Cases and authorities

CRIME — Appeals — Appeal against conviction — Application of rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to grounds — Adequacy of direction that evidence be considered as a whole — No proper basis for a Murray direction — Whether the trial judge should have directed the jury about matters relating to credibility — Matters quintessentially within the province of the jury require no direction CRIME — Appeals — Appeal against sentence Application for leave to appeal successful — Whether the sentencing judge erred in failing to sentence in accordance with the principles in Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 — Whether the sentencing judge was entitled to sentence in accordance with Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 — Whether principles in Chiro v The Queen apply wherever extended unanimity direction given or only for omnibus offences which require proof of facts which themselves amount to offences – Alleged failure to take into account delay CRIME — Appeals — Crown appeal against sentence — Whether sentence imposed was manifestly inadequate – relevance of respondent’s age – need for general deterrence – objective seriousness of criminal conduct

CIVIL – urgent application in the duty list – weekend telephone application – stay of guardianship orders – insufficient information for Court to intervene – application refused

EVIDENCE – relevance – admissibility of evidence - admissibility of various text messages between the deceased and male persons – evidence is not relevant and so not admissible

CORPORATIONS — Winding up — Statutory demand — Whether plaintiff is a creditor of the defendant — Genuine dispute about existence or amount of debt

LAND LAW — Torrens title — Exceptions to indefeasibility — Overriding statutes — Retirement Villages Act 1999 (NSW), s 182G — Priority of interests STATUTORY INTERPRETATION — Approaches — Mischief rule — Legislative purpose — Interpretation Act 1987 (NSW), s 33 — Extrinsic materials — Interpretation Act 1987 (NSW), s 34

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

DUTY JUDGE – urgent application to set aside extradition warrant – accused to stand trial in New South Wales and wanted for offences in Western Australia – consideration of form of extradition warrant – question of validity of warrant – where any discretion pursuant to s 83 Service and Execution of Process Act 1992 (Cth) – consideration of interests of justice to have accused removed from the State the week before trial is due to commence – orders made – applicant to remain in NSW custody

CIVIL PROCEDURE – interim preservation – freezing orders – ambit and extent – where second defendant misdescribed as trustee for incorrect trust – whether property held by trustee company for the misdescribed trust caught by freezing order

CIVIL PROCEDURE — Court administration — Case management — Directions and orders

CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) – where trial judge directed a verdict of not guilty to the charge of murder – whether if prosecution had all relevant facts it would have been reasonable to institute proceedings – whether an issue of credibility or reliability – where evidence of key witness was unreliable and internally inconsistent – where Crown opposed cross-examination of the witness at committal hearing – where witness was suffering mental health issues – where witness made allegations about the conduct of the Crown Prosecutor – where witness not called at trial – whether Crown case significantly weakened by evidentiary rulings – whether verdict by direction wrong – certificate granted

SENTENCING – remarks on sentence – accessory after the fact to manslaughter by excessive self –defence – where offender was the victim of a home invasion – where deceased was killed by offender’s boyfriend as the deceased attempted to escape – where offender accompanied boyfriend for three days before going to police – strong subjective case – Community Corrections Order imposed

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed against Third Defendant – Where Third Defendant retained same solicitors and counsel as First and Second Defendants – Scope and application of the indemnity principle

PROCEDURE – Costs – Where amount claimed by Plaintiff was paid and winding up application did not proceed – Gross sum costs order – Whether gross sum costs order should be made under Civil Procedure Act 2005 (NSW) s 98(4)(c).

HIGH RISK OFFENDERS — Extended supervision orders — Unacceptable risk of committing a serious offence — defendant convicted of serious sexual and domestic violence offences — question of rehabilitation and treatment — concern for current intimate partner — question of duration of ESO — nature of conditions of supervision — order made

COSTS – Bases of quantification – orders reflecting results in Plaintiffs’ claim and Defendants’ interlocutory process

TAXES AND DUTIES – land tax – liability – valuation of leasehold interests in land – form of orders COSTS – whether a differential award of costs should be made – no separable issues

AGENCY – Type of agent – Lawyer – Ownership of documents – Whether former client entitled to seek file notes made in the course of representation – Whether solicitor is entitled to charge former client for the provision of client documents

REPRESENTATIVE ACTIONS – Queensland Floods – damage for physical inconvenience – joint owners – each owner entitled to damages – interest on damages – whether reduced by grant monies not taken into account in calculating damages

COSTS – no question of principle

COSTS – appeal from NCAT – applicant successful on 1 out of 16 grounds – whether costs should follow the event – where ground on which applicant succeeded maintained throughout proceedings – where other grounds numerous and some were close to unarguable – no order as to costs

CRIMINAL LAW – sentencing following pleas of guilty – two counts of manslaughter – substantial impairment by abnormality of mind – Offender killed mother and father in family home – Offender experiencing severe depression and suicidal ideation – assessment of factors relevant on sentence for manslaughter – totality – aggregate sentence imposed

LAND LAW – Torrens title – Indefeasibility of title – Effects of indefeasibility – Construction of third party mortgages – Where executed pursuant to forged Powers of Attorney – Identification of secured money – Where no money advanced to or at the request of mortgagors – Where no acknowledgement of receipt – Mortgages held to have secured no money – Appeal dismissed – Balance of matter remitted MORTGAGES AND SECURITIES – Mortgages – Duties, rights and remedies of mortgagee – Possession CIVIL PROCEDURE – Court of Appeal – Leave to appeal – From separate questions – Practical effect of resolving claims finally and adversely to applicant – Leave granted

CONTRACTS – construction – interpretation – joint venture agreement – third party – successor clause – “successor to a party” – whether the expression is wide enough to include nominee – where there was no contemplation work would be carried out by another – where there are no clear words to construe nomination as conferring rights and obligations – where third party acquired its rights as nominee under separate contract CONTRACTS – construction – interpretation – reflective loss principle – exception – where company has no cause of action – where there is no prospect of double recovery CONTRACTS – construction – interpretation – indemnities – “in respect of” – “loss” – whether indemnities extend to loss of diminution in value of shares in nominee as a result of nominee incurring costs for rectification

BUILDING AND CONSTRUCTION – payment claim by builder – false statutory declaration in support of payment claim – statement by builder that all subcontractors paid – claim paid by principal – principal liable to unpaid subcontractors – Contracts Debts Act 1997 (NSW), s 5 – proceedings against builder for moneys paid by principal directly to subcontractors EVIDENCE – admissibility – hearsay – exceptions – business records – where business records of subcontractor tendered to prove unpaid debt – whether authenticity of document may be determined on the basis of inferences drawn from its form, contents or source – whether production on subpoena necessary – provenance and accuracy of the documents not challenged EVIDENCE – admissibility – business records –records of a party – whether records of third party warrant discretionary exclusion – whether weight sufficient to establish deceit TORTS – deceit – misleading and deceptive conduct – false statutory declaration in support of payment claim – statement by builder that all subcontractors paid – statement known to be false – claim paid by principal – principal liable to unpaid subcontractors – loss suffered – payments to subcontractors recovered

CRIME — Appeals — Appeal against conviction — Inconsistency between verdicts on different counts — Two distinct acts of intercourse — Different assessment of the circumstances affecting the applicant’s state of mind at the time of the second act of intercourse — Applicant argued unreasonable verdict — Open to the jury to return a verdict of guilty on one count albeit not agreeing on the other count CRIME — Appeals — Appeal against sentence — By Crown — Alleged error in taking into account the applicant’s self-induced intoxication in mitigation — Using self-induced intoxication to “explain” the applicant’s conduct — Review of the sentencing judge’s assessment of the facts and objective seriousness — Alleged manifest inadequacy — Court to consider all circumstances that inform the sentencing exercise, except the applicant’s self-induced intoxication — Residual discretion to decline to intervene ought not be exercised CRIME — Appeals — Re-sentence — Purposes of sentencing in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) — Aggravating and mitigating factors

CRIME — Appeals — Appeal against sentence – whether sentencing judge erred in fixing commencement date of sentence at the expiration of the applicant’s head sentence for previous offences – where offences were committed against another inmate in gaol – need for general deterrence and discipline in custodial environment – whether sentencing judge erred in applying finding of special circumstances – where applicant had already served a sentence of 6 years commencing at the age of 18 – where sentencing judge fixed ratio of 57% for index offences – where total effective ratio was 76.9% – whether by inadvertence or miscalculation – where sentencing judge expressly took into account accumulation of sentences – held, no error

CRIME – Appeals – Appeal against sentence – Commonwealth offence – Importation of commercial quantity of border-controlled drug – Whether error in declining to take into account utilitarian value of guilty plea – Xiao error – Application for leave filed out of time

CRIME – Appeals – leave to appeal against sentence – competence of counsel – whether miscarriage of justice by reason of counsel’s conduct – context of unusual proceeding – no point of general principle

Admissibility of expert’s report

HIGH RISK OFFENDERS — application for continuing supervision order – defendant convicted of three serious homicide offences – long history of exposure to and participation in violence — history of violence against intimate partner — limited history in community as an adult — question as to whether the defendant poses an unacceptable risk to the community if not supervised — question of nature and conditions of supervision — limitations upon supervision — defendant identifies as transgender — question as to changes in appearance — order made

CIVIL PROCEDURE — Separate determination of questions— Where the application for an order for the determination of separate questions is no longer pressed by the relevant applicants — Where no order is made — No point of principle COSTS — Security for costs — Procedure and discretion — Where the defendants seek security for costs — Where the plaintiffs admit impecuniosity — Where the plaintiffs claimed that they are part of a solvent group of companies the holding company of which has the financial resources to meet any costs order made against the plaintiffs in favour of the defendants — Where the plaintiffs claimed that no order for security for costs should be made in the circumstances — Where the Court held that the available financial accounts of the holding company cast sufficient doubt on its financial viability to require that the plaintiffs provide security for the defendants’ costs COSTS — Security for costs — Quantum and form — Where the plaintiffs challenged the quantum and form of the security sought by the defendants — Where the Court determined that security should be provided in the sum of 90% of the amounts claimed by the defendants — Where the plaintiffs’ holding company had previously offered to provide security for costs in the form of a deed and personal undertakings by its directors to cause the holding company to perform its obligations under the deed — Where the plaintiffs’ holding company was formerly precluded from providing security for costs on a conventional basis because it was in breach of a covenant owed to its bank under finance facilities — Where the provision of security for costs by deed imposed a degree of financial uncertainty on the availability of the security for costs — Where the plaintiffs’ holding company is no longer inhibited by the breach of a banking covenant — Where it is determined that security for costs should be provided in the form of payment of money into court or the provision of a guarantee by an Australian authorised deposit-taking institution

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Approval of supplementary disclosure and postponing trust scheme meeting to specified date.

SUCCESSION – Family Provision – Claims by two adult children of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – No provision made for adult son of the deceased and limited provision made for the adult daughter of the deceased – Reasons for the lack of, and for the limited, provision made for each Plaintiff stated in the Will of the deceased – Periods of lack of close contact between adult daughter and the deceased, and in the case of the adult son, complete estrangement for about 30 years – Reconciliation before death of the deceased - Significant competing claim of the Defendant, who is entitled to 50 per cent of the deceased’s estate – Balance of estate left to other son who predeceased the deceased, which share passes to grandchildren of the deceased – Whether each Plaintiff has been left without adequate provision for his, and her, proper maintenance and advancement in life – Whether an order for provision should be made for each Plaintiff’s proper maintenance and advancement in life and, if so, in what amount – Provision to be made for each Plaintiff and, in the case of the adult daughter, that provision in lieu of the provision made for her in the deceased’s Will

SUCCESSION – Contested probate – Lack of testamentary capacity and lack of knowledge and approval asserted – Suspicious circumstances - Application of the test in Banks v Goodfellow – Where deceased suffered a stroke before making Will – Consideration of contemporaneous evidence of solicitor to whom instructions given SUCCESSION — Alternative claims for family provision order under the Succession Act 2006 (NSW), Ch 3 — Claim by adult daughters of the deceased — Whether adequate and proper provision not made in the Will of the deceased for each applicant and, if so, the nature and quantum of the provision to be made for her

COSTS – family provision – offer of compromise – plaintiff offers to accept $499,000 – judgment for $500,000 – plaintiff’s costs greater than estimate given in costs affidavit – whether plaintiff’s costs should be capped to preserve net estate for the defendant – no evidence plaintiff’s costs excessive – would defeat purpose of offer of compromise regime to cap fees by reason of defendant’s failure to accept a reasonable offer.

LAND LAW – caveats – extension of operation of caveat – where charge created by guarantee for credit agreement – where judgment for amount owed under credit agreement partially satisfied

HIGH RISK OFFENDERS – Extended Supervision Order – effect of Mental Health Act 2007 (NSW) – unacceptable risk – in the particular facts an Extended Supervision Order appropriate

CIVIL PROCEDURE – Class action or representative proceedings – Court approval for settlement and discontinuance – Where proceedings no longer continuing as representative proceedings – Orders provide for sufficient notice to be given to group members that the proceedings will no longer continue as representative proceedings – Settlement approved

HIGH RISK OFFENDERS — FORENSIC PATIENT – application for extension of status as forensic patient – approaching expiration of limiting term – question of risk of causing serious harm to others — defendant with a history of sexual offences against young females — defendant with an intellectual disability and other impairments - question of efficacy of rehabilitation and treatment — question of nature of accommodation if unsupervised — limitations upon supervision — question of the least restrictive option - order made

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion

APPEALS – jurisdiction of appellate court – discretion to exercise jurisdiction –– Crimes (Appeal and Review) Act 2001 (NSW) s 108 – where Attorney-General or Director of Public Prosecutions has submitted a question of law arising at or in connection with a trial – whether Court of Criminal Appeal can decline to exercise jurisdiction properly invoked CRIME – appeals – directed acquittal – submission to CCA to determine question of law arising at or in connection with trial – determination not affecting acquittal - Crimes (Appeal and Review) Act 2001 (NSW) s 108 – where question submitted concerns capacity of evidence to satisfy elements of offence charged – where trial judge directed acquittal on basis of incapacity of evidence to support finding of causation – whether question so framed is a question of law – whether question arose at or in connection with trial CRIME – fraud – dishonestly cause financial disadvantage by deception – causation – where bet placed with bookmaker by deception – whether winnings paid out by bookmaker capable of constituting financial disadvantage caused by deception CRIME – fraud – dishonestly obtain financial advantage by deception – causation – where bet placed with bookmaker by deception – whether winnings paid capable of constituting financial advantage obtained by deception – whether bet itself capable of constituting financial advantage

CRIME – appeals – appeal against conviction – trial for offences of child sexual assault alleged to have been committed in the presence of other family members while they slept – where prosecutor gave notice that he did not intend to call certain family members as witnesses in the Crown case – tactical decision by accused not to ask to have those witnesses called and instead to seek a Mahmood direction – whether trial resulted in a miscarriage of justice

EVIDENCE – opinion evidence - exceptions – lay opinion

EVIDENCE – relevance –

CONTRACTS — Construction — Interpretation — Dispute resolution clause — Expert determination clause — whether void for uncertainty — whether determination is to be final and binding

CIVIL PROCEDURE — Representation — Unrepresented litigant — Application for pro bono referral

APPEALS – Procedure – Time limits – Appeal brought out of time – Where appeal filed in wrong court – Where appeal against interlocutory order of the Local Court – s 53(3)(b) Crimes (Appeal and Review) Act 2001 – Leave granted APPEALS – Leave to Appeal – Principles governing – Whether appeal an abuse of process – Whether Uniform Civil Procedure Rules governed the impugned decision in the Local Court – Adequacy of reasons given – Proper construction of s 26 of the Crimes (Domestic and Personal Violence) Act 2007 – Appeal dismissed

CIVIL PROCEDURE — Representative proceedings — Application for approval of settlement between all group members and the second and third defendants — Court approval CIVIL PROCEDURE — Hearings — Suppression and non-publication — Whether necessary to prevent publication of evidence in support of the application for approval of settlement — Future appeal proceedings and proceedings before the trial judge — Order “until further order”

PRACTICE AND PROCEDURE – appeal – final orders – orders by consent – orders in default of agreement