Cases and authorities

UNCONSCIONABLE CONDUCT AND ECONOMIC DURESS – the cross-claimants contracted to acquire from a third party an option to purchase a block of subdivisible land – one of the plaintiffs (also a cross-defendant), the agent acting for the vendor on the sale, applied pressure to the cross-claimants to allow him and persons associated with him to take an interest in the land to be purchased and to acquire three of the six lots into which the land was proposed to be subdivided – there was no evidence that this conduct of the first plaintiff/first cross defendant in privately dealing with the purchasers was disclosed to the vendor, for whom he was acting as agent – as a result of the agent’s conduct the cross-claimants were forced to sign deeds of trust of their interest in the pre-subdivided property, committing three of the six proposed lots in the subdivision to be acquired by the plaintiffs, not by the cross-claimants – whether the deeds of trust could be set aside by reason of the agent’s said conduct – whether economic duress is established – whether three of the six properties would have been liable to be reconveyed to the cross-claimants, or in lieu of reconveyance what damages or equitable compensation should be paid to the cross-claimants. MISLEADING OR DECEPTIVE CONDUCT – property conveyed differs in area from property represented to the cross-claimants to be the subject of an agreement – whether misleading or deceptive conduct – whether misleading or deceptive conduct occasioned any loss to the cross-claimants. TRESPASS AND NUISANCE – the plaintiffs allege the defendant placed motor vehicles, bricks and other objects on some of their lots in the subdivided land and committed other acts of trespass to the plaintiffs’ lots – the cross-claimants allege that the first cross-defendant interfered with the free passage of vehicles and access to passage along the driveway of one of the cross-claimants’ lots, causing them loss and damage – whether the trespasses alleged occurred and whether any such trespasses sound in damages or other relief.

CRIMINAL LAW – conviction appeal – two counts of murder and one count of administering a poison with intent to murder – insulin injections to three elderly residents of an aged care facility – circumstantial case – judge alone trial – whether evidence wrongly admitted for a coincidence purpose – whether coincidence evidence was erroneously used in “backwards reasoning” – whether verdicts were unreasonable and not supported by the evidence – challenge to finding that the same person committed all three offences – whether evidence established a timeframe within which insulin was injected – whether totality of circumstances established guilt of applicant beyond reasonable doubt – leave to appeal granted but appeal dismissed.

CRIMINAL LAW - appeal against sentence - drug supply offences committed in 2010 - further drug related offences committed in 2013-2014 whilst applicant was on bail for the 2010 offences - sophisticated and well-planned manufacture of illicit drugs in clandestine laboratory in a residential area - total effective sentence of imprisonment for seven years and six months with a non-parole period of five years - whether sentencing Judge gave insufficient regard to applicant’s subjective factors and erred by the accumulation of sentences for the 2010 and 2013-2014 offences - parity ground - no error demonstrated - claim that sentence manifestly excessive - sentence not manifestly excessive - Crown conceded error in calculation of time spent in custody and backdating of sentence - applicant entitled to credit for 44 days not 42 - arithmetical error rectified without need to undertake complete resentencing process under s.6(3) Criminal Appeal Act 1912

PROCEEDS OF CRIME – application for restraining orders

PROCEEDS OF CRIME – application for restraining orders

PROCEEDS OF CRIME – application for restraining orders – ex parte application - consideration of requirement to give notice of application to interested persons

CIVIL PROCEDURE – proceedings brought by person under legal incapacity – settlement of proceedings – Court approval

CRIMINAL LAW – trial by judge alone – count averring attempted murder – count averring murder – allegation that accused drowned one son, and attempted to drown other son – special defence of not guilty by reason of mental illness – psychiatrists agreed that defence available – verdicts of not guilty on the ground of mental illness

COSTS – application to vary costs order – whether alleged “misconduct” of the fourth and fifth defendants should disentitle those parties to a costs order – where misconduct was part of the plaintiff’s case against those parties which failed – no reason to depart from the usual order as to costs.

CIVIL PROCEDURE – leave sought to tender research paper – where research paper not referred to or considered by the experts in either the individual reports or the joint report – where actual prejudice – leave refused

APPEAL – application that Court of Appeal set aside or alternatively “suspend” previous orders – no issue of principle – application dismissed

CRIME – sentencing – where respondent pleaded guilty to offence “enter a foreign State with intent to engage in a hostile activity in that foreign State” contrary to Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6(1)(a) – respondent entered Syria with intent to engage in “armed hostilities” – sentenced to 4 years and 9 months imprisonment, with 2 years and 6 months non-parole period – Commonwealth Director of Public Prosecutions appealed – whether sentencing judge erred in characterisation of the objective seriousness of the offending – whether sentencing judge erred in finding that the respondent had “reasonable” prospects of rehabilitation – whether sentence manifestly inadequate

CIVIL PROCEDURE – pleadings – application for leave to file an amended defence to add new particulars in support of truth defence in defamation action – application brought late with satisfactory explanation DEFAMATION – interlocutory steps – dispute as to categories for discovery – dispute as to necessity of interrogatories

ADMINISTRATIVE LAW – judicial review – decision of registrar of the Local Court to issue court attendance notice on the application of a private prosecutor against an insurer for alleged breach of s 283 of Workers Injury Management and Workers Compensation Act – authority to permit private prosecution – whether exclusive right to commence proceedings under the Act reposes in the State Insurance Regulatory Authority CRIMINAL PROCEDURE – right to bring private prosecution as a common informer – where offence sought to be prosecuted is a “penalty notice offence” – authority to issue penalty notice reposing exclusively in regulatory authority – whether open to common informer to commence proceedings by court attendance notice

APPEAL – CRIME – aggravated enter dwelling with intent - proceedings heard summarily in the Local Court – magistrate finds element of offence not proved – whether the definition of “dwelling house” in s 4 Crimes Act 1900 includes garage of apartment – meaning of curtilage – importance of applying law to fact

CIVIL – application for summary judgment – recovery proceedings - whether Defendant has arguable defence - Plaintiff relies on evidence of officer in the Australian Taxation Office for purpose of Rule 13.1(b) Uniform Civil Procedure Rules 2005 – objection to question in cross examination regarding foundation for belief that Defendant has no arguable defence – reasonableness of belief a matter for the Court – additional objection to relevance of question to issues arising in recovery proceedings – objection upheld

SUCCESSION — Family provision and maintenance — Costs — Proceedings to enforce order for family provision — Executor ultimately complies with order but fails to demonstrate any reason for earlier non-compliance — Executor to pay costs of proceedings personally on the indemnity basis without recourse to estate

EQUITY — Trusts and trustees — Judicial advice — Variation of trusts — Whether purported variations of Trust Deed within scope of variation clause — Whether variation clause extents to changing beneficiaries — Whether variation of beneficiaries affects “beneficial interests” — Whether implied trust arises — Variation valid — Further variations of beneficiaries valid — Power to characterise income and capital and vice versa valid — Proposed amendment to distribution date — Whether rule against perpetuities infringed — Proposed amendment valid — Proposed appointment of income and capital to new trust — Whether rule against perpetuities infringed — Proposed appointment valid — Judicial advice given.

CIVIL PROCEDURE – pleadings – amendment – leave to amend refused – opportunity granted for plaintiffs to serve proposed further amended pleading in relation to one category of amendments – finding that to permit second category of amendments would give rise to abuse of process

LEGAL PRACTITIONER – whether papers should be referred to Law Society – papers referred

CONTRACT – damages for repayment of loan – whether primary judge erred in finding that money paid by plaintiff to defendant was by way of loan – held primary judge erred in finding money was lent to defendant CONTRACT – damages for failure to pay commission – primary judge found informal agreement for payment of 10% commission if plaintiff could find buyer for defendant's factory – whether sufficient evidence to sustain findings – whether commission payable in circumstances where sale not achieved until employee’s contract terminated – whether appellant permitted to run different case on appeal – appellant precluded from running new case on appeal EMPLOYMENT – contract of employment – whether employee sold goods on credit to other customers – employee concealed fact from employer – whether breach of contract – whether employer entitled to damages for unpaid price of those goods – held breach established, but employer failed to establish breach had caused any loss

PLANNING LAW – existing use rights – development consents granted in 1980 and early 1983 for use as a caravan park – conditions restricted use of the caravan park to short term accommodation – use as a caravan park prohibited from 5 May 1983 – whether existing use rights as a caravan park limited to short term accommodation – whether conditions can be taken into account in characterising existing use – whether a condition referring to the Council’s Caravan Code had an ambulatory operation.

LAND LAW – strata titles – proceedings by lot owner against owners corporation – lot owner obtains declaratory relief establishing a limited right apart from the strata titles legislation to use part of the common property – the successful plaintiff ordered to pay the costs of the unsuccessful defendant – whether that result compelled by strata titles legislation – whether the taking of the proceedings was not justified because the strata titles legislation made adequate provision for the enforcement of the plaintiff’s rights or remedies PROCEDURE – costs – departure from the general rule that costs follow the event – provision of strata titles legislation requiring that successful plaintiff be ordered to pay costs of unsuccessful defendant – whether applicable

DEFAMATION – appellant maintained imputations were true – no defence of truth raised at trial – appeal dismissed

CRIMINAL LAW – sentence appeals – three applicants – attempting to possess a commercial quantity of a border controlled drug being methamphetamine – 142kgs in quantity – error conceded by Crown in sentencing judge failing to take into account the utilitarian value of the plea of guilty – need to re-sentence – assessment of different roles of applicants in the offence – whether applicants aware of the nature and extent of drug importation – motive of financial gain – considerable planning involved – on re-sentence a finding in each case that lesser sentence warranted in law.

CRIMINAL LAW – conviction appeal – two counts of murder – insulin administered to two elderly residents of aged care facility – applicant registered nurse working on night shift – motive and opportunity established – circumstantial case – whether defence counsel failed to follow instructions – whether Crown relied upon coincidence and propensity reasoning – whether the two murders could be properly characterised as a single transaction – whether hearing two counts of murder together gave rise to a miscarriage of justice – whether evidence in one count could be used as evidence in the other count by jury – whether evidence of admissions by applicant wrongly admitted – whether Crown’s closing address gave rise to a miscarriage of justice – whether trial judge’s summing up was unfair and unbalanced – whether guilty verdict was unreasonable and unable to be supported by the evidence – appeal dismissed – SENTENCE APPEAL –

CRIMINAL LAW – sentence appeal by DPP (Cth) – one count of aid and abet importation of a commercial quantity of a border controlled precursor – the sentence imposed included a deduction for future co-operation – respondent subsequently refused to co-operate – application of s 16AC(3) and (4) of the Crimes Act (Cth) – appeal by DPP successful – finding that respondent without reasonable excuse did not co-operate in part in accordance with his undertaking – sentence increased – respondent’s appeal against sentence – failure by sentencing judge to take into account utilitarian value of plea of guilty – error conceded by DPP – need to resentence – no lesser sentence warranted in law – respondent’s appeal dismissed.

CRIME – sentence appeal – drug supply and possess prohibited weapon – sentenced to 20 months with 11 months non-parole period – offender with schizophrenia and substance use disorder – lengthy criminal record – judge did not err by not taking into account bail conditions – judge did not erroneously take into account applicant’s prior convictions as aggravating factor – judge properly applied 25 percent discount – sentence not manifestly excessive

APPEAL – appeal against conviction – jury returned guilty verdict, but no conviction entered – whether appeal under s 5(1) of Criminal Appeal Act 1912 (NSW) available CRIMINAL LAW – appeal – appeal against conviction – convictions on two counts of committing acts of indecency on a child – acquittals on other counts – jury unable to reach verdicts on further counts – whether guilty verdicts unreasonable – whether testimonial evidence of young child capable of sustaining jury’s verdicts – inconsistencies and gaps in evidence – appeal dismissed

PRACTICE AND PROCEDURE – separate determination of questions – application for determination of question of solvency as a separate question in one proceedings to be heard together with related proceedings – where proposed order provides that evidence in one proceeding be evidence in the other but not vice versa – where proposed order provides – whether proposed order facilitates the just, quick and cheap resolution of the real issues in dispute.

BAIL – murder – show cause – strength of Crown case - no prior record – killing of intruder – bail granted

CIVIL PROCEDURE – applications in two separate proceedings for interim stays of proceedings in NSW Civil and Administrative Tribunal – summons filed in Supreme Court seeking leave to appeal on question of law against decision of the Appeal Panel in respect of residential premises while Tribunal proceedings pending – summons filed in Supreme Court for leave to appeal against direction in retail proceedings while Tribunal proceedings part-heard – stays would occasion substantial prejudice to defendants – stays refused

EQUITY – trusts and trustees – express trust – where no reference in the correspondence to an intent to create a trust or a proprietary interest – where no suggestion that recipient of relevant monies was bound to keep them separate from its other funds – whether relevant monies received were held on trust.

CRIMINAL LAW – high risk offender – high risk sexual offender – application for extended supervision order – preliminary hearing – child sex offences including sexual intercourse with a person under the age of ten – failure to comply with Child Protection Register reporting obligations – resist arrest and assault police officer – breaches of parole - intellectually disabled defendant with history of alcohol abuse, anxiety and depression – assessed at high risk of re-offending – no opposition to interim order – whether defendant could comprehend conditions – plain English conditions put forward by defendant’s lawyers - whether conditions proposed by defendant sufficiently defined rights and obligations of defendant and DSO – need to know extent of defendant’s intellectual disability – conditions proposed by plaintiff appropriate for ISO

COSTS – litigation concerning the testamentary capacity of the testator and whether at the time she made her will she was suffering from delusions or was being coerced – defendant successfully resists the plaintiffs’ challenges to the will on the above grounds – probate of the will granted to the defendant – the plaintiffs, nephews of the testator, also brought proceedings for family provision out of the estate – plaintiffs’ proceedings for family provision fail – findings in principal judgment provide a basis to argue that certain conduct of the deceased, and of the defendant, contributed to the present litigation – whether costs should follow the event – whether the unsuccessful plaintiffs’ costs should be paid out of the estate or whether they should bear their own costs – the defendant served two Calderbank letters on the plaintiffs before the trial of the principal proceedings – whether or not it was unreasonable of the plaintiffs not to have accepted the Calderbank letters – whether existing injunctions over the South Strathfield property should continue pending the hearing of a foreshadowed appeal.

PROCEDURE – proceedings for confiscation of property – application to examine spouse of defendant on oath concerning affairs of the defendant – appropriateness of ordering the Crime Commission to provide and bear costs of interpreter

PROCEDURE – application pursuant to s 500(2) of Corporations Act 2001 (Cth) for leave to continue proceedings against a company in liquidation

EQUITY – injunctions – interlocutory injunction – prima facie case – constructive trust claim based on the failure of a joint endeavour – where parties to the joint endeavour agree to share the proceeds of the sale of property – strength of proprietary claim EQUITY – injunctions – interlocutory injunctions – balance of convenience – impact of delay in seeking injunctive relief – where proprietary relief sought at late stage in the proceedings – where the plaintiff failed to defend an earlier opportunity to assert their proprietary claim by application to extend caveat over the property PRACTICE AND PROCEDURE – applications – freezing orders – whether purchasing expensive assets using money from a disputed fund is a relevant consideration in awarding a freezing order – no basis for order identified

ADMINISTRATIVE LAW – judicial review – nature of discretion conferred on Proper Officer under s 62 of Motor Accidents Compensation Act 1999 (NSW) to refer matter for further assessment – no error established – no relief warranted in any event as open to plaintiff to make fresh application

PARTNERSHIPS AND JOINT VENTURES – Dissolution and winding up of partnership – Court appointed receiver and manager – whether the applicant receiver had the power to enter into and was justified in entering into and performing his obligations and exercising his rights under a deed of settlement entered into by the receiver under which he compromised debts owed by and to the partnership RECEIVERS AND MANAGERS – Power of the Court to provide advice and directions to a receiver appointed by the Court – the limitation on the Court’s jurisdiction to vest powers in a receiver to matters which the partners would have authority to do RECEIVERS AND MANAGERS – Distribution – Whether the applicant receiver is justified in making a pro rata distribution of the proceeds of realisation of the assets of the partnership to the creditors of the partnership on the basis of the receiver’s own adjudication of the amounts properly owed by the partnership to the creditors RECEIVERS AND MANAGERS – Distribution – Whether the Court can empower and should authorise the applicant receiver to call for the submission of proofs of debt by the creditors of the partnership, to adjudicate upon any claims lodged, and to pay the creditors pro rata in accordance with the adjudications made by the receiver RECEIVERS AND MANAGERS – Remuneration – Whether the remuneration sought by the applicant should be approved

MONEY — Currency and exchange control — Repayment of Money — Cancelled Contract — Whether money was taken by the defendant without authority or taken lawfully pursuant to an agreement — Closed circuit television recording of defendant taking money from the plaintiff’s premises — Repayment of money paid under a cancelled contract on the ground that consideration for the payment wholly failed — The plaintiff has established an entitlement to be repaid money advanced to the defendant and to cash taken by the defendant from the plaintiff’s premises without authority — No point of principle EVIDENCE — burden of proof, presumptions, and weight and sufficiency of evidence — Transactions conducted overseas through oral conversations and the making of cash payments — the importance of objective evidence in assessing the credibility of the cases put forward by the parties

EQUITY – trusts and trustees – powers of trustees – statutory jurisdiction of the court to confer powers on trustees pursuant to Trustee Act 1925 (NSW) s 81 – where applicants sought orders that would provide for the extension of the vesting date of a trust or would allow the trustee to extend the vesting date – whether Re Dion Investments Pty Ltd (2014) 87 NSWLR 753 was wrongly decided or distinguishable – whether orders would be expedient under s 81(1) – appeal dismissed

CRIME – conviction appeal – offence of failing to ensure health and safety of workers by exposing individual to a risk of death or serious injury – whether defendant convicted of offence other than that particularised – whether measure to ensure health and safety particularised by prosecutor reasonably practicable – Work Health and Safety Act 2011 (NSW), ss 19, 32 EMPLOYMENT AND INDUSTRIAL LAW – industrial safety, health and welfare – worker suffered serious injuries following electrocution – defendants charged with failure to ensure health and safety of workers by exposing individual to a risk of death or serious injury or illness – defendants convicted, but injuries suffered by worker not manifestation of risk pleaded – finding not challenged on appeal – whether trial judge erred in making finding of low objective seriousness – whether trial judge erred in failing to take injury of worker into account as aggravating factor – whether sentence manifestly inadequate – Work Health and Safety Act 2011 (NSW), ss 19, 32 SENTENCING – aggravating factors – substantial harm, injury, loss or damage – offence of failing to ensure health and safety of workers by exposing individual to a risk of death or serious injury or illness – where worker’s injury would not have occurred had defendants taken measures which should have been taken – whether worker’s injuries should be taken into account as aggravating factor in sentencing SENTENCING – prosecution appeal – residual discretion – delay – appeal lodged more than eight months after orders entered –internal bureaucratic processes relied upon as justification for delay –whether defendants suffered prejudice as a result of delay – relevance of defendants being corporate entities rather than natural persons – whether delay engaged discretion not to intervene SENTENCING – prosecution appeal – mitigating factors – remorse – prosecutor contended defendant was sympathetic but not remorseful – remorse insufficient to establish mitigating factor under Crimes (Sentencing Procedure) Act 1999 (NSW), 21A(3)(i) – whether trial judge erred by taking remorse into account

CRIMINAL LAW – appeal – sentence – offences of drug supply – principle that trafficking in illicit drugs requires a gaol sentence absent exceptional circumstances –principle accepted at the time of sentence but since abandoned –– error established – serious offending – strong subjective case characterised by significant efforts towards rehabilitation before and after entering custody – applicant re-sentenced

MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagee – sham mortgages – whether two mortgages entered into between parties liable to be set aside as sham mortgages EQUITY – general principles – unconscionable conduct – undue influence – whether mortgages should be set aside by way of doctrine of undue influence

CORPORATIONS – external administration – application for direction that voluntary administrators and liquidators of company are justified in acting in accordance with remuneration approvals given by creditors – where creditors’ remuneration approval was directed to a specified period but was applied to a shorter period – where a further creditors’ approval was obtained for remuneration after that period – whether voluntary administrators and liquidators are justified in acting in accordance with remuneration approvals – where company is trustee of a trading trust and has no other activities – where voluntary administrators and liquidators’ work was directed to the administration of trust assets – whether voluntary administrators and liquidators should be permitted to recover remuneration and expenses from trust assets.

CORPORATIONS – voluntary administration – application by administrators for directions under s 90-15 of the Insolvency Practice Schedule (Corporations) – whether administrators would be justified in procuring companies to borrow loan funds pursuant to a facility agreement – application under s 447A of the Corporations Act 2001 (Cth) for limitation of administrators' personal liability in respect of relevant borrowings – whether it is in the interests of the companies that the borrowing take place.

EVIDENCE – relevance – police running sheet – no question of principle

LANDLORD AND TENANT – Residential lease – Tenant claimed life estate in lieu of tenancy – Claim not established