Cases and authorities

CIVIL PROCEDURE – judgment entered against defendant after a hearing in the defendant’s absence – application to set aside under Uniform Civil Procedure Rules 2005 (NSW) rule 36.16(2)(b) – exercise of discretion – plaintiff acted entirely regularly in obtaining judgment and defendant took a deliberate decision not to defend – where defendant proffers an inconsistent explanation for a year’s delay in bringing the application HELD – application dismissed

JUDGMENTS AND ORDERS – plaintiff to be awarded damages – interest to judgment – method of calculating plaintiff’s margin

CIVIL PROCEDURE — Summary dismissal — Dismissal of the plaintiff’s claim against a defendant pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(b) and (c) — No reasonable cause of action disclosed and abuse of process

CIVIL PROCEDURE – interim preservation – freezing orders – shares purchased by Chinese investors in Australian mining companies with assistance of plaintiff – plaintiff sues in Hong Kong for 49% profits under contract – plaintiff seeks equitable relief in respect of shares, dividends and capital gains – ex parte freezing order in 2018 – freezing order extended by consent in 2019 until end of Hong Kong proceedings – $22.7M frozen – defendants hold further $1M dividends on their undertaking – plaintiff seeks to extend freezing order while defendants seek to have freezing order discharged and release from undertaking. FREEZING ORDERS – by consent after negotiation – whether freezing order in aid of foreign proceedings is final or interlocutory – whether exceptional circumstances or material change in circumstances sufficient – principles at [161]-[172]– exceptional circumstances required and not present. PRIVATE INTERNATIONAL LAW – foreign judgments and orders – whether an account of profits is a “money judgment” within s 3 Foreign Judgments Act 1991 (Cth) – see [203]-[210].

EVIDENCE – where Crown seeks advanced ruling pursuant to s 192A of the Evidence Act on the admissibility or use of evidence proposed to be adduced – where attempts to secure witness’s attendance at court have been unsuccessful – where witness has made previous representation and is unavailable to give evidence about asserted fact – where it is highly probable that witness’s previous representation is reliable and not fabricated pursuant to s 65(2) of the Evidence Act

CRIME - trial - appeal against conviction – charges of sexual and indecent assault – question of unreasonable and unsafe verdict by reason of inconsistency of verdicts – whether guilty verdict for sexual assault inconsistent with acquittal for indecent assault – whether rational explanation for differing verdicts

CRIME – appeal – challenge to unreasonable verdict – not a ground which involves a question of law alone – leave required – Criminal Appeal Act 1912 (NSW), s 5 CRIME – appeal – inconsistent verdicts – whether miscarriage of justice – whether acquittals cast doubt on acceptance of complainant’s evidence – whether reasonable and logical explanation available accounting for acquittals CRIME – appeal – unreasonable verdicts – whether jury should have entertained a reasonable doubt – complainant’s evidence supporting convictions confirmed by medical evidence of injuries – DNA tests implicated offender – evidence of early complaint – complainant’s evidence plausible

CIVIL PROCEDURE – jurisdiction – transfer to and from other courts – District Court – where District Court proceedings concerned similar claims against the same defendant in proceedings in the Supreme Court

EVIDENCE – discretions – exclusion of evidence – criminal proceedings – application in relation to admissibility of evidence – relevance – admissibility of DVD recording taken by police containing lay observational evidence – whether discretion to exclude should be exercised

CORPORATIONS — Winding up — Application based on failure to comply with creditor’s statutory demand — Where debt the subject of the statutory demand was a judgment debt

CIVIL PROCEDURE – Applicant is prevented by the Australian Financial Security Authority from enforcing a monetary judgment without leave of this Court – Leave of this Court is not required to enforce a monetary judgment – Overriding purpose of the Court – Just, quick and cheap resolution – Leave is granted

COSTS — Succession — Family provision — Deceased estate — Where orders made for further family provision in favour of the plaintiff — Where the plaintiff was given a total legacy of $100,000 — Where the Court made the conventional costs order that the plaintiff’s costs be paid out of the estate on the ordinary basis and that the defendant’s costs be paid out of the estate on the indemnity basis— Where the defendant had made an offer of compromise whereby the plaintiff would have received a legacy of $101,000 — Where the defendant made an application pursuant to UCPR 42.15 that the plaintiff be ordered to pay the defendant’s costs on the indemnity basis from the date of the offer of compromise — Where the defendant had introduced issues into the litigation after the date of the offer of compromise that substantially increased the parties’ costs — Where the defendant failed in respect of the issues so introduced — Where the plaintiff at the time the offer of compromise was made could not reasonably have estimated the final amount of the costs that would be ordered to be paid out of the estate — Where the Court would have made an order for further family provision in the nature of a legacy significantly greater than $100,000 if the costs payable out of the estate on the conventional basis had not been 60% of the value of the estate— Where the application for special costs order is dismissed

CIVIL PROCEDURE — Subpoenas — Objection to production of documents or things — Objection on the basis of ss 467 and 468 of the Legal Profession Uniform Law (NSW) PRACTICE AND PROCEDURE — Determination of role in proceedings — Party never served COSTS — Party/Party — General rule that costs follow the event — Application of the rule

EVIDENCE — Course of evidence — Re-opening case — Where the Court made an order that probate be granted of an informal will under s 8 of the Succession Act 2006 (NSW) — Where the Court consequently did not decide an alternative application for family provision orders under s 59 of the Succession Act — Where the Court of Appeal set aside the order granting probate of the informal will and remitted the proceedings to the trial judge to determine the application for family provision orders — Where the defendant sought orders permitting the parties to serve further updating evidence without formally applying to re-open his case — Where application to serve further updating evidence refused

COSTS — Basis of quantification — Where judgment concluded that plaintiff is entitled to be paid its costs of the proceedings by the defendants — Where the plaintiff sought an order that its costs be paid on the indemnity basis following service of a Calderbank offer — Where alternatively the plaintiff claimed that the defences were unreasonably pursued — Where the unreasonable defences were only raised after the service of the Calderbank offer — Where the defendants ought reasonably to have accepted the Calderbank offer — Defendants ordered to pay the plaintiff’s costs on the ordinary basis to the date of the Calderbank offer and on the indemnity basis thereafter CIVIL PROCEDURE— Where monies were paid into court by the third defendant — Where those monies were the subject of a claim by the plaintiff under s 37A of the Conveyancing Act 1919 (NSW) — Where the third defendant disclaimed any interest in the monies —Whether the Court should order payment of those monies to the plaintiff under UCPR r 41.3 — Where the Court recognised the monies as being in effect the property of the first defendant prior to being paid into court — Where the Court determined that the monies are available to meet the judgment against the first defendant

VALUATION – valuation of marina – valuation retainers – practice standards MISLEADING AND DECEPTIVE CONDUCT – s 52 of Trade Practices Act 1975 (Cth) – s 12DA of Australian Securities and Investment Commission Act 2001 (Cth) – s18 of the Australian Consumer Law – representations in valuation reports – failure to adopt appropriate valuation methodology – failure to explain and cross check methodology – gross overvaluation BREACH OF DUTY – duty of care – breach of duty of care – failure to take precautions against identified risks of harm – valuation not based on reasonable opinion of the value of marina – not product of reasonable care and skill – defendants knew or ought to have known if plaintiffs advanced monies in excess of value NEGLIGENCE – actual reliance – reasonableness CAUSATION – causation arising from breach of duty by misleading and deceptive conduct DEFENCES – statutory time limitations – mitigation – contributory negligence – proportional liability – s 601FS of the Corporations Act 2001 (Cth) DAMAGES – Martha Cove Property Monies – interest – costs

CONTRACTS — Whether amount not payable on breach is a penalty — Whether interest rate claimed is a penalty – short-term unsecured bridging loan advanced by foreign investor PRACTICE AND PROCEDURE — Amount claimed in allegations made in statement of claim inconsistent with “relief claimed” section of the statement of claim COSTS — Party/Party — General rule that costs follow the event — Application of the rule

EQUITY – Equitable remedies – Injunction – Mandatory – Government contract to fund plaintiff’s training of apprentices purportedly terminated with only 3 months to run – Whether interlocutory mandatory inunction should be granted – No issue of principle

WORKERS COMPENSATION – Limitation period – Leave sought for extension of time – s 151D of the Workers Compensation Act 1987 (NSW) – Where employer placed in receivership and later went into liquidation – Where claims pursued diligently - No prejudice flowing from grant of leave – Leave granted

PRIVATE INTERNATIONAL LAW — Application for registration of foreign forfeiture order made in the US — Whether registration would be contrary to the interests of justice within the meaning of s 34A of the Mutual Assistance in Criminal Matters Act 1987 (Cth)

INCOME TAX – Collection and recovery – Proceedings for recovery – Genuine dispute of debt –Notices of Assessment – No point of principle

PRACTICE AND PROCEDURE – funds in Court – interpleader – motion remitted from Court of Appeal – whether funds should be paid out to successful appellants – where garnishee order made directed to respondent – whether part of funds should remain in court pending proceedings commenced by appellants against judgment creditor

NEGLIGENCE – Application of Civil Liability Act 2003 (QLD) – Truck driver off-site accident – Disputed version – Credibility Issues – Causation – Whether contributory negligence – Whether any reduction for employer’s liability pursuant to Workers Compensation Act 1987 (NSW) s 151Z DAMAGES – Competing medical evidence – Credibility of plaintiff – Contrary objective evidence

CONTRACT – claim for damages for breach of contract – written agreement in Mandarin Chinese prepared by non-lawyer (the Plaintiff) – whether terms of contract constituted loan agreement or shareholder investment agreement – proper construction of contract as a whole considered – claim dismissed

MORTGAGES AND SECURITIES – Personal Property Securities Act 2009 (Cth) – Personal Property Securities Register – the plaintiff, a local council, seeks to remove the registration of certain security interests claimed by the first defendant from the Personal Properties Securities Register (“the PPS Register”) – whether collateral described in the registrations by the first defendant secures any obligation owed by any debtor to a secured party – the first defendant seeks unilaterally to present certain council rates he owes the plaintiff as a commercial debt instrument creating an equivalent financial obligation by the council to him, which he claims constitutes part of his income for US tax purposes – the plaintiff says the first defendant’s re-characterisation of the plaintiff’s rate notices is wholly artificial – the plaintiff seeks an order requiring the second defendant, the Registrar of the Personal Property Securities, to register a financing change statement removing the registration of the first defendant’s purported security interest from the PPS Register – the plaintiff seeks an injunction restraining the first defendant registering any further security interest in the personal property of the plaintiff.

CONTRACT – contract providing for ongoing negotiation between parties following an initial period of due diligence – contract providing for further due diligence to be undertaken – construction of clauses providing for reimbursement of a capped amount of due diligence costs – whether potential service provider entitled to be reimbursed for its due diligence costs – no issue of principle.

JUDGMENTS AND ORDERS – costs order made in chambers under special arrangements during the COVID-19 pandemic – whether order made “in the absence of a party” for the purposes of r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) COSTS – application for indemnity costs order –applicant did not accept offer of compromise – offer required applicant to capitulate with no compromise as to costs or otherwise offered – respondent not entitled to indemnity costs

CRIME — Appeals — Appeal against sentence — Application for leave to appeal CRIME — Appeals — Appeal against sentence — Manifest excess

SENTENCE APPEAL – plea of guilty to negligently dealing with the proceeds of crime contrary to s 404.3(3) of the Criminal Code (Cth) – applicant set up company structure and at the direction of others issued invoices – applicant did not perform any of work described in the invoices – when assessing objective seriousness of offending, sentencing judge took into account that “there was clearly planning in which the offender used his knowledge of accounting procedures and business affairs” – whether her Honour had taken into account an irrelevant consideration when assessing objective seriousness – error established – sentence appeal allowed – applicant re-sentenced.

SENTENCING — Crown appeal against inadequacy of sentence — murder – House v R error - purposes of sentencing – failure to consider protection of the community from the offender – Veen (No 2) – proportionality of sentence – offender suffering mental illness – offence committed without apparent motive – manifest inadequacy – objective seriousness of offence – poor subjective case – appeal allowed – respondent resentenced

SENTENCING — appeal against sentence — erroneous application of standard non-parole period not in existence at time of offending — error conceded by Crown — other grounds not considered — consideration of resentence — penetrative sexual offending against natural daughter — offender previously incarcerated for penetrative sexual offences against at least one child — cognitive limitations but awareness of wrongfulness of actions — first instance total head sentence of imprisonment for 11 years with total non-parole period of 7 years — no lesser sentence warranted in law

CIVIL – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – application for interim extension order – general principles – forensic patient – limiting term due to expire – factors under s 127(2) – unacceptable risk – orders

SUCCESSION – Probate and administration –Document purporting to state the testamentary intentions of the deceased was handwritten, signed, and dated by him – Deceased’s signature on the document not witnessed in accordance with how a Will should be executed – Dispensing with requirements for due execution of a will pursuant to s 8 of the Succession Act 2006 (NSW) – No dispute that there was a document and that it purported to state the testamentary intentions of the deceased and that it had not been executed in accordance with Part 2.1 of the Succession Act – Question whether the deceased intended that the document form his will and/or a full or partial revocation of the deceased’s duly executed and professionally drawn 1993 Will (that had already been revoked) – Evidence sufficient to permit a finding that deceased intended that the document form his Will and a full revocation of the 1993 Will

EVIDENCE – whether probative value of evidence is substantially outweighed by danger that it might be unfairly prejudicial to the Crown – where Crown submits that evidence is irrelevant and prejudicial to its case – evidence inadmissible because only relevant to attack victim’s character EVIDENCE – where defendant objects to words attributed to him in a witness statement to police – where words attributed are irrelevant, without apparent context and unrelated to proof of fact in issue

CORPORATIONS — Winding up — Voidable transactions — Application for orders under s 588FF Corporations Act 2001 (Cth) for an extension of the period within which an application may be brought against certain persons in respect of voidable transactions.

COSTS — Costs assessment — Determination — Review/appeal

COSTS — Party/Party — Court’s discretion — defendant to pay plaintiff’s costs on an indemnity basis

COSTS — Party/Party — Court’s discretion

MENTAL HEALTH – Forensic patient – Application for interim extension order – Where defendant on the Child Protection Register and subject to Child Protection Prohibition Order – Consideration of statutory factors – Whether less restrictive measures available – Whether risk posed by the defendant could not be adequately managed by implementation of a guardianship order – Where a regime of guardianship orders would not be sufficient to mitigate unacceptable risk posed by the defendant to the community – Interim extension order justified in the circumstances – Interim extension order made

CIVIL PROCEDURE – third party proceedings – motor vehicle collision – where plaintiff’s son driving vehicle at time of collision – where defendant driving a rental car – where defendant cross-claimed against rental car company seeking indemnity – where admission by defendant on the pleadings that plaintiff owned the vehicle – where third party contested plaintiff’s ownership on the cross-claim – whether ownership issue foreclosed by defendant’s admission on the pleadings – whether the parties were bound by issue estoppels arising from the judgment in the proceedings – Civil Procedure Act 2005 (NSW), s 22 APPEALS – finding of fact – where Magistrate found that plaintiff’s son owned the vehicle – where ownership finding informed by Magistrate’s assessment of the credibility and reliability of the plaintiff and his son – whether Magistrate’s decision was glaringly improbable or contrary to compelling inferences – where small amount in issue – whether leave to appeal should be granted COSTS – third party proceedings – “pass on” costs orders – where Local Court hearing took 8 days – where third party alleged motor vehicle collision fraudulently staged – where fraud allegation not established – where Magistrate implicitly found 50% of trial related to fraud allegations – where Magistrate ordered plaintiff to pay 50% of third party’s costs – whether exercise of costs discretion miscarried – whether leave to appeal should be granted – appropriate costs order in Local Court upon re-exercise of costs discretion COSTS – appeal to Supreme Court from Local Court – where mixed outcome in proceedings – where judge did not decide all grounds of appeal – where Court of Appeal decided remaining grounds of appeal – whether separate costs orders should be made COSTS – appeal to Court of Appeal from Supreme Court – where respondent belatedly conceded error at the hearing – where appellant successful on principal ground of appeal – whether respondent should pay appellant costs of the appeal

CRIMINAL PROCEDURE – Trial – Jury – Discharge of individual juror – Juror observed sleeping during evidence – Juror questioned on oath – Whether juror unable to perform functions of juror

EVIDENCE – objection to evidence of police videos re-creating movements of vehicles and persons – where CCTV evidence difficult to understand without re-creation videos – where no real issue about the content of the re-creation videos – no unfair prejudice – re-creation videos are admissible

CIVIL PROCEDURE – application for adjournment to examine further witnesses – application for leave to serve subpoena – all applications refused.

CHILD WELFARE – care proceedings – parens patriae jurisdiction – orders sought for secure accommodation and care for young person – where extensive mental health history, past contact with law enforcement and placement history – where currently remanded in juvenile detention – whether appropriate to make orders – orders necessary for young person’s care and protection and promotion of their welfare

COSTS — Party/Party — General rule that costs follow the event

CORPORATIONS – winding up – application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up – where funds set aside to pay company’s debt to Commissioner of Taxation – where Deed of Settlement and Release will take effect on the winding-up being terminated, releasing other debts and removing underlying cause of the winding up order.

ESTOPPEL – conventional estoppel – where alleged oral representations by lender that interest payments on mortgage debt would be treated as principal repayments and the date for repayment of principal would be extended – whether the parties conducted their relations on the basis of the assumed facts in the alleged oral representations – whether detrimental reliance by mortgagor EQUITY – estoppel by conduct – promissory estoppel – where alleged oral representations by lender that interest payments on mortgage debt would be treated as principal repayments and the date for repayment of principal would be extended – whether lender bound by alleged oral representations – whether detrimental reliance by mortgagor EQUITY – estoppel by conduct – promissory estoppel – where alleged oral representations by lender that principal sum not due until contingent conditions fulfilled – whether lender bound by alleged oral representations – whether detrimental reliance by borrower CONTRACTS – construction – loan agreement – where principal sum due one year after the making of the loan – where borrowers also obliged to pay lender net proceeds of monies received from costs orders in separate proceedings in reduction of principal sum – whether repayment of principal sum conditional on receipt of monies from the costs orders

COSTS – dispute about waiver of privilege – plaintiffs/cross defendants had partial success – scope of application refined during submissions

CORPORATIONS – insolvency – ss 477(2A) and 477(2B) of the Corporations Act 2001 (Cth) – application for approval nunc pro tunc for liquidators to enter into Deed of Variation not to be performed within three months – application for approval for liquidators to enter into Deed of Acknowledgement and Release – where uncertainty as to whether the deeds compromise of a debt owed to the Company.

COSTS — Indemnity costs order already made — Application for a gross sum costs order — Insufficient information provided for Court to assess gross sum — Further submissions to be provided