession of the drugs for the purpose of supply – Appeal allowed

PROCEDURE – Courts and judges generally – Judges – Disqualification for interest or bias – Apprehended bias by way of prejudgment – Challenge to judge’s refusal to recuse himself – Where judge previously made credit and factual findings adverse to a party in an interlocutory judgment in separate proceedings – Whether findings in the interlocutory judgment expressed in such terms of finality that might give the impression to the reasonable fair-minded observer that the judge might not bring an impartial and unprejudiced mind to the issues in the proceedings – Material to which fair minded lay-observer may be assumed to have regard – Whether erroneous refusal of a judge of the Dust Diseases Tribunal to disqualify himself involves a decision in point of law so to ground an appeal under s 32(1) of the Dust Diseases Tribunal Act 1989 – Whether judge should have declined to disqualify himself on the ground of necessity

EQUITY – relief against forfeiture – whether acceleration of obligation to pay principal amounts to forfeiture – whether appointment of receiver amounts to forfeiture – whether plaintiff entitled to relief. - CONTRACTS – breach – whether amortisation event occurred – whether an ‘Event of Default’ occurred – whether defendant actually aware of Event of Default – construction and interpretation – words and phrases – arrears – in arrears

CRIMINAL LAW — appeal from magistrate — inciting to an act of indecency — whether evidence of surrounding circumstances can be taken into account in determining whether act was indecent — act of indecency “towards” the defendant

PROCEDURE - judgments and orders - actions on judgments – hearing of re-opened case – further evidence regarding plaintiff’s financial circumstances – plaintiff’s claim dismissed - SUCCESSION - family provision and maintenance - Application for provision by two daughters of deceased. Deceased owned part of country property which was left mainly to a son.

PRACTICE AND PROCEDURE - application for leave to amend pleading - multiple claims - breach of contract - breaches of Trade Practices Act 1974 (Cth) - breaches of Fair Trading Act 1987 (NSW) - fraudulent conduct - breaches of Protected Disclosures Act 1994 - breach of statutory duty - common law deceit - negligence - misfeasance in public office - common law conspiracy - whether amendments so obviously futile that leave to amend should be refused - embarrassing pleadings - whether no reasonable cause of action disclosed - leave to amend refused on pleading grounds - leave to replead granted for certain causes of action

PROCEDURE - judgments and orders - amending, varying and setting aside – application to have a default judgement for possession set aside - miscellaneous procedural matters - other matters – application for leave to join as second defendant and leave to file a defence - leave granted - REAL PROPERTY - torrens title - registration - mortgages, charges and encumbrances - question whether mortgagee entered into constructive possession - leases - lease option - benefit and burden principle - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - unconscionable conduct

CRIMINAL LAW - serious sex offender - aged offender but still assessed as high risk of re-offending.

PROCEDURE - Supreme Court procedure - New South Wales - claim for access to court file - claim resisted on public interest immunity grounds - consideration of appropriate orders to secure the position up to the time of judgment - orders made preventing disclosure until final judgment of the name of the proponent of the claim for public interest immunity

ADMINISTRATIVE LAW – administrative tribunals – Administrative Decisions Tribunal (NSW) – appeal against decision of Appeal Panel – quashing a refusal of a stay – whether confidential Police intelligence available in stay proceedings without disclosure to other parties - ADMINISTRATIVE LAW – orders in the nature of certiorari – notice of revocation of security licence – multiple-named recipients of notice – alleged ambiguity in notice – alleged inadequacy of reasons – different requirements for reasons under s 26(2) of the Security Industry Act 1997 than under s 49 of the Administrative Decisions Tribunal Act 1997

CONTRACTS - EQUITY – REMEDIES - joint venture – parties join together to market and distribute soft drinks in accordance with terms informally agreed – joint venture brought to an end after plaintiff disavows agreement - plaintiff seeks the appointment of a receiver to assets asserted to be jointly owned including business names, logo and customer information - plaintiff fails to establish that certain assets jointly owned and otherwise fails to establish that appointment of a receiver would be just or convenient – plaintiff barred from relief by unclean hands – plaintiff seeks equitable compensation from joint venture party equivalent to half the value of joint venture business on the basis that that party breached fiduciary duty by appropriating joint venture business to itself – held there was no joint venture business after plaintiff brought it to an end – plaintiff fails to establish joint venture business was of any value and in any event is barred from relief by unclean hands – plaintiff seeks equitable compensation from third party alleged to have participated in breach of fiduciary duty – plaintiff fails to establish any such participation or that any loss was caused by third party’s conduct

CRIMINAL LAW – appeal against sentence – whether sentencing judge failed to take into account the applicant’s pattern of serious drug abuse – the applicant’s substance abuse was a relevant matter for consideration on sentence as an integral factor in his dysfunctional condition – whether sentencing judge failed to have regard to applicant’s mental health – the sentencing judge limited consideration to the causal question as to whether there was a link between the applicant’s dysfunctional condition and the offence – the sentencing judge failed to have regard to the applicant’s psychological or psychiatric problems in evaluating the subjective circumstances of the applicant at the time of offending – appeal upheld – applicant re-sentenced

LIMITATION PERIOD – Action – Motor accidents – failure to commence proceedings within three years of accident – requirement of leave – Motor Accident Compensation Act 1999 (NSW) s66(2) and s109(3)(a) –mentally incapacitated claimant - full and satisfactory explanation of delay – conduct relevant to explanation – whether conduct of agents and representatives of claimant to be considered - “reasonable person in the position of the claimant” – attributes of claimant to be considered in objective test – brain damage relevant - Motor Accident Compensation Act 1999 (NSW) – s 66(2) - s109(3)(a) - WORDS AND PHRASES – “full and satisfactory” – “position of the claimant”

COSTS - Whether appellants entitled to costs of determination of the separate question in the District Court - No question in relation to costs of the appeal

PROCEDURE - Judgments and orders - stay

CORPORATIONS - oppression- numerous instances of oppression by director of companies- remedies- appropriate remedy a compulsory purchase order- valuation of shares. CORPORATIONS - oppression- remedies- compulsory buy-out order- valuation of shares- company's assets solely land and business- relevance of capital gains tax (CGT) liability when sold- whether CGT deducted from value-whether selling costs to be deducted from gross proceeds. EQUITY - general principles- equitable defences- laches and delay- elements of laches- degree of knowledge of wrongdoing required depends on facts in all the circumstances- applicability of defence to oppression suit. EQUITY - fiduciary duties- directors' duties to shareholders- when owed to shareholders. REAL PROPERTY - valuation of land- highest and best use- special value irrelevant in prevailing circumstances.

TRUSTS AND TRUSTEES – Retirement removal and replacement of trustees – by the Court – application for removal and replacement of trustees of discretionary trusts – test for removal of trustees – rights of potential beneficiaries of discretionary trust - duties of trustees of a discretionary trust – to give real and genuine consideration to exercise of discretion

PROCEDURE - judgments and orders - amending - varying and setting aside - contention that judgment given without appreciation of significance of certain evidence - contention rejected

PRACTICE AND PROCEDURE – summary striking-out of pleadings – allegations of fact inconsistent with prior judgment – allegation of existence of earlier collateral contract inconsistent with deed – allegation of special construction of deed – strike-out granted – leave to re-plead

COSTS – appeal from Local Court – appellant successful on ground not argued – second defendant seeks Sanderson orders – indemnity costs sought by plaintiff – Local Court dealt with costs before it – no issue of principle

REAL PROPERTY – Real Property Act 1900 (NSW), s 58(3)– construction – whether reference to subsequent mortgages is restricted to subsequent registered mortgages – whether “in payment of subsequent mortgages” means in payment of moneys actually owing – EQUITY – nature of obligations of mortgagee holding a surplus after property sold –second mortgagee held surplus after mortgaged property was sold – unregistered third mortgagee claimed entitlement to surplus but in fact was owed nothing – mortgagors too claimed entitlement to surplus – second mortgagee paid surplus to third mortgagee under indemnity – held payment was not in payment of a subsequent mortgage and third mortgagee had no equitable interest in the surplus – mortgagors entitled to equitable compensation from the second mortgagee

PROFESSIONS AND TRADES - accountants - accountant in private practice retained by group of companies - alleged breach of retainer and negligence - scope of retainer - whether accountant required to act otherwise than on clients' instructions and information given by clients - whether breaches when payroll tax registration not obtained by client and business activity statements not lodged by client - CONTRACT - alleged breaches of contract concerning laptop computer and loan - no matter of principle - CORPORATIONS - winding up - winding up in insolvency - automatic set-off under Corporations Act s 553C(1) - set-off inoperative under s 553C(2) if person seeking it had notice of fact of insolvency at time of giving or receiving credit - need for insolvency to be proved to activate s 553C(2) - insolvency not proved - EQUITY - general principles - assignments in equity - assignment of legal chose in action - where assignee of causes of action commences proceedings before notice of assignment given to the defendant - assignor not made a party to the proceedings at inception - but later joined - whether recovery of common law remedy by assignee precluded - PROCEDURE - joinder of parties - application at start of trial by plaintiff equitable assignee to join assignor as party - application opposed by defendant - application granted

SENTENCING - Manslaughter - unlawful and dangerous act

PRACTICE AND PROCEDURE – review of Registrar’s decision to permit the filing of an amended statement of claim as against the sixth defendant, a solicitor – SUMMARY DISMISSAL – proceedings by plaintiff for damages arising from loan to third defendant made on false basis by third defendant, a client of sixth defendant – allegedly to pay sixth defendant’s legal costs in unrelated proceedings – whether cause of action under s.42, Fair Trading Act 1987 properly pleaded – elements of a cause of action under that section – whether arguable that a third party informed that application for loan was or would be made for an investment purpose when in fact the loan was sought to pay solicitor’s costs gives rise to a duty in the third party (the sixth defendant) to disclose to the lender the true purpose of the loan – the amended statement of claim adequately pleaded the cause of action under s.47, Fair Trading Act – applications for review and for dismissal of proceedings dismissed

SERIOUS SEX OFFENDER – application for extended supervision order with conditions attached – statutory threshold satisfied – consideration of appropriate term – expert evidence

FAMILY LAW AND CHILD WELFARE - parens patriae jurisdiction - whether existing orders made on 23 June 2009 should be extended.

PROCEDURE - application by defendant for dismissal of proceedings when plaintiff absent on second day of trial - cross-examination of plaintiff incomplete at end of first day - letter from plaintiff addressed to judge faxed overnight to judge's chambers - solicitor and counsel for plaintiff without instructions and unable to contact plaintiff - solicitor granted leave to file notice of ceasing to act - no valid rationale or explanation for plaintiff's absence - proceedings dismissed

Criminal Law - Appeal against sentences - GST frauds - use of money laundering offence in relation to profits of the frauds - whether maximum penalty reliable - inappropriate use of s 4K Crimes Act (Cth) to impose single sentence for fraud offences - applicant re-sentenced.

TORTS – negligence – breach of duty – appellant sustained aggravation of shoulder injuries during vocational assessment conducted by respondents – respondents on notice of appellant’s recent shoulder surgery – whether breach of duty in proceeding with assessment rather than postponing it - DAMAGES – personal injuries – non-economic loss – whether assessment of 20 per cent of most extreme case inadequate – review of primary judge’s assessment as to severity of non-economic loss – Civil Liability Act 2002 (NSW), s 16 - DAMAGES – personal injuries – whether assessment of past and future economic loss inadequate - DAMAGES – personal injuries – domestic assistance – whether statutory threshold satisfied – Civil Liability Act 2002 (NSW), s 15

TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and Fair Trading Act 1987- misleading and deceptive conduct- sole director guaranteed debts of corporation- corporation ceased to be contracting party with respondent, different corporation in group of companies continued to receive services from respondent- whether inaction by director in permitting this state of affairs a "refusal to act"- if so whether "inadvertent"- held this was positive conduct in continuing trading relationship with the respondent in same circumstances as previous arrangement without disclosing change to the structure of the companies receiving the services- director liable.

LOCAL GOVERNMENT – Consent authority – Approval of development application for home unit building – Approval of building application – Subsequent flooding of basement car-park due to fluctuations in water table – Whether consent authority owed duty of care to purchaser of home unit building. - TORTS – Negligence – Duty of care – Pure economic loss – Loss to purchaser of home unit building from flooding of basement car-park due to fluctuations in water table – Whether duty of care in respect of such loss owed to purchaser by consent authority that approved development and building applications.

Practice and procedure - Pleading of proportionate liability defence under section 35 of the Civil Liability Act 2002 (NSW) - Until the Civil Liability Regulations 2009 were made on 1 September 2009 this action was not an “apportionable claim” under s 35 of the Civil Liability Act as the cause of action accrued before 26 July 2004: Reg 3 Civil Liability Regulations 2003 - Nor was it a claim to which the now repealed s 109ZJ of the Environmental Planning and Assessment Act 1989 (NSW) (EP&A Act) applied as the action was commenced after 26 July 2004: Item 8 of Sch 1 to the Civil Liability Act - It is however a “building action” as defined by s 109ZI of the EP&A Act - Thus, until 1 September 2009 there was a lacuna in the legislative scheme for proportionate liability in relation to building contracts, which has now been filled - The action, by Reg 5 of the 2009 Regulations, is now an action to which Part IV of the Civil Liability Act applies

CORPORATIONS - special resolution - company having one member - document refers to sole member (a company) being "present", to things being "noted" and to documents being "tabled" - clear nevertheless that it is a record of a special resolution by the sole member and signed by the sole member - requirements of s 249B(1) thus satisfied - observations on wording of directions given by court to liquidator under s 479(3)

COMPANIES – directors and other officers – directors’ duties – whether multiple breaches of ss 180, 181 and 182 Corporations Act and common law duties – directors’ fees – whether directors had performed work which warranted additional fees – whether directors personally liable for overpayments – dividends - whether a payment to shareholders properly characterised as a dividend or return of capital – whether dividend payable when no profit demonstrable – whether payment otherwise justified – voluntary administration – whether administrator appointed for a proper purpose – whether directors personally liable for resultant costs – loans – whether loan made by company improper – whether directors personally liable – whether directors can be sued when debtor has not been pursued to bankruptcy – issue of shares – whether shares improperly issued to allow directors to maintain control of company – whether resultant litigation defended when no prospects of success – whether directors personally liable for consequent legal costs – defences – whether business judgment rule available – whether to exercise discretion under s1318 Corporations Act – remedies – damages - quantum - CONTRACTS – construction – whether cross claimant indemnified by settlement deed - DAMAGES – whether liability apportionable under the Civil Liability Act – whether available for breaches of the Corporations law - PRACTICE – pleadings – whether issue arguable when not pleaded

CORPORATIONS - winding up in insolvency - requirements for service of statutory demand and originating process - effect of tender of payment of creditor's claim - presumption of insolvency from non-compliance with statutory demand - requirements for proof of solvency

Application to set aside two transactions under s 37A Conveyancing Act 1919 - Whether intent on part of disponor or agent (wife) to defraud (including defeat, delay or hinder) creditors - Claim of resulting trust by wife to property not established by payments made.

REAL PROPERTY – easements – whether owners of dominant tenement entitled to insist upon an access to the right of way at a point along its length other than at the exit or entrance to it, in order to make their way to property adjacent to the right of way owned by friends of the dominant owners but whose land was not benefited by the right of way

COSTS - miscellaneous applications - no question of principle

PROCEDURE - Appeal - Stay of costs order - Whether assessment of costs should also be stayed.

APPEAL - Procedure - Purported appeal as of right - Whether affidavit satisfies UCPR 52.22.

TRADE PRACTICES AND RELATED MATTERS - Consumer Protection - passing off - Fair Trading Act 1987, s 42 - 25 years of business as Bathurst Locksmiths - RCG Locksmiths a competitor - it registers and advertises Bathurst Locksmiths Emergency Service and then Bathurst Emergency Locksmith Service - limited evidence of actual confusion - modest fees for emergency services

CRIMINAL LAW - appeal against decision refusing redetermination of life sentence

SENTENCING – armed robbery – accessory after the fact – concealing a serious indictable offence – appropriateness of offences listed on Form 1 – supervisory role of the court in relation to Form 1 offences - SENTENCING – whether sentencing judge gave sufficient weight to uncontested evidence of psychologist – sentencing judge rejected uncontested expert evidence that offender was of low intelligence - SENTENCING – whether sentencing judge properly considered s 6 Children (Criminal Proceedings) Act - SENTENCING – parity – no question of principle

CRIMINAL LAW - sentence - two offences of indecent assault - vulnerable victim - offences committed whilst offender subject to conditional liberty - strong subjective case - offender with mild intellectual disability - tragic family history - need for reasonable proportionality between sentences and offences - persuasive subjective considerations ought not cause inadequate weight to be given to objective circumstances - sentences not manifestly excessive - appeal dismissed