Cases and authorities

COSTS – party/party – plaintiff issued notice to produce and subpoenas to defendant and entities associated with defendant – plaintiff challenged sufficiency of compliance with notice and subpoenas – plaintiff successfully brought a motion for the recipients’ examination under Civil Procedure Act 2005 (NSW), s 68 – defendant now seeks her costs of the motion – whether there is reason to depart from the usual rule that costs follow the event

CORPORATIONS — Receivers and managers — Appointment by court — Application for approval of costs, disbursements and expenses and remuneration — Priority of debts— Application for termination of receivership or removal of receivers and managers

CORPORATIONS — Winding up — Liquidators — Remuneration CORPORATIONS — Winding up — Liquidators — Status

CORPORATIONS — Winding up — Liquidators — Remuneration — Whether costs incurred proportionate to issues raised in liquidation.

CORPORATIONS — Winding up — Practice and procedure — Application for adjournment of winding up — Where administrators recently appointed — Whether requirements satisfied. CORPORATIONS — Winding up — Insolvency — Where application founded upon unpaid creditor’s statutory demand. COSTS – Costs of unsuccessful application to adjourn winding up application — Whether administrators should be liable for those costs.

CIVIL PROCEDURE — Hearings — Adjournment to permit an application to be made in the Corporations List in the Equity Division pursuant to s 601AH of the Corporations Act 2001 (Cth) — Proceedings as presently constituted are an abuse of process — To grant a stay of proceedings would protect the plaintiff’s right to make the application before the Equity Division with a view to reconstituting proceedings properly — Stay of proceedings ordered

INTEREST – running account – balance moves from debit to credit due to payments on account – calculation of interest COSTS – party/party – plaintiff company succeeds in three claims for compensation against defendant director for transactions allegedly effected without authority or in breach of duty but fails on fourth – defendant’s cross-claim for rectification of share register succeeds but applications to be relieved of consequences of lack or authority or breach of duty fails – distributive application of rule that costs follow the event – “traditional rule” concerning costs of issues arising in claims – whether to make an overall apportionment of costs CORPORATIONS – costs – party/party – proceedings brought by shareholder in company’s name under Corporations Act 2001 (Cth), s 237 – where the Court ordered that the shareholder’s costs of the s 237 proceedings be the company’s costs in the substantive proceedings – company not party to s 237 proceedings and shareholder not party to company proceedings – whether the previous order can now be discharged or varied

CRIME — conspiracy to commit the common law offence of wilful misconduct in public office — elements of the offence — whether the indictment disclosed an offence known to law — joint trial of three co-accused —accused Macdonald former Minister for Mineral Resources in the Executive Government of the State of New South Wales — scope and content of duties and obligations of confidentiality and impartiality owed by a Minister in the Executive Government of the State of New South Wales — eight acts of wilful misconduct particularised as acts by accused Macdonald in furtherance of the conspiracy — overt acts of accused Edward Obeid and Moses Obeid as acts in furtherance of the conspiracy — circumstantial evidence case — Shepherd direction — consciousness of guilt lies — application of co-conspirators rule in s 87(1)(c) of the Evidence Act 1995 (NSW)

EMPLOYMENT AND INDUSTRIAL LAW – discrimination – harassment – sexual harassment – where applicant was contracted to design, publish, display and distribute a poster depicting a captioned photograph of the respondent at her workplace – whether conduct was “other unwelcome conduct of a sexual nature” – whether parties were “workplace participants” – Anti-Discrimination Act 1977 (NSW), ss 22A, 22B CIVIL PROCEDURE – appeal on question of law

CRIME – conviction appeal – jury direction – burden of proof – dealing with proceeds of crime – “reasonable grounds to suspect” – accused’s defence that no reasonable grounds – disbelieving accused insufficient to discharge prosecution burden – whether need for Liberato direction – direction given as sought – leave required under Criminal Appeal Rules SENTENCING – appeal – dealing with proceeds of crime – purpose identified as money laundering – whether judge referring to different offence – whether inflation of objective criminality – whether De Simoni error

CRIME – sentencing – reckless wounding whilst in company – joint criminal enterprise – three victims with stab wounds – attack directed at rival gang – invasion of birthday party SENTENCING – appeal – manifest excess – assessment of objective seriousness not challenged – applicant did not carry weapon or wound – applicant transported attackers and entered premises where attacks occurred – presence and encouragement during fight SENTENCING – appeal – manifest excess – evidence of entirely favourable personal circumstances – whether adequately reflected in sentence

SENTENCING – police officer victim of offence under s 33B(1) of Crimes Act – whether erroneous to refer to their status as aggravating circumstance – no error established - sentencing judge only considered status of victim in characterising objective seriousness of offence - alleged double punishment revealed by indicative sentences – no common elements – sentence not manifestly excessive – leave to appeal granted but appeal dismissed.

CIVIL LAW – criminal assets recovery - restraining orders – ex parte – restraining orders made – ancillary orders – compulsory examination – whether such orders should be made ex parte – realism of plaintiff’s solicitor – discretionary considerations – where orders for examination can be made at a later stage – where pending criminal proceedings - ancillary orders refused

COSTS — Party/Party — Bases of quantification — Indemnity basis – Unreasonable conduct LEASES AND TENANCIES — Ejectment — Order for vacant possession— Writ of possession — Mesne profits

CIVIL PROCEDURE – application for expedited hearing – proceedings for medical negligence – Plaintiff with cancer – expedition granted with parties to take necessary steps to progress litigation towards timely hearing

CRIMINAL LAW – Sentence – Murder – Offender found guilty at trial – Where jury rejected self-defence and excessive self-defence – Stabbing outside home in St Clair – No intention to kill – Assessment of objective seriousness somewhat below the middle of the range – Provocation not established – Prior good character and very limited criminal record – Good prospects of rehabilitation – Acceptance of responsibility for actions and genuine remorse – No special circumstances – Sentence imposed

JUDGMENTS AND ORDERS - amending, varying and setting aside - consent orders - set aside - parties attended court-annexed mediation – both parties legally represented - parties signed consent orders requiring court approval - defendant alleged he was pressured to sign orders - where nothing in affidavit of defendant evidencing undue pressure to settle proceedings - no basis for setting aside agreement reached at mediation REAL PROPERTY - possession of land - defendant’s mother owner of premises with NSW Trustee & Guardian as her financial managers - where plaintiff the registered proprietor of the land and defendant in occupation of the land - where defendant alleged constructive trust from agreement with plaintiff to look after her and maintain the property - resolution at mediation - parties signed consent orders requiring court approval due to legal incapacity of plaintiff - settlement approved pursuant to s 76(4) Civil Procedure Act

CONTRACTS — Breach of contract — alleged default by borrower under mortgage – where due date for payments disputed – whether due date varied orally or in writing by parties – held, due date was varied as advanced by lender CONTRACTS — Implied terms — Terms implied in fact – whether it was an implied term of the loan agreement that the lender would provide a loan statement upon request – where borrower had express right to early repayment of loan – where borrower had to give irrevocable notice specifying the amount to be repaid – held, necessary to imply such a term ESTOPPEL — Promissory estoppel — where borrower believed payment was due on 11th – where lender previously accepted payment on 11th – whether lender entitled to issue default notice due to failure to pay on 8th of the month – held, lender was estopped from issuing default notice CONSUMER LAW — Unconscionable conduct — In connection with goods or services — System of conduct or pattern of behaviour – where lender failed to issue loan statement without reasonable excuse – where lender entered negotiations for deed of forbearance during COVID-19 shutdown – where lender issued default notice during negotiations – where default notice issued two days before borrower believed payment was due – held, lender acted unconscionably under s 21 of the ACL CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters – where lender said it would “action” request for a loan statement “now” – where lender failed to do so – held, not misleading and deceptive conduct

APPEALS – procedure – stay pending appeal

COSTS - “Chorley” exception - client sued former solicitor for negligence in failing to enforce a favourable costs order in Family Court proceedings - former solicitor represented by incorporated legal practice which was its sole shareholder - whether District Court erred in dismissing client’s action for negligence - former solicitor sought gross sum costs order - whether District Court erred in failing to grant second adjournment - whether District Court erred in making gross sum costs order - whether former solicitor to be equated with incorporated legal practice which represented it

ENVIRONMENT AND PLANNING – development consent – challenge to validity – whether environmental impact statement complied with Environmental Planning and Assessment Regulation cl 7(1)(c) – requirement to consider feasible alternative sites – requirement to consider feasible alternative designs ENVIRONMENT AND PLANNING – meaning of “feasible alternatives” – requirement for competitive design process – scope of alternative designs – Parramatta Local Environmental Plan, cl 7.10

ADMINISTRATIVE LAW - workers compensation - examination by approved medical specialist - request for re-examination by appeal panel refused - primary judge held that request not considered by appeal panel - appeal panel in fact considered request - adequacy of reasons of appeal panel - whether denial of procedural fairness by primary judge - whether any denial could be material in light of the right of appeal by way of rehearing - whether other judicially reviewable errors in appeal panel’s decision - consideration of differences in assessment regimes under workers compensation and motor accident legislation - appeal allowed and decision of appeal panel reinstated COSTS - whether reason to depart from rule that costs should follow event - inclusion by appellant of voluminous irrelevant pages in appeal materials - where error by primary judge could have been corrected without need for appeal

CRIME – Appeal against sentence – sentencing judge precluded aggregate sentence and order of ICO – effective sentence of 3 years from 2 offences fully concurrent – aggregate sentence available and, if imposed, ICO available – appeal allowed – aggregate sentence imposed – ICO ordered.

EVIDENCE – Evidence Act 1995 (NSW), ss 44(3), 43 – cross-examination of one accused by another – prior inconsistent statement – “use” to be made of Crime Commission Information Report – report was a summary of the co-accused’s account of events – inconsistency between Information Report and co-accused’s account of events at trial – no questions expressly or impliedly referring to existence of report allowed – questions about oral statements made by co-accused to the Commission should have been allowed with leave – rebuttal evidence should have been allowed under s 106 – erroneous ruling under Evidence Act 1995 (NSW), s 192A CRIME – appeals – Criminal Appeals Act 1912 (NSW), s 6(1) – third limb – loss of chance of acquittal – second limb – wrong decision of any question of law CRIME – appeals – proviso – error relevant to credibility of co-accused only – credibility of both accused comprehensively rejected by the jury – no significant denial of procedural fairness – Court able to assess proviso – accused’s guilt proved beyond reasonable doubt – proviso applied – appeal dismissed CRIME – appeals – unreasonable verdict – circumstantial case – joint criminal enterprise – two accused – Crown unable to prove which accused fired the fatal shots – cut-throat defence – Crown attack on both accused’s credibility – lies demonstrating consciousness of guilt – exculpatory explanations frankly absurd and third grade fictional – neither accused a criminal genius CRIME – appeals – fresh evidence – evidence came forward after the Rogerson was sentenced – key witness a friend of the accused – “oh by the way don’t tell Rogerson about this” – evidence not credible – no miscarriage of justice EVIDENCE – exclusion – Evidence Act 1995 (NSW), s 135 – evidence that Rogerson admitted having participated in several homicides and other criminal violence – evidence relevant to whether McNamara’s conduct committed under duress – limited probative value – highly prejudicial to Rogerson in context of murder trial – evidence correctly excluded CRIME – appeals – appropriate standard of review – Evidence Act 1995 (NSW), s 135(a) – review of trial judge’s decision to exclude evidence – s 135 involves an evaluative judgment, not an exercise of judicial discretion – House v The King standard not appropriate – “correctness” standard applied – appellate court to decide for itself whether the evidence should be excluded WORDS AND PHRASES – Evidence Act 1995 (NSW), s 135(a) “evidence unfairly prejudicial to a party” – “a party” includes a co-accused in a joint criminal trial CRIME – appeals – appeal against refusal to discharge jury – inadmissible evidence before jury – evidence would have had minimal effect on jury in the context of the trial – carefully crafted directions given – agreed fact stating the inadmissible evidence was incorrect – trial judge correct to refuse the application SENTENCING – appeal against sentence – life sentence – Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1) – “level of culpability in the commission of the offence” – two-stage approach appropriate – not the same two-stage approach previously rejected by the High Court – no inconsistency with instinctive synthesis approach – circumstances surrounding or causally connected to the offence – objective and subjective distinction unhelpful in context of s 61 – life sentence appropriate SENTENCING – appeal against sentence – challenge to factual findings on sentence – sentencing judge found plan to kill deceased was formed well before murder – finding overwhelmingly supported by evidence – no error

SENTENCING – appeal against sentence – money laundering offences – co-offenders – disparity between sentences – first co-offender’s sentence reduced on appeal due on parity principles – applicant faced charges carrying significantly lower penalties than those faced by second co-offender but applicant’s sentence significantly more severe – legitimate sense of grievance demonstrated – sentence set aside – sentencing discretion re-exercised – adjustment achieved by restoring proportions with first co-offender’s sentence SENTENCING – appeal against sentence – sexual assault offences – whether primary judge erred in assessing objective seriousness – whether applicant had actual knowledge of absence of consent – knowledge clearly established as absence of consent manifest by violent assaults which preceded sexual assaults – whether offences less serious where committed in context of ongoing consensual relationship – no principle that sexual assault committed in prior or existing relationship is, for that reason alone, less serious than one committed by a stranger – Bussey v R [2020] NSWCCA 280 SENTENCING – appeal against sentence – whether level of accumulation resulted in overall manifestly excessive sentence – sentence lengthy but justified – no error by primary judge established

CRIMINAL LAW – appeal – appeal against sentence – where hearsay evidence not erroneously admitted – where evidence insufficient to support finding beyond reasonable doubt that offender committed physical assault – reduced moral culpability of offender – appeal allowed

CRIMINAL LAW – appeal – appeal against conviction – where appellant convicted of setting fire to his house – destroying or damaging property – attempt to dishonestly obtain financial advantage from insurance company – where there are several available reasons why appellant may have not started fire – where it was open to jury to be satisfied beyond reasonable doubt that appellant’s interpretation of evidence should not be accepted – where there are no inconsistencies in evidence that are irreconcilable with finding of appellant’s guilt – verdict not unreasonable and can be supported having regard to evidence – appeal dismissed

SENTENCING – Appeal against sentence – General principles – Accumulation – Where sentencing judge expressed an intention to partially accumulate but failed to do so – Appeal allowed

CORPORATIONS — Meeting of unitholders — Where transfer resolution to be put to unitholders at meeting withdrawn — Where entity that requisitioned meeting advised unitholders not to attend — Whether Court has power to cancel meeting under s 1322 of the Corporations Act 2001 (Cth) — Whether “just and equitable” to cancel meeting.

SENTENCING – Murder – Where victim detained and tortured in share house in relation to property dispute – Where property dispute concerned $500 – Where victim’s body disposed of in bushland – Where three co-accused – Where two co-accused entered early pleas – Where third co-accused to be tried SENTENCING – Murder – Where victim 17 years old – Where two co-offenders 18 years old – Where standard non-parole period of 25 years applied – Where rationale for extending standard non-parole period from 20 to 25 years significantly reduced given minimal age gap between victim and co-offenders SENTENCING – Murder – Where co-offender used cricket bat to strike victim’s head – Where offender of prior good character – Where offender unusually immature for age – Where offender acted under duress – Where youth, immaturity and duress taken into account in determining objective seriousness – Where offender provided assistance to authorities despite fear of co-accused to be tried SENTENCING – Murder – Joint criminal enterprise – Where foundational offence specially aggravated kidnapping – Where offender of prior good character – Where offender developmentally immature – Where offender had limited family support and alcohol use disorder

CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — Form and content — Where plaintiff seeks leave to file and serve a further amended statement of claim — Where first defendant opposes and second defendant consents to the filing and service of the further amended statement of claim — Where first defendant submits that the draft further amended statement of claim does not comply with the accepted rules of pleading in circumstances where serious allegations are sought to be made against the first defendant — Where the Court found some defects in the pleadings — Where the Court also separately recommended that the plaintiff reconsider his application for leave to file a further amended statement of claim that would introduce breach of trust and fiduciary duty claims against the first defendant as executor personally, having regard to the applicable principles of the law of succession

COSTS — Costs assessment — Determination of a gross sum costs order — Where second defendant acted entirely unreasonably — Where Court assessed costs on a gross sum basis discounted by 30%

CIVIL LAW - order for evidence to be taken on commission - request by foreign court - no question of principle

EQUITY – resulting trust – defacto couple purchase family home in 1987 – few contemporaneous documents – defacto wife contributed to purchase price – husband held half of interest in property on resulting trust for wife – husband to account for half of rental income – defence of laches not established. FAMILY LAW – matrimonial cause – whether the Court should determine the application – leave not required to commence proceedings under s 44(3), Family Law Act – proceedings within s 78, Family Law Act – consent implied where no objection raised until 2 years after proceedings were commenced – this Court should determine the matter. ESTOPPEL – consent orders made in Family Court without admission that appropriate forum was in Poland – in fact, Polish Court has no jurisdiction in respect of Australian property – whether issue estoppel, Anshun estoppel or abuse of process – no estoppel or abuse of process found.

CRIMINAL LAW – sentence – jury verdict following trial for murder – verdict of guilty of assault occasioning death whilst intoxicated – where victim died as the result of stab wounds inflicted by offender following long period of mutual drinking – where offender perceived threat from victim and armed himself with a knife – where jury verdict excluded finding of death by reason of excessive self-defence or that the stabbing was unlawful and dangerous – alternative verdict CRIMINAL LAW – sentence – verdict of guilty of assault occasioning death whilst intoxicated – mandatory minimum sentence and mandatory minimum non-parole period – where clear legislative intention to constrain sentencing discretion – where ability to give effect to favourable subjective considerations consequently restricted

CIVIL PROCEDURE – subpoenas – to produce documents or things – application to set aside – legitimate forensic purpose – test for determining the validity of a subpoena issued in civil proceedings – whether sufficient that the documents sought by a subpoena have “apparent relevance” to an issue in the proceedings – whether necessary to satisfy the court that the documents are likely materially to assist the case of the party issuing the subpoena – consideration of bases for setting aside subpoenas CIVIL PROCEDURE – Subpoenas – Legitimate forensic purpose – origins of concept – converse of abuse of process – whether a party issuing a subpoena will lack a legitimate forensic purpose if unable to demonstrate that documents sought by subpoena likely to assist its case – legitimate forensic purpose may be presumed where documents sought have apparent relevance to matters in issue or are capable of assisting in cross examination COURTS AND JUDGES – precedential value of decisions of Court of Appeal refusing leave to appeal.

CRIMINAL LAW – cross-examination – cross-examination as to credibility – improper questions – credibility rule – objection to proposed line of questioning – where witness asked about another witness’s intent – objection upheld

CORPORATIONS — Winding up — Statutory demand — Offsetting claim — Where separate proceedings in respect of matters relied on in offsetting claim commenced by party seeking to set aside creditor’s statutory demand. CORPORATIONS — Winding up — Statutory demand — Application to set aside — Where Defendant accepted that offsetting claim established — Whether to impose condition as to payment into Court on setting aside statutory demand. CORPORATIONS — Winding up — Statutory demand — Application to set aside — Some other reason to set aside — Where creditor’s statutory demand not supported by affidavit — Where demand relies upon judgment debt — Where credit allowed in respect of that debt for amount recovered by garnishee order. COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where institution of other proceedings relevant to establishing offsetting claim — Whether costs should only be awarded from date those proceedings commenced.

BUILDING AND CONSTRUCTION – civil procedure – application to amend Technology and Construction List Response – proposed amendment to limitation defence based on construction of Home Building Act 1989 (NSW), ss 18C and 18E and schedule 4, clause 109 – defendants had previously withdrawn limitation defence – prejudice to the plaintiff if limitation defence now re-introduced – whether consistent with overriding purpose and dictates of justice to grant leave to amend – leave refused CIVIL PROCEDURE – application for leave to file a cross-summons and list cross-claim statement against sub-contractors of the defendant builder – where no material facts pleaded or alleged defects particularised in support of the allegations – application dismissed

CIVIL PROCEDURE — Notice of motion — Default judgment for plaintiffs on liquidated claim and on the claim for possession — Plaintiffs granted leave to issue a writ of possession — Borrower and guarantors seeking that the judgments be set aside and a stay of the writ — Application to set aside turn on whether there exists a defence on the merits or a triable issue — Whether interest clause is void for uncertainty and its construction are triable issues — Whether interest rate provision qualifies as a penalty is a triable issue — Whether second loan was unconscionable and unjust are defences that raise triable issues — Explanation for delay given — Default judgments ought be set aside CONTRACTS — Construction of loan agreements — Whether terms of the first loan are unconscionable and the second loan is unjust by reason of its terms and surrounding circumstances — Considered in the context of whether there exist triable issues

COSTS — party/party — specific court rules in relation to costs — action which should have been brought in inferior court — significance of concurrent proceedings and jurisdiction of the District Court

WORKERS COMPENSATION – referral of medical dispute to approved medical officer – assessment of permanent impairment – whether approved medical officer is confined to an assessment of the body parts and systems specified by the Registrar in the referral form WORDS AND PHRASES – “medical dispute”

CRIME – appeals – appeal against sentence – findings of pre-meditation and planning - whether findings made which were inconsistent - whether erroneously taken to be aggravating factor on sentence – held no inconsistency in judge’s findings – leave granted - appeal dismissed

CRIME – Appeals – appeal against conviction – whether there was a miscarriage of justice in that the applicant allegedly did not give evidence in relation to his application for a permanent or temporary stay of proceedings – where contemporaneous evidence revealed that decision not to proceed with stay application was taken on the applicant’s instructions

CRIME – appeals – appeal against conviction – where a majority verdict direction was given instead of a Black direction – whether a miscarriage of justice occurred by the failure to give a Black direction – direction was not a proper perseverance direction – appeal allowed – quash the verdicts of guilty returned by the jury – retrial ordered

MORTGAGES AND SECURITIES — Personal Property Securities Act 2009 (Cth) — Personal Property Securities Register — Application under s 182 of the PPSA — Where amendment demand made under s 178 of the PPSA — Where interest recorded on PPSR exceeds terms of contractual agreements between the parties.

SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 — Benjamin order

COSTS – Party/Party – Specific court rules in relation to costs – Civil Procedure Act 2005 (NSW), s 98(4)(c) – where specified gross sum costs order is sought – where discount is applied to costs order COSTS – Party/Party – Application for gross sum costs order – where costs of assessment would be disproportionate

CONTRACTS — Construction and interpretation — Construction of shareholders deed — Where disposal to non-affiliate company permitted with consent of other shareholders — Question as to degree of knowledge required for implied consent — Consent by conduct — Where conduct included assenting to resolutions; execution of resolutions; execution of share certificates. CONTRACTS — Construction and interpretation — Whether shareholder company can waive certain requirements under shareholders deed in respect of itself — Where waiver allows company to avoid consequences of specified events. CONTRACTS — Implied terms — Shareholders deed — Implied term that compulsory transfer notice must be issued within reasonable time. CONTRACTS — Election — Whether sufficient knowledge of breach of shareholders deed for doctrine of election to operate. EQUITY — Equitable remedies — Relief against penalties — Where shareholders deed provided for transfer of shares at cost on happening of certain events — Where such acquisition to occur at cost price rather than market value. CORPORATIONS — Members’ rights and remedies — Oppression — Whether exercise of rights in respect of transfer under shareholders deed is oppressive in the relevant circumstances

ADMINISTRATIVE LAW – appeal – questions of law – whether ground properly involved no evidence point – intermediate findings – ultimate findings – whether some probative evidence – adequacy of reasons – procedure fairness – appeal upheld – judgment below set aside – remitter