Cases and authorities

CIVIL PROCEDURE – admissions – r 17.7 of the Uniform Civil Procedure Rules – partial judgment in favour of the plaintiff against the second defendant in the amount of $2.9 million – orders

PRACTICE AND PROCEDURE – applications – leave to amend pleadings – no issue of principle PRACTICE AND PROCEDURE – applications – adjournments – no issue of principle

CRIMINAL PROCEDURE — separate question to be determined before trial — effect of R v Leach [2019] 1 Qd R 459 — determination of form of question

APPEALS — Appeal from NSW Civil and Administrative Tribunal Appeal Panel — application for leave — whether proceedings were required to be dismissed if commenced before Tribunal had power to make order sought APPEALS — costs — special circumstances finding based on erroneous assessment of solicitor’s conduct

SUCCESSION — Contested probate — Testamentary capacity — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect — where there is no reliable testimonial evidence concerning the circumstances in which the deceased made their will — where there is an extreme doubt as to the testamentary capacity of the deceased — where the will was made in a cloud of suspicion — where there was an absolute dissonance between the effect of the will and the long-term and continuing relationship between the deceased and the plaintiff — where, in the circumstances in which the will was made, the testator was not capable of withstanding the pressure imposed by others in order to evaluate the strength of the claims — where the deceased had mild cognitive impairment, real short-term memory deficits and was subject to continual mental and emotional stresses — deceased did not have testamentary capacity SUCCESSION — Contested probate — Knowledge and approval — where the testator wrote out the draft will in her own hand — where, in those circumstances, a finding that the testator did not know and approve of the terms of the will in a relevant sense would not be justified SUCCESSION — Contested probate — Undue influence —where, in the probate jurisdiction, undue influence requires something in the nature of coercion in causing the testator to make the will — where, in the actual circumstances, the testator was in fact vulnerable to having her will overborne by incessant demands — where the evidence suggests that the testator, during conferences with solicitors, appeared to emotionally withdraw from the conference — where constant importuning of an old and weakened person, with compromised testamentary capacity, results in the testator effectively abandoning free agency to escape the demands — where no reason can be found in the evidence that explains the abandonment of the testator’s long-term testamentary intention — where a conclusion of practical coercion should be reached

CRIMINAL LAW – application under Part 7 of the Crimes (Appeal and Review) Act – conviction following a plea of guilty to breach apprehended personal violence order – plea entered in Local Court after receiving legal advice – leave refused to vacate the plea – conviction appeal to District Court dismissed – question of adequacy of legal advice – question of propriety of previous determinations by courts – whether evidence submitted by applicant leads to a doubt or question concerning conviction

PRACTICE AND PROCEDURE – undertakings – compliance and enforcement – where Court permitted the plaintiffs to proffer certain undertakings, failing which the Court would appoint an administrator pendente lite – where plaintiffs proffered those undertakings, including an additional undertaking that was not included in the reasons for judgment – where additional undertaking formulated by defendant and proffered by mistake of the plaintiffs’ legal representatives – where plaintiffs subsequently failed to comply with that additional undertaking – where defendant made further application for appointment of administrator pendente lite based solely on plaintiffs’ failure to comply with additional undertaking – unjust for consequences of the failure to comply with additional undertaking to be visited on plaintiffs PRACTICE AND PROCEDURE – undertakings – application to be released from undertakings – where plaintiffs proffered certain undertaking to the Court by mistake – whether the plaintiffs should be released from undertaking proffered by mistake – plaintiffs released from undertaking

SUCCESSION – executors and administrators – proceedings against executor – dispute between executor and beneficiary – beneficiary commenced proceedings against executor – executor consented to costs order in favour of beneficiary – no judicial advice sought – whether executor entitled to indemnity from estate EQUITY – Re Diplock claim – interim distributions paid by executor to some of the beneficiaries – remaining assets now insufficient to pay all – whether executor entitled to recovery RESTITUTION – mistake – interim distributions paid by executor to some of the beneficiaries – remaining assets now insufficient to pay all – whether executor entitled to recovery

ADMINISTRATIVE LAW – judicial review – whether decision of the State Insurance Regulatory Authority infected by error – where plaintiff seeks an order to set aside the findings made by the Medical Assessor and the subsequent decision by the Proper Officer dismissing the plaintiff’s application for review – where reports of the plaintiff’s independent medico-legal assessor and the Assessor’s findings are at odds – whether Assessor erred in his findings – whether Assessor gave sufficient reasons for their conclusion – whether Assessor engaged with the plaintiff’s clearly articulated case – whether the assessor applied the Motor Accident Permanent Impairment Guidelines – no error disclosed – summons dismissed

CRIMINAL LAW – murder – application by accused for trial by judge alone – opposed by Crown – foreshadowed defences of mental illness, substantial impairment and excessive self-defence – whether substantial impairment will require practical consideration by tribunal of fact – COVID 19 pandemic – pre-trial publicity – difficulties in judicial officer determining central normative element of substantial impairment

JUDICIAL REVIEW – jurisdictional error – District Court allows sentence appeal from full-time custodial sentence imposed by Local Court – whether jurisdictional error in District Court decision – summons filed seven months’ out of time – all save a few days of sentence imposed by District Court already served – no satisfactory explanation for delay – summons dismissed

CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — complaint that sentencing judge failed to properly consider the applicant’s mental health CRIME — appeals — appeal against sentence — misapplication of principle — complaint that sentencing judge failed to appropriately take into account the special circumstances of the applicant — complaint that sentencing judge erred by failing to appropriately vary the statutory ratio in recognition of the special circumstances and the mental health of the applicant

APPEAL – CONVICTION – applicant charged with historic sexual offences in relation to two sibling complainants – applicant formerly in relationship with mother of complainants – for each complainant one count of aggravated indecent assault and other counts of having sexual intercourse with a person under the age of ten years – applicant acquitted of sexual assault charges – applicant convicted of two aggravated indecent assault charges – whether verdicts inconsistent with acquittals – rejected – jury’s verdicts consistent with acceptance of complainants as witnesses of truth but requiring “something additional” before convicting – with one complainant additional factor was series of complaints consistent with charge – with other complainant additional factor was tendency evidence from sibling – whether verdict unreasonable or unsafe – one complainant’s evidence and history of complaints cogent – no reason to doubt conviction – other complainant had poor memory and series of inconsistent complaints – ground upheld in relation to one count – relief – as tendency evidence relied on to support convictions then conviction on remaining count set aside – acquittal on one count – new trial on the other

CRIME – appeals – appeal against sentence – three co-offenders – money laundering offences – whether error in assessment of the utilitarian value of guilty plea – whether sentence offends parity principles – error established – applicants resentenced

CRIMINAL LAW – appeal – appeal against sentence – aid and abet intentional or reckless damage of property by fire – extraordinary set of events – ex-partners of a couple join together to exact revenge by burning property – “dangerous acts to obtain whereabouts of previous respective lovers” – setting parents’ cars on fire – applicant acted on direction of co-offenders – application of discount for guilty plea and assistance – objective seriousness – manifest excess

CRIME – Sentence after trial – charge of wounding with intent to cause grievous bodily harm – application for extension of time – leave to appeal against sentence – traumatic and dysfunctional childhood – mental illness – long term drug addiction – prior record for offences of violence – whether special circumstances should have been found – whether non-parole period should have been reduced – whether sentence is manifestly excessive

CIVIL PROCEDURE – payment out of court – a fund, being the proceeds of sale of certain real property is paid into Court – claim made against the funds in court – property was held by tenants in common is auctioned by a mortgagee in possession – the third applicant for the funds was one of two tenants in common of the auctioned property – the whereabouts of the other tenant in common, who defaulted on the mortgage over the real property is unknown – the third applicant applies for the payment out of Court of $51,958.68, being one half of the amount in Court, being $103,917.35 – the third applicant also makes a claim against the other tenant in common to the balance of the funds in Court. EQUITY –Trusts and trustees — Bare trusts - Trustee Act 1925, s 95 – payment into Court – application to pay funds out of Court under Uniform Civil Procedure Rules 2005, r 55.11 – bank exercises its mortgagee’s power of sale of a property and after deduction of the first mortgage amount pays the balance of the proceeds of sale into Court.

COSTS – Bases of quantification – Whether indemnity costs are appropriate – Whether costs should be payable forthwith – Whether gross sum costs order appropriate

COSTS – departure from the usual rule – where defendants were partly successful in their application to review decision of the registrar to set aside certain subpoenas and notices to produce – where defendants seek a different costs order than that made by the registrar – registrar’s costs order varied

CIVIL PROCEDURE — Time — Extension of time — Summons seeking leave to file a notice of appeal out of time CIVIL PROCEDURE — Notice of motion — Orders sought to restrain conduct that has already occurred

APPEAL – procedure to be followed when primary findings of fact challenged – obligation to comply with UCPR r 51.36(2) in relation to factual challenges – need for precise and accurate references to evidentiary record. APPEAL – standard of appellate review in relation to finding that a contract is unjust or not unjust within the meaning of the Contracts Review Act 1980 (NSW). CONTRACTS – deed of settlement and release relating to claims of alleged historical child sex abuse – where appellant signed deed releasing respondents from any liability in respect of claims – whether litigation needed to be on foot for deed of release to be effective – whether primary judge erred in determination of separate question that the deed extinguished liability of the respondents. CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – whether primary judge erred in not holding that a deed of settlement relating to claims of alleged historic child sex abuse was unjust. EQUITY – unconscionable conduct – special disability or disadvantage – whether primary judge erred in not holding that respondents had taken advantage of a special disadvantage, namely post-traumatic stress disorder.

JUDGMENTS AND ORDERS – reasons – compulsory acquisition of land – assessment of compensation by Land and Environment Court – allegations of constructive failure to exercise jurisdiction and inadequacy of reasons – highly complex discounted cash flow exercise undertaken in protracted hearing – appeal confined to questions of law – minimum acceptable standard of reasons CIVIL PROCEDURE – procedural fairness – judge expressed preference for one expert over another allegedly on the basis of material not in evidence – finding held properly based on evidence CIVIL PROCEDURE – apprehension of bias – apprehension alleged to arise solely from outcome of case and reasons for judgment – impermissible approach LAND LAW – compulsory acquisition of land – compensation for disturbance – s 59(f) Land Acquisition (Just Terms Compensation) Act – meaning of “other financial costs” – no actual use of the land by claimant – agency relationship not established LAND LAW – compulsory acquisition of land – compensation for special value – s 57 Land Acquisition (Just Terms Compensation) Act – failure to establish relevant use – agency relationship not established

APPEALS - appeal from orders imposed by NCAT cancelling solicitor’s practising certificate and preventing issue of a new certificate for 12 months - Law Society appealed seeking order removing solicitor’s name from roll - nature of appeal - whether necessary to show House v The King error LEGAL PRACTITIONERS - solicitors - appropriate orders following findings by NCAT of professional misconduct and unsatisfactory professional conduct - whether solicitor’s name should be removed from the roll - distinction between suspension of practising certificate, cancellation of practising certificate and removal from roll - significance of recommendations as opposed to conditions - whether NCAT failed to specify appropriate conditions to be satisfied before any new practising certificate issued

APPEAL - sentence - applicant pleaded guilty to offences including agreeing to supply large commercial quantity of a prohibited drug (cocaine) contrary to s.25(2) Drug Misuse and Trafficking Act 1985 (“DMT Act”) - applicant supplied substance which was not a prohibited drug - deemed to be prohibited drug under s.40(1) DMT Act - relevant factors on sentence for “drug rip-off” supply offences - “financial gain” as aggravating factor under s.21A(2)(o) Crimes (Sentencing Procedure) Act 1999 - assessment of objective seriousness of offence - error not demonstrated - appeal dismissed

CRIME - appeals against conviction - joint trial of applicants for sexual offences committed against complainant - applicants were uncles of complainant - prosecution did not allege applicants committed offences as part of a joint criminal enterprise - claim on appeal that requirements for joint trial of applicants under s.29(2) Criminal Procedure Act 1986 were not met - whether applicants consented to joint trial under s.29(2)(a) Criminal Procedure Act 1986 - consideration of ss.21 and 29 Criminal Procedure Act 1986 - held that applicants consented to joint trial - whether miscarriage of justice arising from joint trial of applicants - whether trial Judge gave necessary directions to jury - whether miscarriage of justice arising from prosecutor’s closing address - application of Rule 4 Criminal Appeal Rules - leave granted to one applicant (GX) under Rule 4 - claim of unfairness by GX arising from submissions made by prosecutor to jury concerning from cross-examination of FX where propositions not put to GX in cross-examination - prosecutor’s submission repeated in summing up - no application made by applicants’ trial counsel for further directions - leave granted to GX under Rule 4 and grounds of appeal upheld - convictions quashed and new trial ordered for GX - no other grounds of appeal established - FX refused leave under Rule 4 - FX’s appeal dismissed

CRIME — Appeals — Appeal against conviction — Miscarriage of justice — Where various errors alleged — Alleged incompetence of counsel — Alleged error in refusal to grant adjournment — Alleged error in permitting re-examination— Alleged error in direction as to permissible inferences

CRIMINAL LAW – appeal against conviction – unreasonable verdict – whether guilty verdicts on second and third counts irreconcilable with acquittal on first count – whether evidence capable of supporting guilty verdicts

PRACTICE AND PROCEDURE – stay of proceedings – permanent stays – stays in aid of the enforcement of dispute resolution clauses – whether the Court should exercise its discretion to stay proceeding – expert determination clauses – where it is conceded that the dispute falls within the terms of the expert determination clause in a Project Development Agreement entered into between the parties – whether the expert determination clause is an unsuitable mechanism to resolve the dispute because the plaintiffs seek the aid of compulsive procedures to obtain material evidence from third parties – whether the expert determination clause is unsuitable to resolve the plaintiffs’ claim for the taking of an account – whether the possibility of multiple expert determination processes or legal challenges to expert determinations warrant the refusal of the exercise of discretion to stay the proceeding – proceeding stayed

HIGH RISK OFFENDER – application for Extended Supervision Order – no issue as to making of ESO – dispute as to conditions – whether defendant should be required to prepare weekly schedule setting out his activities and location from time to time – need for defendant to become more used to living in the community before substantial changes should be made to conditions imposed – orders and conditions made in accordance with Summons.

CIVIL PROCEDURE – Costs orders – Gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – plaintiffs claim relief under Conveyancing Act 1919, s 88K for the creation of an easement over the defendants’ properties – proceedings settled after three days of hearing – parties agree that plaintiffs will pay the defendants’ costs of the proceedings up to and including the first day of hearing – dispute about which party will pay the costs of the second and third day of hearing – order made for the making of a gross sum costs order – parties at issue about the appropriate quantum of a gross sum costs order.

Civil Procedure – Court of Appeal – Competency of Notice of Appeal – No issue of principle – Appeal dismissed

CIVIL PROCEDURE — Court of Appeal — Injunction – Whether executor ought to be restrained from selling, encumbering or otherwise dealing with certain real property which forms part of the factual substratum of the appeal – Where insufficient liquid assets in the estate to meet debts and administration expenses – Where undertakings proffered by the applicant, who is also the primary creditor of the estate, not to seek to enforce or charge interest on the debts until resolution of the appeal – Interlocutory injunction granted – Whether other injunctions ought to be made restraining the executor from dealing with other real property – Undertaking proffered by executor – Injunctions refused

CRIMINAL LAW – appeal and review – stated case – history of stated case procedure – effect of legislative amendments – nature of power conferred on District Court judge to state a case to the Court of Criminal Appeal on request of a party – whether discretion to refuse request – Criminal Appeal Act 1912 (NSW), s 5B CRIMINAL LAW – appeal and review – procedure – appeal from Local Court to District Court – appeal dismissed – request to judge to submit question of law to Court of Criminal Appeal declined – request made hours before statutory timeframe expired – Criminal Appeal Act 1912 (NSW), s 5B JUDICIAL REVIEW – jurisdictional error – refusal of District Court judge to submit a question of law to Court of Criminal Appeal – nature of power – whether coupled with duty to exercise power on request – failure to identify question of law – appeal concerned with inferences drawn from facts – whether condition of engagement of power a jurisdictional fact PRACTICE AND PROCEDURE – criminal – power of District Court to submit question of law to Court of Criminal Appeal – time limit – request to state a case did not allow sufficient time for judge to state a case – effect of timing of application on duty to state a case STATUTORY INTERPRETATION – whether power coupled with duty to exercise – authority of precedent – effect of amendments to section after construction adopted – effect of High Court authority on principle of interpretation applied – use of legislative history WORDS AND PHRASES – “may” – Interpretation Act 1987 (NSW), s 9

CONTRACTS – construction – context – whether party was in default of its obligations under the agreement – whether party had certain powers under the agreement – whether a discretion provided under the agreement was subject to a good faith obligation CONTRACTS – breach of contract – consequences of breach – right to termination – where Notices of Default and Notices of Termination issued – whether non-compliance with the Notice of Default gave the right to terminate the agreement – notices under s 129 Conveyancing Act 1919 (NSW) – reasonable time under the Notice to remedy default

CRIME – appeals – appeal against sentence – application for leave to appeal – where applicant found guilty of dangerous driving occasioning death – where applicant consumed alcohol prior to collision – where sentencing judge not satisfied beyond reasonable doubt that applicant’s blood alcohol concentration was greater than 0.05 at time of collision – whether sentencing judge erred in taking into account the applicant’s consumption of alcohol prior to the collision

CRIMINAL LAW – appeal against sentence – conspiracy to import a marketable quantity of a border controlled drug – plea of guilty – “Xiao error” – failure to take into account the utilitarian value of the plea of guilty – error conceded – whether a lesser sentence is warranted in law – strong subjective case – evidence pointing to rehabilitation having been achieved

CRIME — appeals — appeal against sentence — manifest excess – manslaughter arising out of the manner in which motor vehicle was driven – applicant heavily intoxicated – comparable decisions of the New South Wales Court of Criminal Appeal used to demonstrate that the starting point, and, therefore, the sentence imposed, were so far out of line with the established pattern of sentencing as to be demonstrably manifestly excessive – after factoring in a 25% discount for plea of guilty, the starting point of 12 years was manifestly excessive CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration – Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 571 – whether the sentencing judge failed to make an assessment of the applicant’s moral culpability in the light of the evidence of her background – where applicant has a strong subjective case but the objective seriousness of the manslaughter offence was extreme

EVIDENCE – evidence on commission – where request from High Court for England and Wales – whether the form of subpoena proposed infringes s 33(6) Evidence on Commission Act 1995 (NSW)

COSTS – party/party – exception to the general rule that costs follow the event – family provision claim unsuccessful – whether ‘special’ order should be made that costs come out of the estate or that there be no order as to costs COSTS – party/party – basis of quantification – indemnity basis – plaintiff who was unsuccessful rejected defendant’s Calderbank offer

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — where plaintiff sought relief under Supreme Court Act 1970 (NSW) s 69 against judgment of District Court striking out claim for malicious prosecution — whether abuse of process not to have sought relief by way of application for leave to appeal CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — whether reasonable cause of action disclosed — claim for malicious prosecution in District Court — where District Court found that order made under Mental Health (Forensic Provisions) Act 1990 (NSW) s 32 is not a termination in favour of the plaintiff — whether arguable jurisdictional error or error of law CIVIL PROCEDURE — Court administration — Removal to Court of Appeal

EQUITY — Equitable remedies — Relief against forfeiture — Leases — decline in business in the context of the early stages of the COVID-19 pandemic — where, at the relevant time, the Retail and Other Commercial Leases (COVID-19) Regulation 2020 was not in force — where, despite a history of late payment of rent owing under the contract, the lessors had the benefit of a substantial bank guarantee which they drew down upon — where, in the circumstances, relief against forfeiture should be granted

CRIMINAL LAW – sentence – federal offenders – conspiracy to cause loss to the Commonwealth – significant loss to the Commonwealth – persistent course of conduct – early plea of guilty – [redacted] – good prospects of rehabilitation

CRIMINAL LAW – separate trials – joint trial of six accused – multiple shooting incident – joint criminal enterprise – where one accused makes admission implicating another – not admissible against co-accused – whether jury can be instructed to disregard evidence – where Prosecutor offers to lead admission without reference to co-accused – plural pronouns – whether risk of prejudice too high – where counsel for accused agrees not necessary to lead evidence in plural form - assessment of risk to co-accused’s trial – soothsaying CRIMINAL LAW - severance - multiple shooting offences arising out of drug deals - joint criminal enterprise - connection between offences - where one count involving single offender shooting at dwelling - whether sufficiently connected to joint criminal enterprise concerning remaining counts - prejudice to two accused by inclusion of count - whether capable of cure by direction CRIMINAL LAW - separate trials - where one accused will rely on violent disposition of co-accused - issue not raised in submissions on separate trials - discombobulating discussions with counsel

CORPORATIONS — Statutory demand — Application to set aside — whether affidavit accompanying demand complied with s 459E(3) Corporations Act 2001 (Cth) – affidavit sworn by director – no resolution of board authorising demand – importance of affidavit at [49]-[54] – principles regarding authority of director at [55]-[58] – whether can ratify unauthorised demand – statute overrides common law – creditor to authorise statutory demand when issued or possibly cure within the 21 days for payment – otherwise cannot retrospectively confer authority by ratification at [59]-[67] – as a matter of fact, director was authorised. CORPORATIONS — Winding up — Statutory demand — Genuine dispute — principles at [76]-[80] — loan apparently arranged by common director of lender and borrower — advance of loan not otherwise authorised by lender – receipt of loan not otherwise authorised by borrower –– lender and borrower both appear to consider common director liable – genuine dispute. CORPORATIONS — dispute whether “due and payable” under s 459E Corporations Act 2001 - principles at [96]-[102] — genuine dispute.

MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — possession — where defendants in default under loan facilities with plaintiff — where no dispute as to amounts owing — whether any valid defence to plaintiff's claim

SUCCESSION – Administration of estates – Satisfaction of legacies – The deceased died testate in January 2012 – Executors to determine whether one share of three of the residuary estate should be distributed as the beneficiary entitled thereto has not been heard of for nearly 20 years – Whether presumption of death applies - Executors seeking order giving liberty to distribute the residuary estate to other two beneficiaries – Plaintiff justified in distributing the residuary estate – Benjamin Order made – Order also made that the Plaintiff’s costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased

FAMILY LAW – children – adoption – whether adoption clearly preferable and in the best interests of the child – whether consent of birth parents ought to be dispensed with – whether adoption plan in the child’s best interests and proper in the circumstances — change of name

DEFAMATION – oral defamatory statement – defences – common law qualified privilege – reply to attack – remedies – aggravated damages – compensatory damages – damage to reputation – injury to feelings – grapevine effect

APPEAL – application to set aside judgment on appeal – complaint that Court did not address affidavits of applicant – where applicants did not appear on hearing of appeal – where applicants sought to challenge intra-curial arrangements of Court of Appeal – application dismissed

CRIMINAL LAW – Sentencing – Appeal against sentence – Where sentence occurred prior to Xiao decision and consequently sentencing judge failed to have regard to utilitarian value of guilty plea – Error in calculation of sentence – Errors conceded – Appeal against sentence allowed – Resentence with 33⅓% discount for plea of guilty and past assistance to law enforcement agencies