Cases and authorities

EQUITY – unconscionable conduct – special disability or disadvantage – large payments by father in poor health to one of his daughters – notice of special disadvantage – presumption of unconscionability

CRIME – sentence – murder – joint criminal enterprise – where three co-accused found guilty of murder by jury – where victim died of stab wound – co-accused and victim at premises of well-known drug dealer when offending occurred – witness heard co-accused and victim fighting and subsequently saw body of the victim – victim’s body dumped on side of road– alternative bases put forward at trial by Crown – joint criminal enterprise to inflict grievous bodily harm or joint criminal enterprise to assault deceased where parties contemplated the possibility that grievous bodily harm would be inflicted – evidence not sufficient to prove beyond reasonable doubt that offenders agreed to inflict grievous bodily harm on deceased – offending just below mid-range of objective seriousness – parity amongst offenders – no finding of special circumstances – two offenders on parole at time of offending - importance of deterrence SENTENCING – sentencing procedure – victim impact statements – where parts of statements attacking offender, expressing opinions about length of sentence, or giving evidence about medical condition rejected – where rest of statements taken into account

EQUITY — Trusts and trustees — Beneficiaries — Wrongful distribution of trust property –– Rule in Saunders v Vautier

Application for stay of tribunal’s orders cancelling medical registration or for restorative interlocutory order — no question of principle

CRIME — Appeals — Appeal against sentence – whether sentencing judge erred in failing to reduce moral culpability due to the applicant’s cognitive impairment and mental health condition – where sentencing judge found that there was insufficient evidence of a causal link such as to warrant a reduction in moral culpability – where the sentencing judge found special circumstances and found that the applicant’s time in custody would be more onerous due to his mental condition – where the sentencing judge found reduced moral culpability due to childhood deprivation – whether it was not open to the sentencing judge to find insufficient evidence of a causal link – where mental conditions taken into account in other ways – where mental conditions closely linked to childhood deprivation – held, no error

CRIMINAL LAW – unreasonable verdict – four 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 inference supported by CCTV footage of street – whether victims’ evidence sufficiently strong to make out Crown case – 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 – intercepted telephone calls involving fourth appellant – majority satisfied intercept demonstrated his presence on the balcony

CRIME – Appeals – Appeal against conviction – Break and enter and commit serious indictable offence – Receive stolen property knowing it to be stolen – Special verdict pursuant to s 121 Crimes Act 1914 (NSW) – Drive vehicle knowing police in pursuit, fail to stop and drive in manner dangerous to others – Where evidence of applicant’s driver disqualification tendered – Whether trial judge erred in failing to discharge jury in circumstances where defence was on notice of evidence and evidence not objected to – Whether substantial miscarriage of justice – Whether leave to appeal required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) CRIME – Appeals – Appeal against conviction – Where trial counsel sought to interpose expert witness despite failing to give notice of defence response – Where trial counsel sought to adjourn proceedings to allow expert witness to be called – Where trial judge refused adjournment application – Whether miscarriage of justice occasioned by trial judge’s refusal to grant adjournment application CRIME – Appeals – Appeal against conviction – Where trial judge criticised defence counsel in summing-up – Where strong Crown case against applicant – Whether trial judge’s summing up was unbalanced – Whether miscarriage of justice CRIME – Appeals – Appeal against conviction – Apprehension of bias – Where trial judge expressed his opinion of the case against the applicant in proceedings after conviction – Whether comments made by trial judge in proceedings after conviction evidenced an apprehension of bias

CRIMINAL LAW – appeal – appeal against conviction – sexual touching without consent – attempted sexual intercourse without consent – sexual intercourse without consent – judge alone trial – where appellant claims trial judge erred in accepting complainant’s evidence to required standard due to alleged inconsistency and implausibility in her accounts – where evidence provided by complainant was sufficient to establish that it was open to trial judge to be satisfied beyond reasonable doubt of guilt of complainant – where trial judge not required to give himself warning in accordance with section 165B of the Evidence Act 1995 – whether delay in prosecution created significant forensic disadvantage for appellant CRIMINAL LAW – appeal – appeal against sentence – whether sentence manifestly excessive – whether sentence failed to apply principles of totality

CORPORATIONS — Practice and procedure — Application under r 6.19 of Uniform Civil Procedure Rules permitting joinder of several defendants in proceedings — Where common question exists as to solvency of company in liquidation.

PRACTICE AND PROCEDURE – application to amend statement of claim – proposed amendment abandons existing case and reformulates new case – matter close to hearing date – no explanation for delay from moving party as opposed to its new solicitors – possibility that application made for tactical reasons not excluded – potential for moving party to file separate proceedings – prejudice occasioned by grant of refusal of amendment – application refused

LAND LAW – Community title – all interested parties consent to variation of community scheme – the Court must be satisfied that completion of staged scheme or continuation of scheme is impracticable – community scheme planned to proceed in three stages – a wick drainage system was installed inconsistently with development consent during stages one and two – not practically feasible to physically rectify wick drainage system – unsuccessful attempt to modify development consent in relation to drainage system – development of stage three unable to be undertaken in a way that complies with development consent – held that the completion and continuation of scheme impracticable – orders made varying the scheme

PRIVATE INTERNATIONAL LAW — jurisdiction — application for recognition of a foreign proceeding as a foreign main proceeding pursuant to the Cross-Border Insolvency Act 2008 (Cth) and the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law — where foreign proceeding is a moratorium under Part A1 of the Insolvency Act 1986 (UK) — whether the Company has its “centre of main interests” in the UK — whether presumption under Article 16(3) that place of registered office is its centre of main interests applies — assessment of objective matters readily ascertainable by third parties in determining centre of main interests — where evidence of objective matters point to United States as the centre of main interests — application dismissed CORPORATIONS — winding up — application for a stay of the winding up proceedings under s 581(2) of the Corporations Act 2001 (Cth) — consideration of whether it would be proper in all the circumstances to provide aid and act in an auxiliary manner to the High Court of Justice — application for stay dismissed CORPORATIONS — winding up — Part 5.7B body — failure to comply with demand issued under Corporations Act 2001 (Cth), s 585(a) — no evidence adduced to the contrary — company wound up

CIVIL PROCEDURE — Discovery — General discovery — Orders for disclosure of documents and information CIVIL PROCEDURE — Separate determination of questions — Application for separate determination of questions of liability and relief dismissed

EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Whether defendant holds property on constructive trust for plaintiff — Where plaintiff claims constructive trust arose out of an oral agreement that defendant would hold title to and take out mortgage over the property for plaintiff’s benefit — Where plaintiff claims that she provided all monies other than the mortgage for purchase of the property — Where plaintiff lodged a caveat against the property after judgment creditors had registered a writ for the levy of property against the title to the property — Where terms of the caveat and statements made by plaintiff’s solicitors were inconsistent with plaintiff being the beneficial owner of the property — Where no objective contemporaneous or subsequent evidence corroborates plaintiff’s claim — Where the Court found that the evidence does not justify a finding that the defendant holds the property on constructive trust for the plaintiff EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Whether plaintiff has an equitable lien over the property arising out of an oral agreement with defendant — Where plaintiff pleaded in the alternative an equitable lien over the property which secured recoupment from the defendant of funds contributed by the plaintiff towards the acquisition of the property — Where plaintiff lodged caveat against the property to protect claimed unregistered equitable lien — Where the plaintiff did not plead any alternative factual basis for the existence of the equitable lien than the constructive trust claim — Where no constructive trust — Where evidence has not established that plaintiff and defendant made any agreement to charge the property to secure any obligation of repayment of contributions plaintiff made towards acquisition of the property — Where the Court found that the plaintiff is not entitled to an equitable lien or charge on the basis of the oral agreement EQUITY — Equitable interests in property — Mere equities — Whether plaintiff has an equitable interest in the property capable of being protected by a caveat — Where plaintiff lodged a caveat against the property to protect a claimed unregistered equitable interest — Where plaintiff failed to establish a constructive trust or an equitable lien in her favour — Where plaintiff made some monetary contributions towards the acquisition of the property — Where plaintiff may be entitled to be subrogated to the registered mortgage in future but where that may not constitute a present proprietary right — Where the Court found that plaintiff’s interest in the property if it exists is likely a "mere equity" LAND LAW — Caveats — Caveatable interest — Whether plaintiff has a caveatable interest — Where plaintiff lodged caveat against the property — Where plaintiff’s interest in the property is likely a ‘mere equity’ and not an equitable interest — Where it is established caveats cannot protect ‘mere equities’ — Where the Court found no caveatable interest so that the caveat cannot be maintained LAND LAW — Caveats — Effect of caveat — Prevention of further dealings — Where caveat lodged after registration of a writ for the levy of property against title to the property prevents the subsequent registration of a writ issued on a judgment obtained before lodgement of the caveat — Where Sheriff unable to execute writ in favour of judgement creditors on the basis of the caveat on the title preventing future registration of a transfer procured under sale of the property by the Sheriff — Where caveator’s claim does not have substance and caveat does not protect a caveatable interest — Where the Court found that the judgment creditors are entitled to an injunction requiring plaintiff to withdraw the caveat and to not lodge another caveat interfering with judgement creditors’ entitlement to register a new writ on the title to the property or the ability of the Sheriff to execute the writ LAND LAW — Caveats — Removal of caveat — Whether judgment creditors have standing to seek an order for the withdrawal of a caveat pursuant to s 74MA of the Real Property Act — Where judgment creditors do not have an estate or interest in the property — Where it is established that the issue of a writ for the levy of property does not grant judgment creditors an estate or interest in property — Where the Court found that the judgment creditors do not have the requisite standing LAND LAW — Caveats — Removal of caveat — Service of lapsing notice — Whether judgment creditors to whom a writ has been issued and whose writ is prohibited from registration by terms of a caveat can use lapsing notice procedure in s 74I of the Real Property Act to procure both registration of the writ and also withdrawal or complete lapsing of the caveat on an interlocutory basis — Where caveator sought an order extending the caveat — Where caveator’s claim does not have substance and caveat does not protect a caveatable interest — Where effect of s 74I of the Act is that the caveat only lapses to the extent necessary to enable writ to be registered — Where the Court found that this outcome does not compel the withdrawal or complete lapsing of the caveat to enable the Sheriffs to execute the writ LAND LAW — Caveats — Removal of caveat — Service of lapsing notice — Whether lapsing notice issued by the Registrar-General on the application of judgment creditors pursuant to s 74I of the Real Property Act was improperly issued or invalid — Where plaintiff claimed lapsing notice was invalid because second writ had already been registered — Where plaintiff failed to establish this in fact — Where the Court found that lapsing notice was probably not improperly issued or invalid

ADMINISTRATIVE LAW — Judicial review — Workers Compensation — Whether decision of Appeal Panel ought be set aside — Adequacy of reasons for declining the claimant’s request to be re-examined by one member of the Appeal Panel — Agreement by parties that decision ought be set aside

CRIME – trial – murder – accessory to murder - pre-trial hearing – admissibility of evidence – challenge to admissibility of electronically recorded interviews with two accused persons – inducement alleged to have been held out by investigating officer – question of lawfulness of arrest – reasonable suspicion – length of period of detention during investigation – right to silence – whether right to silence disregarded – improper questioning

CONTEMPT – alleged failure to comply with previous court orders – alleged breach of prohibited contact order – alleged deliberate frustration of execution of search orders – whether settlement with one party of claim underpinning contempt charge against him precluded Applicants from pursuing contempt charge.

APPEALS – Procedure – Adjournment – Where Magistrate adjourned sentence proceedings pursuant to s 40 of the Criminal Procedure Act 1986 (NSW) to avoid operation of s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – Whether Magistrate erred in interpretation of s 58 – Whether incorrect interpretation of s 58 enlivened s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) ADMINISTRATIVE LAW – Whether Magistrate’s decision to adjourn sentence proceedings a reviewable error of law – Jurisdictional error

LEGAL PROFESSIONAL PRIVILEGE – appellant’s grounds of appeal contend he was unfit to be tried – whether appellant has waived legal professional privilege over communications with lawyer at his trial – implied or imputed waiver – waiver by disclosure of substance – Held – waiver established

Limitation of actions – Exclusion by agreement – Where mortgages over land secured loan – Where mortgagors failed to repay loan – Where mortgagees brought proceedings to recover monies owing and possession of land secured by mortgages – Where mortgagors contended mortgagees statute-barred from enforcing rights under mortgages as a result of expiry of relevant time period under Limitation of Actions Act 1974 (Qld) ("Act") – Where mortgagors contended mortgagees' title under mortgages extinguished by operation of s 24 of Act – Where mortgagees contended that mortgagors agreed not to plead any defence under Act by virtue of cl 24 of mortgages – Whether cl 24 effective to prevent mortgagors from pleading any defence under Act – Whether agreement not to plead any defence under Act unenforceable as contrary to public policy – Whether s 24 of Act operated automatically to extinguish mortgagees' title at expiry of relevant time period – Whether mortgagees' remedy confined to damages for mortgagors' breach of cl 24 of mortgages. Words and phrases – "action", "agreement", "agreement not to plead", "benefit", "breach of contract", "contracting out", "defeated", "defence", "defence of limitation", "expiry", "extinguishment of title", "finality of litigation", "jurisdiction of the court", "limitation period", "limitations defence", "plea", "public interest", "public policy", "reasonable business person", "remedy", "shall not be brought", "statute-barred", "statute of limitations", "statutory bar", "statutory right", "waiver". Limitation of Actions Act 1974 (Qld), ss 10, 13, 24, 26.

SENTENCING – Appeal against sentence – Commonwealth offences – trafficking a commercial quantity of controlled drugs – Xiao error – whether sentencing judge considered appellant’s early guilty plea – discount for guilty plea – discount for assistance

CRIMINAL PROCEDURE – Trial – Case management – Notice of alibi – Where notice not tendered by accused – Whether Crown should be permitted to rely on notice

Constitutional law (Cth) – Immigration – Tort – False imprisonment – Where respondent "unlawful non-citizen" detained by Executive under ss 189(1) and 196(1) of Migration Act 1958 (Cth) – Whether period of executive detention authorised and required by ss 189(1) and 196(1) ceases when removal of "unlawful non-citizen" from Australia should have occurred had Executive acted with all reasonable despatch in performance of s 198(6) duty to remove, or continues until actual event of removal or grant of visa – Whether Parliament's power to authorise and require detention until actual event of removal or grant of visa limited by implications of Ch III of Constitution – Whether non-performance by Executive of statutory duties erases legitimate non-punitive statutory purposes which those duties support. Words and phrases – "aliens", "deportation", "duty to remove", "exclusive vesting of the judicial power of the Commonwealth", "executive detention", "executive power", "executive purpose", "false imprisonment", "habeas corpus", "hedging duty", "judicial power", "lawful non-citizen", "legitimate non-punitive purposes", "Lim principle", "mandamus", "non-refoulement", "Parliamentary supremacy", "reading down", "removal", "remove as soon as reasonably practicable", "separation of powers", "statutory duty", "statutory purposes", "terminating events", "unlawful non-citizen", "visa". Constitution, s 51(xix), Ch III. Migration Act 1958 (Cth), ss 4, 13, 14, 189, 196, 197C, 198.

CORPORATIONS — Winding up of co-operative — Application for special leave under Corporations Act 2001 (Cth) s 488(2) to distribute surplus in the liquidation of the co-operative — Interpretation of co-operative’s rule as to distribution upon winding up.

COMMERCE — Restraint of trade — Enforcement and remedies — Injunction — whether serious question to be tried — balance of convenience

EVIDENCE – jury warning – unreliable evidence – s 165(1)(d) Evidence Act 1995 (NSW) – where accomplice wife gave evidence in husband’s trial for murder – unusual circumstances for jury to decide whether evidence relied on by the Crown is untruthful – wife’s evidence before the jury was favourable to defence but evidence on the voir dire admitted in cross-examination was unfavourable – wife agreed that she had lied in giving evidence on the voir dire – good reasons for not giving the warning – unreliability warning not given

COSTS — Party/Party — Court’s discretion — Plaintiff and Cross-Claimants both successful — By the hearing, the Defendants/Cross-Claimants had accepted liability for the principal amounts loaned by the Plaintiff and interest at the rates prescribed by s 100 of the Civil Procedure Act 2005 (NSW) — The hearing was largely concerned with the issues raised by the Cross-Claim — Consideration of the “real fight” in the case — Held: Costs incurred by the parties up to the hearing and costs of the hearing distinguished — The Defendants to pay the Plaintiff’s costs of the former, whereas the Plaintiff to pay 80% of the Defendants/Cross-Claimants' costs of the latter

CIVIL PROCEDURE — Damages — self-represented litigant — Application to disqualify — adjournment application – stay application — application to re-open

CRIME – two accused charged with murder – pretrial objection to admission of audio recordings and transcripts – CCTV recording of conversations on 22 April 2017 – recordings of conversations under surveillance device warrants on 26 and 27 July 2018 – Crown relies upon audio recordings as admissions – objection to parts of conversations upon the basis that recording inaudible – whether transcripts of alleged words prepared by police officer admissible – inaudible recordings of conversations on 26 and 27 July 2018 not to be admitted – transcripts of those recordings not to be admitted – partly audible recording of conversation on 22 April 2017 to be admitted – transcript of alleged words in that recording not admitted

CRIME – serious crime prevention orders – application to vary – where orders made preventing contact between two crime families and amongst members of the Hamze families – where a member of the Hamze family recently killed – application by one member of the Hamze family subject to the orders to attend the funeral – opposed by police – non-association order varied for limited time – suppression order until the conclusion of the funeral

TORTS – General principles – Damages – Where task of assessing evidence of major depressive disorder complicated by evidence of exaggeration or malingering – Whether plaintiff entitled to any damages

CRIME – appeals – appeal against sentence – where applicant has spent short amounts of time in community between periods in custody – whether sentencing judge erred in not sufficiently taking into account pattern of recidivism

SENTENCING — Appeal against sentence — appeal on sentence from Drug Court — property and drug offences — indicative sentence did not discount for appellant’s guilty plea — sentencing discretion exercised afresh — leave to appeal granted — appeal allowed

CIVIL PROCEDURE — Subpoenas — Application to set aside

CIVIL PROCEDURE — Cross-claims — Against second defendant — whether to grant leave to first defendant to include a claim for contractual indemnity — whether conflict of interest arises — employer's policy of insurance

CIVIL PROCEDURE – interlocutory application – contract for provision of government subsidy for vocational education and training – government purported to terminate provider’s contract – prior mandatory interlocutory injunction ordering the government to continue to perform the contract – government then sought to exercise contractual power to withhold subsidy payments – provider seeks further order restraining the government from doing so – whether in substance an application for summary judgment – Brimaud v Honeysett Instant Print – prima facie case – unclean hands – balance of convenience

CRIME – serious crime prevention orders – application to vary – where orders made preventing contact between two crime families and amongst members of the Hamze families – where a member of the Hamze family recently killed – application by one member of the Hamze family subject to the orders to attend the funeral – opposed by police – non-association order varied for limited time – suppression order until the conclusion of the funeral

COSTS – indemnity costs – Court ordered the withdrawal of the defendant’s caveats – no serious question or prima facie case found – plaintiffs seek their costs on an indemnity basis – defendant self-represented during proceedings – defendant’s conduct did not substantially increase plaintiffs’ costs – defendant’s claims of caveatable interest lacked substance but Court not satisfied that the defendant lodged the caveats without an honest belief based on reasonable grounds that he had a caveatable interest – costs awarded to plaintiffs on the ordinary basis COSTS – gross sum order – real likelihood that defendant will be unable to meet substantial costs order – costs assessment likely to be lengthy and expensive – appropriate to make gross sum order – plaintiffs incurred actual costs of about $150,000 – discount of 25% applied to solicitors’ fees – modest further global discount applied to avoid unfairness to defendant – gross sum order made for $110,000

CORPORATIONS — Winding up — Conduct of liquidation — Meeting of creditors — Defect or irregularity — Powers of court in respect of irregularity

EQUITY — Trusts and trustees — Charitable trusts — Charitable purposes EQUITY — Trusts and trustees — Charitable trusts — Cy-près schemes

CRIMINAL LAW – fitness to be tried – accused cognitively and mentally impaired – currently unfit to be tried – whether accused will remain unfit or may become fit over ensuing 12 months

CRIMINAL LAW – proceeds of crime – production orders

CIVIL PROCEDURE – plaintiff applied for judgment to be amended pursuant to the slip rule – Rule 36.17 of the UCPR – inadvertence of counsel – interest sought on past economic loss

CIVIL PROCEDURE — Re-listed on the application of the plaintiff by reason of continued defaults by the first defendant in complying with orders — Orders made ex parte pursuant to the Proceeds of Crime Act 2002 (Cth) — First defendant seeking further time for compliance — Deprived of opportunity to obtain legal advice while incarcerated — Extension granted

COSTS — Plaintiff seeking order for costs of the summons proceedings — Separate damages proceedings brought by the plaintiff — Court’s discretion to award costs in favour of one party when there has been no final judicial determination on the merits — Consideration of the overriding purpose of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings — Proceedings brought for the purpose of protecting the plaintiff’s interest in the enforcement of any judgment for the plaintiff in the damages proceedings — Order that costs of the summons proceedings are to be the plaintiff’s costs in the cause

COURTS AND JUDGES – apprehended bias – application for recusal – applicant published disparaging statements about judge and other judges of the court – statement by applicant about judges did not lead to apprehension that presiding judge may decide the case other than on its merits – judge determined earlier motion – principles at [12]-[18] – earlier motion on different subject matter – applicant did not give evidence – no findings of fact – no credit findings – no matter determined on a final basis – application refused. CIVIL PROCEDURE – transfer of proceedings for apprehended bias – principles at [25] – application previously made – no change in circumstances since earlier application – Court should determine charge of contempt of its orders – application refused. CONTEMPT – criminal contempt – orders restraining publication of text messages and blog – order to remove blog from website – orders served on publisher of website – blog continued to be published – evidence established that defendant was publisher of the website – criminal contempt proved.

CRIME — Appeals — Appeal against conviction — sexual assault — multiple complainants — whether Crown’s closing address on a recorded conversation required further directions from the trial judge — rule 4 of the Criminal Appeal Rules — no objection or request for further directions at trial — forensic choice by the appellant’s counsel — whether miscarriage of justice — whether verdicts in respect of counts concerning PW and JW unreasonable

EQUITY – Trusts and trustees – Application by additional trustee appointed to investigate and bring proceedings for authority to distribute proceeds of verdict obtained – HELD – Orders sought should be made

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action or defence — UCPR rr 13.4 and 14.28 — where plaintiff sued his former solicitors — Advocates’ immunity — work done in and out of court

COSTS — Security for costs — Relevant factors — Respondent’s obligation to facilitate overriding purpose — Adverse inference may be drawn where respondent fails to respond to correspondence requesting financial information