Cases and authorities

CRIMINAL LAW – appeal and new trial – conviction appeal – applicant convicted of non-consensual sexual intercourse but acquitted of indecent assault – whether verdict unreasonable or insupportable having regard to evidence – principles applicable to unreasonable verdicts – assessment of factual circumstances – evidence of conduct and initial complaints significantly more substantial for offence resulting in conviction CRIMINAL LAW – appeal and new trial – conviction appeal – direction as to need to consider counts separately – direction as to use of doubts as credibility of complainant on one charge in considering other charge – comment as to prosecution case if satisfied as to complainant’s credibility – no objection taken at trial – whether direction adequate – R v Markuleski considered

CRIMINAL LAW – appeal against conviction – importation of firearms in parts – conspiracy to possess pistol – knowingly take part in the sale of a pistol on three or more occasions – directions with respect to the meaning of ‘firearm’ and ‘possession’ – whether multiple conspiracies CRIMINAL LAW – appeal against conviction – whether convictions for possession and sale based on same conduct – conspiracy to possess and possession for purposes of sale differentiated – directions as to the meaning of ‘sale’ – objection not raised by counsel at trial – prejudice CRIMINAL LAW – appeal against sentence – appellant sentenced for federal and State offences – whether scope of conspiracy accurately assessed – whether offender’s subjective case adequately taken into account – whether manifestly excessive

CIVIL LAW – application for expedited hearing – where plaintiff dying – application to join additional defendants – timetable

CIVIL PROCEDURE – Court ordered preliminary discovery – discovery to identify defendant’s whereabouts – requirement for reasonable inquiry – objective criterion – issue as to lateness of inquiry – discovery ordered.

CRIMINAL LAW – trial before a jury of 12 – application to discharge an individual juror – conduct of individual juror – question of wordless interaction between a juror and the accused – question of apprehension of bias

COSTS – summons for declaratory relief dismissed – whether no order as to costs appropriate – unsuccessful parties contend they enjoyed some success on issue in proceedings – successful party achieved dismissal on basis foreshadowed in correspondence – costs follow the event – no good reason to depart from general rule – costs awarded

MENTAL HEALTH – forensic patient – child sex offender – application for interim extension order (IEO) pursuant to Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act) – where defendant has no diagnosis of mental condition – meaning of “serious harm” – whether accessing child abuse material causes “serious harm” under Sch 1 of the Act – sexual attraction to children inferred – risk of commission of sexual “contact” offences against children established – risk cannot be adequately managed by other less restrictive means – IEO made

CRIME – Public justice offences – Conceal serious indictable offence – Concealment of serious indictable offences of cultivating large commercial quantity of prohibited plant and cultivating commercial quantity of a prohibited plant. CRIME – Appeals – Appeal against sentence – Denial of procedural fairness – Alternatives to full-time imprisonment. CRIME – Appeals – Appeal against sentence – Alternatives to full-time imprisonment – Whether sentencing judge erred in failing to consider alternatives. CRIME – Appeals – Appeal against sentence – Manifest excess – Whether sentence imposed manifestly excessive – Sentence of 8 months full-time imprisonment. SENTENCING – Penalties – Intensive correction orders.

CORPORATIONS – winding up – disposition of property – application for payment of fair market value of assets previously owned and possessed by company – where sole director of company has not delivered possession of assets to liquidator of company – whether an order should be made for payment to company of fair market value of assets.

BUILDING AND CONSTRUCTION – Expert determination ­­– Where, on the defendant’s case, four issues were referred to the expert for determination, but on the plaintiff’s case only one of those issues was validly referred, such that the expert’s determination ought to be void for want of a mandate – Where the contractual provisions governing expert determination allowed the parties to raise before the expert “any” cross claim, set-off or defence once an initial issue had been referred. CIVIL PROCEDURE – Separate determination of questions

COSTS – Indemnity for costs – whether Strata Corporation should indemnify plaintiffs for costs incurred in proceedings under Strata Schemes Management Act 1996 (NSW) (“SSMA”), ss 229 and 230 – distinction between grounds of appeal which advanced interests of Strata Corporation as a whole and those propounding a dispute between individual lot owners – whether Court’s powers under ss 229 and 230 extend to costs incurred in proceedings before New South Wales Civil and Administrative Tribunal. COSTS – Party/party – costs incurred on preparing grounds of appeal attributed according to outcome on appeal.

COSTS – Indemnity costs – Where the plaintiff refused an offer of compromise – No point of principle

CORPORATIONS – unregistered managed investment scheme – winding up – application for directions justifying distribution of funds deposited by particular category of investors – whether funds deposited by investors in the category held on trust for them. EQUITY – trusts – express trust – intention – where funds variously expressed to be “managed on behalf of investors” or “held on trust” – where inconsistent usage of such expressions. EQUITY – trusts – Quistclose trust – where funds expressed to be used to make trades “on behalf of” investors – where funds not applied for that purpose – whether funds held on Quistclose trust. EQUITY – trusts – Black v S Freedman & Co trust – where companies were operating a Ponzi scheme – where scheme fraudulent in character – whether funds held on Black v S Freedman & Co trust.

CRIMINAL LAW – sentence – federal offenders – conspiracy to cause loss to the Commonwealth –objective seriousness near the top of the range – significant loss to the Commonwealth – significant degree of planning – persistent course of conduct – early plea of guilty – [redacted] – good prospects of rehabilitation

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether genuine dispute — Series of invoices issued by contractor to manufacturer for warranty repairs — Dispute as to terms of contract between parties — manufacturer rejects certain invoices — Whether correspondence received — Where an invoice paid by credit notes — Where an invoice not due and payable at date of demand — Substantiated amount less than statutory minimum — Demand set aside.

COSTS – application for costs to be payable forthwith under Rule 42.7(2) Uniform Civil Procedure Rules 2005 (NSW) – where Notice of Motion contested on a discrete issue separate to principal proceedings – significant delay before Plaintiffs could recover costs – impecuniosity of unsuccessful party does not bear on exercise of discretion – interests of justice in exercise of discretion – appropriate to order costs be payable forthwith

TAXES AND DUTIES – payroll tax – liability to taxation – arrangements affecting liability to tax – objections and appeals – review of assessments pursuant to s 97(4) of the Taxation Administration Act 1996 (NSW) TAXES AND DUTIES – payroll tax – grouping of employers – interpretation of Part 5 of the Payroll Tax Act 2007 (NSW) – whether the taxpayer is a member of a group and jointly and severally liable – whether the taxpayer carried on business in NSW – whether there is a geographical limitation on the application of the grouping provisions

TAXES AND DUTIES – payroll tax – liability to taxation – arrangements affecting liability to tax – objections and appeals – review of assessments pursuant to s 97(4) of the Taxation Administration Act 1996 (NSW) TAXES AND DUTIES – payroll tax – employment agency contracts – interpretation of s 37(1) of the Payroll Tax Act 2007 (NSW) – meaning of “employment agency contract” – whether the provision and delivery of a “specific good” is distinct from the provision of labour and services

CRIMINAL LAW – appeal against conviction and sentence – appellant found guilty of dishonestly damaging property by fire with a view to making financial gain and two counts of doing acts with intent to pervert the course of justice – Crimes Act 1900 (NSW) ss 197 and 319 – whether convictions unreasonable having regard to paucity of evidence concerning (a) appellant being located at scene of fire (b) the cause of the fire (c) joint criminal enterprise and (d) financial gain – whether primary judge failed to comply with Evidence Act 1995 (NSW) s 18 concerning evidence from appellant’s de facto partner at the time of the fire – whether miscarriage of justice concerning jury directions – whether leave should be given to advance matters not raised at trial – whether sentence manifestly excessive, or contrary to principles of parity and totality – appeal dismissed

COSTS – questions of law submitted under Criminal Appeal Act s 5AE during summary proceedings in Land and Environment Court – successful appellant sought costs of s 5AE proceedings – costs ordered to successful appellant

BAIL – release application – no show cause requirement – strength in prosecution case – risk that applicant will commit further offences

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order and for examination by court-appointed psychiatrist and psychologist – Defendant currently serving parole for index offences committed in 2005 – where Defendant does not contest making of interim supervision order or examination – Court remains obliged to exercise function under Crimes (High Risk Offenders) Act 2006 – Court satisfied that an ISO should be made with associated orders for examination – application allowed

COSTS — Application for indemnity costs to be fixed in a gross sum — Plaintiff should not be put to burden of assessment — Defendant unlikely to participate further in assessment process — Where evidence of costs incurred unparticularised total — Court not in a position to make informed assessment as to quantum of order

POSSESSION OF LAND – mesne profits – principles – quantification – mesne profits awarded COSTS – ordinary basis – costs follow the event

CIVIL PROCEDURE – Hearings – Accounting Hearing – plaintiff and defendant declared to be respectively 40 to 60% owners of real property – accounts directed to be taken in respect of the respective use and occupation of the property by each of the defendant and the plaintiff since March 2009 – construction of the agreement made between the plaintiff and the defendant – determination of what payments are required between them by their agreement – whether particular items should be allowed or disallowed in the final accounting between the parties.

CONTRACTS – Construction – Principles – Determining when Lease commenced pursuant to clauses within “Agreement to Lease” and “Lease” – Several potential dates for commencement of lease were submitted by Defendant – Plaintiffs argued lease did not commence and no Lease Commencing Date – Commercially unrealistic to conclude that no lease had commenced in the light of the parties’ conduct CONTRACTS – Unconscionable conduct – Misleading or deceptive conduct – Whether Defendant’s conduct in terminating lease is unconscionable pursuant to meaning within s 46A of the Retail Shop Leases Act 1974 (Qld) or pursuant to s 20 or s 21 of the Australian Consumer Law, or misleading or deceptive conduct CONTRACTS – Breach of contract – Parties entered into a contract consisting of an Agreement for Lease and Lease of certain premises – Whether Plaintiff in breach of contract – Whether Defendant entitled to terminate lease CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Quantum of damages agreed to by the parties during course of hearing

HIGH RISK OFFENDERS – Application for extended supervision order – final hearing – history of serious sexual offending involving children – breaches of ISO and Child Protection Prohibition Order – 3 year extended supervision order imposed with conditions

HIGH RISK OFFENDER – sex offender – application for appointment of two psychiatrists/psychologists pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (the Act) – application for interim supervision order (ISO) pursuant to s 10A of the Act – where defendant bail refused on fresh charges – where application for ISO arguably wholly contingent – no controversy about application for psychiatric/psychological examinations – no controversy about application for ISO – consideration of contingent nature of proposed ISO – ISO imposed – discussion of disputed ISO conditions

ADMINISTRATIVE LAW – Judicial review – Review of decision of medical assessor – Whether medical assessor breached relevant guidelines – Whether there was evidence to support findings – Whether reasons were inadequate

CIVIL PROCEDURE – Court administration – Court powers – Control of proceedings – young person under the parental responsibility of the Minister resides in the Sherwood House program – young person three weeks short of her 18th birthday – Court’s parens patriae jurisdiction over her is shortly to expire – application to be made for appointment of the Public Guardian – funding assessment through National Disability Insurance Scheme (“NDIS”) has to support the young person living independently outside the Sherwood House program has not yet been undertaken – Court adjourns matter until after the young person’s 18th birthday to allow NDIS issue to resolve.

HIGH RISK OFFENDER – preliminary hearing – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for an interim detention order – alternative application for an interim supervision order – defendant in custody – statutory construction of “current custody” for the purposes of the Act – whether supporting documentation would justify the making of an extended supervision order or a continued detention order – where the defendant demonstrated rigid extremist ideologies – history of non-compliance with court orders and obligations – extensive criminal history escalating in frequency and violence – interim detention order granted

CORPORATIONS — Reinstatement — successive changes of office- and shareholding without authority — Company subsequently deregistered — Where proceedings in the Common Law Division carried on by company — Former owner of company “aggrieved” — “Just” that company be reinstated. CORPORATIONS — Reinstatement — Ancillary orders under s 601AH(3) of the Corporations Act —use of corporate key by former accountant — Corporate key still retained by that person — Orders for ASIC to cancel and reissue corporate key. CORPORATIONS — Registers — Rectification — Where documents lodged with ASIC do not reflect reality — Person recorded with ASIC as office- and shareholder in fact neither — Appropriate that documents lodged be withdrawn from register so as to record true position.

PRACTICE AND PROCEDURE – Application for leave to file an amended statement of claim – Where the plaintiff sustained injury when his hand became caught in a boat anchor chain – Whether there is sufficient explanation for delay – Whether the proposed amendments disclose a new cause of action

COSTS – application for payment of costs on indemnity basis from date of an offer – relevant principles considered

CRIMINAL LAW – appeals – appeal against sentence – indecent assault – whether sentencing judge erred in finding the objective seriousness of the offending as in the mid-range – whether sentencing judge erred by not giving sufficient weight to the applicant’s remorse – whether sentencing judge erred by failing to properly apply a sufficient discount for the guilty plea – whether sentencing judge erred by failing to consider alternatives to full time imprisonment – whether sentence manifestly excessive

CRIMINAL LAW – appeal – sentence – sexual assaults upon two persons under the age of 10 years – error conceded – sentencing judge erred by treating standard non-parole period as having determinative significance in the sentencing exercise – sentencing judge erred in giving effect to finding of special circumstances in relation to count 3 by extending the additional term, rather than reducing the non-parole period – resentence

CRIMINAL LAW – appeal – leave to appeal against sentence – extension of time granted – no merit –appeal refused

CRIMINAL LAW – sentence – appeal against sentence – Commonwealth drug offences – State drug and fraud offences – whether sentence imposed for a discrete offence was outside the available range – utility of sentencing statistics – whether a custodial sentence was warranted for discrete offence – manifest excess – question of parity with co-offender

CRIMINAL LAW – leave to appeal against sentence – offender pleaded guilty to 22 offences relating to child pornography and child abuse material – additional 15 child pornography offences taken into account on sentence – offender transmitted and solicited child abuse material to and from various male children – possession of child abuse material – offender transmitted indecent communications to various victims – offending conduct occurred over two-and-a-half-year period involving multiple offences and actual victims – two child victims of indecent communications identified – victims provided victim impact statements – two grounds of appeal that overall sentence was manifestly excessive as sentences imposed on discrete counts were manifestly excessive – element of artificiality in the complaints – sentences for discrete counts open to sentencing Judge – no error demonstrated – ground of appeal that overall sentence was manifestly excessive – active and persistent offender – favourable findings based on psychological evidence – cautionary approach given limited insight into offending behaviour – general deterrence a primary consideration in offences involving sexual predatory conduct towards children – no demonstrable error in total effective sentence – leave to appeal granted – appeal dismissed

CRIME – sentence appeal – where applicant convicted of manslaughter on the basis of excessive self-defence – where applicant sentenced to imprisonment for 9 years and 4 months with a non-parole period of 7 years – whether sentencing judge erred in assessment of the gravity of the offence – whether sentencing judge erred in finding that the offence was aggravated because it occurred in the victim’s home – whether sentencing judge erred in finding the applicant had an intention to kill – whether sentencing judge erred in finding that general deterrence was relevant to sentencing – whether sentencing judge erred by assuming that applicant must be sentenced to imprisonment – whether sentencing judge erred by failing to take into account delay as a mitigating factor – whether applicant should be resentenced

CIVIL PROCEDURE – Cross-vesting – Application to transfer to Supreme Court – No basis for application

COSTS – application for gross sum costs order – order not opposed – issue as to quantum – quantification of appropriate gross sum – relevance of principal and agent having been retained – whether costs payable forthwith or at the conclusion of the proceedings

CIVIL PROCEDURE — Cross-vesting — Transfer from Dust Diseases Tribunal of NSW to Supreme Court — Transfer to other Supreme Court – Relevant factors

CIVIL PROCEDURE – Hearings – Order that proceedings be heard together – Three separate proceedings, each seeking a family provision order out of the same estate – Because of late commencement of the third proceedings parties do not all agree that the three proceedings should be heard consecutively, with the evidence in one being evidence in the other – Uniform Civil Procedure Rules 2005 (NSW) r 28.5 – All proceedings involve “a common question” and it is otherwise “desirable to make an order” under the rule SUCCESSION – Family Provision – Four different Plaintiffs, a former de facto partner, a previous former de facto partner, a daughter, and a grandson, of the deceased, apply, in different proceedings, for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) – The Defendant is the executor of the Will of the deceased – The son of the deceased (who is the father of the grandson) is the sole beneficiary named in Will – No provision made for each Plaintiff – Estate of moderately large value – Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made SUCCESSION – Family Provision – Grandson’s claim out of time – Proceedings commenced three working days before hearing – Extension of time for the making of the application required in respect of the grandson’s claim – Parties to the proceedings consent to the application being made out of time pursuant to s 58(2) of the Succession Act­

CIVIL PROCEDURE – interlocutory relief – application for restraining order over livestock

CIVIL PROCEDURE – Application for stay of writ of possession

SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – only notional estate available – application by previously healthy adult son who suffered heart attacks and seriously debilitating illnesses after deceased’s death

ESTOPPEL – Anshun estoppel – where proprietors commenced earlier proceedings against builder alleging defective workmanship – where defendant architects prepared the building contract and supervised builder’s work but were not joined in earlier proceedings – where earlier proceedings referred out and referee’s report adopted – where proprietors do not in these proceedings seek findings inconsistent with those of referee in earlier proceedings – whether unreasonable for proprietors not to have joined architects in the earlier proceedings so that they are now estopped from bringing these proceedings CIVIL PROCEDURE – pleadings – striking out – abuse of process

PRACTICE and PROCEDURE – opening in document case – bundle for jury – Crown permitted to tender or mark bundle and provide to jury EVIDENCE – Business documents – provenance – obtained on search warrant from premises of accused and co-accused – each a representation or employee of business of which the document was a record EVIDENCE – relevance – discussed in context of highly circumstantial Crown case