INCOME TAX (Cth) - Assessable income - Distributions to entities connected with private company - Loans treated as dividends under s 109D of Income Tax Assessment Act 1936 (Cth) ("ITAA 1936") - Where deed of settlement of discretionary trust required amounts set aside for any beneficiary to be held on separate trust - Where trustee made resolutions to set aside amounts of net income for corporate beneficiary - Where corporate beneficiary had unpaid present entitlements - Whether resolutions to set aside amounts effected distributions - Whether amounts set aside sufficiently certain for creation of separate trusts - Whether relationship of debtor and creditor arose between trustee and corporate beneficiary - Whether unpaid present entitlements were loans for purposes of s 109D(3) of ITAA 1936.
INCOME TAX (Cth) - Assessable income - Distributions to entities connected with private company - Loans treated as dividends under s 109D of Income Tax Assessment Act 1936 (Cth) ("ITAA 1936") - Where deed of settlement of discretionary trust required amounts set aside for any beneficiary to be held on separate trust - Where trustee made resolutions to set aside amounts of net income for corporate beneficiary - Where corporate beneficiary had unpaid present entitlements - Whether resolutions to set aside amounts effected distributions - Whether amounts set aside sufficiently certain for creation of separate trusts - Whether relationship of debtor and creditor arose between trustee and corporate beneficiary - Whether unpaid present entitlements were loans for purposes of s 109D(3) of ITAA 1936.
WORDS AND PHRASES - "admission of indebtedness", "advance of money", "corporate beneficiary", "debtor/creditor relationship", "deemed dividend", "discretionary object", "discretionary trust", "distribution", "financial accommodation", "in substance effects a loan of money", "loan", "loan of money", "making a loan", "net income", "obligation of repayment", "obligation to repay", "pending payment", "private company beneficiary", "repay", "same amount", "separate trust", "set aside", "time to pay", "unconditional duty to pay", "unpaid present entitlement".
Income Tax Assessment Act 1936 (Cth), ss 44(1), 95, 97, 109C, 109D, 109E, 109F, 109XA, 109XB, 109ZD.
Income Tax Assessment Act 1997 (Cth), ss 6-25, 104-55, 960-100(1).
TORT - False imprisonment - Defences - Where plaintiff detained under s 189(1) of the Migration Act 1958 (Cth) following visa cancellation - Where since 28 July 2022 there was no real prospect of plaintiff's removal from Australia becoming practicable in reasonably foreseeable future - Where in November 2023 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 reopened and overruled Al- Kateb v Godwin (2004) 219 CLR 562 - Where effect of NZYQ was that ss 189(1) and 196(1) of the *Migration Act *did not authorise plaintiff's detention from 28 July 2022 - Where Commonwealth accepted elements of tort of false imprisonment established - Where Commonwealth accepted it was vicariously liable for liability of detaining officer - Where Commonwealth propounded novel common law defence to negative liability from 28 July 2022 to time of orders in NZYQ on 8 November 2023 - Whether Commonwealth's defence should be recognised to negative common law liability of detaining officer for tort of false imprisonment.
TORT - False imprisonment - Defences - Where plaintiff detained under s 189(1) of the Migration Act 1958 (Cth) following visa cancellation - Where since 28 July 2022 there was no real prospect of plaintiff's removal from Australia becoming practicable in reasonably foreseeable future - Where in November 2023 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 reopened and overruled Al- Kateb v Godwin (2004) 219 CLR 562 - Where effect of NZYQ was that ss 189(1) and 196(1) of the *Migration Act *did not authorise plaintiff's detention from 28 July 2022 - Where Commonwealth accepted elements of tort of false imprisonment established - Where Commonwealth accepted it was vicariously liable for liability of detaining officer - Where Commonwealth propounded novel common law defence to negative liability from 28 July 2022 to time of orders in NZYQ on 8 November 2023 - Whether Commonwealth's defence should be recognised to negative common law liability of detaining officer for tort of false imprisonment.
CONSTITUTIONAL LAW - Judicial power - Where detaining officer reasonably understood statutory duty to be to keep plaintiff in immigration detention by reason of Al- Kateb - Whether protection of officer from liability would enhance respect for and compliance with law declared by High Court - Whether Queensland v Stradford (a pseudonym) (2025) 99 ALJR 396; 421 ALR 376 supported novel defence.
WORDS AND PHRASES - "agency", "bound to execute", "common law defence", "common law judicial immunity", "compliance with the law", "constitutional invalidity", "constitutional responsibility", "derivative liability", "detaining officer", "detention", "direct liability", "false imprisonment", "immunity", "institutional imperatives", "judicial independence and impartiality", "judicial power", "law enforcement privilege", "legal norm", "legislative power", "no real prospect of removal", "novel defence", "principle of legal equality", "purported performance", "reasonably foreseeable future", "rule of law", "separation of powers", "statutory duty", "unlawful non-citizen", "vicarious liability".
Constitution, Ch III.
Migration Act 1958 (Cth), ss 3A, 5, 189(1), 196(1), 198.
Public Service Act 1999 (Cth), ss 7, 13(4), 15.
Canadian Charter of Rights and Freedoms, s 24..
CONTRACT - Implied terms of cooperation - Implied obligation not to hinder or prevent the fulfilment of the purpose of express promise in agreement - Implied obligation to cooperate to allow contracting parties to have benefit of agreement - Contract for option to acquire shares and provision of draft shareholders' agreement - Whether judge erred in finding no breach of cooperation terms because shareholders' agreement inconsistent with express promise in contract subject to negotiation - Shareholders' agreement in final form when provided - No subsequent conduct evincing intention to comply with express promises in contract - Breach of cooperation terms established.
CONTRACT - Implied terms of cooperation - Implied obligation not to hinder or prevent the fulfilment of the purpose of express promise in agreement - Implied obligation to cooperate to allow contracting parties to have benefit of agreement - Contract for option to acquire shares and provision of draft shareholders' agreement - Whether judge erred in finding no breach of cooperation terms because shareholders' agreement inconsistent with express promise in contract subject to negotiation - Shareholders' agreement in final form when provided - No subsequent conduct evincing intention to comply with express promises in contract - Breach of cooperation terms established.
DAMAGES - Damages for breach of contract - Onus on plaintiff to prove loss resulted from breach - Causation a question of fact not law - 'But for' test as a negative criterion of causation - Counterfactual whether plaintiff would have entered into shareholders' agreement which was not inconsistent with contract - Caution in accepting evidence of plaintiff's belief as to what plaintiff would have done in hypothetical counterfactual - Objective facts more important - Judge correct to find causation not established - Leave to appeal granted - Appeal dismissed.
Bensons Property Group Pty Ltd v Key Infrastructure Australia Pty Ltd [2021] VSCA 69; Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd (1968) 120 CLR 516; [1969] HCA 64; Bennett v Minister for Community Welfare (1992) 176 CLR 408; [1992] HCA 27; Mulcahy & Co Accounting Services Pty Ltd v Porter [2025] VSCA 261; Hoyts Pty Ltd v Burns (2003) 201 ALR 470; [2003] HCA 61; Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55, applied.
CONTRACTS - Formation - Oral contracts - Contract to purchase legal practice of which respondent was appointed receiver, alleged to have been formed in discussion between parties - Whether associate judge erred in finding no agreement formed.
CONTRACTS - Formation - Oral contracts - Contract to purchase legal practice of which respondent was appointed receiver, alleged to have been formed in discussion between parties - Whether associate judge erred in finding no agreement formed.
EQUITY - Promissory estoppel - Whether associate judge erred in finding applicant suffered no material detriment in reliance on respondent's conduct - Whether applicant suffered detriment, including loss of opportunity.
APPEALS - Facts - Approach of appellate court to assessment of facts and inferences to be drawn from those facts - Appellate court to conduct 'real review' of evidence - Whether to apply 'glaringly improbable' standard of review in respect of findings of fact.
Lee v Lee (2019) 266 CLR 129; Fox v Percy (2003) 214 CLR 118; Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; Danbol Pty Ltd v Swiss Re International SE [2020] VSCA 274; Jones v Dunkel (1959) 101 CLR 298; Browne v Dunn (1893) 6 R 67, applied.
Tijong v Chang [2025] NSWCA 25; Watson v Foxman (1995) 49 NSWLR 315; Touma v Highfields Australia Pty Ltd [2024] NSWCA 160; Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), referred to.
LANDLORD AND TENANT - Application for leave to appeal - Rental agreement terminated - Goods left on property after termination - Owner (landlord) refusing to store goods for more than 14 days - Application to VCAT by administrator of estate of former tenant for order requiring owner to store goods for more than 14 days - VCAT order extending storage period by 21 days - Applicant dissatisfied with VCAT order - Application for leave to appeal to Trial Division from VCAT order refused by primary judge - Proposed appeal to Court of Appeal having no prospects of success - Application for leave to appeal totally without merit - Application for leave to appeal refused.
LANDLORD AND TENANT - Application for leave to appeal - Rental agreement terminated - Goods left on property after termination - Owner (landlord) refusing to store goods for more than 14 days - Application to VCAT by administrator of estate of former tenant for order requiring owner to store goods for more than 14 days - VCAT order extending storage period by 21 days - Applicant dissatisfied with VCAT order - Application for leave to appeal to Trial Division from VCAT order refused by primary judge - Proposed appeal to Court of Appeal having no prospects of success - Application for leave to appeal totally without merit - Application for leave to appeal refused.
Residential Tenancies Act 1997, ss 386, 395 and 401(a); Supreme Court Act 1986, ss 14C and 14D; Victorian Civil and Administrative Tribunal Act 1998, s 148.
CORPORATIONS - Oppression - Application for leave to appeal - Company undertook land acquisition and sale as trustee for family interests of Taing family (40%) and Lao family (60%) - Payments made from proceeds of sale to which recipients not entitled - Applicant, a member of Lao family, found responsible for payments from proceeds of sale - Payments found contrary to interests of the Company - Applicant held to have been responsible for ensuring payments checked and ensuring properly incurred - Whether trial judge mischaracterised applicant's role.
CORPORATIONS - Oppression - Application for leave to appeal - Company undertook land acquisition and sale as trustee for family interests of Taing family (40%) and Lao family (60%) - Payments made from proceeds of sale to which recipients not entitled - Applicant, a member of Lao family, found responsible for payments from proceeds of sale - Payments found contrary to interests of the Company - Applicant held to have been responsible for ensuring payments checked and ensuring properly incurred - Whether trial judge mischaracterised applicant's role.
CORPORATIONS - Oppression - Application for leave to appeal - Information about payments requested but not fully responded to by applicant - Whether applicant unfairly discriminated against respondent.
CORPORATIONS - Oppression - Whether respondent should have been denied relief because of delay.
Leave to appeal granted on grounds concerning applicant's role but otherwise refused - Appeal dismissed.
Corporations Act 2001 (Cth) ss 232, 233.
Vigliaroni v CPS Investments Holdings Pty Ltd [2009] VSC 428; Wain v Drapac [2012] VSC 156, discussed; House v The King (1936) 55 CLR 499, applied.
TAXATION - Duties on transfers of land - Land valuation - Transfers of two fee simple estates following exercise of call options at price of $1 each - Properties subject to existing 299-year leases - Where tenants installed substantial fixtures on leased premises - Assessment of unencumbered value of land under s 22 of Duties Act 2000 ('Duties Act') - Where leases 'disregarded' as Commissioner not satisfied that no collateral purpose to reduce duty - Where Commissioner considered s 22A not engaged or otherwise 'subject to' s 22(2) by reason of disregarding leases - Disregarding lease does not extend to disregarding tenant's property rights under s 154A of Property Law Act 1958 ('PLA') - Section 22A is engaged in relation to value of tenant's fixtures - Commissioner failed to consider state of satisfaction under s 22A(2) of Duties Act - Application for leave to appeal granted - Appeal dismissed - Valuer-General v AWF Prop Co 2 Pty Ltd (2021) 65 VR 327; Chief Commissioner of State Revenue v Centro (CPL) Ltd (2011) 81 NSWLR 462; Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd (2002) 209 CLR 651; Trust Co Ltd v Chief Commissioner of State Revenue (NSW) (2007) 70 ATR 505, considered.
TAXATION - Duties on transfers of land - Land valuation - Transfers of two fee simple estates following exercise of call options at price of $1 each - Properties subject to existing 299-year leases - Where tenants installed substantial fixtures on leased premises - Assessment of unencumbered value of land under s 22 of Duties Act 2000 ('Duties Act') - Where leases 'disregarded' as Commissioner not satisfied that no collateral purpose to reduce duty - Where Commissioner considered s 22A not engaged or otherwise 'subject to' s 22(2) by reason of disregarding leases - Disregarding lease does not extend to disregarding tenant's property rights under s 154A of Property Law Act 1958 ('PLA') - Section 22A is engaged in relation to value of tenant's fixtures - Commissioner failed to consider state of satisfaction under s 22A(2) of Duties Act - Application for leave to appeal granted - Appeal dismissed - Valuer-General v AWF Prop Co 2 Pty Ltd (2021) 65 VR 327; Chief Commissioner of State Revenue v Centro (CPL) Ltd (2011) 81 NSWLR 462; Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd (2002) 209 CLR 651; Trust Co Ltd v Chief Commissioner of State Revenue (NSW) (2007) 70 ATR 505, considered.
REAL PROPERTY - Fixtures - Tenant's fixtures - Whether 'tenant's fixtures' within meaning of s 22A of Duties Act and s 154A of PLA must be removable without being destroyed and without material injury to leased premises - Construction not supported by language of s 154A.
REAL PROPERTY - Fixtures - Tenant's fixtures - Whether leases 'otherwise' provide for purposes of s 154A of PLA - Tenant's statutory ownership rights over tenant's fixtures not affected to extent leases otherwise provide - Valuer-General v AWF Prop Co 2 Pty Ltd (2021) 65 VR 327, referred to.
TAXATION - Land valuation - Unencumbered value - Whether leases and call options 'encumbrances' within meaning of Duties Act, ss 20(1) and 22(1) - Leases not encumbrances - Call options spent at time of entry into relevant contract of sale - s 22A Duties Act engaged in any event - Commissioner of State Revenue (Vic) v Bradney Pty Ltd (1996) 34 ATR 233, applied - Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226, considered.
Duties Act 2000, ss 20, 22, 22A.
Property Law Act 1958, s 154A.
CRIMINAL LAW - Appeal - Sentence - Culpable driving causing death - Refuse preliminary breath test - Whether individual sentences, orders for cumulation, total effective sentence and non-parole period manifestly excessive - Driving under influence of alcohol and methylamphetamine - Driving at excessive speeds across multiple lanes of traffic - Collision with another vehicle - Failure to stop - Driving through multiple red lights - Collision with another vehicle - Passenger in other vehicle killed - Sentence of 13 years highest in Victoria for culpable driving causing death - Standard sentence scheme - Current sentencing practices - General deterrence - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Culpable driving causing death - Refuse preliminary breath test - Whether individual sentences, orders for cumulation, total effective sentence and non-parole period manifestly excessive - Driving under influence of alcohol and methylamphetamine - Driving at excessive speeds across multiple lanes of traffic - Collision with another vehicle - Failure to stop - Driving through multiple red lights - Collision with another vehicle - Passenger in other vehicle killed - Sentence of 13 years highest in Victoria for culpable driving causing death - Standard sentence scheme - Current sentencing practices - General deterrence - Leave to appeal granted - Appeal dismissed.
CRIMINAL LAW - Appeal - Non-parole period - Sentencing judge incorrectly informed non-parole period to be at least 70 per cent of total effective sentence - Sentencing Act 1991, s 11A(4) - Material error in sentence - Sentencing discretion re-opened - Appeal allowed - Reduced non-parole period fixed.
Crimes Act 1958, s 318(1); Criminal Procedure Act 2009, ss 280(1)(a), 281(1), 282(1); Road Safety Act 1986, s 49(1)(c); Sentencing Act 1991, ss 5B(2), 11A(4)-(5).
Hennessey v The King (2024) 106 MVR 220; [2024] VSCA 2; Singh v The Queen (2022) 301 A Crim R 265; Cayzer v The King [2025] VSCA 293; R v Kilic (2016) 259 CLR 256, discussed; R v Whyte (2002) 55 NSWLR 252; Director of Public Prosecutions v Neethling (2009) 22 VR 466; R v Beary (2004) 11 VR 151; Pasznyk v The Queen (2014) 43 VR 169, referred to.
CRIMINAL LAW - Appeal - Application for leave to appeal against conviction - Applicant convicted of trafficking and possessing drugs of dependence - Applicant's DNA found on clip seal region of bags containing drugs - Crime scene compromised by police - Possibility of secondary transfer of applicant's DNA could not be eliminated - Whether DNA evidence correctly admitted - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Application for leave to appeal against conviction - Applicant convicted of trafficking and possessing drugs of dependence - Applicant's DNA found on clip seal region of bags containing drugs - Crime scene compromised by police - Possibility of secondary transfer of applicant's DNA could not be eliminated - Whether DNA evidence correctly admitted - Application for leave to appeal refused.
DPP v Paulino (2017) 54 VR 109; DPP v Wise (a pseudonym) [2016] VSCA 173; R v Joyce (2002) 173 FLR 322; R v GZ [2015] ACTSC 229, discussed.
CRIMINAL LAW - Appeal - Application for leave to appeal against conviction - Applicant requested direction that prosecution required to exclude reasonable possibility that drugs in exclusive possession of another person - Judge refused request - Whether 'good reason' for refusal - Application for leave to appeal refused.
Jury Directions Act 2015, ss 6, 12, 14.
R v GNN (2000) 78 SASR 293; R v Filippetti (1978) 13 A Crim R 335; R v Wood (2017) 131 SASR 291; R v Baftiroski [2018] SASCFC 83; R v Saleh [2017] SASCFC 75; Kennedy v Western Australia [2021] WASCA 55, discussed.
R v Dib (1991) 52 A Crim R 64; Guerin v The Queen [1992] FCA 847; R v Amanatidis (2001) 125 A Crim R 89; Jackwitz v The Queen [2006] NSWCCA 419, referred to.
CRIMINAL LAW - Sentence - Application for extension of time and leave to appeal - Aggravated recklessly exposing emergency worker to risk by driving - Sentence of 21 months' imprisonment - Whether manifestly excessive - Gravity of offending not high - Unusually powerful factors in mitigation - Both Verdins and Bugmy principles apply - Prisoner's experience of custody 'far worse' than for prisoners in general - Application for extension of time granted - Leave to appeal granted - Appeal allowed - Resentenced to 13 months' imprisonment on charge 3 - Resulting total effective sentence of 2 years' imprisonment - Inappropriate to fix non-parole period.
CRIMINAL LAW - Sentence - Application for extension of time and leave to appeal - Aggravated recklessly exposing emergency worker to risk by driving - Sentence of 21 months' imprisonment - Whether manifestly excessive - Gravity of offending not high - Unusually powerful factors in mitigation - Both Verdins and Bugmy principles apply - Prisoner's experience of custody 'far worse' than for prisoners in general - Application for extension of time granted - Leave to appeal granted - Appeal allowed - Resentenced to 13 months' imprisonment on charge 3 - Resulting total effective sentence of 2 years' imprisonment - Inappropriate to fix non-parole period.
Sentencing Act 1991, s 11; Crimes Act 1958, s 317AF(1)(a).
Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269, applied.
CRIMINAL LAW - Conviction - Appeal - Application for leave to bring second appeal - Applicant convicted of murdering his mother - New evidence alleged to support hypothesis that prosecution witness murdered deceased and engaged in elaborate scheme to frame applicant - Requirement for new evidence to be fresh and compelling - New evidence not fresh and compelling - Applicant's hypotheses about prosecution witness fanciful - Application for leave to appeal refused.
CRIMINAL LAW - Conviction - Appeal - Application for leave to bring second appeal - Applicant convicted of murdering his mother - New evidence alleged to support hypothesis that prosecution witness murdered deceased and engaged in elaborate scheme to frame applicant - Requirement for new evidence to be fresh and compelling - New evidence not fresh and compelling - Applicant's hypotheses about prosecution witness fanciful - Application for leave to appeal refused.
Criminal Procedure Act 2009, ss 326A and 326C.
Roberts v The Queen (2020) 60 VR 431, applied.
CRIMINAL LAW - Evidence obtained illegally and/or improperly - Judge refused to exclude evidence under s 138(1) of the Evidence Act 2008 - Applications for leave to appeal interlocutory decision - Applicant (Benson) suffered injury and resulting memory loss after falling off electric scooter - Police conducted unauthorised search of applicant's (Benson's) phone to determine whether he was the victim of a crime - Photographs relevant to possible offending on phone - Whether evidence obtained illegally and/or improperly - Whether desirability of admitting evidence outweighs undesirability of admitting evidence obtained as a result of unauthorised search - Probative value of evidence high - Gravity of illegality and/or impropriety low - Judge correctly refused to exclude evidence - Applications for leave to appeal refused.
CRIMINAL LAW - Evidence obtained illegally and/or improperly - Judge refused to exclude evidence under s 138(1) of the Evidence Act 2008 - Applications for leave to appeal interlocutory decision - Applicant (Benson) suffered injury and resulting memory loss after falling off electric scooter - Police conducted unauthorised search of applicant's (Benson's) phone to determine whether he was the victim of a crime - Photographs relevant to possible offending on phone - Whether evidence obtained illegally and/or improperly - Whether desirability of admitting evidence outweighs undesirability of admitting evidence obtained as a result of unauthorised search - Probative value of evidence high - Gravity of illegality and/or impropriety low - Judge correctly refused to exclude evidence - Applications for leave to appeal refused.
Evidence Act 2008, s 138.
Charter of Human Rights and Responsibilities Act 2006, ss 13 and 38.
CRIMINAL LAW - Sentence - Application for leave to appeal - Causing injury recklessly (1 charge) - Common law assault (1 charge) - Make threat to destroy property (1 charge) - Make threat to kill (1 charge) - Family violence context to offending - Pleaded guilty to damaging property (1 charge) - Sentence imposed following a trial - TES 7 years and 3 months imprisonment NPP of 3 years and 9 months - Whether sentence and cumulation manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Causing injury recklessly (1 charge) - Common law assault (1 charge) - Make threat to destroy property (1 charge) - Make threat to kill (1 charge) - Family violence context to offending - Pleaded guilty to damaging property (1 charge) - Sentence imposed following a trial - TES 7 years and 3 months imprisonment NPP of 3 years and 9 months - Whether sentence and cumulation manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Five charges of dangerous driving causing death - Total effective sentence of 5 years and 6 months' imprisonment - Non-parole period of 3 years - Whether individual sentences, orders for cumulation and total effective sentence manifestly inadequate - Inherently dangerous intersection - Warning signs prior to intersection - Respondent not alcohol or drug-affected at time of offence - Not speeding - Dangerously inattentive for at least 375 metres - No prior convictions - Early guilty pleas - Serious mental illness - Verdins limbs 3, 5 and 6 found below and not challenged - Individual sentences and cumulation within range - Appeal dismissed.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Five charges of dangerous driving causing death - Total effective sentence of 5 years and 6 months' imprisonment - Non-parole period of 3 years - Whether individual sentences, orders for cumulation and total effective sentence manifestly inadequate - Inherently dangerous intersection - Warning signs prior to intersection - Respondent not alcohol or drug-affected at time of offence - Not speeding - Dangerously inattentive for at least 375 metres - No prior convictions - Early guilty pleas - Serious mental illness - Verdins limbs 3, 5 and 6 found below and not challenged - Individual sentences and cumulation within range - Appeal dismissed.
Clarkson v The Queen (2011) 32 VR 361; Young v The Queen [2016] VSCA 14; House v The King (1936) 55 CLR 499; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, applied.
R v Verdins (2007) 16 VR 269; DPP v Oates (2007) 47 MVR 483; DPP v Neethling (2009) 22 VR 466; R v Towle (2009) 54 MVR 543; R v Scott (2003) 39 MVR 166, considered.
DPP v Solomon (2002) 36 MVR 425, distinguished.
CRIMINAL LAW - Sentence - Appeal against inadequacy of sentence - Negligently causing serious injury - Driving motor vehicle - Respondent drove whilst intoxicated - Respondent drove through red lights causing collision - Other driver suffered serious injuries - High level of negligence - Sentence of 12 months' imprisonment and 2-year community correction order imposed - Whether sentence manifestly inadequate - Appeal allowed - Respondent resentenced.
CRIMINAL LAW - Sentence - Appeal against inadequacy of sentence - Negligently causing serious injury - Driving motor vehicle - Respondent drove whilst intoxicated - Respondent drove through red lights causing collision - Other driver suffered serious injuries - High level of negligence - Sentence of 12 months' imprisonment and 2-year community correction order imposed - Whether sentence manifestly inadequate - Appeal allowed - Respondent resentenced.
Sentencing Act 1991, s 5.
Harrison v The Queen (2015) 49 VR 619; Di Gregorio v The King [2025] VSCA 103; DPP v Barry (2017) 82 MVR 448; DPP v Karazisis (2010) 31 VR 634; DPP v Tawdros [2026] VSCA 74; Gurovski v The Queen (2018) 83 MVR 333, considered.
DPP v Weybury (2018) 84 MVR 153; Sutic v The Queen [2018] VSCA 246; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; CMB v AG (NSW) (2015) 256 CLR 346; DPP v Haynes [2022] VCC 59; DPP v Nita [2023] VCC 134; DPP v Rayment [2023] VCC 524; DPP v Gatelein [2018] VCC 1736; Da Costa v The Queen (2016) 307 FLR 153; Buckley v The Queen (2022) 101 MVR 84; Stocks v The Queen (2017) 80 MVR 326, referred to.
CRIMINAL LAW - Sentence - Appeal by Director of Public Prosecutions - Charges of rape, sexual assault and producing child pornography - Respondent offended against unconscious housemate during six episodes over two years - Respondent filmed offending and retained recordings - Respondent to be sentenced as a serious sexual offender for five charges - Final charge of rape attracted standard sentence provisions - Total effective sentence of 3 years and 6 months' imprisonment - Non-parole period of 2 years - Whether sentences and non-parole period manifestly inadequate - Whether residual discretion should be exercised - Appeal allowed - Respondent resentenced - Delay a significant factor in resentencing exercise.
CRIMINAL LAW - Sentence - Appeal by Director of Public Prosecutions - Charges of rape, sexual assault and producing child pornography - Respondent offended against unconscious housemate during six episodes over two years - Respondent filmed offending and retained recordings - Respondent to be sentenced as a serious sexual offender for five charges - Final charge of rape attracted standard sentence provisions - Total effective sentence of 3 years and 6 months' imprisonment - Non-parole period of 2 years - Whether sentences and non-parole period manifestly inadequate - Whether residual discretion should be exercised - Appeal allowed - Respondent resentenced - Delay a significant factor in resentencing exercise.
Sentencing Act 1991, ss 5A-5B, 6A-6D, 11A.
DPP v Karazisis (2010) 31 VR 634; Polat [2020] VSCA 174, applied.
Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269, referred to.
CRIMINAL LAW - Conviction - Application for extension of time within which to seek leave to appeal against conviction - Intentionally causing serious injury in circumstances of gross violence - Whether not accommodating applicant's acquired brain injury caused trial to miscarry - Whether opinion evidence led from informant caused trial to miscarry - Whether body-worn camera footage wrongly admitted into evidence - Proposed grounds of appeal not reasonably arguable - Application for extension of time refused.
CRIMINAL LAW - Conviction - Application for extension of time within which to seek leave to appeal against conviction - Intentionally causing serious injury in circumstances of gross violence - Whether not accommodating applicant's acquired brain injury caused trial to miscarry - Whether opinion evidence led from informant caused trial to miscarry - Whether body-worn camera footage wrongly admitted into evidence - Proposed grounds of appeal not reasonably arguable - Application for extension of time refused.
CRIMINAL LAW - Appeal - Conviction - Aggravated home invasion and causing injury intentionally - Trial run on narrow basis - Dispute as to whether applicant entered home and participated in aggravated home invasion - Co-accused - Reliability and credibility of witness - Primary witness described three then four offenders in house - Whether verdict unreasonable or cannot be supported having regard to evidence - Witness explanation plausible - Triple zero call by other witness described four offenders in house - Primary witness' evidence credible and reliable - Strong circumstantial evidence linking applicant with offending - Ample evidence to find applicant guilty - Leave to appeal refused.
CRIMINAL LAW - Appeal - Conviction - Aggravated home invasion and causing injury intentionally - Trial run on narrow basis - Dispute as to whether applicant entered home and participated in aggravated home invasion - Co-accused - Reliability and credibility of witness - Primary witness described three then four offenders in house - Whether verdict unreasonable or cannot be supported having regard to evidence - Witness explanation plausible - Triple zero call by other witness described four offenders in house - Primary witness' evidence credible and reliable - Strong circumstantial evidence linking applicant with offending - Ample evidence to find applicant guilty - Leave to appeal refused.
Holland v The King [2025] VSCA 5, applied.
CRIMINAL LAW - Sentence - Application for extension of time in which to file application for leave to appeal - Applicant pleaded guilty to attempted possession of commercial quantity of unlawfully imported border-controlled drug (methamphetamine) - Sentenced to 5 years' imprisonment with two years, six months' non-parole - Sentencing judge not informed that applicant not Australian citizen and would have his visa cancelled as consequence of sentence - Applicant submitted sentencing discretion miscarried - Applicant sought to rely on further evidence of his migration status - No reasonable prospect that a different sentence would be imposed - Application for extension of time refused.
CRIMINAL LAW - Sentence - Application for extension of time in which to file application for leave to appeal - Applicant pleaded guilty to attempted possession of commercial quantity of unlawfully imported border-controlled drug (methamphetamine) - Sentenced to 5 years' imprisonment with two years, six months' non-parole - Sentencing judge not informed that applicant not Australian citizen and would have his visa cancelled as consequence of sentence - Applicant submitted sentencing discretion miscarried - Applicant sought to rely on further evidence of his migration status - No reasonable prospect that a different sentence would be imposed - Application for extension of time refused.
Criminal Code 1995 (Cth) ss 11.1(1), 307.5(1); Crimes Act 1914 (Cth) s 16A(1); Migration Act 1958 (Cth) s 501.
R v Nguyen and Tran [1998] 4 VR 394; Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79; Akot v The Queen [2020] VSCA 55; DPP v Reynolds (2022) 71 VR 336; Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; R v Nguyen (2010) 205 A Crim R 106; R v Pang (1999) 105 A Crim R 474; R v Stanbouli (2003) 141 A Crim R 531, discussed.
CRIMINAL LAW - Sentence - Application for leave to appeal - Sexual penetration of a child under 12 - Sexual penetration of a child under 16 - Sexual assault of a child - Sexual activity in the presence of a child - Sentence imposed following a trial - TES 12 years and 6 months imprisonment NPP 8 years and 6 months - Lifelong reporting conditions on the sex offenders' registry - Whether court erred in considering aggravating features of the offending - Whether sentence and cumulation manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal - Sexual penetration of a child under 12 - Sexual penetration of a child under 16 - Sexual assault of a child - Sexual activity in the presence of a child - Sentence imposed following a trial - TES 12 years and 6 months imprisonment NPP 8 years and 6 months - Lifelong reporting conditions on the sex offenders' registry - Whether court erred in considering aggravating features of the offending - Whether sentence and cumulation manifestly excessive - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Applicant convicted of attempted aggravated carjacking, intentionally causing injury and theft - Applicant suffers from several mental health conditions - Applicant on bridging visa at time of offending - Sentence moderated by Verdins principles - Whether judge failed to consider burden of imprisonment owing to prospect of mandatory deportation - Whether individual sentences for attempted aggravated carjacking and intentionally causing injury manifestly excessive - Leave to appeal refused.
CRIMINAL LAW - Sentence - Application for leave to appeal against sentence - Applicant convicted of attempted aggravated carjacking, intentionally causing injury and theft - Applicant suffers from several mental health conditions - Applicant on bridging visa at time of offending - Sentence moderated by Verdins principles - Whether judge failed to consider burden of imprisonment owing to prospect of mandatory deportation - Whether individual sentences for attempted aggravated carjacking and intentionally causing injury manifestly excessive - Leave to appeal refused.
R v Verdins (2007) 16 VR 269; Guden v The Queen [2010] VSCA 196, referred to.
CRIMINAL LAW - Application for leave to appeal sentence - Attempted armed robbery and possession of imitation firearm - Total effective sentence of 3 years and 6 months' imprisonment - Whether sentence manifestly excessive by reason of giving insufficient weight to principles of totality and parity - No substance in parity submission - Significance of time in custody not able to be declared as pre-sentence detention - Total time in custody to be factored into the sentencing synthesis - Judge fully aware of all relevant offending and sentences - Leave to appeal refused.
CRIMINAL LAW - Application for leave to appeal sentence - Attempted armed robbery and possession of imitation firearm - Total effective sentence of 3 years and 6 months' imprisonment - Whether sentence manifestly excessive by reason of giving insufficient weight to principles of totality and parity - No substance in parity submission - Significance of time in custody not able to be declared as pre-sentence detention - Total time in custody to be factored into the sentencing synthesis - Judge fully aware of all relevant offending and sentences - Leave to appeal refused.
Seiler v The King (2023) 70 VR 243; [2023] VSCA 171, considered; Nguyen v The King [2025] VSCA 3, applied.
RESTITUTION - Quantum meruit - Domestic building contract with divisible stages and equal instalments due upon the completion of each stage - Builder sought to recover fair value for partially completed stages - Amount of contractual entitlement to payment on completion of a stage is a 'cap' on amount recoverable, not a substitute for assessing the value of work done - Quantum meruit different to contractual damages - Builder's evidence incapable of establishing value of the work done for which there was no contractual entitlement to payment - Not in interests of justice to remit matter to Tribunal to allow builder to re-run case on different evidence - Leave to appeal refused - Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; South Australian Harbors Board v South Australian Gas Co (1934) 51 CLR 485; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, considered; University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481, followed.
RESTITUTION - Quantum meruit - Domestic building contract with divisible stages and equal instalments due upon the completion of each stage - Builder sought to recover fair value for partially completed stages - Amount of contractual entitlement to payment on completion of a stage is a 'cap' on amount recoverable, not a substitute for assessing the value of work done - Quantum meruit different to contractual damages - Builder's evidence incapable of establishing value of the work done for which there was no contractual entitlement to payment - Not in interests of justice to remit matter to Tribunal to allow builder to re-run case on different evidence - Leave to appeal refused - Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; South Australian Harbors Board v South Australian Gas Co (1934) 51 CLR 485; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, considered; University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481, followed.
CONTRACT - Domestic building contract - Side agreement for cash payments of part of contract price - Statutory prohibition on builder retaining amounts contrary to Domestic Building Contracts Act 1995, s 40(2) - Tribunal's power to order restitution under s 53(2)(b)(iii) not at large - Builder ordered to repay amounts already paid under side agreement - Leave on cross-appeal ground allowed - Leave to appeal refused - Stephens v Cameron (2021) 65 VR 117, applied; Imerva Corporation Pty Ltd v Kuna [2017] VSCA 168, distinguished.
APPEALS - Question of law - Section 148 of Victorian Civil and Administrative Tribunal Act 1998 - Proposed ground alleging error in Tribunal's findings concerning termination of contract was not on a question of law - No jurisdiction to entertain that ground of proposed cross-appeal - Chief Commissioner of Police (Vic) v Crupi (2023) 72 VR 280; Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, applied; Stojanovski v Australian Dream Homes Pty Ltd [2015] VSC 404, distinguished.
Domestic Building Contracts Act 1995, ss 3(1), 40(1), 40(2), 40(4), 53(2)(b)(iii), 133.
Victorian Civil and Administrative Tribunal Act 1998, s 148.
CONSTITUTIONAL LAW - Inconsistency of laws - Whether s 109 inconsistency arises between ss 28M, 28O and 28R(1)-(5) of Building and Construction Industry Security of Payment Act 2002 ('SOP Act') and ss 18, 232, 234, 236 and/or 237 of Australian Consumer Law ('ACL') - Where respondent obtained judgment against applicant on basis of adjudication certificate under SOP Act - Where applicant claims that SOP Act provisions impaired its 'rights' to raise an ACL claim - Whether SOP Act provisions vary, detract from, or impair federal law - SOP Act creates novel statutory right separate and distinct from ACL rights - Rights operate concurrently - Application for leave to appeal granted - Appeal dismissed.
CONSTITUTIONAL LAW - Inconsistency of laws - Whether s 109 inconsistency arises between ss 28M, 28O and 28R(1)-(5) of Building and Construction Industry Security of Payment Act 2002 ('SOP Act') and ss 18, 232, 234, 236 and/or 237 of Australian Consumer Law ('ACL') - Where respondent obtained judgment against applicant on basis of adjudication certificate under SOP Act - Where applicant claims that SOP Act provisions impaired its 'rights' to raise an ACL claim - Whether SOP Act provisions vary, detract from, or impair federal law - SOP Act creates novel statutory right separate and distinct from ACL rights - Rights operate concurrently - Application for leave to appeal granted - Appeal dismissed.
Birdon Pty Ltd v Houben Marine Pty Ltd (2011) 197 FCR 25; Momcilovic v The Queen (2011) 245 CLR 1, applied.
Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd (2016) 337 ALR 452, distinguished.
Bitannia Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9, discussed.
Bell Group NV (in liq) v Western Australia (2016) 260 CLR 500; Saville v Hallmarc Construction Pty Ltd (2015) 47 VR 177; Black Label Developments Pty Ltd v McMenemy [2025] NSWCA 114, referred to.
Building and Construction Industry Security of Payment Act 2002, ss 25R, 28M, 28O, 28R. Commonwealth Constitution, s 109.
Competition and Consumer Act 2010 (Cth), s 131C, sch 1 (Australian Consumer Law) ss 18, 232, 234, 236, 237.
BUILDING AND CONSTRUCTION - Adjudication determinations - Where obligation to pay adjudicated amount under s 28M(2)(a) of SOP Act runs from date when a copy of the adjudication determination is given under s 23A - Where adjudication determination corrected under s 24 of SOP Act - Where adjudication determination defined to mean a determination made under s 23 - Adjudication determination does not extend to a determination which is corrected - Time runs from date that (original) adjudication determination given.
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, discussed.
Building and Construction Industry Security of Payment Act 2002, ss 23, 23A, 24, 28M.
BUILDING AND CONSTRUCTION - Judgment entered on basis of adjudication certificate under SOP Act - Procedural fairness - Where judgment entered ex parte against applicant with no opportunity to be heard on applicant's ACL claim - Right to bring ACL claim incapable of affecting right to enter judgment under SOP Act - No realistic possibility of different outcome - No failure to accord procedural fairness.
Nathanson v Minister for Home Affairs (2022) 276 CLR 80, referred to.
CONSUMER LAW - Misleading or deceptive conduct - Whether supplier of digital services made representations about retailer integration model - Whether representations as pleaded made - Necessary to identify with precision when representations made - Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 277 CLR 186, applied - Australian Consumer Law, ss 18, 29.
CONSUMER LAW - Misleading or deceptive conduct - Whether supplier of digital services made representations about retailer integration model - Whether representations as pleaded made - Necessary to identify with precision when representations made - Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 277 CLR 186, applied - Australian Consumer Law, ss 18, 29.
CONSUMER LAW - Misleading or deceptive conduct - Whether reasonable grounds for representations as to future matters - Reasonable grounds established by alleged representor's experience and expertise - Kytec Pty Ltd v ProLearn Corporation Pty Ltd [2024] VSCA 23, applied - Australian Consumer Law, s 4.
CONTRACT - Contract plea - No claim pleaded or relief sought based on restitution - Trial not conducted on basis of a claim in restitution - Contract claim not pressed in closing - Whether total or partial failure of consideration - Whether contract an entire contract - Contract one for provision of digital systems and services - Contract monthly fee not attributable to particular systems or services - Substantial element of what was due under contract provided - No total or partial failure of consideration - Goss v Chilcott [1996] AC 788, considered - Baltic Shipping Co v Dillon (1993) 176 CLR 344, Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516, applied.
EQUITY - Judicial advice -Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 54.02 - 'Beddoe Application': In re Beddoe, Downes v Cottam [1893] 1 Ch 547 - Jurisdiction of the court to provide advice - Factors relevant to discretion to provide advice - Degree of satisfaction required before the court should give advice - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; Hopkins v Edwards (2020) 20 ASTLR 329; Re Care Super Pty Ltd [2021] VSC 805, applied - Discretion exercised not to give judicial advice.
EQUITY - Judicial advice -Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 54.02 - 'Beddoe Application': In re Beddoe, Downes v Cottam [1893] 1 Ch 547 - Jurisdiction of the court to provide advice - Factors relevant to discretion to provide advice - Degree of satisfaction required before the court should give advice - Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; Hopkins v Edwards (2020) 20 ASTLR 329; Re Care Super Pty Ltd [2021] VSC 805, applied - Discretion exercised not to give judicial advice.
CORPORATIONS - Insolvency - Corporations Act 2001 (Cth) - s 588G - Insolvent trading - Undefended - s 588G(1) - Whether debts incurred when company insolvent - Whether reasonable grounds to suspect insolvency - s 588G(2) - Whether director aware of grounds to suspect insolvency - Whether reasonable person in like position would suspect insolvency - Failure to keep financial records as required by s 286(1) - Failure to retain financial records for 7 year period as required by s 286(2) - Presumption of insolvency under s 588E(4) enlivened - Actual insolvency under s 95A found - Reasonable grounds for suspecting insolvency found - s 588M - Order for compensation for loss suffered by creditors - Award of pre-judgment interest under s 58 of the Supreme Court Act 1986 (Vic) - Where 'good cause' to reduce award of interest where significant and unexplained delay between letter of demand and commencement of proceeding.
CORPORATIONS - Insolvency - Corporations Act 2001 (Cth) - s 588G - Insolvent trading - Undefended - s 588G(1) - Whether debts incurred when company insolvent - Whether reasonable grounds to suspect insolvency - s 588G(2) - Whether director aware of grounds to suspect insolvency - Whether reasonable person in like position would suspect insolvency - Failure to keep financial records as required by s 286(1) - Failure to retain financial records for 7 year period as required by s 286(2) - Presumption of insolvency under s 588E(4) enlivened - Actual insolvency under s 95A found - Reasonable grounds for suspecting insolvency found - s 588M - Order for compensation for loss suffered by creditors - Award of pre-judgment interest under s 58 of the Supreme Court Act 1986 (Vic) - Where 'good cause' to reduce award of interest where significant and unexplained delay between letter of demand and commencement of proceeding.
CORPORATIONS - Insolvency - Application to remove liquidator - Whether liquidator has adequately investigated company's affairs - Whether liquidator has failed to advance the liquidation - No credible basis for removal of liquidator - Corporations Act 2001 (Cth) - Insolvency Practice Schedule (Corporations), s 90-15 - Re Gemwood Pty Ltd (in liq) [2025] VSC 819, applied.
CORPORATIONS - Insolvency - Application to remove liquidator - Whether liquidator has adequately investigated company's affairs - Whether liquidator has failed to advance the liquidation - No credible basis for removal of liquidator - Corporations Act 2001 (Cth) - Insolvency Practice Schedule (Corporations), s 90-15 - Re Gemwood Pty Ltd (in liq) [2025] VSC 819, applied.
CORPORATIONS - Voluntary winding up - Whether it is appropriate to appoint a special purpose liquidator - Insufficient evidence of external funding of special purpose liquidator - Insufficient evidence that members will not be adversely affected by the proposed appointment - Appointment not just and beneficial - Corporations Act 2001 (Cth) - Insolvency Practice Schedule (Corporations), ss 90-15, 90-20 - Ligon 158 Pty Ltd (in liq) v Shield Holdings Australia Pty Ltd (in liq) (Special Purpose Liquidator) [2025] FCA 3, applied - Re Aus Streaming (in liq) [2020] VSC 313, applied.
CONTRACT - Whether common law right to terminate excluded by contractual show cause termination process - Contract permitted the plaintiff to terminate for 'substantial breach' following a show cause process - Plaintiff did not follow that process and purported to terminate at common law - Proper construction of contract required the Plaintiff to follow the contractual termination process except in cases of repudiation by 'renunciation' - Aggressive and threatening behaviour by Defendant constituted renunciation - Termination by Plaintiff therefore valid - Concut Pty Ltd v Worrell (2000) 75 ALJR 312; [2000] HCA 64, applied; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, applied; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, applied; Shevill v Builders Licensing Board (1982) 149 CLR 620, applied; Amann Aviation Pty Ltd v Commonwealth of Australia (1990) 22 FCR 527, discussed.
CONTRACT - Whether common law right to terminate excluded by contractual show cause termination process - Contract permitted the plaintiff to terminate for 'substantial breach' following a show cause process - Plaintiff did not follow that process and purported to terminate at common law - Proper construction of contract required the Plaintiff to follow the contractual termination process except in cases of repudiation by 'renunciation' - Aggressive and threatening behaviour by Defendant constituted renunciation - Termination by Plaintiff therefore valid - Concut Pty Ltd v Worrell (2000) 75 ALJR 312; [2000] HCA 64, applied; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, applied; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, applied; Shevill v Builders Licensing Board (1982) 149 CLR 620, applied; Amann Aviation Pty Ltd v Commonwealth of Australia (1990) 22 FCR 527, discussed.
LANDLORD AND TENANT - Lease or licence - Test - Right to exclusive possession - Oral agreement - Whether essential features of lease are made out - No sufficient certainty of terms of lease - No right to exclusive possession - Occupancy arrangement a contractual licence - Lewis v Bell (1985) 1 NSWLR 731 - United Petroleum Pty Ltd v Pentaco Oil (Aust) Pty Ltd [2016] FCA 118 - Pirie v Saunders (1961) 104 CLR 149 - BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 - Swan v Uecker (2016) 50 VR 74 - Radaich v Smith (1959) 101 CLR 209 - Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132 - Leadenhall Residential 2 Ltd v Sterling (CA) [2002] 1 WLR 499 - Stewart v Watts (Secretary of State for Communities and Local Government and others intervening) [2018] Ch 423 - Living and Leisure Australia Ltd v Commissioner of State Revenue [2017] VSC 675 - Western Australia v Ward (2002) 213 CLR 1.
LANDLORD AND TENANT - Lease or licence - Test - Right to exclusive possession - Oral agreement - Whether essential features of lease are made out - No sufficient certainty of terms of lease - No right to exclusive possession - Occupancy arrangement a contractual licence - Lewis v Bell (1985) 1 NSWLR 731 - United Petroleum Pty Ltd v Pentaco Oil (Aust) Pty Ltd [2016] FCA 118 - Pirie v Saunders (1961) 104 CLR 149 - BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 - Swan v Uecker (2016) 50 VR 74 - Radaich v Smith (1959) 101 CLR 209 - Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132 - Leadenhall Residential 2 Ltd v Sterling (CA) [2002] 1 WLR 499 - Stewart v Watts (Secretary of State for Communities and Local Government and others intervening) [2018] Ch 423 - Living and Leisure Australia Ltd v Commissioner of State Revenue [2017] VSC 675 - Western Australia v Ward (2002) 213 CLR 1.
CONSUMER LAW - Misleading or deceptive conduct - Alleged representations that sub-lease would be granted - Evidence insufficient to establish representations occurred - Degree of persuasion required not established - No reliance - Competition and Consumer Act 2010 (Cth) sch 2 s 18 - Watson v Foxman (1995) 49 NSWLR 315 - Monland Pty Ltd v Oman [2026] VSC 240.
EVIDENCE - Oral evidence - Documentary evidence - Fallibility of memory - Documentary evidence to be preferred - Monland Pty Ltd v Oman [2026] VSC 240 - LL Up Pty Ltd v Kegland Distribution Pty Ltd [2024] VSC 651.
PRACTICE AND PROCEDURE - Application by a lender for summary judgment against guarantor pursuant to s 63 Civil Procedure Act 2010 (Vic) - Order sought for possession of properties of guarantor provided by way of security - Plaintiff did not establish that Defendant had no real prospect of success - Application refused.
PRACTICE AND PROCEDURE - Application by a lender for summary judgment against guarantor pursuant to s 63 Civil Procedure Act 2010 (Vic) - Order sought for possession of properties of guarantor provided by way of security - Plaintiff did not establish that Defendant had no real prospect of success - Application refused.
COSTS - Application by guarantor for an injunction against the lender charging default interest on the facility - Application by guarantor for possession of properties provided by of security - Applications abandoned - At the time of issuing summons prospects of succeeding were negligible - Plaintiff entitled to indemnity costs pursuant to the terms of the loan agreement - Indemnity costs awarded.
PRACTICE AND PROCEDURE - Orders to be made giving effect to judgment - Where judgment given for the plaintiff - Where parties agreed to refer outstanding questions to special referee under O 50 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic).
PRACTICE AND PROCEDURE - Orders to be made giving effect to judgment - Where judgment given for the plaintiff - Where parties agreed to refer outstanding questions to special referee under O 50 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic).
PRACTICE AND PROCEDURE - Consolidated proceedings - Owners corporation dispute - Matters transferred from the Victorian Civil and Administrative Tribunal - Where issues substantially overlap - Competing applications - Matters heard and determined together.
PRACTICE AND PROCEDURE - Consolidated proceedings - Owners corporation dispute - Matters transferred from the Victorian Civil and Administrative Tribunal - Where issues substantially overlap - Competing applications - Matters heard and determined together.
CORPORATIONS - Receivership - Receivers and managers appointed over company and its assets - Where receivers contend receivership impeded by ongoing owners corporation dispute - Application for directions in respect of performance and exercise of receivers' functions - Declarations made - Corporations Act 2001 (Cth), s 424.
OWNERS CORPORATION - Trial - Agreed list of questions for hearing and determination - Where two sets of solicitors purport to represent the true owners corporation - Competing claims as to composition and authority of true owners corporation and owners corporation committee between August 2024 and December 2025 - Whether discretionary relief ought to be granted to cure findings of irregularities or defects.
OWNERS CORPORATION - Strata title - Hotel premises - Validity of meetings, ballots and resolutions made by differently constituted owners corporation committees - Consideration as to which committee held true authority such to bind the true owners corporation - Legitimacy - Legitimacy of competing committees to convene meetings and ballots and to make resolutions - Whether resolutions valid - Particulars of events dispositive to consolidated proceedings disputed - Various breaches of duties and contentions of irregular conduct - Nature, extent and consequences of irregularities - Consequences in respect of validity of meetings, ballots and resolutions - Subdivision Act 1988 (Vic), ss 27A, 28, 29 - Owners Corporations Act 2006 (Vic).
OPEN COURTS - Application for pseudonym order.
OPEN COURTS - Application for pseudonym order.
ADMINISTRATIVE LAW - Judicial review - Suspension of councillor by Governor in Council on recommendation of Minister - Statutory conditions for making recommendation under s 229A Local Government Act 2020 (Vic) - Statutory functions of municipal monitors - Report by municipal monitors to Minister that plaintiff creating serious risk to the health and safety of councillors or staff - Minister satisfied that plaintiff creating a serious risk to the health and safety of councillors and staff - Meaning of serious risk to health and safety - Allegations of bias and abuse of process - Denial of procedural fairness by municipal monitors - Failure by municipal monitors to comply with s 181C of the Local Government Act 2020 (Vic) invalidated report - Statutory condition for Minister's recommendation not fulfilled - Considerations of appropriate relief - Declaratory relief granted - Local Government Act 2020 (Vic) ss 180, 181C, 229A - Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 - Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 - Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 - Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 - Attorney- General (Tas) v Casimaty (2024) 98 ALJR 1139 - Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 - Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 - Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission [2020] VSC 762.
ADMINISTRATIVE LAW - Judicial review - Suspension of councillor by Governor in Council on recommendation of Minister - Statutory conditions for making recommendation under s 229A Local Government Act 2020 (Vic) - Statutory functions of municipal monitors - Report by municipal monitors to Minister that plaintiff creating serious risk to the health and safety of councillors or staff - Minister satisfied that plaintiff creating a serious risk to the health and safety of councillors and staff - Meaning of serious risk to health and safety - Allegations of bias and abuse of process - Denial of procedural fairness by municipal monitors - Failure by municipal monitors to comply with s 181C of the Local Government Act 2020 (Vic) invalidated report - Statutory condition for Minister's recommendation not fulfilled - Considerations of appropriate relief - Declaratory relief granted - Local Government Act 2020 (Vic) ss 180, 181C, 229A - Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 - Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 - Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 - Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 - Attorney- General (Tas) v Casimaty (2024) 98 ALJR 1139 - Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 - Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 - Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission [2020] VSC 762.
ADMINISTRATIVE LAW - Application, made out of time, for review of medical panel opinion under Order 56 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Medical Panel convened under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('WIRC Act') - Medical Panel amended certificate of opinion because of a 'slip' - Amended opinion said to be affected by jurisdictional error and/or error of law on the face of the record as opinion was not open or legally unreasonable - Asserted failure to give adequate reasons sufficient to comply with s 313 of the WIRC Act - Whether relief should be refused on discretionary grounds because of conduct of plaintiff and because futile and causing no practical injustice - Whether special circumstances exist to grant extension of time - No special circumstances - No jurisdictional error or failure to give adequate reasons - Relief would be refused on discretionary grounds - Proceeding dismissed.
ADMINISTRATIVE LAW - Application, made out of time, for review of medical panel opinion under Order 56 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) - Medical Panel convened under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('WIRC Act') - Medical Panel amended certificate of opinion because of a 'slip' - Amended opinion said to be affected by jurisdictional error and/or error of law on the face of the record as opinion was not open or legally unreasonable - Asserted failure to give adequate reasons sufficient to comply with s 313 of the WIRC Act - Whether relief should be refused on discretionary grounds because of conduct of plaintiff and because futile and causing no practical injustice - Whether special circumstances exist to grant extension of time - No special circumstances - No jurisdictional error or failure to give adequate reasons - Relief would be refused on discretionary grounds - Proceeding dismissed.
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal - Self-represented litigant - Residential tenancy - Rental provider's intention to sell with vacant possession - Refusal to vacate - Bona fides of the notice to vacate in issue before the Tribunal - Possession order made - Whether denial of procedural fairness in hearing - Whether fair opportunity to respond to documents referred to during hearing - Whether refusal of adjournment procedurally unfair - Whether 'reasonable and proportionate' to make the possession order in the circumstances - Whether Tribunal properly considered considerations relevant under section 330A of the Residential Tenancies Act 1997 (Vic) - Whether legally sufficient evidence for material findings made - Adequacy of reasons - Leave to appeal - Leave to appeal partially granted - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal - Self-represented litigant - Residential tenancy - Rental provider's intention to sell with vacant possession - Refusal to vacate - Bona fides of the notice to vacate in issue before the Tribunal - Possession order made - Whether denial of procedural fairness in hearing - Whether fair opportunity to respond to documents referred to during hearing - Whether refusal of adjournment procedurally unfair - Whether 'reasonable and proportionate' to make the possession order in the circumstances - Whether Tribunal properly considered considerations relevant under section 330A of the Residential Tenancies Act 1997 (Vic) - Whether legally sufficient evidence for material findings made - Adequacy of reasons - Leave to appeal - Leave to appeal partially granted - Appeal dismissed.
Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 98, 117, 119, 148; Residential Tenancies Act 1997 (Vic) ss 75, 77, 91ZZB, 330A; Civil Procedure Act 2010 (Vic) pt 2.1; Roberts v Harkness (2018) 57 VR 334; Bell Corp Victoria Pty Ltd v Stephenson (2003) 20 VAR 280; Psychology Board of Australia v Mair [2010] VSC 628; Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24; Maleckas ('LKQ') v Secretary, Department of Justice (2011) 34 VR 23; House v the King (1936) 55 CLR 499; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; Secretary to the Department of Justice v Yee [2012] VSC 447; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Dudas v Monash City Council; Tarawa- Shearer v Darebin City Council [2012] VSC 578, referred to.
APPEAL - PLANNING AND ENVIRONMENT - Application for leave to appeal from decision and orders of the Victorian Civil and Administrative Tribunal - Planning permit for development of land by construction and/or putting up for display of 'major promotion signs' - Permit referred to permission for the 'installation and display' of major promotion signs - Permit included a condition stating permit would expire 15 years after issue - Permit did not otherwise include a condition requiring completion of construction by a particular time - Completion of construction of signs took longer than two years from issue of permit - Responsible authority asserted that permit had expired - Permit holder applied for declaration by VCAT - VCAT refused to make declaration that permit had not expired - Whether s 68(1)(b) of the Planning and Environment Act 1987 caused permit to expire - Whether permit specified a time for completion of the development displacing default expiry under s 68(1)(b) - Principles guiding interpretation of planning permit - On its proper interpretation taking into account all its elements the permit specified a time of 15 years for completion of development - VCAT erred in refusing to make declaration that the permit had not expired - Victorian Civil and Administrative Tribunal Act 1998 s 148 - Planning and Environment Act 1987 ss 62(1), 68(1)(b) - Monash Planning Scheme cl 52.05.
APPEAL - PLANNING AND ENVIRONMENT - Application for leave to appeal from decision and orders of the Victorian Civil and Administrative Tribunal - Planning permit for development of land by construction and/or putting up for display of 'major promotion signs' - Permit referred to permission for the 'installation and display' of major promotion signs - Permit included a condition stating permit would expire 15 years after issue - Permit did not otherwise include a condition requiring completion of construction by a particular time - Completion of construction of signs took longer than two years from issue of permit - Responsible authority asserted that permit had expired - Permit holder applied for declaration by VCAT - VCAT refused to make declaration that permit had not expired - Whether s 68(1)(b) of the Planning and Environment Act 1987 caused permit to expire - Whether permit specified a time for completion of the development displacing default expiry under s 68(1)(b) - Principles guiding interpretation of planning permit - On its proper interpretation taking into account all its elements the permit specified a time of 15 years for completion of development - VCAT erred in refusing to make declaration that the permit had not expired - Victorian Civil and Administrative Tribunal Act 1998 s 148 - Planning and Environment Act 1987 ss 62(1), 68(1)(b) - Monash Planning Scheme cl 52.05.
INTEREST - When interest falls due on a debt for landfill levy under the Environment Protection Act 1970 (Vic) - Debt arising from an invoice found to be a notice issued under s 50X(4) of the Environment Protection Act 1970 (Vic) - Section 50X(4) notice is to be paid within 30 days.
INTEREST - When interest falls due on a debt for landfill levy under the Environment Protection Act 1970 (Vic) - Debt arising from an invoice found to be a notice issued under s 50X(4) of the Environment Protection Act 1970 (Vic) - Section 50X(4) notice is to be paid within 30 days.
ENVIRONMENTAL LAW - Landfill levy - Liability to pay the landfill levy with respect to the material to be from the time it was deposited - Whether obligation to pay falls due at same time - Rights and powers if levy not paid - Environment Protection Act 1970 (Vic), ss 50S(1), 50SB(3), 50V, 50W, 50X(4), 50X(5), 50XB(2).
COSTS - Section 24(1) of the Supreme Court Act 1986 (Vic) - Proceeding in Magistrates' Court for debt recovery pursuant to s 50XB of the Environment Protection Act 1970 (Vic) transferred to Supreme Court of Victoria - Costs incurred prior to transfer determined in accordance with the scale of costs and fees applicable to the Civil Jurisdiction of the Magistrates' Court of Victoria.
ADMINISTRATION AND PROBATE - Application to remove executor and trustee of deceased's estate - Administration and Probate Act 1958, s 34 - Trustee Act 1958, s 48 - Whether executor unfit to remain in office - Application for indemnity costs against defendant.
ADMINISTRATION AND PROBATE - Application to remove executor and trustee of deceased's estate - Administration and Probate Act 1958, s 34 - Trustee Act 1958, s 48 - Whether executor unfit to remain in office - Application for indemnity costs against defendant.
ADMINISTRATION AND PROBATE - Application to remove executor and trustee of deceased's estate - Administration and Probate Act 1958, s 34 - Trustee Act 1958, ss 48, 51 - Whether executor and trustee unfit to remain in office - Application for indemnity costs against defendant.
ADMINISTRATION AND PROBATE - Application to remove executor and trustee of deceased's estate - Administration and Probate Act 1958, s 34 - Trustee Act 1958, ss 48, 51 - Whether executor and trustee unfit to remain in office - Application for indemnity costs against defendant.
PRACTICE AND PROCEDURE - Cross-vesting application - Application by defendant to transfer Supreme Court proceeding to the Victorian Registry of the Federal Circuit and Family Court of Australia - Not in interests of justice to transfer the proceeding - Defamation proceeding performs an important function of public vindication for a successful party - Open court default position in this jurisdiction - Supreme Court more appropriate forum to consider novel privacy tort - Capacity to provide trial expeditiously - Application dismissed - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5(1); Courts (Cross-vesting) Act 1987 (Cth) s 9(3) - Re Wakim; Ex parte McNally (1999) 198 CLR 511; Irwin v State of Queensland [2011] VSC 291 applied.
PRACTICE AND PROCEDURE - Cross-vesting application - Application by defendant to transfer Supreme Court proceeding to the Victorian Registry of the Federal Circuit and Family Court of Australia - Not in interests of justice to transfer the proceeding - Defamation proceeding performs an important function of public vindication for a successful party - Open court default position in this jurisdiction - Supreme Court more appropriate forum to consider novel privacy tort - Capacity to provide trial expeditiously - Application dismissed - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5(1); Courts (Cross-vesting) Act 1987 (Cth) s 9(3) - Re Wakim; Ex parte McNally (1999) 198 CLR 511; Irwin v State of Queensland [2011] VSC 291 applied.
PRACTICE AND PROCEDURE - Application by plaintiff to amend writ to contain specification that mode of trial in this Court to be before a Judge of the Court and jury - Plaintiff failed to signify in writ for jury trial - Claims for defamation, breach of confidence and breach of common law tort of infringement to the right to privacy - Novel privacy tort a strong factor in favour of trial by a judge alone - Not satisfied that interests of justice favour jury trial - Application dismissed - Civil Procedure Act 2010 (Vic) s 49; Supreme Court (General Civil Procedure) Rules 2025 (Vic) rr 36.01 and 47.02; Defamation Act 2005 (Vic) s 21 - Birti v SPI Electricity Pty Ltd [2011] VSC 566 applied.
PRACTICE AND PROCEDURE - Appeal from the ruling of a judicial registrar - Application for extension of time - Setting aside of subpoenas - Recusal application - Timetabling orders - No merit in appeal - Extension of time not granted - Appeal dismissed.
PRACTICE AND PROCEDURE - Appeal from the ruling of a judicial registrar - Application for extension of time - Setting aside of subpoenas - Recusal application - Timetabling orders - No merit in appeal - Extension of time not granted - Appeal dismissed.
Supreme Court (General Civil Procedure) Rules 2025 (Vic), rr 42A.01(1), 84.09, 84.05(4), 84.06(1)(a); Civil Procedure Act 2010 (Vic), ss 7, 9(1)(c)-(d); MacDonald v Grundy [2024] VSC 383; MacDonald v Grundy [2025] VSCA 340; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; SunshineLoans Pty Ltd v Australian Securities and Investment Commission [2026] HCA 8.
PRACTICE AND PROCEDURE - Judicial Review - Commencement of proceeding out of time - Application for extension of time - Whether 'special circumstances' existed - Extension of time granted.
PRACTICE AND PROCEDURE - Judicial Review - Commencement of proceeding out of time - Application for extension of time - Whether 'special circumstances' existed - Extension of time granted.
PRACTICE AND PROCEDURE - Leave to amend notice of appeal - Real question or controversy between the parties - Supreme Court (General Civil Procedure) Rules 2025 ord 36 - Abuse of process - Public interest - Civil Procedure Act 2010 ss 7-9 - Question of law as to whether Tribunal had jurisdiction to hear and determine the matter - Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 73 VR 403; (2022) 407 ALR 187; [2022] VSCA 226 - Contingent order relating to the costs of the Tribunal proceeding sought by way of condition on any grant of leave - Premature to make any order relating to costs of the Tribunal proceeding - Victorian Civil and Administrative Tribunal Act 1998 s 148 - Supreme Court Act 1986 s 24 - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 - Australian Education Union v Lawler (2008) 169 FCR 327; [2008] FCAFC 135.
PRACTICE AND PROCEDURE - Leave to amend notice of appeal - Real question or controversy between the parties - Supreme Court (General Civil Procedure) Rules 2025 ord 36 - Abuse of process - Public interest - Civil Procedure Act 2010 ss 7-9 - Question of law as to whether Tribunal had jurisdiction to hear and determine the matter - Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 73 VR 403; (2022) 407 ALR 187; [2022] VSCA 226 - Contingent order relating to the costs of the Tribunal proceeding sought by way of condition on any grant of leave - Premature to make any order relating to costs of the Tribunal proceeding - Victorian Civil and Administrative Tribunal Act 1998 s 148 - Supreme Court Act 1986 s 24 - Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 - Australian Education Union v Lawler (2008) 169 FCR 327; [2008] FCAFC 135.
CIVIL PROCEDURE - Obligation not to use documents produced under compulsion in a proceeding other than for the purposes of that proceeding - Prohibition in s 27 of the Civil Procedure Act 2010 (Vic) on use of documents disclosed in compliance with s 26 for a purpose other than in connection with the civil proceeding - Application for release from the implied undertaking and release from obligations in s 27 of the Civil Procedure Act 2010 (Vic) - Retrospective or nunc pro tunc relief - Appropriate procedure for application - Civil Procedure Act 2010 (Vic) ss 26, 27.
CIVIL PROCEDURE - Obligation not to use documents produced under compulsion in a proceeding other than for the purposes of that proceeding - Prohibition in s 27 of the Civil Procedure Act 2010 (Vic) on use of documents disclosed in compliance with s 26 for a purpose other than in connection with the civil proceeding - Application for release from the implied undertaking and release from obligations in s 27 of the Civil Procedure Act 2010 (Vic) - Retrospective or nunc pro tunc relief - Appropriate procedure for application - Civil Procedure Act 2010 (Vic) ss 26, 27.
ASSESSMENT OF DAMAGES - Judgment in default of appearance entered against first defendant - Judgment by consent against second defendant - Assessments of damages - No appearances on assessments by first or second defendant, despite notice.
ASSESSMENT OF DAMAGES - Judgment in default of appearance entered against first defendant - Judgment by consent against second defendant - Assessments of damages - No appearances on assessments by first or second defendant, despite notice.
TRESPASS - Trespass causing substantial loss and damage to plaintiffs - Damages for foregone profits in the form of rent - Damages for costs incurred in reinstating the land to the condition it was in before the trespass - Aggravated and exemplary damages awarded.
BANKRUPTCY - Whether the plaintiffs' claims in trespass against the second defendant survive her bankruptcy where damages not assessed at date of entry into bankruptcy - Claims for damages for trespass against the second defendant are claims 'in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust' - The plaintiffs' claims against second defendant are not provable in her bankruptcy and can be enforced against her by the plaintiffs during the bankruptcy and after discharge.
Bankruptcy Act 1966 (Cth), ss 58(3), 82(2); Supreme Court (General Civil Procedure) Rules 2025 (Vic), O 51.
CRIMINAL LAW - Application for bail - Charge of murder - Deceased shot in context of ongoing conflict between youth gangs - Requirement to show exceptional circumstances - Applicant 19 years of age - No previous criminal convictions - Stable accommodation and employment - Significant bail guarantee - Nature and seriousness of alleged offending - Whether prosecution case 'fatally weak' - Prospective delay - Whether applicant's ill health able to be adequately managed in custody - Exceptional circumstances not established - Bail refused - Bail Act 1977 (Vic), ss 1B, 3, 3AAA, 4A.
CRIMINAL LAW - Application for bail - Charge of murder - Deceased shot in context of ongoing conflict between youth gangs - Requirement to show exceptional circumstances - Applicant 19 years of age - No previous criminal convictions - Stable accommodation and employment - Significant bail guarantee - Nature and seriousness of alleged offending - Whether prosecution case 'fatally weak' - Prospective delay - Whether applicant's ill health able to be adequately managed in custody - Exceptional circumstances not established - Bail refused - Bail Act 1977 (Vic), ss 1B, 3, 3AAA, 4A.
CRIMINAL LAW - Sentence - Make threat to kill - Threat to commit sexual offence - Three charges of failing to comply with a supervision order - One charge of committing an indictable offence whilst on bail - Summary jurisdiction application - Plea of guilty - Verdins and moral culpability - Total effective sentence of 10 months' imprisonment - Serious Offenders Act 2018 (Vic) ss 169, 173, 174.
CRIMINAL LAW - Sentence - Make threat to kill - Threat to commit sexual offence - Three charges of failing to comply with a supervision order - One charge of committing an indictable offence whilst on bail - Summary jurisdiction application - Plea of guilty - Verdins and moral culpability - Total effective sentence of 10 months' imprisonment - Serious Offenders Act 2018 (Vic) ss 169, 173, 174.
CRIMINAL LAW - Sentence - Two charges of contravening a condition of a supervision order - Prohibited gambling - Prohibited use of methyl amphetamine and diazepam - Plea of guilty - Prior convictions for similar offending - Sentencing Act 1991 (Vic) ss 83A, 113, 113B - Serious Offenders Act 2018 (Vic) ss 169, 173, 174, 229.
CRIMINAL LAW - Sentence - Two charges of contravening a condition of a supervision order - Prohibited gambling - Prohibited use of methyl amphetamine and diazepam - Plea of guilty - Prior convictions for similar offending - Sentencing Act 1991 (Vic) ss 83A, 113, 113B - Serious Offenders Act 2018 (Vic) ss 169, 173, 174, 229.
CRIMINAL LAW - Change of venue application - Pre-trial ruling - Aboriginal accused - Significant mental health considerations - Application granted - Criminal Procedure Act 2009 s 192 - DPP v Bennett (2004) 10 VR 355; R v Iaria and Panozzo (2004) 9 VR 425.
CRIMINAL LAW - Change of venue application - Pre-trial ruling - Aboriginal accused - Significant mental health considerations - Application granted - Criminal Procedure Act 2009 s 192 - DPP v Bennett (2004) 10 VR 355; R v Iaria and Panozzo (2004) 9 VR 425.
CRIMINAL LAW - Murder - Joint trial of co-accused - Separate trial application - Whether the evidence of a witness who allegedly received a confession from Clarke is impermissibly bolstered by Hill's out-of-court statements - Whether risk of substantial prejudice - Whether amenable to judicial directions - Application refused - Criminal Procedure Act 2009 ss 170(2), 193(2), 193(3) - R v Demirok [1976] VR 244 - R v Gibb and McKenzie [1983] 2 VR 155 - R v Jones & Waghorn (1991) 55 A Crim R 159 - R v Iaria and Panozzo (separate trial) [2004] VSC 110 - R v Vollmer (1996) 1 VR 95 - Young v R [2015] VSCA 265 - R v Mwamba [2015] VSCA 338 - Feeney v The Queen [2022] VSCA 113 - DPP v Bottom & Ors (Ruling No 2) [2022] VSC 401 - R v Kannan & Anor (Ruling No 12) [2021] VSC 39.
CRIMINAL LAW - Murder - Joint trial of co-accused - Separate trial application - Whether the evidence of a witness who allegedly received a confession from Clarke is impermissibly bolstered by Hill's out-of-court statements - Whether risk of substantial prejudice - Whether amenable to judicial directions - Application refused - Criminal Procedure Act 2009 ss 170(2), 193(2), 193(3) - R v Demirok [1976] VR 244 - R v Gibb and McKenzie [1983] 2 VR 155 - R v Jones & Waghorn (1991) 55 A Crim R 159 - R v Iaria and Panozzo (separate trial) [2004] VSC 110 - R v Vollmer (1996) 1 VR 95 - Young v R [2015] VSCA 265 - R v Mwamba [2015] VSCA 338 - Feeney v The Queen [2022] VSCA 113 - DPP v Bottom & Ors (Ruling No 2) [2022] VSC 401 - R v Kannan & Anor (Ruling No 12) [2021] VSC 39.
CRIMINAL LAW - Murder - Pre-trial ruling - Evidence - Admissibility of alleged admissions to [relative] of accused - Evidence admissible - Evidence Act 2008 ss 90, 137, 138 and residual common law ('Haddara') discretion - Ridley v The King [2024] VSCA 308 - Haddara v R (2014) 43 VR 53.
CRIMINAL LAW - Murder - Pre-trial ruling - Evidence - Admissibility of alleged admissions to [relative] of accused - Evidence admissible - Evidence Act 2008 ss 90, 137, 138 and residual common law ('Haddara') discretion - Ridley v The King [2024] VSCA 308 - Haddara v R (2014) 43 VR 53.
CRIMINAL LAW - Application under Sex Offenders Registration Act 2004 to have reporting obligations of sex offending suspended - Applicant sentenced in 2009 and became registrable offender for life - Applicant's reporting obligations suspended in 2023 by the Chief Commissioner of Police pursuant to s 45A SORA - Low risk to the sexual safety of one or more persons or the community - In public interest to grant application - Application not opposed by Chief Commissioner of Police - Sex Offenders Registration Act 2004, ss 39, 40, 45A.
CRIMINAL LAW - Application under Sex Offenders Registration Act 2004 to have reporting obligations of sex offending suspended - Applicant sentenced in 2009 and became registrable offender for life - Applicant's reporting obligations suspended in 2023 by the Chief Commissioner of Police pursuant to s 45A SORA - Low risk to the sexual safety of one or more persons or the community - In public interest to grant application - Application not opposed by Chief Commissioner of Police - Sex Offenders Registration Act 2004, ss 39, 40, 45A.
PRACTICE AND PROCEDURE - Application for summary enforcement of a settlement deed - Whether the doctrine of substantial performance applies in the context of breach of settlement terms - Whether the innocent party's delay in seeking summary enforcement constitutes waiver of rights - No irrevocable consent to judgment in settlement terms - Roberts jurisdiction.
PRACTICE AND PROCEDURE - Application for summary enforcement of a settlement deed - Whether the doctrine of substantial performance applies in the context of breach of settlement terms - Whether the innocent party's delay in seeking summary enforcement constitutes waiver of rights - No irrevocable consent to judgment in settlement terms - Roberts jurisdiction.
SUMMARY JUDGMENT - Guarantees - Construction loan - Guarantors' obligation to repay money owing by a borrower under limited guarantee - Whether lender able to enforce guarantee while borrower's liquidator is recovering from third parties - Whether lender's application of repayments and sale proceeds from security property to monies outstanding under loan reduces the maximum limit of guarantee - Whether lender breached obligations as mortgagee in possession.
SUMMARY JUDGMENT - Guarantees - Construction loan - Guarantors' obligation to repay money owing by a borrower under limited guarantee - Whether lender able to enforce guarantee while borrower's liquidator is recovering from third parties - Whether lender's application of repayments and sale proceeds from security property to monies outstanding under loan reduces the maximum limit of guarantee - Whether lender breached obligations as mortgagee in possession.