Cases and authorities

APPEALS – judicial review – application for judicial review of a decision dismissing an appeal against a decision of a costs review panel on an application for review of a decision of a costs assessor assessing solicitor/client costs – whether District Court committed jurisdictional error or error of law on the face of the record by endorsing decision of costs assessor and review panel

CRIME — appeals — appeal against sentence — whether attempt to stop co-offenders during murder — whether breach of rule in Browne v Dunn — no unfairness from any such breach — assessment of objective seriousness of offence — whether sentencing judge adequately took account of ADHD — ADHD not relevant to offence — whether sentencing judge took account of COVID-19 — COVID-19 issue not material — whether sentence was disproportionately harsh — sentence was proportionate to sustained and brutal murder of defenceless child

CRIME – Appeal and Reviews – Referral under Part 7 Crimes (Appeal and Review) Act 2001 – Court’s own motion – Dealt with on appeal. CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Whether additional psychiatric evidence heard on appeal was fresh evidence or new evidence – Whether a miscarriage of justice occurred due to the absence of the additional psychiatric evidence at the appellant’s trial – Whether such additional evidence is capable of establishing a reasonable doubt about the appellant’s guilt. CRIME – Appeals – Appeal against sentence – Where three life sentences were imposed – Whether additional psychiatric evidence heard on appeal was fresh evidence or new evidence – Whether a miscarriage of justice occurred due to the absence of the additional psychiatric evidence in the appellant’s sentencing proceedings – Whether such additional evidence, if available to the sentencing Judge, would have resulted in a lesser sentence.

CRIME – appeals – appeal against sentence – SENTENCE – sexual assault (child) – manifest excess – whether sentencing judge failed to consider impact of mental health on assessment of moral culpability and deterrence

CIVIL PROCEDURE — Pleadings — Amendment — Repeated attempts to plead case — Previous pleading struck out with indication that likely only one further chance would be given — Leave not granted where proposed further pleading liable to be struck out as abuse of process

COURTS AND JUDGES – Application for limited suppression order to protect identify of plaintiff – principle of open justice primary consideration – prejudice to administration of justice – safety of the plaintiff – suppression order made on limited terms

REPRESENTATIVE PROCEEDINGS – shareholder class action – approval of settlement – consideration of legal costs, funding commission, payments to lead plaintiffs and costs of administering settlement scheme – consideration of proposed distribution methodology – no objection from any group member – common fund order made – settlement approved

COSTS – security for costs – where defendant seeks order that the plaintiff provide security for costs up to the conclusion of evidence – where plaintiff accepts that it will be unable to pay defendant’s costs if ordered at final hearing – where plaintiff is a dormant operating company with sole purpose of prosecuting these proceedings – whether proceedings would be stultified if an order for security was made – where commercial litigation funding not available – where persons associated with directors and shareholders of plaintiff have entered litigation funding agreement pursuant to which they will share in any claims proceeds – whether such persons will or could reasonably be expected to provide any further funding – where individuals standing behind majority shareholders have proffered undertakings to pay defendant’s costs in the event the plaintiff is ordered to pay defendant’s costs – whether proffered undertakings have any value – whether proceedings involve a matter of public interest – whether application for security made promptly – security not ordered

SENTENCE – Manslaughter – unlawful and dangerous act – accidental shooting – late guilty plea – extensive criminal history – aggravating factor of committing offence whilst on parole – much of offender’s adult life spent in custody – offence committed whilst offender on parole – genuine remorse established – difficult childhood with family mental health issues – both parents committed suicide – moral culpability reduced – history of illicit substance abuse – totality principle

CIVIL PROCEDURE – Claim splitting – whether the two statements of claim raise two distinct causes of action or a single cause of action that was impermissibly split contrary to s 24 of the Civil Procedure Act 2005 (NSW) – where one statement of claim claimed fees owed under contract and pleaded breach of contract and the other claim pleaded mistaken provision of financial discounts to school fees based on false and misleading information provided by the applicant and sought restitution for unjust enrichment CIVIL PROCEDURE – Setting aside of default judgments – whether inadequate service under r 10.20(2) of the Uniform Civil Procedure Rules 2005 (NSW) – where the Magistrate’s finding on service was substantially based on serious adverse credibility findings in relation to the applicant – whether the Magistrate’s finding was glaringly improbable or contrary to compelling inferences – whether the Magistrate erred in finding that there was no adequate explanation for the two year delay

APPEALS – Leave to appeal – application for jury trial of motions seeking summary relief – allegation of actual bias – whether jury trial can be ordered for interlocutory matter involving no factual questions – no issue of principle

CRIME — appeals — appeal against conviction — alleged significant forensic disadvantage by reason of delay in prosecution — where applicant convicted of murder four decades after offending conduct — whether trial judge erred in failing to direct himself pursuant to s 165B of the Evidence Act 1995 (NSW) CRIME — appeals — appeal against conviction — application of proviso — whether trial judge’s erroneous use of lies as evincing a consciousness of guilt gave rise to a substantial miscarriage of justice — whether applicant’s guilt was proved beyond reasonable doubt on admissible evidence notwithstanding error CRIME — appeals — appeal against conviction — lies as evidence of consciousness of guilt — where Crown at trial identified five lies it intended to rely on for such purpose — whether trial judge erred in relying on other lies — whether trial judge’s reasons why lies supported a consciousness of guilt were inadequate — application of Edwards v The Queen (1993) 178 CLR 198 — use of lies in criminal proceedings CRIME — appeals — appeal against conviction — unreasonable verdict — whether verdict of guilty of murder following trial by judge alone was unreasonable — where Crown case was wholly circumstantial — whether hypothesis consistent with innocence was excluded beyond reasonable doubt

Criminal law – Appeal against conviction – Self-defence against provoked assault – Where appellant convicted of murder – Where s 272(1) of Criminal Code (Qld) affords defence of self-defence against provoked assault – Where s 272(2) identifies cases to which defence does not apply – Where s 272(2) contains three clauses – Where third clause of s 272(2) states that accused will not obtain protection of s 272(1) unless they declined further conflict and quitted it or retreated from it as far as practicable before using force in self-defence – Whether condition in third clause of s 272(2) is an independent condition or modifies effect of first two clauses of s 272(2) – Whether trial judge erred in directing jury that appellant must satisfy retreat condition for defence of self-defence against provoked assault. Words and phrases – "death or grievous bodily harm", "murder", "necessity", "nor, in either case", "reasonably necessary", "self-defence", "self-defence against provoked assault". Criminal Code (Qld), s 272.

CRIME – appeals – appeals against sentence – one count of aggravated break and enter with intent to commit a serious indictable offence and two counts of use offensive weapon with intent to commit an indictable offence – alleged error in applying the discount for the applicant’s guilty pleas to aggregate sentence rather than indicative sentences – alleged error in finding that that there was the actual intentional use of a knife to slash across the victim’s torso – ground 2 upheld – applicant re-sentenced

CIVIL PROCEDURE — Implied undertakings — Release from — Special circumstances — Insurer seeks release in proceedings concerning TPD policy to use in assessing plaintiff’s claim under income protection policy

LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where first defendant not active in proceedings — Where active parties agree plaintiff has a beneficial interest

LAND LAW – possession of land – default under mortgage – no defence to claim – admissions made in the defence and in affidavit – judgment given for possession of one of two properties secured by the loan arrangement on the basis that sale of one may be sufficient to discharge debt – r 17.7 UCPR – judgment on admissions

LAND LAW – possession of land – claim by registered proprietor against occupier – where defence does not plead a defence to the claim – defence struck out

EQUITY – Trusts – Accounting by trustee of unit trust to unit holders for profits generated by property development business carried on by trustee – Resolution of dispute about unit holders’ respective financial contributions to the business CORPORATIONS — Members’ rights and remedies — Oppression — Family company’s affairs – Where business of company managed by one director – Whether agreement for payment of wages to that director – Whether conduct of the company’s affairs oppressive within the meaning of s 232 of the Corporations Act 2001 (Cth), including by reason of payment of wages and superannuation to the director who managed the business

Criminal law (Cth) – Sentence – Where respondent convicted under s 6 of Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) – Where s 19ALB of Crimes Act 1914 (Cth) provides Attorney‑General must not make parole order in relation to person involved in, or convicted of, certain terrorist‑related activities unless "exceptional circumstances exist to justify making a parole order" – Where sentencing judge sentenced respondent without taking into account likelihood (if any) of release on parole by reason of s 19ALB of Crimes Act – Where parole subsequently refused by Attorney‑General pursuant to s 19ALB of Crimes Act – Whether Court of Criminal Appeal erred in concluding that sentencing judge should have considered application of s 19ALB when sentencing respondent – Whether Court of Criminal Appeal erred in concluding that expectation that parole would be refused due to an application of s 19ALB warranted imposition of lesser sentence. Words and phrases – "conditions of imprisonment", "executive function", "length of sentence", "non‑parole period", "onerous conditions", "parole", "presumption against parole", "prospects of parole", "purpose of sentencing", "sentencing", "terrorism". Crimes Act 1914 (Cth), ss 16A, 19AB, 19ALB. Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6(1)(b).

CRIME – appeals – appeals against sentence – one count of dishonestly obtain by deception a financial advantage – where applicant is self-represented – where applicant has raised eight grounds of appeal – alleged error in the backdating of sentence to account for pre-sentence custody – alleged errors in weight afforded to various factual matters – no error by sentencing judge established – leave to appeal granted – appeal dismissed

CRIME — appeals — appeal against conviction — offences of sexual intercourse without consent — whether jury’s guilty verdicts unreasonable — where complainant alleged to have been “emotionally changeable” — where complainant’s version said not to account for period in which appellant at complainant’s house — where complainant’s accounts to others said to be inconsistent with charged offences — where complainant said to have curated evidence CRIME — appeals — appeal against conviction — offences of sexual intercourse without consent — application made at trial to re-call complainant pursuant to Criminal Procedure Act 1986 (NSW), s 306J to give further evidence about her interactions with others after alleged assaults — whether trial judge erred in refusing to grant leave pursuant to s 306D — whether miscarriage of justice occasioned by trial judge giving a direction on “lies”

CRIME – procedure – interlocutory appeal – application for permanent stay – applicant unfit to stand trial – special hearing directed – charges related to historical sexual misconduct – refusal by trial judge to grant permanent stay – reliance on applicant’s mental and physical condition – whether judge erred in not finding that special hearing would be an affront to common humanity – risk that hearing would exacerbate applicant’s mental and physical conditions – no forensic disadvantage identified

CIVIL PROCEDURE – Parties – Person under legal incapacity – Whether the plaintiff is of an adequate capacity to give instructions and make decisions with respect to this litigation and with respect to the financial management of moneys to which he is entitled – Whether the moneys held in Court to which he is entitled should be paid out of Court to the plaintiff.

CIVIL PROCEDURE – Interim preservation – Freezing orders – Application to extend a freezing order against the defendant.

SUCCESSION – Application to review decision of a Registrar not to grant Letters of Administration to the Plaintiff – A niece of the Deceased who died intestate – Registrar declined on the basis that the Plaintiff had not established that the Deceased was not in a domestic partnership immediately before his death – Where 18 months has now passed since the death of the Deceased, affidavit evidence establishes enquiries made to find out whether the Deceased was in such relationship – No such person has come forward – No record of any registration of any de facto relationship – HELD – Court satisfied that there was no such relationship at the date of death – Order for the grant of Letters of Administration

MAREVA ORDER – r 25.14(4), Uniform Civil Procedure Rules 2005 – no issue of principle – unexplained withdrawal of funds by defendant trustee – no response by defendant to requests for information or trust deed – no substantive engagement by the defendant in proceedings – defendant sells real property while proceedings were on foot – $2M freezing order sought – order made for $810,000.

COSTS – Party/party – Specified gross sum – no issue of principle

LAND LAW – Co-ownership – second defendant has recently become the registered proprietor of certain residential real property occupied by the plaintiff and her former de facto partner – the second defendant has acquired title to the property consequent upon orders under the Criminal Assets Recovery Act 1990 against the plaintiff’s former de facto partner – the Court of Appeal has declared that the plaintiff has a 25% interest in the property and the second defendant holds the other 75% – the second defendant now seeks to sell the property – the second defendant was found in a previous judgment to have an immediate right to possession of the property against the plaintiff, a co-owner in equity, who is also a tenant at will of the second defendant – judgment for possession has been entered in favour of the second defendant against the plaintiff and writ for possession stayed pending the taking of accounts between the plaintiff and the second defendant – whether there can be a set-off against the plaintiff’s charge for her payments of rates, charges and mortgage instalments during her occupation, a notional occupation fee in respect of the balance of the interests that she does not own in equity in the property.

CONTRACTS — express terms — incorporation of terms — whether purchaser’s standard terms and conditions incorporated by reference into contract CONSUMER LAW — sale of goods — respiratory ventilators — whether purchaser made known particular purpose for which ventilators were required — whether there was an implied condition as to fitness for purpose — whether ventilators were suitable for use in any clinical setting CONSUMER LAW — misleading or deceptive conduct — whether vendor made misleading or deceptive representations — whether vendor provided purchaser user manual as an intermediary or principal

CORPORATIONS — winding up — liquidators — powers of court-appointed provisional liquidators — where provisional liquidators have entered into contracts on behalf of the companies — where those agreements have no fixed terms or involve ongoing obligations — where court approval under s 477(2B) is sought nunc pro tunc — where there is no evidence of error of law, bad faith or impropriety — where the transactions are commercially reasonable and serve the proper and expeditious liquidation and winding up of the companies

LAND LAW — Co-ownership — Severance of joint tenancy — Where co-owners have not formally severed joint tenancy — Where co-owners’ respective shares of the Property not determined — Whether joint tenancy severed unilaterally by deed or by course of conduct

SUCCESSION — Family provision — Claim by adult child – notional estate – plaintiff brings a claim for family provision against the estate of his deceased father – deceased divorced the plaintiff’s mother when he was a young child and had little contact with the plaintiff during his life – deceased remarried the defendant and they both built up and inherited property – plaintiff does not own real estate and is bringing up a family of three children – whether a family provision order should be made against the estate of the deceased in favour of the plaintiff – estate inadequate to meet any family provision claim of substance – not in contest that certain property the defendant could be designated as notional estate – whether an order for provision should be made against property that could be designated as notional estate.

CRIME – sentencing – accessory after the fact to murder – guilty plea – relevant factors on sentence – objectively less serious example of a serious offence – where no persons convicted of homicide of deceased – extensive criminal history – where much of the offender’s adult life has been spent in custody – offence committed whilst offender on parole – remorse not established on balance – deprived background – difficult childhood and upbringing – history of illicit substance abuse – some evidence of steps taken towards rehabilitation in custody– special circumstances not found – discussion of parity – sentence backdated to reflect measure of concurrence with previously imposed aggregate sentence

COSTS – costs of motions and proposed pleadings not finally pursued – costs thrown away as a result of leave to amend statement of claim – costs order made in favour of party opposing leave sought

CONTRACTS – construction – principles – deed settling earlier proceedings – where earlier proceedings involved dispute about contract for sale by defendant vendor to plaintiff purchaser of coconut milk production plants – where dispute settled on basis of parties entering further agreement for sale of those plants – where defendant vendor had delivered to plaintiff purchaser two major components of the first plant – whether on proper construction of the settlement deed the delivered components were agreed to be part of the supply under the further agreement

BUILDING AND CONSTRUCTION – Home Building Act 1989 – residential building work – statutory warranties – defendant constructed development of 45 townhouses – extent of defects – whether damage to lot property or common property – scope of rectification works

TORTS – negligence – duty of care – statutory extension – breach of duty by nominated supervisor of works – nominated supervisor directed construction otherwise than in accordance with the approved plans – failure by builder to carry out works in a proper and workman-like manner NEGLIGENCE – assessment of damages – Hungerfords interest – whether the negligence of the nominated supervisor of building works caused the respondents to incur interest on their borrowings – where the delay in completion of the works resulted from multiple conjunctive causal factors

CONTRACTS — Settlement agreement — Poor drafting — Formation — Distinction between formation and construction — Identity of parties a question of formation — Intention to form legal relations — Reference to surrounding circumstances — Parties intended to make an agreement CONTRACTS — Identity of parties — Whether directors signed in their personal capacity — Relevance of counterparts clause — Parties intended to be bound including as individuals DEEDS — Improperly executed — Relationship between deeds and contracts — Presence of agreement within improperly executed deed — Parties intended to make an agreement

SENTENCING – appeal against sentence – whether open to the sentencing judge to find that the male victim suffered “life threatening injuries” – whether permissible to take into account a further offence on a Form 1 document in assessing and determining the objective seriousness of a principal offence – s 15 Children (Criminal Proceedings) Act 1987 (NSW) – admissibility of juvenile criminal record

CRIMINAL APPEALS – prosecution appeal against asserted inadequacy of sentence – sexual offences against three separate victims – offences spanning 17 years – 12 counts of sexual intercourse without consent – grave examples – whether aggregate sentence manifestly inadequate – where offences committed against women to whom the offender was married or in a serious relationship – coercive control – sexual assault as punishment – degrading and humiliating conduct – where lengthy period of non-offending – evidence of good character and lack of criminal record – sentences imposed after trial – no evidence of remorse or insight – whether indicative sentences inadequate – combination of lenient sentence and absence of substantial notional accumulation – aggregate sentence manifestly inadequate, unreasonable and unjust – sentence failed to reflect gravity of offending and vindicate dignity of separate victims – residual discretion – respondent re-sentenced

CRIMINAL LAW – sentencing – prosecution appeal – child sexual offences – whether aggregate sentence was manifestly inadequate – objective gravity of the crime – whether Court should exercise residual discretion not to intervene

PRACTICE AND PROCEDURE – Whether the Court should dispense with rr 7.1-7.2 of the Uniform Civil Procedure Rules 2005 (NSW) so as to permit director to represent company in proceedings. CORPORATIONS – Winding Up – Statutory demand – Application to set aside – whether there is some “other reason” under s 459J(1)(b) why the demand should be set aside – where issue of the demand is inconsistent with the statutory regime contemplated by Pt 5.4 of the Corporations Act 2001 (Cth).

CONTRACTS — Formation — Agreement —Whether money advanced pursuant to an oral loan agreement, or as a gift or trust distribution ESTOPPEL — Proprietary estoppel — Encouragement — Nature of promise — Whether daughter induced assumption that father would obtain life interest SUCCESSION — Family provision — Intestate estate — Claim by father of deceased — Whether inadequate and improper provision made and, if so, the nature and quantum of the provision to be made

TORTS – intentional torts – trespass to the person – battery/assault – whether the defendant was acting in self-defence when he struck the plaintiff twice – held defendant was not acting in self-defence – damages – assessment of damages – whether damages to which the Plaintiff establishes an entitlement are assessed pursuant to the Civil Liability Act or the common law – common law damages awarded – award for general damages – past and future economic loss – past and future medical expenses – aggravated and exemplary damages

CHILD WELFARE – adoption – consent – dispense order – where child is in specialised substitute residential care pursuant to s 8ZA Children’s Guardian Act – where birth mother has given consent to adoption – where birth father has neither given consent nor progressed plans to care for child – where birth father faces barriers to full participation in decision-making process – where it is in child’s best interests to be placed in adoption placement as soon as possible – whether there is serious cause for concern for child’s welfare – whether birth father’s continued involvement would delay the placement of the child in adoptive family – whether consent dispense order would override birth father’s wishes

HIGH RISK OFFENDERS – interim supervision orders – unacceptable risk of committing a serious offence – relevance of conditions to risk – serial rapist – third application for an extended supervision order – further offending while on second extended supervision order of this court – orders granted HIGH RISK OFFENDERS – extended supervision orders – preliminary hearing – appointment of psychiatrists or psychologists – test for interim supervision order

BUILDING & CONSTRUCTION – damages for rectifying defects – date of assessment of costs of rectification – whether interest payable INTEREST – interest on outstanding balance of contract price for works – whether claim made for interest at rate specified in contract COSTS – Calderbank offers made by each party – whether costs incurred after date of any such offer are payable on indemnity basis – general rule that costs follow the event – appropriate that parties bear their own costs

APPEALS – interlocutory injunction pending appeal – where properties owned by cross-appellant subject to security interest in favour of third and fourth respondents to cross-appeal as lenders – whether receiver and manager appointed by lenders should be restrained from dealing with rental income and sale proceeds of properties pending appeal – no question of principle – injunction granted until conclusion of hearing of appeal

Private international law – Foreign State immunity – Immunity from jurisdiction – Proceedings for winding up of body corporate registered as foreign company – Where appellants commenced proceeding for winding up of respondent under Pt 5.7 of Corporations Act 2001 (Cth) – Where respondent sought order that originating process be set aside on basis that court lacked jurisdiction by operation of ss 9 and 22 of Foreign States Immunities Act 1985 (Cth) ("Act") – Where common ground that respondent an agency or instrumentality of Republic of Indonesia and accordingly a "separate entity" within meaning of Act and entitled to immunity from jurisdiction unless applicable exception from immunity – Where appellants rely on exception in s 14(3)(a) read with s 22 of Act – Where s 14(3)(a) of Act provides that "[a] foreign State is not immune in a proceeding in so far as the proceeding concerns ... bankruptcy, insolvency or the winding up of a body corporate" – Where by operation of s 22 of Act, s 14(3)(a) applies "in relation to a separate entity of a foreign State" as it applies "in relation to the foreign State" – Whether exception from immunity in s 14(3)(a) read with s 22 applies to proceeding for winding up of body corporate that is separate entity of foreign State. Words and phrases – "agency or instrumentality", "exception from immunity", "foreign State", "immunity from jurisdiction", "legislative history", "purpose and context", "separate entity", "winding up". Corporations Act 2001 (Cth), Pt 5.7, Pt 5B.2, Div 2. Foreign States Immunities Act 1985 (Cth), ss 3(1), 3(3), 9, 11, 14(3), 16, 22.