Cases and authorities

CORPORATIONS - winding up in insolvency - creditor's statutory demand - whether defect in the demand - whether substantial injustice would be caused unless demand set aside

DISCOVERY – plaintiff suing former solicitor alleging negligence and breach of fiduciary duty – whether solicitor acted without instructions from the plaintiff – where 11,000 pages of solicitor's files provided to the plaintiff before commencement of proceedings - application by defendant for order to limit scope of defendant's obligation to comply with UCPR 21.3 as documents already in plaintiff's possession – whether cost and inconvenience to defendant outweighs plaintiff's insistence that defendant conform to his obligation to give discovery with particular identification of each document in the normal course – order refused

Sale of land for development in conjunction with neighbouring property - neighbouring property owned by male vendor's brother - representations made to purchasers by male vendor prior to contract relating to brother's attitude towards proposed development - substantial factual disputes as to what was said and other matters - promissory estoppel - collateral contracts - fraudulent representations - judgment for purchasers.

PROCEDURE – evidence - plaintiffs seek leave to serve lay evidence in chief and expert evidence – repeated defaults by plaintiffs in complying with orders for service of affidavits – failure to seek directions for the adducing of expert evidence – leave given to rely on lay affidavit – leave refused to rely on expert evidence - PROCEDURE – summary dismissal - first and second defendants seek summary dismissal of proceedings – consideration of dictates of justice – limitation period not expired - summary dismissal may cause further delay and add additional costs – summary dismissal refused

Practice and Procedure - Application to amend pleadings - Examination of majority decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 - Complex of disputes concerning waste management and disposal centre at Lucas Heights - New Amendments likely to result in increase in defendant's cross-claim from $9,270,000 to $21,887,000

Criminal Law - Appeal against sentence - entering a dwelling house and threatening occupant with a knife - whether error in giving insufficient weight to protective custody - whether error in failing to take into account extra-curial punishment - whether some lesser sentence warranted.

Procedure. Claim for delay of 19 years in finalising estate and therefore preventing an application to Crown for payment out from moneys passing to Crown as bona vacantia. - Consideration of duty to distribute. Claim dismissed as it was before any application for payment and therefore premature.

Portions of Statement of Claim struck out due to pleading deficiencies. - In actions for wrongful arrest and false imprisonment once arrest and imprisonment proved defendant is required to justify each of these. - Leave to proceed on Statement of Claim with portions struck out. - Whether stay should be granted or pre-payment conditions as to costs imposed where plaintiff in impoverished circumstance and effect would be to stultify causes of action.

PROCEDURE - costs - successful application for order setting aside statutory demand on basis of genuine dispute as to existence of debt - defendant commences proceedings to recover the debt - whether costs of statutory demand proceedings should follow the event in the debt recovery proceedings - held plaintiff should have a costs order - held part should be assessed on the indemnity basis

PROCEDURE - judgments and orders - application for summary dismissal or striking out

PROCEDURE - judgments and orders - application for summary dismissal or striking out - TORTS - malicious procedure and false imprisonment - false imprisonment - TORTS - negligence - liability for others' negligence - independent contractors

costs - outstanding motion of former wife for costs order to be determined before order for costs made against her

Whether settlement of proceedings had been agreed - Construction of correspondence including emails

ADMINISTRATIVE LAW – Liquor Act 2007 – validity of disturbance complaint under Part 5 Division 3 of the Act – nature of a “complaint” – what verification of a complaint requires – formal affirmation of complaint – not verification of underpinning factual matters – whether conference convened on the basis of “complaints” was pursuant to valid exercise of power under s.80 of the Act – whether excess of jurisdiction – decision under s.80(3) of the Act to extend the conference to include additional licensees of licensed premises – whether rules of procedural fairness apply to such a decision – an extension decision is a procedural decision not affecting substantive rights or interests – no breach of rules – no jurisdictional error re conference or extension decisions - no breach of procedural fairness in inspectors under the Casino, Liquor and Gaming Control Authority Act 2007 or police or council officers communicating with Director of Director’s delegate in light of the statutory scheme established by the Liquor Act – Director and delegate not in position of “accusers” – secrecy provisions in s.17 of the Casino, Liquor and Gaming Control Authority Act no breached by disclosure by Director of trading figures to competition licensees – such disclosure made in the discharge of statutory functions – interpretation of secrecy provisions

CORPORATIONS - winding up - agreement to be made by liquidator on company's behalf - obligations may be discharged more than three months after agreement entered into - "tax sharing agreement" among several companies in liquidation - whether court should approve making of agreement

Procedure - miscellaneous procedural matters - application for summary dismissal under UCPR r 13.4 - whether pleadings disclose a reasonable cause of action - application for statement of claim to be struck out under UCPR 4 14.28 - Torts - negligence - duty of care - whether a police officer owes a duty of care to a member of the public being investigated for a criminal offence - extent of immunity of police - false, misleading or inaccurate statements to justice on application for search warrant - continuation of search despite evidence to suggest no offence commited.

Serious sex offender - application for interim supervision order - conditions including electronic monitoring

LIMITATION OF ACTIONS – postponement of the bar – disabilities – nature of the disability required – type of affairs with respect to which the disability must relate – nature of the suspension arising from a period of disability – meaning of “cause of action” in the Limitation Act 1969 – APPEAL AND NEW TRIAL – appeal – no order made in the court below – incomplete application for leave to appeal – procedure for dealing with a purported appeal when there was no order made in the District Court below – transfer of proceedings in the District Court for the purpose of making an order – PROCEDURE – interlocutory decisions – limitation of actions – methods by which a claim that a limitation period has been suspended might be litigated – EVIDENCE – admissibility of a history recorded in a medical report – WORDS AND PHRASES – “cause of action” – “substantially” – “affairs” – “management of his or her affairs”

Loss of easement - relief against forfeiture - circumstances in which relief against forfeiture will be granted - requirement of unconscionable or unconscientious conduct - on facts, no such relief granted. - - Conveyancing Act section 88K - imposition of easement - whether reasonably necessary - on facts, easement not imposed.

CORPORATIONS - rights of members - inspection of books of the company - where company admitted to official list of Australian Securities Exchange ("ASX") - announcements by company to ASX concerning transactions involving issues of convertible notes - where company in default under prior financing agreements and in clear need of funds - application by shareholders for order granting them access to transaction documents and associated correspondence - some seventeen "concerns" expressed by applicant shareholders - "concerns" expressed in imprecise and general terms - whether those concerns amount to showing of case for investigation - held that they do not - concerns are really no more than questioning of commercial decisions

Equity - Declaratory relief - Principles-Building Services Corporation Act 1989 (NSW) now the Home Building Act 1989 (NSW)-Provision of statutory indemnification schemes for home owners including the Comprehensive Insurance Scheme - Proceedings brought by plaintiff builder for declaratory relief that claims made by Owners of Strata Plan and settled and/or paid by defendant regulatory authority constitute settlements and payments ultra vires the scheme - Whether plaintiff builder has standing to challenge the acceptance and approval of the claim by the regulatory authority other than in proceedings for recovery by the defendant against the plaintiff - Case management-Stay of proceedings

X tranferred his land to non-existent company, which became its registered proprietor - Issue of fact as to whether he intended to transfer it to A (a company which he then controlled) or to B (a company which he believed he then controlled but did not control) - common mistake or unilateral mistake? - held: he intended to transfer land to A: common mistake - A entitled to have land transferred to it.

PROCEDURE – costs – departing from the general rule – adjustment to prima facie position that costs follow the event to reflect success of first plaintiff on particular issues - PROCEDURE – costs – whether costs order against first plaintiff should include costs referable to issues concerning only second plaintiff who has become a bankrupt – first and second plaintiffs asserted distinct rights and brought claims in one action for convenience and to reduce costs – first plaintiff not liable for costs not recoverable from second defendant which are referable only to second defendant’s claim

APPEAL – criminal – interlocutory appeal – nature of appeal – offence of attempt to have sexual intercourse without consent – accused intoxicated at time of incident – issue arose at commencement of trial as to availability of defence of honest and reasonable mistake – judgment delivered by trial judge – stated the applicability of statutory provision relating to consent – stated that attempt was not an offence of specific intent – whether jurisdiction of Court of Criminal Appeal invoked – Criminal Appeal Act 1912 (NSW), s 5F – Crimes Act 1900 (NSW), s 61HA - CRIMINAL LAW – sexual offences – attempt to have sexual intercourse with identified woman, without consent and with knowledge of non-consent – whether statutory provision relating to consent applies to offences of attempt – whether offence of attempt an offence of specific intent – Crimes Act 1900 (NSW), s 61P, s 428B - WORDS & PHRASES – "interlocutory judgment or order" – "intoxicated by alcohol" – "knowledge of consent"

SENTENCING - parity - sexual assault offences - four offenders sentenced prior to two other co-offenders being sentenced by different Judges - later offenders given lesser sentences - whether disparity in sentences imposed gave rise to a justifiable sense of grievance

ADMINISTRATIVE LAW – prohibition – application in relation to pending criminal proceeding – jurisdictional error – rulings on points of law – concurrent appeal under s 5F of the Criminal Appeal Act 1912 (NSW) – no interlocutory judgment or order engaging jurisdiction under s 5F – whether relief in the nature of prohibition available – whether jurisdictional error - WORDS AND PHRASES – "interlocutory judgment or order" – "jurisdictional error"

FAMILY LAW - de facto relationship - COSTS - offer of compromise - whether Court should otherwise order - terms of short minutes

CORPORATIONS - winding up - creditors voluntary winding up - where committee of inspection does not fix liquidator's remuneration - whether remuneration fixing machinery has broken down - whether question has arisen with respect to remuneration that it is open to court to answer under s 511

PROCEDURE - time for service of originating process - application for extension - several earlier extensions - whether plaintiffs have shown good reason for further extension - extension granted

PROFESSIONS AND TRADES – lawyers – liens – whether the client should pay the solicitors professional and photocopying costs incurred after termination of the retainer – construction of retainer agreement – where there is no distinction to be drawn between this case and another case considering the same form of retainer

PROCEDURE – costs - plaintiff seeks leave to discontinue proceedings with certain costs orders – defendant consents to discontinuance but seeks further order that costs be paid by plaintiff out of the estate on the trustee basis - consideration of r 42.19 of Uniform Civil Procedure Rules as to starting position on costs where notice of discontinuance filed – not an ordinary case of discontinuance as plaintiff has obtained relief sought – not accepted that there was no necessity for court proceedings - orders made as sought by plaintiff

PRACTICE & PROCEDURE – s 140 Civil Procedure Act 2005 - application to transfer defamation proceedings from District Court to Supreme Court –– defence of truth – where overseas witnesses may be called to establish defence - whether video link arrangements for evidence from witnesses in Croatia would cause procedural disadvantage – whether disadvantage would be reduced or eliminated if transfer occurred – Foreign Evidence Act 1994 – no evidence of procedural disadvantage -application refused

CRIMINAL LAW – sentencing – offences of breaking and entering with intent to steal – whether circumstances of crime aggravated by commission for financial gain – whether element of offence – level of moral culpability – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(o) - CRIMINAL LAW – sentencing – finding of special circumstances – whether balance of term appropriate proportion of non-parole period with respect to specific sentence – whether proportion appropriate with respect to aggregation of sentences – Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 - CRIMINAL LAW – sentencing – whether necessary to take into account fact that crimes could have been prosecuted in Local Court – whether sentence manifestly excessive - WORDS & PHRASES – “circumstances of aggravation”

CORPORATIONS - voluntary administration - remuneration of administractor in voluntary administration - remuneration of administrator of deed of company arrangement - where remuneration determined by meeting of creditors - application for review of remuneation by the court - whether administrator precluded by contract or estoppel from seeking such review - certain factual questions canvassed - meaning of words spoken in conversation between two experienced insolvency practitioners - references to "cap" and "capped" in relation to remuneration - discussion of process of "review" of remuneration by court - whether "review" warranted in this case - the form of the "review"

CRIMINAL LAW - murder - issue of the fitness of accused to be tried - intellectual disability

PRACTICE AND PROCEDURE – security for costs – application for order for future costs - whether reason to believe plaintiff corporation will be unable to pay costs of successful defendant – issues of frustration and delay – exercise of discretion – UCPR r 42.21 – s 1335(1) Corporations Act 2001 (Cth)

PRACTICE AND PROCEDURE - whether cross-claim available in proceedings for enforcement of a foreign judgment

COSTS – offer of compromise – indemnity costs – discretion to “otherwise order” – element of compromise – all or nothing case – where offer is invitation to surrender – relevance of costs consequences to accepting offer – Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.15A - COSTS – exercise of general discretion – offer of compromise – indemnity costs – appeal proceedings where no fresh offer – regard had to offer from court below – Civil Procedure Act 2005 (NSW) s 98 – Uniform Civil Procedure Rules 2005 (NSW) r 51.49

TORTS – negligence – dangerous premises – duty of care – plaintiff fell on stairs leading from shopping plaza car park to council park – stairs constructed on land plaza had permission to use – stairs one of several exits from car park – whether owner of plaza occupier of stairs - TORTS – negligence – duty of care of occupiers and roads authority - HIGHWAYS – definitions – whether council “roads authority” in relation to stairs – whether stairs were or formed part of a “public road” – Roads Act 1993 (NSW), s 249 – whether installation of light over public road constitutes “road work” - TORTS – negligence – breach of duty – whether council and owner of plaza breached duty of care to plaintiff having regard to plaintiff’s obligation to take reasonable care for own safety – Civil Liability Act 2002 (NSW), s 5B - TORTS – negligence – causation and contributory negligence – plaintiff failed to use alternative exits to the car park – plaintiff let go of handrail on stairs and charged forward knowing lighting was inadequate – Civil Liability Act 2002 (NSW), s 5D, s 5R - DAMAGES – apportionment – concurrent tortfeasors – whether apportionment by primary judge unreasonable or plainly unjust - JUDGMENTS AND ORDERS – recovery against concurrent tortfeasors – plaintiff entitled to judgment for full amount against each - WORDS AND PHRASES – “public road” – “roads authority” – “road work” – “footway”

STATUTORY OFFENCES – offence under s 58(3) Road Transport (General) Act 2005 – defendant was a consignee of grain – specified loads delivered to the defendant’s depots were in breach of a mass requirement – the defendant was charged on the basis that failed to take steps to turn vehicles away which constituted conduct that was likely to induce others to breach the mass requirement – charges dismissed in the Local Court – appeal to Supreme Court on ground involving a question of law alone – whether the Magistrate misapplied the provisions of s.58(3)(b) and (c) – whether the Magistrate erred in treating the defendant’s policy as the relevant conduct under s.58(3)(b) – whether the Magistrate misconstrued the element of negligence under s.58(3)(c) – the Magistrate was entitled to take into account the factual context, including the defendant’s policy, in determining the relevant conduct and inducement under s.58(3)(b) – negligence in s.58(3)(c) is not limited to reasonable foreseeability but extends to proof of breach of the standard of care – no error involving a question of law established – appeal dismissed

MORTGAGE –farm mortgage and farm debt - Farm Debt Mediation Act 1994 – proceedings for recovery of possession by mortgagee – where farmer and mortgagee enter into three successive loan agreements all secured by the farm mortgage – where mediation occurs following default under first loan agreement and where Deed of Settlement executed to resolve the dispute - where second loan agreement and third loan agreement entered after mediation – where certificate under s 11 of the Act issues with respect to the farm mortgage after mediation – subsequent defaults by farmer under second and third loan agreements - whether enforcement action pursuant to the mortgage void unless further mediation takes place after defaults under the subsequent loan agreements – certificate held to apply to the mortgage and not the farm debts so that proceedings not void under s 6 – UNJUST CONTRACTS – Contracts Review Act 1980 – "asset lending" – where farmer agrees to subdivide and sell farm or refinance following mediation - where farmer refinances debt secured on farm when no prospect of repaying debt from farm income or of retaining the farm even before the third loan agreement is executed – whether contract unjust –contract held not to be unjust in the circumstances – plaintiff entitled to order for possession

ADMINISTRATIVE LAW - claim for certiorari and declaratory relief - clinical trial of transplantation of encapsulated human islets into people with diabetes - plaintiff in charge of clinical trial - clinical trial suspended - chief executive of Area Health Service establishes Review Committee under ss.24 and 29B Health Services Act 1997 - Review Committee to review suspension of clinical trial and to report and make recommendations - Review Committee report makes serious criticisms of plaintiff - chief executive accepts report and implements recommendations - report provided to third parties - application to quash report and decision of chief executive to accept report and to provide it to third parties - claim of denial of procedural fairness - apprehended bias - claim that persons were acting as both accusers and decision makers - prejudgment - claim upheld in part - whether certiorari available to quash report and acceptance decision - relief in nature of certiorari and declaratory relief granted

TORT - motor accident - serious injuries suffered by plaintiff attached to taxi - identity of taxi disputed - contest between Nominal Defendant and purported owner of taxi - circumstantial evidence - GPS showing position of taxi at various times - evidence excluding other taxis from location of accident at time of accident - EVIDENCE - standard of proof in civil case where serious allegations made - Briginshaw v Briginshaw - approach in civil case in determining whether circumstantial evidence leads to finding of serious misconduct on part of taxi driver - CONTRIBUTORY NEGLIGENCE - plaintiff becoming attached to taxi - plaintiff remaining attached to taxi - objective test - COSTS - Bullock order - unsuccessful defendant to pay whole of plaintiff's costs.

Criminal Law - Appeal - Sentencing - Robbery in company - Phanith - whether judge erred in fact finding - parity with co-offender England - parity with co-offender - whether sentence excessive.

CRIMINAL LAW – sentence – conspiracy to import heroin – factual dispute as to quantify of heroin imported – parity of sentences – sentences not manifestly excessive

CRIMINAL LAW – appeal against sentence – drug supply – supply of not less than a commercial quantity – Drug Misuse and Trafficking Act 1985 (NSW), s25(2) - objective criminality of the offence – aggravating factor – whether dealing for financial gain - proceeds of supply went to support own drug addiction – dealing not for financial gain – less severe sentence warranted in law - CRIMINAL LAW – appeal against sentence – aggravating factor - Crimes Sentencing Procedure Act 1999 (NSW) s 21A(2)(m) - series of criminal acts – series of acts leading to more serious criminal charge – prohibition against double counting – error to take same facts into account as aggravating factor that lead to more serious criminal charge – less severe sentence warranted in law - Crimes Sentencing Procedure Act 1999 (NSW) - s 21A(2)(m) - Drug Misuse and Trafficking Act 1985 (NSW) - s25(2)

PROCEDURE - appeal - leave to make submissions on a particular topic - how submissions made beyond the scope of the leave granted are to be dealt with - APPEAL - when leave granted to file Notice of Contention - whether leave to be granted after judgment delivered to raise fresh arguments - LEGAL PROFESSION - costs order - written submissions made beyond scope of leave granted - circumstances where costs order against practitioner is appropriate for making written submissions beyond scope of leave granted - PROCEDURE - costs - interest - pre-judgment interest on debt to be calculated at rate of interest provided by debt - DAMAGES - debt - where interest on a monthly balance amounts to charging interest on interest