Cases and authorities

CRIMINAL PROCEDURE — Stay of proceedings — Permanent — where permanent stay of criminal proceedings sought as a result of coaching of complainant in charge certification conference by solicitor advocate — where notes of conference later disclosed to applicants’ legal representatives — where application for permanent stay declined at first instance — consideration of statutory obligations on prosecutors — whether applicants could have a fair trial — whether allowing the trial to continue would bring the administration of justice into disrepute —whether undertakings by Crown would mitigate any unfairness — factors relevant to grant of a permanent stay of proceedings CRIME — Appeals — Interlocutory appeal — against decision to refuse a permanent stay — where error shown — whether Court should re-exercise discretion to grant stay

CIVIL PROCEDURE — application for approval of settlement — motor vehicle accident — plaintiff seriously injured — consideration of the bests interest of the child — settlement approved

LAND LAW – easements – substantial interference with rights under easements – neighbouring properties have reciprocal benefits and burdens under easements to enable shared use of inclinator and rights of foot access – instrument creating easements adopts the definitions provided for in Conveyancing Act 1919 Schedule 8, Part 11 – Easement for Services and Part 14 – Right of Access – complex and protracted dispute in relation to the use of easements for the use of the inclinator, the supply of services, and rights of pedestrian access – allegations of excessive use of easements and trespass beyond the boundaries of the designated easements and obstruction of or interference with the use of easements occasioning nuisance, in a series of eight incidents – whether the conduct of the parties amounts to a substantial interference with the rights of the other parties under the easements or a trespass upon the servient tenement. LAND LAW – EASEMENTS – Particular easements – right of access – easement for services – construction of easements – general principles of construction – instrument creating easements adopts the definitions provided for in Conveyancing Act 1919 Schedule 8, Part 11 – Easement for Services and Part 14 – Right of Access – whether these statutory easements permit the dominant tenement owner to enter the servient tenement outside the boundary of the easement for any purpose, and if so to what extent.

PRACTICE AND PROCEDURE – Civil Procedure Act 2005 (NSW), s 75(2) – application for approval of settlement of claim prior to commencement of proceedings involving plaintiff and defendant who are both persons under legal incapacity – settlement approved

PRACTICE AND PROCEDURE – application for payment out of court of monies representing surplus funds held after mortgagee sale of property – Uniform Civil Procedure Rules 2005 (NSW), r 55.11 – whether the applicant has established prima facie entitlement to the monies – HELD – applicant has established entitlement to the monies – order for payment made out CONTRACTS – formation – whether Deed of Settlement executed by the parties takes effect as a valid deed – whether signature validly witnessed – lack of evidence adduced by the party challenging the validity of the execution of the deed – HELD – Deed of Settlement is a valid and enforceable deed – whether, if the Deed of Settlement is not an enforceable deed, the parties entered into a binding contract or agreement upon signing the Deed of Settlement – whether the parties objectively intended to be immediately bound by the terms of the Deed of Settlement – evidence of clear intention to be immediately bound by the terms of the Deed of Settlement – absence of post-contractual conduct indicating understanding on behalf of the third respondent to not be bound by the terms of the Deed of Settlement – HELD – Deed of Settlement is a binding contract or agreement – whether, if the Deed of Settlement is not a binding contract or agreement, the third respondent ought to be estopped from resiling from the terms of the Deed of Settlement – whether reasonable person would interpret the actions of the third respondent as indicative of an intention to be bound by the agreement – HELD – third respondent ought to be estopped from denying that the Deed of Settlement was a valid deed CONTRACTS – interpretation – whether terms of the Deed of Settlement are properly characterised as “conditions precedent” – language of the relevant clause demonstrates clear intention not to restrict enforceability of agreement in the event that obligations contained therein are not complied with

CIVIL PROCEDURE — pleadings — striking out — advocate’s immunity from suit

ADMINISTRATIVE LAW — Judicial review — Motor Accidents Compensation Act 1999 (NSW) — insurer’s s 62 application for further assessment after earlier medical assessment made after Personal Injury Commission Act 2020 (NSW) came into force — insurer successfully applied for further assessment — operation of transitional provisions of Personal Injury Commission Act — clause 14D of Sch 1 — whether application in respect of unexercised right — whether delegate of President of Personal Injury Commission was obliged to give reasons for decision — reasons required — whether delegate gave adequate reasons — reasons inadequate — whether delegate formed opinion according to law — whether discretion exercised according to law — errors established CIVIL PROCEDURE — Commencement of proceedings — Summons — whether summons complied with Uniform Civil Procedure Rules 2005 (NSW), r 59.4(c) in specifying error of law or jurisdictional error — grounds advanced included that delegate’s reasons were inadequate — requirement to give reasons disputed — operation of transitional provisions raised as a result — summons compliant

ADMINISTRATIVE LAW – JUDICIAL REVIEW – where greyhound tested positive to prohibited substances after a race – whether factual finding as to when the greyhound ingested the prohibited substances was legally unreasonable – finding was based on expert evidence – high threshold for establishing legal unreasonableness or illogicality – not established – whether Commission was denied procedural fairness in not being on notice that the Tribunal would find the contamination happened post-race – where finding not specifically advanced by the parties – Commission was on notice and had the opportunity to make submissions – whether Commission was on notice that the Tribunal would accept expert evidence as to timing but not contamination – no denial of procedural fairness – whether penalty imposed was unreasonable or irrational because it was manifestly inadequate – not established

EQUITY — Trusts and trustees — Constructive trusts — Whether evidence demonstrates that defendant and deceased held a common intention that property be held as joint tenancy — Where defendant and deceased registered as tenants in common — Where evidence of alleged conversation with deceased uncorroborated LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where orders made pursuant to s 66G Conveyancing Act 1919 (NSW)

LAND LAW — Easements — Creation of easements — Creation by prescription — Where continuous use of an access road for over twenty years not in dispute — Whether use of an access road was by permission — Whether use of an access road was tolerated as a matter of good neighbourliness

COSTS — Security for costs — where corporate plaintiff accepts that there is reason to believe that it will be unable to pay the defendants costs of the proceedings if it is ultimately ordered to do so — factors relevant to the exercise of the discretion in relation to security for costs — where security previously ordered in favour of two defendants — whether those defendants demonstrated material change in circumstances warranting order for further security — whether order for security would be “oppressive” in the circumstances of the case — where inappropriate to conduct a trial or make findings in relation to the substantive matters in dispute in order to determine whether an order for security would be “oppressive” — where order for security would not stultify proceedings

EVIDENCE — Privileges — Legal professional privilege — Waiver — Whether implied waiver arises from pleading and affidavit evidence

HIGH RISK OFFENDER – application for extended supervision order – violent offending – whether conspiring to discharge a firearm with intent to cause grievous bodily harm is a “serious violence offence” – unacceptable risk test met – dispute about duration of order and conditions – lengthy criminal history including violent offending – index offence committed while on parole – significant and encouraging progress since release – several prosocial factors – order imposed

CRIME — confiscations — application for examination — application for restraining order — acquitted by jury in relation to a charge but there remain reasonable grounds for suspicion on the civil standard — application for examination of third parties not served rejected

COSTS – notice of motion seeking gross sum costs order – concern regarding financial position of second and third defendant – complex and lengthy proceedings

COSTS — Party/Party — General rule that costs follow the event — Where Interlocutory Process discontinued— Where r 42.19 of the Uniform Civil Procedure Rules 2005 (NSW) may or may not apply — Whether a costs order should be made against the discontinuing party. COSTS - Indemnity costs - Application for indemnity costs – Whether costs application was unreasonably pursued.

STATUTORY INTERPRETATION — Impounding Act 1993 (NSW) (repealed) — whether s 45(3) confers statutory right of action — whether subsection creates exception to statutory extinguishment of right of former owner to sue impounding authority for damages for exercise of power of sale of impounded item TORTS — negligence — duty of care — public authority — whether Civil Liability Act 2002 (NSW), 43A engaged — whether liability based on exercise of special statutory power TORTS — negligence — standard of care — Civil Liability Act 2002 (NSW), s 43A(3) — whether no public authority could properly consider pleaded acts and omissions a reasonable exercise of its power — multiple failures to keep records leading to sale of impounded vehicle TORTS — negligence — Civil Liability Act 2002 (NSW), s 43 — whether s 43 applies to actions in negligence

CORPORATIONS — practice and procedure — application by Court Appointed Official Receiver and Manager (Receiver) for order that the receiver is justified in accepting terms of settlement contained in a Deed of Settlement and Release — where settlement involves dismissal of main proceedings and appeal proceedings — in circumstances where proceedings are complex, long running and hard fought involving mutual releases between the parties — HELD — Receiver justified in accepting the terms of settlement

ADMINISTRATIVE LAW – judicial review of decision by the Racing Appeals Tribunal – whether jurisdictional error or error of law established – nature of test to be applied – where greyhound trainer and breeder failed to provide assistance to injured greyhound pups

CRIME – appeal and review – appeal from Local Court to Supreme Court – self-defence – meaning of “conviction” as used in ss 52 and 53 of the Crimes (Appeal and Review) Act 2001 (NSW) – failure to apply the correct test with respect to self-defence – failure to engage with the submissions made for the accused – failure to give reasons why submissions for the accused were not accepted – adequacy of reasons – lack of respect to the accused and the accused’s representative – appeal allowed – matter remitted to Local Court

EQUITY – Fiduciary duties – Breaches of fiduciary duty – Rule in Barnes v Addy – Fraudulent misappropriation of funds by employee – Stolen funds banked in account in joint names of employee and spouse – Account operated solely by employee – Spouse had no knowledge of fraud – No knowing receipt of trust money – No accessorial liability

ADMINISTRATIVE LAW – gambling regulation – applications to transfer or lease gaming machine entitlements – applications to increase gaming machine thresholds – conditions imposed on hotel licenses – whether declarations as to construction of statute were appropriate – whether order requiring grant of application was appropriate – scope of discretions under ss 19, 25 and 34 of the Gaming Machines Act 2001 (NSW) – scope of discretion under s 53 of the Liquor Act 2007 (NSW) – whether s 53 of the Liquor Act provides power to impose conditions on liquor licences relating to harm minimisation concerns relating to gaming machines

APPEALS — CRIME — appeal against conviction — indecent assault of a child — possess child abuse material — sexual interest in children and BDSM — whether trial judge reversed onus of proof — unreasonable verdict — fresh evidence — whether Court would have reached different verdict if it had been aware of evidence of witness’s sexual interest APPEALS — CRIME — PRACTICE AND PROCEDURE — directions — trial by judge alone — whether trial judge should have made direction in accordance with s 165 of Evidence Act — whether witness criminally concerned in events — whether trial judge should have made a Murray direction — whether trial judge failed to apply Liberato direction

CRIME — appeals — appeal against conviction —applicant convicted of three sexual offences against two child complainants — where application under Criminal Procedure Act 1986 (NSW), s 306Y for order that one complainant’s evidence not be given by JIRT interview — whether judge erred in not being satisfied that not in “interests of justice” for that evidence to be given — where trial judge gave a direction and warning that JIRT interview evidence may be unreliable due to manner in which interview conducted — whether that direction and warning was sufficient having regard to Evidence Act, ss 165, 165A — whether guilty verdicts on three offences unreasonable

PRACTICE AND PROCEDURE – stay of destruction order – application to stay orders of the Local Court – no question of principle – HELD – stay granted

HIGH RISK OFFENDER – final hearing – application for extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – consideration of factors in s 9 of the Crimes (High Risk Offenders) Act 2006 (NSW) – disputed conditions resolved - extended supervision order made

PRACTICE AND PROCEDURE – Civil Procedure Act 2005 (NSW), s 76(3) – application for approval of settlement of proceedings involving third defendant who is a person under legal incapacity – settlement approved

Oppression — Members’ rights and remedies — Whether conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory — Where Cross-Claimant made minimal financial contribution to company – where Cross-Claimant no longer occupies land owned by company. Oppression — Members’ rights and remedies — Exercise of discretion as to remedy — Where compulsory buyout orders inappropriate in the circumstances — Whether to order company be wound up in oppression — Where relationship between the parties has broken down.

CIVIL PROCEDURE — ex parte applications —freezing orders — where plaintiff alleges breaches of s 18 of the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law arising from a set of alleged property investments made by the plaintiffs involving the defendants — where plaintiff argues that exceptional circumstances exist to warrant the making of freezing order — where delay is considered in making the application — HELD — freezing order made

CIVIL PROCEDURE — claim involves an allegation that the first plaintiff’s head was negligently thrown back and forth during a medical examination — first plaintiff under legal incapacity as a minor — tutor made attempts to obtain legal representation for the first plaintiff — whether the requirement that a legally incapacitated party be represented by a solicitor should be dispensed with — not satisfied with attempts made to obtain legal representation— misgivings as to the second plaintiff’s ability to represent the first plaintiff in the proceedings — no order for dispensation of the requirement CIVIL PROCEDURE — consideration of proposed statement of claim — whether leave should be granted to file amended statement of claim — consideration of deficiencies requiring amendment — no intelligible pleading of any maintainable cause of action on behalf of the second and third plaintiffs

BUILDING AND CONSTRUCTION — builder retained to repair defects caused by original builder — whether proceedings for breach of statutory warranty commenced within 7 years after completion of work — s18E, Home Building Act 1989 (NSW) — date of completion of work — s3B, Home Building Act — legislative history – distinction between completion and practical completion – meaning of “completion” — interaction between s3B(2) and (3). REFEREE — separate question — whether to adopt report — error of law in application of section 3B — failed to consider when contractor last attended site to carry out work under section 3B(3)(b) — final date on which contractor attended site was earlier than date of practical completion under section 3B(2) — the earliest date applies — proceedings out of time.

CIVIL PROCEDURE – security for costs paid into Court – ex parte proceedings – no appearance from defendant – security for costs released to the second defendant

CIVIL – no appearance for the defendant - judgment for the plaintiff for possession of land – leave granted to issue a writ of possession in relation to the premises

CIVIL PROCEDURE — Freezing orders – Freezing order made pursuant to r 25.14 of the Uniform Civil Procedure Rules 2005 (NSW)

PROCEDURE – proceeds of crime – application for consent orders under s 316 of the Proceeds of Crime Act 2002 (Cth) by the registered mortgagee – who is a person affected by the making of the order - the court made orders pursuant to s 316(1) of the Proceeds of Crime Act 2002 (Cth)

EQUITY — equitable remedies — specific performance — two contracts for the sale of land — whether defendants’ conduct amounted to breach of contract for failure to proceed with all due dispatch to obtain consent of the council to a plan of subdivision — meaning of “all due dispatch” — whether purchasers were ready, willing and able to perform their essential obligations under the contracts — whether the court ought to make an order for specific performance in circumstances where ongoing supervision likely — HELD — order for specific performance of the contracts made

LAND LAW – possession of land – where judgment previously given for possession of land – where parties agreed defendant could sell land under certain conditions – where agreement not complied with by defendant – where no appearance filed by defendant – plaintiff entitled to default judgment for amount owing – leave to issue writ of possession

CIVIL PROCEDURE — Permanent stay of proceedings — Claim for damages for historical sexual abuse — Alleged perpetrator and other witnesses deceased — Claim against perpetrator’s spouse — Novel Duty of Care — Where fair but not perfect trial possible — Permanent stay refused

CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – where defendants borrowed from lender of last resort – three-month loan with 72% per interest compounding monthly after default – whether asset based lending was unjust - where defendants were experienced mortgagors – where defendants admitted they did not read any documents they signed – where defendants advised by solicitor - whether charging interest at 72% interest per annum compounding monthly is unjust – lenders of last resort ordinarily charge considerably higher interest rates – where matter of paying higher interest was sufficiently brought to defendants’ attention – high rate of interest is not itself unconscionable or unjust – asset based lending not unjust - combination of high default rate and monthly compounding makes the contract unjust – held clauses providing for compounding or capitalising of interest be deleted CONSUMER LAW – unconscionable conduct – in connection with financial services – whether delay in commencing proceedings in circumstances where simple interest was accruing at 72% per annum constitutes unconscionable conduct – Australian Securities and Investments Commission Act 2001 (Cth) – nothing to suggest plaintiff deliberately delayed proceedings – where defendants asked for time to repay – where promises were made by the defendants to repay after sale of other properties but no repayment was made – where defendants knew interest was high and ought to have known interest would be accruing – held in all the circumstances delay was not unconscionable

CRIME – appeals – appeals against sentence – offence of doing an act in preparation for, or planning, a terrorist act – whether sentencing judge erred in determining objective seriousness – large body of material addressing offender’s youth, lack of insight, mental illness, remorse and prospect of rehabilitation – whether error in failing to make findings in respect of offender’s subjective case – whether sentence manifestly excessive – significance for purpose of resentencing of harsher conditions of imprisonment than could have been foreseen – significance of subsequently enacted legislation restricting availability of parole – appeal allowed and offender resentenced

CRIMINAL LAW – appeal – appeal against sentence – indigenous offender – deprived background - Bugmy v The Queen principles – whether sentencing judge gave effect to these principles having regard to the applicant’s circumstances – re-sentence – intensive corrections order

CRIMINAL TRIAL – application to vacate hearing – where accused maintains that he will be unable to obtain a fair trial without retaining expert forensic specialists – where additional need to raise funds for that purpose and to pay lawyers – where all issues have been on the cards for years – no satisfactory explanation for failure to obtain evidence – application refused

CIVIL PROCEDURE - pleadings – whether pleadings disclose reasonable cause of action – pleadings struck out

HIGH RISK OFFENDERS – suppression order

LEASES AND TENANCIES — where plaintiff seeks possession of premises used as restaurant, unpaid rent and other orders — where parties’ previous dispute settled by heads of agreement and consent orders made by NCAT which contemplated defendant vacating premises — where defendant remains in possession — where defendant brought further proceedings before NCAT seeking to have consent orders set aside — NCAT proceedings dismissed CIVIL PROCEDURE — notice of motion — where plaintiff seeks leave to amend statement of claim to seek equitable relief in the alternative — Civil Procedure Act 2005 (NSW), s 64 — requirements of justice — leave granted CIVIL PROCEDURE — notice of motion — whether to transfer proceedings to NCAT — jurisdiction and powers of NCAT — operation of Retail Leases Act 1994 (NSW), ss 75, 76 — effect of whether heads of agreement binding on NCAT’s jurisdiction — NCAT cannot grant alternative equitable relief sought — leave refused and motion dismissed

CONTRACTS — partly oral and partly written contract — ascertainment of terms — where parties accept existence of agreement — whether agreement provided for a transfer to defendants of the plaintiffs’ shares and units in a joint venture vehicle or transfer of unencumbered legal title to 60% of assets or some other term — terms contended for by plaintiffs and defendants not established — parties’ claims for contractual relief fail CONTRACTS — misleading conduct under statute — misleading or deceptive conduct — representation with respect to a future matter — whether representations were misleading or deceptive — whether evidence of reasonable grounds for representations — whether counterfactual is the continued operation of the joint venture — whether appropriate approach to calculation of damages — plaintiffs entitled to relief under Australian Consumer Law

REAL PROPERTY – COMMERCIAL LEASES – lease of restaurant for three-year term – public health orders imposed from March 2020 onwards in response to COVID-19 pandemic prohibited or restricted dining on premises – tenant closed restaurant when restrictions first imposed and ceased paying rent – claim against guarantors for unpaid rent and damages – whether discharge by frustration – whether a lease is capable of being frustrated – no binding precedent to the effect that the doctrine of frustration is incapable of applying to a lease – whether the public health orders rendered the leasehold estate unusable and unsaleable – whether essential term regarding the opening of the premises for business became incapable of performance – whether frustration can be established by radical change in the nature of tenant's business – no finding made as to whether tenant’s business had been rendered unviable by the public health orders – held that lease not frustrated REAL PROPERTY – COMMERCIAL LEASES – claim for unpaid rent and outgoings up to the date of termination – claim for loss of future rent – whether Plaintiffs had taken reasonable steps to mitigate loss – held that failure to mitigate not established – whether Plaintiffs entitled to costs of making good the premises – whether tenant was obliged to remove fixtures and fittings – held that claim for costs of making good the premises not established

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where defendants succeeded on the basis of a defence raised shortly before the hearing in an amended list response — Whether defendants are entitled to costs prior to the filing of the amended defence — Where no evidence that the proceedings would have been conducted any differently had the defence been raised earlier — The defence deprived the plaintiff of a claim not relief in respect of an admitted breach — Not within an exception to the rule that costs follow the event

EVIDENCE – Admissibility – Expert Evidence – Estimation of volume of blood shed on carpet based on dried stains – Proposed evidence of forensic police officer that stains caused by "significant" blood shedding event – Proposed evidence of forensic pathologist providing estimate of quantity of blood shed – Whether witnesses have specialised knowledge derived from training, study or experience – Whether opinions wholly or substantially based on that specialised knowledge

TERRORISM HIGH RISK OFFENDER – application for further extended supervision order – preliminary hearing – test to be applied at preliminary stage of proceedings – question of whether defendant poses an unacceptable risk of committing a serious terrorism offence – satisfaction to a high degree of probability – whether matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order – where materials disclose a conservative religious belief system but an affirmative denial of support for religious violence and terrorism – where state relies heavily on lack of affirmative denunciations of terror activities