Cases and authorities

CRIME — Appeals — Appeal against sentence — Purposes of sentencing — General and specific deterrence — subjective circumstances

CRIME — Appeals — Appeal against sentence — Future commencement date of sentence — Delay — Revocation of parole — Manifest excess

CRIME – appeals – appeal against conviction – judge-alone trial – multiple carjacking, firearm and assault with intent to rob in company offences – where offending occurred over 18-hour time period and covered more than 1000km – where appellant in coercive control relationship with co-offender – duress – where trial judge determined that duress had not been established – whether trial judge erred by failing to consider that duress sufficiently raised to be considered by tribunal of fact – held trial judge’s ruling clearly a final determination as the tribunal of fact – whether there must be evidence of a particular request or demand to commit the offences charged – no direct or implied evidence of a demand or request to commit any of the offences – trial judge correctly concluded that the Crown had negatived the issue of duress – appeal dismissed

CHILD WELFARE – adoption – application by adoptive child to discharge adoption order – whether an exceptional reason shown – where adoptive child suffered abuse by adoptive father

CHURCHES AND RELIGIOUS ASSOCIATIONS — Church property and trusts — Authority to deal with — Vesting of property from original trustees to incorporated association

JUDGMENTS AND ORDERS – Amending, varying and setting aside – Consent orders – Consequential orders – retention of possible Capital Gains Tax Liability – other final orders

CIVIL PROCEDURE – application for review of decision of Common Law Registrar – gross sum costs order – large quantity of irrelevant affidavit material filed and served by the plaintiff – all of plaintiff’s affidavit material irrelevant – true issue articulated only in answer to question of the Court at the hearing on 23 October 2023 – Registrar’s reasons fail to overtly deal with costs expert evidence relied upon by the plaintiff – costs expert evidence of no utility, relevance or weight – no basis for setting aside the decision of the Registrar – Registrar’s decision confirmed

MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Foreclosure — Where plaintiff alleges it has been assigned the security rights of a mortgagee over a share in a company — Where not established that lender or plaintiff as assignee has extinguished the defendant’s equity of redemption by a foreclosure action — Whether an order can be made under s 175 of the Corporations Act 2001 (Cth) to correct the register of members to record the plaintiff as the legal and beneficial owner of the share.

LAND LAW — Conveyancing — Contract for sale — Where defendant vendor purported to rescind on basis of mental illness — Where right to rescind if party dies, becomes bankrupt or mentally ill — Whether definition of “mentally ill” under Mental Health Act 2007 (NSW) is incorporated in contract — Whether defendant became mentally ill after exchange of contracts — Whether defendant’s mental illness impeded him from carrying out contractual obligations to enliven clause — Whether defendant contrived mental illness to enliven clause

MENTAL HEALTH – application for extension of defendant’s status as a forensic patient – whether the defendant poses an unacceptable risk of serious harm – risk conceded – orders made

EQUITY – equitable remedies – injunctions – interlocutory injunctions – where defendant is former employee of plaintiff – where defendant has disseminated material disparaging of plaintiff to plaintiff’s clients – where defendant has threatened to disseminate further materials – where the Court has made interim orders restraining the defendant from disseminating or distributing any copies of the disparaging materials or inducing any client of the plaintiff to terminate or not renew any contract with the plaintiff – whether the Court should issue a further interlocutory injunction against the defendant to operate until the final hearing of these proceedings or further order CIVIL PROCEDURE – suppression and non-publication – whether orders should be made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the disclosure by publication or otherwise of building management agreements between the plaintiff and a series of owners corporations

CIVIL PROCEDURE – originating process – amendment – where plaintiff seeks leave to amend statement of claim – where substantive proceedings concern claim by plaintiff that second defendant used real property she inherited in a manner inconsistent with a memorandum of wishes she signed with the deceased testator – where the Court of Appeal has determined that plaintiff does not have a present beneficial interest in the real property – where plaintiff seeks to amend statement of claim in order to accommodate the effect of the reasons of the Court of Appeal – whether plaintiff’s draft amended statement of claim cures the deficiencies in the existing statement of claim – held that the proposed amendments do not cure the substantive deficiencies in the plaintiff’s claim to have an existing beneficial interest in the real property – leave to amend statement of claim to be refused CIVIL PROCEDURE – pleadings – particulars – summary dismissal – striking out – where second defendant seeks orders for the summary dismissal and striking out of the plaintiff’s prayers for relief and associated pleadings and particulars concerning her ownership and use of the real property – where said prayers for relief and associated pleadings and particulars depend on the existence of a present trust interest in favour of the plaintiff over part of the real property – held that such a trust interest does not automatically arise in equity – held that there is no basis for imposing such a trust interest – orders to be made summarily dismissing prayers for relief in the plaintiff’s statement of claim which depend on the existence of a present trust interest in favour of the plaintiff over the real property – orders to be made striking out allegations by the plaintiff regarding the real property and the plaintiff’s restatement of his entitlement to the relief claimed – leave to amend the pleadings and particulars struck out or summarily dismissed to be refused CIVIL PROCEDURE – subpoenas – application to set aside – where second defendant seeks orders to set aside and ‘undo’ the effect of a subpoena issued to a bank at the instance of the plaintiff – application to set aside subpoena ultimately not pressed as the Court will make the summary dismissal order sought by the second defendant

LEASES AND TENANCIES – assignment and subletting – consent – where defendants entered into lease agreements with plaintiff to enable it to construct and operate a wind farm on their land – where second and third defendants granted options to plaintiff to acquire a separate lot that would be subdivided for the construction of an electricity substation – where second, third and fifth defendants granted options to plaintiff to acquire easements over their land and over an access road for the erection of a high voltage electricity transmission line – where all options expired without having been exercised by plaintiff – where plaintiff sought defendants’ consent to grant a non-exclusive access licence under the lease agreements to an electricity transmission network operator – where defendants did not consent to the grant of the proposed non-exclusive access licence – whether defendants unreasonably withheld consent – whether the legal relationship between the parties changed when the plaintiff allowed all of its options to expire – whether it was reasonable for the defendants to require the electricity transmission network operator to accept the grant of an access easement along an access road and to require the plaintiff to pay an additional consideration for the grant EQUITY – equitable remedies – specific performance – cross-claim by first and second defendants against plaintiff – where defendants and plaintiff entered into a deed of release to compromise disputes which arose during the course of the construction of the wind farm – where the deed of release provided that, inter alia, the plaintiff is to undertake a survey and create an easement to accommodate the realignment of a right of way to allow for access tracks to cross the boundaries of land owned by the defendants – where the deed of release further provided, inter alia, that the plaintiff is to remediate damage to parts of the land owned by the defendants in accordance with various “punch lists” – whether the Court should order specific performance of the creation of an easement to accommodate the realignment of a right of way – whether the Court should order specific performance of the completion of remediation items in the “punch lists” which remain outstanding or incomplete

CIVIL PROCEDURE – interim preservation – freezing orders – where defendant has proffered undertakings to the Court to resist plaintiff’s proposed freezing orders – whether undertakings proffered by defendant provide adequate protection to plaintiff – held that the undertakings proffered by defendant will sufficiently put the plaintiff in the same position as if a freezing order had been made requiring the defendant to retain sufficient assets to satisfy debt claimed by plaintiff – application for freezing order to be dismissed

CONTEMPT – sentence – refusal to give evidence in proceedings against former correctional officer – where correctional officer was charged with contraband offences and engaging in an intimate and sexual relationship with the defendant – refusal to give evidence resulted in withdrawal of contraband offences and allegation of sexual relationship – where defendant was seriously assaulted two days before he was due to give evidence – where defendant refused to give evidence due to fears for his own safety – little evidence of defendant’s subjective circumstances – not entitled to leniency on the basis of his criminal record and the large number of prison offences – significance of deterrence and denunciation in contempt proceedings – plea of guilty and evidence of remorse – where defendant serving existing sentence in circumstances where parole revoked not referable to contempt – totality – when contempt sentence should commence - sentence to commence on day of decision

CORPORATIONS — priorities — circulating assets — insufficiency of assets — Commonwealth subrogated rights of employees of company being wound up — whether liquidator’s claim for remuneration, costs and expenses ranks ahead of priority creditor — whether order of priority established by ss 556 or 561 of Corporations Act 2001 (Cth) CORPORATIONS — statutory construction — legislative history of provisions — meaning of the word ‘claim’ in s 561 of Corporations Act – relationship between ss 433 and 561 — when determination for insufficiency of assets is to be made by liquidator or receiver

CRIMINAL LAW – Crown appeal – sexual intercourse with a 10 year old child – offence on Form 1 – respondent serving an aggregate sentence for domestic violence offences – concession by respondent that sentence was manifestly inadequate when the degree of concurrence with existing sentence was taken into account – whether sentence for the offence was manifestly inadequate – whether sentencing judge had taken into account specific deterrence, protection of society and denunciation – whether error in consideration of JIRS statistics – whether error in consideration of JIRS starting date of sentence – residual discretion – resentence – assessment of objective seriousness – consideration of moral culpability – respondent’s deprived background – whether causal link between deprived background and offending – whether causal link necessary – mental health – approach to totality – appeal allowed

CRIME – appeals – appeal against sentence – attempt to import commercial quantity of border-controlled drug – ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – Crown conceded “Totaan error” – appellant’s incarceration causes hardship to family and dependents – parity with co-offenders – appellant resentenced

CRIMINAL LAW – where application by accused seeking a Shepherd direction – whether it is an indispensable fact that the jury must find that the accused contemplated the offending would involve a knife – Crown not limited by way of a Shepherd direction – application refused

CIVIL PROCEDURE – medical negligence – infant plaintiff – claim statute barred – risks of litigation – whether proposed settlement in best interests of plaintiff

COSTS – party/party – purported tutor of person whose estate is under financial management – personal liability of purported tutor to satisfy costs order made against legally incapable person without recourse to managed estate

CONTRACTS — formation — acceptance of Calderbank offer — whether parties reached a binding agreement to settle the proceedings — application of Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72

LAND LAW – possession of land – possession sought by bankruptcy trustee from bankrupt – where defence relied on alleged breaches of obligations of trustee – no defence to claim for possession – defence struck-out – judgment for possession

CIVIL PROCEDURE – pleadings – amendment to Commercial List Response – insurance claim – allegation of no insurable loss – whether facts alleged capable of leading to that conclusion INSURANCE – property insurance – fire – risks insured – where fire at commercial premises – whether later sale of premises at price significantly in excess of purchase price itself capable of bespeaking no insurable loss

JUDGMENTS AND ORDERS – amending, varying and setting aside – correction under slip rule – correction after notice of motion within 14 days – where on Court of Appeal’s reasoning the respondent remained entitled to $138,629 in rental arrears and $22,817.76 in outgoings (together with interest) – where orders disposing appeal set aside entire award of damages – whether orders should be corrected under UCPR r 36.16(3A) or r 36.17 – whether parties should be permitted to make further submissions on costs

CRIME – sentencing – offence under Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6 –engaging in hostile activity in foreign country – parole only available in exceptional circumstances – Crimes Act 1914 (Cth), s 19ALB – parole refused – whether s 19ALB or established practice of Commonwealth to be disregarded in sentencing – whether sentence manifestly excessive – whether improbability of parole warranted reduction of sentence

CRIME – appeals – appeal against conviction – circumstantial case – whether trial judge’s directions in response to jury question gave rise to miscarriage of justice – jury directed that there was no evidence to support a particular inference inconsistent with the Crown case but consistent with guilt – direction a proper reflection of evidentiary position – no misdirection established CRIME – appeals – appeal against sentence – murder – relevance in sentencing proceedings of generalised research on effects of background of disadvantage – Bugmy Bar Book – relevance of background of disadvantage to sentencing for serious offending – appeal allowed – offender resentenced

CRIME – Appeals – Appeal against conviction – accessorial liability – applicant convicted of accessory before the fact to murder by shooting – whether impermissible reliance by the Crown on an alternative path to guilt on the basis of knowledge of an unidentified act committed with the intention of causing grievous bodily harm of an unidentified kind – whether trial judge’s instructions gave rise to error of law – whether knowledge of the type of offence in accessorial liability includes knowledge of the manner in which it will be brought about – crown submissions and directions read in proper context–leave granted – appeal against conviction dismissed CRIME – appeals – appeal against sentence – murder – accessorial liability – whether the sentencing judge failed to engage with a critical submission advanced on the applicant’s behalf about the applicant’s knowledge of the principals’ intention – leave to appeal granted – appeal dismissed CRIME – appeals – Crown appeal against sentence – murder – accessorial liability – whether the sentence imposed for murder is manifestly inadequate – whether the sentencing judge erred in failing to accumulate the sentence imposed in relation to the accessory after the fact of murder count to any extent – sentence imposed for murder was manifestly inadequate – respondent resentenced

CRIME – Crown appeal – whether aggregate sentence for multiple counts of supplies of large commercial quantities of prohibited drugs manifestly inadequate – totality - significance of sentences previously imposed for separate supplies of large commercial quantities of prohibited drugs – significance of separate sentence imposed by sentencing judge for separate offending contrary to federal law – whether inadequacy of sentence so marked that amounted to an affront to justice – appeal allowed and respondent resentenced

CRIMES – appeals – appeal against sentence – where applicant pleaded guilty to possession of a pistol and two counts involving discharge of the weapon – where sentencing judge misapprehended agreed facts as to which count involved the infliction of second gunshot wound – whether despite factual error no lesser aggregate sentence warranted for the three counts

CRIME — Appeals — Appeal against conviction — Inconsistent and unreasonable verdicts — Single complainant — Child sexual assault

CRIME – sentence appeal – finding of lack of remorse based on lack of candour – finding open – finding of attempts to minimise role – finding open – parity – no error – appeal dismissed

CIVIL PROCEDURE – Pleadings – Inconsistency with previous pleadings – dispute between the parties as to an amended statement of issues – whether the amended statement of issues accurately reflects the plaintiffs’ pleaded case

CRIMINAL LAW – privilege against self-incrimination – where accused elects to give evidence in his murder trial – where circumstantial case includes lies told to police to be used to support consciousness of guilt reasoning – explanation for lies includes involvement in drug transaction – evidence-in-chief oblique and no objection taken – objection taken in cross-examination concerning details – section 128 certificate – application for a certificate – objection upheld – accused required to answer questions – certificate granted

CORPORATIONS — Practice and procedure — Application to adjourn winding up application under Corporations Act 2001 (Cth) s 453Q to advance a restructuring — Where analysis by restructuring practitioner as to advantages of a restructuring lacks evidentiary support — Whether it is in the interests of the company's creditors for the company to continue under restructuring rather than be wound up. CORPORATIONS — Practice and procedure — Where defendant seeks to file an amended grounds of opposition to a winding up that relies on matters previously raised in an interlocutory process brought under Corporations Act 2001 (Cth) s 459S — Whether the defendant can now contest the debt so as to deny the plaintiff’s standing to bring a winding up application.

CIVIL PROCEDURE – settlement approval – whether proposed settlement in best interest of plaintiff – traumatic brain injury to adult male at work site – strong liability case – settlement approved

CONTRACTS — formation — agreement — circumstances of conclusion of agreement — characterisation of agreement as sale or security transaction PERSONAL PROPERTY — sale of goods — passing of property — where invoices issued MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — security interest — no security interest proven

COSTS — Security for costs — Whether security should be ordered against an Owners Corporation — Where plaintiffs plainly impecunious — Where request for undertakings refused

JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal – application to vary orders under UCPR, r 36.16(3A) – where notice of motion filed within 14 days – where amended notice of motion filed more than 14 days after orders entered – power of court to entertain amended application –power to amend motion only to the extent matters adequately notified within 14 day period COSTS – application to vary costs order – UCPR, r 36.16(3A) – where question of costs addressed in submissions on appeal – no basis for variation made out COSTS – appeals – Suitors’ Fund – where submissions by applicant had material role in errors by primary judge – where applicant on appeal opposed setting aside orders of primary judge – application for certificate refused JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal – application to vary orders under UCPR, r 36.16(3A) – whether proper basis to make variations sought – where matter litigated in District Court – inappropriate for Court of Appeal to resolve case management issues – orders refused

CRIMINAL LAW – criminal trial – where juror has become unwell – juror discharged

CHILD WELFARE – adoption – Aboriginal child – non-Aboriginal proposed adoptive parents – where child now 18 – where child had been placed with proposed adoptive parents since infancy – where Aboriginal birth mother opposed adoption – where child expressed strong view that he wishes to be adopted

COSTS — Party/Party — General rule that costs follow the event — Security of Payment Act proceedings — Where defendant ultimately entitled to recover majority of adjudication determinations — Where costs reserved on a number of interlocutory applications

CROSS VESTING – proceedings concern plaintiff who lives in Western Australia and an accident that occurred in Western Australia – application by defendant to transfer made promptly – plaintiff’s solicitor neither consents to nor opposes the application – order to transfer made – no point of principle

ASSOCIATIONS AND CLUBS — registered club incorporated and limited by guarantee — whether additional by-laws are inconsistent with club’s constitution — where club’s constitution provides power to make by-laws not inconsistent with the club’s constitution — meaning of inconsistency — where additional by-laws impinge on members’ right to vote and stand for election as directors — consideration of delay and other discretionary factors relevant to grant of declaratory relief

HIGH RISK OFFENDER – convictions for serious violence offence – application for extended supervision order pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – whether unacceptable risk of re-offending if not supervised – whether Court should exercise its discretion and decline to make an order – whether conditions proposed by the plaintiff are appropriate

APPEALS – leave to appeal – principles governing – where Applicant sought leave to appeal from a discretionary decision of the primary judge to adopt aspects of a referee’s report – whether matter raises an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable

PROCEDURE – Teoh order – whether further application to set aside orders vexatious or an abuse of process – applicant’s motion dismissed as an abuse of process

JUDGMENTS AND ORDERS – Inconsistency – where funds misappropriated from partnership – where proceedings commenced by appellants claiming existence of partnership and entitlement to amounts from estate of partner who misappropriated the funds – where proceedings commenced by others seeking distributions from constructive trusts declared over estate funds – where inquiry ordered into what monies appellants entitled to from estate – whether costs order made by primary judge inconsistent with earlier Court of Appeal costs orders – whether Court of Appeal orders insulated costs order in favour of appellants from subsequent diminution or alteration through inquiry PARTNERSHIPS AND JOINT VENTURES — Rights and duties between partners — Contribution and indemnity – whether substantive contribution claim raised – whether issue of contribution determinable by primary judge as part of consideration of costs – whether primary judge erred in failing to determine, or constructively denying, appellants’ contention that other members of partnership were liable to contribute to their costs of proceedings – whether costs incurred in the ordinary and proper conduct of the business of partnership within meaning of Partnership Act 1892 (NSW), s 24(1)(2)(a) – whether costs incurred in manner giving rise to relevant equity grounding right of contribution

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Where appellant had filed notices of appeal 5, 11 and 15 months out of time – Where grounds of appeal had not been properly articulated or did not disclose arguable error – Whether extension of time to file notices of appeal should be granted