Cases and authorities

CRIMINAL LAW – jury – discretionary discharge of juror

CRIMINAL LAW – jury – discretionary discharge of juror

COSTS – matter fixed for trial – plaintiff serves substantial body of further liability and quantum evidence – trial vacated – whether plaintiff should pay costs of motion to vacate and costs thrown away – no issue of principle.

CIVIL PROCEDURE – summary judgment – interpretation of insurance contract – where multiple interpretations of relevant provisions reasonably arguable – issue not suitable for summary judgment – motion dismissed

CRIME – appeals – appeal against sentence – offence of wound person with intent to resist or prevent arrest – related offences on s 31 certificate – police pursuit, not stop and drive dangerously – robbery armed with offensive weapon – whether sentencing judge erred by sentencing the applicant ‘at law’ for the related offences – whether the sentencing judge erred by sentencing the applicant to a sentence that was more than jurisdictionally available – whether the sentence was manifestly excessive as a result of the asserted error – leave to appeal allowed – applicant resentenced

CRIME — Appeals — appeal against conviction — unreasonable verdict — Crown alleged exclusive possession of drugs and cash — applicant argued evidence did not establish exclusive possession — whether applicant had exclusive possession of drugs and cash

TORTS – trespass to land – underground trespass –action in trespass in relation to underground gas infrastructure – separate determination of questions – whether installation and continued presence, maintenance and use of gas infrastructure done pursuant to statutory authority – nature of ownership and possession of gas infrastructure

LAND LAW – Public roads – dedication and acceptance between 1892 and 1920 – whether parties instead intended private rights of way – whether mortgagor of Torrens land competent to dedicate public road – whether Council’s statutory title to public road defeated by registered proprietor’s indefeasibility of title

CIVIL PROCEDURE – Abuse of process – Whether cross-claim should be struck out – Whether cross-claim should be dismissed or permanently stayed – Whether defendant should be estopped from pursuing matters set out in cross-claim – Where pleadings are contrary to previous arguments successfully pursued in this Court – Whether section 93C(3) of the Legal Profession Uniform Law Application Act 2014 (NSW) creates an issue estoppel in relation to question of whether valid costs agreement exists – Operation of s 199(2)(a) of Legal Profession Uniform Law 2014 (NSW) – Abuse of process established

COSTS — Party/Party — Costs orders in interlocutory proceedings — No issue of principle COSTS — Party/Party — Timing — Costs payable forthwith — No issue of principle

CIVIL PROCEDURE — Hearings — Suppression and non-publication — Names of law firm, lawyers and counsel

CIVIL PROCEDURE – Representative proceedings – Referral to referee for determination of assessment of damages – Dispute in relation to figure reached by referee in relation to one group member – Whether error established – Whether referee accounted for group member failing to mitigate his loss – Value of lost opportunity – Where issue not put to claimant in cross-examination – Whether assessment was subject to error – No error established – Assessment open to referee COSTS – Determination of costs – Where Commonwealth is ultimately responsible for costs but some features of the costs assessment suggest that it may not be liable for some costs – Orders sought by the plaintiff made with two exceptions, being application for review by a group member resulting in the costs for that application being reserved – Other costs reserved

JUDGMENTS AND ORDERS – Stay of execution – Pending appeal – Where application for stay predicated upon appeal being filed – Where no appeal was filed – Where no proper basis for stay established – motion dismissed

PROCEDURE – defendants’ application for determination of a separate question – no order for a separate question

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — HELD — proceedings summarily dismissed

GUARANTEE AND INDEMNITY — Scope of liability of guarantor — Construction — Collateral agreement — Where plaintiff lent moneys to first defendant — Where second and fourth defendants each entered into a contract of guarantee and indemnity in respect of the loaned moneys — Where second defendant alleges an oral collateral agreement with the plaintiff whereby the plaintiff stated it would enforce guarantees given by the other guarantors first — Whether such an agreement was made — Whether the agreement would be inconsistent with the terms of the contract of guarantee and indemnity GUARANTEE AND INDEMNITY — Contract of guarantee — Construction — Whether contract of guarantee and indemnity correctly refers to the principal deed of loan GUARANTEE AND INDEMNITY — Rights of guarantor against creditor — Right to notice of default or demand — Where contract of guarantee and indemnity provides for liability under the indemnity ‘on demand’ and liability under the guarantee when guarantor receives a ‘default notice’ — Whether liability arises under guarantee or indemnity — Whether a default notice is a condition precedent — Whether purported demand complied with the requirements of the default notice GUARANTEE AND INDEMNITY — Actions to enforce guarantee — Guarantors liability — Whether plaintiff postponed enforcement of guarantee

DAMAGES – personal injury – where plaintiff successful in personal injury claim – calculation of damages for past economic loss and future treatment expenses

CIVIL PROCEDURE – pleadings – amendment to pleading – application for leave to file further amended statement of claim – where building inspection report failed to identify various defects in property – where second and third defendants object to certain paragraphs – allegations of misleading or deceptive conduct – complaints about form of the proposed pleading – whether the new claims arise from the same or substantially the same facts – whether a grant of leave would cause the defendants to suffer prejudice

CRIMINAL LAW – trial – pre-trial issues – ruling on admissibility of hearsay statements EVIDENCE – hearsay – first-hand hearsay exceptions – s 65(2) of the Evidence Act 1995 (NSW) – maker unavailable – whether the representation was made shortly after the asserted fact – meaning of “shortly after” – whether the representation was made in circumstances that make it highly probable that the representation is reliable – where maker of the representation criminally concerned in the events that gave rise to the proceedings

CRIMINAL LAW — appeal against conviction — using carriage service to transmit communications with person believed to be under 16 years — misdirection as to belief element — error conceded — whether Court should direct acquittal or order re-trial — interests of justice — discretion of Director of Public Prosecutions — significance of conviction under Child Protection (Offenders Registration) Act 2000 (NSW)

CRIME — appeals — appeal against sentence — where Crown accepted that Court should proceed to resentence the applicant — where extension of time and leave to appeal granted — where appeal allowed — where Court proceeded to resentence the applicant

CRIME – Appeal and review – Appeal from District Court to Supreme Court – Appeal against conviction – Miscarriage of justice – Whether unedited transcript containing prejudicial material was provided to the jury – Standard of proof – Where balance of probabilities determined to be appropriate standard of proof where the appeal is based on a finding of fact CRIME – Sexual offences – Indecent assault of a person under 16 years of age – Applicant found guilty by a jury – Aggregate sentence imposed CRIMINAL PROCEDURE – Trial – Jury – Access to transcript – Irregularities – Where unedited transcript containing prejudicial material may have been provided to the jury – Where evidence from a previous trial may have been provided to the jury in a second trial after the charges relevant to that evidence had been withdrawn – Where no practitioners in the trial have any recollection of an incorrect transcript being provided to the jury – Where the primary evidence of the applicant is an unedited transcript from the court file which was marked for identification – Where the Court unable to infer that the incorrect transcript was provided to the jury based on the evidence before it – Where practitioners were alert to the need to ensure the correctness of transcripts as a result of an error earlier in the trial – Where the primary evidence at trial was of a small number of recorded interviews – Where significant discrepancies in the transcript and recorded interview would have been alerted to the Judge – Where the recording was played whilst the jury were in possession of the transcript and no discrepancy was raised by any party in the court room at the time – Where the Court was not satisfied as a matter of fact that the jury received an inappropriate transcript – Miscarriage of justice not established – Appeal dismissed

CRIME – appeals – appeal against conviction – supply commercial quantity of prohibited drug – 1,4-butanediol – whether guilty verdict unreasonable – whether commercial quantity of drug in possession for the purpose of supply – application of deeming provision – s 29(a) Drug Misuse and Trafficking Act 1985 (NSW) – definite and indefinite articles – nature of offence – indivisible whole – where proof of intention to use part of drug not inconsistent with possession of whole quantity for the purpose of supply – appeal dismissed

CRIME – Appeal against sentence – Sexual offences – Aggravated sexual assault – Indecent assault – Circumstances of aggravation – Victim under authority – Victim under 16 years of age – Leave granted – Appeal upheld – Applicant resentenced CRIME – Appeals – Appeal against sentence – Misapplication of principle – Whether the sentencing judge erred in an assessment of objective seriousness – Whether the characterisation given by the sentencing judge was reasonably open to him –Ground of appeal not upheld CRIME – Appeals – Appeal against sentence – Misapplication of principle – Whether the sentencing judge erred in finding that personal deterrence was a significant factor in sentencing – Whether the offender’s willingness to engage in treatment courses is conditional upon expressions of remorse and insight into offending – Error of principle – Where remorse and insight into offending found not to be a precondition for engagement in treatment courses – Grounds 2 and 3 upheld CRIME – Appeals – Appeal against sentence – Manifest excess – Unnecessary to consider in light of upholding grounds 2 and 3

CRIMINAL PROCEDURE — costs — Costs in Criminal Cases Act 1967 (NSW) — appeal against the trial judge’s decision to award a costs certificate after finding that it was not reasonable to institute proceedings against the respondent — whether if the prosecution had evidence of all of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings — whether the complainant was unreliable — whether complaint witnesses gave evidence that was inconsistent with the complainant’s account — whether the trial judge fell into error within the meaning of House v The King — whether a certificate should be awarded pursuant to the Suitors’ Fund Act 1951 (NSW) even if the appeal was successful

CRIME – Appeal and review – Appeal from District Court to Supreme Court – Appeal against sentence – Leave to appeal granted – Appeal dismissed CRIME – Child sex offences – Child abuse material – Bestiality material – Possession of – Pleas of guilty – Imposition of an aggregate sentence CRIME – Grounds of appeal – Failure to take into account a relevant consideration – Failure to consider objective seriousness – Where an ex-tempore judgment lacks the order and precision of a reserved judgment – Principle established in Rotner v R [2011] NSWCCA 207 – Where sentencing Judge refers to the factors relevant to objective seriousness without making an explicit determination – Where assessment of objective seriousness deemed to have taken place when the sentencing judgment is read as a whole – Ground 1 not upheld CRIME – Grounds of appeal – Failure to take into account a relevant consideration – Failure to give sufficient weight to a reduction in moral culpability re Bugmy and the applicant’s mental health conditions – Error in taking applicant’s mental health conditions into account – Application of Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 – Where the applicant submitted that he was an inappropriate vehicle for general deterrence – Where no submissions were made or evidence tendered to support a link between the applicant’s mental health conditions and his offending conduct – Where consideration of Bugmy factors deemed to have taken place when the sentencing judgment is read as a whole – Ground 2 not upheld CRIME – Grounds of appeal – Manifest excess – Where it was open to the sentencing Judge to conclude that each offence needed significant individual recognition for the individual criminality displayed – Where indicative sentences displayed no error – Sentence open to sentencing Judge – Ground 3 not upheld

LAND LAW – possession of land – application to extend stay of writ of possession – where the applicant has a strong imperative to sell and made genuine attempts to sell – limited stay granted

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

CIVIL PROCEDURE – statement of claim – application for dismissal of proceedings or strike out of the pleading – where the statement of claim does not currently articulate or formulate a properly pleaded cause of action – plaintiff given opportunity to replead

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 — voluntary administration — deed of company arrangement — where plaintiff creditor applies to set aside a deed of company arrangement — where plaintiff alleges several matters in support of claim that immediate winding up of the company would result in better return for creditors — where plaintiff’s claims depend, in large part, on whether creditor owed substantial claim for ‘make good’ obligations in relation to premises — where plaintiff alleges breaches of directors duties —held that plaintiff did not comply with contractual requirement to give rise to ‘make good’ obligation on which it relied — held that arguable case for breach of directors’ duties not established — plaintiff has not established that deed of company arrangement should be set aside

ADMINISTRATIVE LAW – judicial review – decision of the Personal Injury Commission of New South Wales – where the insurer was found liable to pay for treatment and care expenses that were directly related to, and reasonably contemplated at the time of, the surgery whether or not the treatment was provided after the 26-week period STATUTORY INTERPRETATION – the meaning of the word “incurred” in Motor Accident Injuries Act 2017 (NSW), s 3.28 as it read prior to amendment

SUCCESSION – burial rights – where there is a will but no grant of probate – where there is a dispute between siblings as to the location of their mother’s burial – where plaintiff contends the deceased wished to be buried in Fiji – where second to fourth defendants contend that the burial location should be Sydney – Amended Summons dismissed

CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By prosecutor on a question of law alone — Crimes (Appeal and Review) Act 2001 (NSW), ss 56, 59 — summary dismissal of charge by Magistrate following decision to exclude evidence — nature of an appeal under s 56 discussed CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity — fictitious children — Grindr conversation between accused and purportedly 15 year old male — assault and robbery of accused by group of four — “vigilante paedophile hunting” EVIDENCE — Evidence Act 1995 (NSW), s 138 — whether Magistrate erred in finding evidence of the Grindr conversation was obtained in or in consequence of a contravention of Australian law STATUTORY INTERPRETATION — Crimes Act 1900 (NSW), ss 66EB, 80G — Crimes Prevention Act 1916 (NSW), s 2 — whether the specific preclusion of an incitement offence under s 80G displaces the general application of s 2

ADMINISTRATIVE LAW – judicial review – review of decision by review panel constituted for review under Motor Accidents Compensation Act 1999 (NSW) – where plaintiff injured in motor vehicle accident – psychological injury – whether review panel failed to provide reasons in applying the Psychiatric Impairment Rating Scale – whether review panel’s path of reasoning is sufficiently exposed on a fair reading of the reasons – whether review panel failed to conduct the medical assessment in accordance with the Motor Accident Permanent Impairment Guidelines

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – dispute as to existence of construction contract under s 4 SOPA CONTRACTS – formation – identity of parties – whether parties intended to be bound subject to execution of formal contract – consideration of subsequent conduct

DAMAGES – assessment of damages for statutory unconscionable conduct and breach of fiduciary duties in acquisition of company – valuation of start‑up company – where primary judge rejected expert valuation reports from plaintiff and defendants – whether primary judge erred in relying on statements by defendant to creditor as to the value of the company

Contract – Breach – Loan note – Where term of contract between borrower and two lenders required repayment of loan into account nominated by both lenders – Where borrower repaid money into account of one lender without obtaining nomination from both lenders – Whether term requiring nomination of account by both lenders operated only as a condition precedent to discharge of debt – Whether other lender waived breach of contract term by prosecuting earlier proceedings against recipient lender – Whether abuse of process for lender subsequently to proceed against borrower and guarantor for breach of contract. Words and phrases – "abuse of process", "account nominated", "affirmation", "borrower", "breach of contract", "breach of duty", "condition precedent", "consequential loss", "creditor", "debtor", "defective performance", "direction", "discharge of a debt", "double operation", "guarantor", "joint account", "jointly and severally", "lender", "liability for breach", "loan contract", "loan note", "mitigation of loss", "negative duty", "note certificate", "obligation as to the manner of discharging the debt", "obligation to repay the debt", "ratification", "redemption notice", "remedies which were cumulative", "separate obligations", "waiver".

Restitution – Unjust enrichment – Failure of basis or condition – Interest – Where client engaged law firm under retainer agreements – Where retainer agreements imposed binding obligations on client to pay legal costs – Where law firm had no right to retain payment under Legal Practice Act 2003 (WA) if, and to extent that, payment was found on taxation to exceed amount authorised by certificate from taxing officer – Where, prior to taxation, client and law firm reached settlement – Where settlement deed required repayment of sum as "amount that would have been ordered to be refunded" if there had been taxation – Where settlement deed left open option of litigating further claim for interest on settlement sum – Whether interest available on settlement sum – Whether there had been failure of basis or condition for client's payments of invoices issued under retainer agreements – Whether Legal Practice Act formed comprehensive regime for recovery of principal sum paid for legal costs over amount certified by taxing officer, and interest on that sum, to the exclusion of any common law restitutionary claim. Words and phrases – "basis or condition", "bill of costs", "compound interest", "condition subsequent", "conditional obligation", "deemed taxation", "failure of basis or condition", "fair and reasonable", "interest", "legal costs", "no juristic reason", "no justification", "principal", "restitution", "retainer agreement", "simple interest", "statutory interest", "taxation certificate", "unjust enrichment". Legal Practice Act 2003 (WA), ss 221, 222, 229(a), 231, 232, 235, 240, 242, 243. Legal Profession Act 2008 (WA), ss 2(b), 598, 616(1). Legal Profession Uniform Law Application Act 2022 (WA), s 260. Supreme Court Act 1935 (WA), s 32.

Negligence – Proof of loss and damage – Negligence by solicitor – Financial agreement under Family Law Act 1975 (Cth) Pt VIIIA entered before marriage – Financial agreement provided how property and financial resources dealt with on breakdown of marriage – Where financial agreement prepared by solicitor void for uncertainty – Where financial agreement prepared by solicitor set aside on hardship grounds – Where solicitor breached duty of care to take reasonable care in giving advice – Whether client failed to adduce evidence establishing loss – Whether negligence claim statute barred – When loss first suffered. Words and phrases – "binding financial agreement", "cause of action accrued", "character of the alleged loss", "compensable loss", "compensatory damages", "consequential losses", "damages", "date of separation", "did not get what he should have got", "failed to prove any further loss or damage", "financial agreement before marriage", "financial agreement prepared with reasonable care and skill", "in the event of the breakdown of the marriage", "lack of any evidence", "loss of chance", "loss or damage in tort", "lost opportunity", "no force or effect until a separation declaration is made", "properly characterising the claimed loss", "provision for the birth of a child or children", "provision of advice", "recovery of damages for the legal costs", "set aside for uncertainty", "spouse parties", "statute barred", "substantial prospect of a beneficial outcome", "terms or scope of a financial agreement drafted with reasonable care and skill", "unless and until the marriage breaks down", "void, voidable or unenforceable", "wasted legal fees", "would not have entered into the marriage". Limitation of Actions Act 1936 (SA), s 35(c). Family Law Act 1975 (Cth), ss 71A, 79, 90B, 90C, 90D, 90DA, 90DB, 90G, 90K, 90

LAND LAW – possession of land – urgent application to stay execution of writ of possession – where the opportunity to sell has passed – no adequate explanation for lack of action by applicant

EQUITY — Trusts and trustees — Trust instruments — Amendment of— Arrangement to replace deregistered appointor and default beneficiary — No issue of principle — Trustee Act 1925 (NSW), s 86A

BUILDING AND CONSTRUCTION — Contract — Implied terms — Statutory warranties under s 18B of Home Building Act 1989 (NSW) — Whether building work complied with Building Code of Australia (BCA) — Where under BCA different standards relating to waterproofing exists depending on correct classification of given room as ‘habitable’ or ‘non-habitable’ — Meaning of ‘habitable’ under the BCA NEGLIGENCE — Duty of care — Non-delegable duty — Whether claim for breach of statutory duty under s 37 of Design and Building Practitioners Act 2020 (NSW) (DBPA) is apportionable under Part 4 of Civil Liability Act 2002 (NSW) where there has been no delegation of works to third parties — Consideration of Pafburn Pty Ltd v Owners – Strata Plan No 84674 (2024) 99 ALJR 148; [2024] HCA 49 and The Owners — Strata Plan No 84674 v Pafburn Pty Ltd (2023) 113 NSWLR 105; [2023] NSWCA 301 NEGLIGENCE — Defences — Contributory negligence — Whether defence of contributory negligence applicable to breach of statutory duty under s 37 DPBA — Whether defence made out on the facts

PROTECTIVE JURISDICTION – Costs – Principles to be applied

COSTS – where plaintiff successful – where plaintiff made a Calderbank offer to settle proceedings including other claims – where plaintiff contends defendant’s conduct was an abuse of process – where plaintiff raised a late argument on which it was ultimately successful – no basis for indemnity costs – no basis for plaintiff to pay portion of defendant’s costs – costs ordered on the ordinary basis PAYMENT OF MONEY OUT OF COURT – where plaintiff paid money into Court as ‘price of injunction’ – where plaintiff has been successful – where defendant resists payment out of Court while it appeals – no basis for money to remain in Court INJUNCTION – no issue of principle – defendant to be restrained from enforcing SOPA determination

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — three sets of proceedings on same subject matter — HELD — proceedings summarily dismissed

CONTRACTS – Termination – Repudiation of contract – where purchaser chooses style of scheme in off the plan unit – where vendor constructs unit with wrong style scheme – where vendor refuses to change style scheme – where purchaser terminates upon vendors renunciation of contract – whether contract permits vendor to change style scheme – whether vendor renunciates contract – no question of principle CONTRACTS – Remedies – Specific performance – Contract for sale of land – whether specific performance should be ordered LAND LAW – Conveyancing – Contract for sale of land – Deposit – whether deposit should be returned pursuant to Conveyancing Act 1919 (NSW), s 55(2A) – no question of principle

COSTS – security for costs on appeal – impecunious appellant – where appellant’s impecuniosity was in part caused by his own conduct in related proceedings – where security may stifle appeal – limited prospects of success on appeal – security ordered

CRIME – appeals – appeal against sentence – one count of not stopping and driving a vehicle dangerously knowing that police officers were in pursuit of the vehicle – one count of assaulting a police officer in the execution of his duty – guilty plea – where the applicant was serving the balance of parole SENTENCING – appeal against sentence – whether the sentencing judge erred in the consideration of totality and a finding of special circumstances – whether the sentence was manifestly excessive – no point of principle – leave to appeal granted – appeal dismissed

CRIMINAL PROCEDURE – Trial – Application for trial by Judge alone – Whether in interests of justice – Principles for determination of application for trial by Judge alone – Where trial by Judge alone has the potential to save time and expense in circumstances where a first trial has already occurred and resulted in a hung jury – Where trial by Judge alone would bolster community confidence in the administration of justice by the giving of written reasons on complex psychiatric issues – Where the issue of substantial impairment is informed by the application of community standards – Where significant pre-trial publicity of a prejudicial kind may impact the accused’s right to a fair trial – Whether directions to a jury in relation to pre-trial publicity can ameliorate any prejudice – Where a previous jury was unable to reach a verdict on the issue of the application of community standards – Trial by Judge alone determined to be in the interests of justice – Leave granted to apply out of time – Application granted