Cases and authorities

CIVIL – final hearing – application for extended supervision order – Terrorism (High Risk Offenders) Act 2017 (NSW) – mandatory considerations – discretionary considerations – the time an extended supervision order might operate – whether the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision during the period of extended supervision order – the timing of the evaluative exercise called for by s 20(d) of the Terrorism (High Risk Offenders) Act – the application of s 31 of the Terrorism (High Risk Offenders) Act in circumstances such as those relating to the defendant – the appropriateness of adjourning the matter, such that it could be determined at a date closer to the expiry of the offender’s sentence for the foreign incursion offence – duration – orders

CONTRACTS — Breach of contract — Breaches of implied obligations of vendor under contract for the sale of business and sublease — Derogation from the relevant grants in circumstances where the purchaser was completely denied possession and use of the premises and was prevented from conducting the business purchased, and where the vendor sought to recapture as much of the benefit of the goodwill sold as possible — Transaction documents validly terminated in the circumstances CONTRACTS — Breach of contract — Consequences of breach — Total failure of consideration argument rejected — Purchaser’s entitlement is to damages against the vendor — Calculation of damages CONTRACTS — Unconscionable conduct —Unconscionable conduct within the meaning of s 21 of the Australian Consumer Law — Relationship between breach of contract and unconscionable conduct TORTS — Miscellaneous torts — Interference with contractual and other relations — Liability for inducing breach of contract — Director not liable for causing breach of contract by company CONTRACTS — Construction — Context — Where the parties entered into a suite of transaction documents at or around the same time to give effect to a bargain — Transaction documents to be read together

FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation and parens patriae jurisdiction — Summary dismissal application by first defendant — Where substantive matter stayed indefinitely until conclusion of criminal proceedings — Whether changes to the plaintiff (including its name) have the effect that there is no plaintiff for the purposes of the proceedings — Whether the plaintiff has abandoned the proceedings or waived the right to prosecute them — Whether the proceedings should be dismissed because of matters that have occurred in the interim while the proceedings have been subject to a stay — Whether civil proceedings unnecessary or undesirable due to concurrent criminal proceedings — Application dismissed

JOINT VENTURES AND PARTNERSHIPS — Joint Venture Agreement — Agreement to conduct development business through special purpose vehicle — Where shares to be held equally between five joint venturers — Mechanism for unequal contributions to be reconciled — “Call” on share for further contribution — Purported forfeiture of shares after non-payment of call — Company in liquidation — No leave to proceed as shares have no value — Cause of action in contract only — Breach made out. CONTRACT — Breach of contract — Joint Venture Agreement — Purported forfeiture of shares — Exclusion from joint venture vehicle — Breach made out — Alleged loss of share of profits of development — No evidence that venture would be profitable — Subsequent history of venture led to liquidation of company — No evidence that course would have been different but for breach — No loss established — Nominal damages awarded.

COSTS — party/party — general rule that costs follow the event — where multiple issues at trial — where plaintiff not successful on all issues — no issue of principle

CONTRACTS — Parties — Privity — Agency – whether husband acted as agent for his wife – whether the wife consented to, and authorised, her husband to act on her behalf in relation to the alleged agreement – held that an agency relationship was established – the wife had left it to her husband to make arrangements for her in relation to the transaction – the wife was aware of what was being proposed and did not disabuse anyone of the notion that her husband was able to represent her in the relevant transaction. CONTRACTS — Formation — Agreement — Uncertainty and incompleteness – whether agreement had been reached pursuant to which a party was to hold a property for the benefit of another party on an express or constructive trust – held that agreement reached in principle but that the terms of the arrangement were not the subject of a clear agreement between the parties – held that alternative claim for unjust enrichment failed as there was no binding agreement. EQUITY — Trusts and trustees — Resulting trusts – consideration of the intention of the parties at the time that one of the parties was registered as legal owner on the title to the property – in circumstances where the other party had contributed to the acquisition of the purchase price with deposit moneys – whether the contribution was intended to be a gift – held that it was not the intention of the parties that the registered party would have an immediate unconditional interest in the property without taking into account the expectations of the other party and their contribution to the purchase price. CONTRACTS — Formation — Agreement — Uncertainty and incompleteness – whether there was a binding residential tenancy agreement in existence – where unclear whether the document was complete when signed or which version of the cover page (there being two in evidence) formed part of the document when signed – held no binding residential tenancy agreement.

EVIDENCE – Privilege – Where one of the plaintiffs was a solicitor – Where that plaintiff has been charged with being an accessory after the fact to murder – Where police executed search warrants at the residential and business premises of the plaintiff and seized documents and electronic devices – Claims for legal professional privilege in respect of some of the material seized – Appropriate for the Court to examine the material over which claims were made - Claims determined EVIDENCE – Privilege – Onus of establishing claim for privilege lies on the party who makes it – Onus renders it necessary for the party making the claim to adduce admissible evidence in support of it – Perfunctory approach adopted by the plaintiff in which there was a general failure to adduce admissible evidence in support of the claim EVIDENCE – Privilege – Documents seized under search warrants – Whether claims for privilege should be determined according to common law principles or by reference to the Evidence Act 1995 (NSW) PRACTICE AND PROCEDURE – Application for adjournment pending the determination of an appeal against the refusal to grant legal aid – Whether such appeal frivolous or vexations – Discretionary considerations – Protracted proceedings – Plaintiff in breach of the Court’s orders for the filing of material – Plaintiff given ample opportunity to file necessary evidence and submissions – Application refused PRACTICE AND PROCEDURE – Application for recusal on the grounds of apprehended bias – Test not met – Application refused

PRACTICE AND PROCEDURE - Default judgment - Application to set aside default judgment - Where the fourth defendant does not recall being served with a statement of claim

APPEAL – Local Court Magistrate – Whether the Magistrate failed to provide sufficient reasons – Whether the Magistrate denied the first plaintiff procedural fairness – Where the decision was delivered ex tempore – Appeal dismissed

COSTS – intestate estate – plaintiff found to be de facto partner of the deceased – when multiple offers to settle proceedings made – application for payment of costs on indemnity basis from date of offer – Calderbank letter – relevant principles SUCCESSION COSTS – intestate estate

CONFISCATION - application for proceeds assessment order under Criminal Assets Recovery Act 1990 (NSW)– defendant failed to appear – where the defendant had engaged in serious crime related activity not more than six years prior to the filing of the summons – assessment of order - evidence of defendant's expenditure over six-year period – defendant to pay the Treasurer the amount assessed to be owing by way of proceeds – NSW Trustee and Guardian to take control of defendant’s property

BAIL - whether applicant poses an unacceptable risk – bail refused

FAMILY LAW — children — adoption — application for leave to appeal against adoption order — where order opposed by biological father — whether evidence established that children capable of consenting to adoption — whether consent were given in accordance with mandatory requirements — whether proposed adoptive parents suitable — where children already cared for by proposed adoptive parents — whether adoption in children’s best interest and clearly preferable to any other course

WORKERS’ COMPENSATION – Entitlement to lump sum compensation – Causal relation between injury and incapacity - The extent to which the first respondent’s present permanent impairment is the result of the first injury as distinct from the second injury. ADMINISTRATIVE LAW – Jurisdictional error or error of law on the face of the record – Whether the Appeal Panel of the Workers Compensation Commission of NSW in certifying that the percentage whole person impairment of the first respondent as a result of the first injury was 6% committed jurisdictional error or an error of law on the face of the record.

NEGLIGENCE – personal injury – plaintiff slipped and fell on building site – plaintiff sued occupier of site and employer – plaintiff claimed he fell while descending partially built staircase from which not all formwork had been removed – trial judge not persuaded that plaintiff's case made out – whether appellable error by primary judge in assessment of evidence – multitude of grounds advanced, all rejected – appeal dismissed

LANDLORD AND TENANT – renewals and options – exercise of option – commercial premises – whether email exchange constituted exercise of option – relevance of subsequent conduct – whether absence of further guarantee required by lease precluded enforceable agreement

COSTS – party/party – appeals – court’s discretion – where appellant filed a submitting appearance and did not cause or contribute to the first respondent’s costs in the proceedings below – where appellant did not cause the errors the subject of the proceedings below – where the proceedings below could not be resolved by consent – whether failure by primary judge to take into account considerations relevant to the costs discretion – order as to costs set aside COSTS – appeals – Suitors’ Fund – whether decision of claims assessor under the Motor Accidents Compensation Act 1999 (NSW) is a decision of a “court or tribunal” for the purposes of the Suitors’ Fund Act 1951 (NSW) – whether judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) constitutes “an appeal” for the purposes of s 6 of the Suitors’ Fund Act

LIMITATION OF ACTIONS – Discoverability – Personal injury – Knowledge of fault of defendant – Whether “fault” for the purposes of Limitation Act 1969 (NSW), s 50D(1)(b) can be known without the assistance of legal advice in relation to what may constitute a breach of duty and what may amount to a causal link between the breach of duty and the injury – Knowledge of fact as opposed to “belief” of fact – Time to assess knowledge of fact.

CONTRACTS – construction – whether parties to a Deed of Cross Guarantee guaranteed the obligations of all entities named in the Schedule to the Deed

TORTS – malicious prosecution – appellant convicted of murder – conviction subsequently quashed by Court of Criminal Appeal – appellant brought proceedings against respondent for malicious prosecution – whether primary judge erred in failing to find that the Crown Prosecutor acted with malice in prosecuting appellant – appellant did not contend any error in application of principle – whether cumulative errors established malice – whether error in approach by primary judge – whether error in demeanour-based credit findings – whether prosecutor’s explanations for his conduct were so untenable that they must be rejected – whether malice established

TRADE PRACTICES – misleading or deceptive conduct – sale of bull – auction catalogue – incorrect description of bull’s sire – disclaimer by vendor of correctness of information included in auction catalogue – proper characterisation of misleading or deceptive conduct – whether statement as to bull’s sire was one of fact or belief TRADE PRACTICES – damages for misleading or deceptive conduct – damages awarded for difference between stud and commercial cattle value of subject bull’s progeny – whether primary judge awarded damages for expectation loss

EQUITY – fraud - respondent’s wife defrauded employer of over $3.5 million and deposited into bank accounts in her name and accounts held jointly by herself and respondent - respondent’s wife paid money realised from gambling into respondent’s bank accounts - appellant sought various orders in aid of the recovery of the amount defrauded – primary judge dismissed all claims except one against respondent – whether primary judge erred in finding that respondent did not knowingly deal with monies obtained by dishonest means and is not personally liable to appellant – whether primary judge erred in failing to find that the respondent knowingly dealt with monies obtained by dishonest means when withdrew $20,000 after receiving summons and is personally liable to appellant for this amount – whether primary judge erred in failing to find that respondent personally liable to account to the appellant as a constructive trustee.

CRIMINAL LAW – Application for leave to appeal against sentence – Two offences of violence, including choking into unconsciousness – Self-represented applicant – Whether sentences should have been wholly concurrent – Whether interference warranted on any other basis – Grounds lacking in merit – Application for leave refused

CRIME – appeal – sentencing – offender agreed to court taking into account three offences of transporting waste to facility that cannot be used as a waste facility when sentencing him for principal offences – statutory Form 1 procedure not utilised – common law principle permitting additional offences admitted by offender to be taken into account in sentencing process – whether common law only authorises an additional offence to be taken into account in respect of a single, identified, charged offence CRIME – appeal – sentencing – non-parole period – special circumstances – whether sentencing judge erred in not considering matters relied upon in combination – whether hardship to offender’s family may be taken into account – points not taken in court below CRIME – appeal – whether sentencing miscarried because of incompetence of offender’s counsel – mandatory visa cancellation provisions in Migration Act engaged as a result of sentence – evidence and argument not put before sentencing judge as to mandatory cancellation of visa and its effects on the offender and his family

CRIMINAL LAW – appeal against sentence – manifest excess – domestic violence offences – whether indicative sentences demonstrated error in aggregate sentence – findings as to offender’s subjective circumstances – cumulative effect of multiple sentences

APPEAL – offender pleaded guilty to a range of child pornography and related offences – whether sentencing Judge erred in assessment of objective seriousness of an offence – no error in assessment demonstrated in approach taken – whether sentencing Judge erred in applying the principles in Veen v The Queen (No. 2) – offender had demonstrated a continuing attitude of disobedience to the law – no misapplication of principle – whether sentencing Judge erred in elevating sentence by reason of a Form 1 offence – orthodox approach to use of Form 1 offence on sentence – whether sentence was manifestly excessive – where reliance placed on assertions of express errors – where other sentencing decisions do not establish pattern or range – sentence was not unreasonable or plainly unjust – leave to appeal granted and appeal dismissed

CRIME – environment and planning – appeals – appeal against sentence – inadequacy – whether sentencing judge erred in assessment of seriousness – evidence of state of mind of corporation CRIME – environment and planning – appeals – appeal against sentence – inadequacy – whether sentencing judge erred in application of De Simoni principle – whether moral culpability a factor EVIDENCE – exclusion of evidence – whether unfairly prejudicial to accused SENTENCING – EPA appeal against inadequacy of sentence – where grounds of appeal made out – whether Court should exercise discretion to intervene

CRIMINAL LAW – Evidence – Admissibility of credibility evidence of an accused – Where the appellant stood trial on charges of sexual assaulting a child in his care – Where the appellant relied substantially upon evidence of his good character as part of his defence – Where evidence of irrelevant matters had been excluded from a recorded interview between the appellant and police – Where such matters were specifically raised by counsel for the appellant in the appellant’s evidence in chief notwithstanding that they had been excluded by agreement – Where Crown then cross-examined the appellant in relation to such matters without a grant of leave and in breach of relevant statutory provisions – Where the Crown’s stated bases for the cross-examination were wholly inconsistent – Crown’s cross-examination entirely impermissible and grossly unfair to the appellant CRIMINAL LAW – Summing up by trial judge – Where trial judge repeated a materially erroneous statement made by the Crown regarding certain evidence – Erroneous reference by the trial judge to “bad character evidence” – Erroneous directions given by trial judge as to the evidence of the appellant’s good character – Erroneous directions given by the trial judge as to the evidence of complaint CRIMINAL LAW – Directions to jury during deliberations – Appellant charged with two counts of sexually assaulting a child in his care – Where jury requested in the course of their deliberations that excerpts of the complainant’s recorded evidence in chief be replayed – Excerpts replayed in the absence of the trial judge reminding the jury of either the cross-examination of the complainant or the evidence of the appellant – No direction given to the jury not to give disproportionate weight to the evidence of the complainant which was being heard for a second time – No direction given to the jury reminding them of the necessity to bear in mind the other evidence in the case – No direction given to the jury reminding them of the necessity to consider all of the evidence in the trial – Where the failure on the part of the trial judge to give such directions and warn the jury as to the caution with which they were to approach the re-playing of the complainant’s evidence amounted to a miscarriage of justice CRIMINAL LAW – Unreasonable verdicts – Appellant charged with two counts of sexual assaulting a child in his care – Where a number of assertions made by the complainant were not consistent with objective evidence – Untruthful answers given by the complainant in an interview with police regarding contact with the appellant and his wife – Inconsistent evidence of complaint – Evidence of the appellant’s prior unblemished character – Verdicts unreasonable – Convictions quashed – Verdicts of acquittal entered

CRIMINAL LAW – Appeal – Sentence – Where sentencing judge imposed sentence partially cumulative on existing sentence – Where special circumstances were found – Structure of sentences such that the applicant would be required to serve 80% of his total sentence before being eligible for parole – Nothing to indicate that the sentencing judge considered the precise impact of the level of accumulation – Error established – Applicant re-sentenced CRIMINAL LAW – Appeal – Sentence – Parity principle – Whether applicant had a justifiable sense of grievance in light of the sentence imposed on a co-offender – Clear distinguishing subjective features between the two cases – No unjustified disparity in the respective sentences imposed

CRIMINAL LAW – application for leave to appeal against sentence – commercial quantity drug supply offences over period of two months – possession of prohibited weapon and conduct drug premises offences – whether error in assessment of objective seriousness of drug supply offences – sentencing judge relied on incorrect reference to prescribed “large commercial quantity” for methylamphetamine – reference was misleading – error in statement as to number of drugs found in possession for purpose of supply upon arrest – no merit in grounds asserting error in relation to consideration of Form 1 offences, applicant’s cognitive ability, or parity – no merit in assertion of manifest excess – sentencing discretion re-exercised

CRIME – application for leave to appeal against sentence – drug supply offences – whether error to reject applicant’s evidence of no financial reward for supplies – consideration of correct approach to asserted errors of fact finding on sentence – rejection of applicant’s evidence soundly based on available inferences and well open to be made – whether error in misapplication of reasoning in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 – consideration of non-custodial sentence not available where sentence of imprisonment required and length of sentence set at 5 years – whether sentence was manifestly excessive – sentence not unreasonable or plainly unjust

CRIMINAL LAW – sentence appeal – sexual intercourse without consent contrary to s 61I of the Crimes Act – contravene apprehended domestic violence order on s 166 certificate – guilty pleas – whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge erred in approach to applicant’s intellectual disability – whether sentencing judge erred by failing to give effect to finding of special circumstances – whether sentence is manifestly excessive

CRIME – Federal Offences – Conspiracy – Dishonestly cause a loss or risk of loss to the Commonwealth – s 135.4(5) Criminal Code - False depreciation claims in company tax returns – Loss to Commonwealth in excess of $100 million CRIME – Federal Offences – Conspiracy – Dealing with property of a value of $1 million or more believing it to be the proceeds of crime – ss 11.5(1) and 400.3(1) Criminal Code. CRIME – Appeals – Appeal against conviction – Whether trial judge improperly applied pressure to jury interfering with free deliberation – s 80 Commonwealth Constitution – Jury notes – Trial judge refused request to adjourn for juror to attend job interview – Trial judge refused request to provide a second letter to juror’s employer. CONSTITUTIONAL LAW – Commonwealth Constitution – s 80 – Trial by jury – Constitutional contention - Whether trial judge breached s 80 by interfering with jury. CRIME – Appeals – Appeal against conviction – Admissibility of evidence - Whether evidence of Amended Tax Assessments irrelevant and inadmissible as disclosed opinion of Commissioner of Taxation.

CRIME – application for leave to appeal against sentence – sexual offences – aggregate sentence imposed – whether sentencing judge erred in grouping offences into categories and nominating the same indicative sentence for each offence within the categories – whether sentencing judge erred in not finding special circumstances where he said that doing so would be a form of double counting – leave to appeal granted but appeal dismissed

CRIME – appeals – appeal against sentence – by Crown on ground of manifest inadequacy – manslaughter – respondent received a non-parole period of 18 months with an additional term of 2 years – sentencing judge made finding of special circumstances – sentencing judge described offence as “falling below mid-range” and “towards lower end of range” – finding of objective seriousness did not reflect characteristics of offending – finding of special circumstances not justified – non-parole period did not reflect seriousness of offending – respondent re-sentenced

CRIMINAL LAW – Bail pending appeal to the Court of criminal Appeal– whether special and exceptional circumstances shown – whether appeal most likely to succeed – definition of “dishonest” under s4B Crimes Act 1900 (NSW) – where direction to the jury that dishonesty could be proven by mere recklessness

HIGH RISK OFFENDERS – application for an Extended Supervision Order – defendant has multiple convictions for sexual abuse of young boys – second supervision order – intrusive conditions – risk posed – community safety paramount – privilege against self-incrimination – conditions requiring consent to search and seizure – whether engages privilege – whether privilege abrogated by statute – clear statement rule

JUDGMENTS AND ORDERS – interpretation – freezing orders – no question of principle

HIGH RISK OFFENDERS – Extended supervision orders – Application – Variation – No point of principle

CIVIL PROCEDURE – application to set aside default judgment – whether valid defence available – whether arguable defence arises on affidavits – futility –unexplained delays – application dismissed

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order – defendant consents to making of interim supervision order – whether certain conditions proposed appropriate – debate over conditions regarding accommodation, education and employment, search and seizure, and access to pornographic material – orders made – conditions imposed

CRIMINAL LAW – bail – show cause – recidivist offender – psychiatric illness – custodial conditions – where schizophrenic locked in cell 23 hours per day – conditions of bail – awesome – diligence

TRAFFIC LAW AND TRANSPORT — Traffic law — Motor accident legislation — Time limits – failure to commence proceedings for damages within three years of accident – requirement of leave – Motor Accidents Compensation Act 1999 (NSW), s 66(2) and s 109(3) – whether evidence established a “full and satisfactory” explanation for the delay – explanation for delay not full and satisfactory – leave not granted

CORPORATIONS — Joint venture agreement — Company and shareholders parties to Agreement — No constitution — Relationship between replaceable rules and joint venture agreement. CORPORATIONS — Directors and officers — Removal of director — Purported removal by board — No constitution — Joint Venture Agreement provided for shareholder nominees — No power for other directors to remove — Declaration of no validity. CORPORATIONS — Meetings of members — Reasonable time and place — Whether Beijing reasonable place — Australian company — Australian and Hong Kong corporate shareholders — Directors variously in Western Australia, New South Wales and China — Beijing unreasonable.

TORTS — negligence — catastrophic personal injury to child — fall off jetty through railing — public liability — duty of Council and Reserve Trust as occupiers — duty of State as designer of structure — duty of grandparents as carers of child — application of ss 5O, 5M, 42 of the Civil Liability Act 2002 (NSW)

CORPORATIONS – members’ rights and remedies – oppression – closely held family company – where “permanent director” purportedly appointed another director – where members of company later agreed in general meeting for that director to continue as director – transfer of shares to testamentary trusts and payment of distribution – access to books and records of company – whether conduct, individually or together, was oppressive – whether the plaintiffs should be appointed directors.

APPEALS – appeal from Local Court to Supreme Court – whether the appeal involved a question of law, a question of fact or a question of mixed fact and law – discussion of principles pertaining to granting leave to appeal – where magistrate’s inference on a preliminary factual issue was not reasonably open on the evidence – leave to appeal granted – appeal upheld

CIVIL LAW – high risk offender – where offender has been subject to supervision under a series of orders – where no offences against children for many years – where offender intellectually challenged – where paraphilia continues to exist – previous breaches of order – appropriate conditions – duration of order

LAND LAW – easements – where defendant has benefit of rights of carriageway over plaintiffs’ land – rural land – gate maintained at entrance to easement from public road – gate kept in a closed but not locked position – where plaintiffs run cattle on their land – where plaintiffs harvest timber on their land – where defendant locked gate for a period – where timber harvesting interrupted – where defendant commonly leaves gate open after traversing gateway – where cattle escape onto public road through open gateway – defendant’s conduct held to amount to nuisance – injunctive relief granted – damages awarded in respect of pecuniary loss and time spent retrieving escaped cattle TORTS – nuisance – private nuisance – where defendant has benefit of rights of carriageway over plaintiffs’ land – rural land – gate maintained at entrance to easement from public road – gate kept in a closed but not locked position – where plaintiffs run cattle on their land – where plaintiffs harvest timber on their land – where defendant locked gate for a period – where timber harvesting interrupted – where defendant commonly leaves gate open after traversing gateway – where cattle escape onto public road through open gateway – defendant’s conduct held to amount to nuisance – injunctive relief granted – damages awarded in respect of pecuniary loss and time spent retrieving escaped cattle TORTS – trespass to land – where defendant found to have gone onto plaintiffs’ land to take water from creek – injunctive relief granted

COSTS AND CONSEQUENTIAL ORDERS – the plaintiff and the defendant, formerly a couple in a domestic relationship, were in dispute as to their respective ownership interests in two properties: an investment property and a residential property – in the Court’s principal judgment, the Court declared that the investment property held by the couple was held by them beneficially in equal shares but that an account should be taken of the benefits flowing from the defendant’s advance of $60,000 into a mortgage offset account used to pay off the mortgage for the investment property – in the principal judgment, the Court also declared that the defendant held a 78% interest in the residential property they occupied – the Court directed that the parties bring in agreed short minutes of order – the remaining issues are now what final orders should now be made – how should the amount due to the plaintiff be quantified – what order for costs should be made in the proceedings.