Cases and authorities

PRACTICE AND PROCEDURE - Application for summary dismissal of proceedings – Where the proceedings brought by the plaintiff sought leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal – Where such an appeal could be brought only by leave on a question of law – No questions of law articulated – Proceedings dismissed

CIVIL PROCEDURE — Separate determination of questions — Orders following determination — Orders dismissing proceedings and as to costs JUDGMENTS AND ORDERS — Restraint against commencing further proceedings — Reserving liberty to apply for an order that a party be restrained from commencing further proceedings until that party has paid the costs of these proceedings

CIVIL PROCEDURE — representation — application for pro bono referral — whether referral in interests of administration justice

EVIDENCE – character evidence – Evidence Act s 110 – where accused sought to raise lack of convictions for four types of offences as going to good character “in a particular respect” – whether convictions a particular respect of character – extent to which character divisible – relevance – consideration of R v AKB (No. 7) – where Crown had evidence in rebuttal beyond criminal record – limited direction – application withdrawn EVIDENCE – words and phrases – Evidence Act s 110 – “good character in a particular respect”

DEFAMATION – leave to file Amended Statement of Claim – objections on basis of lack of substantial difference in some imputations – use of term “un-Australian” – some imputations not capable of arising from alleged publications – qualified leave to amend granted CIVIL PROCEDURE – interrogatories – meaning of “necessary”

ADOPTION – interim orders under s 84 of the Adoption Act 2000 (NSW) – whether such orders can only be made when adoption application pending – whether such orders can be made when an adoption order is contemplated but not yet made – whether necessary to exercise the parens patriae jurisdiction

CRIMINAL LAW – juries – application for discharge of individual juror and remaining jury – Jury Act 1977 (NSW), ss 53B, 53C – alleged misconduct – individual juror discharged – remaining jury discharged – stay ordered

EVIDENCE – Onus of proof – Claims for recovery of debt and equitable compensation for misappropriation EQUITY – Equitable remedies – Equitable compensation – Misappropriation by fiduciary LIMITATION OF ACTIONS – Debt – Payable otherwise than on demand LIMITATION OF ACTIONS – Equity – Application of limitation periods by analogy – Fraudulent concealment – Discovery with reasonable diligence

CRIME — Murder — Constructive murder — Attempted robbery whilst armed with a dangerous weapon — Found guilty by jury SENTENCING — Aggravating factors — Home of victim or any other person — Two offenders in company — Three victims – Weapon a loaded pistol— Precise role of offenders in planning and premeditation unknown and found to be neither aggravating nor mitigating – Attempted robbery aggravated by gunshot wounding of victim SENTENCING — Relevant factors on sentence — Objective seriousness — Subjective case of offender — Disadvantaged childhood and victim of sexual abuse — Impacts of COVID-19 on conditions in custody SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences — Accumulation, concurrency, and totality — Degree of concurrency and accumulation appropriate for constructive murder and robbery whilst armed with a dangerous weapon — Substantial degree of concurrency appropriate

APPEALS — Leave to appeal — Security for costs — Applicant conceded unable to pay costs of other side if ordered to do so — No issue of principle — No miscarriage in exercise of discretion

CRIMINAL LAW – Appeal – Evidence – Expert evidence – Where the applicant was convicted of multiple counts of dealing in identification information with the intention of facilitating the dishonest obtaining of a financial advantage by deception – Where Crown case relied on circumstantial evidence including evidence of telephone intercepts – Where interpreter gave evidence of having translated conversations from Hindi into English – One of the parties to those conversations was described as a “male voice” – Crown case was that this was the voice of the applicant – Where interpreter gave evidence without objection that the “male voice” in each conversation was the same voice – Whether that evidence was admissible – Whether the jury were in the same position as interpreter to reach that conclusion – Whether the Crown was under an obligation to play each of the conversations in Hindi to the jury absent any request by trial counsel for the applicant to do so – Consideration of principles governing the Crown’s decision to call witnesses in a criminal trial – Where the playing of the entirety of the calls would have been a waste of valuable Court time – Where applicant required an extension of time in which to bring the application for leave to appeal against his convictions – No merit in either ground of appeal – Extension of time granted – Appeal dismissed

CRIMINAL LAW – Offences – Sentence – Appeal – Whether sentence manifestly excessive – Cause to take intoxicating substance to enable the commission of an indictable offence – Sexual intercourse without consent – Intentionally recording intimate images without consent – No specific error asserted – Where manifest excess was said to be reflected in the application of the discount to reflect the applicant’s pleas of guilty and sentences imposed in other cases of similar offending – No error in the application of the discount – Where it was expressly conceded that the objective and subjective circumstances in the cases relied upon for comparative purposes were distinguishable from the present case on various bases – Serious offending – Findings of sentencing judge unchallenged – Leave to appeal granted – Appeal dismissed

CORPORATIONS — Winding up — Liquidators — Remuneration — Where liquidators seek orders relating to the distribution of a surplus in respect of the liquidation and the payment of their remuneration

CORPORATIONS — Debentures, charges and mortgages — Registration — Extension of time for registration — Application under s 588FM of the Corporations Act 2001(Cth) for an extension of time to lodge a registration under the Personal Property Securities Act 2009 (Cth) for the purposes of s 588FL(2)(b)(iv) of the Corporations Act.

ADMINISTRATIVE LAW – existence of legislative authority for conduct by Secretary of Department – plaintiff not employee of defendant – legislative authority confined to employees – certiorari issued CONTRACT – privity of contract – powers under contract – different entity granted contractual power – no authority under contract TORTS – economic torts – intentional inducing of breach of contract – remedies

CRIME – bail – detention application – application made following pleas of guilty and before sentencing – consideration of application of s 22B of the Bail Act 2013 (NSW) to juvenile offender being dealt with at law – high threshold as to whether the offender will inevitably be sentenced to full-time imprisonment – where the objective seriousness of the offending is extremely grave – where there are strong subjective factors in mitigation – where youth and achievement of rehabilitation would be prominent features in sentencing – s 22B threshold not satisfied – where offender would also satisfy special circumstances threshold due to family circumstances – where no unacceptable risks if variation made – bail continued

CIVIL PROCEDURE – settlement approval – where settlement approved but plaintiff yet to receive funds directed to NSW Trustee & Guardian – further order made – funds to be held by NSW Trustee & Guardian on trust for plaintiff

REAL PROPERTY – caveats – withdrawal of caveats – application pursuant to section 74MA of the Real Property Act 1900 (NSW) – where caveats preventing completion of a specifically enforceable contract for the sale of land – where the purchase price for the land is well below market value – where completion of the contract at the price listed would prejudice caveators’ claimed charges over the vendor’s land – whether there is a serious question to be tried with respect to caveators’ claimed interests – whether balance of convenience favours continuation of the caveats – whether withdrawal of caveats should occur subject to a condition that the purchaser pay into Court the difference between the contract price and the market value of the property – held that caveats should be withdrawn subject to such a condition

NEGLIGENCE – medical negligence – examination of plaintiff by occupational therapist where plaintiff resides overseas – whether appropriate for examination by additional specialist in Canada or by current specialist by audio visual link from New South Wales

CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether applicant had actual knowledge of disability – Sentencing judge’s finding of actual knowledge, largely based on own observations of victim, was open CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether victim’s age an aggravating factor – Relative age of victim to offender relevant to objective seriousness where it increases victim’s vulnerability as exploited by offender CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether direction by applicant to victim not to tell anyone what happened constituted a threat and therefore an aggravating factor – No requirement that a threat must contain express consequences for non-compliance – Nature of statement informed by context in which it was said – In context of criminal conduct, statement carried implication of adverse consequences for non-compliance – Relevant direction held to be a threat and therefore an aggravating factor CRIME – Appeals – Appeal against sentence – Where no express finding made as to prospects of rehabilitation – Prospects of rehabilitation and risk of re-offending are inter-related factors – No requirement that each is referred to in express terms if reasons as a whole show they have been considered

CRIME – Appeals – Appeal against sentence – application of sentencing discount for the utilitarian value of a guilty plea – where first day of trial aborted due to non-attendance of the offender – whether 10% discount available upon guilty plea within 14 days of the new first day of the trial – appeal dismissed

COSTS — Party/Party — applications for gross sum costs order — application for indemnity costs – where claims summarily dismissed — applications granted

TORTS – Private nuisance – Interference with use and enjoyment of land – Where very large boulder sits naturally atop cliff, two-thirds on private residential land and one-third on council land, but large portion of boulder overhangs the cliff face, suspended above neighbouring residence below – Where geotechnical report advises boulder will fall at an entirely unpredictable point in time, with catastrophic consequences of damage to property and life in residence below – Where owner of land below boulder advised by local council to vacate residence due to risk – Where owner of land below seeks mandatory injunction that owners of land on which boulder sits abate the nuisance by removing and/or securing boulder, as well as damages for losses associated with vacating residence TORTS – Private nuisance – Interference with use and enjoyment of land – Basis for liability – Nonfeasance – Whether boulder constitutes nuisance or only potentiality of nuisance – Despite not having fallen, boulder poses clear and present danger so threatening neighbouring property and residents as to render it uninhabitable from perspective of reasonable land-owner – Sufficient impact upon enjoyment of plaintiff’s property to found claim in damages if defendants are responsible at law for the nuisance TORTS – Private nuisance – Scope of duty – Landowner in occupation who is aware (or ought to be) of hazardous condition arising naturally on their land which endangers neighbouring land or people on it has “measured duty of care” to take such steps as are reasonable in all the circumstances to prevent or minimise risk of injury or damage to neighbour, and no more than that – Magnitude of risk relevant but emphasis on ease and expense of abating risk, and ability of particular defendant to do so – Holding that in all of the circumstances, the scope of the defendants’ duty does not extend to require them to undertake works to abate the nuisance – No breach of duty and no liability for damages – Declaration that plaintiff is entitled to access defendants’ land to undertake reasonable works for abatement – Summons otherwise dismissed EQUITY – Equitable remedies – Injunctions – Mandatory injunctions – Quia timet injunctions – Injunctive relief sought exceeds that to which plaintiff is legally entitled because in all of circumstances, scope of defendants’ duty does not oblige them to abate the nuisance alone – Summons dismissed

BUILDING AND CONSTRUCTION – residential building contract – where general conditions of contract provided for making by builder of monthly payment claims – where special conditions appointed architect to administer contract on owner’s behalf, including by assessing and certifying builder’s payment claims – whether owner’s obligation to pay and builder’s entitlement to payment only in respect of amounts certified as due and payable by architect

PRACTICE AND PROCEDURE – application to set aside or stay subpoena – whether subpoena lacks legitimate forensic purpose – whether documents sought to be obtained “apparently relevant”

CIVIL PROCEDURE – application for giving evidence by audio visual link – application made on the first day of the hearing – principal witness for the defendant lives in Australia and was scheduled to give evidence in Australia six months before the hearing – the defendant organises for the witness to conduct an overseas trip for business purposes, either knowing that it will conflict with his requirement to give evidence, or ignoring the fact that such a requirement exists – the defendant then applies for an AVL hearing when the witness is overseas, attempting to present the Court with a fait accompli before it exercises its discretion – whether the AVL application should be granted in the circumstances – consideration of competing factors.

COSTS – indemnity costs – defendants assert right to privilege against self-incrimination and exposure to civil penalty – defendants put on bare Commercial List Response – defendants abandon claims to privilege two weeks before trial – hearing vacated – defendants put on defences that they could not have believed to be true – defendants serve evidence late – defendants provide discovery late, being 285,000 documents two months before new trial – gratuitous suggestions of professional misconduct by plaintiff's solicitors – defendants conduct proceedings in unnecessarily difficult and protracted fashion – whether defendants’ conduct of proceedings warrants order for indemnity costs – Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354 applied – indemnity costs ordered on grounds of delinquency. LEGAL PRACTITIONERS – defendants’ written submissions assert element of plaintiff’s case so without merit that defendants will seek a personal costs order against plaintiff’s solicitors if not withdrawn – explanation sought from defendants’ senior counsel.

CIVIL PROCEDURE — Hearings — Adjournment — Relevant factors — Prospects of refinancing insufficient CIVIL PROCEDURE — Default judgment — Default in filing defence — Defence struck out — Whether requirements of Part 16 of the UCPR have been complied with

CORPORATIONS – Director’s fiduciary duties – a Chinese corporation (China Kingho) owned and controlled by Mr Huo agreed to employ the defendant as investment director (or chief investment officer), appoint him as managing director of its Australian subsidiary (Mulberry) and pay him in US Dollars. China Kingho could not pay him in US Dollars due to Chinese government regulations, so a Hong Kong subsidiary (Northshore) entered into a consultancy agreement with the director’s personal entity under which it paid his entity the amount which the holding company was to pay him. Some months after the defendant’s employment commenced, at Mr Huo’s direction, the shares in the Hong Kong subsidiary were transferred to a company the shares of which were held by his daughter, who was also appointed a director together with his wife. Northshore continued to pay the defendant. Northshore alleged that after the change in shareholding the defendant breach his fiduciary duty by continuing the arrangement because there was a substantial possibility that his personal interests were in conflict with those of Northshore and it sued the defendant for equitable compensation – HELD – the defendant did not breach any fiduciary duty – additionally, what he did was permissible under Northshore’s articles of association – additionally, all the shareholders (formal and de facto) acquiesced in Northshore continuing to pay the defendant CORPORATIONS – Director’s fiduciary duties – the defendant also procured the employment of his wife by Mulberry and the payment to her of a bonus. The defendant arranged for his salary to be reduced by an amount equivalent to the salary paid to his wife – HELD – the defendant breached his fiduciary duty in procuring the employment of his wife but Northshore suffered no harm because of the reduction in his salary and it was not contested that she performed services for the benefit of Northshore – HELD – the defendant breached his fiduciary duty to Mulberry by arranging the payment of the bonus and he is liable to compensate Mulberry accordingly.

PARTNERSHIPS – partnership accounts – orders made referring the taking of accounts of a partnership project – adoption of referee report – whether referee made an error of law – error of fact – weight of the referee’s report – undesirability of further debate – formal procedure of taking an account not followed by the referee

CRIME — appeals — appeal against conviction — miscarriage of justice – unreasonable verdicts – new evidence – no error or miscarriage of justice shown – verdict not unreasonable – appeal against sentence – special circumstances – whether error in consideration of appellant’s subjective circumstances – manifest excess – no error shown – sentence not excessive

REAL PROPERTY — Plaintiff and husband former registered proprietors of land — Almost 19 years later the plaintiff lodges caveat claiming that the defendant fraudulently transferred the land from the plaintiff consequent upon entry into various Deeds — Defendant serves lapsing notice — Caveat lapses before orders made ex parte extending operation of caveat — Plaintiff subsequently seeks order permitting the lodgement of another caveat ALTERNATIVE DISPUTE RESOLUTION — Plaintiff seeks orders directing non-party ‘defendants’ to attend a ‘Jewish Court of Law Arbitration’

CIVIL LAW – ex parte application for orders made under s 33 of the Evidence on Commission Act 1995 (NSW) – whether evidence is to be obtained for the purposes of proceedings which have been instituted before a requesting court – where request made for the purposes of court proceedings brought in the District Court of Krakow

REAL PROPERTY — Possession of land — Application to stay execution of writ for possession — hearsay evidence of possible funding to pay judgment debt — Registered proprietors being two of three applicants are both bankrupt — Payment of judgment debt would not entitle any of applicants to possession of property which had vested in the respective trustees in bankruptcy — No evidence of extent of indebtedness of bankrupts’ estates — No evidence trustees in bankruptcy aware of application or had given or promised to give any licence to applicants to remain in property — Application based on asserted health and hardship grounds — Attempts to secure alternative accommodation —Application on a Friday dismissed in context where mortgagee would request Sheriff not to act on writ until Monday afternoon PRACTICE AND PROCEDURE — Initial ex parte application — Undertaking as to damages proffered by applicant without disclosure that he and another applicant were undischarged bankrupts — Material nondisclosure of a matter impacting upon decision to make stay ex parte prior to urgent contested stay application — Fact of bankruptcy ought to have been disclosed

CIVIL LAW – tort – injurious falsehood – where plaintiff’s property open for inspection – where defendant’s publication alleges defects in property – where publication provided to prospective purchasers – interlocutory injunction sought by plaintiff

REAL PROPERTY — Application by owner of one-third share as tenant in common for possession of land and leave to issue but stay for a period a writ of execution — Motion in substance an application for summary judgment for part of final relief sought in statement of claim — Motion dismissed CIVIL PROCEDURE — Application for summary judgment — A party who seeks judgment for possession of property should ordinarily provide the Court as part of the evidence in support of the application with a copy of a title search for the property at least so the Court is aware of potentially any other relevant interests that are recorded or noted on the register REAL PROPERTY — Co-ownership — effect of an order under s 66G Conveyancing Act 1919 (NSW) on the rights of a co-owner SUCCESSION — Probate — Failure by executrix to administer estate for 5 years — Failure of executrix to lodge transmission application in respect of the deceased’s two-third’s share as tenant in common — Executrix alleges plaintiff has inhibited administration PRACTICE — Estates — Duty of the parties involving contested applications before the Court for relief to assist the Court by providing a copy of the Grant of Probate or Letters of Administration, inventory of property and details of administration PRACTICE — Duty of the parties to assist the Court to further the overriding purpose of just, quick and cheap resolution of real issues in the proceedings — Parties ought to reflect upon real issues and benefits to be obtained from facilitating the overriding purpose so that ideally the assistance given to the Court, pursuant to the duty to assist, is given willingly not begrudgingly — Parties directed to consult with view to seeking if agreement can be reached to revoke grant and permit appointment of independent administrator

CRIMINAL LAW – Offences – Sentence –Intentionally advocating a terrorist act – Application of Commonwealth sentencing principles – Serious offending constituting course of conduct over one year – Offender ideologically motivated by right-wing extremism – Offender 21 years old at time of offending – No previous criminal history – Offending inextricably linked to deprived and unsatisfactory upbringing – Offender experiencing most restrictive and isolating form of custody during Covid-19 pandemic – No evidence of renunciation or remorse – Strong inference available of regret for offending – Guarded prospects of rehabilitation

LIMITATION OF ACTION – suspension of limitation period – mental impairment – whether plaintiff incapable of or substantially impeded in managing her affairs in relation to initiating personal injury proceedings – disability not established

EQUITY — Trusts and trustees — Judicial advice under s 63 of the Trustee Act 1925 (NSW) — Whether trustee may insert amendments to trust deed of superannuation fund to give power to charge fee — Where capital reserve sought to enable trustee to meet potential liabilities from recent changes to regulatory environment

COSTS – unsuccessful respondent seeks costs order in its favour or no order as to costs – whether basis to displace UCPR r 42.1 – court did not determine all points raised by successful appellant – some points not raised at first instance – where respondent’s conduct cause of entire litigation – no basis to displace usual order as to costs

CIVIL PROCEDURE – parties – vexatious litigants – fifth application to set aside vexatious proceedings order – application dismissed CONSTITUTIONAL LAW – Judiciary Act 1903 (Cth) s 78B – whether proceedings involve a matter arising under the Constitution or involving its interpretation – where mere assertion of invalidity of Vexatious Proceedings Act 2008 (NSW) by reason of s 109 of the Constitution – whether frivolous or unarguable contention – no obligation to stay proceedings until s 78B notices given ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW), s 34B – original application before Tribunal involved disciplinary proceedings – whether original application involved federal jurisdiction – whether Tribunal’s decision stayed by reason of subsequent proceedings in Federal Court between applicant and an insurer

JUDGMENTS AND ORDERS – Court of Appeal – bias – apprehended bias on the ground of prejudgment – where members of the Court sat on previous unsuccessful applications by the applicant

CRIME — Appeals — Appeal against conviction — Incompetence of counsel – Miscarriage of justice – Unreasonable verdict – Whether evidence established that the offences occurred within the date range alleged by the Crown – Whether jury must have entertained a doubt where evidence was elicited only after witness was shown his prior statement following a grant of leave under s 38 – Whether evidence on particular grounds was incapable of being reconciled – Whether evidence was insufficiently particular

APPEALS – Procedure – Leave to appeal required – Local Court committal proceedings – Error of law in failing to ascertain whether accused person pleaded guilty before committal – Error conceded by Crown – Remittal not merely formal – Proceedings remitted to Local Court for committal

HIGH RISK OFFENDER – Extended supervision order – Unacceptable risk of committing a serious offence – Determination of risk – Whether satisfied offender poses unacceptable risk of committing a serious offence in the circumstances – Term of extended supervision order – Appropriate conditions to be imposed in respect of the extended supervision order

LEGAL PRACTITIONERS — Supervisory jurisdiction — Officers of the court — Jurisdiction in relation to solicitor’s charges — Where solicitor charged mortgagee client exorbitantly and was paid fees from proceeds of sale of mortgaged property — Inherent jurisdiction enlivened to regulate solicitor’s charges and require solicitor to pay fixed sum to mortgagor

EQUITY — Unconscionable conduct — Special disability or disadvantage — Whether unconscientious advantage taken — Where brother provided funds to purchase and mortgage of property and wanted to be on title and sister purchased property in her own name — Whether sister’s entry into deed of transfer and declaration of trust in favour of brother should be declared void ab initio — Whether sister suffered special disability by way of financial hardship and ill-health — Whether brother aware of special disability and took unconscientious advantage

COSTS — Party/Party — Application for costs on an indemnity basis — Whether indemnity costs should be ordered — No basis for finding the motion had no prospects of success COSTS — Application for a gross sum costs order — Whether a gross sum costs order should be made — Issue whether costs assessment would be delayed — No basis for such a delay

CIVIL PROCEDURE – Possession List – deed entered into by plaintiffs and third defendant transferring half interest to plaintiffs – no challenge to validity of deed until proceedings commenced 8 years later – first defendant wife of third defendant and occupier of property – where no orders sought against third defendant - third defendant died after proceedings commenced – first defendant sought to be appointed to represent deceased’s estate – rr 7.8., 7.9, 7.10 Uniform Civil Procedure Rules – where third defendant was subject to guardianship and financial management orders in favour of Public Guardian and NSW Trustee and Guardian – where Court had been informed there was to be contested application for letters of administration – inappropriate to appoint first defendant as representative of the estate until probate proceedings resolved - where challenge to deed unrelated to possession proceedings – further delay of possession proceedings not consistent with s 56 Civil Procedure Act

INSURANCE – property insurance – home and contents – where claim by policyholder made following break-in at home – where drafting in policy used the word “cover” throughout – whether cause of action for damages arose at the time of property damage or upon determination of claim – whether claim against policy barred by Limitation Act 1969 (NSW), s 14 – whether “cover” where used in policy interchangeable with “indemnify”