Cases and authorities

SENTENCING — appeal against sentence — delay — whether an extension of time to file Notice of Appeal should be given — subjective considerations on sentence — mental illness — whether submissions concerning the offender’s mental illness were raised before the sentencing judge

CRIMINAL LAW — appeal against conviction — good character evidence — whether trial judge erred in failing to direct jury that applicant’s good character could be used in assessing credibility — whether omission to direct caused miscarriage of trial — offences against young child — appeal dismissed

CRIMINAL LAW — appeal against conviction — murder — unreasonable verdict —self-defence — whether Crown proved beyond reasonable doubt that accused did not believe conduct necessary to defend himself — whether accused ought be acquitted on murder charge when re-trial limited to manslaughter — whether acquittal would create plea in bar — autrefois acquit — Criminal Appeal Act 1912 (NSW), ss 6, 8 — Criminal Procedure Act 1986 (NSW), s 163

CRIMINAL LAW – application for leave to appeal against sentence – massive tax fraud – money laundering – multiple offenders involved in a sophisticated conspiracy – where applicant entered an early plea of guilty – [redacted] – [redacted] – application of parity principle – whether applicant left with justifiable sense of grievance – impact of sentence on family members – where sentencing judge applied law as it existed – where later decision changed approach in commonwealth sentencing – error conceded – re-sentencing – where no lesser sentence warranted CRIMINAL APPEALS – where applicant raised submission on appeal different to submission made on sentence – whether “leave” required to raise different argument on appeal

SUCCESSION - Family Provision – Application by adult son – Family Provision Order made

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

LEASES AND TENANCIES – Assignment and subletting – Consent – Whether unreasonably withheld – no question of principle LEASES AND TENANCIES – Rent and outgoings – calculation of outstanding rent – fossicking in a sea of documents – no question of principle

EQUITY – undue influence – separate question – transfer of property by wife from sole ownership to joint tenants with husband – whether transfer should be set aside – where insufficient evidence to demonstrate actual undue influence – where undue influence sought to be inferred from “snippets of events” – no undue influence established EQUITY – unconscionable conduct – special disability or disadvantage – wife said to be “susceptible” to husband’s influence in relation to transfer of property to joint tenants – no special disability established – no knowledge of special disability pleaded – transfer explicable

ADMINISTRATIVE LAW — judicial review of Appeal Panel decision — whether to conduct judicial review where an alternative remedy is available —construction of cl 1(d) of s 14 of the Government Information (Public Access) Act 2009 (NSW) — whether to inspect unredacted police report — no order as to costs

EVIDENCE – accidental tender of document containing problematic material – phone data that indicates the accused was present for over twenty minutes in the street where the murder occurred two days before the murder – not part of the Crown case – prejudice to the accused – prejudice arguably not alleviated by the calling of other evidence – role of directions to the jury – no application made for discharge – accused does not want jury discharged

PUBLIC ASSEMBLY — Palestine Action Group organising public assembly to advocate for the humanitarian crisis in Gaza — Proposed procession to the Sydney Opera House forecourt — Summary Offences Act 1988 (NSW) Pt 4 — Commissioner of Police seeking prohibition order pursuant to s 25(1) — Effect of such a prohibition order —Principles underlying the making of prohibition order — Application granted CONSTITUTIONAL LAW — Commonwealth Constitution — Constitutional freedoms — Implied freedom of political communication — Sydney Opera House Trust Act 1961 (NSW) — Sydney Opera House Trust By-law 2021 (NSW) — Whether provisions impermissibly burden implied freedom of political communication — Unnecessary to decide

CD v The Commonwealth of Australia CD v Director of Public Prosecutions (SA) Constitutional law (Cth) – Judicial power of Commonwealth – Admissibility of evidence – Where information and records obtained pursuant to warrants – Where Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) ("Confirmation of Application Act") deems information and records obtained under specified warrants to have been lawfully obtained – Whether Confirmation of Application Act invalid – Whether Confirmation of Application Act impermissible exercise by Parliament of judicial power of Commonwealth – Whether Confirmation of Application Act impermissibly interferes with and undermines institutional integrity of courts vested with federal jurisdiction. Words and phrases – "admissible", "communication", "criminal proceedings", "evidence", "exercise of judicial power", "illegally obtained", "inadmissible", "intercepting a communication", "interfere with the integrity of courts", "judicial power", "legislative power", "statutory concept", "telecommunications system", "undue impairment of judicial power", "unlawfully intercepted", "usurpation of judicial power", "warrant". Constitution, Ch III. Surveillance Legislation (Confirmation of Application) Act 2024 (Cth), ss 4, 5, 6, 7. Telecommunications (Interception and Access) Act 1979 (Cth), ss 7, 63, 77.

CRIMINAL PROCEDURE – application for withdrawal of guilty plea – separate question of whether the Court has the jurisdiction and the power to grant leave to withdraw the plea of guilty – where the applicant pleaded guilty in the Local Court to a charge of murder – where the guilty plea was affirmed in the Supreme Court Arraignments List – where the applicant has not yet been sentenced – whether the entry of a conviction in the JusticeLink system amounted to the finalisation of the proceedings – consideration of the principle of finality – the Court has the jurisdiction and the power to consider the application

LAND LAW — possession of land — application by plaintiff as registered proprietor — where plaintiff has prima facie right to possession as registered proprietor — where defendant asserts de facto relationship with plaintiff as a defence — no evidence filed by the defendant

CORPORATIONS — insolvent trading — claim against director under s 558G and 588M of the Corporations Act 2001 (Cth) for insolvent trading — quantification of judgment

CHILD WELFARE — Adoption — two children — siblings — where proposed adoptive parents are children’s current foster parents — whether adoption order is in each child’s best interests — whether adoption order clearly preferable to alternatives — whether birth parents’ consent should be dispensed with — where change of name proposed — whether adoption plans are in the best interests of each child and proper in the circumstances — HELD — adoption order is clearly preferable and in each child’s best interests — consent dispense order is in the best interests of each child — change of name approved — adoption plans are in the best interests of each child and proper in the circumstances CHILD WELFARE — application for order under s 45(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) to correct misspellings and omissions — HELD — correction order made

SUCCESSION — Family provision — Claim by brother of the deceased — Whether plaintiff was eligible to make a claim under s 57 of the Succession Act 2006 (NSW) — Where plaintiff was a member of the household of the deceased — Where plaintiff was dependant on the deceased — Where plaintiff was brother of deceased and alleges that the deceased was a ‘father figure’ to him — Where deceased bought property in the name of the plaintiff — Where deceased sold property in the name of the plaintiff in return for a promise to hold other property for the benefit of the plaintiff — Where this property was sold without plaintiff’s knowledge — Whether there were factors warranting the making of a claim — Whether adequate provision was provided for the plaintiff

BUILDING AND CONSTRUCTION – leave to appeal from determination of the New South Wales Civil and Administrative Tribunal Appeal Panel – alleged contract with defendant to carry out or to arrange to carry out a range of building works – where defendant assisted the plaintiffs by recommending subcontractors to them and allowed the plaintiffs to use the defendant’s trade account to order materials – whether the Appeal Panel constructively failed to exercise jurisdiction in finding there was no evidence that there was a term of a contract that the defendant would provide a waterproofing certificate – whether Appeal Panel erred in law in finding that the Home Building Act 1989 (NSW) did not preclude the defendant’s entitlement to set off – principles applicable to partly oral contracts APPEAL – leave to appeal from determination of the New South Wales Civil and Administrative Tribunal Appeal Panel – scope and construction of contract – post-contractual conduct – whether the Appeal Panel erred in law by failing to correctly apply the principles in relation to post-contractual conduct

MENTAL HEALTH — forensic patient — extension of status as forensic patient — unacceptable risk of causing harm — no alternative (less restrictive) means of adequately managing the risk — where NDIS funding not sufficient to manage risk — whether term of extension order should be three or four years

ESTOPPEL – proprietary estoppel by encouragement – Held: plaintiffs failed to establish the alleged representations relied on as giving rise to proprietary estoppel CONTRACTS – implied terms – implied obligation to do all things reasonably necessary to secure performance of the contract and to enable the other party to have the benefit of the contract – implied obligation to act in good faith in the performance of the contract, requiring the parties to co-operate to achieve the object of the contract, to comply with standards of honest conduct, and to comply with standards of conduct that are reasonable having regard to the interests of the parties – Held: defendant breached implied obligations, but breaches not causative of loss claimed by plaintiffs

CRIMINAL LAW – murder trial – subpoena issued by defence – application to be excused from production of documents on ground of public interest immunity – claim for public interest immunity upheld

APPEALS – leave to appeal – where primary judge requested parties provide orders as to distribution of money paid into Court – where parties agreed that a specified sum should not have been paid into Court – where order made in accordance with the parties’ indication – where party now appeals against this order – party bound by conduct of counsel and solicitors – leave to appeal refused

EVIDENCE – advanced ruling by primary judge that two reports and their contents were not “restricted information” within the meaning of the Transport Safety Investigation Act 2003 (Cth) – whether primary judge erred in ruling the reports were not inadmissible – no error by primary judge APPEALS – application for leave to appeal – no issue of principle, question of public importance or reasonably clear injustice identified – leave refused

CRIME – Appeals – Appeal against conviction – Appeal out of time – Irregularities in jury deliberations – Where alleged bullying and harassment in jury room – Where unauthorised communications between court and sheriff’s officers and jury – Where sheriff’s officers interviewed juror privately and prepared report on irregularities in jury room without knowledge of parties – Application for discharge of jury refused by trial judge – Whether unauthorised communications with jury were a fundamental or material irregularity amounting to a miscarriage of justice – Whether proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applies – Whether there was a denial of procedural fairness occasioning miscarriage of justice – Whether practical injustice occasioned

CRIMINAL LAW – appeals – appeals against sentence – manifest excess – indecent assault of a child – no challenge to the sentencing judge’s findings – where the applicant was on parole for like offending at the time of the offence – where the applicant has extensive record of child sex offences – where the applicant voluntarily takes anti-libidinal medication – where the applicant was abused as a child – where the applicant has shown remorse

CORPORATIONS — managed investments — application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) — whether responsible entity would be justified in implementing proposed trust scheme

COSTS – Whether Plaintiff should pay costs of receivers joined to application to extend time for registration of security interests

CONTRACTS — contractual construction — authorised financial services agreement terminated for cause — clause requiring parties to keep other party’s confidential information confidential and not use — whether disclosure of client portfolio information to competitor following termination was breach of confidentiality clause — whether client portfolio information was confidential information as defined — where parties were in the relationship of principal and agent — where authorised representative provided financial services under principal’s Australian financial services licence — where authorised representative retained goodwill in the business during the currency of the agreement but not post-termination CONTRACTS — contractual construction — whether disclosure was required by law — where licensee had obligations to clients under Corporations Act 2001 (Cth), Part 7.6 DAMAGES — whether primary judge was entitled to conclude loss not proved where experts produced joint report and were not cross examined — whether denial of procedural fairness — where primary judge not satisfied of assumptions underpinning expert evidence — no denial of procedural fairness in primary judge’s approach

OCCUPATIONS — Legal practitioners — Solicitors — Former client — Whether plaintiff’s solicitors should be restrained from acting for him in proceedings — Where respondents previously acted for the applicant in XXXXX proceedings — Where respondents came into confidential information concerning plaintiff’s mental health — Whether confidential information will be relevant in the proceedings in this Court — Whether there is a real risk the applicant’s confidential information will be misused

CIVIL PROCEDURE — Notices to produce — Before hearing — Practice Note SC Eq 11 — Application to set aside — Whether practice notes have the status of statutory rules — Whether notice to produce issued by the plaintiff to the defendants subverts the operation of Practice Note SC Eq 11

SENTENCING – murder – jury trial – domestic violence murder – plea of guilty to manslaughter but not guilty to murder – where the jury found the offender guilty of murder – where facts consistent with verdict are agreed with one exception – where murder occurred in a remote location – where offender engaged in a serious and sustained assault of the victim – whether the court is satisfied of the facts beyond reasonable doubt – whether the offender acted with an intent to kill – above the mid-range of objective seriousness SENTENCING – limited factual dispute – whether the offender used a ligature to strangle the victim – ligature marks on back and side of victim’s neck – where the Crown submits the marks are evidence of an attempted strangulation – where it is unclear how the marks were in-fact caused SENTENCING – subjective considerations on sentence – where the offender’s early life was characterised by violence and alcohol abuse within the family home – difficult schooling experience – where the offender has a history of substance abuse and suffers from personality disorder – whether there should be a moderation to moral culpability SENTENCING – relevant factors on sentence – facilitation of justice – where significant matters were dealt with by agreed facts – trial conducted with focus on relevant issues – remorse – where offender did not give sworn evidence – general deterrence in circumstances of a domestic violence murder SENTENCING – related offences – s 166 Criminal Procedure Act 1986 – where dealing with the offences would not be in the interests of justice

JUDGMENTS AND ORDERS – amending, varying and setting aside – order sought under rr 36.15 or 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to set aside an order made for the applicant in the NSW Civil and Administrative Tribunal – on the grounds of error and that the Amended Statement of Claim relied upon was rejected by the Registry for filing

CRIMINAL LAW — appeal — conviction — tendency evidence — whether trial judge misdirected jury on tendency reasoning — whether trial judge erred in directing jury to be satisfied of conduct before inferring tendency — adequacy of directions on onus and standard of proof — whether directions diverted jury from task of determining whether Crown proved each element beyond reasonable doubt CRIMINAL LAW — appeal — sentence — error of fact — whether miscarriage of sentencing discretion — manifest excess — offences against young child within family home — betrayal of trust — escalating sexual abuse — no remorse or insight

CRIME – appeal – appeal against conviction – aggravated indecent assault – aggravated incite act of indecency – where complainant is the biological daughter of the applicant – where the applicant was convicted of three sexual offences – where the jury could not reach a verdict on remaining nine counts – where the applicant was acquitted of the nine counts at a second trial – unreasonable verdicts – whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty – where the complainant was mistaken as to sequence of events CRIME – appeal – appeal against conviction – inconsistent verdicts – whether the verdicts of guilty are inconsistent with the jury’s failure to reach a verdict with respect to the remaining counts in the first trial, and with the applicant’s acquittals at the second trial – obligation of the jury to treat all counts separately – where evidence of the applicant in his electronically recorded interview was not significantly dissimilar to the complainant’s description of incidents CRIME – appeal – appeal against conviction – fresh evidence – whether the evidence of a witness was ‘fresh’ – where it cannot be said that the evidence was not available to the applicant in preparation of his case

CRIMINAL LAW – pre-trial issues – admissibility of flight evidence – application of principles as to evidence of flight as evidence of consciousness of guilt – whether the probative value is outweighed by the danger of unfair prejudice to the accused – evidence of flight not admitted

CONTRACTS – Rectification – Common intention – Proof of common intention – where clause of option deed allowed for a per square metre price reduction for sale of land – alleged common mistake as to drafting of that clause – whether clear and convincing proof of common intention – no question of principle

CIVIL PROCEDURE – Commercial List, Technology and Construction List – entry in – application for transfer of Local Court proceedings to Technology and Construction List – claim by architect for unpaid fees – cross-claim filed claiming damages from architect in relation to proposed re-development – re-development not pursued – no issues of complexity warranting entry in the Technology & Construction List – incidental “interesting issues of architecture and engineering” not enough – matter more appropriately dealt with in the Common Law Division

CIVIL PROCEDURE – cross-claims – loan agreement – loan not repaid in accordance with terms of the agreement – statement of claim and defence filed – where defendants have filed a notice of motion seeking leave to file a cross-claim against plaintiff as well as the receivers and managers – where defendants only recently appeared with legal representation – where proposed cross-claim was significantly revised – where it is alleged that personal property sold was at an undervalue or ‘lost’ – whether leave should be granted to file the proposed cross-claim out of time – consideration of delay, lack of sufficient connection, absence of a good arguable case and prejudice – leave refused CIVIL PROCEDURE – cross-claims – set-off – where plaintiff had raised reliance on ‘anti-set-off’ provisions – where no reference has previously been made to the provisions – whether clauses in the relevant agreements preclude the raising of matters in the proposed cross-claim – s 420A Corporations Act 2011 – consideration of the unfair contract terms provisions in the ASIC Act 2001 MORTGAGES AND SECURITIES – mortgages –duties, rights and remedies of mortgagee – power to appoint a receiver – where plaintiff appointed receivers and/or managers over the assets of the defendants – whether the receivers are an agent for the plaintiff – where the issue should be ventilated at the trial

LAND LAW – Easements – Construction of easements – where dominant owner granted Easement for Support to garage motor vehicles – where servient owner builds a deck and fence on top of garage – whether easement is limited in height – whether servient owner has substantially interfered with dominant owner’s rights – no question of principle

CONTRACTS – Construction – Commercial lease – Where fire originating on leased premises destroyed structures on leased and adjacent premises – Whether obligation to keep and maintain premises in same condition and state of repair encompassed obligation to rebuild destroyed structures – Whether indemnity clause satisfied – Whether lessee caused or contributed to damage by storing pallets as packaged in open area and use of premises in that way – Meaning of “as a result of”, “caused”, “contributed to”, “substantially contributed to” – Whether implied covenant under s 84 of the Conveyancing Act 1919 (NSW) negatived lease provisions imposing liability for accident such as fire – Inconsistency between implied covenant and terms of lease – Quantum of damages – Whether to infer that option to renew lease would have been exercised but for the fire

CIVIL PROCEDURE – appearance – submitting appearance – withdrawal of appearance – appeal from refusal to grant application for compliance certificate – where the LPAB filed a submitting appearance upon the Law Society being joined to the proceedings – whether the Law Society can now vacate or set aside the order granting it leave to intervene – whether the LPAB can withdraw its submitting appearance and file an appearance under UCPR 6.10 – application of Hardiman principles – where there was no appearance for the applicant when the motions were heard – where the Court would be without a contradictor unless LPAB participates – Law Society removed as a party – leave granted to LPAB to withdraw submitting appearance

APPEALS — Leave to appeal — whether any issue of principle, question of public importance or reasonably clear injustice going beyond something that is merely arguable has been shown — application refused COSTS — Party/Party — application of the general rule that costs follow the event — no error in ordering that the applicant pay the respondents’ costs of the notices of motion he unsuccessfully brought

COSTS — Application for indemnity costs — Where a contractual clause indemnified the plaintiff for costs — Where first defendant justified in challenging interest terms in the contract — Where the first defendant’s case involved a baseless allegation of fraud

CRIME – appeal against conviction – offences under Betting and Racing Act 1998 (NSW) (BR Act) ss 33HA(1) and 33JC(4) – online gambling – failure by licensed betting service provider to close betting account after request from betting account holder – direct marketing of gambling advertisements to betting account holder without consent – where licensed betting service provider operated in NSW – where betting account holder resides in Victoria STATUTORY INTERPRETATION – legal presumptions – presumption of territoriality – application of presumption in criminal cases –whether ss 33HA(1) and 33JC(4) operate extraterritorially where account holder resides in Victoria – application of Crimes Act 1900 (NSW) s 10C – territorial nexus – determining physical elements of offences – application of Interpretation Act 1987 (NSW) s 12 in criminal cases – appeal allowed in respect of conviction under s 33HA(1)

CRIME – appeals – appeal against sentence – Commonwealth offence of transmitting child abuse material using a carriage service – State offence of possession of child abuse material – whether the sentencing judge erred in the assessment of objective seriousness of offending – whether the applicant’s motivation for the offending increased the objective seriousness – whether the sentencing judge erred by not considering the causative role of the applicant’s mental health in his motivation to offend – whether the sentence imposed is manifestly excessive – leave to appeal granted – appeal dismissed

CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury’s verdicts of guilty for six counts of sexual intercourse without consent were unreasonable and could not be supported having regard to the evidence — where no reasonable doubt as to applicant’s guilt — where it was open to jury to be satisfied that applicant was guilty beyond reasonable doubt of each of the six offences with which he was charged — where leave to appeal granted but appeal dismissed

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Gross sum assessment — No issues of principle

CRIME — Confiscations — Forfeiture order — Property derived from serious crime — Property held by third party companies — Order made under s 22(2) of the Criminal Assets Recovery Act 1990 (NSW) CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — No defence — Where defendants have not participated in proceedings since being joined in 2019 — Summary judgment entered under r 13.1 Uniform Civil Procedure Rules 2005 (NSW) CIVIL PROCEDURE — Service — Substituted service — Whether document cannot practicably be served — Where company directors, secretaries and shareholders are either offshore or cannot be located — Substituted service granted under r 10.14(1) Uniform Civil Procedure Rules 2005 (NSW)

LAND LAW — Co-ownership — Statutory trust for sale — Division of net proceeds — Account for income and profits LAND LAW — Co-ownership — Rights between co-owners — Equitable contribution — Where no resulting trust, joint endeavour constructive trust or common intention constructive trust present — Whether co-owner can claim for work done personally as opposed to monetary expenditures in respect of improvements to the land COSTS — Application for appointment of trustees for sale pursuant to s 66G Conveyancing Act 1919 (NSW) — Where ‘usual order’ for costs in such proceedings to be defrayed out of proceeds of sale — Whether one party’s conduct sufficiently unreasonable to warrant departure from ‘usual order’

CONTRACTS – breach of contract – where First Plaintiff and First Defendant entered into an asset sale agreement – where First Defendant failed to pay the purchase price – where First Defendant asserted that the parties had entered into a deed of variation releasing it from the obligation to pay the purchase price – where issues raised regarding provenance and authenticity of the deed of variation – whether the deed of variation was of any force and effect