Cases and authorities

CIVIL – notice of motion to summarily dismiss and/or strike out statement of claim – respondent to motion is an undischarged bankrupt – whether respondent has lack of standing due to bankruptcy – whether causes of action correctly put – property claims summarily dismissed as incompetent and an abuse of process – no reasonable cause of action disclosed for emotional distress claim and misfeasance in public office claim – entire statement of claim summarily dismissed or struck out

APPEAL – costs – notice of motion seeking orders to set aside a costs order following amendment removing an applicant – 14 grounds of appeal – whether costs incurred as the result of the amendment were more than de minimis – whether costs order sought for an ulterior purpose – whether it was appropriate for costs order to be made in those terms – appeal allowed – costs order set aside – more limited costs order made

EQUITY — Equitable remedies — Whether claimant entitled to make “split election” seeking different remedies against different wrongdoers (defaulting fiduciary and accessories) — Where directors dissipated company’s monies — Where knowing receipt by corporate accessories — Whether knowing recipients liable for an account of profits and fiduciaries liable for equitable compensation EQUITY — Fiduciary duties — Breach — Causation — Whether positive fiduciary duty to obtain informed consent to conflict of interest and duty — Whether failure to disclose to company the dissipation of company’s monies was causative of later losses on subsequent transaction APPEALS — Procedural fairness — Whether appellants denied procedural fairness — Where primary judge assessed account of profits at trial rather than in post-judgment inquiry — Where appellants on notice of the claim for profits and claimant’s evidence — Where appellants did not file any responsive evidence

CIVIL PROCEDURE — Court of Appeal — Stay of proceedings — Application for stay of winding up order pending proposed appeal — Where winding up on the just and equitable ground — Where applicant director of the company — Whether proposed appeal raises an arguable case — Whether balance of convenience favours stay of winding up order

CRIME — Appeals — Appeal against conviction in Local Court — Extension of time in which to appeal — application for relief beyond jurisdiction of Court — no arguable error in summary dismissal of claim CRIME — Appeals — limitations on arguing points on appeal which were not run in Court below — charge defended in Local Court on basis of no sexual touching — alleged challenge to conviction on basis of consent and no act of indecency

CIVIL – payment into court – r 55.9 of the Uniform Civil Procedure Rules 2005 (NSW) – resolution of District Court proceedings -– payment of the reasonable costs of the summons – whether the Court has the power to order that a filing fee be remitted

LANDLORD AND TENANT – residential tenancy – stay application – warrant for possession issued by NCAT– no jurisdiction – summons dismissed

CIVIL PROCEDURE — Interim preservation — Freezing orders — Where security in the form of retention moneys dissipated CIVIL PROCEDURE — Interim preservation — Freezing orders — Against third parties — Where strong arguable case against directors of defendant for knowing assistance in a breach of trust

CIVIL PROCEDURE – notice of motion – application by self-represented plaintiff for leave to issue subpoenas – where surveillance warrant was issued - ICAC investigation – where relief sought is essentially duplicative of the final relief sought in the substantive proceeding – legitimate forensic purpose – collateral attack on surveillance warrants

CIVIL PROCEDURE – amendment – inadequate pleading of unconscionability in statement of claim – costs

CIVIL PROCEDURE – service in accordance with Rule 31.10 of the UCPR – defendant seeking order to excuse service of material – whether serving material would significantly reduce its evidentiary weight – held that question should be determined by trial judge motion dismissed.

COSTS — Party/Party — Exceptions to general rule that costs follow the event — judicial review proceedings — submitting appearance by insurer — where concession of insurer to error of delegate of President of Personal Injury Commission of New South Wales would have limited time of hearing and costs involves — Civil Procedure Act 2005 (NSW), s 56 — circumstances where submitting party should pay costs — Civil Procedure Act 2005 (NSW), s 98 — Uniform Civil Procedure Rules 2005 (NSW), Pt 42

EQUITY — Equitable remedies — Declarations — No utility where subject matter of declaration not in dispute EQUITY — Trusts and trustees — Proceedings between trustees and beneficiaries — Claim by successor trustee and beneficiaries against former trustee for account or vesting of trust assets — No issue of principle — Claim not made out where funds in question not proven to be trust assets

CONTRACTS — STATUTORY INTERPRETATION — Storage Liens Act 1935 (NSW) (the Act) — where plaintiff claims to have been owner of goods (denatured ethyl alcohol) sold by it to a third party and delivered by it at the direction of that party to the defendant to be manufactured into hand sanitiser — where plaintiff claims to have retained ownership of the goods by virtue of a retention of title clause in a written agreement with the third party — where defendant claims to have security over the goods on the basis of a warehouseman’s lien under s 3(1) of the Act — where the alcohol was sold by agreement between the parties and proceeds paid into Court to abide the Court’s determination of the parties’ respective rights in it — HELD — plaintiff has not established ownership of the goods — defendant has not established any lien

CIVIL PROCEDURE — Hearing - Defendant litigant in person – Adjournment - Defendant applies for adjournment at the commencement of the hearing – Application opposed – Applicable principles – Procedural history relevant as is repeated suggestions to the Defendant, at various directions hearings that he should be legally represented – Whether to grant the application — Interests of justice – Application for adjournment refused SUCCESSION – EXECUTORS AND ADMINISTRATORS – notice barring claims under s 93, following service of notice under s 92 of the Wills Probate and Administration Act 1898 – Applicable principles

APPEALS – Leave to appeal – Evidence on application for leave – Where first instance proceedings to prevent lapse of caveat raised allegations of fraud – Where proceedings summarily dismissed at first instance

CRIME – appeals – appeal against conviction – supply of prohibited drug – trial by judge alone – unreasonable verdict – application of Dansie v The Queen – inutility of a ground asserting inadequacy of reasons or fact-finding where verdict is said to be unreasonable CRIME – appeals – appeal against conviction – unreasonable verdict – Crimes Act ss 93S(1) and 93T(1) – knowingly participate in a criminal group – whether proof of a “criminal group” requires proof of a “shared objective” – whether shared objective must relate to commission of a single serious indictable offence rather than a series of connected offences – where asserted participants in criminal group included both vendors and purchasers of prohibited drug – that purchasers sought to engage in further and distinct supply of drugs does not preclude finding of shared objective – no error CRIME – appeals – appeal against conviction – unreasonable verdict – knowingly take part in supply of prohibited drug not less than a large commercial quantity – no drugs found by investigating authorities – recorded and intercepted audio and video surveillance sufficient to ground conviction CRIME – appeals – appeal against conviction – trial by judge alone – failure to make a necessary finding of fact – unreasonable verdict – knowingly deal with the proceeds of crime – asserted failure by trial judge to identify moneys with which applicant dealt – relevant moneys sufficiently identified despite no explicit reference – no error

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Judge alone trial — Whether judge’s verdict was open upon the whole of the evidence CRIME — Appeals — Appeal against conviction — Whether failure to give sufficient reasons — Judge alone trial — Whether reasons for the verdict disclose a sufficient basis for findings of fact — Criminal Procedure Act 1986 (NSW), s 133(2) CRIME — Appeals — Appeal against sentence — sentence of imprisonment of 2 years 6 months with non-parole period of 10 months — Whether sentence manifestly excessive — Applicant resentenced — Whether appropriate sentence of 2 years imprisonment should be served by way of an ICO – Whether term of imprisonment to be served by way of ICO should be adjusted and reduced in recognition of period of pre-sentence custody

CRIME – Appeals – Appeal against sentence – fraud offences – guilty plea entered for fraud offences – sexual assault offences – convictions with respect to sexual offences were appealed – convictions quashed and retrial ordered – applicant tried on fresh indictment containing sexual assault offences only – the ceiling principle – fundamental principle not drawn to sentencing judge’s attention – aggregate sentence to be imposed – leave to appeal granted – appeal allowed – resentence

CRIME – APPEALS – Appeal against conviction – Aggravated sexual and indecent assaults – Whether discrepancies, inconsistencies and other inadequacies in the evidence significantly undermined the complainant’s credibility – Whether the jury ought to have entertained reasonable doubt as to proof of guilt – Unreasonable verdict – Appeal allowed – Convictions quashed – Verdicts of acquittal

CRIME – appeals – appeal against sentence – manifest excess – applicant sentenced to 19 years’ imprisonment with non-parole period of 13 years – one count of manslaughter arising from an unlawful and dangerous act – offender struck and killed 18-month-old child by deliberately driving stolen car through fence of suburban home – whilst evading police pursuit and with knowledge of the appreciable risk of serious injury to persons in the backyard – offender was 22 years old and had a substantial criminal history – offender experienced a profoundly deprived and dysfunctional upbringing and suffered from serious mental health issues – whether sentence properly reflected the total criminality of the offender’s conduct – relevant factors on sentence – sentencing statistics – where reference made to “comparable cases” – where offender received second highest manslaughter sentence for single offence since relevant statistics have been recorded – where offender received highest sentence for vehicular manslaughter since relevant statistics have been recorded – where offender’s sentence is broadly comparable with murder sentences where murder weapon was a motor vehicle – relevant factors on sentence –whether sentencing judge erred in concluding that offence was at the “gravest end of the spectrum” – held no error – finding not to be equated with finding that the offence was in the “worst category” of offending – offender’s mental health had no bearing upon assessment of objective seriousness – whether sentencing judge erred in only allowing 5% discount for late plea of guilty – held no error – whether sentencing judge erred in application of Bugmy principles and consideration of applicant’s mental illness and you – held no error – whether aggregate sentence manifestly excessive – held by a majority manifest excess established – appeal allowed – offender re-sentenced

CRIME — Appeals — Application for leave to appeal – Appeal against sentence – whether sentencing judge conflated role of the offender with that of co-offenders – whether sentencing judge had undue regard to the activities of co-offenders CRIME — Appeals — Appeal against sentence — Manifest excess – whether correct to apply mathematical calculations

CRIMINAL LAW – appeals – against conviction – two counts of indecent assault of child under 16 years – one count of commit act of indecency towards child under 16 years – one count of attempted sexual intercourse with child under 10 years – applicant acquitted on last two counts but convicted on first two counts – whether inconsistent verdicts – where evidence on all counts not based solely on account of victim – where other evidence on last two counts may have raised a doubt in the jury’s mind – where tendency evidence admitted in relation to first two counts – verdicts not inconsistent

CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury – where accused submits he is entitled to a jury of twelve – COVID-19 considerations – where sensitive imagery in evidence creates risk of loss of jurors – whether risk of substantial miscarriage of justice

MENTAL HEALTH – forensic patient – extension of status as forensic patient – unacceptable risk – whether alternate means to manage risk – means not currently available – risk exacerbated by alteration in regime itself – further 12 months of status required to organise community living, then further 12 months to stabilise alteration in regime and accommodation – extension granted for 2 years

HIGH RISK OFFENDER – Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – s 5B(d) – criminal history and pattern of offending – single serious sex offence – psychiatric reports – auditory hallucinations – disputed conditions

CIVIL PROCEDURE — Stay of proceedings — Pending appeal COSTS — Party/Party — Bases of quantification whether to grant ordinary or indemnity costs — whether exceptional circumstances exist to grant otherwise — where no genuine offer of compromise

CRIMINAL PROCEDURE — murder trial — directions to jury – where accused raises issue as to whether the collision that directly caused death was voluntary - voluntariness as a legal concept – whether the jury should be directed that the collision had to be “deliberate” to be satisfied of the element of voluntariness – discussion of the decision in Ryan v The Queen – voluntariness as part of the actus reas rather than mens rea – jury directed in accordance with narrow interpretation of voluntariness

CRIMINAL PROCEDURE — Trial — Voir dire – admissibility of evidence EVIDENCE — Credibility evidence — Accused – where Crown submits accused lied about Asperger’s Syndrome or Autism diagnosis – whether admission of evidence would be unfairly prejudicial – s 137 Evidence Act 1995 (NSW) – whether admission of evidence would reverse onus of proof – evidence not admitted EVIDENCE — Opinion – whether witness’ statement that accused could not be trusted should be admitted – whether evidence relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed – evidence admitted EVIDENCE — Credibility evidence — Character – whether reference by accused to cross-examination during ERISP should be admitted – whether danger of prejudice to the accused – evidence not admitted

CIVIL PROCEDURE — enforcement of proceeds of crime assessment order — ex parte application — writ for possession of land —whether entitlement to mesne profit arises where Trustee not currently in possession of land — defendant’s conduct sufficiently delinquent warranting indemnity costs order

CIVIL PROCEDURE – notice of motion – adjournment application – adjournment sought until the conclusion of Court of Appeal proceedings – adjournment opposed – application refused

CIVIL PROCEDURE – notice of motion – joinder application - motion relates to substantive proceedings between the plaintiffs and the applicant - plaintiffs not named as a party in cross-summons or motion - joinder application not opposed – orders made

CONTRACT LAW – agistment agreements – oral and written agreements – lawfully terminated– order to vacate property and remove chattels

JUDGMENTS AND ORDERS – stay of execution – power to grant stay – likelihood that plaintiff will repay monies – conditional stay COSTS – UCPR 42.34 – where plaintiff recovers less than $500,000 – whether commencement and continuation of proceedings warranted

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether there is a genuine dispute about the existence or amount of the debt — Whether there is a defect in the demand — Whether the demand should be set aside on other grounds

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) – adjudication determinations – whether adjudication determinations are affected by jurisdictional error – whether the adjudicator failed to meet essential requirements for the existence of a valid adjudication determination under the Act – whether the adjudicator failed to consider all submissions duly made – whether the adjudicator failed to address the merits of claims made – whether the adjudicator failed to afford the parties procedural fairness – jurisdictional errors found in respect of parts of the adjudication determinations – appropriate relief to be given where the Court has the power to set aside the whole or any part of the adjudication determinations pursuant to s 32A of the Act

TAXES AND DUTIES — Land tax — Liability — Exemptions — Exemption for land used for primary production — Whether the dominant use of land was for the maintenance of animals for the purpose of selling them or their natural increase or bodily produce — Land used both for breeding, educating and training horses, and spelling them between races and for the sale of covering services and of progeny — Meaning of “dominant use” — Relationship between use and purpose

PRACTICE AND PROCEDURE — leave to discontinue — costs — default provision for costs in r 42.19 UCPR — where defendant acted reasonably in his responses to plaintiff’s pre-litigation inquiries — where reasonableness of commencement of proceedings challenged by defendant — where defendant acted reasonably by consenting to disclosure motion

CORPORATIONS — Winding up — Practice and procedure — Application to adjourn winding up application under Corporations Act 2001 (Cth) s 440A(2) — Where administrator appointed shortly before winding up proceedings — Where winding up application previously opposed on ground of solvency — Short adjournment sought for several purposes — Whether adjournment in creditors’ interest CORPORATIONS — Winding up — Failure to comply with creditor’s statutory demand — Presumption of insolvency — Where no solvency evidence led by Company

CIVIL PROCEDURE — pleadings — amendment — plaintiffs seek to add claims under further contract — defendant’s ability to cross-claim may be time-barred — whether leave should be refused given prejudice to defendant – plaintiffs not dilatory in identifying further claim — plaintiffs entitled to commence separate proceedings anyway – avoidance of multiplicity of proceedings — prejudice mitigated by contractual indemnity given by prospective cross-defendant.

EQUITY – jurisdiction – charitable trusts – charitable corporations – company limited by guarantee – where company objects involve promotion of bread-making and allied industries – whether company’s assets held on trust for its objects – whether objects charitable

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — Where deceased wife contributed at least 70% of purchase price to matrimonial home held as joint tenants — No issue of principle SUCCESSION — Family provision — Claim by adult child — Only notional estate available — Claim against mother’s estate where intestate mother declared to be dead twenty years after disappearance

CRIMINAL LAW — Murder — Murder of wife — Intention to kill — Disposal of wife’s body in such a way to elude detection — 40 years between commission of the offence and sentence — 72-year-old offender with medical conditions that can be treated in custody — Objectively serious offence

CRIMINAL LAW – sentencing – murder – brutal and sustained attack on former domestic partner – culminating in hard blow with hammer or similar weapon to the back of head – victim left in bathtub – whether death by drowning – impact on assessment of objective criminality – victim impact statements – sisters caring for young children of deceased – courage and resilience – relevance of impact on sentence – deterrence – victim entitled to leave area and move to country with children – no mitigation in offender’s love for children or fear of losing them – increased need for deterrence in such circumstances – offence in victim’s home an aggravating feature – use of weapon – dysfunctional childhood – relevance to sentencing – history provided to psychologist – evidence accepted – reduction in moral culpability – not relevant to objective gravity – mid-range of objective seriousness – appropriate sentence – special circumstances – modest adjustment to non-parole period

COSTS – party/party – gross sums costs order – plaintiff self-represented – claims made struck out in earlier judgment – application for gross sum costs order by two defendants – where small sums involved – where assessment was likely to be protracted – where doubt about plaintiff’s ability to meet costs order – gross sum orders made CIVIL PROCEDURE – originating process – where not served within six months of filing – where opportunity given to plaintiff to serve amended statement of claim – where no amended statement of claim filed or served – where failure to prosecute proceedings - proceedings against defendant dismissed CIVIL PROCEDURE – parties – where defendant named was apparently a business name – where r 7.19 UCPR not complied with – where plaintiff given opportunity to amend – where no amendment made – proceedings against defendant dismissed

APPEAL – application for leave – unrepresented applicant – application for vacation of hearing made on day – no sufficient basis shown – no basis for grant of leave

CRIME – appeals – appeal against conviction –– applicant convicted of 16 sexual offences against three children over a period of 17 years – complainants aged between five and 15 years – complainants respectively applicant’s stepdaughter, niece and former partner’s younger sister – trial judge directed jury that it could use complaints as evidence of facts asserted, independent of evidence given by complainants in the witness box – point not raised below – whether trial judge erred in referring to complaint evidence as “independent” – trial judge qualified direction on complaint evidence by the fact that if a person says something on more than one occasion that does not mean that what is said is necessarily true or accurate – no miscarriage SENTENCING – appeal against sentence – severity – whether sentence manifestly excessive – applicant sentenced to 21 years’ imprisonment with non-parole period of 14 years and six months – for 16 sexual offences against three children over a period of 17 years – complainants aged between five and 15 years – complainants respectively applicant’s stepdaughter, niece and former partner’s younger sister – whether aggregate sentence properly reflected the total criminality of the applicant’s conduct – where applicant used his position in a family to prey upon three vulnerable young people – where applicant’s depraved conduct had a profound impact on complainants – where accumulation of indicative sentences could potentially give rise to more severe aggregate sentence

CRIMINAL LAW – appeal – appeal against sentence – aggregate sentence for commercial and large commercial drug supply and firearms offences – whether sentencing judge erroneously applied sentencing discounts to the aggregate sentence and not the indicative sentence – discount not applied to aggregate sentence rather than indicative sentences – whether aggregate sentence manifestly excessive – aggregate sentence not manifestly excessive

CRIMINAL PROCEDURE – trial – judge alone - murder – evidence – application for three Crown witnesses to give evidence via AVL – not opposed – application for Government Agency witness to give evidence via AVL – not opposed – orders made

PRACTICE AND PROCEDURE — discontinuance against second defendant — discretion to grant leave — first and third defendants neither oppose nor consent to discontinuance — no significant injustice where remaining defendants can claim concurrent or proportionate liability — no actual disadvantage in terms of evidence — no impediment to bringing cross-claim — interest in refraining from compelling a party to litigate against its will