COSTS – consequential costs orders – where a number of issues not determined in the principal judgment – whether it is appropriate for the Court to make a specified gross sum costs order – further consideration by the parties required
COSTS – departure from the usual rule – public interest litigation – where plaintiffs were wholly unsuccessful in their claim against the first defendant which is a political party registered under the Electoral Act 2017 (NSW) – where plaintiffs seek orders that the first defendant pay their costs and the costs of the active defendants – where plaintiffs and other defendants members of the first defendant – where plaintiffs claim to have no vested financial or political interest in the proceedings – where proceedings involved no question of public importance – where outcome would only affect a small number of people – no reason to depart from the usual rule
COSTS – pre-commencement costs of proceedings – whether Court has power to award pre-commencement costs of proceedings – where a substantial amount of legal work was undertaken well before the originating process was filed – where the dispute ripened into litigation in an extraordinarily fast fashion – good reason to make a specific order that costs be awarded from a date before the filing of the summons – Chow v Chow (No 2) (2015) 229 BPR 35,385;  NSWSC 1348 applied
COSTS – departure from the usual rule – where the plaintiff formally abandoned a substantial part of her case immediately before the final hearing – where plaintiff accepted earlier offer made by the defendant that in return for the plaintiff abandoning several issues, each party would bear their own costs of the issues to be abandoned – where plaintiff successful on remaining issue at a final hearing – appropriate that the defendant pay the plaintiff’s costs of the remaining issue up to the date of accepting the defendant’s offer and the costs of the proceedings thereafter
EQUITY — equitable remedies — injunctions — Interlocutory injunction — where first defendant a former employee of the plaintiff which is a not-for-profit company offering disability services to customers — where first defendant established the second defendant through which to conduct a business that offers disability services to customers — plaintiff alleges first defendant in breach of confidentiality clause and restraint of trade clause in former employment contract — prima facie case established — balance of convenience — consideration of the impact of an injunction on third parties — not appropriate at the present time to grant injunctive relief
RESTRAINT OF TRADE — general principles governing enforcement of restraint of trade provisions — whether the alleged breach infringes the terms of the restraint — where restraint of trade clause has no temporal or geographical limitation
COSTS – departure from the usual rule – defendants unsuccessful in seeking orders to retrain plaintiff’s solicitor on the record from further acting in the proceedings and for the production of documents in Amended Notice of Motion – where basis for relief in respect of restraining the plaintiff’s solicitor was tenuous – where defendants justified for a period of time in pursuing relief in respect of the orders for production of documents – appropriate that the defendants pay one half of the plaintiff’s costs of the Amended Notice of Motion
ADMINISTRATIVE LAW — jurisdictional error — judicial review of Valuer-General’s compensation determination — where comparable sales method employed — whether alleged error in applying comparable sales method amounts to jurisdictional error
VALUATION — compulsory acquisition — compensation — disturbance — whether error in allowing claim for stamp duty and relocation costs where land valued based on development potential — whether jurisdictional error
VALUATION — compulsory acquisition — powers of Valuer-General under the Land Acquisition (Just Terms) Compensation Act 1991 (NSW) — power to redetermine compensation determination once made
ADMINISTRATIVE LAW — workers compensation — worker’s thumb crushed and amputated in workplace accident — judicial review of decision of appeal panel convened under s 328 of the Work Place Injury Management and Workers Compensation Act 1998 — where appeal panel confirmed medical assessment certificate determining worker’s whole person impairment at 14% — whether constructive failure to exercise appeal panel’s jurisdiction
SUCCESSION - executors and administrators - rights, powers and duties – settlement of contested probate proceedings – order whereby second plaintiff appointed administrator with obligation to pay agreed sum to defendant - failure by administrator to pay legacy – extension to pay sought – extension refused
EVIDENCE – Privilege – Where one of the plaintiffs was a solicitor – Where that plaintiff has been charged with being an accessory after the fact to murder – Where police executed search warrants at the residential and business premises of the plaintiff and seized documents and electronic devices – Claims for legal professional privilege in respect of some of the material seized – Appropriate for the Court to examine the material over which claims were made - Claims determined
EVIDENCE – Privilege – Onus of establishing claim for privilege lies on the party who makes it – Onus renders it necessary for the party making the claim to adduce admissible evidence in support of it – Perfunctory approach adopted by the plaintiff in which there was a general failure to adduce admissible evidence in support of the claim
EVIDENCE – Privilege – Documents seized under search warrants – Whether claims for privilege should be determined according to common law principles or by reference to the Evidence Act 1995 (NSW)
PRACTICE AND PROCEDURE – Application for adjournment pending the determination of an appeal against the refusal to grant legal aid – Whether such appeal frivolous or vexations – Discretionary considerations – Protracted proceedings – Plaintiff in breach of the Court’s orders for the filing of material – Plaintiff given ample opportunity to file necessary evidence and submissions – Application refused
PRACTICE AND PROCEDURE – Application for recusal on the grounds of apprehended bias – Test not met – Application refused
CONSUMER LAW – Australian Consumer Law and Fair Trading Act – misleading or deceptive conduct – unconscionable conduct – sale of “movable” and “immovable” dwellings affixed to a site – sites approved for short-term occupation only – purchased after representations as to “permanent living” for retirees – analysis of provisions – factual summary – orders to be made for declarations and compensation – leave to apply for injunctions if conduct were to continue – plaintiff directed to file orders to reflect reasons
CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of holders of ordinary and preference shares to consider and, if thought fit, approve proposed schemes of arrangement – whether requirements to order scheme meetings are satisfied.
CIVIL LAW - real property - possession - action by mortgagee - mortgage over interest of a tenant in common - mortgagee former brother-in-law of mortgagor - sale of property between husband and wife - ongoing family law proceedings - whether deed of mortgage was a sham - whether deed of mortgage complied with s 38(1) Conveyancing Act - four different copies of deed - tort of deceit - part performance - confusing series of transactions - credibility of witnesses - whether money repaid pursuant to the mortgage
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, approve a proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied.
CORPORATIONS – winding up – application for directions to pay dividends to shareholders – where interested parties claim authority to receive payment through purported Forms 550 – whether forms are in substantial compliance with Form 550 – whether directions sought by liquidators should be given.
CORPORATIONS – application for rectification of register maintained by ASIC – where register maintained by ASIC evidences change to shareholders and officeholders – where no corporate step undertaken to effect such changes – whether court should order rectification of register maintained by ASIC.
CORPORATIONS – winding up – application for termination of winding up – where no remaining unsecured creditors – where secured creditor supports termination of winding up – where solvency is established – whether winding up should be terminated.
CIVIL PROCEDURE – notices to produce – leave to issue – where parties have issued numerous notices to produce – where numerous notices to produce not justified or too wide – whether an order requiring leave of court to issue subpoenas should be made.
CIVIL PROCEDURE – notices to produce – where subpoenas are in broad terms – where issue of subpoenas not justified – whether legitimate forensic purpose in issue of subpoenas – whether subpoenas, or parts thereof, should be set aside.
CORPORATIONS – statutory derivative action – application to bring proceedings on behalf of company – where application corollary to amendment of pleading – where court has previously granted leave to bring derivative proceedings – whether leave under s 237 of the Corporations Act 2001 (Cth) should be granted.
CORPORATIONS – application for leave to continue proceedings against company in administration – where neither administrators nor receiver have provided consent to continue proceedings – where proceedings challenge the status of creditor’s statutory demand served by company now in administration and receivership – whether such leave should be granted.
CORPORATIONS – application to set aside creditor’s statutory demand – where some amounts claimed in demand referenced to invoiced amounts – where amounts claimed pursuant to invoices issued differed from invoiced amounts – where plaintiff admits amounts of outstanding invoices – where other amounts claimed in respect of fees and insurance excesses – where right to claim for amounts relating to fees and insurance excesses not identified – whether there is a genuine dispute as to the amounts claimed in the demand – whether demand should be varied or set aside.
CORPORATIONS – winding up – costs – where winding up of company ordered pursuant to a fact agreed between the parties – where company wound up on the just and equitable ground – where plaintiff originally sought relief in the form of purchase of his shares in company – where that relief not obtained – whether the court should otherwise order for the purposes of s 466(2) of the Corporations Act 2001 (Cth).
CORPORATIONS – external administration – application to approve the remuneration of special purpose receivers for work already performed –whether the amount of remuneration claimed is reasonable and whether it is to be calculated on a time-charged basis – application to discharge one of two special purpose receivers.
CORPORATIONS – external administration – application under s 439A(6) of the Corporations Act 2001 (Cth) to extend the period within which the second meeting of creditors must be convened – where further time required to investigate options for obtaining value for companies – where complex administration operating a business as a going concern – whether convening period for second meeting of creditors should be extended.
CORPORATIONS – winding up – application to validate appointment of liquidators – where liquidators purported to be appointed by sole director and shareholder – where sole director and shareholder at time was undischarged bankrupt – whether appointment should be validated under s 1322(4) of the Corporations Act 2001 (Cth).
CORPORATIONS – application to set aside creditor’s statutory demand – where debt purported to be due and payable to beneficiary of trust – where evidence of debt appears to be sourced from financial accounts that have not been prepared – whether debt is due and payable – whether there is a genuine dispute – whether demand should be set aside.
SUCCESSION — Family provision — application for provision – whether plaintiff failed to make full and proper disclosure of her financial position – whether non-disclosure a “jurisdictional issue”.
SUCCESSION — Family provision — application for provision from potential notional estate consisting of half share of family home – claim by adult child of retirement age – plaintiff’s dealings with her own children concerning accommodation not clear on the evidence – plaintiff estranged from deceased but cause of estrangement not clear on the evidence – plaintiff receiving legacy of $10,000 – whether proper provision– what provision ought to be made.
SUCCESSION — Family provision — application for provision from notional estate – whether appropriate to designate property as notional estate – whether proposed designation would interfere with defendant’s “reasonable expectations”.
RESTITUTION – recovery of money paid under a judgment or order which has been set aside – where defendant ordered to pay the plaintiff’s costs of the proceedings at first instance in 2015 – where defendant paid those costs following assessment – where High Court allowed defendant’s appeal in 2018 and set aside the costs order at first instance – where defendant did not seek an order for repayment of his costs in the Court of Appeal or High Court – whether Court has power to award restitution in circumstances where there is non-compliance with Uniform Civil Procedure Rules 2005 (NSW), r 51.19 – restitution awarded notwithstanding non-compliance with rules of court
RESTITUTION – recovery of money paid under a judgment or order which has been set aside – interest to be awarded on recovered sum – whether interest on recovered sum to be awarded from date of payment or the date of first making the application for restitution – interest awarded from date of payment pursuant to Civil Procedure Act 2005 (NSW) s 100
PRACTICE AND PROCEDURE – stay of execution – whether to grant stay of an order for restitution pending an appeal – appeal not presently foreshadowed – stay refused
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 - winding up – liquidators – past and future remuneration - where application opposed – where significant steps were required to be taken in respect of litigation – where limited assets remaining in company – whether remuneration should be approved.
CIVIL PROCEDURE – alternative dispute resolution – court referral to referee – court’s use of report – whether referee’s findings as to rate of interest and fees payable should be set aside or varied – whether referee’s reasoning involves any error of principle, misapprehension of the evidence or unreasonableness – orders as to costs of reference.
HIGH RISK OFFENDERS – application for an Extended Supervision Order – defendant has multiple convictions for sexual abuse of young boys – second supervision order – intrusive conditions – risk posed – community safety paramount – privilege against self-incrimination – conditions requiring consent to search and seizure – whether engages privilege – whether privilege abrogated by statute – clear statement rule
CRIMINAL LAW – Bail pending appeal to the Court of criminal Appeal– whether special and exceptional circumstances shown – whether appeal most likely to succeed – definition of “dishonest” under s4B Crimes Act 1900 (NSW) – where direction to the jury that dishonesty could be proven by mere recklessness
CONTRACTS — Parties — Privity — Agency – whether husband acted as agent for his wife – whether the wife consented to, and authorised, her husband to act on her behalf in relation to the alleged agreement – held that an agency relationship was established – the wife had left it to her husband to make arrangements for her in relation to the transaction – the wife was aware of what was being proposed and did not disabuse anyone of the notion that her husband was able to represent her in the relevant transaction.
CONTRACTS — Formation — Agreement — Uncertainty and incompleteness – whether agreement had been reached pursuant to which a party was to hold a property for the benefit of another party on an express or constructive trust – held that agreement reached in principle but that the terms of the arrangement were not the subject of a clear agreement between the parties – held that alternative claim for unjust enrichment failed as there was no binding agreement.
EQUITY — Trusts and trustees — Resulting trusts – consideration of the intention of the parties at the time that one of the parties was registered as legal owner on the title to the property – in circumstances where the other party had contributed to the acquisition of the purchase price with deposit moneys – whether the contribution was intended to be a gift – held that it was not the intention of the parties that the registered party would have an immediate unconditional interest in the property without taking into account the expectations of the other party and their contribution to the purchase price.
CONTRACTS — Formation — Agreement — Uncertainty and incompleteness – whether there was a binding residential tenancy agreement in existence – where unclear whether the document was complete when signed or which version of the cover page (there being two in evidence) formed part of the document when signed – held no binding residential tenancy agreement.
APPEALS – appeal from Local Court to Supreme Court – whether the appeal involved a question of law, a question of fact or a question of mixed fact and law – discussion of principles pertaining to granting leave to appeal – where magistrate’s inference on a preliminary factual issue was not reasonably open on the evidence – leave to appeal granted – appeal upheld
CIVIL PROCEDURE — Protective jurisdiction — Administration of estates — NSW Trustee and Guardian – where no application for appointment of a financial manager – held that order that NSW Trustee and Guardian be appointed as the plaintiff’s tutor be revoked.
CIVIL PROCEDURE – Debt recovery – Undocumented loans – Dispute arising over payment of two undocumented loans – Loan agreements made between friends – Loan agreement between the three Plaintiffs, or one or more of them, and the two Defendants, or one of them – Dispute about identity of the other parties to each of the two loan agreements – Dispute about who advanced the loan monies and about to whom the loan monies were advanced – What the terms of repayment of each loan were – Whether loans repaid – Whether there was accord and satisfaction in respect of the loan agreements
JUDGMENTS AND ORDERS – Interest – Pre-judgment interest – Rate applicable
CIVIL PROCEDURE – application to re-open hearing – where plaintiff’s evidence was found to be inadequate in primary judgment – where plaintiff seeks to correct inadequacy by adducing further evidence after reasons delivered –evidence could have been adduced earlier – application refused
COSTS – where plaintiff substantially succeeded – no evidence from either party about costs breakdown - whether usual position under Conveyancing Act 1919 (NSW), s 88K(5) should apply to alternative claim – whether unreasonable conduct by defendant – overall costs order made
EQUITY – restraint of trade – covenants in restraint of trade – breach of confidence – whether breach established – necessary quality of confidence – whether material in public domain – whether reading affidavit made information in public domain – utility of making order restricting use of confidential information
CONTRACTS — Breach of contract — Breaches of implied obligations of vendor under contract for the sale of business and sublease — Derogation from the relevant grants in circumstances where the purchaser was completely denied possession and use of the premises and was prevented from conducting the business purchased, and where the vendor sought to recapture as much of the benefit of the goodwill sold as possible — Transaction documents validly terminated in the circumstances
CONTRACTS — Breach of contract — Consequences of breach — Total failure of consideration argument rejected — Purchaser’s entitlement is to damages against the vendor — Calculation of damages
CONTRACTS — Unconscionable conduct —Unconscionable conduct within the meaning of s 21 of the Australian Consumer Law — Relationship between breach of contract and unconscionable conduct
TORTS — Miscellaneous torts — Interference with contractual and other relations — Liability for inducing breach of contract — Director not liable for causing breach of contract by company
CONTRACTS — Construction — Context — Where the parties entered into a suite of transaction documents at or around the same time to give effect to a bargain — Transaction documents to be read together
JOINT VENTURES AND PARTNERSHIPS — Joint Venture Agreement — Agreement to conduct development business through special purpose vehicle — Where shares to be held equally between five joint venturers — Mechanism for unequal contributions to be reconciled — “Call” on share for further contribution — Purported forfeiture of shares after non-payment of call — Company in liquidation — No leave to proceed as shares have no value — Cause of action in contract only — Breach made out.
CONTRACT — Breach of contract — Joint Venture Agreement — Purported forfeiture of shares — Exclusion from joint venture vehicle — Breach made out — Alleged loss of share of profits of development — No evidence that venture would be profitable — Subsequent history of venture led to liquidation of company — No evidence that course would have been different but for breach — No loss established — Nominal damages awarded.
MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Power of sale — Mortgagee’s duty to exercise power of sale in good faith — Consideration of whether the duty is fiduciary in nature — Whether the mortgagor’s interests have been “sacrificed” — Whether the duty extends beyond the achievement of a fair price — Relevance of collateral purposes of the mortgagee, if any — Mortgagee not obliged to act as if mortgagor had a right of first refusal — Whether mortgagee obliged to provide payout figure to mortgagor — Reasonableness of mortgagee’s refusal to provide complex payout figure in circumstances of mortgagor’s many prior failed attempts at redemption
MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Power of sale — Mortgagee’s duty to exercise power of sale in good faith — Consideration of alleged breaches of mortgagee’s duty of good faith — Where breaches alleged relate to entry into contract for sale, terms of contract for sale, performance of contract for sale, variation of contract for sale, failure to investigate proposed transaction for redemption by mortgagor, providing finance to purchaser, misrepresentation to mortgagor of terms of contract for sale — In circumstances where the mortgagor was at no time ready willing and able to redeem the mortgage — Breach of duty only found in relation to words and conduct of mortgagee which resulted in the mortgagor losing the chance to obtain $4.25 million by the payment of the higher of two purchase prices in the contract for sale
MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagor — Equity of redemption — Consideration of the equity of redemption in the context of Torrens system land — Consideration of when the equity subsists, is suspended, or is extinguished — Requirements for redemption by mortgagor — Equity of redemption suspended during period in which contract for sale is on foot — Where completion of contract for sale is subject to a condition subsequent
LAND LAW — Torrens title — Exceptions to indefeasibility — Fraud — Allegations of fraud of mortgagee — Concepts of statutory fraud and breach of equitable duty of good faith distinguished — Where fraud case put on materially similar factual basis as breach of good faith case — No basis for finding of fraud or relevant dishonesty except as to the words and conduct of mortgagee which resulted in the mortgagor losing the chance to obtain $4.25 million by the payment of the higher of two purchase prices in the contract for sale — In circumstances where it would not be proper for the Court to speculate and treat a ground for suspicion regarding the joint venture negotiations as a proper basis for a finding of fraud
LAND LAW — Torrens title — Exceptions to indefeasibility — Fraud — Whether purchaser a party to mortgagee’s fraud — Purchaser’s participation in the failure of the mortgagee to inform the mortgagor of the chance to obtain an extra $4.25 million such that purchaser was relevantly a participant in fraud of mortgagee
CONTRACTS — Misleading conduct under s 18 of the ACL and s 12DA of the ASIC Act — Misleading or deceptive conduct — Silence — Circumstances in which silence can constitute misleading or deceptive conduct — Misleading or deceptive conduct found because the mortgagee had a general duty to exercise the power of sale in good faith, which imposed a positive duty to inform the mortgagor of the extra $4.25 million — Whether purchaser has accessorial liability for involvement in such conduct
CONTRACTS — Unconscionable conduct under statute — Failure of mortgagee to inform mortgagor of extra $4.25 million was unconscionable in the relevant sense, because in this respect the mortgagor was vulnerable and good conscience required disclosure — Purchaser a person involved in such conduct for reasons equivalent to finding of participation in mortgagee’s fraud
LAND LAW — Torrens title — Indefeasibility of title — Indefeasibility of third defendant’s title to two registered mortgages — Indefeasibility accepted, as the relevant fraudulent conduct did not actually cause the purchaser to become the registered proprietor of the land — Where likely that other entities would have been required to have been joined as parties — Consideration of whether third defendant was a bona fide purchaser for valuable consideration — In circumstances where mortgages held on trust for another party
MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Power of sale — Burden of proof — Whether burden of proof in relation to the duty of good faith shifts onto the mortgagee exercising the power of sale in circumstances where the mortgagee has an interest in selling to the purchaser — Where the issues in the case before the Court changed substantially after the time at which the defendants were in a practical position to change their forensic strategy
ESTOPPEL — Issue and Anshun estoppel — Where no real curial contest and no definition of issues in the first proceedings — Rejection of submission that it was unreasonable for the plaintiff not to have introduced claims in first proceedings because, although the basis for the claims was unknown, it may have been discovered had the plaintiff called upon a notice to produce — Sufficient to decide that the plaintiff is not estopped from pursuing the claims upon which it has succeeded
CIVIL PROCEDURE — Pleadings — Fraud — Specific and particular allegations — Requirement for fraud to be pleaded and particularised — Reject plaintiff’s fraud, collusion and breach claims to the extent that such claims were not pleaded, or were otherwise introduced too late during the hearing
MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagee — Appointment of a receiver — Whether knowledge of agent imputed to principal — In circumstances where receivers were not under any duty to inform mortgagor about the terms of the contract for sale — Where defence held not to be available on the pleadings in any case
EQUITY — Equitable remedies — Equitable interests in property — Nature of equitable interests — Consideration of appropriate remedy in relation to $4.25 million, including whether the breach or fraud should give rise to a proprietary right
EQUITY — Defences — Laches and acquiescence —
Consideration of laches defence, but held inappropriate at this stage in the circumstances to exhaustively examine
COSTS – specified gross sum costs order – where orders made by consent for the appointment of trustees for sale of property co-owned by plaintiff and defendant – defendant ordered to pay the plaintiff’s costs as agreed or assessed – where parties’ solicitors entered into negotiations concerning the plaintiff’s costs – where plaintiff’s solicitor experienced difficulties contacting the defendant’s solicitor – where delay by defendant’s solicitor contacting plaintiff’s solicitor – specified gross sum costs order made
CORPORATIONS – shares – transfer – where parent company’s chief executive officer and founding director convicted of corporate crimes in China and imprisoned – where subsidiaries of company had an indirect interest in travel business conducted in China – where Chinese state owned corporation held the balance of the interest the travel business and contended subsidiaries’ interest obtained corruptly – where defendant directors caused shares to be transferred on an allegedly reversible basis so that a Chinese national appeared to control the subsidiary and could use her connections and influence in China to resolve the problem – where first defendant ultimately paid $2 million for the shares – whether shares were transferred for “nil” consideration and as a gift – whether directors subsequently caused a rights issue and special distribution to be effected to disguise these activities
CORPORATIONS – directors and officers – directors duties – whether directors in breach of duties concerning rights issue and special distribution to shareholders
EQUITY – fiduciary duties – whether directors duties said to be breached were fiduciary duties – whether remaining defendants knowingly involved in a breach of those fiduciary duties or knowingly received property through that breach of fiduciary duty
APPEAL – Local Court Magistrate – Whether the Magistrate failed to provide sufficient reasons – Whether the Magistrate denied the first plaintiff procedural fairness – Where the decision was delivered ex tempore – Appeal dismissed
COSTS – intestate estate – plaintiff found to be de facto partner of the deceased – when multiple offers to settle proceedings made – application for payment of costs on indemnity basis from date of offer – Calderbank letter – relevant principles
SUCCESSION COSTS – intestate estate
CONFISCATION - application for proceeds assessment order under Criminal Assets Recovery Act 1990 (NSW)– defendant failed to appear – where the defendant had engaged in serious crime related activity not more than six years prior to the filing of the summons – assessment of order - evidence of defendant's expenditure over six-year period – defendant to pay the Treasurer the amount assessed to be owing by way of proceeds – NSW Trustee and Guardian to take control of defendant’s property
CIVIL LAW – loans secured by mortgage – loans not repaid – cross-claim – negotiations to take over business to which loan money advanced – whether binding agreement reached – where division of shares not settled – whether essential term of agreement – where borrower ill and hospitalised – unconscionability – whether lender acted unconscionably in proceeding in the absence of the borrower – where business failing – losing money hand over fist – where borrower failed to respond to urgent message – where other communications demonstrate capacity to communicate – evidence inconsistent unconvincing and implausible – double satisfaction – Adam Smith School of Economics
CIVIL LAW – procedure – repeated amendments to cross-claim – refusal by different Judge to allow amendment to third further amended cross-claim – attempt to make further amendments part way through submissions – earnest and spirited debate – dilatory conduct of litigation
CORPORATIONS – members’ rights and remedies – oppression – closely held family company – where “permanent director” purportedly appointed another director – where members of company later agreed in general meeting for that director to continue as director – transfer of shares to testamentary trusts and payment of distribution – access to books and records of company – whether conduct, individually or together, was oppressive – whether the plaintiffs should be appointed directors.
MENTAL HEALTH – forensic patient – application for an extension order – whether court could be satisfied to the requisite standard that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient – whether any such risk could not be adequately managed by other less restrictive means – discretionary considerations –extension order made for a period of 12 months
COSTS AND CONSEQUENTIAL ORDERS – the plaintiff and the defendant, formerly a couple in a domestic relationship, were in dispute as to their respective ownership interests in two properties: an investment property and a residential property – in the Court’s principal judgment, the Court declared that the investment property held by the couple was held by them beneficially in equal shares but that an account should be taken of the benefits flowing from the defendant’s advance of $60,000 into a mortgage offset account used to pay off the mortgage for the investment property – in the principal judgment, the Court also declared that the defendant held a 78% interest in the residential property they occupied – the Court directed that the parties bring in agreed short minutes of order – the remaining issues are now what final orders should now be made – how should the amount due to the plaintiff be quantified – what order for costs should be made in the proceedings.
CIVIL LAW – high risk offender – where offender has been subject to supervision under a series of orders – where no offences against children for many years – where offender intellectually challenged – where paraphilia continues to exist – previous breaches of order – appropriate conditions – duration of order
TORTS — negligence — catastrophic personal injury to child — fall off jetty through railing — public liability — duty of Council and Reserve Trust as occupiers — duty of State as designer of structure — duty of grandparents as carers of child — application of ss 5O, 5M, 42 of the Civil Liability Act 2002 (NSW)
LAND LAW – easements – where defendant has benefit of rights of carriageway over plaintiffs’ land – rural land – gate maintained at entrance to easement from public road – gate kept in a closed but not locked position – where plaintiffs run cattle on their land – where plaintiffs harvest timber on their land – where defendant locked gate for a period – where timber harvesting interrupted – where defendant commonly leaves gate open after traversing gateway – where cattle escape onto public road through open gateway – defendant’s conduct held to amount to nuisance – injunctive relief granted – damages awarded in respect of pecuniary loss and time spent retrieving escaped cattle
TORTS – nuisance – private nuisance – where defendant has benefit of rights of carriageway over plaintiffs’ land – rural land – gate maintained at entrance to easement from public road – gate kept in a closed but not locked position – where plaintiffs run cattle on their land – where plaintiffs harvest timber on their land – where defendant locked gate for a period – where timber harvesting interrupted – where defendant commonly leaves gate open after traversing gateway – where cattle escape onto public road through open gateway – defendant’s conduct held to amount to nuisance – injunctive relief granted – damages awarded in respect of pecuniary loss and time spent retrieving escaped cattle
TORTS – trespass to land – where defendant found to have gone onto plaintiffs’ land to take water from creek – injunctive relief granted
CORPORATIONS — Joint venture agreement — Company and shareholders parties to Agreement — No constitution — Relationship between replaceable rules and joint venture agreement.
CORPORATIONS — Directors and officers — Removal of director — Purported removal by board — No constitution — Joint Venture Agreement provided for shareholder nominees — No power for other directors to remove — Declaration of no validity.
CORPORATIONS — Meetings of members — Reasonable time and place — Whether Beijing reasonable place — Australian company — Australian and Hong Kong corporate shareholders — Directors variously in Western Australia, New South Wales and China — Beijing unreasonable.
TRAFFIC LAW AND TRANSPORT — Traffic law — Motor accident legislation — Time limits – failure to commence proceedings for damages within three years of accident – requirement of leave – Motor Accidents Compensation Act 1999 (NSW), s 66(2) and s 109(3) – whether evidence established a “full and satisfactory” explanation for the delay – explanation for delay not full and satisfactory – leave not granted
CRIMINAL LAW – EVIDENCE – murder trial – accused persons alleged to be party to joint criminal enterprise – where Crown seeks to rely on lawfully recorded conversation between accused persons as evidence of consciousness of guilt – whether evidence relevant as consciousness of guilt – whether evidence ought be excluded because of competing inference or alternative explanation for parts of conversation – whether evidence “intractably neutral” and incapable of demonstrating consciousness of guilt – whether evidence ought be excluded because of its prejudicial effect – parts of conversation admissible as evidence of consciousness of guilt
ADOPTION — FAMILY LAW AND CHILD WELFARE — Child welfare under State legislation — Application for the adoption of two children, who are maternal siblings of the half blood, in favour of a married couple — Father of the first child opposed orders until directions hearing and then withdrew opposition, whilst not consenting to the adoption orders — Father of the second child and the mother of the children did not consent but did not appear or otherwise participate in the proceedings — Whether consent of children’s birth parents should be dispensed with — Whether proposed name change for each child to include surname of proposed adoptive parents, and inclusion of the surname of the birth father of first child, should be approved
FAMILY LAW AND CHILD WELFARE — Amended Paternal Adoption Plan — Adoption plan — Whether the arrangements in the adoption plan are in the children’s best interests and are proper in the circumstances — registration of paternal Adoption Plan of first child — Where registration would mitigate residual risk in respect of birth father’s contact with first child — Whether amended Paternal Adoption Plan should be registered – Late consent to amended Paternal Adoption Plan agreed to by the birth father
CONTRACTS – Construction – Interpretation – Dispute concerned payment of a lump sum figure to the plaintiff (“KRM”) under an affiliate contract (the “APA”) between KRM and two online betting companies (“Classicbet” and “Bestbet”, the first and second defendants); the betting companies were initially owned by the third defendant and his father (the “Kays”) but the shares in each of these companies were sold to “Playup” (which now controls Classicbet and Bestbet), leading to a cross claim dispute between Classicbet/Bestbet and the Kays about when the obligation to pay the lump sum to KRM was incurred – Classicbet/Bestbet were required under the APA to give notice to KRM of an actual or proposed change of control of Classicbet/Bestbet, the giving of which notice would trigger a 14 day period in which KRM could opt for the lump sum or continue to receive monthly commissions; whether giving notice of a proposed (as opposed to an actual) change of control was mandatory under the APA or merely permissible – Held: Classicbet/Bestbet were not contractually required to give notice of a proposed change of control, only of an actual change of control; the obligation to pay the lump sum was incurred after completion of the share sale agreements.
CORPORATIONS – Directors and officers – Directors’ duties – Duty to act in good faith in the best interests of company and for proper purpose – Classicbet/Bestbet contended that the Kays breached their duties as directors of Classicbet/Bestbet by failing to issue a notice of proposed change of control before completion of the share sale agreements – Held: the APA did not require Classicbet/Bestbet to give notice of a proposed change of control, hence the Kays were not in breach of their duties; moreover, even if they were, Classicbet/Bestbet failed to prove that, had the Kays caused Classicbet/Bestbet to give notice to KRM in April instead of October 2018, KRM would have opted for the lump sum, a fact necessary to establish causation.
CONTRACTS – Construction – Interpretation – Classicbet/Bestbet contended that KRM had waived its right to continue receiving commissions after it had elected to take the lump sum – Held: KRM, having opted for the lump sum, was not entitled to commissions after that date, but commissions so received should be offset against the amount of the lump sum owed to it.
CONTRACTS – Construction – Interpretation – In calculating the amount of the lump sum, whether the reference in the APA to “the 12 months immediately preceding the date that the option is exercised by KRM” refers to calendar months or 365 days pro rata; in calculating the “average monthly commission”, whether this should include amounts that were earnt during the 12 months (and, hence, payable) or only those amounts actually paid in the 12 months – Held: the preceding “12 months” in this context refers to calendar months, not 365 days pro rata, and “paid” in this context should be understood as “payable”.
CONTRACTS – Construction – Interpretation – Classicbet/Bestbet contended that cl 6.1 of the respective share sale agreements between themselves and the Kays involved a promise by the Kays to pay Classicbet/Bestbet’s liabilities before the change of control to Playup, whereas the Kays submitted that the promise was made to Playup as the buyer not to Classicbet/Bestbet – Held: the promise in cl 6.1 was made by the Kays to Playup not to Classicbet/Bestbet.
CONTRACTS – Construction and interpretation – Parol evidence rule – Prior negotiations – Where the Kays sought to rely on evidence of pre-contractual negotiations in support of their contention that it was not the parties’ intention to make the third defendant liable under the APA to pay his share of the lump sum to KRM, despite the third defendant being a party to the APA – Held: the Kays could not rely on such evidence.
SUCCESSION – Family Provision – The Plaintiff, a now adult child, applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) in respect of the estate and notional estate of both his father and of his mother – Father died in 2009 intestate – Mother died in 2017 – No application for administration in respect of either estate – Following commencement of hearing, the Plaintiff states that he does not wish to proceed with the claim in respect of father’s estate – Only claim in respect of mother’s estate
Extension of time for the making of the application required in respect of the claim in relation to the mother’s estate – Defendant does not consent to the application being made out of time pursuant to s 58(2) of the Succession Act – Plaintiff required to satisfy the Court that there is sufficient cause for the making of the application
Period of estrangement in relation to the mother – Attempts made by Plaintiff said to be in order to resurrect, or attempt to resurrect, contact – The mother not interested in resurrecting contact with the Plaintiff – Plaintiff’s attempts causing additional anguish to the mother
The Defendant is another now adult child of the parents – His competing claim, as sole beneficiary named in Will considered – Only property that can satisfy an order for provision and costs is the interest in real estate held by the mother, as joint tenant, with the Defendant – Need for notional estate order to be made – Whether there are special circumstances that justify the making of a notional estate order
Whether adequate and proper provision not made for the Plaintiff by the Will of the mother and if so the nature and quantum of the provision to be made – Whether notional estate order should be made
CRIMINAL LAW – Trial by judge alone – Murder – Accused alleged to have fatally stabbed deceased in the chest – Belief, amongst others, that deceased responsible for 11 September 2001 – Special defence of not guilty by reason of mental illness – Schizophrenia or schizoaffective disorder – Psychiatrists of both parties agreed that defence available – Verdict of not guilty by reason of mental illness
COSTS – application for costs order to be paid in gross sum – evidence in support of gross sum from expert costs assessor – rounded-down sum ordered as asked – order that costs of application also be paid in gross sum
CRIMINAL LAW – sentence – where offender pleaded guilty to possessing a thing connected with a terrorist act – where offender also pleaded guilty to threatening a judicial officer – where mental illness contributed to offending – where offences lie at the lower end of the scale of objective seriousness – where offender now adheres to Judaism – whether offender poses risk of reoffending
CRIMINAL PROCEDURE – joint application by accused to discharge jury – present trial is retrial following successful appeal – where witness volunteered that the accused had been previously sentenced – whether prejudice incurable – whether jury can bring fair and untainted minds to issues in the trial – whether direction capable of curing prejudice – prejudice not incurable – concerns raised by accused met by appropriate directions to jury – application refused
CRIMINAL PROCEDURE – application for certificate under Suitors’ Fund Act 1951 – application following discharge of jury – where discharge was not attributable to disagreement of jury or act, neglect or default of the accused or accused’s solicitor or counsel – application allowed
CRIMINAL PROCEDURE – application for suppression, non-publication and take down orders – application opposed by a media outlet – present trial is retrial following a successful appeal – earlier trial subject to media publicity – whether orders necessary to prevent prejudice to proper administration of justice – whether orders would be futile – whether directions ordinarily given in jury trials are adequate – where law of contempt and provisions of the Jury Act 1977 operate – orders not necessary to prevent prejudice – application refused
CONTRACTS – misleading conduct under statute – misleading or deceptive conduct – representations – inducement to enter into contract for purchase of business – false information provided about customer base and profitability of business – whether third defendant a mere conduit of first and second defendants – whether third defendant acting solely on behalf of corporation or personally liable – alternative claim of accessorial liability – whether contract affirmed – contract declared void
LANDLORD AND TENANT – construction of leases – extent of tenant’s obligation to repair damage to premises – construction and operation of provisions requiring tenant to pay outgoings – whether amounts charged by the landlord to the tenant were incurred for capital or structural works – entitlement of tenant to return of a bank guarantee provided to landlord as security for tenant’s obligations – entitlement of tenant to damages for landlord wrongfully making demand under the bank guarantee.
STATUTORY CONSTRUCTION – Environmental Planning and Assessment Act 1979 (NSW) ss 6.19 and 6.20 – proper construction – whether this action is one for loss or damage arising out of or in connection with defective building work – defendant did building work, including on a ventilation duct under a building contract to which the plaintiff was not party – plaintiff occupied part of the building and suffered damage when a fire attributable to the defective building work occurred – Held: that the loss or damage suffered by the plaintiff did not arise out of and was not in connection with the defective building work within the meaning of s 6.20.
PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules Pt 7 rr 7.1, 7.2 and 7.3, Civil Procedure Act 2005 NSW s 14 – requirement for a company to have a solicitor on the record in proceedings in the Court – whether Court should dispense with the requirement – where company commences proceedings purporting to be represented by its sole director – where Commercial List Statement makes significant and improperly pleaded allegations of dishonesty on the part of the defendant – where the director has previously been responsible for multiple earlier dismissed proceedings involving substantially the same complaint now made – where the Court has no confidence that the director will behave ethically or responsibly - where the director has significant outstanding orders for costs against him in favour of the defendant – where the Court has no confidence that the proceedings have any prospect of success - HELD that the Court should not dispense with the requirement that the plaintiff be represented by a solicitor on the record
CIVIL PROCEDURE – Pleadings – Amendment – whether to grant leave to amend – whether proposed amendment is logical extension of case already pleaded - late amendments – whether proposed amendments open new questions for factual enquiry – no new evidence served in respect of new questions for factual enquiry – prejudice
COSTS – departure from the general rule – offers of compromise – Calderbank letters – application by defendant for indemnity costs – defendant served a Calderbank offer early in the proceedings and an offer of compromise later in the proceedings – neither offer accepted by the plaintiffs – defendant succeeds on defence not raised until after Calderbank offer made – defendant obtains judgment more favourable than offers – whether offers constituted genuine compromises – whether unreasonable not to accept offers – indemnity costs ordered for period after date of offer of compromise
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication determination – whether to set aside determination – whether determination void – whether relevant payment claim related to more than one construction contract – whether legislation does not apply by virtue of exclusion in section 7(2)(c) of legislation – whether legislation does not apply to relevant contracts because consideration payable was to be calculated otherwise than with reference to the value of the relevant work – whether denial of natural justice because adjudicator determined application on basis advanced by neither party – whether failure to give adequate reasons – whether any requirement that reasons be adequate – requirements of section 22(3) of legislation considered
CIVIL PROCEDURE – Pleadings – Amendment – whether to grant leave to amend – late amendments –whether proposed amendments open new questions for factual enquiry – whether proposed amendments futile – prejudice
CRIME – sentence – murder – conviction following jury trial – offender killed estranged wife of 33 years and disposed of her body – offender’s post-offence conduct included attempts to create impression of ignorance – multitude of lies – difficulty of assessing objective seriousness in absence of evidence of how offender killed deceased and disposed of her body – motive for killing was offender’s inability to accept that his wife had right to choose her own course in life – evidence showed that deceased wanted to end their marriage and engage in relationship with new partner – intention to cause grievous bodily harm – offence aggravated because offender killed deceased in her home and dumped and concealed her body – offence marginally below narrow mid-range of offending – absence of remorse – prior criminal history – physical and mental health issues – no evidence of mental condition relevant to offender’s functioning at time of offence – importance of punishment, denunciation, and deterrence in murder committed in domestic violence context – unlikely to reoffend due to advanced age on release of low significance – no special circumstances
ADMINISTRATIVE LAW – judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 323(1) – where defendant had pre-existing psychiatric conditions which were being treated and were asymptomatic – where work injury resulted in psychological injuries and whole person impairment – where Medical Appeal Panel assessed percentage deduction to whole person impairment for pre-existing conditions at 20% of whole person impairment – whether error of law by not taking fact of treatment into account – whether reasons adequate for not doing so
MENTAL HEALTH — forensic patient — extension of status as forensic patient — whether defendant posed unacceptable risk of causing serious harm to others if ceased being a forensic patient — whether risk could be adequately managed by less restrictive means — not satisfied to a high degree of probability of either element in Mental Health (Forensic Provisions) Act 1990 (NSW) sch 1 cl 2(1) — extension order declined
EVIDENCE — admissibility – trial on charge of murder – representations made by deceased to friends in text and Facebook messages – representations made by deceased contained in witness statements – no issue that representations are admissible under first-hand hearsay exceptions – objection to representations not proximate in time on basis of relevance – objection to some witness statements on basis of relevance due to remoteness, lack of specificity, and reliability – discretion to admit representations in relation to specific topics
EVIDENCE — admissibility – trial on charge of murder – transcript of conversation between accused and police – Objection on basis of s 122 LEPRA – whether statements improperly obtained and liable to be excluded pursuant to s 138 Evidence Act – doubt as to applicability of s 122 – discretion to admit in any event
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – progress payment claims under section 13 of the legislation – recovery of amounts in respect of those payment claims – purported defence based on terms of construction contract – section 16(4)(b) of legislation disentitles defendant to bring defence based on terms of relevant construction contract – no defence to plaintiff’s claim – no issue of principle
CIVIL PROCDEDURE – Appearances – multiple applications for adjournments – failure by defendant to appear at final hearing – ample opportunity for defendant to obtain legal representation and advice – defendant made aware of time and place of final hearing – hearing to proceed in absence of defendant
ADMINISTRATIVE LAW – plaintiff subject to investigation by stewards of Racing NSW because the horses of one of his clients were found to contain cobalt – alleged unreasonableness in finding lack of co-operation by plaintiff who gave no evidence of what inquiries he had made following his undertaking to the stewards to make inquiries as to the identity of his supplier
ADMINISTRATIVE LAW – whether denial of procedural fairness for Racing Appeals Tribunal to take into account that the plaintiff did not give or adduce evidence of what inquiries he had made to ascertain details of his supplier
SENTENCING – conspiracy to do acts in preparation for terrorist act – very serious offence because of the intention to kill on large scale – lengthy custodial sentence required – bomb plot and poisonous gas plot both significant potential terrorist events – achieved objective even though conspiracy interrupted by arrest of the offenders before their purpose achieved
CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – section 18 of the Australian Consumer Law – whether representations were made – inadequacy and unreliability of plaintiffs’ evidence – relevant events occurred many years ago – errors evident in evidence of both plaintiffs – plaintiffs’ evidence contradicted by relevant documents and other evidence – plaintiffs’ evidence not accepted unless corroborated by documents or objective facts – plaintiffs’ evidence clearly based on discussion and agreement between themselves rather than independent recollection – plaintiffs’ perceptions of what was said – how alleged representations should be objectively understood – plaintiffs’ evidence not accepted except to extent that it involves admissions or is inherently probable
CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – section 18 of the Australian Consumer Law – whether representations were misleading or deceptive – section 4 of the Australian Consumer Law – whether representations were with respect to future matters –– whether there were reasonable grounds for representations – evidence required to be adduced by representor
CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – section 18 of the Australian Consumer Law – reliance on alleged representations – whether representations were relied on – calculation of loss – appropriate method for assessing loss – Potts v Miller – whether circumstances that brought about loss can be considered as arising from alleged wrongful conduct or whether loss is extrinsic to that conduct – inadequate evidence from plaintiffs
TORT – Negligence – Duty of Care – whether relationship was one which gave rise to duty to take reasonable care to give investment advice – consideration of ‘salient features’ and circumstances of relationship – vulnerability – reasonable reliance – application of section 5H of the Civil Liability Act 2002 (NSW) – whether risk associated with investments could be considered ‘obvious risk’ under section 5F of Civil Liability Act 2002 (NSW)
EQUITY – Fiduciary relationships – Hospital Products Ltd v United States Surgical Corporation applied – whether fiduciary relationship existed between mortgage broker and clients – fiduciary duties – proscriptive fiduciary duties only – no positive duty to act in plaintiffs’ best interests
EMPLOYMENT AND AGENCY – employment – whether relationship of employer and employee – consideration of circumstances and features of relationship – indicia of relationship of employment – agency – consideration of circumstances and features of relationship – indicia of agency relationship – whether principal liable for conduct of agent
LAND LAW – possession of land – claim for possession and judgment for the amount owing under a loan agreement and mortgage – short-term loan pending approval of long-term finance - where the borrower had failed to repay the loan pursuant to the loan agreement – lenders entitled to possession and amount owing under loan agreement – parties instructed to bring in short minutes to quantify sum owing
CONSUMER LAW – unconscionability – where the borrower claimed that the loan agreement was unconscionable either under the general law or statute – where the borrower claimed that the lenders should have requested proof of income – where the borrower claimed that a third party was exerting undue influence over him to the knowledge of the lenders – where the borrower claimed that he did not receive adequate independent advice about the loan agreement – where the borrower claimed that the loan was improvident because there was no effective exit strategy - no finding of unconscionability
CONTRACT – unjust contract – whether the loan agreement was unjust pursuant to the Contracts Review Act 1980 (NSW) – where the borrower was aware at all times of the interest rates being charged – where the borrower understood the risks of entering into the mortgage – no evidence that the interest rates were unreasonably high or not reasonably necessary for the protection of the plaintiffs – contract not unjust
CONSUMER LAW – misleading or deceptive conduct – s 18 Australian Consumer Law (Cth) – whether a cross-defendant made misleading or deceptive representations about a prospective loan – whether representor was a mere conduit for information provided by another - no evidence to support a finding that any such representation as pleaded was made – no misleading or deceptive conduct found
TORT – fraud – whether the cross-defendant engaged in a fraud on the borrower and conspired with others to enrich themselves through the sale of the borrower’s property – no evidence whatsoever to support the assertion of fraud nor the assertion of conspiracy
CRIMINAL LAW – costs – application for certificate under s 2 of Costs in Criminal Cases Act 1967 (NSW) – where medical opinion that pre-existing condition of the deceased and methamphetamine use caused death irrespective of the accused’s actions – where not reasonable to have instituted proceedings if expert opinions held when charge laid – circumstances in which citizen’s arrest lawful – where Court of opinion in s 3(1)(a).
SUCCESSION — Family provision — Claim by adult child – No issue of principle
SUCCESSION — Family provision — Claim by former spouse for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether
factors warranting — Succession Act 2006 (NSW), s 59(1)(b)
CIVIL PROCEDURE – admissions – withdrawal – where leave sought to withdraw admission made in verified defence – where admission is of stated fact – where evidence led by individual defendant provides little justification for application to withdraw admission – where no prejudice to plaintiff in allowing admission to be withdrawn – whether leave to withdraw admission should be given.
CORPORATIONS – winding up – application to validate appointment of liquidator – where liquidator purported to be appointed by special resolution of members – where question as to whether a person was a member – where company has been in liquidation for a significant period of time – whether appointment should be validated under s 1322(4) of the Corporations Act 2001 (Cth).
ADMINISTRATIVE LAW – whether open to Appeal Panel to refuse to re-examine the plaintiff in circumstances where Approved Medical Assessor noted disparities in history given and effort on examination – whether Appeal Panel obliged to receive additional reports served by plaintiff after decision under review
ADMINISTRATIVE LAW – alleged denial of procedural fairness to reject request for re-examination and additional reports sought to be relied on before Appeal Panel
COSTS – where plaintiff sought easements on various bases including by prescription, express grant and s 88K Conveyancing Act 1919 (NSW) – where orders under s 88K not required because plaintiff succeeded on prescriptive easement claim – where plaintiff failed on express grant claim – where successful prescriptive easements claim based on late amendment - whether plaintiff should pay defendants’ costs pursuant to s 88K(5) – whether departure from the usual order warranted – costs apportioned
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, approve a proposed scheme of arrangement – where independent expert concludes that scheme is reasonable and in best interests of shareholders but is unfair – whether requirements to order scheme meeting are satisfied.
CORPORATIONS – statutory derivative action – application by plaintiff to bring proceedings on behalf of company – where plaintiff has significant shareholding – where directors did not undertake further investigations to identify value in mining assets – where proposed proceedings against current directors of company – where proceedings may impact management of ongoing business – whether it is in company’s best interests that plaintiff be granted leave – whether proposed proceedings involve a serious question to be tried – whether leave should be granted to plaintiff to commence proceedings on behalf of company.
RELIEF HEARING – contest concerning consequential orders after a principal judgment and a second judgment – in the principal judgment the Court declined an application to revoke a grant of probate and dismissed a claim in related proceedings for provision out of the estate of a deceased person under Succession Act 2006, Chapter 3 – various monies ordered to be repaid to the deceased’s estate that had been advanced to the first defendant in the debt/trust proceedings, Mr Okan Yesilhat, before the deceased’s death – two issues are for determination in these reasons: (1) whether another defendant, Mr Gokan Yesilhat, has any liability to repay the estate for loan monies advanced to him; (2) whether another defendant, Australia’s Best Tyres Pty Ltd, has any liability to repay monies to the estate.
CIVIL PROCEDURE – Payment of judgment debt – section 107 of the Civil Procedure Act 2005 (NSW) and part 37 of the Uniform Civil Procedure Rules 2005 (NSW) – application to pay judgment debt by instalments – application to set aside decision of deputy registrar refusing application to pay debt by instalments – hearing de novo – whether to permit payment by instalments
CIVIL PROCEDURE – stay of proceedings – application for permanent stay of proceedings – historical sexual abuse – alleged perpetrator died in 1957 – no material available in relation to allegations – whether defendant can meet the claims made against it and receive a fair trial – permanent stay granted
LOCAL COURT APPEAL - summary judgment - where applicant’s defence and cross-claim struck out - alleged breach of agreement to obtain finance for purchase of property - cross-claim for misleading and deceptive conduct - whether error of law - whether undue emphasis placed on applicant’s delay - whether error of law - procedural fairness - requirements for summary dismissal
CIVIL PROCEDURE — interim preservation — freezing orders — requirements to be met before order made — no evidence of likely attempt by defendant to dispose of assets in order to defeat any potential judgment — summons dismissed
COSTS – application for costs following successful appeal under Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) – whether power to order costs of the proceedings in this Court and in the Court below
COSTS – whether power to make lump sum costs order in criminal proceedings – whether items allowable – use of legal databases in breach of university policy – commencement of proceedings in District Court for improper purpose of obtaining transcript at reduced rate
STATUTORY INTERPRETATION – whether an appeal under Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) is civil or criminal proceedings – relevant statutory definitions – criminal proceedings – court fees not authorised by delegated legislation – not payable
COSTS — Interlocutory proceedings — Directions for plaintiff to file expert evidence — Plaintiff’s expert identifies documents needed to complete report — Subpoenas issued to defendants’ related parties — Motions to amend and strike out pleadings then part-heard — Defendants’ motion to set aside subpoenas — Subpoenaed party joined as defendant — General discovery ordered in place of compliance with subpoenas — Long course of less than full production — Plaintiff’s motion to enforce discovery — Orders made without final determination of motions — Motions dismissed by consent after further production — Plaintiff substantially successful on both motions — Defendants to pay costs of motions and related hearings.
COSTS — Party/Party — Costs orders in interlocutory proceedings — Costs in the cause – where the applicants were successful however no costs order should be made in light of the conduct of the proceedings to date and the fact that there had been numerous iterations of the notice of motion – where the conduct of the respondents has also been unsatisfactory – held that the appropriate course is to order that costs of the motion be costs in the cause other than the costs thrown away by the successive iterations of the notice of motion by the applicants.
CIVIL PROCEDURE – Representative proceedings – Settlement or discontinuance – Court approval – held that the proposed settlement was fair and reasonable in the interests of all group members considered as a whole – held that it was appropriate to allocate a differential amount to the lead plaintiff, who has taken on the stress and burden of acting as the representative plaintiff to date.
CORPORATIONS — Directors’ duties — Circumstances in which duties owed directly to shareholders — Where proposed strategic alliance between company and larger company — Where sole director and minority shareholder was responsible for day-to-day management — No facts giving rise to fiduciary duty directly to shareholders — No breach in any case.
EQUITY — Equitable remedies — Rule in Barnes v Addy — Liability alleged under both first and second limbs of Barnes v Addy — No evidence that company property retained by third party — No evidence of dishonest and fraudulent design — No evidence of requisite knowledge — No loss — Claim dismissed.
CONTRACT — Formation — Whether contract formed in terms alleged by plaintiffs — Agreement to pay fixed sum as part of broader arrangement — Arrangement never concluded — Fixed sum not referable to any particular services — No concluded contract on terms alleged — No issue of principle — Money claim not made out.
CONTRACT — Formation — Estoppel — Whether defendants estopped from denying existence of obligation to pay — Elements of equitable estoppel not made out — Estoppel pleaded in aid of flawed claim in contract — No factors warranting equitable relief — No issue of principle.
CRIMINAL LAW - sentence - murder - guilty verdict by jury - joint criminal enterprise with father to kill mother's lover - young adult - no remorse - whether under father's influence.
CRIMINAL LAW - sentence - accessory after the fact to murder - guilty verdict by jury - assistance by mother to enable son to flee the jurisdiction - knowledge of son's involvement.
CRIME – bail – release application – show cause offence – import commercial quantity of a border controlled drug offences – proceeds of crime offences – strong prosecution case – incarceration causing detriment to business and family – expected lengthy period of time in custody pending trial – not satisfied that cause shown
CIVIL PROCEDURE — cross-vesting — transfer to other Supreme Court — whether transfer to the Supreme Court of Queensland in the interests of justice — where respondent has already incurred significant costs pursuing proceedings in New South Wales — application dismissed
CORPORATIONS – winding up – provisional liquidators – application for remuneration for performance of services – where remuneration calculated on time-costing basis – where work performed had necessary connection with the provisional liquidation and powers conferred on provisional liquidators – where remuneration sought is not disproportionate – whether such remuneration should be approved.
BAIL – release application – where concern that the applicant will fail to appear, pose a risk to the victim or commit a further offence – where applicant suffers from psychiatric conditions – where applicant currently serving a fixed term sentence – where the grant of bail may result in the applicant being given a minimum security classification and therefore allow him to access programs within the Corrective Services system to assist with his psychiatric conditions
CRIMINAL LAW – sentencing – manslaughter – unlawful and dangerous act – joint criminal enterprise – drug deal gone wrong – organised and brutal attack – where offender acted as driver and played a limited role in the offence – extensive and long standing drug dependence – no previous offences of violence – positive finding of remorse – good prospects of rehabilitation – guilty plea – valuable assistance to authorities – total discount of 50% – finding of special circumstances
BAIL – release application – show cause offence – murder – joint criminal enterprise – where applicant previously convicted – where conviction overturned – where new trial to be held – where significant delay – where Crown case could not be described as weak – cause not shown – bail refused
CRIMINAL LAW – Sentence – Manslaughter – Causing grievous bodily harm with intent to do so – Conviction for murder the subject of successful appeal – Pleas of guilty – Reduction of culpability to manslaughter by partial defence of excessive self-defence – Planned shooting of deceased with handgun – Uninvolved bystander seriously wounded – Parity – “Ceiling principle” limiting re-sentence after successful appeal on offence involving grievous bodily harm
LEGAL PRACTITIONERS – stay of proceedings – two brothers were directors of a company and also trustees of a trust – company commenced proceedings against Sydney Water – security for costs ordered and provided – proceedings ultimately dismissed –separate proceedings brought by one brother against other for breach of trust – cross-summons seeking removal of plaintiff brother as trustee – counsel retained by company in Sydney Water proceedings took instructions from both directors in relation to security for costs and financial circumstances of company and the brothers – security for costs ultimately satisfied by funds lent by brothers’ parents – distribution to repay parents challenged in pending proceedings – circumstances in which company provided other amounts to trustees in issue in pending proceedings – counsel formerly retained by company appeared for plaintiff brother – evidence unclear as to extent of his involvement in the litigation – whether counsel had received confidential information from defendant brother – whether proceedings should be stayed in exercise of inherent jurisdiction – whether any or all of counsel and solicitors for plaintiff could continue to act – evidence did not establish confidential information imparted to counsel – proceedings stayed pending counsel ceasing to act – no basis presently established for preventing other counsel and solicitors from acting for plaintiff
CORPORATIONS — Members’ rights and remedies — Statutory right of access to books and records — Where company subject to Deed of Company Arrangement — Small shareholder sought access to vast range of documents — Leave granted under s 444E where deed administrators did not oppose — Deed administrators held concerns as to expense and confidentiality — Deed administrator had limited funding — Production in reduced scope ordered after “sunset date” of DOCA to avoid the administrators being distracted from their task of recapitalising the company — Production subject to provision of confidentiality undertakings and pre-payment of estimated costs of production.
CIVIL PROCEDURE – Court administration – Court powers – Control of proceedings – young person under the parental responsibility of the Minister residing in the Sherwood House program – young person has already turned eighteen – Court’s parens patriae jurisdiction continues over the young person, not by reason of her age but by reason of her disability – full funding assessment through the National Disability Insurance Scheme for the young person to have supported independent living (“SIL”) outside the Sherwood House program has been approved and SIL arrangements made, enabling her to move out of Sherwood House into her own accommodation.
PRIVATE INTERNATIONAL LAW – foreign judgments and orders – stay application pending determination of appeal in US – stay refused
COSTS – security for costs – plaintiff ordinarily resident in California – security ordered
CORPORATIONS — Winding up — Statutory demand — Payment under agreement to sell units in trust — Trust holds property with flammable cladding — Alter egos of vendor and purchaser of units also directors of builder of property — “Lightweight construction” certificate alleged to be false — Occupation certificate said to be liable to be set aside — Proceedings commenced in District Court for damages for rectification works — Whether implied term in Agreement — Whether misleading and deceptive conduct by silence — No basis to set demand aside — Application dismissed with costs.
CRIMINAL LAW – murder – fitness to stand trial – treatment resistant schizophrenia – Presser test – relevant criteria – delusional thoughts – disordered speech – whimsicalised – sexual genome castrated – where accused’s fitness changed over time – unanimous opinion of experts – inability to focus on evidence – inability to instruct counsel – inability to present defence
CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – Electronically Recorded Interview of a Suspected Person – answers to questions – relevance – probative value – unfairness to the accused
EVIDENCE – Expert evidence – whether statements in the report of an expert witness can be admitted as expert evidence – whether statements are based on any particular area of specialised knowledge – where statements are in the nature of advocacy
CIVIL PROCEDURE — parties — persons under legal incapacity — tutors — application for removal of tutor — whether plaintiff remains a person under a legal incapacity under s 3 of the Civil Procedure Act 2005 (NSW) — declaration sought that plaintiff is capable of managing his own affairs
CIVIL PROCEDURE — court administration — removal to Court of Appeal — order made pursuant to r 28.2 of the UCPR for the decision of a question of law separately — question of correct approach to demonstrating loss or damage arising from allegedly negligent or misleading valuation in a mortgage transaction — where existence of a conflict in legal authority in relation to determination of the separate question — removal of question into Court of Appeal ordered
CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – listening device material – admissions – s 90 Evidence Act – discretion to exclude admission – recording of conversation between accused and wife at police station – whether impropriety – whether unfairness to the accused
CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – application to release evidence given before Crime Commission – s 45(4) and (5) Crime Commission Act 2012 (NSW) –whether disclosure in the interests of justice – factors weighing for and against disclosure – public interest immunity
TORTS – negligence – medical negligence -
application for approval of proposed settlement in favour of infant plaintiff – whether settlement is in the best interests of the plaintiff – where immediate needs of plaintiff are to be assessed by reference to life expectancy and longevity of the settled fund
CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court — Public policy that contempt should be determined by court whose orders allegedly breached
CIVIL PROCEDURE — Hearings — Adjournment — Belated application by defendant for adjournment of contempt hearing pending determination of application for legal aid
CIVIL PROCEDURE — Judges — Actual or apprehended bias — Apprehended — Second application — No new facts or facts that could not have been discovered with reasonable diligence at time of first application
CONTEMPT — Procedure — Requirement for statement of charge to be drawn with specificity
CONTRACTS – formation – agreement – whether shareholders agreed to vary the shareholders agreement
CONTRACTS – construction – interpretation – purported “binding” term sheet – what the term sheet was binding to do
CONTRACTS – construction – interpretation shareholders agreement – decisions “in relation to” subject matters which required special majority shareholder approval – what “in relation to” means in this context
CONTRACTS – misleading conduct under statute – misleading or deceptive conduct – representations – representations as to authority of company to enter transaction
CORPORATIONS – contracts – formalities – statutory assumptions – persons entitled to assume document duly executed – whether person knew or suspected that assumption was incorrect
APPEAL – Whether the Judicial Registrar of the District Court erred in dismissing the proceedings pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) – Whether the amended statement of claim discloses a cause of action against the named defendants.
EVIDENCE – Relevance – Expert evidence – s55 of the Evidence Act - where the opinion does not relate to the skills and capacity of the Accused when the events occurred – the evidence if it was accepted, could not rationally affect, either directly or indirectly, the assessment of the probability of the existence of any fact in issue in the proceedings
PRACTICE AND PROCEDURE – the plaintiff, an elderly person, appointed the first defendant as his attorney under an enduring Power of Attorney – the plaintiff commenced proceedings for the recovery of land and money said to have been transferred by the first defendant to herself and to the second defendant, the first defendant’s daughter, contrary to the terms of the Power of Attorney and in alleged breach of fiduciary duty – proceedings were fixed for hearing in February 2020 – the plaintiff dies in early November 2019 – a son applies successfully under Uniform Civil Procedure Rules 2005, r 7.10 to represent the plaintiff’s estate and for the proceedings to continue to be heard on the appointed hearing date – the first defendant applies by motion to remove the son as a representative of the plaintiff’s estate, to stay the proceedings until the resolution of probate proceedings, and to appoint another son of the plaintiff to represent the estate – the estate opposes all the relief sought on the motion.
CRIME – murder – applications for directed verdicts – six accused charged with murder – three accused make applications – circumstantial case – appropriate legal test – where cause of death stab wound to chest – where doubt over knowledge of the presence of a knife – distinction between rational inference and speculation
COSTS – proceedings resolved without a determination on the merits – where plaintiff and defendant registered proprietors and mortgagors of property – plaintiff and defendant enter into agreement whereby the defendant agreed to pay a sum to the plaintiff in return for a transfer of the plaintiff’s interest in the property – dispute as to whether the defendant paid all of the amount owing to the plaintiff under the agreement – where plaintiff commenced proceedings seeking appointment of trustees for sale in respect of the property – where proceedings resolved – whether plaintiff or defendant acted unreasonably in the commencement and maintenance of proceedings – neither party held to have acted unreasonably – orders made that each party pay its own costs
LAND LAW – contract for sale of land – claim for rescission pursuant to the rule in Flight v Booth (1834) 1 Bing (NC) 370 – plaintiffs entered into a contract to purchase a proposed lot in an unregistered plan of subdivision – where contract promised that the lot would contain an outdoor area covered by lawn – where defendant changed the location of the on-site stormwater detention tank – tank now built under outdoor area in such a way as to preclude a lawn – all access grates for tank located on the lot – whether material and substantial discrepancy between the subject matter of the contract and the property available to be conveyed – material and substantial discrepancy established – plaintiffs establish entitlement to rescind
EQUITY — Receivers and managers appointed by court over certain property — Application for approval of Deed of Settlement and Release providing certain aspects condition upon “approval from the Court” – where Receiver did not seek judicial advice or approval of Court in terms – principles governing directions to receivers, judicial advice and administration proceedings – proceedings resolved by agreement for direction that further deed be entered excluding requirement for approval by the Court.
COSTS – payment of plaintiff’s costs sought out of companies’ assets – where cross-claim would not otherwise have been brought by company against directors – where claim largely stood on work underpinning primary claim in proceedings – costs accepted as appropriate by parties.
APPEAL FROM LOCAL COURT — Local Court Act 2007 (NSW) — Assessment by Magistrate of economic loss — Whether Magistrate erred in determining award for loss of profits — Whether Magistrate gave sufficient reasons — Where the plaintiff’s shipment of BBQ smokers was delayed and damaged
CIVIL PROCEDURE – leave to make further submissions as to the proper construction of some provisions of a shareholders agreement – both parties have made all the submissions they would otherwise make – leave granted to make submissions
CIVIL PROCEDURE – leave to re-open to make further submissions and to make alternative response to further cross-claim – leave sought after closing submissions – delay not explained – further response not able to be met – evidence goes to responding to an alternative
HEALTH – Public hospitals — Local Health Districts – Health services provided in public hospitals to persons ineligible under Medicare arrangements – Liability of ineligible persons to pay for health services provided at public hospitals — Guarantees procured by Local Health Districts from third parties in respect of health services provided to ineligible persons — Whether policy directives required guarantees to be procured — Whether procuring guarantees inconsistent with, or repugnant to, Health Services Act 1997 (NSW), sections 70 and 71 – Whether guarantees otherwise void or unenforceable
BUILDING AND CONSTRUCTION – payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication determination – whether email and attached schedule sent by project manager a payment claim under s 13(1) – whether defendant was person who sent documents it asserts was a payment claim – whether multiple payment claims served in respect of one reference date
ADMINISTRATIVE LAW – judicial review – procedural fairness – duty to obtain documents – motor accident – medical dispute – determination of Review Panel under Motor Accidents Compensation Act 1999 (NSW) – parties requested to supply further documents in four categories – no documents provided in three categories – other documents not available to parties – whether reviewable error in Panel determining dispute without further material –whether procedure unfair to insurer – whether non-compliance with Medical Assessment Guidelines – legal status of Guidelines
PROCEDURE – civil – judicial review – adequacy of pleading – specifying grounds – Uniform Civil Procedure Rules 2005 (NSW), r 59.4(c)
PERSONAL PROPERTY – Title – Particular kinds of personalty – Prize money won by race horse – Ownership of horse – Entitlement to prize money
FUNDS IN COURT – Payment out – Competing claims – Identification and determination
APPEALS – Judicial review – Application for leave to appeal from a decision of an Appeal Panel of the New South Wales Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Home Building Act 1987 (NSW) – Whether the Appeal Panel erred in reversing the onus of proof of the date of practical completion of the works under s 3B – Whether the alleged defects were “major defects” under s 18E(4) – Relevance of expert evidence to a determination of whether a defect “causes, or is likely to cause” the consequences in s 18E(4)(a)(i)-(iii)
CIVIL PROCEDURE — cross-vesting — transfer to Federal Court — current proceeding related proceeding pending in the Federal Court — in the interests of justice that current proceeding be determined by the Federal Court
APPEAL — Appeal from Local Court to Supreme Court — Local Court Act 2007 (NSW) ss 39(1) and 40(1) — Whether question of law or question of mixed fact and law raised — Concession judgment at first instance was erroneous — Inadequate reasons — Court unable to make factual findings on appeal — Opportunity for parties to reach agreement on amount of judgment following from findings
CONTRACTS — Formation — Formation of contract inferred from conduct