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.
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".
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.
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, 90KA.
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.
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.
CONSTITUTIONAL LAW (Cth) - Legislative power - Acquisition of property on just terms - Where Government of Russian Federation granted lease in 2008 by Commonwealth of Australia for land in Australian Capital Territory - Where land to be used for diplomatic, consular or official purposes by Russian Federation - Where land was 300 metres from Parliament House - Where lease terminated by operation of Home Affairs Act 2023 (Cth) - Whether Home Affairs Act supported by s 122 of the Constitution - Whether termination of lease constituted acquisition of property within meaning and scope of s 51(xxxi) of Constitution - Whether s 51(xxxi) of Constitution limited to empowering acquisition of property for purpose related to need for or proposed use or application of property to be acquired - Whether provision of just terms for termination of lease incongruous notion.
CONSTITUTIONAL LAW (Cth) - Legislative power - Acquisition of property on just terms - Where Government of Russian Federation granted lease in 2008 by Commonwealth of Australia for land in Australian Capital Territory - Where land to be used for diplomatic, consular or official purposes by Russian Federation - Where land was 300 metres from Parliament House - Where lease terminated by operation of Home Affairs Act 2023 (Cth) - Whether Home Affairs Act supported by s 122 of the Constitution - Whether termination of lease constituted acquisition of property within meaning and scope of s 51(xxxi) of Constitution - Whether s 51(xxxi) of Constitution limited to empowering acquisition of property for purpose related to need for or proposed use or application of property to be acquired - Whether provision of just terms for termination of lease incongruous notion.
WORDS AND PHRASES - "abstract", "acquisition", "acquisition of property", "acquisition power", "carved out", "compensation", "discretion as to costs", "fair dealing", "for the government of any territory", "foreign state", "head of power", "incidental power", "incongruous", "just terms", "land", "lease", "national security", "nexus", "Parliament House", "peace, order and good government", "power to make laws", "property", "proposed use", "protect", "purpose", "qualifies", "reversionary interest", "risk", "scope", "source of legislative power", "Takings Clause", "territories power".
Constitution, ss 51(xxxi), 96, 111, 122.
Home Affairs Act 2023 (Cth), ss 4, 5, 6, 7.
ADMINISTRATION AND PROBATE - Application for leave to appeal against summary dismissal of claim for family provision under Part IV of the Administration and Probate Act 1958 by former stepchild of deceased - No provision in will - Applicant lived with deceased for seven years in childhood after mother formed relationship with deceased - Deceased and applicant's mother separated - Whether applicant an 'eligible person' within the definition in s 90 of the *Administration and Probate Act 1958 *- Application for leave to appeal granted - Appeal allowed.
ADMINISTRATION AND PROBATE - Application for leave to appeal against summary dismissal of claim for family provision under Part IV of the Administration and Probate Act 1958 by former stepchild of deceased - No provision in will - Applicant lived with deceased for seven years in childhood after mother formed relationship with deceased - Deceased and applicant's mother separated - Whether applicant an 'eligible person' within the definition in s 90 of the *Administration and Probate Act 1958 *- Application for leave to appeal granted - Appeal allowed.
Administration and Probate Act 1958, pt IV, ss 3(1), 90, 90A, 91.
Innes-Irons v Forrest [2016] VSC 782, applied; Bail v Scott-Mackenzie [2016] VSC 563; Whitehead v State Trustees Ltd (2011) 4 ASTLR 528, discussed.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Historical sexual offences - Three complainant nieces - Delay of 40 to 45 years since alleged offending - Witnesses and documentary evidence claimed to be unavailable - Trial judge refused permanent stay - Trial judge refused to certify for interlocutory appeal - Application to review refusal to certify refused.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Historical sexual offences - Three complainant nieces - Delay of 40 to 45 years since alleged offending - Witnesses and documentary evidence claimed to be unavailable - Trial judge refused permanent stay - Trial judge refused to certify for interlocutory appeal - Application to review refusal to certify refused.
CRIMINAL LAW - Leave to appeal - Sentence - Aggravated burglary - Conduct endangering persons - Sexual assault - Attempted rape - Conduct in front of children - Whether the sentencing judged erred in her findings - Whether the sentencing judge erred in her assessment of the prospects of rehabilitation - Whether the sentencing judge erred in her application of s 11(3) of the Sex Offenders Registration Act 2004 - Whether the sentence was manifestly excessive - Application for extension of time for leave to appeal against sentence refused.
CRIMINAL LAW - Leave to appeal - Sentence - Aggravated burglary - Conduct endangering persons - Sexual assault - Attempted rape - Conduct in front of children - Whether the sentencing judged erred in her findings - Whether the sentencing judge erred in her assessment of the prospects of rehabilitation - Whether the sentencing judge erred in her application of s 11(3) of the Sex Offenders Registration Act 2004 - Whether the sentence was manifestly excessive - Application for extension of time for leave to appeal against sentence refused.
Criminal Procedure Act 2009 s 278; Crimes Act 1958 ss 15, 22, 23; Sex Offenders Registration Act 2004 s 11(3).
Barbaro v The Queen (2012) 226 A Crim R 354; Bowden v The Queen (2013) 44 VR 229; Bugmy v The Queen (2013) 249 CLR 571; Dalgliesh (a pseudonym) v The Queen (2017) 262 CLR 428; Director of Public Prosecutions v Meyers (2014) 44 VR 486; Failla v The King [2025] VSCA 132; Kumova v The Queen (2012) 37 VR 538; Lowndes v The Queen (1999) 195 CLR 665; Sayer v The Queen [2018] VSCA 177; Stefani v The Queen [2024] VSCA 29; Surtees v The King [2023] VSCA 42, considered.
CRIMINAL LAW - Leave to appeal - Sentence - Whether sentencing judge erred in their findings as to the applicant's role in trafficking a commercial quantity of drugs - Trafficking various drugs - Possess various drugs of dependence - Possess tablet press - Make false document - Possess fireworks - Possess prohibited weapon - Source and manufacture steroids - Counterfeit drug business - Leave to appeal refused.
CRIMINAL LAW - Leave to appeal - Sentence - Whether sentencing judge erred in their findings as to the applicant's role in trafficking a commercial quantity of drugs - Trafficking various drugs - Possess various drugs of dependence - Possess tablet press - Make false document - Possess fireworks - Possess prohibited weapon - Source and manufacture steroids - Counterfeit drug business - Leave to appeal refused.
Criminal Procedure Act 2009, ss 278, 280.
Dao v The Queen (2014) 240 A Crim R 574; DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Elkadi v The King [2023] VSCA 328; Gregory v The Queen (2017) 268 A Crim R 1; R v Olbrich (1999) 199 CLR 270, considered.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Respondent pleaded guilty to nine charges of sexual offending against his two child nieces - Charges of sexual penetration of child under 12, sexual penetration of child under 16, sexual assault of child under 16, and encouraging child under 16 to engage in sexual activity - Total effective sentence of 5 years' imprisonment with non-parole period of 3 years - Whether total effective sentence and non-parole period manifestly inadequate - Whether orders for cumulation reflected the separate criminality of respondent's offending against two victims - Whether orders for cumulation were contrary to the presumption of total cumulation for serious sexual offenders - Whether judge misapplied principle of totality - Orders for cumulation manifestly inadequate - Appeal allowed - Respondent resentenced to total effective sentence of 8 years' imprisonment with non-parole period of 5 years.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Respondent pleaded guilty to nine charges of sexual offending against his two child nieces - Charges of sexual penetration of child under 12, sexual penetration of child under 16, sexual assault of child under 16, and encouraging child under 16 to engage in sexual activity - Total effective sentence of 5 years' imprisonment with non-parole period of 3 years - Whether total effective sentence and non-parole period manifestly inadequate - Whether orders for cumulation reflected the separate criminality of respondent's offending against two victims - Whether orders for cumulation were contrary to the presumption of total cumulation for serious sexual offenders - Whether judge misapplied principle of totality - Orders for cumulation manifestly inadequate - Appeal allowed - Respondent resentenced to total effective sentence of 8 years' imprisonment with non-parole period of 5 years.
Sentencing Act 1991, ss 6D, 6E.
DPP v Karazisis (2010) 31 VR 634; Nguyen v The Queen [2019] VSCA 184; R v GJ [2008] VSCA 222; Barnard v The Queen [2022] VSCA 42; R v Nguyen (2013) 234 A Crim R 324; R v MAK (2006) 167 A Crim R 159; DPP v Grabovac [1998] 1 VR 664; RH McL v The Queen (2000) 203 CLR 452; DPP v Hopson (a pseudonym) [2016] VSCA 303; Gordon (a pseudonym) v The Queen [2013] VSCA 343; Zhao v The Queen [2018] VSCA 267; Flynn (a pseudonym) v The Queen [2020] VSCA 173; Nguyen v The Queen (2016) 256 CLR 656.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Trafficking commercial quantity of drug of dependence, firearm and proceeds of crime offences - Significant and relevant criminal history - Total effective sentence 13 years 6 months' imprisonment - Whether judge failed to accord individualised justice to applicant - Whether sentence excessive - Sentence not manifestly excessive - Leave to appeal refused.
Acciarito v The Queen [2019] VSCA 26; Berichon v R [2013] VSCA 319; (2013) 40 VR 490; Bruce v The Queen [2022] VSCA 100; DPP v Condo [2019] VSCA 181; Lytras v The Queen [2020] VSCA 150; Nguyen v The Queen [2016] VSCA 198; 311 FLR 289; Obian v The King [2023] VSCA 18; (2023) 69 VR 553; Quah v The Queen [2021] VSCA 164; (2021) A Crim R 136, discussed.
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 ; DPP v Dalgliesh (a pseudonym) [2017] 262 CLR 428; (2017) HCA 41; Gregory (a pseudonym) v The Queen [2017] VSCA 151; (2017) 268 A Crim R 1; Leimonitis v The Queen [2018] VSCA 198, followed.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to file notice of appeal against sentence - Applicant pleaded guilty to nine charges of handling stolen goods, one charge of possession of a drug of dependence, and four related summary charges - Applicant sentenced to total effective sentence of 3 years and 4 months' imprisonment with a non-parole period of 2 years and 1 month - Applicant involved in enterprise of receiving, altering and rebirthing stolen vehicles for profit - Value of stolen goods in excess of $280,000 - Where applicant re-offended following arrest - Limited matters in mitigation - Whether sentence manifestly excessive - Proposed ground of appeal not sufficiently arguable to warrant extension of time - Application refused.
CRIMINAL LAW - Appeal - Sentence - Application for extension of time to file notice of appeal against sentence - Applicant pleaded guilty to nine charges of handling stolen goods, one charge of possession of a drug of dependence, and four related summary charges - Applicant sentenced to total effective sentence of 3 years and 4 months' imprisonment with a non-parole period of 2 years and 1 month - Applicant involved in enterprise of receiving, altering and rebirthing stolen vehicles for profit - Value of stolen goods in excess of $280,000 - Where applicant re-offended following arrest - Limited matters in mitigation - Whether sentence manifestly excessive - Proposed ground of appeal not sufficiently arguable to warrant extension of time - Application refused.
Crimes Act 1958, s 88.
Clarkson v The Queen (2011) 32 VR 361, referred to.
CRIMINAL LAW - Appeal - Sentence - Burglary, theft, firearms offences and possession of drug of dependence - Aggregate sentence 12 months' imprisonment - Whether judge erred by imposing aggregate sentence - Applicant stole imitation firearm from neighbour's property and exchanged it for methylamphetamine - Charges founded on same facts - Continuous offending constituting single drug and firearm-related transaction - Offences not varying greatly in gravity - Aggregate sentence avoided artificial sentencing exercise - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Burglary, theft, firearms offences and possession of drug of dependence - Aggregate sentence 12 months' imprisonment - Whether judge erred by imposing aggregate sentence - Applicant stole imitation firearm from neighbour's property and exchanged it for methylamphetamine - Charges founded on same facts - Continuous offending constituting single drug and firearm-related transaction - Offences not varying greatly in gravity - Aggregate sentence avoided artificial sentencing exercise - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Manifest excess - Blackmail - Sentence of 12 months' imprisonment - Aggregate sentence 12 months' imprisonment on separate indictment charging burglary, firearms offences and possessing drug of dependence - Total effective sentence 18 months' imprisonment - Guilty plea - Applicant assisted authorities in relation to charges on second indictment - Aggregate sentence very moderate - Most charges carrying maximum 10 years' imprisonment - Possession of firearms by prohibited person serious offending - Blackmail planned and calculated against vulnerable victim - Applicant understated own contribution to blackmail while blaming co-offender - Blackmail sentence modest - Order for 6 months' cumulation well within range - Applicant having extensive criminal record - Sentence well within range - Leave to appeal refused.
Sentencing Act 1991, s 9.
Director of Public Prosecutions v Frewstal Pty Ltd (2015) 47 VR 660; Hassall v The King [2024] VSCA 163; Malovski v The King [2025] VSCA 72, referred to.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009.
CRIMINAL LAW - Appeal - Sentence - Application for leave to appeal against sentence - Applicant pleaded guilty to disposal of firearms, possession of a traffickable quantity of firearms, other firearm offences, eight drug trafficking offences, knowingly dealing with proceeds of crime and failure to comply with order to assist - Total effective sentence of 4 years and 3 months' imprisonment - Co-accused sentenced to 10 months' imprisonment with 2 year CCO - Whether unjustified disparity in sentences - Applicant leader in criminal enterprise - Co-accused had intellectual disability - Disparity justified by different roles and personal circumstances - Whether sentence manifestly excessive - Offending objectively serious - Sentence not manifestly excessive - Leave to appeal refused.
Clarkson v The Queen (2011) 32 VR 361; Barbaro v The Queen (2012) 226 A Crim R 354, applied.
Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Chapman v The King [2024] VSCA 205; Berichon v The Queen (2013) 40 VR 490, referred to.
CRIMINAL LAW - Appeal - Sentence - Plea of guilty to charges of recklessly causing serious injury, affray, and common law assault - Random street violence - Applicant and co-offender assaulted three victims in public place - Applicant under influence of alcohol and cocaine - Applicant struck one victim to the head when victim was in vulnerable and defenceless state, causing him to sustain a severe traumatic brain injury - Several mitigating factors, including applicant's deprived background and impaired mental functioning - Whether judge erred in application of Bugmy and Verdins principles - Whether unjustifiable disparity with co-offender's sentence - Whether sentence manifestly excessive - Total effective sentence of 6 years and 6 months' imprisonment with non-parole period of 4 years and 6 months within range - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Plea of guilty to charges of recklessly causing serious injury, affray, and common law assault - Random street violence - Applicant and co-offender assaulted three victims in public place - Applicant under influence of alcohol and cocaine - Applicant struck one victim to the head when victim was in vulnerable and defenceless state, causing him to sustain a severe traumatic brain injury - Several mitigating factors, including applicant's deprived background and impaired mental functioning - Whether judge erred in application of Bugmy and Verdins principles - Whether unjustifiable disparity with co-offender's sentence - Whether sentence manifestly excessive - Total effective sentence of 6 years and 6 months' imprisonment with non-parole period of 4 years and 6 months within range - Leave to appeal refused.
APPEALS - PRACTICE AND PROCEDURE - Appeal from a decision of an Associate Judge granting the plaintiff summary judgment against the defendants - Whether a clause in a loan agreement limited the Trustee's liability - Held that it limited the lender's recourse in enforcing the Trustee's liability - Appeal dismissed - Section 17(3) of the Supreme Court Act 1986, r 77.06 of the Supreme Court (General Civil Procedure) Rules 2025, Copper (Qld) Investment Pte Ltd v Hallion [2025] VSCA 221 applied, Re Wilson [1942] VLR 177, Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26 and General Credits Ltd v Tawilla Pty Ltd [1984] 1 Qd R 388 referred to.
APPEALS - PRACTICE AND PROCEDURE - Appeal from a decision of an Associate Judge granting the plaintiff summary judgment against the defendants - Whether a clause in a loan agreement limited the Trustee's liability - Held that it limited the lender's recourse in enforcing the Trustee's liability - Appeal dismissed - Section 17(3) of the Supreme Court Act 1986, r 77.06 of the Supreme Court (General Civil Procedure) Rules 2025, Copper (Qld) Investment Pte Ltd v Hallion [2025] VSCA 221 applied, Re Wilson [1942] VLR 177, Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26 and General Credits Ltd v Tawilla Pty Ltd [1984] 1 Qd R 388 referred to.
CORPORATIONS - Corporations Act 2001 (Cth) ('Act') - External administration - s 436B(2)(g) - Application by liquidator for leave to be appointed as voluntary administrator of company in context of proposed deed of company arrangement - s 447A(1) - Truncated administration orders - s 90-15(1) of the Insolvency Practice Schedule (Corporations) in Sch 2 of the Act - Judicial advice sought to not receive Report on Company Affairs and Property - s 482(1) of Act - Stay of winding up of company sought until end of voluntary administration period - Application granted.
CORPORATIONS - Corporations Act 2001 (Cth) ('Act') - External administration - s 436B(2)(g) - Application by liquidator for leave to be appointed as voluntary administrator of company in context of proposed deed of company arrangement - s 447A(1) - Truncated administration orders - s 90-15(1) of the Insolvency Practice Schedule (Corporations) in Sch 2 of the Act - Judicial advice sought to not receive Report on Company Affairs and Property - s 482(1) of Act - Stay of winding up of company sought until end of voluntary administration period - Application granted.
EVIDENCE - Privilege against self-incrimination - Freezing order - Disclosure order - Section 128A of Evidence Act 2008 (Vic) - Whether valid objection made - Whether separate affidavit adequately set out basis of objection - Whether reasonable grounds for objection - Whether real and appreciable risk of prosecution - Whether interests of justice require disclosure - Consideration of efficacy of freezing order where minimal assets disclosed - Balancing public interest in compliance with disclosure order against potential detriment to defendant - Confidential affidavit ordered to be returned to defendant - Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235, considered.
EVIDENCE - Privilege against self-incrimination - Freezing order - Disclosure order - Section 128A of Evidence Act 2008 (Vic) - Whether valid objection made - Whether separate affidavit adequately set out basis of objection - Whether reasonable grounds for objection - Whether real and appreciable risk of prosecution - Whether interests of justice require disclosure - Consideration of efficacy of freezing order where minimal assets disclosed - Balancing public interest in compliance with disclosure order against potential detriment to defendant - Confidential affidavit ordered to be returned to defendant - Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235, considered.
CONTRACTS - Construction of commercial contract - Share sale agreement - Company's business involves sale of redeemable gift cards - Deferred payment based on breakage calculations - Obligation to provide supporting information, calculations and documentation - Whether includes underlying Source Data - Whether includes Breakage Brief provided to consultant - Whether includes communications with consultant - Whether includes documents relied upon to prepare notices - Meaning of identical phrases in different contractual clauses - Whether right to access books and records expired after review period - Reasonableness of requests by party's adviser.
CONTRACTS - Construction of commercial contract - Share sale agreement - Company's business involves sale of redeemable gift cards - Deferred payment based on breakage calculations - Obligation to provide supporting information, calculations and documentation - Whether includes underlying Source Data - Whether includes Breakage Brief provided to consultant - Whether includes communications with consultant - Whether includes documents relied upon to prepare notices - Meaning of identical phrases in different contractual clauses - Whether right to access books and records expired after review period - Reasonableness of requests by party's adviser.
GROUP PROCEEDINGS - Costs - Application for a group costs order - Whether proposed tiered or ratcheted rate starting at 32.5 per cent is appropriate and necessary - Principles to be applied - Tiered or ratcheted rate not appropriate and necessary - GCO made at a flat rate of 30 per cent - Supreme Court Act 1986 (Vic) s 33ZDA.
GROUP PROCEEDINGS - Costs - Application for a group costs order - Whether proposed tiered or ratcheted rate starting at 32.5 per cent is appropriate and necessary - Principles to be applied - Tiered or ratcheted rate not appropriate and necessary - GCO made at a flat rate of 30 per cent - Supreme Court Act 1986 (Vic) s 33ZDA.
PRACTICE AND PROCEDURE - Supreme Court (General Civil Procedure) Rules 2025 (Vic), order 15 - Application for appointment of litigation guardian - Applicable principles - Appointment of defendant's wife as litigation guardian - Expert medical evidence - Vishniakov v Lay (2019) 58 VR 375; [2019] VSC 403 - Slaveski v State of Victoria (2009) 25 VR 160; [2009] VSC 596.
PRACTICE AND PROCEDURE - Supreme Court (General Civil Procedure) Rules 2025 (Vic), order 15 - Application for appointment of litigation guardian - Applicable principles - Appointment of defendant's wife as litigation guardian - Expert medical evidence - Vishniakov v Lay (2019) 58 VR 375; [2019] VSC 403 - Slaveski v State of Victoria (2009) 25 VR 160; [2009] VSC 596.
PRACTICE AND PROCEDURE - Summary judgment - Application uncontested - No real prospect of success - Civil Procedure Act 2010 (Vic) s 61 - Owners Corporation 1 Plan No PS 707553K v Shangri-La Construction Pty Ltd [2023] VCC 1473 applied - Owners Corporation No.1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286; Naqebullah v State of Victoria [2024] VSCA 307; State of Victoria v L.U. Simon Builders Pty Ltd [2025] VSCA 52; Owners Corporation 1 Plan No. PS 640567Y v Shangri-La Construction Pty Ltd (Unreported, Supreme Court of Victoria, Delany J, 24 September 2025) referred to.
PRACTICE AND PROCEDURE - Summary judgment - Application uncontested - No real prospect of success - Civil Procedure Act 2010 (Vic) s 61 - Owners Corporation 1 Plan No PS 707553K v Shangri-La Construction Pty Ltd [2023] VCC 1473 applied - Owners Corporation No.1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286; Naqebullah v State of Victoria [2024] VSCA 307; State of Victoria v L.U. Simon Builders Pty Ltd [2025] VSCA 52; Owners Corporation 1 Plan No. PS 640567Y v Shangri-La Construction Pty Ltd (Unreported, Supreme Court of Victoria, Delany J, 24 September 2025) referred to.
PRACTICE AND PROCEDURE - Calculation of interest - Second defendant not joined to proceeding until after the sixty-fourth plaintiff - Civil Procedure Act 2010 (Vic) s 60(1) - Johnson Tiles Pty Ltd v Esso Australia (No 3) [2003] VSC 244; Shoard v Palmer (1989) 98 FLR 402 referred to.
FAMILY TRUST - Deceased was appointor of family trust - Provision in trust deed that, upon the appointor's death, the appointor's legal personal representative to become appointor, or if no legal personal representative, then the trustee to become appointor - Power of appointment exercisable by written instrument - Executor granted probate on basis of forged will - Previous trustee appointed the executor as new trustee - Executor purported to exercise powers as trustee - Probate revoked and alternative legal personal representative appointed by Court - Re Cassar [2022] VSC 126 - Whether executor's appointment and actions as trustee valid - Held: Executor's appointment as trustee invalid because no written instrument - Executor was trustee de son tort of trust property with obligations to beneficiaries but no authority to exercise powers of trustee under the settlement - Jasmine Trustees v Wells & Hind [2008] Ch 194 applied - Actions taken by executor invalid and void - Plaintiffs entitled to declarations and relief sought.
FAMILY TRUST - Deceased was appointor of family trust - Provision in trust deed that, upon the appointor's death, the appointor's legal personal representative to become appointor, or if no legal personal representative, then the trustee to become appointor - Power of appointment exercisable by written instrument - Executor granted probate on basis of forged will - Previous trustee appointed the executor as new trustee - Executor purported to exercise powers as trustee - Probate revoked and alternative legal personal representative appointed by Court - Re Cassar [2022] VSC 126 - Whether executor's appointment and actions as trustee valid - Held: Executor's appointment as trustee invalid because no written instrument - Executor was trustee de son tort of trust property with obligations to beneficiaries but no authority to exercise powers of trustee under the settlement - Jasmine Trustees v Wells & Hind [2008] Ch 194 applied - Actions taken by executor invalid and void - Plaintiffs entitled to declarations and relief sought.
CONTEMPT OF COURT - Application by originating motion and summons seeking orders that respondent guilty of 15 charges of contempt - Conduct comprising comments made by respondent in open court and by correspondence - Respondent made abusive and disrespectful comments to County Court judge in court - Respondent sent numerous emails to court containing threatening language and allegations of impropriety and corruption - Correspondence sent to judges' chambers and court registries - Whether conduct had tendency to interfere with administration of justice or otherwise scandalise the court - Contempt found proven.
CONTEMPT OF COURT - Application by originating motion and summons seeking orders that respondent guilty of 15 charges of contempt - Conduct comprising comments made by respondent in open court and by correspondence - Respondent made abusive and disrespectful comments to County Court judge in court - Respondent sent numerous emails to court containing threatening language and allegations of impropriety and corruption - Correspondence sent to judges' chambers and court registries - Whether conduct had tendency to interfere with administration of justice or otherwise scandalise the court - Contempt found proven.
Supreme Court (General Civil Procedure) Rules 2015, r 75.08.1; Charter of Human Rights and Responsibilities Act 2006, ss 8, 15, 21 and 24; Evidence Act 2008, s 161.
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; R v Dunbabin; ex parte Williams (1935) 53 CLR 434; Witham v Holloway (1995) 183 CLR 525; LCM Litigation Fund Pty Ltd v Coope [2017] NSWCA 200; R v Slaveski [2011] VSC 643; Prothonotary of the Supreme Court of New South Wales v Katelaris [2008] NSWSC 389; Re Dyce Sombre (1849) 1 MaC & G 116; 41 ER 1207; Gallagher v Durack (1983) 152 CLR 238; Ex parte Attorney- General; Re Goodwin(1969) 70 SR (NSW) 413; Re Wiseman [1969] NZLR 55; R v Collins [1954] VLR 46; McGuirk v University of New South Wales [2009] NSWSC 1058, considered.
PRACTICE AND PROCEDURE - Costs orders in three related matters - Contempt application - Two appeals from VCAT - In one matter extension of time granted and appeal dismissed - In second matter appeal allowed and VCAT decision set aside - Whether usual order for costs appropriate in the circumstances - Claim for fixed costs by the Respondents - Whether the matters were a public interest matter - Costs awarded on standard basis taxed in default of agreement.
PRACTICE AND PROCEDURE - Costs orders in three related matters - Contempt application - Two appeals from VCAT - In one matter extension of time granted and appeal dismissed - In second matter appeal allowed and VCAT decision set aside - Whether usual order for costs appropriate in the circumstances - Claim for fixed costs by the Respondents - Whether the matters were a public interest matter - Costs awarded on standard basis taxed in default of agreement.
PRACTICE AND PROCEDURE - Alleged breach of r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Where r 28.05 concerns inspection of documents and covers persons not party to a proceeding - Where no evidence that documents in question accessed under r 28.05 - Where reasonable inference that fourth respondent came into possession of documents as a party representative - Where documents not covered by order of Court that they remain confidential - No breach found - Summons dismissed.
PRACTICE AND PROCEDURE - Alleged breach of r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Where r 28.05 concerns inspection of documents and covers persons not party to a proceeding - Where no evidence that documents in question accessed under r 28.05 - Where reasonable inference that fourth respondent came into possession of documents as a party representative - Where documents not covered by order of Court that they remain confidential - No breach found - Summons dismissed.
PRACTICE AND PROCEDURE - Disclosure of documents in separate but related proceedings - Where contempt allegations made against first respondent and others - Harman undertaking raised - Whether affidavit subject to the implied undertaking in Hearne v Street - Whether breach of implied undertaking - Where documents not of the character that would attract implied undertaking - Where affidavit filed voluntarily, not under court compulsion - Affidavit not subject to implied undertaking - Contempt not made out - Summons dismissed.
Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125; Davey v Silverstein [2019] VSC 724; Yap v Lee (No 2) [2024] VSC 730.
PRACTICE AND PROCEDURE - Allegation that confidential documents used in false and misleading way - Where information contained in documents not confidential in relevant sense - Where emails attaching documents set out basis for settlement of proceedings - Where nothing inappropriate or prohibited in such an offer being made - Where content may be matter of dispute but no basis for contempt - Summons dismissed.
PRACTICE AND PROCEDURE -Application by defendant for a separate determination of preliminary questions - R 47.04 of the Supreme Court (General and Civil Procedure) Rules 2025 - S 49 of the Civil Procedure Act 2010 - Pt IIA div 5 of the Limitations of Actions Act 1958 -application dismissed - Application for trial date to be vacated - Application dismissed.
PRACTICE AND PROCEDURE -Application by defendant for a separate determination of preliminary questions - R 47.04 of the Supreme Court (General and Civil Procedure) Rules 2025 - S 49 of the Civil Procedure Act 2010 - Pt IIA div 5 of the Limitations of Actions Act 1958 -application dismissed - Application for trial date to be vacated - Application dismissed.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - Costs - Executor's application for costs from the estate of the deceased in circumstances where the application for executor's commission under s 65 of the Administration and Probate Act 1958 (Vic) was refused - Rule 10.10 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) - Rules 63.01 and 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Application refused - Second plaintiff to bear own cost and to pay costs of the first plaintiff's costs of the second plaintiff's application for executor's commission on a standard basis without indemnity from the deceased's estate.
PRACTICE AND PROCEDURE - First defendant's application for leave to amend their defence - Choice of laws - Explanation for delay - Leave granted - Aon Risk v ANU (2009) 239 CLR 175 - I.C. Formwork Services Pty Limited v Moir (No 2) (2020) 356 FLR 111.
PRACTICE AND PROCEDURE - First defendant's application for leave to amend their defence - Choice of laws - Explanation for delay - Leave granted - Aon Risk v ANU (2009) 239 CLR 175 - I.C. Formwork Services Pty Limited v Moir (No 2) (2020) 356 FLR 111.
PRACTICE AND PROCEDURE - Plaintiff's application that the first defendant lost legal client privilege - No inconsistency with maintenance of legal client privilege - Application rejected - Section 122(2) Evidence Act 2008 (Vic) - Osland v Secretary to the Department of Justice [2007] VSCA 96 - Mann v Carnell (1999) 201 CLR 1 - Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118.
EVIDENCE
EVIDENCE
COSTS - Group proceeding - Complaint by defendant that statement of claim defective - Pleadings not closed - Application by plaintiffs to amend statement of claim to add parties -Application by defendant to strike out statement of claim and that the proceeding not continue under pt 4A of the Supreme Court Act 1986- Significant change in position by plaintiffs -Application by defendant for costs of summonses, and pleading amendments and for immediate taxation - Supreme Court (General Civil Procedure) Rules 2025 rr 63.17, 63.20, 63.20.1- Costs order limited to particular period - No order as to immediate taxation - Summons for costs - Costs in proceeding.
COSTS - Group proceeding - Complaint by defendant that statement of claim defective - Pleadings not closed - Application by plaintiffs to amend statement of claim to add parties -Application by defendant to strike out statement of claim and that the proceeding not continue under pt 4A of the Supreme Court Act 1986- Significant change in position by plaintiffs -Application by defendant for costs of summonses, and pleading amendments and for immediate taxation - Supreme Court (General Civil Procedure) Rules 2025 rr 63.17, 63.20, 63.20.1- Costs order limited to particular period - No order as to immediate taxation - Summons for costs - Costs in proceeding.
COSTS - First defendant made application seeking (1) transfer of the proceeding under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and (2) that the Court decline to exercise jurisdiction - Both aspects of the application were dismissed - Extent to which the other defendants joined in any and what aspects of the application - Hearing earlier adjourned to permit, among other things, service of notices under s 78B of the Judiciary Act 1903 (Cth) and relevant written submissions by the plaintiff - Costs principles - Costs thrown away - Issue based costs orders - Stay - Thurin v Krongold Constructions (Aust) Pty Ltd (No 2) [2022] VSCA 252 considered - Orders made.
COSTS - First defendant made application seeking (1) transfer of the proceeding under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and (2) that the Court decline to exercise jurisdiction - Both aspects of the application were dismissed - Extent to which the other defendants joined in any and what aspects of the application - Hearing earlier adjourned to permit, among other things, service of notices under s 78B of the Judiciary Act 1903 (Cth) and relevant written submissions by the plaintiff - Costs principles - Costs thrown away - Issue based costs orders - Stay - Thurin v Krongold Constructions (Aust) Pty Ltd (No 2) [2022] VSCA 252 considered - Orders made.
DEFAMATION - Validity of concerns notice - Serious financial loss - Whether imputations particularised - Defamation Act 2005, ss 10A, 12A, 12B - Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726.
DEFAMATION - Validity of concerns notice - Serious financial loss - Whether imputations particularised - Defamation Act 2005, ss 10A, 12A, 12B - Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726.
ADMINISTRATION AND PROBATE - TESTATOR'S FAMILY MAINTENANCE - Extension of time to bring application for provision under s 99 of the Administration and Probate Act 1958 (Vic) - Whether implied application for extension of time in originating motion - Alternatively, whether plaintiff should have leave to amend originating motion to seek extension of time - Green & Anor v Ellul & Ors [2018] SASCFC 100 considered and applied - Held: No implied application for extension of time made by Originating Motion - Application to amend originating motion dismissed - Summary judgment granted to defendant.
ADMINISTRATION AND PROBATE - TESTATOR'S FAMILY MAINTENANCE - Extension of time to bring application for provision under s 99 of the Administration and Probate Act 1958 (Vic) - Whether implied application for extension of time in originating motion - Alternatively, whether plaintiff should have leave to amend originating motion to seek extension of time - Green & Anor v Ellul & Ors [2018] SASCFC 100 considered and applied - Held: No implied application for extension of time made by Originating Motion - Application to amend originating motion dismissed - Summary judgment granted to defendant.
ENVIRONMENTAL LAW - Pecuniary penalty, adverse publicity order, compensation and ancillary orders sought for breach of environmental laws - Parties jointly sought the Court's approval of proposed consent orders - Parties provided joint submissions and agreed statement of facts - Defendant caused environmental damage by exceeding odour and leachate limits - Defendant complied with improvement actions and investments to reduce risk of similar incident - Insight and remorse demonstrated by defendant - Court satisfied to adopt joint submissions and proposed consent orders as basis of judgment - Court satisfied that the penalty was just and proportionate - Cooperation of the parties commended - Environment Protection Act 2017 (Vic) ss 25(1), 63(1).
ENVIRONMENTAL LAW - Pecuniary penalty, adverse publicity order, compensation and ancillary orders sought for breach of environmental laws - Parties jointly sought the Court's approval of proposed consent orders - Parties provided joint submissions and agreed statement of facts - Defendant caused environmental damage by exceeding odour and leachate limits - Defendant complied with improvement actions and investments to reduce risk of similar incident - Insight and remorse demonstrated by defendant - Court satisfied to adopt joint submissions and proposed consent orders as basis of judgment - Court satisfied that the penalty was just and proportionate - Cooperation of the parties commended - Environment Protection Act 2017 (Vic) ss 25(1), 63(1).
JUDICIAL REVIEW - Appeal from Magistrates' Court - Charge of 'sexual activity directed at another person' - Magistrate found unsolicited exposure of genitals via video did not constitute 'sexual activity' - Was Magistrate's order a final order; is Appeal Proceeding competent - Issues on appeal: what material may Court have consideration to in determining whether there was an error of law; was respondent's alleged conduct 'sexual activity'; Did the Magistrate err in finding no 'sexual activity' - Appeal allowed - Order of Magistrate set aside - Proceeding remitted to Magistrates' Court - Crimes Act 1958 (Vic) ss 35D, 37A, 37B, 48; Summary Offences Act 1966 (Vic) s 19; Criminal Procedure Act 2009 (Vic) s 272; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 56.
JUDICIAL REVIEW - Appeal from Magistrates' Court - Charge of 'sexual activity directed at another person' - Magistrate found unsolicited exposure of genitals via video did not constitute 'sexual activity' - Was Magistrate's order a final order; is Appeal Proceeding competent - Issues on appeal: what material may Court have consideration to in determining whether there was an error of law; was respondent's alleged conduct 'sexual activity'; Did the Magistrate err in finding no 'sexual activity' - Appeal allowed - Order of Magistrate set aside - Proceeding remitted to Magistrates' Court - Crimes Act 1958 (Vic) ss 35D, 37A, 37B, 48; Summary Offences Act 1966 (Vic) s 19; Criminal Procedure Act 2009 (Vic) s 272; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 56.
ADMINISTRATIVE LAW - Judicial Review - Appeal from Victorian Civil and Administrative Tribunal - Whether there was an error of law in statutory construction - Town planning - Repeat appeal - Decision to refuse to grant a permit - Non-residential use in residential zone - Wrong question or wrong test applied - Neighbourhood Residential Zone Schedule 3 (NRZ3) - Banyule Planning Scheme.
ADMINISTRATIVE LAW - Judicial Review - Appeal from Victorian Civil and Administrative Tribunal - Whether there was an error of law in statutory construction - Town planning - Repeat appeal - Decision to refuse to grant a permit - Non-residential use in residential zone - Wrong question or wrong test applied - Neighbourhood Residential Zone Schedule 3 (NRZ3) - Banyule Planning Scheme.
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148; Planning and Environment Act 1987 (Vic).
ADMINISTRATIVE LAW - Judicial Review - Appeal from decision of Victorian Civil and Administrative Tribunal - Whether the Tribunal erred in statutory construction - Consideration of a jurisdictional question - Power to consider alternative use of land - Questions of law and fact - Dispute between developer and Wyndham City Council - Town planning - Generally in accordance principles - Precinct structure plan - Development Contributions Plan - Meaning of 'potential'.
ADMINISTRATIVE LAW - Judicial Review - Appeal from decision of Victorian Civil and Administrative Tribunal - Whether the Tribunal erred in statutory construction - Consideration of a jurisdictional question - Power to consider alternative use of land - Questions of law and fact - Dispute between developer and Wyndham City Council - Town planning - Generally in accordance principles - Precinct structure plan - Development Contributions Plan - Meaning of 'potential'.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) - Application for extension of time - Extension of time granted - Where residential rental provider gave renter a notice of proposed rent increase under s 44(1) - Where renter believed notice to be invalid and asked VCAT to set it aside - Where renter's application included a request for compensation which was not maintained at the hearing - Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought - Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order - Where no jurisdiction to make such an order - Leave to appeal allowed - Appeal dismissed.
Residential Tenancies Act 1997 (Vic), ss 44, 45, 46, 452, 472; Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 124, 148; Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), r 4.08.
Victoria v Bradto [2006] VCAT 1864; Xiao v Perpetual Trustee Company Ltd [2009] V ConvR 54-756; [2008] VSC 412; Kracke v Mental Health Review Board [2009] VCAT 646; Casa Di Iorio Investments Pty Ltd v Guirguis [2017] VSC 266; Rosewarne v Lim [2022] VCAT 1015.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where residential rental provider gave renter a notice to vacate under s 91ZZB (premises to be sold) - Whether mandatory documentary evidence supporting the notice was valid - Whether redaction of time period on exclusive sale authority invalidated the authority, thereby invalidating the notice to vacate - Where no explanation provided for the redaction - Redaction affected the transparency of the authority - Authority found to be defective, therefore validity of notice impacted - Invalid notice - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where residential rental provider gave renter a notice to vacate under s 91ZZB (premises to be sold) - Whether mandatory documentary evidence supporting the notice was valid - Whether redaction of time period on exclusive sale authority invalidated the authority, thereby invalidating the notice to vacate - Where no explanation provided for the redaction - Redaction affected the transparency of the authority - Authority found to be defective, therefore validity of notice impacted - Invalid notice - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where residential rental provider gave renter a notice to vacate under s 91ZZB (premises to be sold) - Whether it was reasonable and proportionate for VCAT to make an order for possession - Whether residential rental provider had a genuine intention to sell the property - Whether previous attempts to gain possession for the same reason constituted retaliation in response to repeated repair and related applications made by the renter - Where rent was being paid into a rent special account - Whether Tribunal failed to take into account impact on renter, as required by s 330(1(f) of the Act - Whether Tribunal actively engaged with renter's submissions concerning the impact of a possession order upon her - Whether Tribunal placed greater emphasis upon unsubstantiated evidence provided by the residential rental provider, at the same time discounting evidence provided by the renter - Whether renter given a reasonable opportunity to present her evidence and make submissions - Whether procedural fairness - Renter not given fair hearing - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
Residential Tenancies Act 1997 (Vic), ss 77, 91ZZB, 91ZZO, 91ZZS, 322(1), 330, 330A, 486A(1); Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 97-98, 148(1), 148(7)(b).
Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442; Dura (Australia) Constructions Pty Ltd v SC Land Richmond Pty Ltd (Domestic Building) [2006] VCAT 2120; Tomasevic v Travaglini [2007] VSC 337; Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd [2008] VCAT 1479; Metricon Homes Pty Ltd v Sawyer [2013] VSC 518; Shrestha v Migration Review Tribunal (2015) 229 FCR 301; Trkulja v Markovic [2015] VSCA 298; SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15; LKZ v CGS (Residential Tenancies) [2021] VCAT 1391; Hanson v Director of Housing [2022] VSC 710; Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; Kao v Mazi (Residential Tenancies) [2024] VCAT 1179; Moustra v Elder [2024] VCAT 813.
ADMINISTRATIVE LAW - Application for leave to appeal from orders of the Victorian Civil and Administrative Tribunal affirming a decision of Registrar of Births, Deaths and Marriages to cancel registration of a relationship - Whether Senior Member erred in interpreting the requirement that a person in the relationship 'lives in the State' - Whether applicant denied natural justice - Unreasonableness - Whether Senior Member failed to have regard to presumption of regularity - Power to amend register of relationships -Relationships Act 2008 ss 6, 7, 18, 19 - Application for leave to appeal dismissed.
ADMINISTRATIVE LAW - Application for leave to appeal from orders of the Victorian Civil and Administrative Tribunal affirming a decision of Registrar of Births, Deaths and Marriages to cancel registration of a relationship - Whether Senior Member erred in interpreting the requirement that a person in the relationship 'lives in the State' - Whether applicant denied natural justice - Unreasonableness - Whether Senior Member failed to have regard to presumption of regularity - Power to amend register of relationships -Relationships Act 2008 ss 6, 7, 18, 19 - Application for leave to appeal dismissed.
CRIMINAL LAW - Bail - Charges of using a carriage service to publish violent extremist material, possessing and controlling such material, threatening to use force and violence against a group distinguished by religion and using a carriage service to make a threat to kill - Child applicant - Applicant assessed as unsuitable by Youth Justice for bail service - Failure to abide by bail conditions on previous grants of bail - Longstanding fixation with terrorist organisation and ideology - Acquisition of weapons that are unaccounted for - Whether exceptional circumstances made out - Whether unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail - Exceptional circumstances made out - Unacceptable risk - Bail refused - Crimes Act 1914 (Cth) s 15AA; Bail Act 1977 (Vic) ss 1B, 3AAA, 3B and 4E.
CRIMINAL LAW - Bail - Charges of using a carriage service to publish violent extremist material, possessing and controlling such material, threatening to use force and violence against a group distinguished by religion and using a carriage service to make a threat to kill - Child applicant - Applicant assessed as unsuitable by Youth Justice for bail service - Failure to abide by bail conditions on previous grants of bail - Longstanding fixation with terrorist organisation and ideology - Acquisition of weapons that are unaccounted for - Whether exceptional circumstances made out - Whether unacceptable risk of endangering the safety or welfare of any person, or committing an offence while on bail - Exceptional circumstances made out - Unacceptable risk - Bail refused - Crimes Act 1914 (Cth) s 15AA; Bail Act 1977 (Vic) ss 1B, 3AAA, 3B and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Bail - Applicant charged with trafficking in drug of dependence and other charges - Applicant accused of a Schedule 2 offence while subject to a summons to answer to a charge of another Schedule 2 offence - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether applicant an unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4AA, 4A, 4D and 4E.
CRIMINAL LAW - Sentence - Attempted murder- Offender, aged 20, stabbed victim multiple times in his own home - Victim was the offender's father - Objectively serious offending - History of childhood abuse and neglect while living with victim - Involvement of Child Protection services - Offender diagnosed with personality disorder, complex post-traumatic stress disorder and some cognitive disabilities - Reduced moral culpability - Full admissions to police and early plea of guilty - No relevant criminal history - Very good prospects of rehabilitation - Sentenced to eight years' imprisonment with a non-parole period of four years and three months' imprisonment - Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269;* Director of Public Prosecutions (Vic) v Herrmann* (2021) 290 A Crim R 110.
CRIMINAL LAW - Sentence - Attempted murder- Offender, aged 20, stabbed victim multiple times in his own home - Victim was the offender's father - Objectively serious offending - History of childhood abuse and neglect while living with victim - Involvement of Child Protection services - Offender diagnosed with personality disorder, complex post-traumatic stress disorder and some cognitive disabilities - Reduced moral culpability - Full admissions to police and early plea of guilty - No relevant criminal history - Very good prospects of rehabilitation - Sentenced to eight years' imprisonment with a non-parole period of four years and three months' imprisonment - Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269;* Director of Public Prosecutions (Vic) v Herrmann* (2021) 290 A Crim R 110.
CRIMINAL LAW - Murder - Attempted murder - Conduct endangering life - Where accused drove car into pedestrians and collided into car - Whether the accused had murderous intent - Whether internet search history admissible - Whether resignation text messages to employer admissible - Whether witness description of accused driving into pedestrians as 'deliberate' admissible - Whether admission to witness admissible - Whether statement by Dr Carroll was expressing an opinion about the accused's culpability or reporting an admission - Whether admission to paramedics in police station admissible - Evidence Act 2008 (Vic) ss 76, 78, 90, 137 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21.
CRIMINAL LAW - Murder - Attempted murder - Conduct endangering life - Where accused drove car into pedestrians and collided into car - Whether the accused had murderous intent - Whether internet search history admissible - Whether resignation text messages to employer admissible - Whether witness description of accused driving into pedestrians as 'deliberate' admissible - Whether admission to witness admissible - Whether statement by Dr Carroll was expressing an opinion about the accused's culpability or reporting an admission - Whether admission to paramedics in police station admissible - Evidence Act 2008 (Vic) ss 76, 78, 90, 137 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - 67 year old lead tenant killed in her home by 46 year old male subtenant - Offender disposed of body in green waste bin - Body recovered from tip several days later - Mechanism of death not able to be determined as injuries to body could have occurred post mortem in garbage truck - Plea of guilty - Mental impairments - Verdins 5 applicable - Limited priors - Protection prisoner - Sentenced to 10 years' imprisonment with non-parole period of 7 years - DPP v Giffith [2023] VSC 218, DPP v Ivankovic [2025] VSC 50, R v Jeffrey [2023] VSC 538, R v Males [2007] VSCA 302, DPP v Ristevski [2019] VSCA 287, DPP v Tiumalu [2024] VSCA 192, R v Verdins (2007) 16 VR 269, DPP v Wain [2024] VSC 533.
CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - 67 year old lead tenant killed in her home by 46 year old male subtenant - Offender disposed of body in green waste bin - Body recovered from tip several days later - Mechanism of death not able to be determined as injuries to body could have occurred post mortem in garbage truck - Plea of guilty - Mental impairments - Verdins 5 applicable - Limited priors - Protection prisoner - Sentenced to 10 years' imprisonment with non-parole period of 7 years - DPP v Giffith [2023] VSC 218, DPP v Ivankovic [2025] VSC 50, R v Jeffrey [2023] VSC 538, R v Males [2007] VSCA 302, DPP v Ristevski [2019] VSCA 287, DPP v Tiumalu [2024] VSCA 192, R v Verdins (2007) 16 VR 269, DPP v Wain [2024] VSC 533.
CRIMINAL LAW - Attempted murder of child - Where finding of not guilty by reason of mental impairment - Where HR declared liable to supervision - Whether supervision order should be imposed or unconditional release ordered - Where major depressive disorder in remission with treatment by private psychiatrist - Where HR is currently compliant with treatment and medication in the community - Where Forensicare initially indicated unable to offer additional services and treatment to HR - Where concern that risk of harm may arise if treatment and medication ceased - Where psychiatric opinion that HR will need to continue taking medication for remainder of her life - Where HR told psychiatrist that she thought she could cease taking medication in a few months - Appropriate to impose non-custodial supervision order on condition that continue with treatment - Whether supervisor should be appointed - Where Director of Public Prosecutions does not consent to supervising HR and no governmental body providing services - Whether needs to be, or power to appoint, a supervisor - Where Forensicare then agreed to act as supervisor and indicated it could provide services - Richards (a pseudonym) v The Queen (No 2) [2017] VSCA 174 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 24, 26, 29, 30A, 31, 41, 47.
CRIMINAL LAW - Attempted murder of child - Where finding of not guilty by reason of mental impairment - Where HR declared liable to supervision - Whether supervision order should be imposed or unconditional release ordered - Where major depressive disorder in remission with treatment by private psychiatrist - Where HR is currently compliant with treatment and medication in the community - Where Forensicare initially indicated unable to offer additional services and treatment to HR - Where concern that risk of harm may arise if treatment and medication ceased - Where psychiatric opinion that HR will need to continue taking medication for remainder of her life - Where HR told psychiatrist that she thought she could cease taking medication in a few months - Appropriate to impose non-custodial supervision order on condition that continue with treatment - Whether supervisor should be appointed - Where Director of Public Prosecutions does not consent to supervising HR and no governmental body providing services - Whether needs to be, or power to appoint, a supervisor - Where Forensicare then agreed to act as supervisor and indicated it could provide services - Richards (a pseudonym) v The Queen (No 2) [2017] VSCA 174 - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 24, 26, 29, 30A, 31, 41, 47.
CRIMINAL LAW - Application to suspend reporting obligations under the Sex Offenders Registration Act 2004 (Vic) - Applicant subjected to reporting obligations in 2009 following conviction on four counts of sexual penetration of a child under the age of 16, contrary to s 45(1) of the Crimes Act 1958 (Vic), as it then stood - Application supported by expert evidence that applicant is a low risk of reoffending - Application also supported by testimonials from applicant's employer, family, friends and even the original complainant - Application unopposed by Chief Commissioner of Police - Pseudonym order also in the interests of justice - Sex Offenders Registration Act 2004 (Vic), ss 39, 40.
CRIMINAL LAW - Application to suspend reporting obligations under the Sex Offenders Registration Act 2004 (Vic) - Applicant subjected to reporting obligations in 2009 following conviction on four counts of sexual penetration of a child under the age of 16, contrary to s 45(1) of the Crimes Act 1958 (Vic), as it then stood - Application supported by expert evidence that applicant is a low risk of reoffending - Application also supported by testimonials from applicant's employer, family, friends and even the original complainant - Application unopposed by Chief Commissioner of Police - Pseudonym order also in the interests of justice - Sex Offenders Registration Act 2004 (Vic), ss 39, 40.
CRIMINAL LAW - Child homicide - Where offender struck baby's head causing non-survivable skull fractures and brain injuries - Where offender told baby's mother not to call ambulance - Where offender withheld information about how injuries occurred to medical staff - Where offender then sought to blame the baby's mother for the death - Where baby born prematurely and extremely vulnerable - Where baby was in the offender's care - Where offender was seeking treatment for anger issues - Plea of guilty after contested committal - Absence of remorse - No deprived background or psychiatric illness - No relevant criminal history - Moderate prospects of rehabilitation - R v Dempsey [2001] VSC 123 - R v Hughes [2015] VSC 312 - DPP v Woodford [2017] VSCA 312 - R v Vinaccia [2019] VSC 683 - DPP v McDonald [2020] VSC 845 - Crimes Act 1958 (Vic) s 5A.
CRIMINAL LAW - Child homicide - Where offender struck baby's head causing non-survivable skull fractures and brain injuries - Where offender told baby's mother not to call ambulance - Where offender withheld information about how injuries occurred to medical staff - Where offender then sought to blame the baby's mother for the death - Where baby born prematurely and extremely vulnerable - Where baby was in the offender's care - Where offender was seeking treatment for anger issues - Plea of guilty after contested committal - Absence of remorse - No deprived background or psychiatric illness - No relevant criminal history - Moderate prospects of rehabilitation - R v Dempsey [2001] VSC 123 - R v Hughes [2015] VSC 312 - DPP v Woodford [2017] VSCA 312 - R v Vinaccia [2019] VSC 683 - DPP v McDonald [2020] VSC 845 - Crimes Act 1958 (Vic) s 5A.
ALLEGED BREACH OF TRUST BY TRUSTEE OF UNIT TRUST - Alleged breach of trust by trustee of unit trust - Plaintiff unit holder required to subscribe cash for units - Other unit holders allocated far larger numbers of units without cash subscription - Breach of trustee's duty to act impartially between beneficiaries - No disclosure to cash subscribing unit holders of the numbers of units allocated without cash subscription or the identity of the unit holders - Further breach of trust by trustee in raising money against trust estate to "cash out" a unit holder which made no initial subscription of cash with distribution made against only 30 per cent of value of subscription constituted by undistributed profits - Director of unit trust company liable as having knowingly assisted breaches of trust - Tracing distributions in breach of trust used to pay down mortgages on the matrimonial homes of director's son and daughter and son-in-law, and director's matrimonial home - No tracing through overdrawn accounts - Tracing claim fails - No claim against children and son-in-law "in personam" because distribution "spent" immediately when paid into overdrawn mortgage account - Director's wife a knowing participant - No declaration of constructive trust relative to voluntary transfer to her of Director's share in matrimonial home - Not established that subject matter of transfer constituted traceable proceeds of the breach of trust - Payments in relief of mortgage on director's home not capable of being traced through overdrawn account.
ALLEGED BREACH OF TRUST BY TRUSTEE OF UNIT TRUST - Alleged breach of trust by trustee of unit trust - Plaintiff unit holder required to subscribe cash for units - Other unit holders allocated far larger numbers of units without cash subscription - Breach of trustee's duty to act impartially between beneficiaries - No disclosure to cash subscribing unit holders of the numbers of units allocated without cash subscription or the identity of the unit holders - Further breach of trust by trustee in raising money against trust estate to "cash out" a unit holder which made no initial subscription of cash with distribution made against only 30 per cent of value of subscription constituted by undistributed profits - Director of unit trust company liable as having knowingly assisted breaches of trust - Tracing distributions in breach of trust used to pay down mortgages on the matrimonial homes of director's son and daughter and son-in-law, and director's matrimonial home - No tracing through overdrawn accounts - Tracing claim fails - No claim against children and son-in-law "in personam" because distribution "spent" immediately when paid into overdrawn mortgage account - Director's wife a knowing participant - No declaration of constructive trust relative to voluntary transfer to her of Director's share in matrimonial home - Not established that subject matter of transfer constituted traceable proceeds of the breach of trust - Payments in relief of mortgage on director's home not capable of being traced through overdrawn account.
CONTRACT - RECEIVERSHIP - Claim for specific performance - Whether the parties intended to enter into a legally binding contract by signing an exit agreement to sell a half share of a property held in partnership - Relevance of post signature conduct - Whether damages be an appropriate remedy - Should the partnership be wound up and a receiver appointed.
CONTRACT - RECEIVERSHIP - Claim for specific performance - Whether the parties intended to enter into a legally binding contract by signing an exit agreement to sell a half share of a property held in partnership - Relevance of post signature conduct - Whether damages be an appropriate remedy - Should the partnership be wound up and a receiver appointed.