Cases and authorities

CRIME — Sentencing — Crown appeal against sentence — Manifest inadequacy — Domestic violence — Where offender convicted of murder — Sentence of imprisonment of 22 years and 6 months, with a non-parole period of 15 years and 6 months following a 10% discount applied for guilty plea — Where offender’s moral culpability diminished by mental health issues and significant deprivation in childhood — Reference to comparable cases — Appeal dismissed

CRIME – Conviction appeal – Specially aggravated break and enter dwelling house and commit a serious indictable offence (intimidation, armed with a dangerous weapon) – Fire firearm in a manner likely to endanger the safety of other persons – Possess firearm, not being authorised by licence or permit – Whether guilty verdict unreasonable and not supported by the evidence

CRIME – appeals – appeal against sentence – offences of shoot with intent to murder – whether the sentencing judge misapplied the principle of totality in fixing the aggregate sentence – whether the aggregate sentence was manifestly excessive as a result of the asserted error – leave to appeal granted – appeal allowed – applicant resentenced

CIVIL PROCEDURE – possession – recusal – reasonable apprehension of bias – earlier unfavourable credit findings relevant to motion concerning further dispute about a structure claimed to be a fixture the tenant is not entitled to remove

CORPORATIONS — liquidators — application by liquidator seeking court approval of entry into funding agreement and into costs agreement with two firms of solicitors — liquidator also seeks suppression orders in respect of legal advice and funding agreement — whether approval for entry into agreements should be granted pursuant to s 477(2B) of the Corporations Act 2001 (Cth) — whether the Court should give a direction that the liquidators are justified in entering into the agreements

ORDERS — form of orders to give effect to judgment COSTS — whether indemnity costs order should be made

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

CRIME – bail – detention application – where accused person was subject to a private electronic monitoring bail condition – amendment to the Bail Act – where private electronic monitoring is now banned – where accused person cannot meet surety condition or secure a suitable replacement condition for electronic monitoring – application by Crown pursuant to s 50 Bail Act 2013 – where accused person does not wish to be heard on detention application – whether the risks nominated by the Crown are unacceptable in absence of suitable conditions

SUCCESSION – Executors and administrators – Commission - Matters affecting quantum –administration of an estate takes over 30 years to finalise – one of the beneficiaries has been litigious throughout the administration – consideration of causes of the delay – consideration of an executor’s “pains and trouble” in awarding commission in the face of – whether executor has financially benefited from estate administration – consideration of extent of executor’s personal performance of executor’s duties. CIVIL PROCEDURE – Registrars – Review of Registrar’s decision – Powers of Judges to review discretionary award of commission – reasons for intervention. COSTS – specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – long-running estate administration due to family conflict – limited funds remaining in estate – need to end conflict – undesirability of further contest about the assessment of legal fees.

CRIMINAL LAW – Appeal – Appeal against conviction – Where applicant was convicted of offences under Commonwealth Criminal Code of attempting to import border controlled drugs – Circumstantial case – Fault elements – Inference of intent – Intention to import – Whether trial judge misdirected the jury as to the required state of mind of the applicant – Whether verdict unreasonable

COMMERCIAL ARBITRATION — International Arbitration Act 1974 (Cth) (the Act) ss 3, 7 — Arbitration Act 1965 (Fiji) ss 2, 4, 10, para 3 First Schedule — Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) Art IX(2) — PRIVATE INTERNATIONAL LAW — FORUM NON CONVENIENS — PRACTICE AND PROCEDURE —applications for stay of proceedings in this Court — application by plaintiff to amend its Statement of Claim and to join an additional defendant — the plaintiff and the third defendant companies both incorporated in Fiji, entered into a written Construct & Design Contract (the Contract) under which the third defendant retained the plaintiff to carry out design and building work for an office tower in Suva, Fiji — the plaintiff alleges that the first defendant company, incorporated in Australia, was appointed superintendent of works and acted as the third defendant’s agent and that the second defendant, an Australian citizen living in Fiji was employed by the first defendant and carried out the superintendent’s functions on its behalf — the Contract contains a submission to arbitration in Fiji before an arbitrator appointed by the President of the Fiji Association of Architects (the President) and is governed by the law of Fiji — under the Contract the parties submit to the non-exclusive jurisdiction of the Courts and Tribunals of Fiji — a dispute has arisen between the plaintiff and the third defendant in connection with the Contract and the third defendant gave notice terminating the Contract — the third defendant requested the President to nominate an arbitrator and he has done so but the arbitrator has to date neither accepted the appointment nor taken any step in the arbitration — the plaintiff commenced proceedings in the Court against all three defendants claiming breach of contract and breach of duty of care owed by each defendant to it — the defendants seek that the proceedings be stayed either under s 7(2) of the Act or on forum non conveniens grounds — the plaintiff resists a stay under the Act on several bases including that: (a) the matters to be determined in the proceedings are not capable of settlement by arbitration, because on its proper construction the arbitration clause only covers disputes between the parties whilst the Contract is on foot and the Contract has been terminated, (b) the arbitrator did not make an award within three months after entering on the reference and the arbitration has, therefore, “expired” because the Arbitration Act 1965 (Fiji) provides that an arbitrator must make an award within three months of entering on the reference, (c) both ss 7(1)(a) and (d) only apply if the Convention country referred to in those subsections had that status on the date of the Contract, whereas Fiji became a Convention country on 4 December 2018 when its International Arbitration Act 2017 (Fiji) came into effect, (d) the first and second defendants are not persons claiming through or under the third defendant within s 7(4) of the Act — HELD — the issues to be determined in the proceedings are capable of settlement by arbitration and covered by the arbitration clause notwithstanding termination of the Contract — the arbitrator did not enter on the reference and if applicable, the three month period could be extended by the Fiji court — Fiji became a Convention country when it acceded to the Convention on 27 September 2010 — ss 7(1)(a) and (d) do not require the Convention country to have that status as at the date of the Contract but at the time the stay application is made — the first and second defendants are persons claiming through or under the third defendant — this Court is clearly an inappropriate forum for determination of the dispute between the plaintiff and all three of the defendants — the amendment of the Statement of Claim is futile because proceedings are stayed, but would be refused anyway because it is confusing, internally contradictory and inadequately articulated

CIVIL PROCEDURE – approval of settlement under s 76 of the Civil Procedure Act 2005 (NSW) – settlement approved

HIGH RISK OFFENDERS — application for Extended Supervision Order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) — preliminary hearing — whether there is an unacceptable risk of the defendant committing another serious offence — consideration of the objects of the Act — primary object being the safety and protection of the community — further object being encouraging rehabilitation

JUDICIAL REVIEW — District Court dismissed appeal of applications for interim apprehended personal violence orders — whether District Court fell into jurisdictional error in making costs orders — whether there was a mistake in the statutory source of power — Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 99 and 99A — Crimes (Appeal and Review) Act 2001 (NSW) s 28(3)

APPEALS – orders on appeal – appeal from conviction in Local Court to District Court – where appeal to District Court dismissed under s 21 of the Crimes (Appeal and Review) Act (NSW) for want of prosecution – whether dismissal of appeal by District Court operates as confirmation of conviction by Local Court – dismissal under s 21 operates as confirmation of conviction – judicial review of Local Court decision unavailable in these circumstances ADMINISTRATIVE LAW – judicial review – whether decision of Local Court reviewable by Court of Appeal where District Court dismissed appeal for want of prosecution – clear jurisdictional error in Local Court – where Magistrate held private discussion in Chambers with Prosecutor during cross-examination of Defendant – Local Court conviction confirmed by dismissal of appeal by District Court – judicial review of Local Court conviction not available – no jurisdictional error in District Court – application dismissed

CRIME — Appeals — Appeal against sentence — Where applicant member of organised criminal group — Where applicant spent unusually long period on remand — Where imposition of two discrete aggregate sentences rather than one overall aggregate sentence — Whether sentencing judge failed to take into account certain periods of applicant’s remand period

CIVIL PROCEDURE – proceedings commenced by person under legal incapacity – settlement of proceedings – Court approval – no point of principle

CORPORATIONS — winding up — liquidators —receivers — identifying the true employer for the purposes of Pt 5.6 Div 6 of the Corporations Act 2001 (Cth)

CHILD WELFARE — Adoption — where proposed adoptive parents are child’s current foster parents —whether adoption order is in child’s best interests — whether birth parents’ consent should be dispensed with — whether change of name should be approved — whether adoption plans are in the best interests of child and proper in the circumstances — HELD — adoption order is clearly preferable and in child’s best interests — consent dispense order is in the best interests of child — change of name approved — adoption plans are in the best interests of child and proper in the circumstances — adoption plans registered

CIVIL PROCEDURE — Pleadings — Amendment — whether fifth, sixth and seventh defendants should be granted leave to amend their defence to rectify deficiencies in current defence — where amended defence replaces the generic defined term of “the Lawyers” with the names of two identified individuals in the pleading of concurrent wrongdoers — HELD — application for leave to amend dismissed — deficient parts of current defences of the third to seventh defendants struck out in their entirety

LEGAL PRACTITIONERS – Solicitors – Conflict of interest and duty – whether firm should be restrained from acting for defendant – whether former consultant solicitor possessed confidential information of and about plaintiffs – solicitor’s knowledge of litigation strategies, personality and vulnerabilities – professional and personal relationship between solicitor and plaintiffs – solicitor subsequently employed by firm acting for defendant – risk of forensic advantage – where solicitor likely to be witness – whether fair-minded reasonably informed member of community would regard proper administration of justice as requiring firm to be prevented from acting – freedom of party to retain solicitor of choice – HELD – restraint granted

CHILD WELFARE — Adoption — two sisters — three older siblings restored to birth mother’s care — 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 no change of names 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 — no change of name approved — adoption plans are in the best interests of each child and proper in the circumstances — maternal adoption plan registered

BANKRUPTCY – Vesting of bankrupt’s property in trustee – Provable debts – Leave for creditor to take fresh step in proceedings – Where plaintiffs allege defendants participated in misappropriation of trust property – Where plaintiffs now seek only an order the bankrupt defendants render an account – Whether leave required under the Bankruptcy Act 1966 (Cth) to take fresh steps in these proceedings – Leave required

CORPORATIONS — receivers and managers — powers — statutory construction — where administrators seek declaration that a disposal of the company’s property pursuant to s 437A(1)(c) Corporations Act 2001 (Cth) is not subject to the conditional prohibition in s 41E(3) Registered Clubs Act 1976 (NSW) — whether exercise of statutory power accorded to administrator constitutes an act of the company CONSTITUTIONAL LAW — Commonwealth and State relations — inconsistency of laws — whether conditional prohibition in s 41E(3) Registered Clubs Act 1976 (NSW) directly inconsistent with administrator’s power of sale under s 437A(1)(c) Corporations Act 2001 (Cth)

CIVIL PROCEDURE – application to set aside judgment under r 36.16 Uniform Civil Procedure Rules 2005 (NSW) – where defendant had withdrawn from hearing and ex parte orders were made in favour of the plaintiff – where no satisfactory explanation provided – application refused CIVIL PROCEDURE – motions heard concurrently – application to have funds previously paid into court transferred to the plaintiff – where the plaintiff obtained judgment for damages and costs on an indemnity basis – application granted

CIVIL PROCEDURE — Pleadings — Proposed further amended Commercial List Statement — Whether the proposed changes make the current pleadings incoherent — Whether the amendment is a device to extend discovery — Whether the application should have been made earlier

CIVIL PROCEDURE – application for expedition – significant delay in bringing application – application dismissed

CHILD WELFARE – Adoption – Best interests of the child

CIVIL PROCEDURE — Originating process — Amendment — Plaintiffs seek to add a new claim — Where application is late — Where claim may be untenable — Where claim would be heard on evidence already before the Court — Where there is no prejudice to the defendant

REAL PROPERTY – COMMERCIAL AND RETAIL LEASES – claim for unpaid rent and outgoings – whether the Defendant validly terminated the lease pursuant to a contractual right of termination – whether the Defendant breached the Lease prior to termination – whether there was a causal link between the Defendant’s breach and the event giving rise to the right to termination

CRIMINAL PROCEDURE — directed verdict application — charges of murder and assault with intent to rob, with wounding and armed — joint criminal enterprise — whether there is no evidence upon which a jury could convict — eyewitness accounts — evidence of an agreement to be armed with an offensive weapon or instrument — only one intruder — Crown unable to identify intruder circumstantial case — no direct evidence — inferences

CRIME — appeal and review — powers of Supreme Court under Part 7 — appearance of doubt or question as to a mitigating circumstance — referral made to Court of Criminal Appeal

CONTRACTS – Rectification – Intention – Common intention – whether the date of the contract is 17 May 2024 or 23 May 2024 LAND LAW – Conveyancing – Contract for sale – Deposit – relief against forfeiture of deposit – whether deposit should be returned pursuant to Conveyancing Act 1919 (NSW), s 55(2A) – no question of principle

PROPERTY – proceedings by secured creditor for possession of land under registered mortgage – receiver appointed to assets of the corporate mortgagor – directors purport to exercise residual authority to cause corporate mortgagor to defend proceedings and bring cross-claim – directors offer indemnity to compensate mortgagor against costs and adverse costs order – whether directors required to give security for their indemnity

CIVIL PROCEDURE – application for leave to appeal from interlocutory orders – where primary judge dismissed strike out motion brought under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) – whether primary judge failed properly to consider strike out motion – whether primary judge erred in assessing pleadings issues in respect to collateral contract claim – leave to appeal refused. COSTS – security for costs – application for leave to appeal – where primary judge ordered a security for costs against overseas plaintiff in the sum of $53,300 – whether primary judge erred by limiting security for costs on basis of amount respondent had readily accessible to avoid stultification of proceedings – leave to appeal refused.

COSTS — Suitors’ Fund Act 1951 (NSW), s 6 — Where Crown brought appeal pursuant to Criminal Appeal Act 1912 (NSW), s 5F(3A) — Whether respondent contributed to circumstance in which he was required to meet expense of appeal — Where respondent defending trial proceedings while preparing to appear on appeal — Application refused

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — frivolous or vexatious proceedings — parallel proceedings in the Industrial Relations Commission concerning same subject matter — HELD — proceedings summarily dismissed

CIVIL PROCEDURE — Hearings — Adjournment — informal application to adjourn proceedings — vague medical grounds — previous delay — HELD —application refused

HIGH RISK OFFENDERS — Extended supervision orders — Preliminary hearing — Appointment of psychiatrists or psychologists — Extension of status as forensic patient — Whether documentation supporting the application would, if proved, “justify the making of an extension order”

LAND LAW – Co-ownership – co-tenants in occupation – one co-tenant, the plaintiff, claims reimbursement for outgoings expended by her on a residential property, the Glenwood property, she has occupied since 2010 – no evidence that the plaintiff/co-tenant has ousted the other co-tenant, represented by the second defendant, from occupation of the Glenwood property – whether the second defendant can set off a notional occupation fee for the Glenwood property against the plaintiff’s claim for mortgage payments – what evidence is sufficient to establish a notional occupation fee for the Glenwood property – what is the proper quantum of an occupation fee for the Glenwood property since 2010. COSTS – proceedings in the Court of Appeal vary the trial judge’s determination of the equitable ownership of the Glenwood property – the trial judge retires – proceedings remitted to the Equity division to a different judge for the redetermination of relief, including the calculation, if required, of a notional occupation fee for the Glenwood property based on the decision of the Court of Appeal – trial judge’s cost orders left open the redetermination – what costs order is now appropriate. COSTS - specified gross sum instead of assessed costs – Civil Procedure Act 2005, s 98(4)(c) – possible appointment of a single court expert in relation to costs pursuant to Uniform Civil Procedure Rules 2005 (UCPR), r 31.46 – parties negotiating to settle proceedings and for one party to buy out the other’s interests in the Glenwood property – whether the circumstances are appropriate for a specified sum to be fixed instead of assessed costs, or for costs to be fixed by a single court appointed expert – whether a maximum costs order should be made under UCPR, r 42.4.

COSTS — Application for costs to be fixed in a gross sum — Appropriateness of gross sum costs order – Sufficiency of evidence required for gross sum costs orders – Where parties scheduled to participate in mediation – Where mediation terminated upon failure of plaintiff’s personal representative to attend – Where defendants’ evidence of wholly and partly wasted costs inconsistent and unexplained – Whether plaintiff should bear defendants’ costs of failed mediation – Whether costs ought to be awarded on gross sum basis – Plaintiff to pay defendants’ costs – Costs to be agreed or assessed – No issue of principle

ADMINISTRATIVE LAW – judicial review – Independent Commission Against Corruption (ICAC) – decision to investigate matters – decision to hold public inquiry – adverse findings – no corrupt conduct – report to Parliament – publication of report – whether unlawful

REAL PROPERTY – Commercial lease of premises for a cinema complex – landlord obliged to replace seats when they reach “end of their economic life” – competing cinemas upgraded seats to reclining seats – whether fixed-back seats reached end of economic life – question of construction – no point of principle

CIVIL PROCEDURE – application to vacate hearing date – no question of principle

CRIME — appeal against conviction — jury returned guilty verdict of sexual intercourse with child under the age of 10 contrary to Crimes Act 1900 (NSW), s 66A — whether verdict unreasonable — whether trial judge erred in not giving “full” character direction — whether failure to seek full character direction a deliberate forensic decision reflecting agreement that if applicant’s character evidence limited to absence of criminal convictions, no character evidence in reply would be presented — whether other errors in directions to jury — appeal dismissed CRIME — appeal against sentence — whether sentence manifestly excessive — appeal dismissed

CRIME – appeals – appeal against sentence – aggravated sexual intercourse without consent – applicant 15 years and 11 months old at the time of offending – where grounds of appeal assert that insufficient weight was given to youth, mental health and background – reduced moral culpability as a result of mental health and disadvantaged background – where good prospects of rehabilitation – efficacy of labels such as “adult like conduct” – whether the sentence is manifestly excessive – appeal dismissed

JUDGMENTS AND ORDERS — Amending, varying and setting aside – Setting aside judgment entered irregularly and in absence of party — UCPR rr 35.15(1) and 36.16(2)(b) — Whether judgment entered irregularly — Where delay of nine months in bringing application and insufficient reason for delay — Whether bona fide defence on merits

CIVIL PROCEDURE – Implied undertakings – Release from – Special circumstances – whether special circumstances exist

COSTS – party/party – where plaintiff successful in obtaining family provision orders – general rule that costs follow the event pursuant to UCPR r 42.1 – where defendant made an offer of compromise and a Calderbank offer in the alternative – where plaintiff submitted terms of the offers were unclear and ambiguous – where plaintiff submitted it was uncertain whether he had “beaten” defendant’s offers – where defendant’s offer of compromise fails to comply with UCPR r 20.26 – where it was unreasonable for plaintiff to reject defendant’s Calderbank offer – where defendant is to pay plaintiff’s costs up to date of the Calderbank offer on the ordinary basis – parties to bear their own costs after this period – defendant’s application for indemnity costs unsuccessful – plaintiff’s application for all his costs unsuccessful

CORPORATIONS — winding up — application by creditor for substitution as applicant in winding up proceedings against the defendant company — where creditor that was previously substituted in winding up application against company has not proceeded with its winding up application — whether there is a genuine dispute as to the debt claimed by the creditor who now seeks to be substituted — whether substitution order should be made under s 465B of the Corporations Act 2001 (Cth)