Cases and authorities

LAND LAW – possession of land – claim by registered proprietor against a trespasser – summary judgment given

LAND LAW – possession of land – where plaintiff was executor, and probate granted – defendants occupiers but not beneficiaries – plaintiff entitled to possession

APPEAL – NCAT – Extension of time sought to appeal decision of NCAT – delay of over two years – appeal on question of law – leave required – plaintiffs accepted in NCAT that s 132 Strata Schemes Development Act 2015 (NSW) provided power to make orders sought – opposite position now taken for the first time – power of NCAT to make orders under s 132 Strata Schemes Development Act 2015 (NSW) – "damage" to common property under s 132 – power of NCAT to make orders conditional on approval granted under the Environmental Planning and Assessment Act 1979 – special resolution passed to permit construction/alterations on common property – concurrent proceedings in Equity Division of Supreme Court – extension of time refused

CRIME – Sentence – Trial – offender found guilty at trial – “cold case” investigation – offence occurring in 1995 – question of sentencing pattern from mid 1990s – spontaneous crime but with extreme brutality – limited subjective case – no remorse – dated criminal record

CONSTITUTIONAL LAW — Commonwealth Constitution — Implied freedom of political communication — Section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) — Section 105 prohibits the publication or broadcasting of the name of a child only where connected to care proceedings or procedures under the State’s child welfare system — Relevant child or young person may consent to publication or broadcasting from 16 years of age onwards — Section 105 imposes a not insignificant but limited burden on the implied freedom — Purpose of s 105 of protecting privacy is legitimate — Burden on the freedom is justified — Section 105 not invalid for breach of the implied freedom COVID-19 — no discrimination in unvaccinated appellants having to appear by audio-visual link in circumstances where they had not sought exemption from policy, and manner of appearance made no difference in any event

CIVIL PROCEDURE –– application by beneficiaries to be joined as plaintiffs where trustee declines to continue to prosecute proceedings against beneficiary – whether special or exceptional circumstances exist – whether claim advanced against beneficiary has merit – where trustee neither consents nor opposes application but seeks indemnity for past and future costs backed by security – whether trustee should be made a defendant – application granted on condition that indemnity provided to trustee in relation to future costs

REAL PROPERTY – co-ownership – application for appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW) – where defendants oppose appointment of trustees on grounds of hardship or unfairness and also rely on promissory estoppel, alleged breach of fiduciary duty and alleged unconscionability – where land is owned by 13 co-owners as tenants in common and plaintiff holds a 1/56th share – where co-owners adopted a practice of occupying different areas of the land and independently improved those areas without any planning approvals – mere hardship or unfairness not a basis to refuse application – no other basis for refusal of s 66G order established – orders made appointing trustees for sale

JUDGMENTS AND ORDERS – Orders to give effect to reasons in principal judgment

CRIME – sentencing – child sex offences – persistent sexual abuse of a child – Crimes Act 1900 (NSW), s 66EA – offences in NSW and Qld – sexual touching and intercourse SENTENCING – appeal against sentence – objective seriousness – nine-year old victim – 40-year-old offender – victim was offender’s stepdaughter – five ingredient offences occurred over a week – serious breach of trust – sentencing judge found offending to be below mid-range, but above low range – no error SENTENCING – appeal against sentence – manifest excess – 35% discount for early plea and assistance to authorities – comparable cases – Burr v R [2020] NSWCCA 282; Eacott (a pseudonym) v R [2019] NSWCCA 158; Mills v R [2017] NSWCCA 87; GP (a pseudonym) v R [2021] NSWCCA 180, considered – starting-point beyond range SENTENCING – re-sentencing on appeal –reasonable prospects of rehabilitation – general deterrence less relevant with intellectually unsophisticated offender – discount assessed by sentencing judge applied

CORPORATIONS – Uniform Civil Procedure Rules 2005 (NSW) rr 7.1(2)(a) and 7.1(3) – Civil Procedure Act 2005 (NSW), s 14 – Application by a director to represent corporate entities – where his corporate entity has made significant claims of misleading and deceptive conduct based on oral conversations to which he was party – where issues raised are complex – where the evidence relied on is silent on the extent of his and his entities’ resources to be able to instruct lawyers – HELD – Leave refused

NOTICE OF MOTION – seeking leave to serve second expert report – expert currently practising medicine – expert speciality in endocrinology – two defence expert reports before the Court and one plaintiff expert report – s 5O of the Civil Liability Act 2002 (NSW) – importance of expert reports relating to liability in negligence where provision of professional services was undertaken in a manner widely accepted by peer professional opinion as competent professional practice – potential for second expert report to lead to reformulation of plaintiff’s case – risk of prejudice to defendant – possibility for trial judge to preclude second expert report from evidence at hearing – possibility for defendants to object to second expert report

CONTRACT — Construction of loan agreement — Where vendor provided vendor finance — Where the precise loaned sum was disputed by the parties — Whether there was an event of default upon the appointment of receivers and managers enlivening termination of the loan and requiring payment — Where there was event of default

COSTS – indemnity costs – long-running contest as to costs – costs order made in proceedings on the ordinary basis – leave granted to claim costs on the indemnity basis – whether the Court may consider relevant delinquency to ground an order for indemnity costs based on conduct occurring before the commencement of the proceedings. COSTS – the Chorley exception – solicitors successful in proceedings against a former client – costs order made in favour of the solicitors on the ordinary basis – solicitors seek recovery of professional costs and disbursements from the former client – solicitors had retained an incorporated legal practice to provide legal services to them in the proceedings and to act on their behalf –– whether the solicitors can recover the professional costs and disbursements incurred between the corporation and the solicitors, being the clients of the corporation. COSTS – proceedings between solicitors and a former client arising out of a dispute about costs – whether a specified gross sum costs order instead of assessed costs should be made under Civil Procedure Act 2005, s 98(4)(c) – whether the court has sufficient material available to it to make a specified gross sum costs order instead of assessed costs fairly between the parties with sufficient confidence to arrive at an appropriate sum – what is the appropriate quantum of any specified gross sum costs order.

PRIVATE INTERNATIONAL LAW – Foreign States Immunities Act 1985 (Cth) ss 3, 9, 14, 22 and 38 – sovereign immunity – exceptions – winding up proceedings brought against a foreign company registered under the Corporations Act 2001 (Cth), which is an instrumentality or agency of the Republic of Indonesia – separate entity – whether the proceeding concerns the winding up of a body corporate within the meaning of s 14(3)(a) – HELD – the proceeding is not a proceeding concerning the winding up a body corporate within the meaning of s 14(3)(a).

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 – Transfer of assets within internal reconstruction of corporate group.

CIVIL PROCEDURE — Representative proceedings — Settlement or discontinuance — Court approval — Where parties agreed to settle the representative proceedings — Where the litigation funder seeks to recover both a funders commission and “after the event” (“ATE”) insurance — Whether the settlement is fair and reasonable as a whole and, in particular, whether the deductions for the funders commission and ATE insurance are fair and reasonable.

APPEAL – Interlocutory application before Local Court – leave to appeal required s 40 Local Court Act 2007 – limitation on role of Court hearing application for leave to appeal – leave to appeal refused

EQUITY – rectification – discretionary trust deed – vesting date to be earlier of fixed date and period determined under royal lives clause – plaintiff seeks rectification in form of deletion of fixed date – corporate trustee – deed prepared by solicitor-director – whose intention is relevant – requirements for proof – laches – procedure

LAND LAW – strata title – owners corporation –maintenance and repair of common property – breach of obligation to maintain and repair common property – whether lost rental income was reasonably foreseeable consequence of breach – whether lot owners failed to mitigate loss by not renting out unit on lot

CONTRACT – where alleged oral agreement for loan of $267,000 by mother to adult son – where mother pleaded loan repayable after five years – where mother drew cheques on son’s bank account in favour of herself in purported payment of interest on loan and part repayment of principal – whether primary judge erred in not being persuaded any agreement existed – whether primary judge erred in finding that any loan if made out was repayable on demand so that limitation period commenced to run when moneys advanced and action statute-barred

CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt — Where a law firm and its client were engaged in a dispute concerning fees charged by its legal representatives — Where a settlement was reached as to the payment of undisputed counsel fees but not as to disputed solicitor fees — Where the amount paid under the settlement was in fact applied by the law firm to its disputed fees — Where the law firm sought a determination by a costs assessor and used that determination to found a creditor’s statutory demand issued to the client — Whether there is a genuine dispute about the existence or amount of debt — Whether the demand should be set aside for some other reason

CIVIL PROCEDURE – disclosure before evidence – where plaintiff’s case based on inferences – where documents sought to confirm that inferences arise – relevant information exclusively in possession of defendants – where second round of evidence in chief likely if disclosure not given before evidence – whether exceptional circumstances exist

HIGH RISK OFFENDER – preliminary hearing – application for Interim Supervision Order and for examination by court-appointed psychiatrists or psychologists – whether matters alleged in the supporting documentation would, if proved, justify the making of Extended Supervision Order – contention about conditions – schedule of movements – information relating to defendant’s financial affairs – disclosure of criminal history – access to the internet and other electronic communications – health care and treatment – Interim Supervision Order made with Schedule of Conditions

HIGH RISK OFFENDERS — Application for continuing detention and extended supervision orders and appointment of psychiatrists or psychologists — Crimes (High Risk Offenders) Act 2006 (NSW), s 15 — Preliminary hearing — Where defendant may be extradited to Queensland and detained in custody — Where no extradition application has been made — Whether threshold of “a high degree of probability” that an unacceptable risk of committing another serious offence if not kept in custody exists — Whether Court’s discretion not to make order should be exercised given the likely extradition — Court’s paramount consideration the safety of the community — Orders made

CRIMINAL PROCEDURE — Trial — draft legal directions to jury

CONTRACTS — deeds — delivery — whether deed delivered to other side unconditionally or in escrow — where plaintiff did not put an alternative case that if deed not delivered then it was effective as simple contract

CRIME – appeal – purported appeal against interlocutory orders of the Court of Criminal Appeal – where applicant filed 4,281 pages of submissions and referenced materials – where interlocutory offered limited the applicant in amount of material to be relied on for substantive appeal – no reason shown to vary orders

CRIME — appeals — appeal against sentence — federal offences — attempted exportation of regulated native specimens — possession of CITES-regulated specimens — manifest excess — sentence unreasonable or plainly unjust — resentenced

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Where leave is sought by a member and former director — Where the applicant does not reside in Australia or hold assets in Australia but another company offers an indemnity in his favour— Whether leave to bring derivative action should be granted — Whether the indemnity provided by the applicant is sufficient

PRACTICE AND PROCEDURE – Interlocutory injunction – interim relief – application to extend interlocutory injunction – prima facie case – balance of convenience – change in circumstances – where earlier proceedings found finance for $6 million likely to be approved imminently – where finance was not approved since the earlier proceedings – where reconsideration of the balance of convenience required PRACTICE AND PROCEDURE – Interlocutory injunction – interim relief – balance of convenience – change in circumstances – where loan documents provided for $4.9 million – where undertakings for payment into Court made – where assurances made as to friendly caveats PRACTICE AND PROCEDURE – Interlocutory injunction – principle in Inglis v Commonwealth – exception in Harvey v McWatters – power of judicial sale – whether as of right or discretionary – conflicting authority – not appropriate to decide conflicting lines of authority in expedited hearing for interlocutory relief in Duty List

COSTS – equitable remedies – mortgage wrongfully discharged – plaintiff obtains order to defendant to re-register new mortgage in the same form – plaintiff unsuccessful on some quantum issues – no judgment for mortgage debt necessary – quantum issues not “clearly dominant or severable” – costs of proceedings awarded to plaintiff COSTS – indemnity costs – contractual entitlement to costs – mortgage wrongfully discharged – order to defendant to re-register new mortgage in the same form – costs of obtaining order not costs incurred under original mortgage – indemnity costs claim not pleaded – costs awarded on ordinary basis

LEASES AND TENANCIES — Repairs, maintenance and alterations — Obligation to repair and maintain — Where expedited proceedings concern three year and one month lease of a residential penthouse — Where substantial parts of the plaintiff’s case no longer pressed at the hearing due to defendant’s undertakings — Where balance of the case concerned specific performance of landlord’s repair covenants in respect of internal lift maintenance, some lights, a pool heater, fridge, barbeque and panel door — Where no breaches established — Where damages would be for loss of amenity — Where damages would be an adequate remedy and specific performance would be refused

INSURANCE — Construction of a general liability policy — Where plaintiff is a subcontractor of a subcontractor of the named insured — Whether sub-subcontractors are insured under the policy — Whether plaintiff is an “insured” or “named insured” as defined in the policy for the purposes of an insuring clause — Whether plaintiff was a person to whom the named insured had assumed responsibility and therefore an “insured” — Whether plaintiff was the agent of a subcontractor and therefore a “named insured”— Where plaintiff not insured under the policy

CRIMINAL PROCEDURE – costs – application for certificate under Costs in Criminal Cases Act 1967 – successful appeal against conviction – where the Crown case critically dependent upon the credibility of Witness B – institution of proceedings unreasonable

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – leave sought pursuant to Felons (Civil Proceedings) Act 1981 (NSW)

CIVIL PROCEDURE – damages - personal injury – infant’s approval – disapproval of the proposed settlement

COSTS – where plaintiff granted leave to amend its Commercial List Statement – where plaintiff had circulated several proposed forms of Amended Commercial List Statement – whether plaintiff should pay costs of its successful application – whether the leave granted to file a further amendment a dispensation or indulgence – whether plaintiff should pay costs of defendant’s Notice of Motion seeking that the then current Summons and Commercial List Statement be struck out and orders as to discovery

LAND LAW – statutory modification of easements – where two rights of way granted in 1922 to provide access to public road – where character of land changed from rural land to suburbia – where dominant tenements are now a reserve owned by Council and subdivided lots – where pedestrian use continues – where obstacles on right of way and long period of non-use by motor vehicles and other modes of transportation – whether easement allows users to go to, from and across land – whether continued existence would impede reasonable user without securing practical benefit – whether easement abandoned – whether modification would cause substantial injury – modification application refused

CRIMINAL LAW – Accused charged with murder – Judge alone trial – Defence application to vacate trial date – Adjournment necessary to engage new counsel and to obtain report from forensic pathologist – Application to vacate granted

CONTRACT – performance bonds – deed of indemnity relating to issue of performance bonds – proper construction of provision concerning surplus bond moneys – whether funds paid by principal to builder pursuant to deed of settlement comprise surplus bond moneys – whether trust provision in deed of indemnity enlivened – whether trust provisions created a security interest for the purposes of the Personal Property Securities Act 2009 (Cth)

CIVIL PROCEDURE – final judgment delivered – application to reopen – plaintiff seeks to tender letter from solicitor of the plaintiff in underlying proceedings as to the claims made in those proceedings DECLARATIONS – declarations sought to give effect to reasons of the principal judgment

EVIDENCE — Tendency evidence — Multiple complainants — Significant probative value — Need for a sufficient link between distinct events — No need for link to be peculiar — Evidence of tendency of accused to adopt particular kind of persistence in the pursuit of his sexual interests — Whether relevant evidence is proposed tendency evidence upon which primary judge ruled or evidence as actually admitted CRIME — Appeals — Appeal against conviction — Unreasonable verdict — No issue of principle CRIME — Appeals — Appeal against sentence — Failing to make any proper assessment of the objective seriousness of the offending

CRIME – appeal against sentence – robbery whilst armed – robbery upon service station attendant – question of misapplication of guideline judgment – question of the parity principle where the co-offender was sentence in the Children’s Court – question of manifest excess – question of the distinction between aggravating factors and the assessment of objective gravity

CIVIL PROCEDURE – representation – application for referral for pro bono legal assistance

CIVIL PROCEDURE – hearings – adjournment – application dismissed

LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where no dispute in relation to sale — Whether the plaintiff or defendant’s trustees should be appointed — Where both sets of trustees had similar experience — Where parties diverge on who should bear the costs of the proceedings — Where plaintiff foreshadowed an amended summons seeking costs of repair and occupation fee

COSTS – Civil Procedure Act 2005 (NSW) s 98(4)(c) – application by defendants for gross sum costs orders – observations with respect to applications for gross sum costs orders – broad-brush approach can be adopted, but requirement for applicants to place before the Court sufficient material to enable a fair and reasonable assessment – where applicants seek gross sum costs orders for dismissed proceedings and also gross sum costs orders for the application itself – where applicants do not proffer any discount but respondent obtains discounts of 30 or 40 per cent – where applicants do not place the Court in a position to make a fair and reasonable assessment for the costs of the application – HELD – gross sum costs orders made in respect of the dismissed proceedings, but with appropriate discounts – no order as to costs with respect to the application

CRIME — Serious crime prevention orders — Application — Consent orders made — where defendant is member of Comanchero Outlaw Motorcycle Gang — Crimes (Serious Crime Prevention Orders) Act 2016 (NSW), s 5 — Whether defendant has been involved in serious crime related activity for which he has not been convicted of serious criminal offence — Whether defendant participated in criminal group within meaning of Crimes Act 1900 (NSW), s 93T — Whether there is real or significant risk that the defendant will be involved in serious crime related activity — Alleged risk of reprisal attack — Whether there are reasonable grounds to believe order would protect public by preventing, restricting or disrupting involvement of defendant in in serious crime related activity — Order granted for term of 12 months

COSTS — partnership proceedings – departure from usual rule that costs follow the event – costs of Inquiry commissioned to determine partners’ entitlement to misappropriated partnership funds – costs of related proceedings brought by certain partners to establish entitlement to misappropriated partnership funds – departure from usual rule in Inquiry proceedings on the basis that no party enjoyed “success” therein – departure from usual rule in related proceedings given limited success on establishing entitlement to misappropriated partnership funds – no general issue of principle

RESTRAINT OF TRADE – franchise agreement – swimming pool supply and installation business- post-contractual restraint – claimed injunction against carrying on business similar to franchised business – reasonableness – whether franchisor entitled to enforce restraint in interest of incoming franchisee – whether franchisor entitled to benefit from franchisee’s accumulated skill and experience – goodwill – claimed injunction against soliciting customers with uncompleted contracts – reasonableness – hardship – injunctions refused CONTRACT – construction – franchise agreement – restraint of trade – deed poll executed by franchisee – whether enforceable by supplier of franchised goods – reasonableness