Cases and authorities

GUARANTEE – action by creditor against guarantor – whether guarantor knew force and effect of document which she signed – credit of guarantor in issue – whether guarantor a volunteer – significance of relationship between guarantors – guarantor a witness of truth – guarantor did not understand force and effect of guarantee – guarantor deceived by a friend – guarantee unenforceable against guarantor.

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court — Special federal matter – whether Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 6 required proceedings to be transferred to the Federal Court as a “special federal matter” – whether proceedings “in bankruptcy” under Bankruptcy Act, s 27 – distinction between exercising jurisdiction “in bankruptcy” and recognising the effect of provisions of the Bankruptcy Act – whether proceedings a “special federal matter” where trustee in bankruptcy was joined as a party although made no claim, no party sought exercise of statutory powers under the Bankruptcy Act or an order declaring for or against the title of the trustee in bankruptcy to the relevant share in the company. CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Court — Special federal matter – whether retention of proceedings would have been justified under Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 6(3), had proceedings constituted a “special federal matter”– relevance and weight of “convenience of the parties” under s 6(3) – where two sets of proceedings raised parallel issues and proceedings could only be heard together in Supreme Court as Federal Court has no jurisdiction to entertain the appeal from the Tribunal – where retention of the proceedings would likely result in a more efficient determination of the dispute – whether retention would have been justified where it would not just be convenient to the parties but would promote the better administration of justice. CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors — whether sole shareholder of proprietary company validly appointed himself director by shareholders resolution - where share transferred to sole shareholder in his capacity as trustee prior to his impending bankruptcy – whether upon sole shareholder’s bankruptcy the power to appoint a director which attached to the share vested in his trustee in bankruptcy under Bankruptcy Act, ss 58(1), 116(2)(a) – nature of equitable interest in the share retained by the sole shareholder during bankruptcy and nature of equitable interest acquired by his trustee in bankruptcy pursuant to Corporations Act, ss 1072B, 1072C, 1072F – whether sole shareholder’s bankruptcy restricted exercise of power of appointment under Corporations Act, s 201G – whether Corporations Act, s 201F(3) awards trustee in bankruptcy exclusive power to appoint a director during shareholder’s bankruptcy and subsequent to his discharge - grant of statutory power under s 201F(3) facultative not exclusive and must be construed in light of company members’ freedom to adopt principles in company constitution for the appointment of directors. CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors – whether, if invalid, appointment of sole director of proprietary company should have been validated under Corporations Act, s 1322(4) – whether dispensing power would have been available if 201F(3) had exclusive effect – operation of requirements under s 1322(6) – consideration of “essentially of a procedural nature” where no lawful procedure for carrying out statutory requirement – whether “just and equitable” to validate appointment where trustee in bankruptcy took no action to appoint director and no person other than purported sole director asserted interest in the company – whether substantial injustice caused to party opposing claims brought by company in Tribunal proceedings - whether validation of appointment would cause company or beneficiaries “substantial injustice”. CORPORATIONS — Directors and officers — representation – validity of solicitor’s retainer where retained by director whose appointment was purportedly invalid – whether retainer valid under Corporations Act, s 201M – examination of 201M and its historical predecessors alongside construction of s 1322 – whether retainer may be ratified by shareholders resolution – whether company was “competent principal” when without a director – whether majority of general meeting can ratify legal proceedings brought without authority of the company – whether general meeting carries power to make management decisions. CORPORATIONS — Directors and officers — representation – whether solicitor’s retainer should be validated under s 1322(4) – whether “just and equitable” to make order and whether opposing party in proceedings suffered “substantial injustice” by solicitors acting for the company. ADMINISTRATIVE LAW - administrative tribunals - statutory appeals from administrative authorities to courts – appeal from decision of Civil and Administrative Tribunal (NSW) under Civil and Administrative Tribunal Act 2013 (NSW), s 83(1) – whether Tribunal ought have adjourned proceedings to allow NSW Supreme Court to resolve challenge to retainer and validity of director’s appointment - scope and limits of Tribunal’s powers – whether Tribunal had power to make orders sought by virtue of jurisdiction to make “ancillary decisions” or dismiss proceedings that are “frivolous or vexatious or otherwise misconceived”. CIVIL PROCEDURE — Stay of proceedings — Inherent power — Abuse of process – Court may intervene and stay proceedings on basis of an abuse of process where challenge to corporate plaintiff’s authority to bring proceedings – whether and when defendant has right to challenge plaintiff’s authority – – challenge to authority not a substantive defence to plaintiff’s claim but brought by notice of motion –consequences of distinction for further conduct of proceedings - judicial discretion to entertain application and appropriate circumstances to do so - Chancery rule of practice that Court ordinarily adjourn proceedings to allow opportunity for company to ratify proceedings or apply for validating order under Corporations Act, s 1322. CIVIL PROCEDURE — Stay of proceedings — Inherent power — Abuse of process – power to award costs where proceedings brought by corporate plaintiff without authority – juridical basis and appropriate exercise of such power – whether costs order properly made against solicitor for corporate plaintiff bringing proceedings without proper authority.

CONTRACT – deed – guarantor’s right of indemnity against primary obligor – whether enforceable – provision in multipartite deed by which guarantor “irrevocably waives and must not exercise any right of indemnity” – whether that provision enforceable by primary debtor – whether fact that guarantor and primary debtor were parties to deed sufficient to permit guarantor to enforce provision – whether “privity” entitled guarantor to rely on provision – whether sufficient that provision was clear and unambiguous – whether provision on true construction amounted to unilateral renunciation of right of indemnity EQUITY – set-off in equity – requirement of impeachment – whether debt owed by parent company impeached appellant's debt to respondent – no error in conclusion by primary judge that impeachment not made out

NEGLIGENCE – contribution between tortfeasors – plaintiff suffered injury in workplace – plaintiff brought proceedings against occupier and a contractor on site – proceedings between plaintiff and occupier compromised – occupier sought statutory contribution against contractor – whether primary judge failed to deal with way in which occupier had advanced its case – whether primary judge erred in (notional) assessment of contribution – appeal dismissed

CONTRACT – formation of contract – acceptance – whether contract executed by offeree – whether signature forged - question of fact – held, contract executed CONTRACT – formation of contract – acceptance – whether offer accepted by conduct – whether offeree had notice of terms – question of fact – held, offer accepted CONTRACT – construction – where contract provided for broker to earn “saving fee” of 20% of “saved debt” – where broker negotiated discharge of mortgage for less than amount secured but no reduction in personal indebtedness – held, the definition of “saved debt” upon which entitlement to a “saving fee” depended was concerned with personal indebtedness not amount of any encumbrance – the fee was not earned CONTRACT – unjust contracts – relief under Contracts Review Act not available to a corporation – whether defendants’ application for relief made within time – whether contract for the purpose of a business carried on by personal defendant – whether provision of contract relating to interest rate unjust – where upon refinance of pre-existing liability defendants not specifically informed of significantly higher interest rate – held, provision was unjust and interest varied to pre-existing default interest rate as against personal defendant only FIDUCIARY OBLIGATIONS – whether relationship between accountant/financial adviser and client was fiduciary – held, at least in connection with lending transaction it was not – whether refinance transaction in interests of adviser and contrary to interests of client – held, it was not – whether restitution possible – held, it was not, but if there was a breach of fiduciary obligation and restitution was possible there should be a just allowance by way of interest

PROCEDURAL – leave to file amended pleading – where pleading is deficient and plaintiff has had five opportunities to re-plead in proper form – where claim for contribution is ambiguous about the amount paid by the plaintiff– leave refused

CIVIL PROCEDURE — Cross-claims — Right of set-off — Costs — No issue of principle

FAMILY LAW AND CHILD WELFARE – adoption – where child has lived with proposed adoptive parents for significant period of time – where child has always lived separately from two full siblings – whether consent of birth parents should be dispensed with. FAMILY LAW AND CHILD WELFARE – adoption – where child primarily attached to proposed adoptive parents – where adoption order is in child’s best interests – where adoption is preferable to other courses – whether an adoption order should be made.

HIGH RISK OFFENDERS – application for extended supervision order –whether high degree of probability that offender posed unacceptable risk of committing another serious offence – extended supervision order made – conditions imposed

ADMINISTRATIVE LAW – judicial review – decision under the Motor Accident Compensation Act 1999 – SIRA proper officer refused application for further assessment of a medical dispute – whether proper officer’s decision affected by error of law on the face of the record or jurisdictional error – failure to address substantial, clearly articulated argument – error established – decision set aside and matter remitted for redetermination according to law

APPEAL – appeal from an order of the Children’s Court – application by police for an order permitting the carrying out of a forensic procedure – decision of the Magistrate to refuse leave to the suspect to cross-examine a witness to the application – question of whether evidence was illegally or improperly obtained by police – decision of the Children’s Court that the evidence was lawfully obtained – challenge to the making of an order

ADMINISTRATIVE LAW – judicial review – whether Solicitor-General validly authorised proceedings against plaintiff – whether mandatory considerations should be implied – no error in Solicitor-General’s decision CRIME – appeals – appeal against conviction – where plaintiff convicted of an omission – whether plaintiff under a legal duty to perform the omitted act – whether statute creates the legal duty to perform the omitted act CRIME – appeals – appeal against conviction – whether magistrate erred as to the elements of the offence CRIME – appeals – appeal against conviction – whether magistrate erred in finding that plaintiff intended to communicate disrespect – whether magistrate’s expression of a view on an irrelevant matter constitutes error of law CRIME – appeals – appeal against conviction – whether magistrate erred in finding that plaintiff’s behaviour was disrespectful to the judge – whether magistrate’s expression of a view on an irrelevant matter constitutes error of law CRIME – appeals – appeal against conviction – whether magistrate erred in finding that there was no evidence that plaintiff held a relevant religious belief – whether magistrate’s finding is relevant to whether plaintiff’s conviction is unsafe CRIME – appeals – appeal against conviction – whether magistrate erred in holding that plaintiff’s failure to stand was disrespectful to the court – whether magistrate erred with respect to meaning of “disrespectful” CRIME – appeals – appeal against conviction – whether magistrate erred in finding that plaintiff knew of the relevant court practice and convention – whether magistrate’s expression of a view on an irrelevant matter constitutes error of law CRIME – appeals – appeal against conviction – whether magistrate erred in finding that plaintiff’s failure to stand communicated disrespect – whether magistrate’s expression of a view on an irrelevant matter constitutes error of law CONSTITUTIONAL LAW – implied freedom of political communication – whether s 200A of the District Court Act infringes the implied freedom of political communication – where plaintiff not engaged in political communication – whether it would be appropriate to determine whether the impugned provision infringes the implied freedom of political communication CONSTITUTIONAL LAW – Chapter III of the Constitution – whether s 200A of the District Court Act is invalid because it is a state law that affects the exercise of federal jurisdiction CONSTITUTIONAL LAW – Chapter III of the Constitution – whether Chapter III contains the implication that a law may not unduly burden a person’s participation in the exercise of Commonwealth judicial power – whether s 200A of the District Court Act is inconsistent with alleged implication CRIME – appeals – appeal against sentence – where plaintiff sentenced to 75 hours of community service – whether magistrate’s expression of views on irrelevant matters may have caused sentencing discretion to miscarry – whether plaintiff denied procedural fairness as a result of magistrate taking into account matters without alerting plaintiff to the possibility that she may do so

CORPORATIONS — Winding up — Following failure to comply with statutory demand — Whether presumption of insolvency displaced — Barely sufficient cash at bank deposited before hearing — Credits and debts to ATO contingent upon favourable objection ruling — Evidence of imminent demand on guarantee given by company — Payment of plaintiff’s debt after judgment reserved — Winding up order made.

CIVIL PROCEDURE – Notices to produce – documents sought under notice to produce – whether notice to produce should be set aside – whether no legitimate forensic purpose – whether an abuse of process – whether use of documents precluded by the Harman undertaking

TAXES AND DUTIES – pay-roll tax – employment agency contracts – review of assessments pursuant to s 97 of the Taxation Administration Act 1997 (NSW) TAXES AND DUTIES – pay-roll tax – employment agency contracts – interpretation of s 37(1) of the Payroll Tax Act 2007 (NSW) – meaning of “employment agency contract” – whether it is only the “employment agent” closest in the chain of contractual arrangements leading up to the procurement of the services of another person or persons (the service providers) for an end user (the client) on whom liability for payroll tax arises

CIVIL PROCEDURE – summary disposal – application for dismissal of proceedings for want of due dispatch – UCPR r 12.7 – personal injury proceedings – proceedings fixed for hearing - where the plaintiff’s solicitors ceased to act one month before hearing – several adjournments granted to allow the plaintiff the opportunity to engage new solicitors – no new solicitors engaged – hearing date vacated - where the plaintiff was properly notified of the defendants’ intention to seek summary disposal – no steps taken by plaintiff for three month period - absence of contact from the plaintiff - plaintiff provided no evidence explaining his delay in prosecuting the proceedings – application granted

CRIMINAL LAW – pre-trial application – compellability of witness – Accused charged with murder – wife of the Accused objects to giving evidence for prosecution under s.18 Evidence Act 1995 – objection based upon prospect of harm to witness and not harm to relationship between witness and Accused - witness holds genuine fears of being harmed by [identity of third parties redacted] – where only a confined area of evidence gives rise to prospect of harm to witness – whether proper construction of s.18 requires an all-or-nothing approach to an objection under s.18(2)(a) – no prejudice occasioned to Crown or Accused by allowing objection concerning parts of evidence – objection partially overruled – whether comment can be made by Judge to jury concerning ruling under s.20 Evidence Act 1995 – whether witness can give evidence via audio-visual link - orders made

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” TAXES AND DUTIES – payroll tax – employment agency contracts –s 32(2)(c) of the Payroll Tax Act 2007 (NSW) – whether the “two-person” exemption applies TAXES AND DUTIES – payroll tax – employment agency contracts – interpretation of s 40(1)(a) of the Payroll Tax Act 2007 (NSW) – amounts taken to be wages TAXES AND DUTIES – payroll tax – penalty tax – whether taxpayer took “reasonable care to comply with the taxation law” within the meaning of s 27(3)(a) of the Taxation Administration Act 1996 (NSW)

CRIMINAL LAW – Terrorism offences – Sentence – Intentionally providing support or resources to a terrorist organisation – Where the offender researched and developed a laser warning receiver and a rocket guidance method for Islamic State – Where offending occurred over a significant period of time – Where offender asserted that at the time of the offending he held a belief that Islamic State was a ‘force of good’ – Seriousness of offending – Consideration of remorse and prospects of rehabilitation CRIMINAL LAW – Terrorism offences – Sentence – Intentionally providing support or resources to a terrorist organisation – Where there was no suggestion that the offender had left Australia to participate in a foreign conflict or to undertake training with an extremist group overseas before returning home – Whether the fact that the present offending did not fall into such a category was a mitigating factor – Reference to Explanatory Memorandum issued at the time of enacting the legislation creating the offence CRIMINAL LAW – Offences – Sentence – Failing to comply with an order requiring the disclosure of passwords to encrypted devices – Where offender stated that he had acted out of anger – Frustration of police investigation as a result of information not being provided

APPEAL – leave to appeal – whether insurer should be joined as party to District Court proceedings against insured driver – Motor Accidents Compensation Act 1999 (NSW), s 79 – where real possibility of conflict between interests of insurer and insured driver

CRIME – conviction appeal – where applicant convicted of having taken and driven a motor vehicle without the consent of the owner in circumstances of aggravation – whether trial judge erred in circumstantial evidence direction to the jury – whether trial judge erroneously minimised the lack of identification of the applicant as the important issue in the applicant’s response to the Crown case – whether trial judge should have excluded parts of the ERISP in which the police purported to identify the applicant in CCTV footage – whether verdict is unreasonable – appeal dismissed CRIME – sentence appeal – where applicant sentenced to imprisonment of 7 years with non-parole period of 5 years – whether sentence manifestly excessive – appeal dismissed

CRIME – appeal against sentence – applicant pleaded guilty to aggravated robbery with wounding – whether insufficient weight given to applicant’s mild intellectual disability – whether sentence manifestly excessive – appeal allowed and applicant resentenced

CRIMINAL LAW – Sentence – Appeal – Sending an explosive substance with intent to burn – Whether offending premeditated – Whether immaturity played a part in the offending – Consideration of sentencing principles relating to youthful offenders – Whether sentence manifestly excessive

CRIME – bail – release application – terrorism charge – applicant failed to show exceptional circumstances – application refused

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

CRIMINAL LAW – proceeds of crime – restraining orders

CORPORATIONS – members’ rights and remedies – oppression – orders to be made.

CONTRACTS — Construction — Principles of interpretation relating to construction of partnership deed — Additional requirements for partners to vary constituent documents — Whether variation effected by consent within the meaning of s 19 of the Partnership Act 1892 (NSW), including by a course of dealing over time — Requirement for unanimity under s 19 — Whether non-voting partners are included in this requirement CONTRACTS — Termination — Repudiation of contract — Whether termination effective — Reliance on information acquired after the date of termination in order to justify same — Such justification must in fact be available at the time of what would otherwise be a repudiation CONTRACTS — Remedies — Damages — After repudiation — Past and future losses — Proper calculation of damages where individual was already serving notice period prior to repudiation — Complicating factor of termination on notice itself not effective CONTRACTS — Remedies — Damages — After repudiation — Loss of chance — Principles governing damages for loss of chance to gain other employment while still a partner INTERPRETATION — General rules of construction — Interpretation of resolutions of members of an organisation — Proper construction of resolution of partners bound by a partnership deed to vary that deed EMPLOYMENT LAW — Principles governing validity of summary dismissal — Whether conduct sufficient to justify summary dismissal at common law PARTNERSHIP — Rights and duties of partners inter se — Fiduciary relationship — Whether specified conduct breached the obligation of fidelity between partners in a workplace context EVIDENCE — Course of evidence — Pleading principles — When parties may amend their pleadings during or after the trial — Forensic inappropriateness of a vague pleading — Effect of a party running a dishonesty case without adequate prior notice ESTOPPEL — Estoppel by convention — Mutual assumption — Course of dealing — Impact of a party not promptly demanding performance of its contractual rights

CONTRACTS — Identification of terms – whether terms and conditions of written agreement form part of contract in fact reached – where clear agreement between the parties that agency agreement be “sole” rather than “exclusive” - where “exclusive” struck out and “sole” written and changes initialled – where parties did not turn their minds to further terms and conditions of written agreement which became inapposite to the “exclusive” agency agreement reached – relevance of parol evidence rule - party may prove there was in fact no agreement on particular term within an apparently complete written agreement. CONTRACTS — Rectification — Intention — Common intention – rectification appropriate where clear mistake - parties did not avert to inclusion of term which was inapposite to their agreement – rectification appropriate to delete “exclusive” or read “exclusive” as “sole”. CONTRACTS — Construction — Interpretation - where option agreement provided for exercise of option by party or its nominee – whether purchase by exercise of option a “purchase” within meaning of agency contract so as to make the commission payable – where clause equating exercise of option with purchase appropriately excluded by construction or rectification – proper juridical analysis of an option – whether service of notice per contractual procedure brought about “purchase” within meaning of contract to make commission payable – where agency contract must be interpreted in a commercially sensible way – party exercising option cannot be seen as a “purchaser” as agency contract premised on voluntary transaction – commission not payable. CONTRACTS — Construction — Interpretation - Natural and ordinary meaning - where contract specifically required agent to introduce purchaser to vendor during agency period – whether “introduced” extends to bringing purchaser “into contact” with vendor during period of agreement notwithstanding that initial contact occurred prior to agency period – purchaser not “introduced” to vendor during agency period as natural implication of “introduced” is that an introduction can only happen once and alternate construction would render term meaningless. CONTRACTS —Termination — Frustration - whether agency contract frustrated where sale did not take place by way of fresh contract following release of option – where common assumption not expressed in terms of agency agreement but discerned from relevant surrounding circumstances subject matter of contract may be expressed as sale of property free from option - where agent aware of purchaser’s sole interest to proceed by way of fresh contract for sale excluding option - where terms of agency agreement reflected common assumption – where agent would have no authority to sell property absent release of the option - agency contract deprived of continuing legal effect when option not released.

APPEAL – appeal against Land and Environment Court judge’s decision to refuse development application – proposed development contravened height development standard – judge not satisfied cl 4.6 request justified contravention – judge not satisfied development consistent with objectives of standard – whether misdirection as to cl 4.6 and objectives of standard – whether denial of procedural fairness by not giving amber light approach

COSTS – offer of compromise – defendant’s offer better than that obtained by plaintiff – special costs order made

CIVIL PROCEDURE - parties — persons under legal incapacity — tutors – where plaintiff sought to discontinue by consent – whether approval of Court was required

CONTRACTS – managed investment scheme – deeds – whether loan deed valid and enforceable on its face – whether loan deed valid and enforceable by force of deed of settlement in representative proceedings – whether defendant a group member – whether there is otherwise an enforceable loan agreement LIMITATION OF ACTIONS – debt – whether action under loan agreement is statute-barred – whether amendment should take effect from date of amendment

COSTS – proceedings for appointment of trustees for sale of property under Conveyancing Act 1919 (NSW), s 66G – departure from the usual order made in such cases – NSW Trustee and Guardian (“NSW Trustee”) appointed financial manager for plaintiff – where NSW Trustee made a decision to sell the co-owned property in order to pay the plaintiff’s debts and provide for future expenses – where defendant unsuccessfully challenged the NSW Trustee’s decision in NCAT – where defendant then agreed to sale but later maintained opposition to sale – whether defendant’s conduct unreasonable – conduct held to be unreasonable – indemnity costs ordered

PRACTICE AND PROCEDURE – judgments and orders – form of orders to be made following delivery of judgment – dispute over new boundaries between the plaintiff’s and second defendant’s land following the Court’s determination that most of the first defendant’s title to the claimed land is extinguished by the plaintiff’s adverse possession – plaintiff’s proposed orders preferred COSTS – departure from the general rule – offers of compromise – plaintiff made two offers of compromise shortly before the hearing – neither offer accepted by the defendants – plaintiff obtains judgment more favourable than offers – whether offers constituted genuine compromises – whether it was reasonable to not accept either offer – offers held to be genuine compromises – defendants failure to accept offers not shown to be reasonable

CRIMINAL LAW – Offences – Sentence – Where the offender pleaded not guilty on the grounds of mental illness to the commission of a terrorist act – Where the offender was found guilty by a jury – Where the terrorist act involved a stabbing attack – Where the offender had specifically targeted the victim – Where the offending was planned – Where the offender intended to kill the victim – Offender motivated by extreme ideology – Consideration of principles applicable to sentencing for terrorism offences – Necessity for severe punishment CRIMINAL LAW – Offences – Sentence – Practice and procedure – Use of victim impact statements in sentencing federal offenders – Where statements provided by persons who witnessed the offending and who intervened to assist the victim were tendered by the Crown – Whether such statements were properly received in evidence – Whether those persons were properly regarded as victims of the offending CRIMINAL LAW – Offences – Sentence – Where the offender suffered from mental illness – Where mental illness not causally related to the offending – Impact of mental illness on the question of general deterrence CRIMINAL LAW – Offences – Sentence – Where sworn evidence was given by the offender expressing his remorse for the offending and renouncing his previously held extremist ideology – Where offender gave evidence of having previously lied to doctors about that ideology – Whether evidence should be accepted – Effect of that evidence on the assessment of the offender’s prospects of rehabilitation WORDS AND PHRASES – “victim”

CRIMINAL LAW – bail – appeal bail – appeal to the High Court – where special leave granted – “special or exceptional circumstances” – appeal at least arguable – where non-parole period imposed in District Court expired – where substantial proportion of non-parole period imposed on Crown appeal will have been served – applicant on bail for three years pending sentence – bail granted

CRIMINAL LAW – application for leave to appeal against sentence – offence of break, enter and steal, aggravated break, enter and steal – Form 1 matters – whether sentencing judge failed to assess the objective seriousness of the offences – new evidence, including evidence of applicant’s intellectual disability, received on re-sentence

INCOME TAX – Ordinary income – agreement to make payments to a company in exchange for supply of services by a consultant – company did not operate any business other than the supply of services by the consultant – whether payments were ordinary income derived by the consultant CRIME – Appeals – Appeal against conviction – New trial – prosecution advanced argument on appeal not raised at trial to support conviction– significant elapse of time since offences and likely delay in new trial – whether appropriate to make an order for a new trial

CRIMINAL LAW – appeal against conviction – appellant charged with child sexual assault offences against four young children – appellant found guilty and aggregate sentence imposed – counts one, two and three involved offences committed when appellant aged between 11 and 13 – whether guilty verdicts on those counts were unreasonable – whether Crown had rebutted doli incapax presumption – verdicts on counts one, two and three quashed – whether evidence of complainants admissible as tendency evidence on counts involving other complainants – whether probative value of evidence substantially outweighed prejudicial effect – appeal allowed in relation to conviction on counts one, two and three and dismissed in respect of counts four to twenty

CRIME – sentence appeal – where appellant pleaded guilty to murder – where appellant sentenced to imprisonment for 36 years, with a non-parole period of 27 years – whether sentencing judge erred in finding murder involved a significant degree of premeditation – whether sentencing judge erred when determining objective seriousness – whether sentence manifestly excessive – appeal allowed – resentence

CIVIL PROCEDURE – Interlocutory application –Claim by Plaintiff, a son of the deceased, for a family provision order – Application for security for costs by defendant, the spouse of the deceased in a long marriage – The Plaintiff not ordinarily resident in New South Wales but ordinarily resident in Macedonia – Plaintiff has no property in New South Wales – Plaintiff’s solicitor conducting proceedings for Plaintiff on basis of a conditional costs agreement – Whether competing factors in favour of not granting order for security – Security for costs ordered – The Plaintiff and Defendant disagree as to the amount of security to be provided – Amount of security to be provided determined by the Court – When orders proposed to be made Plaintiff accepts no reason for proceedings to continue – Consent to dismissal of the proceedings COSTS – Security for costs – Plaintiff resident outside jurisdiction – Orders that Plaintiff pay the Defendant’s costs of the notice of motion SUCCESSION – FAMILY PROVISION – COSTS – Following dismissal of the suit for family provision order – Offer of Compromise served about 4 months prior to the hearing of notice of motion for security for costs – Consent to dismissal of the proceedings - Defendant obtains order no less favourable than offer made in Offer of Compromise – Whether Court’s discretion should be exercised to depart from UCPR – Overall justice of the case does not warrant exercise of the Court’s discretion to “order otherwise”.

LAND LAW – caveats – whether caveatable interest arose under Loan Agreement – whether caveat is invalid for lack of description – extension of operation of caveat refused – leave to lodge fresh caveat pursuant to s 74O Real Property Act 1900 (NSW)

CIVIL PROCEDURE - jurisdiction — transfers to and from other courts — District Court – where quantum of cross-claim in the District Court exceeded the jurisdiction of that court – where cross-claim sought account of profits and equitable compensation

PROCEDURE – civil procedure – where plaintiff seeks to tender psychiatrist’s report – where report served on defendants late – whether opinion proffered by psychiatrist falls within his area of expertise – whether opinion proffered by psychiatrist is based upon established facts – tender of report rejected PROCEDURE – civil procedure – where plaintiff wishes to have his counsel released from an undertaking not to communicate material produced on subpoena – whether release of undertaking would cause prejudice to the defendant – counsel released from undertaking

HIGH RISK OFFENDER – compulsive child sex offender also convicted of manslaughter – application for interim detention order (IDO) – application for mandatory psychiatric and psychological examinations – discussion of whether community safety is paramount consideration in application for IDO in accordance with s 18A of the Crimes (High Risk Offender) Act 2006 (NSW) – consideration of whether defendant has overcome sexual attraction to children – significance of the denial of unlawful killing by defendant – applications granted

LEASES AND TENANCIES – requirements of s 129 of the Conveyancing Act 1919 (NSW) – where lease required lessee to obtain all relevant development consents or approvals for specified use of land – where lessor issued notice to remedy breach of lease – where lessor later issued notice of termination of lease – whether time given to remedy breach of lease was reasonable – whether lease was validly terminated.

CIVIL PROCEDURE – Parties – Joinder – Applicants are executors of estate of the deceased – Claim in Queensland brought by GRP, the biological son of the deceased who had been adopted in 1965 under Child Welfare Act 1939 (NSW) – Effect of adoption – Adopted son seeks order to discharge the adoption order made in New South Wales – The executors are the named Defendants in the Queensland proceedings – Executors seek joinder to son’s notice of motion for discharge of the adoption order – Son opposes joinder – Whether executors are necessary or proper parties to the discharge notice of motion