Cases and authorities

LEGAL PRACTITIONERS — Disciplinary proceedings — Misappropriation of trust account funds — Practitioner convicted of larceny as a bailee under s 125 of the Crimes Act 1900 (NSW) — Declaration that the practitioner is not a fit and proper person to remain on the Roll of Australian Lawyers

TORTS – intentional torts – battery – appeal only as to assessment of damages – where respondent alleged his career as an actor had been affected by physical and psychological injuries caused by appellant – whether primary judge erred in finding that respondent suffers from chronic post-traumatic stress disorder – whether primary judge erred in determination of general damages, past economic loss, and future economic loss

CRIMINAL LAW – bail – application to vary bail by deleting all bail conditions – where bail was granted in the Supreme Court and subsequently varied in the Local Court – Court had jurisdiction to hear the application where the bail decision in the Supreme Court remained operative – application determined on merits

CRIME – appeal against aggregate sentence – steal from the person and fraud offences – sentencing judge erred in considering conditional liberty in assessment of objective seriousness – submission made on resentencing that conflicted with concession in court below – applicant held to concession – no lesser sentence warranted

Crime – appeals – appeal against sentence – manifest excess

CRIME – Bail – bail pending appeal – attempt to reopen the Court’s dismissal of application – no question of principle

CRIMINAL LAW — Appeals — Crown appeal against sentence — Manifest inadequacy — Aggregate sentence — Totality — Aggregate sentence not reflecting the totality of the criminality — Appeal dismissed.

CRIME – appeals – appeals against sentence – disparity between sentences –– whether justifiable sense of grievance by reason of sentence imposed on co-offender – ground not made out

CRIME — Appeals — Appeal against sentence — Juvenile offender — Mental health — Moral culpability — General deterrence — Bugmy v The Queen — Youth — Where applicant subject to conditional liberty at time of offence — Manifest excess

CRIMINAL LAW – sentence appeal – sexual intercourse with a child aged between 14 and 16 years – whether trial judge erred by making findings of fact concerning counts on which the jury returned not guilty verdicts – whether trial judge erred in failing to find that offender’s alcohol abuse and post traumatic stress disorder reduced moral culpability – whether aggregate sentence manifestly excessive – manifest excess established – appeal allowed – sentence reduced on re-sentence

CRIME – Appeals – appeal against conviction – sexual intercourse with a child – whether Crown case implied a lack of past sexual experience or activity of the complainant – whether exclusion of evidence relating to child’s sexual experience under s 293 of the Criminal Procedure Act resulted in a miscarriage of justice – whether failure to permanently stay the trial resulted in a miscarriage of justice – whether convictions unreasonable having regard to significant change between complainant’s allegations in JIRT interviews and pre-recorded evidence – appeal allowed – conviction on counts 1 and 4 quashed

CRIME – Appeals – aggravated enter dwelling with intent – steal property from dwelling house – larceny – whether there was a miscarriage of justice arising from the failure of the applicant’s legal representatives to place important evidence relevant to the applicant’s subjective case – respondent’s concession that it is open to the Court to find the ground of appeal established – the absence of the material deprived the sentencing judge of a full consideration of the applicant’s circumstances – miscarriage of justice established – ground upheld – resentence

CRIME — appeals — appeal against conviction — inconsistent verdicts — where applicant convicted of 11 sexual offences against two children — where applicant was acquitted of one count charged — whether there was rational explanation for the acquittal — where complainant’s evidence of acquitted count was uncertain compared to her evidence of other counts CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant convicted of 11 sexual offences against two children — whether alleged implausibility of complainants’ versions (because the conduct was so brazen) resulted in an unreasonable verdict — where offending conduct was committed in plain sight or when others were nearby — whether disparities between complainants’ versions and evidence of complaint witnesses resulted in unreasonable verdict CRIME — appeals — appeal against conviction — miscarriage of justice — application of proviso — where applicant convicted of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act 1900 (NSW) — where complainant was under 16 years old — where Crown was required to prove the complainant did not consent to sexual intercourse — where trial judge misdirected jury as to consent element of offence — where defence counsel agreed to direction as given — whether misdirection resulted in substantial miscarriage of justice — whether proviso ought be applied

STATUTORY INTERPRETATION – Drug Misuse and Trafficking Act 1985 (NSW), s 25 – supply of a large commercial quantity of a prohibited drug – level of knowledge required to establish charge under s 25(2) CRIMINAL LAW – appeal against conviction – where applicant convicted of supply of a large commercial quantity of a prohibited drug – applicant convicted of supply of fentanyl – where applicant gave evidence of mistaken belief as to the particular prohibited drug in his possession – whether applicant had requisite mental knowledge with regard to quantity of prohibited drug CRIMINAL LAW – appeal against sentence – supply of a prohibited drug – whether sentencing judge erred in assessment of objective seriousness of offending – where sentence appeal was previously abandoned and subsequently raised without leave

CRIME – appeals – appeal against conviction – whether unreasonable verdict – where the accused was found guilty of manslaughter – where the deceased was found tied up upside down partially submerged in water in a wheelie bin – where the autopsy could not determine the cause or manner of death - where the jury were told they had to exclude any independent causes of death before returning a verdict of guilty – where the tendency evidence of violence by applicant towards deceased was very strong – where admissions made to two witnesses -where the forensic evidence included the applicant’s DNA and fingerprints at the crime scene - where there was limited evidence pointing to any motive or opportunity for other suspects – where it was not a reasonable possibility that the deceased died of a drug overdose – where evidence supported the conclusion that the applicant caused the deceased’s death – where no unanimity direction was required as to which act caused death – evidence supported the jury’s verdict of guilty

CIVIL PROCEDURE - service outside Australia - application for leave to proceed and default judgment against the fourth defendant - whether the fourth defendant validly served with the statement of claim - where the fourth defendant is a dissolved company formerly registered in the United States of America - where the plaintiff relies upon UCPR pts 11 and 11A and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters - whether the fourth defendant’s dissolved status prevents the plaintiff from proceeding against it.

CORPORATIONS - Statutory demand - Application to set aside creditor's statutory demand - Whether an offsetting claim is established – preliminary views as to whether there may have been some other reason to set aside creditor’s statutory demand issued inn context of ongoing proceedings as to related matters.

COSTS – gross sum costs order – court’s discretion as to quantum of gross sum costs order

CORPORATIONS – statutory demands – where Plaintiffs owed an undisputed debt to the Defendant in respect of the payment of a sum of $3m due under a deed – where Plaintiffs sought to set aside statutory demands issued to each of them in respect of this debt on basis of various errors in the text of the statutory demand – whether the defects were such that substantial injustice will be caused if the statutory demands are not set aside – whether there is some other reason why the statutory demands should be set aside

SUCCESSION — will — construction — will trust — gift of property subject to right of occupation for defined period — will divides specified property costs between occupier and “my Estate” — allocation of costs between occupier and reversioners

COSTS — interlocutory costs — restraint of trade — application for injunction — short service obtained — plaintiff served voluminous evidence on defendant shortly before, and on date of, hearing — adjournment granted to allow defendant to file evidence — interlocutory injunction refused — application by plaintiff for costs thrown away by reason of adjournment refused — plaintiff to pay costs of interlocutory application in full — application by defendant for costs payable forthwith refused — costs in the cause

LAND LAW – strata title – where plaintiffs own two lots in large strata plan – where NSW Civil and Administrative Tribunal made order for reallocation of unit entitlements pursuant to s 236 of Strata Schemes Management Act 2015 (NSW) – where effect of reallocation is significantly to increase strata levies payable on plaintiffs’ lots – where internal appeal to Appeal Panel dismissed – where plaintiffs now seek leave to appeal under s 83 of Civil and Administrative Tribunal Act 2013 (NSW) – whether summons identifies questions of law – whether Appeal Panel misconstrued s 236 of Strata Schemes Management Act – whether exercise of discretion to make reallocation order miscarried – whether decision legally unreasonable – whether plaintiffs’ arguments misstated or not addressed – whether Appeal Panel erred in not finding that Tribunal failed to afford procedural fairness by not informing plaintiffs, as litigants-in-person, of need to lead certain valuation evidence

EMPLOYMENT AND INDUSTRIAL LAW — Contract — Restraint of trade — Where there was a Services Agreement between the plaintiff and the first defendant — Where a restraint clause in favour of the plaintiff bound the defendants to certain obligations — Whether the defendants breached the restraint clause by “soliciting”, “canvassing”, “securing”, “diverting” or “attempting to divert” former clients of the plaintiff to themselves or a third party after Services Agreement terminated — Where most former clients approached second defendant after termination of the Services Agreement for assistance — Whether “secure” or “divert” could capture a passive receipt of instructions from a former client — Whether restraint clause was valid under s 4 of the Restraints of Trade Act 1976 (NSW) — Whether restraint clause was reasonable — Whether plaintiff had a legitimate protectable interest — Where plaintiff was franchisee under a Franchise Agreement — Where second defendant knew most former clients personally, long before Services Agreement entered into EQUITY — Fiduciary Duties — Whether a fiduciary duty existed between plaintiff and the defendants — Whether defendants breached a fiduciary duty by doing work for former clients of the plaintiff — Whether obligations subsisted beyond the termination of the relationship

CRIME – Murder – Sentencing following trial – Where offender inflicted fatal stab wound to the deceased’s armpit using a flick knife in the context of the deceased refusing to hand over stolen methylamphetamine – Where Crown and offender agreed that the offence was unplanned and involved an intent to cause grievous bodily harm – No finding of remorse – Poor prospects of rehabilitation found – Application of Bugmy principles

CRIME — Sentencing — Murder — domestic violence

SUCCESSION — Family provision — Claim by two adult children — Whether adequate and proper provision not made for the plaintiffs and, if so, the nature and quantum of the provision to be made

EQUITY – trusts – discretionary family trust – beneficiary application for removal of trustee – whether trustee has breached fiduciary duties – where trust generates no income – where defendant beneficiary is the sole director and shareholder of trustee company and has been paying for trust expenses personally – determination that no breach of fiduciary duty in the circumstances – whether even if breach of duty, case for removal made out EQUITY – whether principal beneficiary under discretionary family trust disclaimed any interest, benefit, or entitlement in or under the trust – where principal beneficiary has been receiving aged pension since April 2002 – where a variation to the trust deed was executed – no effective disclaimer – finding of an intention to remain as principal beneficiary

CORPORATIONS – winding up – liquidators – after paying all creditors, liquidator achieved a surplus – where company being wound up had large unsatisfied judgment debt against its majority shareholder – where majority shareholder also being wound up – application of “rule in Cherry v Boultbee” – where liquidator sought and obtained special leave to distribute whole of surplus to shareholders other than majority shareholder – relationship between common law, equity and statute – whether continuing operation of “rule in Cherry v Boultbee” incoherent with purposes and policy of the Corporations Act – consideration of history and nature of “rule in Cherry v Boultbee”

CONTRACTS — construction — Facility Agreement between joint lenders and borrower company — where “Lender” in opening words of agreement refers to both individual lenders — whether reference to “Lender” in clause concerning issue of redemption notices by borrower to “the Lender” means either or both of them — where meaning of “Lender” throughout the agreement is a question of construction CONTRACTS — where Facility Agreement required two lenders nominate a bank account into which proceeds could be paid — where only one lender nominated an account — where proceeds of facility paid into nominated account in breach of requirements of agreement such that borrower did not obtain good discharge of its debt — where proceedings as between the two lenders were litigated — whether those proceedings amounted to ratification of rogue lender’s nomination such that the borrower obtained good discharge of its debt — whether right of action now lies against borrower

CRIME — Appeals — Appeal against conviction — Liberato direction — following altercation between two groups of men in two vehicles, one man was killed by a shotgun discharged by a man in the other vehicle — man who discharged shotgun gave evidence that shot was accidental — other aspects of his evidence implausible or incorrect — trial judge made reference in summing up to competing evidence — joint application for Liberato direction refused by trial judge — whether error in failing to give direction — whether proviso applicable

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Child sex offences – Where offending occurred over a period of four months – Whether complainant’s lack of credibility and inconsistencies in evidence were such that jury should have had reasonable doubt as to applicant’s guilt – Appeal allowed CRIME – Appeals – Appeal against conviction – Inconsistent verdicts – Where logical basis to find applicant not guilty on counts where date essential element – Where no logical basis to distinguish other verdicts – Appeal allowed

CRIMINAL PROCEDURE – Costs – Costs in Criminal Cases Act 1967 (NSW) – Whether it would not have been reasonable for the Crown to institute proceedings if the prosecution had been in possession of evidence of all the relevant facts.

COSTS — Application for indemnity costs — Offer of Compromise — Joint offer CIVIL PROCEDURE — Interim preservation — Freezing orders — Application to vary orders — Where plaintiff intends to appeal against primary judgment

CORPORATIONS – Management and administration – Whether leave should be granted to continue proceedings against a company in administration – Where voluntary administrators neither consent to nor oppose grant of leave – Where proceedings are a regulatory action concerning allegations of public relevance.

CIVIL PROCEDURE – suppression and non-publication orders – application for pseudonym and other orders – whether orders necessary to protect the safety of the fourth defendant – whether orders necessary in the public interest – where fourth defendant fears for her safety and the safety of their family – where fourth defendant has legitimate basis for concern about their safety – where orders being made will have limited impact on open justice – suppression and non-publication orders made

CIVIL PROCEDURE – Discovery – Application by plaintiffs in proceedings for damages arising out of a fire at industrial premises for discovery under r 21.2 of the Uniform Civil Procedure Rules 2005 (NSW) – Whether categories identified by plaintiffs relate to a fact in issue in the proceedings – Application for discovery granted

COSTS — where judgment was for the defendant — where plaintiff is seeking apportionment of costs as they had succeeded on two of the three substantive issues in the proceedings — Calderbank offer by defendants — where Calderbank offer was made at an early stage of the proceedings — where defendants rejected Calderbank offer — no indemnity costs awarded — plaintiffs are to pay the defendant’s costs of the proceedings on an ordinary basis

CORPORATIONS – Corporations Act 2001 (Cth) sch 2 s 90-15(1) – Application for directions in the nature of judicial advice that liquidators would be justified in investigating and pursuing certain claims against a director and a Capital Gains Tax concession – Where the Company currently has a surplus sufficient to discharge all creditors, which surplus might be eroded or entirely eliminated if the Company failed against the director or succeeded and was unable to recover – Where the only person with an direct economic interest in the outcome is a contributory who has not given an indemnity to the Company for any liability for costs – HELD: Liquidators would not be justified in investigating and pursuing the foreshadowed claims and will not be justified in doing so, unless, within a reasonable time the contributory moves the Court for leave to bring a derivative action and fails, or another party applies for the termination of the winding up and fails

JUDGMENTS AND ORDERS – Amending, varying, and setting aside – interlocutory regime of orders imposed on parties engaged in a long-running dispute in relation to easements – final judgment given – whether the interlocutory regime of orders should be continued on a permanent basis and if so, whether those orders should be varied. COSTS – specified gross sum costs order – Civil Procedure Act 2005 s 98(4)(c) – long-running dispute between two neighbours involving multiple proceedings – final judgment given – discretionary factors relevant to making a specified gross sum costs order – need to accelerate the disengagement of the parties from their present disputes and to avoid further aggravating contests between them including in relation to costs assessment – whether a specified gross sum order should be made instead of a costs assessment.

CIVIL PROCEDURE — judgment and orders — application for stay of execution pending appeal —where plaintiff will be unable to repay money if appeal were successful — departure from usual practice proposed by plaintiff — where plaintiff terminally ill and at risk of not surviving until appeal judgment is given— what justice requires — stay granted on terms

CORPORATIONS – Voluntary administration – administrator – Where directors appointed resolved to place club in voluntary administration – Whether directors validly passed requisite resolution under s 436A of the Corporations Act 2001 (Cth) – Whether appointment of voluntary administrator was made for an improper purpose. CORPORATIONS – Voluntary administration – administrator – Whether appointment of voluntary administrator should be validated under s 447A of the Corporations Act 2001 (Cth).

CIVIL PROCEDURE – where defendant’s solicitor sought an expert report from plaintiff’s treating chiropractor close to the trial date – where plaintiff’s treating chiropractor had been subpoenaed to give evidence – where chiropractor under mistaken impression provision of report for defendant’s solicitor “adhered to the legal obligations imposed by the subpoena” – no waiver of patient/chiropractor privilege – where no evidence was provided as to why there was not earlier investigation by subpoena – expert report not allowed to be tendered by defendant – oral evidence of chiropractor not permitted to be called by defendant

CIVIL PROCEDURE – Application by plaintiff to re-open proceedings – whether granting leave to the plaintiff to re-open proceedings is in the interests of justice

CIVIL PROCEDURE – subpoenas – where plaintiff objects to access being granted to documents produced by health professionals – where claim based on protected confidence under s 126B Evidence Act - where plaintiff treated by health professionals – where reports served by plaintiff disclosed certain imparted information – whether material had probative value – confidential addendum to judgment explaining reasons for outcome

CONTRACTS – Construction – Whether poorly drafted deed created charge over property owned by respondent named as guarantor – Label of “rectification by construction” to be avoided – Courts may “correct” language and punctuation of contract by way of construction where obvious mistake established by parties’ clear objectively ascertainable intention – Charge not created

NEGLIGENCE – Duty of care – Mental harm – Where respondent exposed to traumatic incident in the course of employment – Whether respondent’s exposure to incident was causative of post-traumatic stress disorder and major depressive disorder – Whether respondent actually exposed to incident – Whether respondent’s employer breached duty of care in failing to direct respondent not to attend incident – Whether duty of care negatived by s 32 of the Civil Liability Act 2002 (NSW) – Appeal allowed EVIDENCE – Expert evidence – Where assumptions made by experts called by respondent not proved on the facts – Where facts as proved dissimilar from expert assumptions – Where little to no weight can be attributed to expert evidence as to causation

JUDGMENTS AND ORDERS – Remittal by Court of Appeal to Land and Environment Court – Scope of remitter – Where respondent sought to adduce further evidence on the remittal – Where primary judge refused to grant leave to adduce further evidence – Whether primary judge erred in law in refusing to admit further evidence – Appeal dismissed APPEALS – Jurisdiction of appellate court – Remittal to Land and Environment Court – Construction of remittal order – Whether a question of law for purposes of s 57(1) of the Land and Environment Court Act 1979 (NSW)

GUARANTEE AND INDEMNITY – Construction Scope of liability of guarantor – Where contract for sale of land and underlying businesses not completed by purchasers – Where vendor sought order for specific performance as against guarantor – Where order for specific performance granted by primary judge - Whether guarantor liable to perform purchasers’ principal obligations – Appeal allowed

CRIME — appeal against sentence — manifest inadequacy — where offender convicted of 12 counts of child sex offences which occurred over a period of 15 years against four child victims — where the offending involved a significant age disparity, skin-on-skin contact with the genitals, sexual intercourse, planning, use of a position of trust, persistence, and escalation in seriousness over time — where the offender’s subjective case focused on his good character, experience in custody, and mental health history — whether the indicative sentences and non-parole periods failed to reflect the objective seriousness of the offending CRIME — appeal against sentence — residual discretion — relevance of the offender’s experiences in custody — whether maintenance of public confidence in the administration of justice required re-sentencing

CIVIL PROCEDURE – settlement approval – whether settlement in the best interests of the children – where children’s father suffered a catastrophic brain injury caused by a parasitic infection – where claim for damages for nervous shock suffered by the children – settlement approved