Recent decisions for Supreme Court

Catchwords:

SUCCESSION — Probate and administration — Informal document — Dispensing with requirements for execution of a will pursuant to Succession Act 2006 (NSW), s 8 — Intention to constitute a will

Catchwords:

COSTS – general rule that costs follow the event – application of the rule and discretion – costs of motion seeking stay of judgment – where cross-claimant ultimately successful in having stay lifted but unsuccessful in relation to earlier hearing of motion – where unnecessary for plaintiff to be an active participant on the motion

Catchwords:

CORPORATIONS – Winding up – Public examination of director, officers and others – Interim orders previously made under s 1323(1) of the Corporations Act 2001 (Cth) for freezing of assets – Where liquidator’s examinations will shortly take place – Whether final orders should be made under s 1321(1) of the Corporations Act – Whether interim relief could be granted under UCPR r 25.11, 25.14 – Whether interim relief could be granted under s 1323 of the Act pending any appeal.

Catchwords:

CRIME — bail — release application — private electronic monitoring — new legislation — Bail Amendment (Ban on Private Electronic Monitoring) Bill 2025 — three month transition period — prohibits courts allowing private electronic monitoring

Catchwords:

CRIMINAL LAW – Evidence – When objection was taken to evidence of conversation between two co-conspirators - Conversation recorded by listening device – Primary objection on the basis of relevance – Where counsel for the accused sought that the determination of admissibility be made without the aid of a transcript – Where the conversation was played on several occasions – Court unable to determine what was said – Evidence not relevant – Evidence excluded

Catchwords:

CRIME – murder – wounding with intent to cause grievous bodily harm – Judge alone trial – question as to whether the Court should be closed – where accused was a child at the time of the alleged offending – where accused no longer a child – little in the way of authority on the question – bound by a decision of a superior court – Court to be open

Catchwords:

CRIME – murder – wounding with intent to cause grievous bodily harm – Judge alone trial – accused a young person at the time of alleged offences EVIDENCE – objection by the accused - relevance – video evidence – file taken from accused’s phone as a result of a Cellebrite examination – failure by Crown to disclose this evidence – evidence relevant to provide further background with respect to issues relating to the accused’s state of mind – significant evidence already available – evidence excluded and not admitted

Catchwords:

CRIMINAL PROCEDURE – impending murder trial – alleged stabbing by one juvenile of two others, one fatally – foreshadowed reliance on self-defence and substantial impairment – application for trial by judge alone of accused opposed by Crown – leave permitting late application not opposed – whether in the interests of justice to make the order – recent notorious fatal and non-fatal knife attacks in NSW – very recent homicide by multiple stabbings in Coffs Harbour – perpetrator still at large – apparent inability for trial to be conducted elsewhere, or at a later time – finely balanced competing considerations – application granted

Catchwords:

CRIMINAL LAW – murder – wounding with intent to inflict grievous bodily harm – trial by judge alone – where the accused a young person at the time of the alleged offences – stabbing – Beef Week – melee at a KFC restaurant – numerous young persons involved – where the event is captured by CCTV and mobile phone – where the deceased exhibited significant animus towards the accused – where the accused suffers from a cognitive impairment – Foetal Alcohol Spectrum Disorder (FASD) – defence of substantial impairment – self-defence – knuckledusters – guitar capo – whether the accused believed his conduct was necessary in order to defend himself – whether the conduct of the accused was a reasonable response to the circumstances as he perceived them – excessive self-defence – accused not guilty of murder but guilty of manslaughter on the basis of excessive self-defence – accused not guilty of wounding with intent to cause grievous bodily harm – orders made

Catchwords:

CRIME – sentence – manslaughter – excessive self-defence – offender a young person at the time of the offence – trial by judge alone – fatal stabbing – confrontation between young people – KFC restaurant – melee – tragic loss of life – where deceased exhibited hostility towards offender –deceased armed with knuckledusters – offender did not initiate confrontation – offender had no interest in fighting the deceased - offender outnumbered by adversaries – offender believed he was going to be killed – chaos – clamorous noise – extreme situation – real threat to the offender – no intention to kill – where offender suffers from cognitive impairment – FASD – ADHD – youth and lack of maturity – moral culpability significantly reduced – unblemished criminal record – very good prospects of rehabilitation – whether sentence to be served as a juvenile offender – convicted – sentence imposed

Catchwords:

APPEALS — Leave to appeal — Principles governing — Whether leave required — Whether questions of law are of sufficient public importance TAXES AND DUTIES — Land tax — Liability — Exemptions — Whether principal place of residence exemption applied to land where some areas reserved for commercial use only — Where plaintiff intended to leave the exclusively designated commercial areas vacant

Catchwords:

SUCCESSION — Family provision — Claims by adult children — Whether insufficient provision was made by deceased to plaintiffs SUCCESSION — Family provision — Notional estate — Whether estate was affected by relevant prescribed transactions

Catchwords:

EQUITY – Equitable remedies – injunctions – where the plaintiff seeks leave to proceed pursuant to UCPR r 11.8AA – where the plaintiff seeks final relief by way of default judgment - where defendants’ names unknown but defendants involved in clearly identifiable acts – injunctive relief ordered against such “persons unknown” – non-publication and suppression orders.

Catchwords:

CONTRACT – whether binding agreement as to process for sale of shares established - quantification of loss of opportunity for sale of shares at higher price. OPPRESSION — Members’ rights and remedies — whether oppression established — whether buy-out order available where company in liquidation

Catchwords:

CIVIL PROCEDURE – discovery – further and better discovery – whether discovery adequate – whether reasonable search undertaken – where limited documents discovered – where defendant earlier indicated that email inboxes are automatically deleted, but then indicated email inboxes are automatically archived – where defendant has not undertaken search of such archives – whether reasonable grounds for being fairly certain other relevant documents have not been discovered

Catchwords:

SUCCESSION – where the plaintiff is the adult child of the deceased – where the defendant is the widow of the deceased – where the plaintiff is not the issue of the defendant – where the plaintiff seeks a family provision order for his maintenance, education or advancement in life – where the deceased died intestate – where the estate of the deceased is nominal – whether to designate property as notional estate of the deceased to satisfy family provision and costs orders – where the plaintiff is entitled to a family provision order – where notional estate orders are granted.

Catchwords:

CIVIL PROCEDURE – form of final orders to give effect to judgment – where Court has made determination of proper construction of the Deed – where neither party sought any order as to status of the Deed following determination – where plaintiffs now seek to amend pleadings to find Deed has been frustrated – where not appropriate for plaintiffs to agitate matters at this very late stage

Catchwords:

CRIMINAL LAW – murder – sentence for murder – where offender is found guilty of murdering his mother with a pot-plant – contested factual issues – whether the offence was motivated by a need for money to purchase heroin – whether pressure was applied to mother’s neck – whether offender acted with an intention to kill – where victim’s death was the tragic and unintended consequence of the offender’s actions – lower end of objective seriousness – subjective case – where generalised anxiety disorder, COVID and drug withdrawal affected offender’s decision making capabilities and his capacity to control himself – whether the offender’s moral culpability is reduced – where emphasis upon general deterrence is not appropriate – limited risk of re-offending – whether the offender was truly remorseful – victim impact statement – difficulty coping with the prison environment

Catchwords:

CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — Cy-près scheme — Trust property CHARITIES AND NOT-FOR-PROFITS — Charitable purposes — Advancement of education — Spirit of the Trust

Catchwords:

BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Building and Construction Industry (Security of Payment) Act 2021 (WA) — Where plaintiff has succeeded in establishing that review adjudicator’s purported determination affected by jurisdictional error — Whether order in the nature of certiorari and/or declaration ought be made BUILDING AND CONSTRUCTION — Contract — Bank guarantee — Injunction — Whether interim restraint preventing enforcement of original adjudicator’s determination concerning release of the bank guarantees until notice given or further order of Court ought be made EQUITY — Equitable remedies — Injunctions — Whether interim restraint preventing release of moneys paid into trust under s 40 Building and Construction Industry (Security of Payment) Act 2021 (WA) until notice given or further order of Court ought be made COSTS — Party/Party — Exceptions to general rule that costs follow the event — Whether judicial review of review adjudicator’s purported determination a dominant or separable issue — Whether costs of late abandonment of positive case advanced in reply ought be awarded

Catchwords:

HIGH RISK OFFENDER – application for extended supervision order – very serious sexual offender – community safety paramount – whether there is an unacceptable risk that the defendant will commit a serious offence – unacceptable risk found – dispute as to the length of the order – proposed exception to curfew – whether the defendant should be able to ride his motorbike at night along an approved route to alleviate alleged stress – route passes many parks and suburbs – proposed exception inappropriate – extended supervision order imposed

Catchwords:

NEGLIGENCE – professional negligence – where solicitor failed to draft notice to complete with reasonable care – client subsequently repudiated the contract – purchaser sued client for return of the deposit and damages – deposit repaid but no damages or costs awarded against client – whether unpaid deposit instalment would have been unrecoverable as a penalty in any event – causation of loss – whether client suffered loss by not lawfully terminating the contract BREACH OF FIDUCIARY DUTY – where solicitor continued to act for client in defence of litigation brought against client about defective notice to complete – solicitor acted in circumstances where there was a conflict or possible conflict of interest and duty – where client nonetheless won the litigation – whether client suffered loss BREACH OF FIDUCIARY DUTY – where solicitor acted for client on negotiation and implementation of refinance – where solicitor received payments from funds drawndown from new finance – payments for past legal costs and refinance expenses not properly accounted for – whether monetary benefit or profit received by solicitors when acting in circumstances where there was a conflict or possible conflict of interest and duty

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision of magistrate to reject application for professional costs under s 213 of the Criminal Procedure Act 1986 – application for judicial review under s 69 of the Supreme Court Act 1970 – no jurisdictional error – no error of law on the face of the record – Court’s residual discretion to decline relief – bad faith – improper purpose – disproportionality – application dismissed

Catchwords:

EVIDENCE – Course of evidence – Evidence before trial – Admissibility of evidence – Affidavit evidence – Assessment of relevance of evidence to criminal proceedings – Whether probative value is outweighed by the danger of unfair prejudice to the defendant under s 137 of the Evidence Act 1995 EVIDENCE – Admissions – Criminal proceedings – Admissibility of a guilty plea where plea subsequently withdrawn – Admissibility of an affidavit written by the defendant prior to the withdrawal of a guilty plea – Discretion to exclude evidence of an admission under section 90 of the Evidence Act 1995

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – serious sex offender – whether the matters alleged justify the making of an extended supervision order or continuing detention order – where the offender has a significant criminal history – where the defendant has been diagnosed with psychopathy – where a large number of previous offences involve child pornography – where the defendant does not consider he needs assistance – satisfied that the matters alleged, if proved, would justify an extended supervision order – orders made

Catchwords:

CIVIL PROCEDURE – where there is an agreement between the second plaintiff and defendants to dismiss the proceedings with costs – whether proceedings should be dismissed pursuant to UCPR r36.1A - where the first plaintiff opposes the dismissal of proceedings – where the first plaintiff seeks the return of funds paid into Court as security – where the first plaintiff commenced proceedings in the Federal Court to set aside a deed of company arrangement – whether dismissal of proceedings will interfere with proceedings in the Federal Court - where the first plaintiff seeks a short stay to apply for interim relief in the Federal Court – costs.

Catchwords:

CIVIL PROCEDURE — application for leave to reopen case to adduce evidence and make submissions on the application of the Court’s reasoning to “new facts” — where application made after delivery of reasons but before final orders — whether evidence previously unavailable to applicant — whether explanation given for not raising issue earlier — whether reopening would cause prejudice to other party — where scope of reopening uncertain — where evidence would establish present capital value of asset — whether new evidence would change result — leave refused SUCCESSION — family provision —Succession Act 2006 (NSW), s 66(2) — where absence of unanimous opposition to the making of adjustment — order made adjusting interests

Catchwords:

CIVIL PROCEDURE — Commencement of proceedings — Summons — Setting aside — Whether a high degree of certainty claim would fail at trial — Whether claim so obviously untenable it cannot possibly succeed — Whether respondent was a consumer pursuant to ACL — Whether construction materials were purchased for re-supply — Whether claim was time-barred — Constructive awareness

Catchwords:

EQUITY — Trusts and trustees — Trust instruments — Trust language – interpretation – where 1873 deed of trust established church school – where the object was “to provide an efficient course of education for youth” – where school previously adopted male-only admission policy – whether coeducation permissible – meaning of “youth” in trust deed – “plain and ordinary” meaning – evidence of contemporaneous usage – dictionary definitions – quotations from individual publications – admissibility – contextual factors – nature of instrument – constitution for ongoing institution – whether ambiguous – recourse to “surrounding circumstances” – 19th century educational practice – boys-only predecessor school – prior deliberations of church authorities – parol evidence rule – recourse to subsequent conduct of parties – subsequent adoption of boys-only admission policy – subsequent establishment of separate girls-only school – “ancient instruments” rule

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – application for leave to amend defence – application to withdraw admissions claimed to be made as a result of a mistake and to plead further defences – where leave to amend will not result in delay, wasted costs, irreparable unfair prejudice or adjournment of trial – leave to withdraw admissions and amend defence granted CIVIL PROCEDURE – application to amend cross claim – amendments not opposed from grant of leave – leave granted

Catchwords:

ADMINISTRATIVE LAW – application for judicial review of decision Personal Injury Commission Appeal Panel– where applicant had suffered psychological injury – whether Panel reasons were inadequate – whether Panel failed to adhere to applicable Guidelines and erred in having regard to a secondary psychological injury –decision set aside and remitted back to Personal Injury Commission

Catchwords:

PROCEDURE — advance ruling under s 192A Evidence Act — claim by builder for unpaid amounts – cross-claim by owner for building defects — where owner’s expert relies on identification of defects by another, neither having expertise to identify defects — where owner’s quantity surveyor then relies on that evidence — advance rulings made.

Catchwords:

CRIMINAL LAW – proceeds of crime – proceeds assessment

Catchwords:

CIVIL PROCEDURE — application to strike out proceedings — where plaintiff commenced court proceedings before undertaking mandatory dispute procedures as required by the Workers Compensation Act 1987 (NSW) and Workplace Injury Management and Workers Compensation Act 1998 (NSW) — breaches of the Uniform Civil Procedure Rules 2005 (NSW) — Absence of any cause of action

Catchwords:

EQUITY — Trusts and trustees — Judicial advice — Decision to continue or settle proceedings — Decision to defend proceedings SUCCESSION — Executors and administrators — Rights, powers and duties

Catchwords:

CIVIL PROCEDURE — parties refer calculation of damages to referee — referee calculates lost profits for ‘charcoal chicken’ business from when vendor re-took possession of premises until purchaser regains possession after judgment — whether to adopt referee’s report — principles at [3]-[5] — report adopted. DAMAGES — contract for sale of business — vendor changes his mind and re-takes possession of shop to exclusion of purchaser — purchaser elects damages — whether discount should be applied to lost profits calculated by referee — no discount. COSTS — costs of reference — purchaser entitled to costs of reference as substantial lost profits calculated and awarded — costs of proceedings — Calderbank letter — difficult to say that plaintiff achieved better outcome when offer was ‘flip slip’ of outcome.

Catchwords:

COSTS – no final hearing on the merits – doomed to fail - leave to discontinue proceedings – whether plaintiff (son) should be ordered to pay defendant’s (mother) costs – no question of principle COSTS – gross sum costs order – where assessment process would cost considerably more than the amount of costs – where insufficient information – broadbrush approach applied – gross sum costs ordered – no question of principle

Catchwords:

COSTS — Solicitor-client — Background — In late June 2018, Plaintiff confers with D2 (a solicitor) and engages D1 (D2’s law firm) to act for her in family law litigation, having previously engaged two prior firms of solicitors — D2 in the initial conference gives an estimate for work up until the next court listing (August 2018) and, from early August 2018 progressively over the next 9 months, gives further estimates by means of Family Law Rules Cost Notices — Proceedings fixed for final hearing in late April/early May 2019 and settled following negotiations at the hearing — 11 invoices rendered over 11 months totalling approximately $470,579 — First 7 invoices rendered during 2018 paid by mid-January 2019 and the 2019 invoices are at that time unpaid — Following the Family Court Orders, there are issues regarding payment of fees and enforcement of the orders — D1 ceases to act, sues for fees and obtains a default judgment against the plaintiff in the District Court — Subsequently plaintiff requests D1 to further act and D1 renders 2 further invoices for fees in July and August 2022 for approximately $12,286 — Matrimonial property sold and plaintiff authorises D1 to receive proceeds of sale to pay most of the outstanding fees — Plaintiff subsequently complains about amount of fees and disclosure COSTS — Solicitor-client — Plaintiff (self-represented) commences proceedings and, prior to hearing, abandons relief seeking a declaration that costs agreements are void and invalid but presses orders requesting repayment of fees allegedly charged exorbitantly and without authorisation — Hearing is not completed on the allocated listing day — Shortly after the hearing is adjourned part heard, the plaintiff commences fresh proceedings attempting to re-instigate the abandoned relief — D1 named as the sole defendant in the fresh proceedings and seeks to have them summarily dismissed — Orders made in those proceedings dismissing that claim — On the resumed part heard hearing of these proceedings, the plaintiff presses claims for repayment and continues to raise issues regarding alleged inadequate disclosure of costs — Notwithstanding abandonment of claim that the costs agreement(s) are void and invalid, the (retained) claim for repayment of funds is essentially underpinned by various complaints of the plaintiff, including nondisclosure of total costs, inadequate disclosure of significant increases in costs, and assertions that D1 had agreed to act for a limited sum — Held, as repayment issue is premised on nondisclosure issues and other complaints, the Court ought to address those issues — Other issues including allegations of duress in respect of costs agreements and costs notices, allegations that that defendants guilty of contempt in failing to comply with Family Court Orders and claims for making a gross sum costs order or referring costs to be assessed by a referee also addressed — Plaintiff’s various claims dismissed CIVIL PROCEDURE — Identification of real issues in dispute — Obligations of parties including self-represented litigants regarding identification of issues UNREPRESENTED LITIGANTS — Content of procedural fairness COSTS — Principles regarding costs agreements, disclosures, billing and assessment outlined and discussed — Requirement to provide an “estimate of the total legal costs”, “as soon as practicable after instructions are initially given in the matter” discussed — Meaning of “significant change” — Requirement to disclose “significant change to anything previously disclosed” discussed — Requirement for the legal practice to take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs discussed EVIDENCE — Communication by a witness with others whilst under cross-examination — Principles discussed

Catchwords:

CRIME — bail — detention application — application made following conviction and before sentencing — consideration of section 22B of the Bail Act 2013 — whether the accused person will be sentenced to imprisonment to be served by full-time detention — standard to be applied

Catchwords:

CIVIL PROCEDURE – consent judgment – transfer of proceedings to the Land and Environment Court – parties have agreed proceedings be transferred to be heard with related proceedings – proceedings transferred to Land and Environment Court

Catchwords:

HIGH RISK OFFENDER – Final Extended Supervision Order – where both parties accept defendant poses an unacceptable risk and final supervision order should be made – disputed conditions – whether defendant should provide a schedule of movements – proposed trigger condition for schedule – non-association conditions – final supervision order made for 2 years on conditions specified

Catchwords:

SUCCESSION — Intestacy — distribution of estate – deceased dies with no spouse, no children and predeceased by her parents – whether the children of a person treated one of the deceased’s siblings are entitled to a distribution of a share of her estate under Succession Act 2005 s 129 – destruction of records in war – use of reputational evidence to find the person treated as a sibling was a sibling allowing distribution estate – application of the Status of Children Act s 9 – whether a Benjamin order is appropriate to allow distribution of the estate. EVIDENCE — Hearsay — Exceptions — Reputation of public or general right – business records – contents of State issued death certificate – Evidence Act 1995 s 69 and s 73.

Catchwords:

CORPORATIONS – constitution and replaceable rules – construction of company’s construction – company limited by guarantee – whether board empowered to decide that plaintiff’s membership not be renewed – where constitution makes elaborate provision for dealing with sanctionable conduct – whether board may bypass those procedures and itself determine that membership should not be renewed

Catchwords:

CORPORATIONS – Insolvency – Administration – Extension of time for adjournment of second meeting of creditors CIVIL PROCEDURE – Non-publication order – Where evidence tendered in application contains commercially sensitive information

Catchwords:

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.

Catchwords:

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.

Catchwords:

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.

Catchwords:

CIVIL PROCEDURE – Discovery – Practice Note SC Eq 11 – Exceptional circumstances warranting disclosure before evidence exchanged – Where disclosure before exchange of evidence would facilitate the just, quick and cheap resolution of the real issues in dispute

Catchwords:

CORPORATIONS – Winding up – Application for leave to oppose winding-up – Statutory demand – Where company disputes statutory demand

Catchwords:

CORPORATIONS – application for an order compelling the Defendant to provide a copy of its members’ register – where Plaintiff is majority shareholder of Defendant – where Plaintiff intends to propose resolutions for the removal of the current directors of the Defendant and for the appointment of the Plaintiff’s nominees – where Plaintiff has requested copy of members’ register of Defendant and Defendant has refused or failed to comply with this request – whether there has been compliance with the requirements for a valid request under s 173 of the Corporations Act 2001 (Cth) – whether Defendant should be ordered to provide copy of register PRACTICE AND PROCEDURE – application for adjournment – where application for adjournment made when matter came on for hearing – where adjournment sought to allow Defendant to bring an application challenging the retainer of the Plaintiff’s solicitors – whether any evidentiary basis established for believing that the proceeding may not have been validly constituted – adjournment refused

Catchwords:

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Calderbank offer — Where plaintiff gave false evidence — Whether indemnity costs should be ordered

Catchwords:

EQUITY — Equitable remedies – constructive trust – equitable compensation – the first defendant, who is not legally qualified held himself out as a legal practitioner and the second defendant as a legal practice – they obtained funds from clients on the basis that the funds would be applied in conveyancing transactions – funds misapplied and not used in the conveyancing transactions – plaintiffs seek to recover funds – defendants served but do not appear – final hearing in the absence of the defendants – remedies – constructive trust – Black v Freedman trust – equitable compensation – restitution – statutory remedy.

Catchwords:

CORPORATIONS – Voluntary administration – appointment of administrator – where one director purported to pass resolution appointing voluntary administrator in the absence of the other director –whether resolution invalid for lack of quorum – whether director passing resolution genuinely held opinion as to insolvency – whether order should be made confirming appointment of administrator

Catchwords:

ASSOCIATIONS AND CLUBS — Sporting Clubs — Dispute regarding affairs of rugby league “leagues club” — Plaintiff in late 2024 was a member and director of defendant club (Club) and was served with Notices of Charge and Suspension by the Disciplinary Committee (Committee) of the defendant —Disciplinary hearing found part of the alleged conduct was established and, pursuant to a penalty decision, the plaintiff’s membership of the Club was suspended for a minimum of 8 years — Urgent though somewhat belated relief sought in context of elections, including relevantly for directorship, due to commence within days of the Court being approached INTERLOCUTORY INJUNCTION — Prima facie case — Plaintiff seeks to enforce his contractual rights against the Club as a member and director of the Club invoking the Court’s equitable jurisdiction for this purpose, and the Court’s jurisdiction with respect to civil matters arising under the Corporations Act conferred by by s 1337B(2) for orders under s 1322(2) — Plaintiff submits the proceedings of the Committee were infected by apprehended bias, alternatively, actual bias and also by a lack of quorum INTERLOCUTORY INJUNCTION — Balance of convenience — Considerations in circumstances in which attenuated notice precluded Club from adducing evidence in respect of prima facie case INTERLOCUTORY INJUNCTION — Undertaking as to Damages — Plaintiff in straitened circumstances — Limited undertaking proffered INTERLOCUTORY INJUNCTION — Effect of Delay

Catchwords:

CONTRACTS — Department of Defence owns very large site for a century, used as supply and distribution centre — sold and leased-back — lease required Defence to “remediate the Land to a standard suitable for on-going commercial / industrial use” and to return Premises clean and in good repair and condition at end of lease — land on-sold to developer — deed of surrender of lease — Defence vacates site – developer demolishes Defence buildings, roads and underground infrastructure – whether Defence obliged to pay $20M for the costs of dealing with contamination encountered in demolition and excavation. INTERPRETATION — commercial contracts — whether lease incorporated definitions in Contaminated Land Management Act 1997 (NSW) or standards in National Environment Protection Measures (NEPMs) guidelines – context and business commonsense – principles at [62]-[71] — resolving inconsistencies at [210] — whether deed varied lease – obligations under lease remained but deed provided a release in certain circumstances – Defence released. DAMAGES — causation – remoteness – difficulties in proof – principles at [429]-[431] – ‘geotechnically unsuitable’ soil had to be removed in any event.

Catchwords:

ADMINISTRATIVE LAW – judicial review of the decisions of two medical Appeal Panels – whether the Appeal Panels committed jurisdictional error by not assessing whole person impairment in accordance with the relevant Guidelines – whether the Appeal Panels acted beyond jurisdiction – whether the Appeal Panels failed to provide adequate reasons – where the Appeal Panels were bifurcated to separately decide on neurological and psychological matters – where the bifurcated Appeal Panels shared a common member – many grounds and sub-grounds of appeal – amended summons dismissed WORKERS COMPENSATION – horse spooked by fox – plaintiff fell from horse – physical and psychological injuries – dispute about the assessment of whole person impairment – new medical assessment certificates previously issued

Catchwords:

LEASES AND TENANCIES — Ejectment — Writ of possession — motion to stay execution of a writ of possession — where default judgment was granted — where tenant has real hardship — temporary order granted

Catchwords:

LAND LAW – equitable mortgages – security interest over real property granted by guarantor in loan agreement – borrower in default under loan agreement – guarantor in default under guarantee in loan agreement – lender seeks to enforce rights against guarantor as equitable mortgagee of real property EQUITY – Equitable remedies – order for judicial sale – whether order for judicial sale should be made

Catchwords:

HIGH RISK OFFENDERS – supervision and other orders under the Crimes (High Risk Offenders) Act 2006 (NSW) – application for extended supervision order (ESO) – ESO not opposed – conditions to be imposed as part of the ESO – no point of principle

Catchwords:

CORPORATIONS – action for enforcement of judgment debt owed to a corporate trustee by a director of the company and by the unitholder which he controls – whether liability has been discharged by reason of entries which were alleged to have been made to the unitholder’s loan account of the company as at 30 June 2022 following instructions given by the director in February 2025 EQUITY – trusts and trustees – court-appointed trustees for sale sought advice and directions regarding the retention of sums from net proceeds of sale – whether trustees are justified in retaining sums proposed by them in respect of various contingent liabilities

Catchwords:

EQUITY – equitable remedies – injunctions – shareholder dispute – where first defendant issued default notice to plaintiffs and commenced process for compulsory sale of plaintiffs’ shares – where plaintiffs seeks to restrain first defendant from acting on default notice – serious consequences for plaintiffs – whether plaintiffs committed a material irremediable breach of the shareholders deed by disclosing confidential information to parties that signed confidentiality deeds poll where draft deeds not first offered to the remaining shareholders for comment – whether breach was “material” – whether serious question to be tried – whether balance of convenience favours making of injunction

Catchwords:

MENTAL HEALTH – criminal proceedings – fitness to be tried – where defendant suffering from severe chronic and treatment resistant mental health and cognitive impairments – where experts agree that the defendant is unfit to be tried under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and will not become fit to be tried within 12 months – finding that the defendant is not fit to be tried and will not become fit to be tried within 12 months

Catchwords:

LAND LAW — Caveats — Removal of caveat — Removal by order of court – consequent upon a family law dispute a wife is appointed as the trustee for sale of two matrimonial properties – due to continuing conflict between husband and wife the wife fails to sell the properties – wife replaced as trustee for sale – independent professional trustees for sale appointed – trustees for sale seek the removal of caveats securing obligations to a former professional adviser of the husband and a lender to the wife, to enable the properties to be sold – trustees for sale offer to set aside funds to cover the security of the caveators.

Catchwords:

CIVIL PROCEDURE — Notices to produce — Before hearing — Relevant to a fact in issue — Oppression

Catchwords:

CIVIL PROCEDURE – freezing orders – where default judgment has been set aside – dispute about an agreement for funding of proceedings in the Equity Division – issue as to validity and construction of parties’ agreements –good arguable case –real risk that the defendant’s assets would be disposed of and plaintiff unable to recover judgment made in its favour – freezing orders made against defendant and against non-party respondents

Catchwords:

CIVIL PROCEDURE – advance rulings and findings – notice of motion filed by defendant seeking advance rulings and determination of separate questions before the balance of proceedings – where plaintiff opposes application – where plaintiff submits trial judge should make any final determination – directions and orders made with a view to addressing issues

Catchwords:

EQUITY – equitable interests in property – whether second defendant held interests in property on trust for plaintiff – evidence of trust — Statute of Frauds – limitation defence – laches – no question of principle

Catchwords:

CIVIL PROCEDURE – application for the transfer of proceedings to the Supreme Court of Victoria – costs – where the Plaintiff and Second Defendant initially consented to the transfer – application by the Second Defendant to transfer the proceedings to the Federal Circuit and Family Court of Australia – where the Second Defendant abandoned that application – where the Plaintiff and Second Defendant reversed their position a second time and again consented to the transfer to the Supreme Court of Victoria – whether the conduct of the Plaintiff and Second Defendant was unreasonable and reckless – whether there should be an order for indemnity costs – whether costs should be reserved – costs payable on the ordinary basis up to 9 April 2025 and no order as to costs thereafter – costs payable forthwith.

Catchwords:

COSTS – where the Plaintiff was successful in motion for summary judgment – where the Plaintiff seeks indemnity costs against the First Defendant – whether there was a relevant delinquency by the First Defendant justifying an exceptional costs order – where the First Defendant’s contentions lacked merit at the hearing – where it is not justified to depart from the usual position as to costs.

Catchwords:

CONTRACTS — Formation — Agreement — Whether share purchase agreement had effect of transferring shareholding — Whether agreement a sham FRAUD — Misrepresentation — Whether ASIC misled by Form 484 that contained false representations — Whether plaintiff suffered loss and damage CONSUMER LAW — Australian Consumer Law (ACL) s 18 — Whether plaintiff misled into signing share purchase agreement — Whether ASIC misled by Form 484 that contained false representations —Whether plaintiff suffered loss and damage CORPORATIONS — Oral application for rectification of records maintained by ASIC pursuant to s 1322(4)(b) Corporations Act 2001 (Cth) — Where ASIC neither joined as party nor notified before application was brought — Whether court ought to order rectification of the register maintained by ASIC

Catchwords:

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

Catchwords:

BAIL – property offences – racist hate crime – role of s 21A(h) Crimes (Sentencing Procedure) Act 1999 (NSW)

Catchwords:

CHILD WELFARE — adoption — where proposed adoptive parents are child’s current foster parents —whether adoption order is in child’s best interests — whether birth parents’ consent should be dispensed with — whether change of name should be approved

Catchwords:

PRACTICE AND PROCEDURE - stay of proceedings - where cross-defendants in these civil proceedings are the accused in concurrent criminal proceedings - whether civil proceedings should be stayed pending final determination of criminal proceedings - where civil and criminal proceedings are each at an early stage and criminal proceedings may not be resolved for several years – whether there is real risk of prejudice to the accused in the conduct of their defence of the criminal proceedings if these civil proceedings are not stayed - whether protective measures other than a stay could ameliorate risk of prejudice - whether it is in the interests of justice to grant a stay – consideration of terms and conditions of stay

Catchwords:

ADMINISTRATIVE LAW — Industrial Relations Commission of New South Wales — nature and extent of jurisdiction conferred by s 229 of the Work Health and Safety Act 2011 (NSW) — whether questions of construction and application of the Act within jurisdiction ADMINISTRATIVE LAW — denial of procedural fairness — where plaintiff had no notice of evidence — where plaintiff alleged not given opportunity to lead rebuttal evidence — where surprise evidence not relied on in Commissioner’s dispositive findings — whether outcome would have inevitably been the same had alleged error not been made — no jurisdictional error

Catchwords:

CIVIL PROCEDURE – pleadings – amendment – late application for amendment of Technology and Construction Cross Claim List Statement – hearing imminent – pleading of causation – necessity to identify likely credible sequence of events that would have occurred but for impugned conduct

Catchwords:

COSTS – party/party – exceptions to general rule that costs follow the event – offers of compromise – where judgment for defendant entered - whether it was reasonable for the plaintiff to refuse two offers of compromise – where the first offer was made before a defence had been filed – where the first offer was a walk-away offer – not unreasonable to refuse the first offer – where second offer (not a walk-away offer) made following service of defendant’s experts reports and after mediationj - not reasonable to refuse the second offer – costs order varied

Catchwords:

CIVIL LAW – appeal from decision of NCAT – building dispute – where builder fails to pay award – where plaintiff seeks security for costs – where builder seeks stay of NCAT orders – both motions granted but stay conditional on payment of security for costs

Catchwords:

CIVIL PROCEDURE — Medical examinations —Whether a medical examination of the plaintiff should be ordered to determine capacity

Catchwords:

SUCCESSION — Family provision — Jurisdiction — Property in respect of which order may be made — Property held on constructive trust — Crisp type order where provision borne by property subject to constructive trust SUCCESSION — Joint and mutual wills — Parents make binding agreement with son to leave property by will to each other and then half proceeds of sale to son — Second parent to die breaches agreement by making later inconsistent will — Property held on constructive trust for son on terms of earlier mutual will — Whether that property available for sister’s family provision claim

Catchwords:

CIVIL PROCEDURE – stay of proceedings – assault alleged against police officers – self-represented litigant – where there is considerable danger of litigant being unable to present his case – whether the appointment of a tutor is appropriate – where a just outcome cannot be reached if proceedings continue as presently constituted – where any solution at this stage is likely to be unsuccessful – stay of proceedings ordered

Catchwords:

CRIME – Sentencing – murder – plea of guilty – domestic violence offence – where special circumstances

Catchwords:

CORPORATIONS – Directors and officers – Appointment, removal and retirement of directors – whether director validly resigned – steps required to effect directors’ resignation – long delay in giving notice of resignation. EQUITY – Trusts – Constructive trust – Where property acquired in name of defendant’s parents to effect “asset protection” scheme – Where defendant now asserts beneficial interest in property – Orders not made

Catchwords:

TAXES AND DUTIES – Mining Act 1992 (NSW) ss 282(1), 283, 287(1), 287A, 289, 291, 291A – Taxation Administration Act 1996 (NSW) (TA Act) ss 3, 5B, 9, 14, 17, 21, 25, 26, 33, 97, 101 – Plaintiffs are members of a corporate group and are miners and sellers of coal, and hold mining leases – Under the Mining Act, the holders of such leases are liable to pay royalty to the Crown on publicly owned minerals recovered by them – Application for review of decision of the Chief Commissioner of State Revenue to disallow (in part) Assessment Notices for royalty under the Mining Act plus interest and penalty tax – Whether the giving by the Chief Commissioner of a “confirmation” on a Royalty Online Service (ROS) for the making of royalty returns is the making of an assessment of the tax liability of a taxpayer with the consequence that the Assessment Notices were reassessments to which a five year limitation period under the TA Act applies – HELD: the “confirmation” is not a making by the Chief Commissioner of an assessment of the tax liability of the Plaintiffs – Where the Plaintiffs submitted royalty returns on the basis of an intra-group arrangement (the Return Arrangement) which permitted the making of negative royalty returns and set-off within the group against positive returns of members of the group – Royalty was returned and paid on this basis with the knowledge and cooperation of senior members of the government department then responsible for the administration of the royalty system and was subject to audits which were passed – The Return Arrangement is not permissible under the Mining Act as a basis for rendering royalty returns – Whether the only assessments that were permissible for the Chief Commissioner to make was a nil one because the Crown waived the right to claim royalty on any other basis or was party to a binding agreement with the Plaintiffs not to do so or was estopped from claiming royalty on another basis – HELD: waiver, even if available, not established, binding agreement not established, and estoppel not available and, in any event, not established LIMITATION OF ACTIONS – Limitation Act 1969 (NSW) ss 10(3)(a), 14(1)(d) – The Limitation Act s 10(3)(a) does not apply to an action by the Crown for the recovery of a tax – Whether the royalty payable to the Chief Commissioner is a tax – HELD: it is INTEREST AND PENALTY TAX – Whether the Court should remit market interest, the premium component of interest and penalty tax imposed by the Assessment Notices – HELD: it should until 1 November 2022, when the Assessment Notices were issued and which have not been paid by the Plaintiffs, because the Return Arrangement was fully disclosed, implemented with the cooperation of a government department and audited, the Plaintiffs took reasonable steps to comply with their tax obligations, an audit which called it into question and which led to the issue of Assessment Notices took four years to complete and the Plaintiffs’ case was not unreasonably brought or unarguable – However, from the date of the Assessment Notices the Plaintiffs fell into wilful default because they did not pay on them

Catchwords:

CONTRACTS — Formation — Agreement – Whether parties entered into a binding oral agreement – Whether agreement was in the nature of a mortgage - Whether either of the parties breached the agreement CONTRACTS — Formation — Contracts requiring written evidence — Statute of frauds — Where parties entered into written contracts for the sale of two properties — Whether the doctrine of part performance applied to concurrent oral agreement — MORTGAGES AND SECURITIES — Mortgages — Duties, rights and remedies of mortgagor — Equity of redemption — Whether parties have ever exercised redemption ESTOPPEL — Proprietary estoppel — Encouragement — Whether defendant’s alleged representations gave rise to an estoppel — Whether plaintiffs detrimentally relied on defendant’s alleged promises

Catchwords:

ADMINISTRATIVE LAW – judicial review – medical assessor’s determination of whole person impairment for the purposes of the Motor Accident Injuries Act 2017 (NSW) – assessment of whole person impairment as a result of psychiatric injury – whether the medical assessor took into account an irrelevant consideration – consideration that “no overt cognitive difficulties noted during the assessment” wrongly assigned to the “concentration, persistence and pace” area of functional impairment as defined in the Motor Accident Guidelines – error established – decisions and reasons of assessor set aside AMDINISTRATIVE LAW – judicial review – where medical assessor’s function included obtaining necessary information to assess whole person impairment for the purposes of the Motor Accident Guidelines – where necessary information not obtained – medical assessment of class 2 for the “Concentration, consistency and pace” area of functional impairment – where class rating based on considerations that did not provide a basis for distinguishing between class rating 2 and class rating 3 – error established

Catchwords:

CIVIL PROCEDURE – application for release from implied obligation stated in Hearne v Street (2008) 235 CLR 125 – where plaintiff seeks to use documents obtained in these proceedings for the sole purpose of prosecuting a separate claim against her former legal advisors – consideration of the categories of documents which the implied obligation applies to – clear commonality between the two proceedings – special circumstances established – application granted

Catchwords:

CORPORATIONS – insolvency – application by liquidators seeking orders to be appointed as voluntary administrators under s 436B(2)(g) of the Corporations Act 2001 (Cth) – application for “truncated administration orders” under s 447A of the Act and for a stay of the winding up of the company under s 482(1) of the Act – application granted

Catchwords:

SUCCESSION — Construction — Life interest — Respective rights of life tenant and remaindermen TRUSTS — Construction — Life interest — Trustee’s power to secure alternative residence for beneficiary

Catchwords:

CIVIL PROCEDURE – consent judgment – compensation under Compensation to Relatives Act 1897 (NSW) – compensation for nervous shock – where conflicting expert witnesses – where potential issue over expert witness not being able to express proffered opinion – where unlikely to receive more favourable judgment – consent judgment issued

Catchwords:

MORTGAGES AND SECURITIES – Personal Property Securities Act 2009 (Cth) – loan to first defendant guaranteed by second and third defendants - security interest over vehicle registered - where borrower disposed of vehicle to fourth defendant who subsequently disposed of vehicle in Victoria - default judgment against the second and third defendants – plaintiff to bring proceedings in Victoria for the recovery of the motor vehicle CIVIL PROCEDURE – subpoenas – Harman undertaking – where plaintiff ascertained current owner of vehicle by subpoena to public authority – where plaintiff sought release from Harman undertaking to bring proceedings in Victoria against current owner of vehicle – release granted

Catchwords:

CONTRACTS – breach of contract – whether binding agreements existed between the parties – whether agreements were lawfully executed on behalf of the plaintiff – s 127 Corporations Act 2001 (Cth) – where plaintiff did not read own affidavit – amended statement of claim and cross-claim dismissed

Catchwords:

APPEALS — Leave to Appeal — Australian Consumer Law — Local Court Act — Probative Evidence

Catchwords:

CIVIL PROCEDURE – pleadings – particulars – defects – whether impugned paragraphs should be struck out – where particulars are not to be provided by reliance on, or reference to, evidence which will be relied upon – impugned paragraphs neither properly pleaded or particularised – impugned paragraphs struck out

Catchwords:

COSTS — Security for costs — Power to order — Relevant factors — Whether plaintiffs’ impecuniosity, mis-statement of address and prior relationship with litigation funder were grounds for the making of an order for security for costs

Catchwords:

SUCCESSION — Probate and administration – plaintiff seeks probate of the wills of a deceased couple – the defendant, the couple’s daughter has a grant of probate in common form of an earlier will of her deceased mother and seeks probate of the will of her father – the plaintiff claims to be a friend of the couple, a contention which is contested – the plaintiff in substantial default of the Court’s procedural orders in the proceedings – whether the plaintiff has raised sufficient doubt about the wills of the deceased couple that the Court should not strike out the proceedings. CIVIL PROCEDURE – Motion for Summary Dismissal – Where plaintiff has failed to comply with directions – discretionary considerations relevant to summary dismissal for failure to prosecute probate proceedings.

Catchwords:

CIVIL PROCEDURE – parties – representation – solicitor seeking leave to file a notice of ceasing to act – leave required under Uniform Civil Procedure Rules 2005 (NSW), r 7.29(2) – application based on unpaid fees and money not paid into trust prior to trial – appropriate efforts by solicitor to obtain funds and brief counsel – need to advance just, quick and cheap disposal of proceeding – leave granted CONTRACTS – breach of contract – repudiation – total failure of consideration – employment contract and shareholding agreement – claim for unpaid wages and capital payments part-paid in instalments for shares in prospective overseas holding company – plaintiff employed to develop business overseas – plaintiff’s right to shares in non-existent company never crystalised – plaintiff attempted to perform contract but was prevented by defendant – defendant repudiated contract – contract not frustrated by COVID-19 health orders – moneys paid into personal bank account recoverable CONTRACTS – misleading or deceptive conduct – alleged representation that company was a going concern and would be able to pay plaintiff’s wages – contract included entire agreement clause – insufficient evidence of express or implied representation – insufficient evidence that employer unable to pay wages at time contract was executed – if there were an implied representation, it had no material effect on the plaintiff’s decision to accept employment EMPLOYMENT AND INDUSTRIAL LAW – Superannuation – superannuation not provided for in contract – mandatory employer contribution not payable in respect of employee who is not Australian resident and is not working in Australia – Superannuation Guarantee (Administration) Act 1992 (Cth), s 27(1)(b) JUDGMENTS AND ORDERS – calculation of prejudgment interest – discretion of court – judgment sums sought in foreign currency – judgment sum awarded in United States dollars – no evidence as to appropriate interest rate – application of local rates –avoiding over-compensating – Civil Procedure Act 2005 (NSW), s 100 – Uniform Civil Procedure Rules 2005 (NSW), r 6.12(8)(a)

Catchwords:

CIVIL PROCEDURE – interim preservation – freezing order – whether applicant has good arguable case against first and second defendant – evidence of risk of dissipation of funds and assets by first defendant – no reasonably arguable case against second defendant – second defendant’s interest in the funds withheld in court not amenable to enforcement of any judgment – HELD – percentage of funds referable to first defendant’s contribution to property retained in court – remaining sum paid to defendants

Catchwords:

COSTS – Variation of costs orders – Offer of Compromise – Plaintiffs unsuccessful on issues which are severable

Catchwords:

CIVIL PROCEDURE – transfer of proceedings – application to transfer proceedings from Supreme Court to Land and Environment Court – orders made

Catchwords:

CONTRACT – Interpretation - construction of a retainer agreement - whether the Defendant had a right to terminate the retainer agreement – whether the Defendant validly terminated the retainer agreement – whether the Defendant’s right to terminate had to be exercised within a specific timeframe.

Catchwords:

HIGH RISK OFFENDER – application for an extended supervision order – final hearing – Terrorism (High Risk Offenders) Act 2017 – question of whether defendant poses an unacceptable risk of committing a serious terrorism offence – specificity of risk of serious terrorism offence application opposed – difference between intensive corrections orders and extended supervisions orders – conditions of ESO – as the court thinks “appropriate” – extended supervision order imposed

Catchwords:

CIVIL LAW – high risk offender proceedings –terrorism - media application to access file – where documents tendered in open court – exercise of discretion – reports of experts – summaries of phone calls from jail - desirability of high risk offenders providing honest history – where access may frustrate purposes of the act – where extensive reasons are given in preliminary and final judgment – where access to exhibits is not required for fair and accurate reporting – where non-publication orders made under the Court Suppression and Non-Publication Orders Act 2010

Catchwords:

CONTRACT – Construction – Contracts successively made – Whether second contract terminates or varies first contract depends on intention of parties as disclosed in second contract CONTRACT – Advance of money – Characterisation as loan – Onus of proof of character of loan borne by payer – Onus of proof of repayment on borrower AUSTRALIAN CONSUMER LAW – Misleading and deceptive conduct – Express misrepresentation – Concealment of material fact – Intention to mislead – Reliance on misleading and deceptive conduct – deed procured by misleading and deceptive conduct declared void - Australian Consumer Law, section 18

Catchwords:

CIVIL PROCEDURE — interrogatories — personal injury claim — whether "special reasons" shown — where "special reasons" not required in parallel proceedings being heard together — whether interrogatories order "necessary" — where defendants disputed plaintiff’s admitted facts and authenticity of documents — whether proposed interrogatories are cross-examination

Catchwords:

CIVIL PROCEDURE – non-appearance by self-represented plaintiff – third occasion of non-appearance on purported psychiatric medical grounds – trial proceeded and claim dismissed in the absence of the plaintiff to prosecute his case

Catchwords:

ASSOCIATION – Incorporated by Royal Charter –Management and administration – Application for order requiring association to indemnify plaintiff to bring proceedings against association’s current and former officers ASSOCIATION – Incorporated by Royal Charter – where plaintiff former member of association – consideration of derivative action at general law

Catchwords:

LAND LAW — Easements — Creation of easements — Creation by order of court — Application for easement under s 88K of the Conveyancing Act 1919 (NSW) for right of carriageway — Plaintiffs are owners of rural land and defendants are neighbours — Where plaintiffs have the benefit of an existing right of carriageway to access paddock that is otherwise practically inaccessible — Where obstruction caused by construction of a dam — Whether plaintiffs have a right to deviate around obstruction — Whether proposed easement reasonably necessary for effective use and development of plaintiffs’ land

Catchwords:

JUDGMENTS AND ORDERS – interest – pre-judgment interest – calculation of judgment amounts – whether plaintiff entitled to pre-judgment interest – no question of principle COSTS – where plaintiff entitled to judgment of less than $500,000 – whether plaintiff entitled to costs in view of UCPR r 42.34 – no question of principle

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – application strike out cross-claim and corresponding provisions of defence – where cross claim stayed because further security ordered not provided – where defendant has not served evidence as ordered nor complied with notice to produce – impending hearing – where defendants propose guillotine orders be made granting extension of time to serve evidence and provide security– cross-claim dismissed and defence struck out

Catchwords:

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

Catchwords:

COSTS – Party/party – Where multiple issues in proceedings – Where plaintiff successful in some claims and unsuccessful in other substantial claims.

Catchwords:

CIVIL PROCEDURE – pleadings – application to amend – proceedings initiated against law firm previously retained by plaintiff regarding a personal injury matter – where law firm is alleged to have been negligent – whether proposed amended statement of claim reveals existence of viable cause of action – where there has been several attempts to amend the pleadings – where proposed pleadings are not in proper form and do not clearly plead allegations against the lawyers

Catchwords:

REAL PROPERTY – Torrens title – Joint tenants – unilateral severance of joint tenancy – where defendant father and two plaintiff children purchase property as joint tenants – where transfer severing joint tenancy lodged with Registrar-General by father – application by children to restrain registration – where agreement not to sever the joint tenancy – HELD – parties reached agreement not to sever joint tenancy and father restrained from severing joint tenancy CONTRACTS – Formation – Consideration – mutual promises not to sever joint tenancy good consideration

Catchwords:

EQUITY – ACCOUNTING – Where plaintiff is 101 years old and under a disability – Where the defendant, her granddaughter, receives into her own account net proceeds from the sale of the plaintiff’s house and spends a large part of it and not able to show that she did so with the plaintiff’s lawful authority or for her benefit despite it being within her power to bring evidence on that subject – Where an order for an accounting is ultimately not opposed and the Court itself conducts the account – HELD: Judgment for the plaintiff together with indemnity costs from the date upon which the plaintiff sought the accounting

Catchwords:

APPEALS – appeal jurisdiction – Supreme Court – appeal as of right from Local Court under Local Court Act 2007 (NSW), s 39 – appeal only on a question of law – notice of contention available under Uniform Civil Procedure Rules 2005 (NSW), r 50.11 – limits on fact-finding on appeal – whether defendant can agitate issue of fact on a notice of contention – scope of appeal under Supreme Court Act 1970 (NSW), s 75A – whether scope expanded by Uniform Civil Procedure Rules 2005 (NSW), r 50.16 – rules subject to statutory limit on jurisdiction COURTS AND JUDGES – jurisdiction of Local Court – scope of “debt, demand or damage (whether liquidated or unliquidated)” in definition of “money claim” – power to grant equitable compensation or monetary relief – historical basis of jurisdiction - Local Court Act 2007 (NSW), ss 29A, 30 CONTRACTS – novation – owner/operator of retirement village entered into village contracts with residents – land sold to new owner/operator – new operator did not enter into written contracts with existing residents – existing contracts not novated – contracts not enforceable against residents EQUITY – unjust enrichment – unpaid site fees – quantum meruit – mistake not basis for claim of restitution – factual premise for claim not open on evidence STATUTORY INTERPRETATION – ordinary meaning – absence of ambiguity – purposive construction – retirement villages legislation protective of vulnerable retirees – residence contracts to be enforceable “against” a new operator – whether court justified in reading that as a two-way provision – Retirement Villages Act 1999 (NSW), s 40

Catchwords:

CONVEYANCING – breach by purchaser – remedies of vendor – resale – measure of damages – recovery of damages under cl 9 of the standard form contract – effect of resale in falling market – whether appropriate date for the assessment of damages for breach of contract is the date of the breach or a later date – damages assessed at a later date – no question of principle

Catchwords:

SUCCESSION — Family provision — Practice — Subpoena to third party — “Cohabiting” — Succession Act 2006 (NSW), s 60(2)(e)

Catchwords:

CIVIL PROCEDURE – subpoenas – application to set aside subpoenas issued for production of large data storage devices – where production of devices to Court neither practicable nor intended by issuer of subpoenas – where access to and inspection of devices intended to occur in the United States of America – where more appropriate course was to seek preservation order under UCPR r 25.3 – subpoenas set aside and order made for preservation of property

Catchwords:

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – insurance – construction of home warranty insurance policy – separate questions – whether letter sent in 2012 constitutes a claim under the policy – whether letters sent in 2022 constitute claims within time under the policy – effect of s 92(5) of the Home Building Act – effect of long stop provision in s 103BC of the Home Building Act

Catchwords:

COSTS – Party/Party – Specific court rules in relation to costs – Apportionment – Whether action should have been brought in inferior court

Catchwords:

CONTEMPT — Civil contempt — Breach of undertakings – Where parties entered into binding heads of agreement – Where interlocutory undertakings provided to court never discharged – Whether contempt could be found where undertakings given under heads of agreement overlapped with earlier undertakings given to court CONTEMPT — Civil contempt – No appearance by alleged contemnor at hearing CIVIL PROCEDURE – Settlement – Orders under s 73 of the Civil Procedure Act 2005 (NSW) to give effect to a settlement between the parties

Catchwords:

CIVIL PROCEDURE – request to reinstate cross-claims – consent orders made

Catchwords:

CIVIL PROCEDURE - Notice of Motion – re-agitation of matters determined by earlier interlocutory application CIVIL PROCEDURE – Whether the applicant should be required to pay the costs of this application before bringing any further application or proceedings concerning the same matters. COSTS - Application for costs of the application on an indemnity basis - Whether indemnity costs should be ordered.

Catchwords:

CONTRACT – Formation – Agreement – oral contract to advance money to developer – whether term of contract that money repayable within 18 months or at the end of the development – relevance of logic and objective facts to determination of terms of contract

Catchwords:

PRACTICE AND PROCEDURE – Adjournment – application to vary ESO – withdrawal of plaintiff’s legal representatives – no issue of principle

Catchwords:

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.

Catchwords:

COSTS – security for costs – inherent jurisdiction of the Supreme Court – where plaintiff is a natural person – whether plaintiff’s case is hopeless – whether plaintiff is impecunious – no security ordered - no question of principle

Catchwords:

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

Catchwords:

ADMINISTRATIVE LAW – decision of medical assessment review panel under Motor Accidents Compensation Act – whether panel complied with requirements of the Motor Accident Compensation Act and the Motor Accident Permanent Impairment Guidelines – where panel assessed employability rather than adaptation – procedural fairness – whether medical assessors failed to draw attention to a critical issue or factor on which the panel’s decision turned – practical injustice – whether panel failed to expose its actual path of reasoning – medical assessment certificate set aside – matter remitted to President of Personal Injury Commission

Catchwords:

PRACTICE AND PROCEDURE – adjournment – non-compliance with work injury damages pre-filing procedures – no question of principle

Catchwords:

CIVIL PROCEDURE – costs – where a notice of motion originally filed under s 73 Civil Procedure Act – where there is no dispute regarding the promise or settlement of interlocutory proceedings within principal proceedings – where the undertaking of the second defendant not to enforce costs unless the plaintiff attempts to recommence proceedings is noted

Catchwords:

CONTRACTS – construction – contract for the sale and purchase of land entered into upon the plaintiff purchaser exercising call option at the end of four year option period during which the purchaser had obtained development consent for the property – purchaser issued notice to vendor nominating date for completion of the contract 18 months in the future – whether the contract, properly construed, entitled the purchaser to issue that notice – whether the relevant clause of the contract should be construed in a manner that departs from the language used to correct an obvious mistake or absurdity – dispute concerning the validity of a notice issued by purchaser appointing a valuer for the purpose of a contractual process to determine the residual land value as an integer of the calculation of the price payable to the vendor on completion – whether purchaser’s notice served within the time provided by the contract for the purchaser to give notice appointing a valuer – whether time stipulation of the essence – various other disputes concerning the construction and operation of the contract.

Catchwords:

CIVIL PROCEDURE – Application for leave to amend defence – proposed amendments futile – summary judgment for possession of land in favour of registered proprietor

Catchwords:

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

Catchwords:

HUMAN TISSUE – removal of sperm from deceased person for Invitro Fertilisation – storage of gametes – whether plaintiff entitled to possession of stored sperm for use in Invitro Fertilisation in Queensland

Catchwords:

PRIVATE INTERNATIONAL LAW – Jurisdiction – Non-exercise of jurisdiction – Forum non conveniens – Connecting factors – Application of the principles in Voth v Manildra Flour Mills – Whether the Supreme Court of New South Wales is a clearly inappropriate forum – Where neither plaintiff nor defendant has any real or substantive connection with the forum – Where the facts giving rise to the cause of action occurred outside the jurisdiction of the forum – Where the cost of litigating a claim in an inappropriate forum will be unduly excessive PRIVATE INTERNATIONAL LAW – Applicable law – Pleading of foreign law – Pleading of New York Public Health Law

Catchwords:

CIVIL PROCEDURE – leave sought to rely upon what the plaintiff describes as a ‘proposed fifth further amended statement of claim’ – where proceedings commenced in 2002 – where plaintiff alleges false imprisonment, false arrest, malicious prosecution and abuse of process against the defendant – where matter is listed for hearing in July 2025 – where plaintiff is in custody without access to evidence to be relied on at hearing – where the pleadings sought to be relied upon are not an amendment, but a new case in substitution for the current claim – application dismissed

Catchwords:

COSTS – party/party – general rule that costs follow the event – whether the usual position should be departed from – whether there should be an order for indemnity costs – where the Defendant made a Calderbank offer – where the Defendant was successful at trial – where the Plaintiff submits there should be a departure from the usual position on the basis that the Defendant ran every conceivable argument and did not focus its case – where the Defendant failed on its alternative arguments - where the case was conducted in a timely and efficient manner – whether it was reasonable for the Plaintiff to reject the Calderbank offer – where the Defendant’s offer was modest and involved very little compromise – where the Plaintiff is to pay the Defendants costs on the ordinary basis.

Catchwords:

TORTS – malicious prosecution – whether the police officer acted without reasonable and probable cause in charging the plaintiff – whether the police officer acted without reasonable and probable cause in maintaining the prosecution until taken over by the Director of Public Prosecutions – whether the police officer remained the prosecutor after the proceedings were taken over by the Director of Public Prosecutions – whether the police officer acted maliciously – whether the sole or dominant purpose of the police officer was other than the proper invocation of the criminal law TORTS – false imprisonment – whether the plaintiff was wrongfully arrested – whether the police officer suspected on reasonable grounds that the plaintiff had committed an offence – whether the police officer used his power under s 99 of LEPRA to lawfully arrest and detain the plaintiff TORTS – misfeasance in public office – whether the police officer committed an invalid or unauthorised act and did so maliciously – whether the police officer discharged the relevant power by arresting the plaintiff without a warrant and commencing proceedings against him – whether the police officer’s treatment of evidence demonstrated an intention to harm the plaintiff or that the police officer acted with reckless indifference to the harm that was likely to ensue

Catchwords:

PRIVATE INTERNATIONAL LAW – orders with extraterritorial effect – where judgment stayed pending the PRC Court’s consideration of the cross-defendant’s application to dissolve Civil Ruling of Court in PRC that restrains it from complying with the judgment – where communications of the PRC Court show its awareness of this Court’s decision – where PRC Court has stated intention to make decision before 30 June 2025 – whether stay in this Court should be lifted

Catchwords:

PRACTICE AND PROCEDURE – Vacation of hearing date – where the Cross-Claimant seeks the vacation of a scheduled hearing date – where the Cross-Defendant opposes the application to vacate hearing – where updating affidavits were served late – where updating affidavits contain evidence of a change of circumstances and further investigations are required – application to vacate the scheduled hearing is granted.

Catchwords:

NEGLIGENCE – professional negligence – medical negligence – where child has disabilities including infantile seizures and Global Developmental Delay – whether disabilities are a result of a failure to deliver the baby earlier – obstetric evidence – conclave of experts – Civil Liability Act 2002 (NSW) s 5O – where the defendant is a Local Health District – whether the defendant acted in accordance with widely accepted peer professional practice – whether the defendant breached its duty of care – where there are multiple experts with competing opinions – whether any alleged breach of duty of care during labour was causative of the child’s disabilities

Catchwords:

CORPORATIONS – Receivers and managers – Application to court for declarations and directions – where company in receivership in possession of surplus funds in the receivership – where competing claims to surplus funds CONTRACT – Formation – Whether a contractual relationship arose from Term Sheets for financing –Whether parties entitled to break fee, reasonable expenses or enforcement costs on proper construction of Term Sheets

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CIVIL PROCEDURE — Subpoenas — To produce documents or things — Where legal professional privilege claimed — Whether privilege waived over correspondence with expert witness

Catchwords:

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

Catchwords:

EQUITY — Trusts and trustees — Judicial advice EQUITY — Trusts and trustees — Charitable trust — Alteration of administrative scheme

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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.

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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.

Catchwords:

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

Catchwords:

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.

Catchwords:

SUCCESSION – Family provision – Claim by adult grandson – Dependency on deceased – Membership of household of deceased – Claim not made out

Catchwords:

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.

Catchwords:

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

Catchwords:

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

Catchwords:

CIVIL LAW – procedure – expert conclave of psychiatrists – late service of report – objection to use of report – urgent application – practical resolution – no question of principle

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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.

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed by consent

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

COSTS – costs order – interlocutory dispute – where undertakings are proffered that resolve the interlocutory dispute – no question of principle

Catchwords:

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

Catchwords:

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

Catchwords:

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.

Catchwords:

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

Catchwords:

COSTS — Party/Party — Court’s discretion — Whether indemnity costs should be ordered

Catchwords:

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

Catchwords:

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.

Catchwords:

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.

Catchwords:

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

Catchwords:

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.

Catchwords:

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