Cases and authorities

CRIMINAL LAW – murder – trial by judge alone – circumstantial case – where Amber Haigh disappeared in June 2002 – disappearance less than five months after the birth of her baby – where her body has never been found – whether circumstantial evidence establishes that she is dead, and that the death was caused by the accused – joint criminal enterprise – delay – forensic disadvantage – s 165B Evidence Act warnings – indispensable intermediate facts – circumstantial case

CONSUMER LAW – Misleading conduct under statute – Misleading or deceptive conduct – Whether positive representations made as to contamination on land – Whether there was a reasonable expectation of disclosure – Whether disclosures made amounted to half-truths CONTRACTS – Construction – Whether primary judge erred in construing “as far as possible” in the context of an obligation to assist in due diligence process – Whether vendor under positive obligation to disclose all matters which may be relevant – Appeal dismissed with costs

CIVIL PROCEDURE – Court of Appeal – Objection to competency of appeal – Where leave to appeal required but not sought COSTS – Costs of appeal which dismissed as incompetent – Minor and inconsequential delay in service of motion – No reason costs not to follow event

COSTS – security for costs – whether there is reason to believe that the plaintiff will be unable to meet a costs order were it unsuccessful

CIVIL PROCEDURE — parties — joinder — representative proceedings — interlocutory dispute between plaintiffs and litigation funder — plaintiffs seek to join litigation funder as a defendant CIVIL PROCEDURE — representative proceedings — separate determination of questions — where appropriate — question of whether it is appropriate in this case for a dispute between litigation funder and plaintiffs to be determined at interlocutory hearing or whether proceedings should be stayed and separate proceedings initiated CIVIL PROCEDURE — representative proceedings — conduct of proceedings — meaning and application of the court’s power under Civil Procedure Act 2005 (NSW) s 183 — whether the court has power to adjudicate the interlocutory dispute by relying on the power in s 183 — whether it is both appropriate and necessary to ensure that justice is done in these proceedings by determining the dispute between the plaintiffs and the litigation funder COMMERCIAL ARBITRATION — arbitration agreement — stay of proceedings — whether arbitration agreement is null, void, inoperative or incapable of being performed — whether cl 14 of the Funding Agreement is an “arbitration agreement” within the meaning of that expression in s 7(1) of the Commercial Arbitration Act 2010 (NSW) EQUITY — fiduciary duties — fiduciary relationships — where the litigation funder attempts to direct and control proceedings — where lead plaintiffs in representative proceedings have the conduct of the proceedings on behalf of the class members and owes fiduciary obligations to them EQUITY — trusts and trustees — beneficiaries — right to call for distribution of trust property — funds deposited to plaintiffs’ lawyers’ trust account by litigation funder — whether plaintiffs’ lawyers hold money on trust on behalf of the plaintiffs or on behalf of the litigation funder

DECLARATIONS – whether declarations should be made recording, in summary form, the conclusions reached by the Court ORDERS – whether judgment should be entered against the defendants jointly and severally

JUDICIAL ADVICE – s 55, James Hardie (Former Subsidiaries) Winding Up Act 2005 (NSW) – s 63, Trustee Act 1925 (NSW) – principles at [5]-[10] – James Hardie establishes trust fund to pay asbestos claims against former subsidiary, Amaca, over 40 years – trust deed excludes payment of claims to the extent that claims have been recovered under a “Worker’s Compensation Scheme or Policy” – workers employed by third-party employers – workers obtain judgments against Amaca for dust diseases –WorkCover Queensland asserts charge over damages to recover workers’ compensation paid – whether trustee justified in not paying damages in light of exclusion and asserted charge. INTERPRETATION – complex “tripartite arrangement” comprising statute, contract and trust deed – principles at [14]-[26] – to be read together harmoniously – primacy of statute – definitions within definitions – construe the documents as a whole. TRUSTEES – powers – absolute discretion – large number of potential beneficiaries of trust – principles at [140]-[142] – mechanisms in tripartite arrangement to ensure sustainability and longevity of trust fund to meet future asbestos claims – trustee only has power to pay gap between workers’ compensation paid and damages awarded – justified in not paying gap given assertion of charge. WORDS AND PHRASES – “recovered” at [120].

ADMINISTRATIVE LAW – Reviews and appeals – Judicial review – Disciplinary decisions – Student misconduct – Application of rule or policy – Jurisdictional error – Where plaintiff seeks Certioari and Mandamus – Summons dismissed

CONTRACTS — Formation — Agreement — Intention to make concluded bargain

COSTS – informal will – whether testator’s failure to execute informal will “caused” the litigation – principles at [7]-[13] – overriding purpose of Civil Procedure Act informs assessment of reasonableness – plaintiff told by testator that he had changed his will – plaintiff had reason to think testator no longer wished to leave his estate to her, given separation and family law settlement – plaintiff provided with evidence in support of informal will before proceedings commenced – plaintiff sought to admit earlier will to probate – ran expansive case in adversarial manner for financial gain – plaintiff’s conduct unreasonable.

APPEAL AND REVIEW – appeal from the Local Court – contract – contract for the construction of a lift in residential premises – whether Magistrate erred by failing to make a finding as to the commencement date of the contract – whether Magistrate erred by finding time for performance ran from initialling of the contract – whether Magistrate erred in finding no repudiation by Lift Shop – whether Magistrate failed to take into account critical evidence – whether Magistrate erred in finding there was no contractual obligation to install – whether Magistrate failed to provide adequate reasons CROSS CLAIM – whether Magistrate erred in finding that the cross-claimant was entitled to recover the fourth instalment – chargebacks – whether Magistrate erred by finding that the third cross-defendant was a “third-party payer” – whether Magistrate erred by failing to find that the causal link was broken – whether Magistrate erred by finding cross-claimant did not have the opportunity to dispute the chargebacks – whether Magistrate erred in finding cross-claimant was entitled to first and second instalments – whether cross-defendants were denied procedural fairness – whether new grounds of appeal raised

CIVIL PROCEDURE – Representative proceedings – Conduct of proceedings – Application by the defendant to extend time for service of statements – Where the defendant failed to comply with court orders regarding the service of evidence – Where the defendant provided inadequate explanation for the delay – Whether the dictates of justice warranted an extension of the time to serve the statements – Extension granted for statement by a key witness due to disadvantage and prejudice to the defendant if it was not permitted to rely on the statement – Motion otherwise dismissed.

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Motion to set aside filed before entry of judgment or order — Whether Court failed to consider significant submission — Uniform Civil Procedure Rules 2005 (NSW) r 36.16

Money Claim – Guarantee – default – loan agreement

CIVIL PROCEDURE – protective jurisdiction – administration of estates – where NSW Trustee and Guardian has been appointed as the financial manager of the plaintiff’s estate pursuant to Sch 1 ss 3 and 5 of the NSW Trustee and Guardian Act 2009 (NSW) – application for revocation of declaration that the plaintiff is incapable of managing their affairs pursuant to s 86 – capacity of person under guardianship order to manage their financial affairs – capacity governed by nature and purpose of protective jurisdiction

NEGLIGENCE – Jurisdiction – Admiralty – Sailboat – Keel – Joining of third Defendant – company from USA -- Amended Statement of Claim – capsizing –– proper pleadings --

HIGH RISK OFFENDER – final hearing – application for an extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – consideration of factors in s 9 of the Crimes (High Risk Offenders) Act 2006 (NSW) – single index offence – unacceptable risk of further serious offending if not supervised under an extended supervision order – duration of extended supervision order – disputed conditions – condition not to threaten or abuse departmental supervising officer – extended supervision order made with conditions for a period of 3 years

HIGH RISK OFFENDERS – Preliminary Hearing – application for an interim supervision order – sexual offender – risk factors of substance abuse and impulsivity – history of offences committed shortly after release to parole – limited time spent in community – dispute over appropriateness of electronic monitoring condition – consideration of statutory criteria – application granted

OCCUPATIONS – medical practitioners – professional negligence – bariatric surgery – patient discharged with intra-abdominal haematoma – peer professional opinion – whether discharge widely accepted as competent professional practice by peer professional opinion in Australia – Civil Liability Act 2002 (NSW), s 5O

SUCCESSION – Contested grant of Thai will – Executed in circumstances where testatrix ill with cancer – Primary judge held testator had capacity – Relevance of absence of medical records suggesting a lack of capacity – Primary judge taking into account universe of evidence – Suspicious circumstances – Whether established – Desirability of pleading or particularising suspicious circumstances

Statutes – Construction – Statutory consequence of non-compliance with statutory condition of exercise of power – Where s 16(1) of Public Works Committee Act 1914 (Tas) ("Act") stipulates conditions precedent to commencement of public work proposed to be undertaken by Tasmanian Government department or State authority – Conditions precedent that public work referred to and reported upon by Parliamentary Standing Committee on Public Works ("Committee") – Where Tasmanian Government Department of State Growth proposed new interchange be constructed – Where proposal referred to and reported upon by Committee – Where person with claimed interest in adjacent land brought proceeding against construction company in Supreme Court of Tasmania alleging commencement of road work contravened s 16(1) of Act as different from proposal referred to and reported upon by Committee – Where Attorney-General for Tasmania joined as defendant to proceeding – Where Attorney-General sought order that statement of claim be struck out or proceeding be dismissed because statement of claim failed to disclose cause of action in that no justiciable issue before Court or because adjudication by Court would contravene privilege of Tasmanian Parliament – Whether observance of conditions precedent to commencement of public work stipulated by s 16(1) of Act an obligation enforceable by a court. Words and phrases – "conditions precedent", "duty", "exclusive cognisance of Parliament", "impeached or questioned", "intra-mural", "justiciable controversy", "non-compliance", "non-justiciable", "parliamentary privilege", "political accountability", "public obligation", "public work", "public works committee", "referred to and reported upon by", "responsible government". Bill of Rights 1688 (1 W & M sess 2 c 2), Art 9. Public Works Committee Act 1914 (Tas), ss 15, 16, 17.

CRIME – Appeals – Appeal against sentence – By Crown against inadequacy – Where respondent has pleaded guilty to 14 domestic violence offences against former de-facto partner – Where sentencing judge made guarded findings regarding the respondent’s prospects of rehabilitation – Whether sentencing judge paid sufficient regard to the sentencing principles of specific deterrence and community protection - Whether sentencing judge engaged in “double counting” in regard to the promotion of the respondent’s prospects of rehabilitation – Manifestly inadequate sentence established – Respondent resentenced

ASSESSMENT OF DAMAGES – where plaintiff in the court below seriously injured in a fall on a building site – whether plaintiff contributed by his own negligence to his loss and damage or was merely inadvertent when performing work duties – whether plaintiff retained residual earning capacity – whether damages awarded for future economic loss, future domestic assistance and out-of-pocket expenses were manifestly excessive TORTFEASORS – contribution between tortfeasors – whether trial judge erred in assessment of respective liability between occupier of building site and plaintiff’s employer CROSS-APPEAL – damages for non-economic loss – whether trial judge erred in assessment of percentage of a most extreme case – whether plaintiff established that gratuitous attendant care services would not have been provided but for his injury

Practice and procedure – Adequacy of reasons – Public interest immunity – Where s 130 of Evidence Act 2008 (Vic) required weighing of competing public interests for and against disclosure of information or documents – Where first respondent charged with murder – Where applicant resisted disclosure of documents concerning an informer – Where disclosure likely to lead to identification of informer and seriously risk informer's safety – Where primary judge found some documents likely to be of substantial assistance to first respondent's defence – Where primary judge's reasons consisted of five paragraphs – Whether primary judge complied with obligation to give adequate reasons by not disclosing process required by s 130(1). Words and phrases – "adequate reasons", "balancing exercise", "disclosure", "document", "forensic significance", "informer", "public interest", "public interest immunity", "weighing process". Evidence Act 2008 (Vic), ss 130, 131

CORPORATIONS - application to set aside creditors’ statutory demand under Corporations Act 2001 (Cth) s 459G – where debt identified in demand is the subject of proceedings brought by the Defendants in the Supreme Court of Queensland – where conflicting evidence regarding the oral agreement alleged to give rise to the debt – whether a genuine dispute is established – whether the statutory demand should be set aside for some other reason

ADMINISTRATIVE LAW – parole – where plaintiff is a prisoner serving the balance of his parole - revocation of parole by Parole Authority – complaint as to effective date of revocation set by Parole Authority – expiry date for the sentence following arrest on warrant issued by Parole Authority – rights of review under the Crimes (Administration of Sentences Act) 1999 (NSW) – relevant law and reasonableness - whether so unreasonable as to amount to jurisdictional error - whether this Court should remit for reconsideration – meaning of “at large” – plaintiff’s amended summons dismissed

Criminal practice – Questions of law arising before trial – Questions of law referred to Court of Appeal – Case stated – Where accused charged with sexual offences against child under 16 years – Where judge and counsel for both prosecution and accused met with complainant before complainant gave evidence at "special hearing" – Where complainant was a minor – Where s 389E(1) of Criminal Procedure Act 2009 (Vic) provides that "[a]t a ground rules hearing, the court may make or vary any direction for the fair and efficient conduct of the proceeding" – Where accused not present at meeting and meeting not recorded – Where meeting occurred consequent to recommendation of intermediary appointed under s 389J(1) of Criminal Procedure Act 2009 (Vic) – Whether meeting authorised by s 389E(1) – Whether meeting inconsistent with principle of open justice – Whether meeting a fundamental irregularity – Whether as a result of meeting fair‑minded lay observer might reasonably apprehend that judge might not bring impartial mind to resolution of any issue required to be decided in proceeding. Words and phrases – "apprehension of bias", "exercise of judicial power", "fair and efficient conduct of the proceeding", "fair‑minded lay observer", "fundamental irregularity", "ground rules hearing", "hearing", "impartiality", "intermediary", "introductory meeting", "minor", "principle of open justice", "proper administration of justice", "special hearing", "substantial miscarriage of justice". Charter of Human Rights and Responsibilities (Vic), ss 24, 28, 32. Criminal Procedure Act 2009 (Vic), Pts 5.7, 8.2, 8.2A; ss 246, 276, 330, 389B, 389E, 389I, 389J. Open Courts Act 2013 (Vic), ss 28, 30.

Companies – Winding up – Insolvency – Appeal against making of pooling order under s 579E(1) of Corporations Act 2001 (Cth) – Whether gateway requirement in s 579E(1)(b)(iv) for making of pooling order satisfied – Whether alleged chose in action owned jointly and severally by two companies is particular property used, or for use, in connection with joint business, scheme or undertaking – Whether alleged chose in action is used or available for use by two or more companies – Whether alleged chose in action concerning sale agreement for disposal of joint business has sufficient connection to undertaking or carrying out of joint business – Whether alleged chose in action arose upon entry into sale agreement – Where company reinstated after deregistration – Whether s 601AH(5) of Corporations Act deems company to have undertaken activities during period of deregistration. Words and phrases – "carrying on of the joint business, scheme or undertaking", "chose in action", "deregistration", "gateway requirement", "group of 2 or more companies", "joint ownership or operation of property", "just and equitable", "material disadvantage to any eligible unsecured creditor", "money had and received", "necessary connection", "ownership or operation of any asset jointly or for joint benefit", "particular property", "pooling order", "reinstatement", "sufficient connection". Corporations Act 2001 (Cth), ss 579E(1), 579E(1)(b)(iii), 579E(1)(b)(iv), 579E(2), 601AD(1), 601AD(2), 601AH, 601AH(5).

CRIMINAL PROCEDURE – Trial – Application by accused’s father to discharge order made by McNaughton J excluding him from the court and court precincts until verdict is taken – Where allegations against the accused’s father include attempts to intimidate important Crown witness - Application to discharge order refused

CORPORATIONS – Winding up – Liquidators – Application by liquidator to determine remuneration –Whether work performed by liquidator was necessary and properly performed

EQUITY – estoppel – equitable proprietary estoppel by encouragement – whether alleged representations were made – finding that alleged representations were not made – whether representations had the requisite degree of precision – finding that representations were too ambiguous –where representations could not have allowed plaintiff to form an assumption of proprietary interest – whether plaintiff suffered detriment – where plaintiff would be in the same position had the representations not been made – where detriment suffered would be out of proportion to representation made – plaintiff’s claim dismissed FAMILY LAW – claim by carer against estate of deceased under Property (Relationships) Act 1984 (NSW) – whether parties were in a “close personal relationship” – whether parties were in a “domestic relationship” – whether plaintiff provided domestic support and personal care to the deceased for “fee and reward” – where domestic support and personal care was provided for fee or reward and did not arise out of a close personal relationship between the parties – where plaintiff received free board and lodging from deceased as well as something to do – where not just and equitable to exercise Court’s discretion to make orders under s 20 – plaintiff’s claim dismissed SUCCESSION – family provision claim – claim by carer under Succession Act 2006 (NSW) Ch 3 – adequacy of provision – where plaintiff lived with deceased and provided domestic support and personal care – where period of support and care provided by plaintiff to deceased in dispute – where plaintiff was not living with deceased at the time of her death – plaintiff is not an eligible person under s 57(1)(f) – where domestic support and personal care was provided for fee or reward – where there are no factors warranting – where there are no social, domestic or moral obligation on deceased to make provision for plaintiff – plaintiff’s claim dismissed

EQUITY – estoppel – equitable proprietary estoppel by encouragement – claim by deceased’s daughter-in-law – whether alleged representations by the deceased promising interest in family homestead were made after plaintiff loaned money to deceased – finding that representations were not made – even if representations had been made, they lacked the requisite degree of precision – no detriment suffered SUCCESSION – family provision claim – claim by adult children under Succession Act 2006 (NSW) Ch 3 – where partnerships were set up in the family to farm rural properties – where family agreement had been entered into to divide assets following divorce of deceased and former wife SUCCESSION – family provision claim – where provision for adult child in one proceedings not adequate – where adult child had considerably contributed unpaid time and labour to family partnership – where community expectations would mean a just and wise testator in the position of the deceased would have included adult child in testamentary bounty – finding that further provision should be made SUCCESSION – family provision claim – approval of release under family agreement – plaintiff enters into family agreement with deceased and family members whereby deceased promises to transfer assets to plaintiff – deceased’s obligations under family agreement were not completely fulfilled and a second agreement was entered into which was also not completely fulfilled – no basis to set aside the release in the family agreement – whether release should be approved under s 95 of the Succession Act 2006 (NSW) – where effluxion of time since family agreement, non-compliance with family agreement, lack of enforcement against other siblings, and disparity of financial position are all factors which weigh against approval being given – approval of release declined

NOTICE TO ADMIT FACTS – purpose – cost incentives – principles at [33]-[38] – not entitled to indemnity costs before date of notice – Kohari v NSW Trustee followed. COSTS – dissolution of partnership – principles at [52]. CALDERBANK OFFERS – whether complexity of proceedings precluded acceptance of offer or indemnity costs for non-acceptance – principles at [55], [69]-[72] – multi-issue proceedings may require a complicated offer to resolve all aspects of the dispute – whether offeree achieved better outcome than offer – whether unreasonable to reject offer – complex inquiry – at the time of the offer, offeree did not even dispute offeror’s evidence on key issue on which other issues would likely turn – indemnity costs ordered.

LEGAL PRACTITIONERS — Disciplinary proceedings — Misappropriation of trust accounts — Practitioner convicted of three offences under s 192E(1)(b) 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

CRIME — Appeals — Application for leave to appeal against sentence — Commonwealth offence — adverse credit findings about offender — extra-curial punishment

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch — No issue of principle

MEDICAL NEGLIGENCE – evidence – proposed late tender of medical report – where prejudice to defendant – application refused

TAXES AND DUTIES – income tax – collection and recovery of tax – unpaid tax liabilities and penalties

CONSUMER LAW – Australian Consumer Law (ACL) ss 18 and 29 – Australian Securities & Investments Commission Act 2001 (Cth) (ASIC Act) ss 12DA and 12DB – Misleading or deceptive conduct, false or misleading representations in connection with the supply or possible supply of services or in connection with the promotion of the supply or use of services – Conduct in relation to financial services that is misleading or deceptive – Claim for damages against a real estate agent who made misrepresentations to the plaintiffs which induced them to purchase a series of real properties off-the-plan from a developer and to release their deposits on unsecured loan to the developer at a high interest rate for its own use – Developer was insolvent at all material times and was operating a fraudulent Ponzi scheme – Defendant denies having made the representations complained of - Defendant claims that he was acting as a mere conduit in the provision of information from the developer or its CEO – Defendant claims that he did not cause the plaintiffs’ loss because of the presence of various disclaimers in contractual and other documents seen by the plaintiffs STATUTORY DEFENCES – Civil Liability Act s 34 – ACL s 236 – ASIC Act s 12GF – Civil Procedure Act ss 64 and 65 - Defendant raises proportionate liability defence on the basis that all of the companies in the group of which the developer was part of and their CEO were concurrent wrongdoers – Defendant claims that certain of the causes of action relied on by the plaintiffs are statue barred HELD – Defendant engaged in conduct which was misleading or deceptive or made false or misleading representations in connection with the supply or possible supply of services or in connection with the promotion of the supply or use of services – Because of the conduct of the defendant the plaintiffs suffered loss – The presence of disclaimers did not affect their reliance or play any part in the cause of their loss – Defendant not a mere conduit – Proportionate liability defence not available, amongst others, because it does not apply to claims under ACL s 29 or ASIC Act s 12DB – Defence inadequately pleaded – The developer and related companies and CEO were not a cause of the plaintiffs’ loss – Limitations defences not available PRACTICE AND PROCEDURE – Observations concerning the practice in NSW of deposing in affidavits to conversations using the first person

JUDICIAL ADVICE – s 63 Trustee Act 1925 (NSW) – principles at [72]-[78] – importance of trustees seeking advice – controversy or breach of trust does not preclude advice being given – trustee in breach of rules for self-managed superannuation fund (SMSF) – rules require deceased member’s legal personal representative to be appointed as trustee or director of corporate trustee – deceased’s legal personal representative is NSW Trustee and Guardian (NSWTG) – NSWTG appointed accountant as director of corporate trustee instead – as a consequence, SMSF becomes non-compliant with Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) – trustee and NSWTG disclose non-compliance to Commissioner of Taxation (ATO) and obtain indemnity – whether advice should be given – the fact that the trustee is in breach is a reason to seek advice – in interests of trust estate to provide direction so that trust property may be administered. DEATH BENEFITS – whether trustee justified in proposed distribution of death benefit from SMSF – exercise of a trustee’s discretion, principles at [92]-[96]. DEFENDING PROCEEDINGS – whether trustee justified in defending proceedings for its removal as trustee – justified where trustee’s actions sought to be impugned. REMUNERATION – director appointed by NSWTG cannot be remunerated without making SMSF non-compliant – s 17A(2)(d), SIS Act – whether director can be paid by the deceased member’s estate instead – meaning of “any person” – broad language – includes payment by estate – given disclosure to ATO of proposed payment of director and indemnity given, justified in paying director from the fund to the extent that his fees do not come within exemption in s 17B(2) – Re Application of Ellasil [2023] VSC 69 considered.

TAXES AND DUTIES — Payroll tax — Liability — Contractors —Payroll Tax Act 2007 (NSW) ss 31, 32(1)(b), 32(2)(a), 32(2)(b), 32(2B), 35(1) — Taxation Administration Act 1996 (NSW) s 97 — Application to review a decision of the Chief Commissioner of State Revenue disallowing the plaintiff’s objection to six payroll tax assessments issued by the Chief Commissioner — Application to remit premium component of interest imposed on the plaintiff by the Chief Commissioner — Plaintiff operates a rideshare system which puts riders who wish to be transported by motor vehicle with drivers offering the service of picking them up and driving them to their destination — Whether plaintiff’s contractual arrangements with drivers is a relevant contract within s 32(1)(b) — Whether the plaintiff comes within any of the exclusions in s 32(2) — Whether amounts paid or payable by the plaintiff to drivers are amounts paid for or in relation to the performance of work under the relevant contract — HELD — The contractual arrangements are a relevant contract — The plaintiff does not come within any of the exclusions in s 32(2) — The amounts paid by the plaintiff to drivers were not paid for or in relation to the performance of work under the relevant contract and are not taken to be wages paid or payable by it — Consequently, payroll tax is not payable on those amounts — FURTHER HELD — if payroll tax was payable, premium interest component should be remitted in full

CRIME – appeals – appeal against conviction –murder – death by thermal injury – where Crown relied on alternative acts causing death – extent to which jury unanimity required – where standard unanimity direction given – where direction given with respect to alternative intentional acts causing death – whether failure to direct jury as to requirement of unanimity as to specific act causing death

CRIME – Appeals – Appeal against conviction –whether miscarriage of justice arose out of conduct of Crown prosecutor – right to silence – consciousness of guilt reasoning – drawing of inferences unavailable on evidence – whether trial judge erred directing the jury it could rely on consciousness of guilt reasoning arising from the applicant’s demeanour and answers in ERISP – whether tendency directions amounted to a denial of procedural fairness appeal – appeal dismissed CRIME – Appeals – Appeal against sentence – multiple sexual assaults of child aged 10 years – whether sentencing judge erred in incorporating elements of s 66EA into sentencing decision – De Simoni principle – appeal dismissed

CRIME – appeals – appeal against sentence – totality – whether sentencing judge erred in the application of the principles of totality – sentencing for multiple domestic violence offences – antecedent and current offences – determination involves exercise of discretion – non-parole periods – departure from statutory norm – whether reflective of error – applicant’s argument flawed – no foundation to complaint – leave to appeal granted – appeal dismissed

CRIME — appeals — appeals against conviction — murder — whether miscarriage of justice — whether Liberato direction complete or effective — where evidence of applicant from previous trial tendered — where both parties rely on evidence of applicant —trial judge directions sufficient in particular circumstances — no miscarriage of justice

CRIME — Appeals — Appeal against conviction — Unreasonable verdicts — Child sex offences

CRIME — Appeals — Appeal against sentence — Application for leave to file notice of appeal out of time — Application for leave to appeal — Aggravated sexual intercourse without consent — Where circumstance of aggravation was that the complainant was under the age of 16 years — Whether sentencing judge erred in finding the complainant to be vulnerable and the offence to be aggravated by that fact — Whether the sentence was manifestly excessive

EQUITY — Trusts and trustees — Unit trusts — Construction of trust deed — Whether individual unit holder had right to terminate the trust — Whether individual unit holder had right to trust capital CORPORATIONS — Members’ rights and remedies — Oppression — Standing — Whether conduct was oppressive to, unfairly prejudicial to, or unfairly discriminatory against member — Deadlock as to the affairs of the company — Breakdown in mutual trust and confidence — Whether the trust should be wound up CONTRACTS — Formation — Whether an agreement was reached or representations were made founding an estoppel that if one party sought to exit the trust, the underlying assets of the trust would be sold CIVIL PROCEDURE — Appointment of receiver — Whether the Court should appoint a receiver to the trust pursuant to s 67 of the Supreme Court Act 1970 (NSW) or the inherent jurisdiction of the court CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment — Tendency to cause prejudice to the defendant

JUDGMENTS AND ORDERS — Amending, varying and setting aside — For irregularity — Where orders made under misapprehension of fact

CIVIL PROCEDURE – hearing – adjournment –where Court has ordered that neither party may file a motion without leave – where plaintiff makes application for leave to apply to vacate hearing date