Cases and authorities

CIVIL PROCEDURE — summary dismissal – where plaintiffs by summons seek purely declaratory relief – whether the relief concerns the determination of a legal controversy between the parties or is directed solely to answering abstract or hypothetical questions – whether declaration will produce foreseeable consequences for the parties – proceedings misconceived – summons dismissed

COSTS – party/party – bases of quantification – indemnity basis – where offer of compromise required Chief Commissioner of State Revenue to issue a compromise assessment – whether compromise assessment would have constituted a valid and bona fide exercise of the Commissioner’s powers – whether Court should otherwise order

HIGH RISK OFFENDER — application for an extended supervision order (ESO) — child sex offender — defendant suffering from a number of physical and psychological difficulties — autism spectrum disorder and cognitive impairment — ESO imposed — duration of order imposed shorter than sought — resolution of disputed conditions

Appeal pursuant to Crimes (Appeal and Review) Act 2001 – application for leave to appeal against costs order made in Local Court – whether jurisdictional error/error on the face of the record so as to attract s 69 of the Supreme Court Act 1970 – whether error in determining which party successful in Local Court proceedings – no error demonstrated – order for costs neither unreasonable nor plainly unjust – leave to appeal refused.

EQUITY – Trusts and trustees – Resulting trusts – Presumption of resulting trust – Parent and child –Unequal contributions to purchase price – Parent and child EQUITY — Trusts and trustees — Resulting trusts — Presumption of advancement

CONTRACTS – development of land – defendant is the registered proprietor of a property used for commercial purposes as a gymnasium and offices – property leased but in need of further development – land is mortgaged to financial institution – defendant unable to fund further construction works on the property – plaintiff takes a lease over the property and enters into a deed by which the plaintiff would fund construction works on the property and then acquire the property pursuant to a contract for sale – disagreement arises between the plaintiff and the defendant about the interpretation of the development deed – the plaintiff and the defendant each refuse to pay the monthly mortgage payments to the defendant’s mortgagee, the mortgagee enters into possession and sells the property – the plaintiff alleges defendant has breached the development deed, an associated mortgage and the lease – whether the defendant is in breach as alleged. MISLEADING AND DECEPTIVE CONDUCT – plaintiff claims defendant made a series of misleading and deceptive statements inducing the plaintiff to enter into a lease, a development deed, a contract for sale of land and a mortgage – the plaintiff alleges that the defendant stated that the defendant was not in default to its first mortgagee and that there were no other prior encumbrances over the property – the plaintiff further alleges that the defendant represented that his residential property would be included in the grant of a mortgage to the plaintiff – the executed version of the mortgage omitted the residential property – whether the defendant made these and other related statements – whether these and other related statements were false or misleading – whether these and other related statements induced the plaintiff to enter into the development deed – where the plaintiff claims that the defendant did not disclose knowledge of prior encumbrances and a deed with the first mortgagee – whether the circumstances were such that the defendant had a reasonable expectation of disclosure of that knowledge to the plaintiff. ESTOPPEL – issue estoppel – former adjudication by this Court in separate proceedings between the same parties – finality of decisions – scope of issue estoppel – question as to whether the parties are bound by findings in the Court’s previous determination of the priority between equitable interests – whether the plaintiff can contend for inconsistent findings in support of its claim for misleading and deceptive conduct against the defendant – whether the findings in the previous determination are fundamental to the conclusion – issue estoppel found to be binding.

EVIDENCE – standard of proof – balance of probabilities – where appellant alleged signature on transfer form was forged – whether necessary to establish “clear and cogent proof” of the fraud – application of Briginshaw v Briginshaw – Evidence Act 1995 (NSW), s 140 APPEAL – new point or issue raised on appeal not taken at trial – where neither party called attesting witness of transfer form – where allegation transferor’s signature forged – where appellant sought a Jones v Dunkel inference on appeal that the missing witness’ evidence would not have assisted the respondent – whether evidence could have been given which possibly could have answered the new point

CRIME – appeals – appeal against sentence – failure to take into account a relevant consideration – manifest excess – taking into account an irrelevant consideration – where arguments on appeal were not made before the sentencing judge – offence of having sexual intercourse with a young person under special care and is aged 17 years or over and under the age of 18 years SENTENCING – relevant factors on sentence – objective seriousness – relevance of victim’s age to objective seriousness – relevance of a change in the elements of the offence post-sentencing

CRIMINAL LAW – appeal against sentence – Family Law Act offence – dealing with proceeds of crime – offence taken into account on s 16BA schedule – schedule offence of greater seriousness than principal offence – use of s 16BA schedules – propriety of “roll-up” offence where one count encompassed 64 acts - application of quantum of discount for plea of guilty in federal sentence matters - question of concurrence and accumulation – use of aggregate sentence in Federal sentencing - relevance of mental illness to sentence – amelioration of sentence not automatic

CRIMINAL PROCEDURE – Majority verdicts – Whether majority verdict direction may be given

EQUITY — Trusts and trustees — Judicial advice — Lost executed trust deed

CORPORATIONS – Security interests incorrectly registered – inadvertence – whether extension of time should be granted to register corrected security interests.

COSTS – Party/Party – Bases of quantification – Indemnity basis – Exceptions to general rule that costs follow the event – Calderbank offers – Orders when proceedings involve multiple parties – Sanderson orders CIVIL PROCEDURE – Implied undertakings – Documents to which applies

CRIMINAL LAW – application for referral of case to Court of Criminal Appeal to be dealt with as sentence appeal – Commonwealth drug trafficking offence and money laundering offence – whether doubt or question as to mitigating circumstance – approach on sentence to utilitarian value of guilty pleas – applicant sentenced before decision in Xiao v R – order for referral made

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. CORPORATIONS – Arrangements and reconstructions – Application under s 63 of the Trustee Act 1925 (NSW) for judicial advice with respect to the implementation of trust scheme

INSURANCE - application for leave to proceed against professional indemnity insurer of defendant accountant under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) - whether plaintiff has reasonably arguable claim against defendant accountant – whether defendant unlikely to be able to meet any judgment – whether reasonably arguable that policy responds to claim – whether exclusions in policy enlivened

CORPORATIONS – winding up – Corporations Act 2001 (Cth) s 461(1)(k) – application by plaintiff shareholder for winding up on just and equitable ground – company is solvent – company’s business comprised provision of equipment and services under contract with third party – contract expired – deadlock between shareholders about whether to enter into new contract with third party – deadlock not capable of resolution due to breakdown in co‑operation, trust and confidence – defendant shareholder’s unauthorised use of company’s available equipment – plaintiff shareholder’s loss of trust and confidence in defendant shareholder justified – winding up order made

CRIME – Bail – Show Cause – Previous conviction for similar offending – Bail refused

COSTS — costs assessment — application for leave to appeal from decision of costs review panel — where asserted negligence by solicitors for opponents incurred costs of their clients — correspondence between solicitors in negligence claim — subpoenaed documents substantially covered by privilege —negligence assertedly arising from failure of opposing party to alert applicants as to futility of their own appeal — role of solicitors for opposing party in adversarial system

LIMITATION OF ACTIONS – personal injury tort – psychological injuries arising from collision between HMAS Melbourne and USS Evans in 1969 – where applicant suffering from PTSD and related psychological injuries – whether applicant unaware of the connection between the personal injury and the defendant's act or omission at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted – whether the application was made within 3 years after the applicant became aware (or ought to have become aware) of the matters listed in s 60I(1)(a)(iii) – whether just and reasonable to extend time – Limitation Act 1969 (NSW), ss 60I(1)(a)(iii) and (b) and 60G

CIVIL PROCEDURE — hearings — adjournment – application to vacate hearing of an appeal listed for three days – where appellants’ Senior Counsel travelled to United Kingdom in November 2020 and unlikely to return to Australia given the Covid-19 pandemic – assessment of the interests of justice where competing claims of prejudice – application refused

CIVIL PROCEDURE – parties – vexatious litigants – limited vexatious proceedings order in relation to applicant – primary judge extended vexatious proceedings order – Vexatious Proceedings Act ss 8, 9 – application for leave to appeal filed late – no sensible argument advanced nor any explanation for lateness

CRIMINAL LAW – sentence appeal – domestic violence offences – whether House error in judge’s consideration of evidence of the applicant’s mental health – differences in applicant’s case before the judge and on appeal – repeat domestic violence offender – importance of specific and general deterrence emphasised – whether aggregate sentence manifestly excessive – whether indicative sentence for the count of choking contrary to s 37(1) Crimes Act was manifestly excessive – whether judge took into account delay – late guilty plea – further adjournments at request of applicant’s lawyer – whether non-parole period manifestly excessive after finding of special circumstances

CRIME — Appeals — Appeal against sentence — Extension of time in which to file notice of grounds of appeal CRIME — Appeals — Appeal against sentence — where applicant convicted of ten counts of indecent sexual assault with persons under 16 years —— whether mere presence of children under 16 years was an aggravating factor — error found – mere presence insufficient to aggravate the offending CRIME — Appeals – Resentence – no point of principle

COSTS — Party/Party — Bases of quantification — Indemnity basis COSTS — Party/Party — Court’s discretion

CIVIL PROCEDURE – Hearings – Adjournment – Application opposed – Courts power under s 66 of the Civil Procedure Act 2005 (NSW) to order an adjournment on plaintiff’s application in circumstances of financial difficulty – whether plaintiffs’ adjournment application should be granted where defendant’s professional competence attacked in medical negligence claim – where unusual combination of circumstances relied on to establish basis for adjournment – where income derived from businesses adversely affected by COVID-19 pandemic and financial position adversely affected by consequences of claimed medical negligence – adjournment granted. EVIDENCE – Ferrcom inference – whether inference should be drawn where failure to disclose some financial information – where evidence disclosed relevant financial situation – no inference drawn.

CORPORATIONS — Winding up — Application for winding up in insolvency brought in reliance on creditor’s statutory demand — non-compliance with timing requirements of Coronavirus Economic Response Package Omnibus Act 2020 (Cth) — Whether to dismiss winding up application under s 467 of the Corporations Act 2001 (Cth)

ADMINISTRATIVE LAW – Judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Review of decision of Delegate of the Registrar – Whether Delegate exceeded “gatekeeper” role under s 327 by dismissing the appeal on the basis of jurisdiction – Whether an appeal lies from the medical assessment certificate of an Appeal Panel to another appeal panel under s 327 – Whether an appeal lies under s 327(3)(a) after the issue of a certificate of determination – Whether the appeal was a “threshold dispute” – Application dismissed

DUST DISEASES – proceedings commenced against deregistered company in Dust Diseases Tribunal – claim for general damages – claimant died – s 12B Dust Diseases Tribunal Act 1989 (NSW) – proceedings not commenced and pending before the Tribunal at the person’s death – reinstatement of company pursuant to s 601AH Corporations Act 2001 (Cth) – ancillary order validating Tribunal proceedings nunc pro tunc. CORPORATIONS – reinstatement and ancillary orders under s 601AH Corporations Act 2001 (Cth) – company in liquidation prior to deregistration continues in liquidation upon reinstatement – ancillary order appointing liquidator.

CIVIL PROCEDURE – proceedings carried on by corporation – necessity for solicitor to act – subpoena – application to set side

CRIMINAL LAW - appeal against sentence - fraud offences - dishonestly obtain by deception - multiple counts - extremely serious example of fraud - judgment on sentence - emotive and pejorative language - whether appropriate balance in sentencing proceeding maintained - whether judge “transmogrified” into “champion of victims” - judicial detachment - temperance - “pep talk” to media - judicial function - whether subjective circumstances disregarded - manifestly excessive aggregate sentence - whether plainly wrong or unjust

CRIME – appeals – appeal against sentence – applicant charged with three separate offences – one child sex offence contrary to s 66A – child sex offence committed when applicant was aged 14 and victim aged 9 – applicant sentenced when aged 44 – offences of using a carriage service to menace/harass/offend and possession of child abuse material committed when applicant aged 39 - whether sentencing judge erred by having regard to current maximum penalty for offence – relevance of judge’s comments during sentence hearing - whether s 25AA of the Sentencing Act relevant where maximum penalty increased since the date of the offence - where sentencing judge was aware of the maximum penalty and his obligation to have regard to that penalty – whether sentencing judge failed to have proper regard to principles concerning sentencing juveniles – whether sentence manifestly excessive - appeal allowed – applicant resentenced

SENTENCING - sentencing procedure - where sentencing judge took into account federal offences on Form 1s that were attached to State principal offences - whether State Form 1 provisions inconsistent with federal sentencing law - where a federal offence is required to attract a sentence that is stated and imposed pursuant to s 16A of Crimes Act (Cth) - where court not authorised to fix a single non parole period in respect to both federal and state sentences pursuant to s 19AJ of the Crimes Act (Cth) - where inconsistency - sentence quashed and remitted for resentencing SENTENCING - appeal against sentence – where applicant pleaded guilty to charges under both Commonwealth and State laws – where offending related to sexual acts occasioned by manipulation of multiple victims by threats, harassment and communications using various carriage services – where sentencing judge imposed a number of stand-alone and aggregate sentences – whether the sentencing judge erred in failing to take into account accumulation of sentences as “special circumstances” – where sentencing judge expressly referred to effective sentence being close to statutory norm and determined that nothing less would be sufficient – whether sentencing judge erred with respect to her assessment of the objective criminality and the indicative sentences – where both indicative and aggregate sentences were within the sentencing judge’s discretion – where sentences imposed neither unjust nor unreasonable ­­- where sentence remitted because of an error of law

CRIME – murder – conviction appeal – lengthy trial – appellant convicted of five counts of murder – killing of his wife’s relatives in nearby home CRIMINAL TRIAL – accusatory and adversarial process – role of appellant court – appellant court not forum to retry case, reformulate cases presented by parties at trial or speculate how cases might have been conducted differently – grounds for admission of new evidence on appeal – related to grounds of appeal - DNA evidence lead at trial sought to be challenged on basis of new evidence lead on appeal - new evidence not “fresh” and did not establish innocence of accused or give rise to reasonable doubt – HELD evidence not admissible in relation to challenge to admission and use of DNA evidence - evidence was admissible to the extent it related to allegation of incompetence by trial counsel. DNA EVIDENCE – stain containing DNA from multiple contributors found in appellant’s garage – use of probabilistic computer analysis known as “TrueAllele” to determine likely contributors – prosecution contended four victims’ DNA present – at trial defence accepted DNA of three victims present but contended DNA from relative overseas at time of killing also present – new case on appeal – admissibility of analysis and evidence from expert challenged on different basis – contended that expert not qualified and software not appropriately validated – contended that evidence otherwise misleading – prosecutor’s fallacy – evidence sought to be challenged on basis of new evidence lead on appeal - HELD – evidence properly admitted at trial– alleged lack of validation not relevant to admissibility under s 79 of the Evidence Act – assuming trial judge refused to allow questioning on voir dire about validation then trial judge was correct to do so – prosecutor’s fallacy not established – misleading nature of evidence not established - new evidence not “fresh” and did not establish innocence of accused or give rise to reasonable doubt – evidence not admissible in relation to challenge to admission and use of DNA evidence “CSI” DIRECTION – contended that trial judge erred in directing jury not to expect all issues to be answered by forensic analysis – whether direction had tendency to divert jury from considering evidence and whether guilt established beyond reasonable doubt – HELD – no miscarriage of justice established – ground rejected CONSCIOUSNESS OF GUILT – prosecution relied on conduct of accused on day of killing and period thereafter as consciousness of guilt – contended that trial judge erred in failing to direct jury about the hypothetical reason he might have engaged in the alleged conduct – in one case accused provided reason and in other case accused denied the conduct – no application made to trial judge for further direction - HELD – direction not required – where accused provided reason for engaging in alleged conduct suggested hypothetical reasons added nothing – where accused denied conduct suggested direction had real tendency to undermine denials – as for balance of conduct said to support consciousness of guilt contended that trial judge’s summing up was unbalanced in favour of the Crown - contended that trial judge failed to put the “real defence case” – no redirection sought- HELD – no miscarriage of justice established – summing up accurately reflected parties case as presented at the trial – leave to raise ground refused. ALIBI – appellant contended that he was asleep with his wife when killings occurred – alleged that trial judge’s summary of the alibi evidence was inaccurate and directions were unbalanced – no redirection sought- HELD – complaint not established – leave to raise the ground refused COINCIDENCE EVIDENCE – Crown contended that murder weapon was “hammer like device” – folded cloth and rubber band found at crime scene covered in victims’ blood – Crown contended that it covered murder weapon – “improvised massage device” found at appellants’ premises – covered with folded cloth and rubber band – similar depressions on each cloth – contended that evidence of massage device wrongly admitted as coincidence evidence – HELD – evidence correctly admitted – sufficient similarities to establish evidence had significant probative value – conclusion not rebutted by dissimilarities – no prejudicial effect establish – ground rejected MISCARRIAGE ARISING FROM CONDUCT OF TRIAL COUNSEL – contended that conduct of appellant’s counsel occasioned miscarriage of justice – conduct to be assessed in the context of the trial as it unfolded and the material available to counsel – particulars of ground reflected other grounds – HELD – no miscarriage of justice demonstrated

PROCEDURE – leave to issue subpoena – unrepresented litigant – oppressive – seeking irrelevant material

EQUITY – Trusts and trustees – Judicial advice – Matters about which advice can be given – Powers, duties, rights and liabilities – Application for judicial sale

PRACTICE AND PROCEDURE – application to withdraw admission - admission by defendant in Commercial List Response as to constituents of a contract – whether adequate explanation given for making admission - where admission made as result of lack of sufficient attention by defendant’s legal advisers – whether justice of case requires that leave be granted

CORPORATIONS – winding up on “just and equitable” grounds – property development company – $8 million profit – applicant receives $2 million profit share – majority shareholder yet to receive his profit – building defects – applicant and associated shareholder were builders – ‘deadlock’ has air of artificiality – application infused with self interest – other remedies available – applicant acting unreasonably.

CORPORATIONS – winding up – application by minority shareholders to wind up a company under s 461(1)(k) of the Corporations Act 2001 (Cth) – majority shareholder caused whole of company’s funds to be transferred to accounts controlled by him – non-compliance with subsequent order requiring company’s funds to be paid into court – no issue of principle

CIVIL PROCEDURE – probate and administration of estates – application for special administration ad colligenda bona defuncti – property unoccupied since the death of the deceased – property unable to be insured – appointment necessary to preserve the value of the estate – limited grant of administration

CRIME — Sentencing — Manslaughter — Stabbing — Self-defence with excessive force — Guilty plea — Extent of discount for guilty plea in issue — Whether “different offence” under s 25E(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — Special circumstances

CRIMINAL PROCEDURE — application to exclude evidence – s 137 Evidence Act 1995 (NSW) – re-enactment video – where locations and distances used in video are disputed – where re-enactment video used distances and locations selected by police – where jury will see relevant locations at a view – held, probative value outweighed by risk of unfair prejudice to the defendant

CRIMINAL PROCEDURE — Trial — Voir dire – pre-trial ruling on admissibility of hearsay statements EVIDENCE — Hearsay — Exceptions — First-hand hearsay exceptions – s 65(2) Evidence Act 1995 (NSW) – s 66A Evidence Act – meaning of “circumstances” – whether circumstances make it unlikely that representation is a fabrication – whether representation made in circumstances that make it highly probable that representation is reliable – contemporaneous representations about intention, knowledge, or state of mind – relationship evidence – hearsay representations made by deceased in spousal murder trial – statements made by deceased alleging financial and physical abuse by accused

COSTS – whether costs should follow the event – whether costs should be made on an indemnity basis – whether plaintiff’s case as currently pleaded bound to fail - where plaintiff did not exist on date when cause of action alleged to arise - where plaintiff’s application to amend to substitute another company as plaintiff refused

PRACTICE AND PROCEDURE – Where plaintiff injured in a work accident – Where plaintiff received incorrect advice from his solicitor regarding his entitlement to workers compensation payments and common law damages – Where no proceedings for common law damages were brought based on that advice - Application by the plaintiff for leave to commence proceedings for common law damages against the first defendant in its capacity as his former employer –– Where a prima facie case of negligence against the first defendant had been made out – Where the delay in bringing proceedings had been explained by the plaintiff – No prejudice to the first defendant WORKERS COMPENSATION – Where plaintiff claimed workers compensation payments following incorrect advice from his solicitor – Where the plaintiff was a coal miner for the purposes of the relevant legislation – Where jurisdiction to deal with coal miner matters was conferred exclusively on the District Court of NSW – Where the Workers Compensation Commission purported to make an award of compensation to the plaintiff – Whether the plaintiff’s claim for compensation amounted to a valid election – Whether plaintiff should be granted leave to revoke such election if valid LIMITATION OF ACTIONS – Where plaintiff injured in a work related accident – Where plaintiff was given incorrect advice by his solicitor as to his rights at common law – Where plaintiff sought to commence proceedings against the second defendant in its capacity as the operator of the mine site at which he was working at the time – Whether such proceedings out of time – Whether appropriate to deal with the limitation question in advance of a trial – Whether the plaintiff knew that his injury had been was caused by the fault of the second defendant – Whether the plaintiff knew that his injury was sufficiently serious to justify the bringing of an action against the second defendant – Whether the plaintiff ought to have known that his injury was caused by the fault of the second defendant

SUCCESSION – Contested probate – Testamentary capacity – Application of the test in Banks v Goodfellow – Where numerous wills made over two year period – Where wills rational on their face – Where deceased suffered stroke, vascular dementia and other medical illnesses known to affect executive function – Whether deceased was able to comprehend and weigh claims of potential beneficiaries – Whether impairments suffered continuously or episodically

LAND LAW – Torrens title – indefeasibility of title – fraudster procured execution and registration of mortgages purportedly on behalf of mortgagor – whether mortgages properly construed secure anything against the lands LAND LAW – Torrens title – indefeasibility of title – effect of acknowledgment of receipt of payment in registered mortgage – acknowledgment prima facie evidence of receipt but must yield to the facts as proved – no advance actually made to mortgagor due to intervention of fraudster LAND LAW – Torrens title – indefeasibility of title – whether an unregistered document can be incorporated by reference into a registered mortgage – existence of Special Condition in registered mortgage excluding unregistered document where void – unregistered document void due to fraud

APPEAL – application for leave to appeal – orders – where grant of application for leave to appeal conditioned on applicant agreeing not to press for an order setting aside the quashing of the conviction of the respondent – where resulting orders of Court of Appeal set aside an order allowing an appeal against conviction but also set aside an order dismissing charges under s 530(1) of the Crimes Act 1900 (NSW) and remit the matter to the Local Court for determination in accordance with law in circumstances where no express finding had been made in relation to the mental element of the charges preferred. COSTS – where mixed outcome of proceedings in Court of Appeal – costs in the discretion of the Court – no order as to costs.

EVIDENCE – affidavit evidence – advance ruling – trust claim based on allegedly irrevocable mutual wills – evidence of alleged statements of surviving testator five years after wills made – relevance – application of Evidence Act (NSW), s 135 – evidence ruled inadmissible

COSTS – estate litigation – contest between executors as to who should bear costs – both the plaintiff and the defendant fail in their claims for the other to pay costs, as neither party was wholly successful – questions as to whether there were reasonable grounds for the litigation and whether the litigation was conducted bona fide – costs of the proceedings to be made out of the estate.