Cases and authorities

CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors – Uniform Civil Procedure Rules 2005, r 7.18 – plaintiff brings proceedings for a declaration that he is the sole beneficial owner of property held legally in joint names – plaintiff’s lawyers raise an issue as to whether the plaintiff may need a tutor based upon their interactions with him – discussion of the Court making its own preliminary assessment of whether a party needs to be medically assessed before determination of the issue of whether the party is under a legal incapacity. CIVIL PROCEDURE — Parties – pro bono assistance to parties – Uniform Civil Procedure Rules 2005, r 7.36 – observations on the need for the pro bono scheme to be reserved for persons in genuine financial need.

SUCCESSION – grants of probate and special letters of administration – where proceedings commenced against second defendant who is now deceased – where the applicant seeks orders appointing him administrator ad litem to the second defendant’s estate – circumstances in which an administrator ad litem may be appointed – whether it is preferrable to appoint the applicant as a representative of the estate pursuant to r 7.10 of the UCPR – whether requirement for notice of application and need for administration bond and sureties should be dispensed with

EVIDENCE – telephone intercept – conversation between 17-year-old accused and his sister – consciousness of guilt – accused musing as to the prospects of being sent to gaol – where accused charged with affray in which another young person was killed – accused subsequently charged with murder – intractable neutrality – evidence excluded

APPEAL – Tribunal Decision – Residential Tenancy Agreement – Residential Proceeding – Calderbank offer – NCAT

SENTENCE – murder – offender found guilty by jury at trial – shooting of 9 year old girl to back and face –under care and authority – disposal of body in barrel in bushland – gravely serious offending – offender on parole at time of offence – no remorse – poor prospects of rehabilitation – question of whether a life sentence is mandated

ASSOCIATIONS AND CLUBS – registered club incorporated and limited by guarantee – whether directors were validly appointed – whether disciplinary action and suspension of member was validly initiated.

Civil – Negligence – Breach - Duty of care – Novel categories - liability of nominated supervisor at a day care centre under the Children (Education and Care Services) National Law 2010 (NSW)

PROCEDURE – stay of execution – whether any purpose served in application being heard prior to imminent hearing of summons seeking final relief

CRIME – Appeals – Appeal against sentence – Whether open to primary judge to find intent to kill – Whether disparate sentences between co-offenders consonant with parity principle – Whether sentence imposed manifestly excessive – Appeal dismissed

CRIME — Appeals — Appeal against sentence — Parity

CRIME – Appeals – appeal against sentence – parity – aid and abet in an attempt to possess a commercial quantity of cocaine – assessment of comparative culpability of co-offenders – extent of disparity not justified – appeal allowed – resentence

CIVIL PROCEDURE – Alternative dispute resolution – Referral to mediation – Defendant’s Motion to stay orders requiring the parties to mediate on the basis that the plaintiff has an outstanding criminal warrant–Court did not accept that an outstanding warrant is a reason for a party in civil litigation to be excused from participating in the civil proceedings in accordance with the Court’s order – Motion dismissed.

CIVIL PROCEDURE – Pleadings – application to amend defence by defendant insurer to particularise disclaimer of liability on the basis of non-disclosure CIVIL PROCEDURE – application for late service of evidence by defendant insurer – where evidence goes to an issue raised by the plaintiff but not pleaded

CORPORATIONS – winding up – application for directions under s 90-15 of IPSC and for judicial advice under s 63 of Trustee Act 1925 (NSW) – where fund held by liquidator represent moneys held on trust by company for 2,653 individual beneficiaries – where the majority of beneficiaries were owed relatively trivial amounts – where the costs of distributing the fund to all of the beneficiaries would exhaust the fund – whether liquidator justified in distributing fund to those beneficiaries with balances of over $100, on a pro rata basis – whether expenses of application and of distribution of funds should be paid from moneys held on trust

CONTRACTS — Rectification — Intention — Whether there was a common intention between the parties that the lease would commence when the lessee obtained all approvals necessary to operate a childcare centre CONTRACTS — Termination — Repudiation of contract — Whether the plaintiff repudiated the lease by demanding the payment of rent or the vacation of the property in reliance upon the express terms of the lease CONTRACTS — Remedies — Damages — Loss of chance — Appropriate discount to be applied to damages for loss of opportunity to earn profits from a business that never commenced operation

CIVIL PROCEDURE – Pleadings – Striking out – Application by first defendant that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) or, alternatively, the pleading be struck out pursuant to r 14.28 – Application by the State of New South Wales to be joined as a defendant – Pleading struck out for failure to meet minimum requirements – Application for summary dismissal denied

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

COSTS — Payable out of a fund — Deceased estate — Bases of quantification — Indemnity basis — Ordinary basis — Factors relevant to the court’s discretion when quantifying costs — Whether difference between ordinary and indemnity costs should be paid out of the deceased estate — Whether costs incurred proper and reasonable

CIVIL PROCEDURE — leave to file a cross-claim against third party — pleading allegedly defective — inconsistency — prejudice to cross defendant — leave granted — respondent to pay costs of application.

CONTRACTS — formation — intention to create legal relations — whether inference can be drawn from relevant surrounding circumstances that the parties intended to enter legal relations — where defendant contends that written agreements were invalidly executed — where parties in protracted negotiations — where defendant subsequently paid commission fees to the plaintiff in performance of its obligations under the agreements AGENCY — authority of agent — signing documents — whether written agreements invalidly executed by a single director — where single director had implied authority to execute the agreements — where implied grant of actual authority resulted from acquiescence of the board of directors AGENCY — property, stock and business agents — whether agent complied with governing legislation — whether commission fees recoverable by agent

APPEALS – s 83 Civil and Administrative Tribunal Act 2013 (NSW) – termination of retail lease covered by COVID-19 Regulation – application for leave to appeal – cross-appeal – “appeal on a question of law” – question of law raised in cross-appeal – appeal dismissed – cross-appeal allowed

SUCCESSION — Family provision — Claim by spouse for provision from the deceased’s estate under the Succession Act 2006 (NSW), Ch 3 – Where there was a loving and supportive marriage of over 40 years – Nature and quantum of provision to be made SUCCESSION — Family provision — Incidence of charge — Apportionment of burden — Where other beneficiaries of estate have markedly different personal situations – What would be fair and equitable in the circumstances

CRIME – murder – defence of mental impairment and cognitive impairment – special verdict where defence and prosecution agree that defence is available – unanimous medical opinion that a severe form of manic psychosis was present at the time of the offence – accused did not know that the act was wrong – temporary effect of alcohol intoxication negatived – special verdict of act proven but not criminally responsible returned

CONTRACTS – formation – vicarious performance – past consideration – conventional estoppel – binding agreement reached under fourth category Masters v Cameron (1954) CLR 353 – post-contractual conduct indicative of formation of a binding agreement – no “common assumption” preventing enforcement of agreement to attract conventional estoppel

COURTS AND JUDGES – Bias – Application for recusal – Actual bias – Apprehended bias – Application for recusal on the basis that the Judge had previously made findings adverse to the plaintiff – Whether the two previous judgments were grounds for establishing actual bias or a reasonable apprehension of bias – Recusal application refused as no actual bias or reasonable apprehension of bias was established.

EQUITABLE CHARGE – principles at [130]-[139] – debtor emails creditor offering a pledge of units in trust – creditor does not expressly accept pledge – equitable charge may be created unilaterally – debtor intended to create a charge. CONTRACTS – oral loan agreement – creditor imperfectly documents agreement – entire agreement clause – principles at [120]-[122] – creditor bound by written agreement. TRUSTS – unit trust – invests in foreign exchange (FX) trading – whether contract between trustee and investment manager – whether trustee can issue units to investment manager in lieu of fees – whether 50% shareholder of investment manager (aka the debtor) is the beneficial owner of 50% of units issued to investment manager – whether trustee obliged to process redemption request – trustee not obliged to recognise equitable charge – creditor entitled to permanent injunction to prevent debtor from defeating the charge.

PRACTICE AND PROCEDURE – hearings – adjournment – applicable principles – where fifth defendant had ample opportunity to put on defence to statement of claim and evidence in support – where short adjournment already granted to put on further evidence – where no evidence of any defence put on – whether in the interests of justice – application for further adjournment rejected – no question of principle REAL PROPERTY – where plaintiff seeks a declaration of its interest in property and funds owing to it pursuant to a loan agreement with first defendant – default events – failure to repay loan amount by first defendant – appointment of trustees for sale of property per s 66G of the Conveyancing Act 1919 (NSW)

COSTS — party/party — general rule that costs follow the event — consideration of Beoco principle — relevance of party’s decision not to adjourn — submissions as to “mixed outcome” — where plaintiff not required to elect between forms of relief until trial — where such election did not meaningfully alter case to be answered by defendant — where defendant would not have adopted different approach — decision not to adjourn treated as a neutral factor — no reasoned basis for departing from general rule — s 459M conditioning order not a dominant or separable issue — HELD — general rule prevails — defendant to pay plaintiff’s costs.

EMPLOYMENT LAW – contract – summary dismissal – whether the plaintiff engaged in misconduct of sufficient seriousness to justify summary dismissal – allegations of sexual harassment and bullying – whether allegation of sexual harassment proved – whether the plaintiff’s conduct amounted to bullying – relevance of the defendant’s workplace policies CONTRACT – contract of employment – contractual power to terminate without notice where employee engaged in “serious misconduct” – whether employer obliged to act reasonably in forming the view that employee had engaged in such misconduct DAMAGES – contract of employment – wrongful dismissal – whether absent the wrongful termination the plaintiff would have continued working for the defendant for the period alleged – whether the defendant would have exercised its power to terminate on notice at the end of the fixed term period

CONTRACTS – Formation – Appeal from the Local Court – Where defendant alleged in the Local Court that he had entered into agreement with firm of solicitors to provide his services in exchange for half of the fees received from client - Where Local Court Magistrate found in favour of the defendant that the alleged agreement had been entered into – Whether the plaintiff was denied procedural fairness by the Magistrate making an adverse credibility finding against its principal witness contrary to the rule in Browne v Dunn – Where witness was on notice that his version of events was in contest – No breach of the rule in Browne v Dunn established – No question of law arising – Leave to appeal refused – Summons dismissed

CRIMINAL PROCEEDINGS – Stated question – question of law arising on appeal to Land and Environment Court – offence attracting special executive liability – cause place to be used as waste facility without lawful authority – law providing for special executive liability of executives for offence by corporation – offence committed by local council – liability of general manager of council – law applies to and in respect of council in same way as applies to and in respect of corporation – whether special executive liability law applies to and in respect of council – whether law applies to and in respect of general manager

CORPORATIONS — Application to adjourn winding up application under Corporations Act 2001 (Cth) s 453Q to advance a restructuring — Whether it is in the interests of the company's creditors for the company to continue under restructuring rather than be wound up.

CRIMINAL LAW – bail – where bench warrant executed on witness who failed to appear on subpoena – where witness appeared earlier in the trial – bail granted to appear the next day – condition that witness travel directly to and from their home to the court complex

CRIMINAL LAW – criminal trial – discretionary discharge of individual juror – notice of surgery provided to the Court in week three of trial proper – no fault of juror – day surgery – medical advice provided to the Court after surgery – juror likely to be incapacitated as to be unable to serve until the jury returns its verdicts – likely further delay of trial – discharge of individual juror not opposed – discretionary factors – jury reduced to 13 in lengthy trial – trial to continue

SENTENCE – MANSLAUGHTER – guilty plea – death occasioned by mother disciplining daughter in context of cult membership – delay – 37 years since commission of offence – application of s 21B of the Sentencing Act – sentenced in accordance with sentencing patterns and practices at the time of offending – harm to father of deceased taken into account as harm to the community – disciplinary practices of cult – degree of indoctrination into cult – objective seriousness above mid-range – genuine remorse – reasonable prospects of rehabilitation – mental and physical health issues – SMAP custodial status – special circumstances found

CORPORATIONS — Receivers and managers — Appointment by court as receiver of property, assets and undertaking of trust — Application for retirement and replacement – Application for approval of remuneration — Where monies were previously paid into Court and there were declarations that trustee of trust is entitled to portion of those funds — Where one party opposed application for payment of remuneration out of funds held in court on basis that trust did not exist – the opposing party was estopped from raising this issue – the receiver’s remuneration was properly incurred and payable out of the funds held in Court

INCORPORATED ASSOCIATION – Whether disputed resolutions were valid. COSTS – Whether an order for costs should be made.

NUISANCE – NEGLIGENCE – Environmental – contamination – assessment of damages – exemplary damages

CIVIL PROCEDURE – Pleadings – Removal of the first named defendant by reason of the first named defendant’s death.

COURTS AND JUDGES – Application for recusal – Application dismissed – Plaintiff failed to demonstrate actual bias or apprehended bias – Written reasons to be published in due course – Plaintiff’s application to adjourn the hearing of substantive motions until after the publication of the full reasons – Application to adjourn granted.

CIVIL PROCEDURE — Default judgment — Where proceedings commenced by summons — Where defendant failed to file responsive evidence — Whether default judgment should be entered for relief under s 74MA Real Property Act 1900 (NSW), relief under the Personal Property Securities Act 2009 (Cth) or declaratory relief.

COURTS AND JUDGES – apprehended bias – claim for prerogative writ following refusal by Magistrate to disqualify himself – robust exchanges in Court – rude and bullying comments by counsel for the accused to and about the police prosecutor – patronising, lecturing tone adopted by counsel for accused directed to the Magistrate and police prosecutor – counsel for the accused’s overly sensitive response to objections taken – poorly framed questions by counsel in cross-examination of child – asserted cumulative effect of attitude of Magistrate to legal representatives of the accused – application that Magistrate disqualify himself on ground of apprehended bias – application refused by Magistrate – wrong test applied in the reasons – error of law in decision refusing disqualification application – test for actual bias articulated rather than test for apprehended bias – fair-minded lay observer – apprehended bias established – a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge is to decide – “double might” test is a relatively low bar – prohibition and certiorari granted

ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – materiality – amendment to the Kosciuszko National Park Wild Horse Heritage Management Plan to permit aerial shooting of wild horses in the Kosciuszko National Park - proceedings for an injunction and an order in the nature of certiorari relating to the amendment of the Plan – whether representations made by the Secretary of the Department to the Minister were misleading and/or contained a material error causing the Minister to commit jurisdictional error – where animal welfare was a mandatory consideration but not the only nor the most significant consideration – where animal welfare considerations were taken into account by the Minister – where Minister was provided with relevant documents and information by the Secretary – no jurisdictional error ADMINISTRATIVE LAW – ground of review other than procedural fairness – unreasonableness – general test – whether the decision of the first defendant to approve aerial shooting in all of Kosciuszko National Park lacked an evident or intelligible justification and was therefore unreasonable – where the higher standard of legal unreasonableness in Adelaide City Corporation was the appropriate test – where aerial shooting would comply with relevant animal welfare legislation – where standard operating procedure would be developed with the RSPCA and relevant specialists and adapted for use in Kosciuszko National Park – not the role of the Minister to decide on the operational matters of aerial shooting – decision not unreasonable ADMINISTRATIVE LAW – ground of review other than procedural fairness – whether the method of aerial shooting being deployed is inconsistent with requirements to accord with national standard operating procedures, animal welfare assessments and animal welfare legislation – where national standard operating procedures does not prohibit aerial shooting – where previous national standard operating procedures were inconsistent with scientific developments – where implementation of aerial shooting is not rendered invalid or unlawful by the method of implementation – where evidence established that an animal welfare assessment had been carried out - method of aerial shooting not inconsistent with requirements ADMINISTRATIVE LAW – standing – equitable remedies – special interest – associations and organisations – whether the plaintiff had a special interest in bringing the proceedings – where plaintiff has existed for 20 years and its purpose relates to the welfare and heritage of the Kosciuszko National Park – where plaintiff was significantly involved in the making of the Kosciuszko Wild Horses Heritage Act 2018 (NSW) – where plaintiff was identified as a major stakeholder – common law principles not excluded by s 193 of the National Parks and Wildlife Act 1974 (NSW) – plaintiff had standing to bring the proceedings CIVIL PROCEDURE – time – extension of time – the claims brought by the plaintiff were subject to a limitation period of 3 months after the date of decision – claims were brought 6 months after the date of decision – whether an extension of time should be granted – where the matter is of significant public interest and raises sufficiently arguable issues – where there was little to no prejudice to the defendants – where the delay was to the benefit of the defendants – extension of time granted

CRIMINAL LAW – conviction appeal – applicant pleaded guilty to charges of attempting to manufacture a pistol without permit or licence – no evidence to establish that offences committed – miscarriage of justice if not allowed to withdraw pleas of guilty – convictions quashed – aggregate sentence relating to these and other offences set aside – whether matter should be remitted to the District Court – matter remitted for resentence

CRIME – appeals – appeal against sentence – severity appeal – dishonestly obtain financial advantage by deception offences – offences committed against employer – self-represented applicant – where applicant does not squarely raise legal error, manifest excess or miscarriage – where applicant concedes he cannot identify an error of law – where applicant candidly referred to his own responsibility and asked for a degree of leniency – not a basis on which this Court can intervene EVIDENCE – question as to new evidence sought to be relied upon by applicant on appeal – where there is no evidence linking new evidence to commission of offences – where this Court not persuaded that a miscarriage of justice was occasioned as a result of the absence of the new evidence before the sentencing judge – established principles – leave to rely upon new evidence refused CRIME – appeals – appeal against sentence – Form 1s – where the Court raised with counsel for the Crown a concern with respect to the manner in which offences on the Form 1s were dealt with – where Crown did not oppose the applicant being granted leave to rely on a complaint of this nature in the absence of an articulated ground of appeal – error found with respect to Form 1s – parties led sentencing judge into error – sentencing judge could not correctly undertake the process of determining an appropriate aggregate sentence due to lack of information – sentencing discretion miscarried – sentencing discretion exercised afresh

CRIME – sentencing – appeal by Crown against sentence – sexual intercourse without consent – where offending occurred in circumstances of geographical isolation – where age and power differential between victim and respondent – whether sentence manifestly inadequate – whether residual discretion should not be exercised – appeal allowed

CRIME – appeal against sentence – domestic violence offences – application of principles in Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37 – whether weight given to childhood deprivation wrongly reduced by sentencing judge – relevance of considerations of the seriousness of the offence CRIME – appeal against sentence – leave to appeal out of time sought

COSTS — party/party — mixed outcome — general rule that costs follow the event — discretion to apportion costs ­— where applicant was not entirely successful — application of impressionistic, broad-brush approach — HELD — applicant to receive costs with percentage reduction to reflect mixed outcome on substantive “event”

CIVIL PROCEDURE – Discovery – order for general discovery – no appointment of referee CIVIL PROCEDURE – Subpoenas – cost of compliance with subpoenas – power to disallow certain costs CIVIL PROCEDURE – Freezing order – variation of freezing orders

COSTS - Cost assessment – Costs assessors – Directions to costs assessors – Determination