Cases and authorities

CONSUMER LAW – misleading or deceptive conduct – whether fifth and twelfth defendants made representations about scheme which were misleading or deceptive – whether those defendants liable to investors on that or other bases BANKRUPTCY – jurisdiction and powers of court – no leave obtained under s 58(3)(b) of Bankruptcy Act 1966 – whether claims made in proceedings are for a provable debt BANKRUPTCY – procedure – whether continued prosecution of proceedings involves taking a fresh step in the proceedings PARTNERSHIP – generally – what constitutes partnership – whether partnership is limited when partnership agreement not registered PARTNERSHIP – actions by and against partners – actions and proceedings against firms and individual partners – partnership conducting sports trading business – scheme said to be fraudulent, masterminded by twelfth defendant – second and fifth defendants named as partners – investment of group members lost

LAND LAW – conveyancing – contract for sale – deposit – whether to order relief against forfeiture under Conveyancing Act 1919 (NSW), s 55(2A) CONTRACTS – misrepresentation – elements –whether sellers’ agent made misrepresentations to buyer – whether buyer relied on any such representations

PRACTICE – stay of execution – expedited appeal by unsuccessful impecunious plaintiff from final hearing dismissing her claim – defendants/respondents take steps to have costs order of trial quantified – appellant seeks stay of execution of costs certificates pending appeal – stay granted

COSTS – Party/Party – orders against non-parties – factors relevant to exercise of court’s discretion to award costs against non-parties – whether in the interests of justice to order non-party common director of defendant/appellant companies to pay costs COSTS – Party/Party – indemnity costs – offer of compromise – UCPR 41.14

SENTENCE – discharge firearm with intent to cause grievous bodily harm – possess a shortened firearm – assault occasioning actual bodily harm – whether the sentencing judge relied on the wrong maximum penalty in relation to Count 2 – whether the sentencing judge erred by failing to find a causal link between the applicant’s mental health issues and the offending – applicant re-sentenced

PROCEDURE – security for costs – application for security for costs – discretionary factors – where party is impecunious – where costs order sought would stifle proceedings

CRIMINAL LAW – remarks on sentence – accessory after the fact to murder – plea of guilty – assistance to authorities – young, damaged offender – discussion of objective gravity and moral culpability of offence – sentence imposed

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — Settlement of all issues except costs

CRIMINAL LAW – sentence – murder – joint criminal enterprise – victim impact statement – objective features – role and functions of the offender – planning – motive – objective seriousness – criminal history – prospects of rehabilitation – no special circumstances – orders

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Whether the offer of compromise involved a real element of compromise

INSURANCE – liability insurance – substitution of insurer – application for leave – no point of principle

CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — Cy-près scheme — Failure of object SUCCESSION – Executors and administrators – Proceedings by executors or administrators – Appeal from orders of Attorney General relating to cy-près schemes

CRIME – pre-trial rulings on evidence – objections to evidence by accused – evidence relating to circumstantial case – objection overruled with regard to evidence of black Toyota Kluger on basis it was relevant and had some probative value – objection upheld with regard to evidence relating to Mr Murray on basis that evidence could be misused by jury – objection overruled with respect to evidence of bullet cartridges on basis that probative value outweighed danger of unfair prejudice – objection upheld in relation to accused’s movements prior to ERISP on basis of relevance – objection overruled with regard to recording on basis the statement amounted to an admissions – objection upheld with regard to recording on basis of relevance and unfair prejudice – objection upheld with regard to recording on basis of relevance, limited probative value and likelihood of misuse by jury – objection overruled with regard to questions in ERISP on basis that questions were not unacceptable for police to ask

CRIMINAL LAW – sentence – murder – where victim assaulted offender without provocation – offender injured in assault – offender returns home, collects knife, seeks out victim and stabs him – plea to manslaughter not accepted – convicted after trial –whether the offender intended to kill or to inflict grievous bodily harm – aggravating factors – the use of a weapon – offence committed on the front steps of the victim’s home where the victim was required to reside in the premises as a condition of bail – offence not aggravated by the presence of a child where the child did not see the stabbing or realise it had occurred – offence low in the mid-range of objective seriousness - absence of remorse – low risk of re-offending and good prospects of rehabilitation – provocation resulting in a heightened state of arousal – absence of special circumstances

CRIME – terrorism offences – foreign fighting – offence of engaging in a hostile activity in a foreign State – elements of the offence – consideration of directions to be given to the jury – physical element – requirement that there be some realistic potential connection between the act alleged and the objective allegedly intended to be achieved – fault element – meaning of the phrase “armed hostilities”

EVIDENCE — Discretions — Exclusion of evidence — Criminal proceedings –Objection to admissibility of alleged confession to murder – Confession contained in typewritten record of interview dated 29 April 1971 – Accused aged 17 years at time of interview – No parent, guardian, adult or lawyer present at interview – s 13 Children (Criminal Proceedings) Act 1987 (NSW) applies – Whether “proper and sufficient reason” for absence of a support person considered – No rules mandating presence of support person in 1971 – Low intellect, immaturity, disturbed upbringing, disturbed mental state and personal vulnerability of accused considered – Record of interview inadmissible in the “particular circumstances of the case”

APPEAL – Local Court – Local Court Act – Error of law – Failure to give reasons – Contract – Real estate agency agreement –Whether fees agreement varied or terminated agency agreement – Whether repudiation of fees agreement entitled aggrieved party to terminate – Whether aggrieved party entitled to sue for amount owing under original or varied agreement Notice of contention – Agreement of accord and satisfaction – Whether fees agreement was agreement of accord and conditional satisfaction – Whether fees agreement varied agency agreement such that performance was a condition precedent

ADMINISTRATIVE LAW – administrative tribunal – Racing Appeals Tribunal – judicial review –construction of Australian Racing Rule 175 (h)(i) – whether decision unreasonable – whether evident or intelligible justification existed – effect of special circumstances under AR 108(d) on mandatory minimum disqualification – whether reduction manifestly inadequate – whether any delegation of power to stewards – functions of Racing NSW under Thoroughbred Racing Act – functions conferred by Australian Racing Rules – appointment and empowerment of stewards to discharge functions under Australian Racing Rules PROFESSIONS AND TRADES – licensing and regulation of horse trainer WORDS AND PHRASES – “for the purpose of affecting the performance of a horse” – Australian Racing Rules, AR 175 (h)(i) – whether knowledge of prohibited substance required for plaintiff to have purpose

EQUITY – estoppel – option to purchase land not exercised by appellants within the period specified in Option Agreement – whether respondent estopped from relying on the terms of Option Agreement – whether appellants’ misapprehension as to the date the option lapsed was due to the respondent’s conduct – whether respondent estopped from also relying on the appellants’ failure to pay outstanding interest.

COSTS – application for leave to appeal dismissed with costs – offer of compromise and Calderbank letter – indemnity costs – discretion to “otherwise order” – element of compromise – all or nothing case – where offer is invitation to surrender – COSTS – exercise of general discretion – offer of compromise and Calderbank letter – indemnity costs – appeal proceedings – reliance on offer made in first instance proceedings.

CRIMINAL LAW – application for leave to appeal against conviction – applicant acquitted of counts 1-5 and 9 but convicted of 6-8 – whether verdicts inconsistent – verdicts able to be reconciled on a logical and reasonable basis in accordance with Murray direction CRIMINAL LAW – application for leave to appeal against conviction – whether reference to “pistol” in the evidence could be cured by direction or whether required discharge of jury – contribution made by applicant’s trial counsel CRIMINAL LAW – application for leave to appeal against sentence – alleged error in assessment of gravity of offending and alleged manifest excess – no rule that sex offences committed by an offender who is in a relationship with the victim are less serious – objective seriousness raises questions of fact and degree to be assessed by sentencing judge – breach of trust a factor in domestic violence offences

CRIME – appeal against sentence – supply of 3,4 methylenedioxymethamphetamine in not less than a large commercial quantity – supply of cocaine in not less than an indictable quantity – aggravating and mitigating factors – generic statement of principle – whether aggravation regarding financial reward taken into account – whether aggravation regarding a series of criminal acts taken into account – whether as a whole reasons are proper and adequate CRIME – appeal against sentence – arithmetical error – commencement date of sentence

CRIME – appeal against sentence – supply of not less than an indictable quantity of cocaine – knowingly deal with the proceeds of crime – procedural fairness –adverse findings made by the judge beyond the agreed facts – adverse findings not raised with the parties – denial of procedural fairness – sentence quashed

CRIMINAL LAW - sentence – multiple aggravated sexual assault offences – whether the sentencing judge erred in his approach to the applicant’s subjective circumstances – whether the aggregate sentence is manifestly excessive

SENTENCING – Relevant factors on sentence – Youth – applicant pleaded guilty to drug supply offences – applicant found to have directed activities of organisation distributing prohibited drugs while a young adult – whether the applicant was acting as an adult for the purpose of sentencing

CRIMINAL LAW – sentence appeal – pleas of guilty to two counts of supply a large commercial quantity of a prohibited drug – two counts of supplying a commercial quantity of a prohibited drug – two counts of supplying an indictable quantity of a prohibited drug – one count of recklessly deal with the proceeds of crime ($83,725) – use of undercover operative by police – applicant aged 27 with no previous criminal record – primary motivation greed – whether evidence supported finding by judge that applicant was a “highly trusted upper echelon participant” – whether parity principle observed – whether applicant had a legitimate sense of grievance having regard to the sentence imposed on Azhar Abdul – parity ground of appeal made out – appeal allowed – applicant re-sentenced.

CRIMINAL LAW – change of venue application – principle that justice must not only be done, but must be seen to be done – serious indictable offence – whether danger to family members and legal practitioners exists – whether fair or unprejudiced trial can be had – held balance of convenience favours Bathurst location.

COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion

TORTS - Personal injury damages – negligent breach of duty to exercise reasonable care - apportionment of liability – contribution between joint tort-feasors where there are multiple tort-feasors and cross claimants – provision of indemnity by compulsory third party insurance policy – whether public liability insurance policy provides indemnity – no point of general principle

CRIMINAL LAW – subpoena – public interest immunity – confidential affidavit – public interest in non-disclosure of material – public interest in disclosure to accused – part of material disclosed – balance redacted – no question of principle

HIGH RISK OFFENDER - application for variation of extended supervision order

CIVIL PROCEDURE - cross-claims - dispute over form of order to give effect to resolution of single issue as to proper construction of insurance policy - whether cross claim should be dismissed – whether costs should be payable forthwith – s 56 Civil Procedure Act 2015 (NSW) – orders made

CIVIL PROCEDURE — default judgment — setting aside — reasonable excuse for delay not established — good defence on merits not established — motion dismissed – costs

ADMINISTRATIVE LAW – judicial review – where plaintiff injured in serious motor vehicle accident – where plaintiff challenges decision of the proper officer – where plaintiff challenges decision of the medical assessors review panel – whether relief with respect to the decision of the proper officer should be refused on discretionary grounds – whether the review panel erred by treating as determinative the absence of contemporaneous evidence of the plaintiff’s injury – whether the plaintiff was denied procedural fairness by the review panel’s failure to ask the plaintiff about her back pain – whether the court should decline to grant relief because of futility – summons dismissed

ASSIGNMENT at law or in equity of the right, title and interest in a judgment entered against the defendants and any monies presently or in the future owed or becoming owed by the defendants pursuant to that judgment’s costs - where parties are given notice of assignment – where valuable consideration for the assignment is by way of the provision of legal services – where a costs order made in the future could constitute a future property of a kind which could not be assigned at law

EVIDENCE – interlocutory application – adducing evidence – statements referred to in affidavit – statements not tendered – whether reference in affidavit sufficient to make statements evidence on interlocutory application EVIDENCE – privilege – client legal privilege – loss of client legal privilege – fraud exception to client legal privilege – abuse of power exception to client legal privilege EVIDENCE – privilege – client legal privilege – whether Director of Public Prosecutions is a “client” – whether Solicitor for Public Prosecutions and Crown Prosecutors are “lawyers” providing legal services to Director of Public Prosecutions

SENTENCE – whether the sentence proceedings miscarried as a result of the sentencing judge having been asked to, and determining, as a preliminary issue, the applicant's intention when he possessed the firearm – whether the failure to particularise the indictable offence the applicant was alleged to have intended to commit was productive of a denial of natural justice – whether there was a failure to particularise a fact essential to the charge

EQUITY — Trusts and trustees — Charitable trusts — Charitable purposes –– Cy-près schemes –– whether the purposes of a trust had ceased to prove a suitable and effective method of using trust property, within the meaning of s 9 of the Charitable Trusts Act 1993 (NSW) –– new proposed scheme adopted –– indemnity costs awarded to the plaintiff; costs on an ordinary basis awarded to the defendant

STATUTORY INTERPRETATION – Interpretation Act 1987 NSW, s 31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament EVIDENCE LAW – Hearsay evidence, evidence not falling into one of the established hearsay exceptions

CONTRACT – plaintiffs alleged oral contract between family members as to contributions to acquisition of home in 1978 – whether amounts of cash provided – whether sufficient specificity of recall of precise terms of conversation – whether intention to create legal relations – even if agreement reached, not sufficient to give rise to contractually enforceable rights and liabilities STATUTE OF FRAUDS – plaintiffs alleged oral contract to execute and not revoke will concerning home – whether Conveyancing Act 1919 (NSW) ss 23C or 54A applicable – s 23C inapplicable – s 54A applicable and fatal to contract claim – Horton v Jones applied TRUSTS – presumed resulting trust – plaintiffs’ claimed contribution to purchase price of home – whether cash provided – whether cash provided by way of gift, loan or contribution – whether home held on resulting trust reflecting plaintiffs’ contributions – home sold and part of proceeds used to purchase smaller home – quantification of proportion of proceeds of sale which contributed to second purchase

PRACTICE AND PROCEDURE – transfer of proceedings – application to transfer from the District Court to Supreme Court of New South Wales – application to transfer proceedings to Supreme Court of Queensland – jurisdictional limit

PROCEDURE – subpoenas – service in New Zealand – personal injury proceedings – relevance of subpoenas to appropriately explore the question of damages – significance of the documents to be produced and the unlikelihood such material would be obtained by other means

CRIMINAL LAW – high risk offender – high risk sexual offender – application for extension of interim supervision order - child sex offences

MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1900 – forensic patient – limiting term expired – previous extensions of status as a forensic patient – application for further extension – whether patient poses continuing unacceptable risk – whether risk can be adequately managed by less restrictive means including guardianship order – extension order made for a period of 2½ years to permit trial of cessation of medication and management by the Mental Health Review Tribunal with less restrictive conditions

HIGH RISK SEX OFFENDER -- Extended Supervision Order – preliminary hearing – application for interim supervision order

CIVIL PROCEDURE – practice and procedure – pleadings – amendment of defence - whether leave to be granted – whether leave is fair and just – where there is no satisfactory explanation for delay – whether leave will result in prejudice – whether amended defence is futile

PROCEDURE – where multiple proceedings are being heard together – whether evidence of plaintiff should be admitted against defendants in separate proceedings – whether cross-examination of plaintiff should be limited to issues relevant to her claim – whether use of the plaintiff’s evidence should be limited or restricted to her claim

CORPORATIONS – Winding up – Statutory demand – Application to set aside – Offsetting claims – whether asserted input tax credits sufficient to support offsetting claim – whether GST refund payable to third party but assigned to plaintiff sufficient to support offsetting claim – offsetting claim allowed in part CORPORATIONS – Winding up – Statutory demand – whether genuine dispute about existence or amount of debt – Application of principle in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008 ) 237 CLR 473 in proceedings to set aside statutory demand founded on a tax debt or penalty – no genuine dispute as to existence or amount of debts the subject of notices of assessment TAXES AND DUTIES – income tax and related legislation collection and recovery of tax – whether assessment of administrative penalty is an assessment within the meaning of the Taxation Administration Act 1953 (Cth) and Income Tax Assessment Act 1997 (Cth) and conclusive evidence of amount of penalty and correctness of assessment CONSTITUTIONAL LAW – whether Commissioner of Taxation exercised judicial power in assessing liability to administrative penalties

CRIMINAL LAW -sentence - importing and exporting marketable quantities of border controlled drugs or border controlled plants – joint commission – whether his Honour erred in not allowing a discount for the utilitarian value of the plea of guilty – whether his Honour erred in the manner in which he dealt with the weight of the border controlled drug – whether there is a justifiable sense of grievance – disparity between sentence imposed on appellant and sentence imposed on co-offender

SENTENCE – recklessly cause grievous bodily harm – whether his Honour imposed a sentence that was unreasonable or plainly unjust – whether the sentence imposed is manifestly excessive