Cases and authorities

HIGH RISK OFFENDERS – Extended supervision orders – Application – Serious sex offender – Where defendant alleged to have committed a further sexual offence in breach of interim supervision order – Whether unacceptable risk of committing another serious violent or sexual offence – Where defendant assessed as being in high risk category for re-offending – Whether unproved criminal charges a consideration under s 9(3)(h) of Crimes (High Risk Offenders) Act 2006 (NSW) – Whether unproved criminal admissions a consideration under s 9(3)(h) of Crimes (High Risk Offenders) Act 2006 (NSW) – Where extended supervision order not opposed – Where conditions of extended supervision order in dispute

HIGH RISK OFFENDERS – Interim supervision orders – Conditions – High risk violent offender – Conditions imposed must be relevant to risk posed by the offender

INSURANCE – professional indemnity insurance – claims made and notified policy – where insurers notified within policy period of “chance of a claim” by insured’s clients for any loss “that may be incurred” – whether notification of “facts that might give rise to a claim” engaging Insurance Contracts Act 1984 (Cth), s 40(3) – whether loss more than a potential possibility on notified facts INSURANCE – non-disclosure and misrepresentation – where dispute about extent of disclosure – whether non-disclosure entitling insurers to reduce liability to nil under Insurance Contracts Act 1984 (Cth), s 28(3) – whether evidence that insurers would not have issued policy but for non-disclosure directed to undisclosed matters distributively or taken together INSURANCE – non-disclosure and misrepresentation – where insurers seek to avoid policy for fraudulent misrepresentation under Insurance Contracts Act 1984 (Cth), s 28(2) –whether fraudulent misrepresentations specifically pleaded – whether misrepresentations concerning matters of fact or statements of opinion COSTS – where separate proceedings against same defendants heard together – where most issues of fact and law common or closely related – where plaintiffs and defendants represented by the same lawyers in each proceeding – whether plaintiffs should be jointly and severally liable for defendants’ costs

APPEALS – leave to appeal – costs assessment – where alleged that lawyers acting for party with benefit of costs order did so pro bono – whether costs assessment applicant liable to pay lawyers’ costs – no question of principle

APPEALS – Nature of appeal – Appeal by way of rehearing – Appeal against sentence brought by the Director of Public Prosecutions under s 23(1) of the Crimes (Appeal and Review) Act – Whether Director required to establish error – whether the District Court has a “residual discretion” to dismiss the appeal notwithstanding a finding that the sentencing decision entailed error

ENVIRONMENT AND PLANNING – Court of Appeal – jurisdiction and powers – where appellants imported fill, engaged in earthworks, constructed hardstand areas and used land for storage without development consent – where appellants admitted breaches – where primary judge ordered cessation of use, removal of fill and restoration of premises – where primary judge suspended injunctive relief – whether House v The King error in granting injunctive relief established

CRIME — Appeals — Appeal against sentence – offences of dishonestly obtain financial advantage, breach of bail undertaking, give false evidence at public inquiry – whether sentencing judge erred in assessment of objective seriousness of the offences – where sentencing judge stated that the findings of objective seriousness were arrived at after taking into account mitigating factors including plea of guilty – where subjective factors were subsequently considered – held, remarks read as a whole indicate that subjective factors were taken into account after findings of objective seriousness – whether sentencing judge erred in failing to take into account possibility of summary disposition in respect of count 1 – argument not raised below – where applicant was sentenced for multiple offences that occurred over several years including a fraud of over $1m – not necessary to consider hypothetical situation in which count 1 was dealt with in isolation – whether aggregate sentence manifestly excessive – where indicative sentence on count 1 high – principle of totality – no error disclosed in aggregate sentence – appeal dismissed

CRIME — Appeals — Appeal against conviction — whether verdicts inconsistent or otherwise unreasonable – offences of sexual intercourse without consent, assault with act of indecency and recording intimate image without consent – where applicant was convicted of three counts and acquitted of four counts – where applicant admitted acts for counts upon which he was convicted but disputed consent – where counts upon which applicant was acquitted were disputed or involved possible fragmentation of memory due to alcohol consumption and sleep – held, verdicts not inconsistent or otherwise unreasonable CRIME — Appeals — Appeal against conviction — where applicant gave different versions to police and others – whether trial judge erred in failing to give Zoneff direction in relation to the applicant’s “changing story” – where applicant told police that he deleted an intimate photograph of the complainant because he “didn’t feel right” about “how it ended” – whether trial judge erred in failing to give Edwards direction in relation to deletion of photograph – where Crown did not rely upon lies or post-offence conduct as consciousness of guilt – held, no error

CRIME — Appeals — Appeal against sentence – whether sentencing judge erred in assessment of objective seriousness by “double counting” elements of the offence as aggravating features – offence of aggravated enter dwelling house with intent to commit serious indictable offence – where sentencing judge observed that the offenders were “armed with knives” and the entry was an “effective invasion of a domestic dwelling at night” – held, it was necessary for sentencing judge to have regard to the type of weapon used and the nature of the entry into the dwelling – whether sentence manifestly excessive – where offence was found to be above the mid-range of objective seriousness – lack of favourable subjective case – held, no error

CRIME – appeals – appeal against sentence – supply of prohibited drugs – sentencing – relevant factors on sentence – whether offender spent time in quasi-custody – whether quasi-custody was taken into account by the sentencing judge – no quasi-custody – no error of law established – appeal dismissed

LAND LAW — Easements — Use of easements — Excessive and unreasonable use — Long running and bitter dispute between neighbours about scope of entitlement to maintain right of way including by use of leaf blower

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Circuit Court of Australia

CIVIL PROCEDURE – parties – substitution of party pursuant to legislation – functions that were previously performed by SIRA conferred on the President of the Personal Injury Commission – savings and transitional provisions of the Personal Injury Commission Act 2020 – leave to amend summons granted ADMINISTRATIVE LAW – judicial review – jurisdictional error – application to set aside – declaratory relief – certiorari – remittal of matter back to the President of the Personal Injury Commission of New South Wales

COSTS — Party/Party — General rule that costs follow the event — Where plaintiff sought an order that the defendant pay the plaintiff’s costs on the indemnity basis — Where defendant sought orders that the costs for both the plaintiff and defendant be paid out of the deceased’s estate on the indemnity basis in reliance on the principle in Re Buckton (that is, that the proceedings arose out of the fault of the deceased in leaving her affairs in a state of confusion) — Where the Court found that the deceased did not leave her affairs in a state of confusion — Where the plaintiff relied on a Calderbank offer — Where the Court found that the offer was not an effective Calderbank offer as there was no real element of compromise — Where the Court ordered that the defendant pay the plaintiff’s costs on the ordinary basis from the time of service of the summons and the plaintiff’s affidavits in support, but otherwise that there be no orders for costs on the basis that the parties will pay their own costs

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where first defendant, while successful at the primary hearing, serially failed to comply with case management orders to file a cross claim in a manner that amounted to a breach of s 56 of the Civil Procedure Act 2005 (NSW) — Where cross claim filed after conclusion of primary hearing necessitating further prolonged litigation — Where the Court found that it would not be appropriate to make a costs order in favour of the first defendant

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Where contractual clauses relied on to seek costs on indemnity basis

COSTS — Party/Party — Self represented litigant — Where the second defendant sought costs orders against the bankrupt first defendant and in the alternative against the estate of his deceased mother on the basis that property vested in the first defendant’s trustees in bankruptcy should be treated as part of the estate — Where the second defendant had filed a submitting appearance — Where the second defendant had incurred costs in making an application for leave to apply for family provision relief out of time — Where the second defendant had not prosecuted the application for leave — Where otherwise no relief had been sought by or against the second defendant — Where the Court found that the second defendant was entitled to seek legal advice as to the significance of the steps being taken by other parties in the proceedings, but at her own cost — Where the Court dismissed the application for costs

CORPORATIONS – Winding up – Question arising during winding up – Application by liquidators to Court for direction – Application by liquidators for approval of entry into deed of settlement.

CORPORATIONS – Scheme of arrangement – Application for order convening meeting of members to consider scheme of arrangement.

APPEAL – post-judgment application to vary order – proposed order not sought at hearing – whether slip rule engaged – power to vary entered order COSTS – appeal – post-judgment application to vary order – order as to costs of trial favourable to cross-appellant – order set aside – application to reinstate PROCEDURE – variation of entered order – slip rule – whether “accidental slip or omission” – mistake by party – Uniform Civil Procedure Rules 2005 (NSW), r 36.17 – application to vary despite entry – Uniform Civil Procedure Rules 2005 (NSW), r 36.16 – whether prejudice to opposing party – order consented to at trial

CONTRACTS – construction – agreement resulting from mediation of dispute – heads of agreement – Masters v Cameron class 2 contract – proposed deed of release – parties to enter into deed to terminate earlier agreement – whether deed to include all terms of settlement CONTRACTS – construction – agreement to grant easement – whether ambiguity – whether specified width included kerb, gutter and footpath CONTRACTS – construction – implied terms – term to be necessary to give business efficacy – whether temporary easement for construction to be implied – whether expansion of easement to permit construction of roundabout to be implied

ENVIRONMENT AND PLANNING — consent — power to grant – subdivision – provision fixing development standard – minimum size of lots created by subdivision – proposed subdivision non-compliant – whether development standard applied to proposed subdivision – provision that consent not be granted for subdivision of “resulting lot” – proposed subdivision of a resulting lot – whether provision applied to proposed subdivision

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch – Plaintiffs seek dismissal of Defendant’s cross claim for want of prosecution and summary judgment on the Plaintiffs’ Amended Statement of Claim – the proceedings concern the distribution of the Estate of the First Plaintiff’s sister (who is the Second Plaintiff and Defendant’s great aunt) – the Plaintiffs allege the Defendant has abandoned her claim. The Defendant’s solicitor ceased to act in December 2020 and the Defendant has not taken part in the proceedings since – all parties live in Serbia and there are ongoing proceedings regarding distribution of the Estate in Serbia – there have been Letters of Administration obtained in NSW in respect of NSW assets based on what the Defendant later accepted, without admitting personal involvement, was a forged document. The Defendant’s cross claim is based on a 2011 Will and alternatively a family provision claim. The Defendant has already received significant benefits from the Estate as a result of Letters of Administration obtained on her behalf by her agents. The Plaintiffs claim that the 2011 Will (like the document on which Letters of Administration were obtained) is also a forgery. Consideration of various matters relevant to dismissal of the cross claim including effective abandonment of it by the Defendant and the weakness of her claim – Held: cross claim should be dismissed. CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — No defence – Consideration of whether, there being no defence to the Plaintiffs’ Amended Statement of Claim, there should be judgment for the Plaintiffs – Held: there should be judgment for the Plaintiffs on their Amended Statement of Claim, for various reasons. COSTS – indemnity costs – consideration of whether the Plaintiffs should be awarded indemnity costs by reason of the conduct of the Defendant/ Cross claimant in these proceedings – Held: that indemnity costs should be awarded for various reasons including the fact that the Defendant by her agents obtained Letters of Administration in her favour on the basis of a forged document.

ADMINISTRATIVE LAW – leave to appeal against a decision of the Appeal Panel of NCAT – question of law – no question – no error found – summons dismissed

CIVIL PROCEEDINGS – personal injury – expedition – hardship – loss of proceedings – orders made

PROCEEDS OF CRIME – forfeiture of property – forfeiture period – procedural orders

CIVIL PROCEDURE – human tissue – application for orders permitting the transfer of gametes extracted from the deceased’s body after his death to the ACT–consent for the removal of gametes – storage of gametes – posthumous use of gametes – Invitro-Fertilisation in ACT – construction of Human Tissue Act 1983 (NSW) – declaratory relief is discretionary – orders

CIVIL – final hearing – application for extended supervision order – Terrorism (High Risk Offenders) Act 2017 (NSW) – orders – reasons for decision – preconditions – whether defendant convicted NSW terrorism activity offender – language used by defendant – advocating support – terrorist act – violent extremism – threat of violence – promote person, group of persons or organisation or ideology – support terrorist act of violent extremism – mental state and delusions – personal views – whether the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision during the period of extended supervision order – expert opinion of risk – mental illness – risk of relapse – susceptibility to influence – criminal history – parole and conditional liberty – approach to treatment – family support – community treatment order – duration – conditions – supervision movements and reporting – financial oversight – electronic monitoring, drugs and alcohol – counselling and medical treatments, associations – identity

COSTS - Probate and family provision proceedings brought in one proceedings – Where Plaintiff unsuccessful in entirety of her claim – Where Defendants made two Offers of Compromise, each of which was not accepted by the Plaintiff, and the Defendants obtained orders on the claims, no less favourable than the terms of the offer – Where Defendants seek application of r 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) - Whether the Court should exercise its discretion to “otherwise order” SUCCESSION - Where Defendants seek an order that that they may deduct from the Plaintiff’s share of the residuary estate, the costs ordered to be paid by her – Where Plaintiff is unable to otherwise repay the estate

DEFAMATION – Publication – Slander – Where appellant relied on contemporaneous email to prove publication of the words allegedly said – Whether slander proved in the terms pleaded – Whether appellant identified by the matters complained of – Whether imputations complained of by appellant conveyed to the ordinary reasonable listener DEFAMATION – Defences – Defence of qualified privilege at common law and under Defamation Act 2005 – Whether reasonableness required to be proved to establish defence at common law having regard to defence as pleaded – Whether reasonableness established – Defence of justification – Where ASIC sought to establish truth of imputation of market manipulation without attempting to establish the individual trading of any particular trader or pod of traders – Contention that the relevant company had engaged in the impugned conduct on “any one or more” of 23 “occasions” – Expert opinion evidence concerning proof of impugned conduct by the establishment of certain metrics observed in the company’s trading – Whether sufficient to establish truth defence

CRIMINAL LAW – Crown sentence appeal – pleas of guilty to one count of dangerous driving occasioning grievous bodily harm and two counts of aggravated dangerous driving causing death – three victims were passengers in respondent’s vehicle, two of whom were killed as a result of his conduct – sentence of imprisonment for 6 years with a non-parole period of 2 years and 9 months imposed – speed and alcohol – challenge by Crown to levels of accumulation and to total effective sentence – high level of moral culpability – error demonstrated – non-parole period and head sentence both manifestly inadequate – respondent re-sentenced.

CRIME – appeal against sentence – supply of less than commercial quantity of methylamphetamine – whether sentence manifestly excessive

CRIMINAL LAW - appeal against conviction - arson - whether verdict unreasonable - circumstantial case - independent assessment of the evidence - whether all inferences consistent with innocence excluded - where appellant relies on deficiencies in expert evidence - evidence not to be considered in a vacuum - whether fire deliberately lit - electrical fault - arcing - where experts concede “possibility” of accident - other circumstantial evidence relied on by prosecution - insurance claim - telephone intercepts - coy references to “a certain job” - “shonky things” - invoice for “project management” - evidence of chasing debt - consciousness of guilt - admission by one co-accused - “a bread, cheese and diesel” - strong prosecution case - verdicts not unreasonable CRIMINAL LAW - evidence - failure of prosecution to call witness - whether “Mahmood” direction required - whether absence of witness gave rise to reasonable doubt - where prosecutor formed the view that witness not reliable - where prosecutor offered to assist accused to call witness - forensic disadvantage CRIMINAL LAW - evidence - circumstantial evidence - directions - whether judge required to identify particular inference - where direction not sought at trial - where several innocent inferences relied on - whether direction against applicants’ interests

HIGH RISK OFFENDER – Extended Supervision Order – applicant convicted of serious sex offences - defendant examined by psychologists – defendant diagnosed with Antisocial Personality Disorder and Substance Use Disorder (in remission) - where psychologists assessed defendant as being in above average to high risk category for reoffending – where both psychologists of view that ESO needed to manage risk – ESO imposed for three years CRIME – bail – show cause – applicant breached ISO – breach matter adjourned – where strong chance defendant will be in custody for longer than likely sentence for ISO breach if bail not granted – bail granted EVIDENCE - documentary evidence - tender of documents – late tender of a Victim Statement under s 21A of the Crimes (High Risk Offenders) Act – where maker not available for cross-examination – where victim refused consent for offender to see Statement – minimal weight placed on factual assertions contained within Statement

SUCCESSION — family provision — claim by person in an alleged close personal relationship with the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — whether eligible person — whether living together

CORPORATIONS — Winding up — Liquidators —Application for approval of costs, disbursements and expenses and remuneration — Application for directions — Whether to assign causes of action

CORPORATIONS — Membership — Register — Rectification of register EQUITY — Equitable remedies — Injunctions

CIVIL PROCEDURE – interim preservation – freezing order – mortgagors seek to restrain mortgagee from paying out part of proceeds of sale of mortgaged properties – scope of exceptions to freezing order – whether mortgagee can be prevented from making payments to third party investors under contracts made before the dispute arose – consideration of Jackson v Sterling, Cardile and Coral Rose – application refused

CORPORATIONS — Interim preservation — Freezing orders — Application under s 1323 of the Corporations Act 2001 (Cth) — Whether requirements for such an order met. CORPORATIONS — Interim injunction — Application under s 1324 of the Corporations Act 2001 (Cth) — Where injunction would prevent company from raising capital by issue of shares — Where that could cause company to become insolvent — Whether Court should refuse interim relief on these grounds.

LEASES AND TENANCIES — Renewals and options — Exercise of option — Where lessee commenced original proceedings seeking declaration that the parties had entered into a retail lease — Where Court of Appeal held the parties had entered into a retail lease — Where lessee now seeks specific performance of lessor’s agreement to renew the lease pursuant to lessee’s exercise of option — Where lessor pleads that the Court should use its discretion to withhold specific performance on account of the inability of the parties to cooperate, the toxic interpersonal relationship between the principals of the lessor and lessee, and because damages would be an adequate remedy — Where the Court found that a breakdown in personal relations between principals of parties to the lease is not a proper basis for the Court to deny the lessee its proprietary right to a renewal of the lease — Where the Court found that damages are not an adequate remedy — Where the Court grants specific performance of lessor’s agreement to grant a renewed lease to lessee LEASES AND TENANCIES — Retail leases — Retail shop lease — Lessee in breach of obligations — Where lessor claimed lessee failed to pay rent in circumstances where lessee paid less than the rent due under the lease on its interpretation of the operation of the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) — Where COVID-19 regulatory regime required rent to be renegotiated in good faith by lessor and lessee — Where lessor failed to renegotiate in good faith — Where the Court found that the lessor will never be entitled to take a prescribed action against lessee in respect of the short payments in rent LEASES AND TENANCIES — Retail leases — Retail shop lease — Lessee in breach of obligations — Where lessor claimed lessee failed to pay insurance premiums in relation to outgoings pursuant to the lease — Where lessor and lessee disputed the meaning of ‘insurance’ — Where lessor claimed lessee must pay a share of product and public liability insurance — Where lessee held its own insurance in that regard — Where the Court held that the lessee did not breach the lease by failing to pay the share of premiums claimed by the lessor LEASES AND TENANCIES — Retail leases — Retail shop lease — Lessee in breach of obligations — Where lessor claimed lessee failed to maintain the premises in good condition — Where lessor sought order requiring lessee to perform a list of maintenance tasks — Where it is unclear on the evidence whether the rectification of the alleged breaches are the responsibility of the lessor or lessee under the lease — Where the Court held that it should make an appropriate order that will facilitate the Court being able to make an order in relation to the cleaning, repair and maintenance of the Premises LEASES AND TENANCIES — Retail leases — Retail shop lease — Lessee in breach of obligations — Where lessor claimed lessee failed to provide access to the premises for inspection — Where no evidence lessor sought to access premises for purpose of inspection — Where the Court refused to make the orders sought by the lessor TORTS — Trespass to land — Damages — Where lessor claimed damages against lessee for trespass on parts of property outside leased premises — Where lessor has not proved that it suffered any loss — Where lessor has not establish that it had title to bring a claim in trespass against lessee — Where the Court found that if the lessor has title to bring a claim in trespass, the damages awardable would be nominal in any event

EQUITY – unconscionable conduct – special disability or disadvantage – transfer of family property by mother in poor health to one of her daughters – improvident transactions – actual knowledge of special disadvantage – presumption of unconscionability – withdrawal of defence and discontinuance of cross-claim – costs

APPEAL – injunction – application for injunction to preserve property the subject of the appeal – expedition granted – interim injunction granted – whether conditions should be imposed limiting the effect of the injunction – public interest underlying the litigation – merit of appeal – prejudice to respondent – appeal to be heard in seven days

CORPORATIONS — Reinstatement application pursuant to s 601AH — Whether company has standing as a “person aggrieved” by the deregistration of its wholly owned subsidiary — Whether “just” to reinstate the registration of the deregistered company. CORPORATIONS — Winding up — Grounds for winding up — Whether “just and equitable” — Where substratum of company has failed — Where holding company in liquidation.

CIVIL PROCEDURE — Statement of claim — Plaintiff seeking damages, an interim asset freezing order and an ancillary order that the second defendant disclose all of his assets and what occurred with the proceeds of a sale of real estate — Second defendant swore an affidavit in which he deposes as to some of his assets — Affidavit presently sufficient in lieu of the freezing order — Second defendant ordered to swear, file and serve an affidavit COSTS — Party/Party — Costs of the motion are to be the plaintiff’s costs in the cause

COSTS — Party/Party — General rule that costs follow the event — Application made by plaintiff for a different order — The impecuniosity of a party is not a ground for refusing to make an order for costs against that party — The existence of parallel proceedings by the same parties in a different forum do not bear on the costs order made by this Court — No relationship between pre-proceedings offers and the defendant’s success in these proceedings — Plaintiff’s entitlement to receive advice pro bono provides no reason to displace the general rule — No relevant disproportionality

INTERLOCUTORY RELIEF – application for stay – where plaintiff has not demonstrated any arguable basis for her summons seeking urgent stay of proceedings to prevent sale or disposal of 42 horses pending outcomes in Court of Appeal – where orders made by Judge of the District Court, restraining plaintiff from purchasing, acquiring or having custody of more than five horses for a period of five years, still apply – summons dismissed

CIVIL PROCEDURE – Time – Extension of time – Where extension of time to bring action is sought – leave granted LIMITATION OF ACTIONS – Personal injury – Where delay in onset of symptoms leads to delay in bringing action NEGLIGENCE – Psychiatric injury STATUTORY INTERPRETATION – whether limitation provisions of Motor Accidents Compensation Act 1999 or Limitation Act 1969 apply to application– Definition of ‘motor vehicle’ – Limitation Act applies

CONTRACTS – construction – dispute between contractor and local council under contract for property development – contractor agreed to undertake public works as payment in kind of contributions under s 94 of the Environmental Planning and Assessment Act 1979 (NSW) – where council alleges contractor still owes a debt under the agreement – where council also alleges contractor failed to rectify defects in works – council now withholding bank guarantees provided by contractor by way of security – whether contractor entitled to have the guarantees returned – previous common law proceedings – no issue estoppel – council’s debt and rectification claims statute barred – contractor entitled to delivery up of guarantees

CIVIL PROCEDURE – subpoenas – Harman undertaking – application by liquidators of a defendant to use subpoenaed documents for purposes associated with winding up of the defendant and associated companies – where no opposition from producing parties – where purposes associated with winding-up included the defence of the proceedings – applicant released from implied undertaking

SUCCESSION – Contested probate claims relating to the last Will of two different will-makers who were husband and wife – Lack of testamentary capacity of each alleged – Lack of knowledge and approval of contents of the Will of each will-maker also alleged by Defendants SUCCESSION – Righteousness of each Will and suspicious circumstances doctrine - Issue regarding from whom final instructions for each Will obtained by solicitor - Whether beneficiaries, or one of them, named in each of the Wills, was involved in giving instructions for each Will – Solicitor not present at execution of wills – Only beneficiaries and attesting witnesses present