Cases and authorities

PRACTICE AND PROCEDURE – Application to transfer proceedings from District Court to the Supreme Court – Whether Court could be satisfied that the amount of damages awarded to the plaintiff was likely to exceed the jurisdictional limit of the District Court – Relevance of procedural history – Late application for transfer based largely on medical evidence which had been in the possession of the plaintiff’s solicitor for more than a year – No explanation for the delay – Where plaintiff’s unchallenged medical evidence supported an award of substantial damages in favour of the plaintiff in the event that he was successful – Order for transfer made

CONTRACTS — Termination — Repudiation of contract — where purchasers raised requisitions — where plausible contentions and vendors refused to address LAND LAW — Conveyancing — Contract for sale — Breach — Error or misdescription — Requisitions — Vendors’ obligations — Notices to complete — Purchasers’ remedies ENVIRONMENT AND PLANNING — Heritage conservation — Protection of Aboriginal heritage — meaning of “Aboriginal object” — National Parks and Wildlife Act 1974 (NSW)

BUILDING AND CONSTRUCTION – Progress payments – Whether payment claim claiming amounts paid under bank guarantees is one for construction work or related goods or services – Whether adjudicator can determine whether it has jurisdiction to determine a claim – Whether set off clause in construction contract void under s 34 Building and Construction Industry Security of Payment Act 1999 (NSW) - Building and Construction Industry Security of Payment Act 1999 (NSW), ss 5, 6, 8, 13 and 34.

APPEAL – application for leave – challenge to decision to refuse summary dismissal of proceedings – no appellable error in decision – leave refused

COSTS – appeals – costs of proceedings at first instance – where judgment overturned on appeal – whether successful appellant’s conduct as defendant invited litigation so as to disentitle it to costs at first instance – whether respondent had partial success as plaintiff at first instance on issue of substance – whether proceedings of “public importance” so as to warrant departure from ordinary rule that costs follow the event – no departure justified – respondent ordered to pay costs of proceedings at first instance

BUILDING & CONSTRUCTION – appeals – payment claim referred for adjudication – where available reference date under construction contract – Building and Construction Industry Security of Payment Act 1999 (NSW) – where adjudicator determined entitlement to payment claim by reference to an unavailable reference date – jurisdictional error – where available reference date under contract not the reference date addressed by the adjudicator – whether adjudication determination also involved a denial of natural justice

CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Investigation by the Sheriff pursuant to s 73A of the Jury Act 1977 (NSW) – Admissibility of investigation material – Whether the evidence did not fall within the exclusionary rule – Whether a retrial should be ordered or a verdict of acquittal entered.

CRIME – Terrorism offences – Conspiracy to do acts in preparation for a terrorist act or acts CRIME – Appeals – Appeal against sentence – Sentencing judge erred by failing to take into account the utilitarian value of the applicant’s plea of guilty – Resentence SENTENCING – Relevant factors on sentence – Terrorism offences – Mitigating factors – Prospect of rehabilitation – Subjective factors –Youth of offender

CRIME – appeals – appeal against conviction – allegedly inconsistent verdicts – whether there was a rational basis for the jury to acquit on three counts but convict on a fourth CRIME – appeals – appeal against conviction – alleged miscarriage of justice due to failure to give a Markulski direction – whether case properly characterised as a word against word case involving multiple counts resting on the evidence of a single Crown witness – consideration of the principle for which Markuleski stands CRIME – appeals – application of rule 4 of the Criminal Appeal Rules – admissibility of evidence from trial defence counsel

PRACTICE AND PROCEDURE – application for adjournment on day listed for hearing – enforcement of foreign judgment needs expedition – applicant’s failure to comply with Court directions – adjournment refused

MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — possession — application for stay of execution of writ of possession — third application for stay — new evidence — public health crisis

VEXATIOUS proceedings – Dismissal of Notice of Motion filed without leave – Abuse of process.

COSTS – Discretion to award costs – Where plaintiff largely unsuccessful in proceedings – Exercise of discretion in case of “mixed” result

CIVIL LAW – building dispute – money owed on contract – cross-claim – defence – shoddy building work – proceedings before NCAT – procedural fairness – where owners abandon cross-claim – failure to deal with defence – unrepresented litigants – where lawyer seeks leave to withdraw on day of hearing – hearing did not start well – confusion over reason lawyer withdrew – refusal of adjournment – “stage fright” – late service of joint expert report – contradictory case management orders – whether owners denied opportunity to challenge joint expert – internal appeal – whether Appeal Panel erred in failing to find denial of procedural fairness

COSTS - cost orders in interlocutory proceedings - where consent orders made following hearing on some issues in dispute - where plaintiff had overall success at the hearing

ADMINISTRATIVE LAW — Judicial review — Motor Accident Injuries Act 2017 (NSW) — whether entitlement to net or gross weekly earnings in third entitlement period

APPEAL – NSW Civil and Administrative Tribunal – Appeal in relation to five decisions concerning the Local Government Act 1993 (NSW) – Where the Tribunal lacked jurisdiction to hear the plaintiff’s claim – Where there was no evidence to support the plaintiff’s claim – Application of cl 29 Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) to appeal a “profession decision” to the Supreme Court – Leave to appeal in relation to three costs decisions refused – Appeal in relation to two remaining decisions dismissed

APPEAL – requirement of leave – many proposed grounds of appeal – question whether NCAT had power to make costs order in proceedings based on federal law of general importance – although question not raised at first instance, question would arise between the same parties when costs order was sought to be enforced – no other question warranting grant of leave.

CRIME — confiscations — restraining orders

CIVIL PROCEDURE - parties - vexatious litigants — leave to institute proceedings - requirements of Vexatious Proceedings Act – application to file cross-claim - whether causes of action pleaded in cross-claim are vexatious or have prima facie grounds CIVIL PROCEDURE - application for recusal - where prior proceedings before the judge – where ruling made against applicant – where prior proceedings concerned only procedural and matters of statutory construction - application refused CIVIL PROCEDURE – pleadings – amendment - leave sought to file amended defences and cross-claims – where proposed pleadings sought to withdraw admissions – where no explanation for admissions - where no explanation for delay – where no causes of action demonstrated SUCCESSION - probate and administration – revocation of probate - application for revocation of probate – whether deceased lacked testamentary capacity – whether lack of capacity would result in intestacy - where no evidence supporting claim of incapacity - whether applicant had an interest to seek revocation – where applicant had a right only to seek an order to give a benefit from the estate EQUITY – where applicant claimed gift of real estate –where property not transferred at law – whether gift complete in equity - whether deceased did everything necessary to perfect gift

CRIME – Sentence – assessment as suitable for home detention – further additional condition to ICO imposed, as foreshadowed in original sentence of 24 December 2019

MORTGAGES - claim for possession of land following mortgage default - judgment entered in favour of Plaintiff and writ of possession issued - writ of possession executed and Plaintiff takes possession of property - Defendants obtain stay without informing Court that writ had already been executed - Defendants thereafter re-enter and take possession of property - Plaintiff seeks writ of restitution to recover possession of property - writ of restitution granted

CIVIL PROCEDURE — Stay of proceedings — Whether dispute resolution clause precludes judicial advice — public policy considerations EQUITY — Trusts and trustees — Judicial advice — Whether questions appropriate for judicial advice

CRIME — appeals — appeal against sentence — dangerous driving occasioning death — whether sentencing judge erred in application of the guideline judgment — R v Whyte — use of remarks made in course of hearing to attempt to establish error — Crimes Act 1900 (NSW), s 52A CRIME — appeals — appeal against sentence — manifest excess — whether sentencing judge failed to have regard to applicant's subjective circumstances CRIME — appeals — appeal against sentence — principle in R v De Simoni — Crimes Act 1900 (NSW), s 52A CRIME — appeals — appeal against sentence — clerical error in record of sentence entered for offence under Crimes Act 1900 (NSW), s 53 — record corrected

CRIME — Appeals — Appeal against conviction — Direction about ERISP evidence of co-accused — Unanimous verdict — Whether not guilty is the default position for undecided jury — Appeal against sentence — Manifest Excess — Weight to be given to applicant’s subjective circumstances — Aggravating factors — Relevance of time spent in immigration detention

CRIME – APPEALS – appeal against severity of sentence – reckless wounding in company – whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge erred in finding the offence of reckless wounding was aggravated by planning – whether sentences manifestly excessive – appeal dismissed CRIME – APPEALS – appeal against severity of sentence – reckless wounding in company – whether sentencing judge erred in finding that the offence was planned – whether error established in finding offenders shared equal criminal and moral culpability – whether error in assessing objective seriousness – whether error in calculation of the commencement date of sentence – whether sentence manifestly excessive – error in calculation established – commencement date adjusted without consideration of substantive re-sentence

Police – Search warrants – Validity of warrant – Where police searched premises in reliance on warrant – Where police retained material copied from first plaintiff's mobile phone in reliance on warrant – Where warrant relied upon reasonable grounds for suspecting commission of Commonwealth offence – Where warrant purported to set out offence against s 79(3) of Crimes Act 1914 (Cth) – Whether warrant misstated substance of s 79(3) of Crimes Act – Whether warrant failed to state offence to which it related with sufficient precision. Injunctions – Mandatory injunction – Principles applicable – Where plaintiffs sought mandatory injunction requiring destruction or delivery up of material obtained under invalid warrant – Where plaintiffs sought injunction restraining police from making information available to prosecuting authorities – Whether statutory basis for injunction – Whether plaintiffs identified legal right to support injunction in auxiliary jurisdiction – Whether consequences of trespass provide basis for injunction – Whether s 75(v) of Constitution provides basis for injunction – Whether damages inadequate – Whether injunctive relief should be refused on discretionary grounds. Words and phrases – "adequacy of damages", "auxiliary jurisdiction", "basis for injunction", "certiorari", "computer or data storage device", "constitutional injunction", "constitutional remedies", "constitutional writs", "description of the offence", "discretionary considerations", "entry, search and seizure", "equity", "evidential material", "injunction", "injunctive relief", "juridical basis", "legal right or interest", "mandatory injunction", "misstatement", "mobile phone", "nature of the offence", "official secrets", "privacy", "relief", "remedy", "right to privacy", "search warrants", "statement of offence", "substance of the offence", "sufficient interest", "sufficient particularity", "sufficient precision", "trespass". Constitution, s 75(v). Australian Federal Police Act 1979 (Cth), s 8. Crimes Act 1914 (Cth), Pts IAA, VII; ss 3C, 3E, 3F, 3H, 3LA, 3ZQU, 79(3). Judiciary Act 1903 (Cth), s 32.

Re Young Re Young High Court – Leave to issue or file proceeding – Removal of proceedings – Where causes said to be pending in Supreme Court of New South Wales said to involve matter "arising under any treaty" within meaning of s 75(i) of Constitution – Where applications for removal of causes into High Court under s 40 of Judiciary Act 1903 (Cth) were refused – Where applicant sought to file documents in the form of applications for leave to appeal and accompanying summons – Where Registrar directed to refuse to issue or file documents without leave of a Justice first had and obtained – Whether appellate jurisdiction of High Court extends to hearing and determining appeal from order granting or refusing removal of cause – Whether order is under implied exception to appellate jurisdiction prescribed by Parliament within meaning of s 73(i) of Constitution – Whether conditions for grant of leave to appeal established. Words and phrases – "abuse of process", "appellate jurisdiction", "cause", "exception", "federal jurisdiction", "incidental judicial power", "leave to issue or file", "order granting or refusing removal of a cause", "original jurisdiction", "preliminary and discretionary nature", "proceedings inter partes", "removal", "special leave", "substantial injustice", "treaty". Constitution, ss 51(xxxix), 73(i), (ii), 75, 76, 77(iii). High Court Rules 2004 (Cth), rr 6.07.1, 6.07.2, 6.07.3, 26.07.1. Judiciary Act 1903 (Cth), ss 2, 30(a), 34(1), (2), 35(2), 40(1), (2)(b), 42, 78

CIVIL PROCEEDINGS – resolution outstanding – issues after judgment – breach or contravention – claim re vehicle – pre-judgment interest – costs – directions

COSTS – Appeal – Costs below – substantive matter resolved – ordinary rule – effect of involvement of litigation funder – orders made.

SUCCESSION – contested probate – costs – consideration of exceptions in probate litigation to general principle that costs follow the event – whether deceased was the cause of the litigation where testamentary capacity in issue – whether it was reasonable for the defendant to investigate the deceased’s will – application to vary costs order refused

CONSUMER LAW – statutory guarantees under the Australian Consumer Law – ss 60 and 61 of the Australian Consumer Law - whether a failure to achieve statutory guarantees amounts to a contravention of the Australian Consumer Law – held that failure to achieve a statutory guarantee is not a contravention CIVIL PROCEDURE – Pleadings – Amendment – whether an amendment is futile - does the amendment disclose a cause of action known to the law CIVIL PROCEDURE – Representative proceedings – Group members – request for ‘soft closure’ of the class CIVIL PROCEDURE – Representative proceedings – Conduct of proceedings – identification of common questions

MORTGAGES AND SECURITIES – Charges – Equitable charge – Creation of charge – Loan Agreement and Charge records an agreement for the making of a loan – agreement not concerned with any other liability to lender – agreement executed by borrowers but not lender – lender does not otherwise become bound – loan the subject of agreement never made – no charge created

CIVIL PROCEDURE – Injunctions – where balance of convenience does favour the making of an interlocutory order

STATUTORY APPEAL – appeal from a decision of the Local Court under s 53(3)(b) Crimes (Appeal and Review) Act – refusal of a magistrate to grant applications – applications for a female magistrate to hear summary criminal proceedings – application to exclude men, including male witnesses, from access to evidence – application for a change of venue – question of interlocutory orders – jurisdiction of the Court – question of whether Magistrate failed to consider cultural beliefs of plaintiff – question of rejection of evidence – denial of procedural fairness JUDICIAL REVIEW – s 69 Supreme Court Act - error of law on the face of the record – question of error of law

COSTS - cost orders in interlocutory proceedings - where discovery orders made by consent following hearing on some issues in dispute - where both parties achieved some success at the hearing - costs in the cause

CRIMINAL LAW – trial by judge alone – murder – defence of mental illness

DEFAULT JUDGMENT – application to set aside – alleged vendor loan concerning purchase of property – statement of claim sues upon transaction suggesting vendor loan part of purchase price of $1.8million – plaintiff truly alleges purchase price of $2.8million – defendant denies loan – defendant says paid $1.8million in full – defendant acknowledged indebtedness but not debt sued upon – transaction arguably structured to avoid stamp duty – whether proper explanation for delay – judgment set aside – undertakings in respect of unstamped instruments – implied undertaking – affidavits read in other proceedings

EVIDENCE – Privileges – Client legal privilege – Loss of privilege on the basis of misconduct – Correct test to be applied – Relevant and irrelevant considerations – Whether considerations reflect an argument which, if advanced, may have affected the outcome of the determination

CRIMINAL PROCEDURE – costs - accused to stand trial for murder - unsuccessful pretrial application by accused for orders under Court Suppression and Non-publication Orders Act 2010 - media organisation appeared to oppose orders sought - media organisation sought costs order against accused - whether jurisdiction to order costs - no statutory authority to order costs - general rule applies that costs not to be awarded in criminal proceedings on indictment - costs application withdrawn and dismissed

CORPORATIONS — Winding up — Practice and procedure — Application to adjourn winding up application under Corporations Act 2001 (Cth) s 440A(2) — Where administrator appointed shortly before winding up proceedings — Where winding up application previously opposed on ground of solvency — Short adjournment sought for administrator to investigate information provided by director which administrator cannot presently verify — Where director’s evidence does not confirm truth of information provided to administrator — Where administrator previously involved as expert — Whether adjournment in creditors’ interest CORPORATIONS — Winding up — Failure to comply with creditor’s statutory demand — Presumption of insolvency — Where no solvency evidence led by Company

CRIME – SENTENCE APPEAL – joint criminal enterprise robbery – role in crime – sentencing judge erred in applying Guideline Judgment in Henry without assessing relative youth of offender – error in denying genuine remorse – objective seriousness assessed on an inference inconsistent with Agreed Facts – sentence quashed – offender re-sentenced – parity assessed.

CRIMINAL LAW – appeal – appeal against sentence – robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 – whether sentencing judge erred in approach to fact finding – whether sentencing judge made findings inconsistent with agreed facts based on evidence adduced at co-offender’s trial – whether errors are “material” – whether sentencing judge erroneously applied sentencing principles – whether sentencing judge failed to properly apply Bugmy principles – applicant resentenced afresh – leave granted – appeal allowed

SENTENCING — Appeal against sentence — Severity — Alleged sentence manifestly excessive — Appeal dismissed SENTENCING — Appeal against sentence — Offenders engaged in the same criminal enterprise — Alleged disparity between sentences — Distinction in prospects of rehabilitation — Appeal dismissed

CRIMINAL LAW – sentencing – aggravated break enter and steal – stealing a motor vehicle – aggregate sentence – error asserted in assessment of objective gravity of stealing of motor vehicle – whether sentence manifestly excessive

PRACTICE AND PROCEDURE – application to adjourn proceedings – virtual courtroom

INTERLOCUTORY INJUNCTION - Where defendants in breach of Deed of Settlement and Release -Where defendants agreed not to disparage or communicate with plaintiffs or persons connected to them - No issues of principle.

COSTS – where provision made on 13 December 2019 for plaintiff to provide security for defendants’ costs – where defendants seek further security – whether there has been a material change in circumstances since 13 December 2019 PRACTICE AND PROCEDURE – notice to produce – whether legitimate forensic purpose shown – whether documents sought likely to assist on a material issue

COSTS – party party – general rule that costs follow the event – proceedings discontinued or dismissed

CIVIL PROCEDURE – Injunctions – where balance of convenience does not favour extending earlier ex parte orders in the Duty List