Cases and authorities

CONTRACTS – performance – time of performance – performance within reasonable time – where argued that reasonable time extended by later events and circumstances – where reasonable time expired and extension relevant only to prejudgment interest

CRIMINAL PROCEDURE — jury trial — murder — sick juror discharged – whether risk of substantial miscarriage with 11 jurors

EVIDENCE – pretrial ruling – tendency and coincidence evidence – sexual assault upon one victim and murder of another in small town 14 months apart – identity of perpetrator in issue – assessment of significant probative value – circularity of reasoning not involved in taking admissions into account – “close similarity” not required – remoteness in time but grave nature of the tendency – sufficient specificity of the asserted tendency – assessment in accordance with approach summarised in TL v The King [2022] HCA 35 – evidence concerning each count has significant probative value and is cross-admissible – no significant probative value in relation to uncharged incidents more than eight years later concerning a third victim – significant probative value in coincidence reasoning between counts as well – any unfair prejudice capable of being ameliorated by directions – evidence admissible – severance of counts refused.

EVIDENCE – pretrial ruling – two counts alleging attempted choking to commit sexual assault and murder – admissions made to an undercover police officer during covert “scenario investigation” – unsuccessful attempt to distinguish this operation from others by reference to features such as tempting accused to be a reward seeker and requiring admissions to be made to “both or none” – objections under Evidence Act 1995 (NSW) on bases of admissions made as result of oppressive conduct (s 84), unreliability (s 85), unfairness (s 90) and improperly obtained (s 138) – evidence held admissible

CIVIL PROCEDURE — Solicitor’s inter partes undertaking — Where parties engaged in discussions for the withdrawal of a caveat — Where solicitor gave pre-litigation undertaking for proceeds of sale to be kept in solicitor’s trust account pending outcome of proceedings in exchange for withdrawal — Whether undertaking could be varied by court order — Where the court has no power to vary the undertaking — Where supervisory jurisdiction not engaged

EVIDENCE – admissibility – witness testimony and related statement – where witness gave evidence before judge sitting alone in trial of co-accused – where witness evinced a tendency to offer unsolicited and inadmissible opinions – where testing of her evidence risks illegitimately alerting jury to prior conviction of co-accused – whether probative value of the evidence outweighed by danger of unfair prejudice to accused EVIDENCE – tender of photograph of deceased’s former girlfriend with a handgun – whether relevant to proof of the probability of a fact in issue – tender rejected

HIGH RISK OFFENDER – Serious sexual offender – Final hearing – Application for Extended Supervision Order – Whether defendant poses unacceptable risk of committing serious offence if not kept under supervision – Where defendant faces extradition to Queensland and mandatory minimum sentence upon release

APPEAL – appeal from Local Court – question of law alone – alleged assault occasioning actual bodily harm – no appearance from defendant at Local Court – matter dismissed on the basis of insufficient police facts – procedures set out in Chapter 4, Part 2, Division 3 of the Criminal Procedure Act 1986 (NSW) to be followed when determining a matter in the absence of a defendant – procedures not followed – appeal allowed – matter remitted to Local Court

Intellectual property – Trade marks – Trade Marks Act 1995 (Cth) ("Act") – Trade mark infringement under s 120(1) of Act – Where BOTOX registered as defensive trade mark – Whether "instant Botox® alternative" used as trade mark – Whether "instant Botox® alternative" and PROTOX deceptively similar to defensive trade mark – Whether reputation relevant to deceptive similarity. Consumer law – Misleading or deceptive conduct – False or misleading representations – Where alleged representation that wrinkle reducing effects of Inhibox would last, after treatment, for period equivalent to that achieved with treatment by Botox injection – Whether alleged representation conveyed. Words and phrases – "badge of origin", "deceptive similarity", "defensive trade mark", "imperfect recollection", "notional buyer", "reasonable consumer", "reputation", "use as a trade mark". Trade Marks Act 1995 (Cth), ss 10, 120, 185. Competition and Consumer Act 2010 (Cth), Sch 2, ss 4, 18, 29.

CIVIL PROCEDURE – parties – possession proceedings – where one defendant had died before proceedings commenced – where plaintiff became aware after proceedings commenced – where no administration of the deceased’s estate applied for – NSW Trustee and Guardian substituted for deceased defendant

MENTAL HEALTH – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Status as a forensic patient – Interim Order extending status for three months – Unacceptable risk established – No less restrictive means available to manage risk – Assumption that matters alleged are proved – Proved to a high degree of probability – Interim extension granted

CRIME – pre-trial issue – murder – constructive murder – joint criminal enterprise to commit the foundational offence – deceased’s death caused by stabbing with a knife – where Crown cannot prove which participant in the joint criminal enterprise did the act causing death – elements of constructive murder which the Crown must prove – elements of constructive murder include that the accused agreed to the foundational offence being accompanied if necessary by the use of force or violence.

SUCCESSION – Probate and administration – Where missing person, who is a beneficiary of an intestate estate was last seen in 1985 – Searches and enquiries then conducted in an attempt to locate missing beneficiary – Declaration of Crete municipal court that person “dead in absentia” – No contact with persons with whom the missing person would have been likely to communicate, including family members, being his sibling – No evidence that missing beneficiary is alive or dead – Whether administrator should distribute the share of the intestate estate upon the basis that the missing beneficiary is dead – Whether Administrator should be released from his undertaking given to the Court to not distribute the share of the intestate estate to which missing beneficiary entitled – Court satisfied that the Administrator should be released from that undertaking and that he would be justified in distributing the share of the intestate estate to which the missing beneficiary is entitled to the brother of the missing beneficiary – Order also made that the costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased

CIVIL PROCEDURE – preliminary discovery – whether plaintiff may have causes of action against the defendants – whether plaintiff does not have sufficient information to make decision whether to commence proceedings on those causes of action

EQUITY – Statutory wills, Succession Act, s 18, 19, 20, 22 – loss of capacity – beneficiaries – urgent application in Equity duty list seeking leave to apply for an order authorising a will to be made on behalf of a person who is intestate and who it is contended lacks testamentary capacity (“the proposed testator”) – the plaintiff is the daughter of the proposed testator – under the proposed will the plaintiff would receive the largest share of the estate, with the balance divided between the proposed testator’s husband and her grandchildren – whether the proposed will is, or is reasonably likely, to be one that would be made by the proposed testator, if she had capacity – whether the information required to be provided to the Court by Succession Act, s 22 for leave to make the application has been satisfied – whether the Court should exercise the jurisdiction conferred by Succession Act 2006, s 18.

CIVIL PROCEDURE – parties – possession proceedings – where one defendant had died before proceedings commenced – where plaintiff became aware after proceedings commenced – where no administration of the deceased’s estate applied for – NSW Trustee and Guardian substituted for deceased defendant

SUCCESSION — Executors and administrators —Deceased died in 2014 leaving a substantial estate in excess of $23M the overwhelming majority of which was comprised of 12 pieces of real property 7 of which were specifically gifted and 5 of which fell into residue — The plaintiffs (3 of 6 children of the deceased) complained that the defendant executor (another child) engaged in conduct which has the effect of delaying administration of the estate and in particular complained of failures to promptly sell or rent or otherwise transfer assets of the estate constituting wilful default and devastavit — One of the plaintiffs commenced 3 proceedings including these proceedings against the estate. The first two proceedings (rectification/family provision and revocation of grant of probate) were previously dismissed — The defendant claimed commission asserting any delays are at least explained by addressing the prior proceedings EVIDENCE — Mode of appearance at hearing — Audio visual and other mode of appearance — r 31.3 Uniform Civil Procedure Rules 2005 (NSW), Pt 1A Evidence (Audio and Audio Visual Links) Act 1998 (NSW) EVIDENCE — Application of “rule” in Jones v Dunkel EVIDENCE — Self-incrimination — Informing witnesses of rights — Obligation under s 132 Evidence Act 1995 (NSW) regarding objections pursuant to s 132 to answering questions — Objection may be taken by a witness to evidence on a particular topic as distinct from evidence on a particular question SUCCESSION — Executors and administrators — devastavit and wilful default — Assessment of claims of devastavit and wilful default must be considered in light of the terms of the deceased’s Will and in particular whether the deceased has by provisions of the Will in the powers given to the executor modified fiduciary duties SUCCESSION — Executors and administrators — Exercise of powers under Will — Discussion of discretionary considerations SUCCESSION — Executors and administrators —devastavit and wilful default — Discussion of principles regarding wilful default SUCCESSION — Executors and administrators —Even if an executor is not an initial purchaser, as long as a contract remains executory and the executor has power either to enforce it, rescind it or alter it, the executor is under the general law precluded from repurchasing the property from his own purchaser, or purchasing the property on his own account TAXES AND DUTIES — Definition of “tax agent service” in Tax Agent Services Act 2009 (Cth) — “tax agent service” includes advising an entity about liabilities or obligations that arise or could arise under a taxation law or representing an entity in their dealings with the Commissioner TAXES AND DUTIES — Whether work carried out by an accountant or registered tax agent in relation to the Duties Act 1997 (NSW) which is not a “taxation law” as defined involves such agent impermissibly engaging in legal practice such as to contravene s 10 Legal Profession Uniform Law (NSW) — Agent not joined as a party — In absence of joinder procedural fairness precludes finding on the issue determined PROCEDURE — Notice of judgment — Where judgment affects rights or interest of person who is not a party — Giving of notice under UCPR 46.12 to enable non-party interests to be protected — Juul v Northey [2010] NSWCA 211 applied WILLS, PROBATE and ADMINISTRATION — Executors — Claim for commission — Discussion of considerations regarding assessment of quantum — Principles applicable — Guideline rates — Standard of reasonableness WILLS, PROBATE and ADMINISTRATION — Executors — Claim for commission — Factors relevant to determining the amount (if any) of commission — Discussion of principles and circumstances in which commission might be denied

JUDGMENTS – publication of reasons – unopposed application for orders under Court Suppression and Non-publication Orders Act 2010 (NSW) – whether necessary to make orders in relation to entirety of judgment – more limited order made

LAND LAW — Co-ownership — Statutory trust for sale — Where co-owners are mother and adult son holding as tenants in common in equal shares — Whether son holds 50% on a purchase money resulting trust for mother — Where mother diagnosed with Alzheimer’s Disease and did not give evidence — Held that mother did intend to gift 50% of Property EQUITY — Trusts and trustees — Resulting trusts — Presumption of resulting trust — Presumption of advancement — Where presumptions are not decisive — Where evidence did not establish that mother intended son to hold 50% of property on trust — Where the appropriate orders are mother and son each are entitled to 50%

CRIME — Bail — Detention application post-conviction

PRIVATE INTERNATIONAL LAW - foreign judgment – default judgment obtained in China – enforcement by common law principles – denial of procedural fairness arising from defective service and not being aware of the foreign litigation

COMMERCE — restraint of trade — interlocutory relief — whether interlocutory injunction should be discharged — whether there is a serious question to be tried — whether the balance of convenience favours the granting of interlocutory relief

LAND LAW — Conveyancing — Contract for sale — Rescission — Where purchaser issued s 66L notice — Whether land substantially damaged — Whether damage rendered land materially different from that which purchaser contracted to buy — Where materials deposited on land by a stranger to the contract may or may not have contained asbestos — Where vendor’s cleaning up the land resulted in removal of topsoil LAND LAW — Conveyancing — Contract for sale — Deposit — Where rescission valid — Whether vendor entitled to retain deposit — Whether clause requiring a further “deposit” upon termination constituted a penalty EQUITY — Equitable remedies — Orders for judicial sale out of court — Whether court should exercise discretion for sale — Where no evidence of hardship and that the sale would prejudice the existing owner

TAXES AND DUTIES – payroll tax – taxable wages – relevant contracts – taxpayer operated medical centres – taxpayer contracted with medical practitioners to practise at centres on terms that medical practitioners would pay 30% of medicare benefits received to applicant – taxpayer made claims on Medicare on behalf of most medical practitioners and remitted 70% to them – whether amounts paid by taxpayer to medical practitioners deemed to be taxable wages – whether medical practitioners supplied services to taxpayer – whether payments made for or in relation to the performance of work relating to relevant contract – whether determination by NCAT that medical practitioners supplied services to taxpayer (as well as to patients) gave rise to any question of law

APPEAL – civil proceedings – forced sexual intercourse without consent within marriage – appeal against liability – grounds – judge erred in applying standard for appellate review of findings of fact to defendant’s evidence – reversal of burden of proof DAMAGES – appeal – future economic loss – assessment – “buffer” of $100,000 awarded – whether excessive and unsupported by evidence

COSTS – party/party – costs orders in interlocutory proceedings – order for payment of lump sum on account of costs liability – where discrete issue determined and remaining claims require reconsideration in a fundamental way

APPEAL — Leave to appeal — Abuse of process — appeal to the High Court dismissed — Fresh proceedings involving the same parties, the same issues on essentially the same grounds — Circumvent proper appellate processes — Unjustifiably oppressive to the respondents — Brings the administration of justice into disrepute — No issue of principle or question of general public importance — Leave should be dismissed with costs EQUITY — General principles and maxims — Equity would attend to the real justice of the case — Equity will not intervene on behalf of someone who lacks standing

CRIME – appeal – whether trial judge erred in admitting tendency evidence – obligation of appeal court to determine admissibility for itself – time at which admissibility to be determined on appeal – assess at time the trial judge ruled upon the question allowing for clarification as to issues in dispute before evidence was adduced EVIDENCE – intercepted discussion between alleged conspirators – reference to hashish – redaction to avoid suggestion of involvement in earlier importation – whether danger of unfair prejudice – whether that danger outweighed probative value – Evidence Act 1995 (NSW), s 137 CRIME – sentence – appeal against sentence – no challenge to life sentence – whether non-parole period manifestly excessive – weight given to evidence of age and ill-health – offender likely to die in prison EVIDENCE – tendency evidence – evidence of prior convictions for drug importations – significant probative value – assessment of prejudicial effect – whether probative value substantially outweighs prejudicial effect – gap in offending explained by incarceration – tendency not ephemeral – prejudicial effect where earlier offending similar in kind to charged offences – Evidence Act 1995 (NSW), ss 97(1)(b), 101(2)

CIVIL PROCEDURE – application for stay of proceedings – where defective building works the subject of the proceedings are also the subject of an investigation process under the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (“the Act”) – where the investigation process may ultimately result in the making of orders against the defendants to carry out building rectification work – whether it is appropriate for the Court to order a stay of the proceedings to effectively allow the investigation process under the Act to proceed to a conclusion – stay refused

CIVIL PROCEDURE – representative proceedings – settlement or discontinuance – court approval – whether the proposed settlement is fair and reasonable in the interests of group members as a whole – approval granted

CRIMINAL LAW – sentence – verdict of guilty of murder after trial by jury – fatal violence by driving into person and crushing with car – discovery of former partner with another woman – spontaneous formation of intent to inflict really serious physical injury – traumatic upbringing – no criminal record – PTSD caused by experiences in war – no remorse or acceptance of responsibility – sentence imposed

SECURITY OF PAYMENT ACT – jurisdictional error – whether construction contract existed between parties – principles at [4]-[7] – plaintiff is director of company – whether construction contract with plaintiff or company – contract with company – exercise of discretion to quash at [87] – adjudication determination void. CONTRACTS — when contract is formed – ascertaining parties to contract – principles at [70]-[73]. MISTAKE — unilateral mistake — mistake as to identity in the absence of fraud — principles at [80]-[84] — does not give rise to a construction contract between plaintiff and defendant.

SENTENCING – Murder – Where shooting in suburban neighbourhood – 226 bullets fired from two rifles over approximately one hour – One victim killed and multiple injured – Jury found offender guilty of murder and six further charges SENTENCING – Where only issue at trial concerned defence of mental health or cognitive impairment – Where offender does not have mental health impairment but does have cognitive impairment – Where nexus between cognitive impairment and offences SENTENCING – Where offender experienced disturbed childhood involving violence, sexual abuse and neglect – Where little insight into offences and qualified remorse – Where uncertain prospects of rehabilitation

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings — where the plaintiff is a bankrupt — where the Trustee in bankruptcy had revoked his consent to the continuation of the proceedings against the first defendant — where the bankrupt objected to the dismissal of those proceedings — where the Court had previously ordered that the proceedings against each of the second and third defendants be dismissed — whether proceedings should be dismissed — proceedings dismissed

CRIMINAL PROCEDURE – where permanent stay of criminal proceedings sought - inherent power to prevent abuse of process - whether administration of justice would be brought into disrepute if proceedings permitted to continue – external appearance of consignment altered causing conceded incurable disadvantage to accused - where conduct of police deprived applicant of practical ability to seek to argue statutory defence – whether primary judge’s exercise of discretion in refusing stay of proceedings miscarried

CRIME - appeal and review - stated case from District Court – publishing an indecent article – nature of mental element for the offence – whether mental element is subjective to a degree – whether mental element analogous to statutory mental element for dishonesty in New South Wales

CRIME — appeals — appeal against sentence – robbery in company at Kosciuszko Thredbo Hotel – specially aggravated kidnapping of employee – aggregate sentence imposed upon retrial – whether error in considering the physical and psychological harm suffered by the victim as an aggravating factor – where near-fatal injuries to victim – finding of substantial aggravation inevitable – whether error in conclusion that the offending was aggravated by being part of a planned criminal activity – discussion of spontaneity and offences committed “in company” – whether assessment of objective seriousness of the kidnapping offence was incorrect – whether aggregate sentence was manifestly excessive – appeal dismissed

CRIME - appeals - appeal against conviction – offences arising from fatal head-on motor vehicle collision – primary offence manslaughter – judge alone trial – whether any conviction unreasonable or unable to be supported – brief discussion of correct approach to ground when trial conducted by judge alone – circumstantial case that applicant was driver at time of collision – whether reasonable alternative hypothesis that someone else was the driver – some evidence to support proposition that two persons were in the vehicle at the time of collision – ancillary ground impugning verdict of guilty on count that required applicant to have taken the motor vehicle without consent – detailed analysis of evidence – appeal dismissed

CRIMINAL PROCEDURE – appeal against convictions for sexual offences – appeal filed months late – application for extension of time – 21 proposed grounds of appeal CRIME – appeal – ground – unreasonableness of verdict – use of tendency evidence on appeal to assess whether reasonable doubt to be entertained CRIME – appeal – unreasonable verdicts – elevating subjective demeanour-based findings over intrinsic value of evidence – failure to apply forensic prejudice in accepting complainants’ evidence – global rejection of appellant’s evidence EVIDENCE – admissibility of historic complaint – admission to prove truth of content – Evidence Act 1995 (NSW), s 66 EVIDENCE – disallowance of cross-examination suggesting other sexual activity – defence that other officer raped victim – relevance of questions – whether other activity at or about the time of the charged offence – whether other activity and charged offence part of a connected set of circumstances – Criminal Procedure Act 1986 (NSW), s 293

CIVIL PROCEDURE — Interim preservation — Freezing orders — Against third parties — Jurisdiction to make freezing order — Discretion whether to make freezing order CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company —whether interim leave should be granted. CIVIL PROCEDURE — Pleadings — Amendment — Whether amendment should be allowed.

JUDGMENTS AND ORDERS – default judgment – application to set aside – where applicant not notified of filing of application for default judgment – where applicant not legally represented when default judgment entered but obtained legal representation and filed application after default judgment entered - default judgment set aside

MENTAL HEALTH – criminal proceedings – referral to Mental Health Review Tribunal – orders following special verdict – s 33(1)(b) – immediate discharge into the community not the best course – release into community to occur in a structured, staged way

Crime – murder – necessarily urgent interpretation at first instance of recent judgments of High Court – Whether judgments to be read narrowly or broadly – Whether prosecution able to rely upon combination of extended joint criminal enterprise and constructive murder – Whether judicial prohibition on that combination confined to South Australian legislation only – various indicators in judgments of thoroughgoing clarification of common law – difficult to resist broad interpretation whereby prohibition applies to New South Wales as well

CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — where juror must attend training period as precondition to offer of employment — juror discharged. CRIMINAL PROCEDURE — Trial of five accused on two counts each — Direction to jury that separate verdicts may be given.

CRIME — Bail — Detention applications post-conviction — whether special or exceptional circumstances exist

NEGLIGENCE – duty of care – duty of licensee and security guards of licensed premises to patrons of licensed premises NEGLIGENCE – breach – whether defendants had knowledge of aggressive character of plaintiffs – whether failure to evict plaintiff caused harm NEGLIGENCE – contributory negligence – whether plaintiff’s actions contributed to harm suffered DAMAGES – viability of business – valuation of economic prospects of an influencer – estimate of medical expenses

EQUITY – equitable estoppel – claim for a constructive trust – the defendant/cross claimant, the son, farms two properties (and at times other associated properties) held in the name of his father, the plaintiff/cross-defendant – the son alleges that the father made representations to the son, or caused the son to assume, that the son would have the benefit of the properties upon the father’s retirement from farming the properties, or alternatively upon the father’s death – the son claims he acted upon the representations to his detriment or that he acted upon assumptions the father induced him to hold – the son claims that the father holds the properties on constructive trust for him to make good the promises made or the assumptions – whether the representations were made or the assumptions held – whether the father was aware that the son was relying upon the representations, or was acting on the assumptions – whether the son suffered detriment as a result of the representations or the assumptions – whether it would be inequitable if the father did not make good the representations relied upon or the assumptions made by the son – whether the son’s claim is statute barred – whether any discretionary defences apply – what is the appropriate remedy.

APPEAL – appeal from Local Court – question of law alone – alleged assault by teacher on student – self-defence of another – magistrate failed to make critical findings of fact – magistrate failed to provide reasons for decision to dismiss charges and why the prosecution failed to negative self-defence – appeal allowed – matter remitted to Local Court

JUDGMENTS AND ORDERS — Amending or varying — Correction under slip rule

CONSUMER LAW – misleading or deceptive conduct – where appellants engaged first respondent for the supply and assembly of a pre-fabricated house – where representations made by respondents regarding the cladding material to be used under the contract – where appellants, in reliance on the representations, agreed to a contractual variation regarding cladding material – whether cladding representations were misleading or deceptive – whether appellants suffered loss or damage as a result of agreeing to contractual variation in reliance on cladding representations CONTRACTS – breach of contract – breach of express terms – defective performance – whether respondents breached express terms of contract related to supply and installation of doors and windows CONTRACTS – parties – where dispute as to whether appellants entered into contract in their personal capacity or as trustees of their superannuation fund – whether appellants’ claim, which was brought in their capacity as trustees of their superannuation fund, could be maintained