Cases and authorities

CRIMINAL LAW – proceeds of crime – restraining orders

COSTS — party/party — costs orders in interlocutory proceedings — where plaintiffs seek leave to amend pleadings alongside other orders — where plaintiffs’ and first and second defendants’ motions are heard concurrently

APPEALS — appeal from Local Court — Local Court Act 2007 (NSW), s 39 — plaintiff’s claims dismissed without finding made as to first defendant’s liability — liability issue must be remitted to Local Court for determination — whether to hear balance of appeal — Civil Procedure Act 2005 (NSW), s 56 — balance of appeal heard CONTRACTS — assignment of franchise —construction of deed of assignment — where deed assigned “benefits” enjoyed by franchisor under “franchise agreement” defined to include “ancillary agreements” — whether a continuing guarantee given as a precondition to grant of franchise a benefit assigned by deed CORPORATIONS — dissolution — reinstatement — Corporations Act 2001 (Cth), s 601AH(2) — order granted for reinstatement of first defendant

EVIDENCE – witness evidence – how given – where witness sought to give evidence wearing face covering on account of religious beliefs

APPEALS — leave to appeal from Local Court — whether leave required pursuant to the Local Court Act 2007 (NSW), s 40(1) — Civil Procedure Act 2005 (NSW), s 56(1) CORPORATIONS — winding up — voidable transactions — appeal against decision of Local Court making orders under s 588FF of the Corporations Act in favour of the liquidator — whether open to find that defence under s 588FG(2) was not established

EQUITY - Equitable remedies – Injunctions – interlocutory injunctions – plaintiff is a member of a public company, the defendant, that owns and operates a rugby league team competing in the national rugby league competition – the defendant did not permit the plaintiff to stand for election to the board of the defendant at the 2022 AGM of the defendant held in February 2022 – the plaintiff brings proceedings in August 2022, contesting the defendant’s decision that he was ineligible under the defendant’s Constitution from standing for election to the defendant’s board at the 2022 AGM – defendant files defence – the plaintiff seeks interlocutory injunction before the 2023 AGM restraining the defendant from treating him as ineligible for election to the board and seeking an urgent final hearing – whether there is a serious question to be tried – discretionary considerations of the balance of convenience – consideration of the plaintiff’s delay in commencing proceedings and bringing them on for hearing is a discretionary factor in the grant or withholding of interlocutory relief.

APPEAL – challenge to factual findings – transfer of land – where defendants contended that consideration provided by $302,000 in banknotes – no documentary records available – whether primary judge erred in finding defendants’ case not established PLEADINGS – vendor executed joint venture agreement with sole director and shareholder of purchaser – no shares issued to purchaser in accordance with agreement – plaintiff sued for breach of contract – no challenge to finding by primary judge that joint venture agreement not contractual – primary judge found that purchaser represented to vendor that the land would be developed in accordance with joint venture agreement – no case based on misrepresentation pleaded – whether open to primary judge to make findings based on unpleaded case – unpleaded case was opened and cross-examined upon without objection – parties to be taken to have litigated unpleaded case EQUITY – unconscionable conduct – special disadvantage – whether primary judge erred in finding defendants unconscientiously exploited special disadvantage known to them – orders in nature of rescission – need to bring to account payment made by one defendant whose claim was compromised prior to trial

CIVIL PROCEDURE - appeal - costs - indemnity costs - application to vary costs order - offer of compromise - whether benefit foregone - offer not accepted - offeror successful on appeal - application for indemnity costs - whether court should otherwise order

NEGLIGENCE – professional negligence – duty to advise – scope of solicitors’ duty to advise property developer – where client suffers loss in the form of rescinded contracts for the sale of off-the-plan units upon failing to give timely notice of extension of time for completion – where client alleges that that loss was caused by solicitors’ failure to advise of time within which client had the right to extend Registration Date and to seek instructions – where solicitors had previously advised officers of client of time limit within which right to extend contracts needed to be exercised – whether failure to reiterate or repeat advice closer to expiry of time limit constitutes breach of duty to advise – whether apparent that officers of client misunderstood previous advice –– held no breach of duty to advise by failure to reiterate advice previously imparted APPEALS – notice of contention – attempt to raise issue not agitated at first-instance – where appellant sought to establish respondents’ liability in negligence on alternative basis from that contended at trial – whether alternative basis should be permitted – held impermissible for appellant to raise new ground of liability on appeal where respondents would be prejudiced – no issue of principle

CRIMINAL LAW – appeals - appeal against sentence – manufacture a large commercial quantity of prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) – two grounds of appeal – appeal predicated upon the principles of parity – no error established – leave to appeal granted – appeal dismissed

CRIMINAL LAW – appeal – sentence appeal – serious Commonwealth offences regarding importation of commercial quantity of border-controlled drug and aid and abet manufacture of methamphetamine – late guilty plea – withdrawal and then reinstatement of guilty plea – failure to take into account the utilitarian value of guilty plea – sentenced in August 2016 prior to NSWCCA decision in Xiao v R – error conceded CRIMINAL LAW – appeal – sentence appeal – parity – whether applicant has a justifiable sense of grievance in light of sentence imposed on co-offender because of the unexplained difference in the ratio of the non-parole period to head sentence – error conceded – resentenced

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff serving a sentence for a serious indictable offence – where proceedings commenced before leave was obtained – where plaintiff alleged he was sexually assaulted at Juvenile Justice Centre leave granted

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where plaintiff serving a sentence for serious indictable offence – where proceedings commenced before leave was sought – where plaintiff alleged he was sexually assaulted at two Juvenile Justice institutions – leave granted

PROCEDURE – cross-vesting – where proceedings commenced in Dust Diseases Tribunal of NSW – where lex loci dilecti of tort was in Victoria – where parties agreed that proceedings should be cross-vested to Victoria

HIGH RISK OFFENDER – application for preliminary orders – interim supervision order – orders for examination of defendant by expert – defendant convicted of serious sex offences – question as to whether the defendant poses an unacceptable risk to the community if not supervised – substantial gap in time between initial serious offences and application – defendant in compliance with parole in recent months

APPEALS — Procedure — Adjournment — Application not supported by any evidence — Adjournment application dismissed with costs

LAND LAW – positive covenants – enforceability of positive covenants – positive covenant in registered easement requiring owner of dominant tenement to pay proportion of rental payments from lease of shops to owner of servient tenement – whether positive covenant binding on successors in title to owner of dominant tenement – scope of conditional benefit principle – whether conditional benefit principle forms part of Australian law – whether primary judge erred in applying conditional benefit principle to the facts – whether positive covenant part of the essential fabric of the registered easement LAND LAW – easements – construction of easements – admissibility of information beyond the register – whether earlier deed between parties to an easement admissible as an aid to construction of the easement – whether primary judge erred in having regard to earlier deed, even for limited purpose

CIVIL PROCEDURE — implied undertakings — “Harman undertaking” — release from undertaking — special circumstances not established — release sought to make complaint regarding suspected illegality — no special circumstances found — prejudice to author considered

HIGH RISK OFFENDERS — Terrorism — Extended supervision orders — Preliminary hearing

CIVIL PROCEDURE – stay of proceedings – inherent power – abuse of process – dismissal or permanent stay of proceedings – where in earlier proceedings plaintiffs were successful in establishing a breach of fiduciary duty by the fourth defendant – where plaintiffs did not make full recovery in the earlier proceedings – where plaintiffs now seek in separate proceedings to establish that the first to third defendants are accessorily liable for the conduct impugned in the earlier proceedings – where facts substantially the same – where first to third defendants will advocate for different findings in these proceedings than were made in the earlier proceedings – where first plaintiff now unable to give evidence – where fourth defendant bound by findings in earlier proceedings – whether plaintiffs made forensic decision not to join first to third defendants in earlier proceedings – whether plaintiffs should have joined first to third defendants in earlier proceedings – whether continuation of these proceedings will occasion unjustifiable oppression to the first to third defendants – whether continuation of these proceedings will bring administration of justice into disrepute

HIGH RISK OFFENDER – extended supervision order – final hearing – serious sexual offending – whether unacceptable risk of committing a serious offence– extended supervision order not opposed by defendant – length of supervision not opposed – dispute limited to conditions related to employment –commendably efficient conduct of case – extended supervision order imposed.

CONTRACTS – Remedies – Damages – Reliance Damages – Presumption referred to in McRae v Commonwealth Disposals Commission and The Commonwealth v Amann Aviation – Whether primary judge erred in finding that the presumption did not arise – Presumption arises where expenditure is incurred by a plaintiff in reliance on a contractual promise made by the defendant and “wasted” because of non-performance by the defendant – No precondition that the plaintiff first establish it is “impossible” to prove expectation damages – Plaintiff proved conditions for presumption – Ground of Appeal upheld. CONTRACTS – Remedies – Damages – Reliance Damages – Presumption referred to in McRae v Commonwealth Disposals Commission and The Commonwealth v Amann Aviation – Whether primary judge erred in finding presumption rebutted – Presumption rebutted where defendant demonstrates plaintiff would not have recouped expenditure – Contractual and non-contractual potential benefits of plaintiff to be considered in expenditure inquiry – Plaintiff rejected inferior offer of defendant – Innocent party to a contract entitled to insist on contractual rights rather than accept inferior proposal – Rejection of offer could not form reasonable basis for inference defendant would not have recouped expenditure – Presumption not rebutted – Ground of appeal upheld. CONTRACTS – Remedies – Damages – Remoteness of damage – Whether primary judge erred in finding recovery was precluded by the rule in Hadley v Baxendale – Loss incurred by plaintiff reasonably can be supposed to have been in the contemplation of both parties when contract was made – Damages fall within the second limb of Hadley v Baxendale – Ground of appeal upheld.

INSURANCE –whether the claim involved an “insured risk” – whether primary judge erred in the construction of insurance policy – whether primary judge erred in finding respondent entitled to indemnity under insurance policy issued by appellant. INSURANCE – trade credit insurance – policy insured advances for purchase of commodities under Murabaha finance agreement – non-compliance with Murabaha finance agreement – whether "insured risk" eventuated when third party and guarantor failed to honour "Debt Obligation(s)"

COSTS — insurance claim — insurer failed on defence alleging claim arose out of insured’s fraudulent or dishonest acts — insurer nevertheless proved at significant expense certain disputed facts relevant to that defence — whether costs orders to be considered on issue basis COSTS — successful insurance claim — whether insured’s failure to recover significant part of claim disentitled it to costs

CRIMINAL LAW – bail pending appeal to District Court – custodial sentence for misleading Crime Commission – show cause offences – appeal fixed for hearing just before expiry of non-parole period – cause shown – unacceptable risk – strong evidence of association with organised crime – unacceptable risk of committing a serious offence – bail refused

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – proper use of the parity principle – where several co-offenders had already been sentenced before the applicant – where sentencing judge, after considering the circumstances of the co-offenders, stated that the sentence to be imposed on the applicant “should be higher” than those imposed on co-offenders – whether sentencing judge impermissibly invoked parity principle to increase the sentence otherwise to be imposed on the offender – whether Crown submissions on parity amounted to submissions of the kind considered in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 – no error in application of the parity principle SENTENCING – relevant factors on sentence – co-offenders – parity – proper use of the parity principle – where several co-offenders had already been sentenced before the applicant – where sentencing judge, after considering the circumstances of the co-offenders, stated that the sentence to be imposed on the applicant “should be higher” than those imposed on co-offenders – whether sentencing judge impermissibly invoked parity principle to increase the sentence otherwise to be imposed on the offender – whether Crown submissions on parity amounted to submissions of the kind considered in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 – no error in application of the parity principle SENTENCING – appeal against sentence – severity – manifest excess – proper use of sentences imposed in comparable cases in determining whether a sentence was manifestly excessive – approach to a ground of manifest excess where offender was sentenced by way of an aggregate sentence – sentence not manifestly excessive

CRIMINAL LAW – appeal – appeal against sentence – whether error in assessment of objective criminality – whether sentence manifestly excessive – parity – whether consideration of parity confined to events occurring within timeframe specified on indictment – leave granted but appeal dismissed

CRIME – Appeals – appeal against sentence – lengthy aggregate sentence for 31 sexual offences against 14 victims – whether error in determination of aggregate sentence – where indicative sentence for one count exceeded maximum penalty for offence – whether error capable of affecting aggregate sentence – requirement to re-sentence given error CRIME – Appeals – appeal against sentence – where multiple victims of sexual offending – whether failure to consider and apply concurrency, accumulation and totality principle – complaint of lack of transparency in aggregate sentence – extent of reasons required to explain degree of notional concurrency and accumulation when imposing aggregate sentence for multiple offences committed against multiple victims CRIME – Appeals – appeal against sentence – whether failure to give reasons – where some indicative non-parole periods less than the relevant standard non-parole period – where some indicative non-parole periods two thirds of the indicative sentences – Crimes (Sentencing Procedure) Act 1999, ss 44 and 54B

CIVIL PROCEDURE – approval of settlement – institutional abuse – tutor – the tutor may have been appointed for more abundant caution – plaintiff capable of managing his own affairs – court approval

CRIME – SENTENCE – murder – wife stabbed with a knife in home – multiple stab wounds – conviction following jury trial – plea of guilty to manslaughter on the basis of substantial impairment by abnormality of mind – offender was not substantially impaired but flew into jealous rage – not premediated – offender facilitated justice – remorse shown

CRIME – Sentence – Constructive murder – Offender pleaded guilty – Juvenile at time of offending – No substantial involvement in acts leading to death of the deceased – Below mid-range of objective seriousness – Discounts for plea of guilty and assistance – Significant subjective case

CRIMINAL LAW – murder – death by stabbing – issue as to who pulled the knife – self-defence – objection to evidence of CCTV footage – where image depicts accused putting something in his pants – object not identifiable – where accused forced to choose between leaving evidence unchallenged or adducing evidence of drug use – assessment of probative value – potential of unfair prejudice – accused case the item was an ‘ice pipe’ – informant’s evidence re ice pipes – fragility – disadvantages of storing in pants – vulnerability of “bum cheeks” – evidence excluded

SENTENCE – Murder – Where offender instigated murder of victim – Where jury unable to reach verdict on kidnapping charge – Victim tortured over extended period and then repeatedly stabbed – No remorse and guarded prospects of rehabilitation

CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — Abuse of process — Claims made under the Building and Construction Industry Security of Payment Act 1999 (NSW) — Where claimant is hopelessly insolvent — Where claimant executed deed of company arrangement to avoid provisions which apply to a claimant in liquidation CORPORATIONS — Voluntary administration — Deed of company arrangement — Termination for some other reason under the Corporations Act 2001 (Cth), s 445D(1)(g) — Whether deed of company arrangement has a proper purpose — Where deed of company arrangement was executed to avoid separate legislation which apply to a corporation in liquidation

APPEAL – from Local Court – ss 39 and 40 of Local Court Act 2007 (NSW) – defendant supplying materials to company – plaintiff sole shareholder and director of company – plaintiff signed Credit Agreement on behalf of company – defendant made claim for moneys payable on basis of signed personal guarantee of plaintiff – where Local Court found in favour of defendant for whole of its liquidated claim – determination of quantum – whether question of law or question of mixed fact and law raised – where Local Court accepted guarantee took effect retrospectively - error established by finding defendant entitled to full quantum of claim sought – appeal upheld in part ESTOPPEL – Anshun estoppel – whether necessary for creditor to join all guarantors in action against principal debtor – no error established in Local Court rejecting defence based on Anshun estoppel

NEGLIGENCE - professional negligence - solicitors advising on large-scale property development - failure to include key clause in joint venture agreement NEGLIGENCE - causation - loss of chance - alleged loss of chance to amend joint venture agreement to include clause - alleged loss of chance to consummate joint venture with alternative partner NEGLIGENCE - damages - ascertainment of quantum - loss from inability to develop land in accordance with desired joint venture agreement - land still not fully developed - forecasting how hypothetical development would have proceeded CONSUMER LAW - misleading or deceptive conduct - causation - Trade Practices Act 1974 s82(1) - suffering loss "by conduct of" the defendants EVIDENCE - opinion evidence - whether fields of expertise exist - forecasting hypothetical property development outcomes

LAND LAW – Torrens title – compensation for loss of interest in land – Torrens assurance fund – circumstances in which compensation is not payable – where the loss or damage arises because of an error or miscalculation in the measurement of land – Real Property Act 1900 (NSW), s 129(2)(e) – where developer purchased land in the Sydney CBD for $55 million – where Deposited Plan referred to in the folios for four titles recorded total site area of the land as 1337.4m2 – where developer attributed considerable significance to the total site area in formulating the purchase price – developer subsequently discovered that true total site area of the land was 1255.9m2 – inaccurate statement of area in plan referred to in one of the folios caused by transposition errors by officers of the Registrar General in 1978 and 1995 – developer brought claim for compensation from the Torrens assurance fund – whether developer’s loss arose because of an error or miscalculation in the measurement of land – whether “measurement” refers to the fact of an erroneous statement of the dimensions and area of land or merely an error in the process of determining the dimensions or area – where s 129(2)(e) was introduced for a remedial purpose – where Torrens register disclaims accuracy in respect of dimensions and areas of land – extent to which the loss or damage is a consequence of any act or omission by the claimant – Real Property Act 1900 (NSW), s 129(2)(a) – whether the Appellant’s loss or damage was a consequence of its own act or omission – where the risk of an erroneous statement of area on Deposited Plan was real albeit rare – where potential adverse consequences of materialisation of that risk were severe for developer – whether s 129(2)(a) of the Real Property Act 1900 (NSW) establishes a regime for the apportionment of liability between claimant and Registrar General – s 129(2)(a) lacks reference to any process by which a court would undertake apportionment exercise – whether registration of Deposited Plan occurs in the execution or performance of Registrar General’s functions or duties under the Real Property Act 1900 (NSW) – whether registration of Deposited Plan occurs in the operation of the Real Property Act 1900 (NSW) – where Registrar General is required to make a record of a description of land in a folio of the Register – Real Property Act 1900 (NSW), s 32(1)(a) WORDS AND PHRASES – “measurement” – Real Property Act 1900 (NSW), s 129(2)(e)

CRIME – appeal – sentence appeal – whether sentence imposed was manifestly excessive – whether sentencing judge failed to take into account a causal connection between youth or immaturity and offending – whether sentencing judge failed to provide sufficient reasons for finding of no causal connection between youth or immaturity and offending – aggravated sexual assault – aggravated break and enter and commit felony – significant delay between offending and sentencing – applicant’s youth at time of offending appreciated by sentencing judge – sentencing judge entitled to deal with issue of youth in the manner he did – indicative sentences not outside reasonable range – aggregate sentence not unreasonable or unjust – appeal dismissed.

CRIME – appeals – appeal against conviction – jury verdict – applicant found guilty of murder of intimate domestic partner – tendency and relationship evidence admitted – where tendency direction given – where no anti-tendency direction concerning relationship evidence given - where tendency evidence included eight incidents of violence towards deceased and former domestic partner – relationship evidence of threats of violence made by applicant to deceased – threat of violence to cave in deceased’s head – death caused by blunt force trauma to head – whether risk of impermissible tendency reasoning –whether anti-tendency direction should have been given - where direction not sought by experienced senior counsel for accused – legitimate forensic explanations available – no miscarriage of justice occasioned – application of r 4.15 – leave to appeal refused

CRIME – appeal – conviction appeal – unreasonable verdict – whether inconsistencies in the complainant’s evidence were so grave that her account could not be believed beyond reasonable doubt – whether verdict of guilty on one count was inconsistent with verdict of not guilty on the other counts – sexual intercourse without consent – discrepancies in evidence did not undermine complainant’s core account of the allegation – verdicts clearly reconcilable – appeal dismissed.

INSURANCE – life insurance – proper construction of contracts of insurance – whether the contracts contained implied term that defendant not hinder or prevent fulfilment of purposes of express promises made in the contract – whether the contract contained promise by defendant trustee to pay plaintiff insurer premiums – whether on their proper construction the contracts prevented defendant insurer from engaging in request for proposal process whereby it invited tenders for the insurance presently provided by the plaintiff insurer

COSTS – Multiple proceedings heard together

COMMERCIAL ARBITRATION — costs of failed arbitration — s 33D, Commercial Arbitration Act 2010 (NSW) – principles at [3]-[9] – both parties responsible to some extent — costs to be their respective costs in the new arbitration.

ESTOPPEL – estoppel by deed – Deed of Loan and Guarantee acknowledged receipt from lender of $2,000,000 and borrower’s indebtedness – where no amount paid – whether mere fact of non-payment precluded lender from relying on estoppel – where evidence established sale of business by lender’s companies to borrower had formerly involved vendor finance and was replaced by separate loan agreement from lender – where no case for rectification or rescission was made out – lender entitled to rely on estoppel by deed

Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where s 29(11) of the Electoral Funding Act 2018 (NSW) ("EF Act") capped electoral expenditure by third-party campaigners in "capped State expenditure period" before State by-election for Legislative Assembly – Where third-party campaigners subject to lower cap than candidates – Where s 29(11) restricted capacity of third-party campaigners to engage in political debate and imposed burden on political communication – Where State no longer sought to justify burden – Where State conceded Court should hold s 29(11) invalid – Whether Court should make declaration of invalidity. Constitutional law (Cth) – Judicial power of the Commonwealth – High Court – Original jurisdiction – Meaning of "matter" – Standing – Offence under s 35 of the EF Act for third‑party campaigner to act in concert with other persons to incur electoral expenditure that exceeded applicable cap for third-party campaigner – Where Court had jurisdiction to determine validity of s 35 when plaintiffs commenced proceeding – Where s 35 was repealed before hearing – Whether Court had jurisdiction to determine validity of s 35 – Whether plaintiffs had standing to seek declaration of invalidity. Words and phrases – "declaration", "electoral expenditure", "federal jurisdiction", "foreseeable consequences", "implied freedom of communication on governmental and political matters", "judicial power of the Commonwealth", "justiciable controversy", "justified", "matter", "special interest", "standing", "sufficient interest", "third-party campaigner". Constitution, ss 7, 24; Ch III. Electoral Funding Act 2018 (NSW), ss 29(11), 33(1), 35.

BAIL — Aboriginal child — Unacceptable risk — Whether the proposed conditions mitigate risk — Whether Youth Justice can supervise a child on bail in the community where the child has pleaded not guilty to the offence — Conditional bail granted

BAIL — Aboriginal child — Unacceptable risk — Whether the proposed conditions mitigate risk — Whether Youth Justice can supervise a child on bail in the community where the child has pleaded not guilty to the offence — Conditional bail granted

SENTENCING – Manslaughter – self-defence – excessive self-defence – excessive force – s 421 Crimes Act 1900 (NSW)

EVIDENCE – privileges – client legal privilege – plaintiff claimed privilege over subpoenaed documents – whether privilege waived – where unredacted medical records inadvertently disclosed – where alleged inconsistency between claims made and maintenance of privilege

COSTS