Cases and authorities

HIGH RISK OFFENDERS – preliminary hearing – serious sex offences – parole – significant stability in community – Alcoholics Anonymous – “Above Average” risk range – moderate density of criminogenic needs – where majority of offending took place between 1992 and 1998 – circumstances of 2017 offence – “three-day bender” – prospect defendant will deviate from current path – allegations – flirting, asking for sex – absence of up to date reports – “impression management” – where matters alleged in supporting documentation do not justify the making of an ESO – application dismissed

LAND LAW – Co-ownership – Statutory trust for sale – Discretion of court – where joint venture and Development Agreement – whether parties agreed to deal with property in a certain way – whether parties should be held to bargain – whether trustees for sale should be appointed – no question of principle LAND LAW – Co-ownership – Statutory trust for partial partition – Discretion of court – whether Court has power to order partial partition – whether to be the “first judge clever enough to think of that solution” – whether partial partition or sale more appropriate – question of principle

CIVIL PROCEDURE – default judgment – setting aside a default judgment – irregularities – where the second defendant denies being served with a statement of claim – defence on the merits

CONTRACTS – construction and interpretation – the words “assets” and “business” in the deed and sale terms – whether the relevant clauses ambiguous and should be read ejusdem generis to create a carve out – whether the plaintiffs entitled to retain the disputed payments

CHILD WELFARE – adoption – whether adoption order is clearly preferable in the best interests of the child – where birth parents reside in Australia on temporary visas – where child is not a non-citizen child or a citizen child under the Adoption Act – where Secretary has parental responsibility for the child – where child is a permanent resident of Australia – where child will become an Australian citizen upon the making of adoption orders – where birth parents consent to the adoption orders sought – change of name to be approved – leave to be granted for Adoption Plan to be provided to the birth parents – adoption orders to be made

CIVIL PROCEDURE – abuse of process – want of due despatch – application for leave to appeal against summary dismissal of proceedings – where primary judge dismissed proceedings pursuant to r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) – where instructions of plaintiff’s pro bono legal representatives terminated part way through hearing – where primary judge refused adjournment sought by unrepresented plaintiff and plaintiff then absented himself from courtroom – whether r 29.7 conferred power to dismiss proceedings where plaintiff absented himself after initially appearing – where alternative source of power under rr 12.7 or 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) – whether refusal to adjourn unreasonable or plainly unjust – leave to appeal refused

PROCEDURE - Judgment and orders of the Court – appointment of a receiver for the limited purpose of ensuring compliance with a mandatory injunction ordered by the Court – stay of the appointment

MORTGAGES AND SECURITIES — Mortgages — Mortgage contracts — Enforcement — No issue of principle

HIGH RISK OFFENDERS — Interim supervision orders — appointment of experts for examination of defendant — preliminary hearing — serious sexual offending — appropriate conditions of interim supervision order

COSTS — party/party — interlocutory proceedings — principles applied as if proceedings were final — six separate questions determined by Court — ordinary rule that costs follow the event — costs awarded to plaintiff

EQUITY — trusts and trustees — court’s supervision of — appointment and removal of trustees — where applicant seeks appointment as trustee to effect distribution of trust assets — where applicant seeks direction pursuant to s 63 Trustee Act 1925 (NSW) that he would be justified in not indemnifying the company from trust assets in respect of misleading and deceptive conduct — where applicant seeks order under s 81 of the Trustee Act 1925 (NSW) permitting distribution of trust assets to members under certain conditions — applicant appointed as trustee — associated direction and orders made

ADMINISTRATIVE LAW — Judicial review — Personal Injury Commission INSURANCE — Compulsory motor vehicle third party insurance — Motor Accident Injuries Act 2017 (NSW) — Statutory benefits — Whether services for the care of pets can be “treatment and care” — meaning of “attendant care services”

CONTRACTS – Remedies – Damages – Mitigation of loss – whether poor maintenance of the property amounts to a failure to mitigate loss – no question of principle LEASES AND TENANCIES – Default and termination – Repudiation – where upstream transaction of ultimate owner of tenant company – whether transaction amount to change of control of lessee – whether lessee’s action amount to repudiation – no question of principle LEASES AND TENANCIES – Repairs, maintenance and alterations – Damage to premises – whether water ingress into lessor’s property caused by lessee – no question of principle TORTS – Trespass to land – Damages – whether trespass to Lessor’s reversionary interest – no question of principle TORTS – Nuisance – whether lessee’s actions caused damage or material interference to lessor’s property – application of Wringe v Cohen [1940] 1 KB 229

MORTGAGES AND SECURITIES — Mortgages — Mortgage contracts — Form, validity and effect — Purported forgery CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — Unjust —Harsh and Oppressive EVIDENCE — Standard of proof — Civil cases — rule in Browne v Dunn EVIDENCE — Standard of proof — Civil cases — application of principles in Briginshaw v Briginshaw — Alleged misconduct by solicitor

SENTENCING — Crown appeal against sentence — sexual and physical domestic violence offences committed against wife — assessment of the objective seriousness of choking offences contrary to s 37(1A) of the Crimes Act 1900 (NSW) — whether the sentencing judge erred in finding that the offender had good prospects of rehabilitation —whether aggregate sentence and Community Corrections Orders are manifestly inadequate sentences — error established SENTENCING — Crown appeal against sentence — admissibility of new evidence relevant to the exercise of the residual discretion and re-sentence — inadequacy of sentence so marked as to warrant intervention — seriousness of domestic violence offending — offender re-sentenced

CRIME – appeal against sentence – multiple firearm offences – multiple drug offences – whether Form 1 offence erroneously treated as contributing to objective seriousness of principal offence – compatibility of ammunition to firearm – effect of mental health on burden of imprisonment – no lesser sentence warranted – appeal dismissed

EQUITY — Equitable remedies — Injunctions – interlocutory injunction sought by a claimant (the defendant/cross claimant) to an alleged prior equity to restrain the completion of the sale of certain investment real estate by receivers (the second plaintiffs) appointed by a mortgagee to the property of a mortgagor in default (the first plaintiff) – caveat filed only after the sale entered into by the receivers – caveat invalid and withdrawn – whether there is a serious question to be tried – weighing the strength of the plaintiff’s case – what is the balance of convenience in the circumstances – defendant/Cross claimant’s undertaking to damages not supported by disclosure as to the defendant/cross claimants assets – whether an interlocutory injunction should be granted and if so on what terms. LAND LAW — Caveats — Removal of caveat — Removal by order of court – where the caveat is deficient – caveat claims an interest different from and inconsistent with interest claim by the caveator in the proceedings – where the Court cannot make an order to rectify the caveat – where the caveator acknowledges deficiencies in the caveat and otherwise seeks to rectify the deficiencies by a cross-summons for an interlocutory injunction.

CRIME — Confiscations — Forfeiture order — Where order not opposed — Where order sought over two sums of cash totalling approximately $555,550 — Where defendant suspected of having engaged in a serious crime related activity or serious crime related activities — Where seized property is serious crime use property

COSTS – Whether order for indemnity costs should be made where no determination of application to set aside creditor’s statutory demand on the merits

EVIDENCE – unfavourable evidence – leave to cross-examine various prosecution witnesses – no question of principle

CIVIL PROCEDURE – directions – proceedings previously stayed until further order – no matter of principle

NEGLIGENCE – medical negligence – TVT-O surgery – whether failure to warn of risks – whether plaintiff would have declined surgery if warned of the potential risks of harm – factual causation – whether breach of contract – whether breach of statutory guarantee of care and skill– claim dismissed LIMITATION OF ACTIONS – negligence – date on which cause of action "discoverable by plaintiff" – whether plaintiff aware that injury "caused by fault of the defendant" – meaning of "fault" for the purposes of the Limitation Act 1969, s 50D(1)(b)

CIVIL PROCEDURE – court administration – failure to comply with court orders – purposes of case management – consent orders made – costs orders made

CIVIL PROCEDURE – striking out and dismissal – proceedings previously dismissed against the tenth and fifteenth defendants pursuant to UCPR r 13.4(1)(b) – plaintiff seeks to set aside that order dismissing proceedings pursuant to UCPR r 36.15 – plaintiff alleges evidence relied upon by the defendants was fraudulent – dismissal of plaintiff’s motion COSTS – Party/Party – self represented litigant – application by tenth defendant for a gross sum costs order – costs order made with 40 percent discount

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

COSTS — indemnity costs — offer of compromise —discretion to order otherwise JUDGMENTS AND ORDERS — reasons — parties — pseudonymisation — non-publication

EQUITY — Equitable remedies — Injunctions — Where plaintiff contracted with builder for the construction of a house — Where plaintiff terminated contract with builder — Where builder has left materials on the construction site where plaintiff’s house is being built — Where builder has since had altercations with plaintiff and contractors subsequently engaged by plaintiff — Whether the leaving of building materials is a trespass — Whether plaintiff entitled to injunction against builder preventing entry onto land LAND LAW — Co-ownership — Where plaintiff owns land as joint tenant — Where co-owner of land is not joined as a party to proceedings — Whether plaintiff can seek injunction to prevent entry onto land without joining other co-owner

EVIDENCE — Privileges — Client legal privilege — Legal advice — No issue of principle EVIDENCE — Privileges — Client legal privilege — Litigation — No issue of principle EVIDENCE — Privileges — Client legal privilege — Loss of — Implied waiver — ‘associated material’ waiver — Application of inconsistency test — General principles to be applied

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Application for judicial review of decision of District Court – Dispute as to costs assessment – Whether proceedings an abuse of process after applicant’s debt compromised by Deed of Company Arrangement – Whether proceedings should be dismissed for want of due despatch COSTS – Whether costs should be ordered of proceedings as whole where matter not determined on the merits – third-party costs order – Where solicitor on the record in the proceedings is the sole shareholder of represented party and has effectively funded the proceedings – Where solicitor is associated with incorporated legal practices which stand to benefit as creditors of the defendant company

CONTRACTS — building and construction — earthworks contract — termination prior to completion — whether respondents overpaid for work performed — payment claims under Building and Construction Industry Security of Payment Act 1999 (NSW) RESTITUTION — common money count — money paid under mistake — pleadings — necessary elements for pleading restitution — whether payment claims overstated percentage of work completed — recovery of differential between claimed and actual work — Uniform Civil Procedure Rules 2005 (NSW), r 14.12 AUSTRALIAN CONSUMER LAW — misleading or deceptive conduct — alleged misrepresentations in payment claims as to extent of work completed — whether representations in payment claims were representations of fact APPEALS — appeal from District Court — whether primary judge erred in upholding restitution and misleading or deceptive conduct claims

SENTENCING — Appeal against sentence — co-offenders — disparity between sentences — methylamphetamine manufacture — applicant “go to man and organiser” — co-accused “cook” — sentencing judge finds stronger subjective case for applicant — indicative sentence nonetheless six months longer than indicative sentence for other offender on corresponding count — marked and unjustified disparity revealing House error — applicant re-sentenced

CRIME – appeals – appeal against sentence – applicant sentenced for Commonwealth offences – where sentencing judge erred by mistaking the facts – where sentencing judge erred by applying wrong principle of law in considering family hardship – errors conceded by Crown – sentencing discretion re-exercised – no lesser sentence warranted – appeal dismissed

SENTENCING – Practice and procedure – application for an adjournment of proceedings on sentence – where counsel and solicitor appearing at the trial required to return the brief under the New South Wales Barrister’s Rules – where new legal representatives retained shortly before the commencement of the proceedings on sentence – where the matter has endured a protracted procedural history – adjournment application allowed – proceedings on sentence re-listed

EQUITY – Equitable remedies – Injunctions – interlocutory injunction – where plaintiff seeks to restrain defendant association from holding election of members of Executive Council scheduled to occur at annual general meeting – where association disputes plaintiff’s membership – where plaintiff delayed in bringing proceedings – whether a serious question to be tried – whether balance of convenience favours an injunction being granted

PRACTICE AND PROCEDURE – Settlement – Approval – Personal Injury claim – Where plaintiff under legal incapacity due to age – Settlement approved

NEGLIGENCE – cross-claims – against third party for contribution – historical sex abuse – abuse of four male pupils by female teacher in 1978 and 1979 – judgments entered against the State in favour of the plaintiffs – where State seeks contribution from teacher alleged to have perpetrated the abuse – s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 – whether the State is a tortfeasor liable – whether the teacher is a tortfeasor, who would, if sued by the plaintiffs, have been liable to them for the same damage NEGLIGENCE – historical sex abuse – whether the abuse alleged occurred – where physical acts upon which each plaintiff sued must be individually assessed – where plaintiffs were cross-examined – where cross-defendant did not directly contradict the plaintiffs’ evidence – assessment of credibility and reliability of plaintiffs’ evidence NEGLIGENCE – liability as a tortfeasor – consent judgments – whether the entry of judgments against the State establishes it is a tortfeasor liable WORDS & PHRASES – meaning of ‘tort-feasor’ – s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 – distinction between the first and second mentioned tort-feasor NEGLIGENCE – breach – whether the State breached its duty of care – failure by State to take specified precautions – s 5B(1) Civil Liability Act 2002 – whether the risk of harm was foreseeable by the school – whether the risk of harm was not insignificant – whether the school ought to have taken precautions against the risk of harm NEGLIGENCE – causation – s 5D Civil Liability Act 2002 – whether the failure by the State to take reasonable precautions was a necessary condition of the harm suffered NEGLIGENCE – breach – foreseeability by cross-defendant – whether the cross-defendant ought to have known of the risk of harm to the plaintiffs in 1978 or 1979 – where evidence did not reveal the personal knowledge or experience of the cross-defendant – where foreseeability cannot be judged by what the cross-defendant ought to have known in similar circumstances today – where the harmful consequences of child sexual abuse were not in 1978 or 1979 notoriously part of contemporary thought NEGLIGENCE – reasonableness of the settlements – whether the settlements were reasonable – where the State obtained advice from counsel on liability and quantum NEGLIGENCE – apportionment – apportionment of liability between tortfeasors – degree of the departure by the cross-defendant and State from duties owed to the plaintiffs – assessment of what is just and equitable

JUDGMENTS AND ORDERS – Final orders – where referral to pro-bono – where pro-bono assistance from counsel commendably assisted in resolution of proceedings – no question of principle

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where defendant entirely unsuccessful on motion to set aside principal judgment — Where plaintiff alleges defendant delayed in prosecuting its notice of motion — Whether costs should be ordered on indemnity basis COSTS — Party/Party — General rule that costs follow the event — Whether costs should be ordered on a fixed sum basis — Whether Court can exercise power to award gross sum fairly between the parties — Where plaintiff advised of its total costs and disbursements

CRIMINAL PROCEDURE – application for leave to withdraw a guilty plea – offence of murder – whether there is a triable issue as to whether the accused had a mental illness at the time of the admitted acts causing the death of the deceased – whether the interests of justice require that the applicant be granted leave to withdraw his guilty plea in accordance with White v R [2022] NSWCCA 241 – application refused

INTERNATIONAL ARBITRATION – Arbitration – Where plaintiffs and defendant parties to licence agreements containing dispute resolution clause culminating in arbitration before the Court of Arbitration for Sport in Switzerland – Plaintiffs commence proceedings for preliminary discovery – Whether proceedings ought be stayed – Whether a preliminary discovery dispute a “matter … capable of settlement by arbitration” – Proceedings not subject to s 7(2) International Arbitration Act 1974 (Cth) INTERNATIONAL ARBITRATION – Arbitration – Stay of proceedings – Existence of inherent power to stay proceedings in favour of arbitration CONTRACT – Covenant not to sue – Power to stay proceedings brought in breach of covenant not to sue

SENTENCING — relevant factors on sentence — objective seriousness — whether sentencing judge erred in assessment of the objective seriousness — moral culpability — whether sentencing judge erred in assessment of the applicant’s moral culpability — mitigating factors — unlikely to re-offend — whether sentencing judge misstated the statutory test — where the expression was no more than a verbal infelicity

CRIME — Appeals — appeal against sentence — failure to take into account a relevant consideration — whether sentencing judge failed sufficiently to take into account applicant’s disadvantaged background — misapplication of principle — mitigating factors in Crimes (Sentencing Procedure) Act 1999 (NSW) — risk of re-offending and prospects of rehabilitation — factors not raised before sentencing judge — whether sentencing judge erred in not assessing mitigating factors — manifest excess — whether aggregate sentence reflected totality of criminality — manifest excess established

WORKERS COMPENSATION – Where leave is sought to commence proceedings out of time – Where delay is explained by various time stops within the Act itself – Where plaintiff has a reasonably arguable claim – Where no prejudice to defendant – leave granted

COSTS – Party/Party – Bases of quantification – Indemnity basis – whether offers of compromise/Calderbank offers – whether indemnity costs should be ordered – no question of principle

CRIME – accessory before the fact to murder – trial by judge alone – Crown case circumstantial – whether the accused provided a getaway car to principal offenders knowing that the car would be used to facilitate a murder – accused found not guilty

CRIMINAL LAW – murder – defence of mental illness – accused suffering from schizophrenia, substance use disorder and post-traumatic stress disorder – expert evidence unanimous that accused was suffering from mental illness at the time of the acts – expert evidence unanimous that accused could not reason with a moderate degree of sense and composure about whether her acts, as perceived by reasonable people, were wrong – special verdict of not guilty by reason of mental illness

CIVIL PROCEDURE – Abuse of process – Where Court previously found that cross-claim was an abuse of process – Consideration of appropriate form of relief – Whether cross-claim must be permanently stayed – Permanent stay ordered COSTS – Application for indemnity costs – Where cross-claim found to be an abuse of process – Where indemnity costs should ordinarily be ordered where action taken is an abuse of process – Indemnity costs ordered

APPEALS — procedure — stay pending appeal — urgent application for stay of execution upon judgment for possession and writ of possession — stay previously refused on the basis no application for leave to appeal filed — timing of effective filing unclear — prejudice established — undertaking by applicants to pay money into Court in satisfaction of respondents’ claim within 21 days — undertaking decisive —temporary stay granted

APPEAL — sentencing — control orders — Children’s Court — whether a single aggregate control order may exceed two years — coherence between cumulative and aggregate sentencing — jurisdictional limit for aggregate control orders — construction of Children (Criminal Proceedings) Act 1987 (NSW), ss 33(1)(g), 33A(4), 33C — application of Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 53B CHILDREN — criminal law — sentencing — control orders — aggregate control order imposed for multiple offences — whether two-year limit in s 33(1)(g) applies — three-year jurisdictional limit under s 33A(4) — power to impose aggregate control order derived from Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A as applied by Children (Criminal Proceedings) Act 1987 (NSW) s 33C

MENTAL HEALTH — forensic patient — schizophrenia — substance use disorder — appeal from refusal to extend status — interim extension order — whether Court of Appeal judge had power to make interim extension order — whether unacceptable risk can be adequately managed by less restrictive means — whether primary judge applied correct statutory test — conditional release — Community Treatment Order — psychiatric evidence — disagreement between court-appointed experts — whether primary judge erred in approach to expert evidence — alleged rule as to calling experts — Jones v Dunkel inferences — Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 121, 122