Cases and authorities

EQUITY – general principles – unjust enrichment –funds misappropriated by employee with assistance of fraudster – funds paid to fraudster who used part of funds to “repay” funds earlier advanced to fraudster by innocent party – whether innocent party a volunteer – whether innocent party liable to account for benefit received – whether innocent party entitled to change of position defence – whether innocent party not liable to account for funds because funds used to acquire bank cheque in favour of vendor of real property to innocent party – whether personal claim still available if innocent party used funds to acquire indefeasible title in real property

PRACTICE AND PROCEDURE - Pleadings - Application to amend pleadings - Whether claims are reasonably arguable - Overriding purposes of Civil Procedure Act 2005 (NSW) - Whether amendments are likely to result in hearing date being vacated - Whether prejudice will be caused by amendments

Murder; judge alone trial; defence of mental illness; special verdict - not guilty on the grounds of mental illness

CRIMINAL LAW – sentencing – applicant engaged to play low-level role in cultivation of cannabis inside converted suburban house – whether sentencing judge placed too much weight on applicant’s status as illegal immigrant CRIMINAL LAW – sentencing – whether discount applied for early guilty plea by applicant –Court not lightly to infer obvious omission by experienced sentencing judge – discount neither quantified by sentencing judge nor expressly taken into account – inference of omission drawn from lack of reference to discount for utilitarian value of plea and magnitude of sentence CRIMINAL LAW – sentencing – manifest excess – preservation of sentencing judge’s findings and structure – reduction of sentence to apply discount for early plea

APPEAL - sentencing - manslaughter - respondent found guilty after special hearing - limiting term nominated - Crown appeal against inadequacy of limiting term - Criminal Appeal Act 1912 (NSW), s 5D - Mental Health (Forensic Provisions) Act 1990 (NSW), s 22 and s 23 - appeal dismissed CRIMINAL LAW - purpose of sentencing - Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A - purpose of limiting term is not to punish, R v Mailes [2004] NSWCCA 394 APPEAL - asserted error in finding respondent expressed remorse - Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3) - no such finding made by trial judge APPEAL - asserted error in finding no risk of recidivism - finding open on the facts

CRIMINAL LAW – statutory amendment required two counts to be included on indictment for conspiracy although single conspiracy alleged – defence at trial did not differentiate between periods of the respective counts as far as appellant’s intention concerned – whether trial judge’s direction to return consistent verdicts in answer to jury’s question gave rise to miscarriage of justice in circumstances where defence counsel agreed with the direction – appellant bound by counsel’s conduct of trial CRIMINAL LAW – appeal against sentence – parity and proportionality – whether sentences gave rise to justifiable grievance when compared with sentences imposed on co-conspirators CRIMINAL LAW – appeal against sentence – whether cumulative sentence manifestly excessive – appropriate approach where offending conduct comprised one conspiracy

CRIMINAL LAW – sentence appeal – appeal out of time – extension of time in which to appeal required – error as to application of standard non-parole period – question of extension of leniency for good character – relevance of childhood sexual abuse – asserted denial of procedural fairness – manifest excess

Appeal - leave to appeal – standing - non-party who is aggrieved or sufficiently interested in proceedings – person who is the target of a litigation funding agreement – where proceedings have the potential to diminish the value of a debt due to a person Corporations – joint liquidators – powers of liquidator - application pursuant to s 477(2B) Corporations Act 2001 (Cth) for approval to enter into a litigation funding agreement – factors relevant to approval – whether agreement necessary for the winding-up of the affairs and distribution of property of the funding company under s 477(2)(m) Corporations Act 2001 (Cth) Appeal – error in exercise of discretion – miscarriage of discretion – remission of matter to primary judge

TRADE AND COMMERCE – whether agreement is a franchise agreement subject to the Franchising Code of Conduct – whether franchisor has granted franchisee the right to carry on the business of offering, supplying or distributing goods or services – whether business is to be carried on under a system or marketing plan – whether system or marketing plan is substantially controlled by franchisor CONTRACT – termination – breach - whether time is of the essence for payment of an instalment EQUITY – estoppel – promissory estoppel – representation - requirement for representation to be clear and unequivocal - whether conduct is reasonably capable of giving rise to a representation DAMAGES – breach of s 51AD of the Competition and Consumer Act 2010 (Cth)

TORT – negligence – occupier’s liability – liability not in dispute – damages – pre-existing disability – whether respondent had any earning capacity at the date of injury – practical assessment required of the possibility or probability of any such capacity being productive of income but for the accident

SUCCESSION – Wills, probate and administration – construction and effect of testamentary dispositions – request for judicial advice under Trustee Act s 63 – construction of will – whether will permitted new trustees to subtrust to be appointed – whether expedient to appoint new trustees under s 70 – whether new trustees could be ordered to indemnify estate for costs of application

CIVIL LAW – consent application for extension of an interim supervision order pursuant to s 10C(2) of the Act

CIVIL LAW – approval of settlement – s76 Civil Procedure Act 2005 (NSW)

CIVIL LAW – application for mandatory psychiatric examination pursuant to s 7(4) of Crimes (High Risk Offenders) Act 2006 – test arising from combined effect of s 5E and s 7(4) of the Act

PRACTICE AND PROCEDURE – strike out application – plaintiffs participants in but not parties to earlier proceedings – whether principles of res judicata and issue estoppel apply – abuse of process – whether present proceedings an impermissible attempt to re-litigate issues that were determined adversely to the plaintiffs

PROCEDURE – costs – Class 1 proceedings in the Land and Environment Court of New South Wales – appeal by leave from a decision on costs – the appellant successfully contended for revocation by the primary judge of an order issued by the Council requiring the appellant to carry out certain work – the primary judge declined to order that the Council pay the appellant’s costs – rules of court preclude any costs order unless the court considers that the making of such an order “is fair and reasonable in the circumstances” – whether findings of unreasonableness in relation to the challenged order of the Council are relevant to the costs discretion – held that unreasonableness warranting a costs order is confined to unreasonableness in relation to the proceedings – no such unreasonableness shown – no error of law in the making of the evaluative decision on costs

PROCEDURE – re-opening after judgment – application by unsuccessful appellants – no matter of principle.

CRIMINAL LAW – bail – Aboriginal offender – circumstances of deprivation taken into account – appropriate to provide alternate culturally sensitive conditions to remand – Royal Commission into Aboriginal Deaths in Custody.

CORPORATIONS – winding up – further adjournment of winding up proceedings – where short adjournment previously granted – where voluntary administrators appointed – whether further adjournment in interests of unsecured creditors – where potential for sale of business as going concern – where deed of company arrangement may be proposed – where no significant prejudice would be occasioned by adjournment – held, further adjournment granted.

PRACTICE AND PROCEDURE - Interlocutory injunction seeking to restrain adjudication of payment claim - Prejudice due to operation of statutory timetable - Injunction to restrain enforcement of adjudication determination BUILDING AND CONSTRUCTION - Validity of payment claim - Whether arguable case that claim referred to as “draft” was a valid payment claim

MORTGAGES – “all moneys” clause in first mortgage – first mortgages mistakenly overpaid funds to mortgagor – following its mortgagee sale, the first mortgagee applies the proceeds of sale to reimburse itself for the overpayment – second mortgagor claims that the mistaken payment was not secured by the first mortgage – construction of “all moneys” clause – whether “all moneys” clause applies to obligation in restitution.

CRIMINAL LAW – sentence – murder – guilty plea – intention to inflict grievous bodily harm – severe and violent attack upon homeowner when disturbed during break and enter– offender affected by drugs – criminal record - disrupted upbringing – no finding of special circumstances – Form 1 offences taken into account - partial accumulation upon existing sentences CRIMINAL LAW – sentence – murder – where offender disputes matters in agreed facts – offender unimpressive witness - evidence given by offender at sentence hearing rejected

CRIMINAL LAW – sentencing – recklessly cause grievous bodily harm – carry firearm with disregard to safety – victim accidentally shot when applicant skylarking with firearm – applicant had put bullet in firearm days earlier and forgotten he had done so – high degree of recklessness found – whether finding was open to sentencing judge - whether offence of carry firearm with disregard for safety wholly comprehended within offence of recklessly cause grievous bodily harm – whether accumulation appropriate – whether sentences manifestly excessive

CRIMINAL LAW - Crown appeal - sentencing – Respondent pleaded guilty to 16 drug supply offences - three counts of supply commercial quantity of a prohibited drug - 13 counts of supply prohibited drug - four further offences taken into account on a Form 1 - offending conduct took place over three-month period - different prohibited drugs supplied - possession and use of drug supply paraphernalia - proceeds of supply to fund Respondent’s own drug use and his partying lifestyle - aggregate sentence of two years’ imprisonment to be served by way of Intensive Correction Order - held sentence manifestly inadequate - sentence not reasonably proportionate to objective gravity of offences - no proper weight given to standard non parole period - non-compliance with ss.53A(2)(b) and 54B(4) of the Crimes (Sentencing Procedure) Act 1999 - failure to comply with duty of sentencing judge - evidence on appeal of very substantial progress of Respondent towards rehabilitation - residual discretion to resentence the Respondent not exercised - appeal dismissed

CRIMINAL LAW – appeal against conviction – aggravated indecent assault – Crimes Act 1900 (NSW) s 61M(2) – whether primary judge erred in admitting recorded evidence from a prior trial of a witness not the complainant – whether admission led to a substantial miscarriage of justice CRIMINAL LAW – sentence – aggravated indecent assault – Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(k) – aggravation of sentence where offender abused a position of trust or authority in relation to the victim – whether sentencing judge accounted for the same underlying conduct twice in considering ‘trust’ and ‘authority’

CRIMINAL LAW – Appeal – Applicant sentenced for two separate offences of aggravated break and enter together with an offence of being carried in conveyance taken without the owner’s consent – Whether sentencing judge made erroneous factual findings regarding the applicant’s participation in joint criminal enterprise – Whether sentencing judge erred in failing to have regard to evidence of the applicant’s intoxication – Whether sentencing judge gave proper effect to finding of special circumstances – Whether the discount for assistance which was applied by the sentencing judge was appropriate – Whether sentence manifestly excessive – Leave to appeal granted – Appeal dismissed. CRIMINAL LAW – Appeal – Procedure – Where submissions in support of grounds of appeal were not put to the sentencing judge – Party to be bound by the conduct of the case at first instance

PROCEDURE – civil – judgments and orders – stay of orders pending appeal – orders under Conveyancing Act 1919 (NSW), s 66G appointing trustees for sale of property – exercise of discretion – concessions made during course of argument before primary judge – appeal having no realistic prospects of success

PROCEDURE – production of documents – application for order for production – by deed administrator against receiver – where deed administrator has legal right under deed of company arrangement – on application for preliminary discovery – relevance of Practice Note SC Eq 11 – relevance of position of administrator.

DEFAMATION – procedure – imputations – whether imputations capable of arising – whether precise defamatory act or condition identified – significance of context

DEFAMATION – procedure – rulings on imputations – whether imputations capable of being conveyed – whether imputations are imprecise so as to cause embarrassment – imprecision of- the term “un-Australian”

PROCEDURE – civil – interlocutory issues – application to vacate hearing

PROCEDURE – civil – interlocutory issues – application to amend defence to cross claim PROCEDURE – civil – interlocutory issues - application to vacate hearing date

PROCEDURE – civil – case management – impact of r 31.26 UCPR on expert evidence of expert’s not part of joint report

COSTS – assessment of costs payable by a practitioner thrown away by reason of an adjournment – no question of principle.

LEGAL PRACTITIONER – costs – where defendants had been ordered to pay plaintiff’s costs thrown away due to adjournment of hearing – where solicitors instructed by defendants did not file a notice of appearance or a notice of ceasing to act – where solicitors communicated to plaintiff that they acted for defendants – where solicitors withdrew representation 13 days before hearing, causing adjournment – whether to order solicitors to pay defendants costs under Civil Procedure Act 2005, s 99 – apportionment of costs between solicitors and defendants

CONTRACT – contractual interpretation – where family provision claim brought out of time – parties agreed to distribution from estate in “full and final settlement” of claim – estate sought to vary amount to be distributed – whether agreement binding or conditional upon reduction to writing – whether agreement contained a condition precedent requiring the Court’s approval – interpretation of phrase “full and final settlement”

CRIMINAL LAW - application for judge-alone trial - applicable principles - interests of justice test - Applicant charged with murder and assault - whether adverse extensive media publicity will adversely affect Applicant’s trial - some 14 months between end of extensive publicity and start of trial - steps available to guard against electronic accessing of previous adverse media publicity - role of intention and credibility issues in this case - application dismissed

CRIMINAL LAW - appeal against interlocutory decision in Local Court refusing leave to withdraw guilty plea - s.53(3)(b) Crimes (Appeal and Review Act) 2001 - Plaintiff pleaded guilty to common assault - whether Magistrate applied incorrect principles - whether Magistrate erred in law in provision of reasons - no error of law demonstrated - appeal dismissed ADMINISTRATIVE LAW - judicial review - s.69 Supreme Court Act 1970 - prerogative relief - no error of law demonstrated - appeal dismissed

CONTRACT – principles governing identification of parties to a contract – identification of parties to heads of agreement – principles governing whether heads of agreement are enforceable – circumstances in which the subsequent conduct of the parties may be taken into account to determine the context in which the contract was entered into – finding that heads of agreement constituted a binding contract – circumstances in which an implied obligation may exist upon the parties to negotiate the terms of formal contractual documents – principles governing termination of a contract for repudiation – conduct of one party capable of being a repudiation of the contract – significance of other party being in breach of the contract – other party also not ready and willing to perform the contract – termination of contract for repudiation not effective. DAMAGES -- principles governing the assessment of damages for breach of heads of agreement – consideration of the difficulties involved in assessing the quantum of damages for breach of a heads of agreement where the parties have not finally agreed all of the terms of the formal documentation – need to make proper allowance for all contingencies

BUILDING AND CONSTRUCTION - Validity of payment claim - Whether two payment claims served in respect of one reference date - Whether parties agreed to service of second payment claim in substitution of the first ADMINISTRATIVE LAW - Judicial review - Adjudication determination - Jurisdictional error - Existence of jurisdictional fact

CRIMINAL LAW – suppression orders – closure of court – protecting identity of undercover police officers – confidential evidence – assumed identities – orders made CRIMINAL LAW – non-publication orders – investigative technique – whether orders necessary to [REDACTED] – preventing prejudice to proper administration of administration of justice – protection of safety of undercover police officers – investigative technique widely publicised – Wikipedia – where previous publications less detailed – open justice – transparency – distinction between publication on mass media and legal web-sites – changes in technology – unlikelihood that judgments would “go viral” – JIRS restricted judgments – orders necessary – exceptions to allow publication on legal web-sites – redaction of judgments – whether ratio comprehensible if redactions made – non-publication orders made subject to exceptions pursuant to s 9(4) Court Suppression and Non-Publication Orders Act

APPEAL – motor vehicle accident – summons seeking leave to appeal Local Court decision – cross-summons filed – s 39 Local Court Act 2007 – appeal from Local Court to Supreme Court only on question of law – whether error of law or error of fact – error of fact – summons seeking leave to appeal dismissed – cross-summons dismissed

INTEREST – post-judgment interest – s 101 Civil Procedure Act 2005 – judgment for plaintiff – plaintiff rejected tender of payment from defendant of the judgment sum awarded– judgment sum increased by Court of Appeal – whether interest should be paid for period between rejected tender of payment and date monies paid to plaintiff - whether accord and satisfaction – whether interest should be awarded at prescribed or a lesser rate

CORPORATIONS – whether appointment of administrators under s 436C of the Corporations Act 2001 (Cth) was ineffective because mortgage duty was payable under the Duties Act 1997 (NSW) on general security deeds granted and had not been paid – Court’s power under s 447A to order appointment of administrators valid – whether s 211 of the Duties Act has the effect that general security deeds only became enforceable from the time of late payment of mortgage duty or whether became enforceable retrospectively from date of execution

APPEAL – Appeal from decision of Magistrate in Local Court – Plaintiff seeking recovery of monies advanced to the defendant by way of loan – Term of the loan that monies would be repayable on one months’ notice - Where plaintiff previously bankrupt – Where plaintiff did not disclose debt to her trustee in bankruptcy - Plaintiff issued notice seeking recovery of the money without disclosing bankruptcy – Where Magistrate held that the notice was not valid – Appeal against Magistrate’s decision – No error – Appeal dismissed

ADMINISTRATIVE LAW – judicial review – decision of Independent Commission Against Corruption (the Commission) to decline to investigate plaintiff’s complaints – plaintiff seeks orders under s 65 Supreme Court Act 1970 – regard to age of foundational events which were the subject of the plaintiff’s complaint – conduct of the Commission in declining to investigate the complaints was reasonable STATUTORY INTERPRETATION – Independent Commission Against Corruption Act 1988 s 20

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child – where restoration of child to birth parent not proposed – where removing child from adoptive parents’ care would disrupt child’s development – whether long term foster care preferable – whether age of adoptive parents militates against adoption order – impact of order on relationship with biological siblings – where proposed adoptive parents in a better position to facilitate contact with birth parents than the Department – where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them – held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child; FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether consent of birth parents ought to be dispensed with – as the making of an adoption order would promote the child's welfare and be in his best interests, it is necessarily also in the best interests of the child to make a consent dispense order so as to allow the adoption order to be made; FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adequacy of adoption plan – whether sufficient contact with birth mother – whether contact with birth mother should be permitted in presence of birth mother’s partner – whether contact with birth mother should be permitted in absence of one or both adoptive parents.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – order for convening of meeting of certain shareholders to consider proposed scheme of arrangement – whether Court would likely approach the scheme on hearing of application if unopposed – whether any fundamental objection which would likely prejudice approval at second shareholders’ meeting – “fairness/reasonableness” distinction – where scheme is reasonable though not fair – appropriateness of premium on acquisition of minority shares – satisfaction of pre-conditions to approval of proposed scheme.

PRACTICE AND PROCEDURE – costs – whether costs should follow the event – whether any costs payable by the plaintiff should be paid from her mother’s estate or by the other beneficiaries of that estate; LEGAL PRACTITIONERS – inappropriate and scandalous material adduced in support of costs application – whether practitioner should show cause why his costs of the costs application be disallowed as between himself and the plaintiff and why he should not pay the plaintiff the costs of that application that she is ordered to pay the defendants – whether practitioner’s conduct should be referred to the Law Society of New South Wales

PRACTICE AND PROCEDURE – application to set aside notice to produce – relevance