Cases and authorities

NEGLIGENCE — Personal injuries — Settlement approval – where plaintiff asserts that negligent medical advice caused a deterioration in his medical condition and life expectancy – where plaintiff under a legal incapacity – whether the Court is satisfied that the settlement is for the plaintiff’s benefit – orders made by consent

COSTS — party/party — costs orders in interlocutory proceedings — where plaintiff seeks leave to amend pleadings — whether costs should be payable forthwith

CRIME – APPEALS – conviction appeal – Judge alone trial – inconsistent versions – Liberato – trial judge finding lack of direct inconsistency in considered statements of applicant – effect of intoxication – including of applicant to recall – no error in shortened Liberato direction – no reasonable doubt on analysis of evidence – no error

CRIME — Appeals — Appeal against sentence — Cultivation of cannabis plants by enhanced indoor means — 36 plants — Whether error established in assessment of objective seriousness — Where there was a denial of procedural fairness in failure to raise an intention to depart from agreed position of the parties about remorse — Where applicant had prior good character — Where applicant had mental health conditions — Where sentencing judge declined to impose a term of imprisonment to be served by Intensive Correction Order — Where applicant has already served a period of 9 months in custody — Error established — Resentenced to an Intensive Correction Order — Immediate release

CIVIL PROCEDURE — defendant reinvigorated earlier summary dismissal application — plaintiff’s conduct of the proceedings has caused increased costs — reinvigoration of application without prior notice to plaintiff

CIVIL PROCEDURE — stay previously ordered in relation to the proceedings — further documents filed — those documents in contravention of the stay should be removed from the Court file and returned to the applicant — application is a collateral attack of NCAT determination — were the stay otherwise the applications would have been dismissed on their merits

CIVIL PROCEDURE — application to set aside earlier judgment in proceedings — applicant sought to reventilate matters raised in earlier proceedings — proper avenue to challenge the earlier decision is the Court of Appeal

COURTS AND JUDGES — bias — application for recusal — allegation of private communications between chambers and a party — allegation unfounded and rejected — the bias application does not rise above anything other than mere assertion

ADMINISTRATIVE LAW – Medical assessment – Judicial review of decision of medical appeal panel – Where appeal panel accepted error alleged in medical assessment and assessed claimant afresh – Function of appeal panel confined to determining grounds raised by the appeal – Failure to give adequate reasons

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process

CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters

JUDICIAL ADVICE — Principles discussed — Application for advice regarding issues as to whether trustees justified in administering a trust by reference to copies of trust deeds rather than originals, whether trustees had been validly removed and appointed, whether a beneficiary had been validly appointed, whether former trustees had been excluded as beneficiaries and the extent of powers to vary the vesting of the trust TRUSTS — Original of trust deed misplaced, lost or accidently destroyed — Discussion regarding what is required by way of proof of whether copy of trust deed is a true copy of the original — What is required to establish whether a document is an accurate copy of an original trust deed depends upon the particular circumstances of any given case — On facts trustee justified in administering trust on the basis of the documents adduced on the application TRUSTS — Removal of trustee and appointment of new trustee — Construction of trust deed and legal principles regarding how the Court should approach the question of whether a person who has signed a document has signed it in one or more different capacities TRUSTS — Variation of trust — Construction of trust deed and power to vary trust TRUSTS — Beneficiaries — Construction of trust — Whether former trustees excluded from being potential beneficiaries — As a matter of construction the term “Trustee” only applies to the trustee or trustees for the time being of the trust fund PERPETUITIES — Trust was established on 8 January 1980, prior to the introduction of the Perpetuities Act 1984 (NSW) — Perpetuities Act 1984 (NSW) not applicable — Consideration of question of vesting of trust in light of provisions and “Royal Lives” clause TRUSTS — Remedies — Rectification of trust deed — Issue as to whose intention is relevant for rectification — The identification of the party or parties whose intention is relevant depends upon the circumstances — Where settlor had no active and operative intention as to terms of the trust and acted merely on instructions of trustee — On facts the “real” settlor was the trustee and not the nominal settlor — Trustee intended trust to have indefinite duration to fullest extent permitted by law — Rectification ordered

COSTS — application for indemnity costs — Calderbank offer — whether rejection of defendant’s offers was unreasonable — offers made prior to defendant serving evidence — plaintiff put on notice of matters later raised in defence prior to commencement of proceedings — plaintiff’s awareness as to defendant’s circumstances and claim potentially being unsuccessful — offers contained significant element of compromise

CIVIL PROCEDURE – commencement of proceedings – leave to commence

OCCUPATIONS — legal practitioners — solicitors — whether solicitors should be restrained from acting for plaintiffs’ former clients in proceedings in the District Court of New South Wales concerning the provision of migration and visa services — where solicitors had acted for and had dealings with first plaintiff — where no existing retainer between solicitors and plaintiffs — where first plaintiff advised that solicitors could not act for him and he should seek separate legal representation — whether plaintiffs disclosed confidential information to solicitors — where no solicitor-client relationship or expectation of confidentiality existed at relevant times — where information not confidential — solicitors not restrained

CRIMINAL LAW & PROCEDURE – evidence –evidence by audio video link – application opposed – traumatised witness – evidence of likelihood of psychological harm attaching to giving evidence in court – emotional distress – Afghani community and view taken of divorce – interest of administration of justice – broad term which includes the interest of witnesses - immediate supervision in remote witness room of witness – no obvious unfairness to the accused

CIVIL PROCEDURE — cross-vesting — transfer to Federal Circuit and Family Court of Australia — where applicant and defendant are parties to proceedings in Federal Circuit and Family Court of Australia regarding division of property — where money claim in these proceedings subsequently commenced by father of defendant and family company on basis of default under a written loan agreement — whether in the interests of justice to transfer Supreme Court proceedings to the Federal Circuit and Family Court of Australia — application to transfer granted

CRIME – sentencing – aggregate sentence based on multiple convictions – one conviction set aside on appeal – resentencing – minor effect of acquittal on seriousness of course of offending – unforeseen onerous conditions of imprisonment during COVID-19 pandemic – reduction of sentence warranted

HIGH RISK OFFENDERS — closed court —Terrorism (High Risk Offenders) Act 2017 (NSW) — consideration of steps required to protect the confidentiality of terrorism intelligence — plaintiff contends that the terrorism intelligence should be considered by the Court in its determination — plaintiff proposed that the information be accessed by the defendant’s legal representatives but not the defendant himself — defendant’s legal representatives unable to get instructions from the defendant in relation to the terrorism intelligence — competing interests in the protection of the terrorism intelligence and the right of the defendant as a matter of natural justice to know the case against him

HIGH RISK OFFENDERS – Preliminary hearing – application for an interim supervision order – serious sexual offender – defendant currently on an extended supervision order – parties agree that the existing ESO was made prematurely in light of the decision of Cornwall – ESO remains valid and must be followed until it is revoked or expired – no breaches of existing ESO however defendant has made little progress – application granted – scheduling conditions removed

JUDGMENTS AND ORDERS – interest – award of as damages – Hungerfords interest damages – where breach of duty under Design and Building Practitioners Act 2020 admitted in relation to two defects – where such breaches caused delay in registration of strata plan and thus delay in sales of units CIVIL PROCEDURE – where issue raised by plaintiffs not dealt with in principal judgment

COMMERCE – Restraint of trade – validity and reasonableness – length and scope of restraint – where garden leave and post-employment restraints protecting customer connection – where employee in Sydney CBD market for office leasing – scope and duration of restraints limited – whether discretionary grounds made out CONTRACTS – formation – intention to create legal relations – whether signature evidence of assent to entire document or qualified – where contract sent as one PDF attachment – where employee signed one space asking for signature – objective intention to be bound by entire contract EMPLOYMENT AND INDUSTRIAL LAW – contract – terms – whether restraint and notice provisions vitiated by misleading and deceptive conduct – prior conversations relied on as representations – whether representations proven – representations not proven – whether restraint and notice provisions should be rectified for common mistake – common intention not established – whether walk out constituted acceptance of repudiation – walk out not clear and unequivocal acceptance

JUDGMENTS AND ORDERS — Consent orders — where first defendant injured at work — workers compensation claim — appeal against determination of appeal panel — failure to apply SIRA Guidelines — failure to give required reasons — jurisdictional error of appeal panel — decision and statement of reasons of appeal panel quashed — medical dispute remitted to differently constituted appeal panel for re-determination

COSTS — offer of compromise — offer to accept $2M in respect of $14.8M claim — whether genuine compromise or merely for ‘costs protection’ — objective assessment – ‘tactical’ offer does not mean genuine compromise not involved: at [53]. OFFER OF COMPROMISE – rule 20.26(4), UCPR — offer made after pleadings closed but before discovery and evidence — whether defendant had sufficient information to assess reasonableness of offer — principles at [42]-[46] — defendant had requested and been provided with documents and particulars — as assignee of cause of action, plaintiff a stranger to underlying events – defendant centrally involved – offeree may discover any missing information by making reasonable inquiries. INDEMNITY COSTS – change in plaintiff’s case after offer – principles at [55]-[56] — amendments repeated defendant’s pleading — unclear why this materially altered the case to be met — indemnity costs ordered.

APPEALS – Leave to appeal – Primary judge refused stay of execution of writ of possession

CRIME — Appeals — Appeal against conviction — Fitness to be tried — Where fitness to be tried was not raised at the trial and was first raised on appeal — What test to be applied — Significance of Mental Health and Cognitive Impairment Forensic Provision Act 2020 (NSW) — Identity of the primary decision-maker under the Act is a judge rather than jury or administrative tribunal — Whether previous case law distinguishable based on identity of the primary decision-maker — Whether applicant was not or may not have been fit to stand trial — Applicant had dementia at time of trial affecting his manner of presentation and cognitive function — Significance of expert evidence on fitness — Where jury unaware that the applicant was affected by dementia — Where applicant’s “argumentative and obstructive” presentation used to assert that the applicant was lying in his evidence CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Where applicant found guilty on two counts and not guilty on three separate counts — Capable of reconciling differences in the evidence in support of separate counts — Where witness’s reliability is in issue, inconsistencies between accounts will not necessarily lead to a conclusion that the witness is unreliable on all matters

CRIMES — appeals — appeal against conviction — trial by judge alone — two counts — assault (count 1) — where applicant pushed complainant out of car after argument — conflicting evidence between complainant’s evidence of making complaint to applicant’s parents that same day and applicant’s parents’ evidence who did not recall incident — sexual intercourse without consent (count 2) — basis for challenging factual findings by trial judge on conviction appeal — whether trial judge erred in resolving conflicting evidence concerning count 1 - whether capable of challenging under “first limb” or “third limb” of s 6(1) of Criminal Appeal Act 1912 (NSW) — alleged error in reasoning does not raise issue under “first limb” but is capable of raising separate issue under “third limb” — trial judge’s description of complaint as “limited” and “containing no real detail” not erroneous — whether trial judge’s verdict was unreasonable — no significant possibility an innocent person was convicted — appeal dismissed CRIMES — appeals — appeal against sentence — whether sentencing judge erred in finding count 2 was not “spontaneous and unplanned” — distinction between not being satisfied beyond reasonable doubt the applicant was aware prior to anal sex of possibility complainant might withdraw her consent and not being satisfied on the balance of probabilities applicant was not aware of that matter — sentencing judge clearly did not accept latter — no error in characterisation of count 2 — appeal dismissed

JUDICIAL ADVICE — Application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) (Trustee Act) — Association involved in long-running main proceedings and other associated litigation regarding custodianship of trust property — Solicitors acting for the Association had secured their costs by mortgage in respect of property found to be trust property — Costs were assessed and issues arose regarding the solicitors’ entitlement to payment of costs in particular whether the solicitors knew at the time the mortgage was granted that the land was held by the Association as trustee of such trust and knowingly assisted the Association to breach its duties — Solicitors strongly disputed any breach or wrongdoing — Association authorised by Attorney General to commence proceedings to recover from the solicitors monies paid — Attorney General strongly recommended the parties mediate — Following mediation the parties reached a resolution — Association sought advice of the Court as to whether it was justified in settling the proceedings JUDICIAL ADVICE — Principles discussed — Discussion regarding application for advice as to settlement of proceedings ORDERS — Construction of Court orders — Issue as to whether interlocutory restraining order still operative — In giving advice the Court considers it appropriate to proceed on the basis that the proper construction of the order for dismissal of proceedings had the effect of being a “further order” bringing to an end the operation of the interlocutory restraining order TRUSTEES — Judicial advice — Discussion regarding general principles concerning indemnity and whether the existence of allegations of breach regarding trustees precludes the giving of advice — The fact that the conduct allegedly constituting the breach of trust has already occurred is not a definitive answer to the question as to whether the Court ought to give advice — There is no requirement in providing judicial advice that questions regarding a trustee’s conduct must necessarily be litigated — The enquiry in an advice application is not into whether a breach of trust has occurred or would occur. The enquiry is instead narrower, namely whether it would be reasonable for the trustee to take a suggested step of settlement — Advice given that Association justified in settling proceedings, paying the settlement sum out of the assets of the charitable trust and being indemnified from the assets for its cost of the proceedings

CIVIL PROCEDURE — Parties — Vexatious litigants — Leave to institute proceedings —Whether notice of motion has been dismissed by operation of s 13 of the Vexatious Proceedings Act 2008 (NSW)

CIVIL PROCEDURE — cross-claimant’s application to amend initiating process — cross-defendant’s application for summary judgment — sale of property between friends — agreement for vendor to reside at the property post sale — dispute as to other conditions relating to the transaction — matter was dormant until brought back by the Court’s motion — earlier application for summary dismissal in relation to the cross-claim had been dismissed — whether “otherwise” costs order should be made in relation to plaintiff’s successful summary judgment earlier obtained for possession proceedings CONTRACTS — contract for the sale of land — NCAT proceedings held there was a collateral contract — issue as to terms of the collateral contract — issue as to whether the contract for sale of land is consistent with the alleged terms of the collateral contract — promissory estoppel — whether promissory estoppel can be used as a positive cause of action

CRIMINAL LAW – sentence – murder – guilty plea at late stage of proceedings – motor vehicle used as weapon – intention to kill – spontaneous and opportunistic – blunt force head and chest trauma – absence of provocation – attempts to conceal evidence – high moral culpability – offender’s untested and unsworn evidence – lack of evidence of remorse – methylamphetamine use – deterrence

CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Felons (Civil Proceedings) Act 1981 (NSW) – Leave sought subsequent to commencement of proceedings

CIVIL PROCEDURE – amendment of Statement of Claim – no question of principle CIVIL PROCEDURE – subpoenas – apparent relevance – no question of principle CIVIL PROCEDURE – security for costs – ordinarily resident outside Australia – no question of principle

COSTS — Determination — Review/appeal — Allocation of costs for claim and cross-claim in proceedings below — Where cross-defendant not joined to the appeal — Degree of success and resources expended

CIVIL PROCEDURE — time — extension of time to appeal — length and reason for delay — prejudice to respondent — whether applicant has fairly arguable case — competency of the appeal — Supreme Court Act 1970 (NSW), s 101(2) CIVIL PROCEDURE — security for costs — power of court to order security for costs — Uniform Civil Procedure Rules 2005 (NSW), r 51.50 — whether special circumstances are present — whether order would stultify proceedings

EQUITY — equitable remedies — specific performance — land — contract for the sale of real property — multiple agreements — failure to complete when time is of the essence — whether valid termination of contract — whether applicant was ready and willing to complete APPEALS — from exercise of discretion — whether failure to exercise discretion — no discretionary error of kind referred to in House v The King — relief against forfeiture of deposit — Conveyancing Act 1919 (NSW), s 55(2A)

JUDGMENTS AND ORDERS — Court of Appeal — Motion to re-open — UCPR r 36.16 — Whether the Court addressed an argument said to have been raised — Meaning of “land holdings” employed in s 155 of the Duties Act — Whether the interests held were “land holdings” or “goods” — Where argument characterised the items as fixtures — Argument that chattels sitting on the land were “land holdings” even if not fixtures not raised — Where argument is not raised by the notice of appeal then clear terms raising distinct and additional points is required

HIGH RISK OFFENDER – Preliminary hearing – Application for interim supervision order – Whether the material would justify a finding that defendant poses unacceptable risk of committing serious offence – Where relatively high risk of re-offending – Where continuing need for full engagement with therapy

CIVIL PROCEDURE — Separate determination of questions — Whether the Encroachment of Buildings Act 1922 (NSW) applies to the encroachment onto public road — Where adjacent owner is the relevant road authority

CRIMES — appeals — Crown appeal against sentence — manifest inadequacy — proceeds of crime — syndicate involved in large-scale drug trafficking — where respondent received amounts of cash and deposited them into bank accounts he opened and controlled — total sum of proceeds of crime exceeded $8.5 million — respondent sentenced to 2 years and 6 months imprisonment to be served by way of ICO — whether sentence is manifestly inadequate — depositors were recruited to assist respondent and played a significantly lesser role — disparate undiscounted indicative sentences between respondent and HM (a depositor) — significance of disparity to Crown appeal — aggregate sentence involved a very large and unjustified degree of notional concurrency — sentence manifestly inadequate to a significant degree — whether Court should exercise its residual discretion not to intervene — offending constitutes very serious instances of large-scale money laundering — sentence imposed was an affront to administration of justice — appeal allowed — respondent resentenced

CRIME — Appeals — Appeal against sentence — Sentencing of children — Relevant principles of sentencing — Where 15-year-old commits serious offence of aggravated robbery causing grievous bodily harm — Where moral culpability reduced as a result of a young age and a deprived and disadvantaged background — Where the weight afforded general deterrence moderated — Strong evidence of rehabilitation — Where judge erred in failing to have regard to youth in assessing moral culpability — Where judge erred in failing to have regard to youth in assessing the weight to be afforded to general deterrence — Emphasis on rehabilitation — Errors established — Resentence

CRIME – appeals – Crown appeal against sentence – where male professional photographer found guilty of two counts of sexual intercourse without consent against young female models – one additional count of indecent assault against one of the complainants – where no error in specific findings of objective circumstances or in overall assessment of gravity – where strong subjective case – where respondent under treatment for cancer at time of remand for sentence and follow-up medical attention not provided in custody – sentence not manifestly inadequate

CRIME – appeals – appeal against conviction for murder – unreasonable verdict – where applicant fired a single gunshot into posterior aspect of the deceased’s left upper thigh – whether the jury ought to have had a reasonable doubt that the act causing death was deliberate – whether the jury ought to have had a reasonable doubt that the act was accompanied by an intention to cause grievous bodily harm – appeal dismissed

CRIME – appeal – appeal against conviction – applicant stood trial on nine counts of sexual offending in respect of the same complainant many years ago – jury returned three guilty and six not guilty verdicts – whether convictions should be set aside on the basis of inconsistency – where there was a ready explanation for not guilty verdicts, in light of unclear evidence of complainant’s age at the time – whether convictions were unreasonable – various inconsistencies in evidence – whether open to jury to be satisfied beyond reasonable doubt of applicant’s guilt – appeal dismissed

EVIDENCE – photographs and video of deceased – body partly decomposed – relevant but not overly probative – risk of unfair prejudice – rulings made

CIVIL PROCEDURE – Application for interim stay of writ of possession – Where claims to property made by defendants in separate probate proceedings – Where defendants’ rights to property previously tested in exhaustive litigation – Where Registrar applied slip rule to correct error on the face of prior Court orders

EQUITY – constructive trusts – failed joint endeavour – form of relief – division of amount withheld from sale proceeds on account of potential tax liability COSTS – costs of cross-claim – where amendment to statement of claim said to render cross-claim otiose

HIGH RISK OFFENDER – preliminary hearing – application for interim detention or supervision orders and examination orders – serious violent offending – defendant’s ongoing refusal to engage with assessment and application processes to obtain post release accommodation – consideration of risk assessment reports – consideration of risk management reports – examination order made - interim detention order imposed

APPEAL – plaintiff found guilty of resisting officer arrest in execution of duty in the Local Court - appeal against conviction pursuant to Crimes (Appeal and Review) Act 2001 – apprehension of plaintiff for breach of bail – nature of powers of arrest for breach – question of lawfulness of arrest – capacity of evidence to establish element of constable acting in execution of duty - construction of s 77 of the Bail Act 2013 – question of operation of s 77(3) and whether the powers of arrest provided by s 77(1) are subject to s 77(3)

CONTRACTS — plaintiff offers to source childcare sites for the defendants at a “boozy” lunch — eight sites sourced in NSW and ACT — whether there was an oral contract – principles at [204]-[206] — whether to disregard evidence given consumption of alcohol, at [207] — post-contractual conduct corroborates oral contract — whether oral contract varied – plaintiff agreed to a series of indulgences, which were not variations for want of consideration, at [232]. CONTRACTS — sufficiency of consideration — defendants made settlement offer that was accepted — offered to pay an amount early instead of a larger amount already due — whether offer supported by sufficient consideration — principles at [235]-[237] — no tangible benefit — whether consideration in recording the agreement in writing — parties had already recently recorded their agreement — whether consideration by release of plaintiff from claims under Property and Stock Agents Act 2002 (NSW) and Agents Act 2003 (ACT) — parties then unaware of any issue with plaintiff’s real estate licence – no consideration where licensing issue not in parties’ contemplation at the time of formation – principles at [246]-[247]. REAL ESTATE AGENT – whether plaintiff precluded for recovering fees as no real estate agent licence – Property and Stock Agents Act 2002 (NSW) s9(2) – Agents Act 2003 (ACT) s 23 – whether should take into account other services for which no fee charged, at [33]-[35] – whether plaintiff “acting as agent” – principles at [260]-[266] – acted as agent for NSW site – whether “negotiating with”, at [278] – meaning of “inducing or attempting to induce” under Agents Act 2003, s8(2)(b) at [279]-[287] – inducement is of the counterparty, not the principal – plaintiff did not induce counterparty – plaintiff entitled to recover fees for ACT sites. RESTITUTION – money had and received – whether defendants entitled to restitution of money paid under contract for NSW site due to plaintiff’s breach of Property and Stock Agents Act – principles at [314]-[319] – breach of Property and Stock Agents Act did not render contract unenforceable per se – legislation punished agents directly – no total failure of consideration – mistake – no entitlement to restitution for payments made under valid contract, at [321]-[322] – no evidence that defendants were mistaken or that mistake was causative of payments made, at [324]. CORPORATIONS — pre-incorporation contracts — s 131, Corporations Act 2001 (Cth) — special purpose vehicles later incorporated to enter into leases of childcare sites — plaintiff asked to invoice special purpose vehicles — principles at [221]-[224] — ratification — although common practice to set up companies for each site, no discussion of special purpose vehicles at time of oral contract — whether special purpose vehicles reasonably identifiable with company on whose behalf oral contract was entered into — requirements of s131 not established.