Cases and authorities

CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – where first respondent assigned $18.5 million debt to daughters for no consideration – where pressed to do so to avoid potential claims to asset – where demand for repayment of debt would require sale of some of assignor’s substantial business assets – where assignment has disadvantageous legal and practical impacts on assignor – where assignor not understand significance of assignment on legal rights – where assignor denied opportunity to take independent advice – whether primary judge erred in finding Deed of Assignment unjust – whether error in considering consequences of contract for person other than party claiming relief under Act

EVIDENCE – admissibility of online chat posts of one accused against a co-accused in context of joint commission offence alleged against co-accused – where posts are being used to show interest in political ideology – where posts are not being used to prove the truth of their contents – where the rule against hearsay is not engaged

COSTS - No issue of principle

CRIME – sentencing – murder and armed assault with intent to rob causing wounding – plea of guilty to constructive murder on contested facts – appropriate discount for plea – impact on the family of the victim – single lethal stab wound – profound deprivation in offender’s early childhood and trauma in late adolescence – impact on moral culpability – young offender of prior good character – impact of COVID-19 pandemic on harshness of custodial sentence – application of R v Brooks (No 5) [2017] NSWSC 824 (Hamill J) in giving effect to competing purposes of sentencing

CRIME – TRIAL - murder – application for a permanent stay of proceedings – delay of two decades between murder and charge – witnesses unavailable - loss of evidence over time – forensic disadvantage to the accused – contamination of witness evidence by coronial proceedings – accused feared being charged over lengthy period – necessity for accused to take steps for the care of children in the event of charge – question of the oppressive and vexatious nature of the proceedings – public interest – balancing exercise to be undertaken

SENTENCE – murder – conviction after trial – offence committed in the home – significant degree of planning – set up to make the murder appear to be suicide - domestic violence offence – offence in high range of objective seriousness - no remorse – prospects of rehabilitation unfavourable given continuing denial of responsibility – whether a life sentence should be imposed – community interest in protection and specific deterrence satisfied by lesser sentence considering age of offender at earliest release date – life sentence not imposed

COSTS – contest early in proceedings about pleadings and the joinder of parties – plaintiff brings proceedings by Statement of Claim against former co-partners in a partnership of lawyers – plaintiff joins a single defendant and not all the partners and by motion seeks orders to nominate that defendant as a representative of the other partners – Court declines to make the representative orders sought on the motion and requires the plaintiff to file an Amended Statement of Claim joining all partners as defendants – defendant raises other issues with respect to the sufficiency of the pleading in the proposed Amended Statement of Claim – short separate later hearing in respect of the pleading issues – what costs order should be made in the circumstances.

EVIDENCE – admissibility of evidence – whether images downloaded by one accused are admissible against a co-accused where joint commission is the basis of the offence alleged against the co-accused – agreement to commit an offence an element of count – where downloaded images are to be used for the purpose of proving state of mind of first accused – counsel for co-accused submitted the downloads were inferred representations about state of mind of first accused and therefore inadmissible hearsay evidence against co-accused – evidence admitted

SUCCESSION – family provision – alleged de facto relationship – application for continued possession of deceased’s home – interlocutory injunction – strength of prima facie case – relationship with final relief – balance of convenience – interim provision – likelihood of order for possession or ownership by way of final relief – balance of convenience – application refused

LAND LAW – possession of land – notice of motion - summary judgment sought in relation to statement of claim - summary dismissal sought with respect to cross-claim – orders sought made – costs

EVIDENCE – summary taken from electronic records – active database – Evidence Act s 50

LAND LAW — positive covenants — enforceability of positive covenants between successors-in-title to original covenantor and covenantee where burden does not run with the land — whether positive covenant to pay one-quarter of monthly gross rentals of four shops erected on dominant tenement of easement enforceable by owner of servient tenement — whether payment covenant enforceable because it is of the essence of easement — whether payment covenant enforceable because of conditional benefit principle — conditional benefit principle good law in Australia — existence of easement ensured by operation of Torrens system — exercise of rights of easement dependent on performance of condition — conditional benefit principle applicable to recurrent obligations — test in Davies v Jones [2010] 1 P & CR 22; [2009] EWCA Civ 1164 adopted — benefit and burden conferred in or by same transaction — enjoyment of benefit conditional on or reciprocal to burden — whether necessary that payment covenant possess quantifiable correlation with enjoyment of easement — whether necessary that payment covenant possess correlation with other buildings on dominant tenement — opportunity or choice to disclaim benefit — whether real choice to use easements — whether condition in development approval removes choice — whether necessary that there be opportunity to disclaim all easements where multiple easements created by registered transfer LAND LAW — positive covenants — construction of positive covenants — meaning of “gross rentals” — meaning of “net rentals” compared LAND LAW — easements — construction of easements — admissibility of information beyond the register — whether unregistered deed entered into between original owner of servient tenement and local Council admissible to prove background to transaction

SUCCESSION — Family provision — Application for leave to commence family provision application out of time and application for further family provision dismissed in circumstances where the testator had divided her estate with approximate equality between her two children both of whom were of relatively equivalent personal and financial circumstances — No point of principle COSTS — Party/Party — Bases of quantification — Indemnity basis — Where defendant executor ordered to pay the plaintiff’s costs of proceedings to establish that the testator’s final will was invalid for lack of testamentary capacity and having been made under the undue influence of the defendant — Where the only parties interested in the testator’s estate were the plaintiff and the defendant, being the only children of the testator — Where the defendant was ordered to pay the plaintiff’s costs from a particular point in time for unreasonably failing to accept a Calderbank offer made by the plaintiff

LEGAL PROFESSION – application for documents from former solicitor’s file – solicitor’s lien – solicitor’s retainer terminated by client – solicitor refuses offer by client to set aside sum claimed out of proceeds of litigation if successful – whether offer of “reasonable security” – costs

TORTS – trespass to the person – assault – sexual assault – where Plaintiff aged between 14 and 15 sexually assaulted on number of occasions by employer in 1980s – plaintiff seeking compensatory and aggravated damages – psychiatric and psychological harm to plaintiff – substance addiction – causation – whether other factors contributed to plaintiff’s injuries – where sexual assaults caused lifelong injury to plaintiff principally from wrongdoing of defendant TORTS – trespass to the person – assault – sexual assault – where defendant has been convicted of criminal offences against the plaintiff – use to be made of previous convictions – s 91 Evidence Act

TORTS – Medical negligence – Gynaecological surgery for elective sterilisation – Failed Filshie clip tubal ligation leading to unwanted pregnancy – Circumstantial case – Reconciliation of inconclusive medical imagery with other evidence – Whether onus of proof reversed by trial judge – Requirement to prove ultimate question rather than subsidiary issues – Conclusion that pregnancy post surgery was attributable to negligent operator error on part of doctor TORTS – Damages – Civil Liability Act s 71 – Difference between damages for pregnancy and birth of child and damages for economic loss for loss of earnings attributable to psychiatric injury associated with birth of child TORTS – Damages – Non-economic loss – assessment of percentage of most extreme case

CRIME – sentencing appeal – applicant convicted of sexual offences committed against child in 2007 – previously convicted and sentenced for sexual offences against children committed in 2010 – whether sentencing judge erred in failing to consider totality – no submission made to sentencing judge that totality should be considered – separate offending – no error – failure to find special circumstances – whether House v R error established – no error – leave granted but appeal dismissed

CRIME – appeals – appeal against sentence – supplying or agreeing to supply methylamphetamine on an ongoing basis – whether the sentencing judge erred in the assessment of objective seriousness – whether sentencing judge failed to apply principles of parity between applicant and other related offenders – where similar offending by related offender placed on Form1 – where otherwise different offences charged between applicant and other offenders – whether sentence manifestly excessive – where applicant had strong subjective case – where comparable cases and statistics not provided to sentencing judge – appeal allowed

CRIMINAL LAW – appeal – appeal against sentence – possess child abuse material – whether sentencing judge erred in taking into account possession of images for a number of years in assessing objective seriousness – whether applicant was denied procedural fairness on issue of whether possession for a number of years increased objective seriousness – receipt of evidence regarding applicant’s medical status post-sentence

CIVIL PROCEEDINGS – Practice and procedure – Application for leave to appeal from an interlocutory decision of a Magistrate in the Local Court – Where the proceedings had been before the Local Court for hearing on six separate days – Consideration of principles to be applied in determining whether leave should be granted – Where the application of such principles weighed strongly against a grant of leave in the present case – Necessity for the applicant to demonstrate something more than an arguable error – No question of principle or issue of public importance – Where the costs incurred were disproportionate to the amount in issue – Leave to appeal refused – Summons dismissed PRACTICE AND PROCEDURE – Observations as to the utility of bringing an application for leave to appeal against an interlocutory decision of a Magistrate in the Local Court in circumstances where the proceedings in the Local Court were allowed to continue to finality before the application for leave was heard and determined – Necessity for parties to conduct litigation in a way which is conducive to the just, quick and cheap resolution of the issues and which is consistent with the dictates of justice

CRIMINAL LAW – trial conducted during pandemic – whether individual juror should be discharged – where juror “household contact” with person tests positive for COVID by PCR test – further delay of trial not in the interests of justice – whether continuing trial with 13 jurors likely to cause substantial miscarriage of justice

EVIDENCE – PRACTICE AND PROCEDURE –Application for leave to tender expert evidence without serving on the opposing party prior to trial – where application brought ex parte – consideration of relevant factors – interests of justice – “Markus” order granted

COSTS — Where proceedings are discontinued by leave — Where no determination on the merits — Default provision for costs under UCPR r 42.20.

PRACTICE AND PROCEDURE – no question of principle

HIGH RISK OFFENDER - statutory thresholds conceded – history of sexual abuse of young children as well as creating and accessing child abuse material – two conditions of the ISO contested: electronic monitoring and monitoring bank and financial records – conditions are appropriate to ensure safety of the community and in particular, relevantly, the safety of young children

CORPORATIONS – statutory demand – application to set aside statutory demand – omission of notes contained in prescribed form of demand – whether substantial injustice will be caused by reason of that defect unless the demand is set aside – whether disputed calculation of interest on judgment debt included in demand is some other reason why demand should be set aside

COSTS – offer of compromise – whether period for acceptance reasonable in circumstances JUDGMENTS AND ORDERS – interest – pre-judgment interest – rate applicable JUDGMENTS AND ORDERS – interest – post-judgment interest – exercise of discretion in Civil Procedure Act 2005 (NSW) s 101

HIGH RISK OFFENDER – threshold matters conceded - issue regarding whether the Court should make an interim supervision order or an interim detention order – two murders committed by the defendant 8 months apart in 2001 – three failed attempts at living in community on parole – interim detention order made

CORPORATIONS — receivers and managers — Court appointed to manage property and defend litigation — application for inquiry under s 423(1) Corporations Act 2001 (Cth) — principles at [107]-[115] – failure to cooperate with receivers — no prima facie case — application refused.

APPEAL AND REVIEW – extended supervision order – appeal – error conceded – appeal by rehearing – whether appeal court should determine application or remit to primary judge – Crimes (High Risk Offender) Act 2006 (NSW), s 22 – Lynn v State of New South Wales [2016] NSWCA 57 HIGH RISK OFFENDERS – extended supervision orders – matters to be considered – where appellant committed sexual offences against young girls and women – prohibition orders – child protection register and reporting – community treatment orders – national disability insurance scheme – Crimes (High Risk Offender) Act 2006 (NSW), ss 9(3)(e1), (f), (g), (i) HIGH RISK OFFENDERS – extended supervision orders – conditions – duration – monitoring – appropriateness for treatment and rehabilitation

CRIME — Appeals — Appeal against conviction —whether acquittal of co-accused was inconsistent with conviction of applicant for the same charge — whether the offence tried was the offence charged on the indictment

SENTENCING — Appeal against sentence — Severity — Whether sentence manifestly excessive due to personal hardship — Whether assistance provided to police warranted reduction of sentence — Whether special circumstances to reduce non-parole period due to drug addiction

BAIL – no question of principle

CIVIL PROCEDURE — Hearings — Suppression and non-publication — where parties are trade rivals — where dispute as to the confidential nature of valuation information — whether the Court should extend confidentiality orders previously made

CIVIL PROCEDURE – application to set aside default judgment – irregularity – default judgment given for liquidated claim – claims were for unliquidated damages – whether sufficient cause shown to set aside default judgment – whether default judgment should be set aside as to quantum but not liability – consideration of relevant factors – default judgment wholly set aside – consideration of appropriate costs orders

EVIDENCE — advance rulings under s 192A of the Evidence Act 1995 (NSW) — contested evidence would require additional evidence from 20 witnesses and extend the hearing by between four and six days — issues in the matter are clear — proceedings not at an early stage — advance ruling will save considerable legal expense — advance ruling given EVIDENCE — relevance — relevance to assessment of damages for breach of contract — contract wholly in writing — no other express or implied term of contract pleaded — ambiguity or vagueness not pleaded — evidence of oral statements at odds with written contract — evidence not relevant

REVENUE LAW –– Payroll Tax Act –– discretion to “de-group” –– review of defendant’s decision not to exercise discretion to de-group.

EQUITY – fiduciary obligations – scope of duty – company’s contracts to provide crushing services to a mine were performed by a director’s and employee’s own companies without disclosure – whether constituted a breach of duty – whether inability of company to perform its obligations a defence – whether acquisition of separate quarry in Victoria within scope of duty – scope of fiduciary duty identified by company’s actual course of conduct – primary judge correct to hold that performance of company’s existing contracts was breach of duty, and acquisition of separate quarry in Victoria not in breach of duty EQUITY – remedies for breach of fiduciary duty – account of profits – contracts entered into by companies controlled by director and employee in breach of fiduciary and statutory duties – contracts incapable of rescission – whether principles in Peninsular and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189; [1938] HCA 16 precluded account of profits – consideration of breadth and continuing applicability of principles in Peninsular and Oriental Steam Navigation Company v Johnson – principles only applied to cases where fiduciary acquires property when acting on behalf of principal – principles inapplicable to contracts for the supply of services EQUITY – remedies for breach of fiduciary duty – account of profits – discretionary withholding of relief – where principal is less than fully informed, but nonetheless “stands by” while fiduciaries continue to derive profits – whether principal had sufficient information to make it inequitable to stand by while profits continued to be made, and thereafter to obtain an account of those profits – profits made after October 2011 held not to be within account APPEAL – procedural fairness – complaint that aspects of reasoning at first instance denied procedural fairness – appeal by rehearing – not said that different evidence would have been led – no retrial sought – appellate court empowered and required to make appropriate findings – any denial of procedural fairness incapable of being material – in any event no denial of procedural fairness EVIDENCE – coincidence evidence – whether primary judge’s reasoning contravened coincidence rule – evidence tendered without objection – reasoning concerning company’s actual course of conduct not amount to use of evidence contrary to s 95 of Evidence Act 1995 (NSW)

BAIL – application for bail pending appeal and for pending trial in the District Court – applicant convicted of perjury and perverting the course of justice – appeal against conviction and sentence from judge-alone trial pending in Court of Criminal Appeal – necessity to demonstrate “special or exceptional circumstances” – show cause requirement applicable for charges at pending trial – special or exceptional circumstances not demonstrated – burden of showing cause not discharged – history of non-compliance with bail conditions – significant bail concerns – bail refused

CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors — where parties entered into a shareholder agreement — where shareholder agreement provided for the composition of the board of directors for a group of companies — where dispute as to the resignation of a director in accordance with the shareholder agreement — whether director resigned from all companies in the group —construction of the term “CEO Director”

COSTS – interlocutory costs – amendment of statement of claim – abandonment of causes of action – costs thrown away – order for payment of fixed sum on account

BAIL – show cause offence – where risk of flight – where Crown’s bail concerns mitigated by appropriate conditions – bail granted

CORPORATIONS – statutory demand – application to set aside statutory demand – whether there is a genuine dispute as to whether debt was due and payable – whether there is a genuine dispute as to the correct construction of deed – whether demand should be set aside for some other reason

ADMINISTRATIVE LAW – Judicial review – Workplace injury – Workers injury management and workers compensation act – Assessment of whole person impairment – Section 323 deduction – Jurisdictional error – Error of law – Matters that were not raised at first instance

SETTLEMENT – approval of settlement under s 76 of the Civil Procedure Act 2005

FAMILY LAW — Children — Adoption — declaration of parentage — whether the child is an Aboriginal child under s 4 of the Adoption Act 2000 (NSW) —placement with non-Aboriginal parents pursuant to s 4(2) or alternatively s 35(3) of the Adoption Act 2000 (NSW)

CONTEMPT OF COURT - Practice and procedure - Arrest - Detention in custody - Power of Court to direct alleged contemnors to be held in prison pending trial of contempt charge

CIVIL PROCEDURE – application for approval of settlement of personal injury proceedings commenced on behalf of person under legal capacity – whether proposed settlement is in the interests of the plaintiff

TERRORISM HIGH RISK OFFENDER – HIGH RISK OFFENDERS – final hearing – State of NSW originally sought continuing detention order under the Terrorism (High Risk Offenders) Act – amended to extended supervision order for three years after court appointed expert evidence received – duration and conditions agreed between the parties – applicable approach where orders by consent – violence and intimidation offences against police and corrections officers – possession of extremist material – verbal outbursts – extended supervision order granted

SUCCESSION – administration of a deceased estate – consequential orders – in earlier judgments in these proceedings the second defendant, the registered proprietor of certain real estate (the Killcare property) was found to hold that real estate on trust for a deceased estate represented by the plaintiff as administrator ad litem – the Killcare property is occupied by the first defendant – the plaintiff seeks permanent appointment as the administrator of the estate and seeks that an independent solicitor be appointed as an administrator with respect to the sale of the Killcare property – defendants object to this course – the first defendant not present at the hearing – whether the first defendant has adequate notice of the hearing – whether these appointments as administrators should be made – what order should be made with respect to terminating the occupation of the first defendant at the Killcare property – what other ancillary orders should be made. INJUNCTION – mandatory injunction – plaintiff claims mandatory injunction to require the first defendant to vacate the Killcare property – first defendant recalcitrant in complying with the Court’s orders – foreseeable that she may not comply with a mandatory injunction – whether judgment for possession should be given with a writ for possession to issue to be executed by the sheriff, to reduce the prospect of breaches of the peace and eliminate the possibility of contempt of the court’s orders.