LAND LAW – Easements – Modification of easements – Heads of Agreement (“Heads”) record an agreement to settle proceedings after a mediation – Heads provide for the registration of a right of carriageway over certain rural land and the lifting of caveats over that land – several disputes arise between the parties in relation to the performance of the Heads – what is the precise width and configuration of the easement at its southern end – whether the Heads imply the creation of a supplementary easement to permit the completion of the construction of a sealed roadway along the easement – at what point of time should the caveats be removed – what does the Heads require for the easement to be put in registrable form. EQUITY – Equitable remedies – Specific performance – specific performance sought of Heads – whether a further deed is required to give effect to the existing Heads – whether a decree for specific performance of the Heads should be granted and if so, on what terms.
PRACTICE AND PROCEDURE – stay of proceedings under Civil Procedure Act 2005, s 67 – the plaintiffs and the defendant are registered proprietors as joint tenants of real estate held under Real Property Act 1900 – defendant concedes that he holds his interest as joint tenant on trust for the plaintiffs – plaintiffs seek transfer of the defendant’s interests as joint tenant to them – plaintiffs and defendant accept that the plaintiff must indemnify the defendant in respect of his holding of the trust property – transfer of the trust property by the defendant to the plaintiffs may cause the defendant to incur capital gains tax (“CGT”) liability – defendant seeks private binding ruling from Commissioner of Taxation and seeks a stay of proceedings until the ruling is available – plaintiffs say proceedings should continue and that trust property be transferred to them – whether or not the proceedings should be stayed pending receipt of the private binding ruling.
ADMINISTRATIVE LAW – Judicial review – Motor Accidents Compensation Act 1999 (NSW) – Jurisdictional error – Review of the decision of a proper officer – Whether the proper officer acted in excess of the “gatekeeper” role under s 63(3) – Whether the decision was made according to law – Where the decision was not irrational, illogical and not based on findings or inferences of fact supported by logical grounds – Review dismissed
EQUITY – Trusts and trustees – Powers, duties, rights and liabilities – Indemnity of trustee – the plaintiffs and the defendant were registered proprietors as joint tenants of certain real property – the defendant held his one third interest as joint tenant in the property on trust for the plaintiffs – the property sold and the net proceeds held pending the outcome of these proceedings – pursuant to orders of the Court part of the proceeds were applied by the plaintiffs to acquire another property – the defendant incurs costs, expenses and tax liabilities as the trustee of his legal interest in the property – the maximum quantum of that indemnity in relation to the defendant’s costs and expenses are fixed – the defendant’s potential liability to capital gains tax and other taxes appears to be zero or very low – what orders should now be made with respect to the payment out of money which is held by an independent solicitor – should a cost assessment now take place or should a gross sum costs order be made – new issue raised as to whether Trustee Act 1925, s 100A may modify the amount paid out of the fund held by the independent solicitor. CIVIL PROCEDURE – Costs orders – Civil Procedure Act 2005, s 98(4)(c) – small trust estate – dispute about the quantum of costs – much of the estate already consumed by legal costs – whether a specified gross sum should be fixed instead of assessed costs.
CONSUMER LAW – FINANCIAL SERVICES – Australian Securities and Investments Commission Act 2001 ss 12DA(1), 12GF – Corporations Act 2001 ss 79, 917E – claim for damages for misleading or deceptive conduct by the first, second and third defendants consisting of misrepresentations allegedly made in connection with the issue of unsecured redeemable promissory notes issued by the first defendant that the notes were secured, would be repayable after 3 months and the plaintiff could have early repayment if he wanted it – claim that the fourth defendant was a person involved in the contravention because he had actual knowledge of the falsity of the representations and intentionally participated in the misleading or deceptive conduct HELD – that misrepresentations not established or established to be misleading or deceptive – that allegations against fourth defendant not made out HELD – no damages established because the plaintiff did not show that he would not have invested in the notes otherwise and that it is more probable than not that he would have anyway HELD – plaintiff did not establish quantum of his loss PRACTICE AND PROCEDURE – observations on the proper pleading of misleading or deceptive conduct – application to reopen to lead further evidence and to amend to claim different relief – application declined
HIGH RISK OFFENDER – extended supervision order preliminary hearing – serious sex offender – where defendant has extensive criminal record – where defendant had sexual assault and indecent assault convictions – where defendant has a psychotic illness – where defendant’s risk assessment is well above average – interim supervision order granted – nature of conditions of ISO to be imposed
SETTLEMENT – approval of settlement – plaintiff under legal disability – where plaintiff a joint proprietor of the family home with her husband subject to a substantial mortgage – where tutor seeks order for payment from settlement of monies sufficient to discharge the mortgage – where husband providing care for plaintiff in substitution for commercial assistance contemplated by the settlement amount - whether Court has power to make such an order – where decision properly a matter for trustee
CIVIL LIABILITY – medical negligence – where infant plaintiff allegedly contracted tuberculosis meningitis in Vietnam while travelling with her parents – where defendant consulted by her parents before the trip about what vaccinations she should receive – whether defendant should have given or arranged for the plaintiff to receive the Bacille Calmette-Guérin vaccination – where infant plaintiff’s parents relied on defendant’s medical advice – whether defendant breached duty in failing to vaccinate plaintiff in the circumstances – whether defendant acted in manner accepted by peer professional opinion as competent professional practice – whether plaintiff continues to suffer medical and physical issues – whether proposed settlement in best interests of infant plaintiff
ESTOPPEL — Anshun estoppel — decisions to which applicable — two proceedings — submitting appearance entered in earlier claim — submitting appearance invited by beneficiaries of earlier proceeding — whether failure to complain rendered subsequent proceedings an abuse of process ESTOPPEL — res judicata — issue estoppel — earlier proceeding concerning errant fiduciary — numerous judgments and findings — fiduciary misappropriated partnership monies — earlier proceeding did not result in grant of relief to claimant in new proceeding — findings about knowledge misappropriations relevant — ambit of matters estopped from being denied in new proceedings EQUITY — defences — laches and acquiescence — Knowledge of ability to bring claim — circumstances rendering delay unconscionable for account of profits EQUITY — defences — statutes of limitation — application by analogy — whether analogous application unconscionable in the circumstances RESTITUTION — restitution for wrongdoing — equity — constructive trust — account of profits — allowances for errant fiduciary’s efforts — calculation of accounts with mathematical exactitude impossible — nature of benefit obtained by occupation of premises acquired with misappropriated funds — adjustments where beneficiaries received estate distributions comprising misappropriated funds
CRIMINAL LAW – bail – conditions – ten-year-old boy – curfew – application for variation by deletion of curfew condition – where no evidence of offences committed at night – purpose of bail conditions – limitations on same – social engineering – paternalism – condition deleted
BUILDING AND CONSTRUCTION – Proceedings settled by Deed of Settlement entitling plaintiff to judgment against the first defendant in the event that the defendant did not carry out certain remedial building works, in particular in relation to fire safety – Deed included an undertaking by the first defendant to pay legal costs in three fixed instalments – Where first defendant breached the Deed – Plaintiff accordingly entitled to judgment
EQUITY – Trusts and trustees – Where the Plaintiffs do not know whether they are beneficiaries or discretionary objects, or whether they are within a class of beneficiaries or discretionary objects, or whether they have an interest in the property subject to trusts – Doubtful beneficiaries – Whether entitled to access to trust documents – Where the Defendants read no evidence on the application for access to documents – Whether inferences should be drawn from the failure to give evidence – Whether Plaintiffs’ evidence sufficient to establish a prima facie case – Whether Plaintiffs entitled to access documents.
PRACTICE AND PROCEDURE – separate question – whether order should be made that liability be determined in advance of quantum – where significant cost and delay involved in quantum question – whether bright line between liability and quantum issues – consideration of possible appellate complications
CIVIL PROCEDURE – where plaintiff seeks order extending time for service of her liability evidence – where complicated surgery causes serious adverse consequences for plaintiff – where defendants deny liability – where defendants claim what occurred to plaintiff was materialisation of inherent risk of medical procedure and plaintiff conversely argues the defendants failed to take account of her anatomical idiosyncrasies when approaching the surgery – whether it would be just and reasonable to permit plaintiff at a relatively late stage to rely on expert report where it allegedly does not reflect current pleadings as set out in amended statement of claim and may result in disadvantage to defendants – where considerations of the dictates of justice pursuant to s 58 of the Civil Procedure Act and the overriding purpose of a just, quick and cheap resolution of the real issues in the proceedings permit the plaintiff to rely on expert evidence at a late stage – where there remains over four months until the hearing where matters can be explored – defendants not required to bear costs connected with disruption caused by plaintiff’s application
SUCCESSION — Burial rights — Where second defendant directed body to be received by first defendant — Where interim injunction sought by plaintiff and granted ex parte — Where second defendant does not object to the relief sought by the plaintiff – Where third defendant hospital refuses to release without court order
ADMINISTRATIVE LAW – Industrial Relations Commission – procedural fairness – privative provision – jurisdictional error – limit of effect of privative provision – preliminary hearing – re-opening of proceedings available in the Industrial Relations Commission – no denial of procedural fairness – parties on notice of issue – decision otherwise not amenable to certiorari – Summons dismissed
CONTRACTS – construction and interpretation of contracts – terms of loan approval provided for payment of all fees, costs and outlays payable herein if loan not drawn down within 30 days – proposed loan did not proceed – whether fees payable included establishment fee referred to in another section of loan approval CONTRACTS – consideration – lack of consideration – illusory contracts – loan approval – lender given “absolute” discretion to decide whether valuation is satisfactory to it – lender subject to implied obligations including to honestly consider valuation – promises made by lender held not to be illusory MORTGAGES AND SECURITIES – charge – creation of charge – loan approval provides for charge over all property – whether charge is valid when it does not refer to specific property – charge claimed over identifiable property – equitable charge held to be validly created
EVIDENCE – Exclusion of evidence – Accused charged with murder – No issue that the accused stabbed the deceased causing his death – Sole issue of self-defence and/or defence of his father – Where the Crown sought to adduce evidence of conversations between the accused and his father in which the accused gave an account of what had occurred – Where that account was inconsistent with and formed no part of the Crown case – Whether the probative value of the evidence was outweighed by the danger of unfair prejudice – Evidence excluded
CRIME – bail – release application - application for bail following hearing for an Extended Supervision Order – applicant convicted of manslaughter committed while suffering schizophrenic illness – applicant committed further offences whilst on parole including destroying or damaging property and assault offences – applicant subject to an Interim Supervision Order – ISO breached – Crown opposes bail – breach of ISO is a show cause offence – whether applicant shows cause as to why his continued detention is not justified – where objective seriousness is at the low end – where applicant will remain supervised under the ISO and ESO – applicant shows cause – bail concerns – whether risk that applicant will commit a further serious offence – where risk is reduced as applicant’s schizophrenia and personality problems are stabilised – where risks are manageable with supervision through ESO – conditional bail granted
PRACTICE AND PROCEDURE – injunctions – urgent after-hours application for interlocutory mandatory injunction compelling insurer to issue trade credit insurance policy – whether serious question to be tried that insurer obliged to renew policy – whether balance of convenience favoured interlocutory relief – where serious consequences for plaintiffs if policies not renewed – where insurer not re-insured in relation to any renewal of policy – where delay in bringing matter to Court INSURANCE – trade credit insurance – where insurer gave notice of intention not to review policy – where policy expired at midnight – whether insurer obliged to renew policy
JUDGMENTS AND ORDERS – what orders should be made to reflect reasons in primary judgment – whether first defendant as well as second defendant liable to pay equitable compensation – quantum of equitable compensation PRACTICE AND PROCEDURE – application by defendants for leave to re-open to tender documents produced on subpoena – where documents relevant to quantum – small number of documents – whether explanation offered by defendants adequate – whether exceptional circumstances shown – whether justice of case requires that leave be granted
PRACTICE AND PROCEDURE – Application for extension of time to file application setting aside judgment of South Korean Court under s 6 of the Foreign Judgments Act – Where judgment debtor did not seek order setting aside judgment in time – Where judgment debtor instead sought orders for security of costs for application to set aside registration – Extension of time granted
CIVIL PROCEDURE — court administration — court powers — recall of prior reasons in proceedings — circumstances — observations made per incuriam — court not yet functus officio — final orders yet to be made — whether power to recall based upon UCPR r 36.17 CONTRACTS — remedies — damages — assessment — quantum dependent on prior loan agreements — whether evidence capable of establishing terms of such loan agreements CORPORATIONS — formation — pre-registration contracts — requirements of Corporations Act 2001 (Cth), s 131 — whether evidence established that “a person” purported to enter a contract on behalf of or for the benefit of a company prior to registration — whether conduct of company shareholders or director capable of ratifying purported agreements after registration
AGENCY – whether implied actual authority to enter building contract – where builder did not sign contract – where numerous documents signed in name of builder – whether builder authorised nephew to enter into contract on his behalf – no authority found from the circumstances BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranties – whether defects part of lot property or common property CONSUMER LAW – misleading or deceptive conduct – causation or reliance – where home warranty insurance issued due to misleading representations made by insurance broker – whether representations sufficiently causative of loss to Owners Corporation EVIDENCE – tendency evidence – conduct – whether evidence of builder performing favours for friends characterised as tendency evidence of conduct regarding commercial development
APPEAL – appeal from Local Court – question of law – principles of statutory construction – whether the magistrate erred in law by finding the definition of “butterfly knife” in Sch 1, cl 1(6) of the Weapons Prohibition Act 1998 necessarily requires the item to have a sharpened edge capable of cutting – whether the magistrate erred in law by dismissing the charge – remittal – costs – orders
CONTRACT – formation and validity – proposal by owner of development lots to convert lots into non-strata blocks and build townhouses of specified height – cooperation of strata corporation required – development lot owner promised proposal would result in continuing access for strata owners to swimming pool on her land – resolution passed at general meeting – no contractual effect ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – whether lot owner’s promise made to strata corporation – whether reliance by corporation – corporation entitled to easement over pool land EQUITY – rectification – mistake – strata plan of subdivision included notation that pool structures formed part of common property – notation failed to include three-dimensional space around pool structures – inclusion of notation deliberate and mistake established but intended form of plan could not be determined – rectification refused
PRACTICE AND PROCEDURE – validity of wills – suspicious circumstances rule – undue influence alleged – suspicious circumstances, allegation of undue influence in the execution of the two 2017 wills - application to file second cross claim raising issues of equitable undue influence and have all issues tried together – overlapping issues – consideration of operation of undue influence in probate and equity - whether leave to file the second cross-claim should be granted or whether the second cross-claim should be determined separately.
HIGH RISK OFFENDER – continuing detention order sought by plaintiff refused – extended supervision order of 18 months imposed – extended supervision order not opposed by defendant – position of defendant communicated to plaintiff before final hearing – question of costs in those circumstances
CRIMINAL LAW - Crime Commission examinations - where witnesses advised examinations would not be disclosed - where material relevant to murder trial - whether transcripts should be produced to the court
CRIMINAL LAW - murder - release of confidential evidence - reluctant witnesses - incongruous bowing - whether evidence given to Crime Commission should be released to the parties - where witnesses advised the evidence would not be published - eye witness to alleged murder - where witness objects to release of material - where witness failed to provide statement to police - policy reasons against release - stringent legal test - factors relevant to exercise of power
REPRESENTATIVE ACTION – Queensland Floods – quantum issues – recovery of damage to fixtures and chattels – measure of damages – clean‑up costs – reasonable commercial cost of cleaning or cost of labour of individuals who undertook clean‑up? – Powercor Australia Pty Ltd v Thomas considered Held: commercial cost is appropriate measure – ASSESSMENT – individual group member – farm enterprise – losses to farming business – inconvenience – subsidised interest on loan
EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Intention –– Resulting trusts –– Common intention constructive trusts –– Constructive trusts arising out of the failure of a joint endeavour –– Finding as to the existence of such trusts evolving from one to the other over time as a result of changing circumstances EQUITY — Equitable interests in property — Nature of equitable interests EQUITY — Equitable remedies — Equitable compensation
CIVIL PROCEDURE — Notices to produce — Application to set aside — Before hearing — Relevance to a fact in issue — Legitimate forensic purpose COSTS — Party/Party — General rule that costs follow the event — Application of the rule
EMPLOYMENT LAW – contract – interlocutory restraint of trade – employee restrained from working elsewhere during “employment” by employer – employee purports to terminate employment claiming 28 day notice period and then leaves after 28 days – prima facie case – contract provides for three month notice period – subsequent variation refers to earlier contract containing 28 day notice period – construction principle in Fitzgerald v Masters – whether “employment” continues after employment relationship ceases – whether employee’s notice of termination was wholly ineffective or effective after three months – injunction granted against employment with new employer for three months from date of employee’s notice
CORPORATIONS – winding up – application for approval of liquidators remuneration – Insolvency Practice Schedule (Corporations) s 60-10 – whether claim for remuneration reasonable – no issue of principle CORPORATIONS – winding up – distribution of surplus – Corporations Act 2001 (Cth) s 488(2) – grant of special leave to distribute surplus to contributories of the company
FAMILY LAW — Property — Procedure — where, after an initial interlocutory judgment, several issues remained outstanding — where the Court sought further information in order to make interim maintenance orders — where the parties raised additional issues not contemplated in the first judgment –– where the effects of the COVID-19 pandemic on the right to terminate a lease considered — other issues raising no points of principle
SUCCESSION – burial rights – where mother and father have equal ranking at common law – whether mother or father should have carriage of the funeral and custody of the deceased's body – burial or cremation – Aboriginal religious, cultural and spiritual considerations – mother granted relief sought.
EVIDENCE – Tendency evidence - Accused charged with murder – Defence of self-defence or defence of another – Where counsel for the accused sought to adduce evidence of previous instances of violence on the part of the deceased as tendency evidence – Objection by Crown – Whether evidence had significant probative value – Effect of time lapse between some of the instances relied upon and the deceased’s murder – Evidence admitted in part
EVIDENCE – Accused charged with murder – Where Crown sought to tender evidence of a photograph establishing that knife used by the accused to stab the deceased was capable of fitting within the pocket of shorts worn by him at the time of the murder – Where photograph was objected to on the basis that its probative value was substantially outweighed by the danger that it might be misleading or confusing or be unfairly prejudicial – Evidence admitted
PRACTICE AND PROCEDURE – Juries – Where juror raised issues about her capacity to serve following empanelment – Consensus between parties that order should be made discharging the juror in question – Where court not satisfied that there would be a risk of a substantial miscarriage of justice if the trial proceeded with 11 jurors – Orders made accordingly
EVIDENCE – Exclusion of evidence – Accused charged with murder – Where Crown served lengthy expert report in relation to blood pattern analysis one week prior to the commencement of the accused’s trial – No explanation for the delay in serving the report – Evidence of failure by the Crown to properly enquire as to the progress of the preparation of the report – Where there was insufficient time prior to the commencement of the trial to allow the accused to retain an expert – Where alleged offence occurred almost two years ago – Accused already in custody for approximately 20 months – Further significant delay in the event that the Crown were permitted to rely on the evidence – Evidence excluded PRACTICE AND PROCEDURE – Service by Crown of lengthy expert report a short time prior to the accused’s trial – Observations as to the unacceptability of the Crown serving material at such a late stage prior to an accused’s trial
EVIDENCE – Admissibility – Where accused pleaded not guilty to murder – No issue that the accused stabbed the deceased – No issue that the deceased died from the stabbing – Where sole issue was whether the accused acted in defence of his father – Where Crown sought to lead evidence of observations of the accused in the hours prior to the murder holding a knife and a rifle – Whether that evidence was relevant – Whether the actions of the accused in those respects constituted a part of a series of connected events including the deceased’s murder – Whether the actions of the accused were relevant on the basis that they were evidence of his state of mind – Application of so-called “O’Leary principle” – Evidence not relevant – Evidence excluded
CRIME — Federal offences — Offences of dishonesty — Separate question — Compulsory examination of accused — Where accused was compulsorily examined by taxation officers pursuant to statutory powers compelling answers whether incriminatory or not before charges laid — Where transcript of interview provided to investigative and prosecuting authorities — Where transcript was used to investigate accused, formulate charges and prepare prosecution case — Whether dissemination and subsequent use of transcript violates accusatorial principle and companion rule — Whether such disclosure and use was prohibited — Whether transcript admissible in trial of the accused — Effect of R v Leach  1 Qd R 459 STATUTORY INTERPRETATION — Legal presumptions — Presumption against alteration of fundamental common law rights — Right to criminal trial in accordance with accusatorial principle and companion rule — Whether statutory scheme expressly or by necessary implication authorised dissemination and use of transcript — Income Tax Assessment Act 1936 (Cth) — Taxation Administration Act 1953 (Cth) — Criminal Code Act 1995 (Cth) s 135.1(7)
COSTS – costs of successful application for winding up of joint venture company on just and equitable ground – where just and equitable ground established principally due to conduct of defendant shareholder – whether costs of winding up application should be paid out of company’s assets or by defendant shareholder – no other issue of principle
ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Motor Accident Injuries Act 2017 (NSW) – Review of a medical certificate of a Review Panel – Denial of procedural fairness – Failure to advise the plaintiff of its intention to use an article to draw an adverse conclusion about his claim
CORPORATIONS – Managed investments – Judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – Whether to convene meetings of unitholders – Whether responsible entity would be justified in treating consequential constitution amendments as within power.
CONTRACTS – development of land – defendant is the registered proprietor of a property used for commercial purposes as a gymnasium and offices – property leased but in need of further development – land is mortgaged to financial institution – defendant unable to fund further construction works on the property – plaintiff takes a lease over the property and enters into a deed by which the plaintiff would fund construction works on the property and then acquire the property pursuant to a contract for sale – disagreement arises between the plaintiff and the defendant about the interpretation of the development deed – the plaintiff and the defendant each refuse to pay the monthly mortgage payments to the defendant’s mortgagee, the mortgagee enters into possession and sells the property – the plaintiff alleges defendant has breached the development deed, an associated mortgage and the lease – whether the defendant is in breach as alleged. MISLEADING AND DECEPTIVE CONDUCT – plaintiff claims defendant made a series of misleading and deceptive statements inducing the plaintiff to enter into a lease, a development deed, a contract for sale of land and a mortgage – the plaintiff alleges that the defendant stated that the defendant was not in default to its first mortgagee and that there were no other prior encumbrances over the property – the plaintiff further alleges that the defendant represented that his residential property would be included in the grant of a mortgage to the plaintiff – the executed version of the mortgage omitted the residential property – whether the defendant made these and other related statements – whether these and other related statements were false or misleading – whether these and other related statements induced the plaintiff to enter into the development deed – where the plaintiff claims that the defendant did not disclose knowledge of prior encumbrances and a deed with the first mortgagee – whether the circumstances were such that the defendant had a reasonable expectation of disclosure of that knowledge to the plaintiff. ESTOPPEL – issue estoppel – former adjudication by this Court in separate proceedings between the same parties – finality of decisions – scope of issue estoppel – question as to whether the parties are bound by findings in the Court’s previous determination of the priority between equitable interests – whether the plaintiff can contend for inconsistent findings in support of its claim for misleading and deceptive conduct against the defendant – whether the findings in the previous determination are fundamental to the conclusion – issue estoppel found to be binding.
CROSS VESTING – tort – where plaintiff alleges sexual abuse by servants or agents of the defendant in Queensland – whether interests of justice require transfer of proceedings to the Queensland Supreme Court
HIGH RISK OFFENDERS – application for an extended supervision order by the State of New South Wales under s 25 of Terrorism (High Risk Offenders) Act 2017 UNACCEPTABLE RISK – where defendant has criminal history involving affray, destroy and damage property, goods in custody and recklessly causing grievous bodily harm in company – where defendant previously associated with members of a group, some of whom have been convicted of terrorism offences or are currently incarcerated for such offences – where defendant has not committed a terrorism offence -whether the Court can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing serious terrorism offence if not kept under supervision – whether defendant likely to comply with conditions if Extended Supervision Order made – balancing interests of community with personal liberty
MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 – Forensic patient – Limiting term expired – Interim extension order due to expire – Whether applicant poses continuing unacceptable risk – Whether risk can be adequately managed by less restrictive means – Status as forensic patient extended in the circumstances – Status extended for a period of three years
CIVIL PROCEDURE – Discovery – subpoenas – motions to set aside – collateral purpose – applications to set aside – provisions of s 80 of Crime Commission Act preventing compelling production in certain circumstances – details of each schedule – motions generally dismissed.
CRIMINAL LAW - application to revive memory - application by Prosecutor to cross-examine own witness - mysterious approach taken by counsel - witness with astonishingly bad or selective memory - relevant considerations - whether lack of evidence equates to unfavourable evidence - whether prior inconsistent statement - whether witness making genuine attempt to give evidence - the misfortune of sitting in court 6.1 at the Downing Centre - peculiarities of the room - the ubiquitous Mr Quilter
PRACTICE & PROCEDURE – application for recusal of presiding judge at trial on grounds of apprehended bias – comments made about liability conclave process and arrangements made by the parties – context of application by plaintiff to significantly amend Statement of Claim on day 3 of trial – proposed deployment of problematic conclave report in support of application to amend
CRIMINAL LAW – application for referral of case to Court of Criminal Appeal to be dealt with as sentence appeal – Commonwealth drug trafficking offence and money laundering offence – whether doubt or question as to mitigating circumstance – approach on sentence to utilitarian value of guilty pleas – applicant sentenced before decision in Xiao v R – order for referral made
EVIDENCE – affidavit evidence – advance ruling – trust claim based on allegedly irrevocable mutual wills – evidence of alleged statements of surviving testator five years after wills made – relevance – application of Evidence Act (NSW), s 135 – evidence ruled inadmissible
Notice of motion to transfer proceedings from Supreme Court to the Federal Court – representative proceedings – application made over four years after proceedings commenced – basis for application said to be Federal Court being well designed system to handle representative proceedings – motion dismissed.
TAXES AND DUTIES – land tax – liability – exemptions – low cost accommodation – statutory criteria for exemption – satisfaction of Commissioner as to use and occupation of land in accordance with approved guidelines – construction and operation of guidelines – whether land used and occupied primarily for low cost accommodation – requirement that land is or includes a community or residential community within the meaning of the Residential (Land Lease) Communities Act 2013 – land subdivided under the Community Land Development Act 1989 and wholly subject to a community scheme does not meet that description – Land Tax Management Act 1956, s 10Q TAXES AND DUTIES – land tax – liability – exemptions – low cost accommodation – statutory criteria for exemption – satisfaction of Commissioner as to use and occupation of land in accordance with approved guidelines – construction and operation of guidelines – whether land used and occupied primarily for low cost accommodation – requirement that more than 50% of sites or homes are occupied by specified persons – criteria not met STATUTORY INTERPRETATION – guidelines approved by Treasurer under Land Tax Management Act 1956, s 10Q – application of ordinary principles of statutory construction to determine scope and operation of guidelines TAXES AND DUTIES – administration – interest – remission – no further remission of interest justified in the circumstances of the case
CIVIL PROCEDURE – representative proceedings – shareholder claim against public company and chief executive officer – where level of likely directors and officers insurance cover revealed shortly after proceedings commenced - where company went into administration shortly thereafter and proceedings stayed - where efforts then made to settle proceedings - where part of settlement comprised a deed of company arrangement – where balance of settlement involved compromise by insurer – court approval – whether settlement reasonable inter partes – whether settlement reasonable inter se – where claimed costs and commission would consume bulk of settlement pool - whether costs proportionate - whether plaintiffs’ legal advisers and funders engaged in disentitling conduct
CIVIL PROCEDURE — summary dismissal – where plaintiffs by summons seek purely declaratory relief – whether the relief concerns the determination of a legal controversy between the parties or is directed solely to answering abstract or hypothetical questions – whether declaration will produce foreseeable consequences for the parties – proceedings misconceived – summons dismissed
EVIDENCE — Voir dire — Tendency evidence —Tendency notice — Defence failure to serve tendency notice within relevant time — Whether Court should dispense with the notice requirement under s 100(1) of the Evidence Act EVIDENCE — Tendency evidence — Significant probative value — Murder — Evidence of a tendency of the deceased to resort to irrational violence following the consumption of alcohol — Defence application to rely on tendency evidence allowed
NEGLIGENCE — workplace injury — third-party tortfeasor — plaintiff unloading sheep from trailer when deck allegedly dropped on his arm by defendant — whether accident occurred as alleged — breach — liability of employers — damages WORKERS COMPENSATION — uninsured liabilities — where plaintiff sought and received payments from, and employers reimbursed, the Nominal Insurer — whether employers entitled to indemnity from third-party tortfeasor — whether defence pleaded — proper construction of s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) — meaning of "the person by whom the compensation was paid"
CIVIL PROCEDURE — admissibility of expert report — service out of time — leave — where necessary to demonstrate exceptional circumstances under r 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW) — whether exceptional circumstances shown — impecuniosity
CRIMINAL LAW – directions to jury – lies as supporting an inference of guilt – general direction as to lies – whether excessive self-defence should be left to the jury – no evidentiary foundation for supporting excessive self-defence
CRIMINAL PROCEDURE – application to discharge jury – juror connected to accused’s mother – apprehended bias and apparent impairment of impartiality – application of the test in Ebner v Official Trustee in Bankruptcy as adapted to jury – interest of justice – whether whole jury infected by apprehension of bias – whole jury discharged.
LAND LAW — Conveyancing — Requirements of writing — Agreement to create or dispose of interest in land — Where beneficiaries including executrix agree in writing to bid among themselves to purchase estate property instead of sale by public auction — Whether subsequent purported oral variation enforceable —Conveyancing Act 1919 (NSW), s 54A(1)
HIGH RISK OFFENDER — application for an extended supervision order (ESO) — child sex offender — defendant suffering from a number of physical and psychological difficulties — autism spectrum disorder and cognitive impairment — ESO imposed — duration of order imposed shorter than sought — resolution of disputed conditions
COSTS – party/party – bases of quantification – indemnity basis – where offer of compromise required Chief Commissioner of State Revenue to issue a compromise assessment – whether compromise assessment would have constituted a valid and bona fide exercise of the Commissioner’s powers – whether Court should otherwise order
CORPORATIONS – Registration time for security interests – Application under Corporations Act 2001 (Cth) s 588FM(1) to fix registration time for security interests registered in the register established under the Personal Property Securities Act 2009 (Cth) – Whether failure to register security interest was accidental or due to inadvertence – Relevance of financial position of company granting security interest
Appeal pursuant to Crimes (Appeal and Review) Act 2001 – application for leave to appeal against costs order made in Local Court – whether jurisdictional error/error on the face of the record so as to attract s 69 of the Supreme Court Act 1970 – whether error in determining which party successful in Local Court proceedings – no error demonstrated – order for costs neither unreasonable nor plainly unjust – leave to appeal refused.
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved. CORPORATIONS – Arrangements and reconstructions – Application under s 63 of the Trustee Act 1925 (NSW) for judicial advice with respect to the implementation of trust scheme
COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion COSTS – fixed in gross sum – appropriateness of such an order – discounts applied to legal costs – conduct of plaintiff in increasing costs of proceedings
ADMINISTRATIVE LAW – Grounds of review other than procedural fairness – Motor Accidents Medical Assessment and application for review – jurisdictional error and error of law – failure to deal with causation and apportionment to pre-existing injury – failure to provide adequate reasons – failure to exercise jurisdiction and apply correct test – jurisdictional pre-condition for review – capacity to challenge original decision after internal refusal to refer for review – summons dismissed.
CIVIL PROCEDURE - pleadings - form and content of pleading - claims against various defendants for breach of contract, misleading and deceptive conduct, unfair terms and negligence - where applicants allege that statement of claim is fundamentally flawed – strike-out application pursuant to UCPR r 14.28 – whether misrepresentations as to future matters – accessorial liability - where the pleading is unclear and embarrassing - pleading and amended statement of claim struck out - leave given to the plaintiffs to re-plead
EVIDENCE – tendency evidence – criminal proceedings – murder – self-defence - tendency evidence concerning the deceased – evidence that deceased acted violently when under the influence of drugs – whether of significant probative value – whether link needs to be shown between facts concerning the defence and the prior behaviour of deceased – whether probative value outweighed by unfair prejudice
CORPORATIONS – winding up – Corporations Act 2001 (Cth) s 461(1)(k) – application by plaintiff shareholder for winding up on just and equitable ground – company is solvent – company’s business comprised provision of equipment and services under contract with third party – contract expired – deadlock between shareholders about whether to enter into new contract with third party – deadlock not capable of resolution due to breakdown in co‑operation, trust and confidence – defendant shareholder’s unauthorised use of company’s available equipment – plaintiff shareholder’s loss of trust and confidence in defendant shareholder justified – winding up order made
INSURANCE - application for leave to proceed against professional indemnity insurer of defendant accountant under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) - whether plaintiff has reasonably arguable claim against defendant accountant – whether defendant unlikely to be able to meet any judgment – whether reasonably arguable that policy responds to claim – whether exclusions in policy enlivened
FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — whether the consent of the birth parents ought to be dispensed with –– contact – declaration of parentage –– adoption plans – change of name ––
COSTS — costs assessment — application for leave to appeal from decision of costs review panel — where asserted negligence by solicitors for opponents incurred costs of their clients — correspondence between solicitors in negligence claim — subpoenaed documents substantially covered by privilege —negligence assertedly arising from failure of opposing party to alert applicants as to futility of their own appeal — role of solicitors for opposing party in adversarial system
LIMITATION OF ACTIONS – personal injury tort – psychological injuries arising from collision between HMAS Melbourne and USS Evans in 1969 – where applicant suffering from PTSD and related psychological injuries – whether applicant unaware of the connection between the personal injury and the defendant's act or omission at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted – whether the application was made within 3 years after the applicant became aware (or ought to have become aware) of the matters listed in s 60I(1)(a)(iii) – whether just and reasonable to extend time – Limitation Act 1969 (NSW), ss 60I(1)(a)(iii) and (b) and 60G
PRACTICE AND PROCEDURE – application to withdraw admission - admission by defendant in Commercial List Response as to constituents of a contract – whether adequate explanation given for making admission - where admission made as result of lack of sufficient attention by defendant’s legal advisers – whether justice of case requires that leave be granted
CORPORATIONS — Winding up — Application for winding up in insolvency brought in reliance on creditor’s statutory demand — non-compliance with timing requirements of Coronavirus Economic Response Package Omnibus Act 2020 (Cth) — Whether to dismiss winding up application under s 467 of the Corporations Act 2001 (Cth)
CIVIL PROCEDURE – Hearings – Adjournment – Application opposed – Courts power under s 66 of the Civil Procedure Act 2005 (NSW) to order an adjournment on plaintiff’s application in circumstances of financial difficulty – whether plaintiffs’ adjournment application should be granted where defendant’s professional competence attacked in medical negligence claim – where unusual combination of circumstances relied on to establish basis for adjournment – where income derived from businesses adversely affected by COVID-19 pandemic and financial position adversely affected by consequences of claimed medical negligence – adjournment granted. EVIDENCE – Ferrcom inference – whether inference should be drawn where failure to disclose some financial information – where evidence disclosed relevant financial situation – no inference drawn.
ADMINISTRATIVE LAW – Judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Review of decision of Delegate of the Registrar – Whether Delegate exceeded “gatekeeper” role under s 327 by dismissing the appeal on the basis of jurisdiction – Whether an appeal lies from the medical assessment certificate of an Appeal Panel to another appeal panel under s 327 – Whether an appeal lies under s 327(3)(a) after the issue of a certificate of determination – Whether the appeal was a “threshold dispute” – Application dismissed
CORPORATIONS – winding up on “just and equitable” grounds – property development company – $8 million profit – applicant receives $2 million profit share – majority shareholder yet to receive his profit – building defects – applicant and associated shareholder were builders – ‘deadlock’ has air of artificiality – application infused with self interest – other remedies available – applicant acting unreasonably.
DUST DISEASES – proceedings commenced against deregistered company in Dust Diseases Tribunal – claim for general damages – claimant died – s 12B Dust Diseases Tribunal Act 1989 (NSW) – proceedings not commenced and pending before the Tribunal at the person’s death – reinstatement of company pursuant to s 601AH Corporations Act 2001 (Cth) – ancillary order validating Tribunal proceedings nunc pro tunc. CORPORATIONS – reinstatement and ancillary orders under s 601AH Corporations Act 2001 (Cth) – company in liquidation prior to deregistration continues in liquidation upon reinstatement – ancillary order appointing liquidator.
CIVIL PROCEDURE – second application to set aside default judgment – no draft defence provided - non-appearance – repeated non-compliance with court orders – where hearing complete – where applicant aware of proceedings at time of hearing – unexplained delay
CORPORATIONS – winding up – application by minority shareholders to wind up a company under s 461(1)(k) of the Corporations Act 2001 (Cth) – majority shareholder caused whole of company’s funds to be transferred to accounts controlled by him – non-compliance with subsequent order requiring company’s funds to be paid into court – no issue of principle
CIVIL PROCEDURE – probate and administration of estates – application for special administration ad colligenda bona defuncti – property unoccupied since the death of the deceased – property unable to be insured – appointment necessary to preserve the value of the estate – limited grant of administration
COSTS – estate litigation – contest between executors as to who should bear costs – both the plaintiff and the defendant fail in their claims for the other to pay costs, as neither party was wholly successful – questions as to whether there were reasonable grounds for the litigation and whether the litigation was conducted bona fide – costs of the proceedings to be made out of the estate.
COSTS – whether costs should follow the event – whether costs should be made on an indemnity basis – whether plaintiff’s case as currently pleaded bound to fail - where plaintiff did not exist on date when cause of action alleged to arise - where plaintiff’s application to amend to substitute another company as plaintiff refused
CRIME — Sentencing — Manslaughter — Stabbing — Self-defence with excessive force — Guilty plea — Extent of discount for guilty plea in issue — Whether “different offence” under s 25E(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — Special circumstances
SUCCESSION – executors and administrators – rights, powers and duties – duty to realise deceased’s property for the benefit of the estate – deceased had been in possession of real property registered in the name of another person who had died in 1969 – deceased had ceded occupation and control of that property to the person nominated as executor of her will – whether at the date of the deceased’s death the deceased had an entitlement to possessory title forming part of her estate REAL PROPERTY – possessory title – property in possession of non-owner – non-owner cedes occupation and control to another person – which party entitled to apply for possessory title EQUITY – fiduciary duties – breach – second limb of Barnes v Addy – whether the wife of an executor who registered possessory title over property belonging to the estate knowingly participated in “dishonest and fraudulent design”
PRACTICE AND PROCEDURE – Where plaintiff injured in a work accident – Where plaintiff received incorrect advice from his solicitor regarding his entitlement to workers compensation payments and common law damages – Where no proceedings for common law damages were brought based on that advice - Application by the plaintiff for leave to commence proceedings for common law damages against the first defendant in its capacity as his former employer –– Where a prima facie case of negligence against the first defendant had been made out – Where the delay in bringing proceedings had been explained by the plaintiff – No prejudice to the first defendant WORKERS COMPENSATION – Where plaintiff claimed workers compensation payments following incorrect advice from his solicitor – Where the plaintiff was a coal miner for the purposes of the relevant legislation – Where jurisdiction to deal with coal miner matters was conferred exclusively on the District Court of NSW – Where the Workers Compensation Commission purported to make an award of compensation to the plaintiff – Whether the plaintiff’s claim for compensation amounted to a valid election – Whether plaintiff should be granted leave to revoke such election if valid LIMITATION OF ACTIONS – Where plaintiff injured in a work related accident – Where plaintiff was given incorrect advice by his solicitor as to his rights at common law – Where plaintiff sought to commence proceedings against the second defendant in its capacity as the operator of the mine site at which he was working at the time – Whether such proceedings out of time – Whether appropriate to deal with the limitation question in advance of a trial – Whether the plaintiff knew that his injury had been was caused by the fault of the second defendant – Whether the plaintiff knew that his injury was sufficiently serious to justify the bringing of an action against the second defendant – Whether the plaintiff ought to have known that his injury was caused by the fault of the second defendant
SUCCESSION – Contested probate – Testamentary capacity – Application of the test in Banks v Goodfellow – Where numerous wills made over two year period – Where wills rational on their face – Where deceased suffered stroke, vascular dementia and other medical illnesses known to affect executive function – Whether deceased was able to comprehend and weigh claims of potential beneficiaries – Whether impairments suffered continuously or episodically
EVIDENCE – tendency evidence – evidence of earlier altercation between accused and sister of deceased – knife used – significant probative value – probative value does not substantially outweigh prejudicial effect – evidence excluded
CRIMINAL LAW – practice and procedure – application by media for access to CCTV footage and audio recording of Triple-O call played in open court during trial by jury of accused indicted for murder – CCTV in private residence – interests of open justice – administration of justice - potential prejudice to jury members – evidence classified as ‘sensitive’ – interests of family of the deceased – fair reporting – ability to capture and replay footage would place public in substantially different position to those in courtroom
CRIMINAL LAW – sentencing – basis of conviction for manslaughter by excessive self-defence – offender stabbed younger cousin with kitchen knife in townhouse where they lived together – events captured by CCTV cameras inside house – aggravated by use of knife – no mitigating mental condition as diagnosis of pre-existing anxiety disorder founded on offender’s unreliable evidence and histories
CRIME — Bail — Preparation for trial — Long period on remand — Protection of administration of justice — Need to ensure applicant can have fair trial CRIME — Bail — Bail concerns — Risk of failure to appear — Risk that applicant might flee the jurisdiction
CRIMINAL LAW – Conspiracy to murder – application for directed verdict of acquittal – whether sufficient evidence identifying accused as a participant in alleged conspiracy – where Crown relied upon direct and circumstantial evidence to establish identification – test to be applied when Crown relies upon inferences – application rejected
CRIMINAL LAW – evidence – where Crown sought to tender evidence of three telephone conversations immediately before closing its case – where evidence had been available for a considerable period beforehand – where Crown on notice of the relevant issues - evidence not previously disclosed to the accused – where counsel for accused had completed cross-examination of the Crown’s principal witness – whether procedural unfairness is capable of giving rise to unfair prejudice for the purposes of s. 137 of the Evidence Act – probative value outweighed by the danger of unfair prejudice arising from a series of circumstances - evidence rejected
EVIDENCE – accused indicted for conspiracy to murder – evidence of accused’s DNA found on cigarette butt in vehicle allegedly used by him in the course of the conspiracy – cigarette butt destroyed following scientific analysis – accused deprived of the opportunity to independently test the item – where other items located in the vicinity of the cigarette butt not seized and tested - whether evidence of DNA analysis should be excluded on the basis of unfair prejudice – whether, in the event of the evidence being admitted, the jury should be directed about the disadvantage to the accused as a consequence of the destruction of evidence
ADMINISTRATIVE LAW – jurisdictional error – constructive failure to exercise jurisdiction – time limit on applications – interpretation of eligibility criteria –where applicant injured due to motor vehicle accident requiring attendant care and medical treatment – where applicant’s eligibility to participate in a scheme in question – where applicant sustained brachial plexus injury not requiring amputation - whether there is a relevant difference between the terms of the 2012 and 2018 Guidelines – where there is an explanation for the delay in making an application – whether a delay in making an application due to the applicant acting in accordance with legal advice relevant to an exercise of discretion to extend time for making an application – whether the Authority provided a ‘full and satisfactory’ explanation for refusing an application for an extension of time – whether the Authority’s exercise of discretion accords with the beneficial purpose of the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) or the Lifetime Care and Support Guidelines
CONTRACTS – construction contract – whether Plaintiff entitled to amount of second progress claim made prior to Defendant’s termination of contract – whether Defendant entitled to recover additional costs of construction works incurred after termination of construction contract with Plaintiff
PROCEEDS OF CRIME — pecuniary penalty under s 116 of Proceeds of Crime Act 2002 (Cth) — defendant convicted of obtaining financial advantage by deception by concealment of taxable income contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth) — benefit derived from offending – whether penalty can be calculated by reference to tax payable on concealed income — determination of penalty does not depend on Court’s assessment of income tax payable by defendant — whether penalty can be imposed without evidence of Commissioner of Taxation’s assessment of income tax payable on assessable income — order made CONSTITUTIONAL LAW — Notices to Attorneys General pursuant to Judiciary Act 1903 (Cth) s 78B — where short notice given and some responses not received — whether court can proceed — where notices misconceived — no adjournment required CONSTITUTIONAL LAW — whether making of pecuniary money order breaches Ch III of the Constitution — whether penalty sought is justiciable — whether abuse of process — no issue of principle CIVIL PROCEDURE — application for referral to pro bono legal panel and stay of proceedings — no issue of principle CIVIL PROCEDURE — motion for leave to issue subpoena to parties’ solicitor — where written instructions given to expert in evidence — where evidence sought relates to legal advice privilege —motion dismissed
HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order and for examination by Court-appointed experts – Defendant currently serving sentence for index offences – Defendant does not oppose making of orders – dispute as to conditions – orders made
CIVIL – Mental Health (Forensic Provisions) Act 1990 (NSW) – interim application for extension order – whether order should be made to extend status as a forensic patient – whether matters relied upon by the plaintiff if proved would entitle the plaintiff to an extension order.
CORPORATIONS – parents lend $800,000 to son to buy ice cream business in Australia – parents live overseas – company formed – parents are shareholders and son is director – son runs business – son repays half of loan – son allotted 1,800 shares and becomes majority shareholder – son repays loan – son dies leaving shares to de facto husband – parents seek to correct register 14 years after shares allotted. SHARE ISSUE – power to allot shares – principles at - – allotment with knowledge and consent of parents. DIRECTORS – power to appoint director – whether director had power to appoint replacement director by a Will – cannot ‘hand down’ a directorship – power to appoint director ceased on death, at - – s201F Corporations Act 2001 at -. PROBATE – whether executor can exercise power to take appointment as director prior to grant of probate, considering Lockrey v Barnard James Fussell  NSWCA 299 at - – appointment ineffective in any event – section 44 Probate and Administration Act does not cure invalid acts. CORPORATIONS – s 1322 Corporations Act – “just and equitable” at  – “substantial injustice” at . EVIDENCE – events 16 to 20 years ago – reliance on what deceased said at  – forgery – onus and standard of proof at - – comparison of handwriting at  – Jones v Dunkel inference from failure to produce documents at  EQUITY – laches at - – estoppel at - – plaintiffs’ silence did not amount to a representation as no duty to inform the defacto husband
COSTS – Calderbank offers – plaintiffs sought correction of share register – shares of nominal value – defendant makes ‘walk away’ offer on Friday expiring on Monday – plaintiffs live overseas, not fluent in English and unfamiliar with Australian legal processes – rejection of offer not unreasonable – defendants’ evidence served – mediation – defendant offers $200,000 – rejection of third offer unreasonable – no question of principle.
SUCCESSION — Family provision — Claim by adult child — Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — where the plaintiff has numerous and significant ailments — where the plaintiff has no superannuation or fund to preserve him against the vicissitudes of life — where it is alleged that the plaintiff and his former spouse are either in a de facto relationship or a relationship of financial interdependence — where, consequently, it is alleged that there has not been a full and frank disclosure of the former spouse’s financial circumstances — where the Court accepts that the plaintiff and his former spouse do not have a de facto relationship or a relationship of financial interdependence — where there is no basis for the submission that there was some default in the evidence provided that leaves open the possibility that the financial resources available to the plaintiff are significantly greater than acknowledged — where there was a level of estrangement between the deceased and the plaintiff — where legal costs have resulted in a significant diminution of the deceased’s estate — further family provision ordered.
CONTRACTS –– Formation –– Agreement –– Intention to make concluded bargain –– where alleged draft written contract provided that it would become binding when signed by the parties –– where the draft was not signed by either party –– no contract created –– no point of principle CONTRACTS –– Formation –– Agreement –– where the defendant had not authorised the person who provided the alleged draft written contract to the plaintiff to enter into a contract on the defendant’s behalf –– no contract created –– no point of principle CONTRACTS –– Formation –– Agreement –– where there were a number of different draft contracts and other documents referring to different and inconsistently worded terms of the alleged contract –– no contract created –– no point of principle EQUITY — General principles and maxims — Statute of Frauds — Part performance — whether specific performance of an unsigned agreement should be ordered — where it is alleged that one party has performed their obligations but the other party has not — where the Court holds that there was no agreement made — where, even if there was an agreement, the acts relied upon for part performance are not consistent only with partial performance of the alleged agreement –– no point of principle.
EQUITY — Co-ownership — Severance of joint tenancy — Severance in equity — where married couple held as joint tenants several shared bank accounts and shares — where the wife predeceased the husband — whether their conduct severed the joint tenancy in the shared bank accounts and shares — where wills were made by the wife and the husband — whether the distribution of assets in those wills indicated an intention that each will would operate in accordance with its terms on the death of either — where the deceased’s will would operate on the deceased's half of the property, such that it would not pass by survivorship — joint tenancy severed in equity.
CONTRACTS –– Remedies –– Debt –– where no defence by guarantor and debtor to claims by creditor under written loan agreements CONTRACTS –– Misleading conduct under statute –– misleading or deceptive conduct –– where evidence does not establish such conduct CONTRACTS –– Unconscionable conduct –– where evidence does not establish such conduct CORPORATIONS — Directors and officers — Directors’ duties — where it is alleged that a director has breached his duties — no breaches of duty proved.
COSTS – departure from the general rule – proceedings for appointment of trustees for sale of co-owned property – orders made without a hearing on the merits – whether one party had earlier acted unreasonably in failing to agree to sell property and in failing to accept an offer that would involve a sale of the property – whether unreasonableness is manifest by reference to known circumstances – whether unreasonableness resulted in the incurring of unnecessary costs –– costs of all parties ordered to be paid out of the proceeds of the sale of the property
CIVIL PROCEDURE — Parties — Vexatious litigants — whether litigant has frequently instituted and conducted vexatious proceedings in Australia — established – whether confined orders pressed should be made - evidence and litigant’s conduct of the proceedings establishes that she will continue to pursue the beliefs which resulted in her pursuit of vexatious proceedings if orders sought not made – orders made. CIVIL PROCEDURE — Parties — Vexatious litigants — Stay of proceedings — orders required to shield litigants and to protect Courts — stay granted in respect of specified District Court proceedings.
CIVIL PROCEDURE – Parties – Persons under legal incapacity – Tutors – Application for directions by tutor not to be confused with application by trustee for judicial advice – Anticipatory applications by tutors for directions in relation to potential settlement of proceedings should generally not be made – Civil Procedure Act 2005 (NSW), ss 76(3), 80
CONVEYANCING – vendor and purchaser – whether council stormwater pipe under property would have given rise to a right of rescission under rule in Flight v Booth – whether the pipe so affected the subject matter that it might reasonably be supposed that the purchaser might not have contracted at all TORTS – negligent misstatement – breach of duty by local council issuing certificate under s 149 Environmental Planning and Assessment Act – misstatement as to council policy resolution for acquisition of easements over property – purchaser’s reliance on certificate – defences under s 43A of the Civil Liability Act and s 733 of the Local Government Act TORTS – negligent misstatement – vendor’s breach of duty in answering requisitions about existence of council stormwater pipe under property – reliance by purchaser through conveyancing solicitor – whether plaintiff would have been entitled to rescind if correct answers given TORTS – professional negligence – whether solicitor exercised reasonable care and skill in obtaining instructions for answers to requisitions – negligence not established TORTS – private nuisance by public authority – interference with use and enjoyment of land – property flooded by overland flows of stormwater – “good faith” – necessity to prove negligence of council – defence under s 733 Local Government Act 1993 – nuisance established – damages VALUATION – land – value impaired by local council stormwater pipe – necessity to create an easement and relocate pipe – necessity to alter pipe connections external to the land – difficulty and uncertainty of dealing with council
ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Motor Accidents Compensation Act 1999 (NSW) – Review of decisions of the Medical Assessor and Proper Officer – Denial of procedural fairness – Findings unsupported by evidence – Failure to provide adequate reasons – Review dismissed
Application for interim detention order under Mental Health (Forensic Provisions) Act 1990 (NSW) – whether order should be made to extend status as a forensic patient – whether matters relied upon by the plaintiff if proved would entitle the plaintiff to an extension order.
CIVIL PROCEDURE — dismissal for want of prosecution – sustained failure to comply with directions to serve evidence in support of contempt motion — evidence ultimately served inadequate — experienced self-represented litigant — delay alone insufficient to dismiss proceedings. CIVIL PROCEDURE — abuse of process — collateral purpose — applicant threatened respondents while failing to prosecute contempt motion — statement of charges prolix — evidence in support defective — no suggestion that problems will be remedied — motion seeks to cavil with Children’s Court judgment on appeal — motion seeks to re-litigate judgments in these proceedings — motion summarily dismissed.
CIVIL PROCEDURE – interim preservation – continuation of freezing orders – dispute concerning whether property held on trust – distinction between freezing order and injunction to preserve property – injunction to preserve property granted – additional asset preservation order refused
CIVIL PROCEDURE – Parties – Person under legal incapacity – Tutor – The Plaintiff commenced proceedings by tutor – Some evidence that Plaintiff falls within definition of person under a legal incapacity – Defendant does not dispute that Plaintiff requires a tutor – Court satisfied that Plaintiff requires a tutor in relation to the conduct of the proceedings, in order to protect his interests SUCCESSION – Family Provision – Claim by child of the deceased – The Plaintiff, a now adult child of the deceased, makes a claim for a family provision order under Chapter 3 of Succession Act – No dispute as to the Plaintiff’s eligibility as a child of the deceased – Nature of relationship of the Plaintiff and the deceased – Medical condition of the Plaintiff – Dispute as to nature and value of estate – Little actual estate in New South Wales – Notional estate in New South Wales – Substantial estate and property that may be designated as notional estate outside New South Wales – No dispute that deceased was, at the time of his death, domiciled in New South Wales – Significant competing claim of the sole beneficiary, the Defendant, who is the widow of the deceased – Whether a family provision order should be made for the Plaintiff, and if so, the nature and quantum of the provision to be made and how the burden of the provision, if any, made should be borne
EVIDENCE – public interest immunity – application for ESO against defendant – whether contents of committee meeting minutes should be disclosed to defendant – committee had recommended to Attorney-General that no ESO be sought – probative value of meeting minutes – risk of injury to public administration – claim for public interest immunity refused
LAND LAW – strata title – building manager – duration of caretaker agreement – agreement made in 2001 provides for 10 year term with options for three additional 5 year terms – legislation introduced in 2003 regulates appointments of caretakers and duration of caretaker agreements – effect of legislation including transitional provisions upon variations to caretaker agreement made in 2010 and 2015 – variations provided for additional options for further terms – held that agreement as varied not an agreement the duration of which is protected by transitional provisions – held that agreement as varied has maximum duration of 10 years from date when agreement as varied authorised caretaker to act under it – Strata Schemes Management Act 1996, s 40B and Sch 4 Part 4, cl 12 – effect of transitional provisions of Strata Schemes Management Act 2015, ss 66-70 and Sch 3 cll 3, 15 LAND LAW – strata title – owners corporation – meetings of owners corporation – voting by proxy – voting by a proxy who is a caretaker – where vote would confer or assist in conferring a material benefit on the proxy – where proxies held by persons said to be acting on behalf of caretaker as its agent – the provision that invalidates certain votes by a proxy who is a caretaker held to apply only to votes by the caretaker itself as proxy – Strata Schemes Management Act 1996, Sch 2 Part 2 cl 11 LAND LAW – strata title – building manager – cl 9.3 of caretaker agreement gives owners corporation the right to terminate the agreement if caretaker guilty of gross misconduct or gross negligence in performing its responsibilities – numerous allegations of misconduct or negligence including overcharging, standing for election to executive committee, improper use of electricity and failures in respect of fire safety – held that caretaker was guilty of gross misconduct in taking supply of electricity paid for by owners corporation over 18 year period – held that caretaker was guilty of gross misconduct or gross negligence in failing to promptly report to executive committee about unresolved faults in fire alarm system – owners corporation entitled to terminate caretaker agreement under cl 9.3 – right to terminate exercised by executive committee of owners corporation – right to terminate validly exercised despite no advance approval of general meeting of owners corporation – action of executive committee later ratified by resolution passed at general meeting – caretaker had not in the meantime terminated the agreement for repudiation by owners corporation – upon termination under cl 9.3 parties bound to follow regime laid down by cl 10 of agreement – owners corporation in breach of cl 10 by taking possession of caretaker lot, but conduct held not to be repudiatory – caretaker entitled to damages and compensation pursuant to usual undertaking as to damages for deprivation of possession of caretaker lot – Strata Schemes Management Act 2015, s 68(3)
COSTS — departure from the general rule – offers of compromise – whether offers comply with UCPR r 20.26 – offers made jointly to plaintiffs bringing separate causes of action – offers held not to comply with UCPR r 20.26 – not unreasonable of either plaintiff to fail to accept offers – indemnity costs not ordered COSTS – where parties have had some success and otherwise failed – overlapping claims – degree of overlap between claims of one plaintiff and cross-claim – whether appropriate to treat those costs as if they were costs of a single proceeding – whether certain issues between first plaintiff and defendant are clearly separable – appropriate to make costs orders based on success on those issues – where neither the second plaintiff nor the defendant should be regarded as the successful party against the other – order that those parties bear their own costs
INTERLOCUTORY PROCEEDINGS – claim under mortgage, guarantee and deed – motion for costs thrown away – motion for variation of orders made by Davies J to meet costs – motion to vary orders of Davies J for enhanced security – motions dismissed
CORPORATIONS – winding up – unreasonable director-related transaction – where director allowed company’s business to be taken over by new company for nil consideration – whether disposition “for the benefit of” director – Vasudevan v Becon Constructions (Aust) Pty Ltd (2014) 41 VR 445 applied – Corporations Act 2001 (Cth), s 588 FDA CORPORATIONS – directors’ duties – statutory duty to act in good faith and in the best interest of the company and for proper purpose – where director allowed company’s business to be taken over by new company for nil consideration – Corporations Act 2001 (Cth), s 181(1) CORPORATIONS – accessorial liability for involvement in breach of director’s statutory duty – whether person “aided and abetted” or “knowingly concerned in, or party to” contravention – where accountant registered new company and was sole director, secretary and shareholder of new company – Corporations Act 2001 (Cth), s 79 CORPORATIONS – claim for compensation – whether company suffered loss as a result of accessory’s contravention of director’s duty – Corporations Act 2001 (Cth), s 1317H(1)
EVIDENCE — admissions — criminal proceedings — lies told by the accused to police and hospital staff — whether identified lies can be used for consciousness of guilt — whether the lies are intractably neutral — context surrounding when the accused told the lies — accused charged with murder — self-defence raised by the accused
EVIDENCE — credibility evidence — prior consistent statement — Crown application to adduce evidence of prior consistent statements of witness to a shooting — accused charged with murder — self-defence raised — statements made to police — whether s 108(3) of the Evidence Act is engaged — question of whether leave should be granted — statements are not prior consistent statements — leave refused
PERSONAL PROPERTY – Assignment of choses in action based upon Deed of Debt – Whether assignment valid if Defendant’s signature on Deed of Debt not proved to be her signature – Evidence of two witnesses of the Plaintiff that Defendant signed Deed of Debt in their presence – Defendant denies having signed Deed of Debt – Two of her witnesses give evidence that the Defendant could not have done so as one, or both, of them were with her on the day the Deed of Debt said to have been signed – Fourth signatory on Deed of Debt not called and each of the other signatories deny knowing him – Also evidence of expert forensic document examiner EVIDENCE – Standard of proof – Whether the Plaintiff has satisfied the Court that the Deed of Debt was signed by the Defendant – Credibility of the lay witnesses – The expert evidence on handwriting regarding simulation of the Defendant’s signature on Deed of Debt – No expert forensic evidence called on behalf of the Plaintiff – Seriousness of allegation – Whether Plaintiff able to discharge burden of proof as to authenticity of Defendant’s signature on Deed of Debt PERSONAL PROPERTY – Assignment of choses in action – Whether Deed of Debt assigned and if so nature of the assignment – Whether Deed of Assignment rectified CONTRACTS – Rectification – Intention – Deeds of rectification – Where rectification of two different Deeds of Assignment purported to give effect to actual intention of the assignor and assignee, respectively, in Deeds of Assignment – Whether sufficient evidence of actual intention of each of the parties to first Deed of Assignment
CONSUMER LAW – misleading or deceptive conduct – whether defendants misrepresented effect of proposed changes to share purchase agreement – whether plaintiff misled by defendants’ communications about those amendments – whether plaintiff signed payment instruction under a mistake of fact
PRACTICE AND PROCEDURE – application – in proceeding commenced in 1993, order made requiring plaintiff to obtain leave to file statement of claim seeking orders setting aside various costs orders made between 1995 and 2014 – whether the proposed pleading discloses a reasonable cause of action under Uniform Civil Procedure Rules 2005 (NSW), rr 36.15(1) and/or 36.16(3) JUDGMENTS AND ORDERS – res judicata – cause of action estoppel – issue estoppel – Anshun estoppel PRACTICE AND PROCEDURE – inherent jurisdiction – abuse of process
COSTS – solicitor acting in proceedings – client transfers instructions to new solicitor – dispute concerning handover of documents – summons claims delivery up of complete file – documents produced before hearing – whether costs order should be made against former solicitor
CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, approve a proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied CORPORATIONS – Managed investments – Judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – Whether to convene meetings of unitholders – Whether responsible entity would be justified in treating consequential constitution amendments as within power.
COMMERCIAL LIST – Procedure – Applications by plaintiff for amendment to Commercial List Statements – Certain amendments not originally, but then later opposed – No prejudice shown in granting amendments – Amendments granted – Application to amend by bringing a direct claim against a party previously only joined as a cross-defendant – Assessment of prejudice in light of fact that amendment brought not long before significant trial fixture – Amendment refused.
PUBLIC ASSEMBLY – Summary Offences Act 1988 (NSW) – whether order should be made pursuant to s 25(1) prohibiting the holding of a public assembly ADMINISTRATIVE LAW – judicial review – apprehended bias – whether public statements by delegator vitiate the decision made by the delegate on the ground of apprehended bias ADMINISTRATIVE LAW – judicial review – apprehended bias – exceptions to bias rule – necessity ADMINISTRATIVE LAW – reviewability – jurisdiction – whether the Supreme Court has jurisdiction to entertain the application for a prohibition order under s 25 of the Summary Offences Act 1988 (NSW) – whether threshold requirement in s 25(2)(c) of the Summary Offences Act has been fulfilled – whether materials were properly considered in light of public statements made by the repository of power – whether application could properly be considered within a 17-minute time frame CONSTITUTIONAL LAW – implied constitutional freedom of political communication – whether s 25 of the Summary Offences Act 1988 (NSW) must be read down so as not to infringe the implied constitutional freedom of political communication
DRIVER’S LICENSING – withdrawal of exemption from licensing for interstate driver – whether Local Court may vary decision of Plaintiff to withdraw exemption so as to permit driving for limited purposes.
CONTRACTS – construction – interpretation – co-location of refinery plant – owner’s obligation to make capital payments based on operator’s installation expenditure – later informal variation for further expenditure – whether effective – operator’s obligations to maintain expenditure records and submit to audit – whether complied with – expert determination of “written down value” – whether binding – whether owner entitled to leave plant behind on termination of contract – whether owner obliged to remove plant on termination of contract CONTRACTS – breach of contract – co-location of refinery plant – operator’s obligation to maintain co-located plant – whether obligation breached – whether owner’s obligation to pay tolling fees dependent on operator’s compliance – whether tolling fees already paid recoverable as damages – owner contractually entitled to remove plant – operator’s obligation to co-operate – whether obligation breached by interfering with owner’s contractors – operator’s obligation to manage refinery feedstock – whether obligation breached by mixing contaminated and non-contaminated feedstock TORTS – interference with goods – conversion – co-location of refinery plant – owner contractually entitled to remove plant – whether interference by operator with owner’s contractors would amount to conversion of plant EQUITY – equitable remedies – injunction – trespass – co-location of refinery plant – plant abandoned on land by owner after termination of contract – whether abandonment effective – whether damages an adequate remedy – mandatory injunction for removal GUARANTEE AND INDEMNITY – discharge of guarantor -– variation increasing principal’s liability to creditor – whether surety consented – whether creditor breached record-keeping duties and obligation to co-operate with principal – whether surety discharged by such breaches EVIDENCE – character evidence – tendency rule – application of rule to corporate entity – probative value
COSTS – application for indemnity costs – whether respondent’s opposition to motion had no reasonable prospects of success – where grounds of arguments rejected at hearing were not clearly articulated prior to hearing – application dismissed