Cases and authorities

COST – Specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – lengthy estate administration – review of Registrar’s decision under Uniform Civil Procedure Rules 2005, r 49.19 – claim for executors’ commission – the Registrar awards commission under Probate and Administration Act 1898 – the beneficiaries allege maladministration of two estates by the executors – Registrar’s decision upheld and costs orders made against the beneficiaries in two prior judgments of the Court – parties agree that the Court should make a specified gross sum costs order instead of assessed costs in respect of these costs orders – whether general cost discounts should be made when making a specified gross sum costs order in relation to any order for indemnity costs – whether any executors’ costs have been unreasonably or improperly incurred – what specified gross sum, instead of assessed costs, should be fixed in respect of the categories of costs in dispute.

LAND LAW – possession of land – writ of possession – stay sought pending hearing of appeal – where no notice of appeal filed – where time for filing had expired - application dismissed

MENTAL HEALTH — Management of estate — Person incapable of managing her affairs — Approval of transfer of management of incapable person’s interest in a Special Disability Trust to a protected estate management regime EQUITY — Trusts and trustees — Variation of trusts — Revocation of Special Disability Trust — Inherent and statutory jurisdiction — Trustee Act 1925 NSW, s 86A

PARTNERSHIP – scope of business undertaken in partnership – allegation that director of one partner received partnership monies in which partners were entitled to share equally – claim by other partner against director of first partner for money had and received – whether director unjustly enriched by receipt of partnership monies – recipient liability for breach of partner’s fiduciary duties not an established category of unjust enrichment - claim for taking of accounts of the partnership which came to an end in 2003 – where order sought for the purpose of accounting for two assets – where impossible to identify, quantify or value one of those assets – where other asset was not an asset of the partnership – whether taking of accounts would serve any useful purpose – whether claim for an order for the taking of accounts time barred CONTRACTS – oral agreements – whether alleged oral agreements entered into and on what terms – alleged repudiation – damages claimed – whether evidence provided rational basis to estimate damages

CRIME — murder — partial defences — substantial impairment CRIMINAL PROCEDURE — trial — case management — pre-trial hearing — advance ruling on whether s 23A of the Crimes Act 1900 (NSW) applies in its current form or in the form it had prior to amendments by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) — where trial commenced prior to commencement of amendments — where earlier form refers to substantial impairment by abnormality of mind arising from an underlying condition while current form refers to mental health impairment or cognitive impairment STATUTORY INTERPRETATION — amendment and repeal — retrospectivity — Interpretation Act 1987 (NSW), s 30 — absence of express transitional provisions or other express legislative intention regarding application of current form of s 23A of the Crimes Act 1900 (NSW) to proceedings on foot prior to commencement of amendments by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) — preferred construction requires application of earlier form of statutory provision

CRIME — murder — partial defences — substantial impairment CRIMINAL PROCEDURE — trial — case management — pre-trial hearing — advance ruling on admissibility of audio-visual recording of interview with deceased in hospital EVIDENCE — exclusion of prejudicial evidence in criminal proceedings — where accused objects to visual component of audio-visual recording of interview with deceased in hospital — where deceased’s evidence could rationally affect to a significant extent the assessment of the existence of facts in issue — where assessment of the reliability and credibility of the deceased is enhanced by visual non-verbal communication — whether video likely to cause an emotional response affecting the judgment of the jury — interviewee bruised and bandaged but generally articulate and not in any apparent significant discomfort — no significant danger of unfair prejudice — probative value of video not outweighed by danger of unfair prejudice — evidence admissible

CRIME — murder — partial defences — substantial impairment CRIMINAL PROCEDURE — trial — case management — pre-trial hearing — advance ruling on admissibility of tendency and coincidence evidence EVIDENCE — tendency and coincidence evidence — criminal proceedings — where tendency evidence and coincidence evidence overlap because prosecution seeks to rely on coincidence evidence to establish that accused had particular tendency — whether the evidence has significant probative value — where probative value is lacking in the particular circumstances of the present case because tendency expressed at a high level of generality — whether probative value of the evidence is outweighed by danger of unfair prejudice — danger that jury may be clouded by an emotional response to the evidence — danger that jury may fail to allow that a person with a particular tendency to act or think a certain way did not act or think that way on the occasion in question — danger occasioned by requiring accused to answer a raft of uncharged conduct — evidence inadmissible

EQUITY — General principles and maxims — They who seek equity must do equity — Equitable estates and interests — Accounting — Rental income and outgoings — Loan repayments — Occupation fees EQUITY — General principles — Equitable estates and interests — Nature of equitable interests and ownership — Beneficial ownership — Property purchased in the name of defendant alone — Joint loans applied to purchase of property

MENTAL HEALTH – application for extension of status as forensic patient – whether defendant poses an unacceptable risk of causing serious harm to others that cannot be managed by less restrictive means – index offending involved a number of break, enter and steal offences in circumstances of aggravation – defendant suffering from intellectual disability, schizophrenia, antisocial personality disorder, substance abuse disorder – no proposal for management by less restrictive means – no opposition to extension

CRIME – CROWN APPEAL – alleged errors of fact – alleged mistake as to momentary inattention – alleged error in finding accident as distinct from deliberate running of red light – moral culpability – manifest inadequacy – no error of fact disclosed – no error of conclusion – sentence within range and within judge’s discretion given subjective circumstances and otherwise good character – appeal dismissed.

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Whether open to jury to find “serious physical disability” — Whether use of more specific definition required — Quintessential jury question CRIMINAL PROCEDURE — Trial — Directions to jury — Misdirection — Whether direction necessary as to definition of “serious physical disability” — Whether miscarriage of justice established

CORPORATIONS — Receivers and managers — Appointment by court — Application by voluntary administrators of certain companies for appointment as receivers and managers of the assets and undertakings as to which those companies are or were trustees — Where such appointment is necessary for dealing with or realising relevant assets — Where trust beneficiaries seek appointment of new trustees to realise assets — Where appointment of voluntary administrators as receivers and managers would protect rights of indemnity and creditors interests.

EQUITY – Trusts and trustees – Judicial advice under s 63 of the Trustee Act 1925 (NSW) – where proposed amendments to trust deed of industry superannuation fund give trustee power to be paid and retain remuneration – where amendments sought to enable trustee to meet potential liabilities against it and its directors – where trustee is not-for-profit company with nominal capital – where trust deed contains existing remuneration power – whether proposed amendments consistent with recent amendments to ss 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and duties of the trustee

BUILDING AND CONSTRUCTION – building contract – adjudication – first defendant builder now in liquidation – payment claim by first defendant under Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication determination in favour of defendant – judgment entered – garnishee order served on plaintiff’s bank – adjudicated amount paid to first defendant – whether first defendant had already been paid amounts claimed in payment claim – whether claims in payment claim were payable by plaintiff to the first defendant under the building contract CONTRACT – oral agreement made at February 2013 Meeting – subject matter of the 2013 Agreement – whether October Letter accurately set out contents of 2013 Agreement CORPORATIONS – directors and officers – resolution by directors of the first defendant to pay a dividend immediately after first defendant received adjudicated amount following adjudication under Building and Construction Industry Security of Payment Act – first defendant now in liquidation – where liquidator has assigned certain of first defendant’s rights to the plaintiff – whether by paying the Dividends the first defendant contravened s 254T of the Corporations Act 2001 (Cth) – whether directors procured that contravention – whether first defendant’s assets exceeded its liabilities at the time of paying the Dividends – whether payment of Dividends materially prejudiced first defendant’s ability to pay its creditors – whether plaintiff was then a creditor of the first defendant CORPORATIONS – whether payment of the Dividends was an alienation of property with intent to defraud creditors for the purposes of s 37A of the Conveyancing Act 1919 (NSW) CORPORATIONS – whether directors acted in breach of their duties to the first defendant – whether plaintiff has suffered a loss by reason of the payment of the Dividends – whether directors liable to compensate plaintiff for any such loss CORPORATIONS – whether the payment of the Dividends was an undue preference for the purposes of s 588FA of the Corporations Act, an uncommercial transaction for the purposes of s 588FB of the Corporations Act, an insolvent transaction for the purposes of s 588FC of the Corporations Act, an uncommercial director-related transaction for the purposes of s 588FDA of the Corporations Act and a voidable transaction for the purposes of s 588FE of the Corporations Act CORPORATIONS – whether writing off of shareholder loans was an unreasonable director-related transaction for the purposes of s 588FDA of the Corporations Act CORPORATIONS – whether orders should be made under s 588FF of the Corporations Act EQUITY – tracing – whether plaintiff able to trace proceeds of Dividends into the hands of non-director defendants

CORPORATIONS – application to set aside statutory demand – cross-examination – Graywinter principle – whether costs assessment application made out of time renders bills not due and payable. WORDS AND PHRASES – “in accordance with”.

MORTGAGES — remedies of the mortgagee — agreement to grant mortgage of Real Property Act 1900 land — jurisdiction of court to make order for sale EQUITY — unconscionable conduct — bridging loan

HIGH RISK OFFENDERS – extended supervision orders – definition of eligible offender – advocating support for “terrorist act” or “violent extremism” – carrying out violent acts not sufficient – delivery of letters threatening member of State Parliament – threat visible to staff who received letters – transient delusional disorder not sufficient to negate intention – nature of double intention required – Terrorism (High Risk Offenders) Act 2017 (NSW), s 10(1)(c)(i) HIGH RISK OFFENDERS – extended supervision orders – assessing “unacceptable risk” of committing a “serious terrorism offence” – questioning of expert witness as to effect of delusions denied by offender – basis for rejection of opinion of court-appointed experts – reliance on failure of offender to give evidence – Terrorism (High Risk Offenders) Act 2017 (NSW), s 20(d)

CRIME – appeal against sentence – sentence on guilty plea – failing to report commission of child abuse offence – Form 1 offence of failing to provide a child with necessities of life – six-week old child of applicant mistreated by mother – severe brain injury resulting in permanent deficits – denial on oath of agreed facts – subsequent withdrawal of denial – whether applicant traversed plea – reduced utilitarian discount – discount for assistance – adequacy of reasons

CRIME – appeal and review – further offences taken into account – offences listed on a Form 1 – procedural irregularities – Form 1 not signed by the Director of Public Prosecutions – Form 1 failed to identify which principal offence the further offences were in respect of – failure of trial judge to directly ask the offender if she wanted the further offences to be taken into account – no evidence of prejudice to offender

EQUITY – unconscionable conduct – where sublessor issued notices of default and purported to terminate subleases – whether amounts said to be owing to sublessor were in fact owing – whether sublessor acted unconscionably or in abuse of power in terminating subleases – whether purpose of termination was to seek to recover unrelated sums said to be owing to director of sublessor by husband and father of sublessees LEASES AND TENANCIES – subleases – default and termination – whether notices of default were valid – whether termination of subleases was valid – whether amounts said to be owing to sublessor were in fact owing - whether sublessor acted unconscionably or in abuse of power in terminating subleases – whether purpose of termination was to seek to recover unrelated sums said to be owing to director of sublessor by husband and father of sublessees

SUCCESSION — Contested probate – Elderly will-maker - Validity of Wills - The Plaintiff is the executor named in the duly executed Will of the deceased made on 29 October 2016 – Last Will of the deceased in time – Alleged lack of testamentary capacity, lack of knowledge and approval, and suspicious circumstances alleged by the Defendants at the time the deceased made the 2016 Will - Whether onus on the Plaintiff, as propounder of the 2016 Will, has been discharged - Agreement of the parties that if the 2016 Will is not the subject of a grant, Probate in solemn form of a Will made by the deceased on 3 May 2013, the penultimate Will, should be made.

CONTRACTS — loan agreement — where deed of amendment varied date for repayment — whether condition precedent to that deed satisfied CONTRACTS — loan agreement — where Lower Rate of interest of 2.5% per month — where Higher Rate of 5% whilst event of default subsists — whether event of default occurred — whether clause imposing Higher Rate unenforceable as penalty MORTGAGES AND SECURITIES — mortgages — where mortgagee purportedly exercised power of sale — whether mortgagee authorised to exercise power of sale — whether mortgagee breached equitable and statutory obligations in that exercising power

CIVIL PROCEDURE — Pleadings — Amendment — Where substantial delay in seeking to amend the pleadings — Close proximity of the hearing — Where amendment would not allow sufficient time for defendants to lead evidence or require vacation of the hearing date. CIVIL PROCEDURE — Pleadings — Amendment — – matters required for defendants to plead defence under business judgment rule. EVIDENCE — Expert evidence — Whether to grant leave under UCPR r 31.28 to rely upon late expert report — Whether exceptional circumstances exist — Where defendants delayed in retaining experts and serving the expert reports — Where reliance on expert reports would require vacation of hearing date.

JUDGMENTS AND ORDERS – amending, varying and setting aside – valuation and buy-out orders made by consent – other prayers for relief remain on foot – orders limited materials to be provided to valuer – party subsequently suggests material to the valuer contrary to agreed regime – that party seeks to enforce consent orders – other party seeks vacation of consent orders – orders vacated.

CIVIL PROCEDURE - summary disposal - dismissal of proceedings - abuse of process - no reasonable cause of action disclosed - statement of claim filed by plaintiff against six defendants including State of NSW, Court of Appeal judges, Chief Justice, Attorney-General and High Court judges - plaintiff seeks compensation for mental harm from negligence or intentional or reckless act - prior proceedings under Succession Act for family provision - Deed of release approved by Court - attempt by plaintiff to re-litigate earlier proceedings - finality principle - judicial immunity - where State of NSW not vicariously liable for acts or omissions of a judicial officer - powers and duties of the Attorney-General – proceedings dismissed

CRIME – appeal and review – appeal against sentence from Local Court to District Court – District Court dismissed appeal – where District Court judge decided not to order that full-time custodial sentence be served by way of intensive correction order – judicial review – limited to review for jurisdictional error by privative clause in s 176 of District Court Act 1973 (NSW) – where assessment contemplated by s 66(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) not undertaken – whether failure to conduct assessment amounted to jurisdictional error JUDICIAL REVIEW – jurisdictional error – applicant pleaded guilty to various offences under Firearms Act 1996 (NSW) – applicant sentenced on basis of agreed facts – Local Court imposed full-time custodial sentence of three years – appeal to District Court pursuant to s 11(1) of Crimes (Appeal and Review) Act 2001 (NSW) – applicant raised submission that sentence of imprisonment should be served by way of intensive correction order – District Court dismissed appeal – whether District Court fell into jurisdictional error when rejecting submission seeking intensive correction order – where s 66(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) required District Court judge to assess whether making an intensive correction order or ordering full-time detention was more likely to address applicant’s risk of reoffending – whether District Court judge conducted assessment as required by s 66(2) – where s 66(1) expresses that community safety is paramount consideration in deciding whether to make an intensive correction order – whether failure to conduct assessment contemplated by s 66(2) amounted to jurisdictional error SENTENCING – penalties – intensive correction orders – proper approach to exercise of discretion – mandatory considerations – Crimes (Sentencing Procedure) Act 1999 (NSW), s 66(2) – whether failure to conduct assessment contemplated by s 66(2) amounted to jurisdictional error – where community safety is paramount consideration in exercising the discretion to make intensive correction order

ADMINISTRATIVE LAW – particular administrative bodies – New South Wales Civil and Administrative Tribunal – Occupational Division – subject matter of power or decision – disciplinary decisions – legal practitioners – barristers – misconduct and discipline – professional misconduct – where respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – where the Tribunal found that the respondent had not engaged in professional misconduct – whether the Tribunal erred in failing to find that the respondent’s conduct would justify a determination that the respondent was not a fit and proper person to engage in legal practice – whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a formal reprimand OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – disciplinary proceedings – professional misconduct – where respondent is a practising barrister – respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – New South Wales Civil and Administrative Tribunal found that the respondent had engaged in “unsatisfactory professional conduct” – respondent alleged to have said the words “suck my dick” to the female clerk – where immediate verbal complaint made by female clerk to a colleague – where the events of the dinner were recorded by closed circuit television cameras – where the Court was in as good a position as the Tribunal to determine questions of fact – whether the respondent said to H the words “suck my dick” OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where professional misconduct is defined in s 297 of the Legal Profession Uniform Law (NSW) – where that definition is expressed to be “inclusive” of the traditional definition of “professional misconduct”’ at common law – where the Court has inherent jurisdiction to supervise members of the legal profession in New South Wales – where the admission, suspension or removal of legal practitioners in exercise of that jurisdiction considers whether a person is a “fit and proper to engage in legal practice” – where the applicant contended that Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 created a distinct category of “professional misconduct” at common law – whether there is a distinct category of professional misconduct at common law beyond that which is incorporated into s 297 of the Legal Profession Uniform Law (NSW) OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where s 297 of the Legal Profession Uniform Law (NSW) defines “professional misconduct” as including conduct “that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice” – where conduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding – where unfitness is not measured by the objective circumstances of the conduct alone but also by consideration of character – whether the respondent’s conduct would justify a finding that he was not a fit and proper person to engage in legal practice OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – grounds for disciplinary orders – where respondent said the words “suck my dick” to a female clerk – where the respondent’s conduct and words warranted severe condemnation – where the Court has and will have no tolerance for conduct of legal practitioners that does not recognise and meet appropriate standards in respect of the treatment of women – where the objective of disciplinary orders is protective and not punitive – where the Tribunal found that the respondent’s conduct was an isolated instance of departure from accepted norms – where the respondent has suffered significant personal, emotional and financial cost as a result of his conduct – whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a formal reprimand STATUTORY INTERPRETATION – definitions – “means” and “includes” – definition of “professional misconduct” in Legal Profession Uniform Law (NSW), s 297 – where that section was intended to incorporate “the traditional common law definition” of professional misconduct

COSTS – application for indemnity costs – offers of compromise – Calderbank offers – scope of Defamation Act 2005 (NSW) s 40 – whether offers were reasonable when made – whether non-acceptance reasonable – whether offers genuine offers of compromise – offers made no provision for existing legal costs – application dismissed COSTS – claim for interest – claim for interest to be back-dated to date costs paid – scope of Civil Procedure Act 2005 (NSW), s 101(5) – whether variation of existing costs order – application of UCPR r 36.16(3A) – if applicable, variation sought out of time – whether order should be made

CONTRACTS – construction – interpretation – contract for the sale of a hotel and associated business – where cl 50.1 required the business to be conducted in its “usual and ordinary course” – the meaning of “usual and ordinary course” – whether the phrase refers to the usual and ordinary course of hotel businesses generally or to the particular business – whether the business was required to be carried on in an identical manner to the way it was carried on pre-contract – objective intention of the parties – purpose of the transaction CONTRACTS – construction – interpretation – contract for the sale of a hotel and associated business – COVID-19 pandemic – restrictions on trading – where risk passed on completion not on contract – whether such risk would include the significant restriction on trading resulting from the Public Health Orders – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) CONTRACTS – construction – interpretation – contract for the sale of a hotel and associated business – COVID 19 pandemic – restrictions on trading – severability – where cl 63.7 dealt with severance – whether cl 63.7 operated to sever cl 50.1 in the contract of a temporary supervening illegality – whether the Public Health Order rendered cl 50.1 unenforceable – whether cl 50.1 formed part of an indivisible whole by which the hotel and business was to be transferred as going concern – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) CONTRACTS – implied terms – terms implied in law – contract for the sale of a hotel and associated business – whether there was an implied term to the effect that the obligation in cl 50.1 of the contract was limited to the extent permitted by law – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW) CONTRACTS – termination – repudiation of contract – wrongful termination – contract for the sale of a hotel and associated business – COVID-19 pandemic – restrictions on trading – whether the respondent was entitled to issue a notice to complete and a notice of termination – whether the conduct of the respondent amounted to repudiation of the contract – whether the conduct of the respondent was such as to convey to a reasonable person in the position of the appellants renunciation either of the contract as a whole or a fundamental obligation under it CONTRACTS – termination – frustration – supervening illegality – contract for the sale of a hotel and associated business – COVID-19 – restrictions on trading – whether compliance with cl 50.1 was illegal because of the operation of the Public Health Order – where the effect of the temporary supervening illegality of cl 50.1 rendered the sale of the business not as a going concern – whether the respondent was entitled to demand completion in circumstances where it was not able to deliver possession of the hotel as a going concern – whether cl 50.1 of the contract made it a condition that the business be sold as a going concern – whether cl 50.1 was an essential term in that a purchaser would not have entered into the contract without the business being sold as a going concern – Public Health Act 2010 (NSW), ss 7, 10 – Public Health (COVID-19 Places of Social Gathering) Order 2020 (NSW)

COSTS – party/party – appeals – whether the respondent should pay its costs of the proceedings in the court below – whether there should be no order as to costs – where the primary judge’s conclusions in favour of the respondent on some issues was upheld

PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was an accessory to breaches of fiduciary obligations owed to the respondents – where the appellant caused the third respondent to fail to account to the second respondent for one half of the profits derived from the acquisition and subsequent sale of three contiguous parcels of land – where primary judge did not refer to two essential matters to establish accessorial liability under the second limb of Barnes v Addy – where the appellant knew of facts and circumstances which would indicate the fact of the breach on the part of a fiduciary to an honest and reasonable person PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was liable to the first respondent or the second respondent PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – interpretation of agreement – oral agreement – where there was an agreement to enter into a partnership to acquire and resell three contiguous parcels of land and share expenses and profits equally – whether the agreement was subject to a sunset condition – where the first respondent’s evidence of oral agreement accepted – where the third respondent was a vehicle entrusted to hold assets on behalf of the partnership

CRIME – Appeals – Appeal against sentence – Recklessly inflict grievous bodily harm in company – Affray – Where sentencing judge did not consider applicant’s deprived background to have materially contributed to his offending due to his prior good character – Whether the sentencing judge erred in her consideration of applicant’s moral culpability – Application of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

CRIME – appeals – appeal against sentence – aggregate sentence - extension of time in which to appeal – robbery in company – whether sentence manifestly excessive – parity – lessor role – record – Form 1 offence – extension of time granted – appeal granted – appeal allowed – resentenced

CRIME – applicant convicted of conspiracy to rob – indictment confined conspiracy to rob a person in a particular street in particular suburb – Crown conducted its case on that basis – unreasonable verdict – sufficiency of evidence to demonstrate object of conspiracy was to rob someone in that street – sufficient of evidence to demonstrate that applicant was a participant in conspiracy – whether miscarriage of justice arising from trial judge’s direction in response to jury question about proposed location of robbery – held – verdict unreasonable because of strength of evidence said to demonstrate object of conspiracy was to rob a person in particular street – other grounds rejected – acquittal entered.

CRIME – Sentence appeal – assessment of respective roles of co-offender – parity – no justifiable sense of grievance – appeal dismissed

CRIME — appeals — appeal against sentence — application for leave to appeal — manifest excess — applicant with significant intellectual disability — principles in Bugmy v The Queen enlivened — sentence not outside the range of sentences reasonably available — leave to appeal granted — appeal dismissed CRIME — sexual offences — sexual assault

CRIME – federal offences – dishonesty offences – where accused charged with two counts of dishonestly representing to a public official that he did not control certain companies – where particulars of the charges included that the accused made false representations during a compulsory examination about his involvement with the companies – Criminal Code (Cth), s 135.1(7) STATUTORY INTERPRETATION – principle of legality – criminal proceedings – application of accusatorial principle and companion rule to answers compelled under taxation legislation – where accused compulsorily examined under s 264 of the Income Tax Assessment Act 1936 (Cth) 12 years prior to the laying of charges – whether dissemination and use of transcript of examination by investigative and prosecuting authorities lawful pre- and post-charge CONSTITUTIONAL LAW – Commonwealth Constitution – general principles – whether fair trial values constitutionally entrenched – whether accusatorial principle and companion rule constitutionally entrenched so as to invalidate any legislative provision said to be in breach of the principle or the rule

CORPORATIONS — Members’ rights and remedies — Whether winding up on just and equitable ground should be ordered.

EQUITY – Trusts and trustees – judicial advice under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and cross-vesting legislation – where proposed amendments to trust deed of superannuation fund give trustee power to levy fee on members and accumulate trustee capital – where amendments sought to enable trustee to meet potential liabilities against it and its directors – where superannuation fund operates under profit-to-member structure with nominal capital – where trust deed contains existing remuneration power – whether proposed amendments consistent with recent amendments to ss 56(2) and 57(2) of the Superannuation Industry (Supervision) Act 1993 (Cth) and duties of the trustee

LAND LAW – leases – options to renew – defendant lessee purported to exercise option to renew lease – plaintiff lessor served a notice under section 133E of the Conveyancing Act 1919 (NSW) – notice not served until seven months after date of expiry of lease – notice alleged breaches that existed at that date and continued thereafter – held that regardless of whether breaches are continuing, only breaches occurring up to date of expiry of lease can preclude lessor from exercising option – notice held invalid because not given within time – defendant not precluded from exercising option – declaration made that the defendant validly exercised option to renew and is entitled to a new lease LAND LAW – leases – termination of leases – plaintiff lessor served a Notice of Termination for the defendant’s failure to pay $117,702.94 in rent and operating expenses – COVID-19 pandemic special provisions – where defendant an “impacted lessee” under Schedule 5 to the Conveyancing (General) Regulation 2018 (NSW) – Regulation prohibits lessors terminating leases in certain circumstances – Regulation prohibited plaintiff from terminating lease for failure to pay rent during “prescribed period” unless plaintiff complies with requirement to renegotiate in good faith rent payable under lease – plaintiff fails to comply with requirement and is not deemed to have complied due to a failure of defendant to provide information – plaintiff’s termination of lease invalid – declaration made that termination invalid and of no effect

SUCCESSION — Construction — Where wills silent as to date of valuation of property in estate subject to testamentary option exercisable by beneficiaries — Where executors had not implemented the process for determination of value required by the wills — Where the parties had nonetheless implemented part of the valuation process — Where the Court has suggested a pragmatic approach to the determination of the valuation date resulting from the parties’ conduct — Where no point of principle COSTS — Where plaintiffs and defendants are both beneficiaries and executors under wills — Where the proceedings were required to determine the proper construction of the wills in circumstances where that issue was uncertain — Where the Court has ordered that the costs incurred by the parties are proper testamentary expenses— Where the Court has ordered that the costs of all parties be paid out of the estates of the testators on the indemnity basis COSTS — Where plaintiffs propose to discontinue part of proceedings — Consideration of the principles

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where plaintiff successful in attaining orders sought — Where plaintiff sought costs of proceedings from defendant on indemnity basis — Where defendant raised special rule pursuant to s 66G of Conveyancing Act 1919 (NSW) that parties costs’ be paid out of net proceeds of sale of property — Where Court made orders for parties’ costs of application on that basis COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — Where defendant filed cross claim and resisted orders sought by plaintiff — Where at commencement of hearing defendant discontinued cross claim and agreed to orders substantially in terms sought by plaintiff — Where plaintiff sought costs of proceedings from defendant on indemnity basis — Where Court ordered defendant to pay plaintiff’s costs of cross claim on ordinary basis

COSTS – Family Provision – Costs-capping – competing claims by two adult children for further provision out of the estate of their deceased mother – where the plaintiff had success in the proceedings in claiming on behalf of the estate an interest in property in the name of the defendant and was given further provision out of the estate with a legacy of $75,000 – where the deceased’s estate is minimal, as a result of the conveyance of her principal asset to the defendant in which the defendant was living – whether it is appropriate for the Court to make costs-capping orders – when such an order may be made. COSTS – Party/Party – Payable out of fund – Deceased estate – where the deceased’s estate is minimal – consideration of who is to bear costs – plaintiff successful on behalf of the estate but the defendant had a strong family provision claim – balancing the Court’s need to recognise the plaintiff’s success in the aspect of the case that took more than half the time in the proceedings, namely setting aside the property transfer to the defendant and the defendant’s otherwise strong family provision case – whether or not the defendant’s solicitor should recover costs more than a specified amount pending the outcome of any investigation by the Law Society into the matters referred by the Court in the first judgment.

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Where offer of compromise not served until after office hours on Friday before hearing and open for acceptance only until an hour before commencement of hearing COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Costs of proceedings below — Where appellant successful on appeal — Where issue on appeal “separable” and “dominant” — Where respondent substantially successful on factual issues below — Where costs of issues on which respondent succeeded below would vastly have exceeded costs on issues on which it failed

JUDGMENTS AND ORDERS – application to vary or set aside orders – application to amend judgment – application to amend catchwords – whether terms of catchwords justiciable

CRIMINAL LAW – appeal against sentence – applicants pleaded guilty to manufacturing large commercial quantity of prohibited drug – whether error in finding applicants to be “principals” – whether error in determining discount for guilty pleas – significance of lengthy sentencing proceedings on contested issues of fact, resolved adversely to applicants – whether error in failing to find special circumstances – whether sentence manifestly excessive – all grounds save last dismissed – appeal allowed and applicants resentenced

CORPORATIONS – access to records of examination conducted under Div 1 Pt 5.9, Corporations Act 2001 (Cth) – access to third party creditor.

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – service of copy of adjudication application – where adjudication application provided electronically to adjudication authority and adjudicator – where hard copy of adjudication application and USB drive served on plaintiff respondent – where plaintiff respondent initially could not open file on USB drive to view video – where some minor differences between hard copy served on plaintiff respondent and electronic copy provided to adjudication authority and adjudicator – whether what was served was a copy of that provided to adjudication authority and adjudicator – whether substantial compliance with requirements of s 17(5) of the Building and Construction Industry Security of Payment Act sufficient – whether plaintiff respondent denied procedural fairness – whether adjudicator failed to perform his statutory function STATUTES – proper construction – whether s 17(5) of the Building and Construction Industry Security of Payment Act 1999 requires strict compliance – whether service of copy adjudication application in substantial compliance with s 17(5) effective

COSTS – proceedings on foot for four years – $30 million claim – defendants make ‘walk away’ offer in 2020 and oppose further mediation – in pre-trial directions, Judge encourages compromise – insufficient time to further mediate – Calderbank offer made a week before the trial – plaintiffs discount claim by 55% – no reply – indemnity costs order made. INTEREST ON COSTS – defendants’ negligence contributed to plaintiffs’ financial problems and any inability to prosecute the proceedings with dispatch – interest payable on costs from date of payment.

CIVIL PROCEDURE — Probate and administration of estates — Administration suit — Where defendant appointed administrator of intestate estate 45 years ago — Where defendant has not yet finalised administration of estate — Where primary asset in intestate estate was land — Where plaintiff beneficiary alleged defendant has maladministered estate and sought accounting on basis of wilful default — Where evidence fallible and contemporary documents lacking — Where findings of credibility practically not possible — Where Court refused to order accounting unless defendant administrator pursues application for account to limit interest of estate in land to its unimproved capital value CIVIL PROCEDURE — Probate and administration of estates — Administration suit — Where plaintiff beneficiary sought revocation of grant of letters of administration to defendant administrator and appointment of replacement administrator — Where grant made 45 years ago — Where intervening events no longer necessitate orders sought — Where Court refused to make orders sought EQUITY — Trusts and trustees — Powers, duties, rights and liabilities — Power to provide for maintenance and advancement of minor beneficiaries — Where defendant administrator used beneficiaries’ entitlements in estate to provide for their maintenance and advancement during their minority — Where plaintiff beneficiary argued defendant administrator not entitled to do that — Where plaintiff beneficiary attained majority over 20 years ago — Where defendant administrator single parent with limited source of income — Where Court found orders can be made authorising trustee to apply income of trust for maintenance, education and advancement of minor beneficiaries