CIVIL PROCEDURE – Pleadings – need to replead in light of Court of Appeal decision concerning pleading non-delegable duty in historical institutional abuse claims – no issue of principle CIVIL PROCEDURE – Hearings – Expedition – where plaintiff is of old age and ill-health – application unopposed COSTS – Party/Party – Costs orders in interlocutory proceedings – Costs in the cause – no issue of principle
CIVIL PROCEDURE – Preliminary discovery – To identify potential defendant – Order for examination – where plaintiff requested information from defendant solicitor – where material provided in correspondence was inadequate “sufficiently” to ascertain identity of defendant
CORPORATIONS – application to inspect company’s books by member – Corporations Act s 247A – whether the inspection is to be made for a proper purpose – HELD – no proper purpose for inspection and documents sought are confidential and commercially sensitive
LEASES AND TENANCIES – Ejectment – Stay of possession – where prior orders made to stay writ of possession – where order to pay money which accompanied the stay was not complied with – where applicant now presses for stay on further ground of prospective sale of property – where evidence as to prospect of a sale unreliable – stay discharged
CIVIL PROCEDURE – notice of motion to enter consent judgment – where entering judgment in favour of the first defendant would foreclose the second defendant’s ability to seek statutory contribution – whether entry of the consent judgment should be deferred until the plaintiff’s claim is determined CIVIL PROCEDURE – notice of motion to file a third amended statement of claim joining two additional defendants – whether the amended pleading involves the plaintiff re-litigating the claim against the first defendant
CORPORATIONS – application for leave to bring proceedings in name of a company – extensive litigation history between relevant parties with outstanding costs orders – where plaintiff seeks to bring an action against a former director for breach of fiduciary duties – where company has no relevant assets – where plaintiff is a foreign resident and has proffered an insufficient undertaking as to costs – where plaintiff is acting in good faith – where proceeding would not be in the company’s best interests – where there is a serious question to be tried – application dismissed with costs
CIVIL PROCEUDRE – application in personal injury proceedings to revoke an order allowing the plaintiff to serve a further medical expert report – where the plaintiff had already secured medical opinions of the same discipline in the proceedings and sought to secure a further opinion – where the Court was not informed of the previous expert opinions when making the order for service – whether a party should be permitted to rely upon multiple experts of the same discipline addressing substantially the same issues – discussion of the obligations of parties in respect of the efficient case management of civil proceedings
CORPORATIONS – winding up – application for directions that liquidators are justified in treating a related entity as the “true” employer – where entity has no assets to meet liabilities to employees – undisclosed principal – where a related entity transferred funds to cover wages and employee-related costs – where it is more likely than not that the employer of record was operating as agent for an undisclosed principal – no declaration made
CONSUMER LAW – Misleading or deceptive conduct – Representations as to the nature, suitability and characteristics of investments – Where representations made were antithetical to the reality of the operation of the investment fund – Where reliance on representations caused loss and damage – Where representations misleading or deceptive despite disclaimers in an information memorandum NEGLIGENCE – Breach of duty of care – Whether duty of care owed by accountant to its client – Where accountant was a trusted adviser – Where advice and representations made about investments with intent to induce investment – Where representations about investments were misleading or deceptive – Where reliance on advice and representations caused harm – Where risk of harm was foreseeable and not insignificant – Where no precautions taken FIDUCIARY DUTIES – Breach of fiduciary duties –Circumstances where an accountant owes fiduciary duties to its client – Where client relied on accountant for investment advice – Where there was a conflict or real sensible possibility of conflict between accountant’s duty to advise the plaintiffs and their own interests in receiving financial benefits – Where no informed consent CONTRACT – Construction – Trust deed – Where contract incorporated information memorandum – Whether distribution term of contract orally amended – Whether representations made about a 7-day redemption for investments formed part of the contract – Whether plaintiff investors entitled to redeem under terms of trust deed EQUITY – Trusts and trustees – Powers conferred by trust deed and company information memorandum – Fraud on a power – Where trustee acted contrary to its obligations – Where breach of duty to exercise trustee powers honestly and in good faith – Where directors of trustee company engaged in dishonest conduct regarding the true activity of the investment fund – Where loan to corporation with same directors entered into with an improper purpose FIDUCIARY DUTIES – Third-party claims – Barnes v Addy – Whether knowing assistance in breach of trust duty – Whether breach of trust duty was induced or procured by director and his other company – Whether knowing receipt of trust money
COSTS — party/party — indemnity costs — where plaintiff maintained proceedings against second defendant despite being informed it was not his landlord — no wilful disregard of the known facts — costs ordered on the ordinary basis COSTS — party/party — Bullock order — whether conduct of other defendants contributed to the plaintiff continuing proceedings against the second defendant — where plaintiff resiled from position due to court intervention and not late filing of material — no order made
CIVIL PROCEDURE – stay of proceedings – pending proposed application for special leave to appeal to the High Court – extremely low prospects of success – application for stay dismissed CIVIL PROCEDURE – pleadings – application for leave to file further amended defence and further amended first cross claim – respondent does not oppose application – leave granted subject to conditions
COSTS — interlocutory application — motion for gross sum costs order dismissed — whether costs should be costs in the cause — whether dismissal or motion constituted “event” for costs purposes — application of rr 42.1 and 42.7 of the Uniform Civil Procedure Rules 2005 (NSW) — no basis for costs in the cause
COSTS — Party/Party — Payable out of a fund — Deceased estate — Plaintiff made claim that defendant held property on trust for deceased — Trust claim failed — Plaintiff argues conduct of deceased caused litigation — Plaintiff made family provision claim in relation to deceased’s estate, of which defendant is executor — Family provision claim failed — Where family provision claim took up minimal time in hearing — Whether plaintiff should receive her costs out of the estate — Whether defendant should receive his costs out of the estate — Whether defendant in substance was acting in his own interests — Whether defendant should be able to look to plaintiff’s share of estate to satisfy any costs plaintiff does not pay to defendant under costs orders — No issues of principle
CIVIL PROCEDURE – application to strike out plaintiff’s notice to produce – whether notice to produce conforms with r 21.10 of the Uniform Civil Procedure Rules 2005 (NSW)
CIVIL PROCEDURE – judgments and orders – order for possession – writ of restitution – where defendants re-enter property after execution of writ of possession – whether leave to issue writ of restitution should be granted ex parte
CIVIL PROCEDURE – application pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to give evidence from overseas – whether an order would cause unfairness to the plaintiff – whether the applicant knew of the hearing date when making travel arrangements or acquired that knowledge shortly after making those arrangements – delay of around seven months in seeking order and application made shortly prior to the hearing date
CIVIL PROCEDURE – application under the Court Suppression and Non-publication Orders Act 2010 (NSW) − whether the order is necessary to secure the proper administration of justice – statement of claim and interlocutory application remain unserved – application adjourned
COSTS – party/party costs – where Plaintiffs obtained orders for revocation of grant of probate – where Defendant actively opposed the application – general rule that costs follow the event – whether the Defendant is entitled to indemnity from the Estate for his costs including any costs liability to the Plaintiffs – whether the Defendant acted unreasonably
PRACTICE AND PROCEDURE — strike out — failure to plead material facts — embarrassing pleading — limitation and res judicata — unpaid salary, superannuation and stock entitlement — transfer to District Court
CORPORATIONS – statutory demands – applications to set aside – whether genuine dispute as to the amount or existence of the debt – where a statutory demand is set aside on the basis of a genuine dispute – where debt owing in a statutory demand is varied and a declaration is made as to its retrospective effect from the date of service
CIVIL PROCEDURE — application to set aside prior consent orders discontinuing proceedings — orders also sought for production of documents — related proceedings before Court of Appeal — orders refused LEGAL PRACTITIONERS — solicitors — application for reinstatement to roll of solicitors — proceedings discontinued by consent — where plaintiff has also appealed refusal of his second reinstatement application
CONTRACTS — Construction — Shareholders’ Deed amongst shareholders in a company and with the company (Deed) contains an extended definition of shareholder — Deed provides that confidential information in relation to another party’s business must not be disclosed by a shareholder to any prospective purchaser of a share unless the purchaser has entered into a deed of confidentiality with the other shareholders in a form to their reasonable satisfaction and enforceable by any of them — Deed provides that a shareholder is in default if it commits a material Irremediable Breach in which event the directors may by special resolution confirm the default and may give the defaulting shareholder a Default Notice — if such notice is given, the shareholder is taken as wishing to dispose of all of its shares — the Plaintiffs hold or manage shares in the company totalling 27.32% — in the course of a process directed at selling some (but not all) of the shares the Plaintiffs disclosed to potential purchasers and their advisors information confidential to the company — whether in doing so it was acting as “Shareholder” in respect of all shares of its Affiliates — whether it committed a material Irremediable Breach of Deed — directors resolve to confirm the Default and issue a Default Notice — whether Default Notice complies with the requirements of the Deed — whether Default Notice is invalid because the directors were improperly motivated in resolving to give it — Plaintiffs bring proceedings for declaratory relief that they did not breach the Deed and that the Default Notice is otherwise invalid – various Defendants bring cross-claims for declarations that Plaintiffs breached provisions of Deed and on an indemnity for loss included in the Deed — HELD — the Plaintiffs committed a material Irremediable Breach of Deed — directors were not improperly motivated and Default Notice is otherwise valid — proceedings dismissed — cross-claims other than for indemnity dismissed — as relief of no utility — claims for indemnity stood over
CIVIL PROCEDURE — Cross-vesting — application to transfer District Court proceedings to NSW Supreme Court and then to Federal Court of Australia — where defendant consents to transfers subject to conditions as to costs and security
CIVIL LAW – personal injury – legal capacity of plaintiff – application for appointment of tutor – where superficial conflict between expert witnesses – factual issue resolved – tutor appointed – no question of principle CIVIL LAW – substituting insurer for impecunious defendant corporation – no question of principle
SUCCESSION — family provision — claim by plaintiff adult son from mother’s estate — where provision made for plaintiff by way of testamentary trust — where plaintiff and defendant executor/trustee brother estranged — where defendant also a potential beneficiary of the testamentary trust — whether adequate provision made for the proper maintenance, education or advancement in life of plaintiff — nature and quantum of provision to be made — HELD — family provision order made
CIVIL PROCEDURE – application for preliminary discovery pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) – plaintiff seeks access to file held by firm of solicitors to consider whether he may have a cause of action against that firm – solicitors claim lien over file on the basis of unpaid legal costs – unpaid legal costs subject of judgment debt in favour of solicitors against person who is with the plaintiff a co-trustee of a trust – where defendant seeks to enforce lien against plaintiff on the basis of joint and several liability – whether grant of preliminary discovery would have effect of circumventing solicitor’s lien
CORPORATIONS – statutory demand – application to set aside – whether genuine dispute as to quantum and existence of taxation debt – where PAYG withholding and business activity statements –no supporting evidence – application dismissed
CIVIL PROCEDURE – cross-vesting – transfer to Federal Circuit and Family Court of Australia – whether in interests of justice – where claims concern matters within expertise of the Supreme Court – considerations of delay CIVIL PROCEDURE – order for production of documents – no evidence served – no notice to produce – no application for discovery
COSTS – application after proceedings dismissed for want of due despatch – whether costs ought to follow the event – whether gross sum costs order should be made
COSTS – costs assessment – appeal from costs review panel – associated third party payer – where plaintiff seeks to add defendant – issue estoppel – abuse of process – where cross-appeal out of time
CIVIL PROCEDURE — application to strike out — where Plaintiff claims damages for loss of the value of a business owned by a company which he owned — HELD — he has no cause of action — any cause of action is in the hands of the Company — proceedings dismissed
CIVIL PROCEDURE — Default judgment — Specific performance of contract for sale of land — Defendant vendor failing to enter appearance — Whether plaintiff entitled to specific performance on admitted pleadings — Discretion to grant equitable relief
CIVIL PROCEDURE – application for approval of a settlement by a person under a disability –shortcomings in the material provided precluding a determination of whether the compromise is in the best interests of the plaintiff – restatement of aspects of the accepted procedure when seeking the Court’s approval of compromises of actions by persons under a disability – the reliance of the Court on the written opinion from counsel in a settlement approval and the requirement for the opinion to be comprehensive, detailed and reasoned, and based upon all the facts relevant to the plaintiff’s claim – discussion of the responsibility of those who represent parties under a disability when expressing a view as to settlement
CIVIL PROCEDURE – Medical Examinations – order sought for examination of plaintiff by occupational therapist – where primary dispute concerns plaintiff’s claim for compensation for harms resulting from workplace injury and resulting chronic pain condition and PTSD – where defendant seeks leave to obtain and serve an occupational therapist report on plaintiff, and orders the plaintiff attend an examination by an occupational therapist arranged on the defendant’s behalf – weight to be accorded to evidence on behalf of plaintiff about possible impact of examination – whether balance of considerations favour ordering the examination
SENTENCING — Sentence after re-trial — Constructive murder — Relevant factors on sentence — Victim impact statement — Hardship to family members — Delay — Quasi-custody — Where the offender has achieved substantial rehabilitation and maturation and is unlikely to reoffend — Whether the offender is at a “cross-roads” — Whether the ceiling principle applies — Parity with co-offender — Facilitation of the administration of justice
SUCCESSION — executors and administrators — application for dismissal of proceedings for want of due despatch pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) and barring order pursuant to s 93(2) of the Probate and Administration Act 1898 (NSW) — where defendant is the executor of the estate of deceased and publishes a notice of intended distribution of the deceased’s estate under s 92 of the Probate and Administration Act — where plaintiff subsequently notifies defendant of intended claim against the deceased’s estate — where defendant serves plaintiff with notice under s 93(1) of the Probate and Administration Act — where plaintiff subsequently commences proceedings against the defendant in her capacity as executor — where plaintiff has repeatedly failed to comply with directions made after close of pleadings for the service of the plaintiff’s affidavit evidence in chief and these proceedings have not progressed for seven months as a result of that non-compliance — whether the proceedings should be dismissed for want of due despatch pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) — whether Court has jurisdiction under s 93(2) of the Probate and Administration Act to make an order barring the plaintiff’s claim as against the defendant executor on the ground that the plaintiff is not prosecuting the claim despite having commenced proceedings — whether barring order ought to be made and, if so, on what conditions
JUDICIAL REVIEW — Building and Construction Industry (Security of Payment) Act 1999 — Adjudicator's rejection of documents in adjudication response as not duly made under s 22(2)(d) — Documents post-dating payment schedule — Whether erroneous rejection of duly made submissions constitutes jurisdictional error — Held not jurisdictional JUDICIAL REVIEW — Natural justice — Adjudicator's decision to exclude documents on ground not raised by either party — Whether denial of procedural fairness — Held denial of procedural fairness — Whether material — Severance under s 32A
COSTS – party/party costs – where the Plaintiff had substantial success in the proceeding – whether there should be apportionment of costs in respect of any issue on which the Plaintiff failed INTEREST – whether there should be an award of interest – whether the Plaintiff has been kept out of the money – whether the Plaintiff has incurred a liability for interest by reason of not receiving payments from the Defendant in respect of his incurred liabilities
REAL PROPERTY — leases — assignment of lease — landlord’s consent to assignment — whether consent unreasonably withheld — tenant seeking to transfer lease as part of sale of caravan park business — where landlord has failed to engage or provide consent — orders for execution of documents by registrar if defendant fails to exercise
CIVIL PROCEDURE – preliminary discovery – to identify potential cause of action – order for further and better preliminary discovery consequent upon cross-examination on affidavit verifying list of documents
CIVIL PROCEDURE — Hearings — Adjournment — Application to vacate two-week final hearing in light of earlier ruling that second defendant’s affidavit may be used despite him not being present for cross-examination — Plaintiff filed Summons seeking leave to appeal — Where final hearing commences in two working days from the time of the motion being filed and heard and one working day from the date of this judgment — Whether the hearing should be vacated — No issue of principle
LAND LAW – Easements – Particular easements – Rights of way – Defendant interfered with Plaintiffs’ exercise of rights of carriageway – injunctions granted and damages awarded – no issue of principle
CRIME – murder – trial procedure – application to discharge jury – where witness volunteered evidence which could be misused as an admission the accused did not act in self-defence – where evidence was not responsive to the question asked – accused's comment understood in context not an admission – potential remedies – remedy proposed to recall witness to contextualise the evidence and provide direction – remedy proposed does not eliminate risk of prejudice – jury discharged
CRIMINAL PROCEDURE – trial – jury – application to discharge jury – duty of disclosure – where contents of deceased’s mobile telephone disclosed in second week of trial – unsatisfactory situation – egregious breach – prejudice – further interruption to trial – sufficiency of time available to accused’s representatives to consider material – necessity – fair trial not a perfect trial – application refused CRIME – murder
CRIMINAL PROCEDURE – warrants – arrest – power to deal with persons arrested on bench warrant – application of Bail Act 2013 (NSW) – contempt of court– s 308, s 312 Criminal Procedure Act 1986 (NSW) – inherent power MENTAL HEALTH – jurisdiction – Supreme Court – where defendant appears to be mentally ill person or mentally disordered person – application of Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 21(1)(b) – inherent power – detention – order for assessment CRIME – murder
EVIDENCE – witness evidence – refreshing memory – in court – application for leave to use document to revive witness memory – s 32(1) Evidence Act – leave granted – application for leave to read aloud contents of document – s 32(3) Evidence Act – importance of evidence to Crown case – unfairness to accused – s 192 Evidence Act – leave refused
CIVIL PROCEDURE — application pursuant to r 6.31 of the Uniform Civil Procedure Rules 2005 (NSW) to dismiss proceedings following death of plaintiff — order made — no issue of principle
CIVIL PROCEDURE – proceedings commenced by next friend on behalf of person under legal incapacity – settlement application – best interests of person under legal incapacity – settlement approved – no issue of principle
EVIDENCE – evidence on commission – application pursuant to s 32 of the Evidence on Commission Act 1995 (NSW) – request from the 14th Family Court of Izmir in the Republic of Turkiye for the examination of a witness – no question of principle
CONTRACT — Construction — Where a Business Sale Agreement contract provides for apportionment of a purchase price to equipment, goodwill and other assets less “Less Encumbrances” and all figures to be updated “upon receipt of payout figures for the Encumbrances for all financed equipment” and to be confirmed on Settlement Date — Where at the date of sale the Vendor is party as borrower/lessee to a number of finance agreements relating to cranes on which both principal and interest are payable — Where before Completion the finance agreements are novated to the Purchasers — Where financier provides payout figures before Completion which include principal and interest component — Where figures are not confirmed on Settlement Date but are not in dispute — Where Purchaser calculates purchase price and pays on the basis of the payout figures – Vendor contends that because of the novation the adjustment for Encumbrances should be principal only and no interest and brings proceedings for declaratory relief and payment to it of the interest component of the adjustment — HELD — The adjustment for Encumbrances includes both principal and interest component and absence of confirmation on Settlement Date is no bar to the Purchaser’s claim for adjustment including interest component — Proceedings dismissed
CIVIL PROCEDURE – Hearings – Suppression and non-publication orders – where plaintiff seeks leave to file an unredacted statement of claim with orders that it be sealed and access limited – where plaintiff wishes to sue defendant for negligence but asserts that the unredacted statement of claim discloses privileged communications which may prejudice a third party claim – whether institution of proceedings against former solicitor waives client legal privilege – whether plaintiff’s communications or conduct have remained consistent with preservation of confidentiality – whether the plaintiff demonstrated that it is necessary to prevent prejudice to the administration of justice to make the orders sought by the plaintiff
CIVIL PROCEDURE – Stay of proceedings – Pending Appeal – where informal application for a stay is made – where application is not opposed – stay granted on strict terms that require the matter to be brought promptly before the Court of Appeal COSTS – Party/Party – order that the first and second defendants bear 70% of the first plaintiff's costs assessed on the ordinary basis – no issue of principle
CIVIL PROCEDURE — where plaintiff delayed overseas and unable to attend in person — determination on the papers at suggestion of plaintiff and with consent of the parties CIVIL PROCEDURE — leave sought to amend statement of claim — unrepresented litigant –— importance of adhering to pleading requirements — where plaintiff already had attempted to fix pleading — where deficiencies in form and substance are not rectified by proposed pleading CIVIL PROCEDURE — application by defendant to strike out statement of claim
PRACTICE AND PROCEDURE – pleadings – strike out – inadequate particularity of allegations of serious misconduct – defences – lack of clarity as to bases of denials – procedural fairness – s 56 Civil Procedure Act 2005 (NSW)
INSURANCE — insured manufactures health care products and infant formula — COVID-19 pandemic — insured decides to make hand sanitiser — insured also seeks industrial special risks (ISR) policy with $26.8 million limit of indemnity — insured imports bulk ethanol, exceeding capacity of dangerous good area — ethanol placed next to factory — fire — total loss — whether insured entitled to indemnity. BROKERS — broker arranges ISR policy — insured changes broker — former broker cancels policy — whether authority to cancel policy — principles at [202]-[205] — policy remained on foot. DUTY OF DISCLOSURE — agreement to vary the contract — s 11(9), Insurance Contracts Act 1984 (Cth) — policy schedule and wording completely replaced — scope of duty of disclosure — principles at [219]-[222] — duty applied to matters material to whole contract — whether duty of disclosure complied with — s 21(1)(b), Insurance Contracts Act — principles at [301]-[305] — duty not complied with. WAIVER — s 21(2)(d), Insurance Contracts Act — principles at [277]-[283] — no fair presentation of the risk — insurer not put on enquiry. ENDORSEMENT — unintended or inadvertent non-disclosure — proper construction at [236]-[239]. ENDORSEMENT — alteration in risk — whether alteration “neither known to nor made by an officer of the Insured who is responsible for Insurance” — proper construction at [249]-[257]. INSURANCE — remedies — whether insurer entitled to reduce liability to nil under s 28(3), Insurance Contracts Act — whether insurer entitled to refuse to pay insured’s claim under s 54(2), Insurance Contracts Act — principles at [323]-[325] —insurer entitled to relief sought. ADMISSIONS — ss 81, 87, Evidence Act 1995 (NSW) — principles at [25]-[32] — deponent not a party to proceedings nor employee of a party — plaintiffs part of corporate group which employed deponent — deponent did not thrust himself on the court to give evidence in the plaintiffs’ case but was chosen by them — “reasonably open to find” that he had authority to make admissions. JONES v DUNKEL — inference where onus of proof is not on you — principles at [14]-[18] — inference may still be drawn.
CRIMINAL LAW — evidence — admissibility of admissions not recorded electronically — whether admissions were made in the course of official questioning — whether reasonable excuse for failure to record
EVIDENCE — murder trial — tendency evidence — preliminary issues — admissibility of tendency evidence — where much of the tendency evidence the Crown seeks to adduce is evidence of conduct subsequent to the alleged murder — questions of legitimacy of ex post facto reasoning — whether the evidence has significant probative value — whether the probative value of the evidence outweighs the danger of unfair prejudice to the accused
CORPORATIONS – ratification of relationship of agency by a person who had ceased to be a director – whether ratification is possible – whether ratification genuine – whether ratification not effective because director a puppet for another person who could not be a director – s 206A Corporations Act 2001 (Cth) – ratification established – s 1322 relief unnecessary EQUITY – interlocutory injunction – restraint from dealing with disputed shares – balance of convenience – undertaking as to damages –injunction granted PRACTICE AND PROCEDURE – subpoenas – legitimate forensic purpose – subpoenas set aside in part EVIDENCE – privilege – client legal privilege – whether privilege established – whether privilege lost by reason of misconduct – inspection by court – privilege upheld in part
ADMINISTRATIVE LAW — Ground of review other than procedural fairness — No evidence — Decision to refuse application to revoke appointment of guardian ad litem for plaintiff mother CIVIL PROCEDURE — Parties — Persons under legal incapacity — Neither Court nor litigant in person assisted by AI generated “script” and submissions
CIVIL PROCEDURE — joint and several guarantees — where cross-claim brought against both guarantors — where claim not served on defendant and proceedings discontinued — whether pursuit of further proceedings against defendant an abuse of process — abuse established
CIVIL PROCEDURE — Separate determination of questions — Application by first and second defendants for claims by plaintiff against them to be determined separately from all other issues — Evidence that second defendant is chronically ill and is experiencing severe physical and significant psychological symptoms — Suggestion that plaintiff’s claims against only two of the five defendants, third and fourth defendants, can be heard — Whether in the interests of justice to sever plaintiff’s claim against first and second defendants from the remainder of the proceedings — No issue of principle EVIDENCE — Affidavit evidence — Application by first and second defendants to use affidavit evidence without second defendant being present for cross-examination — Evidence that second defendant is chronically ill and is experiencing severe physical and significant psychological symptoms — Whether the first and second defendants should be permitted to use the second defendant’s affidavit evidence without being present for cross-examination — Consideration of scope of r 35.2 of the Uniform Civil Procedure Rules 2005 (NSW) and its interaction with the hearsay rule in the Evidence Act 1995 (NSW) CIVIL PROCEDURE — Hearings — Adjournment — Application to vacate two-week trial in light of the inability to cross-examine a defendant — Where that defendant’s evidence is important to the real issues in dispute — No issue of principle
HIGH RISK OFFENDERS — preliminary hearing — application for Interim Supervision Order — whether defendant poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under a supervision order
CIVIL PROCEDURE — application for interim payment under s 82 of the Civil Procedure Act 2005 (NSW) — whether the plaintiff would obtain judgment for substantial damages if the proceedings went to trial — where defendant consents to interim payment — approval of settlement under s 76 of the Civil Procedure Act 2005 (NSW)
WORKERS COMPENSATION — judicial review of Personal Injury Commission Appeal Panel decision — s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — cl 11 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment — whether s 323 was misapplied — deduction for a pre-existing condition — whether Panel’s reasons were inadequate — matter remitted to Personal Injury Commission
CIVIL LAW – ex parte application to examine witness at request of Spanish Court – whether witness should have a right to be heard – where rules do not contemplate the witness be joined – where scope of questions limited to three questions – application granted
CIVIL LAW – where proceedings not authorised by named plaintiff – where proceedings commenced by one time solicitor in attempt to review costs assessment – proceedings dismissed – whether conduct should be referred to Legal Services Commissioner – procedural fairness – no referral where parties can lodge complaint
CIVIL LAW – urgent application – judicial review of the decision of District Court – notice of motion restraining Revenue NSW from suspending driver’s licence – where District Court dismissed appeal – where District Court refused to state a question of law to Court of Criminal Appeal – no jurisdiction in single Judge of the Court – matter removed to Court of Appeal
CIVIL PROCEDURE — Interim preservation — Freezing orders — Against third parties — No question of principle EQUITY — Trusts and trustees — Powers, duties, rights and liabilities — Whether trustee may limit its otherwise unlimited liability under a deed of indemnity to only the assets of the trust — Helvetic Investment Corporation Pty Ltd v Knight (1984) 9 ACLR 773, applied COSTS — Gross sum costs orders — No question of principle
COSTS – party/party – orders when proceedings involve multiple parties – Bullock and Sanderson orders – where offers of compromise made and rejected – whether Bullock or Sanderson order should be made – whether unsuccessful defendant should be ordered to pay costs payable by plaintiff to the successful defendant – whether plaintiff should be ordered to pay costs of the successful defendant
PRACTICE AND PROCEDURE – application for interim injunctions restraining alleged breaches of express and implied terms of licence agreement between physician and plaintiff which operated a cosmetic surgery clinic – application for interim injunctions restraining alleged breaches of express and implied terms of employment agreement between receptionist and plaintiff – application for interim injunctions restraining alleged misuse of confidential information in breach of contractual and equitable duties of confidence – whether serious question to be tried – balance of convenience.
CONTEMPT — Civil contempt — Procedural requirements — Various procedural defects —Service — Personal service — Where personal service has not been effected — Where statement of charge not filed with notice of motion — Where plaintiff did not inform Court of procedural defaults — Whether personal service requirements should be dispensed with — Whether contemnor clearly informed of charge against him EQUITY — Equitable remedies — Injunctions — Whether a right is threatened or has already been infringed so as to show a threat of future infringement
CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence — Whether pleadings disclose a reasonable cause of action — No issue of principle CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Eighth and ninth defendants purchased residential property — Residential property was sold by first defendant, former trustee in bankruptcy of the plaintiff, in capacity as chargee — Plaintiff makes allegations against various defendants in relation to the circumstances of the sale of the property — Plaintiff alleges eighth and ninth defendants purchased the property in circumstances where they had knowledge or notice of the alleged conduct of other defendants — Whether plaintiff’s claim against eighth and ninth defendants should be summarily dismissed — No issue of principle
SUCCESSION — Contested probate — Lack of knowledge and approval — Suspicious circumstances — Italian family — Claim by eldest daughter of the deceased — Where estate was left entirely to youngest daughter — Where will states “I wish to treat my two daughters equally” — Where deceased provided multiple properties to each daughter throughout his lifetime — Where defendant provided a lot of care and assistance to the deceased — Where statutory declaration two years after will executed affirms intentions — Whether terms of will are internally inconsistent — Whether terms of statutory declaration are internally inconsistent — Whether will is a substantial change from previous wills — Whether changing solicitors is a suspicious circumstance — Whether age of deceased without physical or mental frailty is a suspicious circumstance — Whether will being in English not Italian is a suspicious circumstance — Whether using anglicised legal name of daughter in will is a suspicious circumstance — Whether deceased knew and approved of will SUCCESSION — Family provision — Claim by eldest daughter of the deceased — Plaintiff received no provision in the will — Where plaintiff has significant property holdings, including investment properties and holiday homes — Where plaintiff received several properties from the deceased during his lifetime — Where defendant provided greater care and assistance to deceased — No issue of principle
CRIME – Confiscations – Restraining order – orders made pursuant to Criminal Assets Recovery Act 1990 – where order is sought ex parte over all of a defendant’s assets anywhere in the world – where defendant is living in community on bail – whether Court should defer consideration of s 10B(3)(a) until the first return date – whether Court has power to make allowance for reasonable living expenses under s 10B(3)(a) in an ex parte application before receiving evidence from the defendant about what his living expenses are or the size of the total restrained asset pool – finding that Court’s discretion under s 10B(3)(a) allows for the Court to exercise its discretion to allow for reasonable living expenses when making ex parte orders – approach to be adopted to determine allowance for living expenses in absence of specific proposed expenses
NEGLIGENCE – workplace accident in coal mine – plaintiff travelling in front passenger seat of specialised mining vehicle – driver of vehicle a labour hire worker – plaintiff an employee of the mine operator – vicarious liability – pro hac vice employment – contributory negligence – assessment of damages – where plaintiff’s earning capacity disputed – assessment of residual earning capacity – assessment of claims for care – chance of future surgery
CIVIL PROCEDURE — non-publication orders — high risk offender application — where extended supervision order not imposed — where notoriety of offending has caused significant media publicity — whether non-publication order with respect to applicant’s identity is necessary to protect his rehabilitation — no prejudice to administration of justice — public interest in open justice not significantly outweighed — motion dismissed
HIGH RISK OFFENDERS — Interim Supervision Order — index offence of manslaughter by unlawful and dangerous act — whether there is an unacceptable risk of committing a serious violence offence — where expert evidence challenged in the preliminary hearing — where low risk of serious offending but potentially catastrophic consequences — summons dismissed
CRIMINAL PROCEDURE — Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 — application to reopen proceedings to seek registrable person order — where parties ought to have sought registrable person order during proceedings pursuant to Child Protection (Offenders Registration) Act 2000 (NSW), s 3C(1) — application granted
SUCCESSION — Family provision — Costs — Prospective costs capping orders — Novel contested application for costs capping in small estate post-mediation and prior to completion of interlocutory steps before allocation of any hearing date — No precedents of contested family provision capping orders being made at an early interlocutory stages — Parties’ current actual costs total $62,416 incl GST being approximately 46% of net estate of $135,674 — Held cost capping order is appropriate (amount that any party may recover from any other party, or out of the estate in these proceedings limited to $22,500 incl GST) SUCCESSION — Family provision — Prospective costs capping —Examination of and guidance regarding costs capping in civil litigation— Examination of family provision costs by reference to nature and purpose of the jurisdiction legislative and practice provisions, differences between family provision costs and costs in other civil litigation SUCCESSION — Family provision — Examination of historical antecedents of costs capping following final hearing of family provision claims — Consideration of quantum of costs in “standard” family provision and ‘uplift’ referable to success in conditional cost agreements SUCCESSION — Family provision — Prospective costs capping — Consideration and discussion of costs capping at early interlocutory stage — Consideration of what is ‘proper’ and ‘proportionate’ — The basis for early interlocutory capping may be justified by various sources including r 42.4 UCPR, s 98(1)(b),(3) CPA and s 99 Succession Act — Evidentiary and other materials discussed SUCCESSION — Family provision — Prospective costs capping — Prospective capping must be legally principled and involves an evaluative determination of relevant matters including proportionality considerations rather than being determined by fixed percentages or rules of thumb — The capping power serves various objectives including ensuring that the purposes of family provision jurisdiction are not frustrated or thwarted —There needs to be a sufficiency of materials on which the Court is able to make the evaluative assessment in which having regard to the nature of the process precision or exactitude is not possible or warranted and there may be a range of appropriate capping outcomes based on the evaluative assessment. SUCCESSION — Family provision — Prospective costs capping — interlocutory costs capping orders under UCPR r 42.4 are subject to later variation where there are ‘special reasons, and it is in the interests of justice to do so’ — Comment (obiter) regarding ‘special reasons’ and ‘interests of justice’ SUCCESSION — Family provision — Discussion of party and practitioner obligations in light of legislative reform and cost concerns especially in small estates WORDS AND PHRASES — ‘Proportionality’, ‘Costs capping’ ‘Maximum costs’ ‘Protective costs order’
SUCCESSION – Rights of burial or cremation – Nature and purpose of Court’s inherent jurisdiction – Determination of claim by daughter of deceased to have carriage of the cremation of the body of the deceased, who passed away more than a year ago, over the objection of the deceased’s wife who wishes for the State Coroner to investigate the death of the deceased – Where State Coroner declined to exercise coronial jurisdiction in relation to the death of the deceased in July 2025 and no application has been made to the Court for an order under Chapter 7 of the Coroners Act 2009 (NSW) that an inquest be held concerning the death of the deceased
CORPORATIONS – Directors – Indemnity for liabilities incurred as a director – where plaintiff is former director of defendant - where leave granted to shareholder of defendant to bring claim against plaintiff for breach of duties as director – where ancillary proceedings brought in Italy to protect prospective judgment in Australia – where plaintiff and defendant were parties to a deed – whether indemnity clause in deed applies to costs incurred by plaintiff in defending proceedings – whether defendant is obliged, pursuant to deed, to advance reasonable costs expected to be incurred in defending the proceedings
ADMINISTRATIVE LAW — Whether reviewable error of law — Jurisdictional fact — Non-statutory executive power — Whether unlawful for defendant to maintain a final Service Check Register entry in relation to the plaintiff because the terms of a deed of settlement undermined the “jurisdictional fact” upon which the entry depended — Where reliance on notion of “jurisdictional fact” misplaced — No reviewable error established
CONTRACTS — Remedies — Specific performance — where the owner of a venue purports to terminate a venue hire agreement with event producers —where the event producers seek specific performance of the venue hire agreement — HELD — specific performance inappropriate — claim for specific performance dismissed — remainder of the proceedings transferred to the District Court
COSTS — gross sum costs orders — whether gross sum costs order ought be made that Director of Public Prosecutions pay plaintiff’s costs of and incidental to proceedings to date — where plaintiff self-represented and not entitled to recompense for value of time spent in litigation — where costs entitlement limited to disbursements — where no evidence filed as to costs incurred by way of disbursements
CORPORATIONS – application for rectification of trust deed – whether relevant intention was that of the settlor or the trustee – content of relevant intention – where by mistake the trustee could not benefit from the trust – rectification of trust deed – undertaking to provide reasons to Commissioner of State Revenue
CORPORATIONS – schemes of arrangement – application for orders approving schemes of arrangement – where statutory majorities for each scheme have been achieved – where each scheme is fair and reasonable – orders made approving schemes of arrangement
COSTS – party/party – general rule that costs follow the event – application of the rule where no determination on the merits – no order as to costs of hearing
CIVIL PROCEDURE – summary disposal – whether the proceedings should be dismissed on the basis that no cause of action is disclosed – whether damage allegedly suffered has been properly or adequately pleaded
CIVIL PROCEDURE – parties – interveners – application by Commonwealth to intervene – where plaintiffs challenge decisions of High Court Registrars – whether Commonwealth should be granted leave to intervene as proper contradictor pursuant to the Hardiman principle
EVIDENCE — discretions — exclusion of evidence — whether evidence relevant — whether probative value of evidence outweighed by danger of unfair prejudice— where there was a danger the jury would misuse evidence unfairly for propensity reasoning CRIMINAL PROCEDURE — trial — jury — application to discharge jury — where Crown’s opening statement on first day of trial included evidence which was subsequently excluded — where application was made very early in the trial — where there was a “high degree of need” to discharge jury to avoid prejudice — jury discharged
ESTOPPEL — Proprietary estoppel — Equitable estoppel — Whether representations made out in fact — Representations predating alleged promise purely contextual — Detrimental reliance predating alleged promise — Whether detrimental reliance objectively reasonable — Estrangement from promisor inconsistent with continued reliance CIVIL PROCEDURE — Leave to amend statement of claim — Repleaded proprietary estoppel claim — Whether proposed amended claim discloses arguable cause of action — Material facts of detrimental reliance pleaded as particulars rather than in body of pleading — Overuse of declaratory relief — Leave to amend refused
CHILD WELFARE – adoption – whether adoption order is clearly preferable in best interests of the child – whether change of name should be approved – whether consent dispensation orders should be made against the birth parents – where birth mother does not oppose adoption – where birth father cannot be identified after reasonable inquiry – where child has lived with proposed adoptive parent since birth – where it is appropriate to dispense with the requirement for the birth parents’ consent – change of name to be approved – adoption orders to be made
COSTS – solicitor/client – recovery of costs by the plaintiff’s former solicitor from the plaintiff – extensive work undertaken by the applicant, the plaintiff’s former solicitor prior to the final hearing of family provision proceedings – plaintiff’s solicitor notified defendant’s solicitor of its claimed fruits of action lien in respect of any settlement proceeds reached or order made – parties reached a settlement to resolve the proceedings following plaintiff’s solicitors’ termination of retainer – defendant’s solicitors continued to assist in the preparation of settlement documentation - consent orders provided to the Court dismissing the proceedings with no order as to costs – neither the defendant nor his solicitor claimed to understand there to be any fruits of litigation, despite an agreed payment from the defendant to the plaintiff – a deed of release between the parties provided for payment by the defendant to the plaintiff of $185,000 – whether the plaintiff’s solicitor can recover the balance of outstanding fees from defendant – applicant entered deed of release for part payment of fees outstanding on basis of a representation there were no fruits of the litigation – whether the applicant solicitors can recover the balance of their costs from the estate fund payable to the plaintiff. EQUITY – Equitable Lien – whether causal link between the plaintiff’s solicitors’ efforts and the recovery of costs – whether sufficient notice of the lien was given by the plaintiff’s solicitor to the defendant.
CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where leave required under the Felons (Civil Proceedings) Act 1981 (NSW) – no issue of principle
CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where leave required under the Felons (Civil Proceedings) Act 1981 (NSW) – expectation that affidavit will explain need to file statement of claim without accompanying application for leave
CIVIL PROCEDURE – commencement of proceedings – leave to commence action – where leave required under the Felons (Civil Proceedings) Act 1981 (NSW) – no issue of principle
CIVIL PROCEDURE – summary disposal – judgment for plaintiff – where plaintiff seeks order for possession on an urgent basis pending settlement of contract for the sale of land – where defendants assert equitable interest – no issue of principle
CIVIL PROCEDURE – hearings – adjournment – where defendant seeks adjournment of summary judgment application seeking possession of land – where land is subject to a contract for sale – looming settlement date – potential prejudice to rights of third parties if adjournment was granted
CRIMINAL PROCEDURE – application to exclude evidence on the basis of s 137 of the Evidence Act 1995 (NSW) – whether s 130A of the Criminal Procedure Act 1986 Act (NSW) precludes application on the basis of an earlier ruling
CRIMINAL PROCEDURE – trial – case management – where Commissioner of Police seeks short stay of orders for the production of documents under subpoena to appeal decision dismissing claim for public interest immunity – short stay not opposed by accused
CORPORATIONS — Winding up — Liquidators — Remuneration – remuneration approved EQUITY — Trusts and trustees — Judicial advice - Payment of trust funds into Court – where the liquidator has been unable to identify the beneficial owner of the funds – held, the liquidator should inform all interested parties and seek the Court's advice that he would be justified in disregarding any claim which has not been made within time, and in distributing the funds according to such determination as he might reasonably make having regard to the claims made and the available evidence
PROCEEDS OF CRIME – Practice and procedure – application to limit scope of an examination under s 180 of the POC Act – application for non-dissemination orders under s 266A of the POC Act – orders restricting the publication of the reasons for judgment – costs orders.
PROCEEDS OF CRIME – application for forfeiture order in respect of cash found in automotive garage premises – lessee of garage disavowed ownership – public canvassing to ascertain true owner unsuccessful despite overwhelming response to Facebook and Twitter releases – order for forfeiture made
APPEALS — appeal from a decision of the Local Court — where summons filed in the wrong court but within time — whether leave should be granted to appeal out of time APPEALS — appeal from decision to summarily dismiss amended statement of claim — where primary Judge ruled that proceedings were statute-barred — whether plaintiff was given adequate chance to consider defendant’s Limitation Act 1969 (NSW) argument APPEALS — appropriate relief — where amended statement of claim fails to properly identify cause of action — whether inadequacy a standalone reason for summary dismissal — whether plaintiff should be given further opportunity to plead the claim
SUCCESSION – Wills, Probate and Administration – Application to revoke grant of probate and to appoint an independent administrator – where consent orders previously made regarding sale of real property and distribution of proceeds – where property found to be contaminated with asbestos – where disputes between executors regarding steps to be taken as a result of contamination – where delay and lack of co-operation between executors – where administration of estate has effectively stalled – held: relief granted
CORPORATIONS – applicability of set-off provisions – how set-off provisions under s 553C of the Corporations Act 2001 (Cth) operate when an insolvent company is trustee – whether mutuality exists between partnerships and trustee company – where trustee company held debts on trust for benefit of unitholders – where partnerships could have had right of subrogation regarding trust assets – where claims do not sufficiently engage beneficiary unitholders – no mutuality – s 553C not engaged – orders to be made
COSTS — security for costs — third application for security — whether material change in circumstances since earlier applications — where no new material that could not reasonably been advanced earlier — relevance of arbitral award registered as judgment but stayed pending challenge — alleged concession on inability to pay judgment debt — increased costs assessment not separated between defence and cross-claim — security refused
HIGH RISK OFFENDERS — interim supervision orders — application for interim supervision order — whether an express requirement of reasonableness is appropriate in supervision order conditions.
COSTS — appeal from review panel — where review panel rejected grounds of review by reference to costs assessor’s determination — whether review panel misapprehended the nature and function of review — whether review panel approached review on the basis that it needed to find error with the costs assessor’s determination COSTS — appeal from review panel — whether fair and reasonable — duplication of billed work — relevance of solicitors’ professional obligations on reasonableness of costs
CIVIL PROCEDURE — Discontinuance — Leave to discontinue proceedings under UCPR r 12.1(2) — long-running proceedings involving interlocutory injunctions — whether leave should be conditioned on compensation for loss caused by interlocutory orders — no undertaking as to damages originally given — compensation confined to proven loss referable to interlocutory injunctions and recoverable only on separate application — rejection of claim for “equitable damages” absent recognised cause of action COSTS — UCPR r 42.19 — prima facie entitlement of defendants to costs on discontinuance — whether indemnity costs warranted by alleged misconduct of plaintiff — no order as to costs except to extent previously dealt with.
OCCUPATIONS — Legal practitioners — Solicitors — Professional negligence — Where solicitor acted for client in special leave application and ultimately appeal to the High Court — Whether solicitor negligent in failing to advise client that appeal bound to fail — No question of principle OCCUPATIONS — Legal practitioners — Retainer — Whether solicitor should have acted for the client in matters outside the retainer agreement — No question of principle ESTOPPEL — Res judicata — Merger — Finality NEGLIGENCE — Damages — Exemplary, punitive and aggravated damages JUDGMENTS AND ORDERS — Declaratory relief — Where client seeks declarations that solicitor has breached various provisions of the Legal Profession Uniform Law (NSW) — Whether client has made out the basis for seeking declaratory relief — Whether any utility in making such declaration — No question of principle
CORPORATIONS – voluntary administration – whether Corporations Act 2001 (Cth) s 440B applies – whether notice under s 260‑5 of Schedule 1 to the Taxation Administration Act 1953 (Cth) creates security interest – whether passive receipt constitutes enforcement – statutory charge – no enforcement – power under s 447A to modify operation of Pt 5.3A – relief to be granted under s 447A
CONTRACTS – Construction – Master Franchise Agreement – Renewal clause of Master Franchise Agreement – Directors’ decision not to renew – Whether the requirements under agreement were satisfied CONTRACTS – Interpretation – Whether each of the directors formed an “honest and reasonable” opinion that renewal of the Master Franchise Agreement would not be in the best interests of sub-franchisees – Appropriate interpretation of “honest and reasonable” – Whether that opinion was the “substantial grounds” for deciding non-renewal – Where the contemporaneous record of meeting did not detail the reasons or decision-making process – Where report prepared by COO for the board meeting was considered by the directors – Where conduct of the master franchisee was in breach of the Master Franchpise Agreement CONTRACTS – Remedies – Damages – Calculation of damages for breach of contract – Relevant principles for determining damages for loss of a valuable commercial opportunity – Appropriate calculation of damages based on the parties’ competing expert evidence CIVIL PROCEDURE – Inappropriate provision of unrequested supplementary submissions
SUCCESSION – Family Provision – Claims by adult children – Estrangement not absolute bar to the making of a family provision order – Respect nevertheless due to testamentary intentions of the deceased
CIVIL PROCEDURE — Application to take evidence by video link — whether permissible under Chinese law — Held permissible to take evidence by video link from Hong Kong PRIVATE INTERNATIONAL LAW — Enforcement of judgment at common law — Judgment on loan agreement — Defence of fraud — Alleged sham document — Defence of fraud fails PRIVATE INTERNATIONAL LAW — Enforcement of judgment at common law — Judgment on loan agreement — Natural justice — Whether defendant had actual notice or due notice of foreign proceedings — Service effected through public service announcement under Chinese law — Authority cautioning against foreign modes of service not involving personal notification being sufficient notice — Defendant failed to prove absence of actual notice
CRIME – Sentence – murder – wound with intent to cause grievous bodily harm – offences committed with the use of a knife – unplanned impulsive conduct – intention to inflict grievous bodily harm – where a plea of guilty to manslaughter was rejected – facilitation of the administration of justice – young Aboriginal offender – significant reduction in moral culpability
EQUITY – Where plaintiff sought interim injunction prohibiting defendant from acting on its letter to the plaintiff terminating or purporting to terminate a Sub-Aggregator Agreement between the plaintiff (as Sub-Aggregator) and the defendant (as Aggregator) – Where plaintiff established serious questions to be tried – Consideration of balance of convenience – Interim injunction granted.
HIGH RISK OFFENDER – final hearing – application for extended supervision order (ESO) – application for ESO is not opposed by the defendant – where the defendant had been subject to a previous ESO – where the defendant has a history of non-compliance with supervision – where there is a relationship between drug use and the risk posed by the defendant – where the court is satisfied that the defendant poses an unacceptable risk of committing a serious violence offence if not supervised – ESO granted
WORKERS COMPENSATION — damages for personal injury — Workers Compensation Act 1987 (NSW) ss 151A and 151Z — past medical expenses excluded from damages against third party tortfeasor as no loss suffered by plaintiff — whether damages should be adjusted in accordance with the formula from Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 — whether employer tortfeasor able to recover from third party tortfeasor under s 151Z WORKERS COMPENSATION — interest on damages against first defendant under Civil Liability Act 2002 (NSW) s 18 — whether plaintiff entitled to interest on damages against second defendant under Workers Compensation Act 1987 (NSW) s 151M — where plaintiff’s dishonesty prevented assessment of a reasonable offer TORTS — contribution between joint tortfeasors — must relate to the “same damage” COSTS — Uniform Civil Procedure Rules 2005 (NSW) r 42.34 — where plaintiff has obtained judgment less than $500,000
HIGH RISK OFFENDER – revocation of extended supervision order – variation of extended supervision order – where risk profile remains unchanged – where defendant has spent significant time in custody due to breaches of extended supervision order – lack of stability in the community – conditions interfering with rehabilitation
CIVIL LAW – costs – high risk offender – where application for interim supervision order dismissed – where summons not dismissed and experts appointed – mixed outcome on preliminary hearing – identifying the “event” for the purpose of applying general rule as to costs – whether costs of preliminary hearing should be paid “forthwith”
LOANS – whether single or multiple loans – where evidence goes beyond documents – Manzi v Smith distinguished – whether agreed contractual interest – whether payments appropriated to principal or interest EVIDENCE – credibility and reliability – whether signature authentic LIMITATION OF ACTIONS – whether payment confirmed cause of action – confirmed
EQUITY — Agreements in fraud of third parties – Conveyancing Act 1919 s 37A – Where a married couple entered into a separation agreement to split property – Whether such a division of property included alienation of property from one partner to the other with the intention to defraud creditors – HELD the alienation of property from alienor to their partner was made with the intention to defraud creditors under s 37A BANKRUPTCY — Property divisible among bankrupt’s creditors — Exceptions — Property held by bankrupt on trust – Whether property was held by a debtor on resulting trust for his partner – Whether the reasoning in Calverley v Green should be expanded – HELD no grounds for a resulting trust existed EQUITY — Assignment — General principles – Where one debtor entered into a deed of assignment releasing them from certain liabilities – Where it was asserted that those liabilities were jointly owed by another debtor – Whether the deed of assignment had the effect of releasing both debtors – HELD the liabilities were both joint and several, and therefore even if the assertion that the deed of assignment released the debtor who entered into it, it could not release the other debtor RESTITUTION — Restitution for wrongdoing — Equity — Account of profits – Whether plaintiff was entitled to an account of profits for the rent paid for a property which it asserted an interest in JUDGMENTS AND ORDERS — Form of orders — Effect of — “Make-available” order – Where restitutio in integrum is not possible – Where creditors hold partial interests in real property – HELD amounts owed to creditors to be calculated on account, and real property to be sold and proceeds to be split between creditors EQUITY — Equitable fraud — Agreements in fraud of third parties – Where an agreement was entered into which was mala fide in respect of other persons – Whether plaintiffs are entitled to recover rent on equitable grounds EQUITY — Fiduciary duties — Breach – Where a fiduciary relationship arose between the eighth defendant and son – Where the eighth defendant acted to put the assets of her son out of the reach of his creditors – Whether the eighth defendant acted in her son’s interests or to enrich herself – whether fully informed consent was given – HELD fiduciary duties were breached, and the creditors are entitled to obtain applicable equitable remedies EQUITY — Tracing – Where part of the proceeds of sale of one property was appropriated to discharge mortgages on other properties – Whether plaintiff entitled to a charge on properties – HELD whether properties can be subject of proprietary orders is contingent on the results of the account ordered in the proceedings
NEGLIGENCE — personal injury — where plaintiff worked at a factory as a contractor — plaintiff injured when a metal plate slipped and fell — whether factory owner owed plaintiff a duty of care — whether duty owed to plaintiff breached — whether plaintiff was contributorily negligent — nature of injuries caused by the accident — whether plaintiff entitled to claimed damages EVIDENCE — witness evidence — reliability and credibility of witness testimony — inconsistent and contradictory oral evidence — difficulties with interpretation of evidence — conflicting expert evidence about the diagnosis of PTSD
COURTS AND JUDGES — Judicial review — Coroners Court — Coroners Act 2009 (NSW), s 23 — Scope of coroner’s jurisdiction — Whether jurisdiction limited by common sense test of causation of death — Whether matters coroner indicated she would consider and decide could be characterised as “concerning the death”
CIVIL PROCEDURE — Evidence by audio visual link — Where plaintiff applied for direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to give evidence by audio visual link (AVL) from the Russian Federation — Applications dismissed by Local Court Magistrate on the basis of “no power” to do so — Parties agreed that Local Court erred in finding “no power” to permit plaintiff to appear via AVL — Local Court decisions set aside
BAIL – show cause offence – commercial drug offences – where asserted or theoretical risk of non-appearance – need for risk to be referable to case at hand
JUDGMENTS AND ORDERS – slip rule – whether earlier judgment should be varied to continue stay of order dismissing proceedings by way of enforcement of settlement agreement pending determination of new proceeding proposed to be commenced by plaintiff to set aside settlement agreement – whether limitation period expired in respect of causes of action in existing proceedings LEGAL PRACTITIONERS – solicitor’s lien over settlement funds – no question of principle COSTS – applications for gross sum costs orders – where costs assessment would be protracted and expensive - whether evidence provides a sufficient basis for the court to determine an appropriate sum fairly between the parties COSTS – application for indemnity costs – construction of indemnity clause in Deed of Release and Indemnity – whether court should exercise costs discretion in a manner that reflects successful party’s contractual right of indemnity FREEZING ORDERS – no question of principle
CRIMINAL LAW – bail – where applicant charged with failing to comply with reporting obligations designed to protect children and with intentional sexual touching without consent – where applicant has intellectual and physical disabilities that justify his removal from continued detention – where there is no prospect of trial arising in near future due to delay – rehabilitation facility available with professional adult supervision on 24 hour basis – bail granted with conditions
COSTS – interlocutory appeal from Local Court to Supreme Court – appeal allowed – whether proper basis to depart from usual rule – significance of respondent to motion offering additional security in this Court – significance of inflated costs asserted by application on motion
PRACTICE AND PROCEDURE — jurisdiction — service out of the jurisdiction — appearance — application to withdraw appearance — whether unconditional appearance constitutes submission — leave refused CONFLICT OF LAWS — anti-suit injunction — negative declaration proceedings in Singapore — whether foreign proceedings vexatious or oppressive — protection of local processes — forum considerations — injunction granted on interim basis EQUITY — trusts — common intention constructive trust — family-owned corporate group — claim that founder’s “descendants” held beneficial interests in company assets, derived by tracing from their beneficial interests under a constructive trust over shares of those companies arising from the founder’s actions — need for detrimental reliance to found constructive trust — need for specificity of alleged interests of “descendants” — tracing from shares in companies into assets of those companies impermissible — claim summarily dismissed EQUITY — estoppel — proprietary or equitable estoppel — claim to share of settlement proceeds — need for promise and need for detrimental reliance on promise — claim struck out
CONTRACTS – variation – the assessment of evidence where a party to the alleged varied contract is deceased – onus of demonstrating variation upon the defendant – whether an oral variation of a contract was effective − whether fulfilling an existing obligation is sufficient consideration
PRACTICE AND PROCEDURE – separate determination of questions – plaintiff’s application that questions of liability and damage be heard and determined separately and prior to questions of quantum – whether separate determination appropriate – where plaintiff makes claims under the Copyright Act 1968 (Cth) for alleged infringement of copyright, alleged misleading or deceptive conduct in contravention of the Australian Consumer Law and alleged passing off – where significant overlap of issues between the proposed first hearing and the proposed second hearing – where at least one witness would be likely to give evidence twice – where efficiencies of time and cost contended for by the plaintiff are likely illusory – application refused
CIVIL PROCEDURE – variation of interlocutory orders – where previous hearing dealt with “liability issues” – where issue has arisen regarding scope of referral to a referee – whether scope issues are “liability issues”
CONTRACTS — sham — arrangement for the payment by the plaintiffs of Australian dollars to the second defendant in return for an equivalent payment by the second defendant to a nominee of the first plaintiff in China of Chinese Yuan — creation of facility, security and guarantee deed and an unregistered mortgage in Australia — creation of a loan contract, mortgage contract and mortgages in China — where those documents a sham — where common intention of parties to the sham documents to deceive third parties — identifying the true transaction — relief giving effect to the true transaction CONTRACTS — illegality — whether the true transaction made in furtherance of purpose frustrating the operation of the Proceeds of Crime Act 2002 (Cth) MORTGAGES AND SECURITIES — mortgages — equitable mortgage
PRACTICE AND PROCEDURE – notice of motion to set aside a notice to produce – apparent relevance – legitimate forensic purpose – gross sum costs order – whether costs of opposing party relevant to assessment of successful party’s costs – notice to produce set aside – plaintiff to pay costs
COSTS – Preliminary discovery – where application for preliminary discovery resolved without need for contested hearing – where defendant sought costs based on alleged capitulation by plaintiffs – where plaintiffs sought costs based on alleged unreasonableness of defendant’s conduct – No order as to costs made
CORPORATIONS – arrangements and reconstructions – scheme of arrangement – where demerger and scheme are inter-conditional – where demerger will not be implemented unless the scheme becomes effective – application under s 411 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 satisfied – orders convening scheme meeting and ancillary orders made
CORPORATIONS – winding up – insolvency – time limit of six months for determination of proceedings – whether the Court should extend period within which winding up application must be determined nunc pro tunc – whether slip rule applies
APPEALS — appeal from Local Court — whether Court has power to set aside Local Court judgment or order under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) — ss 39 and 40 of the Local Court Act 2007 (NSW) — errors of law established, including denial of procedural fairness — appeal upheld — challenged judgments and orders set aside
CRIME — bail —psychologist’s report — sch 7 to the Uniform Civil Procedure Rules 2005 (NSW) —conflict of interest — lack of independence — not treating psychologist — financial gain — report given limited weight
CRIMINAL LAW – trial procedure – application to discharge individual juror – where juror interacted with detective in charge of the case sitting in public gallery – conduct immediately after ballot to reduce jury numbers and as “verdict jury” invited to retire – interaction observed by counsel – counsel’s observation confirmed by in-court CCTV – a nod and a smile – where action required juror to turn 180 degrees to catch detective’s attention – reasonable apprehension of bias – application of might/might test – consideration of earlier authorities – decision to continue trial with reduced number of jurors – no risk of substantial miscarriage of justice
CRIMINAL LAW – admissibility of evidence – co-conspirator’s rule – evidence of threat by unidentified caller – “someone’s going to get hurt” – where defence case was that the accused only intended to talk to target of enterprise – whether evidence capable of establishing threat made by one of the accused – whether reasonably open to find threat made in furtherance of common purpose – reasonable evidence of pre-concert – application of authority – s 87 of the Evidence Act – whether subject to requirement in s 88 that a “particular person” be identified as making the “admission” – where Prosecutor will submit call made by particular accused – whether evidence capable of supporting submission – whether evidence admissible against all three accused – relatively low threshold of admissibility – whether evidence should be admitted on alternative basis that call made by another person in furtherance of common purpose – where matter not put to prosecution witness – fairness to accused – evidence admissible against all accused but subject to limitation and direction
JUDGMENTS AND ORDERS — application to set aside default judgment pursuant to Uniform Civil Procedure Rules 2005 (NSW) rr 36.15 or 36.16 — whether judgment was entered irregularly or against good faith — admissions made by defendant — exercise of discretion would be futile — not satisfied of a defence on the merits
CRIMINAL LAW – privilege against self-incrimination – witness criminally involved in events – witness with motive – witness aware of presence of shotgun – witness present at scene of fatal shooting – where witness provided induced statement – where witness objects to giving evidence – where reasonable grounds for objection – whether witness should be required to give evidence – where Prosecutor proposed to put propositions consistent with witness’s culpability for murder or manslaughter – where witness not granted indemnity from Attorney General – powers of executive – letting witness skate to establish guilt of others – political choice – certificate that evidence cannot be used against witness in criminal proceedings – appearance of judge sanctioning witness escaping consequences for homicide – whether in the interests of justice – unusual circumstances – countervailing arguments – relevant considerations
CRIMINAL LAW – bail application – witness failed to attend court on subpoena – where warrant lay in registry for a day and witness did not respond – arrested and brought to court – where witness repeatedly expressed intention not to attend – bail refused
CRIMINAL LAW – evidence – messages sent by one accused to a third party – whether admissible against co-accused – where accused who sent message presses for evidence to be admitted – admissions made with authority – common purpose – whether common purpose extraneous to common purpose to commit the charged offence – application of authority – even if broader approach to common purpose taken evidence prejudicial and inadmissible – whether edits to messages may reduce the prejudice – where accused take opposing positions – balancing the interests of each accused
CRIMINAL LAW – direction for witness to give evidence by audio-visual link – where application opposed – relevant considerations – whether unfair to the accused – whether direction is in the interests of the administration of justice – importance of evidence – credibility of witness – right of confrontation – logistical issues – whether actual danger to witness – whether witness may be intimidated by brother and father of one of the accused – where both brothers involved in criminal underbelly of Newcastle – evidence of assault ten years earlier – use of chainsaw – witness’s concerns understandable – capacity of police to protect witness – any long term threat not affected by audio-visual link direction – consideration of authorities
CRIMINAL LAW – evidence – representations made by one of the accused to various witnesses – assessment of probative value in each instance – whether danger of unfair prejudice – evidentiary rulings made
CRIMINAL LAW – evidence – telephone intercepts – “gaol calls” – conversations between two accused men charged with murder – four conversations while one accused in custody on unrelated matters – inquiries about the whereabouts of witnesses – discussions of status of police investigation – “ootingshay” – comical correction to the Pig Latin – assessment of probative value and risk of unfair prejudice
CRIMINAL LAW – evidence – objection to recorded interview with accused – whether evidence obtained improperly – where accused told custody manager he had no choice and was told he had to do the interview – where interview replete with prevarication and lies – evidence of investigator – defensive response to cross-examination – opportunity – mantra or catchphrase – assessment of credibility – where accused advised he did not have to say or do anything – advice followed by imperative directions of what was going to happen – where excused said he was “over it” – role of custody manager – diminution of right to silence – finding that evidence improperly obtained CRIMINAL LAW – evidence – admission of improperly obtained evidence – relevant considerations – where evidence probative and important – where impropriety grave – suspect not required to go to interview room – not required to sit mute while allegations and evidence put to them – international covenant – evidence excluded
CONTRACTS – Construction and interpretation – where wholly written contract – dispute as to identity of a party – whether regard may be had to post-contractual conduct to identify party to contract CORPORATIONS – Directors and officers – Directors’ duties – whether directors have breached duties – no question of principle CORPORATIONS – Directors and officers – whether director should be relieved of liability under ss 1317S or 1318 of the Corporations Act 2001 (Cth) – no question of principle CORPORATIONS – Winding up – Voidable transactions – where plaintiff contends payments to second defendant and related parties from company were unfair preferences or unreasonable director-related transactions or otherwise voidable – whether related parties were creditors – no question of principle EQUITY – Equitable charges and liens – Contribution to acquisition or improvement of another’s property – whether to impose an equitable charge – no question of principle
DEFAMATION – practice and procedure – application for early determination of separate harm – where defendant seeks early determination of serious harm in relation to some, but not all, publications – permissibility of aggregation in establishing serious harm – considerations in granting or refusing such applications
COSTS — gross sum costs order — interlocutory cost orders — whether material enabled fair assessment of gross sum — requirement for logical, fair and reasonable basis for quantification — generic invoice narrations — insufficient explanation of allocation of costs to orders — motion dismissed
CRIME – where the offender drove a person away from the crime scene and organised for the car to be cleaned – assessing the objective seriousness of a contravention of s 315 of the Crimes Act 1900 (NSW) – where an offender has guarded prospects of rehabilitation – whether conditional bail amounted to quasi-custody – commencement of sentence backdated to accommodate time spent in pre-sentence custody
CRIMINAL PROCEDURE – Trial – Application for separate trial – Where two accused are charged with different offences in relation to the same events – Whether separate trial should be ordered where only one co-accused is charged with murder under joint criminal enterprise – Whether “positive injustice” would arise by a joint trial
CORPORATIONS – receivership – application for judicial advice by receiver – receiver justified in proceeding on basis that financial reports truly and fairly record the financial position
CORPORATIONS – Winding up – Liquidators – Application by liquidators to determine remuneration – Whether work performed by liquidators was necessary and was properly performed – Whether the cost of the work performed is proportional to the value of the services provided
EQUITY — Trusts and trustees — Trust instruments — Trust powers — Plaintiff is trustee of a charitable trust and operator of a maritime museum — Principal property of the trust is collection of historically significant scientific instruments, navigational objects and other memorabilia related to maritime history — Trust deed prohibits loans of trust property — Plaintiff applies under s 81(1) Trustee Act 1925 (NSW) for order conferring power upon it to loan trust property to other museums — Trust deed prohibits removal of trust property from specified museum premises — Plaintiff applies under s 81(1) Trustee Act 1925 (NSW) for order conferring power upon it to relocate trust property within other parts of the building in which the trust property is housed — Whether proposed actions are transactions in the management and administration of trust fund — Whether proposed actions are expedient in relation to the management and administration of trust fund — Whether proposed actions cannot be effected by reason of absence of any power for that purpose — Consideration of whether express denial of power in trust deed constitutes an absence of power under s 81(1) Trustee Act 1925 (NSW)
NEGLIGENCE – causation – medical negligence – where plaintiff alleges delayed diagnosis of syphilis – whether evidence sufficient to establish causation between breach of duty and harm suffered EVIDENCE – where defendants apply for judgment at close of plaintiff’s case – UCPR r 29.10 – “jury test” to be applied – whether plaintiff’s evidence taken at its highest could support a judgment
NEGLIGENCE – recreational activities – competitive sailing – whether competitive sailing is a recreational activity – whether plaintiff was engaged in a dangerous recreational activity – where obvious risk of collision between yachts racing eventuated NEGLIGENCE – recreational activities –– where SailPass temporary membership obtained for plaintiff via QR code accessed on plaintiff’s behalf – whether risk warning and disclaimer of liability incorporated into SailPass and other documentation – whether plaintiff became party to a contract between Cronulla Sailing Club and other race participants NEGLIGENCE – assessment of damages
SENTENCING – murder – offender set fire to his mother’s house – he then poured petrol onto his mother and set her alight – assault occasioning actual bodily harm of a young person present – moral culpability – personality disorder born of childhood emotional and physical abuse – post traumatic stress disorder – role of personality disorder as a contributor to exaggerated anger and sense of grievance – some reduction in moral culpability – separate and distinct from “Bugmy” factors – self medicating with cannabis to manage symptoms – substance abuse disorder
STATUTORY INTERPRETATION – Legislative purpose – Strata Schemes Management Act 2015 (NSW) – nature of the Secretary’s function under ss 209 and 209A STATUTORY INTERPRETATION – Internal review – Strata Schemes Management Act 2015 (NSW) – nature of the reviewer’s function under s 213 ADMINISTRATIVE LAW – Jurisdictional error – whether decision-maker erred on numerous overlapping grounds – whether Secretary or reviewer required to weigh up competing evidence or make findings with precision as to estimated costs – finding that reviewer erred only in narrow respects – declaratory relief granted – Secretary’s delegate’s decision quashed and remitted to reviewer for redetermination according to law
PROCEDURE – pleadings – application for leave to file amended statement of claim – self-represented plaintiff – proposed amended statement of claim not disclosing viable cause of action – whether leave to replead should be granted – held: leave refused – proceedings summarily dismissed CONSUMER LAW – misleading and deceptive conduct – unfair contract terms – contractual relationships between buyer, platform operator and payment processor – whether payment processor owed direct contractual or representational obligations to buyer – held: no viable cause of action against payment processor