Cases and authorities

DEFAULT JUDGMENT – $3M fraud by trusted employee – feigns wife’s suicide – both leave for Spain – substituted service by email and Facebook – leave to proceed against overseas defendants – unliquidated claim – 57 transactions analysed by forensic accountant – damages proved – gross sum costs order.

CIVIL PROCEDURE – interim preservation – freezing orders – against third parties – continuation of the freezing order

CIVIL PROCEDURE – objection to parts of affidavit being read – consideration of the Harman undertaking and the principles in Hearne v Street – whether party who comes into possession of documents covered by the implied undertaking not entitled to use them in separate proceedings – affidavit rejected

CIVIL PROCEDURE – interim preservation – freezing orders – against third party – where service of order is unable to be effected – where all reasonable steps have been taken to achieve service – where evidence that the third party is aware of the order – service taken to be effected

CIVIL PROCEDURE – suppression and non-publication – orders – interim order sought – question of when a hearing in respect to the continuation of the order will be heard – where by operation of the Act a hearing is a matter of urgency – orders made for urgent hearing of the application

COSTS — Party/Party — Whether costs should follow the event — Basis of quantification — Whether costs should be paid on an ordinary or indemnity basis — Where defendants’ motion seeking dismissal of plaintiffs’ claim or permanent stay dismissed — Where no conduct on the part of the plaintiffs that would disentitle them to their costs

TRUSTEES — jurisdiction to give judicial advice – whether to give advice in this case – litigious estate – appropriate to give advice to protect the estate and its trustee.

CIVIL PROCEDURE – pleadings – amendment – application to amend defence after proceedings fixed for hearing – partnership proceedings – claim for indemnity for alleged partnership expenses incurred by one partner – belated limitation defence – amendment permitted

COSTS – Costs assessment – Determination – the plaintiff solicitor formerly represented the defendant client in family law property proceedings – the defendant changed legal representation – the plaintiff claims $96,239 in legal fees – the defendant resists this quantum – the plaintiff lodged a caveat over the matrimonial home the subject of the defendant’s family law proceedings – by order of the Federal Circuit Court, the matrimonial home was sold and the plaintiff commenced these proceedings – by orders of this Court, $100,000 from the proceeds of sale of the matrimonial home is held in a solicitor’s trust account pending the resolution of these proceedings – the matter was referred to a costs assessor who reduced the fees to $13,860 – the plaintiff seeks a stay of these proceedings pending an appeal against this reduction in costs – the defendant resists this and seeks a final hearing or a dismissal of the proceedings – whether the proceeds held in trust should be reduced on account of the costs assessment report.

EVIDENCE — Audio and audio visual links — Application for witnesses to give evidence by audio visual link — Special provisions for COVID-19 pandemic

CIVIL PROCEDURE – pleadings – application for leave to amend List Statement – construction contract – misleading or deceptive conduct – proposed plea that had representations not been made, plaintiff would have submitted higher tender and that “if” defendant accepted that tender plaintiff would have entered contract with a higher price – no allegation as to whether defendant would have accepted the higher tender – whether pleading maintainable CIVIL PROCEDURE – pleadings – application for leave to amend List Statement – construction contract – proposed pleading that the matters represented were terms of the contract or that contract should be rectified to include such terms

EQUITY — Equitable remedies — Interlocutory injunctions — whether there is an arguable case — where the defendants’ case ignored the history and context of the transaction between the parties — where an interlocutory order should be made to preserve the status quo.

COSTS – security for costs – where plaintiff a trustee with right of indemnity from trust assets – only current asset of trust an unsecured loan to another trust – whether plaintiff has shown it will have recourse to trustee property

COSTS — Party/Party — Where one party successful — Where successful party prolonged proceedings — Whether costs awarded to successful party ought be discounted COSTS — Party/Party — Where proceedings discontinued by plaintiff — Where discontinuance not a result of settlement — Whether plaintiff ought pay costs of defendant

CIVIL PROCEDURE – judgment entered by consent – application to defer payment – application for leave to issue writ of sequestration

CRIMINAL PROCEDURE – trial – case management – evidence – admissibility – whether evidence of acts or declarations of alleged co-conspirators are admissible other than as admissions

COSTS – consideration of appropriate costs order after answers given to separate questions pursuant to order under Rule 28.2 Uniform Civil Procedure Rules 2005 – costs should follow that event

CRIMINAL LAW – sentence – verdict of guilty of manslaughter after trial by jury of count of murder – brutal killing of defenceless victim – defence of mental illness not established – MDMA use triggered psychotic state of offender – offender perceived the deceased to be demonic or a demon – vulnerability to developing schizophrenia – diagnosis of schizophrenia subsequent to the offence – offer to plead guilty to manslaughter – young offender – unblemished character – genuine remorse – special circumstances – sentence imposed

CRIME - sentence - murder - joint criminal enterprise - deceased set on fire twice - second time to "finish him off" - offender instrumental in driving co-offender to get more petrol and then back to scene of the crime for the second burning - mental health disorders - drug use and dealing - no remorse - parity - equivalent culpability - no entitlement to discounts allowed to co-offender

MENTAL HEALTH – forensic patient – expiry of limiting term – application for interim extension order – whether defendant may be ultimately assessed as posing an “unacceptable risk” of causing serious harm to others – whether less restrictive measures available – whether status as involuntary patient would adequately manage risk – application for extension order not opposed – interim extension order made

CORPORATIONS – winding up – standing – where creditors’ voluntary liquidation commenced in 1999 – administrator appointed by liquidator in 2010 – where creditors approved deed of company arrangement – where deed never signed by proposed deed administrator – application by persons claiming to be creditors or shareholders for authority to effectuate terms of deed of company arrangement by lodging notice with ASIC to bring deed to end – Corporations Act 2001 (Cth) s 445G(3) – application to terminate winding up – Corporations Act s 446A and s 482 – whether applicants have standing as creditor or shareholder/contributory of company CORPORATIONS – winding up – where purported deed of company arrangement never signed by proposed deed administrator – where another person signed the deed of company arrangement as purported deed administrator – whether deed of company arrangement brought into existence – Corporations Act ss 435C, 436B, 436E, 439A, 444A, 444B, 445G, 449C CORPORATIONS – winding up – court’s powers – where company in voluntary administration – where administrator resigned in June 2010 – where vacancy in office of administrator not filled – whether appropriate for Court to declare administration came to an end when administrator resigned – Corporations Act s 447A – where no application by ASIC or liquidator for relief under s 447A

RETIREMENT VILLAGES – Retirement Villages Act 1999 (NSW), s 5 – meaning of “retirement village” – “village contracts” – whether contracts giving rise to “residence right” – whether contracts “under which” services provided – whether complex “predominantly or exclusively” occupied or intended to be occupied by residents having village contracts with operator RETIREMENT VILLAGES – Retirement Villages Act 1999 (NSW) – meaning of “operator” of retirement village – whether plaintiff manages or controls village – whether sufficient that plaintiff owns land in the village or is within Retirement Villages Regulation 2017 (NSW), reg 6 – meaning of “land” RETIREMENT VILLAGES – Retirement Villages Act 1999 (NSW), s 171 – where prospective seller not a resident – whether “vendor” must be a “resident" of village – whether s 171 applies to operator not involved in management or control of village CONTRACTS – uncertainty – where clause requires that any contract for sale of property be subject to purchaser’s agreement with third party – whether clause void for uncertainty as agreement to agree – whether purchaser under contract for sale would have discretion not to perform CONTRACTS – restraints on alienation – where clause requires that any contract for sale of property be subject to purchaser’s agreement with third party – whether clause void as impermissible restraint on alienation of land – whether restraint has valid collateral purpose

HIGH RISK OFFENDER – convictions for serious sexual and violence offences – application for Interim Supervision Order – defendant on parole for 10 months – defendant fully compliant with parole conditions – dispute as to conditions to be imposed in preliminary application – some conditions intrusive – community safety paramount.

HIGH RISK OFFENDER – mental health issues (schizophrenia) – index offence of manslaughter – offender suffering undiagnosed schizophrenia at time of index offence – defendant granted parole in December 2017 – defendant commenced displaying non-compliant behaviour – increase in aggression directed at family members – parole revoked after six months on the basis of failure to maintain good behaviour – defendant using illicit substances while in gaol – preliminary application for ISO – whether unacceptable risk of committing another serious violence offence – defendant has little insight into his ongoing needs for psychiatric and psychological treatment – dispute as to conditions – ISO made.

CRIMINAL LAW - sentencing - murder - stabbing murder - multiple stab wounds - whether intention to kill - inexplicable killing - lack of planning - lack of motive - murder committed on parole for reckless wounding - similar facts - serious aggravating feature - assessment of objective criminality CRIMINAL LAW - sentencing - subjective circumstances - Kamilaroi woman - history of trauma, dispossession and abandonment - sexual abuse - domestic violence - exposure to drugs and alcohol - profound deprivation - post traumatic stress disorder - resort to drugs - escaping the pain - impact on moral culpability - lack of focussed intervention - Walama Court

CIVIL LAW – costs – no submissions made – no departure from position proposed

COSTS – whether costs of an application for leave to appeal in relation to a question of discovery should be ordered to be paid forthwith – where application for leave to appeal unsuccessful – whether an “order otherwise” under Uniform Civil Procedure Rules 2005 (NSW) r 42.7 was necessary and, if so, criteria by reference to which it may be made.

JUDGMENTS AND ORDERS – amending, varying and setting aside – application under UCPR, r 36.16(3) to vary appeal judgment to include pre-judgment interest – where interest not sought prior to application – whether to backdate judgment to date of decision under appeal

APPEALS – appeal from final judgment – review of interlocutory judgments – interlocutory judgments refusing amendments to pleadings CIVIL PROCEDURE – pleadings – requirement for particularity – conclusory statements in pleadings alleging collusion, fraud and gross negligence by mortgagee in exercise of power of sale MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagee – power of sale – challenge to sale process – claim that sale at undervalue – whether advertisements misleading MORTGAGES AND SECURITIES – mortgages – power of sale – property with development consent – whether purchaser entitled to development plans

CIVIL PROCEDURE – application to reopen judgment dismissing appeal – where application relies in part on “further” evidence not led at trial or on appeal – no issue of principle COSTS – ordinary or indemnity – offer of compromise – result less favourable to offeree – whether rejection of offer unreasonable – no issue of principle

APPEALS — application for leave to appeal —interlocutory orders – issue of principle identified – application of rr 6.24, 6.29 UCPR – joinder and removal of parties – leave to appeal granted in respect of joinder of the State and removal of named defendants CIVIL PROCEDURE — Parties — Joinder of defendant — whether necessary party – application by State of New South Wales to be joined as party to action in which the State admitted vicarious liability in relation to torts pleaded against defendants – no conclusion that State ought to have been joined by plaintiff as a party – held, not necessary for resolution of all matters for State to be joined CIVIL PROCEDURE — Parties — Removal of parties – where primary judge ordered removal of two named defendants under r 6.29 UCPR after joinder of State – held, joinder of State did not mean that named defendants ceased to be necessary or proper parties CIVIL PROCEDURE — Jury — Availability of jury trial — Interests of justice – where plaintiff alleged apprehended bias on the part of judicial officers – where first defendant is “well known in legal circles” and second defendant is “high profile” – held, no reasonable apprehension of bias – application for leave to appeal refused

CRIME – sentencing – aggravated indecent assault – aggregate sentence – threshold for sentence of imprisonment – Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 – application to indicative sentences CRIME – sentencing – aggravated indecent assault – objective seriousness – degree of physical contact CRIME – sentencing – guilty pleas – utilitarian discount not provided – guilty pleas entered on fourth day of trial – whether obligation to allow discount – nature of discretion under Crimes (Sentencing Procedure) Act 1999 (NSW), s 22 CRIME – sexual offences – indecent assault – circumstances of aggravation – position of trust or authority – employer indecently assaulting job applicant at interview – whether aggravating factor engaged – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k)

CORPORATIONS – statutory right of access to books and records – where liquidators consent to proposed orders – no issue of principle

SECURITY FOR COSTS – plaintiff ordinarily resident abroad – security ordered in June 2019, $1M for future costs until trial – plaintiff provides security, with difficulty – to provide $2M security for trial costs, plaintiff obtains After-The-Event insurance policy and litigation funding to pay for it – defendants now seek $2.6M security for past costs – trial imminent – applications refused.

Terrorism (High Risk) Offender – interim supervision order – risk posed by susceptibility to associations with radical elements – significant recent progress – voluminous material tendered on preliminary application

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Where alleged defamatory statements cannot reasonably give rise to defamatory imputations against the plaintiff — Where no particulars of identification provided — Where Uniform Civil Procedures Rules which govern pleading in defamation cases not complied with

EVIDENCE – public interest immunity – Cabinet document – application for evidence sought to be adduced in support of claim to be received confidentially without being disclosed to the other side – absence of any “usual practice” in such cases – whether a case had been made out for significant departure from principles of procedural fairness

POSSESSION – separate question – whether claim for possession appropriate where will provides for life estate – whether the gift has adeemed or failed

EVIDENCE — standard of proof — admissibility of evidence — whether evidence is relevant — accused charged with murder — self-defence raised — evidence relevant as it informs threats said to have been conveyed by the deceased — use of direction and warning to the jury

ADMINISTRATIVE LAW — Jurisdictional error — Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 327 — Decision of Registrar to refuse to refer appeal — Whether Registrar erred by determining substantive appeal rather than applying statutory test — Whether jurisdictional error ADMINISTRATIVE LAW — Jurisdictional error — Whether Registrar erred in not finding that a ground of appeal under s 327 had been made out

CIVIL PROCEDURE — summary disposal — dismissal of proceedings by court of its own motion— non-appearance of parties due to service of proceedings to outdated address — application to set aside orders made by the Registrar in the absence of the parties and reinstate proceedings — plaintiff unaware of non-appearance by solicitor and dismissal of proceedings — steps taken by the plaintiff personally to pursue the matter once statement of claim filed — plaintiff herself blameless - whether the defendant is prejudiced — whether a fair trial can be held — application of plaintiff to extend time for service of statement of claim

COSTS – security for costs – where plaintiff admittedly unable to meet a costs order – whether security should be denied by reason of delay – quantum of security – where only one of two defendants seeks security – where that defendant is also a cross claimant

CIVIL PROCEDURE – subpoena to produce documents – application by recipient to set aside subpoena

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court — Where related proceedings on foot in Federal Court — Whether in interests of justice to transfer proceedings

TAXES AND DUTIES – dutiable transactions – exemptions – charitable and benevolent bodies – where organisation provides relief to women and children experiencing poverty, homelessness, violence or disadvantage – whether organisation is an exempt charitable or benevolent body – whether organisation’s resources are used predominantly for the relief of poverty and/or the promotion of education pursuant to s 275(3)(a) Duties Act 1997 (NSW) exemption from duty TAXES AND DUTIES – dutiable transactions – exemptions – charitable and benevolent bodies – where organisation provides relief to women and children experiencing poverty, homelessness, violence or disadvantage – whether organisation is an exempt charitable or benevolent body – whether organisation entitled to partial exemption from duty pursuant to s 275A Duties Act 1997 (NSW)

APPEALS – security for costs – appellants resident outside Australia – appellants without assets in Australia – merits of appeal balanced – order would not stifle appeal – costs not disproportionate to amount in dispute – relationship of UCPR r 42.21 and r 51.50(1) – effect of r 51.50(3)

ADMINISTRATIVE LAW – Jurisdiction – Civil and Administrative Tribunal – whether the Tribunal has jurisdiction to review an occupation certificate whilst exercising its jurisdiction under the Home Building Act 1989 (NSW) – whether review of the occupation certificate collateral to the proceedings – capacity of the Tribunal to engage in collateral review of administrative action – where statutory scheme provides Land and Environment Court jurisdiction to remedy or restrain a breach of the Environmental Planning and Assessment Act 1979 (NSW) BUILDING AND CONSTRUCTION – Occupation Certificate – whether document purporting to be an interim occupation certificate authorised use and occupation of the whole of the building – where running of limitation period for breach of a statutory warranty under the Home Building Act contingent on such authorisation – whether occupation certificate issued in contravention of s 109H(2) of the Environmental Planning and Assessment Act invalid

CRIME — appeals — appeal against sentence — manifest excess – failure to take into account a relevant consideration – alleged failure to take into account a period of conditional bail – held, conditional bail is a discretionary factor – no error in taking into account one period of conditional bail but not another where conditions were different – appeal allowed in respect of commencement date but otherwise dismissed

CRIMINAL LAW – murder trial – where Crown relied upon joint criminal enterprise – whether directions about mental element for extended joint criminal enterprise were inadequate – whether failure to leave manslaughter on a certain basis led to miscarriage of justice – whether directions about approach by jury to circumstantial case were erroneous – conviction appeal allowed