Cases and authorities

CIVIL PROCEDURE – default judgment – possession of land – defence struck out – no amended defence filed – defendant unable to identify any defence to the claim – order for default judgment made

PERSONAL PROPERTY – gifts – conditional gifts – payments by mother to her daughter and son-in-law towards purchase of house by them to be occupied also by her – intention of mother – whether absolute and unqualified gift – whether gift conditional on her having right of occupation amounting to interest in the property

ADMINISTRATIVE LAW – judicial review – supervisory jurisdiction – judgment of District Court on appeal from Local Court – criminal jurisdiction – where conviction and sentence set aside and permanent stay of criminal proceedings ordered – whether District Court misapprehended nature and scope of power to prevent abuse of process – whether District Court misconstrued double jeopardy provision in Crimes (Administration of Sentences) Act 1999 (NSW), s 63 – whether jurisdictional error established

JUDGMENTS AND ORDERS — interest — award of on judgment — where appeal successful — whether post-judgment interest should run from date of first instance orders or orders allowing appeal

CRIMINAL LAW – sentence appeal – murder – long history of domestic violence – whether sentencing judge properly dealt with subjective issues and those going to objective seriousness of the offending – to what extent should the sentencing judge have taken into account previous convictions as a matter of aggravation – was the fact that offender on conditional liberty at time of offence a matter of aggravation – whether sentencing judge properly took into account the offender’s lack of planning – whether sentencing judge properly took into account the offender’s disadvantaged background – whether it was open to the sentencing judge to find that the offender’s intoxication was a matter of aggravation – whether sentencing judge erred in finding that the offender’s offending involved gratuitous cruelty – whether sentence was manifestly excessive – whether “comparative cases” should be taken into account on re-sentence – appeal allowed and offender re-sentenced.

CRIME – appeals – appeal against conviction – application for leave to appeal on question of fact or mixed question of fact and law – whether verdict unreasonable – whether verdict of guilty could not be supported by the evidence CRIME – appeals – appeal against sentence – application for leave to appeal – whether sentencing judge erred in the assessment of the objective seriousness of the offence

CRIME – appeals – leave to appeal against conviction – whether miscarriage of justice – administering intoxicating substance with intent to commit an indictable offence and sexual intercourse without consent – Crimes Act 1900 (NSW), ss 38(b) and 61I – whether trial judge fairly put the defence case to the jury – whether trial judge made impermissible comments in summing up – convictions quashed and retrial ordered

CRIMINAL APPEAL – sentence appeal – availability of intensive correction order – three grounds of appeal – first whether his Honour erred by failing to give paramount consideration to community safety as required by s 66(1) – second whether his Honour erred by failing to provide reasons for refusing to make an intensive correction order – third whether his Honour mistook the facts

CRIME – appeals – appeal against conviction – assault with act of indecency on person under 16 – whether a miscarriage of justice occurred due to the trial judge failing to give a direction about the need for the jury to be unanimous about which act of touching they found proved beyond reasonable doubt – whether a miscarriage of justice occurred due to the trial judge failing to give a direction that the accused’s silence was not evidence against him and could not be used to support the prosecution case – whether verdict of guilty is unreasonable and cannot be supported having regard to the evidence

CRIMINAL LAW – sexual intercourse with child under 10 – young offender – assault by halfbrother – retraction of complaint in cross-examination – finding that complainant’s court evidence unreliable – counsel not informed of finding of unreliability during cross-examination – whether procedural unfairness CRIMINAL LAW – conviction appeal – judge alone trial – judge determining reliability of evidence – failure to direct herself as to unreliability of complaint CRIMINAL LAW – appeal – sentence – custodial sentence – offender a minor with intellectual disabilities – whether denunciation of offending inconsistent with rejection of general deterrence – whether judge took offender’s vulnerabilities into account

CRIMINAL LAW – appeals – appeal against sentence – applicant convicted of one count of conspiracy to cheat and defraud the beneficiaries of an estate – applicant insinuated herself into the life of an ageing and dementia-afflicted woman – forged will – applicant sentenced to seven years’ imprisonment with a non-parole period of five years – whether the sentencing judge erred in his assessment of objective seriousness – whether the sentencing judge misconstrued the applicant’s role in the conspiracy – paucity of evidence as to how the applicant and her co-conspirators insinuated themselves into the deceased’s life – sentencing judge described the applicant’s conduct as wicked – open to the sentencing judge to describe the applicant’s conduct in terms reflecting his strong reprobation of her conduct – no error shown – whether the sentence imposed was manifestly excessive – whether the sentencing judge should have taken into account the applicant’s depressive disorder – where no such submission was advanced on sentence – comparable cases did not support a finding of manifest excess – appeal dismissed

CRIMINAL LAW – sentence appeal – six counts of sexual assault with a child – victim is applicant’s brother – whether aggregate sentence was manifestly excessive

CRIMINAL LAW – sentence appeal – use offensive weapon with intent to intimidate contrary to s 33B(1)(a) of the Crimes Act - intentionally damage property contrary to s 195(1)(a) of the Crimes Act - intimidate with the intention of causing fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 – take person with intent to gain a psychological advantage contrary to s 86(1)(b) of the Crimes Act – whether aggregate sentence was manifestly excessive – whether sentencing judge erred by accumulating the sentence upon the sentence imposed in separate proceedings

FOREIGN JUDGMENT – application to set aside – no question of principle

CRIMINAL LAW – judge-alone murder trial – application by media for access to exhibits – open justice principle – broad discretion – application for access refused

RESTITUTION – recovery of money paid under a judgment or order which has been set aside – where defendant ordered to pay the plaintiff’s costs of the proceedings at first instance in 2015 – where defendant paid those costs following assessment – where High Court allowed defendant’s appeal in 2018 and set aside the costs order at first instance – where defendant did not seek an order for repayment of his costs in the Court of Appeal or High Court – whether Court has power to award restitution in circumstances where there is non-compliance with Uniform Civil Procedure Rules 2005 (NSW), r 51.19 – restitution awarded notwithstanding non-compliance with rules of court RESTITUTION – recovery of money paid under a judgment or order which has been set aside – interest to be awarded on recovered sum – whether interest on recovered sum to be awarded from date of payment or the date of first making the application for restitution – interest awarded from date of payment pursuant to Civil Procedure Act 2005 (NSW) s 100 PRACTICE AND PROCEDURE – stay of execution – whether to grant stay of an order for restitution pending an appeal – appeal not presently foreshadowed – stay refused

CIVIL PROCEDURE – Stay of proceedings – Suspending stay – Whether prejudice would be suffered by the defendant if stay was lifted – Whether reasons advanced as to why stay should continue.

CRIMINAL LAW – trial proceedings - conspiracy to import a commercial quantity of a border controlled drug – question of the admissibility of tendency evidence – tendency to act in a particular way – tendency to have a particular state of mind – evidence admitted for other purposes – question of use as tendency evidence – requirement for a Shepherd direction

CIVIL PROCEDURE – default judgment – default in entering appearance – default in filing defence – orders entering default judgment made

CRIMINAL LAW – conspiracy to import a commercial quantity of a border controlled drug – question of the admissibility of summary evidence – s 50 Evidence Act – whether foundational evidence exists for some parts of the summary – whether the foundational evidence supports a valid inference as to user of telephone services used in the course of overt acts

COSTS – application for costs order to be paid in gross sum – evidence in support of gross sum from expert costs assessor – rounded-down sum ordered as asked – order that costs of application also be paid in gross sum

COSTS – departure from the general rule – offers of compromise – Calderbank letters – application by defendant for indemnity costs – defendant served a Calderbank offer early in the proceedings and an offer of compromise later in the proceedings – neither offer accepted by the plaintiffs – defendant succeeds on defence not raised until after Calderbank offer made – defendant obtains judgment more favourable than offers – whether offers constituted genuine compromises – whether unreasonable not to accept offers – indemnity costs ordered for period after date of offer of compromise

CIVIL PROCEDURE – Pleadings – Amendment – whether to grant leave to amend – whether proposed amendment is logical extension of case already pleaded - late amendments – whether proposed amendments open new questions for factual enquiry – no new evidence served in respect of new questions for factual enquiry – prejudice

CRIMINAL LAW – Trial by judge alone – Murder – Accused alleged to have fatally stabbed deceased in the chest – Belief, amongst others, that deceased responsible for 11 September 2001 – Special defence of not guilty by reason of mental illness – Schizophrenia or schizoaffective disorder – Psychiatrists of both parties agreed that defence available – Verdict of not guilty by reason of mental illness

STATUTORY CONSTRUCTION – Environmental Planning and Assessment Act 1979 (NSW) ss 6.19 and 6.20 – proper construction – whether this action is one for loss or damage arising out of or in connection with defective building work – defendant did building work, including on a ventilation duct under a building contract to which the plaintiff was not party – plaintiff occupied part of the building and suffered damage when a fire attributable to the defective building work occurred – Held: that the loss or damage suffered by the plaintiff did not arise out of and was not in connection with the defective building work within the meaning of s 6.20.

LANDLORD AND TENANT – construction of leases – extent of tenant’s obligation to repair damage to premises – construction and operation of provisions requiring tenant to pay outgoings – whether amounts charged by the landlord to the tenant were incurred for capital or structural works – entitlement of tenant to return of a bank guarantee provided to landlord as security for tenant’s obligations – entitlement of tenant to damages for landlord wrongfully making demand under the bank guarantee.

ADOPTION — FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Application for the adoption of two children, who are maternal siblings of the half blood, in favour of a married couple — Father of the first child opposed orders until directions hearing and then withdrew opposition, whilst not consenting to the adoption orders — Father of the second child and the mother of the children did not consent but did not appear or otherwise participate in the proceedings — Whether consent of children’s birth parents should be dispensed with — Whether proposed name change for each child to include surname of proposed adoptive parents, and inclusion of the surname of the birth father of first child, should be approved FAMILY LAW AND CHILD WELFARE — Amended Paternal Adoption Plan — Adoption plan — Whether the arrangements in the adoption plan are in the children’s best interests and are proper in the circumstances — registration of paternal Adoption Plan of first child — Where registration would mitigate residual risk in respect of birth father’s contact with first child — Whether amended Paternal Adoption Plan should be registered – Late consent to amended Paternal Adoption Plan agreed to by the birth father

SUCCESSION – Family Provision – The Plaintiff, a now adult child, applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) in respect of the estate and notional estate of both his father and of his mother – Father died in 2009 intestate – Mother died in 2017 – No application for administration in respect of either estate – Following commencement of hearing, the Plaintiff states that he does not wish to proceed with the claim in respect of father’s estate – Only claim in respect of mother’s estate Extension of time for the making of the application required in respect of the claim in relation to the mother’s estate – Defendant does not consent to the application being made out of time pursuant to s 58(2) of the Succession Act – Plaintiff required to satisfy the Court that there is sufficient cause for the making of the application Period of estrangement in relation to the mother – Attempts made by Plaintiff said to be in order to resurrect, or attempt to resurrect, contact – The mother not interested in resurrecting contact with the Plaintiff – Plaintiff’s attempts causing additional anguish to the mother The Defendant is another now adult child of the parents – His competing claim, as sole beneficiary named in Will considered – Only property that can satisfy an order for provision and costs is the interest in real estate held by the mother, as joint tenant, with the Defendant – Need for notional estate order to be made – Whether there are special circumstances that justify the making of a notional estate order Whether adequate and proper provision not made for the Plaintiff by the Will of the mother and if so the nature and quantum of the provision to be made – Whether notional estate order should be made

CIVIL PROCEDURE – Pleadings – Amendment – whether to grant leave to amend – late amendments –whether proposed amendments open new questions for factual enquiry – whether proposed amendments futile – prejudice

CRIME – sentence – murder – conviction following jury trial – offender killed estranged wife of 33 years and disposed of her body – offender’s post-offence conduct included attempts to create impression of ignorance – multitude of lies – difficulty of assessing objective seriousness in absence of evidence of how offender killed deceased and disposed of her body – motive for killing was offender’s inability to accept that his wife had right to choose her own course in life – evidence showed that deceased wanted to end their marriage and engage in relationship with new partner – intention to cause grievous bodily harm – offence aggravated because offender killed deceased in her home and dumped and concealed her body – offence marginally below narrow mid-range of offending – absence of remorse – prior criminal history – physical and mental health issues – no evidence of mental condition relevant to offender’s functioning at time of offence – importance of punishment, denunciation, and deterrence in murder committed in domestic violence context – unlikely to reoffend due to advanced age on release of low significance – no special circumstances

CRIMINAL LAW – sentence – where offender pleaded guilty to possessing a thing connected with a terrorist act – where offender also pleaded guilty to threatening a judicial officer – where mental illness contributed to offending – where offences lie at the lower end of the scale of objective seriousness – where offender now adheres to Judaism – whether offender poses risk of reoffending

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication determination – whether to set aside determination – whether determination void – whether relevant payment claim related to more than one construction contract – whether legislation does not apply by virtue of exclusion in section 7(2)(c) of legislation – whether legislation does not apply to relevant contracts because consideration payable was to be calculated otherwise than with reference to the value of the relevant work – whether denial of natural justice because adjudicator determined application on basis advanced by neither party – whether failure to give adequate reasons – whether any requirement that reasons be adequate – requirements of section 22(3) of legislation considered

CRIME — appeals — leave to appeal against sentence — four counts of supplying not less than the commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) — two offenders — whether sentencing judge erred in failing to take account of applicant's mental illness — parity — whether justifiable sense of grievance when comparing sentence imposed on co-offender — appeal dismissed

CRIMINAL PROCEDURE – Adjournment – application for adjournment to complete reading of documents produced on subpoena – reasons not sufficient to warrant an adjournment EVIDENCE – Course of evidence – Re-opening case – re-calling witnesses – agreement between the parties for the Crown to re-open its case – cross examination of Crown witnesses to be limited – s192 of the Evidence Act 1995

CORPORATIONS – external administration – application under s 439A(6) of the Corporations Act 2001 (Cth) to extend the period within which the second meeting of creditors must be convened – where further time required to investigate options for obtaining value for companies – where complex administration operating a business as a going concern – whether convening period for second meeting of creditors should be extended.

CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – section 18 of the Australian Consumer Law – whether representations were made – inadequacy and unreliability of plaintiffs’ evidence – relevant events occurred many years ago – errors evident in evidence of both plaintiffs – plaintiffs’ evidence contradicted by relevant documents and other evidence – plaintiffs’ evidence not accepted unless corroborated by documents or objective facts – plaintiffs’ evidence clearly based on discussion and agreement between themselves rather than independent recollection – plaintiffs’ perceptions of what was said – how alleged representations should be objectively understood – plaintiffs’ evidence not accepted except to extent that it involves admissions or is inherently probable CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – section 18 of the Australian Consumer Law – whether representations were misleading or deceptive – section 4 of the Australian Consumer Law – whether representations were with respect to future matters –– whether there were reasonable grounds for representations – evidence required to be adduced by representor CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – section 18 of the Australian Consumer Law – reliance on alleged representations – whether representations were relied on – calculation of loss – appropriate method for assessing loss – Potts v Miller – whether circumstances that brought about loss can be considered as arising from alleged wrongful conduct or whether loss is extrinsic to that conduct – inadequate evidence from plaintiffs TORT – Negligence – Duty of Care – whether relationship was one which gave rise to duty to take reasonable care to give investment advice – consideration of ‘salient features’ and circumstances of relationship – vulnerability – reasonable reliance – application of section 5H of the Civil Liability Act 2002 (NSW) – whether risk associated with investments could be considered ‘obvious risk’ under section 5F of Civil Liability Act 2002 (NSW) EQUITY – Fiduciary relationships – Hospital Products Ltd v United States Surgical Corporation applied – whether fiduciary relationship existed between mortgage broker and clients – fiduciary duties – proscriptive fiduciary duties only – no positive duty to act in plaintiffs’ best interests EMPLOYMENT AND AGENCY – employment – whether relationship of employer and employee – consideration of circumstances and features of relationship – indicia of relationship of employment – agency – consideration of circumstances and features of relationship – indicia of agency relationship – whether principal liable for conduct of agent

No question of principle

LAND LAW — Caveats — Lodgment of caveat claiming same interest as previous caveat — Lodgment with leave of court — Caveat lodged in breach of earlier order not to lodge further caveats

CIVIL PROCEDURE – alternative dispute resolution – court referral to referee – court’s use of report – whether referee’s findings as to rate of interest and fees payable should be set aside or varied – whether referee’s reasoning involves any error of principle, misapprehension of the evidence or unreasonableness – orders as to costs of reference.

SENTENCING – conspiracy to do acts in preparation for terrorist act – very serious offence because of the intention to kill on large scale – lengthy custodial sentence required – bomb plot and poisonous gas plot both significant potential terrorist events – achieved objective even though conspiracy interrupted by arrest of the offenders before their purpose achieved

SUCCESSION — Family provision — Claim by adult child – No issue of principle SUCCESSION — Family provision — Claim by former spouse for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether factors warranting — Succession Act 2006 (NSW), s 59(1)(b)

CRIMINAL LAW – costs – application for certificate under s 2 of Costs in Criminal Cases Act 1967 (NSW) – where medical opinion that pre-existing condition of the deceased and methamphetamine use caused death irrespective of the accused’s actions – where not reasonable to have instituted proceedings if expert opinions held when charge laid – circumstances in which citizen’s arrest lawful – where Court of opinion in s 3(1)(a).

ADMINISTRATIVE LAW – judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 323(1) – where defendant had pre-existing psychiatric conditions which were being treated and were asymptomatic – where work injury resulted in psychological injuries and whole person impairment – where Medical Appeal Panel assessed percentage deduction to whole person impairment for pre-existing conditions at 20% of whole person impairment – whether error of law by not taking fact of treatment into account – whether reasons adequate for not doing so

LAND LAW – possession of land – claim for possession and judgment for the amount owing under a loan agreement and mortgage – short-term loan pending approval of long-term finance - where the borrower had failed to repay the loan pursuant to the loan agreement – lenders entitled to possession and amount owing under loan agreement – parties instructed to bring in short minutes to quantify sum owing CONSUMER LAW – unconscionability – where the borrower claimed that the loan agreement was unconscionable either under the general law or statute – where the borrower claimed that the lenders should have requested proof of income – where the borrower claimed that a third party was exerting undue influence over him to the knowledge of the lenders – where the borrower claimed that he did not receive adequate independent advice about the loan agreement – where the borrower claimed that the loan was improvident because there was no effective exit strategy - no finding of unconscionability CONTRACT – unjust contract – whether the loan agreement was unjust pursuant to the Contracts Review Act 1980 (NSW) – where the borrower was aware at all times of the interest rates being charged – where the borrower understood the risks of entering into the mortgage – no evidence that the interest rates were unreasonably high or not reasonably necessary for the protection of the plaintiffs – contract not unjust CONSUMER LAW – misleading or deceptive conduct – s 18 Australian Consumer Law (Cth) – whether a cross-defendant made misleading or deceptive representations about a prospective loan – whether representor was a mere conduit for information provided by another - no evidence to support a finding that any such representation as pleaded was made – no misleading or deceptive conduct found TORT – fraud – whether the cross-defendant engaged in a fraud on the borrower and conspired with others to enrich themselves through the sale of the borrower’s property – no evidence whatsoever to support the assertion of fraud nor the assertion of conspiracy

LEASES AND TENANCIES – eviction by landlord – suspension of obligation to pay rent – characteristics of eviction – whether common law rule displaced by lease contract – whether covenants other than for rent suspended during eviction LEASES AND TENANCIES – construction of lease contract – where contract imposed obligations to obtain, maintain, comply with and provide the landlord copies of consents or approvals necessary or appropriate for mining business – time for compliance with obligations – no question of principle LEASES AND TENANCIES – termination of lease by landlord – termination notices – s 129 Conveyancing Act – whether notices required to specify reasonable time in which to remedy breach

EMPLOYMENT AND INDUSTRIAL LAW – termination – common law – summary dismissal – whether justified because of lack of candour of employed solicitor in dealing with legal precedents of the firm – no question of principle CONTRACTS – remedies – damages – wrongful termination of contract of employment – assessment of damages – whether and when partners would otherwise have resolved to terminate and whether would have resolved to make payment in lieu of notice – whether opportunity to seek employment whilst serving out notice period lost and compensable as a valuable opportunity

CRIMINAL LAW – Crown appeal against inadequacy of aggregate sentence – historical child sexual assault offences – elderly respondent – whether manifestly inadequate – whether judge overlooked s 25AA(1) of Crimes (Sentencing Procedure) Act – sentence patterns and practices at time of sentence – importance of expressly stating an offender has been sentenced in accordance with ss 25AA(1) and (3) – delay – whether fairness to respondent has played a dominant role in sentence – error of principle – reason for delay in old sexual assault offences – totality – respondent previously sentenced for similar offences – purposes of totality principle – failure of sentence to reflect the respondent’s conduct as a whole – non-parole period – double counting – whether residual discretion should be exercised – re-sentence – importance of general deterrence and denunciation – sentence increased.

CRIMINAL LAW – double jeopardy – retrial on manslaughter charge – acquittal of murder but conviction of manslaughter at previous trial – manslaughter conviction quashed and retrial ordered – manslaughter retrial held by majority to controvert earlier murder acquittal

COSTS – where plaintiff sought easements on various bases including by prescription, express grant and s 88K Conveyancing Act 1919 (NSW) – where orders under s 88K not required because plaintiff succeeded on prescriptive easement claim – where plaintiff failed on express grant claim – where successful prescriptive easements claim based on late amendment - whether plaintiff should pay defendants’ costs pursuant to s 88K(5) – whether departure from the usual order warranted – costs apportioned

EVIDENCE — opinion evidence — exceptions — expert opinion