Cases and authorities

CRIMINAL LAW – sentencing for serious supply of large commercial quantities of “ice” – possession of pistol with ammunition – where application at first instance of discounts to aggregate sentence as opposed to indicative sentences made determination of appeal grounds impractical – error in application of discounts established – whether lesser aggregate sentence warranted in law – appeal against sentence dismissed

CRIMINAL LAW – proceedings after conviction – manslaughter verdict – public interest – trial proceedings – non-publication orders - media application – exhibits on voir dire – media – public interest in access to material – public interest in protecting vulnerable offender

CRIMINAL LAW – murder – joint criminal enterprise – self-defence – excessive self-defence – expert witness – leave to ask questions not contained within expert report – issue raised in cross-examination of the accused – leave granted

SOLICITORS – costs – solicitors’ lien – sufficient causal link between solicitor’s efforts and recovery of costs – solicitor’s lien exists prior to assessment determining quantum.

CRIMINAL LAW – murder – application for judge alone trial – issue requiring application of community standards – application refused

PROCEDURE – discovery – disputed categories of documents in oppression suit – no question of principle.

PRACTICE AND PROCEDURE – Application for summary dismissal – Where plaintiff brought proceedings arising from a refusal of the first defendant to pay compensation from the Torrens Assurance Fund – Where cause of action arose from an unregistered sub-lease – Where there was no loss or damage arising as a result of the operation of the Real Property Act 1900 (NSW) – Compensation not payable – Proceedings dismissed WORDS AND PHRASES – “Operation of the Act”

CORPORATIONS – oppression suit – shareholders enter into Deed of Mandate appointing new directors to manage companies' affairs and sell assets following breakdown of trust – one shareholder later alleges oppressive conduct by new directors in conjunction with other shareholder – shareholder seeks interlocutory injunction preventing new directors from being indemnified from company funds for legal expenses – dispute as to existence, source and nature of indemnity – undesirability of resolving that dispute in this application – no necessity to grant injunctive relief where ample company assets - orders made directing new directors provide account to plaintiff of legal fees paid by them in defending litigation on monthly basis – In the matter of Therma Truck Pty Ltd [2016] NSWSC 266 applied.

HIGH RISK OFFENDER – Extended Supervision order – unacceptable risk – relevance of offender registration scheme – duration

COSTS – costs sought by defendant – no submission as to costs filed by plaintiff – ordinary rule for costs – indemnity costs sought after offer of compromise made – gross sum costs order sought – orders made in favour of defendant

CORPORATIONS – Application for reinstatement of companies – Companies’ property damaged by fire – Insurer paid out claims – Companies wound up and deregistered – Insurer subrogated to rights of the companies against defendant allegedly responsible for fire – Proceedings commenced by insurer in companies’ names without being aware of deregistration – In principle agreement reached to settle proceedings – Reregistration ordered to facilitate resolution of proceedings

HIGH RISK OFFENDERS – preliminary hearing – interim orders - s 17 considerations – determining whether to grant an interim detention order or an interim supervision order – where defendant does not dispute the making of an interim supervision order - consideration of likely final order a question for the final hearing – whether the circumstances justify the making of an interim detention order

SUCCESSION – family provision – claim by adult daughter for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – previous family arrangement for claimant to receive former family properties on the deceased’s death – estate instead passed by survivorship and will to step-daughter – moral obligation SUCCESSION – family provision – notional estate – whether order designating property as notional estate should be made

CRIMINAL LAW – murder – joint criminal enterprise – self-defence – excessive self-defence – co-accused – directed verdict – whether there is no evidence upon which a jury could convict – listening device material – eyewitness accounts – accused’s account in ERISP – competing inferences

PARTNERSHIPS AND JOINT VENTURES — Dissolution — Where panoply of claims and cross-claims — Proust’s In Search of Lost Time EQUITY — Equitable fraud — Sham transactions — Bribes EQUITY — Fiduciary duties — Breach RESTITUTION — Nature of restitutionary liability — Availability of restitution — Quantum meruit and quantum valebat BANKING AND FINANCE — Banks — Duties — Duty to adhere to mandate of customer OCCUPATIONS — Solicitors — Professional negligence

CRIMINAL PROCEDURE – trial – case management – evidence – admissibility – s 18(5) Surveillance Devices Act 2004 (Cth) CRIMINAL PROCEDURE – warrants – surveillance warrants – proper construction of Surveillance Devices Act 2004 (Cth) CRIMINAL PROCEDURE – warrants – surveillance warrants – whether AFP conduct in executing warrants was authorised

APPEAL – stay – application for stay of garnishee pending appeal – appeal from judgment in Division on appeal from Local Court – respondent seeking to enforce costs orders – garnishee order issued – whether application for leave had reasonable prospects of success – small amount relative to statutory threshold for appeal as of right – no statement of specific grounds – likelihood of success leading to reversal of costs orders – evidence of non-recoverability if payments obtained PRACTICE AND PROCEDURE – subpoenas and notices to produce – application to issue for purposes of appeal – need to show arguable case for adducing further evidence on appeal PRACTICE AND PROCEDURE – appeal – submissions – application for waiver of rule limiting length of summary of argument – straightforward factual case – no basis for lengthy submissions

APPEALS – application for leave to appeal – proposed appeal incompetent – appeal from refusal of earlier application for leave to appeal – appeals limited to appeals from judgments in a Division

APPEALS – procedure – stay pending appeal – argument that appeal will be stultified if enforcement of judgment permitted – stay granted on terms providing reasonable protection to respondent

APPEAL – sentence – applicants convicted at trial of offence of attempting to possess an unlawfully imported border controlled drug (methamphetamine) in a commercial quantity – 81.4 kg of pure methamphetamine – co-offender pleaded guilty to the same charge – whether Chan had legitimate sense of grievance arising from lesser sentence imposed on co-offender – where co-offender’s involvement in offences effectively indistinguishable – where utilitarian discount to co-offender due to guilty plea at commencement of trial – where co-offender had favourable subjective factors – no legitimate sense of grievance – whether error in assessment of Kwan’s objective criminality – whether Kwan had legitimate sense of grievance arising from lesser sentence imposed upon Chan – held that findings of fact concerning objective seriousness of offence and subjective circumstances were open to sentencing Judge – no legitimate sense of grievance – whether applicants’ sentences were manifestly excessive – consideration of other sentencing decisions regarding offences concerning importation of commercial quantities of drugs – sentences imposed were stern but within the reasonable exercise of sentencing discretion having regard to the gravity of the offence – claims of manifest excess rejected – appeals dismissed

APPEAL – appeal against conviction – offences of having sexual intercourse without consent knowing that the complainant was not consenting – whether jury misdirected on effect of substantial intoxication concerning complainant’s capacity to consent – whether jury misdirected concerning consent where issue raised whether complainant had mistaken belief as to identity of the person engaging in sexual intercourse with her - consideration of s.61HA Crimes Act 1900 - comparison with successor provision in s.61HE – Crown concession of error – error established – conviction quashed – retrial ordered

CRIMES - drug proceeds order - legislation is directed to benefits accrued to an individual - no power to make drug proceeds order against multiple defendants based on joint or several liability - remitted to District Court

CRIMINAL LAW – sentence appeal – one count of wounding with intent to cause grievous bodily harm – applicant aged 17 at time of offence – disputed facts hearing – whether judge erred in the assessment of the evidence – whether judge misdirected himself – whether applicant discharged the onus of proof – whether applicant’s symptoms of PTSD played a causative role in the offence – whether judge assessed the applicant’s moral culpability – whether error in judge’s finding that the applicant was not genuinely remorseful – whether sentence was manifestly excessive

CRIMINAL LAW – appeal against sentence – supply prohibited drug – deal with proceeds of crime – participate in criminal group – fresh evidence of health and treatment in custody – applicant 67 year old woman – principle of totality given effect in aggregate sentence imposed – appeal dismissed

SUCCESSION – Contested Probate – Family Provision – Approval of settlement of proceedings

PRACTICE AND PROCEDURE – Whether to grant leave to bring derivative action – Whether to grant leave to amend Originating Process and Statement of Claim.

COSTS – Security for costs – Relevant factors – Two plaintiff companies brought a claim against Cumberland Council and a former councillor, relating to a 2013 construction contract which the Council rescinded – The defendants filed notices of motion seeking security for costs – The plaintiffs did not appear at the hearing of the motions and did not make submissions – Where the plaintiffs are impecunious and where there is no evidence as to the financial position of the director of the plaintiffs – Where the plaintiffs, in their conduct of the litigation, had not complied with orders or notices to produce – Where a substantially similar case brought by the second plaintiff against the Council in 2016 had been dismissed for failure to meet discovery obligations – Held: the plaintiffs to provide security for costs for both defendants and proceedings stayed until security provided. CIVIL PROCEDURE – Commencement of proceedings – Proceedings carried on by corporation – Necessity for solicitor to act or for director to be joined as a plaintiff – The plaintiff companies instituted the proceedings without being represented by a solicitor and their director was not joined as a plaintiff in contravention of UCPR r 7.1 – Held: proceedings stayed until the plaintiffs appoint a solicitor or join their director as a plaintiff.

CIVIL PROCEDURE – application to set aside notices to produce – whether legitimate forensic purpose – no question of principle

CIVIL PROCEDURE – Adjournment – Where defendant removed solicitors shortly before hearing of application for summary judgment – No just basis for adjournment established - Application refused Summary judgment – Uniform Procedure Rules 2005 (NSW) r 13.1 – Where defendant failed to repay a loan or any interest agreed under a binding deed – Claimed misappropriation of loaned funds does not raise a triable issue – Summary judgment entered

CIVIL PROCEDURE – where plaintiff seriously injured on water slide – where plaintiff seeking production of engineering report – objection to production – client legal privilege – whether document created for dominant purpose of legal advice

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 – Whether the delegate’s decision revealed jurisdictional error- Whether delegate failed to respond to substantial and clearly articulated argument resulting in a constructive failure to exercise jurisdiction – No obligation for Registrar to provide reasons - Review of decision of Appeal Panel – Whether Appeal Panel failed to determine whether approved medical specialist had erred before determining to assess the appellant – Whether Appeal Panel failed to give reasons – Whether Appeal Panel fell into jurisdictional error – Whether Appeal Panel failed to respond to substantial and clearly articulated argument resulting in a constructive failure to exercise jurisdiction – Application dismissed

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

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payments Act 1999 (NSW) – adjudication – final relief – where error found in failing to form a view as to what was properly payable in respect of one variation – whether determination should be quashed – whether error sufficiently material to be properly characterised as a jurisdictional error – held determination not infected by jurisdictional error

CIVIL PROCEDURE – Application to set aside or vary judgment – Application to reopen on the ground that the Court proceeded on misapprehension of fact – Where certain issues not addressed in final submissions – Where relevant evidence emerged during the course of the hearing or after trial – Where affidavit read in the course of interlocutory proceedings but not at trial EQUITY – Tracing – Application of the rule in Re Hallett’s Estate, Knatchbull v Hallett (1880) 13 Ch D 696 – Where correct application of the rule requires analysis of payments in and out of a trust rather than analysis of individual assets held by the trust

CONTRACTS – formation – intention to create legal relations – uncertainty and incompleteness – owners of three contiguous parcels of land dealt with development group in relation to proposed sale of land for redevelopment – where put and call option deeds entered into – where one owner entered into separate deed for the purchase back of five developed lots – where agreement reached on various matters between parties’ agents at later meeting– whether intention to create legal relations at later meeting – whether terms of agreement at meeting were void for uncertainty and incompleteness CONTRACTS – formation – whether deed which provided for purchase back of five lots abandoned by parties – whether purchaser entitled to damages for breach of deed – where primary judge left undetermined possible basis for finding damages for breach of deed – damages claim remitted for the determination

CIVIL PROCEDURE — Parties — Vexatious litigants – Vexatious Proceedings Act 2008 (NSW) – s 6 – meaning of “vexatious proceedings” – s 8(1) – meaning of “frequently instituted or conducted vexatious proceedings” – assessment of frequency CIVIL PROCEDURE — Parties — Vexatious litigants – exercise of discretion – balance between access to the processes of the law and restraint of unwarranted exercise of that access CIVIL PROCEDURE — Hearings — Procedural fairness – expansion of orders as compared to those sought – making an order in terms not foreshadowed during or after the hearing – no opportunity for parties to be heard

PRACTICE AND PROCEDURE – recusal application – reasonable apprehension of bias – appeal from vexatious proceedings order – presiding judge having sat on prior appeal and leave application characterised as vexatious – reliance on transcript – other member of the earlier court dismissive of applicant’s case

CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant had pleaded guilty to an offence of supplying not less than the large commercial quantity of a prohibited drug – Where applicant aged 21 at the time of the offending – Where sentencing judge erroneously stated that the applicant was aged 23 at the time of the offending – Where erroneously found that the applicant was on bail at the time of his offending and regarded that as an aggravating factor – Error established – Applicant re-sentenced

CRIME — Appeals — Appeal against sentence – applicant sentenced in relation to one count of assault with act of indecency on a person aged under 16 years – s 61M(2) Crimes Act – whether sentencing judge erred in finding that offence was “slightly below the middle of the range” of objective seriousness – whether sentencing judge erred in finding that the applicant had an “abnormal sexual disorder which has not abated” – previous sexual offence 29 years earlier – no sexual offending since – where no medical evidence adduced in relation to sexual disorder – whether sentence manifestly excessive – leave to appeal against sentence granted, applicant resentenced

CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant pleaded guilty to encouraging the commission of an offence of intentionally causing a fire – Where applicant was a retained firefighter – Whether the sentencing judge erred in taking into account that position in assessing the applicant’s moral culpability – Whether the sentencing judge erred in his assessment of the level of the applicant’s remorse – Whether the sentencing judge erred in his assessment of the discount for the plea of guilty and assistance – Whether the sentencing judge erred in failing to take into account the applicant’s mental state – Whether the sentencing judge erred in the manner in which he dealt with identical offences on a Form 1 – Whether sentence manifestly excessive – Where some of the issues which were sought to be raised on appeal were at odds with concessions which were made in the Court below – No error established – No merit in any ground of appeal sought to be advanced – Leave to appeal refused

EVIDENCE – Admissibility – Where accused pleaded not guilty to murder – No issue that the accused stabbed the deceased – No issue that the deceased died from the stabbing – Where sole issue was whether the accused acted in defence of his father – Where Crown sought to lead evidence of observations of the accused in the hours prior to the murder holding a knife and a rifle – Whether that evidence was relevant – Whether the actions of the accused in those respects constituted a part of a series of connected events including the deceased’s murder – Whether the actions of the accused were relevant on the basis that they were evidence of his state of mind – Application of so-called “O’Leary principle” – Evidence not relevant – Evidence excluded

CORPORATIONS - oppression - share issue by first defendant with effect of diluting plaintiff from 70% to 15% shareholder - share issue made 2 days before company obliged to make $3m payment to lender – lender’s security included charge over all shares in the plaintiff - evidence that no money received for shares - absence of any explanation for dilution - one director of first defendant resident in Australia - Australian director did not oppose relief - remaining defendants residents of China - two of three Chinese directors appeared, retained solicitors and counsel, and advised plaintiff and the Court that they consented to orders sought - less than 24 hours before hearing, Chinese directors terminated authority of their solicitors - Chinese directors did not appear at hearing - finding that share issue was oppressive - orders setting aside share issue and removing directors made

ADMINISTRATIVE LAW — Error of law on the face of the record — Right to reasons — Motor Accidents Compensation Act 1999 (NSW) — Whether Review Panel failed to set out sufficient reasons with respect to causation and pre-existing impairment ADMINISTRATIVE LAW — Procedural fairness — Failure to respond to substantial and clearly articulated argument — Where plaintiff argued that first defendant had a pre-existing injury — Whether Review Panel failed to engage with plaintiff's argument ADMINISTRATIVE LAW — Jurisdictional error — Whether Review Panel failed to apply Guidelines in determining causation

PRACTICE AND PROCEDURE – Practice Note SC Eq 3 – Uniform Civil Procedure Rules 2005 (NSW) r 15.4 – Commercial List – Requirements for a Commercial List Statement – Requirements to be met when alleging fraud or other serious misconduct – Where claim arises out of a transaction more than 30 years ago and which was the subject of a settlement and comprehensive deed of release – Where no relief is sought setting aside the deed – HELD – Commercial List Statement is embarrassing and does not comply with basic requirements and is to be struck out in its entirety.

CORPORATIONS – winding up – where company in liquidation – “shelf” orders – application by liquidator for an extension of time to bring voidable transactions claims – Corporations Act 2001 (Cth) s 588FF – where no defendant or impugned transaction specified in application – whether extension of time would deny procedural fairness to persons potentially affected – whether 18 month extension justified – extension granted for seven months

CIVIL PROCEDURE – discovery – Practice Note SC Eq 11 – whether documents sought are relevant to the resolution of real issues in the proceedings – whether categories are unnecessarily oppressive – whether orders for discovery will unjustifiably delay proceedings – categories held to have at best tangential relevance – documents sought in relation to defence under s 133A of Conveyancing Act 1919 (NSW) not relevant where s 133A is not pleaded – held that limited potential relevance of documents sought does not warrant likely incursion of significant costs – delay likely to incur held to be inconsistent with just quick and cheap facilitation of proceedings – orders for discovery refused.

CIVIL PROCEDURE — Pleadings — Amendment - Form and content of pleading - s 5B of the Civil Liability Act 2002 – whether the duty of care as pleaded is too broad – knowledge of risk of harm – actual or constructed knowledge - whether the amended Statement of Claim properly articulates the risk of harm – vicarious liability of the Crown – pleading fails to engage with relevant legal requirements - leave to file amended Statement of Claim refused

CRIMINAL LAW – sentence – verdict of guilty of murder after judge alone trial – substantial impairment not established – fatal domestic violence – unplanned and frenzied stabbing – intention to kill – contravention of interim AVO imposed on morning of killing – previous threats of violence if deceased refused to terminate new romantic relationship – primary motives of jealousy and anger – brain damage caused by chronic alcoholism – acceptance of brain damage, mood disorder, and loss of control as contributing to offence – minimal criminal record – sentence imposed

PRACTICE AND PROCEDURE – leave to appeal – failure to address defence – absence of factual findings supporting defence – whether issue of principle raised – whether defence more than merely arguable TORTS – duty to warn – immunity from liability if risk “obvious” – whether immunity limited to verbal risk warnings – application of Civil Liability Act 2002 (NSW), ss 5F, 5H

CIVIL PROCEDURE — leave to appeal – where proposed appeal turns upon findings of fact – where findings based on primary judge’s assessment of credibility – no issue of principle or question of public importance – leave refused