CIVIL PROCEDURE – application for leave under s 4 Felons (Civil Proceedings) Act 1981 (NSW) – claim for damages following alleged sexual assault by officer in juvenile detention – leave granted nunc pro tunc
LAND LAW — easements — constructions of easements — general principles of construction LAND LAW — easements — creation of easements — creation by express grant LAND LAW — easements — substantial interference with easements
CIVIL PROCEDURE – application for leave to institute proceedings nunc pro tunc pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) – leave granted nunc pro tunc
MENTAL HEALTH – forensic patient – extension of status as forensic patient – final hearing – where defendant has been diagnosed with an intellectual disability and paedophilic disorder – whether the risk of causing serious harm to others can be adequately managed by other less restrictive means – where defendant subject to guardianship order, obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) and in receipt of NDIS funding – application for final extension order granted
SUCCESSION – family provision – claim by widow for provision from the deceased’s estate under Succession Act 2006 (NSW) Ch 3 – adequacy of provision – obligation of the deceased to the surviving spouse after 31 years of relationship – provision of financial resources where deceased and surviving spouse entered into a Binding Financial Agreement
CIVIL PROCEDURE – default judgment where no appearance by defendant – damages proved – no need for declaratory relief CONTRACT – breach of contract – employment contract – misleading or deceptive conduct by former employee – breach of contractual, fiduciary and statutory duties DAMAGES – assessment – damage to reputation COSTS – gross sum costs order – where sufficient information before the Court to enable the grant of a gross sum costs order
SUCCESSION – trusts and trustees – judicial advice – application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) – no question of principle
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of shareholders to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CONTRACTS – breach of contract – breach of lease – breach of agreement – maintain herd profile – whether there is a shortfall of cattle – onus of proof – Briginshaw principles - probability of a shortfall CONTRACTS – construction of a contract – falsa demonstratio non nocet – rectification – error – absurdity – objective intention CONTRACTS – formation of a contract – offer and acceptance – failure to unequivocally accept CONSUMER LAW – s 18 of Australian Consumer Law – misleading or deceptive conduct – reliance on representation – loss suffered from sale of cattle - whether relived of obligations otherwise under contract – damages
CRIME – sentence – murder and wounding with intent to murder – guilty verdicts by jury – “Hand of Death” – targeting the “less dead” – senseless, brutal murder – admissions made by offender – offender’s mental health – history of homicidal ideation – conflicting views of the offender’s mental health – dispute between experts as to diagnosis of bipolar disorder – relevance of offender’s mental health impairment to sentence - imprisonment for life? – applicable discounts – assistance to law enforcement authorities - totality – victim impact statement – sentence imposed
BUILDING AND CONSTRUCTION – whether adjudication determination under Building and Construction Industry Security of Payment Act 1999 should be quashed – whether the determination was outside the scope of the payment claim – whether the determination lacked a legal or factual basis, and was illogical or unreasonable – Jurisdictional error not established
PERSONAL PROPERTY – Personal Property Securities Act 2009 (Cth) – personal property securities register – charge registered on the basis of an agistment agreement which never came into existence – whether defendant had any interest in the Arabian mares capable of being registered as a security interest – no security interest ever came into existence TORTS – interference with goods – detinue
LAND LAW – possession of land – default under loan agreement and mortgage – where second defendant had been bankrupted but bankruptcy annulled – where trustee held funds of bankrupt – where second defendant intended to use funds held by trustee to satisfy debt to mortgagee – where no arrangements made for application of funds - where no defence to mortgagee’s claim – summary judgment given
COSTS — interlocutory costs — application for asset preservation orders – orders obtained ex parte against defendants and third party – application abandoned following service of evidence by respondents – incidence of costs – reasonableness of application – costs follow the event – applicants ordered to pay costs – applicants ordered to pay lump sum on account of costs liability
CONTRACTS – Sale of Land – Where defendant Vendor repudiates contract by purporting to terminate it without valid grounds and plaintiff accepts repudiation – Plaintiff entitled to damages
CLIENT LEGAL PRIVILEGE – s 118, Evidence Act 1995 (NSW) – onus – means of proof – dominant purpose – ruling on ‘sample’ documents – efficacy questioned – privilege over communications with in-house lawyers – principles at [13]-[14] – privilege over communications between non-lawyers – principles at [15].
APPEALS – appeal from Local Court to Supreme Court – Local Court determined parties did not have a binding agreement – whether plaintiff’s offer was subject to contract – how offer should be categorised in accordance with Masters v Cameron CONTRACTS – formation – agreement – counter-offer – whether purported acceptance complied with mirror image rule – taking into account parties’ conduct in interpreting intention – purported acceptance was a counteroffer – decision of Local Court affirmed
COSTS – indemnity costs – where plaintiff was self-represented at hearing of notices of motion – whether relevant misconduct in the proceedings warranting indemnity costs order established –unreasonableness of plaintiff’s application for summary judgment and resistance of defendants’ application for leave to amend defence and file a cross claim contrary to obligations under the Civil Procedure Act 2005 (NSW) warrants indemnity costs order –– costs ordered on indemnity basis
CIVIL PROCEDURE – default judgment – application for default judgment – requirements of UCPR r 16.6 met – default judgment entered – declarations sought provided to assist with repossession process
COSTS – where gross sum costs order made – quantification of costs – order for further costs incurred in respect of quantification submissions and hearing.
HIGH RISK OFFENDER – application for extended supervision order – where extended supervision order previously made by same judge – history of sexual offending against developmentally delayed women and girls – determination of risk – lack of insight or change in attitude towards offending – concerning contact with intellectually disabled woman whilst subject to order – lack of compliance with conditions leading to community correction order – failure to discontinue risky personal relationships – some evidence of defendant’s efforts to reintegrate into community – formation of some pro-social contacts – expert evidence of average risk of committing a further serious sex offence – extended supervision order imposed – dispute regarding scheduling conditions resolved
COSTS – specified gross sum costs order instead of assessed costs – Civil Procedure Act 2005, s 98(4)(c) – defendant, the Deputy Commissioner of Taxation, successfully opposes the plaintiff’s appeal against a Departure Prohibition Order issued under the Taxation Administration Act 1953 (Cth), s 14S – plaintiff ordered to pay the defendant’s costs of the proceedings – plaintiff has few assets in his own name – plaintiff advanced evidence of doubtful provenance in support of his claim – whether the conduct of a costs assessment would be aggravating or oppressive to the defendant in the circumstances – what is the appropriate specified gross sum to be fixed instead of assessed costs – whether a discount should be applied from the costs claimed by the defendant – consideration of the effect of proceedings being brought in vacation reducing the cost efficiencies that might otherwise have been employed by the legal representatives of the defendant.
COSTS – party/party – exercise of costs discretion – contested probate suit – plaintiff is the executor of an estate – final orders made by consent in September 2023 – plaintiff’s notice of motion of January 2024 sought to vary the final orders – plaintiff’s January 2024 motion is resolved by agreement except as to the costs of the motion – the Court foreshadows the making of orders that the contest about the costs of the motion be capped at a maximum of $5,000 – which party should bear the costs of motion – application of Lai Qin principles – whether one party was almost certain to have succeeded, if the matter had been fully tried – whether one party has conducted itself unreasonably – whether the plaintiff should be entitled to indemnify himself out of the estate for his costs of the contest and any liability for costs he bears.
CONSUMER LAW – Australian Consumer Law misleading or deceptive conduct – principles – misleading or deceptive conduct by silence, non-disclosure or fraudulent concealment amounting to a positive representation – sale of contaminated land for residential development purposes – whether purchaser has a “reasonable expectation” for certain disclosures to be made by vendor – whether vendor did not disclose information in light of purchaser’s “reasonable expectation” – whether vendor had requisite knowledge CONSUMER LAW – Australian Consumer Law – sections 237 and 243 – meaning of “loss and damage” CIVIL PROCEDURE – privileges – Evidence Act 1995 (NSW) s 131 – without prejudice privilege – meaning of “in connection with” – proximity of conversations to resolution of dispute CIVIL PROCEDURE – pleadings – construction of pleadings – scope of pleadings
CRIMINAL PROCEDURE – stay of proceedings – plaintiff charged by future Court Attendance Notice (“CAN”) with two driving offences – where original CAN charged negligent driving occasioning grievous bodily harm – four further CANs added dangerous driving, combined two offences and added further details – plaintiff sought a permanent stay of the proceedings on two bases – Magistrate dismissed application – whether prosecutor needed leave to amend CAN – held s 20 of the Criminal Procedure Act 1986 (NSW) requiring leave to amend an indictment after it is presented does not apply to a CAN – prosecutor entitled to issue further CANs – if leave had been sought to amend, leave would have been granted – greater degree of particularity with successive CANs – no abuse of process by service of five successive CANs – whether the particulars were inadequate – CAN identifies precisely the time and date, place, act and harm suffered – CAN complies with relevant legislation and matters discussed in Johnson v Miller – plaintiff in no doubt about the case she has to meet – both bases for a permanent stay rejected – no error in the Magistrate’s determination – summons dismissed
CONTRACTS – formation – whether the Loan Agreement is a deed – whether forbearance to sue is sufficient consideration – whether the deceased had mental capacity to create the Loan Agreement – whether the deceased was under undue influence when creating the Loan Agreement – whether the plaintiff engaged in unconscionable conduct – whether the interest component of the Loan Agreement is a penalty – whether the reference to $300,000 in the Loan Agreement is a reference to the $300,000 bequeathed to the plaintiff in the deceased’s will – held the Loan Agreement is valid and enforceable
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – want of due dispatch – delay occasioned by the plaintiff’s repeated non-compliance with case management court orders – delay attributable to (i) plaintiff’s failure to put his solicitor in funds and (ii) solicitor’s pressing personal circumstances – plaintiff desirous of further progressing the proceedings – inappropriate to dismiss proceedings. CIVIL PROCEDURE – occupations – legal practitioners – application for leave to file notice of intention of ceasing to act – relationship between plaintiff and solicitor irretrievably broken down – cause shown – leave granted.
CIVIL PROCEDURE – leave to discontinue proceedings under UCPR r 12.1 – leave granted COSTS – where proceedings discontinued by the plaintiff – whether plaintiff established basis for departure from ordinary costs order under UCPR r 42.19(2) – whether parties to bear own costs – plaintiff ordered to bear defendant’s costs of the proceedings
CIVIL PROCEDURE – jurisdiction – judicial review – supervisory jurisdiction of State Supreme Court – where Council relied on its own legal interpretation of proposed contracts in refusing registration of financial interest – Court well equipped to make such an evaluation – no absolute rule that a public law remedy after judicial review must be refused in favour of merits review or appeal available in lower court or tribunal – Court’s power to make binding declarations of right irrespective of whether consequential remedy is available CIVIL PROCEDURE – summary disposal – dismissal of proceedings – abuse of process – where only relief sought is a declaration of right – commencement of second proceedings when proceedings pending in NCAT – where remedies are different in nature and purpose – where determination of these proceedings will not finalise NCAT proceedings – no abuse of process
CIVIL PROCEDURE — Notices to produce in civil proceedings — Application to set aside — Proper approach to assessing whether notice to produce should be set aside — Interaction of principles of abuse of process and legitimate forensic purpose CIVIL PROCEDURE — Notices to produce — Consideration of power of the Court to regulate production of documents — Distinction between subpoenas to persons or entities who are not parties to proceedings and notices to produce as between parties to proceedings — In the context of case management as between parties to proceedings, once an issue regarding production of documents comes before the Court, the issue of what may be permissible is not restrained by the parties’ contentions but in a sense becomes ‘at large’ in that it is subject to the Court’s power to actively manage cases to achieve the overriding objective — In the context of appropriate case management and the Court’s dispensing power, the Court is not bound to binary outcomes of whether the notice to produce in its existing form and content should be set aside or not — Nor is the Court necessarily bound by historical distinctions between whether the notice to produce identifies a particular document or thing or requires an obligation in the nature of discovery — The Court may modify the form and/or content of a notice to produce to require production of documents having apparent relevance consistent with the overriding purposes of case management NOTICES TO PRODUCE — Whether the documents are likely to materially assist the issuing party’s case is not the decisive determinant of legitimate forensic purpose — If the documents materially assist the issuing party’s case that will generally suffice as demonstration of legitimate forensic purpose — However the converse is not the case, and inability to demonstrate that it is ‘on the cards’ that the documents sought will materially assist the issuing party’s case will not necessarily deprive the notice to produce of a legitimate forensic purpose if ‘apparent relevance’ is shown NOTICES TO PRODUCE — In general, it will be sufficient, and prima facie evidence of a legitimate forensic purpose, if the documents sought to be produced have an apparent relevance to the issues in the case, including if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are, or might be, inadmissible according to the rules of evidence NOTICES TO PRODUCE — Discussion of meaning of requirement that the issuer of the notice ‘specify’ a document or a thing — Examples of ‘specification’ PRELIMINARY DISCOVERY — Elements for enlivening the discretion to order preliminary discovery — Consideration of element that the applicant may be entitled to make a claim for relief against the prospective defendant
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.
LAND LAW — caveats — formal requirements —particulars of estate or interest claimed — where caveat claimed an estate in fee simple but by virtue of facts giving rise to security interest — whether caveat, read as a whole, “really” claimed a security interest — Real Property Act 1900, s 74L — application for extension of caveat dismissed
CIVIL LAW – high risk sexual offender – application for continued detention order – complex diagnostic challenge – uncertainty over diagnosis – where psychotic illness complicated by personality disorder – tirades of abuse – mental condition masked by nasty and aggressive abuse of authority figures – where court appointed experts disagree on management of risk legislative or administrative hole – crossroads of mental health and high risk offender legislation – uncertainty over accommodation – defendant not engaging with assessments for appropriate accommodation – cheeky and unrealistic demands regarding accommodation – two bedder by the seaside – plaintiff’s reluctant applications for adjournment – defendant incarcerated – “Parkinson’s Law" – cycle – application for adjournment refused – community safety – continued detention – superficially preferable – protective purpose better achieved by supervision and rehabilitation – conditions of extended supervision order – relevant principles – orders made
REAL PROPERTY — caveats — solicitor’s costs agreement providing for client’s property to be charged as security for fees — caveat by solicitor — lapsing notice issued — application for extension of caveat — final relief not claimed — originating process defective CIVIL PROCDURE — service — application for interlocutory relief — respondent inmate of correctional centre — ex parte order for “service in the first instance” on respondent’s then solicitor by email — originating process and other court documents not delivered to respondent — no valid service — application dismissed
HIGH RISK OFFENDER – Final hearing – High risk sex offender – Application for extended supervision order – Where parties accept defendant poses unacceptable risk of committing serious offence if not kept under supervision – Where dispute as to appropriate duration and conditions of supervision
APPEALS — Leave to appeal — Whether leave required — Interlocutory decisions — Principles governing — Application of Section 127(1) of the District Court Act 1973 (NSW) APPEALS — From exercise of discretion — Disregard of relevant considerations — Whether Judicial Registrar of District Court failed to take into account relevant considerations APPEALS — From exercise of discretion — Procedural decisions — Whether several cases with overlapping facts should be heard together
CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Want of due despatch – Where in principle settlement has been agreed between the parties for judgment in favour of the defendants – Where plaintiffs have failed to progress applications for infant approval
APPEALS – appeal from Local Court to Supreme Court – proceedings for recovery of $30,000 – where defendant loaned money to his first cousin – cousin asserts third party borrowed money and ownership of a BMW X6 was transferred as security – where cousin was unrepresented litigant – cousin subpoenaed car registration documents – subpoenaed documents show ownership was transferred to the defendant four months before the loan was made – registration documents not tendered at trial – Magistrate gave judgment against cousin – whether Magistrate denied procedural fairness by not facilitating tender of the registration documents – whether failure to tender documents deprived cousin the possibility of a successful outcome – questions of fact – where Magistrate had explained the procedure for tendering documents and asked what material was to be tendered – held Magistrate was not obliged to say anything further – no denial of procedural fairness – subpoenaed documents inconsistent with BMW being provided as security – evidence overwhelmingly supported defendant’s case – no substantial miscarriage or wrong – grounds of appeal rejected – summons dismissed
CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – settlement approved
CIVIL PROCEDURE – parties – representative order – appointment, powers and duties of representative – marriage certificate – no valid will – where NSW Trustees and Guardian and sons of the deceased wish to take no part in proceedings – where the sons make no claim against the deceased’s estate – deceased’s wife appointed as representative with consent.
EQUITY — Equitable interests in property — Nature of equitable interests — Birth certificate does not evidence or create any type of property or interest in property
CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Whether leave to bring derivative action should be granted.
JUDGMENTS AND ORDERS — injunction — enforcement of possession orders of Federal Circuit and Family Court of Australia — comity between courts — earlier applications to the Court dismissed –- functus officio doctrine — injunction refused
RESTRAINT OF TRADE – employment contract – interlocutory inunction – prima facie case – plaintiff member of corporate group – arguable interest to support restraint – hardship – lack of evidence of defendant’s financial position – delay – injunction refused
CRIME – sentence – manslaughter – excessive self-defence – offender stabbed adult son in the neck at their home – offending arose during family argument – victim approached offender quickly – single stab wound to the neck using kitchen knife – offender accepted responsibility but unable to explain or recall inflicting the stab wound – relatively impulsive offending – just below mid-range of objective seriousness – where offender did not give evidence at sentence proceedings – three psychological and psychiatric reports – no evidence of mental health concerns – 12 character references speak of a good, kind and non-aggressive person – offender aged 76 years – currently in remission from leukemia – no criminal record or concern about reoffending – offender entirely remorseful for his actions – significant variation of statutory ratio given offender’s age and health conditions SENTENCING – plea of guilty – where offender originally charged with murder only – where offender made an offer to plead guilty to manslaughter by unlawful and dangerous act before committal – offer rejected by Crown – Crown later accepted plea to manslaughter by excessive self-defence – s 25E of the Crimes (Sentencing Procedure) Act 1999 concerned with the “offence” not its basis – entitled to 25% discount for guilty plea
JUDGMENT AND ORDERS – parties bring in orders to reflect reasons – construction of orders – whether ambiguity required before judgment consulted – principles at [5]-[11] – ambiguity not a pre-condition to consider judgment. COMMON INTEREST PRIVILEGE – legal advice shared between competitors – whether joint interest in governance of an industry body constitutes a “common interest” – principles at [115] –– whether parties’ interests are selfish or adverse to one another. PRELIMINARY DISCOVERY – adequacy of preliminary discovery challenged – whether direct evidence should be given as to compliance with orders – whether claims for client legal privilege ought be supported by direct evidence.
GUARANTEE AND INDEMNITY – deed of guarantee – whether deed of guarantee executed by guarantor – no point of principle EVIDENCE – evidence of execution of a document – execution of document not admitted by defendant – comparison by tribunal of fact of authentic signature of defendant with non-admitted signature – document found to have been executed by defendant
CIVIL PROCEDURE – Pleadings – Amendment – Plaintiffs seek to file Further Amended Statement of Claim – Defendants’ consent to substantive amendments but oppose deletion of a paragraph – No real prejudice to the defendants – Amendment allowed
SUCCESSION — Family provision — Claim by adult child — Plaintiff lived overseas with her mother since the age of nearly four — “Estrangement” not a useful term
SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 — Proper construction and management of an unarticulated testamentary direction to pay “Zakat” SUCCESSION — Construction — Islamic Wills —Sharia law and its interaction with Australian Succession law CHURCHES AND RELIGIOUS ASSOCIATIONS — Conceptualising Sharia law in the context of the general law governing a religious community as a voluntary association
CHILD WELFARE – Jurisdiction – Supreme Court of NSW – Parens patriae – 14 year old child diagnosed with Pre B Acute Lymphoblastic Leukemia – Where the child has a number of underlying health conditions – The Parents would prefer that there be no treatment for the Leukemia and the child be allowed to die at home so that the child may avoid the pain and suffering of the treatment – Hospital sought order authorising treatment – Order made for authorisation of treatment
COSTS – ex parte orders set aside for lack of candour – proceedings expedited given plaintiff’s terminal illness – some evidence that plaintiff had divested himself of assets – plaintiff’s claim being reformulated. PAYABLE FORTHWITH – r 42.7 Uniform Civil Procedure Rules 2005 (NSW) – court’s discretion to “order otherwise” – principles at [2]-[7] – motion concerned a discrete matter – existence of some unreasonable conduct – some distance to go in the litigation – no evidence that a ‘forthwith’ costs orders would stultify the proceedings – defendants ought nor bear credit risk associated with plaintiff’s asset divestiture – payment of costs order should be finalised given plaintiff’s terminal illness and likelihood of additional disruption to the litigation.
CRIME – murder – cause grievous bodily harm with intent to murder – defence of mental health impairment – judge alone trial – availability of the special verdict – schizophrenia – s 28 Mental Health Cognitive Impairment Forensic Provisions Act (NSW) – special verdict returned
CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — Cy-près scheme — where administration of two trusts in parallel administratively difficult — whether order should be made for assets of both to be applied cy-près pursuant to a single scheme
TORT – CONSUMER LAW - Civil Liability Act 2002 Part 1A, Part 4 – Australian Consumer Law s 60 - Duty of care – Negligence – Where an employee of the real estate agent retained by the owner of a house causes a fire and the house burns down – Claim by tenants and occupiers for damages for the loss of personal property in the house and by the owner for damages for the loss of the house – Claim by the owner that the real estate agent breached the warranty given in s 60 of ACL to render services with due care and skill – Whether the real estate agent caused the fire and acted negligently and without due care and skill – Liability established
CRIMINAL LAW – murder – special verdict – defence of “mental health impairment” – where experts and parties agree defence is established – man kills wife of 51 years by strangulation – evidence of delusions – hearing voices – where statements to police inconsistent with history of delusions provided to doctors – explanation by expert psychiatrist – “plethora” of evidence of mental illness – where defence lawyer briefs psychiatrist shortly after accused man charged – strong evidence accused still mentally ill – presumption accused not mentally ill – onus of proof on accused – defence established – special verdict entered – consequential orders made for detention of the accused and referral to the Mental Health Review Tribunal
HIGH RISK OFFENDER – final hearing – application for continuing detention order – application for an extended supervision order - serious violence offences – final relief granted - continuing detention order - committal of the defendant to a correctional centre - defendant be subject to an extended supervision order.
SENTENCING – penalties – criminal contempt – deletion of documents in order to prevent production pursuant to an order of the Court COSTS – costs of separate sentencing hearing
CIVIL PROCEDURE – notice to produce – application to set aside – whether plaintiff’s notice to produce documents complies with Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 21.10(1)(b) – whether that requirement should be dispensed with pursuant to Civil Procedure Act 2005 (NSW), s 14 CIVIL PROCEDURE – subpoenas – application to set aside – where plaintiff seeks two correctional officers attend and give evidence at hearing of notices of motion – where plaintiff self-represented – whether subpoenas comply with UCPR, r 7.3(1) – whether necessary in the interests of justice for officers to give evidence on hearing of motions CIVIL PROCEDURE – where plaintiff seeks access to other inmates for purpose of obtaining their evidence in the exercise of his “right” to bring proceedings – where plaintiff classified as an EHRR inmate and subject to non-association determination – where, notwithstanding those determinations, plaintiff able to communicate with other inmates via mail – whether order for access otherwise necessary to prevent an abuse of process
CIVIL PROCEDURE — interim preservation — freezing orders — form of freezing orders to give effect to principal judgment — HELD — orders proposed by plaintiff in standard form granted COSTS — party/party — mixed outcome — general rule that costs follow the event — application of the rule and discretion — discretion to award indemnity costs — where no unreasonable conduct or delinquency on the plaintiff’s part — where the overall practical result favoured the plaintiff — HELD — order that costs be costs in the cause
CORPORATIONS — Winding up — Statutory demand — Application to set aside — Application of Graywinter principle — Where the affidavit in support of application adequately supports the application — where plaintiff bears burden of proof and evidential onus of establishing genuine dispute — where there is a failure to discharge that onus — HELD — application dismissed with costs
CRIME – judge-alone trial – accused charged with murder – proposal to plead guilty after trial commenced – plea of guilty may not have been rationally based and in the interests of the accused – question as to fitness to be tried under Pt 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – inquiry held – accused fit to be tried.
CIVIL PROCEDURE – duty list – medical negligence – application for a separate hearing on the issue of liability only – UCPR r 28.2 – quantum of damages difficult to assess for a substantial period of time – overlapping evidence in liability and damages - application granted.
JUDGMENTS AND ORDERS – monies in court – defendant mortgagor seeking payment out of residual funds from sale of defendant’s property – no question of principle
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 — Where plaintiff owns landlocked rural land — Whether proposed easement over neighbouring property reasonably necessary — Where access possible via a paper road and across plaintiff’s other land
TORTS – false imprisonment – arrest and detention prior to bail being granted – whether arrest unlawful – onus on defendant to establish that arrest was lawful – requirements for lawful arrest under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether requirements met TORTS – malicious prosecution – elements – whether proceedings terminated in favour of the plaintiff if finding of guilt but no conviction or withdrawal of charges – whether prosecutor acted with malice – whether prosecution commenced or maintained without reasonable and probable cause TORTS – trespass to goods – whether seizure of mobile phone containing video of alleged offence voluntarily handed to police was lawful under s 21(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether seizure of mobile phone was lawful under common law principles in Ghani v Jones [1970] 1 QB 693 TORTS – general principles – damages – availability of damages for consequential loss and damage from harm suffered as a result of intentional torts – whether harm caused by the tort – whether harm intended by tortfeasor – whether harm the natural and probable consequence of the tort
CORPORATIONS — winding up — voidable transactions by group of companies — unreasonable director-related transactions — evidential onus on defendant to explain commercial purpose — failure to meet evidential onus — where recovery of payments sought and granted
CIVIL PROCEDURE — Pleadings — Striking out —Anshun estoppel — no reasonable cause of action or defence — tendency to cause prejudice, embarrassment or delay
COSTS – solicitor/client – application to appeal out of time a Costs Determination Certificate entered as a judgment of the Local Court – where procedure for appeal to review panel has not been followed – where the Court has no power to make the orders sought by the plaintiffs in the circumstances – application dismissed
APPEALS – appeal from Local Court to Supreme Court – proceedings for recovery of $65,000 – where daughter was appointed mother’s financial manager from 2013 to 2018 – whilst financial manager daughter transferred $65,000 from mother’s bank account to her own – NSW Trustee and Guardian appointed financial manager in 2018 – commenced proceedings in 2022 to recover sum plus interest – where daughter failed to respond to Notice to Produce bank records - Magistrate gave judgment against daughter – whether Magistrate erred by finding daughter retained the benefit of the $65,000 to the detriment of her mother – question of fact – Magistrate did not draw inferences from daughter’s failure to produce documents – cannot be said that there is no evidence to support the Magistrate’s finding – no error of law – ground rejected APPEALS – appeal from Local Court to Supreme Court – on a question of mixed fact and law – whether Magistrate erred in permitting reliance on a claim for fraud – where fraud allegation was not particularised nor ultimately pursued – where Magistrate made findings on fraudulent concealment not fraud or deceit – where fraudulent concealment was put to the daughter in cross-examination – held no unfairness despite lack of particularisation – leave to appeal refused – ground not made out APPEALS – appeal from Local Court to Supreme Court – on a question of mixed fact and law – question of costs – indemnity costs – where daughter rejected an earlier Calderbank offer – where Magistrate made lump sum costs order at $30,000 – whether Magistrate erred in finding the Calderbank offer was a valid basis to award indemnity costs – held Calderbank offer a valid offer of compromise – no reason shown for grant of leave in respect of ground – leave to appeal refused – summons dismissed
CRIME – bail – show cause – strength of the prosecution case for serious drug charges – first time offending – delay until trial – medical evidence demonstrating a more onerous experience in custody – cause shown CRIME – bail – bail concerns – where Crown raises all bail concerns in s 17(2) Bail Act 2013 (NSW) – where bail conditions can adequately ameliorate bail concerns – bail granted
CIVIL PROCEDURE – service outside of Australia – service of documents other than originating process – where defendants seek third party costs order against majority shareholders to plaintiffs – where majority shareholders incorporated in Singapore and the Cayman Islands – where those shareholders actively involved in events leading to the litigation – whether defendants require leave to serve those shareholders overseas – whether circumstances fall within Sch 6 of the UCPR – whether leave to serve overseas should be granted – whether motion delivered to solicitors acting for shareholders in wider dispute albeit not in relation to the third party costs application itself should be taken to have been served on shareholders
CORPORATIONS — winding up — grounds for winding up — liquidators — where the parties nominate different proposed liquidators — where consideration of cost paramount
APPEALS – procedure – time limits – extension of time – amendment– parties on appeal – joinder – whether joinder was necessary or proper APPEALS – leave to appeal – right of appeal – whether appeal moot – proper construction of Liquor Act 2007 (NSW) – whether Civil and Administrative Tribunal of New South Wales could make orders in favour of appellant on further review of an application for extended trading refused by the Authority LICENSING – liquor licensing – hotel – failed application for extension of trading hours – statutory construction – s 49 of the Liquor Act 2007 (NSW) – whether extended trading authorisation ‘runs’ with the premises upon transfer to a new licensee –whether orders pursued by former licensee about a failed extended trading application can be made by Tribunal
SENTENCING – hindering investigation of homicide – guilty plea – relevant factors on sentence – objectively serious example of the offence – no persons convicted of homicide of deceased – where offender former national sergeant-at-arms of Comancheros – lengthy criminal history – commission of offence on parole serious aggravating feature – no remorse found – prospects of rehabilitation unclear – near fatal injuries inflicted on offender – death of brother in his presence – very significant physical injuries – psychological conditions – extremely restricted conditions of custody – special circumstances found – small reduction of non-parole period – sentence imposed
BANKRUPTCY – civil proceedings – proceedings resolved without order as to costs – sequestration order against estate of unsuccessful party – whether costs order could be made in civil proceedings after sequestration order COSTS – general rule that costs follow the event – whether subsequent events affect success – effect of delay in pursuing costs application – related issue raised in separate unresolved proceedings in Equity Division COSTS – form of order – order sought for assessment on indemnity basis – Calderbank offers by plaintiff – whether defendant unreasonable in failing to accept offers – gross costs order – complexity of case
CONTRACT – real estate agent and Chinese investors in property development together – proceedings commenced in Commercial List alleging real estate agent misappropriated $9M to buy property in Meadowbank – proceedings settled – agree to sell Meadowbank land – real estate agent to chose selling agent – property to be sold “on terms to be agreed, such agreement not to be unnecessarily withheld” – proper construction of clause – principles at [26]-[29]. BREACH OF CONTRACT – incomplete agency agreement submitted – real estate agent did not respond to queries – whether breach – principles at [86], [87] – time for performance had not yet arrived. WORDS AND PHRASES – “unnecessarily withheld” – “unreasonably withheld” – at [50], [87].
REAL PROPERTY – Sale of land - Repairs – Duty to repair – Obligation under bespoke agreement between vendor and purchaser CONTRACT – terms and conditions – construction and interpretation of contract
EQUITY – alleged oral rental agreement – whether property was purchased as an investment or as part of joint endeavour with family members – purchase financed with a loan in the name of the plaintiff – cross claimants paid for completion, contributed some mortgage payments and paid some outgoings EQUITY – remedies – failed joint endeavour – division of proceeds of sale – division of surplus – return of contributions – indexation – occupation for a period following the failure of a joint endeavour
LIMITATION OF ACTIONS – whether proceedings brought out of time – whether interim occupation certificate authorised occupation and use of the “whole of the building” for the purposes of the Home Building Act 1989 (NSW) CIVIL PROCEDURE – pleadings – application to strike out – whether claims under the Home Building Act 1989 (NSW) and Design and Building Practitioners Act 2020 (NSW) adequately articulated – whether necessary to prepare a schedule setting out the risks and steps to manage those risks
DAMAGES – Nominal damages – Whether interest payable on nominal damages CORPORATIONS – Contravention of ss 181 and 182 of Corporations Act 2001 (Cth) established – Whether declaration should be made COSTS – Claims against Fifth Defendant dismissed – Whether a Sanderson or Bullock order should be made against the First and Third Defendants COSTS – Application of UCPR r 42.34 – Whether there should be no order as to costs having regard to outcome of Plaintiffs’ various claims – Whether costs should be apportioned between such claims COSTS – Offers of Compromise and Calderbank Offers – Whether costs incurred after the date of any such offer are payable on an indemnity basis
CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – financial position of plaintiff’s mother relevant to consideration of plaintiff’s interests – settlement approved
CIVIL PROCEDURE – application for leave for person in custody to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success – leave granted
OCCUPATIONS – legal practitioners – misconduct and discipline – complaint to professional body – practising without current practising certificate – injunction to restrain contraventions of Legal Profession Uniform Law
CRIME – Bail – Show cause – Strength of the prosecution case for a murder charge and serious drug charges – Time elapsed until trial – Applicant’s conditions of custody and safety – Proposed bail conditions – Bail refused.
CRIMINAL LAW — sentence — joint criminal enterprise where agreement was to shoot the deceased with at least an intention to inflict grievous bodily harm — planning — where deceased shot while lying in his bed — deceased President of the Bandidos Central West Chapter — where offender has serious health issues — poor prognosis
COSTS – Party/party costs – General rule that costs follow the event – Application of the rule and discretion – Appeal from a Local Court decision as to costs – Whether the costs order was disproportionate to the dispute.
BUILDING AND CONSTRUCTION — Contract — Damages — Defects — Concrete slab not constructed in accordance with specifications BUILDING AND CONSTRUCTION — Contract — Dispute Resolution — Experts and expert evidence — Where experts disagree on extent and quantum of damages CONTRACTS — Remedies — Damages — Loss or damage — Where defects are agreed but extent of damage and rectification are not CONTRACTS — Remedies — Damages — Loss or damage — Whether to deduct settlement figure of another defendant from judgment sum
CRIMINAL LAW – murder – extended joint criminal enterprise – directed verdict – whether there is no evidence upon which a jury could convict – circumstantial evidence – whether inferences contented by the Crown are available
HIGH RISK OFFENDERS – extended supervision orders – violent offender – where defendant does not oppose making of ESO – where dispute is limited to the length of the ESO and conditions to be imposed – extended supervision order imposed
STATUTORY INTERPRETATION – Power of Commissioner of Police to appoint police officers – Meaning of “position” – Anthony Hordern principle – Extrinsic materials – Seeking to give practical and coherent effect to statutory regime ADMINISTRATIVE LAW – Jurisdictional error – Characterisation of exercise of statutory power where multiple powers available – Practical difference in operation of statutory powers under separate provisions – Power of dismissal under s 80(3) of Police Act 1990 (NSW) not available – Dismissal quashed STATUTORY INTERPRETATION – Meaning of “first appointed” – Suggested use of subordinate legislation to construe Act – Not appropriate where subordinate legislation not drafted when Act enacted WORKERS COMPENSATION – Protection of injured workers – Reinstatement of worker – Interaction with police legislation – Implied grant of power to State public sector employers to reinstate workers
INSURANCE – motor vehicle – fraud – s 118 of the Motor Accidents Compensation Act 1999 TORTS – miscellaneous torts – deceit – state of mind of defendant – whether the defendant knowingly or recklessly made false representations to the plaintiff and others to obtain a benefit to the detriment of the plaintiff – whether the plaintiff was induced by the representations of the defendant STANDARD OF PROOF – civil standard – application of Briginshaw EVIDENCE – tendency evidence – where credibility evidence cannot be used for tendency purposes – evidence properly adduced for credibility purposes DAMAGES – whether true value or settlement value theory applies – parties agree that value would be the same in either case – damages assessed
PRACTICE AND PROCEDURE – costs – whether it was appropriate to commence proceedings in the Supreme Court – whether it was necessary to seek declaratory relief – whether successful plaintiff is entitled to costs where the amount in issue did not exceed $500,000
HIGH RISK OFFENDERS – post-sentence orders under Division 105A Criminal Code Act 1995 (Cth) – application for extended supervision order – whether satisfaction on balance of probabilities of unacceptable risk of defendant committing a serious Part 5.3 offence – statutory interpretation of temporal requirements of crucial test – where defendant convicted of making a document connected with preparation for a terrorist act when 18-years of age – defendant denied parole – eight years in continuous custody – interim supervision order imposed – expert evidence – limitations of predictions of risk of recidivism – difficulties in determining realistic possibility of risk – grievance based reasoning – evidence of previous misconduct in custody through communications with unauthorised associates – perceived risk based on possibility of subsequent deterioration based on association with Islamic extremists – many concerning contacts to remain in gaol for the period of the order sought – where defendant has renounced extremist views – significant progress in custody – strong family support –concern about potential risk of committing serious Part 5.3 offence, but not satisfaction on balance of probabilities that such a risk will develop – not satisfied any risk will come to fruition within period of order sought – not satisfied any risk is unacceptable – statutory test not fulfilled – amended summons dismissed
COSTS — claim for debt — defendant made bankrupt before final orders made — proceedings stayed — stay does not prevent costs order being made — whether plaintiff would have succeeded in the proceedings — defendant ordered to pay costs
CIVIL PROCEDURE — Preliminary discovery — whether plaintiff may have a claim for relief – where plaintiff asserted the defendant company may have failed to comply with its taxation obligations – whether, if established, asserted failures capable of justifying winding up of the defendant company
EQUITY —Equitable charges and liens — Enforceability — Whether court should make an order for judicial sale out of court — Whether court should make ancillary order for possession
CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – admission of breach of duty of care – whether proposed settlement in best interests of plaintiff – settlement approved
CONSUMER LAW — First plaintiff embarks upon a career change and engages in training to qualify as a mortgage broker — First plaintiff claims first defendant arranged for mentoring of the first plaintiff — First plaintiff claims the first defendant made ownership and investment representations regarding a mortgage broking business (MAP Business) and induced the first plaintiff and his wife (the second plaintiff) to sell properties and transfer proceeds to the first defendant based on a promise of a 50% interest in the mortgage broking business, which were misleading and deceptive in that the first defendant had no such interest to sell — Other claims in relation to breach of mentoring agreement and sales and marketing promises CONSUMER LAW — Misleading or deceptive conduct — Discussion regarding the operation of the Australian Consumer Law (ACL) as a law of the Commonwealth and as a State “application” law — Discussion of s 6(3)(a) of the Competition and Consumer Act 2010 (Cth) (CCA) — CCA extends the operation of s 18 of the ACL (in addition to certain other parts of the ACL) to persons who are not corporations where the impugned conduct involves the use of postal, telegraphic or telephonic services — The expression “postal, telegraphic or telephonic services” extends to conduct involving the use of the internet CONSUMER LAW — Misleading or deceptive conduct — Measure of damages — ACL, sections 18 and 236(1) UNREPRESENTED LITIGANTS — Content of procedural fairness PLEADINGS — Discussion (obiter) of pleading of claims in fraud and restitution TRUSTS — Discussion (obiter) regarding intention to create a trust and claims involving Quistclose trusts
CONSTITUTIONAL LAW — The Judiciary — Notice of constitutional matter — whether the Proceeds of Crime Act 2002 (Cth) ‘otherwise provides’ for law within the meaning of Judiciary Act 1903 (Cth) s 79(1) — whether application of the Uniform Civil Procedure Rules excluded
COSTS – party/party – self-represented litigant – where unsuccessful plaintiff alleged multiple grounds for an exception to general rule that costs follow the event – where defendant sought indemnity costs on the basis of “walk-away offer” in Calderbank letter
COSTS – party/party – self-represented litigant – where application made by defendant for gross sum costs orders under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) following summary dismissal of plaintiff’s claim – where conduct of the plaintiff significantly increased costs and disbursements incurred by the defendant – application granted
CRIMINAL LAW – application for review of conviction and sentence – sexual touching – common assault – “groping” – three separate victims – offences committed on the dancefloor of nightclub – associated offences of assaulting security staff and resisting police – two separate incidents – second incident occurred when applicant on bail for the first incident – applicant with psychological issues – no previous convictions – offences out of character – whether case should have been diverted under mental health legislation – whether convictions should have been recorded – where matter considered carefully by Magistrate – where appeal to District Court succeeded in part – rejection of ambitious submission made by lawyer in District Court that objective seriousness less because nightclubs “sexually charged arenas” – where solicitor “struggled to find the words” to articulate submission – whether appearance of doubt or question around conviction or sentence – nature of jurisdiction – whether Court should refuse to consider application because issues fully considered in courts below – discretionary decision to consider case on its merit – application dismissed
EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — Where property registered in names of estranged daughters — Where purchaser bankrupt — Where purchaser forged daughters’ signatures — Whether intention to gift property — Whether registration contrary to policy of Bankruptcy Act or Real Property Act — Whether illegality prevents declaration of resulting trust — Whether unclean hands prevent declaration of resulting trust
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Long running litigation where each party succeeded on some issues — No issue of principle
CIVIL PROCEDURE — Pleadings — Amendment — Current pleading rendered otiose by events — Where foreshadowed amendment involved plaintiff suing in different capacity on completely different causes of action — Application for timetable to bring amendment application refused — Proceedings summarily dismissed
CIVIL PROCEDURE – default judgment – setting aside – proceedings for possession of land and liquidated sum – where company and its director entered into a loan agreement – where earlier judgment had been obtained against the director for possession of other land and for a liquidated sum – where writ of possession executed – non-disclosure and irregularity – whether Court ought to have been notified of prior judgment on an ex parte application for default judgment – whether default judgment entered irregularly by reason of non-disclosure – held information not relevant nor material – requirements of UCPR rr 16.4, 16.8 and 36.8 to obtain default judgment satisfied – no injustice occasioned by failure to provide further information – no irregularity CIVIL PROCEDURE – default judgment – setting aside – bona fide defence on merits – where draft defence relies on statutory unconscionability – asserts defendant under special disadvantage given (1) sole director’s advanced age and minimal income and (2) loss made in the 2022 tax year – where nothing about the defendant’s position in 2022 was provided to the plaintiff – whether general law concept of special disadvantage applies to a corporation – not unarguable that defendant might be found to be at a special disadvantage given director was the controlling mind – authorities leave open the possibility that a company can rely on unconscionability by reason of its special disadvantage – not unarguable that loan was unconscionable given evidence there might have been difficulty servicing the loan – bona fide defence exists – default judgment set aside
CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success
CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success
CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success
CIVIL PROCEDURE – application for leave for a felon to commence civil proceedings nunc pro tunc – prima facie case supported by expert evidence – court to form a broad impression as to prospects of success
CRIME – Appeal and review – Application to Supreme Court under Part 7 – where applicant had already made several Part 7 applications – where no special facts or special circumstances arise justifying further action – Court declines to consider or deal with the application
EQUITY — Equitable remedies — Injunctions – interlocutory injunction – second defendant/cross claimant seeks the continuation of injunctive relief to restrain a trustee from making payment to a unitholder, the plaintiff/cross-defendant, upon a notice of redemption of units in a unit trust – the second defendant/cross claimant alleges that the plaintiff/cross-defendant granted security to the second defendant/cross claimant over the proceeds of the units being redeemed to secure the repayment of a debt due by the plaintiff/cross-defendant to the second defendant/cross claimant – whether there is a serious question to be tried – whether the injunctive relief originally granted to the second defendant/Cross claimant should be discharged on account of nondisclosure at the time of an ex parte application.
PARTNERSHIPS AND JOINT VENTURES — Partnership property — Identification — where family farming partnership had carried on farming business since 1989 — whether farmland formed part of partnership assets PARTNERSHIPS AND JOINT VENTURES — Winding up — Rights of outgoing partner — where family farming partnership had carried on farming business since 1989 — where daughter-in-law buys into the partnership — where parents retire from partnership — whether retired parents hold farmland on bare trust for incoming partners — effect of informal winding-up on retired partners’ interest in the partnership assets EQUITY — Equitable remedies — Specific performance — Land — where conversation at family meeting said to give rise to binding contract — whether terms of contract ever agreed to ESTOPPEL — Proprietary estoppel — Encouragement — Nature of promise — where conversation at family meeting said to give rise to inducement to pay into partnership in return for inheriting farm — whether representation made — whether representation too ambiguous to give rise to an estoppel
EQUITY – specific performance – contract for sale of land – corporate purchaser’s obligations guaranteed by sole shareholder and director – purchaser defaulted under contract – specific performance ordered against purchaser – whether decree available as against guarantor – whether decree against guarantor premature – order made against purchaser and guarantor jointly and severally requiring payment of purchase price on settlement GUARANTEE AND INDEMNITY – actions to enforce guarantee – construction of guarantee – where guarantee of the performance of all obligations of the purchaser under the contract, including payment of all money payable – where guarantee given as principal
CIVIL PROCEDURE – confidentiality – implied and express obligations to use documents only for purposes of proceedings – reach of obligations – application to agent, solicitor and counsel for party – use for purposes of complaint against solicitor after proceedings completed – release of obligations by court – release to permit ongoing use for complaint proceedings – release nunc pro tunc to permit past use – order for return or destruction of copies by recipients no longer involved in complaint proceedings
COSTS – application for indemnity costs or alternatively a gross sum costs order – Offer of Compromise – costs summary – assessment of costs not warranted having regard to the overriding purpose
CIVIL PROCEDURE – application for summary disposal – allegations that a bank unlawfully complied with the terms of a freezing order – dismissal of proceedings – frivolous or vexatious proceedings
CIVIL PROCEDURE – asset preservation orders — continuation of order after judgment – prima facie case – claims rejected but subject to appeal not relevant – further accounting claims pursuant to judgment – risk of dissipation of assets – defendants are individuals resident in Australia – outcome of accounting proceedings unclear – order discharged
SUCCESSION – family provision – deceased provides rent-free accommodation and interest-free loans to Solomon Islands couple, to obtain education in Australia – couple and their children living in deceased’s home when he died – plaintiffs receive $50,000 under Will plus forgiveness of $80,000 debt and one year’s rent-free accommodation – deceased’s children unable to provide personal care for a time given COVID-19 lockdowns and son stranded overseas – plaintiffs had, in fact, abandoned their studies and will soon return to the Solomon Islands. DEPENDENCY – whether “wholly or partly dependent on the deceased” – s 57(1)(e)(i) – principles at [76]-[81] – notion of dependency suggests that the person meeting your needs does not expect repayment – deceased provided funds as loans – support provided went beyond the plaintiffs’ needs to create an opportunity to complete further education, gain employment and permanent residence in Australia – whether “member of the household” – s 57(1)(e)(ii) – principles at [86]. CLOSE PERSONAL RELATIONSHIP – s 57(1)(f) – principles at [102]-[108] – whether assistance provided “for fee or reward” – not living together due to bonds of family or friendship – that was not why plaintiffs provided domestic support and personal care. FACTORS WARRANTING – s 59(1)(b) – principles at [115]-[117] – plaintiffs received deceased’s charitable generosity – deceased made plain that his assistance ceased on his death – no factors to convert the plaintiffs from potential objects of testamentary recognition to objects in fact. ADEQUACY OF PROVISION – s 60(2) – principles at [126]-[128] –– gift sufficient to cover course fees and assist plaintiffs to relocate – deceased’s adult children yet to acquire their first homes in Sydney –plaintiffs have a house and likely to complete studies and gain employment in the Solomon Islands – no further provision warranted.
JUDGMENTS AND ORDERS — Slip Rule – Legal practitioners for cross-claimant by oversight failed, both at the time of proposing short minutes of order to give effect to reasons for judgment and on hearing when substantive orders made, to seek orders for pre-judgment interest on amount of judgment sum — Slip rule (Uniform Civil Procedure Rules 2005, r 36.17) applies to various instances of legal practitioner clerical error — Orders made for inclusion of interest REMEDIES — Duress to the person — Payments as the result of improper pressure including economic duress arising from assault are generally recoverable with interest from date of payment
CRIMINAL LAW – release application – where sentencing proceedings imminent – where bail also refused for unrelated offences – lengthy delay – whether appropriate to refuse bail for one offence but grant bail on others – possibility of intensive correction order – show cause requirement – issues as to strength of prosecution case and seriousness of second series of offences – different functions of sentencing court and bail court – bail decision ought not to influence proper exercise of sentencing discretion – preposterous in this case to think it would – bail granted on second series of the offences – refused on the offence for which sentence is pending
CRIMINAL LAW – bail – change of circumstances since bail refused – extensive delay – where volumes of material served after matter listed for trial – defence application to vacate trial date refused – prosecution application to vacate trial date granted – inability of applicant to access voluminous material in prosecution brief – show cause requirement – bizarre and disturbing sexual offences – four complainants – degrading and humiliating conduct – issue of consent – where applicant’s knowledge of brief critical to proper presentation of his case – tricky case for trial lawyers – prosecution case not necessarily overwhelming – previous bail breaches – complainants’ fears – whether stringent bail capable of mitigating risk
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied.
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.
SUCCESSION – family provision – claims by testator’s two adult daughters – residue of estate left to testator’s grandchildren – “generation skipping” – estrangement – false statement accompanying will as to reasons for excluding daughters – only competing claims those of claimants’ children – primary responsibility of parents to care for children – impact of unresolved death benefit under life insurance policy
EQUITY — Trusts and trustees — Court’s supervision of — Appointment and removal of trustees — Application under s 70 of Trustee Act 1925 (NSW) for replacement of trustee of trust — no question of principle
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – enforcement of Part 2C statutory warranties against owner-builder – where owner undertook residential building work without an owner-builder permit – whether owner was “owner-builder” STATUTORY INTERPRETATION – definition of “owner-builder” in Home Building Act – where on literal reading definition extends only to those who had an owner-builder permit – whether definition should be extended to those required to obtain an owner-builder permit but did not – purposive construction – whether legal meaning of definition’s actual words differs from literal meaning – whether permissible to read definition as if it contained additional words – principles for reading additional words into statute
CRIMINAL PROCEDURE — Costs — application for certificate pursuant to Costs in Criminal Cases Act 1967 (NSW) – where applicant charged with murder – where the Crown subsequently accepted the applicant’s plea of guilty to manslaughter on the basis of excessive self-defence – whether it was reasonable for the Crown to institute proceedings for murder
CIVIL PROCEDURE – Representative proceedings – Criteria for commencement – Group members – Identification – Whether proceedings were properly commenced under Part 10 of the Civil Procedure Act 2005 – Whether the group members’ claims involve the same, similar or related circumstances and whether the claims give rise to a substantial common question of fact or law – Whether all group members fell within the definition of group members in the pleadings – Whether certain pleadings and particulars should be struck out – Whether certain terms and expressions used in the pleadings were ambiguous.
SUCCESSION – informal document – testamentary intention – intention that document be an alteration to a will – document purporting to express testamentary intention – document signed by testator – testator with history of making false statements in relation to her testamentary intentions – failure to see solicitor before or after preparing document – failure to deliver document for safekeeping – Succession Act 2006 (NSW), s 8 COSTS – party proposing informal will to be admitted to probate – applicant unsuccessful – whether applicant’s costs should be paid out of the estate –document purported to disinherit testator’s family – likely effect of pending family provision claims – whether pursuit of claim reasonable
CIVIL PROCEDURE – parties – persons under legal incapacity – tutors – application to remove tutor – whether plaintiff remains a person under legal incapacity
LAND LAW – Strata title – By-laws – Whether By-law granting exclusive use rights conditional on four critical obligations had been complied with – Whether clause of By-law ceasing exclusive use rights unless critical obligations were complied with is unjust – Whether clause of By-law ceasing exclusive use rights unless critical obligations were complied with is unconscionable, harsh or oppressive – Whether special levies are unreasonable – Award as to damages- reasonableness of costs – quantum as to monies owing for strata levies or pursuant to By-law 30 EQUITY – Equitable remedies – Declaration – Remittance to tribunal for orders arising out of the declaration
CIVIL PROCEDURE — Discovery — General discovery – Application for disclosure in advance of evidence CIVIL PROCEDURE — Discovery — Practice Note SC Eq 11 — Exceptional circumstances warranting disclosure before evidence exchanged — Whether plaintiff/applicant has satisfied requirements for exceptional circumstances CIVIL PROCEDURE — Discovery — General discovery – Whether categories considered too broad
TAXES AND DUTIES — land tax — liability — exemptions — exemption for land used for primary production — appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) — whether dominant use of land for maintenance of animals for purpose of selling them or their natural increase or bodily produce — when no other use of property put to Tribunal — relevance of subjective intention of taxpayer — no evidence of subjective intention
EQUITY – fiduciaries – withdrawals from principal’s bank account by signatory – whether amounts paid to benefit of signatory and his family – whether transactions authorised by principal – whether agent established fully informed consent – nature of relief awarded PROBATE – revocation of grant – principal beneficiary under will seeks revocation of probate granted to executors who were children of signatory to deceased’s account and recipients of money alleged to have been wrongfully withdrawn – representative order under UCPR r 7.10 made
EQUITY — contribution — co-ordinate liability — party named as borrower claims they are a guarantor — claim for contribution from third party as the ‘true borrower’ GUARANTEE AND INDEMNITY — guarantor — right of subrogation
CHILD WELFARE – adoption – consent dispense order – where consent dispense order sought before application for adoption order – where father not identified – where reasonable enquiries made to identify and locate the father
PARTNERSHIP – accounts – third parties ordered to account to partnership firm jointly and severally with partners – form of orders – no set-off between third parties’ liabilities to account and distributions to partners PARTNERSHIP – winding-up – directions – lodgement of future tax returns – obtaining of advice on lodgement of past tax returns COSTS – multiple claims involving multiple parties and having mixed success – application of rule that costs follow the event – order in favour of successful plaintiff on partnership claims and subsequent account to quantify defendant’s liability – order against unsuccessful plaintiff for costs solely referable to unsuccessful non-partnership claim – indemnity costs – informal offer not distinguishing between plaintiffs – indemnity costs refused
CIVIL PROCEDURE – separate determination of questions – whether the amount of damages to which a party are entitled should be heard separately EVIDENCE – expert evidence – whether single party expert should be appointed
JUDICIAL REVIEW – summons seeking judicial review against background of extensive litigation – vexatious litigant appealing NCAT decision – where similar matters have been heard by Court of Appeal and decision is reserved at date of hearing – question of whether issues raised substantially replicate issues before appellate court – whether appeal is an abuse of process
SUCCESSION — Dispute between the plaintiff and the defendant who are the only two children of the deceased, who died in 2021, regarding their entitlements to valuable farming land in Dungog region, which at her death comprised 21 lots — Plaintiff claims that in teenage years the deceased (his mother) and his father (who died in 2005) made initial promises of inheritance of “half of the farm” on which he acted in various ways including forgoing the study of medicine and forgoing an opportunity of postdoctoral studies overseas to remain on the farm and provide assistance in respect of the farming operations which initially involved dairying operations — Subsequent to his father’s death the plaintiff claims the deceased, who ceased dairying operations and leased 13 of the 21 lots and part of another lot (predominantly north of a road dividing the farming property) (the “leased lots”), gave encouragement to the plaintiff to continue work he had engaged in maintaining the leased areas on the promise of receiving the leased lots — Plaintiff continued the work — Deceased made a Will relevantly giving the plaintiff only 2 of the leased lots and the balance of her real property to the defendant — Plaintiff sought relief that the reference by name to the gifted lots should be properly construed as being a reference to most of the lots north of the dividing road — Plaintiff in addition to the construction claim sought rectification of the Will to the above effect — Plaintiff alternatively to the construction claim and rectification claim sought entitlement to the 14 lots by means of an estoppel — Held construction and rectification claims to be dismissed but estoppel claim succeeds WILLS — Construction — Principles — Discussion of appropriate method for describing landholding — The appropriate method will depend upon various factors including context — Generally use of the words “more particularly described (as)” followed by a distinct title reference, is a useful and appropriate drafting technique to remove doubt about what land is precisely the subject of a gift SUCCESSION — Wills — Rectification — Whether always necessary to construe document first — Discussion of rectification principles – Consideration of requirements of ‘clerical error’ — Consideration of conjunction ‘because’ in s 27(1) Succession Act 2006 (NSW) EVIDENCE — Presentation of evidence regarding complex landholdings — Forensic assistance to the Court, and to witnesses, of having a large map version of the deceased’s landholdings to identify the disputed landholding by reference to a single document, so that the evidence of the many witnesses could be comparable and comprehensible by reference to a fixed or standard reference point — Practitioners commended for thoughtful presentation of maps EVIDENCE — Assessment of evidence of witnesses where estoppel claims based on some conversations in the decade prior to the deceased’s death and some many decades ago — Assessment of evidence of professionals engaged by the deceased including evidence of a solicitor regarding instructions for a will made over a decade prior to the deceased’s death where the solicitor’s electronic file is lost ESTOPPEL — Estoppel by encouragement — Farming properties — Plaintiff’s case for detriment presented holistically, with all of the elements of foregoing opportunities and work carried out sharing the common thread that the plaintiff (for the most part) remained living and working in or around the family farm secured by the promises that he would inherit, under the initial promises, “half of the farm” and, by the subsequent promises, the “leased lots” ESTOPPEL — Discussion of issues including whether career choices may constitute detrimental reliance — Discussion of ‘counterfactual case’, significance of countervailing benefits and proportionality of relief — Held choices made by the plaintiff involved life changing decisions with irreversible consequences of a profoundly personal nature, beyond the measure of money — Held relief claimed not “wholly disproportionate” or “out of all proportion” to his detriment
COSTS — Application for a special costs order — Whether indemnity costs ought be payable — Whether gross sum costs order necessary to achieve finality between the parties in the course of protracted litigation
EVIDENCE — objection made to ‘Corner Report’ annexed to a solicitor affidavit — admitted into evidence — competing version of the science — question one of weight not admissibility
CORPORATIONS – Winding up – application by liquidator for direction as to which rules of fund are operative. CORPORATIONS – Winding up – application by liquidator for direction as to when fund was dissolved – direction as to entitlement of members and former members to share in distribution of fund assets.
CORPORATIONS - Shares - application for curative orders pursuant to s 1322(4)(c) of the Corporations Act 2001 (Cth) - relief from liability arising from failure to give notice of share buy-back within time - whether extension of time may be granted - where no substantial injustice from delay in notification.
CORPORATIONS – winding up – insolvency – application by substituted creditor – service of creditor’s statutory demand – failure to comply with creditor’s statutory demand – whether presumption of insolvency negatived.
CORPORATIONS - Members’ rights and remedies - Where common ground that there has been a failure in the relationship between shareholders - Whether winding up on the just and equitable ground should be ordered. CORPORATIONS - Winding up - Application to appoint liquidator - Whether Plaintiffs’ nominee should be appointed - Where Defendants’ proposed liquidator had begun preparatory works in respect of voluntary winding up proposed by Defendants.
CRIMINAL LAW – murder – sentence for murder – where offender sought retribution against victim based on false assumption about the victim’s role in an assault on the offender’s brother – considerable planning to obtain a gun and assistance from co-offenders – victim shot four times in his own home – strong need for general deterrence – no contrition or remorse and persistent denial of culpability – reasonable prospects of rehabilitation – impoverished upbringing and strong subjective case
ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Findings of fact — Whether a “question of law” — Civil and Administrative Tribunal Act 2013 (NSW), Sch 6, Part 6, Cl 14(1)(b)
LAND LAW — Torrens title — compensation for loss of interest in land — Torrens assurance fund — causation of loss LAND LAW — Torrens title — exceptions to indefeasibility — omitted or misdescribed easement ENVIRONMENT AND PLANNING — environmental planning instruments — local environment plan — inconsistent with terms of easement VALUATION — value — development potential
CORPORATIONS — Receivers and managers — Appointment by court — Appointment of receiver for the purpose of selling property and distributing proceeds amongst creditors CORPORATIONS — Winding up — Conduct of liquidation — Application of assets — Order entitling liquidator as receiver to retain funds to account for remuneration expenses and discharge future liabilities CORPORATIONS — Winding up — Conduct of liquidation — Application of assets — Order that any remaining funds from the sale of the property be paid into Court
CIVIL PROCEDURE – amendment of statement of claim – possession proceedings – where defendant occupying plaintiff’s premises wrongly named – where correct name ascertained after attempted service – leave to amend
MORTGAGES AND SECURITIES – Personal Property and Securities Act 2009 (Cth) – enforcement – registered security interest – retention of title clause – interest in goods registered under Personal Property Securities Act 2009 (Cth)
COSTS – costs assessment – application for departure from usual costs order under UCPR r 42.1 – application for an order that there be no order as to costs and in the alternative, a fixed costs order – whether case has a test case aspect – whether defendant has a real interest in the resolution of what is in issue in the Local Court – whether defendant is impecunious COSTS – application for certificate under s 6 of the Suitors' Fund Act 1951 (NSW) – granted
EVIDENCE – course of evidence – evidence in reply – credibility rule – where the scope of proposed evidence is broader than the evidence it seeks to address – proposed evidence relevant for a non-hearsay purpose
SUCCESSION – family provision – claim by adult daughter for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – where the deceased’s will bequeathed the rest and residue of her estate to her daughter and son as tenants in common in equal shares – whether factors warranting order for provision in favour of the adult daughter of the deceased
CORPORATIONS — winding up — just and equitable ground — appointment of liquidators and receivers — where the parties nominate different proposed liquidators and receivers — where considerations as to fitness, qualifications, and cost do not warrant a departure from the Court’s regular practice of appointing the plaintiff’s nominated liquidator
CIVIL PROCEDURE – hearings – adjournment – relevant factors – where plaintiff died before commencement of hearing – new causation issues arising from the death – insufficient time to prepare expert reports – vacating hearing dates warranted
PRACTICE AND PROCEDURE – application by plaintiffs to re-open after judgment reserved to tender judgment of foreign court and document produced on subpoena – where plaintiffs failed to adduce evidence of relevant foreign law during hearing – where plaintiffs now seek to rely on foreign judgment as evidence of the truth of a proposition of mixed fact and law that they have extrapolated from the outcome of the foreign proceedings and erroneously characterised as the “legal effect” of the foreign judgment – where document produced on subpoena has negligible probative value – where defendants would be prejudiced by delay that would follow from a grant of leave to re-open.
SENTENCE – murder – stabbing – trial before jury – initially allegations of mental illness and substantial impairment – guilty pleas entered to all charges on day 10 of the trial – stabbing motivated by obsession and jealousy – remorse – mental illness issues – prodromal schizophrenia diagnosed after offences – De La Rosa factors – specific and general deterrence SENTENCE – break and enter with intent to commit serious indictable offence – assault – using carriage service to harass – s 166 Criminal Procedure Act
HIGH RISK TERRORISM OFFENDER – final hearing – extended supervision orders – whether offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision – statutory threshold conceded – argument limited to the form of some of the conditions of supervision – extended supervision orders made for a period of 3 years
CRIME – bail – release applications – show cause – unacceptable risk – bail concerns – Operation Ironside – AN0M devices – applications heard together – significant common features resulting substantial overlap in the arguments – not an invitation to arbitrary decision-making – not open to ignore statements of principle when not convenient – AN0M evidence issue - Bail Act 2013 (NSW), s 74 – show cause test – unacceptable risk test – home detention conditions – electronic monitoring condition – bail granted with conditions
CIVIL PROCEDURE — Representative proceedings – where plaintiffs entered into a litigation funding agreement – whether plaintiffs may claim as a head of damages the litigation funder’s commission.