Cases and authorities

CRIMES – Appeal against sentence – whether sentencing judge erred in assessment of objective seriousness CRIMES – Appeal against sentence – whether sentencing judge erred in assessment of the applicant’s rehabilitative prospects CRIMES – Appeal against sentence – where offending was assessed to be within the mid-range – where offences occurred within a short period in a single course of conduct – where applicant had strong subjective case – consideration of sentences imposed in cases with similar fact patterns – sentence is manifestly excessive – applicant resentenced

EQUITY — equitable remedies — interlocutory injunctions — principles — discharge of interlocutory injunction made ex parte — where the defendant is the 82-year-old proprietor of a residential property at Crackenback, New South Wales — where the plaintiffs allege lease agreement with the defendant — HELD — balance of convenience favours discharging the interlocutory injunctions

CONTRACTS – formation – acceptance of offer – communication of acceptance – local council enters negotiations with unsuccessful applicants in tender process for sale of council owned land – council invites submission of applicants’ best and final offer – council passed resolution accepting one applicant’s offer – notice of motion to rescind resolution given shortly after – unsigned minutes published on council website – no correspondence sent by Council to offeror – minutes later confirmed – communication of acceptance not established LAND LAW – conveyancing – requirements of writing – Conveyancing Act s 54A – written offer of contract to purchase land from local council – council accepts offer in resolution at council meeting – resolution recorded in minutes signed at later meeting by mayor as chairperson – whether note or memorandum “of” contract – whether mayor “thereunto” lawfully authorised

COSTS — Application for indemnity costs on the basis of unsuccessful plaintiffs’ failure to accept Calderbank offer — Where offer made following filing of defence — No variation to the orders that costs payable on an ordinary basis

JUDGMENTS AND ORDERS — Effect of — Merger of causes of action — requirement for plaintiff to make an election between inconsistent remedies sought in the one proceedings — plaintiff seeks a declaration that it has a charge over the defendant’s properties to secure the future payment of a contingent debt — plaintiff not presently entitled to an order for the judicial sale of the properties as the debt is not presently due — plaintiff found to be entitled to damages for breach by the defendant of a covenant to cause the happening of the contingency that would make the debt presently payable — orders made to give effect to principal judgment

COSTS – party/party costs – successful plaintiff – costs follow the event – whether costs awarded to plaintiff should be discounted on account of changes in plaintiff’s case at hearing – where primary claim for relief unchanged and successful, but plaintiff abandoned some arguments in support of that claim – where plaintiff succeeded on late additional claim – no discount warranted

CRIME – sentence – murder – deceased was married to offender at time of offence – death caused by multiple stab wounds – deceased was murdered in her own home – where offender pleaded guilty at first opportunity – whether offender suffered mental health and cognitive impairment – whether mental condition contributed to offender’s inability to control himself – sentence imposed

CIVIL PROCEDURE – asset preservation orders – partnership action with claims to account from defendants – application to restrain completion of sale of defendants’ property – consent order for payment of monies into court – order expressed until further order – defendants apply for release of monies following judgment – onus – possibility of an appeal – accounts still to be taken – order partially discharged and otherwise continued on interim basis only

CONTEMPT — civil contempt — penalties — imprisonment — term of imprisonment imposed CONTEMPT — civil contempt — penalties — costs orders CIVIL PROCEDURE — interlocutory applications — application for leave to cross-examine on disclosure affidavit — leave granted

CONTRACTS — Misleading conduct under statute — Remedies — Measure of damages on a “no transaction” case — Whether plaintiffs established period(s) in respect of which their claim for lost profits and lost management fees should be calculated until 2024 or some other time — Consideration of factual finding of company’s liquidation on plaintiffs’ counterfactual

ADMINISTRATIVE LAW – judicial review – jurisdictional facts – plaintiff made a complaint to the President of the Anti-Discrimination Board of NSW (“ADNSW”) alleging the first defendant had contravened the Anti-Discrimination Act 1977 (NSW) – Delegate of the President of ADNSW declined plaintiff’s complaint under s 89B(2)(a) of the Anti-Discrimination Act – plaintiff contends that the Delegate fell into jurisdictional error – whether the Delegate declined the plaintiff’s complaint on an impermissible basis – whether the Delegate had jurisdiction to decline a complaint under s 89B(2)(a) of the Anti-Discrimination Act – whether the Delegate’s power to decline a complaint under s 89B(2)(a) was dependent upon it being established as a jurisdictional fact that no part of the conduct complained of could amount to a contravention of a provision of the Anti-Discrimination Act – whether that jurisdictional fact was established by the Delegate – whether there was evidence to support the Delegate’s second reason for declining the plaintiff’s complaint. HUMAN RIGHTS – discrimination – racial discrimination – plaintiff alleged unlawful direct discrimination on the ground of race by the first defendant contrary to ss 7(1)(a) and 17(2)(a) of the Anti-Discrimination Act 1977 (NSW) – where plaintiff’s complaint does not contend that the conduct of the first defendant constitutes unlawful indirect discrimination. CIVIL PROCEDURE – summary judgment – plaintiff filed a notice of motion seeking summary judgment – where motion listed for hearing at the same time as the substantive summons – where there is no longer any utility in the motion for summary judgment – where both parties consented to the motion being dismissed – motion seeking summary judgment dismissed.

COSTS — party/party — appeals — exceptions to general rule that costs follow the event — apportionment of costs — where mixed outcome on appeal — where issues sufficiently discrete to warrant apportionment — unsuccessful appeal on causation — significant reduction of damages on appeal COSTS — party/party — exceptions to general rule that costs follow the event — offers of compromise/Calderbank offers — whether offer of compromise complied with requirements of Uniform Civil Procedure Rules 2005 – whether offer complied with Calderbank principle

CHILD WELFARE – Aboriginal children at risk of significant harm – parental responsibility conferred on Minister – children placed in care of non-Aboriginal carers – carers’ temporary visas expired – Minister consented to temporary removal of children to the UK – application by mother for parental responsibility – orders conferring parental responsibility on carers in the UK COURTS and JUDGES – Children’s Court – jurisdiction – child not present nor ordinarily living in New South Wales – parental responsibility conferred on Minister – child living with carers in the UK – order conferring parental responsibility on Minister rescinded – whether Court can make order conferring parental responsibility on carers – whether jurisdiction of inferior court more extensive than Supreme Court’s parens patriae jurisdiction STATUTORY INTERPRETATION – jurisdiction-conferring provisions – not to be read down by implied limitations – application – specialist courts – inferior courts – judicial institutional arrangements – legislative history – comity of nations – conflict of laws rules giving effect to foreign law

EQUITY – breach of confidence – the respondent was the promoter of the boyband One Direction’s 2013 Australian concert tour – the appellant attended a meeting with representatives of the respondent on 26 February 2013 to pitch Cashtime concept – prior to pitching Cashtime concept there was a brief discussion about One Direction’s 2013 Australian concert tour – in early June 2013 the respondent announced an additional, free One Direction concert to be attended by Coles customers who purchased eligible products and were successful in an online draw as part of an arrangement between the respondent and Coles for Coles to provide sponsorship for the One Direction 2013 Australian concert tour – appellant claimed that in devising the additional, free One Direction concert, the respondent used confidential information he had supplied during the 26 February 2013 meeting – appellant alleged respondent breached equitable obligation of confidence – claim dismissed by primary judge – whether the primary judge erred in finding the information conveyed by the appellant was inherently unspecific – whether the primary judge erred in finding the information conveyed by the appellant was a very general and inchoate idea – whether the primary judge erred in finding that the information was not received by the respondent in circumstances importing an obligation of confidence – whether the primary judge erred in finding that there was no misuse of the information in question EVIDENCE – appellate review of witness evidence – where findings as to credibility and reliability of accounts given by various witnesses played a significant role in some of the primary judge’s key findings rejecting the claim for breach of confidence – where primary judge enjoyed very real advantages over an appellate court by reason of having seen the witnesses – to the extent the appellant seeks to challenge findings of fact influenced by the primary judge’s findings as to credibility and reliability he must establish findings were glaringly improbable or contrary to compelling inferences – whether primary judge’s findings were glaringly improbable or contrary to compelling inferences APPEALS – procedure – appellant’s claim would not exceed approximately $33,000 – where leave is required to appeal against a final judgment involving a claim or matter in issue of less than $100,000 – appellant sought leave to appeal out of time in his written submissions – appellant’s appeal raises points of principle of some importance in which the errors that he relies upon go beyond what is merely arguable – leave to appeal granted

CONTRACT — breach — total failure of consideration — agreement for loan of a specified amount — whether entire contract — whether obligations of borrower under agreement unenforceable where part only of loan amount advanced REAL PROPERTY — whether contract contained agreement of a registered proprietor and that a caveat may be lodged — whether implied creation of a caveatable interest in land INSURANCE — rectification — loan agreement — whether mutual intention of parties creates a separate charge over real property GUARANTEE AND INDEMNITY — circumstances in which surety discharged — where creditor advanced less than the full amount to be loaned under the agreement that was guaranteed — whether the principle of Ankar Pty Ltd v National Westminster Finance applied — onus on principal creditor to prove that change of lending arrangement with borrower was not detrimental to guarantor

ADMINISTRATIVE LAW – Motor Accidents Injuries Act 2017 (NSW) – obligation to articulate error of law in the summons – whether reasons required for a decision of the President’s delegate to arrange for a medical assessment to be referred to a review panel – whether r 78 of the Personal Injury Commission Rules 2021 (NSW) impose an obligation to provide reasons – the role of the President – “gateway function” – error based on the reasons that were given – failure of the President’s delegate to answer the question asked of her – jurisdictional error established – no denial of procedural fairness – discretion to dismiss summons discussed – decision quashed – matter remitted

ADMINISTRATIVE LAW — judicial review — review of tribunal decision — Greyhound Racing Act 2017 (NSW) — regulation of greyhound racing — power to register greyhound racing participants — greyhound racing registrations — statutory interpretation — consideration of surplusage — whether tribunal fell into error of law in exercising registration power — consideration of jurisdictional fact — fit and proper person test — whether failure to take into account relevant considerations — whether decision unreasonable

ADMINISTRATIVE LAW — Judicial review —decision of Review Panel about assessment of a compensation claim — Motor Accidents Compensation Act 1999 (NSW) — whether the Panel fell into jurisdictional error, failed to exercise its statutory powers and failed to give adequate reasons, failed to determine causation — constructive failure to exercise jurisdiction — the Panel’s reasons were inadequate — relevant legal errors established

PROCEDURE — notice of motion — orders seeking to set aside plaintiff’s subpoena — where documents sought are relevant to issues raised by the pleadings — where there is a legitimate forensic purpose — motion dismissed PROCEDURE — notice of motion — orders seeking to set aside parts of defendant’s subpoena — where the documents have no apparent relevance to issues raised by the pleadings — where no legitimate forensic purpose is established — orders made

CORPORATIONS – financial services – external dispute resolution scheme – review of determination made by Australian Financial Complaints Authority (AFCA) – whether determination legally unreasonable and beyond the contractual authority, jurisdiction or power of AFCA – whether decision one no reasonable decision maker could have reached on the evidence – where determination related to conduct of financial service licensee – whether financial service licensee adequately assessed complainant’s suitability to trade – apportionment of liability – consideration of ASIC Regulatory Guide 227

COSTS – party/party – gross sum costs order – no issue of principle

CRIMINAL PROCEDURE — Trial — Judge alone — different issues in cases concerning each accused —prejudicial but inadmissible evidence — complexity of legal and factual issues — graphic and disturbing nature of evidence — each matter amenable to directions — combination of factors favours judge-alone trial

SENTENCING — Terrorism offences — After trial

CIVIL LAW – extended supervision order – application to vary or revoke order – where defendant subject of order seeks to travel interstate – subjective assessment as to quality of judges – opinions may differ – disclosure that judge appeared for defendant in criminal proceedings when a barrister – apprehended bias – judge disqualified from further hearing the application

PRACTICE & PROCEDURE – professional negligence – medical negligence – notice of motion seeking expedition of hearing – plaintiff suffering from severe form of cancer – plaintiff may not survive delays – plaintiff may not be in a position properly to participate in the proceedings – time pressures on parties – balancing incommensurate factors – no question of principle

CIVIL PROCEDURE – where urgent final hearing date was vacated – prejudice to plaintiff from adjournment – whether plaintiff should be allowed to visit the dog as a condition of the adjournment – whether dog should be permitted to return to plaintiff pending final hearing – prejudice addressed sufficiently by permitting plaintiff to visit the dog at Rehoming Centre – reject condition that dog be returned to plaintiff – matter adjourned until final hearing

PRACTICE AND PROCEDURE — form of declaration and orders to give effect to previous judgment — no issue of principle

CIVIL PROCEDURE – application for determination of separate question – whether hearing of separate question should be ordered – whether proper construction of contract and final injunctive relief in respect of alleged breach of that contract should be heard before claim for damages – whether separate question should be provisionally listed for hearing

PRIVATE INTERNATIONAL LAW – where judgment that cross-defendant pay cross-claimant $37 million under letter of credit issued by cross-defendant in the People’s Republic of China – where cross-defendant enjoined by order of Court in the PRC from making payment under letter of credit – orders with extraterritorial effect – whether judgment should be stayed pending approach to a court of competent jurisdiction in the PRC to discharge its order and pending application by cross-claimant to have this Court’s judgment recognised in the PRC – where respectful request made by this Court to a court of competent jurisdiction in the PRC to consider its reasons for entering judgment against the cross-defendant and whether its orders should now be discharged CIVIL PROCEDURE – interest to judgment – where judgment debtor enjoined by order of Court in PRC from paying the amount the subject of the judgment

APPEAL – Tribunal decision – Unsatisfactory professional conduct – Professional misconduct – Psychologist – Patient.

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings — where the plaintiffs seek to set aside a costs assessment in favour of the defendant — where the plaintiffs allege that the costs assessment was supported by reliance on fraudulent documents — where the summons was filed out of time and requires substantial amendments — whether the summons should be dismissed as frivolous or vexatious.

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether genuine dispute or offsetting claim — Statutory demands set aside

COSTS — Party/Party — Costs thrown away by reason of amendment of pleadings — Whether costs of whole proceedings to date of the amendment should be ordered COSTS — Party/Party — Where no hearing on the merits — Where claims against particular party discontinued — Whether effective discontinuance of claims against other parties — Whether capitulation on dismissed cross-claim and notice of motion

CORPORATIONS – Winding up – Liquidators – Corporation was trustee of a unit trust and acted solely in that capacity – Liquidator sought be appointed receiver of assets of trust – Orders made appointing liquidator as receiver and permitting liquidator to sell trust assets to enforce right of indemnity and recover costs of receivership and winding up. CORPORATIONS – Winding up – Liquidators – Remuneration – Remuneration determination made by resolution of the creditors in respect of liquidator’s remuneration to conclusion of winding up – Liquidator’s affidavit failed to explain substantial delay in liquidation and in bringing application – Liquidator failed to explain in what respects winding up had proved more complex than was perceived at time of remuneration determination – Concerns raised by sole shareholder of Company and sole unitholder of trust regarding extent of remuneration and expenses – Consideration of quantum of charge over trust assets in respect of liquidator’s remuneration and expenses to date.

CIVIL – judicial review – medical appeal panel – dispute brought before Personal Injury Commission – referral to a specialist for Medical Assessment – Workers Compensation Act 1987 (NSW) – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – amended summons – no jurisdictional error found – no constructive failure to exercise jurisdiction – denial of procedural fairness not found – no jurisdictional error as to the opinion as to whole person impairment and correcting error found – Amended Summons dismissed.

COSTS — review of decision by manger, costs assessment granting the second defendant an extension of time to bring costs assessment application — whether the manager failed to deal with and consider the substance of the plaintiff’s case — consideration of second defendant’s change of position — second defendant’s unilateral withdrawal of its application for a costs assessment - capitulation — second defendant liable for plaintiffs’ costs and Sanderson orders warranted — assessment of costs on a gross sum basis and any discounts

HIGH RISK OFFENDERS – application for extended supervision order – terrorism related offences – Division 105A of the Criminal Code – whether the defendant poses an unacceptable risk of committing a Part 5.3 offence – defendant denied parole – interim supervision order in place – defendant no longer holds extremist views – concurrent expert evidence – low recidivism rate for terrorist offenders – VERA-2R – difficulties in identifying valid risk factors – risk-based on defendant being housed with terrorists – risk based on association in gaol with other terrorists – “who else are we going to talk to? The wall?” – difficult to articulate any risk posed by the defendant other than it exists to some extent – where legitimate concern that making the order may contribute to a sense of injustice – an ESO is not a substitute for parole – amended summons dismissed.

ESTOPPEL – proprietary estoppel – standing by – where the defendants are the registered proprietors of a property – where the first defendant allowed the plaintiffs to occupy the property for around 25 years before taking any formal steps to challenge their right to possession – where the plaintiffs made significant expenditures towards the renovation of the property during the course of their occupation – where dispute regarding ownership of the property has arisen in an informal family context – where almost all crucial evidence has been lost to the passage of time – whether the plaintiffs are the beneficial owners of the property – consideration of the credibility and reliability of the available witness and expert evidence to reconstruct the relevant historical events – held that the silence of the first defendant as the legal owner of the property had the effect of reinforcing the assumption of the plaintiffs that the first plaintiff was the sole beneficial owner of the property – held that the plaintiffs suffered real detriment as a result of the first plaintiff having acted on the belief that he was the sole beneficial owner of the property – proprietary estoppel made out – orders made for the defendants to transfer the title to the property to the plaintiffs

SUCCESSION — family provision — claims by adult child and adult grandchildren for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — final orders disposing of remaining issues COSTS — party/party — payable out of a fund — deceased estate — defendant executor’s costs payable on indemnity basis COSTS — offer of compromise where plaintiff unsuccessful — indemnity costs — no element of compromise sufficient to justify indemnity costs JUDGMENTS AND ORDERS — entry — effect of — consideration of the Court’s power to vary costs orders once entered

LAND LAW – Torrens title – Exceptions to indefeasibility – Estates and Interests recorded in folio – where the plaintiff and the defendant entered into a deed transferring a property from the defendant to the plaintiff, subject to a life interest in the property which gave the defendant a “right to reside” – whether the deed gave a right of exclusive possession to the plaintiff – where the plaintiff and the defendant had been in a close personal relationship as defined in the Property (Relationships) Act 1984 (NSW) – whether the plaintiff is entitled to an adjustment under s 20 due to monetary and non-monetary contributions to the defendant’s wellbeing and the property.

CRIME — Appeal and review — Appeal from Local Court — question of law alone – meaning of “mobile phone” — where a charge under r 300-1(1) of the Road Rules 2014 (NSW) dismissed — whether the Magistrate erred TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — mobile phone use — learner or provisional P1 or P2 driver — where driver was using a mobile phone as a navigation device while driving — Road Rules 2014 (NSW) — meaning of “mobile phone” — whether it is necessary to prove that at the time of use the device was capable of sending or receiving voice or other data over a mobile phone network — statutory interpretation — meaning of mobile phone is not defined by cellular connectivity

STATUTORY INTERPRETATION – principles of statutory interpretation – s 202 production order powers under the Proceeds of Crime Act 2002 (Cth) – where Commissioner of the Australian Federal Police obtained material from third parties relying upon s 202 after commencement of proceedings – whether the exercise of power in s 202 is permitted following commencement of proceedings CONSTITUTIONAL LAW – persona designata – where Proceeds of Crime Act 2002 (Cth) confers non-judicial powers on magistrates acting persona designata – whether commencement of proceedings in a different court transforms the exercise of a non-judicial power to an incidental exercise of judicial power – whether constitutional invalidity arises

PARTNERSHIPS AND JOINT VENTURES — Joint venture agreements — Rights and duties between joint venturers — Agreement to develop land — Accounting between joint venturers where agreement breached by venturers responsible for developing land abandoning the venture

CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance — Court approval — Where claim is not strong — Not realistic for the proceedings to continue without litigation funding

HIGH RISK OFFENDER – Preliminary hearing – Serious sex offender – Application for interim supervision order – Whether supporting material would if proved justify the making of an extended supervision order

HIGH RISK OFFENDER – Final hearing – Serious sex offender – Application for extended supervision order – Where parties accept defendant poses unacceptable risk of committing serious offence if not kept under supervision – Where dispute as to appropriate duration and conditions of supervision

RECTIFICATION – plaintiffs sell smash repair businesses – sale agreement includes ‘earn out’ to be paid in 2 years time – ‘earn out’ based on earnings before interest and tax (EBIT) and multiplier – heads of agreement refers to average annual EBIT – sale agreement refers to ‘EBIT for the earn-out period’ – this meant aggregate EBIT for 2 years, not average annual EBIT – effectively doubled the multiplier – solicitor’s error – ‘rectificaton by construction’ not available – principles at [68], [72]-[76] – inferring actual intention where plaintiffs did not give evidence – inferring actual intention of corporation, principles at [85] - common mistake – contract rectified. CONTRACTS – purchaser makes changes to businesses, said to impair ability to receive ‘earn out’ – implied term – duty to cooperate – principles at [128]-[130] – purchaser obliged to do all things necessary to ensure plaintiffs received benefits promised by the contract – does not extend to benefits that may occur – purchaser not obliged to operate businesses to ensure vendors receive earn out. MISLEADING OR DECEPTIVE CONDUCT – plaintiffs allege purchaser made oral representation that the businesses’ contracts would not be altered post-completion – plaintiffs fail to establish representation made – any representation made at early stage of protracted negotiations not misleading when viewed with the whole of the purchaser’s conduct, including terms of contract excluding reliance on any such representations.

CRIME – sentencing – federal offenders – conspiracy to cause loss to the Commonwealth – tax fraud schemes involving solid gold trading – protracted investigation

HIGH RISK OFFENDER – Preliminary hearing – Serious violence offender – Application for interim supervision order – Whether supporting material would if proved justify the making of an extended supervision order

JUDGMENTS AND ORDERS – amending, varying and setting aside – variation of costs order – variation sought – where principal appeal judgment addressed all issues raised on costs – where after principal judgment delivered appellant sought to make submissions on a point not raised on appeal – whether variation should be allowed COSTS – costs of trial – where eighth respondent liable on ordinary basis for appellants’ costs of one issue on appeal – whether costs should instead be on partial indemnity basis – where offer did not comply with UCPR r 20.26 – whether eighth respondent unreasonably rejected Calderbank offer