Cases and authorities

CRIME – Appeals – Appeal against sentence – leave to appeal granted – parity – whether applicant has a justifiable grievance in light of the sentences imposed on the co-offenders – manufacture of a large commercial quantity of MDMA – criminal enterprise – group of four offenders – where two co-offenders previously successfully appealed sentences to achieve parity with applicant – where applicant was slightly lower in hierarchy than co-offenders – differentiation justified by other factors – no justifiable sense of grievance established – appeal dismissed

CRIMES – appeals – appeal against sentence – manifest excess – where applicant pleaded guilty to six offences including supply of shotgun – whether degree of notional accumulation unreasonable – whether indicative sentences nominated for minor offences excessive – where degree of accumulation additional to indicative sentence for most serious offence of supply shotgun very modest – aggregate sentence not manifestly excessive

CRIME – appeals – Crown appeal against sentence – manifest inadequacy – 14 counts of child sexual abuse against biological daughter over a period of two years – where complainant was aged between 6 and 8 years – where clear guidance on the appropriate range for indicative sentences for this type of offending was recently provided in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 – where Crown drew attention to TH in its written submissions to the sentencing judge – held indicative sentences for 10 offences at mid-range and above mid-range far below the proper range of sentences for such offending – where head sentence for all of the offending less than standard non-parole period for 1 of the 13 counts of sexual intercourse with a child under 10 years –– aggregate sentence an affront to the administration of justice – Court must intervene and resentence – appeal allowed – resentence

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – evidence – admissibility of evidence – Electronically Recorded Interview with Suspected Person (“ERISP”) – evidence objected to by co-accused – s 135 Evidence Act 1995 (NSW) – the probative value of questions and answers 1257-1266 in the accused Rahim’s ERISP is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused Taufahema

CRIMINAL LAW – proceeds of crime – restraining orders

CROSS-VESTING – defamation proceedings in Federal Court against TV network and employed journalist – journalist retains separate legal representation – employer protests — employee commences proceedings in this Court seeking indemnity from employer — Federal Court judge voices concern about proceedings in this Court — application to transfer – principles at [32]-[39] — interests of justice — comity — overlap of issues creates possibility of conflicting judgments and unnecessary duplication of costs — proceedings transferred.

CORPORATIONS – Scheme of arrangement – transfer scheme – application for approval – minor non-compliance with convening order in giving of notice of meeting – procedural irregularity validated by Corporations Act, s 1322(2) – amendments to scheme sought to correct cross-referencing errors

CHILD WELFARE – adoption – order – best interests of children

CIVIL PROCEDURE — Preliminary discovery — Where plaintiff may be entitled to make claims for relief against the first and second defendants — Where reasonable enquiries made by plaintiff of defendants — Where plaintiff possesses extensive information as to potential claims but requires further information to decide whether to commence proceedings — Where proposed categories of preliminary discovery also extensive — Preliminary discovery granted in respect of three of nine categories sought against first defendant — Preliminary discovery granted in respect of one of three categories sought against second defendant CORPORATIONS — Management and administration — Application to inspect books — Onus of demonstrating good faith and proper purpose not met by plaintiff in respect of documents not reasonably required for plaintiff’s decision to commence proceedings — Where no other purpose for proposed inspection identified — Application dismissed

COSTS — appeal from review panel — whether the review panel had power to award costs of the review — whether the review panel provided adequate reasons regarding whether the costs respondent was given a reasonable opportunity to participate in the first instance costs assessment COSTS — appeal from review panel — consideration of whether leave ought to be granted in relation to costs under the threshold amount — issue of law not previously considered by the Supreme Court — matter of public importance and practical significance — leave granted COSTS — appeal from review panel — cross appeal — satisfied reasons are legally adequate — reasons explain actual path of reasoning in sufficient detail COSTS — appeal from review panel — appeal — review panel has power to award costs of the review

JUDICIAL REVIEW – President of the Personal Injury Commission – President's Delegate – Motor Accident Compensation – Third Party Comprehensive Insurance.

NEGLIGENCE — duty of care — reasonable foreseeability of harm — construction site — plaintiff fell three metres from first story to ground below —statutory notification of incident under Work Health and Safety Act 2011 (NSW), ss 19, 35, 38 — whether notification was an admission under Evidence Act 1995 (NSW), s 82 — whether defect in void protection known — whether plaintiff’s use of uncompleted stairs reasonably foreseeable — whether risk of fall and resulting harm reasonably foreseeable — breach of duty established NEGLIGENCE — liability — occupier and subcontractor — duty to exercise reasonable care in relation to safety of building site and to persons coming onto site to avoid foreseeable physical injury — causation — whether injury the result of unauthorised acts of contractor — occupier liable NEGLIGENCE — liability — employer and employee — plaintiff sole director and employee of second defendant — where plaintiff knew of defect in void protection — second defendant’s breach of non-delegable duty of care to plaintiff as employee established — whether plaintiff also negligent or his actions resulted from inadvertence — inadvertence established NEGLIGENCE — contributory negligence — not established where plaintiff’s actions the result of inadvertence CIVIL PROCEDURE — cross-claims — contribution or indemnity between defendants — Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c) — Workplace Injury Management and Workers Compensation Act 1987 (NSW), s 151Z

LAND LAW — Strata title — Termination of strata scheme — Where termination orders sought not unanimous — Where there are existing debts owed by owners corporation to an unsecured lender — Whether registered mortgagees ought be paid first from proceeds of sale if termination orders made — Whether collective sale pursuant to Part 10 of the Strata Schemes Development Act is more appropriate in the circumstances

CONTRACT — Construction — Interpretation — Contractual purpose — Varied contract to be construed — Commerciality of contractual construction — Price adjustment mechanism — Meaning of Base Date Index Value when that composite term was not defined but when Base Date was defined

PRACTICE AND PROCEDURE – reference on appeal – adoption of referee’s report – whether referee erred in construction of contract COSTS – at trial and on appeal – Calderbank offer at trial – joint offer by multiple parties – offer of compromise not renewed on appeal – late concessions by party on appeal – whether special costs order appropriate at trial and on appeal

CRIME – appeals – appeal against sentence – imprisonment by way of intensive correction order (“ICO”) – where applicant sentenced to term of imprisonment of 3 years and 6 months for drug and weapon offences – whether sentencing judge ought to have considered ICO as alternative to full-time detention – where ICO only available for aggregate term of imprisonment 3 years or less – whether aggregate ought to have been reduced by the period on remand rather than backdated to date of arrest so that aggregate less than 3 years – enlivening availability of an ICO not a relevant consideration in fixing duration and commencement date where a term of over 3 years is found appropriate CRIME – appeals – appeal against sentence – mitigating factors – whether sufficient weight given to applicant’s uncontested evidence of non-exculpatory duress

CRIME – appeals – Crown appeal pursuant to Criminal Appeal Act s 5F(3A) – doli incapax – where respondent aged between ten and fourteen at time of alleged offending – knowledge and development for doli incapax purposes – whether evidence if admitted would substantially weaken the Crown case

CRIME — Appeals — Appeal against finding that offences committed after special hearing — Unreasonable verdicts

CRIME – appeals – appeal against sentence – sexual assault – knowledge about absence of consent – self-induced intoxication – Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5AA) – whether intoxication not self-induced due to asserted history of addiction – whether sentencing judge erred in finding that offender had actual knowledge, rather than an unreasonable belief, that the victim consented – whether sentence was manifestly excessive

CRIME – appeals – appeals against sentence – failure to backdate sentence to account for time served in pre-sentence custody – parties contributed to sentencing error in providing unnecessarily complicated pre-sentence custody information – error established – failure to sufficiently vary the statutory ratio upon finding special circumstances – adjustment reflects explicit intention – no error – non-parole period in years, months, and days – mathematical precision not required – appeal allowed – applicant re-sentenced

CIVIL PROCEDURE — Interim preservation — Freezing orders — Injunction — Variation of — Whether serious question to be tried — Where transfers made to family members while proceedings on foot — Where evidence of undervaluation — Serious question to be tried

CRIMINAL LAW – evidence – admissibility of evidence – bladed weapon and photograph of bladed weapon – evidence objected to by co-accused – s 135 Evidence Act 1995 (NSW) – probative value not substantially outweighed by the danger that the evidence might be unfairly prejudicial – evidence admissible against the accused Rizk

CRIME — sentencing hearing – Commonwealth tax fraud offences – whether offenders had personally benefitted from the tax fraud schemes – where one offender sought to adduce further evidence relevant to contrition – where one offender withdrew instructions of legal representatives and made further submissions on sentence CRIME – bail — detention application – whether special or exceptional circumstances exist – detention application granted

CHILD WELFARE – adoption – order – best interests of the child – where child has complex medical needs

SENTENCING – Terrorism offence – Doing acts in planning or preparation for terrorist acts – Advocacy of terrorism act/offence taken into account on 16BA schedule – Where offender has not resiled from belief system of violent jihad – Poor prospects of rehabilitation – Catastrophic spinal cord injury suffered in custody – Impact of childhood deprivation and mental health diagnoses upon moral culpability

LAND LAW - easements – creation of easements – plaintiff’s rural land is only accessible from a nearby public road through the defendants’ adjoining land – plaintiff seeks the grant of an easement under Conveyancing Act 1919, s 88K to regularise her informal use of the defendants’ land pursuant to a licence from the defendants – defendants’ Cross-Claim for trespass and nuisance contends the plaintiff has used the defendants’ property other than for passage to and from the public road and that trespassed upon the defendants’ land and caused nuisance to the defendants. CIVIL PROCEDURE – Summary Disposal – Dismissal of proceedings – want of due despatch – plaintiff has not taken all ordered procedural steps to progress her Summons to a hearing – plaintiff no longer retains solicitors – plaintiff has not prepared survey documentation, and appears cannot demonstrate an immediate capability to fund the payment of the necessary compensation to the defendants for any grant of relief under Conveyancing Act, s 88K – plaintiff gives undertaking to the Court to prosecute the proceedings with diligence – whether the proceedings should be struck out pursuant to Civil Procedure Act 2005, s 61 or under Uniform Civil Procedure Rules 2005, rr 12.7 or 13.4 – issues on the Cross-Claim raise damages questions that lie within the jurisdiction of the District Court - if the Summons is struck out, whether the Cross-Claim should be transferred to the District Court under Civil Procedure Act, s 146.

ASSOCIATIONS AND CLUBS — General law derivative action — Where two members of incorporated association seek declaration as to entitlement to commence derivative proceedings at general law — Whether a declaration should be made to give effect to Court’s findings. COSTS — Party/Party — General rule that costs follow the event —whether hearing should be excluded from costs order

CIVIL PROCEDURE – summary dismissal – striking out pleadings – whether proceedings disclose a reasonable cause of action – whether proceedings are abuse of process or vexatious – whether pleadings are embarrassing – proceedings dismissed

CONTRACT – Payments totalling $1.3m were made by plaintiff to defendant following discussions between principals – Dispute as to whether payments represented a loan to defendant or payment for services rendered by defendant – Subsequent conduct of parties revealed a common assumption that a loan agreement had been entered CONTRACT – Parties agreed to share office premises and to share, on an equal basis, rent and outgoings over the term of a three-year lease – Whether the agreement was breached – No breach or loss found RESTITUTION – Common counts – Claim for money had and received – Payment of $1.7m made to defendants as deposit for sale of their shares to plaintiff – Sale of shares did not proceed – Whether a total failure of consideration – Whether the parties entered into a Share Sale Agreement – Agreement found to be entered – No total failure of consideration – Terms of agreement govern repayment of deposit CONTRACT – Set-off – Share Sale Agreement provided for payments due from plaintiff or related parties to be set off against defendants’ obligation to repay the deposit – Whether defendants established the existence of payments due from plaintiff or related parties – Effect of set off

APPEALS — crime — appeal against conviction — sexual intercourse without consent — unreasonable verdict — credibility of complainant — alleged inconsistencies in complaint evidence to friends and family — whether aspects of complainant’s evidence and behaviour towards applicant would cause jury to have a reasonable doubt — appeal dismissed

CRIME — Appeals — Appeal against conviction and sentence — guilty pleas — multiple child sexual assault offences

HIGH RISK OFFENDER – preliminary hearing – defendant concedes that an Interim Supervision Order should be made – dispute about curfew condition – no issue of principle.

CRIMINAL LAW – evidence – admissibility of evidence – video recordings of finding of a bladed weapon – evidence objected to by co-accused – s 135 Evidence Act 1995 (NSW) – probative value not substantially outweighed by the danger that the evidence might be unfairly prejudicial – evidence admissible against the accused Rizk

CRIMINAL LAW – credibility evidence – application to adduce prior consistent statements to re-establish witness’s credibility – operation of s 108(3) Evidence Act 1995 (NSW) – whether s 108(3) only applies to re-examination – suggestion that witness fabricated evidence – whether unfairness arose through inability of accused to cross-examine witness on statements – consideration of the way the evidence emerged – where fact of conversation but no details led in chief – sound forensic choice not to cross-examine – no relevant unfairness – importance of evidence – timing of alleged fabrication of evidence – where consistent statement pre-dated fabrication – direction limiting use of evidence

COSTS – self represented litigant – repeated attempt to re-litigate the same subject matter – Federal Court already dismissed the same case as an abuse of process – application for indemnity costs – application for gross sum costs order – where claim summarily dismissed – applications granted CIVIL PROCEDURE – application to restrain plaintiff from commencing further proceedings unless and until payments of costs

CRIMINAL LAW – murder – discharge of a juror – where unwell and unable to perform duties as a juror – where jury otherwise ready to retire, subject to ballot

FAMILY LAW — Children — Paternity — Where a French court has recognised the paternity of a father not listed on a child’s birth certificate — Where admission made by the father in French proceedings that he was the father of the child — Whether orders can be made under s 21 of the Status of Children Act 1996 (NSW) to declare that the father is the father of the child — Whether order can be made under s 19 of the Births, Deaths and Marriages Act 1995 (NSW) that the father be included as the father of the child on the Register of Births, Deaths and Marriages.

BUILDING AND CONSTRUCTION – Design and Building Practitioners Act 2020 (NSW) – statutory duty under s 37 – application to amend Technology and Construction List Statement

CIVIL PROCEDURE – Motion for summary disposal – alternative Motion to strike out pleadings – workplace injury – meaning of “other tort” – need to specify in Pre-Filing Statement – to the extent proceedings not struck out – need to re-plead

COSTS – party/party – unsuccessful application for separate question – whether costs should follow the event

LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees – remuneration of trustees – approval of remuneration of trustees – dispute between three registered proprietors as tenants-in-common of certain real estate – trustees for sale appointed for the sale of the property – one of the three co-tenants, the defendant, disagrees with the approval of the trustees’ remuneration – the defendant alleges various charges were improperly incurred by the trustees – the defendant further alleges that the trustees failed properly to undertake their task – whether the trustees’ remuneration was reasonable and should be approved, and if approved, whether it should be charged against the defendant’s share of the proceeds of sale.

SUCCESSION — Family provision — Moderate sized estate ($1.6M property less liabilities of $35,000, sale costs and costs) — Estate left to deceased’s 3 adult children — Claim by one of 6 grandchildren who had resided with his grandmother (the deceased) for lengthy periods — Various issues raised including the extent of the plaintiff’s contributions and his financial circumstances in particular his income and expenses — Plaintiff claims provision for accommodation and fund for contingencies but without any evidence bearing upon these matters — Claims for provision outlined in submissions rejected in light of absence of evidence — Provision for advancement in life and contingencies given SUCCESSION — Family provision — Factors warranting SUCCESSION — Family provision — Contingencies — Discussion regarding nature of orders for provision and contingencies SUCCESSION — Family provision — Form of provision — Cross-examination demonstrated plaintiff engaged in online gambling activities — Provision ordered in the form of funds to be held on trust

LIMITATION OF ACTIONS – overpaid rates – no claim made within 12 month limitation period imposed by Recovery of Imposts Act 1963 (NSW), s 2(1) – whether ratepayer’s claim was claim to recover tax “recoverable on restitutionary grounds” – whether claims “recoverable on restitutionary grounds” confined to claims at common law as opposed to statutory claims – significance of extrinsic materials to construction of statute – whether claim for credit as opposed to refund of overpaid rates was a claim to “recover” overpaid rates

EQUITY – Set-off – Where the appellant had been ordered to account to the respondent in respect of moneys drawn under a mortgage facility secured over property held for the respondent’s benefit and the respondent had been ordered to re-pay the appellant sums owing under a loan unrelated to the mortgaged property – Whether the two claims were sufficiently closely connected that one could be said to impeach the other in the sense required for an equitable set-off. EQUITY – Whether Brickenden principle (see Brickenden v London Loan & Savings Co [1934] 3 DLR 465) that prohibits speculation by defaulting fiduciaries as to counterfactuals had the default not occurred has application to the issues raised as to equitable set-off in the present case.

APPEALS – Leave to appeal – Leave to appeal from interlocutory decision striking out applicant’s Amended Statement of Claim with limited liberty to replead – Where Amended Statement of Claim asserted fraud and conspiracy on part of respondent – Where no basis for allegations of fraud and conspiracy – Leave to appeal refused

APPEALS – Leave to appeal – Leave to appeal from interlocutory decision striking out applicant’s Amended Statement of Claim with limited liberty to replead – Where Amended Statement of Claim asserted fraud and conspiracy on part of respondent – Where no basis for allegations of fraud and conspiracy– Leave to appeal refused JUDGMENTS AND ORDERS – Amending, varying and setting aside – Fraud, misrepresentation or suppression of material fact – Effect of collusion on ability to impeach judgment in collateral proceedings – Where applicant denied leave to allege fraud in conduct of Local Court proceedings on basis that that would involve collateral attack on standing judgment – Where applicant also alleged collusion on part of credit provider and lawyers to obtain judgment by fraud – Whether collateral attack possible in circumstances where standing judgment procured by fraudulent collusion as opposed to fraud simpliciter

CRIMINAL LAW – murder – discharge of a juror – where juror unable to cancel travel plans without financial penalty – where pressure to decide quickly for personal reasons not in the interests of justice

STAY – Court grants injunction to enforce 12 month restraint of trade clause – applicant seeks stay of injunction pending filing and determination of appeal – principles at [6] – [9] – injunction interferes with applicant’s business model and systems – preservation of status quo requires preservation of restraint period not applicant’s business model and systems – absent a stay, restraint period will further expire before determination of appeal – subject matter of proceedings will be substantially destroyed – difficulties in assessing damages should fall on unsuccessful party at trial – to early to say whether complying with the injunction is too difficult – stay refused.

LAND LAW – possession of land – where plaintiffs are executors – where one beneficiary in the will has remained in possession – where defendant has not appeared – claim for possession and mesne profits – default judgment given for possession