Cases and authorities

CRIMINAL PROCEDURE – application to exclude evidence – steak knife found in laundry – application for DNA procedure – relevance – risk of unfair prejudice – potential for misuse – evidence admissible

SENTENCING – manslaughter – excessive self-defence – remorse – good prospects of rehabilitation – discount for plea of guilty

COSTS — security for costs — quantum and form — application — amount awarded as security by agreement exceeded an earlier offer— application for costs of application — whether applicants successful in security for costs application

CIVIL PROCEDURE – summary disposal – where defendant claims set-off – whether defendant can claim set-off in circumstances where the making of the contract founding the set-off is prohibited by statute – where contract is unlawful wager - where contract concerned the plaintiff borrowing money for the express purpose of gambling – where operation of Unlawful Gambling Act prohibits defendant from recovering winnings – where no question of unjust enrichment arises – judgment for plaintiff CIVIL PROCEDURE – pleadings – striking out – where no reasonable defence disclosed

CIVIL PROCEDURE – variation of freezing orders – where plaintiff makes a proprietary claim over third defendant’s assets – where criminal proceedings commenced against second defendant – whether current terms of freezing orders prohibit the first and second defendants from accessing the third defendant’s assets to pay for their ordinary living, reasonable legal and business expenses – whether freezing orders should be varied to prevent the first and second defendant from doing so – held freezing orders to be varied – parties to prepare short of minutes of order

CHILD WELFARE — Judicial review of decision of the Children’s Court — Whether there was jurisdictional error, error of law on face of the record, or fraud such that an order in the nature of certiorari should be made pursuant to s 69 of the Supreme Court Act 1970 (NSW) to quash the orders of the Children’s Court — No error or fraud found — Discretion in the granting of prerogative relief

ADMINISTRATIVE LAW – writ of habeas corpus – to whom writ should be directed – who has custody of prisoners in correctional centres – whether prosecutor entitled to appear APPEAL – appeal against refusal to issue writ of habeas corpus – grounds on which appeal available – s 71 Supreme Court Act 1970 considered JUDGMENTS AND ORDERS – sentence of imprisonment – whether warrant for commitment required in addition to court order – s 62 Crimes (Sentencing Procedure) Act 1999 considered JUDGMENTS AND ORDERS – sentence of imprisonment – judicial review sought – release on bail – stay of execution of order – ss 69A-D Supreme Court Act 1970 considered

APPEAL – practice and procedure – issue of subpoenas – application to review decision of single judge – no issue of principle

ANIMALS - Cruelty to animals – consideration of the element of “intention of inflicting severe pain” in s 530(1) of Crimes Act 1900 (NSW) - defences to offence of serious cruelty to animals under s 530(2) of the Crimes Act 1900 (NSW) – meaning of “pest animals” – meaning of “in the course of or for the purposes of extermination of pest animals” – whether animal killed was a “pest animal” within the meaning of s 530(2) of the Crimes Act – whether killing of animal was “in the course of or for the purposes of extermination of pest animals” – statutory context – context includes other legislation addressing cruelty to animals CRIMINAL LAW – cruelty to animals – offence of serious cruelty to animals – elements of offence - consideration of the element of “intention of inflicting severe pain” in s 530(1) of Crimes Act - statutory defence – whether animal killed was a “pest animal” within the meaning of s 530(2) of the Crimes Act – whether killing of animal was “in the course of or for the purposes of extermination of pest animals” STATUTORY INTERPRETATION – where provision in question one of a number of provisions in various statutes concerned with prevention of cruelty to animals – other statutes forming part of the statutory context – consideration of the use of dictionaries in statutory interpretation WORDS AND PHRASES – “pest animal” – “extermination” – “in the course of or for the purposes of extermination of pest animals”

CRIMINAL LAW – sentence appeal – proceeds of crime – commercial quantity of a border controlled drug – utilitarian value of plea – Xiao error established – re-sentencing – nature and circumstances of offences – financial gain – objective seriousness of counts – subjective features – mental health issues – discount for utilitarian value of plea and co-operation with authorities – general deterrence – personal deterrence – behaviour in custody – leave to appeal granted – appeal dismissed

APPEALS — From jury verdict — unreasonable verdict — where applicant alleged significant inconsistencies in complainant’s evidence should have left jury with doubt — where date of alleged conduct critical as Crown required to prove it occurred before complainant turned 10 — whether evidence supported jury’s verdicts SENTENCING — Appeal against sentence — manifest excess — historical offence — difficulty establishing range in case of repealed offence — youth and immaturity of offender at time of offending

EQUITY – equitable remedies – vitiating factors – common mistake – discussion of the existence and scope of jurisdiction to set aside contracts for common mistake in equity – whether parties to an agreement were operating under a common misapprehension that was fundamental to the agreement – no fundamental misapprehension JUDGMENTS AND ORDERS – res judicata and cause of action estoppel – no issue of principle CONTRACTS – formation – illegality – no issue of principle CONTRACTS – terms – implied terms – no issue of principle CONTRACTS – construction – no issue of principle

CONTRACTS – construction – interpretation of an offset clause – no issue of principle CORPORATIONS – winding up – application to wind up two companies under s 461(1)(k) of the Corporations Act 2001 (Cth) – no issue of principle

COSTS – party/party – where indemnity costs sought against unsuccessful party – whether it is appropriate to depart from the usual practice of making a costs order on the ordinary basis – whether there were no reasonable prospects of success – where success in the case depended on the preference for competing evidence – where claim was weak but not fairly unarguable COSTS – party/party – where indemnity costs sought against unsuccessful party – where order is discretionary– where imprudent to reject offer of compromise COSTS – party/party – whether indemnity costs should be awarded – where offer of compromise made in accordance with rule 42.15A UCPR – where indemnity costs ordered from date after the offer was made COSTS – party/party – orders against non-parties – where indemnity costs orders sought against solicitors of unsuccessful party – where indemnity costs sought pursuant to s 99 of the Civil Procedure Act and Schedule 2 of the Legal Profession Uniform Law Application Act – whether the legal services were provided without a reasonable belief by the solicitors that the claims had reasonable prospects of success – where conduct of the solicitors must demonstrate incompetence or unsatisfactory conduct to a high degree – where solicitors entitled to accept the evidence of their client – where relatively junior solicitors sought advice of experienced counsel – where weakness of the case does not equate to there being no prospects of success – where no cost order made against the solicitors

COSTS – SUCCESSION – Family provision claim by spouse of extremely long marriage – Where Plaintiff largely successful in the claim – Whether the Plaintiff should pay the Defendants’ costs as he received, subject to conditions, the deceased’s interest in the only substantial asset of the estate, being the deceased’s one-half interest in the matrimonial home – No other asset out of which order for costs can be made although funds to be paid to Defendants – If funds not paid, property to be sold - Where Defendants defended the claim in their own self-interest – Defendants unsuccessful in defending proceedings and in prosecuting Cross-Claim –Application of general rule in family provision matters and whether discretion to be exercised – Whether basis for an order that the Defendants should pay, all or some, of their own costs of the proceedings

APPEALS – leave to appeal – whether leave required – monetary threshold of $100,000 under s 101(2)(r) Supreme Court Act – amount in issue $99,999 – strictly no right of appeal – closeness of sum in issue to the threshold relevant to discretion to grant leave CONTRACTS – remedies – damages – sub-contractor breached contract with builder by supplying and installing materials unfit for purpose – builder paid in full by proprietors and no prospect of it rectifying work – builder not exposed to risk of liability to proprietors – builder did not prove that it suffered loss

APPEALS – orders on appeal – remittal – errors in trial judge’s conclusion on liability and contingent assessment of damages – case attended by significant and operative delays – conduct at issue occurred over 10 years ago – further trial pointless – Court of Appeal capable of resolving contested issues of fact PRACTICE AND PROCEDURE – expert evidence – joint report of experts – admission and tender versus weight – Uniform Civil Procedure Rules (NSW), r 31.26(3) TORTS – negligence – breach of duty – shopping centre – defect in perimeter security – gap above roller door – exposed entrance – previous break-in via the gap – awareness by owner of premises, security company, and employer of security guard of defect – no steps taken to rectify defect – Civil Liability Act 2002 (NSW), s 5B TORTS – negligence – causation – intruder enters shopping centre via gap – requirement to address gap – Civil Liability Act 2002 (NSW), s 5D TORTS – general principles – contributory negligence – security guard followed steps and was praised by management for conduct in securing premises against axe-wielding intruder which led to psychiatric injury – Civil Liability Act 2002 (NSW), ss 5R, 5S TORTS – negligence – damages – psychiatric injury – normal fortitude – whether person of normal fortitude might in the circumstances of the case suffer psychiatric harm – Civil Liability Act 2002 (NSW), s 32 TORTS – negligence – duty of care – security guard – duty of occupier of commercial shopping premises, security company, and company engaged by security company that employed the security guard TORTS – negligence – voluntary assumption of risk – security guard suffered psychiatric injury due to the approach of an axe-wielding intruder who approached him and threatened him with death – whether this risk was voluntarily assumed

ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner under Health Practitioner Regulation National Law – power of Tribunal to order that a complaint be heard on the papers – where National Law required notice of time and place of inquiry to be given – where National Law entitled practitioner to attend the inquiry – where National Law applied despite any provision in Civil and Administrative Tribunal Act ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – complaint by Health Care Complaints Commission about medical practitioner under Health Practitioner Regulation National Law – where Tribunal did not afford practitioner procedural fairness – where Tribunal erred in relation to its consideration of certain complaints – where Tribunal failed to give adequate reasons for its conclusions concerning certain complaints

DEFAMATION – defamatory matter – where news report on termination of General Manager of Council – where report referred to allegations of bullying and intimidation – whether imputation conveyed that General Manager bullied and intimidated staff DEFAMATION – defences – statutory qualified privilege – reasonableness – relevance of propositions stated in Morgan v John Fairfax Ltd [No 2] (1991) 23 NSWLR 374

SUCCESSION – construction of will – gift of two shares to three children as tenants in common – will stated that if shares not divisible by three, daughter would receive more – whether daughter entitled to both shares under will – consideration of joint ownership of choses in action

CRIMINAL LAW – appeal against sentence – appeal from the Drug Court – s 5AF of the Criminal Appeal Act 1912 (NSW) – where submitted the Drug Court did not determine the initial sentence and final sentence in accordance with the manner required by statute – where submitted that appellant’s background of social deprivation was not properly accounted for in sentencing – appeal allowed – appellant re-sentenced

CRIMINAL LAW – Challenge to conviction – where Crown case in relation to one count required the applicant to have scaled the external wall or descended on a fourth floor balcony of a five-storey apartment building – where no apparent means of applicant having accessed the balcony externally – whether conviction on this count unreasonable. CRIMINAL LAW – tendency evidence – where evidence of tendency related to conduct almost ten years prior to conduct the subject of the charges – whether tendency evidence of significant probative value – review of principles relating to tendency evidence. CRIMINAL LAW – where applicant on parole at time of hearing of appeal – where challenge to convictions in respect of multiple counts succeeds – whether new trial should be ordered. EVIDENCE – tendency evidence – where evidence of tendency related to conduct almost ten years prior to conduct the subject of the charges – whether tendency evidence of significant probative value – review of principles relating to tendency evidence.

CORPORATIONS — Winding up — Proceedings against company — Application for winding up in insolvency brought without reliance on creditor’s statutory demand — Whether Plaintiff complied with Retail and Other Commercial Leases (COVID-19) Regulation 2020 — Solvency of hotel business impacted by COVID-19 pandemic — Whether proceedings are an abuse of process — Whether to dismiss or adjourn winding up under s 467 of the Corporations Act 2001 (Cth)

CIVIL PROCEDURE — Stay of proceedings pending appeal – where orders are made against two defendants that they pay the same amount of damages to the plaintiff –– where both defendants apply for a stay of execution of the judgment pending the determination of an appeal –– where one of the defendants is primarily liable to the plaintiff –– where that defendant was deregistered in the British Virgin Islands before the hearing commenced –– where the registration of that defendant was reinstated after judgment was given –– where the effect of reinstatement is that the defendant is deemed always to have existed –– where although reinstated that defendant was in the course of being wound up –– where the full amount of the judgment is paid into court on behalf of the defendant who is primarily liable as a condition of a stay of execution of the judgment against that defendant by consent of the plaintiff –– where the payment was not made from the funds of that defendant –– where the other defendant has reasonable prospects of success on appeal – where the financial circumstances of the plaintiff give rise to a real risk that a successful appellant will not be able to recover any amount of the judgment paid to the plaintiff –– unqualified stay of execution of judgment granted to defendant not primarily liable pending determination of appeal

EMPLOYMENT AND INDUSTRIAL LAW — Contract — Restraint of trade — whether employee should be released from an undertaking provided to an employer on an interlocutory basis — where undertaking is inherently indefinite — where, regardless, it is appropriate that the Court allows for a replacement undertaking to be given.

CIVIL PROCEDURE - application for Court endorsement of proposed §1782 application under Title 28 of the United States Code -

CONTRACTS — MORTGAGES AND SECURITIES — Mortgages — Mortgage contracts — Whether certain monies were advanced to plaintiffs and intended to be secured by mortgage — Where contract contained an “all monies” clause — Construction of “all monies clause” CONTRACTS — MORTGAGES AND SECURITIES — Mortgages — Mortgage contracts — Covenants — Construction of convents concerning repayment of principal and interest — Where mortgagor liable to repay mortgage and accrued interest on demand for repayment CONTRACTS — Formation — Consideration — Where mortgagee promised mortgagor that she and her husband could live in property subject of the mortgage for as long as they wished and he would not call upon the mortgage until the property was sold — Whether mortgagor’s promise part of the consideration provided for mortgage contract ESTOPPEL — Promissory estoppel — Where mortgagee promised mortgagor that she and her husband could live in property subject of the mortgage for as long as they wished and he would not call upon the mortgage until the property was sold at the time mortgagor executed mortgage document — Whether mortgagee estopped from making demand under mortgage prior to conditions being fulfilled MORTGAGES AND SECURITIES — Mortgages— Whether demand made

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Applications under s 411 of the Corporations Act 2001 (Cth) for orders approving proposed schemes of arrangement Single member schemes to obtain ancillary relief under s 413 of the Corporations Act – Where certain creditors wrote letters of objection but did not appear

CORPORATIONS – Voluntary administration – Deed of company arrangement – Leave to commence proceedings against company subject to deed of company arrangement in relation to its property – Where Plaintiff’s property in possession of company – Whether Plaintiff’s title to property established -Whether to order delivery of property where uniquely manufactured in accordance with contractual specifications.

TAXES AND DUTIES — Whether to direct parties to provide copy of judgment to Deputy Commissioner of Taxation — Where shareholder dispute involved evidence at trial of transaction that may affect parties’ tax obligations.

JUDGMENTS AND ORDERS – order for discovery made in accordance with plaintiffs’ application – proper construction of the order

CIVIL PROCEDURE — cross-vesting — transfer to Federal Court — relevant factors — proceedings touching upon trademarks and patents — whether Federal Court’s “experience” in intellectual property a sufficient factor

PROCEEDS OF CRIME – award of costs – whether “all costs” should be awarded to the appellants who succeeded in securing an order that certain property be excluded from a freezing order

CONTRACTS — Construction — Interpretation – whether contract for sale of a vessel with an annexed marina berthing agreement form a single agreement – whether special condition to contract for sale imposes an obligation to rent a marina berth for a fixed term – whether special condition is inconsistent with an implied right to terminate on notice arising from the standard terms of the annexed marina berthing agreement – primacy between inconsistent terms

APPEALS — Leave to appeal — parens patriae jurisdiction — where Secretary of the Department of Communities and Justice had assumed care responsibility for applicant’s child — care proceedings part-heard in the Children’s Court —finding by primary judge that the applicant had not established exceptional circumstances to justify interfering with orders made by Children’s Court — whether applicant established any issue of principle, question of general public importance or injustice such as to warrant a grant of leave to appeal

CRIMINAL LAW – appeal – leave to appeal against conviction – convictions on four counts of acts of indecency on a child under 16 years and two counts of sexual assault on a child under 10 years – child aged between 5 and 8 years – incidents alleged to have occurred between 2013 and 2016 – first complaint in January 2016 and further complaint in May 2017 where child’s evidence displayed some uncertainty about timing of some incidents – whether trial judge erred in declining to give a forensic disadvantage direction – Evidence Act 1995 (NSW) s 165B – whether accused suffered significant forensic disadvantage because of the consequences of delay – significance of accused’s misconduct in making threats to the child

CRIMINAL LAW – sentence appeal – supply large commercial quantity of MDA and possession of firearms – whether sentencing judge applied the early plea discount to the indicative sentences – ambiguity in sentencing judge’s reasons amounting to error of law – appeal against sentence allowed – need to re-sentence.

CRIMINAL LAW – appeal against sentence – dangerous driving occasioning death – fail to stop after vehicle impact causing death – whether sentencing judge erred in assessment of objective seriousness of failing to stop and assist – whether sentencing judge failed to accept applicant’s remorse – leave to appeal granted – appeal upheld and applicant resentenced

HIGH RISK OFFENDERS – Interim Supervision Order – Conditions – Serious Sex Offender – where an ISO is not opposed – where a condition about residence is in dispute – no point of principle

PROCEDURE – cross-examination – respondent to application for costs reads affidavit – application for cross-examination – possibility of prosecution for contempt arising out of matters to be the subject of cross-examination – application refused.

CIVIL LAW - order for possession of land - writ of possession - where defendant seeks to refinance - where one creditor does not oppose stay - not altruistic - whether attempt to refinance futile - not completely uninteresting legal argument - ostensibly bloody-minded approach tempered - where writ previously stayed on ground attempts to refinance continue - evidence suggests on cusp of refinance - relevance of hardship - medical emergency

COSTS – public interest immunity – Cabinet document – Commonwealth sought to rely on evidence not provided to other side in order to support claim of public interest immunity – basis of claim not otherwise disclosed – other side promptly conceded claim of public interest immunity once basis disclosed – appropriate order as to costs

COSTS – application by director resident in Italy and minority shareholder for company records – substantive orders obtained by consent – whether plaintiff should obtain favourable costs order – whether second defendant had delayed unreasonably – whether non-production of documents other than inadvertent – plaintiff imminently to commence further proceedings – inappropriateness of determining issues on an application for costs – proceedings dismissed with no order as to costs.

CORPORATIONS — Directors and officers — Authority and powers — whether assets may be accessed — where the allocation of shares is such that there is not enough voting power to do so. CIVIL PROCEDURE — Cross-vesting — Transfer to Family Court of Australia — Relevant factors — where interim relief has already been sought in the Family Court of Australia that would achieve the interlocutory outcome sought in this Court — transfer order refused.

CRIME — Bail — Variation application

COSTS – party/party – bases of quantification – assessment as a gross sum – no issue of principle

COSTS – variation to costs order sought by the defendant – resolution of separate question

CIVIL PROCEDURE – proceedings commenced in Commercial List – whether proceedings should be transferred to the Corporations List – where issues in proceedings relate to other proceedings in the Commercial List – where Commercial List judge has ordered proceedings be managed together

BAIL – Terrorism offence – no threat subsisting – but circumstances not exceptional – bail refused.

CIVIL PROCEDURE – advance ruling as to admissibility of evidence – s 192A Evidence Act 1995 (NSW) – whether material contained in defendant’s affidavit evidence is inadmissible under s 131 of the Evidence Act – whether exception in s 131(2) applies – whether impugned material amounted to an admission – held that whether or not material amounts to an admission the rights exception in s 131(2) is not invoked – material held to be inadmissible