Cases and authorities

CRIMINAL LAW – appeal against conviction – appellant charged with one count of robbery with use of corporal violence and one count of perverting the course of justice – appellant convicted following Judge alone trial – whether compliance with s 133(2) of Criminal Procedure Act 1986 (NSW) – reasons did not identify elements of each offence – whether proviso applied – no substantial miscarriage of justice – appeal dismissed

JUDGMENTS AND ORDERS – Dispute among members of incorporated association as to validity of elections – Parties agree on procedure for fresh elections – Agreement recorded in consent orders including procedure for independent chair of meeting to determine eligible members – Construction of orders – Whether determination by chair subject to requirement to afford natural justice or able to be vitiated as unreasonable

COSTS – security for costs – impecunious corporate plaintiff – application for further security by the second defendant – whether there has been a material change in circumstances since the first application for security for costs – whether the delay in bringing the application for further security for costs warrants its refusal – consideration of the quantum of the security sought – plaintiff ordered to provide further security

WORKERS COMPENSATION – Consent Orders – whether failure to order reconsideration of application in Workers Compensation Commission amounted to jurisdictional error – Consent Orders made

CRIME – sentence – manslaughter – excessive self-defence – where accused attacked by two unarmed men of slight build – threat as perceived by accused included possible bruising and abrasions – where accused armed himself with knife to inflict single stab wound to chest – response extremely disproportionate to threat as perceived

EQUITY – remedies – failed joint endeavour – constructive trust for sale of property and division of net proceeds – form of declaration – return of contributions – indexation – sharing of surplus – allowances – occupation for period after breakdown of joint endeavour – other losses allegedly suffered by owner COSTS – Party/Party – plaintiff fails against one defendant and succeeds against the other – defendants commonly represented – “rule of thumb” – form of order in favour of successful defendant – unsuccessful defendant a corporate trustee - application for personal costs order against director – failure to seek judicial advice – application refused – plaintiff legally aided – set-off

CONTRACTS – breach of contract – for sale of land by defendant vendor failing to give vacant possession to plaintiff purchaser on completion – plaintiff obtained possession pursuant to earlier judgment in these proceedings – plaintiff claims for damages for alleged loss of rental income, finance costs and cost of repairing physical damage to property sustained during defendants occupation ­ plaintiff held to be entitled to damages for loss of rental income and property damage – no question of principle.

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) – adjudication determinations – where adjudication determinations are affected by jurisdictional error – where the Court has the power to set aside the whole or any part of an adjudication determination pursuant to s 32A of the Act – meaning and operation of s 32A of the Act – consideration of how adjudicated amounts which are affected by jurisdictional error may be reduced pursuant to s 32A of the Act – consideration of the extent to which the Court may or should exercise its power pursuant to s 32A of the Act in relation to the reasons for an adjudication determination – consideration of whether determinations of liability for adjudicator’s fees are affected by jurisdictional error

SUCCESSION — Family provision — Deceased directed that a substantial part of her estate being a property at Murwillumbah and the overwhelming majority of proceeds of a life insurance policy be left to her daughter and a very modest amount of proceeds to her only other child, a son — Claim by the son for further provision — Son has some mental health issues but nonetheless has generally lived independently from the deceased and had gainful employment over the past 20 years — Contested issues regarding son’s relationship status, health and capacity for work — Daughter reliant on deceased for accommodation — Daughter claimed the Murwillumbah property held on trust but in any event made a substantial contribution to the deceased’s property and welfare — Defendant provided care for deceased particularly in later years — Strong competing claim of defendant who lived with deceased for most of her life to retain provision to her of residential property gifted under Will ESTOPPEL — Proprietary estoppel — Estoppel by encouragement — Claim by defendant that deceased’s real property held on a constructive trust TRUSTS — Constructive trusts — Alternative trust claim by defendant arising from contributions to property — Important differences between common intention constructive trust and joint endeavour constructive trust — Requirements for each of a common intention constructive trust and a joint endeavour constructive trust discussed PLEADING — Constructive trusts — Important to plead trust claim clearly as critical differences between a common intention constructive trust and a joint endeavour constructive trust EVIDENCE — Competence — A lack of response by a witness per se or a nonresponsive answer to a question does not necessarily demonstrate a lack of understanding of the question nor inability to give up a comprehensible answer — The mere fact that a witness has a mental health condition does not necessarily preclude a finding of competency PRACTICE — Consideration of legal capacity to conduct proceedings EVIDENCE — Cross-examination — Discussion of rule in Browne v Dunn and requirements of procedural fairness — The existence of the statutory duty of legal representatives not to put their client in breach of the parties’ obligation to assist the Court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings according to s 56(1)-(4) Civil Procedure Act 2005 (NSW) (CPA) might in some cases qualify principle in Browne v Dunn, as might the power of the Court to regulate cross-examination in proceedings according to s 62(1), (2), (3)(a), 4(a) and (5) CPA, subject to not detracting from the principle that each party is entitled to a fair hearing: s 62(4) CPA EVIDENCE — Family provision — Cross-examination in family provision cases — Discussion of forensic decisions and obligations SUCCESSION — Family provision — Notional estate provisions — Consideration of principles regarding designation of property in respect of life insurance proceeds and property said to be subject to a trust SUCCESSION — Family provision — Consideration of principles regarding adequacy of provision and proper provision

CONSTITUTIONAL LAW – implied freedom of political communication – where plaintiffs each issued a penalty notice for breaching directions in public health orders made pursuant to Public Health Act by attending protests – where orders made and penalty notices issued during COVID-19 pandemic – challenge to validity of orders and statute – whether constitutional analysis takes place at level of orders or statute – whether powers burdened implied freedom – whether burden necessary – whether law adequate in its balance – whether offence-making provision impermissibly infringed implied freedom

CONSUMER LAW – Enforcement and remedies – Remedies relating to statutory guarantees – Representative proceedings against supplier of services – Breach of statutory guarantees under ss 61(1) and 61(2) of the Australian Consumer Law – Availability of defence s 61(3) of the ACL – Assessment of compensation for reduction in value of services under s 267(3) of the ACL and damages for distress and disappointment under s 267(4) of the ACL – Whether damages recoverable for cost of airfares under s 267(4) of the ACL

NEGLIGENCE – intoxication – injury suffered when reboarding pleasure craft from water –impairment of capacity to exercise reasonable care and skill due to intoxication – whether injuries likely to have occurred if person had not been intoxicated – whether “likely to have occurred” means more probable than not – whether intoxication contributed in any way to injuries – extent of reduction for contributory negligence –

CRIME – Appeal and review – Judicial review – Appeal from Local Court to District Court – where District Court dismissed appeal – offences of common assault and intentionally or recklessly damaging property – where applicant made claims including that he could not hear Local Court proceedings – whether District Court proceedings were procedurally unfair

ADMINISTRATIVE LAW – judicial review – jurisdictional error – application to revoke apprehended violence order after order had expired – Local Court dismissed application – District Court dismissed appeal – conceded jurisdictional error by District Court – whether relief should be withheld because District Court reached correct conclusion STATUTORY CONSTRUCTION – amending legislation introduced express provisions authorising revocation of expired apprehended violence orders in 2008 – statutory review recommended repeal of power to revoke expired apprehended violence orders – 2016 amendments repealed provisions authorising revocation of expired apprehended violence orders – ordinary meaning of statute after 2016 amendments permitted applications to revoke apprehended violence orders to be made “at any time” – whether legal meaning of statute departed from literal meaning

LEGAL PROFESSIONAL PRIVILEGE – whether document contained in Corrective Services Psychology file attracts legal professional privilege – whether legal professional privilege has been waived

CIVIL PROCEDURE — default judgment — where second defendant originated mortgage and forged fraudulent written direction for the payment of funds to third defendant’s account — no appearance by second defendant — no pleading of the Statute of Limitations as a defence by second defendant — requirements of UCPR r 16.7 satisfied CIVIL PROCEDURE — assessment of damages — where loss and damage suffered by plaintiffs from second defendant’s fraud and deceit — position of plaintiffs but for fraud and deceit — award of general damages for pain and suffering caused by loss of home — award of indemnity costs

SUCCESSION — administration of estates —Benjamin Order made

CIVIL PROCEDURE — Preliminary discovery — To identify address of potential defendant — Where plaintiff proposes to seek search orders as first step

COSTS – Party/Party – Costs of compliance with a subpoena – Appeal from a Registrar’s decision – Each party is to pay its/his own costs

CIVIL PROCEDURE – notice of motion – judicial review – private prosecutions against police officers – review of Registrar’s decision dismissing the plaintiff’s claim – leave to amend motion granted – motion dismissed – costs

CIVIL LAW – summons challenging validity of search warrant, and seeking its production – where criminal proceedings pending before Local Court – whether proceedings abuse of process by causing fragmentation of criminal proceedings

EQUITY – Agency – Authority of agent – Ostensible authority – Representation by agent – Estoppel – Estoppel by representation – “Silence” – Where rogue altered the ASIC register and represented himself as sole director and shareholder of a company in his dealings with a third party – Where company directors became aware of the fraudulent alteration and took no steps to amend the ASIC register – 57 days after company directors became aware the rogue entered into a contract with a third party – Whether the company is bound by the rogue’s dealings – Whether the failure to amend the ASIC register establishes estoppel by representation – Whether detriment suffered by third party caused by reliance on the relevant representation

CRIMINAL LAW – bail – appeal bail – release application – where charges not yet certified and charge certificate not yet filed – show cause offences – strength of prosecution case – requirement for medical treatment – cause shown – unacceptable risk – strong connections with organised crime – unacceptable risk of committing a serious offence –unacceptable risk of failing to appear – unacceptable risk of interfering with witnesses – bail refused

CRIME — Appeals — Appeal against conviction — Supply of firearm — whether verdict was unreasonable — whether open to jury to be satisfied of gun supply beyond reasonable doubt — whether verdict was inconsistent with finding of not guilty on additional count for separate firearm — evidence of single witness in relation to both counts — whether evidence unreliable — whether it was open to jury to make different findings on each count

HIGH RISK OFFENDER – sexual offender – interim supervision order – appointment of experts to assess the defendant

CIVIL PROCEDURE – Technology and Construction List – application to amend Technology and Construction List Statement – claim under s 37 of the Design and Building Practitioners Act 2020 – proposed contentions concerning whether sixth defendant had engaged in construction work COSTS – costs assessment – procedure – meaning of “costs thrown away” – utility of abstract consideration of that term – whether confined to past costs – meaning of “costs of and occasioned by amendment”

LAND LAW – possession of land – default under mortgage – where default admitted – where defence discloses no defence to the claim for possession CIVIL PROCEDURE – pleadings – striking out – where no reasonable defence disclosed – no issue of principle

LAND LAW – possession of land – where one mortgagor dead and the NSW Trustee and Guardian substituted as defendant – where other defendant has not filed defence to claim – where other defendant entered into conditional contract to sell land on obtaining letters of administration – no consent obtained from mortgagee to sale – judgment for possession given

ORDERS — Discussion regarding orders to give effect to findings in respect of administration proceedings resulting in some successful claims — Absence of evidence — Discussion of Armory v Delamirie principle whether in an estate claim the Court is justified in proceeding on the basis of attributing to shares the highest value that is reasonably open on the evidence INTEREST — Claim for pre-judgment interest on a judgment for interest — Applicable principles COSTS — Meaning of event — Discussion of apportionment orders — Consideration of principle that the Court does not usually apportion costs between issues, but acts on the outcome of the proceedings as a whole, without attempting to differentiate issues on which the party may not have succeeded — Natural divide between 13 issues on which the plaintiff succeeded on 4 related issues and the defendant on the balance making some differentiation of costs appropriate — The costs discretion regarding that differentiation may be exercised by various approaches, specifically either an apportionment of issues approach or a pragmatic approach — Pragmatic approach favoured COSTS — Claims for indemnity costs — Consideration of whether Court ought to award indemnity costs reflecting its disapproval of executor’s conduct and whether executor’s conduct unnecessarily protracted the litigation SUCCESSION — Executors and administrators — Costs of passing accounts — Applicable principles STAY — Application for a stay of judgment to enable executor to give consideration to whether to file a notice of appeal or a notice of intention to appeal — Consideration of applicable principles

CIVIL PROCEDURE – Pleadings – striking out – no reasonable cause of action – Uniform Civil Procedure Rules 2005, rr 12.7 and 13.4 – the plaintiff is a customer of the defendant bank – the plaintiff is a charity – the defendant is a community bank and an authorised deposit taking institution – in August 2021 the defendant gave notice of termination of the plaintiff’s banking facilities with the defendant – the plaintiff obtained interlocutory injunctive relief to allow it to maintain banking facilities with the defendant – procedural delays occurred – the defendant brought a motion to strike out the proceedings for want of due dispatch and because the current pleading is said to not disclose a maintainable cause of action – the plaintiff now seeks to file an amended statement of claim – the defendant says the amended statement of claim also does not disclose a maintainable cause of action – whether the proceedings could be struck out for want of dispatch – whether the plaintiff should be permitted to file the amended statement of claim – if the proceedings are not to be struck out, what further procedural directions should be made to bring the proceedings to an expeditious conclusion.

LEASES AND TENANCIES – breach – termination – lease of land to club carrying out shooting activities –clause in the lease agreement required affiliation with specific association listed in cl 97 of the Firearms Regulation – whether change in affiliation to a different association constituted breach of the lease LEASES AND TENANCIES – breach – waiver, affirmation, election – notice of intention to terminate if breach not remedied – whether election not to require remedying of breach – whether right to terminate waived through conduct – whether acceptance of rent during notice period affirmed lease

ADMINISTRATIVE LAW — Bias rule — Actual or apprehended — Apprehended APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons COURTS AND JUDGES — Courts — Duty to give reasons — Adequacy EQUITY – Trust and trustees – Constructive trusts – Common intention

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Inconsistent verdicts — Applicant charged with 21 sexual offences against step-daughter over several years — Convicted of 12 counts, acquitted of remaining 9 counts — Reliability and credibility distinguished — Significance of issues of reliability and credibility to assertions of inconsistent verdicts — Rational explanation for acquittals on the basis of evidence that offences may have occurred outside dates particularised

BUILDING AND CONSTRUCTION — dispute resolution clause – works completed – invoices rendered – clients complain – invoices reviewed and replaced by new invoices – mediator appointed –invoices reviewed again and replaced by final invoice – without prejudice correspondence – adjudication. PAYMENT CLAIM — whether valid payment claim given earlier invoices – s13(6)(b), SOPA – where earlier invoices withdrawn, final invoice complied with s 13. PAYMENT SCHEDULE — whether without prejudice offer is a payment schedule — without prejudice offer did not indicate why scheduled amount was less — without prejudice correspondence unlikely to be a payment schedule – confidential communication – inadmissible – respondent cannot pay amount in offer absent acceptance of offer by claimant –provision of without prejudice communication to adjudicator may result in manifest error of law.

HIGH RISK OFFENDER — Extended Supervision Order — Final hearing — No opposition to order being made — Disagreements as to the form of two conditions — Order made

Appeals — Leave to appeal — From the Appeal Panel of the New South Wales Civil and Administrative Tribunal — Where applicant alleged the Appeal Panel erred in adopting the finding that the respondent was “successful” — Whether it was open to find that the respondent was entirely or “somewhat” successful — Leave to appeal refused — Appeal dismissed

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) – adjudication determination – whether s 17(2) notice valid – whether clause requiring certain documents to be attached to payment claim in contract is void pursuant to s 34 of the Act CONSUMER LAW — misleading or deceptive conduct — whether representations were made

COSTS – seven day hearing – judgments entered in favour of plaintiff against multiple defendants for compensatory damages for trespass to land representing a very small fraction of the amount of compensation claimed by the plaintiff – exemplary damages also awarded in favour of the plaintiff against two of the defendants – whether total compensatory and exemplary damages less than $500,000 – whether commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted –where plaintiff’s costs likely to exceed the total compensation awarded – whether plaintiff to be regarded as successful party – whether plaintiff engaged in disentitling conduct that warranted an order that the plaintiff pay the defendants’ costs, or an order that the plaintiff pay its own costs – considerations of proportionality in exercising the costs discretion – whether defendants should be jointly and severally liable for any costs awarded in favour of the plaintiff

APPEALS – Procedure – Stay pending appeal – Stay of execution under a judgment pending appeal – Where judgment debt would render all appellants insolvent – Where failure to grant stay would render nugatory right of appeal which is not unarguable – Balance of prejudice between the parties – Failure to grant stay would deprive appellants of right to prosecute appeal – Prejudice to respondent – Where appellants make ongoing payments for the benefit of respective wives’ equity in the homes the appellants reside in – Where appellants unable to satisfy condition of partial payment of judgment debt – Appropriate in the circumstances to require appellants to provide security over homes in wives’ name limited to the arrears component of judgment COSTS – Party/Party – Costs orders in interlocutory proceedings – Appellant to pay costs of stay application unless appeal succeeds – Where appeal succeeds parties should bear own costs COSTS – Security for costs – Application for security for costs substantially succeeded – Appellants to pay costs of that application unless appeal succeeds – Where appeal succeeds parties should bear own costs

BUILDING AND CONSTRUCTION – residential building work – statutory warranties under Home Building Act 1989 (NSW) – claims by owners corporation against builder and developer – whether claims statutory or contractual – whether single cause of action for breach of contract – whether amendments to introduce new defects more than six years after completion of building work should be permitted – consideration of Onerati v Phillips Constructions Pty Ltd (in liq) (1989) 16 NSWLR 730 holding that builder had res judicata defence when owners sought to raise further defects – consideration of amendments overturning result in Onerati – legislative amendments did not alter nature of claim for breach of contract – appeal from decision permitting owners corporation’s amendments dismissed

APPEALS — application for leave to appeal – appeal against exercise of discretion – where trial judge refused an application to stay proceedings – whether applicant is indigent – whether applicant is incapable of conducting his trial as a self-represented person

CRIMINAL PROCEDURE – trial – jury – whether jury was free to deliberate without time pressure – whether denial of procedural fairness – whether trial judge ought to have ruled on application to discharge the jury or considered the possibility of adjourning the trial - where multiple jurors discharged – where length of trial prolonged – where trial took place in period leading up to Christmas – where sitting hours were extended - where trial judge directed jury that they should not feel pressured to reach a verdict – where verdict was returned in less than two hours EVIDENCE – witness evidence – cross-examination – whether failure to comply with the rule in Browne v Dunn (1893) 6 R 67 – whether breach of prosecutor’s duty to present the whole case and call all relevant evidence – where evidence adduced that handbrake of vehicle was engaged following collision – where Crown’s case was that handbrake was not engaged at the time of the collision – where first responders to collision were not questioned about whether they had applied the handbrake – where allegation that first responders might have applied handbrake arose in cross-examination of Crown’s expert EVIDENCE – witness evidence – expert evidence – s 79(1), Evidence Act 1995 (NSW) – whether expert opinion was not wholly or substantially based on specialised knowledge based on training, study or experience – where opinions were not objected to at first instance EVIDENCE – witness evidence – cross-examination – s 103, Evidence Act 1995 (NSW) – whether cross-examination of expert as to their credibility without leave gave rise to a miscarriage of justice – where questions were objected to – where trial judge directed the jury to disregard the questions CRIMINAL PROCEDURE – trial – whether cumulative effect of multiple irregularities deprived the accused of a fair trial – where irregularities of a different character – where irregularities individually did not give rise to a miscarriage of justice

LAND LAW — co-ownership — Conveyancing Act 1919 (NSW) s 66G ­— statutory trust for sale — appointment of trustees — where plaintiff has been declared to have a 40% interest in real property — where defendant’s rights of appeal are exhausted

CIVIL PROCEDURE – service outside Australia – applications for leave to proceed against a foreign corporate defendant which has failed to enter an appearance – where the foreign corporate defendant is subject to a creditors’ voluntary winding up in Malaysia – whether the foreign corporate defendant has been duly served – whether the leave of the Malaysian court is required to commence proceedings in this Court against the foreign corporate defendant – held that service has been effected in the circumstances referred to in Sch 6 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) – held further that the Malaysian statutory provisions which stay the commencement or carrying on of proceedings upon winding up only operate within the territory of the enacting jurisdiction – leave to proceed granted pursuant to UCPR r 11.8AA

CIVIL LAW – high risk offender – preliminary hearing – appointment of experts – where defendant subject to existing extended supervision order and two intensive correction orders – no application for interim supervision order – statutory requirements to make orders – history of serious sexual offending – recent risk assessment – no question of principle

CRIME — bail — detention application – respondent found guilty of two counts of sexual intercourse without consent against adult victim – bail continued after delivery of verdicts – whether “special or exceptional circumstances” established individually or in combination that “justify” continuation of bail – significant mainstream media and online interest due to respondent being former professional football player – various factors relied upon – difficulty in preparing proceedings on sentence – effect on family of incarceration of respondent – conditions of custody – short remand – absence of unacceptable risks – special or exceptional circumstances justifying continuation of bail not established either individually or in combination – bail revoked

MENTAL HEALTH – Guardianship Order – Protected Estates – orders previously made under the NSW Trustee and Guardian Act 2009 (“TAG Act”), s 41(1A) that the estate of the second defendant, JC, be subject to management orders under the TAG Act – the plaintiff is the son of the second defendant – the first defendant is the nephew of the second defendant – the second defendant was taken out of the jurisdiction by the first defendant – the second defendant now lives with the first defendant in Queensland – determination made that the second defendant is a person incapable of managing his or her affairs – whether a guardianship order should be made or whether a committee of the person should be appointed for the second defendant – whether the second defendant should continue to be accommodated in Queensland or whether he or she should return to be accommodated in NSW – in the event that the second defendant remained in Queensland should the Queensland Public Guardian or SR be appointed as a committee of the person or guardian for JC – what costs orders should be made arising out of the Court’s first judgment.

AGENCY — Power of attorney — Revocation — Interlocutory injunction to restrain sale of elderly mother’s home by adult children who were her attorneys and enduring guardians — Whether serious question to be tried that mother still had capacity to revoke appointments — No issue of principle

SUCCESSION – Will – Construction

CRIMINAL PROCEDURE – committal proceedings – extension of time to file charge certificate – beyond six month statutory time limit – application not to be taken lightly – relevant considerations – charge of murder – accused in custody – where Crime Commission in possession of relevant material – procedure to obtain – where no other evidence – whether Director of Public Prosecutions has power to request information – “request power” – whether Magistrate erred in deciding no power – reconciling provisions of two statutes – where Magistrate makes order extending time – where error established – discretion re-exercised on appeal CRIMINAL PROCEDURE – “community expectations” – phrase without meaningful content – who is the community? – where decision delivered late in the day and ex tempore – use of phrase unfortunate – no legal error