Cases and authorities

ESTOPPEL – proprietary estoppel – common intention constructive trust – where land is in the first defendant’s name – whether the first defendant promised to transfer the property back to the plaintiff on the basis that the plaintiff pay all costs associated with the property and pay $10,000 – the first defendant holds the property on trust for the plaintiff – the first defendant to transfer the property to the plaintiff, conditional on the first defendant being indemnified and paid $10,000

SUCCESSION – family provision – where the plaintiff is the deceased’s spouse – where the defendant is the deceased’s daughter and executrix – where the plaintiff seeks a family provision order for her maintenance, education or advancement in life – where the deceased’s will left everything to his children – whether to designate property as notional estate – where notional estate orders not granted – where the plaintiff is entitled to a family provision order

EQUITY – trusts – constructive trusts – common intention constructive trust – whether there was a common intention that the plaintiff had some proprietary interest – common intention constructive trust claim fails – joint endeavour constructive trust – where plaintiff made financial and non-financial contributions to the joint endeavour – where joint endeavour failed – whether unconscionable for defendant to deny plaintiff an interest in the property – joint endeavour constructive trust claim made out – resulting trust – resulting trust claim fails – laches – laches defence fails

COSTS – Whether ordinary costs should be apportioned – Where it is appropriate to depart from the general rule where breaches of the deed were established – Apportionment of costs ordered CONTRACTS – Remedies – Where the parties were asked to address the appropriate form of relief in light of the primary judgment – Where the only relief sought was possession of property – Where Court found that relief was not available – Proceedings dismissed

JUDICAL REVIEW – application for judicial review of a decision of District Court – application dismissed – no point of principle

JUDICAL REVIEW – application for judicial review of a decision of the District Court – application dismissed – no point of principle

CRIME – appeals – appeal against conviction – unreasonable verdict having regard to the nature and quality of the evidence – robbery – significant issue regarding the identity of the assailant – multiple irreconcilable versions given by the complainant including a positive assertion on the day of the robbery that the assailant was a person known to him, “Wayne” – evidence unreliable regarding matters essential to the charge – jury verdict unreasonable – evidence contains discrepancies, displays inadequacies, was tainted and lacks probative force – significant possibility an innocent person has been convicted

CRIME — Appeals — Appeal against sentence — offences of possessing a commercial quantity of border controlled drug and manufacturing not less than the large commercial quantity of a prohibited drug — application of sentencing principles to a finding of an offender’s background of deprivation — application of sentencing principles to a finding of an offender’s prospects of rehabilitation and likelihood of reoffending — whether an offender travelling to Australia for the purpose of the commission of the offence is an aggravating feature — appeal dismissed

CRIME — Appeals — Appeal against sentence — Where applicant pleaded guilty to two Commonwealth drug offences and two State offences involving unauthorised possession of firearms and identification-making material — Whether sentencing judge erred in setting commencement date of sentences by failing to consider and/or apply the principle of totality

CRIME – appeals – appeal against sentence – two offences of possession of a precursor intended for use in the manufacture or production of a prohibited drug – whether the sentencing judge failed to take into account the applicant’s prospects of rehabilitation – whether the sentencing judge erred by taking into account subjective matters by way of a quantified 2.5 per cent discount – whether the sentencing judge failed to determine whether the applicant facilitated the administration of justice – whether the sentencing judge failed to take into account the applicant’s mental health and its impact on making custody more onerous – error established in relation to each ground – applicant re-sentenced

SENTENCING — aggravating factors — breach of conditional liberty — sentencing judge referred to appellant being on conditional liberty at time of offending when considering objective seriousness — error to have regard to that feature in assessment of objective seriousness SENTENCING — relevant factors on sentencing — where applicant did not characterise manslaughter offence by placing it on notional range or by description — no requirement to assess objective seriousness by reference to a notional range — in cases of manslaughter doing so unlikely to be of much utility — sufficient to identify a number of aggravating factors — sentencing judge not required to distinguish between applicant and uncharged co-perpetrator’s roles SENTENCING — subjective considerations on sentence — hardship — mental illness — approaches to causation in relation to mental health concerns and psychosocial maturity — no error in differing approaches to causation and differing conclusions

CRIME — appeal against conviction — murder — unreasonable verdict — self-defence — where the applicant inflicted two fatal stab wounds upon the deceased during an altercation — where the applicant asserted the deceased was the aggressor — whether the Crown negatived self-defence — where the applicant’s account of events was inconsistent with the evidence in the Crown case — where the evidence was capable of satisfying the jury beyond reasonable doubt that the applicant did not stab the deceased in self-defence — leave to appeal granted — appeal dismissed CRIMINAL PROCEDURE — appeal against conviction — extension of time to file a Notice of Appeal — four year delay from sentence — interests of justice — extension granted

CRIME – appeals – appeal against sentence – firearms offences – plea of guilty – whether the sentencing judge erred in failing to provide a discount for the applicant’s plea after the close of Crown case – whether the sentencing judge erred in aggravating the objective seriousness by taking into account offending not subject of charge – leave to appeal granted – appeal upheld – applicant re-sentenced

CRIMINAL LAW — appeal against sentence — conspiracy to import border-controlled drug — where sentencing judge took into account applicant’s contrition in discount for plea of guilty — irregular deduction from nominated starting point — utilitarian value of guilty plea — principles of parity — parity between applicant and co-offender —factual challenge in criminal sentence appeal — whether applicant occupied a minor role in offending — whether the factual finding was reasonably open — House v The King (1936) 55 CLR 499; [1936] HCA 40 error — appeal dismissed

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — HELD — leave granted to file an amended statement of claim

CIVIL PROCEDURE – Approval of settlements under s 76(3) of the Civil Procedure Act 2005 (NSW)

CRIMINAL LAW – SENTENCE – murder – domestic violence – committed in the home of the victim and presence of children – intent to kill – contribution of mental impairment – drug-induced psychosis - remorse

TAXES AND DUTIES — Dutiable transactions — Dutiable property — Declaration of trust — Where plaintiffs are the registered proprietors of certain properties — Where plaintiffs each sign a “Confirmation Deed” in which each plaintiff “acknowledges and confirms” that a third party holds the beneficial interest in properties legally owned by the plaintiffs — Whether the deeds signed by plaintiffs constituted declarations of trust TAXES AND DUTIES — Review — Application — Onus — Dispute as to dutiable value — Expert opinion evidence provided on the question of dutiable value — Consideration of operation of onus and approach to expert evidence when aspects of expert evidence provided by parties cannot be accepted

COSTS — Security for costs — Relevant factors — Other factors — Impecuniosity conceded — Application by second defendant — Where second defendant separately represented from first defendant — Where there is significant overlap in the cases of the defendants — Whether second defendant’s choice to obtain separate legal representation disentitles it from obtaining security for costs — Consideration of the effect of separate legal representation on whether security for costs should be ordered — Where the sum of money in dispute in these proceedings is “modest” for proceedings in the Supreme Court — Where security is sought for approximately $180,000 — Whether quantum of security for costs sought is proportionate to the importance and complexity of the subject matter in dispute

CONSUMER LAW – misleading or deceptive conduct – where plaintiff owned a Holden car dealership – where representations allegedly made regarding commitment to the Holden brand in Australia – where decision subsequently made to wind down the supply of new Holden cars in Australia – whether representations were false – where evidence does not establish that the representations were misleading or deceptive CONSUMER LAW – misleading or deceptive conduct – where defendants argued that oral representations were not made – where the evidence lacked the precision necessary to make any finding as to what, if any, representations were made CONSUMER LAW – misleading or deceptive conduct – representations as to future matters – where person making alleged representation had reasonable grounds for doing so CONSUMER LAW – misleading or deceptive conduct – where plaintiff alleged that but for the alleged representations it would have taken a different course – where plaintiff’s claim was analogous to a “different transaction” case – where plaintiff did not prove relevant counterfactuals on the balance of probabilities

CIVIL PROCEDURE – Stay of proceedings – Contract – where Strata Management Statement contains dispute resolution clause – where dispute regarding validity of convening of general meetings – whether dispute “about” the Strata Management Statement – whether to stay proceedings – no question of principle

HIGH RISK OFFENDERS — application for an extended supervision order — final hearing — serious violence offence — unacceptable risk of committing a serious offence — risk factors of alcohol and antisocial personality traits — relevance of conditions to risk — application granted

CIVIL PROCEDURE – Default judgment – where default judgment entered in earlier District Court proceedings – whether arguable defence to these proceedings – whether res judicata or issue estoppel from District Court judgment – whether claims precluded by Henderson/Anshun estoppel – no question of principle

COSTS – Party/Party – Bases of quantification – Indemnity basis – whether offer more favourable than result – whether indemnity costs should be ordered – no question of principle COSTS – Party/Party – Bases of quantification – Ordinary basis – where amended summons and two cross-summons dismissed – whether each party should pay costs – whether plaintiff should pay costs for whole proceedings – no question of principle

CIVIL PROCEDURE — preliminary discovery — to identify potential cause of action — to identify potential defendant or defendants — reasonable inquiries — where initial inquiries by the plaintiff were not considered reasonable — where orders made directing the plaintiff to request copies of documents held by certain related parties — whether, despite production of that material, the defendants should give discovery of the requested documents — application for preliminary discovery granted

EQUITY – Unconscionability – Whether plaintiff took unconscientious advantage of special disadvantage under which first and second defendants laboured when they executed a guarantee and mortgage in favour of the plaintiffs securing amounts owing by the second cross-defendant EQUITY – Unconscionable conduct – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB, 12CC, 12GM – Whether plaintiff engaged in unconscionable conduct in contravention of s 12CB

ADMINISTRATIVE LAW — judicial review of appeal panel decision — assessment of whole person impairment — where appeal panel provided five different statements of reasons for decision and five corresponding medical assessment certificates — whether appeal panel erroneously failed to make a s 323 deduction for pre-existing injury, condition or abnormality — whether appeal panel failed to respond to clearly articulated argument — whether appeal panel made an irrational or illogical finding of fact — adequacy of reasons of appeal panel — no reviewable error established despite poor quality of appeal panel’s documentation

CIVIL PROCEDURE – Pleadings – Application for leave to file proposed Amended Statement of Claim – Allegations of malicious prosecution, abuse of process and criminal conspiracy – No reasonable cause of action disclosed – Consideration of the tort of collateral abuse of process – Pleadings deficient in identifying a tortfeasor – Failure to identify an improper purpose – Where pleading does not comply with the principles of proper pleading – Section 56 Civil Procedure Act 2005 (NSW) – Leave refused CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Where plaintiff out of time – Section 55 Limitation Act 1969 (NSW) – Application of principle of judicial immunity – Causes of action pleaded hopeless – No improper purpose identified – Application for summary dismissal granted

CIVIL PROCEDURE – Representative proceedings – Leave sought to file Amended Statement of Claim – Where defendants oppose the granting of leave – Application for summary dismissal – Whether causes of action are hopeless – Whether it would be futile to grant leave to file Amended Statement of Claim – Where proposed Amended Statement of Claim seeks to join all members of the State Executive of an unincorporated entity where an unincorporated entity cannot be sued – Whether duty of care capable of being established between members of the State Executive and those nominated for local government election – Where reasonable foreseeability alone is insufficient to establish a duty of care – Where a duty of care in the manner pleaded by the plaintiff is reasonably arguable – Where the pleading pleads a reasonably arguable cause of action in contract and in negligence – Where no prejudice is occasioned by a grant of leave to file the proposed Amended Statement of Claim – Where at an early stage of proceedings, no defence filed as of yet and discovery not yet undertaken CONTRACTS – Whether the pleaded counts in contract are hopeless – Whether it is open to the plaintiffs to rely upon the Constitution of a political party as creating legal relationships – Where plaintiff seeks to distinguish the proceedings from authorities considering a similar issue – Where the existence of a contract is not sufficiently clear as to warrant summary dismissal – Where defendants have not demonstrated that the filing of the proposed Amended Statement of Claim would leave it open to summary dismissal CIVIL PROCEDURE – Application for substitution of first defendant – Application opposed on the grounds of a likely increase in costs and difficulties in case management – Where joining the members of the State Executive is the joinder of a necessary party

CRIME – sentence – murder – offender found guilty by jury at trial – murder of former female partner – domestic violence – 18 stab wounds inflicted – where offender was self-represented – no remorse – no subjective case before the Court – where offender’s history and prospects of rehabilitation are indeterminable – where there are no known mitigating factors – need for specific and general deterrence in a domestic violence context

COSTS — costs of proceedings in court below — where party made three offers to resolve proceedings — offer of compromise — Calderbank offer — ordinary costs — indemnity costs — interest — cross claim — discharge of mortgage — Uniform Civil Procedure Rules 2005 (NSW), rr 20.25, 20.26

CRIME — appeals — appeal against conviction — sexual assault — oral directions given by trial judge concerning mens rea of offence — mens rea where accused believed complainant consented but accused had no reasonable grounds for belief — whether direction including words “there were no reasonable grounds” constituted misdirection — difference between phrases “there were no reasonable grounds” and “he had no reasonable grounds” — whether statutory language permits consideration of subjective factors of accused — unnecessary to decide in circumstances of appeal — whether trial judge suggested accused bore onus of proving belief in consent — significance of absence of complaint about directions given — application of rule 4.15 of Supreme Court (Criminal Appeal) Rules 2021 (NSW)

CRIMINAL LAW – proceeds of crime – restraining orders – property owned as tenants in common

CIVIL PROCEDURE – notice of motion – dismissal – costs – no point of principle

CIVIL PROCEDURE – approval of settlement – liability issues – settlement in best interests of the plaintiff – settlement approved

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied

CORPORATIONS — receivers and managers — special purpose receiver — direction as to issue arising in distribution of funds to debenture holders COSTS — general rule that costs follow the event — no departure from general rule — where indemnity costs sought by third defendant — where no basis to order costs in favour of the third defendant on the ordinary basis or indemnity basis

PROCEDURE – transfer of proceedings – from Supreme Court to District Court – Civil Procedure Act 2005 (NSW) s 146(4) – complex legal issues – issues of general public importance – transfer refused

MENTAL HEALTH – Criminal proceedings – murder – special verdict where prosecutor and defence agree that defence of mental health or cognitive impairment available – where accused diagnosed with schizophrenia – Court satisfied that defence established – special verdict entered

TORTS – helicopter crash – cause of crash – mechanical defect – maintenance obligations – failure to properly inspect TORTS – negligence – contributory negligence – same obligation on both plaintiff and defendant to inspect prior to flight TORTS – damages – personal injury and property loss – psychiatric illness – failure to disclose symptoms to CASA over 6 years – inconsistent contemporaneous records – operation of business for 13 years – insufficient earnings to pay tax – consequences on assessment EVIDENCE – practice and procedure – the rule in Browne v Dunn – procedural fairness – failure to cross-examine – acceptance of witness’ evidence

CHILD WELFARE — Adoption — Consent — Dispense order — where consent dispense order sought before application for adoption order — where birth father not identified — where reasonable enquiries made to identify and locate the father — HELD — consent dispensed with

COSTS – personal injury – where plaintiff successful– where defendants’ offer of compromise and Calderbank offer not accepted – where plaintiff did not better offers – impact of s 56 Civil Procedure Act 2005 (NSW), Workplace Injury Management and Workers Compensation Act 1998 (NSW) and the Workers Compensation Regulation 2016 (NSW) on exercise of Court’s costs discretion

CIVIL PROCEDURE — Application to reopen case as to damages and liability following delivery of reasons for judgment — No issue of principle BUILDING AND CONSTRUCTION — Contract — Damages — Where asserted difficulty with proof of damages — Whether damages should still be awarded notwithstanding this difficulty JUDGMENTS AND ORDERS — Interest — Pre-judgment interest — Time from which interest is payable — No issue of principle

Hunt Leather Pty Ltd v Transport for NSW Hunt Leather Pty Ltd v Transport for NSW Tort – Private nuisance – Where respondent planned and procured construction of Sydney Light Rail – Where appellants claimed to have suffered loss or damage by reason of substantial interference with ordinary enjoyment of land – Whether purpose of respondent's use of land common and ordinary – Whether construction work "conveniently done" – Whether respondent's liability based on exercise of special statutory power within meaning of s 43A of Civil Liability Act 2002 (NSW) – Whether respondent could rely on defence of statutory authority. Damages – Assessment – Tort – Whether damages should include reasonable costs incurred in obtaining litigation funding. Words and phrases – "balance", "based on", "common and ordinary", "construction work", "construction works", "conveniently done", "damages", "defence of statutory authority", "defences", "funding commission", "give and take", "injury to land", "litigation funding costs", "not convenient", "not ordinary", "nuisance", "onus", "ordinary enjoyment of land", "private nuisance", "proper consideration", "public authority", "reasonable", "reasonable expectations of the locality", "reasonableness", "right to land", "social utility", "special statutory power", "statutory authority", "substantial interference", "undue interference", "unlawful interference", "unreasonable", "use of land", "wrongful interference". Civil Liability Act 2002 (NSW), ss 40, 41, 43, 43A. Roads Act 1993 (NSW), s 7, Pts 2-4, 7-10. Transport Administration Act 1988 (NSW), ss 3C, 3E, 104N, 104P, Sch 1, cll 3, 9. Transport Administration Amendment (RMS Dissolution) Act 2019 (NSW), Sch 1. Transport Administration (General) Amendment (Light Rail) Regulation 2015 (NSW), Sch 1. Transport Administration (General) Regulation 2013 (NSW), cl 82

BUILDING AND CONSTRUCTION – claim by subcontractor against principal for recovery of amount outstanding in relation to debt certificates issued under Contractors Debts Act 1997 (NSW) – where obligation of principal (the Club) to pay money owed to contractor (Builder) under construction contract was assigned to subcontractor pursuant to s 8(1) of the Contractors Debts Act 1997 (NSW) – where defence by principal raised set-off – determination of separate question by primary judge as to construction of s 11(4) of Contractors Debts Act 1997 (NSW) – where subcontractor contended s 25(4)(a) of Building and Construction Industry Security of Payment Act 1999 (NSW) constrains operation of s 11(4) of Contractors Debts Act 1997 (NSW) such that principal not entitled to raise any contractual defences arising under the construction contract between principal and defaulting contractor – application for leave to appeal from decision of primary judge rejecting subcontractor’s contention – leave to appeal refused with costs – obiter dicta as to construction of s 11(4) of Contractors Debts Act 1997 (NSW)

CRIME – appeals – appeal against sentence – armed robbery – lighter as offensive weapon – whether the sentencing judge erred in assessing the objective seriousness of offending – whether the sentencing judge erroneously applied Henry guideline judgment – whether the sentencing judge failed to disclose her Honour’s assessment of objective seriousness – whether her Honour erred in assessing objective seriousness by reference to the nature of the weapon – guideline judgment did not offer guidance in sentencing exercise – appeal upheld – appellant re-sentenced – no basis for further punishment

CRIME – appeals – appeal against sentence – offence of dishonestly destroy property by fire with view to make a gain – where sentencing judge misstated the applicant’s date of birth and age – where the age stated by the sentencing judge was 10 years older than the applicant’s true age – whether the applicant’s deprived background warrants a finding of reduced moral culpability in circumstances where the offending was carefully planned – error established – no lesser sentence warranted

CIVIL PROCEDURE – court administration – plaintiff seeking expedition of hearing – proper basis for expedition found CIVIL PROCEDURE – defendant seeking to amend defence in a significant way – parties directed to serve further evidence

CORPORATIONS — statutory demand — application to set aside — offsetting claim — where plaintiff contends that defects in plumbing and hydraulic works created offsetting claim — statutory demand not set aside

COSTS – Party/Party – Bases of quantification – Indemnity basis – where offers of compromise – whether indemnity costs should be ordered – whether offer contains any real or genuine compromise – no question of principle