Landlord and tenant — Retail leases — Retail tenancy dispute — Alternative dispute resolution — Corporate tenant — Director guarantor — Duty of Victorian Small Business Commission to arrange mediation or other appropriate form of alternative dispute resolution — Failed mediation with tenant — Director as guarantor claiming further dispute — Commission issued certificate certifying failure of mediation encompassing director without further mediation — Whether different dispute — Whether failure by Commission to comply with duty — Effect of any failure to comply with statutory provisions with respect to issuing of certificates — Retail Leases Act 2003 (Vic), ss 1, 85, 86(3), 87(1), 87(3), 91(1)(c) — Small Business Commission Act 2017 (Vic), ss 3, 10(1)

Administrative law — Victorian Small Business Commission — Role of Commission — Small Business Commission Act 2017 (Vic), ss 3, 10(1) — Retail Leases Act 2003 (Vic), ss 85, 86(3), 87(1), 87(3), 91(1)(c)

Private international law — Foreign judgments — Recognition — Enforcement — Grounds for refusal — Natural justice — Chinese judgment — Judgment debtor not served with original proceeding — Notification of the Chinese proceeding apparently effected by way of a public announcement — Whether summary judgment for amount of Chinese judgment should be refused on the basis of denial of natural justice

Summary judgment — Restitution claim — Money paid by respondent to applicant under asserted foreign currency exchange agreement — No payment made by applicant — Claim by respondent for restitution of money paid less a small sum refunded — Whether restitution claim appropriate for summary judgment under Civil Procedure Act 2010 (Vic), ss 63 and 64 — Whether Associate Justice erred in granting summary judgment

Evidence — Business records — Whether foreign bank statements admissible as business records — Evidence Act 2008 (Vic), s 69(1)(a)

Criminal law — Appeal — Interlocutory appeal — Conspiracy — Conspiracy to import border-controlled drug — Pre-trial ruling dismissing conspiracy charge — Whether dismissal an interlocutory decision — Whether interests of justice require dismissal — Factors relevant to exercise of power to dismiss charge of conspiracy — Whether sufficient and effective substantive charge available — Whether substantive offence subsumed offending alleged as a conspiracy — Whether finding of guilt on conspiracy charge would require sentencing judge to find facts that the jury may not have found — Relevance of prosecutorial discretion in proceeding on conspiracy charge — Criminal Code Act 1995 (Cth), ss 11.5(6), 307.1(1) — Criminal Procedure Act 2009 (Vic), s 3

Words and phrases — ‘interests of justice’ — ‘require’ — ‘interlocutory decision’

Administrative law — Judicial review — Personal Safety Intervention Orders — Interim order — Application for order — Whether supporting oral evidence or affidavit required for interim orders — Whether interim orders invalid where written applications supported only by declarations of truth — Personal Safety Intervention Orders Act 2010 (Vic), ss 13(1)(c), 35(2), 38(1), 38(1A), 86

Criminal law — Appeal against conviction — Application for leave to appeal filed out of time — Length and explanation of delay — Prospect of appeal success — Public interest in finality of proceedings — Public interest in accused not being subjected to wrongful conviction — Whether substantial miscarriage of justice — Criminal Procedure Act 2009 (Vic), s 276

Evidence — Identity of offender — DNA evidence — Whether ‘prosecutor’s fallacy’ — Description of offender — Whether evidentiary foundation for evidence of ‘unconscious transference’ — Whether evidence unfair or irrelevant — Whether substantial miscarriage of justice — Evidence Act 2008 (Vic), s 137

Equity — Subrogation — Second mortgagee paid out amount due under first mortgage — Whether payment by second mortgagee entitled it to be subrogated to debt of prior mortgagee — Relevance of intention of payer — Payer’s intention not communicated to mortgagor — Denial by mortgagor of payer’s interest — Whether denial unconscionable or inequitable

Insolvency — Receivers and managers — Mortgagor in liquidation — Solicitors retained by mortgagee in possession — Whether solicitors a ‘controller’ of mortgagor — Whether mortgagor entitled to order against solicitors enforcing controller’s duty to render proper accounts — Whether entitlement to order making inquiry into controller’s conduct — Corporations Act 2001 (Cth), ss 9, 423(1), 434(1)(b)

Real property — Sale by mortgagee in possession — Taking of account — Whether likelihood of surplus after satisfaction of first mortgage debt — Whether payment out of first mortgage by second mortgagee an expense under loan secured by second mortgage — Corporations Act 2001 (Cth), ss 9, 434(1)(b)

Criminal law — Appeal — Conviction — Substantial miscarriage of justice — Jury — Juror appearing to fall asleep during evidence — Whether error or irregularity in trial — Whether substantial miscarriage of justice — Criminal Procedure Act 2009 (Vic), s 276(1) — Juries Act 2000 (Vic), s 44(4)

Companies — External administration — Deed of company arrangement — Claims against company in administration — Claim under statutory cause of action for loss and damage caused by flow of water from neighbouring property — Claim for injunctive relief — Cause of action accrued before company entered administration — Whether claim barred or otherwise released by deed of company arrangement — Validity of release without temporal limitation under deed of company arrangement — Corporations Act 2001 (Cth), ss 444A(4)(i), 444D(1), 444H, 553(1)

Words and phrases — ‘claim’

Practice and procedure — Transfer of proceedings — Transfer to federal courts — Former spouses in control of companies which were parties to proceeding — Former spouses the principal parties to family law proceeding in the Federal Circuit and Family Court of Australia — Family law proceeding well advanced — Common transactions in dispute — Whether two proceedings related — Whether more appropriate for proceeding to be determined with family law proceeding in the Federal Circuit and Family Court of Australia — Whether transfer in the interests of justice — Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 5(1) — Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 5(1)

Accident compensation — Transport accident — Serious injury — Application for leave to commence common law proceeding — Standard of appellate review — Whether judge erred in failing to be satisfied that consequences were collectively very considerable — Transport Accident Act 1986 (Vic), s 93

Real property — Torrens system — Restrictive covenants — Covenant notified on title — Construction — Whether restriction in covenant limited to original transferee or direct transferees of original transferee or binding all transferee successors in title — cope of admissible evidence — Whether evidence admissible of similarly worded restrictive covenants affecting surrounding land — Whether evidence admissible of great-great-grandparent title to land prior to subdivision referred to in restrictive covenant and retained by the Registrar of Titles — Transfer of Land Act 1958 (Vic), ss 27(6)(c), 27(11)(a), 27A(2)(a), 27B(1), 27B(11), 27BA, 27C, 27F(3)(d)

Practice and procedure — Discovery — Production of documents — Medical records — ‘Confidential communications’ — Leave to compel production of clinical records — Whether application for leave necessary where plaintiff consented to production — Evidence (Miscellaneous Provisions) Act 1958 (Vic), ss 32AB, 32C, 32E

Real property — Adverse possession — Co-ownership — Adverse possession between co-owners of former matrimonial home — Husband separating and leaving home for more than 15 years — Incidental acts by husband — Whether sufficient to rebut adverse possession — Limitation of Actions Act 1958 (Vic), ss 3(5), 8, 9, 14(1), 14(4), 18

Companies — Directors’ duties — Duty to prevent insolvent trading — Compromise of proceedings — Action by creditor to enforce company’s contractual obligation to repay loan — Company consented to court orders for payment of sums under contractual obligation — Company insolvent or had become insolvent by reason of making of court orders — Whether company directors, in permitting company to consent to court orders, failed to prevent insolvent trading by company — Whether consenting to court orders constituted ‘incurring a debt’ — Corporations Act 2001 (Cth), s 588G

Equity — Breach of fiduciary duty — Remedies — Election — Multiple wrongdoers — Split election against different defendants — Whether double recovery — Whether plaintiff entitled to make split election as between defaulting fiduciary and third party accessory

Equity — Remedies — Account of profits — Award of interest in equity — Whether statutory penalty interest rate or other rate should be applied

Costs — Indemnity costs — Calderbank offer — Offer jointly made to all defendants — Whether defendants unreasonably refused to accept offer

Evidence — Judgments and convictions — Civil proceedings — Uses to which criminal conviction can be put in subsequent civil proceedings — Applicant convicted of two counts of sexual penetration of a child under 16 years of age — Respondent seeking damages based on offending against her — Extent to which conviction admissible — Extent to which convicted person entitled to contest facts and seek to displace evidence of offending — Evidence Act 2008 (Vic), ss 91, 92, 178

Constitutional law — Commonwealth — Judicial power — Jurisdiction — Victorian Civil and Administrative Tribunal — Domestic building dispute — Apportionment and contribution claims under Wrongs Act 1958 (Vic) against third parties pleaded as defence — Apportionment and contribution claims based on Trade Practices Act 1974 (Cth) — Whether matter arising under Commonwealth law — Whether VCAT has jurisdiction — Constitution, s 76(ii)

Constitutional law — Commonwealth — Judicial power — Jurisdiction — Victorian Civil and Administrative Tribunal — Claim against company incorporated under Corporations Act 2001 (Cth) — Whether incorporation under the Corporations Act 2001 (Cth) sufficient for matter to arise under Commonwealth law — Whether VCAT has jurisdiction — Constitution, s 76(ii)

Practice and procedure — Victorian Civil and Administrative Tribunal — Referral of matter where subject-matter of proceeding more appropriately dealt with by a court — Matter not within jurisdiction of VCAT to hear and determine — Whether Victorian Civil and Administrative Tribunal nonetheless has power to refer matter to Court — Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 77

Tort — Professional negligence — Damages — Causation — Sale of land transaction — Section 32 statement under the Sale of Land Act 1962 (Vic) — Solicitor omitted to attach certificate disclosing liability for Growth Areas Infrastructure Contribution — Purchaser sought to rescind contract of sale for failure to comply with s 32 of the Sale of Land Act and claimed repayment of deposit — Reasonable compromise of claim on terms that vendor partially repay deposit — Vendor sought to recover from solicitor deposit repaid to purchaser — Whether vendor required to prove counterfactual that purchaser would have entered into contract for sale of land but for solicitor’s negligence — Whether onus of establishing counterfactual satisfied by inferences available on the evidence

Practice and procedure — Persons under disability — Approval of compromise — Infant beneficiary of deceased estate — Validity of will disputed — Challenge to validity of will compromised — Approval of compromise sought — Whether proposed compromise benefited infant beneficiary — Whether necessary to determine validity of will before approving compromise — Whether ‘claim’ made — Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 15.08

Injunction — Interlocutory injunction — Plaintiff’s undertaking as to damages — Whether undertaking extends as matter of course beyond loss suffered by the defendant to loss suffered by any person by reason of the interlocutory injunction

Administration and probate — Probate — Will appointing spouse of testator as executor — Divorce of executor and testator subsequent to final will — Statutory presumption that appointment of executor revoked upon divorce — Intention of testator — Whether testator intended appointment of executor not to be revoked upon divorce — Whether intention capable of being established solely by reference to evidence extrinsic to will — Wills Act 1997 (Vic), s 14

Practice and procedure — Parties — Joinder — Whether just and convenient to join parties — Whether real prospect of success against proposed defendant — Whether claim futile — Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 9.06(b)

Criminal law — Criminal injuries compensation — Order for compensation stayed — Application to lift automatic stay of compensation order — Appeal against sentences pending determination by Court of Appeal — Whether jurisdiction of Supreme Court to lift stay — Whether stay should be lifted — Whether lifting of stay should be effective from date of compensation order or be prospective — Criminal Procedure Act 2009 (Vic), s 311 — Sentencing Act 1991 (Vic), s 85B

Judgments, orders and declarations — Slip rule — Whether slip rule applied to allow amendment to compensation order — Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 36.07

Equity — Securities — Marshalling — Apportionment — First-ranking mortgagee exercised rights over one property and discharged first-ranking mortgage over another — Discharge rendered interest of second-ranking mortgagee valueless — No fund under control of the Court — Whether second-ranking mortgagee entitled to marshalling by apportionment

Practice and procedure — Appeal — New point not raised below — Whether exceptional circumstances

Landlord and tenant — Residential tenancy — Possession — Procedure — Mortgagee’s application for possession of rented premises — Tenant served with notice to vacate — Mortgagee entitled to possession — Whether order of the court showing mortgagee’s entitlement to possession required before possession order could be made — Residential Tenancies Act 1997 (Vic), ss 91I, 91ZZK, 91ZZO, 330, 325(1), 325(5), 326