Cases and authorities

LAND LAW – possession of land – unlawful occupation of plaintiff’s land by defendants – where defences disclose no defence known to the law – defences struck out – leave to replead

CRIME – serious crime prevention orders – application – orders made

CIVIL PROCEDURE – preliminary discovery to identify potential cause of action – reasonable inquiries – Uniform Civil Procedure Rules, r 5.3 – applicant claims to be an unregistered second mortgagee of certain land under development – applicant seeks preliminary discovery of information from the first mortgagee, principally concerning the amount outstanding on the first mortgage and the valuation of the mortgaged property – the registered proprietor is in default to the first mortgagee and under its loan arrangements with the applicant – the applicant’s requests for information from the first mortgagee about the first mortgagee’s dealings with the mortgagor have gone unanswered – whether the applicant’s claim for preliminary discovery is available – whether the applicant’s claim for preliminary discovery is so wide as to be oppressive. MORTGAGES – application for judicial sale by an applicant who claims to be an unregisterd second mortgagee - mortgagor in default on first and second mortgages – second mortgagee seeks information from the first mortgagee to facilitate the sale of the mortgaged property - the Court notes that the remedy of judicial sale may be available to the applicant and offers the applicant an opportunity to amend to seek judicial sale.

HIGH RISK OFFENDER – application for extended supervision order – whether there is an unacceptable risk that the defendant will commit a serious offence – application dismissed

ADMINISTRATIVE LAW – Parole – Refusal of parole on six occasions – Application for direction to Authority pursuant to s 155 of Crimes (Administration of Sentences) Act 1999 (NSW) – Whether decisions to refuse parole based on false, misleading or irrelevant information

HIGH RISK OFFENDER – Final hearing – Serious sex offender – Application for extended supervision order – Whether defendant poses unacceptable risk of committing another serious offence unless kept under supervision – Where no serious sexual offending in the 18 years since index offences – Where offender subject to continuing obligations and restrictions under child protection legislation

CIVIL PROCEDURE — Preliminary discovery — To identify whether to commence proceedings — Where evidence suggests defendants are proposing to reach an arrangement or agreement to exclude the plaintiffs from national body for regulating horse racing — Where facts may give rise to multiple causes of action including breaches of competition law — Preliminary discovery granted

CRIMINAL LAW — Evidence — Murder trial — Where Crown case relies upon circumstantial evidence as well as alleged admissions — “Flight” going to consciousness of guilt — Accused travelled to Queensland shortly after deceased’s body was discovered — Where the accused told his landlord he was travelling to Queensland but that he would return — Where the accused paid one week’s rent in advance — Whether the evidence is capable of constituting evidence of flight demonstrating a consciousness of guilt — Application by the Crown to rely on the evidence as consciousness of guilt refused

EQUITY – Trust and trustees – Judicial advice – Variation of trust deed – Approval of arrangement where there is a lost trust deed – Desirability of Court being able to declare terms of lost trust deed rather than provide judicial advice - Trustee Act 1925 (NSW), ss 63, 86A

MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth), s 340 — Where liquidators received tax refunds after winding up commenced — Where refunds arose from tax offsets for R&D expenditure — Whether refunds were “circulating assets” at relevant date — Whether refunds were “personal property” in form of an “account” — Whether entitlement to refunds chose in action against Commonwealth at relevant date — Whether refunds “arise from” providing services in ordinary course of a business of providing services of that kind (financial platform services) EMPLOYMENT AND INDUSTRIAL LAW — Identity of employer — Where employer of record was related company to parent company — Whether related company was the agent for an undisclosed principal — Where related company carried on no business activities, had no assets or revenue — Where parent company paid employees directly — Where no labour hire agreement between parent and related company — Where book debt owing by related company to parent company for employee payments the subject of deed of forgiveness EMPLOYMENT AND INDUSTRIAL LAW — Identity of employer — Agency — Whether application of undisclosed agency principles inconsistent with orthodox contractual principles for determining character of employee-employer relationship

BAIL – Aboriginal child – whether proposed conditions mitigate risk – whether Youth Justice can (should) supervise child where the child has pleaded not guilty – the valuable resource of Youth Justice staff – conditional bail granted

MENTAL HEALTH — forensic patient — pre-hearing procedural orders — interim extension orders — where defendant does not oppose nor consent to the orders sought — whether Court is satisfied of the statutory requirements — orders made

CIVIL PROCEDURE — application for urgent interlocutory relief — balance of convenience — where defendant published on the website of the NSW Resources Regulator an investigation report and incident animation — where report and animation related to an incident at a mine operated by the plaintiff — where plaintiff sought that the report and animation be removed from website — whether to grant plaintiff’s application for relief — application refused

CIVIL PROCEDURE – interim proceedings – freezing order – against defendant and directors of defendant and against related companies – whether interim freezing order should be extended – good arguable case – whether permissible to take into account issues that will arise at final hearing when determining monetary limit of order – where monetary limit of interim freezing order set at level of maximum of plaintiff’s claim – third party respondents exercising power of disposition over defendant’s assets – third party respondents may be liable to disgorge property – relevance of fact that defendant insured and insurer admitted liability to indemnify with usual reservations – relevance of impact of interim freezing order on defendant and respondents

JUDGMENTS AND ORDERS – Judicial review – Consent orders – Setting aside orders of District Court – Where sufficiently reasonable argument primary judge misapprehended the question – Orders set aside – Question of remitter to Court differently constituted – Where finding of credit discernible in primary judgment – Matter remitted to District Court differently constituted

CRIME – APPEAL – Appeal against sentence – manifest excess – totality – stale offence – relationship between Bugmy factors and mental condition – sentence unfair or plainly unjust.

SENTENCING – sentence of imprisonment – sentence of two years or less – consideration of intensive correction order – community safety as paramount consideration – assessment of risk of reoffending – describing intensive correction order as act of leniency – role of general deterrence

CORPORATIONS – voluntary administration – administration should end because the company is solvent – consideration of the relevance of debt falling due in 13 months’ time to the analysis of present solvency – orders made pursuant to s 447A(2)(a) of the Corporations Act 2001 (Cth)

EQUITY – equitable remedies – rectification - discretionary trust created in 1989 – original Trust deed (the 1989 Deed) names three beneficiaries, a father and his two daughters – original trust deed lost – attempts made in 2015 to create a replacement Trust deed, reproducing the structure of the 1989 Deed (the 2015 Deed) – mistake made in the 2015 Deed which includes in the list of beneficiaries a man and his wife but not the couple’s two daughters – whether there was a common intention at the time of execution of the 2015 Deed to reproduce the list of beneficiaries in the 1989 Deed – whether the 2015 Deed should be rectified. EQUITY – Trusts and trustees – judicial advice – Trustee Act 1925, s 63 – whether the Trustee would be justified in treating the 2015 Deed as rectified, as accurately reflecting a form of the 1989 Deed with respect to the identity of the beneficiaries of the Trust.

CORPORATIONS – registers maintained by Australian Securities and Investments Commission under Corporations Act 2001 (Cth) – register of companies – scope of power to order rectification of register pursuant to s 1322(4)(b) – orders made for rectification

ADMINISTRATIVE LAW – Jurisdictional error – Subjective jurisdictional pre-requisite – Decision of Legal Services Commissioner – Where reasons did not explicitly state requisite opinion formed – Whether basis to draw inference requisite opinion not formed – Where open to Commissioner to form that opinion – Where matter not agitated in submissions – Where relatively informal procedure for the resolution of low level consumer complaint – Reasons not required to state findings of every uncontroversial jurisdictional pre-requisite – Not established that opinion not formed ADMINISTRATIVE LAW – Jurisdictional error – Irrelevant and relevant considerations – Statutory construction – Whether attempt at informal resolution jurisdictional pre-requisite – Requirement not jurisdictional pre-requisite – Commissioner did attempt informal resolution – No error established ADMINISTRATIVE LAW – Jurisdictional error – Whether imposition of caution manifestly unreasonable – Where it was open to decision-maker to be satisfied conduct contravened Solicitor’s Rules r 4.1.2 and that caution was fair and reasonable – No error established ADMINISTRATIVE LAW – Jurisdictional error – Whether costs decision affected by jurisdictional error and/or error on the face of the record – Decision not made without regard to terms of retainer – Decision not arbitrary – Decision rational and open to Commissioner – No error established

HIGH RISK OFFENDER – Final hearing – Serious sex offender – Application for extended supervision order – Where parties agree defendant poses unacceptable risk of committing another serious offence unless kept under supervision – Where no dispute as to appropriate conditions of supervision

CONTRACTS – construction and interpretation –where hotel management agreements on foot in respect of four hotels - where hotel manager entitled to a "Capital Gains Bonus Fee" pursuant to hotel management agreements – where application by liquidators for declarations as to proper construction of hotel management agreements – whether "sale price of the property" in the definition of "Net Sales Price" contained in the formula for calculating the Capital Gains Bonus Fee referred to the sale price of the land upon which the hotels were built and the buildings as well as the hotel businesses, or only the sale price of the land and buildings – where the land upon which the hotels were built and the hotel businesses were owned by separate entities but were sold concurrently pursuant to hotel management agreements CONTRACTS – construction and interpretation – commercial purpose of agreement – objective ascertainment of commercial purpose – commercial purpose not to be used to give contractual terms a meaning they cannot reasonably bear

BUILDING AND CONSTRUCTION — Contract — Implied terms — Statutory warranties — Whether building complied with Building Code of Australia (BCA) — Where performance requirements of BCA specified that external walls must be “non-combustible” — Whether external cladding met performance requirements for fire resistance — Where cladding did not comply with “deemed-to-satisfy” provisions — Where no “alternative solution” prepared prior to issue of construction certificate —Home Building Act 1989 (NSW), s 18(1)(c) — Where breach of s 18(1)(c) conceded BUILDING AND CONSTRUCTION — Contract — Damages — Claim for reinstatement damages — Evidentiary onus of proving reinstatement would be unreasonable

CIVIL PROCEDURE — Hearings — Where appellants sought separate inquiry as to assessment of equitable compensation and common law damages — Whether primary judge denied appellants procedural fairness by dismissing claims because they had not proved they suffered any loss COMPANIES — Shares — Rectification of share register — laches defence EQUITY — Defences — Laches — Whether claim to rectification of share register barred by laches

TORTS – false imprisonment – trespass – misfeasance in public office – suspicion on reasonable grounds – whether arrest reasonably necessary – transfer of care of children following arrest – whether contrary to Family Court orders – inconsistency with a federal law – whether police officer acted maliciously – whether causative link between actions and loss

TAXES AND DUTIES — Vesting orders — Power sufficiently broad under the Electricity Generator Assets (Authorised Transactions) Act 2012 (NSW) to authorise vesting of interests owned by the Water Administration Ministerial Corporation — Purposive considerations especially significant in relation to poorly drafted instruments — Construction of practical documents meant to achieve a practical end — Achieving certainty in identification of assets for sale by privatisation — Vesting orders legally severed the interests in the items constituting the power stations TAXES AND DUTIES — Dutiable transactions — Dutiable property — Whether items constituting power stations were fixtures, innominate sui generis property or “goods” — Items in question had been goods but became part of the land when affixed — Statutes may operate by reference to general law notions — Duties Act does not alter conclusion that the items were “goods” liable to duty — Even if innominate sui generis interests would still be liable to duty TAXES AND DUTIES — Whether primary judge fell into error by considering if the leases were a “driver of value” — Finding that the bare lease agreements contributed to value did not foreclose the finding that the water agreements were fundamentally more important — Primary judge did not mistake the facts in House v The King sense

APPEALS — From finding of fact — Inferences from primary facts — Jones v Dunkel inference — Whether expected or natural for the party in question to have called a particular witness — Uncalled evidence would not have assisted a party’s case — Not natural to expect one party to call unrelated party to testify as to matters touching upon the latter’s possible fraud — Jones v Dunkel inference would not advance judicial reasoning in any material way in any event APPEALS — From finding of fact — Clear, unchallenged and plausible evidence that respondent would not have falsely witnessed execution of documents — Persuasive evidence required to make out the contrary proposition CONSUMER LAW — Alleged misleading or deceptive conduct — Appellants bore onus of establishing what would have happened but for the misleading and negligent conduct — Evidence of what a professional adviser would have done does not establish what the decision-maker would have done — Principal previously acted against professional advice in relation to the loan

JUDGMENTS AND ORDERS – amending, varying, setting aside – application to set aside orders under UCPR r 36.16.

EQUITY – trusts and trustees – express trusts – resulting trusts – constructive trusts – where property purchased by the second appellant was later transferred to the second respondent – whether, pursuant to an agreement between the second appellant and the second respondent, the property was held on trust for the second appellant – whether the transfer of the property to the second respondent occurred without consideration for the second appellant’s equity or for false consideration – whether the transfer of the property to the second respondent was a sham giving rise to a resulting trust in favour of the second appellant – whether the later transfer of the property to a third party to release mortgages over properties belonging to the respondents impressed those properties with constructive trusts in the second appellant’s favour BANKING AND FINANCE – banks – bank accounts – where bank account was opened in the name of the first appellant, with the second appellant as sole signatory – where second appellant provided first and second respondents with signed blank cheques, a debit card and online access for the bank account – where first and second respondents and other persons made withdrawals from the bank account – whether the second appellant was the legal and beneficial owner of the money in the bank account – whether the first and second respondents bore the onus of proving their authority to make withdrawals from the bank account RESTITUTION – nature of restitutionary liability – common counts – money had and received – whether primary judge failed to decide appellants’ claim as to money had and received – whether primary judge erred in finding that the appellants did not discharge the onus of proving that the withdrawals from the bank account were made without authority TORTS – interference with goods – conversion – where first and second respondents withdrew sums of money from a bank account in the first appellant’s name by the cashing of cheques – whether primary judge erred in finding that the appellants did not discharge their onus of proving that the first and second respondents made the withdrawals without authority and therefore converted the cheques to their use and/or the use of other respondents

COSTS – judicial review of District Court decision following appeal from costs assessor – whether applicants’ challenge wrongly described – whether findings an error of law on the face of the record – whether certain cases relied on in error – whether failure to consider applicants’ arguments and alleged implications under the Legal Profession Uniform Law 2014 (NSW) – whether evidence from bar table relied upon – no errors of law on the face of the record – Amended Summons dismissed

TAXES AND DUTIES – payroll tax – liability – employment agents – employment agency contracts – trolley collection and cleaning services provided by subcontractors to supermarkets – whether services of the service provider “in and for” business of a client of the employment agent

CIVIL PROCEDURE — hearings — adjournment — where third defendant sought orders in notice of motion — where plaintiff considered that a constitutional issue might arise in relation to one of the orders sought — where plaintiff needed further time to consider whether a constitutional issue might arise and sought an adjournment to the hearing of the motion — where all parties affected by the orders sought consented to the adjournment — whether to grant the adjournment — adjournment granted

MENTAL HEALTH – criminal proceedings – homicide of baby of accused – evidentiary inquiry as opposed to trial – defence of mental illness — mental health impairment well established – appreciation of nature and quality of act – no real appreciation of wrongfulness of act – special verdict returned

CONTEMPT — civil contempt — penalties – sentencing – fines – sequestration – where the first, second, fourth and fifth defendants were found guilty of various contempts of court – where contempts involving breaches of asset preservation orders and breaches of undertakings to the Court have remained unpurged for an extended period – consideration of the appropriate penalties for the contempts –whether an order for indemnity costs ought to be made against the first, second, fourth and fifth defendants – held that the nature and seriousness of the contempts warrants the imposition of a penalty of imprisonment and fine upon the first defendant and the imposition of a fine upon the second defendant – held that the commencement of the term of imprisonment of the first defendant should be suspended for a period to give a further opportunity for the outstanding contempts to be purged – held that an order for sequestration should be made against the fifth defendant – held that the order for sequestration should be suspended for a period to give a further opportunity for the outstanding contempt to be purged – held that an order for indemnity costs should be made against each of the defendants

CIVIL PROCEDURE — representative proceedings — settlement or discontinuance — Court approval pursuant to s 173 of Civil Procedure Act 2005 (NSW) — Stolen Generations — amendment of group definition so that those First Nations children in the Northern Territory removed by authorities between 1912−1973 eligible to participate in the Territories Stolen Generations Redress Scheme are to be removed — remainder of definition consists of Deceased Removed Children and Kinship Group Members — $50.45 million settlement sum — reasonableness of settlement distribution scheme including deductions for plaintiff’s legal costs and disbursements, special payments to original and substituted lead plaintiffs, funder’s commission and after-the-event insurance premium, and costs of administration — settlement scheme provides payments to estates and family members of Deceased Removed Children and Kinship Group Members and to living Kinship Group Members —reasonable settlement as between the parties and as between group members — orders made approving settlement

CONSUMER LAW — misleading or deceptive conduct pursuant to s 18 of the Australian Consumer Law or s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) — where contract to purchase off-the-plan apartment was executed and exchanged, deposit paid but contract not completed — where plaintiffs allege they were misled as to availability of vendor finance at market interest rate prior to settlement by sales agent — whether representations made or conveyed — representations not made out on evidence — plaintiffs’ claim fails

CIVIL PROCEDURE — supervisory jurisdiction – error of law on face of record – jurisdictional error – decision of District Court requiring leave to appeal – calculation of threshold amount – construction of statute COSTS — costs assessment — determination of review panel – appeal to District Court — leave requirement – calculation of threshold amount – amount of “costs” in dispute – whether costs can include costs of the costs assessment — no claim for costs of the costs assessment before assessor or review panel – application of Legal Profession Uniform Law Application Act 2014 (NSW), s 89(1)(a)

CRIME – appeal against conviction – jury irregularity – where judgment on admissibility mistakenly included in juror’s folder – individual juror discharged – decision to continue with jury of 11 – whether risk of miscarriage – inconsistent versions of whether document had been discussed or seen by remaining jurors – miscarriage established CRIME – tendency evidence – directions – construction of s 161A Criminal Procedure Act – standard of proof – danger of circular reasoning process – Shepherd direction – reliance on both charged and uncharged acts – potential for misuse of evidence – potential for jury to apply wrong standard of proof to charges – need for directions to guard against prejudice – whether directions occasioned miscarriage – proposed directions flatly contrary to statute – ground of appeal dismissed

EVIDENCE – admissibility – tendency evidence relied upon by accused – raising of reasonably possible alternative inference to coincidence reasoning relied upon by Crown – significant probative value for defence tendency evidence contrasted to prosecution tendency evidence

REAL PROPERTY — possession — plaintiffs’ claim for possession of land — where plaintiffs were the registered proprietors of the land — where default judgment had been entered in favour of the plaintiffs — where the Principal Registrar set aside the default judgment for no ascertainable reason — whether to discharge and set aside the Principal Registrar’s decision to set aside the default judgment — Principal Registrar’s decision to set aside the default judgment set aside

HIGH RISK OFFENDER – Final hearing – Violent offender – Application for extended supervision order – Whether defendant poses unacceptable risk of committing serious offence – Disputed conditions of supervision – Whether qualified drug abstinence and information-sharing conditions appropriate

APPEAL – appeal from Local Court – whether Local Court has the implied power to make an order restricting an accused’s ability to retain a brief of evidence – consideration of jurisdictional error – safety of witnesses – Local Court has implied power to make a Restricted Retention Order STATUTORY INTERPRETATION – whether confidential information in a brief of evidence can give rise to an “obligation” pursuant to section 61(2) of the Criminal Procedure Act 1986 (NSW) – whether “obligation” includes the equitable obligation of confidence – section 61 not in mandatory terms which can only be departed from if specified in Criminal Procedure Act 1986 (NSW)

CRIMINAL LAW ─ appeal ─ appeal against conviction ─ murder charge with alternative verdicts of manslaughter and assault occasioning death while intoxicated ─ applicant stabbed deceased in violent altercation and deceased suffered two wounds ─ jury note requested trial judge clarify difference between manslaughter and assault occasioning death while intoxicated ─ acquittal on murder and notional acquittal on manslaughter ─ verdict of guilty of assault occasioning death ─ complaint of inconsistent verdicts ─ whether logic of acquittal of murder and manslaughter necessarily gives rise to an acquittal of assault occasioning death ─ logic of acquittal could not lead to acquittal of assault occasioning death ─ whether guilty verdict was unreasonable on the basis that it was founded upon the applicant’s act not being dangerous ─ verdict explicable by reference to scope for debate about the degree of force applied in stabbing the deceased, evaluative nature of assessing whether applicant’s act was “dangerous” and juries applying their “innate sense of fairness and justice” ─ no compromise by jury ─ whether trial judge erred in leaving to the jury alternative offences under s 25A ─ “viable” case under s 25A having regard to jury’s function and scope for debate about degree of force applied ─ appeal dismissed

CRIMINAL LAW – sentence appeal – objective seriousness – whether sentencing judge made an assessment of objective seriousness – where sentencing judge noted factors relevant to finding – no requirement to use an adjective to assess objective seriousness – ground dismissed CRIMINAL LAW – sentence appeal – manifest excess – where no specific error discerned – whether sentence was manifestly excessive having regard to degree of accumulation – where applicant traded cocaine for illegal cigarettes – trading illegal substances represents more significant criminality than trading an illegal substance for money - comparable cases distinguishable – ground dismissed

CRIMINAL LAW – appeal against sentence – offences of intimidation and aggravated kidnapping – domestic violence offences committed in breach of court order – further offences taken into account - question of error in treatment of criminal history – question of error in assessment of objective gravity – whether moral culpability is a component of objective gravity – question of treatment of drug addiction – whether drug addiction formed in childhood is a separate and distinct mitigating feature – question of manifest excess

CRIME — APPEALS — Appeal against sentence — Supply prohibited drugs — Directing activities of a criminal group — Sentencing judge failed to assess whether applicant unlikely to re-offend — Where issue was addressed by evidence and in written submissions — Whether the finding of reasonable prospects of rehabilitation encompassed unlikelihood of re-offending — Error established — Applicant re-sentenced

ADOPTION — FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Application for the adoption of two children, who are maternal siblings, in favour of a married couple — Mother of the child opposes orders — Older child is nearly 18 years old, whilst younger child is 16 years old – Both consent to the adoption orders and change of surname sought - Whether proposed surname change for each child to surname of proposed adoptive parents should be approved – Consent to name change by each child FAMILY LAW AND CHILD WELFARE - Maternal Adoption Plan - Whether the arrangements in the adoption plan are in the children’s best interests and are proper in the circumstances - registration of Adoption Plan

CRIME – trial – accused indicted for firearms offences and two counts of kidnapping – acts proved by Crown – consideration of defence under the Mental Health Cognitive Impairment Forensic Provisions Act 2020 - unchallenged evidence of a mental health impairment – accused did not know his acts were wrong due to impairment – special verdict returned

CRIMINAL LAW – murder – substantial impairment – late service of notice and report – whether leave should be granted – fatalistic Prosecutor – leave not opposed – application to vacate the trial date – unable to be resisted – trial date vacated CRIMINAL LAW – evidence – cause of death – opinion evidence – forensic pathologist – where cause of death blunt force injuries – whether evidence of ligature bruise relevant when there is no evidence strangulation contributed to death – where opinion couched in terms of possibility and suspicion – whether evidence likely to be misused – where conflict in opinions of pathologists as to timing of injury – whether evidence confusion or misleading – evidence admissible CRIMINAL LAW – tendency evidence – “relationship” evidence – violent and tempestuous relationship – multiple sources of evidence – hearsay evidence – things the deceased said – whether contemporaneous statements as to state of mind etc – exceptions to hearsay rule – assessment of probative value of evidence – assessment of danger of unfair prejudice – where accused seeks to lead evidence that the deceased had a tendency to be violent – proper tests of admissibility – analysis of assessment of individual items of evidence – some admitted – some not – it is a lot