Cases and authorities

CRIME — Appeal and review — Application for inquiry into conviction — Crimes (Appeal and Review) Act 2001, s 78 — Conviction for a terrorism offence and firearms offence — Varied assessments of a covert recording’s relevance in different proceedings

COSTS — appeal against costs assessment — leave sought to adduce expert evidence available at the initial costs assessment and at the costs appeal — evidence deliberately not adduced below — leave to adduce refused APPEAL — appeal to Court from costs assessment — rehearing — nature of rehearing in statutory context

PROCEDURE – release of funds paid into court – where trust monies held by the plaintiff’s solicitors were paid into court pending determination of entitlement – where consent orders now sought for distribution of those funds

CORPORATIONS – Insolvency – Administration – Extension of time to convene second meeting of creditors CORPORATIONS – Insolvency – Administration – limitation of administrators' personal liability in respect of funding agreement – whether it is in the interests of the companies that the borrowing take place.

HIGH RISK OFFENDER – preliminary hearing –serious violence offender – application for interim supervision order – where making of order and nature of some conditions contested by defendant –whether there is high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order – interim supervision order imposed

CIVIL LAW – stay of writ of execution – application on compassionate grounds – where level of indebtedness likely to exceed sale price – delay in bringing application – exercise of discretion – application refused

LAND LAW — Co-ownership — Statutory trust for sale — Discretion of court — Whether the making of such order inconsistent with a term of the co-owners’ agreement which would prevent exercise of discretion — No question of principle

CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement and ancillary orders

PRACTICE AND PROCEDURE – stay of orders of Local Court pending appeal and/or application for leave to appeal – no question of principle

CONTRACT- identification of parties; identification of terms; company bound by conduct of director; Novation – no common intention; ESTOPPEL-whether representations made; No question of principle

COSTS — Party/Party — Payable out of a fund — Deceased estate – Where an executor sought indemnity costs out of the estate – Whether the executor acted unreasonably - UCPR r 42.20 – UCPR 42.25 – HELD the executor acted unreasonably and was therefore not entitled to indemnification out of the estate

CIVIL PROCEDURE — Interim preservation — Freezing orders – adult daughter brings civil proceedings for sexual assaults that she alleges her father committed against her when she was a minor – prior criminal proceedings brought against the father in respect of alleged sexual assaults upon the daughter in New South Wales and father was acquitted – current criminal proceedings brought in Queensland against the father in respect of alleged sexual assaults upon the daughter in Queensland – allegations against father involve conduct over 8 years concealed from other family members - father lives in Queensland and owns real estate and holds superannuation in Queensland – father alters title to Queensland real estate at the time of the recent criminal proceedings to transfer a half share to his wife as a joint tenant - whether a freezing order should be granted against the father pending the outcome of these civil proceedings.

COSTS – Whether to make a gross sum costs order – whether to make an order for costs against a solicitor acting for a party.

EQUITY — ADVANCES OF MONEY — GIFTS — Purposes — Claim by the plaintiff to recover land purchased in the name of the defendant and other amounts of money transferred to the defendant — Recovery of the property is said to be justified in various ways, including a resulting trust, express trust, a common intention constructive trust and money had and received — Presentation of the plaintiff’s case permeated by alternative claim that he, in vulnerable circumstances under a ‘special disadvantage’, was prevailed upon by the defendant and her husband (alleged to be a Sovereign Citizen) as leaders of a cult through undue influence and unconscionable conduct to pay over moneys for the purpose of promoting an illusory ‘Kindom Motherland’ being allegedly a cockamamie purpose — Claims that defendant and husband were cult leaders and that the husband was a Sovereign Citizen rejected — Claims of alleged undue influence and unconscionable conduct rejected — Finding that funds were gifted with the primary purpose of development of a community consistent with a charitable trust, and an incidental purpose to benefit the Cristian family — Held property accordingly unrecoverable by the plaintiff WORDS AND PHRASES — ‘Sovereign Citizen’ — ‘Cult’— ‘Gift’ EQUITY — ADVANCES OF MONEY — GIFTS — Principles discussed — Capacity requirements — Various purposes discussed distinguishing predominant purpose and incidental purposes EQUITY — Trusts — Resulting Trust — Purchase money trusts — Contest regarding purpose, if any, of provision of funds used to purchase a farm — Defendant and husband under the name ‘Love for Life’ espouse ideas regarding ‘Kin Domains’ (a form of family homestead) and aspire to build a community on land ‘where no one owns the land’, growing enough food and maintaining the land such that they and others can leave ‘the System’ and benefit the broader community through provision of free food — Plaintiff first emailed the defendant and her husband in 2008 expressing interest in their ‘Kindom’ — Plaintiff later messaged defendant’s husband from 2017, making the first payment into the defendant’s account — From April 2022, communications between the plaintiff and defendant’s husband along with payments into the defendant’s account heavily increased — Plaintiff initially transferred $100,000 in April 2022 and, consequent upon the parties locating a suitable property, wrote a cheque for $575,000 in September 2022 EQUITY — Trusts — Charitable trusts — Charitable purposes — Whether the identified purpose is a valid charitable purpose — Discussion of the fourth head of Commissioner for Special Purposes of Income Tax v Pemsel [1891] AC 531 — Held purpose is within the spirit and intendment of the Statute of Elizabeth — Whether the public benefit element — Held it meets the public benefit test — Held valid charitable trust EQUITY — Trusts — Charitable Trust — Trusts with mixed purposes — Discussion of Charitable Trusts Act 1993 (NSW) s 23 — Determined that incidental benefit to the Cristian family did not invalidate the primary charitable purpose EQUITY — Trusts — Charitable Trust — The trust does not fail for impossibility or impracticability EQUITY — Unconscionable conduct and undue influence — Alternative submission by plaintiff that the defendant procured the purchase funds from the plaintiff by exercising undue influence — Plaintiff submits defendant and her husband threatened him and others with physical violence, manipulated him into providing further funds as the only way to ‘save’ the $100,000 he had transferred, and by generally targeting and exploiting him — Submissions rejected CIVIL PROCEDURE — Litigants in person —Distinguishing between submissions and evidence

EQUITY — Unconscionable conduct — Special disability or disadvantage — Independent advice – Whether a solicitor was improperly acting for both plaintiff and defendant – Whether solicitor provided adequate independent advice – HELD solicitor was not acting improperly – solicitor arranged and provided rational and independent advice EQUITY — Unconscionable conduct — Special disability or disadvantage — Whether unconscientious advantage taken – HELD no special disadvantage was taken advantage of

CRIME – manslaughter – unlawful and dangerous act – appreciable risk of serious injury – throwing Molotov cocktail into backyard of residential premises – death of child – severe burns – Form 1 – maliciously inflict grievous bodily harm – biting of ears SENTENCING – victim impact statement – offender’s personal history – background of deprivation – significance of criminal record – passage of time – letter of apology – depth of remorse – conditions of custody – threats – objective seriousness – very serious case of manslaughter – plea of guilty – applicable discounts – sentence imposed

DEFAMATION — summary dismissal — pleadings — failure to plead material facts — no pleading as to identity of publisher — no material facts as to alleged authorisation — three years of delay — summary dismissal granted

CORPORATIONS – creditors’ meeting – appeal from decision of voluntary administrators – where plaintiff brought a proceeding against the first defendant for alleged building defects – where first defendant entered voluntary administration – where plaintiff and various unit owners in the building lodged proofs of debt for voting purposes at the second meeting of creditors – where administrator admitted the proofs of the plaintiff and of various unit owners for $1 for voting purposes, and rejected the claims of other unit owners in full – where administrator admitted the claims of four related creditors in full – whether administrator made a “just estimate” of the claims of the plaintiff, the unit owners and the related creditors CORPORATIONS – Voluntary administration – application to set aside deed of company arrangement – where creditors passed resolution for the first defendant to execute the deed – where resolution would have passed on value, but not on votes, if the related creditors were disregarded – whether resolution to enter deed should be set aside CORPORATIONS – Voluntary administration – Application to terminate Deed of Company Arrangement – whether material omissions from or misstatements in the information provided in the second report to creditors – whether the deed of company arrangement should be terminated for “some other reason” under s 445D(1)(g) or s 447A of the Corporations Act 2001 (Cth) — whether deed of company arrangement oppressive, unfairly prejudicial to, or unfairly discriminatory against one or more creditors – whether effect cannot be given to the deed without injustice

INSURANCE — Liability insurance — Construction of policy — Whether various types of “Loss arising from Pollution Conditions caused by” the plaintiff’s operations of excavating, removing and stockpiling soil — Where plaintiff’s operations caused asbestos fibres to be released into the air — Where plaintiff liable in contract to pay costs of investigating, removing and disposing of contaminated soil — Where WorkSafe Victoria issued “Improvement Notice” pursuant to Occupational Health and Safety Act 2004 (Vic), s 111, giving directions to provide a safe system of work — Where plaintiff incurred costs in safely managing and removing contaminated fill

CONSTITUTIONAL LAW – State legislative power – powers of Legislative Council to summon witnesses – Parliamentary Evidence Act 1901 (NSW) authorises President to certify that a witness has not complied with a summons without just cause or reasonable excuse – upon receiving such certification, Supreme Court judge required to issue warrant for detention of witness – warrant authorises holding witness in custody in accordance with subsequent orders of President – whether those provisions of Parliamentary Evidence Act contrary to limitations on State legislative power identified in Kable v Director of Public Prosecutions (NSW) – provisions held invalid

CONTRACTS – Construction – Whether written agreement should be read together with earlier handwritten agreement – Where terms of both agreements related to the same transaction but were inconsistent – Where counsel for Appellant eschewed reliance on earlier handwritten agreement at trial CONSUMER LAW – Misleading or deceptive conduct – Where Appellant failed to disclose agreement with third party prior to entering Deed of Settlement with Respondent EVIDENCE – Admissibility – Credibility evidence – Where impugned evidence relevant to determining when the Respondent became aware of the undisclosed conduct which formed the basis of the misleading or deceptive conduct claim

SENTENCING — Crimes Act 1914 (Cth), s 16A(2)(g) — “any benefit to the community” resulting from plea of guilty — Whether s 16A(2)(g) limited to the immediate benefit to the community in avoiding trial in the particular matter — Whether primary judge’s approach involved double counting — Whether primary judge erred by taking into account in two different ways (one quantified and one unquantified) two distinct benefits to community resulting from guilty pleas SENTENCING — Whether sentences manifestly inadequate — Whether Court should exercise discretion to decline to interfere where sentences are erroneously lenient

CRIME – appeal – appeal against sentence – one count of dishonestly destroying property by fire for financial gain – where applicant already serving term of imprisonment for separate offence at date of sentence – where sentencing judge made finding of special circumstances and on that basis adjusted standard ratio between non-parole period and head sentence – whether in light of overall effective sentence sentencing judge erred in failing to give practical effect to finding of special circumstances

CRIME — appeal — appeal against conviction — whether failure to apply second and third limbs of the Liberato direction — whether verdict unreasonable — whether aggravating circumstance in Crimes Act 1900 (NSW) s 61J(2)(a) established for multiple counts — leave granted — appeal dismissed CRIME — appeal — appeal against sentence — whether sentencing judge erred in approach to objective seriousness on multiple counts — whether sentencing judge erred applying totality principle — whether sentence manifestly excessive – aggregate sentence manifestly excessive — leave granted — appeal allowed — resentence

CRIME – appeals – appeal against sentence – whether error in application of totality principle – manifest excess – five offences of manufacturing or supplying large commercial quantities of prohibited drugs – one offence of possess ammunition without licence – Form 1 offences – principle of totality – erroneous assumption as to pre-discount starting point – appropriateness of “grossing up” aggregate sentence – mathematical exercise – where substantial cumulation warranted – where sentence well within range – appeal dismissed

EQUITY — Agreements in fraud of third parties – Conveyancing Act 1919 s 37A – Where a married couple entered into a separation agreement to split property – Whether such a division of property included alienation of property from one partner to the other with the intention to defraud creditors – HELD the alienation of property from alienor to their partner was made with the intention to defraud creditors under s 37A BANKRUPTCY — Property divisible among bankrupt’s creditors — Exceptions — Property held by bankrupt on trust – Whether property was held by a debtor on resulting trust for his partner – Whether the reasoning in Calverley v Green should be expanded – HELD no grounds for a resulting trust existed EQUITY — Assignment — General principles – Where one debtor entered into a deed of assignment releasing them from certain liabilities – Where it was asserted that those liabilities were jointly owed by another debtor – Whether the deed of assignment had the effect of releasing both debtors – HELD the liabilities were both joint and several, and therefore even if the assertion that the deed of assignment released the debtor who entered into it, it could not release the other debtor RESTITUTION — Restitution for wrongdoing — Equity — Account of profits – Whether plaintiff was entitled to an account of profits for the rent paid for a property which it asserted an interest in JUDGMENTS AND ORDERS — Form of orders — Effect of — “Make-available” order – Where restitutio in integrum is not possible – Where creditors hold partial interests in real property – HELD amounts owed to creditors to be calculated on account, and real property to be sold and proceeds to be split between creditors EQUITY — Equitable fraud — Agreements in fraud of third parties – Where an agreement was entered into which was mala fide in respect of other persons – Whether plaintiffs are entitled to recover rent on equitable grounds EQUITY — Fiduciary duties — Breach – Where a fiduciary relationship arose between the eighth defendant and son – Where the eighth defendant acted to put the assets of her son out of the reach of his creditors – Whether the eighth defendant acted in her son’s interests or to enrich herself – whether fully informed consent was given – HELD fiduciary duties were breached, and the creditors are entitled to obtain applicable equitable remedies EQUITY — Tracing – Where part of the proceeds of sale of one property was appropriated to discharge mortgages on other properties – Whether plaintiff entitled to a charge on properties – HELD whether properties can be subject of proprietary orders is contingent on the results of the account ordered in the proceedings

ESTOPPEL — Proprietary estoppel — Encouragement — Nature of promise — Whether conditionality of promise renders promise incapable of founding an estoppel — Consideration of requisite level of certainty ESTOPPEL — Proprietary estoppel — Encouragement — Detrimental reliance — Whether conditionality of promise renders it unreasonable to be relied upon

CIVIL PROCEDURE — Hearings — Vacation of hearing date — Where application for a family provision order is originally listed for final hearing on an estimate of 2 days — Defendant in family provision proceedings commences proceedings seeking orders under s 66G of the Conveyancing Act 1919 (NSW) for the sale of real property forming part of the deceased estate to which family provision proceedings relates — Application of defendant in family provision proceedings to vacate final hearing until the property the subject of the s 66G application is sold, or the s 66G proceedings are otherwise resolved — Whether hearing of family provision proceedings should be vacated in the circumstances — No issue of principle

CORPORATIONS — statutory demand — application to set aside — whether genuine dispute established — whether offsetting claim established — statutory demand not set aside

EQUITY — Equitable remedies — Injunctions — Appointment of administrator alleged to be beyond power — Stay of appointment pending final hearing — Balance of convenience — No issue of principle

COSTS — Party/Party — Costs orders in interlocutory proceedings — Whether costs should be in the cause or successful applicant should get her costs — No issue of principle COSTS — Party/Party — Bases of quantification — Whether applicant in motion should have costs on the ordinary or indemnity basis — No issue of principle COSTS — Party/Party — Whether gross sum costs order should be made — No issue of principle COSTS — Party/Party — Whether costs of interlocutory application should be ordered payable forthwith — No issue of principle

HIGH RISK OFFENDER – serious sexual offender – final hearing – application for Extended Supervision Order – whether defendant poses unacceptable risk of committing serious offence if not kept under supervision – application dismissed

PROCEDURE – defendants’ application for determination of a separate question – motion for a separate question dismissed – application for joinder – no orders for joinder made

CRIME – sentence – murder – domestic violence – history of controlling and violent behaviour – intent to inflict grievous bodily harm – no remorse – general and specific deterrence

CONTRACTS — Construction — Deed under which parties agreed that interests in two residential properties held by plaintiff were to be transferred to defendants in consideration of a sum of $700,000 to enable plaintiff to comply with court orders — Where recitals to deed expressly contemplate second defendant would need to take out a loan secured by a mortgage over one of the residential properties the subject of the deed to fund $700,000 payment to plaintiff — Where the other residential property was held by plaintiff and first defendant as tenants in common in equal shares — Where deed requires first defendant to transfer back to plaintiff his half-share in the property once “the loan” is repaid and “the mortgage” is discharged — Whether second defendant refinancing its loan triggered obligation of first defendant to transfer back to plaintiff his half share in the property he jointly held with plaintiff — Construction of “the loan” and “the mortgage”

COURTS AND TRIBUNALS – jurisdiction – jurisdiction of the NSW Supreme Court and NSW Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW) Sch 4, cl 5(3) - where proceedings commenced in NSW Civil and Administrative Tribunal (NCAT) – regarding water ingress into penthouse lot – duplication of issues in NCAT and the NSW Supreme Court – both parties accept the NSW Supreme Court’s lack of jurisdiction – question of appropriate consequential orders – whole matter transferred to NCAT

CRIMINAL LAW – application for proceeds assessment order under the Criminal Assets Recovery Act 1990 (NSW) s 27 – proper foundation for order conceded – assessment order – onus on defendant under s 28(3) to establish that expenditure was funded from sources unrelated to any illegal activity – whether defendant discharged that onus – convoluted and implausible explanations – defence witnesses not credible – assessment order made

SUCCESSION — Contested probate — Costs of unsuccessfully propounding wills — Costs of unsuccessful beneficiary who joined the proceedings — Overall attempt to achieve a fair and just result.

COSTS – preliminary discovery by summons following attempt to obtain documents informally – whether costs payable including indemnity costs

CRIME – murder – defence of mental health impairment – where parties agree defence available – Court satisfied that defence established – special verdict of act proven but defendant not criminally responsible

CIVIL – Criminal Assets Recovery Act 1990 (NSW) – application for summary judgment – forfeiture orders under s 22 – whether interests in property available interests for the purposes of the Act – whether property “used in, or in connection with” the serious crime related activity of the defendant – property seized cash reasonably suspected to be proceeds of crime – order that property be forfeited to and vest in the Crown

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule

CIVIL PROCEDURE — application for separate determination of questions — Uniform Civil Procedure Rules 2005 (NSW), r 28.2 — application to consider whether the proceedings are barred by the Limitation Act 1969 (NSW) prior to substantive hearing — application for separate determination of questions declined LIMITATION OF ACTIONS — discoverability — personal injury — whether the plaintiff “ought to know” facts — knowledge of fault of defendant — knowledge of seriousness that warrants suing — where a solicitor failed to advise on common law claim

CRIME – sentence – manslaughter – juvenile offenders – one stabs deceased acting in self-defence with excessive force – three others convicted on basis of joint criminal enterprise – significant subjective cases – issue of parity with each other and other people present – prospects of rehabilitation

LAND LAW – restrictive covenants – non-application of restrictive covenants – where the plaintiff operates a hotel and bottle shop – where neighbouring land is burdened by covenant restricting a business selling alcohol – where defendants lodged a development application to operate a “Liquorland” – where development application approved – whether covenant does not apply by reason of cl 1.9A of Port Macquarie-Hastings Local Environmental Plan 2011 (NSW) ENVIRONMENT AND PLANNING – jurisdiction of Supreme Court – whether Land and Environment Court has exclusive jurisdiction under ss 20(1)(e), 20(2) and 71 of the Land and Environment Court Act 1979 (NSW) ENVIRONMENT AND PLANNING – interpretation of development consent – incorporation of documents referred to in development consent – where development consent describes documents as “approved” and requires development to be carried out in accordance with approved plans and documents – consideration of plans and/or statement of environmental effects to understand the nature of the development that is the subject of development consent

CRIMINAL LAW – murder of an intimate partner – where the offender entered an early guilty plea SENTENCING – objective seriousness of offending – intention of the offender to inflict grievous bodily harm, not intention to kill – where cause of death due to multiple, possible contributing factors causing death – “unascertained causes” – where the offender inflicted moderate force, not extreme or severe – no history of domestic violence – objective gravity of offending somewhat below middle range SENTENCING – aggravating factors – murder committed in the offender’s home where the victim resided SENTENCING – subjective circumstances – where the offender pleaded guilty at earliest opportunity and demonstrated remorse – evidence of prior good character – good prospects of rehabilitation

CRIMINAL LAW – Murder – Single count of murder – Where offender pleaded not guilty of murder but guilty of manslaughter – Trial by Judge-alone – Verdict – Not guilty of murder but guilty of manslaughter – Application of Muldrock SENTENCING – Aggravating factors – Offence involved the actual use of violence – Offence involved the use of a weapon – Offence was committed in the presence of a number of juveniles – Offence was committed in a public place – Offender has a record of previous convictions – Offender was on conditional liberty at the time of the offence SENTENCING – Mitigating factors – Offender was not fully aware of the consequences of their actions because of their age – Offender entered a plea of guilty to the offence of which they were ultimately convicted – Offender has good prospects of rehabilitation SENTENCING – Objective seriousness – Allowance made for offender’s youth and psycho-social immaturity – Determined to be below the mid-range – Sentencing of a juvenile – Principles of sentencing a juvenile – Plea of guilty – Entitlement to discount

SENTENCING – Sentencing procedure – Instinctive synthesis – Application of Muldrock – Reasons for sentence SENTENCING – Relevant factors on sentence – Character of offence – Circumstances of offence – General and specific deterrence – Prevalence of offence – Moral culpability – Objective seriousness – Purposes of sentencing – Victim attitude to offender – Post-offence conduct – Treatment of the body of the victim SENTENCING – Aggravating factors – Home of victim – Record of previous convictions – Series of criminal acts – Use of violence SENTENCING – Subjective considerations on sentence – Familial upbringing – Mental illness diagnosed after the offence – Lack of remorse SENTENCING – Life sentences – Whether life sentence appropriate – Whether the offence falls into the worst category of offences of this kind

DISCOVERY – No question of principle

ADMINISTRATIVE LAW – judicial review – decision of Magistrate dismissing application for costs in criminal case – where charge withdrawn by prosecution – whether jurisdictional error – whether wrong question asked – whether irrelevant considerations taken into account – where new points raised – whether material error