Cases and authorities

CRIME – appeal against sentence – severity – affray – fail to appear – applicants convicted of affray relating to bashing of two victims by group of ten men – applicants were told by interpreter that they would be facing a 10 year custodial sentence – after trial but before sentence was handed down both applicants fled to the Middle East for six months – both offences assessed by trial judge to be above the mid-range offence – each applicant sentenced to six years imprisonment – whether error in finding both offences were above mid-range – where Court of Criminal Appeal would impose fresh sentence – unnecessary to consider ground. CRIME – appeal against sentence – severity – affray – whether judge erred by finding planning as an aggravating factor – where applicant was with ten other men who were armed at time of the melee –judge would have been in error if applying Crimes (Sentencing Procedure) Act s 21A(2)(n) – judge entitled to take into account limited planning under Crimes (Sentencing Procedure) Act 21A(1)(c) – ground rejected. CRIME – appeal against sentence – affray – judge took into account offence aggravated by presence of children – s 21A(2)(ea) of Crimes (Sentencing Procedure) Act – no evidence children were present CRIME – appeal against sentence – procedure for District Court to deal with offence of failing to appear under Bail Act 2013 – how proceedings are to be instituted – ground of appeal withdrawn – doubts about whether certificate under s 166 of Criminal Procedure Act 1986 appropriate CRIME – appeal against sentence– fail to appear – flight from Australia but voluntary return – where trial judge not asked to take voluntary return into account but doubtful judge did not have regard to it – relevant matter to take into account in resentence CRIME – appeal against sentence – fail to appear – whether judge erred by not having regard to limitations of Local Court jurisdiction imposed by s 168(3) Criminal Procedure Act and s 58 Crimes Act – whether District Court entitled to accumulate sentence beyond 5 year maximum of Local Court – Crimes Act s 58 does not apply – no sentence imposed for fail to appear offence – notional partial accumulation but aggregate sentence imposed.

PRACTICE AND PROCEDURE – whether file note of accountant is a business record – whether it was prepared in contemplation of legal proceedings – whether it should be excluded under s 135 of the Evidence Act 1995 (NSW) – document admitted

CIVIL PROCEDURE – summary dismissal – claim for specific performance of contract for sale of land – orders made for plaintiff to provide verified discovery – repeated failures on part of plaintiff to comply with orders – defendant’s ability to fairly defend proceedings prejudiced – whether appropriate for proceedings to be dismissed pursuant to s 61(3)(a) of Civil Procedure Act 2005 (NSW)

CRIMINAL LAW – Evidence – Privilege – Client legal privilege – Whether privilege waived

COSTS – Party/party – Exceptions to general rule that costs follow the event – Offers of compromise/ Calderbank offers – Whether the quantum of costs should be included in the assessment of a party’s success in relation to a settlement offer COSTS – Party/party – Exceptions to general rule that costs follow the event – Offers of compromise/ Calderbank offers – Whether a party is obligated to explain the calculation of their settlement offer COSTS – Party/party – Exceptions to general rule that costs follow the event – Whether commencement and continuation of the proceedings in the Supreme Court was warranted under Uniform Civil Procedure Rules 2005 (NSW) r 42.34 COSTS – Party/party – Exceptions to general rule that costs follow the event – General discretion in relation to costs – Whether the costs were disproportionate to the amount recovered/claimed

SUCCESSION – Family provision and maintenance – Claims by adult children against estate of mother – Claims in competition with sibling who was principal companion and carer of deceased – Applicants possessed of substantial net worth – Claims dismissed

EQUITY – subrogation – general principles – Registrar-General’s statutory right of subrogation – nature of statutory right of subrogation under Real Property Act 1900 (NSW) – amount Registrar-General can seek to recover in subrogation NEGLIGENCE – duty of care – general principles – causation – proportionate liability – duty of care of solicitor – whether solicitor breached duty of care witnessing fraudulent signatures CONTRACT – penalty – loan agreement – where the lower rate was 36% p.a. and higher rate 72% p.a. – whether higher interest rate void as penalty – whether deed of settlement entered into by Plaintiffs bar to Registrar-General’s claim under penalty

PROCEDURE – subpoenas – application by litigant in person to issue subpoenas to person to attend to give evidence – late application – proposed evidence outside pleadings and issues – directions that evidence be completed by December 2016 – matter fixed in July 2017 for hearing in April 2018 – proposed evidence related to claims for which leave earlier refused

PROCEDURE – costs – claim for possession of land – cross-claim that loan deed and mortgage were a sham, alternatively that they constituted an unjust contract – plaintiff establishes default under mortgage – defendant fails on claim that contract was a sham – contract held to be unjust – contract varied PROCEDURE - costs – Calderbank offers by both parties – difficulty ascertaining if offerees obtained no better result from judgment – defendant’s offer made before any evidence served – offer said to be open for 21 days – offer withdrawn without warning after 5 days – whether unreasonable of plaintiff not to accept offer – no order for costs

MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 (NSW) – forensic patient – application to vary an extension order. STATUTORY INTERPRETATION – whether the power in cl 12(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) permits the Supreme Court to extend a final order of the Supreme Court. CIVIL PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) – whether extension of status as a forensic patient can be made by Notice of Motion.

CONTRACTS – formation – whether contract valid and enforceable – whether uncertainty as to particularisation of the contract CONTRACTS – remedies – whether order for specific performance available under s 54A Conveyancing Act 1919

ENVIRONMENT AND PLANNING — Development application — Environmental Planning Instrument ENVIRONMENT AND PLANNING — Environmental planning instruments — Local environment plan — Interpretation ENVIRONMENT AND PLANNING — Environmental planning instruments — Purposes for which building or land may be used — Existing use rights

EVIDENCE – discretions – exclusions of evidence – where Crown sought to adduce photographs showing similarity between two people – photos included police charge photos – charge photos show men at two very different time periods – evidence excluded EVIDENCE – discretions – exclusions of evidence – where Crown sought to adduce video and still images from video showing similarity between two people at time of murder – video relatively clear – criticisms of quality of still images – still images useful to jury as aide memoire – evidence admitted

CIVIL PROCEDURE — Money paid into Court — Entitlement pursuant to orders of Federal Circuit Court — No issue of principle

CRIMINAL LAW – Evidence – Cross-examination – Where it was put to the witness that he was a party to an attempted blackmail of the accused – Where some evidence of an unrelated allegation of forgery – Whether questions going to that issue substantially affected the credibility of the witness – Questions allowed

CORPORATIONS – members remedies – oppression – compulsory share purchase order – price – whether price should bear interest from date when member excluded and valuation struck – where dividend paid in the meantime – held, interest should be allowed, but credit given against it for dividend COSTS – apportionment – interest on costs – gross sum costs

COSTS – whether plaintiff entitled to Sanderson or Bullock order – two preconditions for Sanderson or Bullock established – order made – preference for Sanderson order

LAND LAW – Co-ownership – statutory trust for sale – whether proceedings should be adjourned to allow co-owner time to obtain taxation rulings – costs – whether costs of respective co-owners should be paid out of proceeds of sale

COSTS — Party/Party — Court’s discretion — whether Plaintiff should pay the costs of hearing wasted in consequence of changing the nature of the case — hearing wasted because of application by Plaintiff that the matter proceed on pleadings — whether plaintiff should pay the costs of conducting the costs argument

ADMINISTRATIVE LAW – judicial review – grounds of review – whether an adjudicator failed to provide adequate reasons under Building and Construction Industry Security of Payment Act 1999 (NSW) s 22(3)(b) ADMINISTRATIVE LAW – prerogative writs and orders – certiorari – whether discrete aspects of a determination affected by jurisdictional error can be severed and quashed INTERPRETATION – whether an adjudicator’s determination under Building and Construction Industry Security of Payment Act 1999 (NSW) s 22(1) is an instrument under Interpretation Act 1987 (NSW) s 32

CRIME – appeal against sentence – whether sentencing judge erred by imposing an aggregate sentence that exceeded the sum of the indicative sentences that would have been imposed for each offence – whether sentencing judge erred by accumulating indicative sentences in imposing aggregate sentence - whether sentence manifestly excessive

CRIMINAL LAW – Criminal Appeal Act s 5B - stated case – s 35(2) Fisheries Management Act 1994 – defence available if person charged could not reasonably have known fish were illegally taken – whether questions submitted were questions of law – question as to whether defence requires consideration of surrounding circumstances did not arise – reasons for judgment not appended to stated case – findings of fact in stated case not open to challenge – stated case procedure not an avenue of appeal on a question of fact – consideration of stated case procedure – law reform

CRIMINAL LAW – conviction appeal – wounding with intent to cause grievous bodily harm – where appellants also charged in the alternative with using an offensive weapon with intent to commit an indictable offence – where two co-accused successfully appealed against convictions for wounding offence and verdicts substituted for alternative offence – same evidence at trial relating to three appellants – Crown concedes outcome of appeal should be same as for two co-accused – appeal allowed – conviction quashed and verdict for alternative offence entered – sentence imposed at first instance taken to have been fully served - conviction recorded without any other penalty

COSTS – party/party costs – where there has been no hearing on the merits – whether Court will make an order for costs.

EVIDENCE – murder trial – application to cross-examine unfavourable witness – lay witness – confined area of proposed cross-examination – credibility – unfairness to accused – where challenge to credibility of witness may be detrimental to Defence case EVIDENCE – murder trial – application to exclude part only of the evidence of a witness – whether probative value is outweighed by the danger of unfair prejudice to the Defendant

COSTS – where intervener is granted leave to be heard in proceeding pursuant to Supreme Court (Corporations) Rules 1999 (NSW) r 2.13(1) – where that intervener is unsuccessful and causes additional costs to be borne by opposing party – whether order should be made pursuant to r 2.13(2) that intervener pay those costs.

COSTS – application for imposition of an easement – ordinary rule that applicant pays costs of proceedings – whether departure from ordinary rule warranted due to defendants’ failure on a threshold question and their conduct of defence

PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 (NSW) – vexatious litigant seeks leave to appeal against NCAT orders – application filed almost three years after orders made – application substantially replicates earlier applications made to and adjudicated by the Court – abuse of process

STRATA SCHEMES – proceedings before Strata Schemes Adjudicator concerning whether works were “in keeping with rest of building” – appeal to NCAT – appeal from NCAT APPEALS – STATUTORY TRIBUNALS – appeal on a ground raising “question of law” – discussion of grounds in that context and principles – no arguable question of law raised – leave refused

ADMINISTRATIVE LAW – statutes – discussion of principles of construction – need for harmonious goals – decision of Racing NSW not to renew bookmaker’s licence – whether decision of Racing NSW may be appealed to Racing Appeals Tribunal – interaction of s 15, s 18 and s 23 of Racing Appeals Tribunal Act 1983, reg 5 of Racing Appeals Tribunal Regulations 2005, Thoroughbred Racing Act 1996 and rules applicable to Racing NSW – decision not to renew is a “disqualification” and appeal not precluded – discussion of “classes of matters” in s 18 of Racing Appeals Tribunal Act 1983 – declaration issue

CRIMINAL LAW – Evidence – Re-examination – Re- establishing credibility – Considerations bearing upon a grant of leave

FAMILY LAW – Adoption – Whether an adoption order should be made without the child’s consent under s 55 of the Adoption Act 2000 (NSW) FAMILY LAW – Adoption – Application for a consent dispense order under s 67 of the Adoption Act 2000 (NSW) FAMILY LAW – Adoption – Application to dispense with requirement to give notice of proposed consent dispense order under s 72 of the Adoption Act 2000 (NSW) FAMILY LAW – Adoption – Application to dispense with requirement to give notice of proposed adoption order under s 88 of the Adoption Act 2000 (NSW)

PROCEDURE – personal injury proceedings – application for interim payment – plaintiff’s need for dialysis as a result of negligence of defendant – cost of treatment - whether condition should be attached to the payment that money to be used for dialysis

COMMON LAW – CIVIL – appeal from a decision of the Local Court – orders made in favour of defendant – application for indemnity costs – no point of principle

COSTS - application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) - defendant seeks gross sum costs order following plaintiff's unsuccessful appeal from Local Court - whether appropriate to make a gross sum costs order - quantification of the gross sum to be awarded.

COSTS — Party/Party — General rule that costs follow the event COSTS — Party/Party — Bases of quantification — Indemnity basis— whether indemnity costs order should be made COSTS — Party/Party — Bases of quantification — Gross sum costs order—whether costs order in specified gross sum should be made

BUILDING AND CONSTRUCTION – Building and Construction Security of Payment Act 1999 (NSW) – whether adjudication determination valid – whether payment claim made on or from a reference date – where subcontract was terminated – where subcontract did not provide for reference dates after termination – whether work was completed under the subcontract or under a separate and later subcontract – whether a payment claim comprising work under two construction contracts is valid – adjudication determination quashed

CORPORATIONS - winding up - liquidators - where company’s sole function was to act as trustee of a unit trust – where trust deed provided for automatic removal of company as trustee upon liquidation – where no replacement trustee appointed - liquidator appointed as receiver of trust assets to enforce company’s right of indemnity

CRIME – sentencing – plea of guilty to murder – killing of child following sustained beatings over several days – horrific injuries through blunt force trauma – history of violence towards child and other members of the family – torture – aggravating circumstances – gratuitous cruelty – offence in victim’s home – offence in the presence of another child – use of weapon – whether life sentence mandatory – extraordinary letter written to offender’s lawyers – where offender refuses to allow further investigation of possible defences – demonstrative of insight and remorse – where offender suffered depression – self-induced intoxication – self-medication with alcohol – possible relevance to sentence – no intention to kill – whether life sentence only option – lengthy determinate sentence imposed

EVIDENCE – discretions – exclusions of evidence – exception to hearsay rule – where maker unavailable – where witness gave evidence of various conversations with victim up to six months prior to statement being made – where representation made by intimate friend of deceased victim – whether representations were made shortly after asserted fact occurred – shortly after must mean period that is relatively minimal – evidence excluded EVIDENCE – discretions – exclusions of evidence – exception to hearsay rule – where maker unavailable – where witness gave evidence of various conversations with victim at least six months prior to statement being made – where statement made at Australian High Commission by close friend of victim – where no evidence as to manner in which statement taken – whether representations were made in circumstances that make it highly probable that the representation is reliable – circumstances in which statement was made is issue not general reliability – evidence excluded

SENTENCING – non-parole period – standard non-parole period – where the sentencing judge misstated the standard non-parole period in sentencing – whether this error affected the exercise of the sentencing discretion APPEAL – general principles – points and objections not taken below – when allowed to be raised on appeal – whether in the interests of justice to entertain an appeal ground SENTENCING – appeal against sentence – powers of court – power to substitute sentence – where conflict of evidence before the Court – whether Court should resentence offender

SENTENCING – relevant factors on sentence – period spent in quasi custody – whether quasi custody taken into account by sentencing judge SENTENCING – appeal against sentence – co-offenders – disparity between sentences – whether justifiable sense of grievance exists SENTENCING – mitigating factors – plea of guilty – whether Thomson and Houlton principles were applied in sentencing

DEFAMATION – rulings as to imputations – no question of principle

CIVIL PROCEDURE – application by builder and developer for leave to bring cross claim against principal certifying authority – whether cross claim maintainable at law – whether principal certifying authority owes duty of care to first plaintiff – whether any liabilities which exist are coordinate – where prior questions of law unable to be quickly and easily resolved – where no prejudice to the principal certifying authority exists aside from costs and inconvenience – leave granted CIVIL PROCEDURE – offer of compromise accepted between first plaintiff and third defendant – whether judgment should be entered now in accordance with UCPR 20.27 – where issue of potential prejudice or estoppel may arise if judgment is entered – no prejudice in delaying entry of judgment until trial – judgment not entered

POSSESSION – plaintiff proves ownership and entitlement to possession – plaintiff and defendant originally married – no order of the Court disturbing plaintiff’s ownership – no resulting trust or factual circumstance that might arguably give rise to a resulting trust – possession ordered – leave to execute writ of possession granted – mesne profits ordered from date on which vacant possession was due to be given, in accordance with the demand made

CONFISCATION OF ASSETS – Criminal Assets Recovery Act 1990 – jurisdictional gateway satisfied – reasonable suspicion – retraining orders made

PROCEEDS OF CRIME – notice of motion – stay sought of pending forfeiture orders – no power to order stay – further extension sought so that foreshadowed conviction appeal can be heard - no notice of appeal filed – further extension not granted –– s 53 Proceeds of Crime Act 2002 - jurisdiction – construction of A New Tax System (Family Assistance) (Administration) Act 1999 – applications under s 29 and s 94 Proceeds of Crime Act – orders sought not made - reasons for decision

CRIMINAL LAW – particular offences – offences and other matters relating to terrorism – doing an act in preparation for or planning a terrorist act contrary to s 101.6(1) of the Criminal Code (Cth) – plea of guilty entered – engaging in conduct preparatory to entering a foreign country with intent to engage in hostile activities contrary to s 119.4(1) of the Criminal Code (Cth) – where s 119.4(1) offence taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth) CRIMINAL LAW – sentence – relevant factors – prospects of rehabilitation – terrorism offence involving advancement of a religious cause – where report from psychiatrist tendered on behalf of the offender on sentence – where report contained statements of offender not verified by him giving evidence – where no satisfactory evidence of reconsideration of fanatical religious views

CIVIL PROCEDURE — medical negligence claim — motion for transfer of proceedings — Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5(2)(b)(iii) —motion for expedition of proceedings — motion for change of venue — interests of justice — motions dismissed

SUPBOENA – notice of motion – privilege – s 118 Evidence Act 1995 (NSW) – waiver - s 468 Legal Profession Uniform Law 2014 EVIDENCE – privilege – client legal privilege