Cases and authorities

EQUITY – trusts – resulting trusts – constructive trusts – characterisation of trusts – where appellant and respondents engaged in joint venture in hope of redevelopment of Sydney Fish Market – where in the course of the joint venture companies controlled by appellant and first respondent acquired call option for the acquisition of shares in an unrelated company – where nominee company appointed to exercise call option on behalf of grantees – where grantees provided finance for nominee company to exercise call option – whether evidence established that grantees intended nominee company to hold acquired shares on trust for them in equal shares – whether such trust is properly characterised as a presumed resulting trust or a common intention constructive trust – whether parties intended that trust over shares should only arise upon allocation of units to appellant in nominee company’s unit trust – held that nominee company holds half of its shares acquired under call option deed on trust for appellant EQUITY – fiduciary duties – secret commissions – entitlement of company related to joint venturer to commission under antecedent agency agreement – commission retained in its entirety by joint venturer’s company upon receipt – whether receipt of commission amounts to breach of fiduciary duty – whether liability of other joint venturer for breach of fiduciary duty ought to be reduced by amount of commission said to be wrongfully received and retained – no breach of fiduciary duty established in circumstances where antecedent agency agreement unconnected with joint venture

LAND LAW — Torrens title — Exceptions to indefeasibility — Unregistered tenancy — Whether s 42(1)(d) of the Real Property Act 1900 (NSW) can apply with respect to the interest of a tenant at will

SUCCESSION – probate and administration – appointment of interim administrator where underlying proceedings involved multiple contested wills – interpretation of s 73 of the Probate and Administration Act 1898 (NSW) – whether discretion to appoint interim administrator properly exercised – whether necessary to find that estate assets were ‘in jeopardy’ in order for administrator to be appointed – where toxic relationship between parties seeking to propound different wills – where dispute between parties as to management of the estate pending resolution of underlying proceedings APPEALS – leave to appeal – principles governing – appeal from an interlocutory decision – leave refused

COSTS – Security for costs – On appeal – Decision of the Supreme Court ordering the applicants to pay security for costs to first and second respondents – No House v The King error established in primary judge’s exercise of discretion – Claim that the UCPR exclusively governs the Court’s jurisdiction to order the payment of security for costs rejected

CORPORATIONS — Receivers and managers — Application for inquiry under s 423(1) of the Corporations Act 2001 (Cth) — Language of “prima facie case” to be avoided — Whether receivers obliged to defend proceedings against company — Leave required to compromise a claim — Whether receivers entitled to use litigation as a means to seek to renegotiate a pre-existing contractual relationship — Receivers’ approach manifested a reasonable commercial judgment in the circumstances — Appeal dismissed

CRIME — Application to vary or set aside orders dismissing conviction appeal

CRIME – appeals – appeal against conviction – where applicant found guilty of two counts of importing commercial quantity of border controlled precursor – where precursor concealed in packages of paintings consigned from Derby in United Kingdom to parcel lockers in Sydney opened in names other than applicant’s – where tendency evidence admitted of four additional consignments sent from Derby using name and identity other than applicant’s – whether admission of tendency evidence and way it was relied on at trial resulted in a miscarriage of justice – whether verdict unreasonable

CRIMINAL LAW – summary prosecution – costs – Land and Environment Court – prosecution under the Water Management Act 2000 (NSW) for taking water from a water source by means of a metered work while its metering equipment was not working – prosecution tendered evidence that as at charge date “MACE” meters were not working – after close of prosecution case one of the two defendants gave evidence that different meters were installed and working – fatal to prosecution case – defendants sought costs – Criminal Procedure Act 1986 (NSW), ss 257C and 257D – application for costs by defendants dismissed – whether primary judge erred in finding prosecution witnesses not aware of existence of digital engine hour meters – no error established – whether primary judge erred in having regard to the failure of the defendants to alert prosecution to the existence of the digital engine hour meters prior to the close of the prosecution case – no error established – whether primary judge erred in not awarding costs by reason of an alleged breach of prosecutorial duty of disclosure – whether breach of prosecutorial duty necessarily meant proceedings conducted in improper manner – no error in primary judge relying on prosecutor’s subjective belief that disclosure not required – no error in primary judge concluding that proceedings did not involve unreasonable delay

CRIME – APPEAL – appeal against sentence – attempt obtain financial advantage by deception – obtain property by deception - multiple counts – attempted fraud using “stolen” identities – multiple victims - deal with proceeds of crime – question of treatment of mental condition – assessment of objective gravity – question of manifest excess

CRIMINAL LAW – sentencing – large commercial drug supply – where offender suffering depressive illness – relevance to sentencing – moral culpability – deterrence – whether sentencing Judge failed to take into account – assessment of objective criminality – applicant’s role limited to “warehousing” drugs over a period of about a month – limited financial reward

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where jury could not be satisfied of specific intent to murder beyond reasonable doubt — application for extension of time for leave to appeal CRIME — Appeals — Appeal against conviction — jury directions — alternative count — whether trial judge erred in directing jury Crown not required to prove individual facts beyond reasonable doubt CRIME — Appeals — Appeal against conviction — jury directions — alternative count — whether trial judge failed to give specific unanimity direction

LEGAL PRACTITIONERS — Injunction — where the plaintiff solicitor sought an interim injunction restraining the defendant barrister from registering Costs Certificates issued by a review panel — where the Costs Certificates upon registration would become a judgment of a court — where the Costs Certificates related to a retainer agreement between the solicitor and barrister — where the agreement specified that the solicitor would be liable for the barrister’s fees only to the extent that his client had put him into the necessary funds — where the review panel found that the agreement was void ab initio — whether interim injunction restraining the barrister from registering Costs Certificates should be granted — where interim injunction granted

CRIME — Bail — Release application – where appeal pending in the Court of Criminal Appeal – “special or exceptional circumstances” – matters to be taken into account – fresh evidence – whether appeal is reasonably arguable

CIVIL PROCEDURE – notice of motion – application to intervene – Privacy Commissioner to be joined as a defendant – intervention sought in order to make submissions on a discrete issue of statutory construction – joinder application granted – orders made – no order as to costs

CRIMINAL LAW – sentencing – attempted robbery in company – cognitively impaired offender – limited role in planning – significant role in attack – use of weapons – serious example of robbery in company – where victim died of stab wounds inflicted by co-offender – where murder charge withdrawn on entry of plea – death of victim disregarded in sentencing – sentencing discount – prescriptive statutory scheme – prosecution concession accepted – 25% discount allowed – deprivation and intellectual disability – “scandalous neglect of young Indigenous people” – reduction in moral culpability – parity – where second co-offender received intensive correction order on undertaking to assist prosecution – same starting point appropriate – where offender in custody awaiting murder trial for over two years – full time custodial sentence only appropriate disposition – backdating sentence – time served sufficient

EQUITY – Equitable remedies – Injunctions – interlocutory injunctions –incorporated associations – application to restrain the holding of a meeting of a committee of the first defendant – plaintiff is the president of the first defendant, an association incorporated under the Associations Incorporation Act 2009 – on 20 January 2023 members of a committee of the first defendant by written notice call a meeting to be held on 12 February 2023 to consider whether the plaintiff should be removed as president of the first defendant – the notice of 20 January 2023 annexes a letter of 11 January 2023 sent to the plaintiff making allegations that she has incurred unauthorised expenditure – the plaintiff has not responded to the 11 January letter, contending that she has insufficient time to do so – the plaintiff complains that the allegations of unauthorised expenditure require further precision before she responds to them – the plaintiff admitted to hospital on 8 February 2023 and is unable to attend the proposed meeting – whether there is a serious question to be tried – whether the balance of convenience favours granting a restraint against the committee of the first defendant holding the meeting.

CIVIL PROCEDURE — Case management – medical negligence – where plaintiff relies on additional expert reports – where new issues raised close to hearing – splitting of issues

APPEAL FROM LOCAL COURT – summons – allegations of error of law – allegations of actual and apprehended bias – refusal of magistrate to allow taking of notes in court – matter remitted for re-hearing

ENVIRONMENT AND PLANNING — where plaintiff was erecting building without prior council approval — where council issued cease work notice — Environmental Planning and Assessment Act 1979 (NSW) — where approval was subsequently given after development application by landowners — where plaintiff sold building to landowners and vacated property — where plaintiff pursues council for illegality of council itself and its actions CIVIL PROCEDURE — notice of motion — dismissal of proceedings sought for abuse of process and tendency to cause prejudice and embarrassment — Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(b), 13.4(1)(c), 14.28 — whether plaintiff’s claims are frivolous and vexatious — whether plaintiff’s case has conceivable prospects of success — what the dictates of justice require — Civil Procedure Act 2005 (NSW), ss 56-58 — proceedings dismissed CIVIL PROCEDURE — pleadings — where pleadings do not adhere to requirements of Rules — Uniform Civil Procedure Rules 2005 (NSW), rr 14.7, 14.4, 15.1, 15.3 — where plaintiff’s affidavits travel beyond pleadings — where claims cannot be pursued without amendment — whether plaintiff ought to be given leave to replead — Civil Procedure Act 2005 (NSW), s 64 — where leave may not be given if amended pleadings liable to be struck out because plaintiff does not have arguable claims — Civil Procedure Act, s 56

CIVIL PROCEDURE — summary dismissal — where plaintiff pursued defendant for professional negligence — where plaintiff repeatedly failed to comply with orders about service of evidence — Civil Procedure Act 2005 (NSW), s 56 — where self-executing order for dismissal in the event of future failure to comply with orders made — Uniform Civil Procedure Rules 2005 (NSW), r 12.7 — where proceedings dismissed for want of due despatch as a result of further failure to serve evidence CIVIL PROCEDURE — where plaintiff applies for order dismissing proceedings to be set aside — Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 2.3 — whether Court is functus officio — whether rr 2.1 and 2.3 permit orders dismissing proceedings be set aside — rr 2.1 and 2.3 are for case management of proceedings on foot — where r 36.16 not relied on and not of assistance given plaintiff’s delay in filing motion — whether Court has inherent power to set aside order dismissing proceedings — no power — motion dismissed EVIDENCE — Expert opinion — where plaintiff has served outstanding expert evidence — where report discloses further consideration must be given by expert to other matters — whether such matters could be dealt with by expert giving oral evidence at hearing — Uniform Civil Procedure Rules 2005 (NSW), rr 31.29, 31.28 — expert evidence to be given by report served before hearing

ADMINISTRATIVE LAW — motor vehicle accident — Motor Accidents Injuries Act 2017 (NSW) — claim rejected by insurer — application for review —medical assessor finds shoulder injury not minor — insurer’s application for review of assessor’s certificate — gateway function of President of Personal Injury Commission of NSW under section 7.26(5) of the Act— where delegate referred review application to review panel — whether there is an implied obligation to give reasons for decision — gateway function of an administrative character — no implied obligation to give reasons for decision ADMINISTRATIVE LAW — judicial review — jurisdictional error — gateway function requiring President to consider whether there was reasonable cause to suspect material error in medical assessment — whether assessor not accepting medical opinions relied on by insurer on a medical dispute can provide the basis for the required statutory opinion — delegate fell into error — decision to refer assessment to review panel quashed

CIVIL PROCEDURE — whether requirements for pecuniary penalty order application satisfied — whether an originating process may constitute an application and written notice by a proceeds of crime authority for a pecuniary penalty order under ss 134 and 136 of the Proceeds of Crime Act 2002 (Cth) CIVIL PROCEDURE — challenge to constitutional validity of pecuniary penalty order regime — whether Court permitted to value taxation benefits resulting from commission of offences in order to determine amount of pecuniary penalty under s 121 of the Proceeds of Crime Act 2002

COSTS — Court of Appeal — variation of costs order — whether non-acceptance of offer of compromise warranted departure from ordinary cost consequences — offer held not to be a genuine offer of compromise as no evidence to suggest successful party incurred significant appeal costs prior to making offer

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

PRACTICE AND PROCEDURE – amendments – leave to amend originating process – where application for leave made late and no explanation of delay – where proposed amendments disclose no prospects of success – no issue of principle – leave to amend refused ADMINISTRATIVE LAW – judicial review – whether failure to find existence of “offensive noise” within the meaning of the Protection of the Environment Operations Act 1997 (NSW) at first-instance and on appeal amounts to jurisdictional error by reason of wrongful refusal to assume jurisdiction – whether impugned findings of fact as to placement of air conditioner said to emit “offensive noise” resulted in jurisdictional errors – held that jurisdictional error not arguable

COSTS – Offer of compromise made in accordance with UCPR r 20.26 – Indemnity costs sought pursuant to r 42.15A – Whether genuine offer of compromise

CIVIL PROCEDURE — Hearings — Adjournment — where the defendant applies for a permanent stay of proceedings — where the defendant’s application is listed for hearing — where the High Court of Australia granted special leave to appeal in a case concerning an application for a permanent stay of proceedings — where the High Court of Australia has not yet heard the appeal — where the plaintiff applies for an adjournment of the hearing of the defendant’s application until after the High Court of Australia delivers judgment in the appeal — where the defendant did not advance any prejudice to it if the plaintiff’s application was granted — whether to grant the plaintiff’s application — where the plaintiff’s application refused

CORPORATIONS — Members’ rights and remedies — Oppression — Whether conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory — Whether relief sought should be granted. CORPORATIONS — Members’ rights and remedies — Whether winding up on just and equitable grounds should be ordered — Where court ordered winding up is in public interest — Whether court should order one shareholder to buyout the other.

CRIMINAL LAW – fitness to be tried – accused charged with murder – where accused suffers cognitive impairment – loss of memory of events – where memory existed shortly after the alleged offence – relevance to issues – criteria under mental health legislation – rudimentary and fatalistic understanding of plea of not guilty – “sit in gaol until they find you guilty” – conflict in expert opinion – matters of degree – ability of Court to modify process and sitting hours – support person for accused – difficulties in arranging – accused fit to be tried on understanding support available – recommendation to Legal Aid Commission – role of Director of Public Prosecutions

CRIME – BAIL – application for release order – charges of murder and specially aggravated kidnapping – application of s 16A Bail Act – burden on applicant to show cause – reliance placed upon a combination of features – question of the viability of the Crown case – delay – applicant’s health – capacity of Justice Health to provide adequate medical care

SENTENCING – remarks on sentence – manslaughter – excessive self defence – where deceased attended home of offender with others – where offender was “called out” to fight – where offender ran out of house wielding a kitchen knife – early plea of guilty to manslaughter – vulnerable in custody – Bugmy considerations – true remorse – good prospects of rehabilitation – special circumstances

CRIME – sentence – murder – intent to kill – defenceless deceased shot with rifle at close range to the head – senseless and brutal – offender aged 75 – no significant record – good character – genuinely remorseful – reductions for plea of guilty and assistance

CIVIL PROCEDURE – application to file fresh statement of claim – fresh document not understandable – leave to amend

PROCEDURE – notice of motion – application for a permanent stay – allegation of fraud and conspiracy by solicitors – unavailability of notes and documents to defend claim – significant period of time since crucial events – proceedings permanently stayed

TORTS — General principles – negligence – vicarious liability – historical sexual assault – assessment of damages – aggravated damages

CONTRACTS — breach of contract — where defendant ceased payments under agreement for the sale of a business — plaintiff entitled to amount owing under that contract CONTRACTS — breach of contract — breach of contractual warranty — where cross-defendant warranted that accounts were materially accurate, do not overstate the profitability or net financial position of the business and are not affected by unusual or non-recurring items — whether entitlement to damages — whether breach was causative of cross-claimant’s loss — quantum of damages CONSUMER LAW — misleading or deceptive conduct — causation or reliance — whether misstatement of subcontractor expense was causative of cross-claimant and defendant’s loss CONSUMER LAW — enforcement and remedies — action for damages — measure of damages — whether an order should be made pursuant to s 237 to compensate for the cross-claimant and defendant’s loss by reducing the contract price

LAND LAW — Easements — application for easement under s 88K of the Conveyancing Act 1919 (NSW) — drainage easement associated with residential dual occupancy development — requirement for drainage easement by council’s deferred commencement development condition — whether easement reasonably necessary for effective use or development of plaintiff’s land — assessment of impact on defendants’ land — whether easement over neighbouring land is viable alternative — whether plaintiff made all reasonable attempts to obtain easement — whether plaintiff provided sufficient information to enable the defendants to understand the proposal – where easement proposal modification made — whether discretion to impose easement should not be exercised due to plaintiff’s conduct — where defendants raise procedural mistake by council — assessment of compensation — easement imposed

CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) – murder – whether if prosecution had all relevant facts it would have been reasonable to institute proceedings

PARTNERSHIPS AND JOINT VENTURES —winding up of two person solicitors’ partnership — many partnership assets transferred by receivers to new firm established by one former partner — held that goodwill not transferred as no continuity of business — in any case, goodwill claim erroneously based on assumption that hypothetical purchaser would have benefit of broad non-compete covenant by former partners

CRIME – Appeal and review – Judicial review – Appeal from Local Court to District Court – where District Court dismissed appeal – offences of using mobile phone while driving when not permitted – whether decision of District Court affected by jurisdictional error – whether District Court erred in relation to use of photographic evidence – whether District Court reversed onus of proof

BUILDING AND CONSTRUCTION — Contract — Defects — Duty of care — Whether statutory duty of care under the Design and Building Practitioners Act 2020 (NSW) applies in relation to “boarding houses” — Meaning of “building work” — Meaning of “construction work” BUILDING AND CONSTRUCTION — Contract — Damages — Whether proper measure of damages to reversionary interest in property is the rectification of the damage or the diminution in value of the reversionary interest CIVIL PROCEDURE — Commercial List, Technology and Construction List — Procedure — List Statements — Where respondent failed to plead action on the case in trespass in List Statement — Whether denial of procedural fairness to determine the matter on that basis

CRIME – appeals – appeal against sentence – penetrative child sexual assault – sentence after trial – [REDACTED] – whether assessment of objective seriousness was incorrect – impracticality of plotting precisely objective seriousness along spectrum – whether error was made in failure to find special circumstances – discussion of role of sentencing statutes in finding or not finding special circumstances – whether aggregate sentence was manifestly excessive – discussion of current sentencing patterns for repeated offences of penetrative child sexual assault – appeal dismissed

CRIMINAL PROCEDURE — Trial — Directions to jury on intoxication and intent — Where oral directions said to have introduced a staged approach — Where oral directions said to have reversed the onus and undermined the criminal standard of proof — Leave to appeal refused

CRIMINAL LAW – conviction appeal – whether verdicts inconsistent – unreasonable verdicts – test of logic and reasonableness – review of the whole of the evidence and whole of the trial record CRIMINAL LAW – sentencing – good character – whether able to be taken into account in child sexual assault – section 21A(5A) Sentencing Procedure Act 1999 (NSW) – whether Judge erred in not taking good character into account

CRIMINAL LAW - murder – issue at trial was presence of the accused – no directions sought for alternative verdict of manslaughter – tactical decision of trial counsel – two home invasions – coincidence evidence – consumption of ice – intoxication – whether evidence available to support verdict of manslaughter by unlawful and dangerous act – impermissible speculation or conjecture

CRIME – sentence appeal – manifest excess of aggregate sentence – sexual offences against three children under five, one of eight-weeks – multiple counts of aggravated indecent assault – two counts of sexual intercourse with a child under the age of 10 – seven counts of using a child under the age of 14 to produce child abuse material – objective seriousness of offending – aggravating factors – very young age of victims increases objective seriousness due to vulnerability – psychological harm to the victims – sentence reflects totality of criminality involved in offending – appeal dismissed

CORPORATIONS — Whether leave should be granted to lead expert evidence.

PRACTICE AND PROCEDURE – Application for a stay of proceedings pending determination of application for leave to appeal and any appeal from a decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales – Whether there is an arguable ground of appeal on a question of law – Whether arguable that leave to appeal would be granted – Where there is a risk of substantial prejudice to the plaintiff if that the orders are not stayed – Where there is no or limited risk of substantial prejudice to the defendants if the orders are stayed – Balance of convenience and the interests of justice favour the granting of a stay

CIVIL PROCEDURE — case management — non-compliance with earlier case management orders —leave sought nunc pro tunc to extend time for filing amended statement of claim — facts in the amended pleading remained substantially the same COSTS — application of indulgence rule — rule 42.7 Uniform Civil Procedure Rules (NSW)