Cases and authorities

BUILDING AND CONSTRUCTION — Negligence — Miscellaneous forms of negligent conduct — Right of support — Application of Conveyancing Act 1919 (NSW) s 177 and common law — Whether loss of support caused damage to adjoining property. TORTS — Negligence — Essentials of action for negligence — Whether there was a failure to take reasonable care — Whether any failure caused damage — Assessment of expert evidence. TORTS — Negligence — Proof of negligence — Res ipsa loquitur.

CRIMINAL LAW – sentence appeal – solicit to murder – whether error in the judge’s assessment of the objective seriousness of the offence – whether the offence could fall within the mid-range of objective seriousness when no positive finding was made that he was the instigator – whether applicant’s role in the planning of the offence was limited – whether sentence manifestly excessive – consideration of other cases

CRIME – Crown appeal against sentence – where asserted manifest inadequacy – shoot with intent to murder – Crimes Act 1900 (NSW) s 29 – where primary judge found offence was within high range of objective seriousness – where victim suffered catastrophic and permanent injury – where offender’s subjective circumstances generally not positive – residual discretion – offender re-sentenced

CIVIL PROCEDURE — Subpoenas — Application to set aside – application to set aside subpoena issued to the previous lawyers for the plaintiff concerning disclosure of documents to the media – whether the subpoena had a legitimate forensic purpose – subpoena found to go to the credit and credibility of the plaintiff – motion to set aside dismissed

CRIME – appeal and review –application under Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 –application relating to District Court judgment on appeal from Local Court – coexisting judicial review proceedings – power to defer under s 79(3A) - deferral pending resolution of judicial review proceedings PRACTICE AND PROCEDURE – crime – appeal and review – powers of Supreme Court under Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 – application for inquiry by summons – inquiry non-judicial in nature – summons dismissed but content of summons treated as application for inquiry

JUDICIAL ADVICE — Application by receiver LIMITATION OF ACTIONS — Operation of bar — Debt

SUCCESSION — Contested probate — Testamentary capacity — where it is clear that the deceased had formed his own view about his testamentary arrangements — where the deceased understood the extent of the property of which he was disposing — where the deceased was able to comprehend and appreciate the claims to which he ought to give effect — where, although the deceased sustained a devastating brain injury as a teenager, the deceased did not lack testamentary capacity in the Banks v Goodfellow sense

CONTRACTS – Construction – Interpretation – expert determination clause – NSW General Conditions of Contract (GC21), cl 71.8 – whether expert determination is final and binding – whether determination requires a party to pay to the other an amount that exceeds contractual threshold, without having regard to amounts paid under the Building and Construction Industry Security of Payment Act 1999 (NSW) – meaning of “the determination” and “requires one party to pay the other an amount” – expert determination final and binding CIVIL PROCEDURE — Summary disposal — whether defendant should obtain summary judgment – whether claims should be dismissed or struck out – where defendant did not file a list response or cross claim – proceedings dismissed

COSTS - final hearing vacated and adjourned – application by defendant for costs thrown away by reason of adjournment – legal principles regarding costs – both parties’ conduct contributed to the vacation and adjournment but plaintiff’s omissions were the principal cause – plaintiff ordered to pay two thirds of defendant’s costs thrown away by the vacation of the hearing date on the ordinary basis DISCOVERY – scope of discovery sought by plaintiff – legal principles regarding discovery – facts in issue involve terms of agreements between plaintiff and defendant, scope of authority of person responsible for entering into those agreements and performance of agreements as well as ratification – issues regarding discovery categories include relevant persons, period of time of discovery and search terms – whether plaintiff’s proposed categories of discovery constitute a fishing expedition or are oppressive or constitute a “chain of inquiry” discovery – defendant ordered to give discovery as sought by plaintiff

JUDGMENTS AND ORDERS – form of orders to give effect to primary judgment JUDGMENTS AND ORDERS – interest on judgments JUDGMENTS AND ORDERS – costs

CIVIL PROCEDURE – application for referral to pro bono legal assistance – where application not opposed – where applicant already referred to legal assistance within previous 3 years – where no prospect that referral will be beneficial or of practical benefit

REAL PROPERTY – caveats – removal of caveats – previous possession proceedings after mortgage default – caveats lodged by defaultors and family members – requirement for a caveatable interest – balance of convenience

CRIMINAL PROCEDURE – evidence - subpoena - dribs and drabs - public interest immunity - informers’ rule - balancing exercise - fossicking in a sea of documents

APPEALS – leave to appeal – interlocutory orders – procedural orders in Equity Division – constraints on applicant’s access to parens patriae jurisdiction – abuses of process – repeated applications to the Court – disregard of procedural requirements APPEALS – leave to appeal – interlocutory orders – interlocutory orders refusing relief in parens patriae jurisdiction – final care orders made in Children’s Court – relief sought would reverse orders made by Children’s Court – separate statutory appeal from Children’s Court orders pending in Equity Division

APPEALS – leave to appeal – orders for possession of real property – family dispute – property owned by father – order for possession obtained against defendant son in occupation – proceedings commenced by defendant’s brother under power of attorney – leave sought to challenge execution of power of attorney – issue not raised below – grounds not addressing correctness of the decision below – orders executed – only payment of costs order outstanding – futility of appeal REAL PROPERTY – orders for possession – family dispute – property owned by father – order for possession obtained against son in occupation – son had been caring for father – possession sought to sell property to pay for nursing home fees – son alleged representation by father that he could remain in occupation during father’s life

DUST DISEASES — Damages — Loss of capacity to provide gratuitous domestic services to a dependant — where level of services needed by dependant increased after the time liability arose — whether damages capped by reference to the level of services being provided at that time — proper construction of s 15B of the Civil Liability Act 2002 (NSW) DUST DISEASES — Damages — Lost years — where primary judge satisfied that, but for the impact of his mesothelioma, the claimant (now deceased) would have continued to provide gratuitous domestic services to the dependant until the dependant’s death — whether damages under s 15B can be awarded for “the lost years”

CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – when questions submitted after primary judge had delivered reasons finding prosecutor had failed to establish two elements of offence charged – whether de facto appeal – whether proceedings before District Court in exercise of its summary jurisdiction had been completed prior to submission of questions – whether previous decisions of Court of Appeal and Court of Criminal Appeal should be overturned – whether questions submitted on a case stated were questions of law within the meaning of s 5AE of the Criminal Appeal Act 1912 (NSW) – meaning of questions of law.

CRIMINAL LAW – Sentencing – Appeal against sentence – Multiple federal and state offences – Finding of special circumstances in relation to the aggregate sentence for the state offences – Accumulation of federal and state sentences – Whether finding of special circumstances given practical effect in the sentence structure after accumulation – Appeal against sentences allowed and sentences quashed – Applicant resentenced

APPEAL – application for leave to appeal against conviction – Judge-alone trial – whether verdicts are unreasonable and/or cannot be supported having regard to the evidence – offences of aggravated break and enter and commit serious indictable offence (armed robbery) and detaining a person with intent to obtain an advantage whilst in company – group of five offenders forced entry into the Casino Golf Club with weapons and detained two employees – offenders wore gloves and various forms of clothing to cover their heads and faces – stolen phone and discarded items of clothing and shoes later found in a nearby paddock – sole issue at trial whether applicant was one of the robbers – applicant’s DNA found on nine items of discarded clothing – expert evidence regarding DNA given at trial – where Crown case against the applicant at trial was circumstantial – whether there was reasonable hypothesis consistent with innocence concerning presence of applicant’s DNA on nine items of clothing – held that alternative hypotheses did not rise above speculation or conjecture – held it was open to trial Judge to find that the only reasonable explanation for the presence of the applicant’s DNA on the nine items of clothing was that he was one of the robbers – leave to appeal against conviction granted – appeal against conviction dismissed

APPEAL – application for extension of time to appeal against sentence – grooming, child pornography, child abuse material and related offences under Commonwealth and State laws – applicant was a registrable person under Child Protection (Offenders Registration) Act 2000 – cybersex offences involving 14 year old victim – applicant sentenced in 2017 before decision in Xiao v R – ground of appeal asserting failure to have regard to utilitarian value of pleas of guilty for Commonwealth offences – Crown concession that appeal should be allowed – assessment of quantified discount for pleas of guilty under s.16A(2)(g) Crimes Act 1914 (Cth) – objective gravity of offences – importance of general deterrence and denunciation on sentence for grooming and child pornography offences – application of quantified discount for pleas of guilty results in small reduction in sentence – application for extension of time granted – applicant re-sentenced

CRIME - appeals - appeal against sentence - wound with intent to cause grievous bodily harm - mentally ill offender - where offender stabbed father multiple times whilst experiencing extreme paranoia and delusion - where offender lacked insight into his mental condition and was noncompliant with his treatment regime - whether sentence manifestly inadequate - where sentencing judge failed to take into account the protection of the community - where offender’s failure to treat his illness posed a significant and ongoing risk - where offender required longer supervision – where non-parole period had expired – whether residual discretion should be exercised to dismiss appeal - sentence quashed – sentence increased without changing the non-parole period

CRIMINAL LAW – evidence – admissibility – admissibility of statements made by the accused during police interview – application to exclude the entirety of the Electronically Recorded Interview of a Suspected Person – cautions – requirements of s 139(1)(c) – evidence improperly obtained pursuant to s 138(1)(a) of the Evidence Act – exclusion of improperly obtained evidence – discretionary factors – non-exhaustive matters in s 138(3) – desirability of admitting evidence outweighs undesirability of admitting evidence – application dismissed

LAND LAW – Possession of land – Default on mortgages – Whether defence or proposed amended defence and proposed amended cross claim disclosed a reasonable defence to claim for possession – Mortgagee entitled to possession – Leave granted to issue writs of possession CIVIL PROCEDURE – Striking out of pleadings – Whether defence disclosed a reasonable defence to claim for possession – Defence struck out CIVIL PROCEDURE – Summary dismissal – Whether any matters pleaded or proposed to be pleaded by the defendants constituted an arguable defence to the claim for possession – Summary judgment ordered

CONTRACTS — Remedies — Damages – Plaintiff had established liability of Defendants for breach of contract, misleading and deceptive conduct and unconscionable conduct in respect of a transaction by which the Plaintiff lent approximately $6M to a borrower who defaulted. Plaintiff had led evidence in support of a claim for loss of use of the money lent in addition to the loss of the capital. The Court had held that the Plaintiff could recover the lost profit on a commercial real estate in which the Plaintiff’s evidence was that it would have invested but could not recover both that lost real estate profit and interest pursuant to s 100 of the CPA: see [2020] NSWSC 1146. Plaintiff sought to obtain a judgment based on s 100 interest and the loss of capital rather than the loss of the real estate profit and loss of capital. The Defendants contended that the Plaintiff could not obtain interest pursuant to s 100. The interest pursuant to s 100 claimed was significantly higher than the loss of real estate profit – HELD: because the Plaintiff had by its evidence established what it would have done had the impugned transaction not gone ahead and what that would have yielded, s 100 interest could not be awarded or alternatively as a matter of discretion should not be awarded.

INSURANCE — Life insurance — Accident and sickness — total and permanent disablement — where the second defendant had rejected the claim of the plaintiff on numerous occasions — where, on the proper construction of the Policy, the inability to do any work as a result of Injury or Illness for six consecutive months only relates to periods of six consecutive months that commence at the end of a six month period that satisfies the relevant work requirements — where, on the proper construction of the Policy, the direct cause of the contract of employment being terminated was immaterial — where the second defendant acted on an incorrect construction of the Policy in the third and fourth rejections — where the process of reasoning adopted by the second defendant was not reasonable with respect to the third and fourth rejections

MORTGAGES AND SECURITIES – charges – plaintiff enters into trading agreement with company of which defendant is sole director – agreement provides for company and guarantors to charge their interests in real property to secure payments due under agreement – agreement executed by defendant – whether defendant executed only on behalf of company or also as a guarantor – defendant held to have executed for company and also personally as a guarantor – charge granted by defendant in favour of plaintiff

FAMILY AND CHILD WELFARE – parens patriae jurisdiction – Aboriginal young person under the parental responsibility of the Minister for all aspects except culture and religion – where orders previously made authorising medical treatment and confinement of the young person for the purposes of undertaking that treatment – where orders previously made prohibiting the disclosure or publication of the location of the young person – where young person’s mother now aware of location of the young person – where young person seeks contact with mother whilst in confinement – whether it is appropriate to continue orders previously made for medical treatment and confinement of the young person – whether it is appropriate for orders to be made which facilitate contact between the young person and her mother

BUILDING AND CONSTRUCTION – determination under the Building and Construction Industry Security of Payment Act 1999 – whether adjudicator acted beyond jurisdiction – whether adjudicator denied plaintiffs procedural fairness by deciding claim in favour of first defendant on basis not advanced by either party – whether adjudicator failed to consider relevant matters

CIVIL PROCEDURE - interrogatories - application for leave to administer interrogatories - where plaintiff is seeking judicial review of two decisions of the Industrial Relations Commission upholding his removal from the police force by the Commissioner of Police - where plaintiff claims proceedings were tainted due to his legal representatives being affected by a conflict of interest - where no evidence to support allegations - where interrogatories amount to fishing - notice of motion dismissed.

CRIMINAL LAW – special hearing – single count of murder and two counts of arson – accused chronically and severely mentally ill – circumstantial case – transactional evidence – powerful case against the accused – exclusion of alternative hypotheses beyond reasonable doubt – proof of physical elements only of offences in light of the defence of mental illness having been raised – unanimous position of forensic psychiatrists and parties as to appropriate verdicts if physical elements established – verdicts of not guilty on the ground of mental illness returned

APPEAL – application for leave to appeal against conviction and sentence – domestic violence offences and making false accusation offence committed in 2016 – applicant pleaded guilty to certain offences in District Court after commencement of jury trial – Crown agreed not to proceed further on counts alleging offences of having sexual intercourse without consent – applicant gave signed instructions to his legal representatives to plead guilty – applicant wrote letter of apology tendered on sentence – principles to be applied on appeal against conviction involving application to withdraw pleas of guilty – whether there has been a miscarriage of justice – evidence given by applicant and applicant’s former legal representatives at hearing in Court of Criminal Appeal – applicant’s pleas of guilty entered freely and voluntarily and with full knowledge of elements of offences – no miscarriage of justice – leave to appeal against conviction refused – application for leave to appeal against sentence – whether applicant’s legal representation in sentencing court was incompetent – where reasonable steps were taken by applicant’s legal representatives to advise him of available courses of action – 2008 medical report not available at time of sentence – 2008 report placed before Court of Criminal Appeal – no nexus demonstrated between 2008 report and commission of the domestic violence and public justice offences in 2016 – whether aggregate sentence imposed was manifestly excessive – objective gravity of domestic violence and public justice offences – specific and general deterrence and recognition of harm important factors on sentence for domestic violence offences – aggregate sentence was not manifestly excessive – leave to appeal against sentence granted – appeal against sentence dismissed

CIVIL PROCEDURE — Pleadings — Striking out — Abuse of process — No reasonable cause of action or defence — Tendency to cause prejudice, embarrassment or delay — Where forensic decision made to limit the scope of the allegations CIVIL PROCEDURE — Separate determination of questions — Where appropriate — Where parties have previously had heard as separate questions

CIVIL PROCEDURE — Representative proceedings — Conduct of proceedings — Group members — Opting out — Distribution of opt out notices and related matters CIVIL PROCEDURE — Representative proceedings — Conduct of proceedings — Whether representative plaintiff in duplicative stayed proceeding should be provided access to documents and related matters

EQUITY — Equitable remedies — Relief against forfeiture — Leases — where it was found that the plaintiff was entitled to relief against forfeiture — whether the Court should make any orders concerning compliance with the COVID-19 regime — where the Court does not have jurisdiction to make orders varying the terms of commercial leases that are subject to the COVID-19 regime — where there are various considerations under the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) and the leasing principles of the National Code of Conduct — where the Court has a discretion to impose conditions regarding the reinstatement of a bank guarantee — where the Court is required to estimate the outcome of a good faith rent renegotiation

COSTS — Party/Party — Bases of quantification — Indemnity basis — Gross sum costs order — Sufficiency of evidence to enable fair determination — No issue of principle

CONTRACTS – sale of goods – whether first defendant entered contract as agent for a Chinese corporation – whether second and third defendants only guaranteed first defendant’s obligations in that capacity AGENCY – whether first defendant entered contract for sale of goods with plaintiff as disclosed agent for a Chinese corporation

ADMINISTRATIVE LAW – Judicial review – Health Care Complaints Act 1993 (NSW) – Registered health practitioner – Whether the decision maker was affected by apprehended bias – Whether the Commission failed to consult the relevant professional council under s 39(2) before making a prohibition order under s 41A – Where the complaint against the health practitioner concerned conduct outside the field of his registration – Application dismissed

CRIMINAL LAW – evidence - “I love me guns” - tendency evidence - where accused charged with supplying firearms - whether evidence of a love of guns has significant probative value as tendency evidence - possession of three firearms two weeks after alleged offences - evidence admissible CRIMINAL LAW - evidence – “cute miniature cowboy gun” - tendency evidence - where informant witness to substantive events also gives tendency evidence - assessment of probative value - evidence not admissible CRIMINAL LAW - evidence - tendency evidence - single text messages proposing trade of guns for debt or drugs - probative value - potential prejudice - evidence not admissible

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Neither party entirely successful — Determination where one party more successful than the other.

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — Where funds contributed to purchase of property — Whether primary judge erred in finding that presumption of resulting trust not rebutted LANDLORD AND TENANT — Agreements for lease — Creation — Where final page of residential tenancy agreement signed — Where dispute as to whether signature genuine — Whether primary judge erred in not being satisfied that any agreement giving rise to residential tenancy COSTS — Party/Party — Exercise of discretion — Whether discrete and separable issues justifying departure from order that costs follow event

PRACTICE AND PROCEDURE – whether notice of appeal incompetent – UCPR, r 51.41 – where appeal from final orders and earlier interlocutory decisions – whether leave to appeal required in relation to interlocutory orders PRACTICE AND PROCEDURE – application to set aside decision of Registrar refusing leave to issue subpoenas on appeal – review of Registrar’s decision under UCPR r 49.19 – whether subpoenas have legitimate forensic purpose

VOLUNTARY ASSOCIATIONS — Membership — Construction of rules of incorporated association — Original rules drafted with two provisions relating to membership — Subsequent amendments combining those provisions — Whether provisions constitute cumulative requirements for membership or alternative pathways to membership. VOLUNTARY ASSOCIATIONS — Unincorporated and incorporated associations — Effect of incorporation — Relationship between unincorporated and incorporated associations — Complex affiliation of incorporated and unincorporated associations on local, state and national levels — Whether unincorporated associations formed numerous independent entities or represented subordinate units constituting a single national entity — Incorporation of a unit that was subordinate to an unincorporated association. CORPORATIONS — General meeting — Irregularities — Corporations Act s 1322 as applied to incorporated association — Invalidity of resolution adopting constitution — Certain participants in meeting not members under rules of incorporated association — Invalidity of subsequent resolutions made under new constitution.

APPEAL - sentence - applicant pleaded guilty to sexual offences committed against his daughter - aggregate sentence of imprisonment for eight years and six months with non-parole period of five years and six months - grounds of appeal asserting that insufficient weight given on sentence to various factors and sufficient regard not paid to other factors - no claim that sentence manifestly excessive - approach to appeal involving challenges to weight given to factors on sentence - error not demonstrated - appeal dismissed

CRIMINAL LAW – sentence appeal – offences of using a carriage service to transmit child pornographic material and to procure a person under 16 years of age for sexual activity – one offence of possess child abuse material – sentence of 4 years with non-parole period of 2 years and 4 months – whether sentence manifestly excessive – whether error in assessment of objective seriousness – limitations on use of comparable cases to establish manifest excess – no error in assessment of objective seriousness – appeal dismissed.

CORPORATIONS – liquidation – special leave to distribute surplus – s 488(2), Corporations Act 2001 (Cth) – creditors paid – $8.7 million surplus – shareholder owes $1.8 million to company – shareholder later became bankrupt – application of rule in Cherry v Boultbee

CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment - whether amendments should be allowed to statement of claim where final hearing date is imminent EVIDENCE — Hearsay — Exceptions – s63 Evidence Act – whether plaintiff should have leave to serve at a late stage evidentiary statements establishing that the plaintiffs did not recall certain things for the purpose of s63

PRACTICE AND PROCEDURE – pleadings – leave to amend List Response

LAND LAW – leases – parties enter into lease pursuant to Retail Leases Act 1994 (NSW) (“the Act”) – parties agree to extend tenancy by entering into a Deed of Retail Licence – despite its terms, Deed of Retail Licence held to be a “retail shop lease” and hence subject to the Act – whether term of lease extended by operation of s 44 of the Act – held that lessor failed to give notice under s 44(1) within specified period – whether lessor later gave notification as required by s 44 – held that such notification was given on 14 February 2020 – whether lessee made written request for an extension of term pursuant to s 44(3) – held that such a request was made on 11 February 2020 – term of lease extended to 14 August 2020 – whether term could be further extended pursuant to cl 9 of Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) and leasing principles of National Code of Conduct – held that even if cl 9 applied, the leasing principles of the Code were not relevant to the question concerning the operation of s 44 of the Act

CORPORATIONS – Statutory demand – Application to set aside statutory demand on the basis of offsetting claim – offsetting claims subject of Federal Court proceedings – dispute as to construction of licence agreement – accessorial liability under Australian Consumer Law – reliance on pleadings in other proceedings – plausible contentions in respect of both offsetting claims – demand set aside

COSTS – Multi-party contest – No issue of principle. PROCEDURE – Damages case transferred to the Court from the NSW Civil and Administrative Tribunal (NCAT) because the first defendant argued that the proceedings had been compromised and that question was beyond NCAT’s jurisdiction – After transfer, the plaintiffs joined their lawyers claiming damages – The Court determined that the proceedings had not been compromised and dismissed the claim against the lawyers – Proceedings remitted to NCAT.