Cases and authorities

APPEAL AND REVIEW – Court of Appeal – supervisory jurisdiction – review of costs order made by District Court on appeal from Local Court – order in favour of successful appellant – review as to quantum – grounds – failure to take account of evidence/submissions – procedural unfairness in ordering costs motion to reopen PROCEDURE – order for costs – assessment of costs by court – only evidence proffered was a bundle of invoices – invoices included work on other proceedings – amounts held to be irrelevant or excessive – judge entitled to make own assessment

RESTITUTION – total failure of consideration – prepayment for goods never delivered – where buyer dealt with father and son – payment into account in son’s name at his direction – where primary judge accepted son’s evidence that the father controlled that account and obtained the benefit of the funds deposited into it – whether son liable to make restitution

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Abuse of process – Where care proceedings on foot in the Children’s Court – Where applicant applied to Supreme Court for stay of care proceedings – Whether Supreme Court proceedings duplicated issues and relief sought in care proceedings – Where final orders now made in care proceedings – Where only relief sought on appeal was declaration that removal of children was unlawful due to defective warrant – Children’s Court unable to grant such relief but able to determine same question as part of ascertaining its own jurisdiction – Granting declaration would merely be an advisory opinion – Evidence suggests serious obstacles to impugning warrant – Leave to appeal refused CHILD WELFARE – Statutory removal – Emergency removal – Care order – Warrants – Challenge in Supreme Court to validity of warrant for removal – Whether abuse of process – Duty of Children’s Court to ascertain its own jurisdiction COSTS – Orders against non-parties – Personal costs orders against lawyers – Where counsel appeared on watching brief for child despite no substantial interest in outcome – Whether to disallow costs of child’s independent legal representative – Children joined of Court’s own motion – Representative able to provide explanation for why submitting appearance not filed – Costs not disallowed

LAND LAW – Mortgages – where second unregistered mortgage granted by guarantor to secure loan debt owed to plaintiff – where property subject to first registered mortgage and subsequent caveat – where guarantor currently located in China offered to repay but did not participate in proceedings – where unclear whether third party occupies property – whether orders for judicial sale and ancillary orders for possession appropriate

HIGH RISK OFFENDERS — extended supervision orders — preliminary hearing — appointment of psychiatrists or psychologists — protracted criminal history — history of non-compliance with orders and therapeutic regimes — index offences of recklessly inflicting grievous bodily harm and take and drive conveyance without consent — grievous bodily harm offence committed by co-offender — order made — resolution of conditions

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meetings are satisfied. CORPORATIONS – Managed investments – Application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – Whether responsible entity would be justified in propounding resolutions to implement the proposed trust scheme – Whether proposed amendments are within the constitutional powers of alteration and s 601GC of the Corporations Act.

CIVIL LAW – high risk violent offender – extended supervision order – application for revocation and variation – where application met with mixed success – appropriate orders as to costs

EQUITY — Payment received from partnership fund — Whether plaintiffs should account for payment — Nature of payment — Whether repayment or loan RESTITUTION — Restitution for wrongdoing — Equity — Account of profits

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule — Inherent jurisdiction COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Exceptions to general rule that costs follow the event — Orders when proceedings involve multiple parties — Bullock and Sanderson orders

COSTS – Calderbank offer – no question of principle.

PROFESSIONAL NEGLIGENCE – solicitors – retained to act for company on sale of business including assignment of lease – company had granted a right of first refusal to Woolworths – sophisticated client – urgent transaction – client in financial distress – solicitor gave ‘high level comments’ – comprehensive instructions not sought until shortly before exchange – enquired by email on number of matters including whether there were any “side deeds” – client’s instructions non-responsive – contracts exchanged – Woolworths injuncts sale – proceeds of sale received 6 months later – company goes into administration. WORDS AND PHRASES – ‘side deed’ – see [67]. DAMAGES – loss of chance at [505]-[512] – time at which damages should be assessed at [624] – non-binding indicative offers as evidence of value at [632] – costs as damages at [643] – whether onus on plaintiff to show reasonableness of settlement – whether necessary for law firm to plead failure to mitigate. CONTRIBUTORY NEGLIGENCE – corporate memory and document storage – client failed to take reasonable care by checking records in respect of an asset before, or while, instructing solicitors on sale of the asset – damages reduced by 20%. CONCURRENT WRONGDOERS – whether breach of director’s duties in expanding the company – principles at [681] – no breach of director’s duties. DUTY OF CARE TO THIRD PARTIES – whether solicitor also owed duty of care to client’s directors – principles and case law review at [702]-[711] – client and directors’ interests coincident – client and directors’ liability to disappointed purchaser was the same – directors entitled to be reimbursed by company had it not gone into external administration – directors’ liability alone arose from company going into external administration MISLEADING AND DECEPTIVE – whether law firm liable to directors in misleading and deceptive conduct – principles at [727]-[731] – whether incomplete advice is “conduct”.

ADMINISTRATIVE LAW – judicial review – motor accident – review of certificate of medical assessor – review of decision of proper officer to refuse referral to review panel – certificate does not clearly state degree of permanent impairment attributable to motor accident – failure to conform with regulatory requirements – error of law on face of record – proper officer ought to have suspected that certificate incorrect in material respect – certificate and decision set aside and matter remitted

MENTAL HEALTH – forensic patient – extension of status as forensic patient - aggravated break and enter and commit larceny – whether defendant poses an unacceptable risk of causing serious harm to others that cannot be managed by less restrictive means – reasonably serious drug problem – extensive criminal history increasing in seriousness - numerous offences committed while on conditional liberty – intellectual disability and poor insight into behaviour – no present proposal for management by less restrictive means – interim order made

CIVIL PROCEDURE — stay of proceedings — where interim certificate of costs assessor treated as judgment upon filing in District Court under Legal Profession Act 2004 (NSW), s 368(5) — where applicant’s appeal to the District Court against decision of costs assessor remains afoot — where applicant seeks leave to appeal against District Court’s refusal to set aside judgment — application for stay of deemed judgment, District Court appeal proceedings and the assessment process — whether appropriate to grant interim stays in the circumstances

COSTS — Party/Party — No hearing on the merits

PROPERTY — Priority of Interests — Personal Property Securities Act 2009 (NSW) — s 55(3) — s 55(4) — Evidentiary basis for priority given to plaintiff under the chattel mortgage agreement — Declaratory relief granted MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — Security interest — Interest in personal property — Where party claiming an interest in the property is bankrupt — Where party has not taken any steps to advance a claim in the proceedings or register a security interest — Where trustee in bankruptcy has not exercised any right to be joined in the proceedings and has not asserted any interest in the property MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — Possession

APPEALS — Leave to appeal — Whether leave to appeal is necessary and should it be granted COSTS — Appeal from a costs assessment — Application to set aside judgement entered in Local Court to enforce a costs certificate issued under the Legal Profession Uniform Law Application Act 2014 — Whether the Local Court had power to set aside the judgement — Rules 36.15 and 36.16 Uniform Civil Procedure Rules 2005 (NSW) — Legal foundation for the entry of the judgment — Onus on the applicants to establish a basis for the just exercise of the power to set aside a judgment — Appeal dismissed APPEALS — Procedure — Time limits — Application to set aside a judgement after it is entered

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court — Special federal matter — Motion for an order under s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) to transfer Supreme Court and Federal Court proceedings back to the latter court — in circumstances where the proceedings engage the jurisdiction in bankruptcy within the meaning of s 27 of the Bankruptcy Act 1966 (Cth) and therefore special federal matters arise

HIGH RISK OFFENDERS – high risk sex offender – interim supervision order made – no point of principle

COSTS – contempt motion – contemnor ordered to pay indemnity costs – plaintiffs seek specified gross sum – principles at [4]-[7], [12]-[16] – defendant likely unwilling or unable to pay costs – defendant contributed to costs incurred by his conduct – appropriate to make order in sum sought.

FAMILY LAW – Children – Adoption – Interim care order – Whether an interim care order can be made under s.84(2) of the Adoption Act 2000 (NSW) in the absence of a formal application for adoption in favour of a specific adoptive parent or parents

CIVIL PROCEDURE — pleadings — striking out — abuse of process — where statement of claim pleads fact inconsistent with finding of Court of Appeal in earlier proceedings — statement of claim constitutes collateral attack on Court of Appeal’s decision — statement of claim struck out as abuse of process

CRIME – appeal against sentence – break, enter and steal offences – manifest excess – no specific error alleged – where offending occurred almost immediately after release to parole – subjective circumstances – sufficiency of backdating – within sentencing discretion

CRIME – money laundering – dealing with money suspected of being proceeds of crime – money seized by police on suspicion of being proceeds of the sale of illicit drugs – conspiracy to avoid seized money being forfeited to the Crown SENTENCING – appeal against sentence – co-offenders – disparity between sentences – whether applicant had a “justifiable sense of grievance” – where the same judge sentenced the co-offenders – where applicant knew the money was illegally obtained – where applicant used his skill and position as a solicitor in furtherance of criminal activity SENTENCING – aggravating factors – abuse of position – where applicant used his skill and position as a solicitor in furtherance of criminal activity – where applicant breached his professional responsibilities as a solicitor – whether sentencing judge entitled to attribute a high level of responsibility to the applicant SENTENCING – appeal against sentence – severity – sentence manifestly excessive – aggregate sentence – where applicant placed reliance on comparable cases – consideration of comparable cases

CRIME – Appeals – appeal against sentence – two co-offenders sentenced contemporaneously for similar but not identical offences – aggregate sentence imposed – alleged grievance at the disparity in the sentences – whether there was marked or clearly unjustifiable disparity – no justifiable sense of grievance from comparison of indicative sentences – differential application of the totality principle has no proper basis – applicant is to be resentenced so his aggregate sentence reflect that of his co-accused – appeal allowed

CRIMINAL LAW – Sentence – Appeal – Where the three applicants were involved with a number of other persons in offending involving evading excise duty payable on tobacco products – Complicated and difficult sentence proceedings involving complex facts, numerous offenders and a multiplicity of different charges – Where two of the applicants advanced specific submissions as to their respective prospects of rehabilitation – Where third applicant advanced specific submissions as to the disposition of the matters by way of an Intensive Correction Order – Where none of those submissions were considered by the sentencing judge – Necessity to engage with specific submissions made and provide adequate reasons – Error established – Applicants resentenced – Objective seriousness of the offending – Substantial amounts of duty involved – Need for general deterrence – Effects of lengthy delay in the finalisation of proceedings – 3 year delay between date of arrest and sentence hearing – 9 month delay between sentence hearing and passing of sentence – Latter period of delay brought about by the effects of the Covid-19 pandemic on listing arrangements in the District Court – Prospects of rehabilitation – Parity considerations

CIVIL PROCEDURE – claim against guarantors under commercial loan agreement – late application by defendant to amend Defence – proposed amendment relying upon principles in Ankar Pty Ltd v National Westminster Finance (Australia) Pty Ltd (1987) 162 CLR 549; [1987] HCA 15 – plaintiff notified of amendment application on eve of hearing – late realisation by defendant that Ankar defence may be available – one letter in a sea of documents - application of ss 56-58, 64 Civil Procedure Act 2005 – belated application – consideration of dictates of justice – leave to amend granted on conditions

APPEAL — Applicant seeking to set aside a default judgement — Where plaintiff has not filed or served affidavits on which she wishes to rely to establish the grounds of appeal — Adjournment application refused CIVIL PROCEDURE — Parties — Misjoinder — Failure to join proper party — Whether defendants having any interest in the proceedings — Whether proceedings should be dismissed— rules 6.29 and 50.5 of the Uniform Civil Procedure Rules — Proceedings dismissed — Costs Orders STRATA TITLE — Owners corporation — Whether a member of strata committee of the owner’s corporation has an interest in the appeal — Party removed from the proceedings

CIVIL LAW - high risk terrorism offender - preliminary hearing - whether defendant an eligible offender - “convicted NSW terrorism activity offender” - whether unacceptable risk of serious terrorism offence - where defendant committed no acts of violence - where defendant mentally unstable - where grave threats made but not carried out - male supremacy - misguided paranoid misogynist - stupid things on Facebook - “manosphere” - involuntary celibates - neutered dogs - extreme right wing philosophy - personal grievances - fraught relationship with Walgett Police - capacity to manufacture explosives - fanciful and grandiose

CIVIL PROCEDURE – Interlocutory application by way of notice of motion – Claim by Plaintiff, a daughter of the deceased, for a family provision order – Application for security for costs by the Defendant, the spouse of the deceased – The Plaintiff not ordinarily resident in New South Wales but ordinarily resident in China – Plaintiff has no property in New South Wales or elsewhere – Whether competing factors in favour of not granting order for security – Security for costs not ordered

COSTS — Where appellant succeeded in substantially reducing sum awarded to respondent — Where order that respondent pay appellant’s costs of the appeal — Whether appellant entitled to costs of the proceedings below — Where Motor Accidents Compensation Regulation 2015 requires the appellant to pay a certain amount of the respondent’s costs and disbursements in the court below — Where Motor Accidents Compensation Act 1999 (NSW) fixes amount which appellant’s solicitors were permitted to charge, subject to an order otherwise — Whether such order to be made

COSTS – supplementary order concerning costs – successful respondent sought further order entitling his costs in successful defence of appeal to be paid out of estate with administrator subrogated to respondent’s costs order – orders corresponded to form of orders made by trial judge which were unchallenged by appeal or cross-appeal – orders made

EQUITY — trusts and trustees — powers, duties, rights and liabilities — indemnity of trustee — whether trustee is entitled to be indemnified — where parties are joint tenants of a property — rights of trustees to be indemnified for defending proceedings brought against the trust — trustee entitlements to security for contingent liabilities EQUITY — trusts and trustees — judicial advice — disagreement between trustee and beneficiaries regarding management of property — whether judicial advice should have been sought by the trustee pursuant to Trustee Act 1925 (NSW), s 63 before defending the proceedings — consequences of a failure to seek judicial advice — if judicial advice had been sought, the trustee would have been advised that defending the proceedings was appropriate — that a trustee “should” seek legal advice does not give rise to a legal obligation to do so

APPEALS — Leave to appeal — where applicant seeks leave to appeal from summary dismissal — where applicant had brought proceedings for recovery of land against party other than the registered proprietor — where no viable claim

COSTS — Security for costs — Whether security should be ordered where there has been a delay in making the application

COSTS – No point of principle

CRIMINAL LAW — appeal against conviction — seven offences of dishonestly obtaining a financial advantage by deception by lodging tax returns which did not disclose all assessable income — whether monies paid to appellant or to third parties at his direction were income of appellant or loans — whether trial miscarried because evidence wrongfully admitted that amended notices of assessment were issued to appellant — whether trial judge erred in directions given to jury concerning elements of the offences and on tax law — whether a Shepherd direction required as to appellant’s control of Vanuatu company making payments to him or to third parties at his direction — whether verdicts were unreasonable and not supported by the evidence — whether proviso applied notwithstanding evidence wrongfully admitted — Criminal Appeal Act 1912 (NSW), s 6(1) EVIDENCE — fresh evidence — distinction between “new evidence” and “fresh evidence” — whether significant possibility that jury acting reasonably would have acquitted appellant based on new evidence CRIME — appeals — appeal against refusal to discharge jury — where trial judge ruled that Crown case confined to payments made by Vanuatu insurance company — where Crown relied on earlier payments made at direction of appellant from another Vanuatu company to rebut defence submission — whether fundamental change in Crown case — whether miscarriage of justice

CIVIL PROCEDURE — Application for stay of proceedings — Concurrent civil and criminal proceedings — Not necessary to direct the defendant to seek particulars of plaintiff’s statement of claim prior to conclusion of criminal proceedings — Notice of motion dismissed and directions made COSTS — Party/Party — Costs orders in interlocutory proceedings — Costs in the cause

MENTAL HEALTH – high risk offender – preliminary hearing – forensic patient – defendant on community treatment order at time of index offence – preliminary trial of index offence whereupon defendant found to be unfit – consequent detention in prison hospital facility – offence made out in special hearing – resultant detention in mental health facility – extension orders made twice thereafter – interim orders sought to extend status of defendant as a forensic patient – interim orders not opposed – making of final order opposed – potentially limited efficacy of community treatment order – continued oversight of Tribunal determined to be preferable course of risk management – statutory conditions for making of interim orders satisfied – orders made

CRIME – Money Laundering – Dealing with money suspected of being proceeds of crime – Serious and indictable offences PROPERTY – Property suspected of being proceeds of indictable offences – s 19(1)(d) Proceeds of Crime Act 2002 (Cth) – Restraining Orders – Custody and Control Orders CIVIL PROCEDURE – Service – Substituted service – Rule 1014 Uniform Civil Procedure Rules 2005 – Where the only possible method of service is by electronic mail – Orders for substituted service made

CIVIL PROCEDURE – Payment out of Court – plaintiffs successful at a trial apply for moneys in Court to be paid out of Court into solicitor’s trust account – defendant files Notice of Intention to Appeal – whether Court approves payment out of Court on term defendant files a Notice of Appeal. COSTS – Indemnity costs – successful plaintiffs apply for orders for indemnity costs – the defendant was found to have created and propounded false documents – defendant referred to the Prothonotary for consideration of possible contempt of Court and to the Attorney-General for potential breaches of the Crimes Act 1900 – whether defendant demonstrated relevant delinquence as a litigant to warrant an indemnity costs order. CIVIL PROCEDURE – Costs orders – Gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – whether a specified gross sum costs order should be made and if so in what sum.

CIVIL PROCEDURE — Suppression and non-publication orders — Review of existing orders which did not comply with s 8(2) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) — Importance of principles of open justice - Orders necessary to protect the safety of any person — New orders made designed to infringe impact on principles of open justice to the minimum extent necessary to protect the plaintiff’s safety

ADMINISTRATIVE LAW — Particular administrative bodies — NSW Civil and Administrative Tribunal — Appeal against two decisions of the Guardianship Division the NSW Civil and Administrative Tribunal APPEALS — Procedural fairness — Whether the Tribunal’s rejection of the plaintiff’s request for an adjournment was a breach of the rules of procedural fairness — Whether the Tribunal failed to comply with the requirements of s.38(5) of the Civil and Administrative Tribunal Act 2013 (NSW) by failing to give the plaintiff a reasonable opportunity to be heard such as to amount to a constructive failure to exercise the jurisdiction under s 25(2)(a) and (b) of the Guardianship Act 1987 (NSW) — Whether the Tribunal in limiting the presentation time of the plaintiff’s case was a denial of procedural fairness — Whether there was no evidence to support a finding of the Tribunal — Whether rejecting certain evidence denied the plaintiff a fair hearing

ADMINISTRATIVE LAW – judicial review – application for review of District Court decision dismissing appeal from conviction in Local Court – application for extension of time – where review limited to jurisdictional error on part of District Court – whether personal service of court attendance notice in accordance with Local Court Rules a condition for exercise of Local Court’s summary criminal jurisdiction – whether applicant denied procedural fairness – whether primary judge erred in rejecting applicant’s “claim of right” defence – no arguable jurisdictional error of District Court

CRIME — appeals — appeal against sentence — denial of procedural fairness — whether sentencing discretion miscarried due to failure of the applicant’s legal representatives to bring to the sentencing judge’s attention the assistance provided by the applicant to authorities — whether sentencing discount ought to have been applied

CIVIL PROCEDURE — Expedition of proceedings pursuant to r 51.60 of the Uniform Civil Procedure Rules 2005 (NSW)

EVIDENCE — Privileges — Self-incrimination privilege — Application for a certificate pursuant to section 128A of the Evidence Act 1995 (NSW) by the Second Defendant for evidence to be adduced by affidavit in compliance with an order of the Court — Consideration of whether there is a real and appreciable risk of prosecution of the Second Defendant — Consideration of whether the Court is required to read the privileged affidavit — Held: the Court is satisfied that there is a real and appreciable risk of prosecution — Certificate granted — Court not required, on the present application, to read the privileged affidavit

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

CRIME — Sentencing for a common law conspiracy to commit the common law offence of wilful misconduct in public office — no maximum term of imprisonment provided under statute — relevance of statutory analogue — whether sentencing discretion unfettered — assessment of objective seriousness of a conspiracy unspecific as to the acts of misconduct to be committed and unlimited as to time — whether institutions of state undermined — assessment of differential criminal culpability of offenders — one conspirator Minister of the Crown — one conspirator Member of Parliament — one conspirator private citizen — significance of delay in the initiation of criminal proceedings following investigation by Independent Commission Against Corruption —subjective circumstances of ill health and age of two offenders — good character — opprobrium experienced by one offender impacting adversely upon mental and physical health — rehabilitation —cooperation — impact of COVID-19 restrictions on sentence

CIVIL PROCEDURE — Discovery — No issue of principle