Cases and authorities

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Proceedings for breach — Where the plaintiff owners corporation seeks a range of relief relating to allegedly combustible cladding on a residential unit block — Where the parties seek the determination of several separate questions — Whether the cladding complied with the Building Code of Australia with respect to combustibility — Whether any statutory warranties were breached in relation to the cladding — Whether the plaintiff suffered assessable loss recoverable against the defendants.

SUCCESSION — Contested probate — Testamentary capacity — Lack of knowledge and approval — Utility of retrospective diagnosis in absence of having examined testatrix — No issues of principle

CIVIL PROCEDURE – transfer of proceedings from District Court to Supreme Court – Civil Procedure Act 2005 (NSW) s 140 – personal injury proceedings – where plaintiff contends that damages awarded may exceed jurisdictional limit of the District Court – transfer order made

CONTRACTS – contract for the sale of land – notice to complete – relief against forfeiture – specific performance – where purchaser failed to complete by time specified in notice to complete – where vendors subsequently terminated contract – where purchaser seeks relief against forfeiture – not shown that vendors caused or contributed to purchaser’s breach of contract – held that vendors’ exercise of legal right to terminate the contract was not unconscientious – specific performance accordingly not available CONTRACTS – deposit – contract for the sale of land – where vendors claim to have forfeited purchaser’s deposit by reason of purchaser’s breach of contract – where purchaser seeks order for return of deposit pursuant to Conveyancing Act 1919 (NSW) s 55(2A) – held not unjust or inequitable to allow vendors to forfeit the deposit in accordance with the terms of the contract

LAND LAW — Torrens title — Exceptions to indefeasibility — Unregistered tenancy — Whether s 42(1)(d) of the Real Property Act 1900 (NSW) protects the interest of a tenant in possession under an unregistered tenancy exceeding three years — Whether registered interest of mortgagee prevails over unregistered interests of tenants in possession LAND LAW — Torrens title — Exceptions to indefeasibility — Fraud — Whether taking an assignment of mortgage with alleged knowledge of a tenant’s unregistered interest but refusing to be bound constitutes statutory fraud LAND LAW — Torrens title — Unregistered interests — Existence of unregistered interests — Whether second to fifth defendants have an equitable interest commensurate with the availability of specific performance where purchase price has been paid

CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — Local Court to Supreme Court — Complex legal issues to be determined — Monetary claim exceeds jurisdictional limit

CRIMINAL PROCEDURE – trial – judge alone - murder – new evidence – bone fragments found – bone fragments taken to police – adjournment

CIVIL PROCEDURE – Removal of tutor from proceedings – Settlement approved – No question of principle

CONTRACT –– defendants’ application for declaration that a binding agreement was entered into settling the proceedings and orders for specific performance of alleged agreement – where terms of alleged agreement were contained in defendants’ solicitor’s letter, to which plaintiffs’ solicitor replied accepting “the proposed basis for settlement” and stating “I will commence drafting a deed” – whether previous correspondence between parties’ solicitors outlining proposals for “settlement structure” included a deed of settlement - where alleged agreement did not address terms that parties continued to negotiate in without prejudice correspondence and draft deeds exchanged after the alleged agreement was entered into – held that the parties did not enter into a binding settlement agreement – application dismissed

ADMINISTRATIVE LAW – Insurance claim for personal injury – Reduction in damages – Pre-existing impairment – Appeal against a Medical Assessment Certificate – Jurisdictional error – Dismissed

CRIME — bail — detention application — application made following conviction and before sentencing — consideration of section 22B of the Bail Act 2013 — whether the accused person will be sentenced to imprisonment to be served by full-time detention — standard to be applied

CIVIL PROCEDURE — Discovery — Practice Note SC Eq 11 — Exceptional circumstances warranting disclosure before evidence exchanged

COSTS – estate proceedings – discontinued family provision claim – executor entitled to costs against plaintiff and indemnity out of the estate – successful application for appointment of new trustee of testamentary trust for benefit of plaintiff – plaintiff entitled to costs – trustee’s right of indemnity out of the estate – failure to obtain judicial advice – indemnity refused

INSURANCE – procedure – civil – whether leave should be granted to proceed against the insurer pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) – whether arguable case that the relevant policy would respond to a claim made against it by the certifier CORPORATIONS – procedure – civil – whether leave should be granted to proceed against the certifier in liquidation pursuant to s 471B of the Corporations Act 2001 (Cth) – where liquidator neither consents to nor opposes leave being granted

PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Enforcement of foreign judgment – Enforcement at Common Law – People’s Republic of China – People’s Court – Bao v Qu; Tian (No 2) [2020] NSWSC 588 – Whether foreign judgment was obtained by fraud – Judgment enforced

ADMINISTRATIVE LAW – Judicial Review – Motor Accidents Compensation Act – Treatment dispute – Damages for future care and domestic assistance – Whether Certificate is conclusive evidence of the matters certified within it? – Whether the first defendant was totally or partially incapacitated? – Whether the Tribunal provided adequate reasons? – Decision set aside

BUILDING AND CONSTRUCTION — Contract — Damages — Defects — Where plaintiff homeowners initially contracted with the defendant builder for the construction of a residential home — Where parties entered into a second agreement by which the plaintiffs took responsibility for the payment of subcontractors and materials, and the defendants undertook to carry out all the work reasonably necessary to manage and supervise the completion of the works — Where the second agreement also included a mutual release — Where plaintiff alleges there are defects with the construction of the home —Whether defects arose from work done prior to or after the second agreement — Whether defects arising from work done after the second agreement resulted from a failure by the defendant to carry out all the work reasonably necessary to manage and supervise the completion of the works — Whether any statutory warranties under the Home Building Act 1989 (NSW) were breached by the defendants

COSTS — Security for costs — Relevant factors — Whether the plaintiff’s claim is properly classified as defensive — Appropriate method for quantification — Broad-brush approach

HIGH RISK OFFENDERS – extended supervision order – application to revoke - s 13(1) Crimes (High Risk Offenders Act 2006 (NSW) – index offence of sexual intercourse with child under 10 – whether circumstances have changed sufficiently to render order unnecessary – onus on applicant – standard of proof under s 13(1B) – balance of probabilities insufficient – assessment of circumstances – psychiatric evidence – disagreement in relation to applicant’s paedophilia diagnosis – numerous breaches of ESO by applicant including consumption of illicit drugs – dynamic risk factors including substance abuse and sexual preoccupation – problematic approach taken by applicant to his sexual and other behaviour – Court satisfied to high degree of probability that applicant continues to pose unacceptable risk of committing serious sex offence – application dismissed – variation appropriate – conditions varied

Criminal law – Sentence – Murder committed at the front door of the victim’s premises in the context of a long history of domestic violence – Where the offender intended to kill the victim – Use of two separate weapons – Offending in breach of an Apprehended Domestic Violence Order put in place for the protection of the victim – Where offender’s criminal history included previous domestic violence offending – Offending above the mid-range of objective seriousness – Offender’s background supporting a slight reduction in moral culpability – Plea of guilty entitling the offender to a discount of 25% - Subjective case otherwise limited – Need for general and personal deterrence and denunciation Criminal Law – Offending committed in breach of Apprehended Domestic Violence Order – Observations as to the nature of such orders and the necessity for compliance with their terms – Breaches of such orders to be treated seriously by the Courts – Breach in the present case to be given full weight as a circumstance of aggravation

CIVIL PROCEDURE – Court of Appeal – show cause hearing – where consistent failure to comply with directions for filing and service of submissions – where reasons given for failure include pending application for legal aid and attempts to obtain legal representation – where existing notice of appeal deficient – appellant given final opportunity to file submissions and amended notice of appeal

CIVIL PROCEDURE — appeal — where primary judge summarily dismissed proceedings for defamation — where no alleged defamatory publication identified in statement of claim — where no error identified in primary judge’s reasons

CRIME – appeals – appeal against conviction – sexual offences committed on six-year-old boy in neighbour’s house – defects in complainant’s identification (or recognition) evidence of perpetrator – certain recollections contradicted by other evidence – risk of suggestion and displacement – where witnesses changed evidence after communicating with each other – jury ought to have had a reasonable doubt as to whether the applicant was the perpetrator – appeal allowed – convictions quashed – acquittal

CRIME – appeals – appeal against sentence – spree of dangerous driving giving rise to seven offences – where four children died, one injured seriously, two injured – whether ADHD causally linked to commission of offences – whether sentence manifestly excessive – no truly comparable case – indicative sentences on manslaughter counts too high – aggregate sentence too high – appeal allowed – re-sentence CRIME – appeals – appeal against sentence – totality principle – whether sentence “crushing” – approach where one criminal act but multiple victims CRIME – manslaughter – use of a motor vehicle – species of involuntary manslaughter in driving cases

HIGH RISK OFFENDER – Extended Supervision Order – No point of principle

SUCCESSION – Family Provision – Claim by Plaintiff as a person with whom the deceased was living in a de facto relationship at the time of the deceased’s death – Dispute as to this ground of eligibility –Question whether the de facto relationship had ended and, if so, when – No dispute that the Plaintiff was a member of the household of which the deceased was a member and that she was, at that time, partly dependent upon him – No dispute that having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application – On either basis of eligibility, no dispute that at the time when the Court is considering the application, adequate provision for the proper maintenance, education, or advancement in life of the Plaintiff has not been made by the Will of the deceased – Nature and quantum of the provision to be made for the Plaintiff

CIVIL PROCEDURE – Court of Appeal – show cause hearing – where consistent failure to comply with directions for filing and service of submissions – where appellant not prepared to prosecute appeal in timely manner or file submissions within reasonable period – proceedings dismissed for want of due despatch

CRIME – Appeal and review – Appeal from Local Court to Supreme Court – where plaintiff convicted and sentenced for two counts of serious cruelty to a dog in the Local Court – where plaintiff sentenced to a term of imprisonment – where Magistrate previously refused to grant stay of execution of sentence – whether stay of execution of plaintiff’s sentence in Local Court should be granted pending determination of Supreme Court appeal CRIME – Appeal and review – Appeal from Local Court to Supreme Court – where plaintiff filed summons appealing conviction in Local Court – where plaintiff’s summons did not seek leave to appeal – where application for stay of execution of sentence before Duty Judge – for purposes of s 63(2)(b) Crimes (Appeal and Review) Act 2001 (NSW), what is required to determine whether the plaintiff’s appeal is “the subject of an application for leave” – whether Court must determine if grant of leave to appeal will be required

COSTS – Civil Procedure Act 2005 (NSW) s 98(4)(c) – gross sum costs order in first instance proceedings sought by successful defendant after appeal dismissed – HELD – order refused – no issue of principle.

CORPORATIONS – Corporations Act 2001 (Cth) Part 5.3A – Corporations Act 2001 (Cth) ss 436A and 447A – where company secretary holding a general power of attorney from the two shareholders and appointed directors purports, using the powers of attorney, to appoint a voluntary administrator by passing a resolution of directors – invalidity of resolution – whether order should me made modifying the operation of Part 5.3A so as to validate the appointment – HELD – appropriate to make order.

COSTS – whether to make a gross sum costs order – whether to order interest on costs from date of payment – whether to make costs order in related judicial advice proceedings – whether to order indemnity costs

CONSUMER LAW – False or misleading representations – Representations about the sale of land – Whether conduct is “in trade or commerce” – Effect of illegality or unlawfulness TORTS – Miscellaneous torts – Deceit – Liability as joint tortfeasors TORTS – Conspiracy – Conspiracy not available where substantive cause of action pleaded EQUITY – Fiduciary duties – Breach – Fiduciary relationships – Partners and joint venturers – Rule in Barnes v Addy – Money had and received

CRIMINAL LAW – sentence appeal – two juvenile offenders DM and DS – each convicted of murder and aggravated take and drive motor vehicle without consent of owner while owner present in vehicle in aggravation – DM also convicted of robbery with wounding while armed with an offensive weapon – wounding with intent to cause grievous bodily harm – offences included on Form 1 – offences committed on the same night in Queanbeyan – murder involved robbery of service station and stabbing of attendant by one of the offenders – both offenders liable for constructive murder – DS culpable for foundational crime on the basis of extended joint criminal enterprise to commit robbery – each offender affected by dysfunctional background and mental health issues – moral culpability reduced – long sentences imposed – whether moral culpability of offender part of determination of objective seriousness of offence – rejected – sentencing judge erred in assessing objective seriousness of DS’s offences – sentencing judge addressed DS’s participation in DM’s offences as opposed to DS’s offences – sentencing judge erred in failing to give effect to finding of special circumstances – no error in consideration of DS’s youth – objective seriousness of DM’s offence of murder assessed as substantially above the mid–range – no error established – whether sentencing judge erred in consideration of DM’s youth – no error established – whether sentencing judge erred in describing murder as involving “gratuitous violence”, “cold blooded” – submission untenable – no error established – whether sentences imposed manifestly excessive – sentences well in excessive of the objective seriousness of each offence – parity – Bugmy considerations – leave to appeal granted – appeal allowed – applicants resentenced

CRIMINAL LAW – sentence appeal – offences committed in custody – attacked fellow prisoner – carved ISIS slogan into forehead – wound with intent to kill – inflict grievous bodily harm with intent – committed acts in preparation to commit a terrorism offence – planned attack on corrective services officers – encouraged attacks by others – wrote threatening letter to Commissioner for Corrective Services – long sentences imposed – mostly accumulated – Crimes (Sentencing Procedure) Act s 56 – whether sentencing judge failed to consider entire length of time in custody – rejected – whether aggregate sentence for attack on inmate involved too little consideration of totality principle – whether manifestly excessive – ground upheld – whether accumulation between sentences excessive – rejected – applicant resentenced for attack on inmate – further offence in custody – attempted “exorcism” of inmate – assault – detain for advantage – aggregate sentence imposed – sentencing judge informed of incorrect maximum sentence – error found – whether sentencing judge erred in applying s 56 of Sentencing Act – whether at time applicant committed offence on 15 May 2017 he was “a convicted inmate of a correctional centre” – non-parole period expired but not released as refused bail – held not convicted inmate – error found – applicant resentenced

CRIME – appeals – appeal against sentence – where sentencing judge fixed non-parole period to expire on date of sentence – where judge recommended that applicant be released on that day – whether sentencing judge proceeded on mistaken belief as to operation of parole provisions in Crimes Act 1914 (Cth) – whether judge believed effect of sentence imposed would be that applicant was released to parole on that day

CRIMINAL LAW – Sentence – Appeal – Where applicant sentenced to a term of imprisonment for serious sexual offending – Application of Bugmy principles – Where there was evidence of the applicant’s disadvantaged background – No evidence of any causal link between that background and the applicant’s offending – No error in the sentencing judge failing to find that the applicant’s moral culpability was reduced – Clear that the sentencing judge took into account the applicant’s disadvantaged background as part of the instinctive synthesis – Whether sentence was “crushing” – Whether the sentencing judge failed to correctly apply principles of totality – Whether sentence was manifestly excessive – Weight to be given to the offender’s subjective case – Observations as to the limitations placed on the use of so-called “comparable” cases – Leave to appeal granted – Appeal dismissed

GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appointment – Private manager – Licensed trustee company – “Suitable person” to manage large estate – Authorization of remuneration for manager

LAND LAW – lease – lease of a car park – construction of lease – dispute regarding Lessee’s payment of rent – where cl 21.1 of the lease entitled the Lessee to a reduction in Base Rent where its business was materially adversely affected by reason of any law, policy or action of an authority – where Lessee invoked cl 21.1 to claim reduction in rent due to effect of COVID-19 Public Health Orders – where Lessor refused to recognise Lessee’s entitlement to reduction in rent under cl 21.1 – where Lessee tendered payments of reduced rent in good faith, though calculated incorrectly – whether payment of reduced rent amounted to breach of the lease or repudiation of the lease – whether dispute resolution mechanism in the lease prevented the Lessor from terminating the lease until procedure had been complied with – held that the Lessee did not breach the lease or repudiate it by paying reduced rent in good faith – held that Lessor was not entitled to terminate the lease in any event until dispute resolution process had been complied with – Lessor held not to be entitled to loss of bargain damages CONTRACTS – repudiation – where Lessor re-entered demised premises for Lessee’s alleged failure to pay rent in accordance with the lease – where Lessor not entitled to re-enter and terminate lease – where conduct of Lessor amounted to a repudiation of the lease – Lessee held to be entitled to accept repudiation and thereby terminate the lease – Lessor entitled to recover amount of rent outstanding as at date of termination of lease

ADMINISTRATIVE LAW – review of medical assessment by appeal panel – judicial review of appeal panel decision – adequacy of reasons of appeal panel – no requirement to address possible alternative findings – whether error of law in finding no “demonstrable error” in medical assessment rating severity of impairments WORKERS COMPENSATION – proceedings before Commission – medical assessment of psychological injury – appeal – appeal panel appointed under Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 328 – nature of grounds limited by statute – appeal by way of review – appeal limited to grounds stated by appellant WORKERS COMPENSATION – proceedings before Commission – medical assessment of psychological injury – appeal – additional evidence presented – whether obligation to re-examine worker – additional evidence of worker’s self-report accepted by appeal panel – whether additional evidence supported claim of “demonstrable error”

LOANS – Dispute as to terms of an oral loan – when is a loan repayable – whether interest payable at agreed rates beyond repayment date for loan or pursuant to s 100 Civil Procedure Act 2005 (NSW) CONTRACT – admissibility of post-contractual conduct as evidence as to terms of oral loan or as an admission of the terms TRANSFER OF PROCEEDINGS – Potential transfer of cross-claim to the District Court – Obligations of legal practitioners to assist the Court to identify the jurisprudential nature of the claim and statutory provisions enabling the proposed transfer court to have jurisdiction to deal with the matter EVIDENCE – Mode of appearance at hearing – audio visual and other mode of appearance – r 31.3 Uniform Civil Procedure Rules 2005 (NSW), Pt 1A Evidence (Audio and Audio Visual Links) Act 1998 (NSW) INTERPRETERS – Arrangements for interpreters at the hearing – Obligations of parties in relation to co-operating in respect of provision of interpreters – Obligation of parties in first instance to pay for costs of interpreter UNREPRESENTED LITIGANTS – content of procedural fairness EVIDENCE – discussion regarding practice of deponents asked to re-authenticate affidavits CROSS EXAMINATION – Browne v Dunn (1893) 6 R 67 – Discussion regarding utility of rule when examiner anticipates witness will not expressly agree or disagree with matter sought to be challenged EQUITY – whether equitable charge over property to secure payment of money EQUITABLE DEFENCES – Acquiescence – Election – Estoppel – Waiver.

CIVIL PROCEDURE — jurisdiction — transfers to and from other courts — Local Court to Supreme Court — quantum of damages likely to exceed jurisdictional limit — delay on part of the plaintiff in bringing the transfer application — satisfied that prejudice to defendant can be cured through costs order and further case management

PRACTICE AND PROCEDURE – application to set aside judgment entered in absence of a party – judgment creditor said to be assignee of original creditor – where evidence of purported assignee of judgment creditor showed judgment creditor not the assignee of the judgment debt CORPORATIONS – where judgment creditor in liquidation – where applicant to set aside judgment had not sought leave to proceed under s 500(2) of the Corporations Act 2001 (Cth) – whether leave should be granted nunc pro tunc

CRIMINAL PROCEDURE – suppression and non-publication orders – national security – administration of justice – ASIO witnesses – shielding of identity – witness safety – unacceptable risk

CRIMINAL LAW – Bail – Where respondent was convicted by a jury of sexual offending – Where two previous applications for detention were dismissed by the sentencing judge – Where an amendment to the Bail Act 2013 (NSW) was then introduced governing the release of offenders between conviction and sentence – Where the Director of Public Prosecutions made application for the respondent's detention – Whether the amendment applied to the Director's application – Whether special or exceptional circumstances were made out – Whether the Court should exercise its discretion to dismiss the application on the basis that it was frivolous and/or vexatious – Detention application granted STATUTORY INTERPRETATION – Whether an amendment to the Bail Act 2013 (NSW) contravened the provisions of the Interpretation Act 1987 (NSW) WORDS AND PHRASES – “special” – “exceptional” – ““frivolous” – “vexatious”

CRIMINAL LAW – Bail – Where the respondent was convicted by a jury of sexual offending and released on bail pending sentence – Where an amendment to the Bail Act 2013 (NSW) was then introduced governing the release of offenders between conviction and sentence – Where the Director of Public Prosecutions made an application for the respondent’s detention following his release – Whether the amendment applied to the Director’s application – Whether the Director had established that the respondent will be sentenced to a period of full-time custody – Whether there were special or exceptional circumstances – Where senior counsel for the Director conceded that the circumstances pertaining to the respondent’s health were special or exceptional – Where it was accepted by senior counsel for the Director that in light of that concession the application should be dismissed – Detention application dismissed STATUTORY INTERPRETATION – Whether an amendment to the Bail Act 2013 (NSW) was retrospective in its operation and thus contravened common law principles or statutory provisions – Necessity for a distinction to be drawn between amending legislation which has a prior effect on past events and amending legislation which bases future action on past events – Amendment in the present case not retrospective in its operation and not in breach of common law principles or statutory provisions WORDS AND PHRASES – “will” – “special” – “exceptional” – “revive”

APPEALS – from Local Court to Supreme Court – question of law – question of mixed fact and law – first appeal upheld – second appeal dismissed COSTS – costs judgment in proceedings in the Local Court – costs assessment by Costs Assessor – filing of costs certificates when suspended – Legal Profession Uniform Law Application Act 2014 (NSW) ("LPULA Act") s 86 – review of costs assessment – judgment from filing costs certificates – LPULA Act s 70(5) CIVIL PROCEDURE – examination notices – orders for examination – Uniform Civil Procedure Rules 2005 (NSW) r 36.15 – whether judgment irregular or against good faith – statutory set-off – Civil Procedure Act 2005 (NSW) ss 21 and 96

REAL PROPERTY – specific performance – contract for the purchase of residential property – enforceability – vendor alleges contracts exchanged without his authority – vendor refusing to complete – hardship – futility – two registered mortgages over the property – caveats over the property – specific performance ordered

CORPORATIONS – winding up – application by liquidator for directions under s 90-15(2) of Sch 2 of the Corporations Act 2001 (Cth) and s 63 of the Trustee Act 1925 (NSW) – whether the liquidator would be justified and would otherwise be acting reasonably to treat identified assets as being owned beneficially by the company

GUARANTEE AND INDEMNITY – contract of guarantee – guarantee given by director of company’s obligations under credit agreement – whether guarantee enforceable CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – commercial experience of guarantor – director of substantial construction business – guarantee provided in hardcopy and electronic copy – effect of terms – availability of legal advice CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – guarantor suffered Lewy body dementia – progressive condition – symptoms not observed in relevant period – medical evidence as to “mild” condition after guarantee signed – evidence of business activity after guarantee signed

CRIME – appeals – appeal against sentence – by Crown against inadequacy – Court’s discretion to intervene – principles concerning Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) – where error was established in the sentencing judge’s reasoning – where the circumstances of the case are highly fact-specific and offer little by way of precedential value – where the arguments advanced on appeal involve refinements to those advanced at first instance – where a resentencing exercise would amount to a mere correction of error SENTENCING – relevant factors on sentence – maximum penalty – calculation of maximum penalty for an offence of conspiring to cause a bribe to be offered to a foreign public official, contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code Act 1995 (Cth) – where amount of the maximum penalty expressed as a multiple of “benefit” derived from impugned conduct – construction of the word “benefit” in s 70.2(5)(b) of the Criminal Code – where foreign government contracts to provide services in relation to public infrastructure projects were procured – whether “benefit” should be interpreted to mean gross income (i.e. the total value of the contracts awarded) or the net income obtained from those contracts STATUTORY INTERPRETATION – immediate context – consistency of meaning – calculation of maximum penalty for an offence of conspiring to cause a bribe to be offered to a foreign public official, contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code Act 1995 (Cth) – where the amount of the maximum penalty turns upon the construction of the word “benefit” in s 70.2(5)(b) of the Criminal Code – whether “benefit” in s 70.2(5)(b) should be given the same meaning as in s 70.2(1)(a)-(b), which creates the substantive offence – where statutory context requires or results in different meanings being ascribed to the same term in a statutory provision SENTENCING – relevant factors on sentence – deterrence – general deterrence – where corporate offender reported its own misconduct, and subsequently provided substantial assistance to law enforcement authorities – where sentencing judge allowed significant discounts for the offender’s past and future assistance to law enforcement authorities – where sentencing judge also had regard to the desirability of encouraging the self-reporting of corporate misconduct when considering the importance of general deterrence, and determining the starting point for the sentences to be imposed – where sentencing judge considered that the prevention of offending is better achieved by rewarding a self-reporting company than by imposing a substantial fine – whether such an approach amounted to a failure adequately to take general deterrence into account SENTENCING – Crown appeal against inadequacy of sentence – Court’s discretion to intervene – principles concerning Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) – where error was established in the sentencing judge’s reasoning – where the circumstances of the case are highly fact-specific and offer little by way of precedential value – where the arguments advanced on appeal involve refinements to those advanced at first instance – where a resentencing exercise would amount to a mere correction of error