Cases and authorities

HIGH RISK OFFENDER - application for high risk violent offender extended supervision order - serious violent offender - Defendant committed murder in 1998 - motive for murder was obsessive hatred towards person whom Defendant suspected had engaged in child abuse - vigilante act of vengeance - deep-seated belief by Defendant that he is protector and avenger of the vulnerable - beliefs manifested during short release to parole in 2014-2015 before parole revoked - Defendant a high risk violent offender under s.5E(2) Crimes (High Risk Offenders) Act 2006 - extended supervision order made for term of three years

CONTRACTS – construction of contracts – contract for sale of land – cl 28..2 required defendants as vendors to do “everything reasonable” to cause plan of subdivision to be registered within 12 months after the contract date – cl 28.3.2 permitted the vendor to rescind, but only if the vendor had complied with cl 28.2 – special condition 48 gave parties an unfettered right of rescission if plan of subdivision not registered within 12 months – whether the clauses are inconsistent – consideration of how parties objectively intended the terms to operate – held special condition 30.11 in expressly amending cl 28.2 recognized its effectiveness including cl 28.3.2 – held despite superficial inconsistencies, on proper construction, parties had intended cl 28.3.2 to take effect REAL PROPERTY – contract for the sale of land – defendants as vendors had a conditional right of rescission if plan of subdivision not registered within 12 months – vendors rescinded when plan of subdivision not registered within period – whether condition satisfied and rescission valid CONTRACTS – burden of proof – whether the plaintiffs or the defendants had the burden of proving that the condition to the defendants’ right to rescind the contract for sale had not been satisfied, or satisfied, as the case may be – consideration of authorities – held defendants had the burden of proving they had satisfied the condition to their right to rescind the contract CONTRACTS – rescission – whether defendants had done everything reasonable to cause the plan of subdivision to be registered within 12 months of the date of the contract– in this instance, defendants were required to have a development plan designed to allow for possible delays and contingencies – plan needed to take into account evolving circumstances – defendants asserted that failure of registration in time was due to delay by third parties – court considered instances of delay in works and payment – held ultimately defendants did not manage the development project in a proactive manner so as to satisfy the condition to do everything reasonable – held defendants failed to validly rescind the contract

CRIMINAL LAW – sentence – manslaughter – excessive self-defence – where offender produced and used a knife while being assaulted – where the deceased initiated and gained the upper hand in the assault – intention to inflict really serious harm – offence of moderate objective seriousness – guilty plea on first day of trial – remorse shown – criminal history confined to one offence of violence committed shortly before index offence – reasonable prospects of rehabilitation – general and specific deterrence important considerations

REAL PROPERTY – option to purchase properties voided by statute – Conveyancing Act 1919 (NSW), Div 9 of Pt 4 – options since rescinded by vendor pursuant to statute – whether options were validly rescinded – in any case, whether options were exercised by notice – whether vendor is estopped from relying on statutory provisions – whether purchaser relied on or was induced by vendor – whether estoppel prevails against statutory provisions of Conveyancing Act – whether vendor’s conduct was unconscionable – whether purchaser is entitled to restitution

APPEALS – leave – costs – small amount in issue – primary judge declined to make costs order in favour of successful defendant – no question of principle – no clear case of substantial injustice

TAXATION – payroll tax – charities – non-profit entity claiming exemption from payroll tax pursuant to s 48 of the Payroll Tax Act 2007 (NSW) – where charitable purpose the advancement of the grain industry – where employees engaged in information, technical and analytical services – whether employees engaged in work of a kind ordinarily performed in connection with the charitable purpose of the institution STATUTORY INTERPRETATION – construction of s 48 of the Payroll Tax Act 2007 (NSW) – phrase “work of a kind ordinarily performed in connection with the … charitable … purposes of the institution” – whether s 48(2) requires assessment of work performed by comparable institutions – whether such a construction would produce absurdity – whether such a construction would preclude new or innovative charitable activities STATUTORY INTERPRETATION – words used in legislation to be construed within their statutory context – utility of reference to the construction of particular words within a different statutory context STATUTORY INTERPRETATION – legislative history – utility of legislative history where provisions substantially amended

COSTS – solicitors acting for themselves in proceedings – costs order made for “costs of representing themselves” – costs assessment – costs assessment on the basis of the solicitors’ professional costs JUDICIAL REVIEW – application for judicial review of a dismissal of an appeal against a decision of a costs review panel – where costs assessment conducted on the basis that the solicitors were entitled their professional costs as part of their costs of representing themselves JUDICIAL REVIEW – jurisdictional error – “Chorley exception” – whether primary judge erred by affirming a position that did not reflect the law in New South Wales JUDICIAL REVIEW – jurisdictional error – collateral challenge to a costs order – not available in the costs assessment process

APPEAL – application for leave to appeal – where application dismissed and motion to set aside or vary that order – no question of principle – motion dismissed

PRACTICE AND PROCEDURE –application to reopen judgment –– whether applicant a person under legal incapacity – Uniform Civil Procedure Rules 2005 (NSW), r 7.13 – issues raised before hearing – whether any “irregularity” in judgment – matter available to be raised, but not raised, at hearing – relief sought exceptional

APPEAL – leave to appeal – appeal from Appeal Panel of Civil and Administrative Tribunal – where appeal is only available on a question of law – whether finding of repudiation was not reasonably open on the whole of the evidence – whether error of law – Civil and Administrative Tribunal Act 2013, s 83(1) BUILDING AND CONSTRUCTION – construction and interpretation of contracts – question of repudiation – whether one party had repudiated the contract and the other party accepted the repudiation – where builder under mistaken belief that owners terminated the contract – where builder failed to perform essential term of the contract which amounted to a renunciation of its obligations under the contract – whether repudiation can amount to an error of law – where, on the whole of the evidence, the Appeal Panel could not rationally find that the owners repudiated the contract CONTRACT – repudiation – effect of breach on purported acceptance of repudiation – whether a party that is itself in breach may accept the other party’s repudiation and terminate the contract - whether it was the first party’s breach that provoked the other party’s repudiatory conduct

PRACTICE AND PROCEDURE – notice of motion – application to set aside judgment – Uniform Civil Procedure Rules 2005 (NSW) – whether judgment by consent should be set aside

CORPORATIONS — Voluntary administration — Deed of company arrangement — Application by deed administrator for leave to transfer shares in company under s 444GA of the Corporations Act 2001 (Cth) – where evidence demonstrated that if leave was not granted there would be no alternative to the company being wound up and that there would be no return to shareholders in a winding up – whether transfer of shares would unfairly prejudice the interests of members of the company.

CONTRACT- The plaintiff purchased assets of dental practice from defendants, then licensed continuation of practice by 1st defendant at premises owned by 2nd defendant and leased to purchaser. 1st defendant terminated license, purchaser terminated lease of premises. Plaintiff claims 1st defendant in breach of purchase agreement by being employed by third party at the premises (and by soliciting business), and 2nd defendant in breach by leasing premises to the third party- issue of whether practice conducted under license closed or moved- issue of whether restraint has any operation after termination of plaintiff’s lease and or closure of the licensed practice- the nature of the goodwill the subject of protection by the restraint clauses considered. CONTRACT- Observations (obiter) on proof of damage where breach of restraint clauses alleged. EQUITY – equitable remedies – injunctions – injunction in aid of restraint of trade- where plaintiff seeks injunction to prevent 1st defendant from continuing current employment or practicing within a certain radius for a period and soliciting business - where plaintiff seeks to injunct 2nd defendant from leasing out premises to 3rd party as a dental practice; HELD- Restraint of trade clauses have not been breached -to infringe the restraint clauses the 1st defendant would have had to have been employed by a practice in competition with the practice purchased by the plaintiff- the practice purchased by the plaintiff had ceased to exist and therefore there was no competing practice-restraint of trade clauses not intended to protect plaintiff’s other businesses or interests.

DEFAMATION – imputations – objections as to form and capacity – no question of principle

CIVIL PROCEDURE - statement of claim – application for leave to file fourth amended statement of cross claim - long procedural history - change of solicitors with new solicitors seeking to amend claim – relevant principles – efficiency – interest in preserving hearing dates – amendments permitted in accordance with reasons

HIGH RISK OFFENDER - serious violent offender - preliminary hearing - application for interim supervision order and for examination by court-appointed psychiatrists - index offence of attempted murder in 2011 - criminal history includes other offences of violence - whether Defendant a “high risk violent offender” under s.5E(2) - relevance to risk assessment of offences of violence which are not “serious violent offences” - interim supervision order made together with order for examination by two psychiatrists

APPEAL FROM LOCAL COURT – appeal against decision of a magistrate in a civil claim – construction of rental and lease agreements – four square rule – question of termination of contracts –

CRIMINAL LAW – sentence – accessory before the fact to murder – offender not present when principal offender assaulted and killed the deceased – evidence in proceedings included Facebook and text messaging between principal offender, the offender and the deceased – the evidence established that the offender and principal offender possessed a shared intention to inflict grievous bodily harm upon the deceased and encouraged and/or assisted him to do so

CIVIL LAW – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk violence offender – final hearing – whether offender poses an unacceptable risk of committing a serious violence offence – criminal record mostly comprised of summary offences or offences capable of being dealt with summarily – one serious violence offence in criminal history – unusual circumstances surrounding index serious violence offence

CORPORATIONS — Winding up — Application by plaintiff to remove the liquidators of the company – where the liquidators decided not to conduct public examination of company’s director in circumstances of an unfunded liquidation – where the plaintiff who was creditor of company had offered to fund legal costs of conducting the examination on condition that plaintiff’s solicitor be used – where plaintiff only offered payment of limited remuneration to the liquidators in relation to conducting the examination – where at the time the liquidators decided not to conduct examination the liquidators viewed that the available documents did not disclose sufficient grounds to conduct the examination – whether cause for removal of liquidators under s 503 of the Corporations Act 2001 (Cth) established in the circumstances.

EQUITY – existence of a fiduciary duty – nature of fiduciary obligations – trusts – mingling of funds held on trust – definition of a joint venture – joint ventures and fiduciary relationships – remedial constructive trust – common intention constructive trust CONTRACT – intention to contract – oral contracts – implied terms – objective determination of a contract and its terms – existence of a contract – estoppel by convention

CIVIL LAW – application for an extended supervision order pursuant to Crimes (High Risk Offenders) Act 2006 – final hearing – defendant with relatively short record for violence – concern about mental illness – extended supervision order made

CIVIL – Crimes (High Risk Offenders) Act 2006 (NSW) – application for extended supervision order – defendant in custody on pending serious criminal charges – uncertainty as to future custodial status of defendant – duration of extended supervision order – extended supervision order made

CONTRACTS – construction and interpretation of contracts – no issue of principle

LOCAL COURT – appeals – whether failure to comply with a procedural direction can properly be taken into account in the court’s evaluation of evidence that has been admitted at trial – proper construction of s 61 of the Civil Procedure Act 2005 (NSW) – whether Local Court erred in accepting evidence of expert witness where assumptions not proved – whether findings of fact available on the evidence – where plaintiff in proceedings below sought damages for cost of relaying carpet installed over five years earlier – whether open to find carpet had any future useful life

FINAL ORDERS – where parties required to agree on the calculation of the amount to be entered as judgment for the cross-appellant – where cross-appellant provided calculations to solicitors for cross respondent – where cross-respondent represented by solicitors on the record – where cross-respondent’s solicitors advise that they did not have “any instructions to permit” a response – where cross-respondent personally files Notice of Motion for orders – whether judgment should be entered in the circumstances

PRACTICE – stay of proceedings – application for stay where winding up order made in favour of Deputy Commissioner of Taxation on basis of applicant’s insolvency – where appeal likely nugatory if stay not granted CORPORATIONS – where company wound up in insolvency by reason of tax debt – where tax debt the subject of pending review proceedings in the Administrative Appeals Tribunal – where application to stay winding up order pending determination of appeal PRACTICE - parties – joinder – where applicants for joinder beneficiaries of trust – where order made that trustee of trust be wound up

CRIMINAL LAW – application for leave to appeal against sentence – where sentencing judge mistook maximum penalty for offence of cultivating a prohibited plant – material error – applicant re-sentenced and commencement dates adjusted

CRIMINAL LAW – Crown appeal against verdict of acquitial directed by trial judge – drug offence – knowingly take part in manufacture of prohibited drug cocaine - A4 paper impregnated with cocaine imported to Australia – whether respondent ‘manufactured’ prohibited drug by separating cocaine from paper – whether a step in “the process of extracting or refining” prohibited drug - final step in realising the prohibited drug as marketable commodity - appeal allowed – new trial ordered STATUTORY INTERPRETATION – Drug Misuse and Trafficking Act 1985 (NSW) s 24 – principles - judicial precedent - use of interstate decisions – different legislation with similar purpose – use of dictionaries - proper approach WORDS AND PHRASES – “manufacture” – “process of extracting or refining the prohibited drug” - statutory defintions using “means” and “includes”

CRIMINAL LAW – conviction appeal – inconsistent verdicts – alternative not consecutive counts CRIMINAL LAW – conviction appeal - whether trial judge should have left a lesser alternative offence to jury than that charged - duty to secure a fair trial – application of James v The Queen - appeal dismissed

CRIMINAL LAW - procedure - Criminal Assets Recovery Act 1990 - orders made

CRIMINAL LAW – procedure - Criminal Assets Recovery Act 1990 – orders made

COSTS – discontinuance of proceedings – whether circumstances warrant departure from usual position that discontinuing party pay other party’s costs – UCPR r 42.19(2)

CRIMINAL LAW – application for referral of convictions to Court of Criminal Appeal – Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) – commission of serious offences by person of good character after hospitalisation and administration of medication – whether acts of applicant were voluntary – whether applicant was acting in state of automatism – application dismissed

CONTRACT – plaintiff sued defendant for damages for breach of contract in respect of an oral agreement allegedly made between the parties whereby the plaintiff alleged that in return for not seeking immediate repayment of certain loan monies the defendant would pay him the sum of $1.6 million upon finalisation of a property development or the interest of the defendant in the project was sold or finalised – in addition to the repayment of the loan monies – principles as to proof of a cause of action based on contract where spoken words are relied upon as a foundation for such cause of action – requirement to prove the relevant conversation to the reasonable satisfaction of the court – the court should feel an actual persuasion of its occurrence – absence of any contemporaneous records corroborating the alleged oral agreement – credibility of the plaintiff and defendant’s directors

ADMINISTRATIVE LAW – first defendant injured in motor vehicle accident – personal injury damages assessed by claims assessor – alleged error in law in applying wrong legal test in assessment of future economic loss in that assessor failed to find first defendant suffered financial loss – alleged error in law by not setting out assumptions or sufficient assumptions on which award purportedly based, pursuant to s 126(3) of Motor Accidents Compensation Act 1999 – claims assessor’s decision alleged to be legally unreasonable in that it was irrational, illogical and lacking in any intelligible justification – path of reasoning of claims assessor was evident from the Claims Assessor’s reasons – relevant findings as to “assumptions” on which the award of “buffer” for future economic loss made – first defendant a credible witness – findings as to impairment of earning capacity made – buffer award damages was appropriate – no error of law demonstrated.

WORKERS COMPENSATION – practice and procedure – whether claims assessor erred in determining that claim was within jurisdiction conferred by the Motor Accidents Compensation Act 1990 – whether claims assessor erred by failing to ask and answer question whether the claim involves complex legal issues – whether substantive law of NSW or Victoria is applicable to the claim brought by the First Defendant

CONTRACT – dispute between plaintiff construction company and defendant local council arising out of the supply, delivery and laying of asphalt – nature and purpose of the option provision in the contract – whether the option provision on its proper construction granted the plaintiff an option to extend the contract or whether the option was one exercisable by the defendant council – assuming the option was exercisable by the plaintiff, whether a term ought to be implied into the contract to the effect that the option was not exercisable if the plaintiff company was in breach – whether the plaintiff breached the contract – calculation of damages – no defence of failure to mitigate – likelihood of plaintiff being successful in future tenders – assessment of expectation damages and damages for loss of chance for the renewal of the contract

CRIMINAL LAW – practice and procedure – principal judgment held that the Magistrate had erred in construction of the provisions of s 69 of the Law Enforcement (Powers and Responsibilities) Act 2002 – examination of the evidence given by executing officer in proceedings before the Magistrate as to whether it was capable of establishing before the search warrant was executed, existed exigent circumstances that constituted a risk to the safety of police or others associated with the execution of a search warrant – the evidence before the Magistrate was not capable of supporting existence of exigent circumstances at any time prior to defendant’s first request to see the warrant or prior to entry – the interests of justice did not require that the order of acquittal be set aside and the proceedings remitted to the Local Court.

PROCEDURE – judgments and orders – variation and setting aside – interlocutory injunction – application to discharge – where original basis no longer exists but alternative basis available – application dismissed

CRIMINAL LAW – sentence – two counts of murder – one of attempted murder – nursing assistant who injected aged care facility residents with insulin – intention to kill – vulnerable victims – extreme breach of trust – criteria for life sentence not established – offences well above midrange – subjective circumstances do little to mitigate penalty – good character – no guilty plea – where offender maintains his innocence – no basis for a finding of special circumstances – strong need for general deterrence and recognition of harm caused – aggregate sentence imposed

BANKING AND FINANCE — dispute resolution — statutorily required dispute resolution scheme established pursuant to s 912A of Corporations Act 2001 (Cth) — whether determination of applicant’s dispute by the dispute resolution scheme was made in accordance with terms of reference — whether determination dealt with applicant’s submissions — whether determination was unintelligible, irrational or illogical on account of internal inconsistency — whether determination lacked adequate reasons for rejecting applicant’s submissions — determination read fairly dealt with and provided sufficient reasons for rejecting applicant’s submissions — determination not unreasonable — determination made in accordance with terms of reference

CRIMINAL LAW – manslaughter – sentence – substantial impairment

TORTS — negligence — vehicle turning from Highway and crossing north bound traffic lanes — collision with prime mover — whether foggy conditions and poor visibility made it unsafe to cross lanes on Highway — whether the speed the prime mover was travelling was excessive in the foggy conditions meaning it could not avoid the collision — whether primary Judge erred in finding that any breach of duty by the Appellant was causative of the loss sustained by the Respondent — whether primary Judge erred in assessing that the Appellant bore 40 per cent of the responsibility for the accident — whether the Appellant’s vehicle had sufficient time and distance after entering the thick fog to slow to a speed that would have enabled the collision to be avoided

COSTS – indemnity costs – Calderbank offers – application with respect to trial – whether compromise or capitulation offered – application with respect to appeal – reliance on offers made before trial – further offer before hearing of appeal – whether reasonable time allowed – relevance of ongoing negotiations – whether unreasonable for respondents not to accept offers

PRACTICE AND PROCEDURE – appeal determined – notice of motion seeking further relief – whether appeal finally determined – whether notice of motion incompetent

PRACTICE AND PROCEDURE – variation of costs order – application for leave to appeal in 2012 – leave refused with costs – application in 2016 under Uniform Civil Procedure Rules 2005 (NSW) r 36.16 for personal costs order against solicitor who acted for unsuccessful party – whether 14-day time limit in sub-r (3A) precluded application – whether application for variation of orders COSTS – whether to make personal costs order under ss 98 or 99 of the Civil Procedure Act 2005 (NSW) – discretionary factors – delay

APPEALS – appeal by prosecutor to Land and Environment Court from dismissal in Local Court of summary proceedings with respect to an environmental offence pursuant to Crimes (Appeal and Review) Act 2001 (NSW), s 42(2B)(b) – meaning of the definition of “prosecutor” as contained in Crimes (Appeal and Review) Act, s 3(1) – relevance of definition of “prosecutor” in Criminal Procedure Act 1986 (NSW), s 3(1) – whether Council the “prosecutor” for the purposes of bringing an appeal LAND & ENVIRONMENT – offence against s 125(1) of Environmental Planning and Assessment Act 1979 (NSW) – failure to cease using premises as a “transport depot” as defined in the Queanbeyan Local Environment Plan 1998 – meaning of the term “transport deport” – whether parking of vehicles used in connection with a business, industry or shop must involve the transport of something

COSTS – appeal allowed in part – costs of trial – appropriate costs order where a number of issues at trial not ventilated on appeal COSTS – application to vary costs order made in the appeal – application made out of time – motion incompetent

CORPORATIONS — Winding up – Application to terminate winding up – where company’s debts and liquidator’s remuneration and costs will be paid – where company apparently solvent – where creditors, contributories and liquidator support, or do not oppose, application