Cases and authorities

ADMINISTRATIVE LAW – Judicial review – Uniform Civil Procedure Rules 2005 (NSW) r 49.19 – Review of Registrar’s decision not to transfer proceedings from the District Court to Supreme Court

CRIMINAL LAW – sentence – murder – plea of guilty – premeditated – intent to kill – aggravated by disposal of the body – manner of death and motive not disclosed.

CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — Cy-près scheme — Charitable purpose — Original purposes have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust

CIVIL PROCEDURE – summary disposal - application for summary judgment – judgment for plaintiff – no defence COSTS – application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) – where cost order made

CIVIL PROCEDURE – where plaintiff injured in motor vehicle accident – where determination made that injury not caused by accident – where application made by plaintiff for judicial review of decision to refuse further medical assessment – s 62 and s 63 of Motor Accidents Compensation Act 1999 – whether medical opinions could only have a material effect on the outcome of the previous assessment if there was also new information – where legislation misconstrued – where error in decision – where proper test is whether material capable of having a material effect on outcome of previous assessment

HIGH RISK OFFENDERS — Continuing detention orders — Preliminary hearing — Appointment of psychiatrists or psychologists — Where defendant soon to be sentenced for further offences — Relevance of prospective sentence to further period of imprisonment in respect of power to make continuing detention order WORDS AND PHRASES — “total sentence” — Crimes (High Risk Offenders) Act 2006 (NSW), s 13B(3)(a)

CIVIL PROCEDURE – subpoenas – to produce documents or things – application for freezing order – bank records concerning proceeds of sale of defendant’s real estate – fishing expedition CIVIL PROCEDURE – interim preservation – freezing orders – defendant sells real estate during prolonged litigation – defendant a natural person resident in Australia – insufficient risk of dissipation – costs – whether separate from general costs of proceedings – second unsuccessful application – order for payment of fixed sum on account

CRIME – appeals – appeal against sentence – failure to take into account utilitarian value of guilty plea – no lesser sentence warranted – application for leave filed out of time

CRIME – appeals – appeal against sentence – manifest excess – aggravated dangerous driving occasioning death conviction – extension of time –objective seriousness of the offence above mid-range – subjective features not out of ordinary or substantial – comparative cases – JIRS statistics

CRIME – appeals – appeal against sentence – drug offences – supply not less than large commercial quantity of methyl amphetamine – whether sentencing judge erred by double counting factors of aggravation – whether sentencing judge erred in failing to make findings as to remorse and prospects of rehabilitation – failure sufficiently to state reasons – no lesser sentence warranted – appeal dismissed

CRIME – appeals – appeal against sentence – drug offences – supply not less than large commercial quantity of methyl amphetamine – whether sentencing judge erred by double counting factors of aggravation – whether sentencing judge erred in failing to make a finding as to remorse – no lesser sentence warranted – whether sentence lacked parity with sentence of co-offender – appeal dismissed

CRIME – Terrorism offences – Possessing things connected with a terrorist act – Possessing revolver – Reckless as to connection of the thing to the preparation for a terrorist act CRIME – Firearms offences – Supply loaded revolver to person who is not authorised to possess the pistol by a licence or permit. CRIME – Appeals – Appeal against sentence – Whether miscarriage of justice by admission of Exhibit in the absence of an annexure to that statement CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in finding sympathetic towards Islamic State and motivated to commit the offences because of such sympathy CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in finding that disclosed to applicant that revolver was to be used for the purposes of a terrorist attack CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in sentencing applicant on basis that he knew revolver was to be used to shoot a person CRIME – Appeals – Appeal against sentence – Multiple offences - Degree of accumulation between offences CRIME – Appeals – Appeal against sentence – Manifest excess

CRIME – appeal and review – application to withdraw plea of guilty – whether integrity of plea challenged – where applicant anticipated lesser sentence CRIME – sentence – objective seriousness – revision or reformulation of the case presented below CRIME – sentence – commencement date for sentence – whether House v The King error established

MENTAL HEALTH – criminal proceedings – fitness to be tried – Presser principles – agreement of parties and experts – accused unfit to be tried

CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court — Whether Supreme Court of Victoria “more appropriate” having regard to the interests of justice — Where civil proceedings already commenced in Victoria — Where criminal proceedings also on foot in Korea — Case management considerations — Need to maintain party’s right to silence

CONTRACTS — performance — discharge by performance — payment — sale of real property —prior expenditure on property by purchaser — alleged oral agreement to treat expenditure as deposit — collateral contract — restitution COSTS — party/party — specific court rules in relation to costs — whether proceedings could have been commenced in District Court — claim based on contract for the sale of land — purchaser a property developer — whether a “commercial transaction” — whether to depart from ordinary rule that plaintiff deprived of costs

PRACTICE AND PROCEDURE – injunctions – freezing order – whether plaintiff demonstrated defendant’s conduct in relation to past dealings showed his probity could not be relied on

COSTS – indemnity costs – right under contract – also otherwise payable as more appropriate compensation of plaintiff.

CORPORATIONS — Members’ rights and remedies — Oppression — Winding up on the just and equitable ground — Failure to keep adequate books and records — Where conflicting sets of accounts needed to be reconstructed to ascertain companies’ financial positions — Where nature of significant account entries and transactions still cannot be explained — Where companies’ affairs not conducted for the benefit of the members as a whole. CORPORATIONS — Directors and officers — Directors’ duties — Duty to act in good faith in the best interests of company and for proper purpose — Duty not to use position as director or officer improperly — Directors’ involvement in transactions between a company in which they are a director and a company in which they have financial interests in. EQUITY — Fiduciary duties — Conflict of interest and duty — Informed consent — Directors’ involvement in transactions between a company in which they are a director and a company in which they have financial interests in.

CRIMINAL PROCEDURE – Forensic Procedure – Interim order on minor – permitted without hearing LOCAL COURT – jurisdiction – mistake as to jurisdiction to order interim forensic procedure on child without hearing from the person.

CIVIL PROCEDURE — administrative law — whether plaintiff should be given leave to appeal to amend summons — whether submission made by plaintiff addressing re-examination by approved medical specialist — where submission made by plaintiff — where medical appeal panel failed to consider request for re-examination — failure to consider mandatory consideration — jurisdictional error

STAY – application pending leave to appeal – application before another puisne judge not trial judge or Court of Appeal – stay would serve no purpose as proceedings already otherwise stayed.

CRIME – sentencing – accessory after the fact to murder – offender helped concealed getaway vehicle following public execution – moderate objective seriousness – no real subjective case STATUTORY INTERPRETATION – Crimes (Sentencing Procedure) Act 1999 s 25D(4)(a) – facts and evidence of accessory after charge “substantially the same” as original murder charge

PRACTICE AND PROCEDURE – applications – leave to amend pleadings – application by defendants to amend defences – where proceeding commenced in 2016 – where application made on the first day of the final hearing in 2020 – where no explanation given by the defendants for the delay – where plaintiffs suffer no prejudice by reason of the late application – where proposed amendment does not give rise to application to vacate hearing date – leave granted to the defendants to amend defences

CIVIL PROCEDURE – class action or representative proceedings – separate determination of question of whether on its true construction s 173 of the Civil Procedure Act 2005 (NSW) authorises the making of an order by the Court requiring group members in this matter who have not signed the litigation funding agreement to pay an amount to the funder out of the proceeds of any settlement by way of return on expenditure, commission or other similar remuneration– removal of separate question to the Court of Appeal – whether leave previously granted for the filing of cross-summons seeking removal of separate question to the Court of Appeal should be revoked DECLARATORY RELIEF – whether there is a legal controversy capable of being the subject of declaratory relief between the parties – where there was at least equivocation on the part of the plaintiffs as to whether a common fund order would be sought as some precondition to negotiations during mediation – where plaintiff says it has not had substantial discussions or come to any view as to whether there would be would be any preconditions for settlement – where plaintiff has consented to the dismissal of the interlocutory common fund motion that was on foot

CRIMINAL LAW - evidence - hearsay evidence - whether admission made with authority - co-conspirators rule - section 87 - previous ruling on same evidence in co-accused case - murder - joint criminal enterprise - where co-accused asserts accused was the shooter - shot the wrong guy - where three accused re-enter the premises - whether merely narrative of past events - whether in furtherance of common purpose - objection not taken in 5 week pre-trial hearing - where co-accused made timely and well-articulated objection - accused liable on two legal bases - joint criminal enterprise - principle in the first degree - evidence admissible to prove existence nature and scope of alleged criminal enterprise - evidence not admissible in direct liability case to prove accused the shooter

MONEY CLAIM – loan associated with farming business – two separate deeds – interest payable – personal guarantees – default – defendants indicate that they do not wish appear at the hearing – amounts owed

TORTS – negligence – motor vehicle accident – liability admitted by respondent – primary judge awarded appellant limited damages for out-of-pocket expenses and past care only – whether primary judge erred in rejecting appellant’s evidence – rejection of evidence credit-based and rational – no arguable basis for challenges to primary judgment

EQUITY – Interim relief – no issue of principle – injunction obtained ex parte – whether injunction should be discharged because plaintiff failed to disclose material matters – whether balance of convenience favours the extension of the injunction – injunction extended for three weeks – plaintiff ordered to file evidence in support of its claims

EVIDENCE — Privileges — Client legal privilege — Legal advice and litigation — waiver EVIDENCE — Privileges — Common interest privilege Evidence — Company books and records — s247A of Corporations Act 2001 (Cth) CIVIL PROCEDURE — Subpoenas — To produce documents or things — Privilege and other claims concerning access to produced documents

LAND LAW – contract for the sale of land – validity of Notice to Complete – parties enter into contract upon exercise of call option granted by defendant – plaintiff nominated as purchaser under terms of the call option – defendant sends land tax certificate to plaintiff showing land tax charge – completion does not occur on contractual date for completion – defendant issues Notice to Complete – whether defendant in position to issue Notice to Complete – where plaintiff claims defendant in default of agreement for breach of warranty prescribed under the Conveyancing (Sale of Land) Regulation 2017 – plaintiff further claims that defendant not ready, willing and able to proceed to completion where not in a position to issue clear land tax certificate – held that prescribed warranty did not form part of contract – held that in any event a breach of this kind has no relevant bearing upon obligations to complete – held that defendant was in a position to obtain a clear land tax certificate by the time fixed for completion – Notice to Complete held to be valid LAND LAW – contract for the sale of land – termination – validity of termination – on day fixed for completion parties continue to exchange documents including settlement figures – solicitor for plaintiff requests that clear land tax certificate be provided on completion – solicitor for defendant states that land tax will be paid from settlement proceeds – completion does not occur – defendant issues Notice of Termination – not in dispute that plaintiff not ready, willing and able to complete – whether defendant validly terminated contract – held that defendant not ready, willing and able to complete because not in a position to provide a clear land tax certificate on completion – termination held to be ineffective

COSTS – administrators seek costs order against plaintiffs unsuccessful in restraining second meeting of creditors – no reason to depart from r 42.7 UCPR

TORTS – intentional – assault and battery – false imprisonment – justification for arrest – driving offences – need to identify suspect – claim of preventing fabrication of evidence and repetition of offences – compliance with Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(3)(b), (e) POLICE – use of force – arrest – driving offences – pointing gun at offender – handcuffing offender – conveying to police station – whether force used reasonably necessary – compliance with Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230, 231 DAMAGES – assessment – intentional torts – compensatory damages – aggravated damages – psychological injury – causal connection with arrest – vindication of claimant’s right to liberty and bodily integrity – Civil Liability Act 2002 (NSW) not applied

COSTS – application to vary costs order – distinct applications for leave to appeal against security for costs and third party costs order – application granted

EQUITY – Interlocutory relief – where plaintiff seeks to restrain defendants from operating a gym facility – where plaintiff established a serious question to be tried – whether balance of convenience favours the grant of an injunction – whether damages an adequate remedy – where gym would close and cause hardship to third party gym members, employees and contractors if injunction granted – where risk to plaintiff’s reputation and potential loss of gym’s membership base if injunction refused – where case will proceed to final hearing on liability in four weeks – interlocutory relief as sought refused – interlocutory relief granted for plaintiff to appoint a manager of the gym facility

CRIME – sentencing – CCTV footage – tender of CCTV footage allowed even though where agreed facts

CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters — Damage not suffered at time of entry into original agreement but when future matter fails to come to pass CONTRACTS — Breach of contract — Consequences of breach — Right to damages — Construction of obligation to “do all things necessary and sign all appropriate documentation to” bring about specified result — Promise to achieve that result and not limited to best or reasonable endeavours

CIVIL PROCEDURE – professional negligence – where all parties seeking to amend earlier orders made – replacement timetable sought – new orders made – hearing date confirmed

BUILDING AND CONSTRUCTION – payment claim served by subcontractor on builder under Building and Construction Industry Security of Payment Act 1999 (NSW) – no payment schedule served by builder – alleged agreement between sub-contractor and builder that builder pay amount less than the amount claimed in payment claim in satisfaction of payment claim – where builder then paid agreed amount – whether that agreement void by reason of s 34 of the Act BUILDING AND CONSTRUCTION – whether subcontractor entitled to summary judgment for difference between amount claimed in payment claim and amount paid pursuant to the agreement

PRACTICE AND PROCEDURE – Application for summary dismissal – Uniform Civil Procedure Rules 2005 (NSW) r 14.28 – Whether to strike out paragraphs of defence and cross claim Application for separate determination of questions – r 28.4

REAL PROPERTY – Conveyancing Act 1919 (NSW) s 37A – where real property was sold by the second defendant to the third defendant at an undervalue and proceeds distributed immediately – where transactions were completed soon after the second defendant became aware that the plaintiff was contemplating litigation against it for alleged building defects – whether alienations were made with intent to defraud creditors – HELD – the alienations were made with intent to defraud the plaintiff as a creditor.

CRIMINAL LAW - evidence - leave to cross-examine prosecution’s own witness - whether evidence unfavourable to the prosecution - whether prior inconsistent statement - relevant considerations - leave granted but limited to particular evidence and inconsistent statements

CORPORATIONS — Voluntary administration — Deed of company arrangement — Leave pursuant to s 444E to proceed with proceedings against company

CIVIL PROCEDURE – application to vacate hearing date

CRIMINAL LAW – sentence appeal – aggregate sentence – offenders charged with different crimes – whether parity principle applies to indicative sentences for large commercial quantity supply offence – understandable sense of grievance – whether co-offender’s indicative sentence manifestly inadequate – whether applicant had a legitimate sense of grievance

SUCCESSION — Family provision — Claim by adult child for provision from deceased father’s estate

CRIMINAL LAW - evidence - unfavourable witness - whether leave should be granted to cross-examine - whether prior inconsistent statement - where earlier application granted on limited basis - whether leave should be granted to allow Prosecutor to put motive to witness - alleged motive to assist the accused - application granted

COSTS – gross sum costs order – s.98(4)(c) Civil Procedure Act 2005 – plaintiff seeks order following attempts to enforce judgment and garnishee orders – legal fees and disbursements reasonable and proportionate – discounted to reflect costs order in principal judgment made on a party and party basis

COSTS – derivative action – liquidators appointed to company – plaintiff seeks dismissal with no order as to costs on basis of Lai Qin – defendant expects liquidators may pursue same cause of action, potentially funded by plaintiff – r 42.20 UCPR applies.

SUCCESSION — Family provision — Approval of release