Cases and authorities

APPEALS — Appeal against conviction — Sexual assault and indecent assault of children — Reluctant witness — Error in admitting into evidence complainant’s police statement — Whether silence is sufficient to establish a denial or a failure to agree or admit to the substance of the evidence under s 106(1)(a)(ii) of the Evidence Act — Whether witness is “unavailable” — Whether “all reasonable steps” taken by the Crown Prosecutor to compel the witness to give evidence — Appeal allowed — Conviction quashed — Re-trial ordered

EVIDENCE — Privileges — Legal professional privilege — Waiver — Whether the fourth and fifth defendants asserting privilege waived privilege by permitting the first to third defendants to inspect the documents — Whether privilege was waived by “inadvertently” copying the plaintiffs into the email attaching the documents

CIVIL PROCEDURE – where plaintiffs seek removal to the Supreme Court of Local Court proceedings seeking a recovery order under the Family Law Act 1975 (Cth) – where recovery orders relate to a child the subject of secure accommodation orders made by the Supreme Court in its parens patriae jurisdiction – whether Local Court of NSW is a court of summary jurisdiction under the Family Law Act 1975 (Cth) – whether Supreme Court has power to make a removal order under s 46(3A) of Family Law Act 1975 (Cth) – whether making removal and recovery orders are in the child’s best interests JURISDICTION – cross-vesting – whether the Supreme Court has jurisdiction to make a recovery order under Family Law Act 1975 (Cth) following enactment of Federal Circuit and Family Court of Australia Act 2021 (Cth) and amendment to Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – where Supreme Court is conferred with jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) – differences between jurisdiction conferred on ‘Division 1’ and ‘Division 2’ Courts of the Federal Circuit and Family Court of Australia – whether Supreme Court has jurisdiction to make recovery order under Family Law Act 1975 (Cth) consequent upon removal of recovery order proceedings pending in Local Court of NSW

CONTRACTS – commercial contracts – repudiation – damages – where question reserved as to whether defendant’s failure to accept offer for sale of land amounts to repudiation of informal written agreement – where plaintiffs allege that defendant repudiated its obligation to agree the terms of a contract for the sale of land – where defendant denies its repudiation on the basis that plaintiffs did not validly nominate a “special purpose vehicle” or “Purchasing Entity” – where nomination of “special purpose vehicle” and “Purchasing Entity” anterior to defendant’s obligation to agree the terms of sale – whether plaintiffs had validly nominated special purpose vehicle and Purchasing Entity – whether defendant raised this defence in its pleadings – plaintiffs held not to have complied with terms of the contract – held that defendant’s obligation to make an offer did not arise

CRIME – murder – defence of mental health impairment – availability of the special verdict where defendant and prosecutor agree that evidence establishes a mental health impairment – s 31 Mental Health Cognitive Impairment Forensic Provisions Act – post-natal depression – bipolar disorder

APPEAL – leave to appeal – challenge to freezing order in aid of existing and prospective proceedings in Family Court – judgment creditor seeking to set aside financial agreement between husband and wife and also seeking to set aside settlement deed between wife and husband’s trustee in bankruptcy – Family Law Act, ss 90K(1)(aa) and 90K(3) – whether good arguable case for final relief – whether proposed appeal sufficiently arguable to justify grant of leave

TAXES AND DUTIES – Payroll tax liability – Employment agents – Whether arrangements between related entities engaged “employment agency contract” provisions in the Payroll Tax Act 2007 (NSW) for the purposes of assessing payroll tax liability

APPEALS – Leave to appeal – security for costs – security refused on basis of stultification and oppression – where respondent did not raise issues of stultification or oppression – no evidence of impecuniosity of those standing behind the respondent – denial of procedural fairness – clear injustice justifying interference with procedural decision

COSTS — Where appeal partially successful and costs of trial disputed — Whether Issues Approach or Proportion Approach should be adopted — Where there was inevitable overlap in the issues in dispute below — Proportion Approach adopted — Costs incurred by non-parties — Orders made as to interest, set-off and stay

HIGH RISK OFFENDER – application for psychiatric and psychological examinations and interim supervision order – opposed by counsel for the defendant – history of breaches on ESO – period of good progress following recent incarceration – balance between positive supervision and overly stringent supervision – mandatory examinations and interim supervision order imposed – circumscribed dispute about conditions

CIVIL PROCEDURE — Commencement of proceedings — Summons — where plaintiff was injured in motor vehicle accident for which he accepted compensation under Motor Accidents Compensation Act 1999 (NSW), s 95(2) — where plaintiff has brought proceedings under s 109 which requires leave — where medical assessors’ certificates went unchallenged by review mechanisms available under ss 62, 63 — where claims assessor was bound by medical assessors’ certificates under s 61 CIVIL PROCEDURE — notice of motion — where amended summons does not comply with requirements of Uniform Civil Procedure Rules 2005 (NSW) — defendant moves for amended summons to be dismissed — whether plaintiff should be given leave to further amend summons — whether plaintiff’s case is legally tenable — what the dictates of justice require — Civil Procedure Act 2005 (NSW), ss 56-60 — amended summons dismissed LIMITATION OF ACTIONS — Personal injury — where plaintiff seeks to bring proceedings in respect of claim after 3-year limitation period provided under Motor Accidents Compensation Act 1999 (NSW), s 109 — construction of legislative scheme — whether acceptance of amount payable in settlement of claim under s 95 precludes later proceedings being brought under s 109

EQUITY – equitable set-off – property for beneficiary with mortgage funded by beneficiary – mortgagor borrows money on own account – mortgagor separately lends money to beneficiary – beneficiary ceases to make contributions to mortgage payments – mortgagee sells property – nature of mortgagor’s liability – whether mortgagor’s liability to be set off against beneficiary’s liability to repay loan balance – date of set-off CONTRACT – loan – money of account – lender ordinarily resident in Australia – loan agreement made in Australia – lender advances Chinese currency – loan monies advanced in China – money of account is Chinese currency

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.

BUILDING AND CONSTRUCTION – NCAT – Appeal of NCAT Appeal Panel decision – application to extend time for this appeal refused – summons dismissed – statutory warranties as to residential building work – breach of statutory warranty – whether new contract entered into or original contract varied – offer and acceptance – consideration – forbearance to sue – completion date of building works – leave to appeal finding of facts – interpretation of s 3B Home Building Act 1989 (NSW)

LEASES AND TENANCIES – first defendant in breach of lease and gives possession of property – calculation of damages for the balance of the term – lease requires the plaintiff to do “every reasonable thing to mitigate loss” – whether the plaintiff has done every reasonable thing to mitigate her losses and to release premises repossessed from the first defendant – term of lease allows the plaintiff to recover reasonable legal costs from the default – whether the plaintiff entitled to indemnity costs under the lease. COSTS - whether indemnity costs should be awarded under the provisions of the lease – whether interest on costs should be awarded.

EQUITY – plaintiff transfers house to company controlled by first defendant for refinancing – property to be rented out to service mortgage – granny flat to be built on the property for the plaintiff to live in rent-free – plaintiff contributes money toward the property – plaintiff makes proprietary claim over the property – property subject to a joint endeavour constructive trust – claims for proprietary estoppel and unconscionable conduct not established

LICENSING — Casinos and gambling — Independent Liquor and Gaming Authority — Powers of Authority — whether Authority has power to revoke threshold increase decision

PROBATE — Deceased makes various Wills —Contest in respect of Wills made in 2019, 2016 and 2015 (probate claim) — Related proceedings regarding an alleged promise of benefit to a friend of the deceased arising out of what is said to be relationship of personal care and an agreement giving rise to a benefit (care benefit claim) — Parties to probate claim propose resolution of the claim on basis that executors entitled to grant seek to renounce and an attorney grant issue of a copy of penultimate Will sought to be rectified out of time — Issues arising in respect of these and other aspects of proposed settlement of probate claim PROBATE — Principles informing whether Court should accept proposed compromised settlement of probate claim — Whether Court should pass over last Will of deceased — Whether evidence of forgetfulness suffices to pass over final Will — consideration of other evidence impacting cognitive capacity PROBATE — Original of 2016 Will missing — Grant of administration proposed in respect of copy of Will — Principles regarding proof of ‘lost’ Wills — Principles regarding the presumption of revocation PROBATE — Claim for rectification of — Principles regarding rectification and extension of time EXECUTORS — Executors under last Will also nominated as executors under penultimate will — Executors seek to renounce after propounding all Wills under which they are nominated and engaging in partly contested hearing in respect of determination of which Will is the last valid Will — Principles regarding renunciation — Whether executors entitled to renounce GRANTS — Rectified will names executrix outside jurisdiction — Principles regarding attorney grant — no production of proposed power of attorney — Whether signed proposed orders constitute sufficient nomination of proposed solicitor to take grant PROBATE — Interests of various parties affected by proposed settlement — Consideration of whether non-active parties and beneficiaries served with Notices of Proceedings are bound by the outcome GRANT — Parties propose a special grant of administration pending issue of letters of administration with the Will annexed — Whether appropriate to issue special grant GRANT — Ancillary issues — Whether administration bond should be dispensed with — Costs

CONTRACTS — Formation — Agreement — Intention to make concluded bargain — Calderbank offer to settle litigation

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings – No reasonable cause of action disclosed CIVIL PROCEDURE — Jurisdiction — Supervision of state courts and tribunals

TRAFFIC LAW AND TRANSPORT — traffic law — Heavy Vehicle National Law — Category 2 and Category 3 offences — sentence appeal — question of law alone — manifest inadequacy CRIME — appeal and review — appeal from Local Court to Supreme Court — procedure — time limits — extension of time — whether just in all the circumstances

MENTAL HEALTH — Criminal proceedings — Defence of mental health impairment — Exception to defence if impairment caused solely by temporary effect of ingesting substance or substance use disorder — Onus and burden of proof — Onus on Crown to prove exception to defence on balance of probabilities

CRIMINAL LAW – sentence – verdict of guilty of murder after trial by jury – substantial impairment not proven on balance of probabilities – fatal violence by running down with car and subsequent blows to face and head with axe – deceased former wife’s new partner – intention to kill – elderly offender – survived Khmer Rouge regime – isolated and lonely life at time of offence – diagnoses of major depression and PTSD – no criminal record – no remorse expressed – sentence imposed

COSTS – indemnity costs – offers of compromise – where plaintiff failed to accept reasonable offer COSTS – non-party costs orders – where litigation conducted by non-parties per medium of the corporate plaintiff – whether in the interests of justice that non-parties should pay the defendants’ costs

COURTS AND TRIBUNALS – power to transfer to NSW Civil and Administrative Tribunal (NCAT) – Civil and Administrative Tribunal Act 2013 (NSW), sch 4 cl 6(2) – proceedings commenced in Court – application then filed in NCAT – Court has jurisdiction for common issues and NCAT does not, by sch 4 cl 5(7) – whether Court can transfer to NCAT under sch 4 cl 6(2) – statutory construction of sch 4 cl 6(2) at [13]-[26] – Court may transfer where parties agree or it is appropriate to do so.

CRIME — Murder — Sentence after trial —Deceased child killed in his bedroom — Finding of intention to kill — Objective seriousness of the offence fell just below the mid-range — History of mental illness and drug abuse and addiction — Offence occurred in the context of acute intoxication — Finding of remorse — Offender’s conduct prior to and at trial facilitated the administration of justice

CIVIL PROCEDURE – freezing orders – where $22m in funds frozen by consent pending resolution of proceeding in Hong Kong – where primary judge made further freezing order in respect of additional amount – whether exceptional circumstances existed to warrant discharge of consent order – whether primary judge erred in making further freezing order – whether applicant had established good arguable case to judgment in Hong Kong in amount secured by further order

BAIL – release application – application for leave to appeal from conviction pending – special or exceptional circumstances test – strength of grounds of appeal – proportion of non-parole period likely to be served before appeal determined

BAIL – release application – application for leave to appeal from conviction pending – special or exceptional circumstances test – strength of grounds of appeal – proportion of non-parole period likely to be served before appeal determined – availability of medical services

CRIMINAL LAW – Offences – Appeal – Sentence – Appeal by Environmental Protection Authority against sentence imposed upon a company (the first respondent) and its director (the second respondent) for an offence of using land as a waste facility without authority – Where first respondent was not fined but was ordered to pay the appellant’s legal and investigative costs – Where the charge against the second respondent was dismissed without conviction – Errors established as to the assessment of moral culpability of the offending and the role of general deterrence – Serious and extended offending – No basis on which to exercise the residual discretion to decline to intervene – First Respondent re-sentenced and fined – Charge against second respondent dismissed CRIMINAL LAW – Investigation of offending by statutory authority – Criticisms made of the authority by the sentencing judge as to the manner in which the investigation was carried out – Necessity to distinguish between detecting an offence and obtaining evidence in support of it and conducting an investigation in a way which encourages or facilitates the offending – Where the conduct of the appellant in the present case fell into the former category – Suggestions that the appellant acted improperly and/or beyond the proper boundaries of its role not supported

CRIME - appeal - conviction - fresh evidence not available at trial – miscarriage of justice - whether significant possibility jury acting reasonably would acquit appellant

CRIME — Appeals — Appeal against conviction — whether Crown invited jury to draw adverse inferences due to failure to mention circumstances relevant to defence in ERISP — application of s 89A of Evidence Act 1995 (NSW) — whether trial judge not giving direction occasioned miscarriage of justice — where direction not sought by trial counsel — appeal dismissed

CRIME — Bail — Appeal bail — “Special or exceptional circumstances” – constraint upon the Court’s assessment of prospects of success on appeal in respect of proposed three grounds – significant proportion of non-parole period to be served by time of hearing of application for leave to appeal – special or exceptional circumstances not shown

Crime – Appeals – Appeal against sentence – aggregate sentence for fraudulent conduct offences – dishonestly attempting to obtain a financial advantage by deception – dishonestly obtaining financial advantage by deception - dishonestly intending to obtain a gain from a Commonwealth entity – ss 134.2 and 135.1 of the Criminal Code 1995 (Cth) – manifest excess – where amounts involved were relatively small - where offending occurred over relatively short period of time and generally employed unsophisticated methods – where aggregate sentence manifestly excessive Crime – Appeals – Appeal against sentence – whether sentencing judge’s intervention in course of evidence of applicant was excessive – where credibility of applicant was serious issue – where interventions appropriate – where no appearance of bias of pre-judgment

CRIME — appeals — appeal against sentence on parity ground — offence of in company detaining a person with intent to obtain financial advantage and actual bodily harm occasioned contrary to s 86(3) of the Crimes Act 1900 (NSW) — whether applicant has a justifiable sense of grievance when sentence is compared to that of co-offender

CRIME – appeal from interlocutory order – trial judge refused to discharge jury – jury note – whether gave rise to reasonable apprehension of bias – no arguable basis for finding trial judge erred – leave refused

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Offence contrary to s 38(b) of the Crimes Act 1900 of causing a person to take an intoxicating substance with intent to commit an indictable offence — Further offences of sexual intercourse without consent and larceny committed while complainant was unconscious as a result of the intoxicating substance — Circumstantial case which relied on the complainant’s account and also expert pharmacological evidence — Whether all reasonable hypotheses consistent with innocence were excluded — Open to jury to exclude those reasonable hypotheses — Appeal dismissed

MORTGAGES — Payment in Court — First registered mortgagee sells four properties following default by mortgagor, pays surplus funds into Court and identifies five potential claimants in respect of the funds — Application for payment out by unregistered mortgagee REAL PROPERTY — Registration of interests — Series of lenders lodge caveats in respect of unregistered loan and mortgage interests — Applicant’s interest as unregistered mortgagee is ‘secured’ by lodgement of caveat — Applicant establishes interest is created first in time and lodged in priority to four other potential claimants — Applicant entitled to payment out of entirety of surplus funds PRACTICE — Appearance — Procedure — Representation of company by director — Directors of several potential claimants seek to bind their companies — Uniform Civil Procedure Rules 2005 (NSW) rr 7.1(2) considered

CIVIL PROCEDURE — judgment in absence of party — no appearance by defendant — application of UCPR r 29.7

LAND LAW — Co-ownership — Statutory trust for sale — Where defendant was a litigant in person — Where defendant resisted sale on the basis of an interest in another property not the subject of these proceedings — Where defendant paid rates on the subject property and would be entitled to contribution — Where plaintiff’s proposed trustees not otherwise opposed LAND LAW — Co-ownership — Severance of joint tenancy — Where co-owners have not formally severed joint tenancy — Where co-owners’ respective shares of the Property not determined — Where no severance by conduct or agreement

COSTS — Party/Party — Bases of quantification — Indemnity basis — Where costs concern issue of a lapsing notice and proceedings seeking extension of a caveat — Where costs order sought is against litigant in person

CIVIL PROCEDURE – pleadings – striking out – no reasonable cause of action or defence – abuse of process – summons dismissed COSTS – party/party – specified gross sum – orders against non-parties – whether in the interests of justice to order non-party directors of plaintiff company to pay costs – order refused

INSURANCE — Where Australia and New Zealand Banking Group Limited (ANZ) issued unconditional bank guarantees in respect of construction contracts entered into by companies controlled by the defendant — Where plaintiff issued surety bonds in favour of ANZ at the request of those companies — Where the surety facility had been provided by CGU Insurance Limited (CGU) before the insurance business of CGU was transferred to the plaintiff pursuant to a scheme under s 17B of the Insurance Act 1973 (Cth) — Where the defendant as an indemnifier entered into a deed of indemnity with CGU — Where the surety bonds were called upon by ANZ and paid by the plaintiff — Whether CGU’s rights and obligations under the deed were transferred to the plaintiff as a consequence of the scheme thereby entitling it to rely on the deed to seek reimbursement from the defendant

CONTRACTS — Formation — Acceptance of offer — Acceptance by electronic communication — Whether parties reached a binding agreement to settle the proceedings — First and fourth categories of Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72

JUDGMENTS AND ORDERS – amending, varying and setting aside – application to set aside orders – application for a declaration that the defendant’s statement of claim was incompetent – where plaintiff has previously applied unsuccessfully to have default judgment set aside – no basis established – application dismissed

HIGH RISK OFFENDER – final hearing – application for extended supervision order – whether unacceptable risk of committing another serious violence offence if not kept under supervision under the order – 2-year extended supervision order sought – 18 months of good behaviour on parole – Court not satisfied to a high degree of probability that defendant poses an unacceptable risk of committing a serious violence offence if not kept under supervision – summons dismissed

CONSUMER LAW – Misleading or deceptive conduct – Contract for residential renovation works – Representation by silence that construction company was licensed to undertake works – Whether primary judge erred in finding future form of pleaded representation made out – “No transaction” case – Requirement of plaintiff to prove its loss – Price paid minus value of benefits received – Source of value in construction contract – Where partially renovated property subsequently demolished and rebuilt – Effect of circumstance that builder was unlicensed CONTRACT – Identification of parties where no written contract in place – Whether construction company or its principal party to residential construction contract

Appeal — application for stay of Equity Division orders pending hearing of application for leave to appeal — stay refused

JUDICIAL REVIEW – development consent – use of caretaker’s residence in industrial building – residential accommodation prohibited in industrial zone – whether ancillary and subservient to dominant industrial use – alleged past and threatened future illegal use – whether fraud to apply for consent in such circumstances – whether bad faith to consent in such circumstances – whether decision that use is ancillary is perverse.

NEGLIGENCE — Breach — Small, unremarkable helical stairway — Risk of falling slight, inherent and obvious — Installation of handrail not a reasonably required precaution NEGLIGENCE — Causation — Finding of possibility of different result insufficient — Whether installation of handrail would have made any difference — Golf balls in hands of plaintiff — Handrail would have produced no different result