SENTENCING – murder – domestic violence – brutal and frenzied stabbing of former domestic partner – intent to kill – objectively serious offending – background of deprivation and disadvantage – childhood exposure to domestic violence and sexual abuse – significant mental illness – youth – moral culpability diminished – general and specific deterrence
CRIMINAL PROCEDURE – Indictment – Amendment – Appeal where application by the Crown to amend the dates on an indictment previously refused – Amendment to the dates specified on an indictment to capture a period of offending in which time all offences took place – Whether there is irreparable prejudice and, as a consequence of that prejudice, a fair trial cannot occur in circumstances where an amendment to an indictment is requested by the Crown – Where leave of the Court is required to amend an indictment where the accused has not consented – Whether an amendment to an indictment which provided a date range which encompassed the dates earlier pleaded constitutes a new Crown case
CIVIL PROCEDURE — Court of Appeal — stay of order for payment out of funds in Court — whether leave to appeal required — whether serious question to be tried — where balance of convenience lies
PROCEDURE — stay pending appeal — whether the applicant has established an arguable case — whether stay should be granted where bankruptcy proceedings have already commenced — prejudice where applicant was not in a fit state to inform cross-examination — stay ordered in relation to the individual applicant but not the corporate applicants
COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Whether defendants’ rejection of plaintiff’s Calderbank offers was unreasonable JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction
ESTOPPEL — Proprietary estoppel — Encouragement — Where the plaintiff was a farmer who worked in the family partnership on the family farms — Where the plaintiff and the defendants are siblings — Where the plaintiff claimed his father made oral representations to him over many years that certain farms would be his — Whether the representations were made — Whether the plaintiff acted to his detriment in reliance of the representations — What the appropriate relief is in the circumstances PARTNERSHIPS AND JOINT VENTURES — Winding up — Distribution of assets on settlement of accounts — Whether there was an agreement to divide profits of the family partnership after death of one of the partners in proportions different to the continuing partners’ interests in the partnership PARTNERSHIPS AND JOINT VENTURES — Partnership property — Identification — Whether family farm that was held between the partners as tenants-in-common in equal shares was partnership property
CIVIL PROCEDURE — Subpoenas — To produce documents or things — Where legal professional privilege claimed — Whether privilege waived over correspondence with expert witness
REAL PROPERTY — Leases — re-entry by landlord — covenant for tenant to reimburse landlord’s outgoings — alleged breach — whether notice required under s 129 of the Conveyancing Act 1919 — adequacy of pleaded allegation of breach — summary judgment for tenant
CRIME – appeals – Crown appeal against sentence – federal offences of procuring or attempting to procure persons believed to be children to engage in sexual activity outside of Australia – federal offences of persistent sexual abuse of children outside of Australia – State offence of failing to comply with reporting obligations – guilty pleas – aggregate sentence less than 50 percent of mandatory minimum sentences – nominated indicative sentence less than 75 percent of mandatory minimum sentence for sequence 9 – manifest inadequacy – where respondent conceded all grounds of appeal were established – appeal allowed – resentence SENTENCING – resentence – where it appeared that the persons the subject of the offences were not in fact children – where the Director conceded that it could not be proved they were in fact children – where the concession was wrongly made with respect to certain sequences – respondent’s plea of guilty to some offences not admission of fact with respect to other offences – the Court should do no more than to act on the pleas – offences all objectively serious – offences committed remotely – respondent’s advanced age and health – aggregate sentence imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) – discount for pleas of guilty – equal justice
CRIME – appeals – Crown interlocutory appeal – sexual offences – whether trial judge erred in refusing Crown application to discharge jury – where discharge application based on directions given by trial judge – where trial judge relied on R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 – directions inconsistent with s 294B(7) of the Criminal Procedure Act 1986 (NSW) – directions carried real risk of elevating importance of demeanour – wrong principle – error in determination of application – appeal allowed – matter remitted to be determined according to law EVIDENCE – witness evidence – evidence in sexual offence proceedings – evidence given by alternative arrangements – impact of evidence given by audio visual link – judicial attitudes – research – not equivalent to testimony in courtroom – weaker standard of communication – may affect opposing or calling party – beneficial or detrimental to witness – Kennedy Nixon presidential debate – impact may not be ascertainable EVIDENCE – directions to jury – evidence given by audio visual link – directions in ordinary case likely to contravene s 294B(7) – s 294B(7) cannot convert poor evidence into clear evidence – available direction where impact of audio visual link capable of being identified – direction as to particular quality of evidence – example direction provided
Judgment of
Harrison CJ at CL at [1]
Dhanji J at [2]
McNaughton J at [70]
COSTS – Application for stay of costs judgments in favour of the plaintiffs which are under challenge and where the defendants have costs orders against the plaintiffs which are also under challenge – Where, notwithstanding the lack of finality, the plaintiffs issued a garnishee order on a debtor of the defendants seeking enforcement of the full amount claimed – HELD: There should be no enforcement on either side until finality of costs orders on both sides – Plaintiffs’ judgment stayed and garnishee order set aside
COSTS – party/party costs – where the Plaintiffs had substantial success in the proceeding – whether there should be apportionment of costs in respect of any issue on which the Plaintiffs failed – whether the Second Defendant acted unreasonably in defending the litigation and in failing to adopt a position of neutrality – whether the Court should make orders denying or restricting the Second Defendant’s entitlement to be indemnified from the First Defendant’s property in respect of the costs of the proceeding – whether the costs of the Fifth Defendant, who filed a submitting appearance, should be met by the other defendants
CRIME – SENTENCE – appeal against sentence – attempt to import commercial quantity of border-controlled drug – application for leave to appeal out of time – sole ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – “Totaan error” - where resentence process undertaken, but no lesser sentence warranted in law – where structure of sentence did not comply with s 19AB of the Crimes Act – where sentence is to be served concurrently for each count
CRIME – appeals – appeals against conviction – admissibility of tendency evidence – where matters in issue at time of pre-trial ruling not significantly different from matters in issue at close of evidence at trial – where tendency evidence still had significant probative value at close of evidence and probative value outweighed danger of unfair prejudice – where tendency direction given – no error established CRIME – appeals – appeals against conviction – miscarriage of justice – jury directions – tendency directions – content of tendency directions and standard of proof – where directions and summing up when considered as a whole would not deflect jury from their proper task of determining whether elements of offences proved beyond reasonable doubt – no miscarriage of justice EVIDENCE – tendency evidence – significant probative value – where asserted tendency is broad – where there is a gap in period where tendency is asserted – given matters in issue the tendency evidence had significant probative value – where probative value outweighed the danger of unfair prejudice – no error in pre-trial ruling STATUTORY INTERPRETATION – definition – definition of “under authority of” in s 61H(2) Crimes Act 1900 (NSW) – whether person receiving treatment from an osteopath is “in the care of” and thus “under the authority of” the osteopath – no error in so directing jury
Judgment of
Davies J at [1];
Wright J at [2];
Sweeney J at [189]
ADMINISTRATIVE LAW – Error of law on the face of the record – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 98(3) – application to appear in proceedings in Children’s Court dismissed – appeal to District Court dismissed – whether error of law on the face of the record of the District Court – whether sufficient for applicant to be found to have a genuine concern for the safety, welfare and well-being of the child or whether application was subject to a further discretion – conflict in decisions of Supreme Court on approach to s 98(3) – whether relief should be withheld for discretionary reasons
Judgment of
Leeming JA at [1];
Kirk JA at [92];
Griffiths AJA at [93]
STATUTORY INTERPRETATION – extrinsic material – significance of delegated legislation to construction of a statute – relevance to statutory construction of legislative facts and claims asserted from the bar table – multiple statutory purposes – issue determined by textual considerations where none of the purposive and contextual arguments raised assists greatly to resolve construction issue TRAFFIC LAW AND TRANSPORT – traffic law – motor accident legislation – definition of “threshold injury” – injury to the skin which is not also an injury to nerves is a soft tissue injury
Judgment of
Kirk JA at [1];
Adamson JA at [78];
Stern JA at [80]
CONTRACTS — Construction — Whether contract imposed an obligation to elect between mutually exclusive scenarios — Whether valid election could be made after contract terminated CONTRACTS — Construction — Requirement of clear and unequivocal communication or conduct to exercise rights — Where no relevant communication or conduct within relevant period
Judgment of
Payne JA at [1];
Stern JA at [2];
McHugh JA at [3].
EVIDENCE – admissions – pre-trial hearing to determine admissibility of evidence of admissions – where accused made admissions to undercover operative in police custody – where improperly and unfairly obtained information used to elicit admissions – evidence of admissions excluded
LAND LAW — Orders compelling vacation of property — Reasonable time for vacation — Mortgagee in possession bears no obligation to exercise power of sale — Where solicitor was non-responsive
CRIMINAL LAW – murder – application by Crown to tender transcript of evidence from previous trials – where witness cross-examined previously by counsel for the accused to suggest he was the shooter – where accused now alleges that a different person shot the deceased – where Crown mindful that it not split its case – whether unfair to accused to receive the material – tender rejected.
CRIMINAL LAW – murder – joint criminal enterprise EVIDENCE – admissibility – evidence of former co-accused regarding conduct of remaining accused in dock – where Crown seeks to adduce as evidence of consciousness of guilt – whether an unfair admission – whether otherwise unfairly prejudicial
CRIMINAL LAW – murder – joint criminal enterprise murder - application to discharge jury following the entry of pleas of guilty by one of two co-accused – whether remaining accused prejudiced – whether jury possibly influenced by co-accused’s acceptance of guilt
CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors — Whether director was validly appointed — where director appointed by purported exercise of casting vote of board chairperson — whether chairperson validly appointed by earlier agreement allegedly made during conversation — where primary judge not persuaded that director was validly appointed by earlier agreement made during conversation
Judgment of
Leeming JA at [1];
Payne JA at [2];
Adamson JA at [91]
CRIME – sentencing – manslaughter – unlawful and dangerous act – where offender homeless and itinerant – where deceased not previously known to the offender – whether offender appreciated his actions posed a risk of serious injury – whether offender left the deceased in need of medical assistance – offer to plead guilty before committal – significant background of deprivation and disadvantage – effect of background on moral culpability – moral culpability and requirement for general and specific deterrence diminished – genuine remorse
TORTS — homeowner’s worst nightmare — development site next to plaintiffs’ home — developer excavates 9 metres to construct 55 apartments – geotechnical engineer identifies high risk of landslide at boundary — geotechnical advice ignored — excavations go beyond boundary — landslide — plaintiffs’ driveway collapses into development site — plaintiffs’ unable to access home by vehicle — plaintiffs’ property rendered worthless – developer and builder go in external administration – whether family members who ran the building company are personally liable. CORPORATIONS — directors and officers — whether de facto or shadow director — whether directors personally liable for directing or procuring the tortious conduct for the company — extent of duty owed by disabled director — principles at [236]-[243]. TRESPASS — whether each defendant excavated beyond the boundary – boundary not clearly marked. NEGLIGENCE — duty of care to maintain support for land, s 177 of the Conveyancing Act 1919 (NSW). DAMAGES — whether rectification costs disproportionate to diminution of land value — whether reasonable to award rectification costs in the circumstances – principles at [265]-[270] — general damages. CIVIL LIABILITY ACT — proportionate liability —— whether trespass an apportionable claim.
CIVIL PROCEDURE — Court administration — Court powers — Power of court to determine questions about compromises and settlements CONTRACTS — Duress — Illegitimate pressure — Whether settlement deed was affected by duress
COSTS – Application by defendants for costs on an indemnity basis –Where plaintiff significantly amended its case after hearing commenced – Where amendments facilitated just, quick and cheap resolution of real issues in dispute – Indemnity costs not ordered. COSTS – Party/Party – General rule that costs follow the event – Application of the rule and discretion – No order as to costs of hearing – Where costs thrown away by plaintiff’s amendments already addressed by existing costs orders.
PRACTICE AND PROCEDURE – Proposed amendment to defendants’ Technology and Construction List Responses to introduce alternative limitation defences under s 18E of Home Building Act 1989 (NSW) in addition to existing limitation defences relying on that section – Where plaintiff opposed leave to amend on the sole basis that the proposed amendments were said to be futile – HELD: Amendments not futile. Leave granted.
CONTRACT – Breach of contract – whether warranties concerning building works were breached – where there was a breach of warranty – whether the purchaser is entitled to damages for breach of contract – whether purchaser is entitled to damages reflecting the cost of making the building conform to the contract – whether replacement of concrete slab is reasonable – where the warrantor discharged his evidentiary onus to show that replacement of concrete slab was not a reasonable course – where purchaser has not otherwise established loss – where purchaser is entitled to nominal damages – whether there should be an order for specific performance.
CHILD WELFARE — Surrogacy — Parentage Order — requirement for report from independent counsellor — counsellor not independent — “exceptional circumstances” relief not applicable — Surrogacy Act 2010 ss 17, 18 — application declined on existing evidence and submissions
LAND LAW – co-ownership – statutory trust for sale – application by plaintiff under Conveyancing Act 1919 (NSW) s 66G – where plaintiff is in default of mortgage – where plaintiff contends that defendant has a 5% co-ownership – where defendant refutes ownership on the grounds they were “duped” – where the defendant has made a complaint to the Australian Financial Complaints Authority against the mortgagee – whether it is appropriate to appoint trustees for sale – trustees for sale appointed – no question of principle
ADMINISTRATIVE LAW – powers of public authority – power to commence legal proceedings – court attendance notices issued by officer of Independent Commission Against Corruption – notices not signed by registrar – officer acting as “public officer” within s 3(1) of the Criminal Procedure Act 1986 (NSW) – whether officer acting in an “official capacity” – whether powers and functions of Commission extend to laying charges under the Crimes Act 1900 (NSW) for matters the subject of investigation into corrupt conduct – whether power and functions of Commission extend to laying charges for breaches of the Independent Commission Against Corruption Act 1988 (NSW) STATUTORY INTERPRETATION – implied powers and functions of public body – powers necessary or reasonably incidental to the exercise of functions and powers – legislation to be read harmoniously
Judgment of
Leeming JA at [1];
Basten AJA at [2];
Griffiths AJA at [64]
CIVIL LAW – procedure – expert conclave of psychiatrists – late service of report – objection to use of report – urgent application – practical resolution – no question of principle
CHILD WELFARE – adoption – Aboriginal placement – where birth parents disclosed Aboriginal heritage – whether Secretary has made reasonable inquiries as to whether child is an Aboriginal child – whether child is Aboriginal CHILD WELFARE – adoption – best interests – alternatives to adoption – where child has been cared for by adoptive parents for more than 12 years – where adoptive parents have been granted parental responsibility for child until he attains 18 years of age – where adoptive parents not seeking guardianship orders and seek to support child to lead independent life – adoption clearly preferable in best interests of child CHILD WELFARE – adoption – consent – dispense order – child – where 17 year old child diagnosed with speech and language disorders – where child cannot participate in registered counselling to give consent to his own adoption – where child given opportunity to express views freely about the adoption
CIVIL PROCEDURE — Applications for anti-suit injunctions directed to proceedings in Australian courts with co-ordinate jurisdiction — Cross-vesting — Transfer to Federal Court of Australia
CRIME – appeals – appeal against sentence – imprisonment by way of intensive correction order (“ICO”) – where applicant sentenced to term of imprisonment of 3 years and 6 months for drug and weapon offences – whether sentencing judge ought to have considered ICO as alternative to full-time detention – where ICO only available for aggregate term of imprisonment 3 years or less – whether aggregate ought to have been reduced by the period on remand rather than backdated to date of arrest so that aggregate less than 3 years – enlivening availability of an ICO not a relevant consideration in fixing duration and commencement date where a term of over 3 years is found appropriate CRIME – appeals – appeal against sentence – mitigating factors – whether sufficient weight given to applicant’s uncontested evidence of non-exculpatory duress
COSTS — Conveyancing Act 1919 (NSW) s 66G — Uniform Civil Procedure Rules 2005 (NSW) rr 42.1 and 42.25 — SUMMONS — Proceedings by Summons for the appointment of trustees for sale of real property co-owned by a deceased estate and a company associated with the deceased during his lifetime — Where orders for sale are made after initial opposition by a co-executor who then does not oppose the sale, but only a forced sale on the basis she will cooperate in the sale — Where the orders for sale reserve the co-executor’s costs of the Summons — Where the co-executor seeks a portion of her costs of the Summons principally being the costs of an affidavit sworn by her to be paid out of the proceeds of sale of the property — Where the co-executor did not seek judicial advice that her opposition to the Summons was justified — Where she did not in fact cooperate in the sale — Where the affidavit could not have contributed in any meaningful way to the resolution of the Summons and where the amount claimed in any event is trivial — HELD: no order for payment out of the proceeds of sale should be made in her favour CROSS-CLAIM — Where the co-executor on behalf of the estate brings an unsuccessful cross-claim against the co-owner for equitable contribution of expenses met by the estate in relation to the property — Where there was clear and uncontested evidence that the deceased did not intend there to be any such contribution — Where the claim included amounts plainly not the subject of joint or coordinate liability — Where to prove the amount claimed the co-executor relied only on an admission arising from a non-answer to a notice to admit facts which admission did not establish any amount the subject of a joint or coordinate liability — Where the co-executor did not seek judicial advice that the estate was justified in bringing the cross-claim — Where the cross-claim amount is small and the cross-claim was unlikely to have yielded any benefit for the estate even if successful — Where the cross-claimant accepts that she should pay the cross-defendant’s costs of the cross-claim but seeks, and her co-executor opposes, indemnity from the estate, of a portion of her costs, excluding costs of, and incidental to, other cross-claims not persisted in — Where the cross-defendant to the cross-claim seeks its costs on the indemnity basis based on the non-acceptance by the co-executor of a Calderbank offer — HELD: the co-executor in substance, acted other than for the benefit of the estate and unreasonably in bringing and maintaining the cross-claim; she should not be indemnified in respect of any of her costs of the cross-claim out of the estate — HELD FURTHER: in context and given the terms of the Calderbank offer, its non-acceptance was not unreasonable to the extent of warranting an order for indemnity costs against her
JUDGMENTS AND ORDERS — Amending, varying and setting aside – Setting aside judgment entered in absence of party — UCPR r 36.16(2)(b) — Delay — Non-appearance — Where delay of nearly one year in bringing application and no good reason for delay — Whether bona fide defence on merits — Whether it would be contrary to public policy to enforce foreign judgment — Where foreign court does not recognise undue influence or Garcia unconscionability
SUCCESSION — Executors and administrators — Rights, powers and duties – Competition to represent Estate – Financial interests of parties in maintaining litigation. SUCCESSION – Competing Wills – Appointment of Independent Administrator. CIVIL PROCEDURE – Simultaneous proceedings – Where litigant seeks for matters to be heard separately – Order for matters to be heard together. MORTGAGES AND SECURITIES – Interests of creditors – Where creditor provides reverse mortgage facilities – Where value of the estate property has significantly increased since deceased entered into reverse mortgage.
BUILDING AND CONSTRUCTION — adjudication — judicial review — money paid into Court as price for interlocutory injunction — whether funds in Court should be paid to party with benefit of determination following judgment — relevance of appeal by party with benefit of determination
APPEALS – leave to appeal – leave not readily granted to challenge to discretionary exercise of power with respect to costs – as regards alleged error in not making a set-off costs order, not in interests of justice to grant leave given decision substantially founded on facts before primary judge, the position has since evolved, and it remains open to applicant to claim any amounts outstanding – applicant’s complaint also involves challenge to orders made in favour of persons not party to appeal proceedings – no point of principle or public important or reasonably clear injustice going beyond something merely arguable
COSTS — Party/Party — Payable out of a fund — Deceased estate COSTS — Party/Party — Bases of quantification — Indemnity basis — Ordinary basis COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers SUCCESSION — Contested probate — Costs — Offers of compromise
SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow — Whether deceased suffering from delusions that affected the provisions of the will SUCCESSION — Probate and administration — Rectification of wills SUCCESSION — Family provision — Claim by de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made LAND LAW — Co-ownership — Severance of joint tenancy EQUITY — Trusts and trustees — Resulting trusts ESTOPPEL — Proprietary estoppel — Encouragement
CIVIL PROCEDURE – Application to strike out defence for lack of progress – UCPR 12.7(2) – no point of principle CIVIL PROCEDURE – Application to dismiss cross claim for lack of progress – UCPR 12.7(1) – no point of principle
CONSTITUTIONAL LAW — The Judiciary — Federal jurisdiction — Exercise by State court — Where plaintiffs seek declaratory relief as to whether change of control event clause in licence agreements for use of trade marks will be triggered by restructuring plaintiff group of companies — Whether rights created by the licence agreements owe their existence to federal law — Whether federal or state jurisdiction involved in relation to relief sought in summons CONTRACTS — Remedies — Declarations — Whether declarations can be made about potential future engagement of change of control event clause in licence agreements for use of trade marks — Whether declarations would amount to an advisory opinion without a concrete factual basis
SUCCESSION — Testamentary promise — Deceased who was battling cancer with a prognosis of 3-6 months to live approaches sister for care — Plaintiff (sister) claims that the deceased promised her half of her estate if she looked after her — In the context of the COVID-19 pandemic, the plaintiff moved from Ocean Grove in Victoria, first isolating in Sydney for 2 weeks, and then travelled to Port Macquarie where she lived with and took care of the deceased for some 10 months, returning to Victoria for a period of 6 weeks — There was no written contract or document reflecting the alleged promise and there was limited contemporaneous documentary evidence generally — Deceased’s Will does not give effect to the purported contract but rather only gives by way of provision to the plaintiff items of personal effect, $20,000 and a motor vehicle, with the residue of the estate being divided between a cancer trust and a wildlife charity — Defendant, who is the executrix and a friend of the deceased, disputes the alleged promise was made or, if made, that it is enforceable — Defendant’s counsel contends that the plaintiff and witnesses in her case (her brother and her husband) have each reconstructed memories of material evidence — Plaintiff’s counsel postulates a case that the deceased harboured negative feelings for the plaintiff for leaving the deceased to look after their sick mother on her own, which led her to plot her revenge against the plaintiff in the form of not honouring the alleged promise CONTRACTS — Testamentary contract — Whether the deceased promised the plaintiff half of her estate if she looked after her — Deceased updated her Will one week after the alleged promise conversation but before the plaintiff arrived in Port Macquarie and did not make the alleged promised provision — Defendant’s witnesses assert the deceased never told them she was giving the plaintiff half of her estate — Submission by the defendant that these factors are inconsistent with the alleged promise conversation not accepted — Found that the alleged promise conversation occurred as asserted by the plaintiff and foreshadowed by the evidence of the deceased’s and plaintiff’s brother that the deceased mentioned her plan to offer the plaintiff the alleged promise — Found that the promise conversation constitutes an agreement — Submission that the terms of the agreement are not certain rejected — Submission that there was no real consideration rejected — Submission that there was no intention to create legal relations rejected — Held that there was a valid testamentary contract between the deceased and the plaintiff which was breached by the deceased ESTOPPEL — Equitable estoppel — Found that there was a clear and unequivocal promise — Discussion of whether an existing or future legal relationship needs to be assumed — Held that no assumption is required by the plaintiff — Found, in any event, that the plaintiff assumed there was an oral contract — Whether the plaintiff acted reasonably in reliance on the promise — Submission that the plaintiff’s reliance was artificial and unrealistic rejected — Whether the deceased knew or intended that the plaintiff would act in reliance on the promise — Found that the deceased knew or intended for the plaintiff to act in reliance on the promise — Whether the plaintiff’s reliance on the promise was to her detriment — Discussion of financial and non-financial detriment — Submission that the plaintiff acted in reliance to her detriment accepted — Whether the deceased acted unconscionably in not honouring the promise — Unpersuaded that the minimum equity is to enforce the promise according to its terms — Held that equitable estoppel is not made out RESTITUTION — Common counts — Claim for money had and received — Whether the plaintiff’s withdrawal of sums totalling $81,799 during the last days of the deceased’s life and after the deceased’s death were authorised by the deceased — Found that the payments were authorised in a conversation between the deceased and the plaintiff — Held there is no obligation for the plaintiff to pay the sums back into the estate EVIDENCE — Unchallenged and uncontradicted evidence — Submission that evidence which is unchallenged and uncontradicted must be accepted or acted upon — Discussion of authorities — Held there is no general rule that such evidence must be accepted EVIDENCE — Rule in Browne v Dunn — Alleged non-compliance with rule — Held no breach of the rule
CIVIL PROCEDURE – cross-vesting – Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) – application for transfer of proceedings to the Federal Circuit and Family Court of Australia (Division 2) – proceedings concern bankruptcy matters – orders for transfer made
SUCCESSION — Family provision — Extension of time to bring a claim — Deceased died in early 2011, survived (relevantly) by two daughters and the defendant (a brother) leaving an informal holograph testamentary document — From mid-late 2011 the brother and daughters sought and received legal advice regarding estate claims — Initially both daughters were jointly legally represented — In December 2011, informal Will proceedings were commenced and in July 2012 the holograph testamentary document was held to constitute the deceased’s Will — In February 2012, the elder daughter then having separate representation commenced and (in August 2013) settled family provision proceedings — Consent SMO asserted that defendant had served notices of the elder daughter’s claim on any person who may be an eligible person — Settlement approved — Plaintiff aware of her sister’s family provision proceedings, but contrary to assertion had not been served with a Notice of Claim — Plaintiff believes the defendant would subsequently provide for her and she received some ex-gratia provision from the defendant in 2014 and 2016/2017 — In early 2024, the plaintiff’s belief changed and she belatedly commenced a family provision claim — Held in all the circumstances no “sufficient cause” for proceedings to be brought out of time SUCCESSION — Family provision — Extension of time to bring a claim — Separate determination of issue SUCCESSION — Family provision — Extension of time to bring a claim — Policy purposes underlying extension of time provisions in family provision claims discussed — Extension principles discussed EVIDENCE — Cross-examination — Benefits include in certain instances contextualisation of events and understanding of reasons underlying decisions for certain actions and inaction SUCCESSION — Will construction — holograph Will leaving entire estate to defendant “to be dealt with as he sees fit. And at a later date for some such provision to be made by him for my daughters…” — Finding that Will did not create a legal obligation for the defendant to provide for the plaintiff and alternatively if it created an obligation to provide, it is too vague to be enforceable SUCCESSION — Family provision — Parties and affected persons — Forms — Notice of Claim — Service of a Summons and a Notice of Eligible Persons does not satisfy the purposes of service of a Notice of Claim — Practitioners encouraged to familiarise themselves with procedural requirements to avoid potential injustices SUCCESSION — Family provision — Notional estate — Determination of prior family provision claim and distribution of estate does not necessarily preclude property from subsequently being designated as notional estate — Discussion of criteria as to whether property is susceptible to being designated as notional estate
SENTENCING – manslaughter – unlawful and dangerous act – whether deceased consented to unlawful administration of prohibited drug – where co-offenders and deceased were engaged in manufacture of prohibited drug – drug supply – large commercial quantity – where co-offenders have significant subjective cases – Bugmy considerations and moral culpability – drug addiction – mental health SENTENCING – relevant factors on sentence – co-offenders – parity – where co-offenders engaged in two distinct courses of criminal conduct together – where aggregate sentence imposed for one co-offender and separate sentences imposed for another co-offender
HIGH RISK OFFENDER – final hearing – high risk violent offender – application for extended supervision order – making of order and nature of some conditions contested by defendant – whether there is high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order – extended supervision order imposed for two years with conditions – discussion about appropriate conditions
CORPORATIONS — Directors and officers — Fiduciary duties — Where directors of company resigned — Whether fiduciary duties of directors continued despite resignation — Whether the fact the company may not have been able to exploit commercial opportunity precluded a finding of breach of fiduciary duty by former directors EQUITY — Equitable remedies — Injunctions — Width of injunctive relief ordered against defaulting fiduciary and knowing assistant
Judgment of
Bell CJ at [1];
Leeming JA at [121];
Basten AJA at [122]
CIVIL PROCEDURE – Administrative law – Judicial review – Stay application – Whether a decision of the Commissioner of Corrective Services NSW to change the placement of an inmate should be stayed or suspended pending the outcome of substantive proceedings – Whether an order to change the placement of an inmate constitutes a denial of access to the Court to conduct litigation – Where an inmate is ordered to be placed in a different correctional centre with more limited access to technology whilst involved in substantive civil proceedings – Access to computers whilst in a correctional centre for the purposes of conducting civil litigation
ADMINISTRATIVE LAW – judicial review – review of Appeal Panel decision under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether jurisdictional error – whether Appeal Panel failed to accord procedural fairness – whether failure to consider and apply the correct legal principles – whether error was material – practical injustice ADMINISTRATIVE LAW – judicial review – whether error of law on the face of the record – whether typographical error in Appeal Panel’s reasons for decision – where Appeal Panel provided its actual path of reasoning to enable conclusion without speculation WORKERS COMPENSATION – psychological injury – medical assessment – where dispute as to assessment of Whole Person Impairment – deduction for previous injury or pre-existing condition or abnormality pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act – decision of Appeal Panel to revoke and issue new medical assessment certificate
WORKERS COMPENSATION — Medical assessment — Medical assessment certificate — Appeal against medical assessment certificate — whether second appeal to Appeal Panel available where no change to medical assessment certificate effected and no certificate of determination issued following decision of first Appeal Panel ADMINISTRATIVE LAW — judicial review — whether Appeal Panel misconstrued its jurisdiction — whether Appeal Panel denied Plaintiff procedural fairness in determining that it lacked jurisdiction
PROCEDURE — stay pending appeal — dispute as to composition of board of listed company — whether applicant had established proper basis for stay — appeal to be heard in 12 business days — applicant profferred undertaking to be personally liable for quantifiable costs — applicant provided security for liability on undertaking — stay ordered
CORPORATIONS – directors and officers – directors’ duties – directors causing company to engage in fraudulent and unlawful practice – directors causing company to engage in commercial agreements and practices detrimental to company and beneficial to third parties in which directors had an interest – directors apprehending loss of control diverted business to third parties in which directors had an interest – whether directors breached obligations under Corporations Act 2001 (Cth), ss 181 and 182 – whether third parties involved in breach of ss 181 and 182 within the terms of s 79 – whether directors breached fiduciary duties CORPORATIONS – statutory construction – Corporations Act 2001 (Cth), ss 181, 182 – improper purpose need not be achieved – not necessary that director acts dishonestly – honest belief as to purpose only satisfied where belief is rational – unlawful conduct necessarily improper EQUITY – fiduciary duties – knowing assistance – liability of third parties under second limb of rule in Barnes v Addy – third parties owned or controlled by family members of fiduciaries – appropriate inferences as to knowledge of dishonest conduct of fiduciaries in absence of evidence to the contrary – no requirement of belief on part of the third party that conduct of fiduciaries was dishonest and fraudulent design – whether third parties operated independently of actions of fiduciaries
Judgment of
Bell CJ at [1];
Leeming JA at [2];
Basten AJA at [3]
CONTRACTS – breach – claim by financial services licensee against corporate authorised representative – claim for unpaid monthly fees, expenses, and indemnity for costs under terms of corporate authorised representative agreement – whether individual representative personally liable for authorised representative’s obligations CONTRACTS – construction – where parties entered into “loan agreement” for repayment of compromised pre-existing debt under corporate authorised representative agreement – where terms of loan agreement refer to the payment of a loan in future – no alternative claim or claim for rectification brought – court not at liberty to rewrite the terms of the loan agreement CONTRACTS – construction – contractual indemnity – whether indemnity extends to costs other than party/party costs – principles relevant to construing purported indemnity
PRIVATE INTERNATIONAL LAW — letter of request — application for orders giving effect to letter of request issued by District Court of the Southern District of New York for the examination of and production of documents by an Australian resident — whether orders sought for improper collateral purpose — whether letter of request impermissibly seeks pre-trial discovery EVIDENCE — evidence on commission — consideration of s 33(6) Evidence on Commission Act 1995 (NSW) — meaning of “particular documents specified in the order” — whether permissible to order production of categories of documents in pursuance of letter of request
PRACTICE AND PROCEDURE – Summary dismissal – self-represented litigant – applicable test for summary dismissal – no question of principle LAND LAW – Adverse possession – possessory application over Torrens title land – issue to be determined at final hearing – no question of principle
CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – relevant to a fact in issue – justification for production concerns decision not impugned in summons – summons does not set out serious allegations invoked as basis for seeking documents – disputed documents not relevant to fact in issue CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – objection to production of documents or things – client legal privilege – whether waived for purposes of s 122 of Evidence Act 1995 (NSW) – filing of document content of which influenced by views of an expert does not establish disclosure of those views, nor does expert’s agreement to be bound by expert witness code of conduct, nor does provision of joint expert report to court – no prima facie evidence to found alleged misconduct under s 125 of Evidence Act 1995 (NSW) CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – objection to production of documents or things – document prepared for purposes of or in course of or as result of conciliation conference for purposes of s 34(11) of the Land and Environment Court Act 1979 (NSW) – s 34(11) enables production of documents to be resisted if relevant purpose dominant – protection ends when final version presented to commissioner for purpose of seeking s 34(3) decision
CIVIL PROCEDURE – Discontinuance of proceedings – proper construction of UCPR r 12.1 - where there are co-plaintiffs who are separately represented in the proceedings – where one co-plaintiff seeks to discontinue proceedings – whether all plaintiffs are active parties in the proceedings pursuant to UCPR r 12.1 – whether UCPR r 12.1 permits a co-plaintiff to file a notice of discontinuance only in respect of their claims – whether notice of discontinuance filed by the second plaintiff is void – whether the Court should make orders dismissing the claims made by the second plaintiff – whether defendants consent to orders dismissing the second plaintiff’s claims.
CRIMINAL LAW – procedure – adjournment, stay of proceedings or order restraining proceedings – application for temporary stay of proceedings on the indictment pending outcome of application for leave to appeal against refusal to grant permanent stay pursuant to Criminal Appeal Act 1912 (NSW), s 5F – whether applicant had arguable case that double jeopardy principles would be breached – temporary stay granted
CRIME – Appeals – Appeal against sentence – Two offences of sexual intercourse without consent – Aggregate non-parole period greater than the sum of the two indicated non-parole periods – The totality principle applies to aggregate sentences – An aggregate non-parole period which exceeded the sum of the indicated non-parole period constituted error – Applicant resentenced
Judgment of
Davies J at [1]
Sweeney J at [2]
Huggett J at [43]
CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – principles of Crown appeals – where sentencing young offender – where young offender acting under non-exculpatory duress
Judgment of
Bathurst CJ at [1]
Rothman J at [5]
McCallum J at [6]
CRIMINAL APPEALS – interlocutory judgment or orders – sexual assault communications privilege – leave to issue subpoena – whether material sought “will have substantial probative value” – where District Court failed to consider documents or make orders to facilitate production for that purpose – standard of review – “House error” or “correctness standard” – standard different depending on ground of appeal and power exercised – whether Judge applied the wrong test to decision to facilitate inspections – whether irrelevant considerations taken into account – directions to be provided to jury not relevant to evaluation of probative value of evidence – orders made in District Court vacated – orders facilitating production of documents to District Court made CRIMINAL LAW – constraints on lawyers appearing for protected confiders who lack capacity to consent or provide instructions – important questions raised – issue not raised in present case – largely questions of ethics – advisory opinions not provided by appellate courts
CRIMINAL LAW – procedure – bail – applicant charged with robbery in company while armed with a dangerous weapon – applicant charged with aggravated robbery causing grievous bodily harm – applicant charged with dishonestly obtaining a financial advantage – bail refused by judge of Supreme Court – release application to Court of Criminal Appeal – assessment of bail concerns – failure to appear – commit further serious offences – endanger the safety of victims, individuals or the community – no prior criminal record – strong family ties to community – youth – delay before trial – identification of applicant – strength of Crown case – whether bail conditions met bail concerns – unacceptable risks – application dismissed.
CRIME – appeals – appeal against sentence – importation of a commercial quantity of a border controlled drug – parity – “marked” disparity need not be “gross” or “glaring” – where the differences in roles and subjective cases warrant different sentences – whether the higher sentence imposed on the applicant gave rise to a justified sense of grievance – leave to appeal granted – appeal dismissed
CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Possessing a shortened firearm without authority – Possessing an unauthorised firearm – Supplying a prohibited drug – Dealing with suspected proceeds of crime – Whether sentencing judge erred in finding that the principles relevant to sentencing arising from a background of deprivation did not apply to the applicant – Bugmy v The Queen (2013) 249 CLR 571 SENTENCING – Subjective considerations on sentence – Positive and stable upbringing with mother and grandmother – Extended family environment where violence, heavy drinking and drug use and supply observed and normalised – Commencement of alcohol and drug abuse – Countervailing influences – Offender not required to establish “profound” childhood deprivation – No point of principle
CRIMINAL LAW - pretrial ruling - admissibility of evidence - female genital mutilation (FGM) - persons charged with mutilating clitoris of child contrary to s.45(1)(a) Crimes Act 1900 - Crown seek to adduce expert opinion evidence concerning FGM in Dawoodi Bohra community - evidence held relevant under s.55 Evidence Act 1995 - defence objection to evidence of Crown witness - held witness has specialised knowledge based on training, study or experience - opinion evidence admissible under s.79 Evidence Act 1995 - whether evidence ought be excluded under s. 137 Evidence Act 1995 - evidence has probative value - no danger of unfair prejudice - evidence not excluded under s.137 - evidence admissible
LEGAL PRACTITIONERS – disciplinary proceedings against solicitor – whether Respondent a fit and proper person to remain on the Roll of Australian Lawyers – where Respondent convicted of participating in a criminal group, using a false document with the intention of inducing a person to accept as genuine and then to influence that person to exercise a public duty, and knowingly taking part in the supply of a prohibited drug – where Respondent served sentence by way of intensive correction order (ICO) – where ICO has expired – where Respondent opposes relief sought – whether Respondent likely to be unfit for the indefinite future – Court satisfied of unfitness to practice for the indefinite future
COSTS — party/party — exceptions to general rule that costs follow the event — party seeking indulgence or dispensation of the court — special or different order — impecuniosity
CRIME – appeals – appeal against sentence – manifest excess – supply of firearms and prohibited weapons – possession and unlawful use of firearms – supply of illegal drugs – breaking and entering –totality and notional accumulation – where 50% discount was significantly eroded at the stage of aggregation – excessive accumulation – manifest excess established – applicant re-sentenced
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.
CORPORATIONS – Reinstatement – Winding up – Liquidators – Appointment. COSTS – Costs incurred by non-parties – Where interested party heard under r 2.13 of the Supreme Court (Corporations) Rules 1999 (NSW) seeks costs - Declined
BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Whether adjudication was affected by jurisdictional error — Whether enforcement of the determination should be stayed even if the determination was not affected by jurisdictional error ADMINISTRATIVE LAW — Jurisdictional error — Whether adjudicator failed to duly ‘consider’ relevant considerations under s 22(2) of the Building and Construction Industry Security of Payment Act 1999 (NSW) — Whether procedural unfairness established
CIVIL PROCEDURE — Expert evidence – Leave to adduce –– the first plaintiff is the former wife of the second defendant and the other 5 plaintiffs are their children – the first defendant is the corporate trustee of their family trust – the first plaintiff and the second defendant divorced in 2016 and their matrimonial property dispute resolved by agreement in 2017 – under that agreement certain payments were made to the plaintiffs and the second defendant took sole control of the first defendant trustee company – the plaintiffs claim that the first defendant has failed to pay distributions from the family trust that were due to them and payable between 2004 and 2021 – the plaintiffs allege that this nonpayment was part of a dishonest and fraudulent scheme made between the first defendant and the second defendant to unlawfully divert trust income that would otherwise have been distributed to the plaintiffs – defendants contend that the plaintiffs have received full payment of amounts due to them from the first defendant – accounting dispute about what income is due from the first defendant to the plaintiff and whether what income that is found to be due has been paid to the plaintiffs – contentious allegations in the plaintiffs’ and the defendants’ evidence about what is due to the plaintiffs and whether it has been paid – plaintiff applies for liberty to adduce expert evidence – choice of the best methodology to resolve the accounting dispute in accordance with the objectives of Civil Procedure Act 2005 Part 6. CIVIL PROCEDURE — Pleadings — Amendment – proceedings within the jurisdiction of the Supreme Court for relief brought on behalf the beneficiaries in relation to the administration of a trust – defence pleads that the claim is not maintainable because of the 2017 settlement made and approved under Family Law Act 1975 s 90D and 90G – reply joins issue as to whether the 2017 settlement should be set-aside under the Family Law Act s 90K for fraudulent nondisclosure – issue raised of the Court’s own motion – whether an issue within the jurisdiction of the Federal Circuit and Family Court of Australia and not the Supreme Court should be struck out to avoid the raising of false issues at trial or whether it may be permitted on terms requiring the cross-vesting of applicable Family Law Act jurisdiction for the proceedings in this Court.
LAND LAW – possession of land – where plaintiff as registered proprietor had permitted son to occupy premises – where attorneys under power of attorney brought proceedings – where challenge to right of attorneys to bring proceedings - where the registered proprietor required possession of the property to meet ongoing expenses – reliance by defendant on promise to leave property to him in plaintiff’s will – no defence to claim for possession
LAND LAW — Community title — Community scheme — Where resuming authority seeks orders restructuring a community scheme —Whether unit entitlements should be adjusted — No question of principle
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – insurance – “last resort” home warranty insurance policy – where insurer denied liability under policy on basis insureds failed to satisfy requirements of s 103BB(3)(a) – whether s 103BB was itself incorporated as a term of policy – whether s 103BB alters the effect of the policy so as to engage s 54 of the Insurance Contracts Act 1984 (Cth) – whether operation of s 54 of Insurance Contracts Act 1984 (Cth) was attracted where a refusal to pay is premised upon effect of s 103BB(3) and not upon the policy CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – whether Home Building Act 1989 (NSW), s 103BB inconsistent with Insurance Contracts Act 1984 (Cth) COSTS – party/party – bases of quantification – indemnity basis – primary judge ordered costs on indemnity basis – where proceedings ongoing for some time when offer of compromise made – offer had necessary element of compromise – no error
Judgment of
White JA at [1];
Mitchelmore JA at [59];
Stern JA at [60].
HIGH RISK OFFENDERS — extended supervision orders — unacceptable risk of committing a serious sex offence — final hearing — existing Extended Supervision Order imposed — extension of two years — significant history of sexual offending — previous breaches of terms of Extended Supervision Order — defendant with intellectual disability — Conditions expressed in more easily understood terms
CHILD WELFARE — Parens patriae — Application for secure accommodation orders — Secure accommodation orders made in November 2022 for neurologically affected child exhibiting self-harming behaviours and at significant risk of sexual abuse — Progression of child through a protective care and transformative program designed to restore the child to life in the community having had the benefit of appropriate health and educative supports — Transition leave sought and ordered CHILD WELFARE — Parens patriae — Secure accommodation orders — Protective care and transformative program explained — Care supports and their aims described CHILD WELFARE — Parens patriae — Secure accommodation orders — Transition considerations explained — Leave to transition necessarily to be assessed by reference to viable placement alternatives — Proposed placement remote from child’s former carers — No closer acceptable alternative placement readily available — Balancing of risks associated with move to proposed distant placement against risks associated with delaying transition — Diminishing returns to be gained by keeping child within the existing program and facility — Further confinement with potentially unduly prolonged delay might be counter-productive — On balance, transition is appropriate — Nature of the protective jurisdiction enables the Court to stand ready to meet exigencies of setbacks if risks materialise
CORPORATIONS – management and administration – meetings – where quorum requirement will not be satisfied for meeting of members – whether an order under s 249G required to convene a meeting of members because of impracticability.
PRACTICE AND PROCEDURE – Disclosure – Disputed claims of legal advice privilege and litigation privilege under ss 118 and 119 of the Evidence Act 1995 (NSW) in relation to communications between defendant’s General Counsel and other officers and employees of the defendant – No question of principle.
CIVIL PROCEDURE – Court of Appeal – application for stay – Burgandy Royale test – limited stay granted APPEAL — Security provided in form of bank guarantees — order that guarantees be released – limited stay of order
CIVIL LAW – high risk offender – application for 18 month extended supervision order – preliminary hearing – interim supervision order – application of statutory test – whether supporting documentation if established would justify the making of an order – assessment of risk – consideration of authorities – extremely serious sexual offences committed when the defendant was 24 – defendant now 40 – where two year extended supervision order about to expire – positive but not perfect progress towards rehabilitation – reduction in statistical assessments of chances of recidivism – no recent record of violence or sexual offending – assessment of response to parole and current supervision order – where only recent offences arose from disobedience to supervision order and directions – defendant in positive relationship with supports in place – where no relaxation in strict conditions like electronic monitoring and weekly scheduling – where police targeted defendant because of ankle bracelet – where defendant believed racial component – “hero complex” or tying to help – demonstration of increased maturity and capacity to regulate emotions – summons dismissed
CRIME – Bail – Appeal bail – Whether court had jurisdiction to hear and determine bail application – Where proceedings not “pending in the court” within the meaning of Bail Act 2013 (NSW), s 61 because notices of appeal not “duly given” for the purposes of Criminal Appeal Act 1912 (NSW), s 10(2) CRIME – Bail – Appeal bail – Whether applicants established “special or exceptional circumstances” to justify decision to grant bail
CIVIL PROCEDURE – pleadings – application to strike out pleadings – where proceedings were brought for negligence and nuisance – where it is claimed that the statement of claim is confusing and embarrassing and do not adequately plead cases pursued including for pure economic loss – motion dismissed
BUILDING AND CONSTRUCTION — RSL club engages builder, who engages subcontractor — subcontractor serves notices of claim on RSL club under Contractors Debts Act 1997 (NSW) — RSL club challenges adjudication determination in favour of builder — RSL club undertakes to maintain funds in bank account to pay notices of claim and pays the balance of the adjudicated amount into Court — RSL club fails — subcontractor still unpaid — whether monies in Court should be paid to the subcontractor, the builder or the RSL club. CONTRACTORS DEBTS ACT 1997 — purpose – review — whether RSL club entitled to defend enforcement action by subcontractor outside the ’pay now, argue later’ regime established by Building and Construction Industry Security of Payments Act 1999 – harmonious operation of both Acts.
COMPULSORY ACQUISITION OF LAND —compensation — market value of land — statutory disregard of certain increases or decreases in value of land — public purpose for which the land acquired — meaning of “public purpose” — where Transport for NSW acquired land pursuant to s 177 of the Roads Act 1993 (NSW) for the construction of the M12 motorway — whether broader purpose of developing area of the Western Sydney Airport was part of Transport for NSW’s “public purpose” for the purposes of s 56(1)(a) STATUTORY INTERPRETATION — Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 56(1)(a) — meaning of “public purpose” — whether public purpose in s 56(1)(a) is limited to purposes for which an acquiring authority is authorised by statute to acquire land
Judgment of
Gleeson JA at [1];
Adamson JA at [2];
Preston CJ of LEC at [82]
CONTRACTS — Formation — Acceptance of offer — Correspondence with offer CONTRACTS — Formation — Agreement — Uncertainty and incompleteness CONTRACTS — Formation — Contracts requiring written evidence — Contracts for sale of land or interest in land CONTRACTS — Formation — Conditional promises — Subject to finance CONTRACTS — Construction and interpretation — Parol evidence rule — Prior negotiations CONTRACTS — Construction — Extrinsic evidence — Prior negotiations CONTRACTS — Unconscionable conduct — Special disadvantage CONTRACTS — Undue influence — Actual undue influence CONTRACTS — Misrepresentation — Fraudulent misrepresentation CONTRACTS — Remedies — Damages — Proof of loss or damage EQUITY — Equitable charges and liens — Vendor’s lien
HIGH RISK OFFENDERS – extended supervision orders (ESO) – final hearing – assessment of unacceptable risk of committing a serious offence – where the criminal history and index offending of the defendant involved serious violent offending – Paranoid Schizophrenia – continued lack of insight into own risk factors – 18-month ESO imposed – where the continued involvement of the ESO remains essential – where a CTO alone does not sufficiently manage the unacceptable risk – electronic monitoring “sunrise clause” condition not imposed
CIVIL PROCEDURE — summary disposal — want of due despatch — delays by self-represented appellant in prosecuting an appeal — new circumstances come to light — not in the interests of justice to dismiss proceedings CIVIL PROCEDURE — Court of Appeal — objections to competency of appeal — uncertain whether leave to appeal required — appellant has attempted to comply with orders to file a summons seeking leave to appeal — appellant’s notice of appeal filed two days out of time — not in the interests of justice to dismiss proceedings CIVIL PROCEDURE — summary disposal — dismissal of proceedings — non-appearance of plaintiff — plaintiff withdrew legal representation mid-way through hearing and later left the courtroom— whether r 29.7 of the Uniform Civil Procedure Rules (2005) (NSW) applies where a party leaves the court room mid-way through a hearing CIVIL PROCEDURE — Court of Appeal — pro bono referral — party terminated previous pro bono referral — issue of principle emerged on appeal satisfying the “special reasons” requirement in r 7.36 of the Uniform Civil Procedure Rules (2005) (NSW)
CONSUMER LAW — Application of the Australian Consumer Law — whether primary judge was required to, but did not, make a finding as to whether the representations made were “false or misleading” and fell within the ambit of s 29(1)(b) of the Australian Consumer Law and s 12DB(1)(a) of the Australian Securities and Investments Commission Act 2001 (Cth)
Judgment of
Stern JA at [1];
Ball JA at [63];
Price AJA at [64]
MENTAL HEALTH – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – application for interim extension order – forensic patient – whether unacceptable risk of causing serious harm if status as forensic patient ceases – where defendant continues to deny he suffers from mental health issues and was non-complaint with pharmacological treatment – where defendant has a history of violence – risk posed cannot be managed by less restrictive means – interim extension order granted
NEGLIGENCE – duty of care – particular relationships – medical practitioner and patient – proceedings for damages as a result of a procedure carried out on the plaintiff’s left eye by a doctor at the Sydney Eye Hospital – where the plaintiff claims to have lost vision in his left eye and suffered ongoing pain and psychiatric damage – whether the defendant breached its duty of care by performing an excessive number of attempts to tap vitreous fluid causing injury – where the plaintiff’s evidence was found to be unreliable – where the defendant’s evidence was borne out by contemporaneous notes and accepted – where it was accepted that no more than three injections were attempted – where the procedure was carried out to a standard widely accepted in Australia by peer professional opinion as competent professional practice – defendant did not breach its duty of care OCCUPATIONS – medical practitioners – medical records – whether the defendant breached its duty of care by failing to document the procedure – where a number of notes about the procedure were absent – where it was uncertain if the notes were not made or lost subsequently – where the plaintiff claimed that the loss of notes contributed to his PTSD – where there is no requirement on a doctor to make notes – where there can be no breach of duty in omitting to make notes – where the failure to make out a s 5O defence does not impose a liability – defendant did not breach its duty of care EVIDENCE – expert evidence – whether the evidence of the plaintiff’s overseas treating doctor can be used as expert evidence – where the doctor prepared five reports – where the Expert Witness Code was not acknowledged – where a treating doctor lacks the objectivity of other experts – where the doctor has never practised in Australia – where the reports were obtained without letters of instruction – where the doctor reversed his opinion on a significant matter – where the evidence of the plaintiff’s expert was rejected unless there was unanimity with the other experts
CIVIL PROCEDURE – appeal – application for leave to appeal – respondent’s application for security for costs – whether corporate applicant unable to pay costs if unsuccessful – strength of applicant’s case for leave – stay until security paid into court CIVIL PROCEDURE – appeal – application to stay costs order made by primary judge – stay on basis of payment into court CIVIL PROCEDURE – application for leave to appeal – respondent’s application for security for costs – applicant issued notice to produce – respondent’s motion to set aside notice – documents sought to resist security for costs application – agreements between respondent and legal representatives – relevance not established – documents sought to show respondent owed money to applicant – relevance not established – to determine balance of account between parties would be to engage in satellite litigation
CRIMINAL PROCEDURE — Stay of proceedings — Permanent — where permanent stay of criminal proceedings sought as a result of coaching of complainant in charge certification conference by solicitor advocate — where notes of conference later disclosed to applicants’ legal representatives — where application for permanent stay declined at first instance — consideration of statutory obligations on prosecutors — whether applicants could have a fair trial — whether allowing the trial to continue would bring the administration of justice into disrepute —whether undertakings by Crown would mitigate any unfairness — factors relevant to grant of a permanent stay of proceedings CRIME — Appeals — Interlocutory appeal — against decision to refuse a permanent stay — where error shown — whether Court should re-exercise discretion to grant stay
Judgment of
Bell CJ at [1];
Ward P at [132];
Sweeney J at [133]
ADMINISTRATIVE LAW – judicial review – decision of Racing Appeals Tribunal – where horse tested positive to prohibited substances after a race – appeal by way of fresh hearing – where expert evidence given little weight – where expert was not cross-examined – where plaintiff contended that they were unaware that the Tribunal was contemplating certain adverse findings – whether plaintiff was denied procedural fairness – no denial of procedural fairness ADMINISTRATIVE LAW – judicial review – failure to give reasons – where expert evidence given little weight – where plaintiff contended that the Tribunal did not give sufficient reasons – adequate reasons provided
CONTRACT – construction and interpretation of Prospective Approval Indication contract – regard to text, context and purpose – importance of grammatical structure – reading contract as a whole – no question of principle EQUITY – relief against penalties – whether contract clause unenforceable as a penalty – no question of principle
NEGLIGENCE – historical sexual assault – whether error in process of making findings of primary fact – whether removal of limitation period alters obligation of plaintiff to establish elements of cause of action – whether primary judge sufficiently paid regard to inconsistencies in plaintiff’s account NEGLIGENCE – claim brought against “Diocese” – juristic nature of defendant – significance of defendant being proper defendant under Part 1B of Civil Liability Act 2002 (NSW) – whether defendant owed duty of care to plaintiff in 1969 – significance of litigation proceeding on basis that alleged abuser was a parish priest rather than an assistant priest – obligation to establish foreseeability of harm by assistant priest by evidence – no duty of care owed NEGLIGENCE – non-delegable duties – whether appellant could owe non-delegable duty of care for intentional criminal act of assistant priest
Judgment of
Bell CJ at [1];
Leeming JA at [18];
Ball JA at [253]
CORPORATIONS – voluntary administration – where First Plaintiff is largest shareholder of the First Defendant, which is in administration – where First Plaintiff executed letter of comfort as a deed – where First Plaintiff subsequently provided an executed term sheet, setting out the terms of a proposed bridge funding facility – where the term sheet provides that it is a condition precedent of the facility that financing documentation be entered – where the letter of comfort has been extended to 30 June 2025 or until facility documentation is entered - whether proposed financier has capacity to meet all claims of creditors that are due and payable – whether conditions precedent of facility will be satisfied or waived – whether First Defendant is solvent – whether order should be made ending administration of First Defendant with immediate effect
CIVIL PROCEDURE – effect of grant of “liberty to apply” – whether costs order conditional or final – time limit imposed by r 36.16 of the UCPR – inherent jurisdiction to make orders to prevent injustice or ensure fairness – general power under s 14 of the Civil Procedure Act to dispense with rules – no power for Court to extend the time for the filing of a motion to vary a costs order
PROCEDURE – judicial review of District Court’s dismissal of interlocutory appeal from Children’s Court – whether independent legal representative of child entitled to be heard – where divergence in submissions between Secretary and independent legal representative – where divergence of principle on face of authorities – where Court would be assisted by submissions from independent legal representative on questions of law – leave granted to be joined as intervener
ADMINISTRATIVE LAW – review for denial of procedural fairness – review on the grounds of irrelevant and relevant considerations – remedies – discretionary factors – delay – plaintiff is the Owners Corporation of a multi-residential apartment building erected in suburban Sydney – the second defendant is the New South Wales Civil and Administrative Tribunal (“NCAT”) – the first defendant is a Council constituted under the Local Government Act 1993 (“the Council”), and the developer of the complex – after the building work is completed and the building is occupied, the plaintiff sought to file an application with the Registrar of NCAT against the Council and others for breach of the statutory warranties provided under the Home Building Act 1989 – application is rejected by the Registrar – NCAT files a submitting appearance in these proceedings – Council defends NCAT’s rejection of the application – whether the Registrar of NCAT denied the plaintiff procedural fairness in rejecting the application – whether the Registrar took into account irrelevant considerations or failed to take into account relevant considerations in rejecting the application – whether prerogative relief under Supreme Court Act 1970, s 69 should be refused on discretionary grounds due to the delay of the plaintiff in bringing these proceedings.
CIVIL PROCEDURE – hearings – application to expedite application for leave to appeal where final hearing below soon to commence – prolonged proceeding below with final hearing dates twice postponed on applicant’s application based on mental health arguments – applicant not yet filed materials on application for leave to appeal despite orders – application refused to avoid heavy burden on parties and interference in preparation for final hearing CIVIL PROCEDURE – Court of Appeal – whether should be concurrent hearing of leave application and appeal is administrative decision generally made by President of Court of Appeal – not open to applicant to seek that the decision be made by a judge of appeal determining a motion CIVIL PROCEDURE – hearings – adjournment – adjournment sought when very short period remains before commencement of final hearing
CRIME – appeals – appeal against sentence – by Crown against inadequacy – where the respondent pleaded guilty to an offence of dangerous driving occasioning death – where the bus driven by the respondent collided with a kerb and continued forward in an area with school children – where the bus collided with a tree and struck a student before coming to a standstill – whether the sentencing judge erred in his assessment of objective seriousness – where there was no misapplication of principle – where a custodial sentence was appropriate – where the sentence imposed bears out the finding of objective seriousness CRIME – appeals – appeal against sentence – by Crown against inadequacy – whether the sentencing judge erred in finding that the respondent “mistakenly put her foot on the accelerator instead of the brake and grappled to no avail with the handbrake” – where CCTV footage and the respondent’s evidence meant the finding was open to the sentencing judge CRIME – appeals – appeal against sentence – by Crown against inadequacy – whether the sentence pronounced is manifestly inadequate – where the sentence fell within the range of sentences contemplated in the guideline judgment – where nothing suggested a sentence within the guideline judgment was not appropriate – where the offender did not have a high level of moral culpability – where the respondent’s subjective case was strong – where there was a finding of special circumstances – where it cannot be said that the sentence lies so far outside the range of appropriate sentences that there must have been an error – appeal dismissed
Judgment of
Harrison CJ at CL at [1]
Davies J at [2]
Rigg J at [92]
CONTRACTS – Formation – Agreement – Whether an oral agreement of accord and satisfaction was formed – Lack of a genuine dispute between the parties CONTRACTS – Formation – Consideration – Where part payment of a debt is not good consideration EQUITY – Equitable interests in property – Priority disputes between competing equitable interests –Whether there was actual or constructive notice of the earlier equity – Whether there was a “registrable dealing” for the purposes of section 43A of the Real Property Act 1900 (NSW)
Judgment of
Bell CJ at [1];
Payne JA at [54];
McHugh JA at [55].
CRIMINAL PROCEDURE – suppression and non-publication orders – where the Court published reasons in September 2023 dismissing an appeal from an interlocutory judgment in the District Court – where the Court declined to grant a permanent stay of criminal proceedings – where publication of the Court’s reasons was restricted until completion of the District Court trial – where the District Court trial was completed – where suppression orders were made by the District Court in respect of the identities of a solicitor and solicitor advocate in related proceedings – where the respondent sought amendments to the Court’s reasons in order to redact the initials of the instructing solicitor and solicitor advocate prior to publication – whether suppression orders should be made according to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW)
COURTS AND TRIBUNALS – Mental Health Review Tribunal – whether Tribunal’s detention and revocation of conditional release were valid under ss 79 and 81 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) MENTAL HEALTH – forensic patient – forensic patient scheduled under s 19 of the Mental Health Act 2007 (NSW) – whether extension of time and leave to appeal should be granted – where conditional release breached – whether s 109 of Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) provides a mandatory scheme where conditional release breached STATUTORY INTERPRETATION – whether s 81 limited to detention orders – whether s 81 provides a general power to make orders as to detention of forensic patients – where orders being made after initial detention order – whether power to revoke conditional release implied from express power of detention in s 81 – Anthony Hordern principle of statutory construction considered – futility of order for apprehension under s 109 when forensic patient already detained – whether s 109 has a role to play
Judgment of
Basten AJA at [1];
Griffiths AJA at [17];
Price AJA at [18]
CONTRACTS — construction and interpretation — letter of comfort — where parent company undertook to pay “any debts” of subsidiary — where liquidators of subsidiary admitted proofs of debt in respect of undetermined civil claims — whether “any debts” in the letter of comfort includes liabilities accepted by liquidators
Judgment of
Mitchelmore JA at [1]
Kirk JA at [66]
Adamson JA at [67]
CIVIL PROCEDURE – consent judgment – compensation for breach of duty of care and professional negligence resulting in ataxia cerebral palsy – where defendant purchased the hospital assets but not the liabilities – further investigations into identity of insurer – satisfied the agreement in the interests of plaintiff – judgment entered
DEEDS – Execution and attestation – Intention to create deed – Delivery in escrow – Intention by parties delivering deed to be immediately bound on condition that deed becomes effective only upon execution by other party – Held: Deed effective immediately upon satisfaction of escrow condition. EQUITY – Unconscionable conduct – Whether defendants’ execution of deed procured by plaintiff taking unconscientious advantage of alleged special disadvantage of first defendant – Held: No. Special disadvantage not established. CONTRACTS – Contracts Review Act 1980 (NSW) – Whether deed unjust – Held: No. EQUITY – Equitable remedies – Specific performance – Where the plaintiff has carried out her obligations under the deed – Where defendants are in default under the deed – Held: Specific performance of the deed ordered. ESTOPPEL – Proprietary estoppel – Where plaintiff became sole registered proprietor of family home by right of survivorship upon death of her husband – Where first defendant is the son of the plaintiff and the deceased – Where first defendant seeks a declaration that he has an equitable interest in the family home and that 50 per cent of that property is held on trust for him by the plaintiff – Where first defendant claims the deceased made representations to him, to the knowledge of the plaintiff, that he would inherit the family home – Whether representations were in fact made – Whether first defendant acted in reliance on the alleged representations – Where the first defendant has acknowledged by deed that he has no equitable interest in the property and has released the plaintiff from any claims against the property – Held: The deed is a complete defence to the proprietary estoppel claim, and the alleged promises were not provided in any event. SUCCESSION – Family provision – Approval of release – Where first defendant has released his rights to apply for an order for family provision out of the whole or any part of the plaintiff’s actual or notional estate – Consideration of matters in Succession Act 2006 (NSW) s 95(4) and circumstances of the case – Held: Release approved under s 95 of the Succession Act 2006 (NSW).
COSTS – whether departure from usual costs order is warranted – where defendant is not an ordinary litigant – where it is claimed that defendant did not disclose reason for decision until the hearing – whether misconduct warranting an order that each party bear its own costs occurred– not satisfied that any departure from usual costs order is warranted given the plaintiff’s pursuit of a construction of the Motor Accident Injuries Act 2017 (NSW) which could not be accepted
BUILDING AND CONSTRUCTION — adjudication — Building and Construction Industry (Security of Payment) Act 2021 (WA) — policy of security of payment legislation — timeframes — rough and ready — brutally fast — policy best served by restricting judicial intervention — East Coast model — jurisdictional differences and similarities BUILDING AND CONSTRUCTION — adjudication — Building and Construction Industry (Security of Payment) Act 2021 (WA) — jurisdictional fact — where statutory language objectively worded — subjective opinion of adjudicator — release of performance security bonds BUILDING AND CONSTRUCTION — adjudication — Building and Construction Industry (Security of Payment) Act 2021 (WA) — whether service requirement met by providing link within email — meaning of “given” — whether strict compliance was a precondition to jurisdiction BUILDING AND CONSTRUCTION — adjudication — Building and Construction Industry (Security of Payment) Act 2021 (WA) — proper form of relief — mandamus — whether adjudicator must determine review application in accordance with law — where other proceedings on foot
BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Whether adjudicator’s determination affected by jurisdictional error on the basis that he erroneously found that certain submissions were not “duly made” or failed to consider submissions about set-off — Whether orders ought to be made in the nature of mandamus compelling adjudicator to determine parts of adjudication application which remain undetermined because of jurisdictional error BUILDING AND CONSTRUCTION — Adjudication — Declaration — Whether declaration about validity of new adjudication application ought to be made
CRIME – Appeals – Appeal against sentence – Application for leave to appeal – The relationship between the guideline judgment of R v Ponfield and s 21A of the Crimes (Sentencing Procedure) Act – An offender’s prior criminal history and being subject to conditional liberty at the time of offending not to be taken into account in assessing the objective seriousness of the offence for sentence
COSTS – review of decision of Judge of Appeal under s 46(4) of the Supreme Court Act 1970 (NSW) – where security for costs granted by Judge of Appeal – whether decision involved an error of principle or was plainly wrong – where Judge of Appeal found special circumstances were not required under s 1335 of the Corporations Act 2001 (Cth) – no error of principle
Judgment of
Mitchelmore JA at [1]
McHugh JA at [2]
Ball JA at [3]
APPEALS — Contracts — Construction — where two co-owners agreements (COA) govern relationship between co-owners of large suburban shopping centre — where pre-emption rights on defaults and deemed defaults by co-owners in dealing with that co-owner’s ownership interest entitle non-defaulting owners to purchase defaulting co-owner’s ownership interest — whether two separate transactions effecting a transfer of ownership interests were prohibited disposals triggering pre-emption rights — whether second COA had a greater effect than to substitute an outgoing co-owner with an incoming co-owner — whether ownership interest was acquired “under” clauses regulating dealing and establishing pre-emption rights — whether service provisions ought be construed as essential
CRIMINAL LAW – appeals – appeal against sentence – whether error in not applying statutory numerical discount for guilty plea entered after trial commenced – error conceded – question of whether any lesser sentence warranted in law– question of whether applicant’s moral culpability should be reduced – approach to Bugmy considerations – approach on resentence – serious offending over many years – multiple child victims – leave granted – appeal against sentence dismissed
Judgment of
Mitchelmore JA at [1]
Walton J at [83]
N Adams J at [84]
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving shareholders’ scheme of arrangement and creditors’ scheme of arrangement – Where formal requirements satisfied – Whether schemes of arrangement should be approved
COSTS – adjustment to costs orders – specified gross sum cost order – Civil Procedure Act 2005 s 98(4)(c) – what adjustments should be made to existing costs orders in the proceedings by reason of a decision of the Court of Appeal overturning part of the Court’s prior judgments at first instance. CIVIL PROCEDURE – interest – whether in calculating offsetting claims in costs, whether interest should run on a Local Court judgment the subject of a temporary stay on enforcement when no order made it interest should not run under Civil Procedure Act 2005 s 101(4).
SUCCESSION — Family provision — Claim by de facto spouse pursuant to s 59, Succession Act 2006 (NSW) — Whether will made adequate provision for the proper maintenance, education or advancement in life of the plaintiff — Where plaintiff given portable life estate in home shared with deceased — Where plaintiff sought in lieu absolute ownership of other real property in the estate — Where provision inadequate SUCCESSION — Family provision — Matters in s 60(2) — Other beneficiaries’ competing claims on the estate — Relevance of historical abuse to the nature and extent of obligations owed by the deceased person to beneficiaries — Weight to be given to testator’s judgment SUCCESSION — Family provision — Whether to exercise power in s 66(2) to make additional orders to adjust the interests of other beneficiaries — Where question not sufficiently addressed in parties’ submissions
CRIME – appeals – appeal against conviction – child sexual offences – tendency evidence – whether trial judge erred in admitting tendency evidence – whether miscarriage of justice EVIDENCE – tendency evidence – complainant 13 years old – no dispute that sexual intercourse took place – where applicant’s case was of an honest and reasonable belief that the complainant was 16 years or older – where applicant’s previous relationship with a female child aged between 9 and 10 and 13 and 14 admitted by the trial judge as tendency evidence to rebut the applicant’s case of an honest and reasonable mistake EVIDENCE – tendency evidence – where tendency evidence presented to the jury by way of agreed facts under s 191 of the Evidence Act 1995 (NSW) – where material difference between the evidence placed before the trial judge and the agreed facts – consideration of the relevant evidence for determination of the grounds of appeal EVIDENCE – whether s 97A of the Evidence Act applied – where applicant had made clear that sexual intercourse was not in issue – whether sexual intercourse remained a “fact in issue” – whether “fact in issue” includes all the elements of the offence EVIDENCE – whether error in admitting tendency evidence – adjectives “intimate” and “consensual” – whether error by trial judge in concluding that sexual relationship with other female child was of long-standing commencing when that child was aged between 9 to 10 years – whether description of previous relationship as “intimate” and “consensual” and “it is known” in agreed facts gave rise to a real risk that evidence would be used in an unfair way EVIDENCE – tendency directions to jury – whether direction required that relationship with the female child was not sexual before she turned 13 years old – whether the probative value outweighed the danger of unfair prejudice CRIME – appeals – appeal against conviction – where no objection made to tendency direction at trial – whether application of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) CRIME – appeals – appeal against conviction – where miscarriage of justice – whether proviso applicable
Judgment of
Price AJA at [1];
Dhanji J at [119];
Yehia J at [129]
CORPORATIONS – approval of compulsory acquisition of shares from minority shareholders pursuant to s 664F of the Corporations Act 2001 (Cth) – standing requirements – procedural requirements – whether the shares are to be acquired at a fair value CORPORATIONS – application for order under s 1322(4)(a) of the Corporations Act 2001 (Cth) to extend the time for dispatch of the prescribed notice under s 665B(2) to holders of convertible securities – whether there is utility in requiring compliance with obligations in ss 665A and 665B of the Act within the period stipulated by the Act – extension of time granted
APPEALS – procedure – stay of orders in District Court pending outcome of judicial review application in Court of Appeal – serious issue may be raised – no significant prospects of success on broadbrush view – balance of convenience taking account of risk of prejudice militates against stay CORPORATIONS – practice and procedure – security for costs – some delay in seeking security – no inference that ordering security would stifle proceedings – security appropriate – case of confined issues – sufficient for one junior counsel to appear in short hearing – broadbrush assessment of costs to be allowed
COSTS – Costs Orders – where Receiver sought directions in respect of various proposed adjustments to director loan accounts – where proceedings were in substance adversarial – where separable issues – apportionment of costs
COSTS — Party/Party — Court’s discretion — Whether indemnity costs should be ordered — Calderbank offer — Where terms of proposed settlement unclear — Where timeframe for acceptance was seven days — Where no genuine element of compromise COSTS — Party/Party — General rule that costs follow the event — Gross sum costs order — Standard of evidence required — Where no evidence of legal work completed or rates charged
CRIMINAL APPEALS – sentence appeal – miscarriage of justice – asserted conflict of interest in counsel acting at first instance – no evidence to establish conflict – no rule that the same advocate cannot appear for two offenders in sentencing proceedings – fact that a different submission conjured by appellate counsel “could” have been made establishes little or nothing – invariably the case – no waiver of privilege – reliance on record of court below – no evidence tendered on appeal – no merit in ground – no evidence of practical injustice – appeal dismissed
Judgment of
Price AJA at [1]
Campbell J at [4]
Hamill J at [5]
COSTS – Where only issue ultimately litigated by the parties is whether a valuer’s determination was in accordance with the contract – Plaintiff contended it was, defendant contended it was not – Plaintiff failed – No reason why costs should not follow the event – Where valuer was joined to the proceedings and filed a submitting appearance save as to costs – No good reason for the valuer to bear any costs
CRIMINAL LAW – appeals – appeal against sentence – whether sentencing judge erred in his finding of no reduction to moral culpability on the basis of neurocognitive disorder – whether sentencing judge erred in his findings regarding general deterrence – De La Rosa principles
Judgment of
Davies J at [1];
Lonergan J at [2];
Yehia J at [70]
COSTS — Party/Party — Orders against non-parties — Whether director and controller of plaintiff trustee company and discretionary trust a “real party” to litigation
CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Offences of sexual intercourse with children outside Australia and possessing child abuse material – Whether the sentencing process miscarried – Whether the sentencing judge erred in her consideration of the age of the victims – Whether the sentencing judge mistook the statutory age limit of an offence provision – Whether the sentencing judge erred in incorrectly stating an offence provision – No point of principle
INSURANCE – Insurance Contracts Act 1984 (Cth) – non-disclosure and misrepresentation – duty of disclosure – where senior executive of Leighton made a file note in November 2010 detailing conversations with another senior executive (“Iraq File Note”) – where that executive advised he had an opportunity to extend/vary a contract for a major infrastructure project in Iraq but it would require payment to a third party nominated subcontractor of $50-$60 million where the real value of the work was less than 50% of the payment, and that the current contract was won by a payment to a nominated subcontractor “on the same terms” – where Iraq File Note not disclosed to insurers for 2011 year (“2011 Insurers”) – where Leighton subsequently entered into primary and excess layers of D&O Insurance for the 2011 year (“2011 Policies”) – whether Leighton breached its duty of disclosure under s 21 of the Insurance Contracts Act and made a misrepresentation to the 2011 Insurers INSURANCE – Insurance Contracts Act 1984 (Cth) – whether the 2011 Insurers were entitled to reduce their liability to nil under s 28(3) of the Insurance Contracts Act INSURANCE – Liability insurance – directors and officers – whether cll 5.3 and 7.1 of the 2011 Policy precluded the 2011 Insurers from reducing their liability under s 28 of the Insurance Contracts Act – whether cl 5.3(ii) of the 2011 Policy operated so that limit of liability under previous years policy (as reduced by amounts previously paid) applied to CIMIC’s claims INSURANCE – Insurance Contracts Act 1984 (Cth) – contribution – whether AIG entitled to equitable contribution of 50% from Berkley and Swiss Re – where, without recourse to s 54 of the Insurance Contracts Act, AIG could not have contribution from Berkley – whether an omission to form an expectation that a claim could arise is a relevant omission for the purposes of s 54 of the Insurance Contracts Act INSURANCE – Liability insurance – directors and officers – where primary judge granted declaratory relief against insurers for the 2010 year – whether Court had jurisdiction to grant declaratory relief or alternatively whether the exercise of jurisdiction to grant declaratory relief miscarried APPEALS – Procedural fairness – whether primary judge denied Berkley procedural fairness in limiting its cross-examination of two witnesses
CRIMINAL PROCEDURE — s 5F Criminal Appeal Act 1912 — temporary stay of proceedings granted to enable applicant to seek leave to appeal against a decision of the District Court refusing a permanent stay application — reluctance of appellate courts to fragment criminal proceedings at first instance — prospects of appeal succeeding and balance of convenience considered CRIMINAL PROCEDURE — whether plea bargains are a form of contractual undertaking — whether arguable that an abuse of process on the part of the Crown to reinstate charges that it agreed not to prosecute pursuant to a plea bargain with the applicant
Judgment of
Macfarlan JA at [1];
Wright J at [23];
Dhanji J at [24].
CRIMINAL LAW – bail – repeated applications – change of circumstances – show cause requirement – assessment of bail concerns – no question of principle
CONTRACTS – construction – where plaintiffs and defendants entered irrevocable offers deed concerning land at Campbelltown – where deed provides call and put options – whether plaintiffs have complied with obligation to provide requisite plan of subdivision – whether plan of subdivision provided to the defendant was “based upon” plan annexed to deed as varied – whether such plan is a Plan of Subdivision (Balance Land) as defined in the deed CONTRACTS – construction – where plaintiffs accept they have lost right to acquire Property 6 under the deed – whether plaintiffs have thereby lost right to call for remaining properties – whether deed has thereby ceased to be capable of performance according to its terms
EQUITY — LIMITATION OF ACTION — Limitation Act 1969 (NSW) ss 14, 23 — Right of equitable contribution — Claim by a co-owner of real property for contribution from the other co-owner to payment of asserted co-ordinate liabilities in relation to the real property — Whether liabilities were co-ordinate and, if so, to what extent — Whether no right to equitable contribution arose because the payments were made without any intention of recovery or contribution — Whether, if there was otherwise a right to equitable contribution, the claim is statute-barred as being analogous to a claim in contract or quasi contract — HELD: no right of equitable contribution arose because the payments were made with the intention that they would not be recoverable — HELD: claim not statute barred as not analogous to a claim in contract or quasi contract
CIVIL PROCEDURE – Interim preservation – freezing orders – where freezing order sought in aid of enforcement of County Court of Victoria default judgment – where plaintiff seeks freezing order against net proceeds of the defendant developer’s only Australian asset – freezing order within Australia and worldwide – orders made
CRIMINAL PROCEDURE – suppression and non-publication orders – closed court orders – restricted retention orders – where orders sought protect disclosure of monetary amounts paid to witnesses for co-operation – public interest in open justice a primary objective of the administration of justice – meaning of “necessary” – whether reasons for orders sought contained in confidential affidavit should be protected – reasons disclosed – orders made CRIME – murder – destroy or damage property intending to endanger life of another – maliciously wound – maliciously inflict grievous bodily harm
AGENCY – authority of agent – implied actual authority – reason to infer board’s authorisation for one of its directors to sign on its behalf – Jones v Dunkel inferences drawn where no evidence from board AGENCY – service requirement under s 55(1)(c) of the Property, Stock and Business Agents Act 2002 (NSW) – circumstances militating in favour of ordering relief under s 55A from disentitlement to commission and expenses CIVIL PROCEDURE – pleadings – failure to raise issue in pleadings below – unfair to respondent to hold that counsel’s attempt to meet a point on the run was a concession that the point was in issue
Judgment of
Kirk JA at [1];
Adamson JA at [66];
McHugh JA at [67]
CRIME — Appeals — Appeal against sentence — By Crown against inadequacy — issue of totality and accumulation of the overall non-parole period — where respondent was serving three pre-existing sentences — whether undue weight placed on the non-parole period ratio and insufficient weight on other relevant sentencing factors including deterrence and denunciation — need to maintain public confidence in the administration of justice — whether Court should exercise residual discretion and re-sentence the respondent
CRIMINAL LAW – procedure – discharge of jury – murder – one accused charged as accessory before the fact - solicitors cease to act for other accused half way through trial – no fault attributable to that accused - attempts to obtain further legal representation – delay – application by Crown to discharge jury – whether accused should represent himself – accessory opposes discharge – whether trial should continue against accessory alone – accessory with physical and mental health issues – accessory’s desire to have proceedings concluded and determined - danger of inconsistent verdicts if trials separated – unfairness to accused if trial proceeds without further legal representation – danger of miscarriage of justice - unfairness to Crown if trials separated – jury discharged
CIVIL PROCEDURE – stay of proceedings – concurrent civil and criminal proceedings – same subject matter – where accused was employee of the defendant – where accused not cooperating with defendant – where accused’s trial imminent – where civil proceedings recently commenced – stay refused but case management orders made to take account of trial
SUCCESSION — Burial Rights — Sudden death — Deceased whilst swimming suffered distress and was brought to shore but unable to be revived — Intestacy — Deceased held Russian Orthodox faith — Dispute between the plaintiff (deceased’s brother and only sibling) and the defendant (who claims to be the deceased’s “spouse” for intestacy purposes) in relation to carriage of funeral arrangements and acquisition of permanent interment rights SUCCESSION — Burial Rights — Case management — Parties seek determination regarding carriage of burial and acquisition of perpetual interment rights — Burial and initial acquisition of interment rights immediately addressed — Ultimate interest of the parties in rights of interment (perpetual or otherwise) separated from abovementioned preliminary matters — Orders for appointment of an interim administrator for expeditious dealing with custody of the deceased’s body and property and, in particular, carriage of burial of the deceased’s body, acquisition of initial interment rights without prejudice to ultimate determination of entitlement to rights of interment SUCCESSION — Burial rights — Practical guidance for dealing with disputed claims regarding custody of the deceased’s body, burial arrangements and acquisition of interment rights SUCCESSION — Interment rights — Types of interment rights explained — Differences between perpetual and renewable interment rights — Difference between pre-need rights and at-need rights — Discussion of means of acquisition and granting of interment rights — Discussion of content of interment rights and terms of interment right Model Contracts — Nature of joint holding rights explained — Discussion of transfer, gifting and other disposal of interment rights SUCCESSION — Interment rights — Discussion of regime for dealing with interment rights under Cemeteries and Crematoria Act 2013 (NSW) and Cemeteries and Crematoria Regulation 2022 (NSW) — Discussion of reform proposals and Interment Industry Scheme
ADMINISTRATIVE LAW – prerogative relief – Local Court proceedings – default judgment set aside by Local Court of its own motion – UCPR r 36.17 – affidavit of service non-compliant with Rules and Corporations Act – whether entitlement to be heard – procedural fairness – no practical injustice – appeal rights under Local Court Act – whether appeal rights should be utilised before prerogative relief sought – discretionary grounds for refusing relief – summons dismissed CIVIL PROCEDURE - court administration – court powers - Supreme Court – general jurisdiction under s 23 Supreme Court Act CIVIL PROCEDURE – appearance - where plaintiff is a corporation – where director seeks leave to appear on company’s behalf – UCPR r 7.1 - need for director to be plaintiff – need for director to have cause of action against defendant – personal undertaking to Court by director
PROCEDURE – courts and judges generally – judges – disqualification for bias – whether reasonable apprehension of bias – judge was a member of Legal Profession Admission Board that excluded party from Board’s legal course – application to recuse made after judgment given in principal proceedings and orders for costs made – successful party subsequently seeking specified gross sum costs order – no issue of credibility – recusal refused PROCEDURE – costs – maximum costs orders and capped costs – whether a gross sums costs order should be made – non-complex administrative law proceedings involving small sum claimed in Local Court – unrepresented party against whom cost orders made – likelihood of lengthy and protracted costs assessment – relevance of the manner in which the party conducted the proceedings – proportionality of costs PROCEDURE – application by party for release from undertaking as to costs – undertaking given to enable director to appear for plaintiff company – UCPR r 7.1 – where no change in circumstances from time of giving undertaking – whether interests of justice required release – whether party understood basis of undertaking
COSTS – security for costs – application to release security monies paid into court by plaintiff – where first defendant successfully resisted enforcement of foreign default judgment CIVIL PROCEDURE – service of motion outside Australia – where uncertainty about service - where the foreign resident has failed to appear
HIGH RISK OFFENDER — Extended Supervision Order — Final hearing — No opposition to order being made — Disagreements as to the form of two conditions — Order made
SUCCESSION – Costs – Where party unsuccessfully contests grant of probate relying on the presumption that the deceased destroyed her original will animo revocandi – Where it is not established that the original was in the possession of the deceased – Where there are compelling circumstances making it clear that any presumption of destruction or destruction animo revocandi has been rebutted – Where a codicil, although not properly witnessed, refers to and reaffirms the will and, in addition, has testamentary effect – Whether the unsuccessful party should have her costs out of the estate, which is a large one – HELD – The usual rule that costs follow the event should not be departed from and no order should be made for the payment of her costs out of the estate – Observations on the scope and the operations of the so called recognised exceptions in probate matters
CIVIL PROCEURE – stay of proceedings – where the plaintiff obtained default judgment for possession of estate property – where there is an order for a mediation to take place in related family provision proceedings – stayed granted
PROBATE – Probate and administration – administration of estates – Administration pending contested probate suit – plaintiff is the named executor in both the deceased’s will and a codicil to that will – plaintiff is not a beneficiary of either the will or the codicil – contest as to whether the codicil should be admitted to probate – the deceased’s estate includes a nursery business requiring management and other estate assets which require superintendence pending the completion of the probate litigation – the defendant, a daughter of the deceased, is a substantial beneficiary of the will and a lesser beneficiary under the codicil plaintiff – the defendant’s experience of the plaintiff has caused her to deeply distrust him – the defendant applies for the appointment of an independent administrator – whether the plaintiff or an independent administrator should be appointed.
SUCCESSION — Family provision — Deceased survived by de facto spouse of a 27 year relationship and by his child from a prior marriage — Deceased left a relatively large estate including an interest in a matrimonial home Brightwaters purchased in 2019 and co-owned with the plaintiff —Deceased’s 2013 Will predated the acquisition of the Brightwaters property such that provision regarding a prior matrimonial property adeemed — Deceased’s relationship with the plaintiff had been conducted upon arrangements or understandings regarding financial responsibilities as between them and the nature of the testamentary disposition which the deceased proposed to make for her, which at no stage ever included all of his share in the matrimonial property so as to give her an outright interest in such property — Plaintiff claimed she had been left with inadequate provision in particular with respect to accommodation — Finding that there ought to be an order for provision that the plaintiff receive the deceased’s half interest in the Brightwaters (matrimonial) property SUCCESSION — Family provision — Claim for provision — For the Court to meaningfully assess claims, appropriate detail (such as how the claimant’s existing position is said to be inadequate and what is sought by way of provision) ought to provided — In particular where accommodation provision is sought, the evidence should include detail regarding the alleged inadequacy of the existing accommodation, alternative accommodation possibilities and, where one possibility is renovation or other work to be done in respect of existing accommodation, costing in that regard SUCCESSION — Family provision — Orders for provision — Nature of provision to be made — Whether absolute interest in matrimonial home, life estate, Crisp order, or other form of provision should be made — Finding that provision should be made for the plaintiff of an absolute interest in matrimonial home in addition to the interest she receives under the 2013 Will SUCCESSION — Family provision — s 61 Succession Act — Disregarding interests — Prior to the commencement of the hearing, no steps had been taken to locate and serve a potentially eligible child of the deceased’s first wife who appears to have lived with the deceased for a limited period of time, no more than a couple of years — Practitioners should ensure that potentially eligible persons are identified, located and served with a Notice of Claim or that evidence seeking to disregard their interests is marshalled and provided well prior to the hearing so that the hearing may proceed in an orderly way and completed, to avoid costs and uncertainty — Hearing was adjourned part-heard to allow for the necessity for a reasonable time to elapse consequent upon notices being served — s 61 determination ultimately made
EQUITY — Equitable remedies — Injunctions — Interlocutory injunction — Where defendants sought to change branding of restaurants – Where plaintiffs sought injunction to stop defendants from proceeding from rebranding and mandatory injunction to require defendants to restore rebranded retail outlets to original branding
COSTS – Party/Party – General rule that costs follow the event – Relevance of Model Litigant Policy for Civil Litigation – Where offer of compromise rejected – Where no better outcome achieved
JUDGMENTS AND ORDERS – amending, varying and setting aside – correction under slip rule – application to vary order made on 20 February 2025 – where respondents commenced new proceedings – where respondents sought a winding up order in relation to first appellant – where respondent alleged that the second appellant was not the beneficial owner of units recorded in relevant unit trust – whether court of appeal judgment set aside an unchallenged declaration regarding the second appellants’ beneficial ownership of units in relevant unit trust – whether orders should be corrected under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW)
ADMINISTRATIVE LAW — review of medical assessment by appeal panel — judicial review of appeal panel decision — assessment of whole person impairment — deduction for previous injury or pre-existing condition or abnormality — jurisdictional error and error of law on face of the record — claims of misconception of statutory task and no evidence.
SUCCESSION — Family provision — Standing — Leave to commence and maintain proceedings — Consideration of whether a plaintiff who commenced family provision proceedings prior to being convicted of, and serving imprisonment in respect of, serious Commonwealth offences is able to maintain and settle such proceedings whilst he is still in custody — Consideration of common law and Felons (Civil Proceedings) Act 1981 (NSW) regarding persons in custody in respect of serious offences — It is doubtful that the terminology of common law “felony offences” (capital or non-capital) and any disabling effects of convictions for such offences applies to the offences with which the defendant was convicted and in custody — There is some doubt that the Felons (Civil Proceedings) Act 1981 (NSW) applies to the Commonwealth offences to which the defendant was convicted and in custody — However, if so applicable leave ought be given nunc pro tunc to the plaintiff for the bringing, maintenance and settlement of the proceedings SUCCESSION — Family provision — Orders designating property as notional estate — Operation of ss 63, 79 and 90 Succession Act explained SUCCESSION — Family provision — Consent orders — The parties asked the Court to make consent orders in a family provision claim by a son of the deceased, currently in custody — Orders sought (and made) finalising proceedings and addressing standing issue
ADMINISTRATIVE LAW – judicial review – referral of separate and distinct medical assessment matters under s 58 Motor Accidents Compensation Act 1999 (NSW) – s 58(1)(a) and (b) certificate confined to whether treatment relates to injury caused by motor vehicle accident and whether the treatment was reasonable and necessary in the circumstances – referral under s 58(1)(b) is not a determination of causation of injury generally – assessment of whole person impairment is a different medical assessment matter under s 58(1)(d) and includes separate determination of causation – no jurisdictional error – no legal unreasonableness – no practical injustice – proceedings dismissed
TRUSTS AND TRUSTEES – application for judicial advice –proceedings against estate – appeal, family law and family provision proceedings– where Court appointed administrator seeks judicial advice about defending appeal and settlement
MENTAL HEALTH – Community treatment order (CTO) – where interim relief is sought for the affected person to evade compliance with a CTO – assessment of the balance of convenience of the CTO continuing where the administration of medication to the affected person is central to the CTO – abuse of process
PROTECTIVE JURISDICTION – Protected estate management – Application for change of manager – Welfare and interests of protected person the paramount consideration – Loss of confidence in manager upon change of ownership and management policy – Countervailing considerations when change of policy, and resistance to change, affect orderly management – Protected estates financial advice protocol adopted – Costs reserved
BUILDING AND CONSTRUCTION – contract – cost plus contract for construction of residence – alleged breach of contract – whether plaintiff builder entitled to claim payment for outstanding invoices from defendant owners CONTRACT – construction – special condition – where contract obliged parties to cooperate to obtain the most competitive price for each element of trade or materials and obtain a minimum of quotations for each item – where builder did not obtain two quotations in relation to some items – where defendants resisted builder’s claim on basis that this was a breach of the provision – whether provision imposed obligation to obtain two quotations on the builder alone or rather on the parties jointly – whether provision merely exhortatory CONTRACT – implied terms – where plaintiff builder contends for implied term to the effect that it was not necessary for the plaintiff builder to obtain two quotes in some circumstances – where such term would be inconsistent with express term of the contract CONTRACT– damages – facilitation principle – whether owners’ damage to be measured by the difference between the cost and the reasonable value of the works not subject to two quotations –whether it would be just to permit owners belatedly to rely on the facilitation principle
CIVIL PROCEDURE – discontinuance in possession proceedings – judgment for possession given in May 2024 for one of two properties the subject of the loan agreement – second property now in hands of trustee in Bankruptcy – no utility further proceeding
NEGLIGENCE – effect of the primary judgment – causation – reopen – refused NEGLIGENCE – damages – non-economic loss –significant disablement of the plaintiff – 25% of the most extreme case – s 16(3) of the Civil Liability Act 2002 (NSW) NEGLIGENCE – damages – past economic loss – offer of full-time employment – calculation using award rate – reduction for time off work for inevitable total knee replacement regardless of injury NEGLIGENCE – damages – future economic loss – earning capacity – 15% discount for vicissitudes NEGLIGENCE – damages – superannuation – Fox v Wood NEGLIGENCE – damages – past treatment expenses – where past treatment expenses and past out-of-pocket expenses have the same source, the amount cannot be claimed twice NEGLIGENCE – damages – future treatment expenses NEGLIGENCE – damages – s 151Z of the Workers Compensation Act 1987 (NSW) – apportionment of damages between first and second defendants - interest COSTS – offer of compromise – whether indemnity costs should be awarded – no evidence of offer of compromise – costs ordered on an ordinary basis INTEREST – whether interest payable for damages – s 151M of the Workers Compensation Act 1987 (NSW) – interest payable by the first defendant
COSTS – receivers – privately appointed receiver of company in liquidation brought appeal against another company in liquidation seeking to overturn decision of primary judge to depart from pro rata distribution – appeal failed – whether receiver should be ordered to pay costs of successful respondent – where acknowledgement that receiver liable for adverse costs requested but not provided – where security for costs not sought
APPEALS – leave to appeal – competency – monetary threshold – procedural irregularity in filing summons seeking leave not causing distinct prejudice APPEALS – procedure – time Limits – extension of time – reasonable explanation for delay in filing notice of appeal – delay significant but not substantial – no distinct prejudice to other party – no utility in granting extension for continuous failure to demonstrate reasonably or fairly arguable case on appeal CIVIL PROCEDURE – summary dismissal where no reasonable cause of action disclosed – pleadings – striking out – none of three attempts by appellant properly identify grounds of appeal beyond raising matters not in issue below or matters which would not establish that the proceeding was not statute-barred LIMITATION OF ACTIONS – suspension of time – plaintiff asserted to be under disability – restraint or detention in foreign country
COSTS – review of decision of Manager, Costs Assessment – where application for review of solicitors’ costs made out of time – where Manager, Costs Assessment granted the defendants an extension of time for assessment of costs charged to them – whether it would be just and fair to grant extension of time – extension of time just and fair in the circumstances
CRIMINAL LAW – murder – trial by judge alone – alleged stabbing by the accused of his cousin – whether it was a deliberate act of the accused that caused the fatal wound – whether the accused intended to cause grievous bodily harm – manslaughter by unlawful and dangerous act as an alternative to murder – whether the prosecution has excluded the reasonable possibility that the accused acted in self-defence – not guilty of murder – guilty of manslaughter
CIVIL PROCEDURE – cross-vesting – Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 5(2) – alleged tort in Queensland – lex loci delicti – acts or omissions of hospital concerning plaintiff’s birth –physical and developmental disabilities – interests of justice – Queensland law substantially similar to NSW law – motion dismissed
EVIDENCE – murder – various evidentiary rulings – category of evidence relating to the asserted “familiarity and affinity” of the accused with the murder weapon – prejudicial nature of the evidence – hearsay evidence of the deceased – whether the evidence is based on representations made by the accused – whether the representations involve admissions – second-hand hearsay – consideration of the preconditions to admission of evidence under s 65 – whether the evidence of debts owed to the accused are relevant – whether probative value of the evidence is outweighed by the danger of unfair prejudice
CRIME – sentence – murder – plea of guilty – where victim was offender’s daughter’s partner – where conflict over property – whether sentence of life imprisonment should be imposed – whether full 25% discount for plea of guilty should be imposed – s 25F Crimes (Sentencing Procedure) Act 1999 (NSW) – where special circumstances