Cases and authorities

CRIMINAL LAW – sentencing – one count of supplying large commercial quantity of ephedrine – aggravating factors – whether financial reward and planning could be taken into account as aggravating factors – whether those matters inherent in the offence – whether the planning or financial gain was significant – whether sentence manifestly excessive

CRIMINAL LAW – sentencing – one count of knowingly taking part in the cultivation of a commercial quantity of marijuana – role of the applicant - whether designation of applicant as a principal in the cultivation was open on the evidence – whether judge’s assessment of the sophistication and scale of the cultivation was open on the evidence – parity – whether applicant had justifiable sense of grievance with sentences imposed on co-offenders – where the same judge sentenced the co-offenders

CRIMINAL LAW - sentencing – three counts of aggravated break and enter – one count of wound with intent to cause grievous bodily harm – applicant on parole at time of offending – whether judge took breach of parole into account when assessing objective seriousness of offending – error demonstrated in assessing objective seriousness - parity with co-offender – co-offender dealt with under Children (Criminal Proceedings) Act – no justifiable sense of grievance – need to re-sentence – assistance to authorities in unrelated matter – significant assistance

CIVIL PROCEDURE – application to restrain plaintiffs’ solicitor from acting in proceedings – where the defendants’ former solicitor divulged privileged or confidential instructions to the plaintiffs solicitor

COSTS – where earlier proceedings resolved by heads of agreement following mediation – where non-compliance with agreement by party – where further proceedings filed for specific performance of agreement – obligations performed by first return date – conduct of defendants unreasonable – HELD – not required to make time of the essence before suing for specific performance – defendants were on notice – obligation to use “reasonable endeavours” – failure of defendants to respond to plaintiffs’ solicitors demands – costs warranted because of disparity between the reasonableness of plaintiffs’ conduct and the unreasonableness of defendants’ conduct

CRIMINAL LAW – procedure – application for change of venue from regional centre to Sydney– whether jury selection likely to fail to produce impartial jury – discussion of other relevant factors – trial date and location confirmed

CIVIL PROCEDURE – summary judgment – proceedings for specific performance – whether it is clear that there is no real question to be tried – summary judgment not appropriate in light of potential defences that could be raised CIVIL PROCEDURE – default judgment – proceedings for specific performance – no defences filed by defendants – Uniform Civil Procedure Rules (2005) (NSW), r 16.10 – whether plaintiff entitled to judgment on its statement of claim – default judgment entered

CRIMINAL LAW – sentence – accessory after the fact to murder – death of deceased in 1982 – where offender not charged until 2015 – where principal offender died before being brought to justice

CRIMINAL LAW – special hearing under Mental Health (Forensic Provisions) Act 1990 – murder – judge alone – alternative charge of manslaughter – accused suffering mental impairment – whether accused intended to seriously injure victim when she hit him with a metal pole – how numerous burns were caused –– whether victim was struck before he was burnt by boiling water – self-defence – provocation – partial defence of substantial impairment by abnormality of mind – verdict – on the limited evidence available accused not guilty of murder but guilty of manslaughter

LIMITATION OF ACTIONS – application for extension of time under Limitation Act 2005 (WA) – whether the plaintiff was unaware of the matters in s 39(3)(b) of the Act before the expiration of the limitation period - whether the plaintiff has satisfied s 39(4) of the Act - whether the knowledge of the plaintiff’s legal representatives can be imputed as her actual knowledge PRACTICE AND PROCEDURE- summary judgment- whether reasonable cause of action is disclosed

MORTGAGES AND SECURITIES – farm mortgage and farm debt – Farm Debt Mediation Act 1994 (NSW) – proceedings for recovery of a debt by mortgagee – whether proceedings are commenced in contravention of s 8 of the Act and void under s 6 – whether mortgagor was a farmer – whether mortgagor was engaged in a farming operation – whether breeding snakes and rodents is a farming operation – whether mortgagor was solely and principally engaged in a farming operation or property development – whether there was a farm debt where the secured property has already been sold – whether notices under s 57(2)(b) of the Real Property Act 1900 (NSW) are inextricably interlinked to the commencement of proceedings to constitute a single enforcement action – identifying the date of enforcement action – effect of mortgagor having knowledge of the availability of mediation under the Farm Debt Mediation Act

REAL PROPERTY – Easements – Rights of way – Construction – Whether easement implicitly precludes grazing of cattle by servient tenement owner – Meaning of “all weather” access standard – Whether dominant tenement owner liable to contribute financially to the cost of certain works REAL PROPERTY – Easements – Rights of way – Whether installation and closing of gates along right of way, permitting cattle to graze on right of way, and/or the presence of a metal shipping container on the right of way amounts to substantial interference with rights of the owner of the dominant tenement – Whether opening of gates along right of way amounts to unreasonable use by the dominant tenement owner of rights conferred on it under easement ENVIRONMENT AND PLANNING – Development consent – Whether carrying out of works on right of way unlawful for failure to comply with Wyong Local Environmental Plan 2013 and s 76A of the Environmental Planning and Assessment Act 1979 (NSW) ENVIRONMENT AND PLANNING – Pollution – Land pollution and waste – Special waste – Whether carrying out of works on right of way amounted to the use of land as a “waste facility” contrary to s 144 of the Protection of the Environment Operations Act 1997 (NSW)

CRIMINAL LAW – appeal against conviction – procedure – whether appropriate to grant leave under Criminal Appeal Rules, r 4 – whether provision of video and audio recordings of complainant’s evidence to jury during deliberations constituted a miscarriage of justice – where applicant led positive defence case at trial – whether danger that jury would give disproportionate weight to the complainant’s recorded evidence – where warning given to the jury – where applicant’s trial counsel did not object or seek redirection. CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive.

CRIMINAL LAW – appeal against sentence – robbery armed with a dangerous weapon – error conceded by Crown – parity

CRIMINAL LAW – appeal against sentence - four offences of supply of a prohibited drug contrary – whether sentence is manifestly excessive

CRIMINAL LAW – sentencing appeal – finding by sentencing judge of special circumstances not reflected in shorter non-parole period – non-parole period amended to reflect sentencing judge’s finding, with which the Court on independent assessment agrees

CRIME – sentence appeal – two offences of wounding with intent to cause grievous bodily harm – liable under joint criminal enterprise principles – affray on Form 1 – whether sentence manifestly excessive – youth – asserted errors questions of weight – no indication too much weight given to general and personal deterrence – application of s 21A(2)(ea) Crimes (Sentencing Procedure) Act 1999 when offender a juvenile – statistics and comparative cases do not demonstrate error – sentences not unreasonable or plainly unjust CRIME – parity – applicant and two co-offenders brothers – asserted insufficient disparity – sentencing judge specifically addressed parity – differences in age and roles in offending – applicant’s overall sentence 60% and 48% of co-offenders’ sentences – obvious and marked distinction made between co-offenders – discretionary assessment – differentiation open

CRIMINAL LAW – appeal against sentence – historical sexual offences – substantial delay – where patterns of sentencing changed – where maximum penalties increased and definitions of offences changed – correct approach to sentencing –significance of general deterrence – whether sentencing judge erred in approach to deterrence – judicial memory – whether appropriate for judge to use personal memory of sentencing patterns decades earlier – whether sentence manifestly excessive

CRIME – appeal – conviction – nine counts of indecent assault with a person under the age of 10 years – one count of sexual intercourse with a person under 10 years – whether alternative verdicts should have been put to jury – whether the trial judge unfairly foreclosed the opportunity for defence counsel to investigate the context of admissions made by the appellant – whether verdict unreasonable having regard to the evidence

COSTS – application for order prohibiting a magistrate from hearing criminal proceedings – police officer named personally as a defendant – costs incurred in taking active role in opposing a stay of the underlying criminal prosecution – where plaintiff’s lateness in bringing the proceedings and failure to give reasonable notice of the application for a stay frustrated the orderly consideration by the Attorney General whether to seek leave to intervene to act as contradictor

COSTS – whether successful party ought have order for costs in favour – partial success – application under Uniform Civil Procedure Rules, r 42.34 must be made irrespective of attitude of other party – HELD – appropriate for each party to pay its own costs of the motion

COSTS – whether it is in the interests of justice to order the plaintiff to pay the defendant’s costs in the defamation proceedings on an indemnity basis since she unreasonably failed to accept the defendant’s offer – HELD – not in the interests of justice – appropriate that she be ordered to pay the defendant’s costs of both the defamation proceedings and the equity proceedings on an indemnity basis after the date of the offers

ADMINISTRATIVE LAW – judicial review of decision of the Local Court – where magistrate ordered that firearms in relation to which there had been a finding of guilt under Part 4 of the Firearms Act 1996 (NSW) be given to a third party – whether application may be made under s 80(1) of the Firearms Act in respect of such firearms – applicability of s 219 of LEPRA STATUTORY CONSTRUCTION – whether telescopic sight a “firearm part” and “firearm” for the purposes of s 80(4) of the Firearms Act

LEASES AND TENANCIES – leases – construction of leases – general principles of construction – whether certain area forms part of demised premises – proper commencement date of lease – whether lessor required to perform certain building works LEASES AND TENANCIES – leases – termination of leases – termination due to alleged change of control – whether shares in plaintiff company transferred without lessor’s consent – incorrect records of share transfers lodged with ASIC – no share transfers occurred – termination invalid LEASES AND TENANCIES – leases – obligations of lessor – whether lessor obliged to consent to lessee’s application to modify development consent in relation to trading hours – implied duty to co-operate to allow other party to have benefit of contract – terms of lease support implication of obligation – lessor required to give its consent TORTS – conversion – title to goods – standing to sue – where plaintiff claimed that defendants had disposed of stored café equipment without its consent – where plaintiff alleged that title to goods acquired by transfer – transfer of title not established

STATUTORY APPEAL – appeal from decision of the Local Court under s 53(3)(b) of the Crimes (Appeal and Review Act 2001 – competency of appeal – whether direction that evidence be given via audio-visual link an “interlocutory order” ADMINISTRATIVE LAW – judicial review – whether Magistrate erred in acting on “unsubstantiated assertions” by informant when determining whether the matters in s 5B(2) of the Evidence (Audio and Audio-Visual Links) Act existed

ADMINISTRATIVE LAW – judicial review of decision of proper officer of SIRA to refer “treatment dispute” to medical assessor – whether assessor had already determined treatment dispute in the course of assessing degree of impairment – whether proper officer had no power to refer treatment dispute

CRIMINAL LAW - Sentence – murder – reckless wounding in company - joint criminal enterprise

CIVIL PROCEDURE – Pleadings – No application to amend made – Whether plaintiff should be permitted to advance case that goes beyond pleadings CIVIL PROCEDURE – Pleadings – Pleading material facts – Whether case argued raises new material factual issues not pleaded – Whether unconscionability case pleaded with sufficient precision EQUITY – Equitable remedies – Equitable compensation – Where plaintiff beneficiary entered into interest free loan with defendant fiduciary – Duty not to procure plaintiff to enter into uncommercial agreement – Whether it was in interests of plaintiff to enter loan – Whether defendant breached fiduciary duties in being party to the loan – Whether plaintiff entitled to claim interest on loan EQUITY – Equitable remedies – Equitable compensation – Where defendant breached fiduciary obligations in not offering plaintiff a discount for prepayment of rent – Whether plaintiff entitled to compensation in respect of prepayment EQUITY – Fiduciary duties – Scope – Whether fiduciary had duty to acquire property for beneficiary but chose to acquire for own benefit – Whether fiduciary prevented from acquiring property which beneficiary had interest in acquiring EQUITY – Trusts and trustees – Constructive trust – Whether defendant obtained benefit by reason of breach of fiduciary duty – Whether remedial constructive trust should be imposed – Whether gain on disposal of property held on constructive trust EQUITY – Trusts and trustees – Constructive trust – Institutional constructive trust – Whether defendant used funds belonging to plaintiff to acquire property – Whether loan funds should be characterised as properly belonging to lender or borrower – Whether overpayment of rent properly characterised as belonging to tenant or landlord LIMITATION OF ACTIONS – General – Statute of limitation – Limitation Act 1969 (NSW) – Postponement of the bar – Whether equity retains residual discretion not to apply bar – Whether residual discretion arises in context of breach of fiduciary duty – Whether unconscionable conduct defeats limitation bar

LEGAL PROFESSION – costs – practitioner-client costs – costs assessment – first instruction for provision of legal services given before commencement of Legal Profession Act 2004 (NSW) – application for assessment of costs lodged after commencement of Legal Profession Uniform Law (NSW) – practitioners institute District Court action for recovery of costs after lodgement of application for assessment – clients apply for summary dismissal of action – application granted on the basis that a provision of the Legal Profession Act 2004 (NSW) precludes recovery proceedings while assessment in progress – which statutory regime for costs assessment applies in the circumstances – whether primary judge erred in granting summary dismissal – discussion of current and repealed legislation STATUTORY INTERPRETATION – Legal Profession Act 2004 (NSW), clauses 18(1) and 18(3) of schedule 9 – whether the words “subject to” imply inconsistency between subclauses – construction of those words in the particular context

GUARANTEE AND INDEMNITY – indemnities – liabilities established by settlement – where provider of warehousing services and employer of person responsible for damage to warehoused goods separately settled with owner of goods – whether settlement by provider of warehousing services was reasonable having regard to liability in fact to owner of goods

EQUITY — Assignment — Of equitable interests — In real property — grant of life estate by deed — whether purported gift of fee simple was complete in equity — whether legal owners had done everything necessary required to be done by them to complete the transfer — whether transferors had relevant intention for appellant to be beneficially entitled to estate in fee simple — grant of life estate inconsistent with intention to gift estate in fee simple — whether legal owners held estate in reversion on trust for appellant — no error in primary judge’s findings

ADMINISTRATIVE LAW – judicial review – refusal to direct inquiry under Pt 7 of Crimes (Appeal and Review) Act 2001 (NSW) – decision by judge of a superior court – whether doubt or question as to any part of evidence in the case – whether primary judge misapprehended the nature of her power and thereby fell into jurisdictional error – whether primary judge’s decision unreasonable – whether constructive failure to exercise jurisdiction

CRIMINAL LAW – sentencing appeal – aggravating and mitigating features – whether aggravation regarding financial reward taken into account – relevance of standard non-parole period for admitted offence – top down approach – leave granted – appeal dismissed

CORPORATIONS — Winding up — Conduct of liquidation — Meeting of creditors – Application for extension of convening period for second meeting of creditors – where extension would allow more advantageous recapitalisation proposals to be obtained – where extension would allow resolution of dispute as to contingent litigation creditors’ entitlement to vote at meeting or settlement of the litigation.

PROCEDURE – application for expedition – where carer is plaintiff’s wife – where carer is suffering significant psychiatric impacts – order for expedition made

JUDICIAL ADVICE – Trustee Act 1925 (NSW) s 63 – Whether executor justified in entering into proposed settlement – Whether executor justified in commencing construction suit to determine whether beneficiaries have validly exercised a right of election to purchase part of the property forming the residuary estate as contemplated by a will and to determine date upon which valuations of that property should be made

LOCAL COURT APPEAL– magistrate refused to revoke s 12 bond on the basis of effluxion of time – failure to comply with s 98(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – HELD – error of law on the face of the record – decision with respect to bond set aside – decision as to sentence imposed set aside as affected by error of law

APPROVAL OF SETTLEMENT – claim in negligence against State of NSW arising from sexual and emotional abuse alleged to have been perpetrated by foster parents while plaintiff was a ward of the State – settlement approved – substantial sum – in the interests of the plaintiff – benefits of resolution of such matters

PRACTICE AND PROCEDURE – direction by a judge of the Industrial Court that contempt proceedings be commenced – whether the Prothonotary has standing to apply for revocation of direction – whether this Court has power to revoke direction – jurisdiction under s 23 of the Supreme Court Act sufficient conferral of power to revoke direction

WATER – water access licences – where licence entitlement to take water from Murray River under repealed Water Act 1912 (NSW) converted to access licence under Water Management Act 2000 (NSW) – where access licence category to which entitlement converted dependent on whether 1912 Act licence permitted taking of water from “regulated” or “unregulated” part of river under the 2000 Act – Murray River relevantly “regulated” downstream from “the upper limit of the storage of Hume Dam” STATUTORY INTERPRETATION – ordinary and natural meaning of “the upper limit of the storage of Hume Dam” – whether practical considerations justify departure

CONTRACTS – Unjust contracts – Contracts Review Act 1980 (NSW) – where option agreement entitled property developer to purchase residential property within 18 months and entitled owner to require sale within 6 weeks thereafter – where owner believed agreement entitled him to require sale within 18 months – where owner anticipated delay before exchange sufficient to take legal advice – where amendments to price and non-price terms negotiated by owner and conveyancer on behalf of owner – whether option agreement unjust – whether option agreement should be declared void ab initio

TENANCIES – Residential Tenancies Act 2010 (NSW) – termination of residential tenancy agreements by order of NSW Civil and Administrative Tribunal – whether Tribunal required to consider matters in Residential Tenancies Act 2010 (NSW), s 154E(1) in exercising power under s 85(3) in relation to social housing tenancy agreements STATUTORY INTERPRETATION – provision mandating regard to matters in considering whether to exercise a power – ordinary meaning of “whether” – resolution of apparent conflict between provisions in single statute – construing “must” as “may”

CIVIL PROCEDURE – injunctive relief – application to restrain defendants from continuing with a proceeding in the Royal Court of Jersey – inherent jurisdiction of the Court to restrain foreign proceedings to avoid interference with Court process

DEFAMATION – interlocutory steps – no question of principle

DEFAMATION – oral publication in disputed terms – whether appropriate to determine in advance of the trial the question of the capacity of the matter complained of to convey the imputations specified by the plaintiffs – where defamatory meaning of the matter complained of likely to be informed by acts and subtle visual cues such as facial expression, tone and demeanour

EQUITY – Costs

Criminal Law – Appeal against conviction – Where plaintiff charged before the Local Court with assault occasioning actual bodily harm – Where back up charge laid of common assault – Reliance by the plaintiff upon self-defence – Where Magistrate found in respect of the principal charge that the prosecution had failed to negative self-defence beyond reasonable doubt – Where Magistrate then convicted the plaintiff of the back-up charge – Where Crown conceded error – Appeal allowed – Conviction set aside

CIVIL PROCEDURE – reopening judgment where issue not dealt with NEGLIGENCE – Duty of care – Causation – Whether but for the third defendant’s negligence the plaintiff would have suffered loss

COSTS – application for interest on costs – application made after appeals to Court of Appeal and High Court – whether first instance court is functus officio – where costs order at first instance set aside by Court of Appeal and Court of Appeal’s order subsequently set aside by High Court – whether first instance court has authority under s 101(4) to order interest on costs on the strength of High Court’s order – whether application should be refused on grounds of alleged delay