Cases and authorities

CRIME – sentencing – murder – plea of guilty to constructive murder – hearing as to contested facts – deceased killed by a single stab wound – whether wound inflicted accidentally – whether offender had intention to cause grievous bodily harm

MENTAL HEALTH – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Extension Order – unacceptable risk – less restrictive means – extension granted

CONTACT – share sale agreement – business affected by fire before agreement – business made claims on insurance policies – whether amount received after agreement from insurer for uninsured losses caught by contractual clause – use of evidence of parties’ subjective intentions – primary judge erred in relying on evidence of intentions but construction nevertheless correct – appeal dismissed

CRIME – appeals – appeal against conviction – unreasonable verdict – trial – judge alone – murder – domestic violence – mental illness – partial defences – whether the accused had a “substantial impairment” – opinion evidence – expert opinion – whether the trial judge unreasonably rejected opinion evidence – Crimes Act 1900 (NSW), s 23A CRIMINAL PROCEDURE – trial – judge alone – appeal against conviction – new trial – miscarriage of justice – murder – domestic violence – whether a warning should have been given that no adverse inference can be drawn from the failure of an accused to give evidence – where the warning was not mandatory – where the onus lay on the accused to establish a partial defence – whether the warning can be implied from a right to silence direction –Criminal Procedure Act 1986 (NSW), s 133(3) – Criminal Appeal Act 1912 (NSW), s 6(1) – Crimes Act 1900 (NSW), s 23A

EQUITY — Trusts and trustees — Judicial advice — Rectification of trust deed — subjective intention of the party to the document and the person or persons behind it

SUCCESSION – family provision – notional estate – deceased’s superannuation passed to children pursuant to nomination given before deceased’s death – application for designation of superannuation monies as notional estate to provide liquid funds – sufficient value in the estate to make provision for applicant in due course – application untenable SUCCESSION – family provision – husband and wife – parties separate about twenty years before deceased’s death – parties register wife as separated for pension purposes – parties sever joint tenancy over matrimonial home, continuing to live in separate parts of it – husband’s will leaves estate including his half-share of the property to the parties’ three children in unequal shares – application by wife for provision – children agree on figure for provision in wife’s favour but disagree on its incidence – no settlement – wife must establish entitlement to provision – application refused

CIVIL PROCEDURE — Discovery — Whether an order for discovery ought to be made for the production of material relevant to whether the respondent is indemnified under an insurance policy

SENTENCING – remarks on sentence – manslaughter – unlawful and dangerous act – disposal of corpse – where offender killed his partner and concealed her body – where remains not found for five and a half years – history of personal violence offences – background of deprivation – special circumstances – plea of guilty – new count offence – limited evidence of remorse

PRACTICE AND PROCEDURE – cross-vesting – whether proceedings should be transfer from the NSW Supreme Court of New South Wales to the Supreme court of Western Australia – whether it is in the interests of justice to transfer the proceedings

CRIME — Murder — Cold case CRIMINAL PROCEDURE — Trial — Judge alone

COSTS – indemnity costs – legally aided party – costs awarded

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – where s 25 judgment entered in favour of builder – where time to claim damages under building contract out of time – where earlier proceedings claiming damages under building contract discontinued – where principals now seek declaration of the parties’ rights under the building contract purportedly in aid of injunction to restrain builder from being unjustly enriched by enforcing the s 25 judgment – whether such a claim is liable to be struck out CIVIL PROCEDURE – stay of proceedings – application by reason of unpaid costs in earlier proceedings – whether same or substantially the same cause of action in these proceedings as in those earlier proceedings COSTS – security for costs – relevant factors – impecuniosity – whether proceedings in substance defensive – other factors

CIVIL LAW – advocate’s immunity - Magistrate’s order for summary dismissal - plaintiff’s claim for negligence and breach of contract against solicitors who acted in criminal proceedings - appeal against Magistrate’s order - whether Magistrate exhibited bias - whether application an abuse of process - whether Magistrate erred in conducting a “hybrid hearing” conflating immunity with summary judgment - whether Magistrate applied the wrong test - self represented litigant - not his first rodeo - allowance made for pleadings and submissions - scatter gun - whether whole of claim bound to be defeated by immunity - whether disputed facts required resolution in final hearing

EVIDENCE – opinion evidence – exceptions – expert opinion - s 79 Evidence Act 1995 – whether evidence of costs assessor admissible – reasoning not exposed – methodology of “assessment” not elucidated – evidence inadmissible

CRIME – Appeal and review – Appeal from Local Court to Supreme Court – inadequacy of reasons – question of mixed law and fact – where plaintiff’s case alleged inconsistency between body-worn camera footage and police officers’ evidence – where plaintiff submitted that certain elements could not be established beyond reasonable doubt – failure to deal with arguments raised by plaintiff – appeal allowed

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 — de-identification of a child as Aboriginal — maternal and paternal adoption plans

CRIME – Appeals – Appeal against sentence – Thirteen counts of child sexual offences committed against three victims over a period of 19 years – Ten Form 1 offences taken into account – Where applicant sentenced to 30 years imprisonment with a non-parole period of 22 years and 6 months – Whether aggregate sentence manifestly excessive – Where psychologist diagnosed applicant with major depressive disorder and generalised anxiety disorder at the time of sentence – Where sentencing judge gave little or no weight to psychologist’s report – Whether applicant’s mental condition relevant to his experience of incarceration – Whether sentencing judge adequately considered the impact of protective custody on the applicant

CRIME — appeal against sentence — appellant entered a late plea of guilty to a charge of conspiracy to import a commercial quantity of prohibited narcotic goods — earlier appeal against sentence to CCA upheld and appellant re-sentenced — referred to the Court of Criminal Appeal under Part 7 of the Crimes (Appeal and Review) Act - question of Xiao error — relevant sentencing decision that of the Court of Criminal Appeal — discount on sentence of 10% afforded — whether discount reflected savings to the community consequent upon a late plea — whether discount took into account subjective features

CORONERS – supervisory jurisdiction – judicial review of refusal by Coroner to make orders prohibiting disclosure of identity of employees of telecommunication carrier – employees assisted NSW Police in inquest – employees concerned about safety – natural justice – whether basis of application was in fact addressed – failure to afford procedural fairness established – relevant and irrelevant considerations – unreasonableness – not established – relief – decision set aside – no power to compel Coroner to grant application

CRIME — sentence — where offender tried for murder — early guilty plea to manslaughter on the basis of extreme provocation— attempted sexual assault of offender by deceased – immediate complaint and admissions by offender — jury convicted offender of manslaughter — extreme provocation not disproved — s 23 Crimes Act 1900 (NSW) — where offender has supportive family and good prospects of rehabilitation — evidence of remorse – strong subjective case

CORPORATIONS — winding up — where the first plaintiffs are the liquidators of two related companies — application for directions concerning claim to be made on behalf of one company (BBYN) in Court approved process for distribution of assets of other company (BBYL) to BBYL’s clients where BBYN’s claim reflects value of assets held by BBYN as bare trustee for BBYL clients – conflict of interest and duty BBYN liquidators making claim and BBYL liquidators adjudicating claim – process for distrusting proceeds of BBYN’s claim to BBYL clients for whom the relevant assets were held on trust. CORPORATIONS — winding up — liquidators’ remuneration, costs and expenses — whether remuneration claimed reasonable and proportionate

EVIDENCE – criminal proceedings – application to exclude evidence – application brought by three accused charged with murder of deceased – evidence concerns intercepted phone calls prior to arrest and gaol calls when accused in custody, social media posts, witness statements and a music video – whether evidence is relevant – whether evidence if relevant is unfairly prejudicial EVIDENCE – criminal proceedings – consciousness of guilt – Crown relies on evidence that one accused changed physical appearance shortly after police posted media release with his picture – where accused charged with murder/manslaughter and affray from assault causing death – where accused facing separate charge of affray from another incident – whether evidence of change of appearance was intractably neutral between various charges – where it was open to jury to infer accused’s reason for altering appearance came from realisation of involvement in the murder – evidence admissible and capable of amounting to consciousness of guilt evidence EVIDENCE – criminal proceedings – state of mind – evidence of conduct of accused to demonstrate state of mind – where conduct demonstrated shows aggressive state of mind shortly before altercation with deceased – evidence not unfairly prejudicial EVIDENCE – criminal proceedings - hearsay – lay opinion evidence – evidence concerning gang membership by accused – where evidence derived from social media – evidence inadmissible

MOTOR ACCIDENTS – judicial review – assessment of permanent impairment – adequacy of assessor’s reasons – whether need to deal separately with further aspect of insurer’s case – requirement to distinguish jurisdictional error from error of law on face of record – requirement to state grounds of review with specificity

CONTRACTS — termination — repudiation of contract — implied refusal to perform — where purchasers raised requisitions on title — whether requisitions properly made — whether vendors adequately answered requisitions — whether vendors evinced intention no longer to be bound by contract CONTRACTS — termination — repudiation of contract — erroneous construction of contract — where vendors insisted on payment of default interest — whether repudiation by insisting on erroneous construction of contract ENVIRONMENT AND PLANNING — heritage conservation — protection of Aboriginal heritage — National Parks and Wildlife Act 1974 (NSW) — meaning of “Aboriginal object” LAND LAW — conveyancing — contract for sale — defect in title — whether presence of Aboriginal objects on land constitutes defect in title — whether Aboriginal objects on land — whether presence of Aboriginal objects constituted defect in title where land already subject to development constraints LAND LAW — conveyancing — contract for sale — termination in accordance with rule in Flight v Booth — whether presence of Aboriginal objects materially or substantially affected contract — no Aboriginal objects on land — no material or substantial effect LAND LAW — conveyancing — contract for sale — requisitions — where requisitions based on plausible contention of presence of Aboriginal objects — whether purchasers’ objections and requisitions on title properly made — whether vendors’ responses sufficient

CORPORATIONS – directors and officers – fiduciary duties – duty to act in good faith in the best interests of company – duty not to use position as director or officer improperly – duty to ensure proper financial records kept – acting as director for two related entities – conflict of duty and interest EQUITY – fiduciary duties – conflict of interest and duty – acting as director for two related companies – involvement in transactions between companies –director holding 25% shares of one company – where one company holds a financial interest in the other and consequently shares in any benefits received by the director – when director inherits and continues an existing and accepted practice as between the companies

COSTS – gross sum costs – where administration of justice served by bringing litigation to an end

CONTRACTS – Implied terms – Whether term should be implied requiring payment within a reasonable time or requiring immediate payment of money owing under a deed

CRIME – murder trial –– where accused pleaded guilty to manslaughter by unlawful and dangerous act on the basis that his acts, taken as a whole, were voluntary and caused the death of the deceased —where accused disputed in murder trial that the stabbing that directly caused death was voluntary —where Crown conceded that that was an indispensable intermediate fact with regard to proof of a necessary mental element for murder — accused intoxicated by alcohol at crucial time — concession that intoxication self-induced — whether statutory prohibition on taking into account self-induced intoxication with regard to proof of actus reus of an offence applies in those circumstances

CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt — Where there exists a dispute as to the character of certain amounts paid — Whether the amounts paid were in the nature of loans — Where the determination of that question would require the court to make a merits decision.

COURTS and JUDGES – Application for broad suppression/non publication order – risk to safety of families of offender and spouse overseas – risk unacceptable – principle of open justice primary consideration – non-publication order issued restricted to certain information and home and identity of offender and spouse.

CRIME – SENTENCING – breach of United Nations sanctions against Iran rendered criminal by operation of Commonwealth legislation – discussion of culpability and subjective circumstances – appropriateness of sentence other than full-time custody – parity in sentence with co-offender – Intensive Correction Order imposed

CRIME – Murder – Defences – Mental illness – special hearing by judge alone – where accused was found unfit to be tried – whether accused not criminally responsible by reason of mental illness – special verdict of act proven but not criminally responsible

CORPORATIONS — Meeting of members — Resolutions — Where deed of settlement and release required the parties to take reasonable steps to ensure that certain persons would be directors of the company and associated companies — Inconsistency between constitution and shareholders agreement as to quorum — Where constitution provided for quorum of two directors — Where shareholders agreement provided for quorum of three directors, being all the company’s directors — Whether company can hold quorate board meeting in the circumstances — Where one director representing a shareholder has resigned and replacement appointee does not accept appointment. CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors — Where the relevant shareholders were parties to deed of settlement and release — Where deed of settlement required the execution of certain directorship documents — Whether s 249A of the Corporations Act 2001 (Cth) applies — Where general law concept of unanimous consent or s 1322(4) of the Corporations Act 2001 (Cth) otherwise applies.

CIVIL PROCEDURE – stay of proceedings – whether proceedings should be stayed pending observance of dispute resolution procedures in contract CIVIL PROCEDURE – cross-vesting – transfer to other Supreme Court – relevant factors – transferred to Supreme Court of Western Australia

COSTS — party/party — costs orders in interlocutory proceedings — application withdrawn and dismissed — analogous to discontinuance of proceedings — general rule that costs follow the event — application of the rule and discretion — timing — costs payable forthwith CRIME — confiscations — restraining order — application for allowance for reasonable living expenses — costs when application not pressed

CIVIL PROCEDURE – Appeal from decision of NCAT Appeal Panel – Fair Trading Act – Competency of appeal – UCPR 50.16 – No question of law raised – Whether decision of tribunal member at first instance appealable – Affected paragraphs dismissed as incompetent

EQUITY — General principles and maxims — Discretionary nature of jurisdiction — Those who seek equity must do equity — Where the plaintiff sought to enforce a deed executed by the defendant in which the defendant agreed to pay the plaintiff an amount for the plaintiff’s work in renovating the defendant’s property — Where the Court found that the defendant was entitled in principle to an order setting aside the deed on the ground that it was entered into in unconscionable circumstances — Where the defendant had not offered to do equity by paying reasonable compensation for the plaintiff’s work — Where the evidence of the reasonable amount of remuneration of the plaintiff was unsatisfactory — Where the plaintiff applied for leave to introduce additional evidence going to the condition upon which relief should be granted to the defendant — Where the Court granted the plaintiff’s application limited to additional evidence already served on the defendant CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — Power of Court — Where the Court has decided in principle to set aside an unjust contract subject to the defendant paying reasonable remuneration to the plaintiff for work done — Where the evidence of the reasonable amount of remuneration of the plaintiff was unsatisfactory — Where the plaintiff applied for leave to introduce additional evidence to establish the reasonable remuneration — Where the plaintiff’s application was granted CIVIL PROCEDURE — Application by the plaintiff for leave to introduce additional evidence to prove condition the Court should impose on the defendant before making an order that a deed between the plaintiff and the defendant be set aside — Where application was granted

EQUITY – house purchased by defendants for plaintiff to live in – purchase financed with a loan in the names of the defendants – plaintiff contributed to mortgage repayments and paid outgoings – dispute as to quantum of plaintiff’s contribution – whether plaintiff was merely renting the property from the defendants – whether the property was subject to a joint endeavour constructive trust – terms of constructive trust – form of account to determine quantum of contributions

SUCCESSION – Construction of deceased’s Will - Administration - Effect of testamentary dispositions - Whether direction to pay debts and testamentary expenses displaces s 46C(2) of the Probate and Administration Act 1898 or whether the section inapplicable because of terms of the Will SUCCESSION – Family Provision – Claim by adult child of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – Provision made for Plaintiff in the last Will of the deceased – No competing financial claim of the Defendant, and his sister, both of whom are also adult children of the deceased – Whether the Plaintiff was left without adequate provision for his proper maintenance and advancement in life – Whether an order for provision should be made for his proper maintenance and advancement in life and, if so, in what amount – Provision to be made for the Plaintiff in lieu of the provision made for him in the deceased’s Will

CIVIL PROCEDURE – Section 73 Civil Procedure Act 2005 (NSW) - Power of court to determine questions in dispute between the parties to the proceedings as to whether and on what terms the proceedings have been compromised or settled between them – Plaintiff claims settlement reached - Evidence of Plaintiff’s adoption subsequently revealed – Whether settlement reached remains valid – Whether common mistake renders settlement void or voidable – Orders considered appropriate to give effect to determination SUCCESSION – Substantive proceedings involve claim for family provision order under Ch 3 of the Succession Act 2006 (NSW) – Applicant alleged to be child of the deceased – Subsequent evidence given that Plaintiff was not a child of the deceased as he had been adopted by a third party

CRIME — confiscations — forfeiture order — where no exclusion application has been made in respect of the property — whether reasonable steps taken to notify affected persons — whether the Court has a discretion to refuse to make a forfeiture order if not in the public interest — whether the Court is required to specify the value of forfeited property WORDS AND PHRASES — “money” — Proceeds of Crime Act 2002 (Cth), s 56

COSTS – Security for Costs – the defendants seek an order for security for costs against the corporate plaintiff, a private company – the principal shareholder in the plaintiff is proposed to guarantee the obligations of the plaintiff and pay costs – no evidence as to the assets of the principal shareholding of the plaintiff – whether an order for security for costs should be made against the plaintiff. COSTS – Interlocutory costs – Uniform Civil Procedure Rules 2005, r 42.7 – defendants have the benefit of interlocutory costs orders against the plaintiff – defendants seek that the plaintiff pay the interlocutory cost orders forthwith – whether the circumstances warrant payment of the costs orders forthwith. CIVIL PROCEDURE – Court appointed expert – orders made for appointment of a Court expert – Court expert seeks directions for the future conduct of the expert’s task – concern that parties are excessively corresponding with the Court expert and increasing the costs of the expert’s work – need for discipline in the conduct of proceedings in relation to the Court expert.

COSTS – Indemnity costs – Gross lump sum costs order

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — proceedings brought by plaintiff in the form of an appeal from a Local Court judgment — summons did not contain statement setting out grounds relied on in support of the appeal — Registrar made directions for filing and serving of amended summons, documents required under r 50.14 UCPR and written submissions — non-compliance with Registrar’s orders over a 10 month period to the hearing of defendant’s motion — no explanation for failure to comply — where failures so egregious that dismissal of proceedings is justified under both s 61 of the Civil Procedure Act and r 12.7 of the UCPR — proceedings dismissed

ARBITRATION – seek to set aside award – building dispute – whether agreement to appeal on questions of law – s34A(1), Commercial Arbitration Act 2010 (NSW) – principles at [31]-[32] – no agreement – whether estopped from denying agreement – no estoppel. JURISDICTION of arbitrator – principles at [126] –declaratory relief – prevalence and utility of declaratory relief in contractual matters at [130]-[131] – challenge to claim as time barred does not deprive arbitrator of jurisdiction at [132]. PUBLIC POLICY – principles at [137]-[140] ADEQUACY OF REASONS – principles at [142]-[148]

CRIME – murder trial – further application by Crown for leave to cross-examine witness under s.38 Evidence Act 1995 – leave granted

CRIMINAL LAW – sentencing – murder – shoot with intent to murder – fact finding following long trial of 6 co-accused – implications of acquittals for related offence of attempted murder – implication of acquittal of co-offender – whether contract killing – where principals not charged or called to give evidence – where quality of evidence questionable – principal witness self-serving fabricator with access to police brief – other prosecution witnesses evasive and unfavourable – analysis of whole of evidence – drug debt established – contract to kill not established –chaotic and poorly executed escapade – three firearms used – high level of objective seriousness – upper mid-range – gangster lifestyle – guns and drugs – shooting at makeshift Buddhist Temple – innocent by-stander killed – drug dealer target escaped – Sifu – Buddhist master and collector of fine wine – more than meets the eye CRIMINAL LAW – sentencing – application of principle – fact finding in context of jury verdicts – alternative bases of liability – aggravating and mitigating circumstances – refusal to adopt a check-list approach to sentencing – totality – cumulation of sentences – partial concurrence – aggregate sentencing – special circumstances – parity and proportionality

CONTRACTS AND NEGLIGENCE — plaintiff claims damages for alleged negligence and breach of retainer and duty of care — defendants knew that if notices to extend the Registration Date were not given by certain dates purchasers would have an automatic entitlement to rescind and receive their deposit — defendants told the developer of the effect of contractual provisions but the developer did not appreciate their import or know whether it was entitled to an extension — the developer gave instructions to defendants to extend Registration Dates by agreement or notice — date on which notice had to be given was never set out in the numerous schedules provided by the defendants to the developer — defendants would have appreciated that when notices were sent that they were invalid in respect of contracts for two Lots — defendants were negligent and breached their retainer by not alerting the developer to the imminent deadline for service of notices — reasonable care required the defendants to seek instructions from the developer to ascertain whether they ought send notices to purchasers — not satisfied that defendants advised the developer that it had a defence to the claim for declarations that contracts had been validly rescinded in associated Equity proceedings or that its conduct in respect of the proceedings was negligent or amounted to breach NEGLIGENCE — Defences — Contributory negligence and apportionment — persons alleged to have contributed to the harm taken as agents of the developer rather than potential wrongdoers — the contractual provisions were relatively complex for non-lawyers and the developer was entitled to rely on the defendants’ expertise — developer cannot bear full responsibility for monitoring dates by which extension of time notices had to be given — a reasonable person in the position of the developer would have appreciated the import of the provisions and realised that notices had to be given by certain dates — failure to take reasonable precautions against a risk of harm established — reduction for the developer’s contributory negligence NEGLIGENCE — Damages — but for the defendants’ negligence, the developer would have instructed the defendants to serve notices to extend time — developer received less for the Lots because of the defendants’ breach — factual causation and scope of liability established — not satisfied that the scope of the defendants’ liability extends to consequential loss arising from the need to re-sell the Lots or legal costs associated with the Equity proceedings —plaintiff entitled to interest at court pre-judgment rates under s 100 of the Civil Procedure Act 2005 (NSW)

CORPORATIONS – Managed investments – Judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – Whether to convene meetings of unitholders – Whether responsible entity would be justified in treating consequential constitution amendments as within power.

CIVIL PROCEDURE — Interim preservation — Freezing orders — Where the substantive proceedings concern by way of restitution the recovery of monies paid directly or indirectly by the plaintiff to the defendants — Where the plaintiff seeks freezing orders by reason of the risk of dissipation of the defendants’ assets — Where the defendants opposed the making of the freezing orders — Where the Court held that the circumstances warranted the making of freezing orders against the defendants