Cases and authorities

CIVIL PROCEDURE — Court administration — Court powers — Control of proceedings — where non-party filed evidence relating to a claim outside leave granted to make submissions and inconsistent with court orders — where non-party had notice of and opportunity to be joined to proceedings — evidence rejected

CIVIL PROCEDURE — Hearings — Adjournment — Applicable principles — Vacation of hearing dates — Illness of counsel — Defendants’ counsel contracted COVID 19 — COSTS — Principles where adjournment not arising by fault of the applicant

COSTS – whether there is a “cause” to determine result of earlier order – summons – plaintiff substantially successful – costs orders in interlocutory proceedings – general principles – Uniform Civil Procedure Rules 2005 (NSW) rr 42.1 and 42.7 – meaning of words “costs in the cause” – orders of Registrar – Supreme Court Act 1970 (NSW) s 131

JUDGMENTS AND ORDERS — amending, varying and setting aside — correction under slip rule — overriding purpose of Civil Procedure Act 2005 s 56

APPEAL – leave to appeal – from determination of the appeal panel of NSW Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW) s 83 – university collection of personal information from plaintiff and his brother for purpose of pre-visa assessment – grounds of appeal against appeal panel determination unclear – plaintiff submitted collection of information was incompatible with fundamental rights to education and privacy – plaintiff alleged denial of procedural fairness – no error of law made by appeal panel to justify grant of leave – no question warranting grant of leave – plaintiff suffered no detriment from appeal panel’s approach – summons dismissed

APPEALS — procedure — time limits — extension of time — factors considered — extension refused

CRIMINAL LAW – appeal – applicant faced 11 charges of sexual offences against two children SS and NL – convicted on counts 1 to 3 against SS and count 9 against NL – acquitted of counts 4 to 8, 10 and 11 against NL – SS participated in five interviews with police conducted over 13 months and gave pre-recorded evidence for the trial – evidence in support of counts 1 and 2 provided in the third interview and evidence in support of count 3 in the fifth interview – SS recanted her evidence in the fourth interview – NL participated in three interviews and gave pre-recorded evidence for the trial – SS supported NL’s evidence on count 9 but not the other counts – prosecution called evidence from “expert” with tertiary qualifications in psychology and law – based on review of various studies expert gave evidence as what the “research” indicated was the typical response of child victims to sexual assault – expert also gave evidence of research about child sex offenders acting in a brazen manner – held expert was qualified by reason of her study to give evidence of responses of child victims – held expert not qualified to give evidence of the behaviour of child sex offenders generally – ground upheld – guilty verdicts not inconsistent with acquittals – jury entitled to conclude that SS provided “something additional” to support the evidence of NL – verdicts of guilty not unreasonable – reasonably open to the jury to be satisfied of applicant’s guilt – retrial ordered

CRIMINAL APPEALS – fresh evidence on sentence appeal – when admissible – evidence that applicant involved in violence incidents in gaol – evidence not brought to the attention of the sentencing Judge – applicant a schizophrenic – where applicant refused to authorise his lawyers to access Justice Health records – evidence that violent incidents typical of victimisation of schizophrenic inmates – where sentencing Judge found experience in custody not more onerous by reason of mental illness CRIMINAL LAW – sentence appeal – re-sentencing – serious stalking and strangling offence – chilling facts – relevant considerations – whether less severe sentence warranted

CRIMINAL LAW – Offences – Sentence – Appeal – Crown appeal asserting manifest inadequacy of sentence – Multiple instances of sexual and related offending committed over a lengthy period of time on eight separate victims – Consistently predatory behaviour on the part of the respondent – Some of the offending planned – Serious breach of a position of trust towards the victims – Aggregate sentence of imprisonment for 10 years imposed with a non-parole period of 6 years and 6 months – Where Crown relied upon latent error – Where errors were identified in the reasons of the sentencing judge but not relied upon by the Crown – Factual errors and omissions – Inadequate reasons – Failure to properly assess the objective seriousness of the offending – Displacement between findings as to objective seriousness and indicative sentences – Brevity of the individual instances of offending of limited relevance – Necessity to apply the correct approach when sentencing for an offence to which a Form 1 attaches – Apparent error in not treating the fact that one episode of offending occurred in the victim’s home as an aggravating circumstance – Lack of clarity as to what aggravating circumstances were in fact taken into account – Confusion between matters which are relevant to the assessment of an offender’s subjective case and those which might justify a finding of special circumstances – Where the sentence imposed failed to recognise the fundamental purposes of sentencing – Necessity for the Court to intervene in order to maintain public confidence in the criminal justice system – Crown appeal allowed – Sentence quashed and the respondent re-sentenced

PRACTICE AND PROCEDURE – Motion seeking the referral of a preliminary question to the Court of Appeal – Where the underlying facts were agreed – Where there were conflicting decisions of other Courts bearing on the resolution of the question – Where the parties agreed as to the referral of the question – Orders made accordingly

PRACTICE AND PROCEDURE – Making of orders facilitating hearing – No point of principle

CONTRACT – Claim by the plaintiff that he lent $170,000 to the first defendant for a period of two years at an interest rate of 5% per annum pursuant to an oral agreement – the first defendant denies the loan – reliance on spoken words to establish cause of action – conversation must be proved to reasonable satisfaction of the Court – HELD – Loan not proved

PRACTICE AND PROCEDURE – orders necessary to give effect to primary judgment – where Share Sale Agreement to be rescinded pursuant to s 237 of the Australian Consumer Law – whether further orders should be made dealing with parties’ rights once rescission takes effect – where parties not agreed as to consequences of rescission COSTS – where Commercial Proceedings and Defamation Proceedings heard together – what order for costs should be made in each proceeding – where plaintiffs substantially unsuccessful in Commercial Proceedings – where cross-claimants substantially successful in Commercial Proceedings – where plaintiff recovered modest damages in Defamation Proceedings – whether an order for indemnity costs should be made in either proceedings – whether s 40 of Defamation Act 2005 (NSW) enlivened

EQUITY – specific performance – agreement for purchase of shares, to be satisfied in part by transfer of purchaser’s share of land co-owned with vendor – purchaser obliged to buy the shares rather than only having an option to do so – purchase price to be paid within a reasonable time – purchaser in control of company in meantime – before time for payment arrives vendor removes assets used in conduct of company’s business so as to pressure purchaser to pay – unclean hands – relief refused – plaintiff remitted to claim for judgment at law – costs

Crime – sentence – offender found guilty following trial by jury – charge of money laundering under s.400.3(1) Criminal Code (Cth) – offender a solicitor dealing with proceeds of crime – very substantial sums passing though trust account over period exceeding three months – 53 deposits totalling $24 million and 22 disbursement of funds – proceeds of crime including fraud, blackmail and money laundering – assessment of objective gravity of offence – relevance of prior good character on sentence – parity considerations – importance of general deterrence – consideration of other sentencing factors – substantial custodial sentence appropriate

CONTRACTS – Formation – Intention to create legal relations – Whether agreement signed by the plaintiff constituted a binding contract – Whether unjust contract under the Contracts Review Act 1980 (NSW) EQUITY – Unconscionable conduct – Special disability or disadvantage – Independent advice – Inequality of bargaining power – Whether unconscientious advantage taken – Whether defences of laches and acquiescence applied – Whether Limitation Act 1969 (NSW) applied by analogy – Whether transaction ought to be set aside EQUITY – Trusts and trustees – Constructive trusts – Remedial – Breaches of trust – Whether a constructive trust arises – Whether knowing receipt of trust property – Whether encumbrance of trust property constitutes a breach of trust EQUITY – Fiduciary duties – Breach – Agent and principal – Whether donee of power of attorney acted in best interests of the plaintiff

COSTS – application for order as to costs at first instance following outcome on appeal – costs of appeal – costs of late amendment to notice of appeal

CONTRACTS — Deeds — Whether binding lease or agreement for lease came into existence prior to withdrawal by respondent from proposed lease transaction — Where heads of agreement reserved parties’ right to withdraw from and terminate negotiations at any time prior to execution of lease documents by both parties — Where respondent provided executed lease documents to appellants’ solicitors and obtained early access to premises for limited purposes but appellants did not execute lease documents prior to withdrawal by respondent — Whether primary judge erred in holding that no binding lease or agreement for lease came into existence — Appeal dismissed.

CIVIL PROCEDURE — court administration — case management — directions — Court reserved on case management orders following contested directions hearing — orders made in respect of, inter alia, restoration of trust fund, service of documents, and points of claim

CIVIL PROCEDURE — Originating process — where it is claimed parts of amended statement of claim should be struck out under r 13.4 or dismissed under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) — whether there is a high degree of certainty about ultimate outcome of proceedings — role of consideration of the just, quick and cheap resolution of the real issues in the proceedings under Civil Procedure Act 2005 (NSW), s 56 CONTRACTS — where it is claimed employment contract contains implied terms which were breached resulting in employee’s constructive dismissal – claim bound to fail CONTRACTS — construction — deed of release — whether deed contained implied term — claim legally untenable where implied term contrary to express terms CONTRACTS — whether deed void ab initio as the result of breach — claim legally untenable — deed remains binding and precludes claims for damages for breach of contract and claimed breaches of Corporations Act 2001 (Cth), Pt 9.4AAA during course of employment CONTRACTS — construction — deed of release — that deed did not apply to breaches of Corporations Act 2001 (Cth), Pt 9.4AAA after termination of employment arguable EMPLOYMENT AND INDUSTRIAL LAW — contract of employment — repudiation — whether repudiation accepted — employment ended by resignation on payments made by employer in accordance with deed

EMPLOYMENT AND INDUSTRIAL LAW — contract — restraint of trade — interlocutory injunction — where defendant has provided undertakings in relation to non-solicitation of employees and customers — where remaining issue in dispute in relation to interlocutory relief is whether defendant should be restricted from working for the plaintiff’s competitor in any capacity — whether in the alternative the defendant should be permitted to work for the plaintiff’s competitor in a limited capacity without client contact — interlocutory relief granted in the form sought by the defendants referred to as the “warehouse proposal”

COSTS – where defendant successful on notice of motion to dismiss the proceedings – no question of principle

CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where grounds of appeal do not identify a question of law – where applicant unlikely to accept advice as to defects in her case – where applicant not completely lacking financial means

CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where proposed appeal is devoid of merit – where Applicant has a prolonged grievance against his former counsel – where applicant unlikely to accept advice explaining defects in his case

COSTS – questions of law submitted by a prosecutor pursuant to s 5AE – prosecutor sought to “appeal” trial judge’s decision – costs order made – no question of principle

CRIMINAL LAW – appeal – appeal against conviction and sentence – aggravated indecent assault and sexual touching of a child between the age of 10 and 16 years – conviction ground asserted that a miscarriage of justice arose as trial Judge did not additionally remind and identify for the jury inconsistencies in the complainant’s evidence following the replay of JIRT interview during jury deliberations - no such application made at trial by defence counsel – consideration whether Court of Criminal Appeal should view pre-recorded evidence for the purpose of determining ground of appeal – no forensic purpose established for Court to view JIRT interview – leave to rely on ground refused – sentence ground asserted that aggregate sentence was manifestly excessive by reason of allegedly excessive indicative sentences – significance of “problematic” standard non-parole period for s.61M(2) Crimes Act 1900 offences – absence of standard non-parole period for s.66DB(a) Crimes Act 1900 offence – aspects of indicative sentences resulted in manifestly excessive aggregate sentence – Applicant resentenced

CRIME – appeals – appeals against sentence – applicant convicted of three offences pertaining to violent attempted sexual assault of victim in her home late at night – applicant intoxicated by alcohol – objective seriousness – no error in consideration of relevant serious indictable offence on count 1 – opportunistic but not spontaneous – remorse – s 21A(3)(i) of Sentencing Act – conflated with inability to explain offending, rehabilitation and risk of re-offending – no separate finding made despite unchallenged evidence – error established – applicant remorseful – appeal allowed – re-sentence CRIME – property offences – aggravated enter dwelling with intent to commit serious indictable offence and break out – s 109(2) of Crimes Act – elements – whether count 2 correctly said to be a manifestation of the intent expressed in the s 109(2) offence – no error made out

APPEALS – leave to appeal – appeal from Appeal Panel of NCAT – appeal on question of law – grounds – ground to be more than merely arguable – whether reasons adequate – whether plaintiff denied procedural fairness CIVIL PROCEDURE – application by plaintiff to vacate hearing – late medical certificate – chronic illness – pro forma certificate – nature and history of proceedings – cost and inconvenience to respondent - whether proceedings futile LEASES AND TENANCIES – residential tenancy agreement – holding over period – notice of termination without reasons – whether retaliatory notice – tenant evicted whether relief available in NCAT

CAVEATS – application for extension of caveat – where estate or interest in land specified in caveat differs from caveatable interest claimed at hearing of application – erroneous specification in caveat of estate in fee simple as the estate or interest claimed by the caveator – s 74L of the Real Property Act 1900 (NSW) not applicable – application dismissed INTERIM INJUNCTIONS – no issue as to serious question to be tried – where defendant has given sufficient undertaking – balance of convenience does not favour granting injunction – application dismissed

COSTS – Party/Party – Exceptions to the general rule that costs follow the event – whether plaintiffs’ conduct in joining the second and fourth defendants to the proceedings supported an order for costs to be assessed on an indemnity basis COSTS – Party/Party – Orders when proceedings involve multiple parties – Bullock and Sanderson orders – whether the burden of an unsuccessful defendant’s insolvency should be cast on the plaintiffs or the successful defendants

CRIMINAL LAW – murder trial – whether statement of unavailable witness should be received pursuant to s 65(2)(c) – whether probative value of evidence outweighed by danger of unfair prejudice

EQUITY – trusts and trustees – remedial constructive trusts – Baumgartner principles – where the land is included as an asset of a partnership – quantification of contributions of parties - whether there has been relevant premature termination constituting unconscionability of retaining sole legal title – whether appropriate relief required imposition of a constructive trust over the property as tenants-in-common CORPORATIONS – shares – rectification of share register – application to correct the register pursuant to s 175 Corporations Act 2001 (Cth) LEASES AND TENANCIES – rent and outgoings – payment of rent – where rent not paid by a tenant in common

CRIMINAL LAW – offences – murder – trial — judge alone – where accused stabbed the deceased multiple times - accused pleaded not guilty to murder but guilty to manslaughter by reason of substantial impairment – Crown asserted defence of mental health impairment under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether Crown could assert defence of mental illness – where psychiatrists qualified on behalf of Crown and accused agreed that accused did not know that his acts of stabbing the deceased were wrong – where Crown could raise the defence in circumstances where accused had put mental illness in issue – proof was on the balance of probabilities whether raised by the accused or the Crown - special verdict of act proven but not criminally responsible

SUCCESSION – Alleged lack of testamentary capacity – Alleged lack of knowledge and approval SUCCESSION – FAMILY PROVISION – Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 – Whether appellant is an ‘eligible person’ under s 57(1) of the Succession Act 2006 (NSW) – Whether appellant was wholly or partly dependent upon deceased at any particular time – Whether adequate provision had been made for appellant’s education, maintenance and advancement in life

CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — No defence — Where plaintiffs seek summary judgment for an amount due under a loan agreement with interest — Where plaintiffs also seek summary judgment for a declaration and specific performance in relation to an alleged settlement agreement — Whether defendant has a defence to the claim or part of the claim

ORDERS – Interest at default contractual rate. COSTS — Party/Party — Application for indemnity costs.

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for sexual abuse – leave granted nunc pro tunc – costs

CIVIL PROCEDURE – preliminary discovery – principles at [18]-[23] – plaintiffs invest in defendant corporation – plaintiffs consider financial information provided when investing may be misleading –plaintiffs seek defendant’s records to determine whether to commence proceedings – whether plaintiffs already have sufficient information to commence proceedings – whether preliminary discovery oppressive – preliminary discovery ordered – scope of discovery limited to documents directly relevant to decision whether to commence proceedings.

COSTS — security for costs — quantum and form — Court earlier satisfied that security for costs ought to be provided by corporate plaintiffs — Court earlier considered that security ought to be provided by means of charge granted by first plaintiff over its shares in first defendant — subsequent change in position — suspension of trading of shares in first defendant lifts — market value of shares declines — security for costs ordered

CIVIL PROCEDURE – Notice of motion – Referral or direction to NSW Police Force or Attorney General – Stay of proceedings – Allegations of fraud or criminal conduct – Abuse of process – Indemnity costs – Scandalous material

PRACTICE AND PROCEDURE – application for stay pending appeal – where no arguable grounds of appeal – where no evidence as to applicant’s financial means

CRIME – appeals – appeal against sentence – supply of prohibited drug – commercial and indictable quantity – whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge erred in assessment of the significance of the applicant’s deprived background to his moral culpability – whether sentence unreasonable or plainly unjust – no error demonstrated – leave to appeal granted – appeal dismissed

BAIL – release application – breaches of ESO – s 17 bail risks – unacceptable risks – bail refused

CRIME – application under s 69(3) of the Judiciary Act 1903 (Cth) – whether the applicant is without adequate means to provide defence for himself – assessment made on prima facie material – whether it is desirable in the interests of justice that such an appointment should be made – Dietrich v The Queen (1992) 177 CLR 292

CIVIL – confiscation of proceeds of crime – restraining orders pursuant to Mutual Assistance in Criminal Matters Act – orders of a foreign court – statutory requirements satisfied – no question of principle

PRACTICE AND PROCEDURE – Pro bono referral – No point of principle

CIVIL – confiscation of proceeds of crime – restraining orders sought ex parte – restraining orders made – examination orders refused

CIVIL – confiscation of proceeds of crime – orders sought ex parte – restraining orders made – examination orders refused in circumstances of extant criminal proceedings and potential future criminal proceedings

CIVIL – confiscation of proceeds of crime – restraining orders sought ex parte – restraining orders made – examination orders refused in circumstances of extant criminal proceedings

CIVIL – confiscation of proceeds of crime – restraining orders sought ex parte – restraining orders made – examination orders refused in circumstances of extant criminal proceedings