Cases and authorities

GUARDIANSHIP – protected person – protected estate management orders in place in respect of the protected person who brings these proceedings – the plaintiff seeks the revocation of the existing protected estate management orders – the plaintiff is self-represented – whether the plaintiff is capable of managing her affairs.

TAXES - notice of assessment - payroll tax - grouping provisions of Payroll Tax Act 2007 (NSW) - group members made jointly and severally liable to pay payroll tax payable by employer - notices of assessment issued to group members - threat to issue third party notices under Taxation Administration Act 1996 (NSW) s 46 to group members’ debtors - no challenge to validity of notices of assessment - challenge confined to whether power to issue third party notice to debtors of “taxpayer” extended to a group member - held: power existed and proceedings dismissed

EVIDENCE – Where Crown sought to lead evidence of footage, images and publications found on electronic devices linked to the accused – Where there was no evidence that the accused had read or viewed the material – Whether evidence relevant – Assessment of probative value and danger of unfair prejudice – Evidence admitted

EVIDENCE – Cross-examination – Whether particular question permissible on the basis of being relevant to the accused’s intentions or relevant to his credit – Question rejected – No point of principle

EVIDENCE – Relevance – Probative value – Danger of unfair prejudice – Accused charged with committing acts in preparation for a terrorist act or acts – Where Crown relied upon evidence of the accused refusing to stand for the National Anthem at a school assembly as evidence going to his intention and ideology – Where Crown sought to lead further evidence of absences from school on days when National Anthem was played – Where Crown case on ideology circumstantial – Necessity to consider circumstantial case as whole – Evidence relevant – No danger of unfair prejudice in the sense of possible misuse by the jury – Evidence admitted

PRACTICE AND PROCEDURE – applications – default judgment – application for default judgment dismissed where material facts underlying claim not pleaded

COSTS – security for costs – plaintiff resident outside jurisdiction – late application – security to be provided only for future costs

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining orders – ancillary orders – ex parte – orders made

CONTRACT – interpretation of note deed and associated documents – whether Event of Default occurred – where defendants contend that plaintiffs breached negative pledges contained in the note deed – unnecessary to resolve question of construction and breach – even if plaintiffs breached negative pledges, no evidence that that breach had any material and adverse effect – no Event of Default – plaintiffs entitled to consequential declaratory relief.

CONTRACTS – general contractual principles – whether formation of contractual relationship in the form of a loan payable on demand – whether monies provided as a gift or a loan EQUITY – unconscionable conduct – special disability or disadvantage – inequality of bargaining power – where facts do not establish inequality of bargaining power EQUITY – undue influence – relationships giving rise to presumption of undue influence – rebutting presumption of undue influence – where facts do not establish relationship where presumption of undue influence applies

CORPORATIONS – Winding up – Liquidators – Replacement

CIVIL PROCEDURE –Originating process – Amendment

APPEALS – appeal from Local Court – question of law – whether Magistrate failed to give adequate reasons in respect of material findings of fact – loan by parents to daughter – whether repaid - competing oral and documentary evidence relevant to repayment of the loan – credit issues raised by the evidence – failure of the Magistrate to resolve credit issues – failure to deal with documentary evidence - appeal upheld

ADMINISTRATIVE LAW – judicial review of decision of the defendant – defendant is a public authority supplying water and disposing of waste water in the Sydney Metropolitan area – defendant decides to de-list the plaintiff as a listed provider of services to the defendant’s infrastructure – decision preceded by show cause notice issued by defendant to plaintiff – plaintiff responded to show cause notice – decision then made delisting the plaintiff – whether the defendant’s decision to de-list was unreasonable – whether the defendant’s decision was affected by actual or apprehended bias – whether defendant failed to take into account relevant considerations in making the decision. CONTRACT – formation of contract – whether plaintiff’s listing as one of defendant’s service providers arises under a contract between the plaintiff and the defendant in the form either of an “Overarching Agreement” or certain “Developer Works Deeds” – whether an email from Sydney Water on 15 May 2012 constituted an offer which Austar subsequently accepted CONTRACT – implied duty of good faith – whether in making the decision the defendant was subject to and breached an implied duty of good faith and fair dealing owed to the plaintiff.

BUILDING AND CONSTRUCTION – claim by owners corporation against persons alleged to be “developers” as defined by Home Building Act 1989 (NSW) s 3A – question of fact as to whether alleged “developers” were parties to building contract APPEALS – drawing of inferences on appeal – evaluation of competing inferences – where primary judge failed to draw inference that respondents were parties to the building contract BUILDING AND CONSTRUCTION – whether developers liable for “design defects” – statutory construction of Home Building Act 1989 (NSW) ss 18B and 18C – scope of notional contract pursuant to s 18C – whether breach of statutory warranty pursuant to s 18B(c)

COSTS – non-party costs order – sole director and shareholder caused plaintiff company to commence and maintain litigation – proceedings were dismissed with costs – primary judge refused application for non-party costs order – relevance of personal animosity on part of director to defendant – whether necessary to establish unreasonableness – whether exceptional circumstances established – leave granted but appeal dismissed

CRIMINAL LAW – Application for leave to appeal against sentence – asserted error in conclusion of fact – question of availability to applicant at time of sentence of admission to mothers and children programme in custody – question of manifest excess - meaning of the word “may” in s 3A Crimes (Sentencing Procedure) Act – role of specific and general deterrence – submission that deterrence only relevant where individual efficacy of it proved rejected

CRIMINAL LAW – appeal against sentence – asserted failure of sentencing judge to make findings about applicant’s risk of re-offending and prospects of rehabilitation – asserted justifiable sense of grievance on the part of applicant due to sentence disparity with co-offenders – no erroneous disparity found – appeal dismissed

SENTENCING – aggravated dangerous driving causing death – whether episodes of erratic driving before accident relevant to assessment of objective seriousness – manifest inadequacy SENTENCING – prosecution appeal against inadequacy of sentence – aggravated dangerous driving causing death – sentence manifestly inadequate – discretion to intervene – importance of adequacy and consistency of sentencing with respect to dangerous driving offences

CRIMINAL LAW – Conviction appeal – A juror conducted an internet search about a matter relevant to the trial – The trial judge took 10 verdicts that had already been reached prior to examining and discharging the juror for misconduct – Two further guilty verdicts were reached following the juror’s discharge by the remaining jury members – Whether the juror engaged in misconduct for the purposes of the mandatory discharge provision under s 53A(1)(c) of the Jury Act 1977 (NSW) by making an inquiry contrary to s 68C of the Jury Act or by engaging in conduct that gave rise to the risk of a substantial miscarriage of justice in the trial – Whether the trial judge’s erroneous discharge of the juror was a breach of mandatory provisions of the Jury Act going to the constitution and authority of the jury such that the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) could not apply with respect to the final two verdicts reached following the juror’s discharge

CRIME – sentence appeal – child sexual assault and child abuse material offences – applicant stepfather of victim – sentenced to 16 years imprisonment with 12 year non-parole period – whether sentencing judge failed to assess objective criminality in relation to indicative sentences – little variation in objective seriousness of each offence – fact that indicative sentences same for multiple offences not indicative of error – where judge imposing aggregate sentence failed to indicate non-parole period that would have been set for each separate sentence – Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 – failure to set non-parole period does not invalidate sentence – whether sentence manifestly excessive – nothing less than substantial sentence could reflect applicant's criminality

CRIMINAL LAW – Sentence – Appeal – Asserted error in assessment of objective seriousness by the sentencing judge – Asserted error in assessing the discount to reflect the utilitarian value of the applicant’s plea of guilty – Whether applicant entitled to a discount to reflect assistance to the authorities - Whether sentence manifestly excessive – Whether sentencing judge erred in failing to find special circumstances – No error established CRIMINAL LAW – Sentence – Appeal – Where applicant submitted that there had been a failure on the part of the sentencing judge to give proper weight to his subjective case – Observations as to the narrow circumstances in which such a failure will amount to error – Observations as to the difficulty in advancing such a submission and the necessity to establish a miscarriage of the sentencing discretion – No error established

CIVIL LAW – Preliminary hearing - application for interim supervision order - prior to release - whether defendant is an eligible offender - whether supporting documentation would justify the making of an extended supervision order - background factors - history of substance abuse, violence and psychiatric illness - breaches of parole - persecutory ideas - threats of terrorism - high degree of probability the defendant presents an unacceptable risk of committing a serious terrorism offence - safety of community - substantial agreement on suite of conditions - disagreement on internet and electronic communications - satisfied conditions are necessary

CIVIL LAW – Preliminary hearing - application for interim supervision order - admission of material into evidence - objection - hearsay and source not identified - content capable of proving facts relevant to the question of unacceptable risk

CRIME – MURDER- question of accused’s fitness to be tried raised in good faith – inquiry held – evidence of long enduring and treatment resistant schizophrenia – unfitness to be assessed contemporaneously – accused currently displaying signs of severe mental illness – Presser criteria applied – accused found unfit and unlikely to become fit in a 12 month period – referral to the Mental Health Review Tribunal

CRIMINAL LAW – count of murder – plea of guilty entered in Local Court – issue of fitness of accused to be tried – question raised during sentence proceedings – inquiry held – diagnosis of paranoid schizophrenia – discussion of aspects of question of fitness – finding of unfitness

PRACTICE AND PROCEDURE – pleadings – whether plaintiff required to allege mode of proof of service – pleadings not deficient PRACTICE AND PROCEDURE – application for summary judgment of tax debt – whether issue to be tried as to date on which defendants received notices – admissions made in defendants’ affidavits – statutory provision which converts allegation in pleading into prima facie evidence – no issue to be tried PRACTICE AND PROCEDURE – application for stay – no evidence of hardship – stay refused

EQUITY — Equitable interests in property — Nature of equitable interests — whether the plaintiff has a beneficial interest in Lot 1 ESTOPPEL — Proprietary estoppel — Encouragement — whether by reason of encouragements the defendant gave to the plaintiff the defendant is estopped from denying the plaintiff is entitled to a beneficial interest in Lot 1 — a promise or representation by the defendant to leave Lot 1 to the plaintiff in the defendant’s will — defendant ceased to have testamentary capacity to execute will — the defendant is in principle estopped from denying the plaintiff is entitled to a beneficial interest in Lot 1 CONTRACTS — Formation — Oral Contract — whether the plaintiff and defendant entered into an oral contract — whether the defendant agreed to leave Lot 1 to the plaintiff in the defendant’s will in exchange for work undertaken on Lot 1 by the plaintiff — defendant ceased to have capacity to make a will — whether plaintiff entitled to damages for breach of contract — no oral contract arises

CORPORATIONS – liquidators – compromise of debt – application by liquidators for approval of deed of compromise – Corporations Act 2001 (Cth), s 477(2A) – where the debt claimed by the company is more than $100,000 – Corporations Regulations 2001 (Cth), reg 5.4.02 – where there is no committee of inspection – where creditor approval of the deed not obtained - whether the deed is an appropriate compromise –Corporations Act, Sch 2 – Insolvency Practice Schedule (Corporations), s 90-15 – whether direction should be given that the liquidators would be justified in entering into and performing the deed

MENTAL HEALTH — Protected person — Appointment made in 2012 for financial manager of estate — Application by mother of protected person that the financial manager be removed and that a new nominated financial manager be appointed — Principles governing change of financial manager — Paramount consideration remains welfare, and interests, of protected person — Prudential management requires flexibility, consultation and respect for autonomy.

PROCEDURE – competing draft orders do not address all issues in dispute between the parties – duty of the Court to attempt to completely and finally determine all matters in controversy between the parties – further opportunity to make submissions provided

CIVIL PROCEDURE – notice of motion to set aside or vary a judgment of Court of Appeal – whether Court should consider applicant’s appeal in circumstances where appeal was summarily dismissed – whether Court failed to consider applicant’s submissions and authorities relevant to application for summary dismissal

CONTRACT – contractual arrangements between an irrigation corporation and an irrigator – irrigator entitled to separate water entitlements (WEs) and delivery entitlements (DEs) – whether corporation’s unilateral changes to Policies so as to require a transferor of WEs to surrender DEs and pay termination fees constituted a breach of contract UNCONSCIONABLE CONDUCT – whether corporation’s actions in changing the Policies constituted unconscionable conduct in contravention of s 51AC of the Trade Practices Act 1979 (Cth) DAMAGES – whether the irrigator, had he established a breach of contract, was entitled to damages equivalent to the termination fees he paid to the corporation – whether the irrigator showed that had the (assumed) breach not occurred he would have received a higher net sale price for his WEs

EVIDENCE – discretions – exclusion of evidence – criminal proceedings – affidavit evidence – contents of documents – relevance

EVIDENCE – whether hearsay evidence is the best evidence in the circumstances – evidence allowed EVIDENCE – whether direction should be given that the rules of evidence apply in the sentence hearing – direction refused

Costs – No order for the costs of the notice of motion – Parties to the notice of motion to pay own costs

Costs – Indemnification of costs – Party is entitled to be indemnified by another for costs he has been ordered to pay as a consequence of a judgment in the proceedings

CIVIL PROCEDURE – parties – vexatious litigants – leave to institute proceedings

ADMINISTRATIVE LAW – liquor licensing – challenge to the decision of the Independent Liquor and Gaming Authority to vary extended trading authorisation – where Authority varied licence of own initiative – whether Authority’s decision is invalid for failure to comply with statutory requirements contained in s 51(13) of Liquor Act 2007 (NSW) – whether plaintiffs denied procedural fairness – whether plaintiffs denied merits review before NCAT because Authority made a decision to vary extended trading authorisation on own initiative – where statutory requirements not complied with –procedural unfairness – decision invalid – costs

CRIMINAL LAW – application for judicial review to prohibit a District Court judge from acting further in sentencing proceedings – Supreme Court Act 1970 (NSW), s 69 – whether denial of procedural fairness – where judge refused to recuse herself – where assertion of apprehended bias on the ground of pre-judgment – where comments made by judge during sentencing proceedings – whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the sentencing decision CRIMINAL LAW – application for judicial review - discretionary factors – whether the Court should intervene at an interlocutory stage – where sentencing proceedings adjourned for receipt of further evidence and submissions – where delay in making the recusal application and the judicial review application

DECLARATORY RELIEF – where EPA issued notices to appellant directors or executives under Protection of the Environment Operations Act 1997 (NSW), Part 7.5 requiring answers to questions regarding possible contraventions by a corporation of provisions which may also give rise to a special executive liability under s 169 – where appellants sought declarations that not required to answer questions if did not have benefit of immunity against self-incrimination conferred by s 212(3) – where primary judge held no legal controversy capable of being subject of declaratory relief – where following filing of appeal EPA conceded question in issue, but not on grounds argued before primary judge – whether primary judge erred in not making declarations sought – before concession made there was a sufficient controversy to justify declaratory relief – after concession declaratory relief in terms sought not justified DECLARATORY RELIEF – where remedial orders sought under Protection of the Environment Operations Act, s 252 and declarations made as to breach of offence provision – where terms of declaration misidentify provision found to have been breached – where foundation for making remedial orders removed by making of concession after appeal proceedings commenced – declarations and remedial orders set aside

CRIMINAL LAW – leave to appeal – where sentencing judge refused to recuse herself for apprehended bias on the ground of pre-judgment – Criminal Appeal Act 1912 (NSW), s 5F(3)(a) – whether the judge’s refusal to recuse herself constituted an “interlocutory judgment or order” under s 5F

CRIME – appeal – sentence – recklessly causing grievous bodily harm in company – sentenced to 3 years imprisonment with 2 year non-parole period – parity principle – whether applicant suffers justifiable sense of grievance – appropriate to use phrase “marked and unjustified disparity” in the application of the principle – applicant and four co-offenders received same sentence – sentence imposed relatively modest – applicant’s liability for offence largely same as for co-offenders – no justifiable sense of grievance.

CONVICTION APPEAL – conviction for aggravated sexual assault – leave sought pursuant to r 4 of the Criminal Appeal Rules (NSW) – element of aggravation – intentionally or recklessly inflicts actual bodily harm – error in indictment – indictment reflects offence known to law but did not reflect the terms of s 61J(2)(a) –misdirection of jury about aggravation – error of law –extension of time to appeal – whether the appeal should be dismissed under proviso in s 6(1) of the Criminal Appeal Act – whether substantial miscarriage of justice occurred – evidence at trial did not prove beyond reasonable doubt the applicant was guilty of aggravated sexual assault – misdirection apt to prevent the performance of jury of its function – proviso not applied – substituted verdict of sexual assault contrary to s 61I of the Crimes Act – resentencing – resentencing affected by change in maximum sentence – factual findings of trial judge may be adopted in resentencing subject to De Simoni principle – resentenced to total sentence 6 years – application to vary commencement of subsequent sentences pursuant to s 59 of the Crimes (Sentencing Procedure) Act – appeal granted

CRIMINAL LAW – appeal against sentence – asserted error of sentencing judge in finding that applicant was aware that the shipment of narcotics contained a ‘significant amount’ of illicit drugs – asserted error of sentencing judge giving excess weight to finding that applicant’s motivation for offending was financial gain – sentence imposed asserted to be manifestly excessive – discussion of other sentences imposed for drug importation – applicant appreciated quantity of drugs was significant – applicant involved himself in the importation of a very large quantity of a prohibited drug in order to benefit financially – sentence imposed not manifestly excessive – appeal dismissed

CIVIL PROCEDURE – application for urgent interlocutory relief – application to stay a decision of the Commissioner for Fair Trading – regulation of tattoo parlours under the Tattoo Parlours Act 2012 (NSW) – operator licence – NCAT power pursuant to the Administrative Decisions Review Act 1997 (NSW) – whether the Court should grant a stay of the decision of the delegate – orders – costs

SENTENCING – remarks on sentence – offence of hindering the discovery of evidence concerning a serious indictable offence (murder) contrary to s 315(1)(b) of the Crimes Act 1900 (NSW) – plea of guilty to lesser offence on the first day of trial

CORPORATIONS – Winding up – Statutory demand – Failure to comply with statutory demand

PROCEDURE — Contempt, attachment and sequestration — Enforcement of undertaking given to the Court to guarantee payment of costs

EVIDENCE – Lay opinion evidence – Whether lay opinion necessary to obtain an adequate account or understanding of a perception or event – Where the witnesses were able to give evidence of their own direct observations – Test of necessity not met – Evidence excluded