Cases and authorities

CONTRACT – construction – design and construct contract – contractor claimed additional payment for works required pursuant to development consent – whether works were “Excluded Works” – significance of definition commencing “Notwithstanding any other clause” – significance of grammatical meaning of clause – clause required to be read as a whole, harmoniously with other provisions in contract

CORPORATIONS — Winding up — Proceedings against company — Effect of order staying or terminating winding up

CIVIL PROCEDURE – Pleadings – Striking Out – Abuse of process - Plaintiff’s motion to strike out a defence and for subsequent default judgment following regular delays and failures to comply with court orders by the defendants – Requirement to do justice to both parties – Motion dismissed COSTS – Party/party – Exception to general rule that costs follow the event – Delays caused by solicitors for the defendants and not the parties themselves

CRIMINAL LAW – sentence – manslaughter – victim impact statements – excessive self-defence – intention to cause grievous bodily harm – objective features – objective seriousness – unreasonableness – subjective features – plea of guilty and discount – remorse – prospects of rehabilitation – general deterrence – maximum penalty – non-parole period – special circumstances – orders

INSURANCE – Claims – Whether lawful reasons where adequately provided for claims assessor’s determination – Whether jurisdiction for claims assessment was properly exercised INSURANCE – Claims – Proof –discount for vicissitudes TORTS – General principles – Damages – Damages – Where discount for vicissitudes in issue

HIGH RISK TERRORISM OFFENDER – application for ESO – earlier ESO ordered in 2019 – further application – Defendant committed offences in 2017 under s.31 Crimes Act 1900, ss.36 and 51F(1) Firearms Act 1996 and s.36 Weapons Prohibition Act 1998 – Sovereign Citizens Movement – construction and application of s.10(1)(c)(i) and s.20(c)(iii) Terrorism (High Risk Offenders) Act 2017 – “convicted NSW terrorism activity offender” – capacity to re-litigate 2019 finding under s.20(c)(iii) – held s.20(c)(iii) element established – risk assessment under s.20(d) and s.25 – held s.20(d) element established – whether ESO should be declined on discretionary grounds – appropriate to order ESO – consideration of duration and conditions of ESO – ESO made for 18 months subject to conditions

PROCEDURE – referral to pro bono legal service – application granted - reasons

PROCEDURE – referral to pro bono legal service – application granted

COSTS — Party/Party — General rule that costs follow the event — Costs of parties up to entry of submitting appearance EQUITY — Equitable remedies — Declarations and injunctions — Obligation to consult — Not appropriate to grant declaration or injunction where content of obligation fact specific and occasion for consultation had not yet arisen

COSTS — Party/Party — General rule that costs follow the event — Costs of parties up to entry of submitting appearance — Whether construction of major political party’s constitution public interest litigation

CROSS VESTING – Jurisdiction of Courts (Cross-Vesting) Act 1987 – application for proceedings pending in the Dust Diseases Tribunal of New South Wales to be removed into the Common Law Division of the Supreme Court of New South Wales and when removed to this Court to be transferred to be transferred to the Supreme Court of Queensland – interests of justice - consent orders made

CIVIL PROCEDURE – Practice and procedure – Plaintiff’s application for leave to amend and for determination of claims raised by proposed amendments separately after conclusion of trial commencing imminently – proposed separate question formulated in the most general terms and incapable of more detailed formulation at this time – overlap between matters to be determined in forthcoming trial and issues raised by proposed amendments – defendant undertakes not to take any Anshun point in any fresh proceeding commenced in respect of the proposed amendments – application dismissed.

SENTENCING – Plea of guilty to providing sanctioned services to North Korean entities contrary to s 27(1) of the Charter of the United Nations Act 1945 (Cth) and the Autonomous Sanctions Act 2011 (Cth) – brokering services for transactions involving military equipment, coal, petroleum and pig iron SENTENCING – Seriousness of offence – relevance of maximum penalty for most serious category of offences – wide conduct covered by offences SENTENCING – Relevance of motivation – twofold motive to assist people of North Korea adversely affected by sanctions and for financial gain SENTENCING – aggregate sentence imposed – no specification of non-parole period as total term expired prior to imposition of sentence having regard to lengthy period on remand – following grant of bail, strict conditions imposed which amounted to quasi-custody

HIGH RISK OFFENDER – serious sex offender – application for an extended supervision order – whether offender poses unacceptable risk of committing another serious offence without supervision – where offender currently living in community following release on parole – where psychiatric and risk assessment reports suggest limited to no risk of offender committing another serious sexual offence of same type – where reports suspect or fear that offender is at some possible risk of committing intrarelationship sexual violence but no history of him having done so – where offender has manageable schizophrenia secondary to acquired brain injury which presents some likelihood of reducing risk of reoffending – where State has not satisfied test of unacceptable risk to high degree of probability

APPEALS – leave to appeal – from the Appeal Panel of the New South Wales Civil and Administrative Tribunal – where plaintiff alleged that Appeal Panel took wrong approach in assessing damages – where issue raised by plaintiff in Supreme Court not argued before the Tribunal at first instance or the Appeal Panel – where plaintiff bound by how it conducted its case at first instance and on appeal to the Appeal Panel – where even if damages methodology was incorrect it was the plaintiff who led the Appeal Panel into error – summons dismissed APPEALS – leave to appeal – whether plaintiff demonstrated anything more than error – no matter of principle – where two prior hearings and two appeals – no basis for leave demonstrated – leave to appeal refused

CRIME – Appeals – appeal against sentence – whether sentencing judge conflated objective seriousness of offence and moral culpability – whether there was a failure to have regard to particular evidence in relation to moral culpability.

CRIME — appeals — appeal against sentence — whether failure to take into account utilitarian value of early guilty plea

CORPORATIONS – Receivers and managers – Appointment, removal and disqualification – Appointment where no winding up – where sole director and shareholder of company died intestate – no issue of principle

PROCEDURE – civil – stay of execution of writ of possession – short stay granted on hardship grounds

LAND LAW – Caveats – Extension of operation of caveat – where extension sought on different factual basis of contribution to purchase price rather than development agreement – whether serious question to be tried – whether difference in description can be overcome by ss 74L or 74O of the Real Property Act 1990 (NSW) – extension refused

CIVIL PROCEDURE — Protective jurisdiction — Appeals from Guardianship Tribunal — Where the plaintiff appealed the decision of the Guardianship Division of NCAT on 11 grounds — Whether any of the appeal grounds comprised questions of law — Whether any question of law involved an error on the part of the Tribunal — Where the Court found that only one appeal ground comprised a question of law, and found that that appeal ground did not involve an error on the part of the Tribunal — Whether the plaintiff should be granted leave to appeal on a ground other than a question of law — Where the Court declined to grant that leave and consequently dismissed the appeal

TORTS – malicious prosecution – collateral abuse of process – elements – heavy onus to prove negative – plaintiff has not satisfied onus to prove malice or absence of reasonable and probable cause – negligence not available – immunity relating to process of litigation.

HIGH RISK OFFENDERS – Extended Supervision Orders – High probability of re-offending – unacceptable risk – significant agreement – duration of ESO – dispute as to conditions.

HIGH RISK OFFENDER – Preliminary hearing – No point of principle

PRACTICE AND PROCEDURE – application for order dismissing the proceedings as an abuse of process – some common issues between these proceedings and earlier proceedings maintained by different plaintiffs against same defendant – present plaintiff not a privy of and had no control over earlier plaintiffs ­­– different claims in the two proceedings – whether oppressive to defendant to allow the present proceedings to continue – whether continuation of present proceeding would bring administration of justice into disrepute.

COSTS — Two contested Probate proceedings involving different will-makers (husband and wife) heard consecutively with the evidence in one being evidence in the other – Probate sought in respect of the last Will of the two different will-makers – Plaintiffs unsuccessful in propounding each of the Wills – Defendants succeeded in propounding the penultimate Will of each will-maker - Only outstanding issue for determination is whether the Plaintiffs’ costs of each proceeding should be paid out of the estate of each will-maker or whether they should pay the Defendants’ costs, calculated on the ordinary basis of the proceedings – Otherwise agreed that Defendants’ costs, calculated on the indemnity basis, be paid out of the estate of each will-maker

ASSOCIATIONS AND CLUBS — Particular bodies — Political organisations — Preselection disputes — Construction of Constitution of Liberal Party of Australia NSW Division — No issue of principle

ASSOCIATIONS AND CLUBS — Particular bodies — Political organisations — Preselection disputes — Construction of Constitution of Liberal Party of Australia NSW Division — No issue of principle

CIVIL PROCEDURE – application for pro bono assistance – application granted

CONTRACTS – deed of loan negotiated and signed by husband to complete purchase of property in the name of his wife – husband purports to sign deed on his wife’s behalf – no direct dealings between wife and lender – whether husband had authority to commit his wife EQUITY – subrogation – unauthorised and unenforceable borrowings – equity in Bannatyne v MacIver – claim not available on the pleadings CIVIL PROCEDURE – interlocutory application – withdrawal of solicitor – conflict of interest – discretionary factors

CIVIL LAW – procedure – leave to commence proceedings – plaintiff in custody at the time proceedings commenced – Felons (Civil Proceedings) Act – institutional abuse suffered as a child – orders

COSTS – proceedings for nuisance – settlement reached involving dismissal of proceedings – whether circumstances warrant departure from usual position stated in Uniform Civil Procedure Rules 2005 (NSW) r 42.20 – where both parties acted reasonably – where Court could not be confident that if matter had gone to trial plaintiffs would almost certainly have succeeded – no order made as to costs

CIVIL PROCEDURE – summary disposal – frivolous or vexatious proceedings - notice of motion seeking summary dismissal – where solicitor practised first as sole practitioner and subsequently as employee of incorporated legal practice – where both solicitor and incorporated legal practice claimed moneys held on trust for them in relation to costs – where only incorporated legal practice provided legal services to the clients – no right to the costs by the solicitor – no reasonable cause of action by the solicitor COSTS – security for costs – whether an order should be made – where evidence indicates legal entity will be unable to pay first defendant’s costs if ordered to do so – application made early in the proceedings – difficulty of assessing costs to conclusion of proceedings - order for security for costs made up to conclusion of filing of evidence COSTS – security for costs – what amount should be ordered – “Chorley” exception – where issue relates to work done by employed solicitor at the solicitor’s incorporated legal practice – whether abolition of the “Chorley” exception prevents employees of incorporated legal practices recovering costs

COSTS — interlocutory proceedings — application to amend pleadings — multiple iterations of application — initial iteration opposed by all parties — final iteration only opposed by some parties —application successful — costs thrown away on previous application — appropriateness of company playing active role in dispute amongst shareholders

DEFAMATION – defences – common law qualified privilege – privileged occasion – privileged communication – whether communication relevant to privileged occasion – no test of necessity – news publications based on police media releases – additional information in publications not foreign to occasion of privilege DEFAMATION – remedies – compensatory damages – whether assessment of damages manifestly inadequate – primary judge justified in using appellant’s failure to correct the record as indicative that the appellant was not hurt and distressed as claimed DEFAMATION – remedies – compensatory damages – whether assessment of damages manifestly inadequate – adverse credibility findings

CONSUMER LAW – Misleading or deceptive conduct – Representations – Explicit false representations made in proposal document given to prospective investors in fraudulent betting syndicate scheme masterminded by notorious conman – Appellant a member of partnership promoting scheme – Whether appellant had knowledge of false representations – Whether appellant jointly and severally liable for misrepresentations made in ordinary course of business of partnership – Liability established APPEALS – From findings of fact and credibility – Function of appellate court – Circumstantial case – Briginshaw standard – Inferences from primary facts – Whether open to be comfortably satisfied various factual findings, including inference that appellant knew of false proposal representations PARTNERSHIPS AND JOINT VENTURES – Relationship of partners to persons dealing with them – Liabilities of partner – Partnership intended to be limited – Unlimited because limited partnership agreement never registered – Joint and several liability for misrepresentations made by other partner in ordinary course of business of partnership CONSUMER LAW – Misleading or deceptive conduct – Silence or non-disclosure – Whether appellant represented that conman not involved in scheme – Whether appellant had knowledge of various prerequisite facts such as notoriety, involvement, and alias of conman, and of need to conceal such information – Appellant unable to demonstrate any of these findings as glaringly improbable – Appellant ought to have known of reasonable expectation that conman’s involvement would be disclosed – Appellant did not disclose and deliberately concealed conman’s involvement CIVIL PROCEDURE – Pleadings – Amendment – Late application for amendment on second day of trial – Amendments added alleged liability of appellant for representation by silence and clarified alleged liability of appellant for explicit proposal representations – Whether appellant deprived of opportunity to make “no case” submission – Whether primary judge failed to consider dictates of justice – Not necessary to recite considerations seriatim – Appellant not deprived of fair and reasonable opportunity to meet case – Pleadings sufficiently clear and specific, and not unfairly open-ended CIVIL PROCEDURE – Pleadings – Construction of pleadings – Subparagraphs of pleadings not in precise correspondence with each other – Whether prejudicial construction by primary judge in finding that pleadings nevertheless sufficiently clear CONSUMER LAW – Misleading or deceptive conduct – Causation or reliance – Whether respondent’s decision to invest caused by proposal representations – Whether prospective investor would have been deterred by knowledge of involvement of notorious conman – Gullible investors not disentitled to protection CONSUMER LAW – Misleading or deceptive conduct – Remedies – Quantification of damages – Whether primary judge failed to account for group members’ prior recoveries and respondent’s trading profits received from scheme – Award of damages below only for respondent’s unpaid loan to scheme – Prior recoveries and trading profits irrelevant CIVIL PROCEDURE – Representative proceedings – Remedies – Award of damages to individual group member CIVIL PROCEDURE – Court of Appeal – Notice of contention – Reliance on claim in deceit in addition to misleading and deceptive conduct – Deceit considered briefly in judgment below – Contention material and advances respondent’s case in circumstances where appellant claims apportionment for misleading and deceptive conduct but cannot do the same for claim in deceit – Notice of contention upheld and decisive of appeal – Unnecessary to consider further aspect of notice, namely conspiracy TORTS – Miscellaneous Torts – Deceit – Relationship with misleading or deceptive conduct – Apportionment defence available for misleading and deceptive conduct but not for deceit TORTS – Joint and several liability – Apportionment – Primary judge disallowed late attempt to raise apportionment defence – Disallowance denied a real prospect of significant reduction in liability – Strongly arguable error in disallowance – Unnecessary to consider further as respondent nevertheless able to rely on non-apportionable claim in deceit

APPEALS – right of appeal – scope of right – excess or lack of jurisdiction below – jurisdiction of the District Court – where there is a common law cause of action for money had and received APPEALS – right of appeal – scope of right – excess or lack of jurisdiction below – jurisdiction of the District Court – whether proceeding is for “relief against fraud of mistake” – District Court Act 1973 (NSW), s 134 CONTRACTS – breach of contract – consequences of breach – right to damages – where total failure of consideration CONTRACTS – termination – consequences of termination – restitutionary claims – where total failure of consideration JUDGMENTS AND ORDERS – interest – pre-judgment interest – rate applicable – where respondent succeeded on restitutionary claim – whether it was open to the primary judge to select the same rate of interest agreed to by the parties – Civil Procedure Act 2005 (NSW), s 100

COSTS – Party/Party – Appeals – Appeal against refusal of leave to commence proceedings out of time – Delay attributable to appellant’s solicitors – Unsatisfactory explanation for delay – Respondent opposed application and led court below into error – Costs not sought by respondent against appellant – No order as to costs between parties COSTS – Appeals – Orders against non-parties – Personal costs orders against lawyers – As between respondent and appellant’s solicitors – Solicitors acted negligently – Respondent increased costs considerably by opposing application – Orders not made COSTS – Appeals – Orders against non-parties – Personal costs orders against lawyers – As between appellant and appellant’s solicitors – Costs incurred without reasonable cause – Relevance of undertaking by solicitors to not seek costs against appellant – Orders made

CRIMINAL LAW – unreasonable verdict – two appellants convicted of two counts of wounding with intent to cause grievous bodily harm – alleged part of group that invaded victims’ unit – Crown case that all members of group entered unit or balcony – Crown case depended on proof that same group of males who walked up street returned and entered balcony area – whether Crown excluded reasonable hypothesis that at least one group member did not return down street or did not enter balcony area – appeal allowed for three appellants – judgment in respect of co-offenders determined same issue – appellants entitled to the benefit of that analysis – appellants previously refused legal aid and appeals lapsed – extension of time granted - appeal allowed.

CRIME – Sentence Appeal – sexual offences on child – breach of Child Protection Orders – alleged failure to provide reasons for objective seriousness determination – failure to afford reduction for alleged assistance – reasons read as a whole provide sufficient basis for understanding why determination was effected – reasons delivered ex tempore – alleged admissions and plea not assistance that required reduction – no error disclosed

CRIME – Appeals – Appeal against sentence – Reckless wounding (two counts) – Affray – Aggravated break and enter and commit serious indictable offence – Whether sentencing judge gave appropriate consideration to offender’s background of social disadvantage – Bugmy v The Queen (2013) 249 CLR 571 – Appeal allowed SENTENCING – Subjective considerations on sentence – Social disadvantage and hardship – Excellent upbringing with non-biological parents until aged thirteen – Subsequent discovery of and return to biological family – Entry into environment where criminal conduct normalised – Commencement of alcohol and drug abuse – History of offending associated with alcohol abuse – Childhood and adolescent years equally formative – Reduced moral culpability notwithstanding passage of time and intervening custodial sentences CRIME – Appeals – Appeal against sentence – Extension of time in which to appeal – Whether sufficient explanation for delay – Time required to receive transcripts, advice from counsel, Legal Aid approval, and submissions – Whether arguable case on appeal – Extension granted

CRIME — Appeals — Appeal against sentence — Co-offenders sentenced for the same offences — Sentencing judge took into account a further offence committed by the co-offender — Applicant alleges disparity between sentences — Whether the applicant was entitled to have a justifiable sense of grievance – whether the co-offender’s strong subjective case, this outweighed the co-offender’s greater involvement and further offence — Co-offenders sentenced by different judges — Whether the sentences can be explained by the different material before each sentencing judge — Co-offender gave evidence at his own sentencing and the applicant did not give evidence at his own sentencing — Agreed facts were substantially the same — Difference in material explains why the co-offender was found to have a considerably greater role than the applicant — Differential assessment of objective seriousness — No standardised language with regard to range — The effect of subjective circumstances reduced the co-offender’s moral culpability — The judge who sentenced the co-offender expressly took into account the additional offence — No disparity between the sentences such as would entitle the applicant to a justifiable sense of grievance

CRIME — Appeals — Appeal against sentence —The sentencing judge did not overstate the applicant’s moral culpability — Applicant drove straight into the side of a highly visible vehicle on a highway with a speed limit of 110kph — Conduct constituted an egregious want of care — Failure to look properly and assess the presence of oncoming traffic created a substantial risk of collision with catastrophic consequences — The sentencing judge properly assessed the application for an ICO — Assessed the applicant’s risk of reoffending low whether given an ICO or full-time custody — The purposes of general deterrence would not be sufficiently served by an ICO — Sentence was not manifestly excessive

SENTENCING – aggregate sentence – two sets of serious sexual offences committed against two victims a decade apart – applicant self harmed after offending discovered in relation to first set of offences and rendered himself a paraplegic – sentencing judge wrongly took into account standard non-parole period when none specified – error conceded SENTENCING – error by sentencing judge – effect of error – discussion of principles in Kentwell v The Queen – application of principles – independent re-exercise of sentencing discretion – ongoing relevance of R v Simpson – by majority, applicant resentenced

CIVIL PROCEDURE – Application to vary security for costs order – whether circumstances have sufficiently changed to warrant the variation of an interlocutory order – application granted

CRIME – trial – murder – voir dire admissibility of evidence issue – s 23 Crimes Act 1900 (NSW) – challenge to admissibility of evidence of sexual orientation of accused and deceased – question of relevance of homosexual tendencies of deceased or accused to partial defence – right to silence – whether right to silence breached by evidence of history taken from accused during sexual assault examination - question of abrogation of right to silence

COSTS

COSTS — Costs assessment — Gross Sum Costs Orders — Whether costs order should be made against solicitor personally — Where Court made gross sum costs order — Where Court found that solicitor’s conduct did not warrant the making of a costs order against the solicitor personally

BUILDING AND CONSTRUCTION – statutory duty under s 177 not to do something that removes support from supporting land to supported land – allegation that vibrations from work on supporting land caused removal of support by supporting land to supported land – where proposed Technology and Construction List Statement did not allege facts that if proved would show how vibrations removed such support - where the only geotechnical evidence adduced by plaintiffs was to effect that the vibrations themselves have caused damage to supported land - where plaintiffs also alleged that breach of statutory duty constituted by failure of owner of supporting land to contract with its builder to prevent builder using vibratory equipment CIVIL PROCEDURE – amendment – Technology and Construction List Statement - claim for breach of the statutory duty in s 177 of the Conveyancing Act 1919 – where earlier application to amend List Statement refused - where proceedings on foot for two years – whether proposed List Statement alleged facts that if proved could amount to a breach of such statutory duty