Cases and authorities

PRACTICE AND PROCEDURE – costs – determination of final orders – practice and procedure – no question of principle

EVIDENCE — PRACTICE AND PROCEDURE — affidavit evidence — Harman undertaking — implied obligation — affidavits filed and served but not read in previous proceedings — where plaintiffs seek to use relevant affidavits in present proceedings — application of implied obligation to affidavits prepared and filed pursuant to court-ordered timetable — consideration of statement of principle in Hearne v Street and subsequent interpretation — where requisite element of compulsion absent — HELD — affidavits not subject to implied obligation but if they were then release would be granted

EQUITY – interlocutory application for interim relief pending final hearing – injunction sought to restrain defendant from dealing with property – whether serious question to be tried – where extreme generality of evidence means assessment of strength of prima facie case is unclear – where significant delay in seeking interim relief does not favour the balance of convenience EQUITY – interlocutory application for interim relief to preserve material brought into existence while executing search orders – where search orders are discharged – where defendant consents to documentation and collection of information after stay of search orders

CIVIL PROCEDURE – interim preservation – freezing orders – where prima facie or good arguable case – where not a substantially significant risk of dissipation of assets – application for freezing orders dismissed – no question of principle

CRIME – proceeds of crime – where proceedings brought by the Australian Federal Police under the Proceeds of Crime Act 2002 (Cth) – monies held in various accounts with Australian banks – where those monies are proceeds of crime – restraining orders made – where applicants sought recompense – exclusion orders – where this Court has previously considered the alternative methodologies for the division of funds –where most appropriate methodology was applied to each account CRIME – proceeds of crime – where subsequent to hearing but prior to judgment further applicants came forward claiming an interest in the restrained funds – where previous orders had been stayed for 28 days – where orders sought by new applicants will affect previous orders made – further hearing dispensed with by agreement of the parties – new applications determined on the papers – interest determined by application of same method of distribution determined to be appropriate for each particular account in previous judgment – stay of orders discharged – orders made in favour of new applicants – orders previously made varied to adjust the interests of original applicants

APPEALS – civil - appeal from Local Court – where matter commenced in Small Claims Division – where matter transferred to General Division – where appeal arises from prosaic event – motor vehicle accident – damages – costs – where respondent accepts liability – where applicant seeks to litigate asserted errors but does not press any entitlement to his original claim – where appeal with respect to damages and interest concerns a very small amount – amount dwarfed by costs involved in continuing litigation – fantastical quality to at least one of applicant’s claims – several claims without merit or substance – leave to appeal granted – appeal dismissed EVIDENCE – expert evidence – competing opinions of respective experts – conclave – joint experts report – issue as to legitimacy of invoice for repairs to vehicle – whether invoice can be deemed a “starting point” or benchmark for cost of repairs – “broad axe” approach - where it is unclear “who actually repaired the van, or who that person worked for” CIVIL PROCEDURE – adjournment application – adjournment refused – where counsel withdrew and plaintiff unrepresented – an unusual turn – the solicitor for the applicant appeared

COSTS — No issues of principle

REAL PROPERTY – caveats – application for leave to lodge a caveat – whether lapsing notice was served – whether clause of contract gives rise to caveatable interest or non-monetary obligations – whether Registrar-General has a duty to determine the validity or correctness of material evidencing service of a lapsing notice

CIVIL PROCEDURE — Medical examinations — Where defendant seeks further examination of plaintiff

CIVIL PROCEDURE — freezing orders — ex parte application — application for freezing order — basis for freezing order established — orders made

CRIME — proceeds of crime — Proceeds of Crime Act 2002 (Cth) — application to exclude property from restraining orders — whether Official Trustee was negligent in the management of the property

CRIME – proceeds of crime – Proceeds of Crime Act 2002 (Cth) – application for a forfeiture order – whether real property and monies in bank accounts is proceeds of crime – chose in action – whether chose in action is proceeds of crime or instrument of serious offence

CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — whether sentencing judge failed to address matters raised in guideline judgments — whether sentencing judge erred in assessing objective seriousness CRIME — appeals — appeal against sentence — whether sentencing judge erred in assessing objective seriousness — where sentencing judge made an error of fact as to gravity of victim’s injuries CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — relevance of applicant’s prior offending — relevance of applicant’s history of domestic abuse and alcohol abuse — possibility of extra-curial punishment — whether sentencing judge erred in assessing subjective circumstances CRIME — driving offences — aggravated dangerous driving occasioning grievous bodily harm — intoxication — application of guideline judgments — where applicant lacks characteristics of the frequently occurring case referred to by guideline judgments

CRIME – appeals – Crown appeal against sentence – manifest inadequacy – offence of aiding and abetting an attempt by others to possess a commercial quantity of unlawfully imported border-controlled drugs – where the sentencing judge erred by treating the respondent’s bail conditions as “quasi-custody” and backdated the sentence – respondent’s impressive and substantial progress towards rehabilitation – Court’s exercise of residual discretion not to interfere

CRIME – murder – whether intention to kill or cause grievous bodily harm – whether co-accused participant in a joint criminal enterprise EVIDENCE – exclusion of evidence under s 137 of the Evidence Act 1995 (NSW) – whether probative value of the evidence is outweighed by danger of unfair prejudice – danger that jury may be clouded by an emotional response to the evidence – whether danger of unfair prejudice can be adequately mitigated by excluding evidence of connection with outlaw motorcycle gang – evidence in limited respects admissible EVIDENCE – exclusion of evidence under s 138 of the Evidence Act 1995 (NSW)– whether evidence obtained by impropriety – whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained by impropriety

COSTS — Costs assessment — specified gross sum costs order – Civil Procedure Act, s 98(4)(c) – specified gross sum costs order made – application for assessed costs rejected — discount applied.

NEGLIGENCE – solicitors – plaintiffs retained the defendant to advise and appear in respect of claims against them in the District Court – plaintiffs failed in all proceedings – whether the defendant should have advised that the defences were hopeless and doomed to fail prior to their filing –effect of “no oral variation” clauses in Australia OCCUPATIONS – legal practitioners – solicitors –advising client – obligation of solicitor to advise client that defence has no reasonable prospects of success – effect of Legal Profession Uniform Law Application Act 2014 (NSW) sch 2 NEGLIGENCE – damages – where plaintiffs’ claim limited to costs paid for legal services and ordered costs in the District Court proceedings – where portion of these costs paid by companies unrelated to the proceedings but under the control of one of the plaintiffs – whether plaintiffs entitled to claim portion of costs paid by these “related entities”

HIGH RISK OFFENDER – application for extended supervision order – where defendant subject to previous supervision order – history of sexual offending against children – where supervision orders breached by further offending in the past – determination of risk – whether unacceptable risk of committing another serious sex offence if not kept under supervision – where extended supervision order opposed – where defendant argues rehabilitative prospects hindered by imposition of extended supervision order – safety and protection of the community – expert evidence of high risk that the defendant might commit a further serious sex offence – extended supervision order imposed – dispute about conditions resolved

CONTRACTS – Formation – acceptance of offer – whether there was sufficient communication of acceptance – where the respondent Council had passed a resolution accepting the appellant’s offer during a Council meeting which was open to the public and livestreamed on its website and published a copy of the unsigned minutes of the meeting (which recorded that such resolution was passed) on its website the following day – where a rescission motion was lodged in respect of that resolution shortly after the meeting ended and the Council took no steps to notify the appellant that such resolution had been passed or to otherwise directly communicate its acceptance of the offer to the appellant – whether the legislative and regulatory framework affecting the Council’s operations were matters of context relevant to the objective assessment of whether there was effective communication of acceptance LAND LAW – Conveyancing – Requirements of Writing – whether the signed minutes of the Council meeting comprised a “memorandum or note” of a contract for sale for the purposes of s 54A of the Conveyancing Act 1919 (NSW) – whether the mayor and general manager who signed the minutes were lawfully authorised signatories pursuant to s 54A LOCAL GOVERNMENT – whether land acquired by resumption under s 532 of the Local Government Act 1919 (NSW) was “land subject to a trust for a public purpose” and therefore should be classified as “community land” for the purposes of cl 6(2)(b) of Sch 7 of the Local Government Act 1993 (NSW)

BANKING AND FINANCE – standby letter of credit issued by Chinese bank to secure lender’s/builder’s obligations under construction contract – receivers appointed to beneficiary – receivers made demand on standby letter of credit on behalf of beneficiary – payment by issuing bank stopped by order of Chinese court – whether breach of contract by beneficiary with lender/builder rendered demand invalid – obligations of issuing bank independent of contract between lender/builder and beneficiary – standby letter of credit subject to Rules on International Standby Practices ISP 98 – whether appointment of receivers engaged rule concerning transfer by operation of law – whether interlocutory order made by Chinese court preventing payment a bar to entry of judgment – whether parallel proceedings in Australia and China an abuse of process

CONTRACTS – Rectification by construction – whether primary judge erred in failing to find that properly construed, cl 5.1 of Business Sale Agreement provided for an earn-out calculation based on “average annual” earnings before interest and tax EQUITY – Rectification in equity – onus and standard of proof – whether respondents had shown by clear and convincing evidence that cl 5.1 of Business Sale Agreement did not correctly record the common intention of the parties – whether primary judge erred in ordering rectification of cl 5.1 EVIDENCE – Jones v Dunkel inference – whether primary judge erred in failing to draw Jones v Dunkel inferences in respect of respondents’ failure to call several witnesses involved in the transaction culminating in the Business Sale Agreement – whether primary judge erred in drawing Jones v Dunkel inference against the appellants for failing to call its solicitor to give evidence

LAND LAW – possession of land – default under mortgage – where defence does not disclose a defence to the claim – defence struck out – default judgment for possession

PRACTICE AND PROCEDURE — adjournment — no matter of principle SOLICITORS — order to deliver file — order to provide itemised bill of costs

CRIME – murder – whether intention to kill or cause grievous bodily harm – whether co-accused participant in a joint criminal enterprise CRIMINAL PROCEDURE – trial – jury – discharge of individual juror – juror discharged

CORPORATIONS – Winding up – Application by liquidators for directions – Whether liquidator is justified in treating trust funds as property beneficially owned by the company – Whether liquidator is justified in not proceeding with so called ‘Prize Draw’.

CORPORATIONS — Winding up — Application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up – whether to terminate winding up.

CRIMINAL LAW – intersection of artistic endeavour in the form of “drill rap” lyrics and s 137 of the Evidence Act – evidence derived from telephones – determination of relevance – whether probative value outweighed by danger of unfair prejudice – over 300 objections to be determined – overview of relevant legal principles – evidence to be taken at its highest –assessment of potential for misuse of the evidence – a fine balance – application to specific examples CASE MANAGEMENT – fail

CRIME – murder – whether intention to kill or cause grievous bodily harm – whether co-accused participant in a joint criminal enterprise CRIMINAL PROCEDURE – trial – case management – whether witnesses giving evidence by Audio-visual link should be ordered

LAND LAW — Conveyancing — Contract for sale — Notice to complete — Where vendor failed to serve notice of attornment — Where vendor allegedly failed to provide documentation for calculation of adjustment figures — Where vendor allegedly failed to notify purchaser of breach of lease — Whether vendor’s conduct prevented issuance of valid notice to complete — Whether termination based on failure to comply with notice to complete valid

PRACTICE AND PROCEDURE – summons for judicial review – failure to comply with r 59.4(c) UCPR – failure to identify jurisdictional error

CIVIL PROCEDURE - application to approve settlement under s 76(4) of the Civil Procedure Act 2005 (NSW) - no point of principle

CIVIL PROCEDURE — Procedural requirements under Practice Note SC Eq 3 and UCPR — where applicant seeks dispensation in limine from requirements to file and serve response or other defence, plead matters specifically, provide particulars, serve certain evidence and provide certain disclosure in the substantive proceedings — where substantive proceedings involve damages claims by plaintiff company against applicant and other company officers for breaches of Corporations Act 2001 (Cth) — where applicant is the subject of parallel criminal proceedings involving significant factual and temporal overlap with present proceedings — privilege against self-incrimination — general rule that a party to non-penalty civil proceedings will not be excused from discovery or interrogatories — rare exception where exemption from disclosure is only means of maintaining the privilege and there is a real and appreciable risk of prosecution — exact overlap of events and allegations not required — HELD — applicant incapable of responding to allegations in civil proceedings without exposing himself to liability in criminal proceedings — dispensation and cognate orders granted

CORPORATIONS – Directors and officers – Appointment, removal and retirement of directors – Whether director was validly appointed – Where director purported to exercise casting vote of board chairperson to effect appointment of another director. CORPORATIONS – Whether share held by subsidiary in holding company could be voted – Application of exception for shares held in trust. CORPORATIONS – Whether relief should be granted under s 1322 of the Corporations Act 2001 (Cth) to validate members’ resolutions – Where member excluded from voting on resolution purportedly passed by written resolution executed by majority shareholder.

MORTGAGES — mortgage contract — registration of mortgage — whether email communications constitute an agreement to change the terms of the mortgage — whether email communications satisfy writing requirements under s 23C of the Conveyancing Act 1919 (NSW) — rights and remedies of mortgagee upon default of loan — order for possession of land LAND LAW — Torrens title — indefeasibility of title upon registration — effects of indefeasibility — exceptions to indefeasibility — unconscionability and fraud — to rights of registered mortgagee under ss 41 and 42 of Real Property Act 1900 (NSW) — s 56 of Real Property Act irrelevant

BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) — Adjudication — Adjudicated amount — Whether Adjudicator had jurisdiction to award amount in excess of adjudication application — When payment claim quantum exceeds that of adjudication application BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) — Adjudication — Judicial review — Whether adjudicator afforded parties procedural fairness under the Building and Construction Industry Security of Payment Act 1999 (NSW)

ADMINISTRATIVE LAW – judicial review– error of law on the face of the record or jurisdictional error – decisions of the Racing Appeals Tribunal – challenge to the Racing Appeals Tribunal’s construction of Australian Harness Racing Rules (AHRR) in relation to the exemption in r 188A(3) of altrenogest when administered to fillies and mares – whether exemption in r 188A(3) operates so as to exempt epitrenbolone and trendione from being “prohibited substances” under r 188A or r 190A(2) or from being anabolic androgen steroids within r 190AA – factual premise for grounds of review not made out – no misconstruction of r 188A(3) – no other error of law on the face of the record or jurisdictional error – summons dismissed GAMING AND RACING – harness racing – disciplinary offences – presenting a horse for a race not free from prohibited substances – evidentiary certificates under AHRR r 191 as to presence of prohibited substances – challenge to reliance on certificates when “materially flawed” within r 191(7) – whether certificates materially flawed – no misconstruction of r 191 or other error in relation to finding that certificates not materially flawed – summons dismissed

DEEDS — Construction of deed poll —Application of Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 — Whether amount claimed by liquidators of company falls within the definition of a ‘debt’ for the purposes of a Letter of Comfort CORPORATIONS — Winding up — Liquidators — Duties — Application of Duke Group Ltd (in liq) v Arthur Young (Reg) (No 2) (1991) 4 ACSR 355 — Whether adjudicative process undertaken by liquidators creates a debt of the company — Whether the admission of a proof of debt is binding on the company or third parties

APPEAL – whether argument sought to be run on appeal was outside the pleadings – whether the trial had been in part run outside of the pleadings such that the argument was available to be run on appeal CONTRACTS – breach of contract – damages – whether Appellant proved that it had or would suffer losses as a result of the breach – where some past costs of rectifying the breach were paid by family companies on the Appellant’s behalf – restitution – whether Appellant was legally obliged to reimburse the family companies for the costs paid such that it could be said to have incurred losses – where other past costs of rectifying the breach were paid by a real estate agent from a trust account in the Appellant’s name EVIDENCE – proof of loss – where no evidence led from principals of family companies – where documentary evidence of alleged understanding between family companies as to reimbursement for various payments lacking – whether a promise to repay could be implied – evidentiary inferences available RESTITUTION – third party payment of another party’s debts – whether implied request to pay – whether implied promise to reimburse – evidence and drawing of inferences

CRIME – appeals – appeal against sentence – severity appeal – ongoing sexual offending by applicant against his stepdaughters – extremely serious offending – totality considerations – principles in Mill v The Queen – whether aggregate sentence is affected by erroneous sentence indicated for particular count – whether error had the capacity to influence the aggregate sentence – where not possible to conclude error could not have affected the aggregate sentence – sentencing discretion exercised afresh – regard to conditions experienced by persons in custody – applicant’s subjective case – extremely deprived upbringing – lengthy criminal history – where applicant on conditional liberty at the time of offending – where no lesser sentence other than that imposed by the sentencing judge is warranted – leave to appeal granted – appeal dismissed

CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge’s failure to recuse herself and abort trial resulted in a miscarriage of justice — where new evidence raised mid-trial — where defence would have conducted their case differently had the evidence been raised before trial — whether failure to vacate had a prejudicial effect — whether appellant was denied a fair trial CRIME — appeals — appeal against conviction — unreasonable verdict — whether conviction of child sexual assault offences could not be supported having regard to the evidence — whether inconsistencies in the complainant’s evidence raised reasonable doubt about the applicant’s guilt — where complainant signed a retraction statement — where applicant subsequently admitted offending conduct to members of his own family CRIME — appeals — appeal against sentence – extension of time in which to appeal — whether extension of time for leave to appeal against sentence ought be granted — where applicant suffers from terminal illness — whether fresh evidence of terminal illness ought be received — whether applicant was suffering from terminal illness at time of sentencing — where applicant has been released on parole

CRIMINAL LAW – appeal – Crown appeal – s 5F(3A) of the Criminal Appeal Act 1912 – dangerous navigation causing death contrary to s 52B(1)(c) of the Crimes Act 1900 – where trial judge excluded evidence from experts concerning likely impairment caused by intoxication – exclusion of evidence of blood alcohol content and speed of jet ski – where rulings would substantially weaken Crown case – whether experts entitled to offer opinions of specialised knowledge based on training, study or experience – Evidence Act 1995 s 79

APPEALS – crime – appeal against conviction – unreasonable verdict – sexual intercourse without consent – whether inconsistent complainant testimony – whether deficiencies in complainant testimony – evidence of lawfully recorded conversation – whether verdicts cannot be supported having regard to the evidence APPEALS – crime – appeal against conviction – unreasonable verdict – possess child abuse material – circumstantial case – absence of direct evidence – whether Crown failed to exclude the reasonable possibility that the applicant was not knowingly in possession of child abuse material

CRIME – murder – whether intention to kill or cause grievous bodily harm – whether co-accused participant in a joint criminal enterprise CRIMINAL PROCEDURE – trial – case management – whether inspection should be ordered EVIDENCE – inspection under s 53 of the Evidence Act 1995 (NSW) – whether considerations in s 53(3) favour ordering an inspection – organisation and transport feasible – inspection ordered

CORPORATIONS – Statutory demand – Application to set aside – whether Court lacks jurisdiction – where application to set aside statutory demand not filed and served within time.

CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors – Application for declarations that Plaintiffs were not appointed as company directors – whether Plaintiffs consented to appointment.

REAL PROPERTY — caveat — equitable charge on defendant’s property as security for guarantee obligations recognised by earlier judgement of this Court — lapsing notice issued — plaintiff seeking to enforce “charge” — interpretation of extraordinarily badly drafted Deed containing guarantee and indemnity — Roberts v Investwell Pty Ltd [2012] NSWCA 134 — plaintiff, under Deed, did have an interest in defendant’s property capable of supporting caveat — equitable charge recognised — final orders made in favour of plaintiff

EVIDENCE – admissions – assessment of probative value – where accused admits or boasts that he stabbed “AK” – where AK gives evidence that he was not harmed – whether probative value of evidence diminished by virtue of AK’s denial – where stabbing not subject of charge or incident giving rise to charges – where incident subject of admission occurred on night before alleged murder – whether evidence “transactional” – evidence of context – probative value of evidence – danger of unfair prejudice – potential for misuse of evidence – tendency evidence – bad character evidence – whether prejudice can be cured by direction

REAL PROPERTY – possession – registered proprietor’s right of possession – orders finally unopposed

ADMINISTRATIVE LAW – motor vehicle accident – application for compensation – medical dispute referred to medical assessor – no compensable whole person impairment found – application to have assessment referred for review – application refused – application for judicial review of decisions of both assessor and delegate – assessor and delegate both fell into legal error – decisions of assessor and delegate set aside – matter remitted to President of Personal Injury Commission to be decided according to law

CRIME – appeal and review – judicial review – committal proceedings – “old system” applicable despite statutory abolition in 2018 – indictment found and presented in District Court after impugned proceedings in Local Court – futility of attack on committal in those circumstances – contingent analysis of asserted errors in committal – none established CRIME – appeal and review – judicial review – pending trial in District Court – separate application for “dismissal” of proceedings by Supreme Court – no basis for doing so – amended summons dismissed