Cases and authorities

CIVIL PROCEDURE — hearings — adjournment — where defendant made informal application for adjournment on day of hearing LAND LAW — co-ownership — statutory trust for sale — where plaintiff seeks appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW)

SENTENCING - Murder - Where offender struck 77 year old victim repeatedly with frying pan - Extreme childhood neglect and abuse - Application of Bugmy v The Queen principle - Nexus between mental health diagnoses and offence - No remorse and uncertain prospects of rehabilitation

CONTRACTS — remedies — where plaintiff seeks specific performance of contracts for sale of land CONTRACTS — formation — consideration — effective consideration — where contract for sale of land contained special condition that purchase price had already been paid — where parties entered into collateral agreement acknowledging conveyance of real property was satisfaction for loans — where consideration was provided by the compromise as to the sum of the loans and the agreement to transfer real property in repayment of debt CONTRACTS — duress — where evidence not capable of supporting fact of duress as alleged events occurred subsequent to contract date

JUDGMENTS AND ORDERS — orders giving effect to reasons for judgment

LAND LAW – possession of land – default under mortgage

LAND LAW – possession of land – default under mortgage – no defence to the claim – where one registered proprietor died before proceedings commenced – no defence filed – judgment given for possession

COSTS — Party/Party — Bases of quantification — Indemnity basis – whether indemnity costs should be awarded in circumstances where parties had consented to orders dismissing the proceedings – where Calderbank offers had been made – reasonableness of offers – application for indemnity costs rejected

CIVIL PROCEDURE — Stay of proceedings — Claim for damages for historical sexual abuse — Abuse admitted — Abuse occurred between 1979 and 1982 — Claim of direct liability against institution — No available evidence regarding the defendant’s knowledge of any particular risk posed by the perpetrator — No available evidence which would enable a response to allegations of breach of duty — Permanent stay ordered CIVIL PROCEDURE — Stay of proceedings — Claim of vicarious liability — No evidence of the particular role assigned to the perpetrator — Permanent stay ordered CIVIL PROCEDURE — Stay of proceedings — Claim for damages for historical sexual abuse — Abuse admitted — Perpetrator alive and available to give evidence — Where perpetrator had pleaded guilty to and been sentenced for related offences — Where perpetrator was shown to have an interest in shifting moral blame for his conduct — Perpetrator not an independent witness whose availability would enable a fair trial

CRIME – Appeal – Appeal against sentence – whether sentencing judge failed to assess prospects of rehabilitation and risk of reoffending – sentencing judge made no positive finding – ground upheld –whether applicant established justifiable sense of grievance in relation to his sentence compared with that of co-offender – where co-offender was instigator of offending but had stronger subjective case – ground upheld – applicant re-sentenced

CRIME – Appeals – Interlocutory appeal – Application for leave to appeal two interlocutory decisions pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) – Where trial judge refused applications to adjourn trial and recuse himself for apprehended and actual bias – Whether refusal of adjournment application infected by House v The King error –Whether recusal decision amenable to s 5F appeal

CRIME — appeals — appeal against sentence –carjacking and other offences to do with motor vehicles – use of false document to obtain financial advantage by way of free use of rental car – assault with intent to take second motor vehicle – attempt to dishonestly obtain third motor vehicle by deception – whether sentencing judge made erroneous findings of fact – immaterial finding that a false credit card was used as opposed to false driver’s licence – clear benefit in the applicant having the use of dishonestly obtained vehicle for more than two weeks – interpretation by sentencing judge of the evidence regarding applicant’s motivation for the forcible taking of the vehicle open – whether error in finding that the offences were part of planned criminal activity – characterisation as “car re-birthing” open – appeal dismissed

CIVIL PROCEDURE — Commencement of proceedings — Statement of claim – self-represented litigant – where plaintiff has made a number of attempts to properly plead his case – whether leave should be granted to the plaintiff to file an amended statement of claim

CRIME — Appeal and review — Applications to Supreme Court under Part 7 — sexual and perverting the course of justice offences — application dismissed

CIVIL PROCEDURE – permanent stay – action for damages for historical sexual assault – allegation of sexual abuse by a school principal – where the alleged abuser has passed away – where evidence that corroborates allegation is deficient – whether the lack of evidence and inability to put allegation to alleged abuser makes proceeding manifestly unfair – significance of removal of limitation period

CRIMINAL LAW — sentence — joint criminal enterprise where agreement was to shoot the deceased with at least an intention to inflict grievous bodily harm — planning — where deceased shot while lying in his bed — deceased President of the Bandidos Central West Chapter — where offender has serious health issues — poor prognosis

TORTS — trespass to the person — false imprisonment — wrongful arrest — where plaintiff arrested on two occasions — in relation to two sexual encounters with two separate women — ss 61J and 59(1) of the Crimes Act 1900 (NSW) — BDSM including acts of sex and violence — whether arrests lawful — ss 99 and 202 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — whether police officers suspected on reasonable grounds that it was necessary to arrest the plaintiff — where failure to provide reasons for arrests — whether arrests became lawful when reasons provided later — materiality — where no satisfactory reason offered for failure on two occasions of non-compliance — where breach not technical but a failure to appreciate statutory obligations — where plaintiff falsely imprisonment for 2 hours in relation to first arrest — 24 hours in relation to second arrest — plaintiff entitled to damages for the two arrests TORTS — malicious Prosecution — elements — where proceedings terminated in favour of plaintiff in relation to both complaints — whether defendant acted with malice — whether absence of reasonable and probable cause — objective and subjective tests — where relevant police officers suspected on reasonable grounds that plaintiff had committed offences of sexual assault in relation to first complainant — where police did not have reasonable grounds for suspicion in relation to offence alleged against second complainant — where failure to identify evidence relied upon to hold suspicion and justify second arrest — absence of contemporaneous WhatsApp messages and where police knew missing messages important — where, in relation to each arrest, no evidence of malice — claim for malicious prosecution fails

CIVIL PROCEDURE — Personal injury claim — Settlement or discontinuance — Court approval – where plaintiff is under a legal incapacity – where there is competing credible expert evidence – whether there are sufficient prospects of obtaining a more favourable judgment

CIVIL PROCEDURE - Circumstances raised which required the Court to consider whether there was a need for recusal – Court not disqualified itself

CIVIL PROCEDURE — Interim preservation — Search orders — Interlocutory injunction restraining employee from using or disclosing any data or information — Where employee surreptitiously installs software

Oppression — Members’ rights and remedies — Whether conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory — both shareholders fund acquisition of properties and one shareholder substantially funds companies' ongoing activities . Oppression — Members’ rights and remedies — Exercise of discretion as to remedy — Whether compulsory buyout orders as to Defendants’ shares appropriate in the circumstances — Whether to order company be wound up — Where relationship between the parties has broken down.

CIVIL PROCEDURE – subpoena – three separate responses to subpoena – whether proper officer of subpoenaed party should attend for examination

MENTAL HEALTH – forensic patient – extension order sought for a period of two years as forensic patient – whether defendant poses unacceptable risk of causing serious harm to others – whether the risk can be adequately managed by other less restrictive means – extension granted

CIVIL PROCEDURE – discovery – whether necessary for resolution of real issues in dispute – where applicant contends that the respondent’s use of statutory information gathering powers was unlawful CIVIL PROCEDURE – overriding purpose: just, quick and cheap resolution - case management – whether orders sought should be granted when regard is had to the significant delay and cost of the proceedings

GUARANTEE AND INDEMNITY – contract of guarantee – where the rights of principal creditor under debt funding facility assigned – where assignee seeks enforcement against guarantors of principal debtor under the facility – where a transaction purportedly effected under the facility is not captured by its terms – guarantors not liable to indemnify the assignee for a transaction distinct from that which was the subject of the guarantee

COSTS – exercise of costs discretion – plaintiff brings proceedings against multiple defendants but no longer wishes to proceed against the first defendant – the plaintiff and first defendant cannot agree upon what costs order should be made to conclude the proceedings – whether each of the plaintiff and the first defendant has acted reasonably in commencing and defending the proceedings respectively – whether one party was almost certain to have succeeded if the matter had been fully tried.

CIVIL PROCEDURE — alternative dispute resolution — referral to referees for assessment of remaining claims for damages in representative proceedings — appropriate methodology and procedure — where parties are largely agreed — whether defendant should have ability to issue subpoenas without referees’ leave — whether defendant should have ability to cross-examine any individual claimant without referees’ leave — whether referees should not commence their preparation prior to the delivery of a reserved judgment by the Court of Appeal relevant to the proceedings — orders for referral made — methodology and procedure stipulated

CONTRACTS — Real estate agent contract — Agent’s claim for commission — Whether agent “effectively introduced” the purchaser — Where actual purchaser was a trustee – Where no evidence of beneficiaries of the trust – Whether sufficient causal connection between introduction of prospective purchaser and ultimate sale — Where sole director of prospective purchaser one of the directors of actual purchaser

COSTS – personal costs order against solicitor for defendant – filing of defence – statement of claim deficient – no affirmative defence pleaded – whether costs incurred “without reasonable cause” – Civil Procedure Act 2005 (NSW), s 99 COSTS – costs order against solicitor – whether plaintiff’s claim was for “damages” – statement of claim sought repayment of debt – Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2, cl 5 EVIDENCE – appeal – further evidence – evidence available during trial – waiver of privilege – liquidator appointed to solicitor’s client – privilege waived by liquidator – solicitor’s file not produced – no reliance on proposed tender in course of submissions

CIVIL PROCEDURE – permanent stay – action for damages for historical sexual assault more than 30 years ago – defendant suffered severe stroke in 2014 and now suffers from dementia – defendant prosecuted for same conduct – defendant found unfit to stand trial – following special hearing, defendant found on limited evidence to have committed offence against plaintiff pursuant to s 22(1)(c) of Mental Health (Forensic Provisions) Act 1990 (NSW) – whether defendant’s inability to provide instructions and cognitive decline made a fair trial impossible – whether primary judge failed to address substantive submission advanced by defendant – significance of defendant being confronted with allegations before his cognitive decline – significance of being unfit to stand trial on criminal charges and application for permanent stay of civil proceedings – discretion to grant a permanent stay re-exercised but appeal dismissed

ENVIRONMENT AND PLANNING – judicial review of consent to build new dwelling house – consent granted following conciliation conference in Land and Environment Court – proposed development in fact exceeded height control – exceedance not clear from material before Land and Environment Court – Commissioner found on basis of evidence before him that proposed development did not exceed height control and could be granted in proper exercise of court's functions – applicants brought proceedings in supervisory jurisdiction of Supreme Court – applicants adduced fresh survey evidence establishing height control exceeded – whether compliance with height control a jurisdictional fact – whether prohibition in Local Environmental Plan applied of its own force – significance of consent being granted following conciliation conference as opposed to after a hearing – Ross v Lane [2022] NSWCA 235 considered and applied – compliance with height control not a jurisdictional fact – summons dismissed

NEGLIGENCE – workplace injury – negligence of fellow worker conceded – vicarious liability – employee of labour hire company – employee working at premises of third party – whether host employer exercised control over negligent employee and work carried out – whether host employer vicariously liable DAMAGES – duty of care to worker – breach of duty – duty of employer – duty of third party on whose premises work carried out – whether legal employer negligent – apportionment of liability between legal employer and host employer – whether legal employer’s non-delegable duty required apportion-ment of part of responsibility for injury to it

CRIME — APPEALS — Appeal against sentence — Cultivation of prohibited plant by enhanced indoor means — Whether applicant had a justifiable sense of grievance in light of sentence imposed on co-offenders — Where there were differences in offence structures and role of the applicant — No justified sense of grievance — Leave to appeal granted — Appeal dismissed

CIVIL PROCEDURE — summary disposal — where Originating Process and supporting affidavit alleges treason, removal of the Crown, removal of the Monarch, fraud by former Prime Minister — HELD — summary dismissal of proceedings — frivolous or vexatious proceedings

CORPORATIONS LAW – receivership – winding down – remuneration to liquidators – form of orders

CIVIL PROCEDURE — Pleadings — Striking out or permanent stay — Abuse of process — Vexatious proceedings — No issues of principle

PRACTICE AND PROCEDURE — joinder of respondent’s former solicitor for the purposes of providing a contradictor to the appellant in the appeal — joinder ordered on terms

CRIME – appeal and review – juvenile offender convicted of three counts of possession of child abuse material under Crimes Act 1900 (NSW) s 91H(2) – whether offender a “registrable person” under s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW) – whether exception under s 3A(2)(c)(ii) applies – meaning of “arising from the same incident” – interaction of s 3(3) and s 3A(5) – whether possession of child abuse material is an offence “committed against” a person – primary judge erred in “disapplying” s 3(3) to s 3A(5) STATUTORY INTERPRETATION – departure from literal meaning by primary judge – inadvertence by legislature – desire to avoid “incoherent results” – that a provision has unfair results an insufficient justification for entirely refusing to apply statutory text – limited qualification on operation of provision sufficient to avoid incoherence STATUTORY INTERPRETATION – amendment and repeal – references to amended or repealed statute – Interpretation Act 1987 (NSW) s 68 – reference in earlier version of Child Protection (Offenders Registration) Act 2000 (NSW) s 3A(2)(c)(ii) to Crimes Act 1900 (NSW) s 578B – Crimes Act s 91H and s 578B (repealed) are corresponding provisions for the purposes of Interpretation Act s 68(3)

CRIME – appeal – appeal against sentence – applicant convicted of murder based on joint criminal enterprise to kill as act of revenge – applicant 17 years old acting with father and brother – whether sentence was manifestly excessive – no challenge to findings made by the sentencing judge – sentencing judge had regard to all relevant factors in determining sentence including youth immaturity and father’s influence – applicant presented favourable subjective case on sentence – sentence not unreasonable or plainly unjust – leave to appeal granted – appeal dismissed

CRIMINAL LAW – sentence appeal – where sentencing judge made finding of special circumstances – statutory ratio not adjusted – error established – application for leave to appeal granted – statutory ratio varied

CRIME — Appeals — Appeal against conviction — Historical sex offences — Application for permanent stay — whether trial judge erred in refusing to permanently stay proceedings due to delay — forensic disadvantage — whether forensic disadvantage directions were inadequate CRIME — Appeals — Appeal against conviction — Judge alone trial — Tendency evidence — whether trial judge erred in holding evidence of complainants had been corroborated CRIME — Appeals — Appeal against conviction — Judge alone trial — Coincidence evidence — whether trial judge erred in using coincidence reasoning when not relied on by prosecution CRIME — Appeals — Appeal against conviction — Judge alone trial — Evidence — whether trial judge erred by taking into account excluded evidence — whether trial judge erred in assessing demeanour of accused in the dock — whether evidence of complainants and tendency witnesses contaminated — whether trial judge reversed onus of proof for contamination of evidence

CRIME — appeals — appeal against sentence — by Crown against inadequacy — respondent convicted of 12 sexual offences relating to two young foreign nationals — offences involving sexual assaults, recording and dissemination and threat to disseminate intimate video — whether sentencing judge failed to take into significant account emotional harm as an aggravating factor — s 21A(2)(g) Crimes Sentencing Procedure Act — whether sentencing judge misapplied principle of totality in setting aggregate sentence — whether sentence manifestly inadequate — where complainant suffered substantial emotional harm — alienation from family and friends in Nepal — where harm went well beyond what could ordinarily be expected — where sentencing judge erred in not finding substantial emotional harm as a matter of aggravation — whether aggravating factor applied to all the charges - sentence manifestly inadequate - appeal allowed — respondent resentenced

RETAIL LEASES ACT – Retail tenancy dispute –Whether relevant premises are a “retail shop” – Whether relevant lease is a “retail shop lease” –Appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – Whether the NCAT has jurisdiction over dispute – Claim of “no evidence” for findings of fact

CRIMINAL LAW – applicant convicted at trial of stalking offences – application under s 78 Crimes (Appeal and Review) Act 2001 – whether diagnosis of Autism Spectrum Disorder raises a “doubt or question” as to the applicant’s guilt – whether evidence was available on appeal at District Court

BANKING AND FINANCE — Vietnamese couple venture into property development – acquire development site with one-year loan – retain mortgage broker to obtain refinance and construction loan – new lender fixes completion date before Christmas – existing loan yet to expire, with no discount for early repayment – borrower’s solicitor says clients need interpreter – broker and lender regard as delaying tactic – lender declines to provide loan if borrower’s solicitor continues to act – broker arranges new solicitor and termination of existing solicitor’s retainer – borrowers told they have no other option – borrowers say they don’t need an interpreter – borrowers advised by new solicitors without interpreter – borrowers default— site sold — principal repaid. DOBBS’ CERTIFICATE — lender relied on certificate as evidence of amount owing — certificate signed by one of three directors — on letterhead of different company – principles at [289]-[296] – whether certificate conformed to requirements of the contract. MORTGAGE BROKER — obliged to use “best endeavours” — scope of contractual obligation at [310]-[314] – required standard of performance — implied duty of reasonable care and skill at [315]-[316] — whether implied term not to exert duress or engage in unconscionable conduct at [317]. DURESS — principles at [321]-[326] — duress is limited to actual or threatened unlawful conduct — lender’s threats were not unlawful – broker's unlawful conduct was not the relevant pressure inducing entry into the contract. UNCONSCIONABLE CONDUCT — equity — special disadvantage – lack of English proficiency – principles at [329]-[335] — whether corporation can suffer special disability at [336]-[338] – combination of circumstances led to special disadvantage – whether contracts can be invalidated by unconscionable conduct of third party at [378] – whether declaratory relief will be granted disentitling broker of its fee accrued prior to and independently of unconscionable conduct at [380]. UNCONSCIONABLE CONDUCT — statutory unconscionability — relevance of knowledge at [388]. WORDS and PHRASES – “certificate” at [303] – “best endeavours” at [310]-[311].

COSTS – Appeal against unsuccessful claim on Fidelity Fund – Where generally no costs order is to be made – Where plaintiff entirely failed in its appeal – Illegal transaction – In the interests of justice to make costs order

PARTNERSHIPS AND JOINT VENTURES — Existence of partnership — Where alleged partners conducted business using various corporate and trust entities and ‘sub-partnerships’— Whether ‘overarching’ partnership can exist ‘above’ various entities used to carry on business — Where putative partners agreed to share total profits from the companies, trusts and partnerships equally — Where assets held on trust — Where terms of trust inconsistent with overarching partnership — Where overarching partnership cannot have interest in alleged sub-partnerships CORPORATIONS — Winding up — Whether group of companies should be wound up on the just and equitable ground under s 461(1)(k) of the Corporations Act 2001 (Cth)— Whether companies are in deadlock — Where breakdown in the relationship has led to a fundamental change in the way in which the group operates — Where some companies simply hold investment properties on trust EQUITY — Trusts and trustees — Express trusts — Termination — Whether receivers should be appointed to the assets of trusts — Where no evidence that trust assets are in jeopardy EQUITY — Trusts and trustees — Express trusts — Termination — Whether trusts should be dissolved on the basis that the purpose of the trusts is at an end — Where bringing forward vesting date not in interest of beneficiaries PARTNERSHIPS AND JOINT VENTURES — Existence of partnership — Whether ‘sub-partnerships’ exist — Where no partnership agreement — Where there is co-ownership of investment properties, equal sharing of profits and lodging of partnership tax returns — Where ‘sub-partnerships’ acquired properties as part of a business PARTNERSHIPS AND JOINT VENTURES — Dissolution — Whether ‘sub-partnerships’ may be dissolved — Where death of a partner — Where notice of dissolution issued EQUITY — Trusts and trustees — Express trusts — Declaration of trust terms — Where declaration of terms sought inconsistent with terms of trust deed

APPEALS — review of decision refusing stay pending determination of application for special leave to appeal to High Court — no reason for stay in light of special leave being refused — no utility in reviewing decision APPEALS — application to set aside orders — where applicant resisted dismissal of appeal against orders for sale of real property under s 66G of the Conveyancing Act 1919 (NSW) — no right to challenge orders except by special leave application to High Court — Court of Appeal has no power to set aside its final orders which have been duly entered DIRECTIONS — Teoh direction — whether applicant should be restricted from accessing Court in order to protect trustees’ expeditious sale of property and other beneficiary — direction not warranted COSTS — special order for costs — whether other beneficiary should pay half of costs of unsuccessful litigation brought against trustees by applicant — trustee costs to be paid on indemnity basis by applicant from applicant’s share of proceeds of sale

CRIME – appeals – appeal against conviction – recklessly inflicting grievous bodily harm contrary to the Crimes Act 1900 (NSW), s 35(2) – where conceded that trial judge misdirected the jury as to mental element of offence – whether misdirections caused a miscarriage of justice – whether appropriate to apply the proviso if miscarriage of justice found to have occurred CRIME – appeals – appeal against conviction – where appeal against conviction successful – where sentencing judge imposed an aggregate sentence which included the count the subject of the successful appeal – where conviction on other counts was undisturbed – whether appropriate to re-sentence or remit to District Court for re-sentencing

CRIMINAL LAW – conviction appeal – applicant convicted of sexual assault offences – application for extension of time – seven grounds of appeal – whether the trial miscarried and there was a substantial miscarriage of justice arising from how the Crown prosecutor opened on the complainant’s intoxication and the element of consent and the trial judge’s response to this – whether the trial miscarried because there was no expert evidence on intoxication at trial – whether the trial miscarried because of the trial judge’s ruling to disallow the complainant from being cross-examined on a particular document – whether the verdicts were unreasonable – strong Crown case – alleged inconsistencies all jury matters that were raised at trial – applicant seeks to adduce “new” evidence on intoxication, the complainant’s residence and CCTV footage – new evidence does not prove applicant’s innocence or raise a doubt about guilt – all grounds dismissed

CRIME – appeals – appeals against sentence –use offensive weapon with intent to commit indictable offence in company – reckless wounding in company – assault – drive whilst disqualified – mistake of fact in assessment of objective gravity – failure of legal representatives to present subjective case causing miscarriage of justice where there was evidence of disadvantaged background and mental ill-health – errors conceded by Crown – appeal allowed – appellant re-sentenced