Cases and authorities

TAXES AND DUTIES — Land tax — Assessments — Exemption for land used for primary production — Where plaintiff used land for the maintenance of horses both for the purpose of training those horses for racing and for the purpose of selling those horses or their bodily produce, namely their semen — Distinction between dominant use of land and dominant purpose of land

CORPORATIONS – directors’ duties – joint venture company – joint venture to produce a consumer affairs television program for the ABC – ultimately The Checkout – whether a term of joint venture that each joint venturer would inform the other of any opportunity to produce any further series of The Checkout or any equivalent or similar consumer affairs show – whether a breach of such term – whether a breach of duty to act in good faith in the best interests of joint venture company and for a proper purpose – whether a duty to act in the best interests of shareholder of the joint venture company MISLEADING OR DECEPTIVE CONDUCT – whether failure of one joint venturer to inform the other of negotiations with the ABC concerning new consumer affairs show constituted misleading or deceptive conduct DEFAMATION – whether emails sent by one joint venturer to the ABC were defamatory of the other joint venturer – whether defence of justification, common law and statutory qualified privilege or honest opinion made out

CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – where alleged that primary judge had overlooked and or not dealt with a particular argument in relation to costs – where it had been open to the applicant for leave to have approached the primary judge pursuant to UCPR 36.16 to vary or set aside her order by reference to the argument not addressed – where that course not taken – where it was not possible for the Court of Appeal finally to dispose of the issue without remitting proceedings to the District Court – where the interests of justice did not warrant the grant of leave to appeal

CRIME — drug offences — supply prohibited drug — commercial quantity — where applicant entered early guilty plea — where sentencing judge applied a 25% discount for early guilty plea — whether sentencing judge erred in applying s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) to make that discount CRIME — appeals — appeal against sentence — misapplication of principle — where applicant was entitled to a 25% sentencing discount for the utilitarian value of his early guilty plea pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — where sentencing judge applied a 25% sentencing discount to reflect the utilitarian value of the applicant’s guilty plea, in addition to his remorse and willingness to facilitate the course of justice — whether the Act requires separate consideration of the utilitarian value of a guilty plea, an offender’s remorse, and his or her willingness to facilitate the course of justice — whether sentencing judge erred in applying s 25D of the Act CRIME — appeals — appeal against sentence — re-sentence — supplying a large commercial quantity of a prohibited drug — where the applicant participated in a purported drug transaction facilitated by undercover law enforcement officers — where no drugs in fact existed or were disseminated into the community — where the offence may not have been committed had authorities not facilitated it — weight to be given to hardship caused to family members by an offender’s incarceration SENTENCING — appeal against sentence — sentence contrary to law — where applicant was entitled to a 25% sentencing discount for the utilitarian value of his early guilty plea pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — where sentencing judge applied a 25% sentencing discount to reflect the utilitarian value of the applicant’s guilty plea, in addition to his remorse and willingness to facilitate the course of justice — whether the Act requires separate consideration of the utilitarian value of a guilty plea, an offender’s remorse, and his or her willingness to facilitate the course of justice — whether sentencing judge erred in applying s 25D of the Act SENTENCING — plea of guilty — sentencing discount for the utilitarian value of an early plea of guilty pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) — multiple and distinct sentencing considerations which may be engaged by an early plea of guilty — where an early plea of guilty bears utilitarian value — where an early plea of guilty is indicative of remorse and/or willingness to facilitate the course of justice — whether sentencing judge erred in considering the applicant’s remorse and willingness to facilitate the course of justice when applying a sentencing discount pursuant to s 25D of the Act

CRIME – Crown appeal against sentence – joint enterprise murder of minor by juveniles – alleged error in applying standard non-parole period – alleged failure to apply statutory aggravating features – alleged manifest inadequacy – statutory aggravating features not to be applied formulaically – no error disclosed – not manifestly inadequate in light of respective roles and subjective circumstances

CRIMINAL LAW – sentencing – offences of violence – affray – assault occasioning actual bodily harm in company – gangs of youths – general deterrence – relevance of youth and immaturity – well settled principles – whether sentencing judge failed to take into account – where Judge aware of age of offender – “section 5 threshold” – where applicant’s role in affray at low level of objective seriousness - sentence of imprisonment not the only appropriate sentence – Intensive Correction Order – no power to back date – time served taken into account – applicant re-sentenced

CRIME — Appeals — Appeal against sentence — whether sentencing judge failed properly to take into account applicant’s mental disorders CRIME — Appeals — Appeal against sentence — new evidence — whether to admit supplementary expert report

CRIME – appeals – appeal against conviction – miscarriage of justice CRIME – child sex offences – circumstances of aggravation EVIDENCE – the credibility rule – exceptions – specialised knowledge based on training, study or experience – opinion – children’s responses to sexual abuse EVIDENCE – the opinion rule – exceptions – expert evidence – specialised knowledge – based on training, study or experience – children’s responses to sexual abuse – what constitutes opinion

EVIDENCE – discretions – exclusion of evidence – criminal proceedings – application for advanced ruling under s 192 Evidence Act 1995 (NSW) – objection under s 137 – whether the probative value of the evidence is out-weighed by unfair prejudice to the accused

EVIDENCE – witness evidence – accused – ruling under s 192A Evidence Act 1995 (NSW)

LAND LAW – possession of land – notice of motion – stay sought pending hearing of appeal – summary judgment for plaintiff – no summary dismissal of cross-claim by defendant – whether the appeal has reasonable prospects of success – whether the balance of convenience favours the grant of a stay – personal circumstances – arguable case has been shown – stay granted

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Whether the consent of the birth parents ought to be dispensed with — Change of name — Registration of adoption plans

FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Whether the consent of the birth parents ought to be dispensed with — Change of name — Registration of adoption plans

CONTRACTS — Construction — Interpretation — deed of release — whether definition of “claim” should be read down — where definition narrowed by reference to subject matter — where definition not read down CONTRACTS — Construction — Interpretation — settlement agreement — whether question of interpretation could be answered before answering question of availability of equitable relief in related deed — where questions could be answered separately CONTRACTS — Construction — Interpretation — Natural and ordinary meaning — settlement agreement —where no ambiguity in interpretation CONTRACTS — Unconscionable conduct — whether it would be unconscionable for a party to rely on an agreement where a counterparty did not have legal advice — where such reliance not unconscionable

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – residential tenancy agreements – validity of lease where property co-owned by joint tenants – lease agreement entered into by only one joint tenant

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.

TAXES AND DUTIES — Land tax — Conveyancing — Clearance certificate. LAND LAW — Conveyancing — Contract for sale — Settlement requirements. CONTRACTS — Termination — Repudiation of contract — where the vendor failed to provide a land tax certificate but sought completion — where the purchaser failed to respond to communications by the vendor to advance completion — where the vendor terminated the contract on the basis of the purchaser’s repudiation — where the purchaser denies the vendor’s right of termination and subsequently terminates the contract on the basis of the vendor’s repudiation — whether purchaser or vendor repudiated the contract

CIVIL PROCEDURE – where plaintiff sues defendants for alleged breach of duties to informant and breach of promises and statutory duty – where plaintiff gathers information from Australia Federal Police and former police officers – implied undertakings – release from Harman undertaking – variation of non-publication order – disclosure of materials relating to police informants – “human sources” – relevant considerations – where non-publication order made to protect the safety of the plaintiff – where sources of material do not oppose release from undertaking – where disclosure to be made to Ministers of Crown – opposition to orders – puzzling – safe hands process

EQUITY — Trusts and trustees — Resulting trusts — Presumption of advancement – Whether evidence establishes intention of the parties at the time the property was purchased – Whether evidence establishes contribution made towards the purchase of the property – Whether constructive trust arose on the same facts

ADMINISTRATIVE LAW — Bias rule — Actual or apprehended ADMINISTRATIVE LAW — Procedural fairness ADMINISTRATIVE LAW — Judicial review — whether primary judge’s order was a final order CIVIL PROCEDURE — section 127 of the District Court Act 1973 (NSW) — “action”

APPEAL – interlocutory decision – joinder of additional defendants back-dated to commencement of proceedings – challenge to decision to back-date joinder – consequent upon potential contractual limitation defence – where outcome of appeal would not prevent trial – variety of ways in which issue might not arise – absence of full argument on construction of defence and underlying power – where point available to be taken as of right after trial, if it were material to any judgment – leave refused

CRIME — appeal and review — appeal from Local Court to District Court — privative clause precludes judicial review unless jurisdictional error — whether refusal by a District Court judge to state a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW) amounted to a jurisdictional error APPEALS — procedural fairness — bias or apprehension of bias — District Court judge after correction on appeal declined for a second time to state a case because an answer by the Court of Criminal Appeal to the question of law in favour of the applicant would not have affected the outcome of the appeal to the District Court

LAND VALUATION — compulsory acquisition – partial acquisition of land – lease of land – lease to operate service station and convenience store business – compensation payable – market value of acquired land – decrease in value of residue land - before and after approach to determine compensation – appropriate valuation method – assessment of diminution in cash flow of business– whether valuation method available – whether valuation methodology accepted by primary judge raises question of law – agreement for term of lease to be extended – equitable term of lease – compensation to be determined having regard to equitable term of lease

LEGAL PRACTITIONERS — disciplinary proceedings — practitioner convicted of offences under s 192E(1)(b) of the Crimes Act 1900 (NSW) of dishonestly obtaining an advantage — sentence of imprisonment — declaration that the practitioner is not a fit and proper person to remain on the roll of Australian lawyers

SUCCESSION – procedure – deceased estate – family provision claim by plaintiff excluded from will – plaintiff seeks leave to bring separate proceedings on behalf of estate to claw back funds received by beneficiaries before deceased’s death – Uniform Civil Procedure Rules 2005 (NSW), r 7.10 – leave refused

ESTOPPEL – application to dismiss negligence claim as abuse of process – earlier proceeding in Federal Circuit Court under Fair Work Act – proceedings alleged victimisation for complaining about bullying and harassment – dismissed as plaintiff not a contractor to defendant – proceedings commenced in negligence for bullying and harassment – cause of action estoppel – rights in both proceedings – not substantially similar – Anshun estoppel – not established – it was not unreasonable not to bring negligence claim in accrued jurisdiction

PRACTICE AND PROCEDURE – transfer from District Court – no question of principle

CRIME – jury trial – trial for money laundering under s.400.3(1) Criminal Code (Cth) – jury retired to consider verdict – three jurors test positive for COVID-19 – consideration of appropriate way forward – trial adjourned for eight days

COSTS – plaintiff succeeds on minor contention which occupied small portion of hearing – plaintiff’s primary arguments failed or unnecessary to determine – first defendant raised defences which were wholly unsuccessful – usual costs order would be unfair and create hardship – first defendant to pay 50% of plaintiff’s costs on a party and party basis.

COSTS – costs assessment – determination – review – effect of decision of Review Panel –discretion to set aside or vary judgment created by filing of costs certificate

LIMITATION PERIODS – plaintiffs were parent company and wholly owned subsidiary – parent company entered into option to acquire land following receipt of valuation – valuation negligent and misleading and deceptive – parent company nominated subsidiary to hold the land – parent company paid $11.1m towards purchase price – sale never proceeded – both companies sued valuers 8 years later – trial judge held that subsidiary’s causes of action in negligence and for misleading and deceptive conduct were statute barred, but parent’s causes of action in negligence and for misleading and deceptive conduct were not statute-barred – trial judge found parent implicitly lent to its subsidiary the funds which were transferred to vendor, such that cause of action only accrued when loan became unable to be repaid – significance of corporate relationship between parent company and wholly owned subsidiary – circumstances when implicit loan and obligation to repay may be inferred – significance of contemporaneous documents – appeal allowed and judgment entered in favour of valuers MISLEADING AND DECEPTIVE CONDUCT – significance of disclaimers in valuations – significance of clause permitting use of valuation only by vendor – significance of plaintiffs’ failure to adduce testimonial evidence of reliance on valuation – documents suggesting transaction entered into for extraneous reasons – documents suggesting flaws in valuation appreciated at time – whether requisite causal relation between valuation and payments made out – if necessary, appeal also allowed on basis that causation not established

CRIME — appeals — appeal against conviction — unreasonable verdict CRIME — appeals — appeal against conviction — miscarriage of justice — whether a miscarriage of justice resulted from the failure of trial counsel for the applicant to seek to have admitted pursuant to s 293(4)(c) Criminal Procedure Act 1986 (NSW) evidence that the complainant had sexual experience or had taken part in sexual activity EVIDENCE — discretions — exclusion of evidence — criminal proceedings — whether the trial judge erred in declining to exclude evidence of a pregnancy test under s 137 of the Evidence Act 1995 (NSW)

CRIME — appeals — appeal against sentence — misapplication of principle — sentencing for federal offences — relevant considerations for a court sentencing a federal offender pursuant to s 16A of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong” CRIME — appeals — appeal against sentence — re-sentence – obtaining a financial advantage by deception from the Commonwealth, contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth) — where offending involved social security fraud — where offender underreported or failed to report income to authorities and thereby received benefits to which she was not entitled — the proper treatment of general deterrence in sentencing for social security fraud offences — where offender was the victim of physical, emotional and financial abuse perpetrated by her former partner — where the offender’s incarceration resulted in hardship to her family and children JUDGMENTS AND ORDERS — court of appeal — review of previous decision of the court of appeal — whether previous decision plainly wrong — the proper construction of s 16A(2)(p) of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of the New South Wales Court of Criminal Appeal and other intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong” SENTENCING — appeal against sentence — general principles — relevant considerations for a court sentencing a federal offender pursuant to s 16A of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong” SENTENCING — federal offenders — relevant considerations — hardship — to third parties — whether s 16A(2)(p) of the Crimes Act 1914 (Cth) requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong” STATUTORY INTERPRETATION — precedent — federal legislation — the importance of comity and consistency between intermediate appellate courts in the interpretation of federal legislation — the proper construction of s 16A(2)(p) of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of the New South Wales Court of Criminal Appeal and other intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong”

CRIMINAL PROCEDURE – fitness to be tried – trial judge found no real and substantial concern about the applicant’s fitness to stand trial – whether evidence tendered on appeal indicated that there was a miscarriage of justice because there exists an unresolved question about the applicant’s then fitness to be tried

LAND LAW – co-ownership – statutory trust for sale – appointment of trustee – re-payment of mortgage over land by co-owners

PRACTICE AND PROCEDURE – amendment – where amended pleadings not properly formulated – where proceedings on foot for over six years – where amendments open up new inquiry at late stage – leave to amend refused

INTEREST – statutory interest – partnership account – whether “proceedings for the recovery of money” – purpose of award of statutory interest – Civil Procedure Act 2005 (NSW), s 100 – interest awarded on judgment for balance due on account COSTS – costs following judgment – partnership account – where plaintiff succeeded on valuation of goodwill issue and in obtaining judgment for balance due on account – where plaintiff succeeded on claim for indemnity against partnership liability to bank – order for costs in favour of plaintiff with no order as to costs solely referable to other accounting and receivership issues

CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury — discharge of whole jury where prospects of concluding trial with sufficient number of jurors bleak

EQUITY – Trusts and trustees – whether a Quistclose trust arose – where funds provided for the establishment of a company and its ordinary business operations EQUITY – Trusts and trustees – Black v Freedman trust – Misappropriation of funds – where funds were not the plaintiff’s property but were the property of another company EQUITY – Fiduciary duties – claimed to arise by virtue of position as senior employee, director and as party to a joint venture – where funds were not the plaintiff’s property but were the property of another company RESTITUTION – Money had and received – whether total failure of consideration – where money was transferred into and out of company bank account – where money not used for company purposes – whether unjust enrichment

INFANT SETTLEMENT – approval of settlement – negligence – medical negligence – whether settlement in best interests of plaintiff TRUSTEES – conflict of interest – whether solicitor able to assume office of trustee for settled funds of plaintiff when anticipating payment of legal fees from corpus

HIGH RISK OFFENDERS – Preliminary hearing – application for interim supervision order – serious sexual offending – unstable mental health – substance abuse (methamphetamine) – breaches of existing ESO – consideration of statutory criteria – electronic monitoring – more onerous conditions than existing ESO not warranted – application granted

CORPORATIONS – external administration – application to approve the remuneration of receivers for work already performed – whether remuneration is a fair and reasonable reward for work done in the due course of administration – where remuneration calculated on a time charged basis

COSTS – plaintiff successful in obtaining judgment – judgment in an amount less than $500,000 – whether plaintiff should not receive a costs order because the proceedings could have been commenced in the District Court – at time of commencement the proceedings included a claim for the withdrawal of a caveat – held that the proceedings could not have been commenced in the District Court – plaintiff entitled to costs order – some costs to be paid on an indemnity basis due to unreasonable failure of defendant to accept a Calderbank offer

COSTS – claim by plaintiff for relief in respect of trespass to land – plaintiff successful in obtaining relief, including damages for the cost of a fence removed by the defendants – whether plaintiff should be deprived of a costs order because of submitting appearance filed by defendants, “disentitling conduct” of plaintiff, or failure of plaintiff to accept a Calderbank offer – plaintiff held entitled to costs order in its favour

INSURANCE LAW – property insurance – scope of insured property – whether insured property included bank deposits – application for leave to join party to proceedings – application for leave to file amended statement of claim – where party sought to be joined is insurer – third party claim against insurer – whether statement of claim pleaded material facts relevant to the insurer’s liability pursuant to the policy and to the Civil Liability (Third Party Claims Against Insurers) Act 2017 – material facts not pleaded – application dismissed

CORPORATIONS – jurisdiction for compensation orders under section 1317H, Corporations Act 2001 (Cth) – section 1337E, Corporations Act – s58AA, Corporations Act – “superior court” – “superior court matter” – compensation orders may only be made by superior courts – see [5]-[10]. COSTS – r 42.34, Uniform Civil Procedure Rules 2005 (NSW) – whether proceedings in Supreme Court “warranted” – rule not applicable as District Court lacked jurisdiction. COSTS – company sues former director for $118,000 – obtains judgment for $7,760 – former director responsible for running the business – lack of records – company makes reasonable offer of settlement in early stages of proceedings – former director makes ‘walk away’ offer only – costs orders in specified gross sum of $15,000 plus court fees.

CONTEMPT – Barrister – ceased to hold practising certificate – continued to practice – gave undertaking to Bar Association – breached – gave undertaking to Court – breached – injunctions issued by Court – breached – wilful disobedience to Court orders – plea of guilty – psychiatric condition – approach to imposition of punishment – imprisonment – suspension of punishment

CRIMES — sentencing — manslaughter — self‑defence with excessive force — aggravating factors

CONTRACTS — Construction — Interpretation — Contract for sale of land — Meaning of “best endeavours” — Whether the parties’ right to rescind was inter-dependent on the plaintiff’s obligation to use best endeavours to obtain finance from the bank — Whether plaintiff used best endeavours and validly rescinded the contract

CRIMINAL LAW – sentence – manslaughter – offender pleaded not guilty to murder but guilty to manslaughter at commencement of trial by jury – verdict of guilty of lesser form of homicide – foundation of offence unlawful taking of a human life – manslaughter by unlawful and dangerous act – offender forcefully broke bottle and held sharp piece of glass in hand whilst struggling with deceased – deceased fatally wounded to throat – mature Aboriginal offender – childhood marred by violence and abuse of alcohol – offender homeless and abusing substances for years – poor physical and mental health – lengthy criminal record – repeated imprisonment for actual or threatened violence – finding of remorse, albeit limited – very guarded optimism about the future – sentence imposed